The overall legal background

Historically, Kosovo has been an autonomous province of Serbia within the Socialist Federal Republic of Yugoslavia (SFRY). After the dissolution of SFRY in 1991–92, Kosovo continued as part of Serbia within the Federal Republic of Yugoslavia (FRY). The treatment of Albanians in Kosovo by FRY security forces was a source of great human suffering with international implications, culminating in the 1999 attack and air campaign by NATO against FRY. The air campaign ended with the withdrawal of Yugoslavian forces from Kosovo and the establishment, on the basis of Security Council resolution 1244 (1999), of the UN Mission in Kosovo (UNMIK) to administer the territory and the Kosovo Force (KFOR) to provide for order and security. By the end of the NATO intervention, the number and extent of human casualties and suffering among the Kosovo Albanians was much higher than before the NATO intervention. On 17 February 2008, the authorities in Kosovo declared the province’s independence from Serbia.

International law generally disapproves of the unilateral secession of a territory from the state it belongs to. The principle of the territorial sovereignty of the state prevails over the secessionist, or self-determination, claims by populations inhabiting any part of that state’s territory. The Declaration on the Granting of Independence to Colonial Countries and Peoples, adopted by General Assembly resolution 1514 (XV) on 14 December 1960, specifies that ‘Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations.’ Similarly, General Assembly resolution 2625 (1970) (Friendly Relations Declaration) specifies that the principle of self-determination shall not:

Although these declarations are not binding as such, General Assembly resolution 2625 certainly embodies customary international law.^{Footnote 5}

Two-and-half years after the UDI, the International Court of Justice delivered its Advisory Opinion on UDI in Kosovo (2010).^{Footnote 6} The Court’s principal point in the Advisory Opinion was that the arrangements introduced in relation to Kosovo through UN Security Council resolution 1244 (1999) retain their applicability despite the UDI proclaimed in Pristina in 2008. In effect, Kosovo has not become an independent state in the eyes of international law.

The International Court did not discuss the notion of ‘remedial secession’, nor did it address, let alone accord any significance to, the fact that many states have recognised Kosovo as an independent state. Nor was the claim that Kosovo is a sui generis entity, whose independence could be justified on a special basis not relevant to the status of other secessionist entities, accorded any particular importance. Instead, the Court relied on resolution 1244, which, despite placing Kosovo under international administration, did not exempt it from the law generally applicable to secessionist entities. Moreover, the Court expressly preserved the territorial integrity of FRY/Serbia.

As the above overview of the legal material has shown, international law has clear ways of prioritising territorial integrity over self-determination in order to avoid the dismemberment of states, given all the entailed risks to the stability of international affairs that the non-consensual redrawing of borders may entail. However, the interdisciplinary focus pursued in this contribution requires a broader scope. Allusion is, at times, made to the serious conflicts that result from the tension between two fundamental principles of international law: the right to self-determination of peoples and the territorial integrity of states.^{Footnote 7} Such concerns are not without foundation because, on the surface, the values and interests protected by those two principles are indeed different. One principle is focused on protecting states from dismemberment, and the other principle is focused on empowering a non-state entity against the state.

Moreover, one should not overlook the fact that, ideologically speaking, to the secessionist entity (or ‘local agency’), self-determination is an idea and policy aspiration before it is a rule of positive international law. Such an attitude, pursued by the ‘local agency,’ may also act as one of the triggers that motivates the phenomenon examined in this article – the great powers’ propensity to seize on the secessionist aspirations of the ‘local agency’ when that is conducive to their political interests.

Divergent policies, intersecting regimes

Against the background of the legal position outlined above, there is a sharp divergence of political opinion regarding both the political future and the legal status of Kosovo. Pursuant to resolution 1244, the only possible explanation of Kosovo’s position as a matter of international law is its status as part of the 1244 interim administration regime. Any projection of the independent standing of the Kosovar authorities, as a discrete ‘local agency’, is premised on unilateralism, which is incompatible with the 1244 framework.

