Friday, July 04, 2008

Happy Birthday: A Reverie on the Road from the American to the Kosovo Declaration of Independence

As is customary on July 4th, Americans dutifully pay lip service to their Declaration of Independence (Declaration of Independence (The Unanimous Declaration of the Thirteen United States of America) (July 4, 1776)), a document crafted by the lawyers of colonial bourgeois elites and served on their betters in London. It is a superior reminder of the way in which law--and especially the common law as it had come to be understood in the face of Stuart absolutism--could come back to bite the Stuart's Hanovarian successors and their English representatives in Westminster. See Larry Catá Backer, Symposium: Law and the State in the Transnational Legal Order: Reifying Law: Understanding Law Beyond the State, 26(3) Penn State International Law Review 521 (2008).

Not that people actually read past the first few sentences--the English is now beyond the comprehension of most people. And even if they could, the ideas have long since passed into history--even eminences like Justice Scalia of the United States Supreme Court can be forgiven for mistakenly thinking that this document, like the later United States Constitution, was written with the sensibilities of an American Catholic with 20th century sensibilities and a longing for the culture of the civil law.

Still, the document is worth a careful read. A combination of lawyer's brief and statement of foundational political principles, the Declaration of Independence provided a framework for a determination of the existence of those conditions that permits dissolution of the indissoluble. That framework is simple enough:

One starts with a politeness--the need to explain "the causes that impel them to the separation." The Unanimous Declaration of the Thirteen United States of America, Para. 1. There is an absence of the 19th and 20th century obsession with ethnos. Indeed, the implication appears to be a compatibility of distinct peoples to live together within a single commonwealth in the absence of a necessity to dissolve "the political bands which have connected them with another." Id.

One continues with a recitation of the normative basis for measuring the worthiness of the cause--effectively the "higher law" against which the conduct of King, Parliament and colonial establishment is to be measured. This is, of course, the sentence that everybody remembers: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed." The Unanimous Declaration of the Thirteen United States of America, Para. 2. Though few remember its context or character. Still, these principles now form the basis of substantive constitutionalism as understood in most parts of the world. See Larry Catá Backer, Theocratic Constitutionalism: An Introduction to a New Global Legal Ordering (July 28, 2008). Indiana Journal of Global Legal Studies, Vol. 16, No. 1, 2008.

That the principles enunciated constitute a higher law--a law that not even a constitution (including our own) ought to trump is made clear in this recitation of principles as well. "That whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness." The Unanimous Declaration of the Thirteen United States of America, Para. 2. Still, this is a conservative document. Though the principles are great-- the tyranny must be greater to support a bill of particulars for separation. "Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes; and accordingly all experience hath shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. " Id.

Moreover, the Declaration reminds its readers--the established government ought to be given fair warning and a period of time to redress grievances. Paragraphs three and four of the Declaration remind the reader of the significant warnings given.

In every stage of these oppressions we have petitioned for redress in the most humble terms: our repeated petitions have been answered only by repeated injury. A prince, whose character is thus marked by every act which may define a tyrant, is unfit to be the ruler of a free people.

Nor have we been wanting in attention to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which, would inevitably interrupt our connections and correspondence. Id.
Given fair warning, what separation requires is required is "a long train of abuses and usurpations", pursuing invariably the same object," which "evinces a design to reduce them under absolute despotism." Id. It is to the documentation of that long train of abuses, and to the argument that the accumulated acts and grievances amount to the establishment of despotism in violation of the higher law of state legitimacy that the succeeding list of twenty seven (27) charges are declared. There are far fewer people who are moved by this long recitation (or even moved to read them)--it lacks the drama of the first sentences of the second paragraph--yet it formed the heart of the document for contemporary minds. And many of its charges would eventually find their way into the American Constitution as limitations of governmental power. These charges, then, bear careful reading as a blueprint for a framework of limited government.

Yet none of this is as important as the Declaration's conclusion. First, of course, paragraph five makes the necessary declaration of independence, again looking to a higher sources for its legitimacy--the people and God--"appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the name, and by the authority of the good people of these colonies, solemnly publish and declare, that these united colonies are, and of right ought to be free and independent states." Id. Thus, this is very much an act of self constitution. Those who executed the Declaration looked to no one but themselves, and to their sense of a higher order of principles of conduct: "And for the support of this declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our lives, our fortunes and our sacred honor."

