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Table of Contents
1. Introduction
2. The Dispute
a) Kosovo’s Declaration of Independence
b) Serbia’s Reaction
3. The Politics of Recognition
a) Background
b) The Legal Framework
c) Stated Reasons of Recognising States
d) Stated Reasons of Objecting States
e) The Silent States
4. The Request for an Advisory Opinion
5. The Challenges Ahead
Summary
This working paper offers an international legal perspective on the
diverse and conflicting international reactions in response to
Kosovo’s Declaration of Independence on 17 February 2008.
Considering the failure of the UN Security Council in conjuring up a
common position, whether a condemnation or approval of Kosovo’s
desire to become an independent and sovereign member of the
international community, each State was left to decide, on its own
terms, how to react. The Council’s failure is the upshot to
what may be defined as the ‘politics of recognition’, ie,
a diversity of differing and conflicting reactions of third States in
response to the Kosovo Declaration, which reproduce the main positions in the original dispute rather than settling it.
Against this background, the aim of this paper is three-fold. First, it seeks
to explain the emergence of these politics. Secondly, it examines the
complex nature of the disagreement that lies behind the diverse
reactions, which includes a consideration of the reasons behind the
different positions of recognising and objecting States as well as an
interpretation of why so many States have chosen to remain silent.
Thirdly, the paper reflects on the unfortunate implications of these
politics. While by no means discarding the inherent international
legal dimensions to the original dispute between Pristina and
Belgrade, and a role for the International Court of Justice, the
paper expresses hesitation about the capacity of international law
and the Court to settle the disagreement about international law that
is now developing. Furthermore, an exclusive focus on international
law detracts attention from the need to continue to approach
realities on the ground with a view to establishing a sustainable peace in the Balkan region.
1. Introduction
The decision on 17 February 2007 of the provisional authorities in Kosovo
to declare independence from Serbia (hereafter the ‘Kosovo
Declaration’ or the ‘Declaration’) has created considerable turmoil in international affairs. At the heart of the trouble surging through the Peace Palace in the Hague as
a result of this decision is the disagreement among third States of
how each of them ought to react (or ought to have reacted) in relation to this decision.
The argument that ‘the creation of States is a matter in principle
governed by international law and not left to the discretion of
individual States’ may be widely accepted in international
legal circles. Even so, in the case of Kosovo at least, and until now, it may well be asserted that international law has failed, in a rather blunt way,
to offer something like a common framework with the capacity of
constraining the range of reactions of third States. The failure of
international law to govern in difficult situations, such as
Kosovo’s, could be explained as the result of its ‘incomplete’
institutionalisation: in spite of the considerable growth and
progressive codification of international law in the last 60 years,
there is still no generally accepted international authority to
ensure widespread compliance among States with its principles and
rules. From this standpoint, the radical divergence of third States
in terms of their reactions to the Kosovo Declaration would be
explained as the result of a deliberate decision of a considerable
number of States to simply ignore its principles and rules, without
suffering any kind of sanction as a result. However, it is also
possible that the governance failure of international law is the
result of a deeper problem. From this perspective, while
international law surely entails several principles and rules
regarding the terms and conditions of separation and secession of
parts of territories of States there might be no clarity as to
whether these are applicable to the dispute between Pristina and
Belgrade, or whether the Kosovo situation, in fact, represents a
unique case that cannot be responded to on the basis of settled
international law, but must be dealt with in an unprecedented or
exceptional manner. Unlike the first explanation to the governance
failure, which seems to point to an institutional problem, the second
explanation points to an epistemic one: according to the latter,
there is no settled or readily applicable international law to govern in the Kosovo situation.
Against this background, this paper seeks to offer some reflections on the
most critical points of international law in disagreement as
manifested, in the first instance, in the dispute between Pristina
and Belgrade; then, in the ongoing politics of recognition that have
ensued in the wake of the Kosovo Declaration; and, third, in the
deliberations in the UN General Assembly preceding and following the
adoption of the Resolution that requests the International Court of
Justice for an advisory opinion on the legality of the unilateral
decision of Kosovo to declare its independence from Serbia. Of special interest is an examination of the way in which the
politics of recognition and the deliberations in the UN General
Assembly reproduce the opposing standpoints between the two parties
in the original dispute. A second aim is to reflect on the challenges
ahead in the light of my tentative conclusion about the limited
capacities of international law and associated judicial institutions to settle the current disagreement.
