A Reply to Jernej Letnar

Jernej Letnar, a member of the very interesting blog "Global Law and Politics", criticized my interpretation of the political and legal implications of the future status of Kosovo (here). This letter is my reply to his comment.

Dear Jernej Letnar,

Thank you very much for your contribution. Let me take on your valuable comments one by one.

First you state that there is no need for Serbia’s consent to Kosovo’s independence, arguing that, “simply there is no need for such a consent, since everywhere where basic human rights have been violated and where international crimes have been committed, people may freely exercise right to self to determination. Kosovo falls in that category no matter how hard Serbian/Yugoslav governments try to question it.” This is moral not factual analysis of current state of international law.

Let me be clear I do not question that crimes have been committed in Kosovo and neither do the current Serbian democratic governments, the proof that the Serbian governments do not deny that crimes were committed is that it extradited Milosevic to the Hague (Djindjic government) and that it forced other indicted regime officials to surrender to the ICTY (Kostunica’s government). This is, however, just a part of the answer other part is your ‘legal’ claim that violations of human rights justify free exercise of self-determination. You say that traditional international law corresponds to my position but that, ‘new’ international law, I presume you want to say such law exists, supports your position. You give the example of Indonesia by saying, “East Timor is only one of recent examples of new progressive approach to right to self-determination.” However, you forget that Indonesia's national assembly ratified the results of East Timor's independence vote, clearing the way for the territory's separation from the country. This is all I want to say, Serbia will have to have a final say on this, whether pressure will exerted on the Serbian government to do so this is another issue, yet, in terms of the legal argument, I did not miss the point but you did.

East Timor is not the only example, what about Kurdistan in Iraq? US forces in Iraq have no intention to grant Kurdistan independence despite the human rights violations committed by Sadam’s regime. All I want to say, as far as the political argument is concerned, is that the current democratic government of Serbia did not commit human right violations against the Albanian population in Kosovo and there is no reason to try to exclude them from the process of establishing the future status of Kosovo. Serbian government needs to be given the chance to build a multicultural state or union of states together with the Kosovo Albanians.

Your argument of human rights violations does not stand on another account, let us accept for the sake of the argument that human rights violations justify exercising of self-determination in the way you suggest, does this mean that you intend that Serbs in Kosovo could exercise the same right toward the territory of Kosovo as a whole, meaning that the North of Kosovo and other enclaves south of the river Ibar could secede? What is going on there since 1999, especially having in mind the organized violence of March 2004 would clearly grant them the right (according to you rationale) to head on towards deciding on independence, regardless of the wishes of the Kosovo Albanians. And where would this lead us…back to 1990s, Croatian and Bosnian wars, same old stories, this is something I am firmly against. I simply think it is not prudent to open this Pandora’s box, Serbian democratic government should be given the chance to build a multi-ethnic polity, including or excluding Kosovo, however, its own say in the whole process, as well as the say of the Serbian population in the Province, should not be neglected over dubious moral precedent you defend.

As far as the proposal of the Slovenian President Janez Drnovsek several proposals sounded very interesting and constructive, I also share his opinion that in order to facilitate the final institutional settlement in Kosovo one needs to ensure the institutional protection for the Serbian minority there. On the other hand, it was rather expectable that the Serbian government gives the Slovene counterpart an official demarche because of Mr. Drnovsek’s insistence on the independence of Kosovo. You forgot to mention that the Slovene Government and Prime Minister Jansa, distanced themselves from the political positions of the President regarding Kosovo. The same happened in the Czech Republic Prime Minister Paroubek gave relative support to the idea of the division of Kosovo. Later it was clarified that this is his own personal opinion. This is all legitimate and I would say needed. We need to discuss about Kosovo and contributions like that of Mr. Drnovsek are more than welcome, although some times it is desirable that they are more diplomatic.

To conclude, I want to use this opportunity to ask you to question, using the force of the abovementioned arguments, your though stance on the right of self-determination. Romantic attitude towards the right of self-determination is something that belongs to 19th century, then this ideology was a part of the overall movement of the liberation of peoples and classes, today it is rather the opposite self-determination is a way to hide all other political problems. This is especially the case in Kosovo. When advocating the right of self-determination in the way you do remember that "The Road to Hell is Paved With Good Intentions."

I enjoy your blog and I invite you to continue this fruitful exchange of ideas.

Yours Truly and a Toast to France Prešeren,

Srdjan