International Law

The Precedential Value of the Kosovo Non-Precedent Precedent for Crimea

By Jack Goldsmith
Monday, March 17, 2014, 10:00 AM

When the Obama administration invoked the 1999 Kosovo intervention as a precedent in the run-up to the planned Syria invasion, I wrote a post that argued that Kosovo was not a precedent for lawful international action.  The Kosovo intervention violated the U.N. Charter, but the West was less concerned with that fact than with limiting the intervention's precedential value. Mike Matheson of the State Department famously said that NATO tried to justify the action in a way that would “not weaken international legal constraints on the use of force,” and he listed the contextual factors preceding the intervention as a “pragmatic justification designed to provide a basis for moving forward without establishing new doctrines or precedents that might trouble individual NATO members or later haunt the Alliance if misused by others.”  The Independent International Commission on Kosovo (and many others) came up with a pithier account: the intervention was "illegal but legitimate.” The United States also tried to limit the future impact of its recognition of Kosovo as an independent State in 2008, explaining that “[t]he United States considers Kosovo to be a special case that should not be seen as a precedent for other situations” (emphasis added).

Russia has always hated the Kosovo intervention and Kosovo’s independence, and probably doubly abhorred the Obama administration’s proposed reliance on the Kosovo non-precedent precedent as a justification for its (almost) invasion of Syria. But Russia is now invoking Kosovo---both the 1999 intervention, and Kosovo’s 2008 declaration of independence---in support of Crimea’s independence movement. Last week Russian Foreign Minister Sergey Lavrov proclaimed (at just before the 10-minute mark): “If Kosovo is a special case then Crimea is a special case; it’s just equally special.” Not to be outdone by references to Kosovo, the presidents of the European Commission and European Council said on Sunday: “The referendum is illegal and illegitimate and its outcome will not be recognised" (emphasis added).

What to make of all this?  There are many factual differences between Kosovo and Crimea, but I find it hard to argue that Kosovo is obviously lawful while Crimea is obviously unlawful. By choosing the “illegal and illegitimate” formulation and inviting the comparison to at least the Kosovo intervention, the European bigwigs seem to agree. International law drops out because both actions were illegal, leaving only a fight over “legitimacy,” which is even more in the eye of the beholder than legality. One might add that the question of independence turns less on the legality or legitimacy of the independence claim, and more on the interests of the nations deciding whether to recognize, which are all that matter in the end. One might also view these events as further evidence of my (somewhat obvious) claim that “the precedential value of an action under international law cannot be established at the time of the action, but rather is determined by how the action is interpreted and used in the future.” Or one might go further and, perhaps after a glance at the U.S. invasion of Panama (to take one of many possible examples), say that precedent (as well as non-precedent and non-precedent precedent) plays no consequential role in the use of force context.