Kosovo and Self-Determination: My tuppencworth...

I wanted to add my thoughts to the enjoyable and provocative debate taking place, between these pages and those of the Global Law and Politics blog, on the vexed issue of self-determination for Kosovo. What follows was formulated and posted as a comment to a couple of replies to Srdjan's pieces below on that blog, in particular to Matej Avbelj's useful contribution.

The international human right of peoples to self-determination is, in legal terms, beyond doubt. It exists for all peoples fulfilling the requirements helpfully laid out here. I think that one area of agreement between all protagonists here is that the Kosovars constitute a "people" within the framework of international law.

Of crucial importance here, however, is not whether the Kosovars have the right to self-determination (they do), but what that will mean when operationalised in practice. It is quite simply an error to equate self-determination with secession and independence. Moreover, it is the progressive advances of the last twenty or thirty years that make this so; when the concept was first introduced, in the context of decolonisation, independence was envisaged. The decision, however, to extend the right to all peoples, not just colonised peoples, meant that this would, of course, have to change.

This is perhaps the central point that I want to make: far from being outdated, as has been suggested, it is Srdjan's understanding of the concept of self-determination that best reflects the developments in the law in this field in recent years. He perhaps overstates the point in insisting that the Serbs have a legal veto; it seems to me that the famous Canadian Supreme Court case on this issue retains a high degree of persuasive authority. That case basically found that the right to self-determination did not require secession and independence, but if a democratic majority of a people requested such action, then the politicians of the larger state were obliged to take it into consideration. In the context of normal democratic politics, this was all the law could say; the rest must be left to the play of the political.

There remains the question of whether the gross human rights abuses perpetrated by the Serbs against the Kosovars creates, as seems to be the suggestion here, an automatic right of external self-determination. The answer, I think, is that it does, for as long as the crisis situation holds. The rationale behind this is simply that, if gross human rights abuses are being perpetrated on a people, then their right to self-determination is clearly not being respected - as no people would choose that fate.

Srdjan makes an important point, however, when he notes the advances made by Serbia in terms of transition to democracy. It is simply no longer the case, as it was under Milosevic, that the only way that the Kosovars can have meaningful self-determination is through secession; a regional autonomy scheme could discharge that obligation.

All this to conclude: as things stood in Kosovo before NATO's intervention, there was perhaps a case to be made that the Kosovar's had the right to secession from Serbia. Now, in law they have no such right; only to have their wish, if it be so, taken into consideration by the Serb government (and to actual meaningful autonomy short of independence). It is simply no longer the case that only independence can guarantee them meaningful self-determination; and the law stops there. And make no mistake; it is the recent developments in the law of self-determination, which make it quite plain that secession is only to be mandated in the most exceptional circumstances, that necessitate this conclusion.

What happens as a result of political, rather than legal, reality is, of course, an entirely different matter...