The paper proceeds as follows: after a brief introduction to the
arguments and positions of the two parties in the original dispute,
the second section directs attention to the radical divergence of
reactions of third States, and their respective positions, and
arguments, if any, in their support. It also directs attention to the
considerable number of States that until now have chosen to remain
outside these politics, and reflects on the possible explanations for
this notable silence. The third section centres on the deliberations
of the UN General Assembly concerning the request for advisory
opinion and on the transformation of the nature of the disagreement,
as a result of this request, from a political one into a legal one. The fourth and final section discusses some challenges ahead
considering the (irreconcilable) nature of the current disagreement.
While seeking to create a space for a reflexive discussion, the paper
makes no attempt to offer a claim about how third States ought to
react (or have reacted) to the Kosovo Declaration or on how the disagreement ought to be resolved. The aim is mainly exploratory.
2. The Dispute
a) Kosovo’s Declaration of Independence
The first paragraph of the Kosovo declaration of independence, adopted by
the provisional institutions of Kosovo on 17 February 2008, reads:
‘We, the democratically elected leaders of our people, hereby declare
Kosovo to be an independent and sovereign state. This declaration
reflects the will of our people and it is in full accordance with the
recommendations of UN Special Envoy Martti Ahtisaari and his
Comprehensive Proposal for the Kosovo Status Settlement’.
The remainder of the Declaration consists of an announcement of what kind
of State Kosovo is committed to be for its citizens and inhabitants
–a secular, democratic and multiethnic republic, guided by the
principles of non-discrimination and equal protection under the law–
and for the international community –an international
law-abiding State that is committed to peace and stability in the
region, that wishes to integrate itself into the European family of
States and welcomes a continued international supervision of its
democratic development by UNMIK and the EU Rule of Law mission as
well as the military leadership provided by NATO–. In
particular, it is fully committed to follow the recommendations of
the UN Special Envoy, including the adoption of a Constitution that
enshrines its ‘commitment to respect the human rights and
fundamental freedoms of all [its] citizens, particularly as defined by the European Convention on Human Rights’.
The Preamble of the Declaration sheds light on some factors that seem to
have prompted its decision which it understands as a way ‘to
confront the painful legacy of the recent past in a spirit of
reconciliation and forgiveness’. The following arguments may be of special importance:
-
Kosovo is a special case arising from Yugoslavia’s non-consensual
break-up and is not a precedent for any other situation.
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There have been years of strife and violence in Kosovo, that disturbed the
conscience of all civilised people.
-
There have been years of internationally-sponsored negotiations between
Belgrade and Pristina over the question of its future political
status, but no mutually-acceptable status outcome has been possible,
in spite of the good-faith engagement of its leaders.
-
There are recommendations of UN Special Envoy Martti Ahtisaari that
provide Kosovo with a comprehensive framework for its future development.
-
In 1999, the world intervened, thereby removing Belgrade’s
governance over Kosovo and placing Kosovo under United Nations
interim administration. Since then, Kosovo has developed functional,
multi-ethnic institutions of democracy that express freely the will of its citizens.
-
It is important to resolve the question about the final status of
Kosovo in order to give its people clarity about their future, move
beyond the conflicts of the past and realize the full democratic potential of its society.
While each of these arguments may be contested, suffice it to note for the
purpose of this study that these are the main arguments that the
provisional institutions of Kosovo set forth in the official document
in which they declare its independence in order to explain and defend
their decision. The fact that the declaration is accompanied by so
many reasons shows, if nothing else, Kosovo’s painful knowledge
of the contestable nature of the move it made, and could be seen as a general plea for understanding.
b)
Serbia’s Reaction
In the Security Council meeting on the day following the declaration of
independence, Boris Tadic, President of Serbia, was given the opportunity to articulate the Serbian position. His speech began with an assertion
of the illegality of Kosovo’s decision and ended with a statement that Serbia would never recognise Kosovo. In support of this position the following arguments were invoked:
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Security Council Resolution 1244(1999) reaffirms the sovereignty and
territorial integrity of the Republic of Serbia, including Kosovo
and Metohija. The Security Council and all UN Members are bound by
Chapter VII of the UN Charter to respect the sovereignty and territorial integrity of the Republic of Serbia.
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The declaration of independence is contrary to the first principle of
the UN Charter, the sovereign equality of all Member States.
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A State cannot lawfully be deprived of its territory illegally and
against its will. A historic injustice will have occurred because a
legitimate democracy has never before been punished in such a way.
-
The mistakes of Slobodan Milosevic cannot be attributed to the current
Government of Serbia. He is no longer there and in 1999, when he was
in power in Serbia, Kosovo was not granted independence. The current
Serbia is a democratic and peace-loving country.
