When South Africa takes over leadership of the United Nations Security Council next month it faces a decision which could have far-reaching consequences for Africa: whether to recognise Kosovo's recent declaration of independence. For although the issue concerns the former Yugoslavia, recognition of Kosovo could set a precedent for secessionist movements elsewhere. Leaza Kolkenbeck-Ruh of the South African Institute of International Affairs examines South Africa's choices.
One of the many challenges that South Africa faces as it resumes the presidency of the UN Security Council in April is how to deal with Kosovo.
Nearly a decade after NATO's bombing of Serbia to halt that country's violent repression of Albanian Kosovars, Kosovo unilaterally declared independence in February this year. This ended the uncertainty over Kosovo's status that has existed since it became a UN protectorate in 1999. However, while many states which have recognised Kosovo argue that this is not a precedent for other regions harbouring secessionist ambitions, the case is not tightly sealed.
Kosovo's population is predominantly Albanian (88 percent); the small Serb minority has shrunk even further since 1999 and is concentrated in the northern part of Kosovo. Serbs have emotional links to Kosovo, which has been regarded as the historical nucleus of the Serbian state dating back to the 12th century. Kosovo was an autonomous region of Yugoslavia before the break-up in 1991, but not a republic like Croatia or Slovenia.
In terms of the 1974 Yugoslav constitution Kosovo did not have the explicit right to secede from the federation. However, Kosovo has argued that its autonomous status, which granted rights and responsibilities similar to those of the republics, gave it an implied right to secession.
In March 2007, the UN special envoy on Kosovo, Martti Ahtisaari, unveiled a plan meant to determine the final status of Kosovo. The plan recommended "supervised independence," with extensive provision for the protection of minorities, but it was rejected by the Serbian government, supported by Russia.
A diplomatic compromise was reached, extending negotiations between Kosovo and Serbia for six months. But no agreement was achieved, prompting Kosovo's unilateral declaration of independence (UDI).
International law is essentially about balancing competing interests. Kosovo's UDI highlights two competing interests: the right of people to self-determination, and maintaining the territorial integrity of states. The current international legal criterion for deciding the right to self-determination emerged from the struggles for liberation from colonial rule in the 1960s. As a result, the right has a rather limited application and is full of false promise – something Somaliland and Biafra can attest to.
However, Kosovo's UDI has sparked fears that it will create new international precedent allowing other secessionist movements that cannot invoke the classical right to self-determination to declare their independence. This fear has been clearly stated by a number of countries that have refused to recognise Kosovo as an independent state. Russia is concerned about Chechnya and Spain about the Basque region. Cyprus has been divided between a Greek south and Turkish north since 1974, China is worried about Taiwan and Tibet.
But international law is always open to interpretation. Countries who have recognised Kosovo, including the United States, the United Kingdom, France and Germany, stress the unique circumstances that resulted in Kosovo's independence: it is part of the final dissolution of the Federal Republic of Yugoslavia, meaning that it does not create precedent for other regions with secessionist inclinations. Furthermore, they see it as fulfilling the requirements of UN Security Council Resolution 1244 to resolve the final status of Kosovo.
Serbia and Russia's response to the UDI was to declare it to be a violation of international law and thus illegal. Yet Kosovo is not an illegal entity. It meets the criteria of statehood specified in the Montevideo Convention of 1933: it has a permanent population, a defined territory, a government – parliamentary elections were held in November 2007 – and the capacity to enter into relations with states who have recognised it. It is the recognition of Kosovo by other states and its claim to an implied right to self-determination in terms of the 1974 Constitution that differentiates it from Somaliland or Chechnya.
South Africa, as a member of the Security Council, was reluctant to support Kosovo's bid for independence even prior to its UDI. Now the Department of Foreign Affairs says that it remains "seized" of the situation and has not so far said whether South Africa will recognise Kosovo.
The challenge faced by the international community should Kosovo's UDI be seen as a new precedent in international law is clearly illustrated in Africa.
There are a number of active secessionist movements that would try and make use of such a precedent: FLEC/FAC in Cabinda; rebel groups in Ethiopia's Ogaden region; and the island of Anjouan in Comoros. It might also hasten the break-up of states such as Somalia, which has a number of secessionist movements, including the de facto state of Somaliland.
Some claim that Kosovo's case for independence was strengthened by the human rights abuses perpetrated against ethnic Albanians by Serbian armed forces. Applied in Africa, this criterion would strengthen the claims of a right to self-determination of many secessionist movements, including those of rebel groups in Darfur, the Touareg in Mali, and rebels in the DRC's Eastern Kivu region.
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Despite the potentially dangerous precedent that Kosovo's UDI may arguably have created, the recognition it has received from influential states makes its declaration unlikely to be declared an unlawful secession. The legal question is therefore overshadowed by a political concern: how can the international community, and South Africa as a member of the UN Security Council, act to prevent conflict arising from the situation?
If Russia is championing Serbia's cause as a way of asserting its reemerging superpower status against the West, it is playing a dangerous game. It is not the time for one-upmanship; it is rather the time for strategic diplomacy aimed at ensuring peace and stability. By the same token, the U.S., the UK, France and Germany need to tread softly around Serbia's sensitivities and to come to some sort of agreement with Russia and China.
For South Africa, perhaps the most sensible thing would be to follow New Zealand's example and decide to leave recognition or non-recognition of Kosovo to a later date.
Leaza Kolkenbeck-Ruh is the Corporate Research and Media Liaison Officer at the South African Institute of International Affairs (SAIIA).
