Is Kosovo Legally Recognised as a State?

Is Kosovo a State, and, as far as international law is concerned, does it matter whether it is or not?

Kosovo is a disputed territory following the collapse of Yugoslavia. The partially recognised Republic of Kosovo, a self-declared independent state, has de facto control over most of the territory. Serbia does not recognise the unilateral secession of Kosovo and considers it a United Nations governed entity within its sovereign territory. On 17 February 2008, the Assembly of Kosovo declared Kosovo’s independence as the Republic of Kosovo. Its independence is recognised by 74 UN member states and the Republic of China (Taiwan). On 8 October 2008, upon request of Serbia, the UN General Assembly adopted a resolution asking the International Court of Justice for an advisory opinion on the issue of Kosovo’s declaration of independence. On 22 July 2010, the ICJ ruled that Kosovo’s declaration of independence did not violate international law, which its president said contains no “prohibitions on declarations of independence”. [1]

According to David Miliband [2] the declaration proclaims Kosovo as a democratic, secular and multi-ethnic republic and states that its leaders will endorse the rights and contribution of all communities in Kosovo. The Declaration also contains a unilateral undertaking to implement in full the obligations contained in the Comprehensive Proposal for the Kosovo Status Settlement [3] made, in February 2007, including its extensive minority safeguards. The United Kingdom, United States, Turkey and France accepted Kosovo on 18 February 2008, the day after its declaration of independence. Since then many States have followed. At the date of the meeting, two-thirds of the members of the European Union had recognised Kosovo i.e. eighteen member States. In addition, Kosovo has been recognised by all the G7 states, seven Security Council members and more than half of the Council of Europe and OSCE States. [4]

Some considerable States have on the other hand not recognised Kosovo. From amongst the members of the European Union those are Cyprus, Spain, Romania, Slovakia and Greece who have not recognised Kosovo and appear implausible to do so in the near future. About eighteen States, for a variety of reasons, have said definitively that they will not recognise Kosovo. These include Serbia, Russia, Argentina, Cuba, Vietnam, North Korea and Libya. Most notably, Serbia has adopted legislation that claim to set aside the declaration of independence. Serbia maintains that Kosovo is still part of Serbia. In the Security Council debate on 18 February 2008 it stated that “Serbia will never recognize the independence of Kosovo… For the citizens of Serbia and its institutions, Kosovo will forever remain a part of Serbia”. [5]

The United Kingdom was one of the first States to recognise Kosovo and to launch diplomatic relations with what it regards as the world’s newest State. When deciding whether to recognise Kosovo the United Kingdom had applied the criteria set out in 1989 by the then Parliamentary Under-Secretary for Foreign and Commonwealth Affairs, Mr Sainsbury, in a Written Answer dated 16 November. Mr Sainsbury had said that: “The normal criteria that we apply for recognition as a state are that it should have, and seem likely to continue to have, a clearly defined territory with a population, a Government who are able of themselves to exercise effective control of that territory, and independence in their external relations. Other factors, including some United Nations resolutions, may also be relevant.” [6]

In the case of Kosovo, the territory is under UN administration. The UN does not have sovereignty – it only administers the territory. The population wants independence, does not want to be under sovereignty of either Serbia or a neighbouring country.

As far as the international law is concerned, this is not a unique case. This situation which is quite common in the world: a part of a territory seeks secession, a central authority tries to prevent it forcefully, secessionists lead an armed struggle – all this is common in many places in the world. The right to self-determination of territories was recognized only in the case of decolonization which means not geographically connected.

In international law, a new state may be formed from part of the territory of an existing state and its creation, and recognition by other states, will be lawful if this occurs on the basis of the consent of the ‘parent’ host state.

When the host state does not agree to an arrangement, as was the case with Serbia and Kosovo’s declaration of independence, one has to find some special legal privilege on the part of the new entity to be an independent state, in order for the declaration of independence and any recognition of it to be lawful. Otherwise, it is a violation of the right of the territorial state to be liberated to determine the international legal status of its territory, a right which all other states are legally bound to respect through a general obligation of non intervention.

The Kosovars have no right to external self-determination and thus no entitlement to be a state. International law required that, where a settlement to be introduced without the agreement of both parties and a binding Security Council resolution, this had to involve preserving Serbia’s sovereignty in the sense of title over Kosovo. Therefore the declaration of independence by Kosovo amounts to an unlawful secession.

