Kosovo's Declaration of Independence
The Kosovo parliament declared on 17 February 2008 Kosovo's independence. This post attempts to dissect Kosovo's declaration from international law point of view.
United Nations Security Council established the current status of Kosovo on 10 June 1999 and placed it under the temporary administration of the United Nations Mission in Kosovo, under the leadership of a Special Representative of the Secretary General (U.N. Security Council Resolution 1244, 10 June 1999). It also explicitly upheld the existing sovereignty of Serbia over Kosovo, reaffirming the commitment of all Member States to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia and the other States of the region. In this line, Belgrade proposed that Kosovo be highly autonomous and remain a part of Serbia; Belgrade officials have repeatedly said that an imposition of Kosovo's independence would be a violation of Serbia's sovereignty and therefore contrary to international law. That said, the 1998-1999 Kosovo conflict left some 10,000 Kosovo Albanians dead and forced about 800,000 to flee their homes. Today, there are about 100,000 ethnic Serbs still living in the province, where the ethnic Albanian majority accounts for 90 per cent of its population of two million. Albanian dominated Kosovo parliament in Priština therefore declared Kosovo's independence, arguing that the violence of the Miloševic years has made continued union between Kosovo and Serbia not viable.
The Community which claims the right to self-determination has to fulfil certain objective criteria: they have to be perceived by themselves and by the world as the people, the nation; this is fulfilled by the common history, language and culture. They have to live on the particular territory in an organized and united way - presumably being a majority of the inhabitants. They have to exercise control over the territory. If this territory is a part of the larger state structure where the majority in the entire state (as opposed to this particular territory) has for a very long time breached their fundamental rights - just because they are a different ethnic group - then this is another compelling reason towards the fulfilment of conditions of the right to self-determination.
Kosovo Albanians fulfil those conditions: they are of a particular ethnicity, with their own language, culture and history and are perceived as such by themselves as well as by the Serbs and the rest of the world. Also they form a big majority in a clearly defined territory, which is under their de facto control. They exercise local government; they have schools, universities and have had all these for decades now. In fact and a fortiori they were even recognized as an autonomous region within Serbia during former Yugoslavia, which just strengthens their case. This autonomy was abandoned against their will in the time of Milosevic's totalitarian regime. But this was just an apex of the violations of their fundamental political as well as human rights that have lasted since the mid 1980s. Having said that, in my normative view based on the coherent analysis of legal and factual practice there is not a single shadow of doubt that Albanians in Kosovo have fulfilled the conditions for the right to self-determination. Serbia can have no say on that, if the right to self-determination is destined to have any sense.
It is submitted that the issues of self-determination and creation of states in international law and international relations have always been much more political than they are legal questions. Some would argue that, the creation of a state is a political act, and legal justifications are usually realizations of what has happened in reality. There was once no state of Slovenia, but now there is, and the law has little to do with it. All in all, it is argued that Kosovo's parliament, made a right decision in unanimously declaring independence from Serbia, and by doing so established the newest state on the European continent. Now real work for Kosovo state only begins. More on this, you can read in my article here.
Jernej, thanks for the comment. I mostly agree with your analysis, and as a matter of policy, I support Kosovo's independence. But there are many related legal issues that should be discussed in this "fait accompli" phase. Almost beyond any shadow of doubt, Kosovo today IS a State, given (or assuming) that all the "traditional" statehood criteria have been met, and assuming that all potential "contemporary" criteria, such as external independence and respect of the people's will, are fulfilled as well. It remains ambiguous, though, whether the »act of creation« itself was lawful: as prevailing views in scholarship and jurisprudence (e.g. Quebec) suggest, the existence of a right of SD (being the antidote to the terr. integrity principle) does not automatically award the privillege of unilateral secession, unless certain conditions are met (primarily the exposition of the population to serious HR violations/denial of internal self-det., and the inabilty to implement the right of internal self-det. within the boundaries of the parent state. There might be reasons to doubt (and I am simply trying to expose these) whether these conditions were indeed met on 17 Feb, given the changes in Serbian government, and its declared preparedness to re-grant Kosovo a high level of autonomy within Serbia. On the other hand, ITA's continuing presence indicates that the situation in K remains volatile, while the failure of the final status negotiations show that all viable alternatives have been exhausted. A second question is the legality of recognitions. Entirely accepting the common view that it is merely declaratory of statehood (or rather, of »international legal personality« of a newly emerged »state« proper) and that (non-)recognition is in political discretion of states, the question remains whether there are any legal obstacles to recognising Kosovo, such as SC Res 1244 and related documents (eg Helsinki Final Act), expressing states' commitment to respect Serbia's terr. Integrity, or the principle of non-recognition of situations arising out of serious violations of fundamental IL norms. In this situation, I don't see the latter being the case, but the role of Res 1244 should be carefully considered – have those recognizing states which had previously been repeating the mantra of Serbia's territorial integrity not acted against the principle of good faith? The legality of recognition might also depend on the (non-)existence of external SD right at the moment of declaration of independence, if one was to accept the idea that otherwise the act of creation of K should be deemed illegal in the first place...At the same time, one must seriously consider numerous legal consequences of non-recognition, such as acceptance to international institutions and accession to int'l agreements, postal relations, travelling of citizens,.... These are all crucial and complex politico-legal questions and I would enjoy further discussion. Take care!
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