Academic journal article Connections : The Quarterly Journal

Kosovo 1999 and Crimea 2014: Similarities and Differences

Academic journal article Connections : The Quarterly Journal

Kosovo 1999 and Crimea 2014: Similarities and Differences

Article excerpt

Introduction

Since the so-called Kosovo conflict of 1999 the views of states, including those of major players, have been divided as to whether it was a humanitarian intervention or the collective aggression of NATO member states. In 2014 the Russian Federation annexed Crimea and Sevastopol (formally separate entities) to its territory. Since then the argument has shifted and the current disagreement centers around how we should assess these two changes of territorial status quo (Kosovo and Crimea) in Europe. The situation is further complicated as states wish to present their actions as moral and legal (the general expectation is that they do so). This results in a situation where the dominant discourse is supposed to support the aspirations of states both in the east and in the west. The main effort of each party goes in countering the other's position.

It is difficult to get hold of a reliable set of facts, as these are presented selectively by the different parties. A further challenge arises in that different fields are not kept distinct from one another, and hence the legal and political analyses are often used interchangeably and with insufficient differentiation. This is aggravated by the fact that the so-called normative approach to international (and domestic) politics prevails in the analysis. Every state feels compelled to prove that it acts in full accordance with international norms, including legal rules and moral predicaments. However, any attempt to correctly analyze the change of the territorial status quo in the two cases mentioned above requires the contrary: keeping the different aspects strictly separate and only synthesizing the results in the conclusions.

In this article I endeavor to keep the legal analysis separate from the political and moral assessment and wish to state in advance that they do not necessarily manifest in the same direction. Moreover, when the topic of analysis is as politically heavy-loaded as the change of territorial status quo in Europe, the international legal assessment must be disaggregated further. Namely, there is the positive international law as it exists, de lege lata, as adopted by the states or as it appears as jus cogens. There is also international law that does not exist, yet about which we speak as de lege ferenda with a view to its future evolution. Such differentiation will be particularly relevant in this case due to the swift evolution of norms in the area of humanitarian intervention relevant as point of reference in the case of Kosovo and the ambiguous content of the right to self-determination in the case of Crimea.

International law has a further characteristic feature. Namely, its development cannot flexibly follow historical changes. This is particularly noticeable when major historical changes occur at a rapid pace. This was the case before and during World War II and more recently as the Cold War came to an end. The international system changed and international law in some areas did not follow. The gap between the international system and international law, where the latter forms part and parcel of the former, has widened. Furthermore, universal international law most often requires the consent of states in various regions of the world. This presents a challenge as states often profess different values and their value judgment serves different interests.

It is the puipose of this article to present the legal situation that underlies the two cases, the position of the main actors, and attempt to draw separate conclusions as regards the assessment de lege lata and de lege ferenda.

Legal Perspectives

International law is extremely restrictive insofar as territorial changes in the international system are concerned. This is fully understandable given that the foundation of the system is the existence of sovereign states. State sovereignty is established on a given territory. As sovereigns are obliged to respect each other's territory, territorial change can only occur with the consent of the state that practices sovereignty over it. …

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