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 [JMM: I, never to miss the obvious, agreed with Jack on Syria] 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. [emphasis added by JMM]