Catalan Independence Referendum and the Kosovo “Precedent”

On October 1, the people of Catalonia voted to separate from Spain in an independence referendum which has been declared illegal by Spain.  According to numerous news reports, Spanish police and government forces attempted to interfere with the referendum and engaged in tactics which some have criticized as repressive and “shocking.”  The European Union (EU) however failed to condemn the Spanish government and instead insisted that the referendum was an internal matter for Spain and that the Spanish Constitution and rule of law should be respected.

The Catalan referendum brings back memories of the Kosovo situation in 2008.  Serbian President, Aleksandar Vucic, has criticized the EU for its “hypocrisy” because of the EU’s seemingly different stance vis-a-vis the recent Catalan independence vote and vis-a-vis Kosovo’s secession from Serbia in 2008.  Vucic stated, after meeting with the Greek President, “How come you’ve [EU] declared Kosovo’s secession from Serbia legal, violating international law and the foundations of European law.”  In other words, the EU had essentially “blessed” the Kosovar secession from Serbia while it has, in this instance, supported Spain and failed to recognize that Catalan “right” to an independence referendum.  Are the situations in Catalonia and Kosovo drastically different? What does international law say about the subject-matter of secessions?

First, the situations in Kosovo and Catalonia may be different because their respective mother states are different.  Kosovo had been a part of Serbia, which, while under the rule of Slobodan Milosevic, had engaged in brutal tactics to suppress an independence-seeking rebellion brewing within Kosovo.  Thus, the international community got involved – through the 1999 NATO-led air strikes and subsequently through various NATO and EU-led administrative, security-based, and civil missions.  When Kosovo declared independence in 2008, United States Secretary of State Condoleezza Rice described Kosovo as “sui generis,” in part because of the international community’s strong involvement in this region.  The Catalan had expressed their desire for independence and had held other independence referenda in the past, but the Spanish government had never engaged in human rights violations in Catalonia and the situation has remained peaceful.  The international community itself has never been involved in Catalonia and it may be that factually, Catalonia remains an internal matter.  If Catalonia is an internal matter, then, like in Scotland and in Quebec, any potential secession would need to be worked out through peaceful negotiations and a constitutional framework.  If Spain says no, then Catalonia would not have the right to unilaterally secede.  This is the factual argument, not based in international law.  This leads me to my second point – what does international law have to say about the Catalan secession?

Second, international law is silent on secession.  Almost all international law scholars would agree that international law does not entail a “right” to secession, and that secession may be tolerated in international law in  rare instances, like in Kosovo, or in Bangladesh.  We know from the 2010 International Court of Justice Advisory Opinion on Kosovo that international law does not specifically prohibit unilateral declarations of independence, and that international law only condemns declarations of independence procured through an illegal use of force.  We also know that international law contains the right to self-determination, but, as I recently wrote in the context of the Kurdish independence referendum, it is unclear whether the right to self-determination ever applies in the non-decolonization paradigm, and whether this right can ever lead to remedial secession.  It is unclear that the Catalan can invoke the right to self-determination in order to justify secession from Spain – the right to self-determination in this instance may entail simply a right to autonomy within the larger Spanish state.  The Kurds may have a much stronger self-determination-remedial secession argument than the Catalan, as the former may be able to demonstrate much more easily that their mother state is not representative of their interests.  Spain is a democratic nation which respects human rights, and the international law-recognized right to self-determination (leading to remedial secession) has never been invoked in this type of context before.  Thus, international law, at best, begrudgingly tolerates secession in extreme and rare instances, where the mother state is not a democratic nation which respects human rights.  The Catalan do not have a sound international law-based argument, and despite Spanish interference with the Catalan independence referendum, the Catalan cannot claim a particular legal right to secede.