The United Nations mission is in a difficult position that it has not blocked the declaration of independence and yet operates under resolution 1244, which mandates it to administer Kosovo within Serbia. States recognizing Kosovo as an independent state are necessarily breaching their obligations to respect the sovereignty and territorial integrity of Serbia.

Kosovo is not the only sub-federal area of the SFRY to declare itself independent. Serbian enclaves in Croatia and Serbian and Croatian areas in Bosnia and Herzegovina have also taken this step. [7]

According to the legal status of Kosovo an entity can become a state in law even if its creation is of uncertain legality. The main legal criteria for statehood concern, in essence, the practical viability of the entity concerned—whether it has a territory, population, and government, and whether it is independent from external control.

The importance of the external self-determination entitlement is that, if it is present, it can incline the balance in favour of statehood even when the entity does not meet the ordinary capability test. Kosovo cannot take advantage of this prejudice in favour of its consistency to the international legal criteria entitlement to statehood.

When recognition actually follows, other states merely recognize a preexisting situation. However, this answer is not entirely satisfactory, as it is not evident why the act of recognition is still important. Indeed: It is only by recognition that the new state acquires the status of a sovereign state under international law in its relations with the third states recognising it as such. If it were to acquire this legal status before and independently of recognition by the existing states . . . this legal consequence under international law would occur automatically and could no longer be prevented by withholding recognition of the entity as a state. [8]

Kosovo’s main problem in relation to the legal criteria for statehood is that it is not independent from external control. It remains a division of the UN and NATO. The problem legally is that, as agreed to by what is now Serbia, such control is exercised on the basis that Kosovo is part of Serbia, not an independent state. [9]

As discussed previously, the recognition of states can play a constitutive role in terms of legal statehood, but only if it engages a significant number of states. Less than a quarter of the world’s states are not enough.

Silence on the issue would be one thing if there were a significant number of states positively to disprove Kosovo’s entitlement to statehood, this could itself play a constitutive role, negatively, in relation to Kosovo’s entitlement to statehood.

It is doubtful, then, that Kosovo is a state, even if it will be treated as such by those states recognizing its independence, something which puts them in breach of international law as far as their obligations to Serbia are concerned. It then falls to be determined whether or not Kosovo remains legally part of Serbia. [10]

It is difficult to see what difference the declaration of independence makes to Kosovo’s legal status. If the declaration is unlawful, and the recognition of Kosovo as an independent state a violation of Serbia’s right to territorial integrity, then it would be bad to say that nonetheless the declaration has had some negative effect on Serbia’s sovereignty in the sense of title over the territory.

Kosovo is perhaps like the Republic of China, Taiwan, in that it is the territory of a state, the government of which does not enjoy administrative control over it. The difference, of course, is that in Kosovo the Kosovar majority government administers the territory on the basis of it being separate from Serbia. Because of the continued international involvement in the province, Kosovo remains a dependency, and because of what has been said about its legal status, it remains a protected state territory. [11]

According to Shaw, recognition is “a method of accepting factual situations and endowing them with legal significance, but this relationship is a complicated one.” [12]

The following conclusions according to Jure Vidmar in ‘International Legal Responses to Kosovo’s Declaration of Independence’ can be drawn as to state practice in the Kosovo recognition situation:

(1) There are strong indicators suggesting that it is generally not disputed whether the right of self determination applies to Kosovo Albanians—even Serbia seems to have acknowledged that it does.

(2) The dispute surrounds the question of whether Kosovo Albanians may exercise this right in its external mode.

(3) Although Kosovo is not a clear case of remedial secession, the position that follows from the statements of recognizing states is that previous breaches of human rights and the grave humanitarian situation that led to the effective situation established by Resolution 1244 softened Serbia’s claim to territorial integrity. Yet, Resolution 1244 makes references to territorial integrity, and states denying recognition argue that the state of Kosovo was created illegally; thus, they maintain that collective non recognition should apply. States granting recognition interpret Resolution 1244 as a legal instrument that does not automatically preclude secession, so that, consequently, the obligation of collective non recognition does not apply.

