Thursday, February 09, 2006

Reply to Letnar and Cvijic

In the, more or less, interesting exchange of arguments on the future status of Kosovo between my dear friend Jernej Letnar and dr. Srdjan Cvijic the authors seem to have succumbed too much to their feelings and have hence omitted a couple of important things and committed a couple of strange mistakes.

First about the methodology of the discussion: Letnar is being accused of pursuing moral analysis of international law, while Cvijic's analysis is purportedly a factual description and thus, we suppose so, an objective one. Yet, how in the world could that be? Both of the analyses are legal analyses and both are normative, despite the fact that Civijic is claiming factual descriptive approach. This is so, because there is no per se meaning of international law, as there is no per se meaning of any social concept, therefore factual analysis is normative as well.

Once we are aware of this, we have to ask which author has better justified his normative position, i.e. whose interpretation of international law on right to self-determination is more coherent with all things considered.

Cvijic's main argument is that there can be no exercise of right to self-determination within an existing state if the majority does not express its consent to the self-determination aspiring minority. Letnar's argument in turn is that this can not be so, if the majority violated fundamental rights of minority who therefore, out of this very reason, gains their right to self-determination as a result.

Both arguments are skewed, but Cvijic's more than Letnar's. For the following reasons: Cvijic's claim is simply pure contradictio in adiecto and denies the very essence of the right to self-determination. The minority which fulfills the conditions for the right to self-determination has the right to self-determination without the need to search for a consent from anyone, especially not from the majority from which it would like to separate itself. To allow the majority to decide on the fate of the minority in the issue of the right of self-determination, which is in other words the issue of the very existence of minority as an aspiring nation, is a fundamental denial of principle of equality (those who are less affected, decide on behalf of those whose very essence is in question). And once the right to self-determination is established it counts as ius cogens and erga omnes – it is inviolable and has to be observed by everyone (including the majority which would in Cvijic's view have the right to veto) and can be even claimed by a third party in favor of the minority-party whose right to self-determination is breached. (East Timor case).

However, the core question which needs to be posed is: what are the conditions for the existence and consequent exercise of the right to self-determination? It is at this point that Letnar's argument comes in. A persistent breach of the fundamental rights of the minority by the majority is certainly a compelling argument towards the fulfillment of conditions, but certainly not the only one as the practice all around the world shows. Community which claims the right to self-determination has to fulfill certain objective criteria: they have to be perceived by themselves and by the world as the people, the nation, this is fulfilled by the common history, language, culture… They have to live on the particular territory in an organized and united way – presumably being a majority of the inhabitants. They have to exercise control over the territory, etc, etc. If this territory is a part of the larger state structure where the majority in the entire state (as opposed to this particular territory) has for a very long time breached their fundamental rights – just because they are a different ethnic group – then this is another compelling reason towards fulfillment of conditions of the right to self-determinations, as I have already stressed.

Let us, finally, see if Kosovo and its people, the Albanians, fulfill these conditions. In my view they clearly do: they are particular ethnicity, with their own language, culture, history, etc. They are perceived as such by themselves as well as by the Serbs and the rest of the world. They form a big majority in a clearly defined territory, which is under their de facto control. They exercise local government, they have schools, universities. They have had all these for decades now. In fact and a fortiori they were even recognized as an autonomous region within Serbia in the times of YU which just strengthens their case. This autonomy was abandoned against their will in the time of Milosevic's totalitarian regime. But this was just an apex of the violations of their fundamental political as well as human rights that have lasted since the mid 80s (and were one of the reasons for the collapse of YU as such).

Having said that, in my normative view based on the coherent analysis of legal and factual practice there is not a single shadow of a doubt that Albanians in Kosovo have fulfilled the conditions for the right to self-determination. Serbia can have no say on that, if the right to self-determination is destined to have any sense.

But of course, for the pragmatic, political and long term stabilitiy reasons it would be good if the parties actually reached an agreement on the technical view of the exercise of this right. I guess all the three of us: Letnar, Avbelj and Cvijic would agree that this would be the best for the stability and peace in the region. Though, this is a very different issue from the one whether Kosovars have the right to self-determination and if Serbia should have a veto on it.

Maybe we all could also agree on that?


At 12:17 AM, Blogger Euan MacDonald said...

This comment has been removed by a blog administrator.

At 12:26 AM, Blogger Euan MacDonald said...

This, I think, is a useful contribution to the debate; i would, however, like to note one thing that, I think, Srdjan was getting at, and has been overlooked in all responses placed on this page.

The international human right of peoples to self-determination is, in legal terms, beyond doubt. It exists for all peoples fulfilling the requirements helpfully laid out here. I think that one area of agreement between all protagonists here is that the Kosovars constitute a "people" within the framework of international law.

Of crucial importance here, however, is not whether the Kosovars have the right to self-determination (they do), but what that will mean when operationalised in practice. It is quite simply an error to equate self-determination with secession and independence. Moreover, it is the progressive advances of the last twenty or thirty years that make this so; when the concept was first introduced, in the context of decolonisation, independence was envisaged. The decision, however, to extend the right to all peoples, not just colonised peoples, meant that this would, of course, have to change.

This is perhaps the central point that I want to make: far from being outdated, it is Srdjan's understanding of the concept of self-determination that best reflects the developments in the law in this field in recent years. He perhaps overstates the point in insisting that the Serbs have a legal veto; it seems to me that the famous Canadia Supreme Court case on this issue retains a high degree of authority. That case basically found that the right to self-determination did not require secession and independence, but if a democratic majority of a people requested such action, then the politicians of the larger state were obliged to take it into consideration. In the context of normal democratic politics, this was all the law could say; the rest must be left to the play of the political.

There remains the question of whether the gross human rights abuses perpetrated by the Serbs against the Kosovars creates, as seems to be the suggestion here, an automatic right of external self-determination. The answer, I think, is that it does, for as long as the crisis situation holds. The rationale behind this is simply that, if gross human rights abuses are being perpetrated on a people, then their right to self-determination is clearly not being respected - as no people would choose that fate.

Srdjan makes an important point, however, when he notes the advances made by Serbia in terms of transition to democracy. It is simply no longer the case, as it was under Milosevic, that the only way that the Kosovars can have meaningful self-determination is through secession; a regional autonomy scheme could discharge that obligation.

All this to conclude: as things stood in Kosovo before NATO's intervention, there was perhaps a case to be made that the Kosovar's had the right to secession from Serbia. Now, in law they have no such right; only to have their wish, if it be so, taken into consideration by the Serb government (and to actual meaningful autonomy short of independence). It is simply no longer the case that only independence can guarantee them meaningful self-determination; and the law stops there. And make no mistake; it is the recent developments in the law of self-determination, which make it quite plain that secession is only to be mandated in the most exceptional circumstances, that necessitate this conclusion.

What happens as a result of political, rather than legal, reality is, of course, an entirely different matter.

Apologies for the overlong comment.

At 8:05 AM, Blogger Matej Avbelj said...

Indeed, at this point I have to endorse Euan's point who actually just restated in a much more eloquent way what I called technical aspect of the righ to self-determination.It seems that all together we managed to solve the Kosovo conundrum. All in all it was a great debate. Certainly a pleasure.



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