Saturday, July 24, 2010

and, speaking of Russia....and the ICJ

The recent advisory opinion by the ICJ regarding Kosovo's unilateral declaration of independence from Serbia will pose a problem for Moscow.  It's statements to the court may come back to haunt it.

Moscow stated that:
General international law prevents Kosovo from declaring independence, bearing in mind that the people of Kosovo do not enjoy a right to self-determination.

Russia rejects claims coming from those countries who support the unilateral declaration that international law "does not regulate independence declarations", and reminds that the UN Security Council declared Northern Cyprus and Rhodesia's independence to be illegal, since secession is forbidden outside the colonial context.
Violations of human rights of Albanians during the 1990s cannot be the justification for a unilateral declaration of independence in 2008.
Russia supported, to the extent of encouraging and sending troops to assist, breakaway regions of Georgia - Abkhasia and S. Ossetia.  At the time of Kosovo's declaration, Russia declared that acceptance would have consequences.  Many commentators pointed to the invasion of Georgia, ostensibly to protect the populations of Abkhasia and S. Ossetia from Georgian ethnic cleansing and prevent Georgia from reasserting central authority, as pay-back for Kosovo.

Yet the position that Russia's ambassador presented to the court does not reflect its positions regarding Georgian sovereignty and spells trouble for Chechnya and other non-Russian regions of the Federation.

It's first statement, that general international law does not allow Kosovar independence because the people have no right of self determination is not, in fact and law, true.  The court had previously decided in the case of East Timor that the right of self-determination exists in all circumstances under the fundamental principle of jus cogens - a principle of international law which is accepted by the international community as a norm from which no derogation is ever permitted.  Russia needs to consider the impact of this position on Chechnya.

The second point refers to a legal position that such unilateral declarations of independence can only be asserted within a colonial context.  This argument has been raised before, but has no general support in international law.  In any case, the advisory opinion distinguishes the Kosovo declaration as not an issue between nation states, but an internal matter which was triggered by the stripping of all of Kosovo's rights under the Yugoslav constitution under the Milosevic regime.  If Russia wants to pursue this position of independence only within a colonial context, how far back should we look?  Chechnya could, arguably, be considered a colonial possession, conquered and re-conquered several times in the  19th century by imperial Russia.  On the other hand, the Russian argument fails if applied to Abkhasia and S. Ossetia since they could not be considered colonies, ever, of Georgia.

Citing Rhodesia and Northern Cyprus in support of the illegality of the unilateral declaration of independence, Russia ignored the unique circumstances of each of those actions one of which involved the attempt to continue an oppressive colonial regime and the other which is political in nature. The political component is ignored by those, like Russia, who tend not to differentiate between the court's ruling which recognized the legality of the declaration as opposed to political recognition.  This is crucial for Cyprus, where the Greeks are opposing opening of any new chapters in EU accession talks for Turkey despite the commitment of the EU to do so based on the 2004 vote by Turkish Cypriots to reunite the island, while the Greeks voted it down. Only Turkey recognizes Northern Cyprus - a very similar situation to that faced by Russia in Abkhasia and S. Ossetia which have been recognized by Venezuela, Nicaragua and some insignificant island in the Pacific. Politically, it is unlikely that Northern Cyprus will be recognized as independent by anyone other than Turkey even if an argument can be made for legal recognition.

Kosovo is recognized, so far, by 69 countries, including the US, Germany and Turkey. Politics matters.  Citing Rhodesia and Northern Cyprus is an unwise legal position since both can be used to show the illegality of Abkhazia's and S. Ossetia's unilateral declarations.

Violation of human rights in the 1990s cannot be used as a reason for Independence in 2004 - the next argument put forward by Russia.  However, the court did not rely on the violation of human rights as the basis of its decision. Rather, it pointed to the stripping of constitutional rights granted to other regions of Yugoslavia - a position successfully put forward by Croatia.  Conversely, violation of human rights is precisely the argument used by Russia to inject troops in support of the Abkhazian and S. Ossetian independence movements. 

Despite the frequent admonitions that Kosovo is a unique situation and not precedent - admonitions made by Russia, Turkey (with it's eye on the Kurds in northern Iraq), the UK, US and Germany (in recent statements in Cyprus), it will be used as precedent.  But it will be politics, not international law that will govern the outcome.

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