Kosovo's declaration of independence is a declaration of independence from Serbia. But this alone does not make Kosovo an independent sovereign state. There is a strong whiff of parody in the coordinated action by which a state declares its independence and other states send in missions to create that state. The EU is sending in 1,800 lawyers, judges, police, and administrators, who are replacing the UN mission and whose task it is to set up Kosovo's "institutions, legal authorities and agencies for law enforcement as well as other executive responsibilities." The head of the operation, which is to "base Kosovo on the rule of law," that is, to build a law-abiding and law-enforcing state there, will be French General Yves de Kermabon. Dutch diplomat Peter Feith, who will head up the International Civilian Office, will have the power to overturn legislation and sack Kosovo officials. KFOR, the NATO-led Kosovo force, will stay, which means that 16,000 foreign soldiers will be stationed in Kosovo. Annex 11 to the Ahtisaari plan, the implementation of which was zealously advocated by the United States, gives NATO military supremacy over Kosovo. (In the week following the declaration of independence, when tensions rose on the border with Serbia, U.S. and French troops restored order.) Economically, the EU plans to spend 330 million euros by 2010, in addition to the 2 billion euros it has already spent.
From 1999, following the NATO bombing of Yugoslavia, Kosovo was a UN protectorate. With the declaration of independence, it has become
an EU protectorate that can be more easily shaped by U.S. policy. In real terms, not much has changed. As a commentator in Politika stated: "Neither did Albanians gain much more than they already had, nor did the Serbs lose much more than they had already lost."
So, if not much was gained or lost, why does Kosovo's declaration of independence matter?
International Law
It matters, first, because the declaration of Kosovo independence is a breach of international law. A unilateral change of borders – that is, a change that is not based on agreement of all concerned – violates one of the basic principles of the UN charter. Serbia is clearly opposed to this move. If the declaration of Kosovo independence is predicated on the limitation, or loss, of Serbian de facto sovereignty over the region following NATO's 1999 military intervention, then the change of borders has been accomplished by military means. That runs against both the letter and the spirit of the post-World War Two international legal order. To argue that violations of human rights, such as those committed by Serbia in Kosovo in the 1980s and 1990s, can be the basis on which to erect a new state both lacks
legal precedent and confuses law with morality. And when it comes to morality in this context, it is a morality of double standards and selective righteousness, in view both of global politics and of the human rights abuses visited on the Serbian minority in Kosovo.
One could quarrel over the interpretation of UN Security Council resolution 1244, as opponents and advocates of Kosovo independence do, but the unilateral nature of the declaration of independence effectively violates international law. That this argument has been raised by states that fear their own separatist movements does not detract from the argument itself. If the rule of law is considered supreme, it is irrelevant whether abiding or protecting the law is in a state's own interest.
Historically, the closest parallel in the 20th-century Balkans to Kosovo's unilateral declaration of independence was the declaration of the Independent State of Croatia, the notorious NDH, under the tutelage of Nazi Germany during World War Two. Then, as now, the military superpower of the day constructed a state to its own liking and in its own interest. It did so with the collaboration of local politicians, to the relief of parts of the population, and in the interest of the world war it was fighting. In regard of the more recent history, the declaration of the independence of Kosovo is the continuation of the same type of politics that characterized Serbian oppression, repression, and crimes in Kosovo — the continuation of the politics of might, illegality, and lawlessness.
U.S. arbitrariness rather than the will of the people was the constitutive force of the independent state of Kosovo. The UN was conspicuously pushed aside and ignored. Also ignored were the interests of the neighbors and the countries of the broader Balkan region, most of whom oppose the independence of Kosovo. Ignored as well, and in a rather insulting way, was Russia, which for better or worse has played a role in the region for a considerable time. Finally, ignored were the Serbs. The unilateral decision to declare the independence of Kosovo was carried through in a way to ensure that Serbia will for the time being experience no catharsis, no facing and overcoming of the legacy of the criminal wars of the 1990s. Instead, this decision does the opposite by inflaming the very same pathology that drove Serbia and Serbs into those wars in the first place. Has the United States engineered a new Versailles that will in turn generate future wars?
Tomaz Mastnak, a contributor to Foreign Policy In Focus (www.fpif.org), is is director of research in the Institute of Philosophy, Scientific Research Center of the Slovene Academy of Sciences, and a fellow of the Critical Theory Institute at the University of California at Irvine. He is the former director of the Office of the Alliance of Civilizations of the United Nations.