Consequently, and soon after the UDI in Kosovo, the UN Secretary-General reiterated ‘the status-neutral approach of the United Nations’ in that territory.^{Footnote 8} However, the local attitudes towards UNMIK, and towards the continuing operation of resolution 1244 in general, have been obstructive. The Secretary-General has reported the following:

The Secretary-General thus acknowledged that the UDI in Pristina had gone against resolution 1244. This is, inevitably, also a step directly against the position of the Advisory Opinion – illustrating that parties on the ground are sharply divided. As the UN Secretary-General described it:

On the other hand, the Kosovar authorities in Pristina have taken the position premised on their full independence, and thus they are opposed to the continued presence of UNMIK in Kosovo. As Prime-Minister Hashim Thaçi told the UN Security Council:

All this shows that, on the ground in Kosovo, there is no reconciled position as to the status of the UN in Kosovo. Nevertheless, the multilateral calculus of rights and obligations, as an issue of positive international law, depends on the initial balance of rights and obligations determined when UNMIK was established by resolution 1244. The presence of UNMIK and the UN role in general, as determined by resolution 1244, do not fit with any notion of ‘local agency’ or ‘local ownership’. In this context, the concept of ‘local ownership’ is an acknowledgment that there can be no genuine independence for Kosovo so long as the presence of UNMIK, and of the 1244 framework that established it, continues. As the Advisory Opinion has specified, this legal framework will continue until the Security Council abolishes it.

The multiplicity of entities and actors involved in and around the Kosovo situation – the Kosovar Albanian authorities, FRY/Serbia, international actors such as the UN and EU, third state governments supporting or opposing Kosovo’s independence – has implications, not only for perceptions of the applicable law in relation to Kosovo but also for the interdisciplinary analysis of the Kosovo situation. From the point of view of international legal reasoning, we must focus on the nature of each relevant entity’s legal claims and opinions and their correspondence with applicable international legal frameworks (as outlined above). From the perspective of political realism, we must focus on the nature and dynamics of mutual relations – collaborative as well as confrontational – among the entities involved in the Kosovo situation. The implications of the divergence of legal and political opinions regarding Kosovo’s status can be understood through the use of the methods and concepts of political realism.

Unilateralism, multilateralism, and revisionism in the example of Kosovo

The claim that Kosovo is an independent state could be described as a revisionist claim in so far as it attempts to modify the well-established legal position applicable to claims of secession. The whole revisionist drive is motivated by the dissatisfaction of the relevant state(s) with the generally applicable legal position under international law. It could reasonably be said that revisionism of this kind was generated by the conflict between political interests and applicable legal frameworks in the interwar period (1920s–1930s). The initial analytical background for such a revisionist agenda was articulated in the writings of Carl Schmitt, who highlighted the relevant systemic dilemmas.

Schmitt developed the revisionist approach in his reflection on the League of Nations framework. He emphasised the rise of German power in the 1930s and the desires to liberate the German Reich from the shackles of the 1919 Versailles Peace Treaty and to restore its political and strategic power position. Specifically in relation to the legal regimes established by the Versailles Treaty, which represented the status quo in the 1930s when aspiring German revisionism sought to challenge it, Schmitt refers to subsequent technological progress (including the power of Luftwaffe) to call into question the existing legal regimes as well as their power positions.^{Footnote 12}

The ideological underpinnings of revisionist policies at particular stages in the history of international relations do not constitute a crucial factor for our analysis.^{Footnote 13} Instead, our analysis shows the commonality between various revisionist claims and agendas in the context where a rising power finds itself uncomfortable with the pre-existing legal framework and, for that reason, attempts either to revise it or to establish exceptions to it. In this sense, revisionism is the most far-reaching manifestation of the contestation over the validity or relevance of the established legal and constitutional principles – a contestation that grows out of the political interests of the day.

The analytical starting point, relevant to the interdisciplinary analysis pursued here, is that the UN Charter was adopted in the aftermath of World War II, at which time a particular distribution of power among the great powers found expression in the allocation of permanent seats and veto power to each of the five permanent members of the UN Security Council. Important far-reaching decisions that would modify existing legal rights and obligations of states could only be adopted through the concurrence of all five permanent members of the Security Council. According to the UN Charter (Article 53), no enforcement action should be undertaken against the sovereign state and its government, unless the Security Council grants the authorisation to do so.^{Footnote 14}

Since the end of the Cold War and the demise of the Socialist bloc beginning in the 1990s, the power balance has shifted. One implication, indeed one of the culminations, of this process was the 1999 NATO-led war against the FRY over Kosovo. When, in 1999, the member states of the North Atlantic Alliance realised that the UN Security Council would not authorise forcible action against the FRY, they decided to undertake such action without the Security Council’s authorisation. Similarly, in 2007–2008, when a number of permanent and non-permanent members of the Security Council realised that the Security Council, as a collective organ, would not support the independence of Kosovo from Serbia, they proceeded to unilaterally recognise Kosovo’s independence. The interests and position of the pro-Kosovo great powers – for instance the US, UK, France, Germany, and Italy – are embedded and represented in the United Nations and the regional (NATO, EU) frameworks alike. However, given that the coercive authority over which the UN Security Council has a monopoly could be activated only with the consent of China and Russia, the political agenda of the pro-Kosovo great powers ended up prioritising action through regional organisations over whose decisions they have control, or even in a unilateral manner. This is how revisionism meets unilateralism.

