Might makes right?

The breakaway of Kosovo demonstrated that secession has little to do with international law or morality and everything to do with politics and power. But the same sponsors of that violent event now call Crimea's self-determination illegal and immoral. Is it a case of double standards? Do world powers prefer the legal ambiguity surrounding secession to justify their incongruent positions? Oksana is joined by Associate Professor of International Relations at Macquarie University, Dr Aleksandar Pavkovic, to debate these issues.

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Oksana Boyko: Hello and welcome to Worlds Apart. The Crimean referendum has helped to re-open the cold case of territorial integrity vs self-determination. With the Kosovo precedent now being relied on by Russia and dismissed by the West, is it once again a case of might making right? Well, to discuss that, I'm now joined by Aleksandar Pavkovic, a professor at Macquarie University in Australia and the author of the book 'Creating New States'. Professor Pavkovic, thank you very much for appearing on the show.

Aleksandar Pavkovic: You're most welcome.

OB: Now, the recent referendum in Crimea has revived this old debate about legitimacy or illegitimacy of secessionist movements and we hear various sides accusing each other of violating international law but, as far as I understand, the law itself is far from being settled on this issue isn't it?

AP: Well, not being a lawyer, I should say that I don't think there is international law on secession. So any appeal to international law is an appeal to a variety of either judgements or a variety of principles, none of which really deal with secession.

OB: So it's all about political statements after all, and scoring political points and making political rhetoric essentially?

AP: That's what I think and it's not only my opinion. Quite a number of international lawyer also believe that secession is not regulated by international law and that consequently, any statement that we make about secession is a political statement primarily.

OB: Now, given that we've seen quite a few secessionist movements since the late 1980's, why do you think the law is so ambiguous, so vague on this issue? Isn't it because this ambiguity leaves plenty of loopholes for political manipulation by, you know, all sides involved?

AP: You can put it that way, but I think that the answer is relatively simple. States want to preserve their territory, that is one of their main functions and consequently, any attempt to regulate how you take away territory from a particular state is going to be controversial because very few states are ready voluntarily to give up territory.

OB: Professor Pavkovic, you just said that states are not really eager to allow part of their territory to go independent, but a number of countries have been quite active in supporting independence movements in other states. I wonder, how often does international politics drive secessionist movements? Is it possible, in this day and age, to find a truly independent independence movement that would be free of geopolitics?

AP: Well, one lesson that every secessionist movement has learned by now is that if you do not have the agreement of your host state, of your state form which you are seceding, if you don't have agreement to gain independence from that, then you need an outside sponsor. There are no secessions, no successful secessions, which occurred without an outside sponsor. Now, given that, whenever you have a secessionist movement which is serious about gaining independence, seceding, they will seek an international sponsor, and often they will gain it. Sometimes they don't gain international sponsors, and in most cases they don't succeed in gaining independence. So, there is a dynamic there which is relatively unexplored, but we are at least aware that you cannot successfully secede without an international sponsor.

OB: Now, this dynamic as you said, may be unexplored but I think it's used quite often in modern geopolitics. Now, in the absence of clear legal guidelines, arguments for or against secessions are often couched in moral terms and morality is a bit like beauty, it's in the eye of the beholder. I guess you can make a moral case both for and against any secession movement, right?

AP: This is true, not only, one couldn't really say, strictly speaking, that morality is in the eye of the beholder. A lot of people would disagree with that. But when you look at scholarly work on secession and on morality of secession, you will find indeed very different theories, and sometimes contradictory theories, of how morally to regulate secession. So given the variety of these theories that we have, you cannot have a moral argument for or against secession which will be uncontested, and one of the reasons, very simple reason for that is that secessions are not moral events. In other words, these are political phenomena and therefore they have their own political dynamic. They are not regulated, strictly speaking, by morality. We attempt to do so, but we won't ever, I think, we won't be able to regulate it by moral principles.

OB: Now, I don't want to appear cynical, but I think in geopolitics, human deaths have long been used as a moral argument and unfortunately the more deaths there are, the stronger seems to be the argument. You mentioned in one of your public lectures that up to 80% of secessionist movements involve some form of violence, and I wonder if this propensity towards violence is a direct result of the ambiguity of the law, when the ambiguity is, in fact, something that incentivises this violence, which could later be used to legitimise a secessionist movement?

