Chinese Journal of International Law Advance Access originally published online on January 24, 2009
Chinese Journal of International Law 2009 8(1):2-25; doi:10.1093/chinesejil/jmn040
| ||||||||||||||||||||||||||||||||||||||||||||||||||
© The Author 2009. Published by Oxford University Press. All rights reserved
AGORA: KOSOVO |
Precedents in the Mountains: On the Parallels and Uniqueness of the Cases of Kosovo, South Ossetia and Abkhazia
Correspondence: * Professor, King's College, London, UK (email: rein.mullerson{at}kcl.ac.uk); Marco Polo Fellow of the Silk Road Institute, Xi'an Jiaotong University (China). This article was completed on 1 November 2008.
International law, especially its customary part, evolves to a great extent through acts of State practice serving as precedents. If States do not want that their behaviour becomes law (i.e. if they prefer to act contrary to Kant's categorical imperative), they claim that certain acts of their behaviour are so unique, so peculiar that they must not be considered as contributing to the change of law (they express their opinio non juris). In the 1990s, the UN Security Council also found that only uniqueness of situations in Somalia, Haiti and Bosnia-Herzegovina justified the use of "all necessary means" to deal with those situations. More recently, the recognition of the independence of Kosovo by a number of States and the recognition of Abkhazia and South Ossetia by Russia were described by recognizing States as being so unique, so sui generis that they could not serve as precedents. The article argues that the uniqueness, or parallels for that matter, is usually in the eye of the beholder. Whether certain situations, facts or acts serve as precedents depends to a great extent on whether one is interested in seeing them as precedents or not. People too often act upon their ideologies, beliefs and prejudices, not upon facts; the latter are interpreted in the light of preconceived ideas, or as Charles King, writing of the Georgia–Russian war, observes, "unfortunately, Western thinking of Russia has too often substituted analogy for analysis" ("Putin's March to the Sea", Foreign Affairs, Vol. 87, No. 6, November–December 2008). Then this article proceeds to study in greater detail parallels and differences between Kosovo, on the one hand, and Abkhazia and South Ossetia, on the other. The study ends with an inquest into the matter of how different States (or categories of States) deal with secessionist problems.