I previously linked to Christopher Hitchens and Michael Totten analysing why the Kosovo case is quite different from the cases of either S Ossetia or Abkhazia, rendering spurious/dishonest Russia’s recognition of the latter two as new states.

Here for good measure is former US Ambassador to Zagreb and Belgrade, my friend Bill Montgomery, who points up some similarities and concludes:

While Western leaders will be quick to point out what they view are profound differences between these cases (and also point out the brutal crushing by Russia of the attempted independence of Chechnya located in the middle of Russia as an example of a cynical Russian double standard), the reality is that the Kosovo case has opened the door for what has now followed. We are, at least to some extent, "hoisted on our petard," as the English would say.

[US/UK linguistic rivalry note: in fact we English say ‘hoist’.]

Here is my view on this Kosovo Precedent issue.

There are in fact different sorts of precedent at play as between these three situations. They are not discrete or even conceptually coherent – in diplomatic and political life they overlap and get entangled in all sorts of ways.

1   Precedents of Fact:

These are factual similarities which give rise (or are seen as not giving rise) to good reasons for the states round the planet to deal with Case B as Case A has been handled.

Bill’s article lists some pertinent similarities here, such as UNSC Resolutions, unilateral declarations of independence, use of (or threat of use of) force by the former capital against the territories concerned, historic struggles for ethnic identity.

As Michael Totten points out, the legitimacy of the now-existing facts may differ – a territory which chases out one ethnic group to try to proclaim itself independent is not coming to the issue with clean hands. (Note: indeed, as some people argue was the case for the state of Israel.)

Basically, in most of these circumstances facts can be ambiguous or contested or denied as being relevant. Therefore recognising new states is an issue fraught with politics and operational complexity, even though in international law theory one basic test of qualification for statehood sounds rather ‘objective’:

The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states.

2   Precedents of Law:

This is the interpretation of facts as entered into international law norms through decisions or practice. If it can be shown that where facts A, B, C and D apply a state has been recognised, that makes it harder for those opposing recognition where such facts also apply. The whole ‘legal’ business in this area is of course highly political – hence general lack of recognition of Taiwan. See also Kurds, passim.

3   Precedents of Process:

These are earlier examples of how tricky recognition issues in fact have been handled previously. They are called in aid (or denied as being relevant) as necessary. One easy example is where a state divides in two via an uncontested divorce: see eg the emergence of Czech Republic and Slovakia from the former Czechoslovakia, or more recently the independence of Montenegro.

For a very different scenario, the Canadian Supreme Court has given some solid hurdles for Quebec to pass if it is to secede from Canada – an example not unfairly cited in Belgrade against the way Kosovo has been dealt with. And, of course, see Taiwan.

4   Precedents of Outcome:

How have different independence bids in fact fared? Failure to secure independence (and thereby general international recognition leading to UN membership) even in reasonably propitious circumstances may lead to a legal and actual mess, which both deters others from trying and deters states from recognising those who do try.

OK, OK.

Therefore what about Kosovo and S Ossetia/Abkhazia?

Where key Western powers went irrevocably wrong on Kosovo was (I think) on the Precedent of Process, although the Precedent of Law was also dodgy.

Following the end of the Cold War there had been a general and basically successful collective understanding in Europe (and therefore round the world) that new countries would emerge in Europe if ‘all concerned were happy (or happy enough)’. This also linked in to the principles of the historic 1975 Helsinki Final Act, where respect for territorial integrity is writ large.

The core (accurate) conclusion of Washington and most EU capitals was that in the Kosovo case the prospects for Kosovo staying peacefully within Serbia were zero. This in turn led them to conclude (unwisely) that an enforced divorce now – and, vitally, solely on the terms demanded by Kosovo – was the only credible option.

They also took the view (wrongly) that Russia, Serbia and others known to be unhappy would come round to agreeing, or could safely be ignored huffing and puffing away inconsequentially in the corner.

To pursue this approach Kosovo had to be dealt with outside a Helsinki-style consensus framework, in a weird sort of ‘multilaterally-unilateral’ way. The first time this had happened since 1975.

We see now that this conclusion represented a serious misjudgement of Putin’s Russia, and also of the capacity of Belgrade to drum up diplomatic support round the planet playing on old Non-Aligned Movement friendships. Failure to secure consensus for Kosovo’s independence even within the EU merely piles on the embarrassment.

Having messed up on the Precedent of Process, the ‘pro-Kosovo’ Western powers have allowed Russia to pounce.

In Georgia’s case Russia can make a sort of case that similarities between Kosovo and S Ossetia/Abkhazia tick the Precedents of Facts box, and that it is merely following Western examples on Precedents of Law and Process.

The very unconvincingness of the global community’s recognition (not) of Kosovo makes the Russian move easier. Had the world community quickly moved to recognise Kosovo the Russians would have had to think hard about the fatuous independence claims of S Ossetia and Georgia, as they would have had no chance of achieving a similar result.

As it is, Russia more or less alone recognises these puny territories. And says "oh shucks, it will take time to secure general international recognition of Kosovo – just as in these two cases. But we are realistic – and patient…"

NB Moscow in fact scarcely cares whether anyone else does recognise as well! Maybe better if they don’t.

The point of Moscow’s policy is not to tick international law boxes, or to care about S Ossetia or Abkhazia or Kosovo or Serbia.

It is to put a political-psychological Russian force-field round these scraps of territory, separating them decisively from Georgia and keeping open the option of absorbing them into the Russian Federation if that is an easier way to deal with them down the road

That sets a lively new Russian Precedent:

"You do what we don’t like, we do what you don’t like. In our back yard (which, by the way, we define in rather expansive terms) we’ll rearrange the post-Soviet demarcation lines as and when we choose to do so. Don’t expect you to like it. But tell us – what exactly do you plan to do about it?"

So far?

Not much.