“The Right to Self-Determination Versus the Principle of Territorial
Integrity Under International Law”
Thesis
By
Tamar Antidze
Submitted in Partial Fulfillment
Of the Requirements for the Degree of
Bachelor of Arts
In
International and Economic Relations
State University of New York
Empire State College
2016
Reader: Max Hilaire
Acknowledgement
In the first place, I would like to thank my mentor, Professor Max Hilaire.
Without his guidance and support, I would not be able to write this paper. Also, I am
grateful to my friends and family who were always around, encouraging and motivating
me throughout the process of working on my thesis.
Table of Contents
Abstract ........................................................................................................................................................ 5
Introduction ................................................................................................................................................ 6
1.1. Definition of the Right to Self-determination and Secession .............................................. 8
1.2. Sources of the Right to Self-determination and who is Entitled to this Right ............. 11
1.3. UN Interpretation and Implementation of the Right to Self-determination ................. 14
2.0. Case Study - Kosovo Crisis ........................................................................................................ 18
2.1. Background Information about the Conflict .......................................................................... 18
2.2. NATO Intervention in Kosovo .................................................................................................. 21
2.3. Security Council Resolution 1244 ............................................................................................ 24
2.4. The Unilateral Declaration of Independence and the ICJ Advisory Opinion .............. 25
2.5. Statehood and Recognition in International Law ................................................................. 28
2.6. Unique Case or a Legal Precedent............................................................................................ 31
3.0. Case Studies: Abkhazia & South Ossetia ............................................................................... 34
3.1. Background information about the conflict in Abkhazia ................................................... 34
3.2. Background information about the conflict in South Ossetia........................................... 36
3.3. The Relation Between the Georgian-Russian War in 2008 and the Conflict of
Kosovo ...................................................................................................................................................... 38
3.4. Response of the International Community in the cases of Abkhazia and South
Ossetia in 2008 ....................................................................................................................................... 41
4.0. Comparative Analysis of Kosovo, Abkhazia and South Ossetia..................................... 44
4.1. Are the Cases of Abkhazia and South Ossetia Unique?..................................................... 44
4.2. Assessment of the Case of Kosovo as a Threat for the Breakaway Republics in
Georgia ..................................................................................................................................................... 48
4.2. The Breakaway Republics’ Right to Secede ......................................................................... 50
Conclusion ............................................................................................................................................... 53
Works Cited............................................................................................................................................. 55
Bibliography............................................................................................................................................ 60
Abstract
The purpose of this research is to explore the right to self-determination. What are the
sources of this right under international law and is it a threat to the territorial integrity of
the state, if misinterpreted? The right to self-determination was originally provided for
people under colonial rule, not for the people who live in the existing states. It originated
with the Peace of Westphalia and was later incorporated in President Wilson’s Fourteen
Points, which formed the foundation for the League of Nations Covenant. The United
Nations practice recognizes the right only for people under colonial rule or alien
domination. However, nowadays some breakaway republics are claiming independence
based on this right. The aim of this paper is to answer two main research questions: (1) Is
the right to self-determination a universal right? (2) Should the right to self-determination
take precedence over the territorial integrity and sovereignty of states? In order to answer
these questions, the case studies of Kosovo, Abkhazia, and South Ossetia will be
discussed. The Kosovo case study is unique in setting a practice of state-creation based
on this right. Lots of countries have recognized Kosovo’s independence. If this case has
implications for international law, does it mean that Kosovo may set a dangerous
precedent for breakaway republics in other countries? Another example of a country that
encounters similar problems of secessionist regions is Georgia.
Introduction
Alexis de Tocqueville was a prominent political thinker from France. While visiting the
United States in the 1830s he was writing his impressions in his notebook, one important
thing that he wrote about the US was:
"…A completely democratic government is something so dangerous, that, even
in America, they have felt it necessary to take a great many precautions against the
mistakes and passions of democracy” (Kohn 529).
The essence of this quote is that we may consider democracy to be the fairest and the best
model of governance today, which perfectly balances between freedom and equality and
is compatible with the principles of international law. However, nothing is perfect in this
world and democracy is not an exception to this reality. Woodrow Wilson, an American
President, popularized the right to self-determination after the First World War. It was
regarded as an indispensable right within a democratic society, although at that time it
was unimaginable that the perception and application of this right could cause such a
wide range of ambiguities and difficulties in the future. It was unthinkable that the right
to self-determination might have reemerged as a threat to the territorial integrity of states.
This is why I decided to write about this topic. It is very interesting to see what the trends
were throughout history, how the right to self-determination has been used and when it is
justified for a region to secede based on the right to self-determination.
6
In order to explore these different questions, it is necessary to analyze various case
studies. The main case study that will be discussed in this thesis will be the case of
Kosovo. This case was chosen because it is an example from the modern world when a
region, based on the right to self-determination, managed to successfully secede from its’
mother state and was able to obtain almost a universal recognition. This case will be
analyzed in-depth and will be used as a threshold to continue with a comparative analysis
of similar cases of Abkhazia and South Ossetia. The purpose of the comparison is to
evaluate whether other breakaway republics are also entitled to the right of selfdetermination and secession. It is also important to state why the case of Kosovo has been
distinguished from other cases. In order to answer my main research question, which is: if
the right to self-determination should take precedence over the principle of territorial
integrity, I would like to evaluate the events and the developments that took place in
these breakaway republics.
7
1.1. Definition of the Right to Self-determination and Secession
The concept of the right to self-determination can be found long before the creation of the
UN. This concept firstly appeared in the Peace of Westphalia, and later at the end of the
18th century during the American and French revolutions (Kohn 526). Clashes throughout
history have occurred for many different reasons; some of them may include
encountering different ideologies, religions, or civilizations, although nationalism and the
national aspirations have always been present during these conflicts. The concept of
national self-determination has been supported and recognized as a human right by
Western civilization. Even during WWI, the Allied Powers were openly expressing that
one of the most significant values that they were fighting for was the right to selfdetermination. Lloyd George and Woodrow Wilson were among the leaders who
emphasized the importance of this right for future peace and stability. Woodrow Wilson
even included the right to self-determination in his Fourteen Points, which laid the
foundation for the creation of the League of Nations. At first glance, the principle of
national self-determination is not such a well-defined human right, in comparison with
the right to life, which is recognized as universal for every human being. Different
perceptions and the actions necessary for its application make this right more problematic
as well as controversial at times. Lenin also claimed that he supported the right to selfdetermination, although his views and implications were fundamentally different from
the Western perceptions (529). This does not mean that the complexity undermines the
value or validity of this right. If it is correctly interpreted and defined, the right to selfdetermination is, of course, very useful and necessary within a democratic society. The
8
aim of this thesis is also to get rid of the ambiguity and vagueness around this term. It is
necessary to make a clear distinction and define particularly who is entitled to this right
and when can it be applied.
The central issue is to distinguish between the right to self-determination, which is
provided by international law and the term “Secession”, which is frequently mentioned
together with the right to self-determination. Secession “is the unilateral withdrawal from
a state of one of its constituent parts with its territory and population” and “is not duly
received in international law” (Walter, Ungern-Sternberg and Abushov 3). International
law does not grant the right to secession as such. Although, secessionist groups which
claim the right to self-determination usually consider secession as one of the last
components of this right. Their aspirations are justified by historical connections or by
human rights violations that are present in that region. International law, of course,
generally favors international stability and the protection of territorial integrity of every
country, but after the conflict in Kosovo and its declaration of independence, secession
might be viewed as an acceptable step. The circumstances justifying the secession of
Kosovo are that: it was a last resort and was preceded by severe human rights violations.
