Lessons from Kosovo: The Law of Statehood and Palestinian Unilateral Independence

Abstract

On February 17th, 2008, The Republic of Kosovo declared independence. This declaration was met with mixed international reaction. At the heart of the controversy lie concerns as to the possible effect and precedential value that the case of Kosovo may have on the international law of statehood. In this paper, we examine the case of Kosovo against the background of the international law of statehood as it has evolved over the past century. We argue that the classical Montevideo criteria for Statehood have not lost their importance, as they fundamentally capture the elements essential for an entity to effectively function as a state. Nevertheless, they are no longer the only yardstick. Additional considerations have played a significant role in borderline cases during recent decades, such as the right to self determination, adherence to peremptory norms of international law, and further considerations such as commitment to protection of human rights or the adoption of democratic institutions.

When examining the circumstances of Kosovo, we arrive at the conclusion that it did not meet the classical criteria at the time of its declaration of independence. Consequently, if the independence of Kosovo is to be recognized, it would be reasonable to argue that other factors have had a role in overcoming such deficiency. We then turn to inquire whether these considerations may affect the prospects of a Palestinian unilateral declaration of independence. We find that while in some respects a Palestinian unilateral declaration of independence seems to be better situated for recognition than Kosovo's, in other respects the conditions seem to have not yet fully matured.

Keywords: Law of Statehood, Kosovo Declaration of Independence, Palestinian Independence