In this article the author doesn’t question the legality of Kosovo’s independence –which most experts consider illegal- but rather argues that Spain should accept the fait accompli – what’s done is done. I see a few problems with that.

First, recognising Kosovo at this point would be seen as admitting that the initial refusal had nothing to do with international law but rather with internal politics. Mr. Zapatero knows better.

Second, it is a very hard case to argue that the deed doesn’t create a precedent. Precedents do have an important role in international law and if we are about to change the rules, then the new rules will apply equally to all situations. By accepting the unilateral decision of Kosovan authorities against the will of Serbia, the EU is damaging its own doctrine of multilateralism. Among other consequences, we can now observe that the recognition of Kosovo has severely weakened the EU’s position vis-à-vis Russia regarding Abkhazia and South Ossetia.

Third, the recognition of Kosovo sends the wrong signal: societies with historic ethnic rivalry cannot live in the same state. This new principle contradicts previous EU international policy –see the tremendous efforts of the EU in Bosnia- and could have disastrous consequences in multiethnic and unstable states, such as many African countries.

The author is right when he argues that Spain’s position has damaged the unity and coherence of the common foreign and security policy (CFSP). However, that two thirds of member states have recognised Kosovo doesn’t mean that they are right. Maybe we could also consider that it is those countries –and not Spain- the ones damaging the CFSP.

A few points to this comment. First, the unity of the CFSP was broken a long time ago by UK and other countries under conservative rule when they signed the letter of the 8 supporting US intervention in Irak. Secondly, the UN SC Resolution 1244 is the legal framework for Kosovo and not as mentioned the Ahtissari Plan which was conditional to the independece if certain benchmark could be fulfilled, such a new resolution. Thirdly, International Law cant be bent to the will of 2 leading countries in the Balkans, US and UK cant dictate rules following the outcomes of IIWW. Forthly, the reality in the field is completly different: the independence claim was not supported nor even completed with a referenda, particularly due to the last elections in Kosovo participation by 45% of the population. LDK and PDK/AAK positions are completly differents. LDK since the first elections in 2001 was confronted by a radical independence claim from PDK/AAK which was the one chosen by the US/UK policy line. LDK was marginated and their moderate approach was undermined with threats and violence. Therefore, Kosovo could deserve independence but not in a descolonisation way as in the 60,70s. To me, the author follows a nationalistic way to express desire to have a state, self-determination and soveraignity which is an aim for realist possitions based on objectivist approach to IR. However, Kosovo is a very complex society and at least, one who has lived there for a while can see a different patern than those poping up to gather data for content analysis. To me, this article belongs to a XIX conservative idealism of granting status to nations in function of ethinicity, religion or cultural differences. This is not the path as it has been shown through the history.

On the precedent, see the following comment in Blogeuropa.eu by my colleague Nicu Popescu

http://blogeuropa.eu/2008/03/04/the-kosovo-precedent/
THE KOSOVO PRECEDENT

Nicu Popescu

March 4, 2008

The declaration of independence by Kosovo restarts several fundamental debates in the international relations - ranging from the principle of territorial integrity of the states to Russia’s place in the European security system. But the most delicate political discussion for a series of states affected by secessionist strife is the so-called ‘Kosovo precedent’. In reality yet, we have not one, but several Kosovo precedents.

Is Kosovo a precedent?

Kosovo will be a precedent as long as many relevant political players, in Abkhazia, Transnistria, North Cyprus, Russia or in Moldova, believe that Kosovo is a precedent. The European Union member states (Cyprus, Spain, Romania, Greece, Slovakia) that do not recognise Kosovo’s unilateral declaration of independence implicitly categorise this situation as a precedent. For other international political players, Kosovo is not a precedent. We cannot have absolute truth in such situations. So, some of the governments consider that the proclamation of independence by Kosovo is a precedent, while the others do not. Such debates will go on for many years. What is important is to provide arguments to limit the applicability of this precedent to Moldova.

Why Kosovo?