‘Humanitarian intervention’, advanced as the principal justification for NATO’s attack on FRY, is not recognised under international law and forms no part of it. Stoessinger argued, in clearly revisionist terms, that by intervening in Kosovo in 1999, ‘NATO had established a new principle of international law: not only would the persecution by a dictator of his own people not be tolerated, it will be reversed. In this brave effort, the United States led and the rest of NATO followed.’^{Footnote 15} However, this ‘new principle’ has not found recognition in state practice, given that the statement of the Non-Allied Movement, backed by 132 states, ‘reject[ed] the so-called ‘‘right’’ of humanitarian intervention, which has no legal basis in the UN Charter or in the general principles of international law’.^{Footnote 16} As a corollary to these developments, the notion of the ‘Responsibility to Protect’, subsequently developed by the UN, eschews reference to the unilateral use of force against the state and instead focuses on the action taken within the multilateral framework of the UN Security Council. The notion of the ‘Responsibility to Protect’ relates to protecting vulnerable populations from governments that expose them to war crimes, genocide or crimes against humanity, or from governments that fail to protect them from such atrocities. This concept has not been developed to purport to validate forcible interventions outside the context of Chapter VII of the UN Charter.^{Footnote 17} Therefore, the types of the use of force endorsed by the ‘Responsibility to Protect’ doctrine would be qualitatively different from the intervention performed in the case of Kosovo in 1999.

In policy-operational terms, the attack on FRY led to the intensification of the crisis in Kosovo and thus to an increase in casualties and victims. However, it did not lead to actually saving those it was supposedly meant to protect. Furthermore, as Robert Jackson observed, the Kosovo crisis did not present a serious threat to international peace and security, either in the Balkans or beyond. As he states, ‘it became a major international crisis only when NATO decided to intervene on its own initiative and without a full international mandate’.^{Footnote 18}

The relevance of political realism

As we have seen, the positions of various governments and other entities regarding Kosovo were mutually irreconcilable, not just in terms of the content of the applicable law but also in terms of political attitudes. Needless to say, the present analysis is meant to highlight the Kosovo situation through the prism of the relevant theories of international relations rather than pronouncing on those theoretical debates in any overall sense. Political realism is the political theory most useful for exploring the contexts of irreconcilable political conflict. Political realism differs from other theories such as constructivism, which places a greater emphasis on shared rules and values rather than on conflicts of interest between states.^{Footnote 19}

The choice of realism as the principal analytical framework here has visible advantages. To illustrate, constructivists emphasise the process of communication between states and the consequent constraint in their mutual conduct, resulting in the shared rules and perceptions to which states adhere.^{Footnote 20} They emphasise the socially constituted identity of states^{Footnote 21} rather than seeing states as self-regarding political units who make their own autonomous interest-based choices as to whether to comply with international legal rules or to seek changes in the applicable law. However, the intersubjective meanings and norms that shape state identities, so central to constructivist thought,^{Footnote 22} are precisely what broke down in relation to Kosovo, as seen in the sharp divergence of state opinions as to the entitlements of this secessionist entity.

In a rather interesting analysis, JS Barkin has attempted to narrow down the difference between realism and constructivism by suggesting that ‘constructivism is a set of assumptions about how to study politics’ rather than a set of assumptions about how politics works, and therefore it is fully compatible with the realist patterns of thinking.^{Footnote 23} Furthermore, ‘The essence of scientific realism as applied in the social sciences is the idea that real social structures exist out there, independent of our observation of them.’^{Footnote 24} This may be a somewhat different version of constructivism, one that attempts to broaden the category of societal and intersubjective patterns to also include self-regarding political actions and decisions. However, this difference is only a nuanced and not a cardinal one, at least for our present case-specific analysis. Whether we consider societal and intersubjective patterns as giving expression to – or serving as social limitations on – self-regarding power politics, under any analytical pattern of constructivist observation, the outcome would still be a lack of societal consensus on how the Kosovo situation ought to be resolved. In fact, the ‘reality’ of ‘social structures’ in the international system may, at times, be precisely the factor that prevents the existence of socially constituted consensus regarding controversies of this kind.

