Introduction
The Unilateral declaration of Independence in Kosovo on 17th
February 2008, raised several primary questions of international law. The
legality of this statement based on how International Law permits the concepts such
as “self-determination”, “Statehood”, “Secession” and “Recognition”. We have
witnessed several attempts of secessions, which went both successfully and
unsuccessfully. Bangladesh successfully seceded from Pakistan after human
rights abuses and eventually admitted to the United Nations in 1974, while
Biafra which exemplifies the failure of the secession from Nigeria in 1960s
with few recognition and was reintegrated into Nigeria in 1960. The case
of Kosovo brings out basic tenets of international law, such as right to
self-determination and right of recognition. However, in 2010 the international court of
justice ruled that Kosovo’s unilateral declaration of independence was not a
violation of international law. This
paper examines the meeting of the principles of state recognition in the case
of Kosovo in international law, while also focusing on the post-cold war
approach to the same.
Background
Kosovo was
an autonomous province in Serbia within the socialist federal republic of Yugoslavia
( SFRY), until its abolition in 1989. Kosovo continued
as a part of Serbia after the dissolution of SFRY in 1991-1992. FRY was
transformed into Federation of Serbia and Montenegro in 2003 and Montenegro
declared its independence in 2006 with the consent of the central government. Since
then, Serbia maintained as the descendant of the FRY.
The humanitarian
intervention in Kosovo date back to the late 1980s as the autonomous status of
Kosovo was annulled. Due to discrimination and civil war-like situation, NATO
initiated their mission in Kosovo.
In 2007,
the issue of Kosovo was brought before the UN Security Council, based on the
plan submitted by UN Rapporteur Martti Ahtisaari. While this was rejected by
Serbia, this was however accepted by the authorities in Kosovo. However,
Security Council refused to support the supervised independence of Kosovo based
on the Ahtisaari plan. During
this background, Kosovo declared the independence of the province from Serbia
and made the appeal to international community for recognition on 17th
February 2008, which subsequently achieved mostly from the western countries.
On July
22, 2010 the international Court of Justice (ICJ) issued its longed-for
advisory opinion on the legality of Kosovo’s declaration of Independence. The
ICJ concluded “the adoption of the declaration did not violate any applicable
rule of international law”.[1]
Kosovo’s Unilateral Declaration of
Independence under International Law
When
talking about the legality of the statehood, the obligations of Montevideo
convention is very much relevant.The Montevideo Convention on Rights and Duties
of States, in its article 1 says “the states 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 other states.[2 If we
turn to the Kosovo case and seeking the application of above mentioned
criteria, we cannot give precise results. While
its populations and the territory seem to fulfill the requirements of first two
criteria, the requirements of government and Capacity to enter into relations
with other states can be considered as problematic.
Territory and Population
At the time of its declaration of independence, Kosovo announced
that its international borders would be effectively the territory of almost
11,000 km2 that was administered by the United Nations Mission in Kosovo
(UNMIK). Under the 1974 Yugoslav Constitution, Kosovo was granted the
status of an autonomous province with same rights and responsibilities of six
other Yugolslav republics.However, within the Socialist Federal Republic of Yugoslavia,
Kosovo was never a constituted as a Republic, but only as an autonomous
territory.Therefore, legality for self-determination should be created
according to the Yugoslav constitution. However, an extensive rights were given to this province such as , Autonomous government, Supreme
court, A separate territorial defense army etc.
At the
time of declaration, Kosovo’s population was about 2
million and 88% of them were Kosovo
Albanians, 6% Kosovo Serbs, 3% Bosniaks plus smaller minorities of Roma and
Turks. However,
during the break Yugoslavia, people couldn’t make up their mind whether to
become citizens of Bosnia-Herzegovina, Croatia or Serbia. Hence the term of
“permanent” doesn’t mean the number but
the loyalty of the people in that state during the declaration of statehood towards the organized political auth
Government
All though Kosovo had formed a police force, other powers, such as the primary responsibility for law and order, customs or monetary policy, were still under international representatives.
Since because resolution 1244 remained in force even after the declaration of independence of Kosovo, there is still international territorial administration present, therefore, it is really questionable whether Kosovo has such a government.Colin Warbrick argues that Kosovo does not fulfill the criterion of government, because many functions of the state were being discharged by international missions, such as UNMIK, the European Rule of Law Mission in Kosovo (“EULEX”) and NATO, which remain in Kosovo even after the declaration of independence
Capacity to enter in to relations with other states
With regard to the ‘capacity to enter into relations with other states’, as so many of Kosovoʹs institutions rely on the foreign presence.However, the international community specially the western powers supported Kosovo’s capacity even in real fact Kosovo was not developed enough to become an independent state.Kosovo possessed its competent diplomacy to enter into the foreign relations, through assistance of the international community.In addition to above mentioned criteria, states who were strongly protesting against the unilateral declaration, argued on how Kosovo’s declaration is a violation of the international law.
This argument was supported emphasizing that Kosovo although under international administration since June 1999, was a province of Serbia. And the UN security council had affirmed the “sovereignty and territorial integrity” of then Federal Republic of Yugoslavia according to the resolution 1244 (1999) Allowing the recognition of the statehood of the territory seceding from another state without its consent would not be possible. According to James Crawford even after 1989, when 21 states have appeared, the principal that the territory cannot be seceded from the state without its consent was remained valid.
Hence, concept of “territorial integrity” was continued during post -1989 period of the declaration of independence. We also have to look at how the international community has viewed its claim to statehood following the NATO intervention and the adoption of the Security Council resolution 1244. This resolution reaffirmed the territorial integrity of the FRY.
