by Kennedy Applebaum
June 30, 2015
Political analyst Pavel, in an excellent discourse on the legal aspects of the so-called Kosovo Precedent, as applied to the Unilateral Declarations of Independence (UDI) of the Donetsk and Lugansk People’s Republics, points to the possibility that all United Nation member states are bound and obliged to recognize the independent sovereignty of the two Novorossiya Republics. Pavel, however, claims there’s a catch. He concludes, as do certain other scholars, that the Kosovo precedent may not apply to Donbass after all.
Quemado Institute disagrees. We see a flaw in the reasoning of these scholars, and show that the Kosovo Precedent does in fact apply, opening a path to worldwide recognition of the Donetsk and Lugansk People’s Republics as independent nations. I first present Pavel’s analysis, omitting a short later section not directly relevant to the argument. After that, I offer my own commentary.
The Kosovo Precedent and What It Means
for Donbass and the Rest of the World!
Espresso with Pavel
June 26, 2015
A Precedent is in most legal systems a binding ruling by an authorized Higher court which sets a framework for future cases with identical or at least very similar conditions and circumstances. Most published Precedents consist of the ruling itself and a detailed explanatory annotation to how and under which conditions this ruling should apply to future cases. A formal Precedent is seen as the application of the applicable laws and rules to a particular combination of conditions and circumstances. In future cases, the parties involved can plea to have this Precedent applied to the case at hand, or of course, argue that conditions and circumstances differ to the extend that this Precedent should not apply to this particular case.
In principal, a Precedent is valid until it is either overruled by a higher legal authoritative institution or when a Precedent is developed which specifies further conditions and circumstances to which it should apply. Depending on the legal system, the authoritative value Precedents can vary but most countries only accept rulings by Higher Courts as binding authoritative Precedent, referred to as Case Law. Rulings by Lower or Common Courts can be applied to similar cases but have no binding authoritative value, meaning that they are not binding for the Courts.
Beside the legal way of creating and applying Precedent Rulings and Cases, there is also the practical variation of Precedent Cases. In such practical Precedents, there is no actual ruling by a Court on the particular case. What is referred to as the Precedent is the mode of operation, actions and activities or lack thereof by a certain party under certain circumstances and conditions which would, following the principals of the Legal application of Precedents, also apply to other parties which conducted in the same manner and under the same or similar conditions and circumstances. Although such practical Precedents are not documented and annotated, it is common practice to argue that when Party A can or can not, then Party B can or can not as well under the same conditions.
What is commonly referred to as the “Kosovo Precedent”, actually consists of 3 components:
– The advisory opinion on the Unilateral Declaration of Independence by Kosovo by the International Court of Justice.
– The practical Precedent created by the deployment and use of foreign military force to implement the Unilateral Declaration of Independence by Kosovo.
– The practical Precedent created limiting the jurisdiction of the responsible Tribunal to the native forces, individuals and authorities involved in the conflict and thereby excluding the foreign forces involved in the conflict from the jurisdiction of the responsible Tribunal.
Precedent on the Unilateral Declaration of Independence by Kosovo
In its advisory opinion, the International Court of Justice, a binding authoritative Institution for all members of the United Nations, the ICJ came to the conclusion that the UDI of Kosovo is not prohibited by International Laws or Treaties and thus is to be accepted by the international community and the members of the United Nations. This Precedent on UDI in relationship to Kosovo has far reaching implications for all countries which have either internal disputes between regions and ethnic population groups or, as is also the case in Ukraine, have historical roots which are not reflected in the current territorial environment and constitutional instruments. Especially in such cases as we have seen in the former Yugoslavian Republic and see now in Ukraine, the ICJ explicitly ruled that a UDI is an applicable instrument to declare independence and form a new state within the boundaries of an existing state.
As argued in an earlier post (The road to independence), such Unilateral Declaration of Independence and the following necessary proceedings are a valid instrument for declaring a new state within the current territory of Ukraine. Either jointly as Donbass or Novorossiya, or independently as DPR and LPR, the Kosovo Precedent on the UDI determine that these regions of Ukraine are entitled to declare such independence and are entitled to have this independence recognized by the members of the United Nations. This Precedent also explicitly determines that the ruling authoritative body for an UDI is the International Court of Justice and not the local governing Constitutional body which in almost all cases would rule against such UDI within its own borders.
Precedent on the use of force by foreign powers in the case of Unilateral
Declaration of Independence
Several NATO countries have chosen to deploy military force within Kosovo and towards Serbia / Former Yugoslavia to enforce the implementation of UDI as it was declared by Kosovo. With this, it is very important to understand that the use of force by foreign nations occurred years before the ruling of the ICJ on the legal basis of the Kosovo UDI. Although there is no legally binding ruling on this use of force and therefor this is a practical Precedent, it does however provide a case in which other countries or unions could decide to deploy and apply military force to enforce the implementation of an UDI within another country.