Whether this is a human right or is a threat to national and territorial integrity is
questionable because many conflicts have escalated because of the secessionist
movements. These movements most frequently adopt separatist or irredentist claims.
According to the Oxford dictionary, irredentism occurs when a person advocates the
restoration and recovery of a country of any territory, which was formerly belonging to it.
9
Understanding and trying to peacefully solve such problems is very important in modern
day conflicts. There are many irredentist claims, which aim to justify and legitimize the
secessions of certain groups both internationally and domestically. For example, both
Palestinians and Israelis argue that they should have sovereignty over each other’s
territories (Thurer and Burri 6). Such conflicts are very complicated and it is difficult to
argue who has the legal right over a territory. Historical claims cannot be used as a basis
for deciding who the “owner” of a territory is because one region may have had different
rulers throughout history.
Separatism creates similar problems in different parts of the world today, but it differs
from the claims of irredentists. According to the Cambridge dictionary, separatism is “the
belief held by people of a particular race, religion, or another group within a country that
they should be independent and have their own government or in some way live apart
from other people”. For example, in Spain, there are two such movements: Basque and
Catalan separatism (Summers 431). These two regions consider themselves culturally
alienated from the rest of Spain. It is their belief that these Spanish provinces would
function more efficient economically if they had their own independent governments.
One thing is clear; there is no government that approves separatist movements within its
territory this is due to the fact that inclinations towards self-determination weaken the
power of the central government. These clashes of interest cause intrastate conflicts,
which in some cases can escalate into larger-scale conflicts and cause great bloodshed,
often caused by external intervention.
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1.2. Sources of the Right to Self-determination and who is Entitled to
this Right
First, it is important to look at the origins and sources of the right to self-determination
under international law. Most importantly, the UN Charter provides the right to “selfdetermination” in Article 1. It is plainly stated that the goal of the UN is “to develop
friendly relations among nations based on respect for the principle of equal rights and
self-determination of peoples” (Wolff and Rodt 804). Afterwards, in Article 2, the UN
Charter states that: “All Members shall refrain in their international relations from the
threat or use of force against the territorial integrity or political independence of any
state”. These two articles may seem controversial, especially when there is no specific
reference to the group of people for whom the right to self-determination is applicable.
In addition to the UN Charter, one of the most important documents on human rights that
the UN provides for people worldwide is the International Covenant on Civil and
Political Rights (Coulter 2). This covenant allows the citizens of the signatory states to
enjoy their political and civil freedoms. Like the UN Charter, it mentions the right to selfdetermination, as well. Article 1 states that: “All peoples have the right of selfdetermination. By virtue of that right they freely determine their political status and freely
pursue their economic, social and cultural development”. This article is not carefully
worded because granting this right to “all peoples” is very dangerous and may
successfully be misinterpreted by the secessionist groups in justifying their actions.
11
In 1960, the General Assembly adopted Resolution 1514, which was called a
“Declaration on the Granting of Independence to Colonial Countries and Peoples”
(Coulter 5). This declaration also provided the right to self-determination, but this time, it
was talking about the “dependent people”. The purpose of this resolution was to
emphasize “the end of colonialism in all of its manifestations” and grant basic human
rights and freedoms to the people who were formerly under colonial rule.
Lastly, the clearest and the most acceptable definition of the right to self-determination
appeared to be found in the UN General Assembly Resolution of 1970, entitled the
Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations (Coulter 7).
Similar to the above-mentioned documents, it provides the right to self-determination and
talks about it more specifically. At first, the document lists two reasons of why this right
is needed: (1) to promote friendly relations among the states and (2) to bring a rapid end
to colonialism. Moreover, it states that people living in non-self-governing territories,
which is the same as colonies should exercise this right. Most importantly, the resolution
concludes that: “Nothing in the foregoing paragraphs shall be construed as authorizing or
encouraging any action which would dismember or impair, totally or in part, the
territorial integrity or political unity of sovereign and independent States…” This last
point summarizes the debate over the territorial integrity versus the right to selfdetermination and clearly states that the right to self-determination should not take
precedence over the principle of territorial integrity.
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Another important debate concerns the universality of this right. Anyone can draw a
circle around himself/herself and claim independence, although the legitimacy of his/her
independence will be questionable (Sterio 293). International law undoubtedly grants the
right to self-determination for colonial people and it also recognizes the significance of
the territorial integrity for every state. However, international law does not provide
sufficient information about the right to self-determination of non-colonial people and is
inadequate in addressing this complex issue (294). It means that the right to selfdetermination is not universal and is only provided for specific groups of people. When
other groups attempt to act based on this right, it is arguable whether their actions are
legitimate or not. The UN General Assembly proposed the establishment of an ad hoc
commission in 1955, which would have consisted of five experts, working on the concept
of “peoples” and clarifying who were these “people” -entitled to the self-determination
right (Kohn 536).
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1.3. UN Interpretation and Implementation of the Right to Selfdetermination
In the context of decolonization, it is easy to apply the right to self-determination,
although outside the context of decolonization it is difficult to precisely attribute this
right to the “people” because we do not know who these “people” are, which have the
right to self-determination.
Throughout its history, the UN General Assembly has extended the immediate
application of the right to self-determination even further than just applying it only in the
context of decolonization. As early as, in 1953, the General Assembly recognized Puerto
Rico’s new status of autonomy together with the United States, based on the right to selfdetermination (Kohn 537). The Puerto Ricans were satisfied, having their newly written
Constitution and an independent legislature. The UN interpretation of the right to selfdetermination was not limited to directly granting independence to a region, but the most
important status that the countries wanted to obtain was the status of self-government.
Similarly, one year later, the UNGA recognized Greenland as a self-governing territory,
although it was part of Denmark, not an independent state (538).
Later in 1993, the UN recognized the “right to self-determination of Palestinians and of
the inhabitants of South Africa” (Thurer and Burri 8). The International Court of Justice
has also followed the course of the UNGA in Israeli Wall Advisory Opinion, and has
stated that: “…It is also for all States, while respecting the United Nations Charter and
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International law, to see to it that any impediment, resulting from the construction of the
wall, to the exercise by the Palestinian people of its right to self-determination is brought
to an end” (6).
While analyzing the UN interpretation of the right to self-determination, it is essential to
mention the secession of the well-known cases of Eritrea and South Sudan, which are
similar in having referenda on both occasions, although the UN played uneven roles in
these two conflicts (Sterio 294).
According to the “Eritrea 2015 country review” in 1952, the UN adopted a resolution that
placed Eritrea under Ethiopian authority, as one federation (7). At that time, the people of
Eritrea were demanding independence, although the UN had ignored their pleas. The
people in Eritrea were promised to have autonomy to a certain extent, democratic rule
and human rights protection. However, after the resolution was ratified, these rights were
breached. The discontent of the Eritreans’ reached its peak when Haile Selassie in 1962
abolished the Eritrean parliament and invaded the country (7). Eritreans continued their
fight for self-determination and the war continued for decades. In 1991, finally with the
help of the international community, Ethiopia recognized the right of Eritreans to hold a
referendum. It took place in 1993 and the United Nations observed the entire process, in
order to preserve fairness and transparency. Unsurprisingly, the overwhelming majority
voted in favor of independence and on the 27th of April 1993 Eritrea was declared an
independent state and the new government was elected (9). According to Serapio, in the
early stages of the conflict the UN was not willing to support the right to self-
15
determination of the Eritreans, which they legally had. Eritreans right to secede was said
to be legal due to a number of facts and circumstances: “(1) violation of the constitutional
rights of the Eritrean people at the time of incorporation; (2) the concept of selfdetermination; and (3) international concern for human suffering” (Serapio 6). All the
listed rights of Eritreans were breached at first, but in the end, they gained the
independence, the UN support, and UN membership. Currently, it functions the same as
any other sovereign state.