Finally, how does one reconcile the seemingly different results (as of now) in Kosovo, Catalonia, and Kurdistan? Kosovo unilaterally declared independence from Serbia in 2008 and within a short period of time, it was recognized as a new state by many in the international community (although not by Spain – understandably so).  Interestingly, almost no states among those supporting Kosovo advanced international law-based rationales for the Kosovar secession from Serbia; instead, such states continued to distinguish Kosovo as a unique situation, sui generis, a special case which should somehow not create any type of precedent in international law.  Catalonia and Kurdistan have held independence referenda which have not been supported by almost any states in the international community.  Many states have referred to these referenda as illegal because contrary to the wishes of their respective mother states, or as internal matters, or as not representative of any particular “rights” in international law.  Accepting the argument that international law is silent on secession and does not regulate secession, it would appear that secessions are matters of domestic law. If this is the case, it appears that the international community may accept such a role of domestic law in cases where the mother state is a democratic nation or an emerging democracy whose sovereignty is deemed worth-while.  This manner of reconciling different referendum results is not based in international law, but it rather reflects geo-political interests of other powerful states.

 

On Crimean Secession, Fairness, and Self-Determination

On March 16th, 2013, the Crimean people voted in a referendum, expressing their desire to secede from Ukraine and re-join Russia (Crimea was a part of Russia until 1954, when Khrushchev transferred it to Ukraine; some historical accounts suggest that Khrushchev was drunk at the time).  Crimean population is predominantly Russian, with a large Ukrainian minority and a somewhat smaller ethnic Tatar community.  Much has been written so far on the Crimean crisis, and the recent Russian involvement in the region.  Here, I will focus on the issue of self-determination and secession, in order to shed light on the legality of the Crimean referendum and the de facto separation of Crimea from Ukraine and its de facto merger with Russia. 

International law recognizes the right of self-determination for every “people.”  In the decolonization context, the right to self-determination has been interpreted as leading toward remedial secession, because the colonized peoples were not properly represented by the governments of their mother-states (the colonial powers).  Outside of the decolonization context, however, international law does not positively recognize the right for groups to separate from their mother states.  Instead, international law proposes a distinction between so-called internal self-determination and external self-determination.  The former signifies that groups or peoples are entitled to a form of self-government or autonomy within the confines of their mother state.  This type of autonomy may translate into a free exercise of cultural or linguistic rights, or into the creation of a regional parliament, at best.  As long as the mother state respects the people’s right to internal self-determination, the analysis should stop there (see the Canadian Supreme Court in its advisory opinion on the proposed secession of Quebec).  The latter, more drastic form of self-determination, so-called external self-determination, gets triggered by the mother state’s utmost lack of respect for the relevant people.  If the mother state’s central government is so abusive toward the people that its rights are not properly represented, then international law may suggest that such a people should have a right to external self-determination, which would lead to its separation from the mother state.  Most states, unsurprisingly, are extremely reluctant to recognize a right to external self-determination for any minority group, and the International  Court of Justice, in the recent advisory opinion on Kosovo, failed to develop any sort of a useful normative framework on self-determination (the court instead found that the Kosovar declaration of independence was legal, but did not proclaim that external self-determination or secession would ever be legal).  This state of affairs has led some scholars to note that international law “tolerates” external self-determination and secession, but that no positive right to secession exists within international law. 