-
Since 1999, 250,000 Serbs and other non-Albanians have been expelled from
Kosovo. In mid-March 2004, militant and extremist members of the
Albanian community in Kosovo burned 35 churches and monasteries and
800 houses in three days, while another 5,000 Serbs and other non-Albanians fled their homes.
-
Kosovo sets a precedent that might have catastrophic consequences, and will
cause irreparable damage to the international order. It implies the
danger of an escalation of many existing conflicts, the flaring up
of frozen conflicts and the instigation of new ones.
In the same meeting, the President of Serbia expressed his continued
commitment to negotiations and compromise solutions, and asserted
that Serbia rejects the use of force as a means for finding a solution to the dispute.
3. The Politics of Recognition
a) Background
Had the permanent members of the UN Security Council
been able to establish common ground on the final status of Kosovo,
it is possible that the unfortunate unilateral decision of Kosovo to
declare independence in the face of persistent and radical opposition
from Serbia could have been avoided. Nevertheless, this is not to
deny that no attempts were made by them to search for an
authoritative solution: the initial negotiations were led by the UN
Special Envoy Martti Ahtisaari who in 2007 presented a comprehensive
proposal for the Kosovo status settlement to the parties involved. Nevertheless, his proposal that Kosovo should be an independent
State, and that the international community should assist its
population in the furthering of a set of institutions that is
incumbent upon that status, was deplored by Serbia and its allies. As
a result, that Plan could not be adopted by the Council. From the standpoint of international law, that means that it remains
a set of recommendations without legal effect (although it might
certainly be argued that the Plan still carries significant political weight).
To this should be added that Security Council Resolution 1244, which established the
international presence in Kosovo in 1999, a presence that also
continues in spite of the Kosovo decision, sets forth a framework,
including a number of constraints and requirements incumbent upon the
parties in negotiating a final settlement. According to the terms of
the Resolution, that framework must be a political process meant to
establish an provisional agreement that secures substantial
autonomous government for Kosovo while fully respecting the
sovereignty and territorial integrity of Serbia. Although the Kosovo
decision might evince a potential failure of this framework to wield
any final results, and in this sense might possibly excuse Kosovo for
acting in the way it did, it is also possible and, indeed, this is
what several States insist on, that Kosovo’s decision amounts
to an infringement of this Resolution, which remains the main
instrument in force to govern the process towards a final solution and the continued international presence.
Whatever importance we might attach to the role of the Security Council and
its Resolution(and, from an international legal perspective, this is a critical
question) in determining how the dispute must be settled, the fact
that Kosovo declared independence in the way it did implies a
significant change in the situation. In international affairs, when a secessionist movement or an international protectorate declares independence for part of a
territory of a State, some kind of reaction on the part of other
subjects of international law –collective or unilateral–
is expected. However, given the Security Council’s failure to
conjure up a common position –condemnation or approval–
in response to the Kosovo decision, each State has been left to
decide, on its own terms, how to react.
b) The Legal Framework
What factors explain (on the one hand) participation or non-participation
of third States and (on the other) disagreement and opposition, on
matters of recognition? What is the purported role of international law in this context?
In international legal circles the assertion that the formation of a new
State is a matter of fact, and not of law, continues to have
considerable weight. From this standpoint, an act of recognition is not an instrument whose function it is to create a State, but only to demonstrate acceptance of a given claim to
statehood based on a neutral assessment of whether or not a given
entity meets the criteria that are incumbent on that title. To put it differently, an act of recognition is not constitutive of a State, but rather declaratory in nature and effect: it is not capable of revising, but merely of affirming the facts of statehood. Nevertheless, while on this
account, a State may exist in spite of negative reactions, including
radical condemnations from third States, in practice, a widespread
recognition appears to be of particular worth from the standpoint of
those institutions claiming to meet the criteria of statehood. In particular, recognition appears to be an essential condition for
the new State to be able to exercise, in an effective manner, the international rights and obligations that
correspond to the status of statehood, including entering into
relations with other States, and in this way becoming a fully-fledged
member of the international community.
Furthermore, despite the non-decisive nature of recognition from an international
legal perspective, it must be noted that recognition by other States
can be used as evidence for the legal validity of the claims for
statehood set forth by secessionist movements. As James Crawford explains:
‘Recognition is an institution of State practice that can resolve uncertainties as
to status and allow for new situations to be regularized. That an
entity is recognized as a State is evidence of its status; where
recognition is general, it may be practically conclusive. States, in
the forum of the United Nations or elsewhere, may make declarations
as to status or ‘recognize’ entities the status of which
is doubtful: depending on the degree of unanimity and other factors
this may be evidence of a compelling kind. Even individual acts of
recognition may contribute towards the consolidation of status; in
Charpentier’s terms, recognition may render the new situation
opposable to the recognizing State’.