Moldova must not automatically accept only Kosovo as a precedent to be discussed. There are four types of precedents in the Balkans: 1) forced reunification of a state by the international community according to a confederation model that becomes centralised gradually (Bosnia); 2) resolution of a dispute by decentralisation, but preserving a single unitary state (Macedonia); 3) division of a republic with the consent of the central authorities (Montenegro that separated from Serbia with its consent), 4) unilateral separation recognised internationally without the host country’s consent (Kosovo). Thus, Kosovo is one of the four Balkan precedents. Why Transnistria or Abkhazia should follow the fourth model and not the first, second or third is a long discussion.

How many Kosovo precedents?

In fact, Kosovo sets several precedents. Some of them suit such breakaway regions as Abkhazia and Transnistria, while the others do not. Kosovo for instance is a precedent for a region that moves towards independence as international protectorate governed by the UN, with NATO troops (accepted by Serbia under the Kumanovo Agreement of June 1999), in which the elections are organised by the international community. Kosovo has been governed by the UN between 1999 and 2008. It became formally independent only now, but in reality it will be governed de facto by the EU for many years on. Several years ago, one could not say with certitude whether Kosovo would become independent or not. A relevant decision was made not in 1999 or 2001, but recently, after many years during which Kosovo had been in fact an international protectorate.

The application of these Kosovo-inspired ‘precedents’ to post-Soviet conflicts raise the following questions: is Russia ready to accept an international protectorate for Abkhazia, or NATO troops in South Osetia or Transnistria (albeit together with Russian troops)? Is the government headed by Igor Smirnov ready to accept rerun elections in Transnistria (during 8-10 years) organised by the OSCE? Are Transnistria or South Osetia ready to be governed by the EU or the UN for 8-10 years before considering granting independence to them? The answers to these questions would make many in Moscow, Tiraspol or Sukhumi drop the issue of Kosovo’s precedent. Russia, in particular, would not accept such an application of the Kosovo precedent because it would lose its influence on South Osetia, Abkhazia and somehow Transnistria.

Another Kosovo precedent is the conditional independence when the region moves towards independence after implementing standards of government (functionality of the institutions) and protecting the rights of the minorities. The Serbs in Kosovo are in a difficult situation. But in the case of Abkhazia or Nagorno-Karabakh, the return of Georgians or Azerbaijanis is out of the question, only if after the recognition of independence. If the Georgians come back to Abkhazia, the Abkhazians would become a minority. The fundamental demographic dilemma of the Abkhazians is: “Will we be recognised if we become democratic. If we become democratic we will have to accept the non-discriminatory participation of the Georgians in the political system and, as a result, we will become a minority. Therefore, we cannot democratise ourselves and this would reduce out chances of being accepted by the international community.” The conditional independence as one of the Kosovo precedent’s elements does not solve the Abkhazians’ problem.

Kosovo precedent and the post-Soviet conflicts

The Kosovo precedent is the international recognition of the unilateral separation of a region in which the absolute majority of an area’s population was subjected to ethnic cleansing by the host country (Serbia). The key element of this precedent is the ethnic cleansing and not the secession. The ethnic cleansing was recognised by the UN Security Council. Neither Abkhazia, nor South Osetia or Transnistria had the demographic realities of Kosovo (the demographic situation in Nagorno-Karabakh was similar to Kosovo’s). Transnistria and South Ossetia did not even intend to resort to ethnic cleansing (by about 1,000 people died in both conflicts). In Abkhazia, the Georgians were the main victims of the ethnic cleansing (before the conflict, the Abkhazians made up 18% of the region’s population, while the Georgians 48%), and there were a lot of war crimes. There are no similar secession-related conflicts in the world.

Global effects?

