Kosovo's controversial secession

April 2, 2008Duke Law News

April 2, 2008 — On Feb. 17, 2008, Kosovo declared its independence from Serbia, creating division in the international community over whether or not the secession violated international law. In a recent lunchtime event at Duke Law, two distinguished scholars tackled the question of legality, agreeing that the answer lies in the distinction between a people’s right of self-determination and the right to secede.

The idea of a right of “self-determination of peoples,” a phrase found in many international documents, is ambiguous and often confused with the normative nationalism principle which asserts that every nation or people has the right to a sovereign state, said Allen Buchanan, the James B. Duke Professor of Philosophy and Public Policy at Duke University.

“Depending on how you count ‘peoples’ or nations, there might be as many as 8,000 on our planet,” he continued. “The idea that each should somehow magically come to have its own state would require either genocide in unprecedented proportions or a change of heart in human beings of the sort we have never witnessed before.”

Before Slobodan Milosevic came to power in 1989, Kosovo was an autonomous province within the Republic of Serbia under the former Socialist Federal Republic of Yugoslavia, explained Tibor Várady, a professor of law at Central European University in Budapest and Emory University and a former Yugoslavian minister of justice. Milosevic ended the autonomy agreement, which caused some Kosovo Albanians to agitate for independence. In response, Milosevic abolished all of the republics, and eventually, four — Slovenia, Croatia, Macedonia, and Bosnia — declared independence.

“Quite of a few Albanians in Kosovo probably would have been satisfied with autonomy,” Várady said. “Of course, it depends on what kind or type of autonomy.” It wasn’t long before changes in the social and political landscape propelled the Albanians into what he called a “parallel society” with parallel schools, medical services, and even a parallel tax system. “If you are pushing … 90 percent of the population to be a parallel society, then the parallel society becomes a new society,” Várady said.

The Kosovar Albanians continued to seek a restored autonomy agreement throughout the 1990s, until the Serbian government launched police and military actions in 1998, resulting in a mass exodus of Albanians to Macedonia. NATO forced the Serbian government to retreat through an air campaign and the U.N. Security Council passed a resolution, leading to the U.N.’s nine-year administration of Kosovo. Efforts to resolve Kosovo’s final political and legal status ultimately failed in December 2007. Two months later, the Parliament of Kosovo issued a statement declaring their independence, a move Várady called “politically unwise.”

Agreeing with Várady’s assessment, Buchanan suggested a four-step process to better define the right of self-determination and to create clear guidelines for when the international community should accept a state’s secession. “The first step, both conceptually and in practice, is to uncouple secession from self-determination,” he said. “Acknowledge that groups can have a right to self-determination without having a right to secede.”

The second step, Buchanan continued, is to separate the right to secede from nationality and recognize that some groups may have the right to self-determination whether or not they count as nations. “I think it’s a mistake to focus too much on the status question — whether a group counts as a nation or not — there is simply no likelihood of agreement on who gets that label,” he said.

Next, the right to secede needs to be seen as the solution only in a situation with severe human rights violations or the betrayal of a previous autonomy agreement, Buchanan said. Lastly, the international community needs to support and promote intra-state autonomy regimes as an alternative to secession, he said, stressing that the international support needs to include an element of oversight that ensures compliance of such agreements.

The problem with Kosovo’s secession lay in its timing, both Varady and Buchanan agreed. “It’s one thing to say that unilateral secession could be justified if there were some persisting injustices,” Buchanan said. “The question is, at what point — if there is a change of regime and it looks like it is going to be more hopeful — do the people who have been suffering these persecutions in the past still have the right to say, ‘We’ve had enough and we’re not going to meet you halfway…’?”

Though Buchanan said he believes that ultimately Kosovo did have the right to secede, he said that “it would have been better to do it in the heat of the war when people were already defecting from Milosevic anyway. It might have been much easier to justify then.”

Kosovo's Independence: The Politics, Legality, and Philosophy of Secession was sponsored by the Center for International and Comparative Law and is available on webcast.