Thus, even though universal and even partial recognition of other States is
not constitutive of statehood, the number of recognitions received by
the claim for the title of statehood is still of enormous practical
significance from the standpoint of the claimant, once it is in the
business of seeking to present evidence for its claims before an
international tribunal or seeking to persuade hesitant or objecting third States in the politics of recognition.
A second relevant factor that explains the emergence of the politics of
recognition in the wake of claims for statehood is the openly
declared and widely accepted intimate relation between international
law and politics in this domain of international affairs. While,
formally speaking, the act of recognition purports to be based on
neutral (or objective) criteria of statehood, State practice reveals
that it tends to be coupled with a range of political
considerations. Indeed, when state creation processes –not least when they amount to secession– are violent or traumatic, instead of
peaceful and based on agreement, it is reasonable to expect that
third States will react on the basis of a range of political
considerations. These States might have both personal (national
interest-driven motivations) and impersonal (international human
rights protection) stakes in these kinds of conflicts, and will
decide how to react in line with their particular interests.
Considering that the stakes are different depending on a State’s
particular interests, including considerable investments,
multinational make-up, etc., one group might be eager to lend
considerable support to those who set forth the claims for statehood
while, at the same time, a different group will oppose the same
claims in the most radical terms. Furthermore, since in the case of
secessionist movements, a State is facing the risk of losing part of
its territory, the act of recognition in these kinds of conflicts
tend to imply taking sides, and can even be perceived as intervention
in a dispute that from the standpoint of the losing State is internal
or domestic. This reality explains why some States choose to remain
silent. In addition, the combination of the legal worth of acts of
recognition (the first factor mentioned in the previous paragraph)
and political stakes explains the temptation of third States to use
the act of recognition in a premature way when a State, in all
fairness, is still only ‘in the making’ rather than a fait
accompli.
A third and related factor has to do with the scarce international
regulation and, thus, the voluntarism associated with the act of
recognition. For one thing, from the standpoint of international law,
an act of recognition is a discretional act and not a matter of
international legal obligation. This means that a third State, as a
general rule, is free to recognise or not, and is not obliged to give
reasons for its position. In other words, whether a State wishes to
accept or reject a given claim for the title of statehood or to
remain passive, and whether or not it wishes to explain or defend its
act or omission is a matter of preference. Thus, in controversial
situations, a recognising State might deem it wise not to present
reasons for its act; however, the reality of controversies might also
be a State reason for coupling its act of recognition with a
statement of reasons. In other words, while it is certainly possible
to set forth political objections to the particular strategies
adopted by different third States, international law does not confer
any obligations on States to participate in the process of
recognition or offer a comprehensive recognition or objection
statement. Having said that, some prevailing international legal
restrictions must be noted. The act of recognition is in principle
not permitted if it constitutes intervention in the domestic affairs
of a State, or if the state-creation process in any other way amounts
to a serious infringement of international law (such as in the case
of illegal annexation of a territory). Nevertheless, even though an act of recognition in principle can be
‘illegal’, considering the incomplete
institutionalisation of international law, such an act will have no judicial repercussions.
Each of these considerations –the legal worth of recognition, the political stakes, the
scarce international regulation of the process of recognition, the
lack of sanction, as well as the voluntarism associated with the act
of recognition– explain and, in a sense, legitimise, what can
be defined as the ‘politics of recognition’, ie, a
diversity of differing and conflicting reactions of third States that
could reproduce the main positions in the original dispute rather
than settling it. The reactions to the Kosovo decision represent a
paradigmatic case in point. While the Kosovo Declaration has been
recognised by 56 third States, the majority of which are European, as
well as the US, it has provoked serious condemnations by some 40 others, including Russia, China and Spain. Meanwhile, the rest, about half of the
members of the international community, remain silent or have
communicated that the matter requires further consideration before a final decision is reached.
c) Reasons Stated by Recognising States
If and when the creation of a new State is uncontroversial, the specific
contents of the different recognition statements seem uninteresting.
However, if it is controversial, such texts warrant closer attention.
Considering the prevailing doubts and disagreements as to whether
Kosovo –because of the continued international supervision of
basic functions of its institutions– in fact meets the
statehood criteria, and whether, according to international law, it
is entitled to secede from Serbia despite its refusal to accept such
an outcome, most States that have recognised Kosovo have deemed it
essential to explain the reasons for their action (although 15 of the
recognising States have refrained from explaining it altogether).