It is often invoked that the Kosovo precedent affects a number of European states or Canada for instance. These parallels have a good propagandistic effect, but are somehow far from the reality. If we speak about Northern Ireland and Quebec, the British or Canadian states have long ago accepted the principle that, if the majority population in these regions votes in favour of separation, it will be accepted. The UK accepts the same principle in relation to Scotland. But these regions do not have pro-independence majorities (Quebec held two referendums and the people voted against separation from Canada in both). Spain’s Catalonia also does not have a pro-independence majority. In Belgium, the separation is accepted in principle (not necessarily wanted) by both of the communities (where the Flemish majority of the country apparently intends to separate from the Walloon minority). Rather probably, Kosovo will be a semi-recognised state as Taiwan. But in this case, Kosovo would provide nothing new, as it would confirm the “Taiwan precedent” instead of setting a new one.

My colleague from ECFR Jose-Ignacio Torreblanca defines the Kosovo precedent as follows: “Kosovo’s independence is a precedent for those that resort to ethnic cleansing or genocide or do not observe the fundamental human rights. This is not a precedent for the democratic states. Only the Serbs are responsible for Kosovo’s independence, not the Americans or the Europeans. We must not get impressed by the arguments extracted from the international law. These arguments are regularly invoked by those that frequently break the international law by not honouring the international commitments to protect the human rights they assumed.”

Chisinau promotes the Kosovo precedent

The proclamation of independence by Kosovo has been expected for 2-3 years. Chisinau had only an improvised and impetuous reaction. Moldova must react calmly and its position must clearly delimitate the states that resorted to ethnic cleansing (Serbia) and the ones that did not (Moldova). Moldova made the opposite. The Parliament’s statement on Kosovo says that the created situation “directly contributes to separatism, one of the major dangers of the XXI century, leads to the escalation of tension not only in the Balkans and in whole Europe, but in a number of regions of the world.” In essence, instead of differentiating between the Transnistrian conflict and the Kosovo precedent, the Parliament’s statement treats all the separatist regions of the world, including Transnistria, as similar. In addition, the statement accepts the Russian-Abkhazian-Transnistrian definition of the Kosovo precedent. This thing can be easily avoided by invoking the abovementioned arguments and extending the definition so as to make it unacceptable in Tiraspol or Moscow. Georgia’s reaction for example was calculated, justified and prepared beforehand. Saakashvili said: “There is a big difference between the situation in Kosovo and in Georgia. The Kosovars are themselves victims of ethnic cleansing, while in the breakaway regions of Georgia it was the separatist authorities that resorted to ethnic cleansing”. Instead of condemning all the separatist regions, he pointed to the key reason that led to Kosovo’s independence, which is not relevant to Georgia (and Moldova).

Kosovo: beginning of a debate

In order to avoid the so-called Kosovo precedent, we must re-discuss first of all the definition of this concept. Kosovo’s independence sets not one, but several precedents. Many aspects of these precedents would not be accepted by Russia or the ex-Soviet separatist regions. The unilateral secession (the precedent invoked by Russia) is a reality, but practically all the ex-Soviet separatist regions are very far from the realities that propelled Kosovo towards independence. Anyway, the essence of the Kosovo precedent will be discussed for many years on. But this discussion has much more shades than Russia or the existent secessionist regions try to demonstrate. Moldova or Georgia can use many of the elements of the Kosovo precedent to promote their interests. For the time being, the Kosovo-related political messages from Chisinau go in the wrong direction. They suggest inexistent parallelism between Transnistria and Kosovo.-

http://www.policy.hu/npopescu/

3) division of a republic with the consent of the central authorities (Montenegro that separated from Serbia with its consent)

Mr Torreblanca - please pass my comment to Mr Popescu.
First of all - Montenegro did not set any precedan. I explained in the above comment why. Since it was a state with its right to renowe the sovereignity and not to “separate from Serbia”. If he wants to pretend to be an expert - he should be aware of this difference (especially since he’s coming from the Balkan region).

Second - cases of BiH and Macedonia were not also precedents. They were both examples of pacifications of country inner crisis, imposed by the foreign factors which kept the country within the official country boundaries.
Kosovo is and act of secession from UN recognized country.

Mr Popescu - is any additional explanation needed?