Freedom for Kosovo Is Not a Dangerous Precedent

New York Times

June 23, 1999
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NEW YORK— Did NATO’s intervention in Kosovo rewrite the rules on self-determination? Has the go-ahead been given to every ethnic group that wants to carve out its own mini-state? The answer is “no.”

It is important to understand the old rule. Traditional international law recognizes the right to self-determination. But it understands that when taken to an extreme, self-determination conflicts with national sovereignty, a country’s right to keep itself intact.

And so, the right to self-determination — as set out in treaties like the UN Charter, the Universal Declaration of Human Rights, and the International Covenant on Civil and Political Rights — was carefully restricted and counterbalanced, limited to forms of expression that did not threaten other minorities or national boundaries.

The one time the question was litigated, the Permanent Court of International Justice (predecessor to today’s World Court) decided that self-determination could trump national sovereignty, and justify the breakup of a state, only during periods of extreme chaos, “times of transition” when the central government finds itself unable to do its job and regular rules no longer apply.Kosovo has been an extraordinary episode in modern history, but not because some new, destabilizing principle was established. Rather, Kosovo is the rare case where the strict conditions set by international law for secession were met. Even more remarkably, the world community noticed and came to the aid of the separatists.

Yugoslavia was indeed facing a “time of transition.” The story is by now well known — the departure, starting in 1990, of the former provinces of Slovenia, Croatia, Bosnia and Macedonia, and the brutal wars that ensured. By the time Kosovo erupted into full-fledged rebellion, Yugoslavia had effectively ceased to exit. Serbia’s one remaining fellow republic, Montenegro, was trying to sneak out the back door and into Europe.

Before NATO stepped in, Kosovo had for a decade faced the worst kind of oppression. Once an autonomous federal unit similar to the other republics, it was stripped of its autonomy in 1989. Ethnic Albanians were denied basic political and cultural rights, reduced to noncitizens. Passive resistance was attempted and got nowhere. By the time the Kosovo Liberation Army cranked up its guerrilla war last year, every other form of dissent had been tried.

In light of all this, the fact that NATO eventually came to the Kosovars’ aid hardly establishes a broad new precedent for radical self-determination. If other separatists hope to qualify for similar NATO or United Nations support, they will have to meet several strict conditions — an unlikely prospect.

Not only will they need to establish that the larger nation to which they have belonged has disintegrated. They will also have to show that they made a good faith effort at peacefully renegotiating their status before picking up arms. And even then, only extreme oppression like that committed by the Serbs will justify full secession.

Looking at the rest of the world, what conflicts might qualify? Certainly not Quebec, which may feel aggrieved but enjoys tremendous autonomy in Canada. The same goes for Spanish Basques and French Corsicans.

Nor would Tibet qualify; although China’s legal claim to the province is weak, its de facto control is strong. Nor would Turkish Kurdistan; the Kurds have been oppressed, but conditions are slowly improving, and Turkey remains firmly in control.

Chechnya would be closer to the line. It is practically independent already, and the Russian nation is staggering.

Only Iraqi Kurdistan seems to fully meet the conditions for separation and Kosovo-style foreign intervention.

If that conclusion seems conservative, it should not be surprising. Every legal system is prejudiced in favor of the status quo. Nor is that necessarily a bad thing. If self-determination were unlimited, no multicultural nation would be proof against it.

International law strikes a good balance between encouraging stability and allowing secession in extreme conditions. NATO’s intervention in Kosovo has not changed that.

So Western powers can stop prevaricating about Kosovo’s status. A fully independent Kosovo will not threaten the prevailing legal order.