Most of the States that give reasons for their decision have preferred to
stress different political considerations without going into details
about international law regarding the general terms and conditions of
secession, including possible exceptions. Indeed, one of the most prominent concerns expressed in the recognition statements is the prospect of peace and security in the
Balkan region. Indeed, several assert that an independent Kosovo will strengthen those prospects. In a similar spirit, some of the recognising States express concerns
about the unsustainable nature of the status quo, and that an independent Kosovo would puts an end to Yugoslavia’s disintegration.
The recognising States that express a concern for international law do so
in a rather superficial manner. For example, Burkina Faso states that
its action ‘is in accordance with international law’;
Afghanistan, the United Arab Emirates and Taiwan (not a member of the
UN), in contrast, refer expressly to ‘the principle of
self-determination’. In addition, occasional references are made to the consistency between their recognition and Security Council Resolution 1244
(1999), the Rambouillet Accords (1999) and the conclusions of the Ahtisaari Plan (2007). At the same time, while international law references are scarce, it is important to note that several States invoke an argument about
‘failed negotiations’ between Pristina and Serbia to
explain their stance. Since from the standpoint of international law
one general condition for lawful secession is agreement between the
parties, the frequent references to failed negotiations could be seen
as affirmations that sustained efforts have been made to conform to
this rule and that the basis for their stance must be found in some
exception to that rule. Indeed, several States couple their statement about failed negotiations with the claim that Kosovo constitutes a sui
generis case, ie, a class of its own. No less than eight States assert this
understanding in their individual recognition texts. The factors relevant to draw these conclusions were set forth in
straightforward terms by Condoleezza Rica, at the time US Secretary
of State, as follows: ‘the unusual combination of factors found
in the Kosovo situation –including the context of Yugoslavia’s
break-up, the history of ethnic cleansing and crimes against
civilians in Kosovo, and the extended period of UN administration–
are not found elsewhere and therefore make Kosovo a special case’.
She then added that because of its uniqueness the independence of
Kosovo cannot be seen as ‘a precedent for any other situation
in the world today’. The conclusions of EU Council show the
same conviction. Although the EU Foreign Ministers were unable to reach an agreement on how to react to the Kosovo decision and, thus, left it to each
member State to decide on its own terms on the question of recognition, the common conclusions underline that:
‘In view of the conflict of the 1990s and the extended period of
international administration under SCR Resolution 1244, Kosovo
constitutes a sui generis case which does not call into question [the
UN Charter and the Helsinki Final Act, inter alia the principles if
sovereignty and territorial integrity and all UN Security Council Resolutions]’.
However, while several States have resorted to the sui
generis argument, it must be noted that it was not a novel one in the context
of Kosovo, but had been articulated in the conclusions of the
Ahtisaari Plan 2007 and, as already noted, also used by the Kosovo
parliament itself. Indeed, the International Court of Justice has
affirmed that the entire Yugoslav dissolution should be regarded a sui generis case from the standpoint of international law, at least between 1992 and 2000.
The argument about the sui generis nature of the case has been coupled with an assertion that the
question about the final status of Kosovo –and who is to decide
about that– is a ‘grey area’ in international law.
For example, in the press conferences following the Swedish
recognition of Kosovo, its Prime Minister asserted this point,
acknowledging that the Swedish decision (criticised by Left-wing
parties as taking too long) had not been an easy one, and that the
most important consideration for Sweden has been the fact that Kosovo
has been under international supervision for nearly 10 years and
that, during this period, it has not been a sovereign part of
Serbia. In relation to this point, it is also noteworthy that several recognising States afford special attention to the fact that Kosovo,
in spite of its ‘new’ status, will remain under
international supervision with no stated deadline. To this end, in
its recognition text Afghanistan invokes the international
trusteeship provisions in the UN Charter (art. 76(b)); Italy recognises the independence of Kosovo ‘within a framework
of international supervision’; furthermore, Germany, Hungary
and Sweden affirm that the ‘continued international presence’
has been a kind of condition for recognition, and mention
specifically the establishment and support of the European-led EURLEX
mission for an undefined time. Furthermore, in a similar fashion,
Australia emphatically recognises that ‘much remains to be
done’. Sweden’s recognition statement reveals the additional complexities:
‘[Sweden] recognizes the Republic of Kosovo as an independent State whose
independence is supervised for the time being by the international
community… A difficult and demanding process is now being
stated to build a Kosovan State that meets international
requirements’.
