In several respects, international responses to recent developments in Kosovo have had a significant- in some respects, profound - impact on international la

Orentlicher, Diane F.

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THE IMPRINT OF KOSOVO ONINTERNATIONAL LAWDiane F. Orentlicher*In several respects, international responses to recent developments inKosovo have had a significant-in some respects, profound-impact oninternational law. While that impact has been especially notable with respectto the law governing humanitarian intervention, responses to the Kosovo crisishave important implications for other areas of international law as well.But, if recent developments vis-A-vis Kosovo have had a significant impacton international law, their implications remain unclear and can be assessed onlyin highly tentative terms. This is notably the case with respect to the lawgoverning self-determination. Not until the final status of Kosovo is resolvedwill it be possible to even characterize the precedent established. Even so,responses to Kosovars' claim for independence bring into sharp relief apotentially profound, if subtle, evolution in the law governing separatist claims.Contemporary challenges to bedrock principles of international law arereflected in the Security Council resolution establishing the terms of Kosovo'spost-war governance, SC Resolution 1244 (1999).' That resolution includes atalismanic nod to time-honored principles of territorial sovereignty-andproceeds to eviscerate them. While reaffirming "the commitment of all [UN]Member States to the sovereignty and territorial integrity of the FederalRepublic of Yugoslavia .... the resolution provides for an "interim [UnitedNations] administration for Kosovo under which the people of Kosovo canenjoy substantial autonomy within the Federal Republic of Yugoslavia,"pending a final political settlement of Kosovo's status.2At the risk of oversimplification, developments in the immediate aftermathof the military intervention by the North Atlantic Treaty Organization("NATO"), as reflected in SC Resolution 1244, seem to signal an emergingnorm: A state that severely, systematically, and persistently represses the rightsof a segment of its citizens may thereby forfeit the right to exercise fullsovereign authority over that population. But (and here is a crucial qualifica-tion), it does not necessarily follow that the oppressed population is entitled tosecede-at least not immediately. Even so, responses to developments inKosovo have moved external actors further down the road toward recognizing* Professor of Law, Washington College of Law, American University.I. SC Res. 1244, 110 (1999).2. Id.542 ILSA Journal of International & Comparative Law [Vol. 6:541that a presumptive legitimacy may attach to certain types of secessionist claims,particularly when the population in question has endured persistent, systematic,and severe repression at the hands of its dejure sovereign.Before I elaborate, it may be helpful briefly to recall, as a baseline, widelyaccepted interpretations of the right of self-determination under internationallaw. In brief, when the "principle of self-determination," formerly associatedwith the redrawing of Europe's borders following World War I, metamorphosedinto a "right," the accepted meaning of "self-determination" also was trans-formed. It became a right of colonized territories to determine their politicalstatus. The "peoples" who enjoyed a right to secede were defined in territorialterms, and the territories whose populations could exercise the right of self-determination were colonies. Beyond this generally accepted interpretation,certain developments originating in the inter war period and continuing into theperiod of decolonization suggested that groups that were systematicallyrepressed on a continuing basis: at least groups that were excluded from fullpolitical participation based upon their race and creed: might be entitled tosecede.3 For reasons that need no elaboration, the latter possibility may haveobvious relevance for Kosovars.In recent years, scholarly views have begun to coalesce around anotheradditional meaning for the right of self-determination, emphasizing its internaldimension.4 In multi-ethnic democracies, the rigit has often and increasinglybeen invoked to support greater autonomy for defined minorities withinestablished states.In an article published last year,5 I argued that these established interpreta-tions may need to make room for a somewhat broader approach to the right ofself-determination, one that reflects contemporary developments in interna-tional law first heralded seven years ago in an important article by ThomasFranck. "Democracy," he wrote, "is on the way to becoming a globalentitlement, one that increasingly will be promoted and protected by collectiveinternational processes." Although Professor Franck's article did not examine3. Particularly relevant to this interpretation of contemporary international law is the U.N. GeneralAssembly's 1970 Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, GA Res. 2625, UN GAOR,25th Sess., Supp. No. 28, at 121, UN Doc. A/8018 (1970). For analysis of the implications of this resolutionfor separatist claims, See Antonio Cassese, SELF-DETERMINATION OF PEOPLES: A LEGAL REAPPRAISAL 108-24(1995).4. See, e.g., Gregory H. Fox, Self-Determination in the Post-Cold War Era: A New InternalFocus? 