For every country around the world which may be small or big, strong or weak it is necessary that it should be recognised as state by different state around the world. The status of statehood is important because it help’s particular country to enter into treaties with one another. In the world of globalization it necessary that a state must be accepted and treat as state. For particular country to be recognised as state at international sphere, the independence of state isn’t sole requirement. Declaring oneself as independent and joing the international organisation doesn’t make it state. It is necessary that the state claiming its right of recognition as state has to satisfy the condition laid down in Montevideo convention. This paper explores the quest of Kosovo’s march towards it independence and acquiring the recognition and status of statehood. The paper begins with Concept of recognition, types of recognition of state. However the main focus of the paper will be on Kosovo’s march towards acquiring status of statehood, ICJ view on Kosovo declaration of independence.
Background and Introduction:
Kosovo officially known as Republic of Kosovo is self declared country located in the southern part of Europe.It been contested region between Albania, Serbia for long time. Kosovo like other states has a long history of full of conflicts between two ethnic group Albanians and Serbians. The Kosovo till the battle of Kosovo in 1389 was under the control of the Serbian empire until they were defeated by Ottoman empire. Kosovo remained under the control of Ottomans until the 20th century when the Turks and the Albanians fought fiercely against the Serbian forces but lost control over the region in 1912 during a battle that would be known as the first Balkan War. During World War I, Kosovo once again found itself no longer under Serbian control, but occupied and under the control of the Central Powers until 1918 when the Allied forces successfully pushed the Central Powers out of Kosovo. At the end of World War I the Kingdom of Serbia, which included Kosovo, would ultimately become integrated into the Kingdom of Yugoslavia. End of World War II resulted in creation of Autonomous Province of Kosovo within the Yugoslav constituent Republic of Serbia. Tussle between Kosovo’s Albanian and Serb communities erupted into major violence, culminating in the Kosovo War of 1998 and 1999, which resulted in the withdrawal of the Yugoslav Army and the setting up of the United Nations Interim Administration Mission in Kosovo.
On 17 February 2008, Kosovo unilaterally declared its independence from Serbia. It has since gained diplomatic recognition as a sovereign state by UN member states. Serbia has time again refused to recognize Kosovo as a state, although with the Brussels Agreement of 2013, it has accepted the legitimacy of its institutions. The declaration of independence in 2008 was followed by an affirmative diplomatic campaign launched by the Government of Kosovo to secure individual recognitions by states in an effort to accede to the United Nations. Serbia refused to grant recognition to an act it deemed unilateral, and had in continuity refused any form of cooperation with Kosovo, including the addressing of open issues that directly affected the lives of the people, particularly those of the Serb minority living in Kosovo. Moreover, Serbia continues to obstruct Kosovo’s membership in regional initiatives still today, despite the fact that most of those initiatives aim at transforming and preparing the Western Balkans countries for European integration. This situation rightfully raises legal and political dilemmas related to the recognition of international subjectivity of an entity as well as how this can be achieved given the standing international relations and the existing balance of forces in the world.
Art 1 of Montevideo Convention on rights and duties of States laid down clear description as to elements of states. For any nation or country to acquire the status of statehood it has to consist following elements:
• Permanent Population
• Effective government
• Capacity to enter into relationship with other states.
Therefore, Kosovo is bound to satisfy the above conditions
The Montevideo convention does not lay down the criteria as to what amount of population is required to fulfil the condition of state. There is still confusion that exists at international arena because state with less than population of l lakh is given the status of state. One such example is Nauru with 10,000 population. As per Professor Raic, two points should be taken into concern when identifying permanent population:
• Population must have intention to inhabitant in territory on permanent basis
• Territory has to be claimed as habitable.
Kosovo’s population is around 1.8 million as per 2018 estimate, and people reside on definite territory and delimited in successive Yugoslav and Serbian constitutions as the autonomous region of Kosovo. An effective government is important criteria, and requires a system of government that can control its territory to the exclusion of other entities.
