Analyzing the Status of Kosovo under International Law

Abstract

This paper centres around the status of the region of Kosovo under International law. It shall comprehensively analyse the situation of the region post the disintegration of Yugoslavia and further discuss the advisory opinion of the International Court of Justice regarding the declaration of independence by the region. In lieu of the court’s silence on the matter, the paper aims to answer the question of statehood and will further address the question of the right of self-determination to the people of Kosovo. 

Background of the case

Till 1989, Kosovo was an autonomous region within the territory of Serbia. During the same time, the disintegration process of the Yugoslavia began. Kosovo also wanted endorsements by the Commission owing to the detrimental treatment of its majority Albanian Muslim population. Yet, it was not provided with any recognition as a state. Post the disintegration, Serbia and Montenegro remained together to form the Federal Republic of Yugoslavia and the exploitation continued. In 1999, Serbia did an ethnic cleansing of Albanian population in Kosovo leading to immense repression and numerous deaths. That is when NATO came to the aid of the region and the Security Council adopted the Resolution 1244 (1999). This was to curb the humanitarian crisis in the region and provide a security presence in Kosovo for an interim period. On 12 June 1999, the United Nations Mission in Kosovo (UNMIK) was established, which was headed by Mr. Ahtisaari, Special Representative of the Secretary General.[1] Between 1999-2008, Serbia became a separate state and offered autonomy to the region, which meant internal Self-Determination to the people of Kosovo.[2]However, the offer was rejected. In 2007, representative Ahtisaari offered that “supervised independence” be provided to Kosovo till it can take over the administration, security, economy and the social being of the country as a whole. On February 17, 2008, Assembly of Kosovo unilaterally issued the “Declaration of Independence”, declaring the region as ‘independent and sovereign’, and accepting the obligations provided under the Ahtisaari plan. Consequently, Serbia decided to seek international support regarding the illegality of the declaration. On October 08, 2008, the General Assembly sought the advisory opinion of the International Court of Justice regarding the legality of this declaration in terms of international law.[3]

Court’s advice

On July 22, 2010, the International Court of Justice stated that the legality of independence of Kosovo was to be checked in regard to general International law and against UN Security Council Resolution 1244.[4] It further went on to clarify that the question placed before it was quite “narrow and specific” and that it did not need the court to delve into debates pertaining to the extent of right of self-determination and whether the people of Kosovo had the right to “remedial secession”.[5] Therefore, the ICJ simply answered the relevant question and chose to remain silent about whether the process in which the population of Kosovo tried establishing a state of their own was in accordance with international law or not. I believe that the court failed to cease this opportunity to elaborate on the scope and normative of self-determination in this post-colonial world. Considering this, the forthcoming paragraphs try to fill these gaps and get the matter out of the diplomatic limbo it’s been in for the past few years. 

Statehood

According to Customary International Law or the Montevideo Convention of 1933, formation of a new state as a legal order depends on fulfilment of certain. 

Firstly, a permanent population is a necessity. This primarily means to have a nomadic, stable population in a region.[6] However, overtime this idea may have become mirky. Like, the Vatican City is also considered a state even though the residency of the region is based on their employment. Once that ceases to exist, the residency expires too[7].This is an exception to the general rule yet, the city is recognized as a state across the world. 

With regard to a defined territory, Montevideo convention requires the so called “state” to have a “consistent band of territory” in the region. The same however has not been seen to be true in numerous cases. For example, in the Israel-Palestine conflict, a large part of the Palestinian territory was contested to be a part of Israel’s territory even then, Palestine was declared as a state owing to the overwhelming majority it received from the other states.[8]

Thirdly, under the convention, a state must have a government with effective control over the region and must have constitutional independence.[9] Further in the Austro-German case, the court established that restrictions on the State’s liberty owing to application of international law or contractual engagements does not put the state under the authority of another. The state remains to be independent irrespective of how extensive the interference of another authority is till the legal authority of the state is not hindered.[10] Moreover, in his piece, Shaw argues that complete independence is not important and partial supervision over the region does not deprive the region from having constitutional independence.[11]

Now, to establish the duties and rights of its people, the recognition of a state is based either on the Declaratory or the Constitutive theory. Under the declaratory theory, the legal criteria mentioned in the Montevideo Convention have to be met, after which recognition is granted to a state. Rights and duties are established before such recognition. Conversely, under the Constitutive theory, recognition can be granted based on an overwhelming majority irrespective of whether the legal criteria are met or not.[12] Now, international law cannot exist in a vacuum from global politics and recognition may solely be based on political affiliations under this theory. Therefore, a middle course stated by the UK and the US government could be employed for recognition here. Fulfilment of legal criteria as well as approval by other states leading to establishment of relations based on humane conditions, could be seen as a perfect balance of both the theories, to get discretionary recognition from the states.[13] Furthermore, a Declaration was adopted by the European Community in 1991, which provided certain guidelines to be followed for recognition of state. This included being respectful of the provisions of the UN Charter, rule of law, adoption of democracy, human rights, and certain other conditions including their commitment resolve disputes by agreement, even in the matters of succession.[14]

Similarly, the region of Kosovo does not consist of a permanent population. Although it is primarily inhabited by Albanian Muslims, however, the region does have an extensive inflow and outflow of refugees leaving it with no such stable population.[15] The territory is largely disputed as Serbia claims the territory to be a part of its land.  But, the real power to adopt and work in obligation with the plan was within the powers of the Kosovo authorities, while the UNMIK, EU and NATO were simply an interim international presence who were to aid the Kosovar people in recovering from the economic, social damages as well as facilitate their administrative and other processes.[16] Therefore, even though some of the legal conditions are not met, Kosovo got recognition for the declaration of its independence from Serbia owing to such global politics. However, it may not be recognized as a state until Serbia as a parent state approves of it. 