Another example of secession geographically close to Eritrea was South Sudan. When
there is a secessionist conflict, there are always two or more groups of people who
identify themselves differently according to some features. In the case of Sudan,
historically there has been a division between the North and the South. In figures, the
population of the Southern Sudan counts for over 21% of the whole population of Sudan
(Salman 345). The Northern part predominantly consists of Arab Muslims, while the
Southern part is predominantly populated by Christians and other local religions (346).
The difference is noticeable, because the people are not only ethnically, but also
religiously, culturally and linguistically different. According to Salman, before the
Comprehensive Peace Agreement was signed in Sudan, the United Nations Security
Council met in Nairobi and adopted the resolution 1574, which strongly supported the
self-determination of South Sudan (393). The secession of South Sudan happened in
2011, following more than thirty years of civil war and internal violence. It was
“orchestrated through peace negotiations and a public referendum” (Sterio 296). Despite
the long-lasting violence in Sudan, with the help of the international community, the
16
issue was decided in a civilized manner with a referendum. The biggest majority of the
South Sudanese people voted in favor of secession and South Sudan became an
independent state on the 9th of July 2011 (296). As a new nation, South Sudan is
struggling with the lack of professional human resources necessary to establish functional
governmental institutions. Due to the long-lasting civil war people have devoted all their
skills to the conflict (Radon 159). The corruption is rampant, the government is not
transparent and accountable to the people, there is an economic hardship and the
consequence of these inconsistencies is the ongoing conflict, which lasts even today
between the two factions (161). However, compared to other cases, it is regarded as a
successful case of secession, simply because South Sudan is a member of the United
Nations and is recognized by almost every country in the world. It is a recognized state
and its government is involved in international relations through membership to a number
of international organizations.
Kosovo has not reached this level because it is not a member state of the UN. However,
similar to the case of Palestine, the Badinter Commission anticipated that the principle of
self-determinations should be applied in the rearrangement of Yugoslavia (8). As
aforementioned the central case of this thesis will be Kosovo because of its unique and
distinctive character. The method used will be a comparative analysis of the cases of
Kosovo, Abkhazia, and South Ossetia. The UN interpretation of the right to selfdetermination and its role in these conflicts will be discussed in more detail when the
case studies are individually analyzed.
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2.0. Case Study - Kosovo Crisis
2.1. Background Information about the Conflict
The conflict in Kosovo is one of the most well-known cases. For judging between legally
and morally right or wrong, it is important to have an understanding of the roots of the
conflict. According to Heiko Krueger (2009), historically the territory of Kosovo was
claimed by different ethnicities and the situation for explanation is quite complex (129).
The Christian Serbs argued that the territory of Kosovo belongs to them, because in 1389
in the Battle of Kosovo, they fought for it with the Ottoman Empire. However, on the
other side, there is the Albanian majority, also referred as Kosovar Albanians, who live in
the territory of Kosovo and are Muslims. Moreover, it was part of the Ottoman Empire
for almost five centuries; from 1449-1912. Afterward, Kosovo was divided between
Serbia and Montenegro. With the end of the WWII, Kosovo obtained the status of an
autonomous region from the Yugoslav government (129).
Since the achievement of the autonomous status, Albanians have been striving for more
independence and maintenance of this status. The relationships between them and the
Serbian minority were strained and many Serbians began to leave the territory of Kosovo.
This trend upset the Serbian government and the tension reached its peak in 1989, when
the President of Serbia, Slobodan Milosevic suspended the autonomous status of Kosovo
18
(129). This conflict is deemed to be a unique case. The distinctiveness of this case is in its
precedent-setting character - a state was created based on the right to self-determination.
Moreover, this conflict has contributed to the evolution of the concept of Responsibility
to Protect (Economides 823). The concept of R2P in international law has developed
gradually, and it focuses not on the legal rights of the states in case of the humanitarian
intervention, but rather on the moral responsibility of the international community to
intervene and protect human rights when they are seriously violated (Moravcova 66). The
cases throughout history such as Rwanda and Kosovo have had a great impact on the
development of this concept because these were the practices of massive human rights
violations, where the necessity of the humanitarian intervention was debated (67).
In the very beginning, the Kosovo crisis was an interstate conflict between the Serbian
government and the Kosovar Albanians. President Slobodan Milosevic, who was recently
elected at that time, headed the Serbian government and the Kosovo Liberation Army led
the Kosovar Albanians. The Serbian President terminated the autonomous status of
Kosovo and put it under the influence of Belgrade, which was the reason for the
escalation of the conflict. The Serbian government and the Yugoslav army were violent.
The indiscriminate murders and massive human rights violations of Kosovar Albanians
were taking place, refugees were flowing into the neighboring countries and innocent
civilians were displaced from their homes (Simma 6).
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The international community felt the responsibility to intervene due to the anarchic and
dangerous situation in Kosovo. Initially, NATO did not use force but tried to resolve the
conflict through the use of diplomacy. A conference was held at Rambouillet, which
turned out to be very divisive. According to Richard Becker, the US/NATO proposal was
portrayed as a peaceful intention of negotiation, which in fact, was an ultimatum. It
meant that Milosevic could either sign the agreement or face a NATO bombardment of
the country. In order to have an objective outlook, it is essential to look at what was
written in the ultimatum. In appendix B, the terms of the ultimatum were that Kosovo
would have become a province of Serbia, which would be given autonomy over a number
of issues: it would have its’ own government, president, a prime minister, supreme court
and security. Kosovo could have rejected the federal laws of Serbia and would have its
own legislative power. Of course, Milosevic was also required to withdraw all Serbian
troops and forces from Kosovo and the police of Kosovo would be responsible for the
internal security, which would be trained by NATO forces (Becker 1). However, one of
the terms was that NATO would leave an army, known as KFOR, in the region, which
would be as big as 28,000 men and would ensure peace and security in the region (1). To
assess the terms of the accord from the outside, it is clear that Milosevic would not agree
to such terms. The main flaw of this ultimatum was that there was no space for
negotiations. It was either these terms or the use of force. In fact, it was not a proper
diplomatic offer at all. Although, Milosevic could not expect such results and he thought
that the NATO threat was not real. He did not agree to the Rambouillet proposal and the
status of Kosovo remained unchanged. In 1999 NATO led the “Operation Allied Force”
which was a bombing campaign against the Yugoslav territory (Krueger 129).
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2.2. NATO Intervention in Kosovo
The judgment call of the legitimacy of the NATO intervention is difficult because it was
a reaction to the Serbian government’s human rights violations and NATO felt that they
had the responsibility to defend these people from the violent massacres that were taking
place. The advocates of the NATO intervention say that there was an absolute necessity
to intervene because otherwise Milosevic could not have been stopped because he was
not cooperating on a peaceful basis. According to Antonio Cassese, there were six
conditions that had to be followed for a case of humanitarian intervention to be consistent
with the international law (Cvijic 68). The conditions for legal unilateral intervention in a
sovereign state are following: (1) humanitarian crisis must amount to “the crimes against
humanity”; (2) the self-governing state has to be unable to prevent the crisis, because of
the state of anarchy; (3) UNSC has to be paralyzed; (4) all peaceful means have to be
exhausted; (5) the intervention has to be carried out by a group of states, not by a single
power and (6) the purpose of the intervention should only be to stop human rights
violations. Cassese argues that the NATO intervention in the case of Kosovo would fulfill
these criteria, and thus cannot be seen as illegal.