A strong and powerful government is the most important criterion such that it requires a system of government in general control of its territory, to the exclusion of other entities. This standard of ‘effective government’ varies with context, applying more stringently in the context of secession (where the former sovereign (Serbia) objects to the putative State’s (Kosovo’s) claim of statehood) than in the situation where a new State is granted full formal independence by a former sovereign (for example where Belgium resigned its right to exercise authority over the Democratic Republic of the Congo). However, in either scenario, ‘effective government’ requires only the establishment of basic institutions and law and order rather than a sophisticated apparatus of executive and legislative organs. This criterion again provides no object for Kosovo, which has a structured government created under the 2008 Constitution of the Republic of Kosovo.
Kosovo’s capacity to enter into relations with other States, the final criterion in the Montevideo Convention, is evidenced by its membership in the International Monetary Fund and the World Bank.
Therefore, it would seem that Kosovo satisfies the classic criteria for statehood. However, this is not all that is required. To determine whether Kosovo definitively qualifies as a State, it is necessary to consider independence and recognition
Formal independence requires the powers of government of a territory to be vested in the separate authorities of the putative State. This is a legal rather than factual question, simply requiring the putative State to show a source authorising the exercise of governmental powers in the State. To illustrate with regard to Kosovo, this would require the powers of government over the geographical area of Kosovo to be vested in Kosovar authorities exclusively.
There are two main sources from which such powers may arise. First, they may stem from the State’s constitution. For example, in Australia, the Commonwealth Constitution creates, empowers, and limits the Parliament, Executive, and Judiciary. Secondly, they may emerge from a grant of full power from the State’s previous sovereign. An example of this is when Belgium resigned the right to exercise authority over the Democratic Republic of the Congo. Although this sounds rather peaceful, Belgium’s continued involvement in Congolese affairs led to a five year period of rebellion, war, and instability scarcely a week after Congolese independence. Granting independence is not automatically conducive to peaceful self-determination, then. Regardless, in our case, only the first source can be relevant since Serbia has not granted Kosovo full power.
However, although Kosovo does have a Constitution vesting governmental authority in its own institutions, a difficulty arises with the substantial powers provided to the United Nations (UN) by UN Security Council Resolution 1244. Indeed, it may be argued that so long as the UN is empowered to exercise governmental authority over Kosovo, Kosovo is debarred from achieving statehood. However, this was implicitly rejected by the International Court of Justice in its Kosovo Advisory Opinion, where it held that Resolution 1244 operated ‘on a different level’ to the declaration of independence. As such, the resolution did not reserve to the UN ‘the final determination of the situation in Kosovo,’ leaving open the possibility of a lawful declaration of independence and, potentially, statehood. Hence, Kosovo seems to satisfy the criterion of formal independence.
On 22 July 2010, the court ruled that the declaration of independence was not in violation of international law. The President of the ICJ Justice Hisashi Owada said that international law contains no “prohibition on declarations of independence.” The court also said while the declaration may not have been illegal, the issue of recognition was a political one. The question put to the Court concerned the legality of a declaration of independence made by the Provisional Institutions of Self-Government, institutions whose powers were limited to those conferred under the framework of a United Nations Security Council Resolution. None of the participants in the proceedings had argued that those institutions had not made the declaration. Nonetheless, the Court determined that the declaration of independence was not issued by the Assembly of Kosovo or otherwise by Provisional Institutions of Self-Government or any other official body. Once this crucial determination was made, the question the Court had to answer no longer concerned any action of the Provisional Institutions of Self-Government, as the Court had determined that those institutions had not made the declaration of independence.
In finding this, the Court referred to the fact that the declaration did not follow the legislative procedure; and was not properly published. The Court held that the words Assembly of Kosovo in the English and French variants were due to an incorrect translation and were not present in the original Albanian text, thus the authors, who named themselves “representatives of the people of Kosovo” were not bound by the Constitutional Framework created by the UNMIK which reserved the international affairs of Kosovo solely to the competency of the UN representative.The judgment also stated that the Court did not “feel that it is necessary” to address “whether or not Kosovo has achieved statehood” or “whether international law conferred a positive entitlement on Kosovo unilaterally to declare its independence.”
On the other hand, actual independence is a factual enquiry, and seeks to determine whether the putative State has the minimum degree of governmental control necessary to qualify as independent. In other words, even if a State has claimed formal independence, they must be able to demonstrate that they actually exercise governmental powers in the territory and are not merely puppets through which another State is acting.