Constructivism was, to some extent, reinforced by the end of the Cold War, which was thought to have reshaped international politics.^{Footnote 25} The emphasis on non-material factors in politics – on reimagining the social, or ignoring the particularities of state interests^{Footnote 26} – has also been central to constructivism. However, the Kosovo situation highlights the resurgence of precisely those particularities. This is, among other reasons, why the analysis below alludes to cases from the eighteenth and nineteenth centuries – periods that richly illustrate the mutual mistrust of states when their political and legal positions diverge, at times resulting in their unwillingness or inability to find collaborative solutions to international crises produced by revisionist policies.

It may be that constructivism can explain part of the process involving claims of legal change or legal exceptionalism. From a purely analytical perspective, it may stand to reason that the initiation of a unilateralism- and exceptionalism-driven solution in relation to Kosovo, initiated by Western great powers and backed by their significant hard or soft political power, could have been intended as a kind of social pressure – or even ‘soft power’ – to tame the position of dissentient states, aimed at the creation of an intersubjective consensus regarding the exceptional solution to the case at hand in a way that constructivists would easily acknowledge. Yet, the subsequent reaction from the dissentient states, their autonomous calculation of policies, interests and actions, shows that the Kosovo situation more closely resembles the process, described by Reus-Smit, by which the claims of normative change replace social communicative action and result in an outright conflict of interests, possibly even threatening the system itself.^{Footnote 27} However, the whole point of this case-focused analysis is not to deny the relevance of constructivism but merely to state its limits.

On the other hand, critical constructivism challenges the conventional constructivist assumption that compliance with norms is dictated by the sense of social or institutional belonging.^{Footnote 28} Furthermore, ‘critical and consistent constructivists consider norms as constituted through practice’. Norms are understood as ‘carriers of meaning-in-use, which is re-/enacted through social practice’, and critically engaged through the contestation process.^{Footnote 29} As emphasised in a key work on this theme, the contestation process involves various stages, including the contestation of established norms and the validation of the revised outcome.^{Footnote 30} Then, various forms of contestation could lead either to a shared recognition of the new situation, to a legitimacy gap, or to a conflict.^{Footnote 31} However, the choice of political realism as the principal framework of observation is required here by the focus on the essentially state-centric process of great powers’ self-regarding and interest-driven entanglement with local independence aspirations. Kosovo Albanians as a ‘local agency’ are hardly in a position to launch such contestation bids alone and without the external support of great powers.

Attempts could also be made to see the Kosovo situation through the prism of liberal theory. In the 1990s, Anne-Marie Slaughter expressly advanced the idea that the number of rights states possess depends on their correspondence with the model of democratic and liberal governance.^{Footnote 32} From that point of view, FRY under Milošević would not be seen as a democratic state proper, and thus some of its rights could be curtailed; in this case its boundaries were redrawn without its consent. However, this approach is difficult to accommodate with positive international law, and it has not been advanced by governments supporting Kosovo’s independence.

Given that Kosovo’s independence is supported by governments who are the major stakeholders within NATO and the EU, it may be tempting to rationalise the recognition of Kosovo’s independence through the prism of Hedley Bull’s ‘international order’, which embodies the great power management of crisis situations with the aim to secure the survival of the international system at the cost of the rights – or even survival – of individual states. Just as the partition of Poland two centuries ago is a central case that Bull relies on,^{Footnote 33} redrawing Serbia’s boundaries without its consent could also fit Bull’s bill. However, the main analytical as well as practical challenge would be the attempt to reimagine the ‘international order’ without it representing all relevant major powers, operating outside the authority of the UN and without being supported by the binding force of UN Security Council resolutions.^{Footnote 34}

As we can see, hardly any of the above theories, as applied to the Kosovo situation, warrants viewing law as a mirror image of politics. The fact that realism, at least, does not pretend to be doing so represents one of its analytical advantages. Its other analytical advantage is that it facilitates a comparative analysis of the attitude and conduct of statesmen at various stages of history, as opposed to assuming that international politics in our age is substantially or radically different from what it was decades or even centuries ago.