AP: This is an excellent point, and quite a number of scholars point out that secessionist movementsoften if they are faced with opposition, with a rejection by the host state, are in fact motivated to useviolence in order to provoke either moral outrage in outside states or to wear down the enemy. In other words, violence is a useful instrument when you cannot achieve your aims by other means. Now, I don't think that that could be avoided by legal regulation. I have a feeling that one way of resolving this issue is to make territory less valuable so that the host states would be more inclined to give up territory when there is a very strong secessionist movement there. I think that would be a more elegant solution to these problems, and we have such solutions, for example, in Scotland we might have a solution through a referendum without any violence. So there are peaceful solutions to secessionist conflicts and I think we should really foster those instead of trying to find some sort of legal regulation.

OB: Now, speaking about bloodshed and excessive bloodshed, I think this argument was used as a part of the justification for Kosovo's independence, and I think it was also used later by western politicians to explain why Kosovo was such a unique case and why it shouldn't be used as an international precedent. But given the statistics you cite in your lecture, that is 80% of secessionist movements being accompanied by some sort of violence, it seems that Kosovo's case is not that special, after all.

AP: That's correct, and the argument that Kosovo has produced extraordinary amount of civilian deaths, and that itself justifies independence of Kosovo, is both empirically very difficult to uphold because the question there arises – 'how many deaths are sufficient for independence?'. In other words, what do you compare it with? And when you compare it to other kinds of successful secession such as secession of Bangladesh in 1971, which had many more deaths involved that Kosovo, and was indeed a precedent, if you want, for successful secession, we can see that there are many precedents of Kosovo, both in terms of violence and in terms of successful secession, so that Kosovo is in no way unique; however, this is not the point. It's really not the statement about the uniqueness of Kosovo, it's really not a point about the history of secession, it's rather a point that the governments which are arguing this is a unique case, what they're basically saying is 'we are not going to support secessionist movements of this kind, so please don't take us as encouraging secessionist movements'. And, you know, this might be a way of saying that, but it's not a very effective way of saying that. Secessionist movements are not going to listen to this kind of rhetoric.

OB: I think it's also a very political statement, saying that what you do is right but if the same type of rules were to be applied to your opponent, well, they would be illegitimate. I think we already, we just discussed how politics is involved in secessionist movements, but I think it also plays a very significant role in whether the state, a new state, is recognised after the fact of secession. From your own research, I wonder how arbitrary or self serving that recognition process really is?

AP: Well, there is a general theory of international relations, which is often called realism or neo-realism, which says that states are selfish and behaving in self-interested ways, and all this is a contested theory, there are many others. It's difficult to deny that states have their own interests and that these interests change, of course, but they will act on those perceived interests at any moment of time. So at some point they would support a secessionist movement, at some point it wouldn't, depending on the circumstances. So it's a very difficult situation in which you, if want to say 'this state will always support secessionism and another will not'. And I've been looking at this problem and my very, very, general and very fuzzy impression is that if you are looking at states which do not support secession, only the People's Republic of China is consistent in not supporting secessionist movements anywhere else. The other states which profess not to support, in fact, from time to time do. So, in terms of consistency when it comes to supporting secessionist movements, you can't find very much consistency, especially over longer periods of time.

OB: Now, the UN Friendly Relations Declaration from the 1970's enshrined the principle of non-interference in the state internal and external affairs, and since there is nothing that explicitly bans declarations of independence, I wonder if it could be argued that this whole process of recognition, or denying recognition represents a form of interference because, you know, that interference after all, could have very far-reaching consequences, and one example I could provide is the example of Yugoslavia where the immediate recognition of both Bosnia's and Croatia's secessions by the West led to a very bloody and very protracted war?

AP: Well, the question arises to what extent recognition itself is the cause of these kinds of bloody events. It's quite possible that there are...

OB: But surely it could be taken as encouragement by some powers involved if, you know, you mentioned sponsorship, international sponsorship, later on. This is also a form of international political sponsorship.

AP: That's correct. Now, when it comes to the case of Bosnia and Herzegovina and some former Yugoslav republics, the minimal argument that I think one can advance is that recognition of these states, or promise of recognition of these states, have discouraged them from trying to resolve their internal and external conflicts peacefully. Because they, the governments, the new governments, secessionist governments knew that they're going to get recognition so they were not at all motivated to negotiate with their minorities, or negotiate with other secessionist groups within these states, and this is quite obvious in the case of Bosnia and Herzegovina, where the US has supported one faction within this state, because that faction they believed, at the time, represents the whole state.

