Since 2014, comparing Kosovo, Crimea and Donbas has been an acute problem for the leading international lawyers, and, what’s more distressing, a favoured topic of Putin’s propaganda.
Multiple ubiquitous yet hardly accurate references by Russia’s top political leadership to the so-called “Kosovo precedent” is an excuse to occupy the Crimean Peninsula and establish proxy control over parts of Donetsk and Luhansk oblasts. However, a closer and less biased view of the problem shows that such rhetoric is not justified.
The controversy caused by the unilateral declaration of independence by Kosovo in 2006 prompted Serbia to appeal in 2008 to the International Court of Justice – the UN main judicial body – which is authorised to solve disputes related to “any issue of international law”, according to Article 36 of its Statute .
The question examined by the Court was: “Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?” – ingenious both in its simplicity and covert political subtext.
The positions of the parties – Serbia and Kosovo – were diametrically different.
Serbia has highlighted that the unilateral declaration of independence of Kosovo constituted an act in violation of fundamental principles of international law and was detrimental to the principles of sovereignty and territorial integrity – hence, for the entire system of international relations.
According to Serbian representatives, supporters of such independence subverted the UN’s authority by taking authority away from UNMIK – the UN interim administration in charge of Kosovo – and “established the dangerous precedent of territory secession”. Furthermore, Serbia presented Kosovo as a place essential for Serbian history as the 1389 Battle on Kosovo Pole which saw the transition of Serbian territories to the Turkish Empire had taken place there, near today’s Pristina. All these circumstances, according to Belgrade, were sufficient to show the declaration of independence to be an unfortunate international law violation which needs to be condemned.
Kosovan representatives highlighted numerous violations of the Albanian minority’s rights, explaining that Serbia, hence, “lost its right to own Kosovo”. Also, they mention that the Serbian Constitution intended, after the end of the peacekeeping mission, to treacherously deprive Kosovo of its status as an autonomous region. The Kosovan authorities also argued that, according to the UN General Assembly Resolution 1244 and the Rambouillet Agreements, the UNMIK authorities had been established as provisional ones, and, after the withdrawal, the nation would be allowed to determine its destiny by itself.
Unsurprisingly, fans of Kosovan independence were to be found mostly in the West while the opponents were Easterners headed by Beijing and Moscow. However, several EU members – namely, Cyprus, Romania and Spain – turned out to join the latter camp, fearing their own problems would be affected.
On July 22nd, 2010, the International Court of Justice rendered its decision in which it stated that the declaration of independence of Kosovo had not violated international law. The issue of recognition of Kosovo as an independent state was called “political” in its essence and left unanswered.
But is there actually a “Kosovo precedent”?
It should be noted that the decision of the International Court of Justice, according to Art. 59 of its Statute, is binding only upon the parties involved in the case and only in that specific case. Of course, the provisions of preliminary advisory opinions may be considered in whole or in part as a judicial practice, but they do not predetermine the outcome of the Court’s review. From the point of view of international law, each dispute is unique, and its resolution should be based primarily on the applicability of the provisions of the sources to the specific situation. Hence the conclusion that the words of President Putin on the “Kosovo precedent” reflect nothing but a poor knowledge of international law and its principles.
Furthermore, it has been established and confirmed on multiple occasions that no examples of systematic human rights abuses on linguistic, religious or cultural grounds were recorded during the times Ukraine exercised effective control over the occupied territories (in particular, this was emphasised in 2014 by Ivan Simonović, the UN Assistant Secretary-General for Human Rights).
In addition, by recognizing Kosovo’s independence, the European countries fully complied with the provisions of the Declaration on the Guidelines of Recognition of New States in Eastern Europe and in the Soviet Union, adopted by the Council of Ministers of the European Community (now the Council of the European Union) on 16 December 1991.
The Republic of Kosovo has proved its readiness and eagerness to abide by international legal obligations (in particular, by coming up with a proposal to ratify the European Convention on Human Rights) and lawfully following agreements in force that govern its international relations.
Without any doubt, if we analyse the status of Kosovo according to the criteria of statehood mentioned in the Montevideo Convention (Convention on Rights and Duties of States, 1933) – a primary source to that effect – we can see that Kosovo clearly falls under such criteria, which include: a permanent population, a defined territory, government and a capacity to enter into relations with another states.
The so-called “people’s republics” established by Moscow in the occupied territories of the Donbas region as a means of proxy control do not fall under such criteria. They do not have any defined territories (as there is still military action ongoing). The fictional nature of their “governments” and “foreign relations” is evident in practice as the only entities maintaining stable relations with them are the pseudo-states of Abkhazia and South Ossetia also controlled by the Russian Army.
It is clear that a distinction should be made between the Balkan situation and the occupation of Crimea and parts of Donetsk and Luhansk regions.
The legal natures of the Republic of Kosovo and of the so-called “Republic of Crimea” (not to mention the malignant Donbas formations) are diametrically different and should be perceived as such by the international community – especially by the highest-ranking officials who have a primary responsibility for the world’s well-being.
Pristina is a good friend of Kyiv and, once the situation in Ukraine becomes more or less stable, the policymakers concerned will do their utmost to establish a stable and warm relations between our two freedom-loving nations.