Great power self-interest and its entanglement with the agenda of the ‘local agency’

A principal premise of realism is that states compete in an unregulated state of anarchy, driven by their consequent mutual fear and distrust of each other’s intentions. These factors are thought to generate their drive for aggrandisement. The classical position was articulated in the political testament of Frederick the Great, who described aggrandisement as one of the principal concerns of a prince. He emphasised that, ‘If the desire of self-aggrandizement does not procure acquisitions for the prince-statesman, at least it sustains his power, because the same means which he prepares for offensive action are always there to defend the state if defence proves necessary, and if he is forced so to use them.’^{Footnote 35}

In the approach illustrated in Frederick the Great’s political testament, space-related aggrandisement implies the expansion of the relevant state’s territorial realm. This obviously implies an attack on the established territorial status quo that consists in the other states’ territorial sovereignty, political independence or territorial rights. National interest-driven aggrandisement could also be premised on less indirect and informal means than territorial conquest. As an example of the latter, the British Empire had, alongside direct colonial acquisitions of territory, pursued the pattern of an ‘informal empire’ consisting in the informal political and economic domination of territorial spaces without directly acquiring sovereignty over those spaces.^{Footnote 36} Overall, aggrandisement could be aimed at economic benefits, the enhancement of the state’s strategic position, or consolidating its hegemonic status. As aggrandisement is driven by the state’s own national interest, it could result in unilateral actions that disregard the requirements under, or potential of, the relevant multilateral arrangements.

All of the above runs into the specifically post-Cold War dimension of aggrandisement and upsets the pattern perceived for years after the end of the Cold War, with the effect that the hegemonic policies of the United States of America involve no design on other states’ territories. However, just as the British Empire of the eighteenth and nineteenth centuries has oscillated between informal aggrandisement, motivated primarily by economic interests, and territorial conquest, for instance in India or Southern Africa, Kosovo’s case could make states feel threatened regarding the cores of their territorial realms. Although with Kosovo, the US and its allies are not acquiring territory for themselves, their policies are nevertheless aimed at redrawing national boundaries without the consent of the relevant state. Therefore, the central element prioritised by realists – the enhancement of states’ mutual fear and mistrust – has returned.

Some historical comparisons with previous instances of territorial changes dictated by a great power’s interests may not be out of place. Overall, parallels with the nineteenth century may be most apposite because this was a period when international affairs were both ruled, and seen to be ruled, more by the national interests and autonomous choices of States and less by ideological factors or perceptions of universality. It is precisely the dominance of national interests in the conduct of foreign policy that generates the phenomenon of the entanglement of ‘local’ independence aspirations and great power behaviour in support of – or in opposition to – such aspirations. In one such context, the British Foreign Secretary George Canning’s recognition of the independence of Latin American republics in the 1820s occurred contrary to the principle of monarchical legitimacy and contrary to the will of most European states. The driving force behind such policy was the British national economic interest in trade and investment in Latin America. Engaging with the newly emerged independent republics would benefit this national economic interest more. Canning rejected the idea of discussing the status of South American republics with European powers at an international conference and instead proceeded to unilaterally recognise their independence.^{Footnote 37} His overall preference towards unilateralism was due to his perception that ‘Conferences are useless or dangerous – useless if we are in agreement, dangerous if we are not.’^{Footnote 38} France, Russia, Austria and Prussia lodged protests ‘against this outrage of monarchical principles’. In England itself, King George IV intervened in the matter of Canning’s handling of the South American recognitions, asking whether ‘the great principles of policy established in 1814, 1815 and 1818’ were to be abandoned and effectively substituted by the ‘French revolutionary creed’. However, the Duke of ‘Wellington frightened [the King] with the possibility of an exposure in Parliament and a coup d’état if he resisted further’.^{Footnote 39}

Canning’s position regarding the independence or autonomy of Greece was motivated by the same attitude. He ‘felt that the emergence of a vassal but autonomous Greek State would be favourable to British trade and would probably leave Britain ‘‘in fact the masters of navigation’’ in the Mediterranean’. At an earlier stage of the crisis, Canning’s ‘recognition of the Greeks as belligerents rested on the contention that the sole alternative was to treat them as pirates and this was incompatible with vital British commercial interests’. Notably, if not somewhat self-servingly, he also took the position that ‘belligerency was not so much a principle as a fact’.^{Footnote 40} Overall, in relation to the outcome of the crisis, Canning’s observation was that the Ottoman ‘Sultan was incapable of reimporting his authority upon Greece, without some external help.’ And ‘The Greeks will be satisfied with nothing but independence. The Turks will be satisfied with nothing but submission.’^{Footnote 41} However, in relation to both Greece and South America, British economic interest was among the chief considerations driving British policy. Independence claims could carry the day with the external help of a great power who was motivated by their own interest in the first place. Nor would the British position be determined by the mere factual success of Greeks or South Americans. For, when the relevant entity’s independence was not in its interest, the British Government would be both emphatic and consistent in opposing it, as manifested by Lord Palmerston’s position in relation to Egyptian attempts to become independent from the Ottoman Empire in the 1830s.^{Footnote 42} In this way, the drive for independence of the ‘local agency’ is no longer treated as a localised issue and instead becomes affiliated with the interdependence and global entanglement of great power interests in relation to the relevant local matter. In turn, those great powers become ready to contest the pre-established legal standards that do not accommodate those interests. Entanglement thus forms a cause for contestation.