OB: That recognition may have placated one side, but it has actually made the other side quite angry and, as we know, the war has continued after all. But we have to take a very short break now, when we come back – the Crimean referendum has resurrected a decade old rationale for justifying Kosovo's independence. If it was solid enough back then, why is it illegitimate now? That's coming up in a few moments, here, on Worlds Apart.

OB: Welcome back to Worlds Apart, where we are discussing the practice of secessionist movements with Aleksandar Pavkovic, a professor a Macquarie University in Australia and the author of the book 'Creating New States'. Professor Pavkovic, before we go into comparing Kosovo and Crimea, let me ask you this – western countries have long claimed that Kosovo was a unique case, but legally speaking, can you really make a solid legal case about uniqueness. Isn't the whole purpose of law to develop a set of rules that will be applied without exception?

AP: Well, those governments or lawyers who are arguing about uniqueness of Kosovo, and by the way there are not very many lawyers who would do that, unless they have to represent governments. Those who are doing that, they are really not trying to say anything about law. On the contrary, I think if you argue that Kosovo is unique, you are basically saying that there is no law of secession and no law of independence, and this is an extraordinary case which is outside of legal regulation, and I think that's the point they want to make. It's not that it's legal, but rather that it's so extraordinary that it's beyond the legal regulation. But in terms of legal precedents, you cannot find a legal precedent, a legal judgement, or a legal principal which would justify only Kosovo and no other secession. I mean, that's simply not possible. And as I mentioned, there are precedents to Kosovo, and one of the clearest precedents is the secession of Bangladesh from Pakistan in 1971, which was not opposed by the United States at the time, the United States was engaged in the Vietnam War at the time, but that was a secession which was enabled by an incursion, an invasion of the Indian Army and defeat of the Pakistani Army by the Indian Army. So it was, in a sense, similar to the whole process in the case of Kosovo. And also we find that after, the recognition came very quickly from the allies, first from India and then from the allies of India, and then UK also came in and Australia. So this was a clearcut case of a secession which was preceded by a military invasion and intervention by another state and we have the very similar case in the case of Kosovo.

OB: Going back to the inconsistency of this Kosovo uniqueness argument, I think it's underscored by the fact of how promptly the tables have turned since 2008. I mean, back then it was western powers who used humanitarian reasons, the right of self-determination and the suffering of refugees as reasons for supporting the independence of Kosovo while Serbia and Russia, as you known, stood on territorial integrity and sovereignty, but this time around, in the case of Crimea, we see a complete reversal of these positions. I wonder, from your point of view, how different these two cases are?

AP: The major difference to us who study secession is the absence of violence. And this is an extraordinary case in Crimea, we do have a sort of, let's say, hidden military intervention of an outside power, which doesn't consider itself to be an outside power because it had it's own military on the territory. So we have that, but we have no resistance, no violence, no attempt to use violence, or very little violence just after the proclamation of independence. So if you look at the history of secessions, this would be highly unusual. And it shows that both sides, Ukraine and Russia, have, in fact, a tacit agreement that violence won't solve anything there. Resistance to this would not have prevented secession, would not have really done anything, just led to deaths of people. So, in a sense, we have this, I think, quite a rational calculation.

OB: I wonder, Professor Pavkovic, if Russia could really advance this case of Crimea being a special case, not only because there is very little violence on the ground, but also, you know, there are historical ties that go back for centuries. There were some legal irregularities in the way Nikita Khrushchev handed Crimea over to Ukraine and, you know, back then he strongly, he had no reasons to believe that it would ever be beyond Moscow's control. I wonder if that could be used as a legal rationale to justify Russia's actions in Crimea?

AP: You could use it as a political justification, it has been used. There is no legal standing for this kind of argument, because if you try doing that, then Mexico could claim Texas any time. Texas was taken away illegally from Mexico. So there are some people in Mexico saying that we should get back Texas...

OB: Well I think you may be encouraging yet another secessionist movement here!

AP: I hope not. Some people accuse me of doing that, but I'm really not suggesting anything. I'm simply saying look, if you start using these arguments then you'll find all over the world, including the United States, a number of irregularities of this kind. So I don't think there's a legal argument...

OB: And I think this is exactly what legal experts were saying back in 2008 when this western rationale for Kosovo was advanced, that that would essentially open Pandora's Box, not only in Europe but all around the world, and I think this is what we are seeing happening, right?