However, on the other hand, there are lots of questions regarding the legitimacy of
NATO’s actions. As a consequence of the air strikes, around five hundred innocent
noncombatants were killed, much more were wounded and a huge amount of refugees
fled to the neighboring countries. What is more important and should be emphasized is
that NATO dishonored the UN Charter and launched the mission without the
21
authorization of the UN Security Council (Simma 5). The Washington treaty lays the
basis for NATO’s foundation and one of its aims was to create “a defensive alliance and a
regional grouping within the framework of the UN Charter” (1). Most importantly, article
2(4) of the UN Charter was breached, which forbids the use of force, unless there is a
need for self-defense. Serbia was not a member of NATO, and it did not attack a NATO
member state. In addition, Bruno Simma argues that the intervention would have been
justified in a situation of genocide; although he states that the “situation in Kosovo, as of
early March 1999 when NATO action began, did not amount to genocide under the 1948
Convention on the Prevention and Punishment of the Crime of Genocide” (Simma 2).
Nevertheless, the International Criminal Tribunal for former Yugoslavia declared that
NATO forces were not criminally liable for the atrocities, because “there was no
deliberate targeting of civilians or unlawful military targets” (Massa 611). It was tough
for NATO to explain its intervention without the approval of the UNSC, but the main line
of argument was that the intervention was “lawful on grounds of overwhelming
humanitarian necessity” (Shinoda 520). Some argue that the Serbian government
breached the Geneva Conventions, by the acts of human rights violations in Kosovo and
it did not comply with the UNSC resolutions: 1160, 1199, 1203 on the situation in
Kosovo (Simma 7). There was definitely the need for intervention, but the question is
whether the intervention should have been a military one, because as it was mentioned,
the “peaceful talks” at Rambouillet were not very peaceful and flexible in reality. Despite
the fact that Bruno Simma criticizes the unauthorized intervention of NATO in Serbia, he
leaves a space for maneuver, because it is not a yes or no question. He recognizes that
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when the UNSC is incapacitated and is not able to take action, due to the Russian and
Chinese veto powers, the international community has the moral obligation to act.
Especially, when there is a humanitarian catastrophe like it was in Rwanda or Srebrenica
(5).
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2.3. Security Council Resolution 1244
Following the end of the war in 1999, the UNSC adopted Resolution 1244 under
Chapter VII of the UN Charter. The status of Kosovo was still ambiguous, which meant
that it remained part of Serbia. Resolution 1244 put Kosovo under the UN Interim
Administration Mission in Kosovo (Rrustemi, Baumgartel 117).
Many international organizations were involved in the implementation of the Resolution
1244. The UNMIK was divided into 4 pillars and had a special representative, who had
an executive and supervisory function in all matters (De Wet 84). The first pillar
consisted of rebuilding the judicial and police systems, improving public services, such as
health and education. UNMIK was itself in charge of the first pillar (84). The
Organization for Security and Cooperation in Europe was responsible for the second
pillar which was endorsing the democratic and human rights principles in Kosovo. The
United Nations High Commissioner for Refugees provided humanitarian aid for the
displaced people under the third pillar. Lastly, the EU undertook the fourth pillar. It was
responsible for the economic reconstruction and reorganization (84).
According to Krueger (2009), the security and defense of the area were provided by
international peacekeepers under NATO command. In 2006, the UN supported the talks
to determine the status of Kosovo, the two parties were not able to reach a consensus.
There was a stalemate in the United Nations Security Council, which was the body that
could legally change the status of Kosovo with another resolution. In 2008, the
government of Kosovo unilaterally declared independence (Krueger 130).
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2.4. The Unilateral Declaration of Independence and the ICJ Advisory
Opinion
As Heiko Krueger (2010) writes in his article, in 2008 Serbia was challenged by the
unilateral declaration of independence of Kosovo, because it was immediately recognized
by a number of countries (293). The recognition by the international community is a very
important question in this debate, although whether the breakaway territory is recognized
by all states or a few states is irrelevant as to whether Kosovo is a state or not. The
immediate response of the Serbian government was smart and it should be addressed
first. The Serbian authorities referred to the General Assembly, which voted to request
the Advisory Opinion from the International Court of Justice to determine the legality of
Kosovo’s unilateral declaration of independence and to assess if it was compatible with
international law (293). The ICJ was facing an enormously complex issue. It had to
decide the legality of the case, around which the entire international community was
divided. Therefore, the ICJ advisory opinion would have a huge impact on other
breakaway republics. At the same time, saying that Kosovo was not an independent state
would go against the western ideas because the US, the UK, Germany, and France had
already recognized the independence of Kosovo (294). It would have justified the
intervention of NATO forces and the lost lives would be excused as collateral damage.
However, in this difficult situation, the judges found a safe way of solving the problem
and they “adopted a narrow interpretation of the request” (294). The ICJ just examined
the question of whether Kosovo’s declaration of independence was against international
law, and the easy answer was no, it was not. Judge Simma also issued a declaration
concerning this misunderstanding that “in accordance with international law” means,
25
“whether the declaration violates any prohibitive rule” (Howse and Teitel 844). Due to
the fact that in international law there is no such a rule, which states that, the declaration
of independence is illegal or against international law. The ICJ has also stated that the
declaration of independence was not against the SC Resolution 1244 because the
resolution did not include such a provision that directly prohibited this act (Summers
425).
In fact, the ICJ Advisory Opinion made the issue more confusing. Nowadays, different
separatist groups, politicians, media and different countries interpret the ICJ decision
according to their needs and how it fits their goals or national interests. For example, the
president of Kosovo Fatmir Sejdiu stated that the ICJ decision finally removes all doubts
and asserted that all the countries should recognize the independence of Kosovo (Howse
and Teitel 841). Similarly, the opponents like Serb citizens were furious and contended
that “the Court had endorsed a right to secession” (841). The problem was that the
question was not formulated correctly because the real issue that should have been
addressed was: whether the Unilateral Declaration of Independence by Kosovo violated
the sovereignty of Serbia? However, this question was not asked by the General assembly
and therefore, of course, the ICJ could not answer this question. The individual countries
do not have the right to refer to the ICJ, so the question was formulated through the UN
General Assembly and the wording and language were selected accordingly. It was clear
to the international community that the ICJ avoided answering the crucial question about
Kosovo on purpose, because of the division of countries’ attitudes around this question; it
was too risky to stand only on one side. Although the ICJ advisory opinion did not clarify
26
the status of Kosovo, it has played a decisive role in the media and in framing the public
opinion about Kosovo. Everyone does not understand that the case was not broadly
framed and if one looks at the advisory opinion and if the details are not investigated
properly, it seems obvious that the ICJ has recognized the independence of Kosovo and
decided that its’ unilateral declaration of independence was perfectly legal (Krueger 294).
The court gave a narrow interpretation because this is what was asked of it. There may be
political reasons, of course, but the court rendered the right decision.