How does the above discussion translate into the Crimean situation? One possible argument for the legality of Crimean secession is to focus on the Crimean people’s right to external self-determination.  The argument would go as follows: the Ukrainian central government was no longer representative of ethnic Crimean Russians’ rights, and this triggered the latter’s right to external self-determination, leading toward a remedial secession.  Why was the Ukrainian central government not properly representative of the ethnic Crimean Russians’ rights? Because the Ukrainian Parliament recently voted to cease the use of the Russian language in public life, and because the Crimean Russians felt threatened that this was the first step toward an annihilation of their other rights.  This argument is a stretch because of its speculative nature – while it is possible that the Ukrainian government was about to stop respecting ethnic Russians’ rights, we simply do not know as of now that this was going to happen.  Another argument to support the legality of Crimean secession is to compare Crimea to other secessionist regions around the world.  Unsuccessful recent secessions or attempts at secession include Chechnya and Georgian provinces (South Ossetia and Abkhazia), whereas successful secessions include East Timor, Kosovo, Eritrea, and South Sudan.  How is Crimea different from the former and similar to the latter, or similar to the former and different from the latter? Crimea can arguably be distinguished from Kosovo, because the Serbian government in that case was highly abusive toward the Kosovar Albanians, whereas Ukraine has so far treated ethnic Crimean Russians fairly well.  Crimea can probably be distinguished from East Timor, Eritrea and South Sudan, because all three latter regions (now states) involved instances od delayed decolonization, or delayed rectification of post-colonial borders.  But is Crimea legally distinguishable from Chechnya and the Georgian provinces? If Crimea is entitled to separate from Ukraine, shouldn’t Chechnya be allowed to separate from Russia, and shouldn’t South Ossetia and Abkhazia be allowed to separate from Georgia? And what about other state-like entities, inhabited by peoples entitled to the respect of their self-determination rights, which have been denied statehood due to geo-political reasons (here, I am thinking of Tibet, the Palestinian territories, Northern Cyprus, Republika Srpska, Bougainville, etc.).  At best, one can conclude that self-determination quests by various peoples across the globe have not produced consistent results, and that such quests are often influenced by Great Powers’ politics and foreign policy stances. 

Finally, from a fairness perspective, let me quote a question which one of my International Law students recently posed: since Crimea used to be a part of Russia until 1954, since the legitimacy/rationale of its transfer to Ukraine in 1954 is dubious, and since the majority of its population is Russian and may truly wish to re-join Russia, what is so bad about the referendum and its result? The biggest obvious issue related to the referendum has to do with its own fairness – were the people of Crimea truly able to vote and express their wishes, or was the referendum influenced by the presence of Russian forces? Were the results properly tallied? Assuming that the referendum was conducted fairly, my student’s question seems pertinent and right on point. 

I do not mean to suggest that secessions should start occurring throughout our planet all the time, or that any group should be able to stand up and proclaim its right to separate from its mother state.  I also do not mean to suggest that Putin is a “good guy” – many of his policies appear outright aggressive and calculated to derive the most benefit for Russia at the expense of smaller regions/state.  If Putin truly cared for international law, he should be the first one to recognize the Chechens’ right to self-determination and possible secession from Russia.  What I try to argue in this post is that the Crimean issue is complex, and that instead of simply proclaiming that Ukraine is right and Russia is wrong, we need to step back and analyze the region’s history, as well as to take into account its population’s true desires. 

New Vote in Kosovo

On November 17, Serbs in the northern Kosovar political-map-of-Kosovocity of Mitrovica cast their ballots under tight security.  They are seeking to elect a mayor for the northern part of the city (presumably a Serb), whereas the southern portion of the city, under Kosovar Albanian control, will elect a counter-part (presumably Kosovar Albanian) mayor.  The vote is a redo from a failed November 3 election, when masked gunmen interrupted the voting process.  By most accounts, the gunmen were sent by hardline Serbs, seeking to thwart the de facto secession process of Kosovo from Serbia.  Kosovo unilaterally declared independence from Serbia in 2008, and the International Court of Justice refused to pronounce this type of declaration illegal, thereby implicitly confirming the legality of the separation process. The Serbian government has for years refused to acknowledge the loss of Kosovo, and has until recently continued to lay territorial claims on this southern region.  Serbia however has had to renounce this claim, because its accession procedure to the European Union has been conditioned upon letting go of Kosovo.  For hardline Serbs living in Mitrovica this idea might seem unimaginable.  Thus, voter turn-out at yesterday’s elections was low – only 22 per cent of the Serbs showed up to the polls.  The low voter turn-out most likely reflects a lack of confidence by Serbian voters in an integrated Kosovar state.  The situation on the ground, in Mitrovica and in other parts of Kosovo where Serbs may still be found, confirms this state of affairs  – the Serbian and the Albanian populations seem to be co-existing under total segregation, with occasional outbursts of violence.