This support was to be tested until 1783 by force of arms. Had the colonists lost, then the Declaration would have perished with them. As it happened, the united colonies were successful and the Declaration of Independence acquired an influence that exceeds that of most other products of the political mind. Many peoples since that time have sought to rely on the framework of the Declaration--and many have failed in that effort when tested by force of arms. And that is the point--the Declaration of Independence--for all that it was a lawyer's document was meant to make law through force. This was the application of the "higher law" of states to which no recourse to the courts could be made.

How different the experience of states in 2008. Like much else in global political life, such declarations are now carefully managed by an international apparatus designed to limit the violent effect of such national aspirations, and to manage the process of separation through a political model grounded in bureaucratic order and judicial restraint. On February 17, 2008, the people constituting themselves as the Republic of Kosovo, declared their independence. The announcement of that event was memorialized, like that of their American predecessors, with a writing--the Kosovo Declaration of Independence.

This is no lawyer's brief. This is no act of self constitution. This is an apology. in the form of an an international contract between the people of Kosovo and its managers within the United Nations. Still--this is the form in which independence is declared today--with permission and subject to administration by those supra-national institutions that can guarantee that such a declaration will not be tested by force of arms. Indeed, the declaration can be reduced to little more than an assent to the conclusion and suggestions of a pair of reports prepared by the United Nations. United Nations Office for the Special Envoy to Kosovo, Report of the Special Envoy of the Secretary-General on Kosovo's future status, S/2007/168, March 26, 2007, and United Nations Office for the Special Envoy to Kosovo, Comprehensive proposal for the Kosovo Status Settlement, S/2007/168 Add.1, March 26, 2007.

The declaration is a statement of ther Assembly of Kosovo. It starts with a set of recitals. Several suggest the nature of events leading to the declaration--especially the disastrous relations with Serbia. Kosovo Declaration of Independence, recitals. One suggests the aberrational nature of the event: "Observing that Kosovo is a special case arising from Yugoslavia's non-consensual breakup and is not a precedent for any other situation." Kosovo Declaration of Independence, recitals. This is emphasized in the body of the Declaration itself: "Our independence brings to an end the process of Yugoslavia's violent dissolution. " Id., para. 10. Yet, though relations were disasterous, and the cause of independence, still, the Kosovars recognize a desire for good relations with the "Republic of Serbia with whom we have deep historical, commercial and social ties that we seek to develop further in the near future." Id., at para. 11.

A number suggest that despite the ethnic/religious nature of the decision to secede, the resulting state will be multi-ethnic, democratic, human rights loving and international good citizen state, "in line with the highest European standards of human rights and good governance." Kosovo Declaration of Independence, recitals.

And the most important suggests the framework within which the declaration is made possible--the United Nations Report recommending a sort of independent status for Kosovo. Id.

The declaration itself is contingent:
We, the democratically-elected leaders of our people, hereby declare Kosovo to be an independent and sovereign state. This declaration reflects the will of our people and it is in full accordance with the recommendations of UN Special Envoy Martti Ahtisaari and his Comprehensive Proposal for the Kosovo Status Settlement.

Kosovo Declaration of Independence, Para. 1. After stressing the democratic and multi-ethnic secular acharacter of the state (Id., para. 2), the Declaration binds itself to the management of the United Nations.
We accept fully the obligations for Kosovo contained in the Ahtisaari Plan, and welcome the framework it proposes to guide Kosovo in the years ahead. We shall implement in full those obligations including through priority adoption of the legislation included in its Annex XII, particularly those that protect and promote the rights of communities and their members.
Kosovo Declaration of Independence, Para. 3. Indeed, the declaration stresses the relationship with the United Nations in terms of dependency, past and future: "We express our deep gratitude to the United Nations for the work it has done to help us recover and rebuild from war and build institutions of democracy. We are committed to working constructively with the United Nations as it continues its work in the period ahead." Id., at para. 7.

The dependence serving as the substructure of Kosovar independence extends to the subordination of the popular will to the higher law of the management by the United Nations. Thus, the Kosovo Declaration of Independence severely limits the scope of constitution making: "The Constitution shall incorporate all relevant principles of the Ahtisaari Plan and be adopted through a democratic and deliberative process." Kosovo Declaration of Independence, Para. 4. This is stark evidence of a perhaps exaggerated form of institutionalized transnational constitutionalism that had its start after 1945 with the constitutions of Germany and Japan. See Larry Catá Backer, God(s) Over Constitutions: International and Religious Transnational Constitutionalism in the 21st Century. Mississippi Law Review, Vol. 27, 2008.

