International legal responses to Kosovo's declaration of independence.

• Author: Vidmar, Jure

ABSTRACT

On February 17, 2008, Kosovo declared independence. As of March 6, 2009, fifty-six states have recognized Kosovo's independence, while a number of states maintain that Kosovo's declaration of independence is illegal. There is no specific resolution calling for nonrecognition, yet whether an obligation of nonrecognition stems from UN Security Council Resolution 1244 is a highly disputed issue.

Resolution 1244 established an international territorial administration, affirmed Serbia's territorial integrity, and called for a political process leading to settlement of Kosovo's future status. Unlike in East Timor, the political process in Kosovo did not result in a prenegotiated path to independence, confirmed by a subsequent Security Council resolution.

This Article analyzes legal positions regarding Kosovo's declaration of independence and examines the significance of international involvement in the process of state creation. Despite the reference to the dissolution of Yugoslavia in the declaration of independence, Kosovo is an example of unilateral secession from Serbia. This Article concludes that international involvement implies constitutive elements of state creation and that Kosovo has some deficiencies in meeting the statehood criteria.

TABLE OF CONTENTS I. INTRODUCTION II. KOSOVO: HISTORICAL, POLITICAL, AND LEGAL FRAMEWORK A. Kosovo, Serbia, Yugoslavia, and International Aspects 1. Autonomous Status Within the SFRY and Background 2. Suspension of Autonomous Status and Aftermath 3. The Rambouillet Accords, the NATO Intervention, and Their Repercussions B. From Resolution 1244 to the Declaration of Independence 1. Resolution 1244 and the Effective Situation 2. The Political Process, the Ahtisaari Plan, and the Declaration of Independence III. KOSOVO AND SECESSION A. The Right of Self-Determination and Kosovo Albanians 1. The Right of Self-Determination and Territorial Integrity 2. Are Kosovo Albanians a People for the Purpose of the Right of Self-Determination? B. Secession: "Remedial" and Unilateral Aspects IV. KOSOVO AND STATEHOOD CRITERIA A. The Traditional Statehood Criteria and Kosovo B. The Additional Statehood Criteria and Kosovo 1. The Additional Statehood Criteria: General Doctrine 2. The Additional Statehood Criteria: Does Kosovo Meet Them? V. KOSOVO AND RECOGNITION A. Recognition Theories, Collective Nonrecognition, and Kosovo 1. Constitutive and Declaratory Theories 2. The Doctrine of Collective Nonrecognition and Kosovo B. Resolution 1244, Secession, and Recognition 1. General Observations 2. Serbia and Russia 3. The European Union and the United States 4. Commentary on State Practice 5. The Practice of Post-1991 State Creations and Kosovo VI. CONCLUSION I. INTRODUCTION

On February 17, 2008, the Kosovo Assembly adopted the Declaration of Independence. (1) The Declaration makes reference to, among other things, "years of strife and violence in Kosovo, that disturbed the conscience of all civilised people" (2) and expresses gratefulness that "in 1999 the world intervened, thereby removing Belgrade's governance over Kosovo and placing Kosovo under United Nations interim administration." (3) It declares Kosovo to be "a democratic, secular and multi-ethnic republic, guided by the principles of non-discrimination and equal protection under the law," (4) welcomes "the international community's continued support of ... democratic development through international presences established in Kosovo," (5) and states that "independence brings to an end the process of Yugoslavia's violent dissolution." (6)

The Declaration of Independence thus draws on developments in Kosovo's recent history: the dissolution of the Socialist Federal Republic of Yugoslavia (SFRY), the human rights abuses and grave humanitarian situation in Kosovo under the Milosevic regime, the military intervention of the North Atlantic Treaty Organization (NATO), and the effective situation established by UN Security Council Resolution 1244, which left Serbia with no effective control over Kosovo. (7) Ultimately, it declares independence while adopting restrictions on Kosovo's sovereignty.

The Republic of Serbia insists that Kosovo remains its southern province. In an address to the Security Council on February 18, 2008, Serbian President Boris Tadic stated:

The Republic of Serbia will not accept the violation of its sovereignty and territorial integrity. The Government of Serbia and the National Assembly of the Republic of Serbia have declared the decision of the Pristina authorities [the Declaration of Independence] null and void. Likewise, we are taking all diplomatic and political measures to prevent the secession of a part of our territory. (8) Thus, there is no doubt that Kosovo declared independence without the consent of its parent state.