27
2.5. Statehood and Recognition in International Law
Some regions like Kosovo struggle a lot to obtain the status of an independent, sovereign
state. It is important to ask ourselves why they need the status of a “state” and what does
statehood mean in terms of legal obligations or privileges. The actors within international
law are sovereign states, not people or individuals. In order to become a subject of and be
protected by the international law, it is necessary to qualify as a sovereign state (Xu and
Wilson 34). The most consistent definition in international law about what does statehood
mean is set by the Montevideo Convention on the Rights and Duties of States, which was
signed in 1933. Article 1 of the convention states that: “the state as a person of
international law should possess the following qualifications: a) a permanent population;
b) a defined territory; c) government; and d) capacity to enter into relations with the other
states” (Ioannidis 975).
There is no fixed number of a permanent population that is needed in order to become a
state. However, in an independent state, there should definitely be a community, which
will feel somehow unified. They should identify themselves as being similar by their
ethnicity, race, religion, language, or some other feature (976). These people have to
claim a defined territory, which has permanent legal borders. Also, it is essential to have
a working and effective government, because if the organizational structures are not
established and the government does not have the decision-making power, it is
impossible for the state to function properly (977). As the Montevideo Convention
specifies, it is also significant for a state to have the ability to enter into negotiations and
agreements with other states. In today’s globalized and interdependent world, it is really
28
hard to function as an independent state without having relations with the outside world.
For example, Hong Kong has its autonomy in almost every matter, it has the territory,
population, and government, even participates in international relations independently
and is an individual member of the WTO, although when it comes to defense and foreign
policy, Hong Kong loses its autonomy and is under Chinese authority (Xu and Wilson
36). This is why it cannot qualify completely as a sovereign state.
In addition to the Montevideo Convention criteria, the factor of recognition by the
international community plays a big role in the formation of statehood. Recognition is
central because if other countries do not recognize a region the diplomatic relations
between them is not possible. It also plays a crucial role for the right to participate in
international organizations. There are two theories of recognition: constitutive and
declaratory (Summers 417). The declaratory theory claims that the recognition does not
play a role in the state creation while the constitutive theory argues that recognition from
the international community is one of the most important constitutive parts for the
establishment of a new state (417).
After Kosovo’s unilateral declaration of independence in 2008, it was recognized by
more than sixty countries, among which there are the US and the major European
countries (Fabry 666). However, Kosovo has failed to be recognized by a number of
countries - unsurprisingly by Russia and Serbia, which were warning the international
community that the recognition of Kosovo could set a risky precedent for international
law. In addition, opposition was coming from China, India, South Africa, Argentina,
29
Brazil, Spain and many other countries, mainly from the ones that were afraid of
endorsing separatists regions within their territories (666). However, the western powers
were trying to prove that the Kosovo secession was sui generis, an exceptional case from
the ordinary practice, which was also mentioned in the Ahtisaari Report (666). Kosovo is
gradually moving closer towards the developed world. It is a member of the International
Monetary Fund and the World Bank (Aliu-Zhuja 319). However, the problem of
becoming a member of the UN remains unsettled, because of the lack of recognition from
Russia and China. These challenges for Kosovo are still in place and it is not expected
that Kosovo will become a member of the UN any time soon.
30
2.6. Unique Case or a Legal Precedent
Following the Unilateral Declaration of Independence of Kosovo in 2008, it is in the
interest of every country to support the idea that the case of Kosovo was not a legal
precedent, but rather it was a unique case, because everyone perceives the need of
respecting the international law in order to maintain international peace and security and
avoid a state of anarchy. The Declaration of Independence itself states that this is “a
special case arising from Yugoslavia’s non-consensual breakup and is not a precedent for
any other solutions” (Summers 407).
The western countries that have recognized Kosovo try to argue that it was an
exceptional case. The words of the US Secretary of State Condoleezza Rice show clearly
this pathos:
“The unusual combination of factors found in the Kosovo situation – including
the context of Yugoslavia’s breakup, the history of ethnic cleansing and crimes
against civilians in Kosovo, and the extended period of UN administration – are
not found elsewhere and therefore make Kosovo a special case. Kosovo cannot be
seen as a precedent for any other situation in the world today” (Fabry 666).
The British Ambassador in his statement to the Security Council used the same line of
arguments. He stated that Kosovo was a unique case based on the violent break-up of
Yugoslavia and the UN administration there and argued that this case should not have
wider applicability in other cases (Summers 407). The Martti Ahtisaari report also
31
directly identified the case of Kosovo as unique: “Kosovo is a unique case that demands a
unique solution. It does not create a precedent” (407).
One of the most authoritative figures in the case of the Kosovo crisis, Bruno Simma,
examines the implications of the Kosovo war on international law and states that a “thin
red line” divides unauthorized intervention in Kosovo from illegality (Simma 6). He sees
the conflict in Kosovo as an exceptional case and the main analysis that he gives is that
such exceptional cases should not dictate and change international law. Despite the fact
of how difficult the case is, or how severe the humanitarian catastrophe seems, this
should not violate, alter or somehow influence the principles of the present international
order.
Except Simma, many scholars and politicians criticize the passive UNSC role, when there
were massive human rights violations in Serbia. However, it is a common perception that
the NATO intervention should not be viewed as a legal precedent, but rather as an
exceptional case because there was no other solution. An Italian Prime Minister, during
the war, has also specified: “the humanitarian crisis justifies the intervention; but it is an
exception, not a precedent on which to construct world order” (Cvijic 67). His last words
are especially important because it implies that such cases have to be avoided in the
future. If exceptional cases become frequent, they will not be exceptions anymore and
this can create a threat to credibility and accountability of international laws.
32
To sum up, the situation in Kosovo is very complex, because of the positions of both
sides that “seem irreconcilable” (Cvijic 59). The Kosovar Albanians are not ready to
agree on something less than a de jure independence from Serbia while the Serbian
government does not want to recognize the independence of Kosovo but is offering
“substantial autonomy” (59) to the region. According to Cvijic, the only way out of this
deadlocked situation is again the intervention of the international community, particularly
the US and the EU, and the imposition of independence on Serbia through UNSC
Resolution (59). It is clear that sooner or later the final status of Kosovo has to be
determined, no matter how it is established, by a referendum or a resolution. In the
Rambouillet Accords - Chapter 8, Art 1(3), it is written that the “final settlement of
Kosovo” should happen “on the basis of the will of the people” (Cvijic 73). Radical
changes in the world order, such as the end of the Cold War and the dissolution of the
Soviet Union, altered the climate of international relations. It is not surprising that
international law also adapts to the new realities of the new world order. However, one
case that is arguably unique should not have implications for international law and should
not encourage other breakaway republics to demand secession from their mother states.
33
3.0. Case Studies: Abkhazia & South Ossetia
3.1. Background information about the conflict in Abkhazia
Geographically, Abkhazia constitutes 12% of the Georgian territory and is sharing the
northern border with Russia; the main difference between these two ethnicities is the
Abkhazian language, which is linguistically different from the Georgian language
(Nielsen 175). However, after the independence of Georgia from the Soviet Socialist
Republic in 1991, the country became a member of the UN in 1992 with the same
composition, as it had within the Soviet Republic, including its autonomous regions of
Abkhazia and South Ossetia (Summers 397). According to the last census in Abkhazia,
which was conducted by Soviet authorities, ethnic Georgians constituted the biggest
majority in Abkhazia 46%, Abkhaz people represented 18%, Armenians 15%, Russians
14% and the rest were other minorities (398).