16 MicH. J. INT'L. L. 733 (1995); Hurst Hannum, Rethinking Self-Determination, 34 VA. J. INT'L.L. 1, 57-63 (1993); Thomas M. Franck, The Emerging Right to Democratic Governance, 86 AM. J. INT'L.L. 46 (1992).5. Diane F. Orentlicher, Separation Anxiety: International Responses to Ethno-Separatist Claims,23 YALE J. INT'L. L. 1 (1998).6. Franck, supra note 3, at 46.Orentlicherthe significance of this nascent law for separatist movements, I believe thatprinciples underlying the "democratic entitlement" have substantial implica-tions for the legitimacy of their claims.To put the case succinctly: Since the core idea of democracy is govern-ment by consent of the governed, it cannot be irrelevant to the legitimacy of agovernment that a defined portion of its population persistently rejects itsauthority to govern them. This much seemed plain to John Stuart Mill.Affirming that "the question of government ought to be decided by thegoverned," Mill continued: "One hardly knows what any division of the humanrace should be free to do, if not to determine with which of the variouscollective bodies of human beings they choose to associate themselves."7This does not mean that the boundaries of states are perennially open tochallenge. The continuing consent of the state's citizens can generally beassumed; indeed, this assumption is essential to the daily practice of democ-racy. But if consent is manifestly and irrevocably absent on the part of asignificant portion of a state's citizens, the legitimacy of that state's sovereigntyover the rebel population is surely placed in doubt.This point becomes apparent when considered in light of a cardinal ruleof international law: Alien states may not lawfully impose their rule upon non-consenting peoples. Put differently, international law no longer abidescolonization or forcible annexation. If these forms of non-consensual rule areincompatible with accepted principles of self-determination, surely those sameprinciples are at least challenged by a state's continued assertion of sovereigntyover a defined population that has unambiguously and irrevocably rejected itssovereignty.This basic point was acknowledged by the Supreme Court of Canada in animportant decision rendered last year. Asked to advise on whether the provinceof Quebec could unilaterally secede from Canada, the Court concluded that,because Canada's political institutions "are premised on the democraticprinciple," an expression of the democratic will of Quebecois to secede wouldconfer legitimacy on their quest: although not a right to secede unilaterally.'Instead, Canada's other provinces would be obliged to enter into good faithnegotiations over Quebec's status. What is noteworthy about this decision isthe Court's concession that a region's democratically expressed will to secedeobliges its national partners to take the claim seriously.7. John Stuart Mill, CONSIDERATIONS ON REPRESENTATIVE GOvERNMENT (1861), inUTILITARIANISM, ON LIBERTY, CONSIDERATIONS ON REPRESENTATIVE GOVERNMENT 392 (Everyman's ed.1993).8. In the Matter of Section 53 of the Supreme Court Act (Reference re Secession of Quebec),[1998] 2 S.C.R. 217.2000]544 ILSA Journal of International & Comparative Law [Vol. 6:541Turning to Kosovo, at the proverbial first blush it is difficult to discern asimilar approach in the responses of states that attempted to broker a solutionto the Kosovo crisis, including the United States. Throughout its failed effortsto secure-a negotiated resolution of the crisis in the months preceding NATO'sintervention, the United States made clear its unwillingness to endorse theclaims of Kosovar separatists.In even stronger terms, the Administration of then-United States PresidentGeorge Bush opposed in the early 1990s the secessionist claims of Slovenia andCroatia, the first of the former Yugoslavia's republics to proclaim independ-ence. Some eight months after Slovenia made its first formal move towardsecession, the United States as well as European states voiced strong supportfor Yugoslav unity. During a visit to Belgrade in mid-1991, then Secretary ofState James Baker warned that the breakup of Yugoslavia "could have somevery tragic consequences." Nor, he added, would the United States recognizethe independence of Slovenia and Croatia "under any circumstances." 