In reading the Wikipedia article on Kosovo independence precedent, one thing I noticed is that it treats the Kosovo situation as a precedent. This is surprising to me because there’s obviously a precedent-to-the-precedent in the Confederate States of America (CSA), which also attempted to declare independence against the will of the original country. Funkily enough as well, the CSA’s declaration met a very different fate internationally from Kosovo’s declaration.
Did anyone of the era cite the CSA as an example for why Kosovo should not be allowed to become an independent country? Alternatively, did anyone cite reasons why the CSA’s declaration of independence should not be taken as a precedent for the Kosovo situation?
I’m looking for something similar to the multiple comparisons I’ve found for Kosovo’s declaration of independence and Crimea’s declaration of independence (e.g. this). I couldn’t find anything from a simple search.
The difference is that while Kosovo broke away from a country which had tried to exterminate its inhabitants, the slave states broke away so that they could continue to enslave some of their inhabitants.
As some repondents have pointed out, whether a breakaway or revolutionary state is considered legitimate depends on only
- whether foreign countries are sympathetic to the breakaway and its goals
- whether the breakaway can actually control the territory it claims.
Ultimately only #2 matters. But lots of #1 can get you to #2.
To take most well known example, many aristocrats in Britain favoured the slave states and influenced British foreign policy to help them. But efforts to recognise them as a legitimate belligerent were foiled by, among other things, public opinion, which in Britain was strongly opposed to slavery.
The extent to which right and wrong influences foreign policy – i.e. less than primarily but more than negligibly – explains why Kosovo gained recognition but the slave states were denied it.
‘Precedent’ is a more or less meaningless word in international relations. Don’t make the mistake of thinking that international relations are governed by any kind of set rules or that international law is like law in any meaningful sense.
Countries – some countries – may subscribe to international law, but that essentially amounts to mutual voluntary agreements. Nations agree in certain acceptable behaviours on the basis that the stability and predictability it brings outweighs the occasional limitations it requires on acting in their own interests. But this is only enforceable in the sense that the political or economic (or military) consequences would be worse than compliance.
The point is that regardless of ‘international law’ , countries are free to act in their best interests, weighing what they can get away with in terms or their own public opinion and relationships with other countries.
In that light, the idea of ‘precedent’ here is nothing like the legal term. It has no legal force, because there isn’t really any such thing as law, certainly not in an enforceable sense. Instead international precedent basically boils down to “this is the kind of way we’ve acted in the recent past, so it’s a useful guide to how awe might act in the near future”. In the question’s link to the Wikipedia article, you can see the arguments in this light. It is really just nations arguing that that do/don’t like this kind of thing, not any kind of legal argument.
Precedent is a useful guide to how nations are likely to act in the near future, because as a rule the interests and values of a nation only change slowly over time. How one acted 20 years ago is unlikely to be radically different to how it would act now. Plus there is the additional factor that many people directly remember what was done 20 years ago, and there are now likely to be negative consequences for hypocrisy and double standards.
Conversely, most nations are rather different to how they were 100 years ago, in terms of national interest, common values and concerns (the things that drive the choices nations make), and the state of the world changes a lot on that time scale. How a nation acted 100 years ago doesn’t tell you a whole lot about what it will do now.
So the reason the CSA precedent had no bearing on the Kosovo situation is partly because if was a long time ago in a different context, but mostly that none of the countries driving events had an interest in bringing up the comparison: that wasn’t what they wanted to achieve. And 50-100 years from now, Kosovo will still have precisely no bearing on what happens in similar situations. It will once again be driven by the interests of the nations with the greatest ability to force events to their liking, and any use of precedent will at most be used to offer justification for what they were going to do anyway, or ignored if it is inconvenient.
The precedent the article talks about is that Kosovo was recognized as an independent state by major powers very soon.
No country ever recognized the Confederacy as an independent country.
Let’s be clear about what happened with regards to Kosovo. In 2010 the International Court of Justice issued an advisory opinion at the request of the United Nations General Assembly. The key conclusion of this opinion was that “international law contains no ‘prohibition on declarations of independence‘.” This is not based on any historical precedent, just the letter of international law. It is also very different from saying that international law protects declarations of independence in a positive sense. Multiple scholars of international law have raised concerns that the advisory opinion will encourage independence claims. Its not at all clear that this has happened in practice.
There have been many unilateral declarations of independence before Kosovo. Some of these, unlike the Confederacy, were actually successful in gaining international recognition. The International Court of Justice makes no substantial reference to any of these historical precedents in its advisory opinion.
Political power grows out of the barrel of a gun
When NATO (led by US) started intervention against Federal Republic of Yugoslavia in 1999, they simply had no equal match in firepower and economic power, especially in that part of the world (SE Europe) . Although many countries and individuals doubted their reasoning and causes for war (and those doubts are growing even today), none could do much about it except organize protests, sign petitions etc… Countries that did not support intervention (and still today do not recognize independence of Kosovo) like Russia, China, India etc … did not have enough strength and interest to do something concrete about it. All they could is offer verbal political support, and trough diplomatic fight arrange a comprise in a United Nations Security Council Resolution 1244, which legalizes occupation of Kosovo by NATO forces but also confirms that Kosovo is still part of Yugoslavia. Note that when Western countries & allies started recognizing independence of Kosovo from 2008 onward, this resolution served as a sort of shield for countries that refused to do so. Diplomatic fight over Kosovo is still raging, with some countries revoking recognition, but more on that later.
What about CSA ? In a diplomatic sense, they were in a worse position then FRY . Although more evenly matched towards US in terms of firepower, they were not independent country prior to war. There were countries that were sympathetic to them, especially Britain and France, but those two didn’t find enough reason to go to war over it, although intervention was pondered. Note that all of this happened after bloody Crimean war (1853-1856), Prussia and France were sliding towards major conflict (happened in 1871), UK was involved in smaller colonial conflicts at that time etc … Intervention would certainly force British and French navies against USN which was growing power at that time and close to home. It would also open front in Canada, possibly invite Russia to intervene in US favor (they had good relations then, and wanted to avenge loss at Crimea) etc … Therefore, when intervention didn’t materialize, all of these countries took wait and see approach. Since CSA lost the war, they simply acted as it never existed.
In a political sense, problem of Kosovo is an old problem of might vs right. Countries that do not have hard power (guns, money …) usually attempt to advocate rule of law, rights etc … And usually it is less effective. Countries that do have hard power simply find excuses (in case of Kosovo supposed atrocities) to do what they want. Then they call it a precedent. Ironically, when balance of power shifts, that precedent could be used by other countries in a similar manner – one example is Russian takeover of Crimea. US could protest against that, but there is little they could do on the ground, same as Russia could not stop US in 1999 over Kosovo. On a world stage, power of US is slowly but consistently dropping since 1999. This affects Kosovo – as mentioned before, some countries did revoke recognition. Considering current COVID-19 recession, and worsening of China-US relations, question of Kosovo would depend on who emerges victorious from all of this, and not on some supposed moral principle.