AP: Well, that's certainly true, but what I think when Kosovo was happening, what possibly the policy makers were thinking that since Bangladesh was forgotten very quickly, in a few years, the whole issue of legality or non-legality, the whole thing, simply disappeared except in scholarly literature. They were hoping that the whole thing with Kosovo would disappear as an issue; however, it didn't disappear and I don't think it will disappear now because there are other parts of Europe that would want to secede, particularly Catalonia and Scotland. So these cases, we have a growth of secessionist movements and therefore you have one successful one, and successful one unfortunately through the use of force as in Kosovo, that will serve as an example or encouragement to other secessionists whatever you say in addition. And of course, Crimea might as well serve as an encouragement to others because they will see 'OK, if they did it, we can do it as well'. It's perfectly normal political thinking. I think there's nothing extraordinary about that.

OB: Now, speaking about Crimea, Russia made it clear that it considers the Crimean case to be closed. President Putin has signed an executive order solidifying Crimea joining Russia, but what is not a done deal is international recognition of Crimea's new status, and western countries have already made it clear that they are not going to recognise it any time soon. I wonder though, if international recognition in this case matters at all? Because as part of Russia, supposedly Crimea wouldn't have to suffer some of the discrimination that other unrecognised quasi-states suffered in the past. I guess just the fact of it joining Russia will shield it from many of those negative consequences.

AP: That's probably true, and that might have been an additional reason for secessionist politicians in Crimea to argue for such a quick incorporation into Russia, because that provided them protection, which they would otherwise as a small state not have. And it provided the, of course, recognition insofar as they are part of a functioning state. So that idea that you find yourself a powerful sponsor and become part of that as a state, is not a very frequent phenomenon in the secessionist world, partly because there are not many sponsors who want to take parts of territory and incorporate into their territory because there's too heavy a cost. And of course, I think Crimea will be costly in terms of the incorporation but, given that the Russian Federation can afford that kind of cost, I don't think it's a major issue in this case. Crimea is a particularly interesting case because it provided a very quick, as it were, secessionist outcome and then incorporation in a large and powerful state, and some secessionist movements might think that this is really the way to go, except of course, as I said, there will be very, very, few sponsors.

OB: Well one such example would be, for example, the case of Northern Cyprus. It's been 30, 40 rather, years since the Turkish invasion, and Northern Cyprus is not formally part of Turkey but de-facto it is. And as far as I know, Turkish Cypriots have been developing, you know, pretty rapidly. Even notwithstanding the fact that no other country apart from Turkey recognised them formally.

AP: Northern Cyprus is also interesting because there are significant segments of Turkish Cypriot population who would want to unite back with Cyprus for the benefits of EU membership. And Turkey is not, probably, for some time to become a member of the EU. Cyprus is already a member, so there is an attraction. And this is a new element in secessionist movement, and that is the attraction of the EU, because the EU brings infrastructural funds, it brings investment. So if you can get into a country which is a member of the EU, there are definite benefits. And you can see that in the case of the two new secessionist movements, the Scottish one and Catalonian one, they are very strong on retaining the membership in the EU, because that's considered to be a great prize for any state in Europe.

OB: Professor Pavkovic, what I find very curious is that, you know, countries or states that are outside of the European Union really want to get in, but there are a number of countries like Britain, for example, which would rather prefer to get out and free themselves from the EU. Since we have only a few minutes left, international law has traditionally approached secessionist conflicts through the effective control doctrine. So essentially, it doesn't mean whether the secessionist movement was legitimate from the very beginning. What it means is who is calling the shots at the end, and I wonder if this is, in this sense, any secession movement is essentially a case of might making right?

AP: Well, you can say so but no secessionist movement is successful without a widespread mobilisation of population. In other words, you have to get people to vote for you or to support you. And that is an exercise of political skill and political might but it's really not an exercise of coercive power. So secessionist movements, unlike, other, if you want, international relations are not governed by the sheer fact of coercive power. It is a question of the ability to politically mobilise a population, and that, of course, is helped if the population has grievances. So you are, as a secessionist movement you are basically exploiting people's grievances to convince them that they need a separate state of their own. So it's not quite of the sheer might deciding; however, if you have a very powerful state which s opposing you, then the question of who has more military skills, or whose sponsor have you got, becomes a crucial at the end whether you are going to be independent or not.

OB: So essentially Professor Pavkovic, we are back to where we started from, that when it comes tosecessions is not so much the law, but rather politics. I guess we have to leave it there because we ran out of time. But I really appreciate your being on the show.

AP: Thank you.

OB: And to our viewers, keep the conversation going on our Twitter, Youtube and Facebook pages and hope to see you again, same place, same time, here, on Worlds Apart.