The practical Precedent of applying military force by NATO in Kosovo and Serbia to enforce the Kosovo UDI, creates a Precedent in which the Russian Federation, but for example also China or Chechnya, could deploy and apply military force on Ukrainian territory to enforce the Unilateral Declaration of Independence by DPR and LPR and other regions which have voted by Referendum to declare independence from Ukraine. Even bombardments of positions, supplies and infrastructure well within Ukrainian territory would be “allowed” when following the practical Precedent created by this strategy of NATO forces in Kosovo and Serbia. As we all know, NATO countries still have large military components stationed in Kosovo which would authorize countries which would decide to act on the UDI by Donbass or DPR and LPR to also station military components for a longer period of time in these regions.
There is however a pitfall in the comparison between the situation and circumstances in Kosovo and those of the self-proclaimed republics in Eastern-Ukraine. As several scholars, including myself, have argued during the 2012 Yalta Conference, the Precedent on Kosovo explicitly applies to the formation of an independent country within the borders of a country by an UDI. The Precedent as such does not provide a framework for the seceding of territory from one country to the next country and this is however what the self-proclaimed republics within Ukraine have stated as their intention: secede from Ukraine and join the Russian Federation as part of Russia.
This difference does also shed a different light on a role of Russia in enforcing the UDI of Novorossiya or DPR and LPR. When the ultimate objective of the UDI is, as was stated by authorities of both self-proclaimed republics, to secede from Ukraine and join Russia, there are adequate arguments to plea that Russia is not supporting the UDI for reasons other than to extend its territory by the regions of Ukraine which have decided to secede the Republic and its Constitutional powers. As stated earlier, under these conditions and with these objectives of the parties involved, there are even adequate arguments to plea that the Precedent on Kosovo does not apply to self-proclaimed republics in Eastern-Ukraine.
Maybe we will discuss the “Novorossiya Precedent” a few years from now, maybe there will be a ruling by the ICJ that the Kosovo Precedent does apply to Novorossiya and its self-proclaimed republics. Maybe there will be an entirely different outcome but one thing is for sure: the conflict will continue to cause casualties under the civilian population until there is a solution, either by political means or by force. The legal details will be sorted out in the court rooms and that brings me to the next and very concerning Precedent from the Kosovo case.
[Editor’s note: for conclusion of Pavel’s analysis see source.]
Kosovo a Valid Precedent for Donbass:
Comments on Pavel’s Analysis
by Kennedy Applebaum
I would like to argue a fine point in favor of the DPR/LPR Unilateral Declaration of Independence and the applicability of the Kosovo precedent. Pavel says, “There is however a pitfall in the comparison between the situation and circumstances in Kosovo and those of the self-proclaimed republics in Eastern-Ukraine…. The Precedent as such does not provide a framework for the seceding of territory from one country to the next country and this is however what the self-proclaimed republics within Ukraine have stated as their intention: secede from Ukraine and join the Russian Federation…”
I disagree that the Donetsk and Lugansk People’s Republics’ “intent to join Russia” is relevant to the case. The referendum held in Donbass on May 11, 2014, was a unilateral vote for independence. It was not a vote to join Russia, and there was no wording on the ballot about joining Russia. At the time, there was a common misconception that the people were voting to become part of the Russian Federation. This misconception arose because of the similarity with the Crimean situation. However the DPR/LPR authorities, although admitting they wanted to join Russia, had said they would postpone that step in the referendum process until after Russia had agreed to accept them. This never happened. The issue of being incorporated into Russia is therefore moot.
The unilateral independence vote of May 11 defines the status as it stands today. Furthermore, DPR officials declared independence in the DPR People’s Council in the fall of 2014. (I believe, but cannot state with certainty, that the same process occurred in the LPR.) This was a unilateral declaration of independence. Even if the DPR/LPR leaders had stated a desire to join Russia, without Russia’s consent, the statement has no legal standing.
Since Russia refuses to accept the Donbass Republics, their desire to be part of Russia is irrelevant. What stands is the DPR/LPR unilateral vote for independence and their unilateral declaration of independence. Therefore the Kosovo precedent is valid.
Enemies of Donbass independence might argue that the May 11 referendum is of doubtful legitimacy, since certain international bodies refused to monitor the elections. The elections were however witnessed by a number of foreign observers, and the election authorities made every effort to establish proper monitoring.
In any case, regardless of the past, the DPR/LPR now have at their disposal a path to independence via the referendum and declaration process. They can choose to take this path at any time. How UNSC Resolution 2202, which mandates compliance with the Minsk 2.0 Agreements, would interfere with the application of the Kosovo Precedent is a question I cannot answer. Nevertheless, Minsk 2.0 is due to expire, and no doubt will perish as a binding UN instrument.
That would be the time for earnest pursuit, via the Kosovo Precedent, of internationally recognized Novorossiya sovereignty. Of course, the Donetsk and Lugansk People’s Republics must be prepared to stand alone, as countries in partnership with, but not included within, the nation of Russia.
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