Whether Kosovars may externally exercise their right to self determination as a people still depends on whether that right has been sufficiently violated.”5 This requires an understanding of the political situation in Kosovo. The right to exercise self-determination in the colonial context has an unassailable pedigree and is nearly always validated in cases of alien subjugation, domination, and exploitation. It is thus relevant to ask whether Kosovo asserted its right to exercise self determination in the framework of those colonial justifications, which arose out of military occupation by a foreign power. [13]

The path chosen to address Kosovo will have law-formative impact, and the exact extent and direction of the changes it effects are difficult to predict. It may well be that an extension of the process of decolonization, contained as it would be in UN institutions and regulating as it might the tension between territorial integrity and self-determination, would conserve areas of the law that the chosen path is likely to revise. [14]

Although Kosovo’s declaration of independence is often referred to as the last step in the dissolution of the SFRY, from the perspective of international law, the case of Kosovo constitutes unilateral secession from Serbia. Such an act is not illegal per se; however, its success in the UN Charter era is very unlikely and depends on the legality and legitimacy of such state creations as well as on international recognitions. [15]

Kosovo is not any different from other parts of the world, and it is certainly not any different from those African states that had sought independence from their colonial rulers. In fact, the international community has insisted and relied on this legal similarity when it intervened militarily in Yugoslavia, but then limited Kosovo’s claim to self-determination. European decision makers explained their position in terms of uti possidetis juris, according to which the terrain of new sovereign states is defined on the basis of old colonial borders. Since Kosovo was not a federal republic within Yugoslavia, but rather an entity within Serbia, it had no right to claim sovereignty. [16]

States may intervene to protect the people of one state against their fellow citizens and rulers. NATO intervention against Yugoslavia is a new, and by far the most decisive, application to date of the new rule. Though some Kosovar Albanians have declared their province a state, nobody had recognized Kosovo as a state at the time Operation Allied Force commenced. NATO intervention had as its purpose the changing of the internal order of Yugoslavia-not the traditional purpose of defending one state from another. [17]

Recognition of Kosovo’s right of self-determination on these grounds, while being an expansion of the subjugation criterion, would nevertheless be in accord with the principles of international law and the rights of peoples. [18]

What the European politicians failed to recognize with respect to Kosovo is that uti possidetis juris has evolved throughout history and now includes such additional criteria as the rule of law, democracy, respect for human and minority rights. In practice, of course, there are no implementation mechanisms to ensure the viability of these principles, and as a result, nations of the world stood on the sidelines during the initial stages of genocide committed by the Serbian forces in Kosovo. A new paradox emerged in the aftermath of NATO’s intervention: Kosovo, in its final status, was equated with those entities that provoked the conflict. [19]

Kosovo presents the most difficult case. Consensual processes have failed there, so the first mechanism to revise legal order to achieve self determination, revision through consent, is inapplicable. The second mechanism, the UN process of decolonization, however, in its current form, would not reach a territory like Kosovo. [20]

Accepting that the Kosovar people were sufficiently denied a right to self-determination, it follows that, in theory, they could exercise that right through secession, integration, or loose association.” Kosovo chose secession as the form in which its self-determination would be realized. Secession, though, raises special problems. The creation of new international boundaries may invoke the doctrine of uti possidetis. [21]

A referendum held in Kosovo from 26 to 30 September 1991 resulted in an 87% participation rate and a 99.87% vote in favor of independence. The elected leaders of Kosovo undertook to meet all the obligations set out in the EC Guidelines. But the Badinter interpretations have left Kosovo recognized only by Albania.

On 15 June 1992, the EC made very clear its views on the subject when it issued a statement recalling ‘that frontiers can only be changed by peaceful means and (the EC countries) remind the inhabitants of Kosovo that their legitimate quest for autonomy should be dealt with in the framework of the EC Peace Conference.’

The main conclusion to be drawn is that the question of recognition of states has become less predictable and more a matter of political discretion as a result of recent practice. The traditional criteria for statehood retain an uneasy existence alongside the new EC Guidelines, which have been particularly influential in relation to the recognition of the new states emerging from the USSR and Yugoslavia. [22]

It is clear that the status of Kosovo has not been resolved and it will be years before Kosovo can really call itself independent, if ever at all. The declaration on 17 February was nothing more than meaningless words with no substance. If Kosovo wants a proper status and genuine self-rule, then it should return to the negotiating table and find a solution acceptable to both itself and Serbia.

If Kosovo is recognised as independent, its long term positive effect would be to encourage people to exhaust all peaceful means before resorting to violence in their quest for self-determination. Such recognition would only further support the UN purpose of “maintain[ing] international peace and security …and removal of threats to the peace…” [23]