Nikolai Zlobin is a Russian analyst who has been based in DC for some time - I'm not sure if it's that exposure that makes him generally sound more sensible than the average pundit, or something else. He also has a blog, the insights of which I wish I had been reading last fall when I was
pontificating and speculating in this space about the fate of the Russian
throne presidency. The article below is from the newspaper Vremia Novostei, and
there's a slightly longer version on his blog.
Anyway, although I don't agree with everything in this article, I enjoyed the blend of an "outside-the-box" approach to international law with a pragmatic assessment of why things went down as they did in this case, so I decided to translate it for the edification of anyone who is fascinated or frustrated with the idea of a "
Kosovo precedent" - and where it might lead - but doesn't read Russian.
Kosovo will not return to Serbia, just as Abkhazia will not return to GeorgiaNikolai Zlobin, Vremia Novostei, Feb, 29, 2008
In international law there are two principles – the right of nationalities to self-determination and territorial integrity of states – that at first glance appear to contradict each other. But if an ethnic group wants to break away and create its own state, it has the right to do so. The right of an ethnic group is superior to the right of a state. But if another state seeks to annex a part of the territory of a neighboring country, then the principle of territorial integrity applies, and the international community must ensure that it is observed.
In other words, if Russia wants to annex Abkhazia, that would be a violation of international law. But if Abkhazia wants to secede from Georgia and create an independent state, then its people have the full right to do so. There have been similar cases since 1945. This is the case in Kosovo as well, which is not becoming part of another state but is trying to create its own state. Moreover, a prohibition against becoming part of another state was a condition of Kosovo’s independence. Therefore, there is no basis for comparing the situation in Kosovo with the “Munich Agreement” which gave Czechoslovakia’s Sudetenland to Germany in 1938.
International law inevitably changes. The foundations of the current system were formed in the first years following World War II. This was the international law of the Cold War period, and it does not adequately reflect contemporary realities and requires serious changes. Russia should become one of the leaders in the creation of a new system of international law, which would take into account the processes of globalization and technological developments. The way to do this is to avoid clinging to the norms and procedures of the past, whatever their benefits were in their day, and to shape the future based on the realities of the present.
The UN system, created in 1946, is in need of modification. It has long since ceased to be a politically effective international organization, has turned into a humanitarian organization and has not been in a position to solve a single significant international problem for years. In addition to Kosovo, one can point to the proliferation of nuclear weapons worldwide, wars in Iraq and Afghanistan, and many other things taking place which conflict with the letter of international law. We need new organizations which are capable of placing the world’s development within a manageable framework, so that events will not be left to their natural course as is the case today. Russia can and should play a large role in the creation of this new system, in cooperation with the EU, the USA, China, the Arab world, and other interested parties.
The principal complaint against supporters of Kosovo’s independence is that they have violated UN Security Council Resolution 1244 of June 10, 1999. But it’s not all that simple. That resolution concerned the territorial integrity of the Federal Republic of Yugoslavia, which ceased to exist a few years later. Serbia is not mentioned once in the resolution. The document does not require a UN Security Council resolution to approve further changes to Kosovo’s status, and supporters of the region’s independence took advantage of this.
I consider what happened in Serbia to have been a huge and primarily human tragedy. It happened, though, not on February 17, when Kosovo declared independence; it has been going on for quite some time already. In recent months, Russia’s representatives at meetings in Washington and Brussels made terrible threats, but then on the sidelines said, “Don’t worry, Moscow won’t do anything in response.” Serbian politicians constantly took a ambiguous position, sent unclear signals, and tried to sit not just on two, but on three or four chairs at once. As a result, it was they who lost Kosovo. The task became to make sure that this tragedy didn’t become a larger tragedy, that it didn’t lead to another war in the Balkans. Between a very bad option and a very, very bad one, the former was chosen.
Kosovo won’t return to Serbia, just as Abkhazia won’t return to Georgia – no matter what they are promised, no matter how high a level of autonomy is offered, no matter what position the UN Security Council takes. At some point in the negotiations, it became clear that Kosovo and Serbia would never come to an agreement. The EU and the US decided to be realistic and take responsibility for the situation. They decided that maintaining the status quo in Kosovo would be more dangerous than disrupting it.
Serbia wants to become an EU member and to join NATO as soon as possible. Kosovo and the other Balkan states want the same things. Adherence to European norms is a powerful motivation and sets the standard of behavior for the region’s politicians. Each country wants to enjoy a quality of life such that no one would want to secede from it. Serbia was unable to achieve this. It’s essential to create a country which attracts everyone to join it and not one which makes entire regions want to break away. President Putin had good reason to speak about the importance of making Russia an attractive country. This is a more effective method of combating separatism than appeals to other states whose own problems will always be more important to them.