Kosovo seems to satisfy actual independence, although this is more contentious than formal independence due to the substantial powers given to the UN to govern under Resolution 1244. Nevertheless, the UN has progressively transferred competences to the Kosovar authorities, intensifying after the declaration in February 2008, and Kosovo has held their own elections (outside the framework of Resolution 1244) since 2010. In 2012, Kosovar authorities gained control of its external affairs from the International Steering Group of States that had been established to oversee Kosovo’s independence. Further, in 2013, Kosovo and Serbia concluded the Brussels Agreement, attempting to normalise relations between the two countries. It provided for a single Kosovar police force, and a single Kosovar judiciary. Since then, more agreements in 2015 led to the establishment of an international dialling code for Kosovo. Yet the country does not have a top-level internet domain, which puts it one step below other disputed territories such as Western Sahara or even Antarctica. Nonetheless, these measures tend to demonstrate increasing levels of actual independence and control by Kosovar authorities over Kosovar territory and declining levels of control by UN and Serbian authorities, arguably to a point where Kosovo may be viewed as actually independent.If these arguments are accepted, the only criterion that remains to be satisfied in order to establish Kosovo as a State is recognition
Recognition is a statement or act by a State indicating the status in international law of another entity. The entity in question may be a State or a government. If it is a government, the recognition may be de facto or de jure. The former is a cautious and reversible assessment of a factual scenario as it stands, whereas the latter is more definitive and more explicitly legal. The United States’ recognition of Israel should demonstrate the point.
On 14 May 1948, President Harry Truman issued a press release stating ‘The United States recognizes the provisional government as the de facto authority of the new State of Israel.’ Not only did this provide recognition for the new State of Israel, it also provided de facto recognition for the provisional government. Next, on 31 January 1949, six days after the first elections were held for a permanent government, President Truman issued a press release stating ‘The United States Government is … pleased to extend de jure recognition to the Government of Israel as of this date.’ Thus, having become more definitive with the election of a permanent government, the United States was formally prepared to recognise the Israeli government in legal terms.
The effect of recognition, however, is the major sticking point. The chief question is whether recognition is a legal act, endowing the other State with international legitimacy, or a political act, merely facilitating relations between the two States in issue. This has important implications for statehood..If recognition is political, Kosovar recognition is irrelevant for the attainment of statehood and important only insofar as it establishes relations with other States. In legal jargon, the former is referred to as the constitutive theory whereas the latter the declaratory theory.
Entry into the constitutive-declarative debate would be a three-part blog in itself, so it is sufficient at this point to appreciate that neither (standing alone) can fully explain international recognition. For instance, the declaratory theory is superior in that it adopts a legal and objective way of analysing factual situations which is not contingent on the potentially arbitrary opinions of other States. The declaratory theory also has the practical benefit of being supported by a substantial body of judicial opinion (see the Tinoco Arbitration, Deutsch Continental Gas, and Aaland Islands cases). However, it fails to account for situations of illegality, where non-recognition may actually imply lack of status as a State. For example, when the apartheid government of Rhodesia made a Unilateral Declaration of Independence in 1965, a UN Security Council Resolution calling upon States not to recognise the ‘illegal racist minority regime’ and the subsequent universal non-recognition effectively deprived Rhodesia of the ability to act as a State. This was despite it substantially fulfilling the other criteria for statehood.
Conversely, the constitutive theory is premised on the positivist philosophy that if the obligation to obey international law derives from the consent of individual States, consent (through recognition) is required for a State to become subject to, and participate in, international law. However, if recognition is required, how many States need to recognise an entity before it becomes a State? How can an entity be both a State and not a State? Surely countries should not be able to circumnavigate their international legal obligations toward other entities by unilaterally choosing not to recognise them? These are just some of the problems associated with the constitutive theory.
For our purposes, much of this legal debate is irrelevant.Not only Kosovo has been recognised by 111 UN member States, it is also a member of the IMF and the World Bank. Such recognition is highly likely to be considered sufficient for statehood, even in the absence of recognition from Serbia.
It is clear that apart from the traditional criterion in the 1993 MontevideoConvention on the Rights and Duties of States other criteria exist that an entity must fulfil in order to be regarded as a state. Kosovo even though fails to meet some of ceratin requirements for statehood under the traditional criteria and from the foregoing Kosovo may yet be regarded as a State properly under International Law.