A Tale of Two States: Territoriality and Minority Rights in Kosovo and Georgia

Abstract

Over the past decade, violent secessionist struggles have taken place in Kosovo and in South Ossetia and Abkhazia. Whereas Kosovo successfully declared independence from its mother state, Serbia, in 2008, South Ossetia and Abkhazia have officially remained an integral part of their mother state, Georgia. The two conflicts highlight the tension between the principle of territorial integrity on the one hand, and the need to protect minority rights on the other. Preserving the territorial integrity of mother states would lead toward denying remedial secession to struggling minority groups and arguably thereby refusing to respect minority rights. Allowing minorities to secede, in the goal of having their rights to self-determination fulfilled, would lead toward disrupting the territorial integrity of mother states. How can we reconcile the principle of territorial integrity with minority rights, and in particular, with the idea of self-determination – that every “people” ought to have a nation-state? This Article will argue that territoriality and minority rights can work in tandem, because most secessionist claims by minority groups involve claims to territory. Thus, territoriality and minority rights are both about land, and the relevant inquiry should be whether to alter the status quo, at the expense of a mother state’s territory and in order to accommodate minority rights. This paper seeks to answer this difficult question in the context of recent secessionist struggles in Kosovo and in Georgia. Part II will discuss the principle of territorial integrity under international law, before turning to a discussion of minority rights, and in particular, the principle of self-determination. Part III will focus on Kosovo and will describe the recent war in this region, leading toward the Kosovar unilateral declaration of independence in 2008. Part IV will similarly focus on Georgia, and will describe the recent conflicts in South Ossetia and Abkhazia. Part V will attempt to propose a reconciliation between territoriality and minority rights, by comparing the conflicts in Kosovo and Georgia, by arguing that the conflicts have produced different results because of politics, not because of law, and by outlining principles which could be relevant in examining future secessionist struggles. This Article concludes that the international community should rely on objective legal criteria in judging the validity of secessionist struggles, rather than drawing conclusions based on political calculus.