The Kosovar Declaration of Independence: 'Botching the Balkans' or Respecting International Law?
Cleveland State University - Cleveland-Marshall College of Law
Georgia Journal of International and Comparative Law, Forthcoming
Cleveland-Marshall Legal Studies Paper No. 08-158
On February 17, 2008, the Kosovar Parliament voted a resolution calling for the separation of Kosovo from its then mother state, Serbia. Within days, many western countries, including the United States, recognized Kosovo as a new state, despite strong Serbian opposition. Several other countries - Russia, Spain, and China, to name a few - opposed the Kosovar independence. In reality, Kosovo has been administered by the United Nations since 1999 and remains dependant on international aid today in order to survive as an independent state. Thus, Kosovo is an independent dependant state, or a fascinating case study under international law. This article will attempt to decipher the "myth" of Kosovo, by analyzing in its first part the history of Kosovo and its relationship to Serbia, then the theories of secession, statehood and recognition under international law in its second part, the application of those theories to Kosovo in its third part, and finally, in its fourth part, the different theories that would justify the Kosovar independence and the future outlook of this new independent dependant state.
Kosovo is the site of the Serbian medieval kingdom, a place that is as sacred to the Serbs as Jerusalem is to the Jews and Christians, and as Mecca is to the Muslims. By the 20th century, however, Kosovo was predominantly populated by ethnic Albanians who cherished the idea of an independent Kosovar state. The 1974 Yugoslav Constitution granted Kosovo the status of an autonomous province within the former Yugoslavia. However, with the disintegration of the former Yugoslavia, trouble brewed in Kosovo, and the violence escalated in the late 1990's, triggering a military response by the international community. Under the terms of the 1999 Rambouillet Peace Agreement, Kosovo was to remain part of Serbia, but was to be administered by the United Nations, and future status talks were to take place that would ultimately determine the fate of Kosovo. When negotiations between Kosovo and Serbia failed over the last few years, Kosovo, with strong support from the United States and other western nations, took matters into its own hands by proclaiming independence in February 2008.
The Kosovar declaration of independence poses many interesting questions under international law. First, did the Kosovar act amount to secession, and if so, was the secession legal in light of relevant international legal precedent? Second, does Kosovo satisfy the four criteria of statehood under international law: does it have an undisputed territory, a permanent population, a government, and the capacity to enter into international relations? Finally, what kind of a role does recognition (or non-recognition) by outside actors play on the status of Kosovo? In other words, for the purposes of determining whether Kosovo is legally a state, does it matter whether outside actors recognize it as such? As applied to Kosovo, these questions raise serious concerns under international law.
Moreover, the Kosovar declaration of independence raises issues related to the legal basis of such independence, as well as to the future of this precarious state. First, there are several theories that could justify the Kosovar independence, two of which include the so-called theory of earned sovereignty, and the theory of qualified state sovereignty, under which the Serbian sovereignty was not absolute and thus the foreign intervention in Kosovo was justified. Another justification for the Kosovar independence would be the simple claim that Kosovo is sui generis, as advocated by the U.S. State Department. Finally, the Kosovar independence poses challenges for the future. Is Kosovo, in its independent dependant form, viable as a state, or does it represent a perfect model for a failed state? Is there a threat of civil unrest and violence to the significant Serbian minority still living in Kosovo? Did Kosovo create a precedent for other separatist groups operating throughout the world, which will rely on this example to claim their own independence, upsetting the world stability and existing borders?
This article will address the above issues in an attempt to clarify the myth surrounding Kosovo and to draw valuable lessons for the future.
Number of Pages in PDF File: 29
Keywords: Kosovo, sovereignty, declaration, independence, secession, statehood, recognition, unilateral, territorial integrity, protectorate
Date posted: September 21, 2008