Another form of the global entanglement is manifested in the prioritisation of mutual relations among great powers, with the goal of legitimising revisionist territorial changes. To illustrate, soon after Mussolini’s Italy invaded and annexed Abyssinia, the British Foreign Secretary Lord Halifax expressly told the League of Nations Council on 12 May 1938 that the League’s coercive measures against Italy did not preclude the British Government from recognising the Italian annexation of Ethiopia. Each member state of the League could decide on this matter for itself, even if the League did not have to collectively decide on this point. Recognising the realities of the annexation was, as Lord Halifax suggested, an alternative to living in a ‘world of fantasy’.^{Footnote 43} Thus, there was consensus, or entanglement, among great powers, as well as among other members of the League, to condone and tolerate the outcome that was the product of the contestation of League Covenant requirements.

The above instances lead to recognition of the outcome of political aggrandisement through territorial changes, at the cost of contradicting the overarching legal regime that does not legally allow for such territorial change, while also gratifying the expansion or aggrandisement needs of the relevant great powers. The above historical overview demonstrates that, with the evolution of international legal standards relating to secession and territorial change, revisionist claims are more likely to involve challenges to the territorial status quo, manifested through the acute contrast between the political interest that upholds the factual change and the pre-existing legal position, which does not allow for such factual change. All of these situations have thus involved a degree of revisionism, which reveals the contestation of the pre-established constitutional requirements regarding the legitimacy of the creation, extinction, recognition and independence of states. In Canning’s times, the conflicting legal views favoured, on the one hand, the imprescriptible right of legitimate sovereign monarchs to their colonies and provinces, and, on the other hand, the independence of de facto independent states.^{Footnote 44} The recognition of the Italian conquest of Abyssinia disregarded the League of Nations Covenant and its relevant resolutions, while Kosovo’s recognition disregards the strict requirements that exist under both general international law and Security Council resolution 1244. However, in all of the above cases, the contestation of core constitutional requirements was manifested through state resistance to the authority of international institutions and to multilateral decisions. States demonstrated their resistance by unilaterally asserting national power and a self-interested agenda when governments or statesmen judged that to be in the national interest. It is precisely the dependence of the success of a secessionist agenda on the successful contestation of pre-established legal standards that increases the entanglement between a great power and the ‘local agency’, which appear to enter into a reciprocal, if circumstantial, deal. The ‘local agency’ may be counting on enjoying great power support, and great powers may be purporting to enhance the legitimacy of their selective policies by referencing the local agency’s will. Ostensible and exceptional political legitimacy is imagined (through the interdependence and entanglement among the relevant entities) as a tool to contest the established legal position that does not, on its own, allow for or legitimate the selective privileging of local independence bids.

In other cases, it may be within the purview of the relevant great powers to uphold particular revisionist outcomes in relation to the ‘local’ situations they are entangled with, but such a situation does not make their power and authority sufficient to secure the finality or conclusive effect of those revisionist outcomes. One example is provided by the separate peace concluded between Russia and the Ottoman Empire in the aftermath of the 1828–1829 Russo-Turkish war. The treaty gave the Russians more territorial benefits, at the expense of the Ottomans, than would be acceptable to other European powers. As Russian Foreign Minister Nesselrode observed in 1829, the European powers were unhappy with the Russian action in relation to the Ottoman Empire and the bilateral Ottoman-Russian treaty. At the time, hostilities between the two powers had ended, and he did not anticipate any immediate resistance from the European great powers. Nonetheless, he observed that, ‘however resigned and powerless they may be at the present moment, we should see combinations arising against us whose consequences would inevitably kindle a general war in Europe’.^{Footnote 45}

Another illustration is provided by the multilateralisation of the Ottoman Straits regime after the Treaty of Unkiar Skelessi was concluded between Russia and the Ottomans, with the outcome of the multilateral 1841 Straits Convention entailing a somewhat different regulation of the Straits regime.^{Footnote 46} At the start, ‘Austria and Prussia accepted the treaty [of Unkiar Skelessi]. When Britain and France protested, Nesselrode replied that Russia and the Ottoman Empire were within their rights as sovereign states to make a defensive alliance, which Britain eventually acknowledged’,^{Footnote 47} perhaps because the immediate forcible resistance had little chance of success. As one historian has emphasised,

In this particular case, the particularistic solution prevailed and the relevant actors acquiesced to it for the time being. It was, however, subsequently replaced by a more multilateral regime.

