Self-Determination and Kosovo's Future

Serbia asserted its independence today, in the same breath accepting Montengro's independence. This leaves on the table two main issues in the Balkans, the desire of the Serbian Republican with Croatia's federal system (the Republika Srpska) to achieve independence on one hand, something forbidden by the Dayton Accords, and the desire of Kosovo to achieve independence from Serbia.

The U.S. and the E.U. a month ago firmly opposed an independence bid for the Republika Srpska.

Talks over the final status of Kosovo are in progress in Vienna. There are genuine differences over details like divisions of property and internal debt. There are also deep differences over the big issue of whether Kosovo should have greater autonomy within Serbia, which is the Serbian position, or full independence, which is Kosovo's position. The U.N. official leading the talks seems to favor Kosovo's position.

Belgrade's platform for the upcoming Kosovo status talks envisions broad, internationally guaranteed autonomy for the province as an alternative to full independence. . . . Serbia favours an international agreement with Pristina, for a term of 20 years. Such an agreement would be signed by the UN and Serbia . . . . Kosovo would have a constitution and independent jurisdiction in most areas. However, Belgrade would retain jurisdiction in foreign policy, border control, human rights protection, monetary and customs policy and the protection of religious and cultural heritage. Kosovo would have full financial autonomy. It would conduct its public finance policy independently, with the possibility of taking out loans with international financial institutions and acquiring direct foreign investments.

The Kosovo Albanian side, however, has said it will not settle for anything short of full independence. . . . . "If Serbia continues to be destructive, the international community has another option, under which it will simply proclaim Kosovo an independent and sovereign state," Berisha told Radio Free Europe.

UN deputy envoy Albert Rohan, who has been chairing the direct talks, has said Belgrade is advocating "unrealistic positions", although he also called on the Kosovo Albanian side to show more flexibility.

Ahtisaari has said he expects discussions on the status issue to begin in mid-July.

NATO has committed to backing up any U.N. decision.

It looks like the U.N. will be pushing hard for Kosovo's independence, if ratified in a referrendum whose outcome is largely a foregone conclusion. But, the U.N. will also likely push to have independence for Kosovo limited by provisions of Kosovo's own constitution and/or international treaties with Serbia, which would provide the human rights protections and protections for cultural and religious heritage which Serbia has sought to retain jurisdiction over in an autonomous state (the flexibility referred to by the U.N. representative), but not foreign policy, currency or border control for Serbia.

Simply put, the rest of the world righly believes, given Serbia's recent history, that it can't be trusts to have authority over Kosovo and is in no position to claim the high ground on human rights.

International opposition to Kosovo's independence is not really true opposition to the idea of an independent Kosovo, but the fact that the international community has pushed hard and continued to do so to obtain Serbian consent is really a reflection of concern about opening up the can of worms associated with the notion of unilateral declarations of independence by a portion of an existing sovereign state.

If Kosovo and East Timor can have internationally recognized independence, why not Transdniestria, and South Ossetia? Why not the Republika Srpska? Why not Iraqi Kurdistan and Iraqi Sumer? Why not Islamic Northern Nigeria? Why not Chechnyia and Abkhazia? Why not Aceh? Why not Northern Ireland and Scotland? Why not Quebec? Why not Taiwan? Why not Palestine? Why not Kashmir? Why not Tibet? Why not the interior of Columbia? Why not Southern Sudan?

The better share of civil wars in the world are independence struggles, and an international precedent of a right to unilateral self-determination who give hope for international support to all of them. The hope of the U.N. negotiator is that this could be distinguished because it would involve consent of the sovereign state giving up the territory, and that Serbia might give consent because it is effectively a defeated part in an international war (which put NATO in Kosovo) and because it might face harsh international sanctions if it insisted on continuing an undemocratic rule of Kosovo. If this strategy works, the Vienna talks will have effectively put of the question of when unilateral self-determination is valid to another day. But, ultimately, leaving that question unresolved, as this choice does, also fosters war, but leaving no clear yardstick to determine whose self-determination bids are valid, and whose are not.

It isn't clear to me that drawing a line that determines which claims for self-determination should be honored, and to what extent, have to be as standardless as they seem. Most plausible claims for self-determination have a number of characterists in common, all of which should generally be present prior to international recognition of a new state:

(1) The boundaries of the proposed region involve a contiguous region with (a) the current boundaries of a semi-autonomous region within an internationally recognized sovereign state, (b) the boundaries of a previously sovereign state which lost its autonomy through non-consentual means, (c) a long standing, i.e. several decades old, at least, de facto boundary established by military means or by a consentual treatment after autonomy is lost by non-consentual means, or (d) the de facto boundaries are widely acknowledge by all parties to the dispute.

(2) The proposed region is very distinct politically, ethnically or culturally from the larger sovereign state, and has a strong regional identity.

(3) Those seeking separation are willing to use violence, non-violent mass protest, or the powers granted to them in their capacity of legitimate leaders of an existing semi-autonomous region to express an unwavering commitment to independence.

(4) The leaders of the independence movement do not need to rely on the central government to maintain order or conduct governmental affairs, and the proposed independent state is large enough to function on its own. The proposed region is capable of establishing all institutions of a sovereign state and protecting their own borders militarily once recognized with their own financial resources.

(5) The rump of the sovereign state left after the proposed independent region leaves is capable of functioning fiscally and conducting normal governmental affairs.

(6) Independence has the genuine democratic support of a majority of people in the region which seeks independence.

(7) Independence would not open the door to a great likelihood human rights abuses by the newly independent nation of the population at large or an ethnic minority within the newly independent nation, or the rump of the sovereign state remaining after independence is granted. Independence is likewise favored if it is likely to end human rights abuses by an existing central government, and is disfavored if it is likely to end genuinely effective measures to protect human rights of a central government, in any of the resulting countries.

These factors should generally be evaluated by proponents of independence, opponents of independence and the international community through its individual members and the relevant general purpose international institutions such as the United Nations and any other general purpose regional institutions like NATO or the EU, in Europe, for example.

These tests decidely favor self-determination. Many of the independence movements identified above would be entitled to independence under this formula. Thus, the notion that are ever circumstances when unilateral independence is justified suggests strong that in many of the current civil wars plaguing our world, that the proper course of action is for the sovereign state facing the civil war to give up and grant independence to the restive region, giving into the demands made by the insurgents.

But, by requiring that all seven factors be present, sufficient limitations are established that fear of a slippery slope that would lead to endless devolution is largely defused. It has the mixed impact of providing a road map to insurgents and consolidators alike, to achieve their ends. Colonizing a region, a la West Bank settlements in Israel, make autonomy less justified. Ethnic cleansing, a la Bosnia, encourages it. Violent may be favored as a tool to escape domination, while repression of opposition and denial of half-measures like regional autonomy may be favored as a way of keeping a nation together. The human rights condition mitigates these incentives, but does not end them.

Still, these conditions are largely ways to measure a fait accompli, and encourage all involved to recognize an already achieved reality in legal arrangements, rather than an artifically set of guidelines to govern international conduct. We got our current set of international boundaries through means no less ugly. But, perhaps, if the de facto rules of the game were publicly stated, we could, as an international community, at least forshorten the period of civil war and bloody conflict that often preceeds independence and goes on for miserable decades for all involved.