If we briefly overview a more distant history of the republic of Abkhazia, it may help us
to better understand the roots of the conflict. Abkhazia became part of the Georgian
feudal state in the 10th century and was part of it for seven centuries before it separated as
an independent principality for two centuries (Raič 379). The Tsarist Russia conquered
Abkhazia and it remained part of the Russian territory together with Georgia. After the
creation of the Soviet Socialist Republic in 1921, both Georgia and Abkhazia obtained
the status of Socialist Republics within the Soviet Union, until Stalin reduced the status
34
of Abkhazia to autonomy (379). Under Stalin’s rule, in the 1930s the “Georgianisation”
of Abkhazia was taking place, tens of thousands of Georgians were resettled to Abkhazia,
the language in schools and of the broadcast was only Georgian (Summers 400). In 1990,
Abkhazian Supreme Council declared the sovereignty of Abkhazia and in 1992, the war
between Georgia and Abkhazia has started (400). Russia played a significant role in
assisting the Abkhazian side with military and financial support, as a result Georgia lost
the war and in 1993, Abkhazia established a de facto state (Nielsen 176). The
international community tried to settle the conflict. In 1994, under UN auspices, peace
talks were conducted in which the UN drafted a declaration, including a provision to
recognize Georgia’s territorial integrity (Raič 382). Abkhazian authorities rejected this
declaration and the next rounds of talks in New York and Geneva failed as well (382).
Formally, a cease-fire agreement was reached in 1994, although until 2008 when the
Russian-Georgian war happened. The conflict remains frozen today. As a result of the
Abkhazian war, 10,000 civilians were killed and 200,000 people were internally
displaced from Abkhazia (401).
35
3.2. Background information about the conflict in South Ossetia
The conflicts of Abkhazia and South Ossetia are similar, but not identical with Georgia.
South Ossetia is located in the Southern Caucasus and constitutes 5% of the Georgian
territory (Nielsen 174). While de jure, South Ossetia is part of the Georgian state; North
Ossetia is part of the Russian Federation (174). Similar to Abkhazians, South Ossetians
have their own language, which belongs to the family of Iranian languages and is far
more distinct from Georgian than Abkhazian (174). Unlike Abkhazia, South Ossetia did
not comprise the majority of ethnic Georgians. The biggest majorities were South
Ossetians 66%, Georgians counted for 29% of the population, Russians for 2% and
Armenians for 1% (Raič 398).
If we look at the historical background of South Ossetia, it was also the victim of Tsarist
Russian annexations in the early 19th century (Nielsen 175). Before the Bolsheviks
defeated the Menshevik Georgian Democratic Republic, South Ossetia was part of
Georgia, although afterwards it had obtained the status of an autonomous region within
the Georgian Socialist Republic until the collapse of the USSR (175). An organization
called Ossetian Popular Front began to demand the unification of Northern and Southern
Ossetia from Russia. Their argument was that the Georgian identity and culture was
imposed upon them (175). In 1990, the President of Georgia, Zviad Gamsakhurdia saw a
threat of the secessionist movements becoming more active and he abolished the
autonomous status of South Ossetia, as Milosevic abolished the autonomy of Kosovo. In
response, South Ossetia held a referendum in 1991 and declared independence (Summers
36
398). The conflict escalated and military confrontations began. South Ossetia, similar to
Abkhazia, was assisted by Russia. Human rights abuses, which are an indispensable
element of war, were committed on both sides (Nielsen 175). The result of this war was a
loss for Georgia again and thousands of refugees flowing from the region, although in the
case of South Ossetia Georgia preserved the de facto control of one-third of South
Ossetian territory until the war of 2008 (Summers 399).
37
3.3. The Relation Between the Georgian-Russian War in 2008 and the
Conflict of Kosovo
A short description of the facts that have happened in the summer of 2008 in Georgia is
essential to understanding the connections between this conflict and Kosovo’s Unilateral
Declaration of Independence. The conflict between Georgia and South Ossetia escalated
gradually. It is debated whether President Saakashvili started the offensive for restoring
Georgian territorial integrity or whether the South Ossetian de facto government
provoked the conflict (Summers 402). However, the Russian Federation intervened
immediately and a big scale war has begun. The justification for President Medvedev to
be involved in this war was self-defense under Article 51 of the UN Charter and the
defense of the Russia peacekeepers in the region (402). On the 12th of August, French
President Sarkozy played the role of mediator, visited the Georgian capital and proposed
a peace initiative, which was formally accepted by both sides. However, as civil
organizations have reported Russian troops still remain on the territory of Georgia (403).
Prior to the Georgian-Russian war, in February of the same year, Kosovo declared
independence and the reaction of Russia was very negative. Russian officials argued that
this precedent could have had an impact on other breakaway republics (Nielsen 178). As
a response to the western states conduct that recognized the independence of Kosovo, the
Russian Federation recognized the independence of Abkhazia and South Ossetia on the
26th of August 2008. President Medvedev argued that the recognition was necessary in
38
order to defend the “freely expressed will of the Abkhaz and Ossetian peoples”, based on
their right to self-determination (Siddi 1).
There are many similarities between these conflicts and how the big powers have
manipulated the situations. The Russian federation has been distributing Russian
passports to everyone in both Abkhazia and South Ossetia in the 1990s and since then
Russian authorities had the excuse to repeat frequently that Russia would use force to
defend the rights of its’ citizens (Nielsen 178). By granting Russian citizenship to Abkhaz
and South Ossetian people, they were also entitled to Russian pensions and social
benefits (Summers 421). In addition, the people in breakaway regions had the privilege of
visa-free movement between Russian and Abkhazian and South Ossetian borders, while
between Georgia and Russia a visa regime was imposed in 2000 (421). Similarly, during
the dissolution of Yugoslavia, Serbian authorities established a ministry, to collect
information about the possible threats to the national identity of Serbs, who lived outside
Serbia (Nielsen 178). These were the tools for the Serbian and Russian governments to
justify the use of force by claiming to defend their own citizens.
In addition, Putin, who was Russian Prime Minister at that time, claimed that the Russian
intervention was absolutely necessary for South Ossetia, because of the humanitarian
catastrophe that was happening there (Nielsen 179). The rhetoric by Russia was exactly
the same as that NATO authorities used to justify their humanitarian intervention. Putin
even claimed that genocide of South Ossetians was taking place and compared the
situation with the case of Srebrenica (179).
39
The Russian Federation was severely criticized by the international community for its
actions during the Georgian-Russian war in 2008. The targets of attack were not only
conflicted zones but also Georgian towns and villages (180). However, it is remarkable
how the Russian politicians managed to parallel all of their actions with the actions of
NATO and the western world during the Kosovo crisis. The Russian ambassador to
NATO stated that, if they did the same thing to Georgia that NATO had done to Serbia,
the capital of Georgia would have been annihilated (180). Of course, what the Russian
Federation has done was neither morally or legally correct. However, it was indisputable
that NATO forces bombed Belgrade during the air strikes while the Russian Federation
has not touched the capital city of Georgia - Tbilisi.
The events in 2008 happened like a chain reaction. First, Kosovo declared independence
followed by recognition from the US and major European countries. The Russian
Federation saw these events as a perfect moment to remind the western world that they
are not able to treat Serbia like this, without the consequences and intervened in Georgia.
As a result of the Georgian-Russian war, the hatred between these two ethnic groups
increased even more. The de facto territory of Georgia was reduced and the chances of
restoring the territorial integrity considerably decreased. However, Russia was able to
justify all of its’ actions based on the actions that were taken by NATO.
