Invoking the Kosovo Precedent: Can We Dismiss the Russian Argument?

By Dr. Themis Tzimas

On February 24, 2022, Russian President Vladimir Putin declared the launch of a “special military operation” (SMO), stating that Russia was acting in accordance with Article 51 of the UN Charter, on the basis of its recognition of the independence of the so-called Donetsk People’s Republic and  Luhansk People’s Republic. This was the culmination of eight years of conflict in eastern Ukraine, which followed the events of Maidan in 2014 and the de facto secession of Ukrainian provinces which are inhabited mainly by Russian- speaking populations. The legal basis of the Russian argument is the declaration of independence from the two so-called “People’s Republics” and Russia’s own recognition of the secessions. Since the invasion began, Russia has been accused of propping up the conflict in Eastern Ukraine and for manipulating the referenda, illegal under Ukrainian law, in the Donbas region. In this framework, it is of particular significance that Russia has invoked the Kosovo precedent as part of its legal argument.

WHAT IS THE KOSOVO PRECEDENT?

Kosovo, an area of the former Federal Republic of Yugoslavia (FRY) with heated historical claims, enjoyed autonomy throughout the Cold War, though not as a constituent nation of any of the six republics. The situation remained stable while Josip Broz Tito remained the leader of Yugoslavia, but following Tito’s death, Kosovo’s autonomy was revoked. The Albanian majority created underground institutions and conducted an illegal referendum, resulting in a declaration of independence on October 19, 1991. In 1996, the Kosovo Liberation Army (KLA) launched an armed uprising against FRY.

Several UN Security Council Resolutions (UNSCR) were adopted under Chapter VII of the UN Charter which called on the forces of the FRY to refrain from violent acts and reaffirmed the sovereignty of the FRY over Kosovo. In 1998, although an initial international agreement was reached, the resumption of hostilities and the failure of negotiations in Rambouillet precipitated a legally questionable military intervention by NATO. The only two exceptions to the prohibition of the use of force under the UN Charter are when military action against another state is either be explicitly authorized by the UNSC under Chapter VII or taken in self-defense. At the time of NATO’s intervention, neither of these thresholds were met.

After several weeks of bombing and Serbia's eventual capitulation, the Security Council adopted UNSCR 1244 which reaffirmed the unity of FRY, but removed all practical and effective control of FRY’s government over Kosovo. The resolution was supposed recognize Kosovo's autonomy and therefore freeze the conflict, in order to resolve the issue at some point in the future, in compliance with the FRY’s territorial integrity. In fact, this strengthened the demand for Kosovo’s full independence, which was eventually declared in 2008. Ever since, tensions rekindle at regular intervals.

THE ICJ JUDGMENT AND ITS SIGNIFICANCE

On October 8, 2008, the UN General Assembly (UNGA), passed Resolution 63/3, which called on the ICJ to resolve the issue of whether Kosovo’s unilateral declaration of independence was compatible with international law. The judgment of the ICJ distinguished between the proclamation of independence and the existence of a right of secession. Through its ruling, the ICJ thus declined to take a position on whether international law gave Kosovo the right to unilaterally declare its independence or, a fortiori, on whether international law gives the right to entities within a state to unilaterally secede from it. According to the ICJ, it is entirely possible for a unilateral declaration of independence not to violate international law without necessarily constituting an exercise of a right. The ICJ took advantage of the manner of the question, reaching a problematic judgment in terms of what it said and what it did not.

The essence of the ICJ’s reasoning is reflected in James Crawford's argument that roughly anyone can say anything without raising a legal issue, and therefore without being able to be judged as illegal. This argument is, factually and legally, impressively naïve. A declaration of independence from a collective entity, and even further in the context of an ongoing internal war—internationalized or not—should not be equated with individual proclamations and grandiose statements.

On the contrary, and especially within an already disturbed internal legitimacy, a declaration of independence and secession from the political body of a state constitutes a rupture with internal legality and is directly placed before the international community. The possibility that a specific declaration of independence might not have the slightest chance of success does not negate the significance of the act in both political and legal terms.

Further, it is doubtful whether the ICJ in its legal judgment actually advocates for the distinction between declaration of secession and right to secession to the end, as it referred to the cases of occupied Cyprus, Southern Rhodesia, and the Bosnian Serb Republic. The ICJ posits that according to the Security Council, each of these cases constitute illegal secession since they resulted from the violation of jus cogens rules and from the illegal use of force.

If, however, the declaration of independence is a legally indifferent act, unrelated to the rest of the process of independence, then why should the international community be concerned about whether the declaration has resulted from the illegal use of force or the violation of a jus cogens rule? If, on the other hand, there are concerns about the legal basis for the declaration of independence, then the declaration is inherently a legal action taking place. Moreover, the fact that the ICJ presents the aforementioned three cases as exceptions, and not as the rule, suggests that the ICJ does not, in principle, stand negatively against declarations of independence, and therefore implicitly recognizes them as legal—and possibly legitimate—acts.

