The Language of Law and the Practice of Politics: Great Powers and the Rhetoric of Self-Determination in the Cases of Kosovo and South Ossetia

"When the President [Woodrow Wilson] talks of 'self-determination' what unit has he in mind? Does he mean a race, a territorial area, or a community?" It was a calamity, [Secretary of State Robert] Lansing thought, that Wilson had ever hit on the phrase. "It will raise hopes which can never be realized. It will, I fear, cost thousands of lives. In the end it is bound to be discredited, to be called the dream of an idealist who failed to realize the danger until it was too late to check those who attempt to put the principle into force."1 "... to imagine a language means to imagine a form of life."2 I. INTRODUCTION If international law is all but irrelevant to international relations, as some skeptics maintain, why do states spend so much time and effort justifying their actions under international law? Saddam Hussein attempted to justify Iraq's invasion of Kuwait in 1990. George W. Bush attempted to justify the US's invasion of Iraq in 2003. Vladimir Putin attempted to justify the Russian invasion of Georgia in 2008. The immediate reaction by many is to dismiss this as "cheap talk," a rhetorical fig leaf or simple bluster of litde consequence. This Article aims to debunk the notion that the rhetoric surrounding international law is of little consequence. Rather than mere cheap talk, the rhetoric of international law is at times (but not always) used by great powers (and other states) in an attempt to gain tactical, if not strategic, advantages. This Article seeks to elucidate what is acceptable and what is not in modern diplomatic discourse and the relation of this acceptability to state practice. In this sense, international law serves as both a vocabulary and a grammar for diplomacy. International law is a vocabulary in that it defines the words that can or cannot be used in diplomatic discourse, the terminology that is or is not acceptable. For example, no state declares, "we choose to act as aggressors," as it would not only be admitting to illegality, but it would also be politically unacceptable. Similarly, international law provides a grammar for international relations by setting the rules by which words fit together - essentially, how ideas can be expressed. For example, "we will use our right to attack you" does not fit into the grammar of international law or international politics (barring some questionable readings by the Bush Administration). As Nico Krisch has argued, many of the central tenets of international law have remained stable over a century or so and thus international law itself is "a prime source of legitimacy."3 It tells us which constructions are permissible. By cabining what can be said in international relations, international law defines norms, shapes expectations, sets the boundaries of what can be legitimized and, ultimately, can make it more or less likely that certain state actions will be successful. I will use one topic area - arguments over self-determination - and two cases - Kosovo and South Ossetia - to explore this relationship between the language of law and the practice of politics. This Article begins by briefly setting the background of the Kosovar and South Ossetian conflicts. Section III is a quick primer on the evolution of the concept of self-determination and its at-times difficult coexistence with the concepts of sovereignty and territorial integrity. Section IV turns to the analysis of how legal argumentation was used by Russia, the US, and the EU in the cases of Kosovo and South Ossetia. Although I note the relative strengths and weaknesses of the arguments, I am less interested in who was right or wrong as opposed to what strategy was used (if any) in deploying the language of international law. I am especially interested in how Russia, in particular, has used the language of international law as a tool of public diplomacy in an attempt to spin the perceptions or "control the narratives" related to both Kosovo and South Ossetia. …