40
3.4. Response of the International Community in the cases of Abkhazia
and South Ossetia in 2008
After the Georgian-Russian war, the Russian federation recognized the independence of
Abkhazia and South Ossetia and began diplomatic relations with these two regions,
providing them with financial and military support (Summers 403). The countries that
followed Russian course of recognition were only Nicaragua, Venezuela and Nauru
(404). The rest of the world, including the major players in international relations, has not
recognized the independence of Abkhazia and South Ossetia.
After Russia’s recognition of Abkhazia and South Ossetia, it had to somehow justify why
these breakaway republics had the right to secede. President Medvedev continually
argued that these two regions had the right to external self-determination based on the
1975 CSCE Final Act, in which Principle VIII stated that “all peoples have the right to
determine in full freedom, when and as they wish, their internal and external political
status by virtue of the principle of equal rights and self-determination of peoples” (Siddi
4). If read in a narrow context it seems that the CSCE Final Act encourages the external
self-determination and Medvedev wanted to use this act as a reference for his actions,
although Principle I of this act is about the “respect for the rights inherent in sovereignty”
and devotes the first principle to the territorial integrity, which means that the Russian
Federation was trying to misinterpret the document (5).
41
The Russian President also delivered a speech explaining why Russia had to recognize
the independence of Abkhazia and South Ossetia. He referred to the case of Kosovo and
specified that, it is not correct to say to the peoples of Abkhazia and an Ossetia that what
was allowed for Kosovar Albanians is not allowed for them (Fabry 668). He also added
that international law could not treat the people from different parts of the world
differently (668).
According to Krueger (2009), the western powers have condemned Russia’s actions and
argued that the territorial integrity of Georgia has been violated (136). The international
organizations, including the EU, OSCE, NATO and G8 have also criticized Russia for its
actions (Fabry 668). The US President Bush emphasized that the UNSC Resolutions
concerning South Ossetia and Abkhazia were still in force and that these territories
belonged to the internationally recognized borders of Georgia (668).
It seems paradoxical how the positions of the two superpowers, Russia, and the USA
differ in the cases of Abkhazia, South Ossetia, and Kosovo. The US, France, and
Germany were the first countries to recognize the independence of Kosovo, which was
also a breakaway republic in Serbia and a threat to the Serbian territorial integrity. At the
same time, these countries have vigorously claimed that the recognition of South Ossetia
and Abkhazia was illegal by the Russian Federation (Krueger 136). Meanwhile, the
Russian Federation argued that the breakaway republics in Georgia had the right to
external self-determination, whereas, in the case of Kosovo, Russia supported the
territorial integrity of Serbia (137). The conduct of the international community was not
42
consistent in these two cases; there was no uniformity of actions. Both sides can be
criticized for having double standards and political interests in these conflicts (Ryngaert
and Sorbie 482). It seems like the continuation of the Cold War only in different places of
the world.
43
4.0. Comparative Analysis of Kosovo, Abkhazia and South Ossetia
4.1. Are the Cases of Abkhazia and South Ossetia Unique?
The international community claims that the case of Kosovo is sui generis, which means
that it is an exception and such a unique case does not exist (Siddi 7). The main
arguments for this uniqueness are: it was a humanitarian catastrophe, tireless rejection of
representative government was taking place, international actors were present in the
region and there was a multilateral involvement in the decision-making process on the
future status of Kosovo (7). However, these arguments are not that solid to argue that
only Kosovo possessed these characteristics. If we compare the events that were taking
place during the Abkhazian and South Ossetian conflicts, it can be argued that these cases
are unique as well.
Firstly, it has to be emphasized that in all three cases the international community has
failed to impartially decide the conflicts and some scholars have referred to it as “failed
diplomacy” (Summers 413). The reason for that was the political interest of the two
blocs. The western countries repeatedly claimed the distinctiveness and uniqueness of
Kosovo, while the same line of argument was adopted by Russia in the cases of Abkhazia
and South Ossetia.
There are very strong similarities in these three cases. All of the breakaway republics
demanded secession from their mother states. These conflicts started within the intra-state
44
boundaries, proceeded with international military involvement, and these regions
experienced nationalization during the 1990s, after Yugoslavia and the Soviet Union
collapsed (Summers 413). The tendencies of nationalization during President Milosevic
in Serbia and President Gamsakhurdia in Georgia were the main reasons for the
escalation of tensions because the minority groups were afraid that they would be
suppressed and their cultural values would diminish (413). The events in South Ossetia
and Kosovo developed similarly. The Serbian president abolished the autonomous
republic of Kosovo while the Georgian president deprived the status of an autonomous
region of South Ossetia (413). The same scenario can be identified in the case of
Abkhazia; it had substantial autonomy within Georgia, before the dissolution of the
multinational Soviet Union (Siddi 7). Everyone agrees that in all of these cases, the
minorities demanding secession were ethnically, linguistically and culturally different.
However, in the case of Georgia, there was not the same scale of suppression from the
central government of the national minorities, as it was in the case of Kosovo because the
Georgian people represented the majority in Abkhazia and had significant representation
in South Ossetia (Summers 413). After the conflicts intensified, refugees were flowing
from the disputed regions. There were mutual atrocities, ethnic hatred, and human rights
violations, which was an indispensable part of the war (Siddi 7). The secessionist
governments managed to take control over the territories, although nowadays none of the
regions have fully functioning governments that are capable of establishing the rule of
law and protecting the minority rights (Summers 413).
45
One of the strongest arguments supporting the idea of Kosovo’s right to selfdetermination is that the ethnic Albanians represented the biggest majority - 90% of the
inhabitants in Kosovo (Siddi 8). While after the war in Abkhazia the Abkhaz people still
represented only 43% of the population, without counting the ethnic Georgians who fled
the region in the 1990s (8). These people who left their homes have the right to take part
in the decision-making process of the future status of Abkhazia, as well as the Abkhaz
people living there. There has never been a referendum conducted in Abkhazia or South
Ossetia, where Georgians would also be included (Summers 416). The suggestions of
holding a referendum with peacefully returning the internally displaced people of
Georgia into Abkhazia and South Ossetia were always rejected by the secessionist
governments because they knew that the results might have been unfavorable to their
interests (416). Comparing ethnic constitutions shows that in this respect the cases of
Serbia and Georgia were quite distinct.
The second argument that is frequently brought by the proponents of Kosovo’s
independence is the presence and active involvement of the international community in
this region, which in turn has to prove the uniqueness of this case. It is said that the
involvement was exceptional because the international community was taking part in
status negotiations and it has “resulted in the advice of UN Special Envoy Martti
Ahtisaari in favor of supervised independence” (Siddi 8). However, the international
involvement was not absent in Georgia. On the contrary, there was a serious international
involvement in Abkhazia, since 1993 the UN Observer Mission in Georgia has been
established (8). Later, in 1994, a peacekeeping force of the Commonwealth of
46
Independent States also started to operate according to the Moscow Ceasefire Agreement
provisions (8). These activities of international actors show that there was an
international presence not only in Kosovo but also in Abkhazia and claiming the
particularity of the case of Kosovo due to international involvement is not exactly
accurate.
If we compare these three cases in terms of the recognition from the international
community, Kosovo is an unquestionable leader in terms of the number of countries that
recognize its independence. More than seventy countries worldwide, and more than
twenty countries out of twenty-eight EU countries recognize Kosovo, whereas only the
Russian Federation, together with three of its allies have recognized the independence of
Abkhazia and South Ossetia (Summers 416). Nevertheless, the high number of
recognition from other states does not mean that a region has reached statehood and can
be regarded as a sovereign state. The inability of Kosovo to become a member state of
the UN clearly shows this. There are many similarities between these three cases and of
course, various differences that were identified as well. However, claiming firmly that
Kosovo was a unique, unprecedented case and there is no analog to this case is hypocrisy.
