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For Crimea, Secession Is Only as Good as Recognition

When Kosovo declared independence from Serbia in 2008, with the strong support of the United States, Russia, a staunch ally of the Serbs, insisted that the declaration was a reckless breach of international law.

Now, as Crimea votes Sunday on a referendum on whether to break away from Ukraine and join Russia, Moscow has invoked Kosovo to justify the vote, while it is the United States and Europe that insist Russian and Crimean officials are breaking the law.

As to who is right, that remains a thorny legal question, said James Ker-Lindsay, an expert on secession at the London School of Economics. The legitimacy of any move to secede would ultimately depend on whether many countries beyond Russia recognized it, which seemed doubtful.

"You can declare the front room of your house an independent state, but if no one recognizes it, such a declaration is meaningless," he said.

To justify Crimea's pursuit of independence from Ukraine, Crimean and Russian officials have cited a seminal ruling by the International Court of Justice in July 2010, in which the United Nations' highest court ruled that Kosovo's declaration of independence from Serbia did not violate international law.

However, while the court had not found Kosovo's declaration to be illegal, the ruling did not necessarily confer legitimacy on the state of Kosovo, Mr. Ker-Lindsay said. As such, it was not actually the precedent that Russia claims it is.

While dozens of countries, including the United States, Germany, France and Britain, have recognized Kosovo as a sovereign nation, the United Nations, which confers legitimacy, has not. Nor have all of the European Union's members, some of whom fear that to do so would give momentum to secessionist movements across Europe, from Scots in Britain to Catalans in Spain. The result is that Kosovo has struggled to gain international legitimacy.

In the case of Crimea, Ukraine has insisted that its referendum violates the country's Constitution. But constitutional constraints on territorial independence are not necessarily sufficient to hold a country together, Mr. Ker-Lindsay noted.

Plenty of states, he said, have constitutions affirming their territorial integrity, but this can nevertheless be upended by the popular will to secede, geopolitics, or both.

What mattered under international law for a country trying to prevent its breakup was whether its territorial integrity was guaranteed by an international treaty or affirmed by an international body, such as the United Nations Security Council.

Here, Cyprus is a good example. In 1983, after Turks in northern Cyprus declared independence from Cyprus and created the Turkish Republic of Northern Cyprus, the Security Council passed two resolutions calling the declaration illegal, and requesting that no other states should recognize it. That effectively isolated the north and deprived it of international legitimacy, as well as much-needed foreign investment. To this day, Turkey remains the only country to have recognized Northern Cyprus.

Though Russia and Crimea are citing Kosovo as a precedent, the differences may be more powerful than the similarities.

In the first place, Kosovo was under United Nations administration when it declared independence in February 2008 in the aftermath of a brutal ethnic war with Serbia; Crimeans are being asked to vote on independence amid a Russian-backed military intervention.

Petrit Selimi, Kosovo's deputy foreign minister, also noted that violent suppression of Kosovo's majority ethnic-Albanian population by the Serbian strongman Slobodan Milosevic in the 1990s gave the aspiring country a moral claim on nationhood. Almost no one outside Moscow has argued that the ethnic Russian population in Crimea has been subjected to state-sanctioned repression from Kiev.

"When Kosovo declared independence in 1992, no one listened," he said. "After mass killings took place, that changed. It is sad, but the more blood you have shed, the better the chance you have of your nation being accepted internationally."

Chancellor Angela Merkel of Germany insisted last week that analogies between the West's actions in Kosovo and Russian actions in Crimea were "shameful." NATO, she noted in a speech to the German Parliament, acted after the international community had helplessly watched ethnic cleansing in Kosovo.

"To make it crystal clear: The situation from that time is in no way comparable to what is happening in Ukraine today," she said, referring to Kosovo. "Russia's actions in Ukraine unequivocally breach basic principles of international law."

Nevertheless, Mr. Ker-Lindsay noted, the American argument that Kosovo was a "unique case" was legally and semantically questionable, too, since any country with sufficient geopolitical heft could selectively choose to endorse a territory's independence.

"It is a troubling argument that Kosovo is a unique case," said Mr. Ker-Lindsay. "And it has deeply troubled the Russians, who see it as a double standard."

[Source: By Dan Bilefsky, The New York Times, 15Mar14]

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