The political tradition of the nineteenth century was to submit major controversies to common European congresses and conferences rather than resolve them directly and bilaterally between the affected states. In instances where, for instance, Britain refused to recognise the Adrianople Treaty between the Russian and Ottoman Empires, or where Germany refused to recognise the 1884 Anglo-Portuguese Treaty on trading influences in Africa,^{Footnote 49} the matters were ultimately referred to and resolved through multilateral conferences that included a greater number of great powers. For Russia in the aftermath of the Russo-Turkish war of 1877–1878, ‘the only way to avoid war was to submit the Treaty of San Stefano to a European Conference’. The separate Treaty of San Stefano was almost certain to lead to Russia’s war with Britain and Austria.^{Footnote 50} When, however, a great power feels confident that it will get its way without submitting the matter to such a multilateral conference or a similar arrangement, they may be tempted to reject calls for a multilateral arrangement and proceed with their designs unilaterally.

In relation to Kosovo, a truly multilateral arrangement that would either complete the process of revisionist contestation, or conclusively do away with it, is currently unlikely. Hence, several arrangements from 1999 onwards have focused on more immediate problems, thus deferring the resolution of the issue of Kosovo’s status because there is insufficient agreement to resolve it (in the sense of resorting to consensual, multilateral, compromise-driven arrangements at a point in time when no one is prepared for drastic unilateral action).

To illustrate, in the immediate aftermath of the 1999 war against FRY, which resulted in the significant expansion of NATO’s power position in the Balkans, the difficulties of maintaining this divisive position in the longer run induced NATO states to agree to a more multilateral regime under Security Council resolution 1244. The multilateral regime included the UN supervision of Kosovo via UNMIK and, overall, was a far more mitigated version of what had been envisaged through the draft Rambouillet agreements earlier in 1999. Ironically enough, the inability of NATO to unilaterally impose a solution to the Kosovo problem back in 1999 has led to the creation of the UN-adopted legal framework that currently makes it very difficult, indeed impossible, for Kosovo to be viewed as an independent state in terms compatible with international law.

This pattern is also evident in the above-mentioned UN position regarding the status-neutral character of the UN presence in Kosovo. Although this UN presence prevents Serbia from administering the Kosovo region, it does nothing to prejudice its sovereignty over it. The 2013 Brussels Agreement between Serbian and Kosovar authorities addresses issues regarding the police and judiciary arrangements in Kosovo and, most importantly, introduces a new entity – the Association of Serb Municipalities – with enhanced standing in administration and policing.^{Footnote 51} The Agreement does not directly or substantially draw on Kosovo status issues as covered by Security Council resolution 1244, nor does it try to modify any of the positions established by those instruments.

On 30 April 2015, the European Commission adopted the Stabilisation and Association Agreement proposal for Kosovo. For its entry into force in 2016, it requires agreement from the EU Council and the European Parliament.^{Footnote 52} The text of the agreement indicates that ‘this Agreement is without prejudice to positions on status, and is in line with UNSCR 1244/1999 and the ICJ Opinion on the Kosovo declaration of independence’. The association agreement does not seem to require ratification from Member States of the EU, as usually is the case with EU association agreements. Instead, Article 144 specifies that the EU and Kosovo (referred to as ‘Parties’) will adopt this agreement in accordance with their internal procedures.

Earlier, in the 2012 feasibility study document related to the conclusion of the association agreement, the EU Commission suggested that the recognition of Kosovo as a state was neither a precondition nor a requirement for this agreement to be concluded.^{Footnote 53} Thus, the EU has fallen short of endorsing Kosovo’s independent status.

For the analytical purposes of political realism specifically, it is clear that in relation to the same issue or crisis, governments or statesmen, whether prince-statesmen centuries ago or modern policymakers, are likely to seek aggrandisement, prioritise their own foreign policy interest over pre-existing normative standards and multilateral fora, and draw on the desires of the ‘local agency’ to that end. However, they cannot always guarantee the desired outcomes, nor can they always avoid counterproductive ones. In this sense, realism cannot be an infallible practical guide for a wise ‘prince-statesman’ because the rationality of the observed species is not always infallible. Hence, realism is relevant to an explanation of policymakers’ decisions as well as the consequences of their miscalculations.

