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"Canada can, within a positive friendly atmosphere, ask the Chinese government to resolve the Tibetan situation."

Setting milestone in international law

August 20, 2010

Republica (Nepal)
August 15, 2010

The determination and demarcation of fixed
territories and the subsequent allegiance between
those territories and the individuals or groups
of individuals that inhabit them is arguably the
prime factor that creates room for individuals
and groups within international and human rights
law. In this sense, “international society”
consists of individuals and groups that
ostensibly gain legitimacy and locus standi in
international law by virtue of being part of a
sovereign state. For example, although it has
been argued that notions of democratic governance
have become widespread (or even a norm of
customary international law), this democracy in
order to gain international legitimacy is assumed
to be expressed within the narrow confines of an identifiable territorial unit.

The acquisition of defined and fixed
territoriality is prerequisite to the recognition
of statehood. The quest for recognition has
widespread manifestations in contemporary
society, from indigenous peoples who seek control
over the destiny of their ancestral lands to
struggles for self-determination in places such
as Kosovo, Iraq, the Basque Country, and many
others. Since states are primarily entrusted with
the privilege of norm creation in international
law, the emphasis on territoriality affects many
who would lay claim to such recognition. However,
the notion of territoriality itself remains
contested in international law. The implication
of this contest is most visible in the treatment
of the right to self-determination.

Since the beginning of the Ottoman Empire,
control of Kosovo has shifted back and forth
between the Albanians and the Serbs. It was not
until the Balkan War of 1912 that the Serbs
successfully conquered and annexed Kosovo.
However, after the Second World War, in 1968,
after violent Albanian demonstrations, Marshal
Josip Broz Tito granted Kosovo wide-ranging
autonomy. Until 1989, Kosovo was one of two
autonomous provinces in the Federal Republic of
Yugoslavia. This autonomy ended in 1989 when the
newly-elected Serbian leader Slobodan Milosevic
established virtual martial law in Kosovo,
changed the constitution, and took away Kosovo’s
autonomy. There were gross human right violations
which took place in Kosovo where in the name of
“ethnic cleansing”, Kosovar Albanian men were
taken and placed in reminiscent of the Bosnian concentration camps.

The Kosovar declaration of independence reflects
a fascinating case in international law. It poses
important questions regarding the modern day
understanding of the international legal theories
of secession, statehood, and recognition.
So, after which there were various interventions
by the International Community like the NATO
conducted an eleven-week air campaign against
Yugoslav and Serbian security forces and
paramilitary groups. The campaign resulted in the
agreement of the Federal Republic of Yugoslavia
to withdraw all Yugoslav and Serbian security
forces from the territory. Following which United
Nations Interim Administration Mission was set up
in Kosovo (UNMIK) to turn its immediate attention
to the reestablishment of the core functions of
the Kosovo judiciary. Finally it was UN Special
Envoy Mr Martti Ahtisaari, the former President
of Finland who developed a plan to build a
democratic and multi-ethnic Kosovo and
recommended Kosovo be independent, subject to a
period of international supervision.

Kosovo then declared its independence on February
17, 2008 and seceded from the Republic of Serbia.
This declaration of independence was challenged
by Serbia requesting the International Court of
Justice to render an advisory opinion on whether
"the unilateral declaration of independence by
the Provisional Institutions of Self-Government
of Kosovo is in accordance with international
law?” ICJ on July 22, 2010 concluded that the
adoption of the declaration of independence of 17
February 2008 did not violate general
international law, Security Council resolution
1244 (1999) or the Constitutional Framework.
Consequently the adoption of that declaration did
not violate any applicable rule of international law.

I personally believe, the Kosovar declaration of
independence reflects a fascinating case in
international law. It poses important questions
regarding the modern day understanding of the
international legal theories of secession,
statehood, and recognition. It also challenges to
assert new theories as justification for such
unilateral separation of an entity from its
mother-state. It raises issues about the future
of this troubled region, as many wonder about its
long-term viability and true independence from
Western military and economic support. Finally,
it poses concerns over its precedent-setting
secessionist ideology. In light of these
challenging issues and questions, other solutions
to the Kosovar problem, such as the creation of
an international protectorate, conditional
independence, and the division along ethnic lines
should have been envisioned and seriously
considered before full independence of Kosovo was embraced by the West.

The situation at Kosovo represents state building
from the outside, and consequently, an attack on
the supposed illegality of unilateral secession
and on concepts of sovereignty and territorial
integrity. The Proposal also represents an
opportunity for Tibetans to ensure that the
international community becomes fully aware of
the Tibet Question. Just as China has taken
advantage of the Western doctrine of sovereignty,
the way is potentially now open for Tibet to take
advantage of self-determination through a
legitimated claim for supervised statehood. The
right of self-determination is indivisible, and
thus, if the Kosovan example is applicable to
Tibet, Tibet should find support in the
international community for a claim to similar
independence; it is this indivisibility that
should provide greater leverage for Tibetans with
China in pursuing their claims for greater
autonomy. It is also of relevance that “laws not
only represent reality, but also create it.” Law
has the potential to create the reality of an
independent Kosovo and, consequently, Tibet.
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