If the fundamental act of declaring independence, in a long road towards actual independence, is not illegal or simply legally indifferent, it makes little sense to consider secondary acts, such as the recognition of this new entity by a third state, illegal. Of course, one will argue that through recognition by a third state, that state has interference in the internal affairs of the state undergoing secession. However, since the declaration of secession is not illegal under international law, the unity of state sovereignty is potentially no more. The ICJ thus leaves state sovereignty exposed, to float.

IMPLICATIONS OF PUTIN INVOKING THE KOSOVO PRECEDENT

One criticism of Russia's “SMO” is that it is based on an illegal act of recognizing the Donetsk and Luhansk Peoples’ Republics, and therefore normalizes violation of a jus cogens rule, which runs contrary to international law via the International Law Commission’s Draft Articles on the Responsibility of States for Internationally Wrongful Acts. If, however, there is no such primary illegal act, then, there is, in principle, no illegal conduct emerging from the recognition of the republics. What can be examined is only the necessity and the proportionality of Russian actions.

Practically, on the basis of this "flatulence" of state sovereignty, each of the newly-independent republics and Russia may decide for themselves on the basis of their own ad-hoc interpretation of international law about the legitimacy of any remedial secession. Therefore, they can also act accordingly, unless the bodies of the international community and, in particular, the UNSC, have intervened in the meantime.

The invocation of the Kosovo precedent thus puts the two People’s Republics in a position of “defender” against Ukraine. Based on this reasoning, Russia can claim that it is realizing the right of collective self-defense, and not attacking Ukraine. But the implications of the invocation are even broader. What exactly is preventing entities that do not violate international law by declaring their independence from declaring their union with another state? And if most states in the international community do not violate international law by recognizing Kosovo's independence why is it a violation of international law for Russia to recognize the declared will of the two former people's republics to join it? In both cases, the primary element is the breach of the sovereignty of the parent state. Moreover, as in the case of Kosovo even before the declaration of independence, international treaties, even by invoking the autonomy of these regions, breached the sovereignty of the parent states.

Practically, the Kosovo precedent, and more specifically, the way that the ICJ approached it, has paved the way for breaches to previously undisputed motions of state sovereignty in favor of secessionist movements under certain conditions. While Russia is currently in a hostile environment regarding the legitimacy of the “SMO” by the majority of states internationally, by invoking the Kosovo precedent, it can argue that a sequence of events evolved through which it can claim legitimacy: the declaration of independence first, the recognition of the independence by Russia, then and last but not least, the declaration of the will of these entities to unite with Russia and the subsequent acceptance of their request by the Russian government. Within this series of events under the “Kosovo approach” of the ICJ, the SMO becomes not an illegal use of force, but collective self-defense in furtherance of self-determination.

An obvious, and strong, counterargument is that the international community has overwhelmingly rejected Russia’s argument. While this position of the international community constitutes a significant factor that must be taken into account when interpreting international law, it cannot be the only one. Not only because states quite often follow their own interests, but most importantly, because UNGA resolutions are neither binding, nor a source of international law, while on the other hand, ICJ decisions and opinions possess a higher status in the hierarchy of international law.  

CONCLUSION

When Russia invoked the Kosovo precedent in relation to its SMO, the West quickly rejected any association between the two: Kosovo has been declared an “exception,” yet the reality is much different. The international community needs to sincerely consider the differences in principle between Kosovo and the two “People’s Republics” in Ukraine. Historical grievances, accusations about human rights violations by state’s central authorities, internal conflict, and de facto secession exist in both cases. The difference is that the Russian invasion followed its own recognition of the declared independence of the two “republics,” whereas NATO did not wait that long in the case of Kosovo.

By dismissing the Kosovo precedent, we fail to see reality: the case of Kosovo, the actions of NATO, the recognition by tens of states of its independence, and above all, the relevant judgment of the ICJ, have each paved the way for the ad hoc legitimization of remedial secession at the expense of state sovereignty. Russia makes use of this precedent, and it is a convenient precedent for Russia despite widespread rejection of its arguments. But, as the case of Kosovo suggests, if the facts are established on the ground, their legitimization by a significant part of the international community, especially once war fatigue steps in, is not that unlikely.

Themis Tzimas holds a PhD in Public International Law and Political Science. He is an adjunct lecturer in the Department of Political Science, in Democritus University of Thrace. He teaches Public Policies, International and European Law, Artificial Intelligence and Political Science and International Relations. He is the author of the books “Artificial Intelligence and International Law”, “Greece and Cyprus in the Post- American World” (Greek publication). He works as a lawyer focusing on cases of refugees and migration since 2005. He is socially and politically active since he was a law student in the Aristotle University of Thessaloniki. He has been member of several delegations from Greece, in the Middle East.

Flag of Ukraine and Russia painted on two clenched fists facing each other is by Jernej Furman and is licensed under CC BY 2.0.