9Against this background, little-noted remarks of President Clinton duringa visit to the capital of Slovenia in the immediate aftermath of NATO's victorytake on special significance. Remarkably in light of United States policy at thetime Slovenia sought to secede from the former Yugoslavia, President Clintonhailed the success of Slovenia's brief war of independence. "Eight years ago,"he said, "Mr. Milogevid triggered a military assault on your nation. But youresisted. You secured your freedom, and you proclaimed that it would neverbe the same again. Now, all the people, all the people of every part of Europemust be able to do the same thing."'0Although ostensibly addressing Slovenia rather than Kosovo, PresidentClinton's remarks in Ljubljana, coming a scant week and a half after NATO'svictory in its war against Yugoslavia over Serbia's conduct in Kosovo, has tobe seen as a statement of the principles thought to have been defended byNATO's intervention. But what principles, precisely, did President Clintonhave in mind?Here, again, we are thrown back upon the ambiguities of developmentswhose final outcome is not yet known. Yet it is difficult to avoid the conclu-sion that President Clinton's remarks expressed an implied claim--thatSlovenia's secession from a non-democratic state was supported byinternationally-recognized principles of democracy and personal liberty."9. Quoted in the Talk of the Town, NEw YORKER, Aug. 12, 1991, at 21.10. William Jefferson Clinton, Remarks to the People of Ljubljana, June 21, 1999, reprinted inWEEKLY COMPILATION OF PRESIDENTIAL DoCumEiNrs, June 24, 1999 Vol. 35, No. 25, pp. 1165-66[hereinafter Clinton's Remarks in Ljubljana].11. I do not believe that this is the sole implication of President Clinton's remarks to the Sloveniansassembled to greet him in Ljubljana. Other aspects of his brief speech seemed to emphasize the nature of thedemocracy that Slovenia had established (as distinguished from the independence it had secured). ForOrentlicherRecalling "how many armies have marched through this square, how manyflags have been raised over your city," President Clinton continued, "Now, atlast, the flag flying in this capital stands for independence and democracy andthe better life you are building. Congratulations, and God bless you.' 12 Byimplicitly linking Slovenia' s quest for independence to democratic principles,President Clinton's remarks in Ljubljana seem to partake of the same spirit asthe position sketched out by Canada's Supreme Court one year ago.It remains to be noted that these signposts of an emerging approach towardseparatist claims-an approach that recognizes the relevance of democraticprinciples in legitimizing at least some of those claims - raise a raft of vexingquestions. If democratic principles are relevant to the claims of breakawayrepublics, what precisely are their implications? Would President Clinton havehailed Slovenia's successful bid for independence in terms of democraticprinciples if the rump Yugoslavia had not been associated with campaigns of"ethnic cleansing" and military force?Returning to the jurisprudence of the Canadian Supreme Court does thelegitimacy of a separatist movement turn upon whether its claim is expressedthrough democratic processes? To the extent that the Court's views rested uponwhat it saw as a duty on the part of all relevant actors to negotiate with eachother in good faith, what would that Court counsel if one party refused tonegotiate in good faith--or at all?CONCLUSIONThe complexity of these issues and the profound dilemmas they presentonce again highlight the importance of early intervention in addressing crisesthat might lead toward separation, perhaps violently, if not addressed in atimely and effective fashion. The implications of the emerging norms I havesketched in this essay are sobering indeed. Surely, we must be deeply unsettledby the specter that aspiring statelets such as Kosovo, and perhaps Montenegronext, may effectively be compelled to withdraw from their former sovereign inorder to secure fundamental rights.example, immediately following the remarks quoted infra at text accompanying note 2, President Clintonsaid: "All over the world, people seek the same kind of freedom and justice and peace that you have broughthere - from Northern Ireland to the Middle East, to southern Africa, and in central and southeasternEurope." In a similar vein, after congratulating Slovenians for "resist[ing]... Mr. Milolevid ['s] ... militaryassault on [their] nation," President Clinton continued: "Democracy, tolerance, and human rights mustprevail everywhere." The focus on the nature of Slovenia's democracy reflected in these remarks does not,however, detract from the inference that the statements quoted in the text express support - if onlyretrospectively - for Slovenia's quest for independence from the former Yugoslavia.12. Clinton's Remarks in Ljubljana, supra note 10.2000]

The Imprint Of Kosovo On International Law

Orentlicher, Diane

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