Kosovo independence is one of very few foreign policy issues on which the Bush Administration has followed President Clinton's line. The genuine feeling in Washington is that stability in the Balkans depends in large part on whether Serbia can become a truly democratic country which fully shares Western values. But this can't possibly happen as long as Serbia has the colossal problem of Kosovo weighing it down.
In Washington, they say that the independence of Kosovo will help Serbia to become a successful state.
Serbia's reputation in American political circles has been ruined over the course of the past decade. Many American politicians see Serbia as the main threat to European security. This is why American policy on this issue was openly anti-Serbian from the beginning and continues to be so. Unfortunately, neither Russia nor Serbia itself will be able to quickly change this situation. This situation, though, makes Washington's stance even more intransigent and increases its impatience and willingness to take drastic measures without listening to its opponents. And not only on the issue of Kosovo.
I would take issue with a couple of the points here – first, the idea of self-determination under international law is not generally considered to be the unfettered right implied by Zlobin's description. The self-determination he suggests is so broad that it sounds almost like Lenin's idea of self-determination inevitably involving a separate state. In fact, I believe the current state of international law (for whatever it's worth) is that the general right of self-determination refers first of all to the right of nations to enjoy their national language, traditions, etc., within the confines of the state they happen to find themselves in through representation in that state's government; and secession, also known as "external self-determination," is considered a remedy of last resort.
Moreover, in the case of Abkhazia, there is a fairly compelling argument to be made that the conflict was not the sort of national self-determination which the international community should seek to promote or reward by recognizing. The Abkhaz, who constituted 17% of the population of the region in 1989, managed to drive out well over 200,000 ethnic Georgians – nearly a majority of the region’s population – during the fighting in 1992-93, and even then did not become a plurality in the region.
But perhaps I’m simply falling victim to the “old thinking” that Zlobin would like to move beyond. In all seriousness, I too have found the existing international law framework to be insufficient to deal with or even at times to describe some of the aspects of the unresolved conflicts in the post-Soviet space. In any event, international law is at least to some extent based on state practice, so perhaps another Oliver Wendell Holmes quote (in addition to the one used in the title) might be applied to the situation surrounding Kosovo: “It is the merit [sic] of the common law that it decides the case first and determines the principle afterwards.”
It's interesting that as Zlobin proposes an innovative, cooperative role for Russia in formulating new international law norms, at least one other commentator is observing that Russia's use of international law is stuck in the past.
Also interesting are some - though by no means all - of the articles that made up the avalanche of commentary which followed Kosovo's declaration of independence. Here is a random selection of ones I enjoyed reading:
Christopher Borgen, the lead author of the definitive legal analysis of Transdniester's attempt at secession from Moldova,
runs through the legal analysis of Kosovo independence and concludes that it is "a quintessential 'tough case,' demonstrating the ways in which political interests of states affect how the international law is given effect." Borgen rightly points out the importance of the facts of a potentially precedential case (and how narrowly they are interpreted) in drawing broader legal lessons, but he concludes that
Despite the declarations and best intentions, just saying something is "unique" may not be enough. States and commentators may need to ask why one claim of independence is purportedly unique and then consider its downstream political and legal effects. In the end, we need to keep in mind that sometimes the most effective law in politically-charged situations may be the law of unintended consequences.
Moldovan analyst Dumitru Minzarari believes there
is now a "Kosovo precedent," and that it represents "
a triumph of the law of the fist over international law." He also points readers of his blog to
Charles Kupchan's article on the Foreign Affairs website and
discusses that article at length.
Slate's Christopher Hitchens, with his usual acerbic tone,
lays the blame for the ultimate outcome at the feet of Serbia:
Of course, one ought to acknowledge that this is a calamity for the Serbs and indeed an injustice in the sense of an insult to their pride and history. But the injustice was self-inflicted. I remember seeing, in Kosovo, the "settlements" for Serbs that the Milosevic regime was building in a vain effort to alter the demography. And who were the bedraggled "settlers"? The luckless Serbian civilians who had been living in the Krajina area of Croatia until their fearless leader's war of conquest for "Greater Serbia" had brought general disaster and seen them finally evicted from farms and homesteads they had garrisoned for centuries. Promised new land on colonized Albanian territory, they had been uprooted and evicted once again. Where are they now, I wonder? Perhaps stupidly stoning the McDonald's in Belgrade, and vowing fervently never to forget the lost glories of 1389, and maybe occasionally wondering where they made their original mistake.
Oh, and in lieu of tracking down a pretty picture for this post, I'll simply point out that you can
track which countries have recognized Kosovo's independence here.