In sum, what most of the recognising States have in common is a shared
conviction about the need to assess the case in the light of
political considerations (ie, peace and security concerns), and that
there is no settled international law governing the case. Some even
seem to argue that because of its exceptional character, international law is not ‘fit’ to deal with the case.
d) Reasons Stated by Objecting States
In stark contrast with most of the recognising States, the great
majority of objecting States base their opposition on international
law, in particular the UN Charter (the principle of territorial
integrity) as well as Security Council Resolution 1244 (1999). The
exact number of states which, in fact, object to the Kosovo decision
is difficult to establish (not least since there is no standard
format for such objections, but also because it is not clear if some
of the statements of non-recognising states can be understood as
‘objections’ rather than as an expression of a wish to
remain outside the politics of recognition). Even so, a reasonable
estimation is that at least 45 States have put forth objections, of
which some are formulated in terms of serious accusations that the
Kosovo decision amounts to a manifest abridgment of international
law.
To begin with, one group of States asserts that the declaration of
independence is at odds with international law, ie, that the act is
illegal. Some of them emphasise the failure to respect the principle of territorial integrity and/or the sovereignty of States, while others remain more general in their statements, simply
referring to ‘international law’. It is important to note
in this context the stress on the role of the Security Council and
the UN on the settlement of the final status of Kosovo. Indeed,
several States insist on the need to respect the decisions of the UN
Security Council and support the UN system, and 11 States insist on the authoritative nature of Security Council Resolution 1244 (1999), that affirms the territorial integrity of
Serbia and makes a call for mutual agreement between the parties to
resolve the dispute. A few more States join the general call for further negotiations, indicating that not all States affirm the failure or exhaustion of
negotiations in the way that several recognising States have done. Furthermore, Brazil asserts that ‘a peaceful solution of the
issue of Kosovo must continue to be sought through dialogue and
negotiation, under the auspices of the United Nations and the legal
framework of Resolution 1244’ and that it will ‘await a
UN Security Council decision before defining its official position on
the matter of Kosovo’s independence’. In a similar vein, the former Foreign Minister of Cyprus stated that: ‘Cyprus will never recognize a unilateral decision of
independence outside the UN framework, and in particular by side-stepping the role of the Security Council’. Furthermore, the President of Iran has expressed his concern over the weakening of international organisations.
The main arguments about international law are asserted in the Joint
Statement of the Foreign Ministers of India, Russia and China regarding Kosovo, as read by Russia´s Foreign Minister Sergey
Lavrov:
‘We believe it must be solved solely on the basis of international law…
In our statement we recorded our fundamental position that the
unilateral declaration of independence by Kosovo contradicts
Resolution 1244. Russia, India and China encourage Belgrade and
Pristina to resume talks within the framework of international law
and hope they reach an agreement on all problems of that territory’.
While the international legal dimension of the objections is predominant,
it is important to note that a closer examination of their statements
reveals several different grounds for objection, not all of which are
related to strictly international legal concerns, but rather to
political ones, including political stakes in how the conflict is to
be resolved. Indeed, a second line of argument of objecting States,
though not necessarily a legal one, is that Kosovo creates a
‘dangerous precedent’. Indeed, no less than 12 States officially refer to the risks of the Kosovo precedent in the Resolution of problems in their own or
neighbouring countries. Some insist that the unilateral act threatens peace and stability in the region and beyond. A few depict the entire recognition process as nothing but an ideological move by the US and/or EU, or their objection as an act of solidarity with Serbia.
e) The Silent States
It is by no means irrelevant to a study of the ongoing politics of
recognition that have developed in the wake of the Kosovo decision
that only about half of the members of the international community
actually participate in these politics. While all members of the
Security Council certainly are significant participants in the
recognition process that has followed, so are all the European States
and also some States from other regions that have come to be regarded
in the international relations literature as emerging powers, such as
Argentina, Brazil and Canada. Still, it is noteworthy that so many States have refrained from advancing any position whatsoever.
The passive States include several Latin American countries (such as
Uruguay, Surinam, Dominican Republic, The Bahamas, Barbados, Grenada,
Guyana, Honduras, Guatemala, Saint Lucia, and Saint Vincent), a not
insignificant number of African States (including Botswana, Burundi,
Cameroon, Congo, Ivory Coast, Djibouti, Ethiopia, Eritrea, Kenya,
Liberia, Lesotho, Malawi, Namibia, Rwanda, Somalia, Swaziland,
Tanzania, Chad, Togo, Tunisia and Zimbabwe) and a few Asian States
(among them, Burma, Brunei, Cambodia and Mongolia). While most
Islamic States have developed a position on Kosovo, no united front
can be discerned (indicating that religious ties at least in this
case have not been a determining factor in the development of
positions in the politics of recognition) or functioned as an
incentive to at least take part. Among Islamic States that remain silent are Morocco, Tunisia and Syria.
