Monday, February 06, 2006

Con/federal Kosovo and conditional independence

Recently, Vladimir Putin, the President of Russia, commenting on the future status of Kosovo, underlined that it is a very important issue for Russia, “not only in terms of maintaining the international law principles, but being guided by practical interests of the post-Soviet territory” that the solution worked out for Kosovo by the Contact Group be of “universal nature”. Meaning, explained Putin, that if Kosovo goes towards independence the same should occur in the breakaway Georgian Republics of Ossetia and Abkhasia and Azeri Nagorno-Karabach.

This relatively unexpected statement turned back like a boomerang to the US Administration who wishes to reassure the Russian President by stating, “Kosovo is a unique phenomenon.” Meaning that Russia and the rest of the world (Spain, UK, France, Italy etc.) should rest assured that granting Kosovo independence without the consent of Serbia will not apply elsewhere. One should not take Putin’s words too seriously. Russia will at the end of the day accept the US-EU proposal with regard to Kosovo future status. Russia’s interests in the Balkans are, commensurate to its strength, thus purely economical. Putin withdrew all Russian troops from Kosovo 3 years ago and has no intention to get seriously involved in the region. Politically, Kosovo is outside of Russia’s sphere of influence. Russia uses the Kosovo issue instrumentally to pursue its own agenda in the Caucasus but also as a bargaining chip to further its economic interest in the Balkans and elsewhere.

This blog entry will not pay further attention to the political analysis of the background of Russia’s motivations in this regard, rather it will ponder on Putin’s wish to find a universal solution to the problem of secessionist provinces and movements. Should nations have the right to self-determination and is this right to trump the sovereignty claim of the state? What procedure should they respect and follow in order to reach this desired objective?

Let us stick to the Kosovo example. There are two ways to approach to this issue, internal and external legal analysis. Internal legal analysis concentrates on the legal precedent of Socialist Federative Republic of Yugoslavia, one which allowed individual Republics to secede from the Federation. Following this constitutional right, as well as the conclusions of the Badinter Commission (see here), ex-Yugoslav Republics of Slovenia, Croatia, Macedonia and Bosnia and Herzegovina seceded from the Yugoslav space. Montenegro voted to remain in the federation with Serbia at the beginning of the 1990s and now again reconsider their decision. No one at the Serbian side contests this right of the Montenegrins as such, but criticizes the referendum procedures and the political benefit of secession.

In the case of Kosovo, the situation is different. Kosovo (and Vojvodina) were autonomous provinces of Serbia in Tito’s Yugoslavia so they did not have the right to secede from the Federation. Some try to argue that the fact that these autonomous provinces had a vote in the executive body of the Socialist Federation could lead to the interpretation granting them a right to secede seems na├»ve, or better, not very cunning sophism. Internal legal precedent does not go in favour of Kosovo.

What about International law? Recently I came across a really interesting puzzle asking – there is only one country in the world that is able to momentarily give Kosovo independence – which one is that – the answer is (not the US if you thought that as a first guess) but – Serbia. Kosovo is a Province of Serbia currently under International administration, however, according to the Resolution 1244 Kosovo (see) is still under the formal sovereignty of Serbia. The resolution reaffirms the “the commitment of all member states to sovereignty and territorial integrity of the Federal Republic of Yugoslavia…” as well as demands, “substantial autonomy and meaningful self-administration for Kosovo”. Serbian Government continues to insist that the process of determining the future status for its Southern Province must remain under the framework of this resolution. It is difficult to imagine that the UN Security Council would unanimously oppose to the decision to which Serbia would directly and strongly oppose.

The conclusion is that there is no consistent legal principle, concerning both international and internal legal norms, that straightforwardly suggests how we proceed with Kosovo. Neither did Croatia and Slovenia gain independence exclusively thanks to the SFRY Constitution or the conclusions of the Commission of ex-Mitterand's minister of Justice. Arguing that violation of human rights in Kosovo committed by the Milosevic regime, creates the situation in which authentic solutions are possible, is not acceptable. Today Serbia is ruled by a democratic regime perfectly respecting international human rights standards, Milosevic and his policies are on trial in ICTY, again thanks to the Serbian democratic government that extradited him there. Rather the solution for Kosovo and any other Province demanding secession from a greater political space is to be found through patient balancing between the forces of the legal argument of both sides, as well as balancing between the forces in play always aiming to reach stability and equilibrium, as the El Pais journalist Josep Ramoneda, recently mentioned concerning the case of Estatut of Catalonia, “one thing is certain, L’Estatut does not solve anything definitely, but it should lead to the period of stability in the relationship between Catalonia and Spain." The same goes for Kosovo, the negotiation process leading to the future status of Kosovo will not set the status of the Province indefinitely, rather it would lead towards an arrangement acceptable for both sides at this particular moment. Legal principles in matters of sovereignty (area at the border between law and the state of nature-or international law) help maintain these "periods of stability" but cannot lead to the final decision like the national court can.

As I wrote in a reply to ex-foreign minister of Serbia and Montenegro Goran Svilanovic, solution for Kosovo is probably going to be conditional independence (no seat in the UN). Such independence should be conditional upon setting up of institutional protection of the Serbian minority living in the Province. This is to be achieved through decentralization (meaning in this case creation of entities, con/federalization of Kosovo) and an establishment of a guaranteed number of seats of the Serbian minority in the Kosovo Parliament.

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