A number of states support Serbia's claim to territorial integrity. (9) As of March 6, 2009, fifty-six states have recognized Kosovo. (10) When granting recognition, the recognizing states commonly refer to "special circumstances" and express the view that Kosovo's independence would contribute toward international peace, democratic and economic development, and the strengthening of human rights standards. (11) Further, there exists strong evidence that part of the international community coordinated Kosovo's declaration of independence. (12) The involvement of the recognizing states in the creation of the state of Kosovo thus did not begin with recognition but at an earlier stage, prior to the declaration of independence.

On October 8, 2008, the UN General Assembly adopted Resolution 63/3, which requested an advisory opinion from the International Court of Justice (ICJ) regarding the legality of Kosovo's declaration of independence. (13) The question referred to the ICJ reads: "Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?" (14) The ICJ has yet to give an advisory opinion. (15)

The aim of this Article is to clarify the legal issues related to Kosovo's declaration of independence and the legal significance of international involvement. Initially, the Article sketches the historical, political, and legal frameworks underlying some of the current legal claims regarding the Kosovo situation. The Article then considers whether Kosovo Albanians qualify as a "people" for the purpose of the right of self-determination and in what circumstances this right may be consummated externally. In this context, a particularly relevant question is whether Kosovo can be an example in support of the "remedial secession" doctrine. (16)

The Article further considers whether Kosovo meets the traditional and additional statehood criteria. Lastly, there are different views on whether there exists an obligation of nonrecognition under Resolution 1244 in light of its reference to Serbia's territorial integrity. The Article concludes by considering these divergent views and questions whether Kosovo's statehood was constituted by the recognizing states, attempting to locate the answer in a broader context of post-1991 state creations.

2. KOSOVO: HISTORICAL, POLITICAL, AND LEGAL FRAMEWORK

   1. Kosovo, Serbia, Yugoslavia, and International Aspects

      1. Autonomous Status Within the SFRY and Background

         After the medieval Serbian state lost the Battle of Kosovo, (17) the territory came under Turkish rule. (18) In modern times, Ottoman Turks lost control over Kosovo in 1912.19 Kosovo thus came under the de facto authority of the Kingdom of Serbia, but the Kingdom of Serbia and the Ottoman Empire never ratified a treaty on the ceding of Kosovo, due to the outbreak of World War I. (20) Following the Austrian and Bulgarian occupation during World War I, Kosovo became part of the newly created Kingdom of Serbs, Croats and Slovenes in 1918--officially renamed the Kingdom of Yugoslavia in 1929. (21) Albanians were not given full citizenship rights in this state until 1928. (22)

         When Serbia took control of Kosovo in 1912, most of its population was Albanian. (23) Figures from the official census are generally not trusted among historians, but estimates suggest the Serbian population in Kosovo amounted to 24% of the general population in 1919. (24) Due to the Serb settlement policy, the number of Albanians initially diminished, but the settlement policy proved to be ineffective and the Albanian population increased over time. (25)

         When the Axis powers occupied Yugoslavia in 1941, Kosovo became part of Albania, which was itself controlled by Italy. (26) With the defeat of the Axis powers, Yugoslavia, then ruled by Communists led by Josip Broz Tito, regained control over Kosovo. (27) In the 1946 constitution, Kosovo was formally defined as an autonomous province within the Republic of Serbia (28) but, unlike Vojvodina, had no independent organs for the exercise of its autonomy. (29) At that time, even unification of Kosovo with Albania was considered--an idea that should be understood in the broader context of Tito's plans to incorporate Albania into Yugoslavia. (30) This plan failed after Tito's break with Stalin in 1948, while Albania remained on a pro-Soviet course. (31) As a consequence, Yugoslav authorities mistrusted Kosovo Albanians and suspected them as potential anti-Yugoslav and pro-Albanian (which at that time also implied pro-Soviet) agents. (32) In this environment, repression of Kosovo Albanians was severe. (33) In addition to physical violence, discrimination was visible in public life, as ethnic Serbs and Montenegrins, who represented 27.5% of Kosovo's population, occupied 68% of positions in public service in 1953. (34)

         The 1963 constitution defined autonomy as a right of republics "in areas of a distinct national composition or in areas of special characteristics, based on the expressed will of the people, to establish autonomous provinces." (35) The constitution further confirmed that Kosovo and Vojvodina were...