The different factors inducing this silence are a matter for speculation.
One possible explanation is the simple fact that not all States can
be said to have personal stakes in the outcome and settlement of the
dispute regarding the terms and conditions for secession.
Additionally, some governments might prioritise more urgent problems
at home and, thus, leave the problems facing other States to one
side. A third possible explanation might be concern about the
possible negative consequences of taking sides in what seems to be a
disagreement of an especially unfortunate kind. A fourth and final
explanation is preoccupation about the legality of the Kosovo
decision. Indeed, as will be noted in the following section, thirty
States that have remained silent voted in favour of the General
Assembly Resolution requesting the International Court of Justice to
issue an advisory opinion on the matter.
4. The Request for Advisory Opinion
On 8 October 2008, the UN General Assembly requested the International
Court of Justice to give an advisory opinion on the following question:
‘Is the unilateral declaration of independence by the Provisional
Institutions of Self-Government of Kosovo in accordance with international law?’.
Since the time of the request the question has begun working its way
through the Court machinery. Pursuant to Article 65.2 of the Statute
of the Court, the UN Secretariat prepared a dossier containing all
relevant documents pertaining to the matter, which has now been
transmitted to the Court. Furthermore, the Court has set the limit during which written statements can be presented to its Registrar at 27 April 2009 and the deadline by which States and organisations should present
their written statements and comments on other written statements at 17 July 2009. The Court’s final opinion can be expected at the very earliest
in around a year’s time.
From the standpoint of international jurists, the opinion will most likely
be considered authoritative as regards such complex themes as the
meaning and scope of self-determination, the terms and conditions for
secession, the criteria for statehood and the nature and effects of
acts of recognition, and whether the post-Cold War developments have
implied any international legal reconsiderations. Nevertheless, its practical implications could be limited since
advisory opinions are not binding to parties in the dispute. In
addition, given the disagreement between the members of the UN
General Assembly, the Security Council and the EU, the Court might
have a hard time to establish a common position among its members as
to whether the question warrants an affirmative or negative answer
and, what is even more challenging, agree on the reasoning backing up
its position. Looking back on the Court’s previous advisory opinions in response to controversial legal questions posed to it, a split
decision is to be expected.
The radical discord concerning international law was felt during the
deliberations prior to the decision of the UN General Assembly to
request the International Court of Justice on 8 October 2008 for an
advisory opinion on the legality of the Kosovo declaration. While
some of the States that have insisted on the political and unique
nature of the solution for Kosovo argued that the matter is not apt
for international judicial review, the States that maintain that there has been an abridgement of international law felt that the decision to ask the Court for an opinion was a victory.
Indeed, the Resolution that authorises the request acknowledges the ‘varied
reactions by the Members of the United Nations as to its
compatibility with the existing international order’. The Resolution, drafted by Serbia, was adopted by a recorded vote of 77 in favour to six against, with 74 abstentions and 28 UN members absent. The deliberations preceding and following the vote were telling of the diverse international reactions, not merely to Kosovo’s
declaration of independence, the recognition (or non-recognition) of
others in response to this declaration, but also to the Serbian
initiative of turning to the Court in the first place. Thus, some expressed their concern about the fact that the request did not muster univocal support: more members had felt the need to
abstain rather than vote in favour of the Resolution. Others raised their worries about the way in which the request might endanger the Court as ‘the case raises highly political matters for judicial review’, and prejudice the future political stability and economic progress of the region. Others again expressed their wholehearted support for the outcome. The Serbian Foreign Minister, Mr Jeremic, concluded the 22nd session of the General Assembly by noting that ‘it was a great day for the Assembly and international law…’ and that he
looked forward to working constructively on the process regarding the future status of ‘their province’.
The Kosovo authorities, in contrast, expressed regret over the adoption
of the Resolution, stressing that the independence of Kosovo is
irreversible and that the review by the ICJ of the legality of its
declaration would not prevent other countries from appreciating the
constant progress in Kosovo or recognising it as an independent
State. While the matter is working its way through the Court machinery, the provisional authorities continue to take steps that could strengthen
their claims to statehood. To this end, they have adopted a
Constitution (that entered into force on 15 June 2008), established a
Ministry of Foreign Affairs and announced the opening of diplomatic
missions and the appointment of mission heads to 10 countries. It has
also applied for membership in the IMF and the World Bank, as well as
established a Ministry for Security Forces. Furthermore, the Kosovo
Assembly continues to adopt legislation although now without any
reference to the executive powers of the UN Special Representative
under Security Council Resolution 1244. Its hope seems to be that by the time the ICJ has pronounced itself on the issue, statehood is a fait
accompli, an irreversible fact that supersedes the quarrels about the legal
basis for its unilateral decision.
