Kosovo: The Elusive Recognition of Unilateral Secessions

DUI - Référendum - Kosovo (17 février 2008), Soudan (janvier 2011)

On July 22, 2010, the International Court of Justice announced its advisory opinion on Kosovo's declaration of independence, specifically that the declaration did not violate international law. Some have wondered what this might mean for Canada and the Quebec separatist movement. I contend that the Court's ruling illustrates how difficult it is to secure international recognition following unilateral secession.
1. The context of Kosovo's unilateral declaration of independence
If Serbia accepted Kosovo's independence, recognizing this independence would present no problem at all. But because Serbia opposes it, such recognition is fraught with pitfalls.
And this despite the fact that the de facto break-up between Serbia and Kosovo could not be clearer. Nobody disputes that the Kosovar people almost unanimously aspire to independence - notwithstanding the complexities inherent in the presence of a Serbian minority. The Kosovars were victims of very serious acts of violence in a bloody civil war that killed many thousands. The Serbian authorities were thrown out of Kosovo's territory through the armed intervention of an international military force. Beginning in 1999, and for the next decade, the Serbian legal regime did not apply in Kosovo, which was put under international mandate.
In 2002, Kosovo's Assembly tried to declare independence but did not get the support of the UN Secretary General's Special Representative. In 2005, they tried again - with the same result. In 2008, however, the Secretary General decided not to object, and this provided the grounds on which the International Court of Justice based its recent conclusion that Kosovo's declaration of independence did not violate international law.
Why was the UN Secretary General quiescent in 2008? Because some UN member states - notably the United States - had declared openly for Kosovo's independence, considering it to be the only practical solution after years of fruitless negotiations with Serbia. Since reconciliation within the Serbian state was impossible, recognizing a de facto secession appeared to be the lesser evil.
2. An appropriate decision - with limited effect
Canada itself recognized Kosovo's independence in March 2008. As Leader of the Opposition, I had encouraged Prime Minister Stephen Harper to move in this direction. I was convinced that in the circumstances, it would be the right decision for Canada to make, and it would also be in accordance with international law. So the decision of the International Court of Justice should not have been surprising - although four judges did express dissenting opinions.
The Court's advisory opinion is fair and wise. And yet it is difficult to foresee the day when Kosovo can join the United Nations. A majority of nations are on Serbia's side. Russia and China have declared that they would continue to veto Kosovo's independence at the UN Security Council.
It must be understood that refusing to recognize Kosovo as an independent state is also entirely acceptable under international law and the International Court of Justice's advisory opinion. States may recognize Kosovo but they do not have to. Such a decision is subject to each country's own assessment of the situation.
The Kosovo situation showcases the strong reluctance countries show when called upon to recognize unilateral secession - even when the strongest case can be made for it: here was a population victimized by its parent state, overwhelmingly in favour of independence, and declaring it after a decade of de facto separation and countless proofs that reconciliation within the parent state was impossible. As Cambridge University Professor James Crawford remarked, in his expert report submitted to the Supreme Court of Canada in the context of the 1998 Reference on unilateral secession: "Since 1945 (outside the colonial context) no state which has been created by unilateral secession has been admitted to the United Nations against the wishes of the government of the predecessor state."
If countries are so clearly reluctant to recognize unilateral secession even as a last resort, and even with an extremely powerful case, it is because many do not want to encourage a path that may affect their own unity, and because secession may become an important contributor to international instability - with more than 3,000 human groups in the world conscious of a collective identity. In the words of former UN Secretary-General Boutros Boutros-Ghali: "It remains that if every ethnic, religious or linguistic group claimed statehood, there would be no limit to fragmentation, and peace, security, and economic well-being for all would become ever more difficult to achieve."
3. A lesson to be learned
If there is one lesson we can learn from Kosovo's situation - so different from ours - it is that achieving international recognition after unilateral secession is, to say the least, an extremely difficult task. During the 1995 referendum, Jacques Parizeau claimed that if the Yes side obtained a majority of votes, international law would force every Quebec citizen, the government of Canada, and other states to recognize Quebec's secession on the sole basis of a declaration of independence in the National Assembly. But as confirmed again in article 79 of the International Court of Justice's opinion, there is no such right to independence, except in cases of colonization or for peoples "subject to alien subjugation, domination, and exploitation".
It is clear that the government of Quebec would need the support of the government of Canada to secure international recognition as an independent state. In no way can unilateral secession be successful. It is in no one's interest - including separatist leaders - to perpetuate the myth of successful unilateral secession in the Canadian context. Separatist leaders must build their case on realistic and sound assumptions about the very process by which secession can be accomplished.
Why does our country recognize that it is divisible? Not because of any obligation under international law. Not because of any chance that other countries may recognize a Canadian province as an independent country against the will of Canada's government. Nothing exists in international law or international relations practices that would give any credibility to such an unlikely scenario.
The reason why Canada recognizes itself as divisible is that we cannot conceive that our country's existence could be based on anything else than the will to live together. If this were to be replaced with a will to separate, this would have to be expressed clearly and unambiguously. Only then could secession be negotiated within the Canadian constitutional framework, with a mind to ensure justice and fairness for all. That was clearly established by the Supreme Court in 1998, and by the Clarity Act that brought the Court's opinion into effect.
Around the world, there are more and more references being made to these two Canadian legal documents. In fact, articles 55 and 56 of the International Court of Justice's opinion refer to the Supreme Court of Canada's 1998 opinion. Increasingly, both texts are seen as showing an approach that is conducive to the pursuit of justice, fairness and harmony between peoples. Quebeckers - and all other Canadians - can be proud of our country's additional contribution to World peace.
Stéphane Dion is the Liberal Member of Parliament for St-Laurent-Cartierville.

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