Power, law and change

We should now examine the relationship between political realist reasoning and international legal reasoning. As an illustration of the classical realist approach, Hans Morgenthau opposed the legalistic-moralistic approach to international affairs,^{Footnote 54} suggesting that states disregard international law when their national interest so requires and that ‘considerations of power rather than of law determine compliance and enforcement’.^{Footnote 55} A further nuance in Morgenthau’s approach was that he saw international law as too ambiguous, imprecise and indeterminate to tackle the political ambitions of states.^{Footnote 56} Goldsmith and Posner adopt a similar approach, also suggesting that having strict legal rules is unwise, as compliance for states would be too costly.^{Footnote 57} However, from this perspective, Kosovo’s independence may be an accomplished fact, but international law does not give, or does not have to give, clear support to that independence.

This, however, is not a position that would satisfy the governments of pro-Kosovo states. They not only want Kosovo to be independent from Serbia as a matter of accomplished fact, they want its position be widely seen as compatible with international law. Their overall strategy is to achieve legal change together with political change rather than to explain Kosovo as a policy-driven case of unlawful secession; their approach is broadly compatible with the version of the law-politics relationship upheld in the teachings of Morgenthau.

Paradoxical or curious as it may sound, the formation or modification of the underlying pre-existing legal position, in terms of the allocation of rights and obligations to particular entities under international law, albeit at first regarded by political realists as something secondary to power politics and as subordinated to power action and political interest, in essence becomes the primary and ultimate aim of the agenda pursued as part of that very same power politics, and is indeed an indispensable final step to secure the success of this political agenda. The success of such a political agenda would enhance the power position of pro-Kosovo great powers even more, putting them in the privileged position that could eventually secure not only their power primacy but also their ability to change, or provide exceptions to, existing international law. The ability to secure legal change, along with getting one’s way factually and politically, thus becomes an inevitable component of any meaningful domination or hegemonic status that is to be sustained and maintained.^{Footnote 58}

In Frederick the Great’s time, carrying out such an agenda was much easier, given that military conquest provided a legal title for territorial acquisitions. However, the revisionist agenda becomes, in modern times, more difficult to complete and successfully implement against conflicting, and at times overarching, legal rules and regimes. The following sub-sections illustrate this using the examples of two strategies pursued to adapt legal positions to the political agenda.

Unilateral reinterpretation of Security Council resolutions

One strategy witnessed in the Kosovo situation is the unilateral reinterpretation of Security Council resolutions by states, which is done at the cost of distorting their textual meaning but to the benefit of the states’ own foreign policy agendas. The political drive to exit the 1244 framework has been reflected in the US and UK submissions to the International Court of Justice during the Kosovo UDI Advisory Opinion hearings, which addressed the continuing binding force of resolution 1244(1999). To illustrate, the UK position before the Court was, in reference to the UN Secretary-General’s view, that ‘the situation established under resolution 1244 was, however, unsustainable in the long term’.^{Footnote 59} According to the UK:

This inevitably presupposes that there would be some unilateral determination as to when and whether provisional institutions should cease to be provisional. These submissions say little more than that individual states could unilaterally determine when and on what conditions the collectively adopted Security Council resolutions could produce their effect.

Ordinarily, it is a principle of paramount importance under the law of international organisations that a decision made by an organ such as the UN Security Council could be abolished or amended only through the collective will and decision of this very same organ. Apart from this institutional aspect, the issue has broader normative importance, directly related to the binding force of Security Council decisions under Article 25 of the UN Charter and, through that provision, to the binding force and observance of the terms of the Charter itself. As we have already seen, the International Court has rejected this unilateral exit option in relation to Kosovo.

The portrayal of Kosovo as a sui generis entity

Another strategy aimed at securing Kosovo’s exemption from the legal position ordinarily applied to the position of secessionist entities, has been to portray it as a sui generis entity, entitled to independence on some special basis. The initial endorsement and approval of this idea came from the US State Department.^{Footnote 61} However, none of the factors cited envisaged the independence of Kosovo, and resolution 1244 expressly preserved the opposite position. A political drawback of the sui generis approach is its selectivity, in that it attempts to exceptionally legalise and permit that which is generally unlawful and not permitted.

Modern legal regulation of secession claims under international law, by according primacy to territorial integrity over the aspirations of secessionist groups, is a formula that applies to all states and, therefore, provides a framework of general satisfaction of states within the international system. Addressing the concept of ‘peace by satisfaction’, Raymond Aron observed that ‘satisfaction will be lasting and assured only on the condition that it is general. If one of the actors nourishes ambitions or is suspected of nourishing them, how could the others keep from returning to the infernal cycle of competition?’^{Footnote 62}