But this is more than a submission to the limitations of the principles of transnational constitutionalism. This is an independence prematurely conceived and dependent for its success on the tutelage of others. One gets a sense of this not merely contingent but juvenile effort within the Declaration itself:
We welcome the international community's continued support of our democratic development through international presences established in Kosovo on the basis of UN Security Council resolution 1244 (1999). We invite and welcome an international civilian presence to supervise our implementation of the Ahtisaari Plan, and a European Union-led rule of law mission. We also invite and welcome the North Atlantic Treaty Organization to retain the leadership role of the international military presence in Kosovo and to implement responsibilities assigned to it under UN Security Council resolution 1244 (1999) and the Ahtisaari Plan, until such time as Kosovo institutions are capable of assuming these responsibilities. We shall cooperate fully with these presences to ensure Kosovo's future peace, prosperity and stability.
Kosovo Declaration of Independence, Para. 5.And indeed, the dependent nature of Kosovar independence is conceded by the declaration's stated intent to cede sovereignty almost as soon as it acquires a modicum of independence by seeking membership within the European Union. Id., para. 6. One gets the sense that Kosovo's independence is possible only as a dependent member of a larger supra-national community. Kosovo is not the only example of this reconsitution of power from state to supra national entity. There are ther sub national ethnic groups within Europe seeking independence from a traditional state but within the safety of the governmental structure fo the European Union. See Larry Catá Backer, The Euro and the European Demos: A Reconstitution, 21 YEAR BOOK OF EUROPEAN LAW (England) 13 (2002).

The obligation to establish a constitution is only one of a number of contract like provisions inserted into the Declaration. In addition, for example, the Declaration expresses a commitment to "undertake the international obligations of Kosovo, including those concluded on our behalf by the United Nations Interim Administration Mission in Kosovo (UNMIK) and treaty and other obligations of the former Socialist Federal Republic of Yugoslavia to which we are bound as a former constituent part." Kosovo Declaration of Independence, Para. 9. But perhaps most importantly, it declares that "Kosovo shall be legally bound to comply with the provisions contained in this Declaration, including, especially, the obligations for it under the Ahtisaari Plan." Id., at para. 12.

It seems that in the 21st century, risk has been taken from political events. Independence is no longer a self constituting event--violent, self referential and ready to be tested. Instead, independence is a contingent event. It is managed, subject to conditions, and acquired with the permission of those who are willing, by their suzerainty over events and parties, avoid violence by controlling the form and effectiveness of such declarations. As the Kosovo Declaration itself seems to declare--this is an odd independence, if it is independence at all. As Americans contemplate their own Declaration of Independence, asserted without management, subject to no condition but those of a common understanding of the legitimating authority of higher law, and subject to a conscious understanding of the need to defend the Declaration by force of arms--and to be be prepared to continue to do so preserve it independence in the future, the Kosovo Declaration of Independence reminds us of the way in which that world has passed away. Nations are now managed into existence--or managed out of existence. Declarations are now morphed inot agreements to abide by the rules of that web of obligations and commitments designed to make resort to proof by arms obsolete (except perhaps in the case of Israel, which is still subject it seems to the old rules).

And most important of all, the character of the contingency of independence has changed dramatically. The effectiveness of the American Declaration of Independence was grounded in an ability to defend it against military challenge. Once effective, the Americans were substantially unconstrained by foreign powers in the constitution of its government and the elaboration of its political organization. The effectiveness of the Kosovo Declaration of Independence, in contrast, is grounded on the ability of the international community to manage the process of separation. Once effective, the Kosovars will beable to organize their state, but subject to the constraints imposed by the guarantors of Kosovar independence--from the constitution of its government to the normative framework within which ithat government will be contrained. Kosovo reminds us of the ways in which independence has changed character in the centuries since 1776. That change represents a substantial evolution in notions of sovereignty, of power and power relationships. It suggests the strength of the international community, and the critical importance of supra national irganizations in the constitution of states--especially small ethnically homogenous tribal states.

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