(photo credit: http://www.ezilon.com/maps/images/europe/political-map-of-Kosovo.gif)

The European Union authorities have been pressuring Serbia to accept a deal which would normalize Serb-Albanian relations by encouraging the Serbian government to entice Serbs living in Kosovo to participate in democratic elections in Kosovo, thereby accepting a majority Kosovar-Albanian government over the entire region.  Under this deal, Serbs in Kosovo could potentially elect Serbian local majors and township leaders, and could send their representatives to the Kosovar parliament.  Under this deal, however, Serbia and Serbs living in Kosovo would have to renounce any desire for a separation of northern Kosovo and its reunification with Serbia, and would have to accept political participation in a majority-led Kosovar Albanian state.  Much scholarship so far has focused on the issue of the Kosovar declaration of independence, and on issues of statehood and secession, but relatively little has ben written on the issue of de facto states – entities which exist de facto separately, but which de jure belong to a larger mother state, which for political, military, or other reasons does not exercise effective control over such an entity.  Examples of de facto states include Republika Srpska (existing de facto separately from the Bosnian Federation), Taiwan, Nagorno-Karabakh (existing de facto separately from Azerbaijan), Northern Cyprus, Palestine, South Ossetia and Abkhazia (the latter two existing de facto separately from Georgia).  Will northern Kosovo turn into a de facto state, an entity which legally belongs to the larger state of Kosovo, but which for complex reasons cannot be truly integrated into Kosovo and continues to function distinctly, as its own “selfistan”?

When Kosovo declared independence from Serbia in February 2008, the issue of minority Serbs living in Kosovo was left untouched.  The expectation may have been that they would move away to Serbia (for many Kosovar Serbs, this option was not available because of a lack of housing, educational or professional opportunities away from their homeland in Kosovo), or that they would accept a majority Albanian rule and participate democratically in this newly created state.  Because of deep animosity existing for decades, if not centuries, between the Serbian and the Albanian communities in Kosovo, the latter should not have seemed as a plausible solution – without some exceptional accommodations and assurances.  The last mayor election in Mitrovica may represent such an attempt to entice local Serbs to participate in Kosovar political life, by allowing them to elect a Serbian mayor for the northern, Serb-dominated part of town.  While this solution appears politically sound, it further deepens the rift existing between the Serbian and the Albanian communities and it further promotes the de facto segregation within Kosovo.  This is what essentially took place in Bosnia, where Serbs congregated to the eastern part of the country and formed their own de facto state, Republika Srpska.  This is equally what took place in South Ossetia and Abkhazia, which now function de facto separately from the official Georgian government, and this has been the state of affairs in Cyprus, where the northern part has operated as a de facto separate entity, led by Turkish Cypriots, for several decades.  The Taiwanese and the Palestinians have formed their own almost-states, and Nagorno-Karabakh, although it officially belongs to Azerbaijan, has very little to do with the Azeri government.  This state of affairs is far from ideal for the de facto states and their populations.  Because they lack the official label of statehood, these entities are not able to participate in international affairs, lack membership in the United Nations and other most important international organizations, and cannot attract advantageous international investments.  Thus, they remain (except perhaps Taiwan) isolated, under-developed, poor, and prone to further violence.  They may also become puppets in the hands of more powerful states, which may use them to gain political advantage and which may, because of complex geo-political reasons, forever deny them statehood.

Only time will tell how the situation in Kosovo will develop.  As of now, the state of Kosovo remains dependent on the international community for the safekeeping of its borders, its ethnic balance, its politics, and its development.  If Kosovar Serbs accept this state of affairs, they may attempt to broker a deal for themselves – a sort of provincial autonomy within the larger Kosovar state.  If they do not and if they keep refusing to participate in the life of the new state of Kosovo, they may become a de facto state, hoping that some day they could be allowed to rejoin Serbia.  The European Union authorities have as of now convinced the Serbian government in Belgrade to support a single Kosovar state, but it appears that Serbs in Kosovo remain unconvinced that their future should lie within such a single, Albanian-dominated state.  As of now, meaningful integration between the two communities seems impossible, and at best, we can all hope for the preservation of peace and stability.