International Legal Responses to Kosovo\u27s Declaration of Independence

On February 17, 2008, Kosovo declared independence. As of March 6, 2009, fifty-six states have recognized Kosovo\u27s independence, while a number of states maintain that Kosovo\u27s declaration of independence is illegal. There is no specific resolution calling for nonrecognition, yet whether an obligation of nonrecognition stems from UN Security Council Resolution 1244 is a highly disputed issue. Resolution 1244 established an international territorial administration, affirmed Serbia\u27s territorial integrity, and called for a political process leading to settlement of Kosovo\u27s future status. Unlike in East Timor, the political process in Kosovo did not result in a prenegotiated path to independence, confirmed by a subsequent Security Council resolution. This Article analyzes legal positions regarding Kosovo\u27s declaration of independence and examines the significance of international involvement in the process of state creation. Despite the reference to the dissolution of Yugoslavia in the declaration of independence, Kosovo is an example of unilateral secession from Serbia. This Article concludes that international involvement implies constitutive elements of state creation and that Kosovo has some deficiencies in meeting the statehood criteria

Democracy and state creation in international law

At the end of the Cold War some scholars argued that democracy is the only legitimate political system and that this needs to be acknowledged even by international law. This thesis rejects such arguments and takes the position that attributes of statehood are not dependent on type of government. As far as existing states are concerned, democracy is not an ongoing requirement for statehood. The end of the Cold War also coincided with the dissolutions of two multiethnic federations, the Soviet Union and Yugoslavia. The dissolution of Czechoslovakia followed shortly afterwards and subsequently Eritrea, East Timor and Montenegro also became independent states. Most recently, independence was declared by Kosovo. Some of these post-Cold War state creations were subject to significant international involvement, which might have had effects of (informal) collective state creations. This thesis argues that in such circumstances international efforts to create a new state were associated with attempts to implement a democratic political system. On the other hand, where the emergence of a new state was merely a fact (and the international community was not involved in producing this fact), recognition was normally universally granted without an enquiry into the (non-) democratic methods of governments of the newly-emerged states. Apart from democracy as a political system, this thesis is also concerned with the operation of democratic principles in the process of state creation, most notably through the exercise of the right of self-determination. An argument is made that the will of the people within the right of self-determination has a narrower scope than is the case within democratic political theory. Further, while the operation of the right of self-determination requires consent of the people before the legal status of a territory may be altered, a democratic expression of the will of a people will not necessarily create a state. Limits on the will of the people in the context of the right of selfdetermination stem from the principle of territorial integrity of states, protection of rights of other peoples and minorities, and even from the previously existing internal boundary arrangement. In the context of the latter it is concluded that the uti possidetis principle probably does not apply outside of the process of decolonisation. However, this does not mean that existing internal boundaries are not capable of limiting the democratically-expressed will of the people, especially where boundaries of strong historical pedigree are in question

State creation and the concept of statehood in international law

This chapter proposes to conceive of statehood as a legal status rooted in customary international law and argues that this has two consequences. First, customary international law contains a norm specifying that entities that meet the criteria of effectiveness are states with all the rights and duties this status entails. Second, the making of customary international law also serves as a blueprint for the creation of statehood as a legal status in individual cases. To develop the theoretical tools necessary for a successful conceptualisation of statehood, it proceeds as follows. Section 2 addresses the criteria stemming from the 1933 Montevideo Convention on the Rights and Duties of States. It explores their connection to theories of legal personhood as well as their roots in colonialism to show that they are neither as relevant nor as helpful as is often argued. Section 3 turns to conceptual ramifications of the Montevideo criteria's shortcomings as well as unsuccessful remedies for these problems. Each of them illustrates aspects of what a conceptualisation of statehood should look like and thus contributes to our endeavour. Finally, we sketch our proposed theory based on the insights gained along the way

Secession of Kosovo

Kosovo's unilateral declaration of independence from 2008 and certain subsequent developments have challenged some traditional theories pertaining to statehood and recognition. Do states really emerge on meeting the statehood criteria? Is recognition always declaratory? This chapter argues that the role of recognition depends on the mode of secession. The example of Kosovo demonstrates that collective recognition can indeed be more than merely declaratory where an attempt at secession is unilateral. What happens where collective recognition is widespread, but not universal? Is Kosovo a state because it is recognised by 113 states or is it not a state because it is recognised only by 113 states? The answer is that such a situation creates territorial ambiguity. Such an ambiguity is closely related to the concept of statehood. Statehood is not an objective physical fact, it is legal status of a territory. And legal status can sometimes be unclear and ambiguous

Dissolution of States

How are state dissolutions different from secessions? In theory, a dissolution extinguishes the predecessor state, and its former constitutive units emerge as new states and new persons of international law. Conversely, a successful secession means that one part of an existing state becomes a new state and a new person of international law, while the rump state continues to exist and retains the same identity and international personality. In practice, this theoretical distinction has not always been preserved. This chapter thus seeks to analyse contemporary state dissolutions and their broader legal effects. It distinguishes between consensual and non consensual dissolutions, and between those situations where the legal personality of the predecessor state was extinguished and those where the legal personality continued to exist. In so doing, the chapter argues that the line between dissolution and secession is not always clear. It can be arbitrary and drawn with political goals in mind