Hostname: page-component-78c5997874-m6dg7 Total loading time: 0 Render date: 2024-11-11T12:25:58.524Z Has data issue: false hasContentIssue false
  • English
  • Français

Kosovo and intersecting legal regimes: An interdisciplinary analysis

Published online by Cambridge University Press:  18 July 2017

ALEXANDER ORAKHELASHVILI
ALEXANDER ORAKHELASHVILI*
Affiliation:
School of Law, University of Birmingham, Birmingham B15 2TT, England
*
*Email: a.orakhelashvili@bham.ac.uk
Get access Rights & Permissions [Opens in a new window]

Abstract:

The unilateral declaration of independence by Kosovar authorities in Pristina in 2008 has been the source of various controversies in international affairs. From a legal perspective, Kosovo’s secessionist drive is contrary to the well-established position of international law regarding the territorial integrity of states. From a political perspective, Kosovo’s case exemplifies the political drive to alter the law – a drive that applies to other entities in Kosovo’s position. Both these phenomena are accompanied by the divergent interests held by Kosovars as the ‘local agency’ and by the interests of Serbia and third states (including great powers) that support or oppose Kosovo’s independence. The interdisciplinary nature of this matter is enhanced by the intersection of applicable legal frameworks with competing political interests. The motivating factors – and implications of – great power conduct in this context should be examined through the prism of political realism, which provides an enhanced perspective on the relationship between legal and political factors in all their complexity.

Keywords

Kosovopolitical realismreciprocityrevisionismunilateralism
Type
Special Issue: Independence in a World of Intersecting Legal and Political Regimes
Information
Global Constitutionalism , Volume 6 , Issue 2 , July 2017 , pp. 237 - 264
Copyright
Copyright © Cambridge University Press 2017 

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 On ‘local agency’ see section I below.

2 K Fierke, Introduction to this Special Issue 2.

3 Ibid 2.

4 Ibid 13.

5 As confirmed in Nicaragua v US (Merits), ICJ, Judgment of 26 August 1986, ICJ Reports (1986) 14, 100–101.

6 Accordance with international law of the unilateral declaration of independence in respect of Kosovo, Advisory Opinion of 22 July 2010, ICJ Reports (2010) 403.

7 See in this issue N Cornago, ‘Beyond self-determination: norms contestation, constituent diplomacies and the co-production of sovereignty’, suggesting that: ‘The line of argumentation is ascendant when it sets out from specific interests or the will of the specific actors, such as when the discourse is articulated around the central government concerns, or conversely, elaborated from inside the secessionist movement political strategy.’

8 UN Doc S/2008/692, para 26.

9 UN Doc S/2008/692 at 6–7.

10 Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, UN Doc S/2008/692 (24 November 2008) para 4.

11 UN Doc S/PV.6979 at 10.

12 Schmitt, C, The Grossraum Order of International Law with a Ban on Intervention for Spatially Foreign Powers: A Contribution to the Concept of Reich in International Law in C Schmitt, Writings on War (Nunan, T (ed), Polity, Cambridge, 2011) 75, 111–12.Google Scholar

13 Indeed, about Schmitt’s affiliation with the Nazi regime in Germany, see the Translator’s Introduction in Nunan (n 12) 2–3.

14 The International Court has specified that ‘enforcement action’ under the Charter means a coercive action against the State, i.e., against its government. Certain Expenses of the United Nations (Advisory Opinion of 20 July 1962) ICJ Reports (1962) 151, 177.

15 Stoessinger, JG, Why Nations Go to War (Bedford/St Martins, Boston, MA, 2001) 248.Google Scholar

16 Statement by the Non-Aligned States (132 States), 24 September 1999, in Brownlie, I, Principles of Public International Law (Oxford University Press, Oxford, 2008) 744; and the statement made in Havana, 10–14 April 2000, para 54.Google Scholar

17 The Outcome Document of the 2005 United Nations World Summit, A/RES/60/1, para 138, refers to ‘collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII’.

18 Jackson, R, The Global Covenant (Oxford University Press, Oxford, 2000) 293.Google Scholar

19 On constructivism in general see Kratochwil, F, Rules, Norms and Decisions (Cambridge University Press, Cambridge, 1989).CrossRefGoogle Scholar

20 Linklater, A, Constructivism in Burchill, S et al., Theories of International Relations (Palgrave, Basingstoke, 2001) 218.Google Scholar

21 Reus-Smit, C, The Moral Purpose of State (Princeton University Press, Princeton, NJ, 1999) 26.Google Scholar

22 See Linklater (n 20) 223.

23 Barkin, JS, ‘Realist Constructivism’ (2003) 5 ISR, 325, 338.Google Scholar

24 Ibid 330.

25 See Linklater (n 20) 216.

26 Ibid 225–6.

27 On which see section V below.

28 Wiener, A, A Theory of Contestation (Springer, Heidelberg, 2014) 41.CrossRefGoogle Scholar

29 Ibid 21.

30 Ibid 6–7.

31 Ibid 55–60.

32 Slaughter, A-M, Tulumello, A and Wood, S, ‘International Law and International Relations Theory: A New Generation of Interdisciplinary Scholarship’ (1998) 92 AJIL 367, 373.CrossRefGoogle Scholar

33 Bull, H, Anarchical Society (2nd edn, Macmillan, Basingstoke, 1977) 17, 86–9.CrossRefGoogle Scholar

34 See below section IV on this.

35 For the text of Frederick the Great’s Political Testament see <http://germanhistorydocs.ghi-dc.org/sub_document.cfm?document_id=3548>.