There are many secessionist conflicts worldwide and some parallels with the case of
Kosovo can be found in the conflicts of Abkhazia and South Ossetia as well. The
strongest arguments in favor of the uniqueness of the conflict in Kosovo are that: the
biggest majority in the region were ethnic Albanians and there were large-scale human
rights violations.
47
4.2. Assessment of the Case of Kosovo as a Threat for the Breakaway
Republics in Georgia
The case of Kosovo could have posed a threat to other breakaway republics and
encouraged separatist movements worldwide. This statement is not unreasonable if we
overlook the events that took place in Georgia in 2008. However, if the case of Kosovo
had legal implications and has somehow altered international law is a different question.
According to Heiko Krueger (2009), in the wake of Kosovo’s Unilateral Declaration of
Independence, the community of states has been divided with regards to the legality of
this separation (133). Nevertheless, some countries have recognized Kosovo, but what
should be underlined is that none of them have referred to the UN Charter or to the
Covenants on the Human Rights to defend the validity of Kosovo’s separation (134). The
international treaties were not interpreted in favor of the right to self-determination and
secession but rather the uniqueness of the case was argued. It was not a coincidence that
the western powers did not apply the international treaties to the case of Kosovo. They
were aware that tailoring the international law to their own needs would have had farreaching consequences and adopted different rhetoric, claiming the distinctiveness of the
case (134).
The fact that international law remained unaltered after Kosovo does not change the
developments that happened in Georgia in 2008. Many scholars discuss the influential
effects of the case of Kosovo on the South Caucasus. It should be stressed that this case
48
has encouraged other breakaway republics to claim secession in exceptional
circumstances (Siddi 9). These distinctive and exceptional circumstances are further
defined and argued by the breakaway republics on their own, which is not fair and
consistent with the standards of international law. If we evaluate the situation from the
real perspective and assess what happened in Georgia, Kosovo undoubtedly is a threat for
other breakaway republics. However, in terms of the legal principles, the case of Kosovo
did not change anything. There was no reinterpretation of any international treaty, where
the right to self-determination was mentioned. Moreover, international law has not
introduced or adopted any new norm or principle, which supported the right to secession
in exceptional circumstances (9).
49
4.2. The Breakaway Republics’ Right to Secede
Secession is a very controversial concept in international law, although in some
circumstances the states have the legal right to secede. According to Heiko Krueger
(2009), such an act may happen in accordance with international law in the context of
decolonization, when the entire population of the parent state agrees on this, if national
law allows secession or when the territory demands independence and it was initially
unlawfully occupied (131). Neither Kosovar Albanian, nor Abkhazian or South Ossetian
secessionist assertions fall into these categories. These three conflicts happened clearly
outside the context of decolonization; Serbian and Georgian populations did not decide to
grant these breakaway regions independence. In addition, even if the national law of the
former Yugoslavia allowed for secession, it only concerned the republics within the
union, not the autonomous regions (131). The same line of argument can be applied to
the cases of Abkhazia and South Ossetia.
It is significant to distinguish between external and internal self-determination principles.
The external self-determination is a much broader concept, as it refers to the peoples’
right to freely choose under which sovereign they will live and to secede as a separate
state from the central government, regardless of the consent of this government (Siddi 1).
While internal self-determination is a much safer concept, as it refers to the peoples’ right
to choose their favorable form of government, autonomy for example, within the existing
state (2). The breakaway republics of Kosovo, Abkhazia, and South Ossetia were
claiming the right to external self-determination, which is very controversial. However,
50
as it was mentioned in the first part of this paper, the right to self-determination is
provided for “people”, which is vaguely defined. In order to avoid the controversy,
international law favors using the territoriality approach, rather than looking at the
different ethnicities, religions, and languages (2). It means that after the collapse of the
Soviet Union and the dissolution of Yugoslavia, the borders of the new states were
determined according to the borders of the federated republics, similar to the context of
decolonization, where borders of newly created states were formerly colonized territories
(2). Therefore, the breakaway republics of Kosovo, Abkhazia, and South Ossetia have the
right to internal self-determination, although they do not have the legal right to external
self-determination and secession from the original states because it violates the territorial
integrity of Georgia and Serbia.
The main argument of the western powers in the case of Kosovo’s secession and why it
was a distinctive case compared to Abkhazia and South Ossetia was the unprecedented
scale of human rights violations, where the last resort was to secede. Even in such
circumstances, Heiko Krueger (2009) argues that UNMIK had restored the human rights
situation in Kosovo prior to its declaration of independence and there was no need to
encourage an actual secession of Kosovo from Serbia (132). Therefore, there was no
legal basis to justify the recognition of Kosovo and likewise of Abkhazia and Ossetia
later on (141). International law has not been changed due to these cases and is said to
remain skeptical towards secessions of the groups from their mother states if the right to
secede is not part of the mother state’s national law (141).
51
On the other hand, given the emergence of human rights after World War II, it would be
challenging to persuade people living under oppressive regimes that they do not have a
right to secede. The right to self-determination is one of the oldest rights and has firstly
emerged in the Westphalia Treaty (Kohn 526). Since the peace of Westphalia, the right to
self-determination continues to be reaffirmed in the international conventions, including
the Woodrow Wilson’s Fourteen Points and in the League of Nations Covenant (529).
The United Nations Charter, together with the General Assembly Resolution 1514 of
1960 and the Declaration on Friendly Relations and Cooperation among Peoples, are the
main sources of the right to self-determination (Coulter 5). Despite such omnipotent
presence of this right in all the international conventions, there is a great apprehension for
extending the right to self-determination to all people because of the concern for
international peace and security. However, given the unique circumstances of the former
Yugoslavia, it is especially difficult to deny this province the right to secede. In the case
of Kosovo the events that took place in the region amounted to a humanitarian disaster.
There is evidence of human rights violations and atrocities committed under the
Milosevic regime and the evil cannot be undone. Therefore, a unique case was made for a
majority ethnic Albanian province to secede.
52
Conclusion
There is no doubt that the territorial integrity of a state is of the utmost importance and
the misinterpretation of the right to self-determination and secession should not prevail
over the principle of territorial integrity. However, international law lacks a consistent
policy on the right to self-determination. As Krueger (2009) stated “the international law
on secession is represented as being of indefinite shape” (142). There is no clear line
dividing the rights of ethnic minorities from actions that violate the sovereignty of an
independent state. The right to self-determination is not a universal right that everyone
can claim regardless of the situation. The extension of the right to self-determination to
all people would mean a serious threat to international stability. International law aims to
preserve peace and security within the international community. Therefore, it is obvious
that this right was not originally created for everyone.
The double standards that the international actors hold in the cases of Kosovo, Abkhazia,
and South Ossetia represent a danger for future breakaway regions. In the best interest of
protecting peace and security worldwide, the circumstances surrounding the case of
Kosovo should be regarded as exceptional and unique. The secession of the province of
Kosovo did not alter international law. Therefore, other breakaway republics should not
be allowed to use the case of Kosovo as a justification for their secession, as long as, the
circumstances are different. Lastly, I would like to emphasize that the main controversy
regarding the right to self-determination originates from the lack of consistent policy in
53
international law. In addition, the source of debate over this issue is the imbalanced
conduct and uneven reactions of the international actors in different cases.
54
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64