Kosovo, Tibet: Same or Different?
By Valerie Epps
Let us first start with a question. When a group of people ― who have inhabited a definable area of land for many years and are distinct by race, ethnicity, language, culture or religion from the rulers of the area they inhabit ― announce that they wish to rule themselves (usually because of perceived long term ill treatment), and when this call for independence is backed up by a clear majority of the people in the area, why does the international community resist the claim of secession?
Indeed why is international law so reluctant to embrace such claims? Small states are not inherently unstable as Luxembourg and Lichtenstein and many other small states bear witness.
On February 17, the Kosovo parliament endorsed a declaration of independence from Serbia. Kosovo's secession, which was immediately condemned by Serbia and a number of other countries, has raised trepidation about other areas, such as Tibet, that may have separatist aspirations.
The world community has not yet decided whether it will, or will not, recognize Kosovo as an independent nation. A number of states, including China, Russia, Spain and Sri Lanka, have indicated that they will not recognize Kosovo.
Zoran Veljic, Serbian ambassador to Korea, has described Kosovo's declaration as illegal and as violating various U.N. resolutions.
A number of other states, however, including the United States, Britain, Germany and Australia have indicated that they are willing to treat Kosovo as an independent state and this group of states is growing daily.
The West takes the view that Tibet was invaded by China in 1949 and formally annexed in 1951. The history of the relationship between the two entities is actually more complex, stretching back many centuries.
Whatever the correct characterization of the current relationship, whether Special Autonomous Region, or colony, or wrongfully annexed previously independent state, it is clear that Tibet is currently ruled from Beijing.
Recently, there have been protests against aspects of Chinese rule in the Tibetan capital and in other cities, with reports of bloodshed and many arrests. It is not clear exactly what issues all of the protests have focused on as the Chinese government was quick to exclude foreign journalists and tourists.
The Dalai Lama has said that the Tibetan-government-in-exile does not seek independence but only more autonomy within the Chinese state. No one knows whether the Dalai Lama fully represents the views of the Tibetan people.
Kosovo's declaration of independence came after much bloodshed. Certainly NATO was convinced of the widespread abuse of the Kosovars when it invaded the former Yugoslavia in 1999, probably in violation of the U.N. Charter, and thousands died during the invasion and its aftermath.
Tibet has had various uprisings against China over the years but so far, despite a variety of non-governmental organizations' support, no foreign state or regional military organization has been willing to back Tibetan claims with force. Many Tibetans, of course, abhor the whole idea of violence.
In recent centuries, the concept of state sovereignty has been the bedrock of international relations and international law. Although the idea of sovereignty has changed over time, anything that is seen as striking at the state-centered system of sovereignty is resisted as destabilizing.
The U.N. Charter introduced the idea of the ``sovereign equality'' of states, which was fundamental to a state's obligation to ``refrain from the threat or use of force against the territorial integrity or political independence of any state.''
The phrase ``territorial integrity'' was to appear later in a number of U.N. declarations concerning another concept, namely the ``self-determination of peoples.'' The precise meaning of this phrase remains controversial although some core concepts are clear.
There has been a gradual evolution of the concept of ``self-determination.'' By the 1960s it had been decided that colonialism was oppressive and it was accepted that people had a right to freedom from colonial domination.
By the 1970s, self-determination was linked to a peoples right to freely ``determine their political status'' and this was connected to the state's obligation ``to respect this right.'' Many U.N. declarations on the right to self-determination, however, ended with a careful disclaimer of any intention to encourage secession.
The idea was that if the government was representing the whole of the people fairly, then there was no right to secession. Exactly what ``fair representation'' means, or whether there is ever a right to secession, is far from clear.
Views run the gamut from an outright rejection of secession in any circumstances, except colonialism, to the assertion of the right to secede when any group, with an identity different from the ruling group, cannot fully participate in state governance or does not receive its fair share of state benefits and wishes to become independent.
Of course, territorial areas within a state can choose to separate peacefully as Sweden and Norway did in 1905 and the Czech Republic and Slovakia did in 1993. Nobody opposes secession if it accords with the wishes of the people and does not result in bloodshed and instability.
Sadly, many recent examples of successful secessions have come at the price of widespread havoc and loss of life as East Timor, Eritrea, and the Balkan states including Kosovo, testify but often the bloodshed only comes in the wake of gross violations of the human rights of the group seeking independence.
We fear instability, with good reason, but we also find repression of minorities unacceptable.
The equation that the international community is trying to work out is when the level of repression is high enough to overcome the state-centered system of international relations with its emphasis on territorial integrity.
In 1945, when the U.N. Charter was ratified, the idea that people might have rights derived from, or in opposition to, the state was only in its infancy. Similarly, the right of people to participate in government was only just beginning to take hold.
Although the nation state has changed its characteristics dramatically in the age of globalization, with international and regional structures taking over many state functions, the state remains a key player in the international framework.
Where a government does not permit full participation by its people in decision-making, or oppresses certain groups, claims for independence are likely to find support. Kosovo's declaration, if ultimately successful, will move the idea of self-determination a little closer toward the acceptance of secession in limited circumstances.
The reality of NATO's intervention and backing against the relatively weak and disintegrating state of the former Yugoslavia distinguishes the Kosovo situation from Tibet.
It should be remembered that it took the collapse of the Soviet Union to ensure the independence of its satellite states, despite years of rhetoric on behalf of many of those states by Western states.
It is still true that power plays an important role in the creation and sustaining of legal rights despite the fact that the whole idea of law is to move away from ``might makes right.''
Unless the Chinese government begins to collapse, which seems unlikely, Tibet will probably continue to be ruled by Beijing.
The Kosovo example, however, may persuade the Chinese government that granting more autonomy to Tibet just might be sufficient payment to placate the world community in the summer of the Beijing Olympics.
Valerie Epps is a visiting professor of law, Hongik University College of Law in Seoul and professor of law and director of the International Law Concentration, Suffolk University Law School, Boston. She can be reached at firstname.lastname@example.org.