36 See in general Gallagher, J and Robinson, R, The Imperialism of Free Trade (1953) 6 Economic History Review 1.CrossRefGoogle Scholar

37 Temperley, H, The Foreign Policy of Canning 1822–1827 (G Bell & Sons, London, 1925).Google Scholar

38 Seton-Watson, H, Britain in Europe (Cambridge University Press, Cambridge 1938) 85.Google Scholar

39 See Seton-Watson (n 38) 86–8.

40 Ibid 99–100, 118.

41 Ibid 101–3.

42 Ibid 199.

43 Referred to in Schmitt (n 12) 171.

44 See Temperley (n 37) 456.

45 Rendall, M, ‘Defensive Realism and the Concert of Europe’ (2006) 32 RIS 523, 532.Google Scholar

46 See in general Rendall, M, ‘Restraint or Self-Restraint of Russia: Nicholas I, the Treaty of Unkiar Skelessi, and the Vienna System’ 1832–1841 (2002) 24 International History Review 37, 52ff.CrossRefGoogle Scholar

47 See Rendall (n 46) 43.

48 Ibid 48.

49 Robinson, R and Gallagher, J, Africa and the Victorians (Macmillan Press, London and Basingstoke, 1961) 173.CrossRefGoogle Scholar

50 Mowat, RB, The Concert of Europe (Macmillan & Co., London, 1930) 56.Google Scholar

51 First Agreement of Principles Governing the Normalization of Relations, Brussels, 19 April 2013.

52 See <https://ec.europa.eu/commission/2014-2019/hahn/announcements/adoption-stabilisation-and-association-agreement-proposal-kosovo_en>.

53 EU Commission, Feasibility Study for a Stabilisation and Association Agreement between the European Union and Kosovo, {SWD(2012) 339 final}.Google Scholar

54 Morgenthau, H, Politics Among Nations (McGraw Hill, Boston, MA, 1993) 14–15.Google Scholar

55 Ibid 268.

56 Ibid 259ff.

57 This they describe as the ‘prudential view’; Goldsmith, JL and Posner, EA, The Limits of International Law (Oxford University Press, Oxford 2006) 203.Google Scholar

58 According to Adam Watson, hegemony means ‘that some power or authority in a system is able to ‘‘lay down the law’’ about the operation of the system’. Watson, A, ‘Systems of States’ (1990) 16 RIS 99, 104.Google Scholar

59 UK Written Submission, 111 (para 6.28); the US Written Submission, at 68, similarly maintained that resolution 1244 allowed for the future status of Kosovo without Belgrade’s consent, mainly because this resolution contained references to the abortive Rambouillet Accords which, had they been signed by FRY, would indeed have provided for such possibility.

60 UK Written Submission, 112 (para 6.29), also referring to the periodic review requirements (para 6.30), which, however, do nothing to reverse the requirement that the actual continuation of 1244 arrangements depends on the collective decision of the Security Council. Even if UNMIK faced difficulties in administering the entire territory of Kosovo (see para 6.47), it still does not follow that its mandate or any other aspect of the 1244 arrangements could be modified unilaterally; that is, without the Security Council’s collective decision.

61 The State Department’s relevant points were the following: ‘(1) The state of Yugoslavia collapsed in a non-consensual, exceptionally violent way, creating threats to international peace and security that have obliged the UNSC to act repeatedly. ... (5) In 1999, NATO’s 19 allies reached the consensus decision to take collective action to remove Milosevic’s police and military forces from Kosovo. (6) Kosovo is administered by the United Nations under U.N. Security Council Resolution (UNSCR) 1244, unanimously adopted (with China abstaining) on June 10, 1999, to address Milosevic’s actions. Elements of UNSCR 1244 include denying Serbia a role in governing Kosovo; setting up an interim UN administration; providing for local self-government; and envisioning a UN-led political process to determine Kosovo’s future status.’ Why Kosovo Is Different, US Department of State, <www.state.gov>.

62 Aron, R, Peace and War (Weidenfeld & Nicolson, London, 1966) 161.Google Scholar

63 Keohane, R, ‘Reciprocity in International Relations’ (1986) 40 International Organization 1, 6.CrossRefGoogle Scholar

64 Frederick the Great’s Political Testament (n 35).

65 See Temperley (n 37) 460.

66 See generally Buzan, B and Lawson, G, The Global Transformation: History, Modernity and the Making of International Relations (Cambridge University Press, Cambridge, 2015).CrossRefGoogle Scholar

67 See Buzan and Lawson (n 66) 291ff, 302–3.

68 As was developed in an earlier work by Buzan, B, From International to World Society: English School Theory and the Social Structure of Globalisation (Cambridge University Press, Cambridge, 2004) 139ff.CrossRefGoogle Scholar

69 Buzan and Lawson also envisage the possibility that, under the ‘decentred globalism’, ‘regional powers will, for better or worse, have a stronger hand in their locales’. See Buzan and Lawson (n 66) 303.

70 See arts 49ff, ILC Articles on State Responsibility, Report of the International Law Commission on the work of its Fifty-third session (2001), Official Records of the General Assembly, Fifty-sixth session, Supp No. 10 (A/56/10).