Friday, March 14, 2008

Kosovo: A Threat to China and Russia; a Great Benefit to Israel

The impending independence of Kosovo has produced both elation and consternation. This event provides a window on the difficulties and opportunities of that set of great movements that had their origins in the anti-colonial and anti-imperial movements of Central Europe and Latin America in the 19th century. It also evidences the perverse consequences of the development, in international law, of the doctrine of self-determination.

The legal issues are simple. The Serbs argue that independence is impossible because it has not consent to the separation of Kosovo from Serbia. "The counter-argument by Serbia and Russia is simpler. It is that Serbia, the sovereign state, has not agreed to independence for Kosovo, that there is no Security Council resolution authorising the detachment of Kosovo from Serbia and that therefore its independence is illegal." Paul Reynolds, Legal Furore Over Kosovo Recognition, BBC News Online, Feb. 16, 2008. Some members of the European Union agree: Greece, Cyprus, Spain, Romania, Slovakia and Bulgaria. Saying No to Kosovo Independence, BBC News Online, March 5, 2008. Each has large, geographically contiguous minorities that might be interested in separation. Russia and China also object. "China Monday expressed "serious concern" over Kosovo's declaration of independence and called for "proper solution through negotiations" between Serbia and the breakaway province." China Expresses Concern Over Kosovo, China Daily Online, Feb. 19, 2008. Each is also a multi-ethnic, multi-religious state with restive minority regions.

The Americans and the European Union base their push for recognition on an acrobatic interpretation of the U.N. Resolution that allowed them to attack Serbia during the Kosovo War.
After the war over Kosovo in 1999, the UN Security Council took control. In resolution 1244 of 10 June 1999, it ordered the Federal Republic of Yugoslavia (as it then was) to withdraw all its forces from Kosovo and hand Kosovo over to the UN. The problem is that although the resolution called for a "political solution to the Kosovo crisis", it did not specify what that solution should be. . . . Many Western governments argue that because 1244 does refer to general principles that G8 foreign ministers had agreed in advance of the resolution, these should be used as the basis for the acceptance of independence now. These principles include the deployment in Kosovo of "international civil and security presences" and "facilitating a political process designed to determine Kosovo's future status".
Paul Reynolds, Legal Furore Over Kosovo Recognition, BBC News Online, Feb. 16, 2008. Many of the powerful EU Member States have taken a functionalist approach to the legal issues. "Most EU governments, certainly the British, see the move as a one-off, the final piece of the shattered jigsaw that was Yugoslavia being put into its new place." East-West Divide Over Kosovo Move, BBC News Online, Feb. 17, 2008. The E.U. will likely support independence. "The European Union has drawn up, as it is required to do by EU procedures, a document to justify its own mission to Kosovo and the arguments deployed are the same as the ones used to justify recognition." Paul Reynolds, Legal Furore Over Kosovo Recognition, BBC News Online, Feb. 16, 2008. That report is grounded in the application of U.N. Resolution 1244. Id. The Member States are divided and a unified position will be hard to maintain. "The EU is leaving actual recognition to individual governments. Diplomatic sources say that three member states - Cyprus, Romania and Slovakia - have told EU partners that they will not recognise the breakaway province." East-West Divide Over Kosovo Move, BBC News Online, Feb. 17, 2008.

But the battle is about more than the niceties of legality. On the one hand, Kosovar independence deepens the international regimes of self determination. Here is a demos, created from out of assertion of the will of a self conscious and autonomous demos, to separate from another. There are echoes of the natural law principles in the American Declaration of Independence in this struggle for freedom. See Larry Catá Backer, Some Thoughts on the American Declaration of Independence and the Irish Easter Proclamation, 8 Tulsa Journal of Comparative & International Law 1 (2000). It suggests that demos matters, that independence is a viable alternative as a consequence of global constitutional principles of democratic participation and self determination. Even if Kosovo is not exactly a viable state, in a 19th centurty sense, that ought nbot to serve as an impediment to independence. The reason is simple--independence is less meaningful in the context of European Union membership. For Kosovo to achieve independence and then membership in the E.U. means, substantially, that its independence is in a sense illusory. In important matters--economic, monetary and human rights regulation, the European Union would serve as a controlling entity. Kosovo might be allowed its language, religion, national costume and cuisine, but it would not be allowed to install a fundamentalist Islamic Republic, repress its Serbian minority (too much, at least), or assert much independence in ordering its internal economic and social affairs. Not if it wants to continue to receive its sizable dole from the E.U. And that is a powerful argument indeed in a continent that is moving to formal fracture amd functional union. The Americans have used context as a fig leaf to cover its recognition of Kosovo and limit its effects. "In supporting Kosovo's independence, Secretary of State Condoleezza Rice made it clear the U.S. regarded the situation as unique, citing the 1999 NATO war to end Serb aggression against the ethnic Albanian majority, and the U.N. supervision of the territory since then." Patrick Goodenough, Kosovo Ripples Felt in Taiwan Strait, Former Soviet Union, CNS, Feb. 21, 2008.

On the other, Kosovar independence suggests the end of the plural society. In states that are constructed of multiple ethnic, religious and racial groups, separation appears to be as important a political option as the hard world of building a single state. This is especially true where these disparate communities can be separated geographically. Of course, that is the consequences of all of the activity in Europe in the reconstruction of its borders after 1918 , and again, after 1938, and 1945. China understands this even if the United States does not. "Foreign Ministry spokesman Liu Jianchao issued a statement Monday, warning that the move could destabilize the Balkan region severely. 'Kosovo's unilateral pproach may lead to a series of consequences and create a seriously negative impact on peace and stability in the Balkans and on the efforts to build a multi-ethnic society in Kosovo, which China is deeply worried about," Liu said." China Expresses Concern Over Kosovo, China Daily Online, Feb. 19, 2008. The Taiwanese understood the implications as well--"In the aftermath of Kosovo's declaration of independence from Serbia early this week, Taiwan's government issued a statement welcoming the move. That drew a quick rebuke from the mainland government, which said that Taiwan, "as a part of China," has no right to recognize Kosovo's decision. Undeterred, the Taiwanese government then went a step further, declaring in a statement its formal recognition of the new Balkan state." Patrick Goodenough, Kosovo Ripples Felt in Taiwan Strait, Former Soviet Union, CNS, Feb. 21, 2008.

Kosovar poses a particular conundrum for the dar al Islam. On the one hand, Kosovo presents a majority Muslim state in Europe that ought to be worthy of the support of the rest of the dar al Islam. On the other hand, recognition makes it far more difficult to resist recognition of Israel--a state that presents a similar (though not identical) situation. Arab commentators have been slow rto recognixe this--they prefer to focus on the analogy between the declaration of Kosovar independence and a similar declaration of Palestinian independence. See Galal Nasser, Deferring Recognition of Kosovo, Al-Ahram, Weekly, March 6-12, 2008. But that analogy applies with equal force to the declaration of Israeli independence in 1948. The Arab states have been sensitive to issues of territorial integrity, and to the analogy to Israel in the past. Most states have been reluctant to recognize Chechnya (though that can also be understood in a realist context--no state wants to offend Russia, a valuable friend). This suggests that Ariel Sharon might have been right in suggesting that the best alternative within the former Ottoman province of Palestine is a hard separation. Kosovo presents an interesting puzzle indeed, and consequences galore. It will prove valuable to international law, the law of self determination, the incentives of nation state break ups and to the debate over the recognition of Israel and Palestine.

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