On the other hand, the UNMIK- FRY common document adopted in Belgrade on 5th November 2001 confirmed to”promote the protection of the rights and interests of Kosovo serbs and other communities in Kosovo, based on the principles stated in UNSCR 1244, including the sovereignty and the territorial integrity of the Federal Republic of Yugoslavia…”
According to Crawford, in doctrinal terms, it’s emphasized that the Kosovo’s independence and secession has not been considered lawful or permissible after the SFRY’s dissolution. Kosovo has been denoted as an unsuccessful attempt of secession.
De Facto
Accordingly we can judge that Kosovo’s statehood should be reviewed by the principles that apply to de facto regimes; a state-like organism that satisfies the criteria of factual effectiveness of statehood but does not meet the legal requirements.Italy’s recognition text corroborates this view, declaring that “Kosovo’s independence is today a fact. It is a new reality which we must face and acknowledge”.( Italy’s recognition text in Warbrick, above n 4, 687.)
The Recognition of Kosovo
However, the recognition of Kosovo came into action against these arguments. It was the United States, which accepted that Kosovo should no longer be formally a part of Serbia, recognizing Kosovo’s declaration of independence on the next day.Some EU members including UK, Germany and France also supported Kosovo’s independence, while states Russia, Serbia, Spain and Cyprus remained opposition.Like that, the world had its own choices; while some countries had made their decisions months in advance.However, the specificity of the case of Kosovo depends on some particular scenarios such as:
1.
Kosovo was under UN administration for more than 9 years when it made the
declaration of independence
2. The
international civil and military were present in Kosovo was due to serious
violations of human rights by the parent state
3. UNSC
resolution 1244 ( 1999) authorized UN to facilitate a political process to
determine Kosovo’s future status.
Anyone can claim that you are a statehood, but it always
other who consider. During the cold-war period this concept of statehood is
taken in ideological way. From the end of the Cold War
onwards, two trends were highlighted.
First, the traditional criteria of statehood have become more political
yardsticks, such as the presence of democracy and human rights protection. A significant number of states
invoke raised the idea of remedial secession in their pleadings, supporting
that Kosovo had a right to be independent due to human rights and other abuses
that it had suffered by Serbia.Secondly, regional organizations have started to supplement the formal admission criteria in their constitutional treaties with very elaborate and precise additional entry requirements
Assistant Secretary Philip H. Gordon for Bureau of European and Eurasian Affairs urged the European Union and all countries to recognize Kosovo. In his testimony before the House Foreign Affairs Subcommittee on Europe and Eurasia on the Balkans, Mr. Gordon said Kosovo has demonstrated that it's committed to being a democracy, a multi-ethnic state, that it wants to join the European Union.
"The
vast majority of EU members have recognized, and recognitions continue. I think
there's been another 15 to 20 over the past year. We're up to 85 recognitions
now. The trend is clear. The European Union would be more effective if all of
the countries had recognized Kosovo and we continue to urge them to do
so." -Mr. Gordon (http://newsblaze.com/story/20111118145702mina.nb/topstory.html
)
If anything, this has made the recognition of States more normative rather than simply factual. Similarly, this normative turn has meant that recognition have become more political and more dependent on outsiders. Kosovo belongs to “constitutive recognition” theory which believe they created the state and recognition is given by few but powerful countries. On the very previous day of the UDI, United States formally recognized Kosovo as a “sovereign and independent state” and initially, EU member states such as United Kingdom, France, Germany and Ital also followed the same position. (Constitutive Theory) the argument that the recognition of Kosovo by a third state counts as a material factor in the legal basis of its independence is premised on the thesis that recognition is constitutive.
If anything, this has made the recognition of States more normative rather than simply factual. Similarly, this normative turn has meant that recognition have become more political and more dependent on outsiders. Kosovo belongs to “constitutive recognition” theory which believe they created the state and recognition is given by few but powerful countries. On the very previous day of the UDI, United States formally recognized Kosovo as a “sovereign and independent state” and initially, EU member states such as United Kingdom, France, Germany and Ital also followed the same position. (Constitutive Theory) the argument that the recognition of Kosovo by a third state counts as a material factor in the legal basis of its independence is premised on the thesis that recognition is constitutive.
The ICJ opinion was released to the question posed by the United Nations General Assembly in October 2008 –
“is the unilateral declaration of independence by the provisional institutions of self-government of Kosovo in accordance with international law?” ICJ’s ruling over Kosovo’s declaration in accordance with the international law, was made with 69 states in favor including 22 out of 27 EU member states.
ICJ also concluded that the persons behind of the independence declaration were not the provisional institutions of self-government, but “persons who acted together in their capacity as representatives of the people of Kosovo outside the framework of the interim administration, hence the general international law was not violated.To determine whether the declaration of independence constituted a violation of these laws, the Court first addressed the question of the identity of the authors of the declarations. The Court found that the authors should be regarded as representatives of the people of Kosovo, acting outside the framework for the interim administration. In accordance with the Court’s reasoning this further means that due to the fact that there is no specific request addressed to the representatives of the Kosovo Albanians to comply with certain aspects of Security Council resolution 1244, they cannot be considered as legally prohibited from issuing a declaration of independence
Conclusion
The above-mentioned analysis indicates that the UDI in Kosovo disregards the international law, hence it cannot be validly recognized. We can argue that the recognition and ruling of Kosovo judged on the basis of international support ultimately is often political than legal. Outside of Europe, Kosovo has gained the recognition because of the diplomatic efforts of the United States and leading EU member states to promote the recognition.
[2]5.2.1. states,
The subjects of International law,
Textbook on international law, By Martin Dixon, p 115
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