Self-determination

However, in this post-colonial world, strict application of the Eurocentric Montevideo Convention is barely possible. Overtime, colonization had to be removed and human rights of the oppressed by their own so-called government had to be acknowledged. This led to the emergence of the Right to Self-determination and a borderless world. This right could then help the region to secede. There are two kinds of self-determination, internal and external. In Re Succession of Quebec case[17], the court held that the right to secession can only arise if “a people is subject to alien subjugation, domination or exploitation” or if they are

denied any meaningful exercise of its right to self-determination within the state of which it forms a part.  In other circumstances, peoples are expected to achieve self-determination within the framework of their existing state.[18]

 Moreover, in the present case, Judge Yusuf claimed in his separate opinion that external self-determination can only be granted in exceptional circumstances where the people have been discrimination on racial or ethnic grounds, where they have been denied the right to function autonomously and where no other remedy exists. He further stated that intervention by the United Nations Security Council in the matter can also be taken into consideration for the same.[19]

As seen, the “people” of Kosovo were discriminated on racial and ethnic grounds as they were different from the conservative Christian population of Serbia. They were further deprived of most civil and political rights.  Moreover, in 1989, their right as an autonomous region within the territory of Serbia were also revoked. However, in 2007, Serbia did offer them their autonomy back.[20] Therefore, in accordance with the Quebec case and justice Yusuf’s opinion, Kosovo does not have the right to demand external self-determination in this scenario and in turn get secession from Serbia. 

Conclusion

It is clear from the aforementioned paragraphs that the Kosovo as a region would not be entitled to have self-determination. It’s identity as a state, however, is debatable on political grounds, provided Serbia as a parent state approves of this identity.


[1] Warbrick, Colin. “Kosovo: The Declaration of Independence”. Jstor, 2008. https://www.jstor.org/stable/20488236.

[2] Kosovo Offered Supervised AutonomyAl Jazeera, 2007. https://www.aljazeera.com/news/2007/4/29/kosovo-offered-supervised-autonomy.

[3]Warbrick, Colin. “Kosovo: The Declaration of Independence”. Jstor, 2008. https://www.jstor.org/stable/20488236.

[4] Advisory Opinion. Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo. Int’l Ct. Justice, 22 July 2010. [hereinafter Kosovo Advisory Opinion].

[5] Kosovo Advisory Opinion.

[6] Montevideo Convention on Rights and Duties of States, (1933).

[7] Morss, John R. “International Legal Status of the Vatican/Holy See Complex”. OUP Academic, 12 February 2016. https://academic.oup.com/ejil/article/26/4/927/2599610.

[8] UN General Assembly Resolution 67/19 on the question of Palestine. 29 November 2012.

[9] Montevideo Convention on Rights and Duties of States, (1933).

[10] Advisory Opinion. Customs Regime between Germany and Austria. P.C.I.J. (ser. A/B) No. 41. 5 September 1931.

[11] Shaw, Malcom. International Law. 7TH Edition, Cambridge University Press, 2014.

[12] Montevideo Convention on Rights and Duties of States, (1933).

[13] Yugoslav Arbitration Commission. 1992. 92 ILR, pp. 206, 208. 

[14]  Shaw, Malcom. International Law. 7TH Edition, Cambridge University Press, 2014.

[15] Sterio, Milena. “The Case of Kosovo: Self-Determination, Secession, and Statehood Under International Law: Proceedings of the ASIL Annual Meeting”. Cambridge Core, 28 February 2017. Cambridge University Press. https://www.cambridge.org/core/journals/proceedings-of-the-asil-annual-meeting/article/case-of-kosovo-selfdetermination-secession-and-statehood-under-international law/C2FA2E418CAD9898CE8EE3C85D54F2E8.

[16] Warbrick, Colin. “Kosovo: The Declaration of Independence”. Jstor, 2008. https://www.jstor.org/stable/20488236.

[17] Reference re Secession of Quebec, (1998) 2 S.C.R. 217.

[18] Reference re Secession of Quebec, (1998) 2 S.C.R. 217.

[19] Advisory Opinion. Separate Opinion of Judge Yusuf. Accordance with International law of Unilateral Declaration of Independence in Kosovo. 22 July 2010. https://www.refworld.org/cgibin/texis/vtx/rwmain/opendocpdf.pdf?reldoc=y&docid=4c592ac82.

[20] Kosovo Offered Supervised Autonomy. Al Jazeera, 2007. Al Jazeera. https://www.aljazeera.com/news/2007/4/29/kosovo-offered-supervised-autonomy.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

IF YOU ARE INTERESTED IN PARTICIPATING IN THE SAME, DO LET ME KNOW.

Do follow me on FacebookTwitter  Youtube and Instagram.

The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.

If you would also like to contribute to my website, then do share your articles or poems at secondinnings.hr@gmail.com

In the year 2021, we wrote about 1000 Inspirational Women In India, in the year 2022, we would be featuring 5000 Start Up Stories.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.