5. Challenges Ahead
The question of the final status of Kosovo has immediate practical
ramifications for the international community not merely as a result
of the failing authority or significance of international law, but
also for the prospects of peace and security and, above all, because
of the continued international presence. In the meeting held by the
Security Council on 18 February 2008, the UN Secretary General, who
is responsible for the actual administration of the international
presence, warned that, pending guidance from the Security Council,
‘UNMIK will continue to consider Council Resolution 1244 as the
legal framework for its mandate and will continue to implement its
mandate in the light of evolving circumstances’. He furthermore
stated that the overriding objective in Kosovo is to secure overall
stability and the safety and security of its population. On 12 June 2008, the UN Secretary General asserted that the UN has a status-neutral approach towards assertions of independence and
statehood. At the same time, in his report to the Security Council, he acknowledged that the UNMIK has had to reconfigure in order to
attempt to adapt to the divergent paths taken by the Belgrade and
Kosovo authorities since the day independence was declared. In his
report to the Security Council, the Secretary General acknowledges
that the space in which UNMIK can operate has changed, and that the
UN Special Representative is facing increasing difficulties in
exercising his mandate due to the conflict between Resolution 1244
and the Kosovo Constitution, which does not take the Resolution into
account. Of particular concern is that while the Secretary General’s Special Representative is still formally vested with executive
authority under Resolution 1244 he is unable to enforce his
authority. In fact, such authority can be exercised only if and when
it is accepted as the basis for decisions by the Special
Representative. At the same time, the rule of law mission deployed by the Council of the EU is in the process of replacing the UNMIK. It is expected to assume responsibilities in the areas of policing,
justice and customs, under the overall authority of the UN, under a
UN umbrella headed by the UN Special Representative, and in
accordance with Resolution 1244 Serbia and the Kosovo Serbs have indicated that they would find an enhanced role for the EU in the area of the rule of law acceptable,
provided that such activities are undertaken under the overall status-neutral authority of the UN. Following discussions, the Secretary General understands that both
Pristina and Belgrade recognise the need to devise a solution that
allows for the continuation of the international civil presence in
Kosovo.
Regardless of who is right, in the end, about the correct or least problematic
standpoint in the dispute about the final status of Kosovo, and who
is to decide on that question, a continued international presence is
forced to adjust to changing realities on the ground. To what extent
and for how long this can be done in an ad hoc fashion without any clear mandate on what the ultimate objective of
that presence is, remains unclear. At the same time, it seems clear
that it will be difficult for that international presence to avoid
taking sides in the dispute and to be neutral, not least in the event
of violence erupting again. Even so, the prospects for a new decision
by the Security Council are limited. The statements presented in the
meeting of the Security Council on 18 February 2009 are evidence of
how difficult it is to agree on a new Resolution. Indeed, all further
attempts to progress on this matter by the Council members since that
day have been in vain. While the Council President recently presented
a statement accepting the arrival of the EU Rule of Law mission to
Kosovo in order to share the burdens of the continued international
presence, no further decisions have been made or are foreseen. In
practical terms, this means that Resolution 1244, adopted within the
framework of Chapter VII of the UN Charter, remains in force, despite
the fact that it does not foresee responding to changing realities on the ground.
Nevertheless, as already noted, it is likely that the advisory opinion of the
International Court of Justice will not succeed in establishing a way
forward, at least not in an authoritative manner (obliging the
parties), but neither in a persuasive way. In the worst case scenario
it will reproduce instead of overcome the disagreement it was meant
to settle and furnish sophisticated arguments and lines of reasoning
in favour of both sides. In the best of possible worlds its judges
will be able to muster common positions on some of the most critical
points of international law while not agreeing upon what are the main considerations of law and fact that wield those positions.
However, this implies that the way the dispute is to be settled, if at all
forthcoming, might not be determined by international law, as its
capacities in this domain of international affairs to resolve
conflicts of this kind seem limited, but must be sought through
compromise and negotiation. Indeed, if the reflections of the Swedish
Minister for Foreign Affairs about the challenges ahead are correct,
Kosovo’s decision to secede from Serbia followed by the
recognition of some 60 states will certainly not bring the conflict
in the Balkan region to an end; neither will it improve the prospects
for peaceful relations between the US, Russia and China for years to
come. As Carl Bildt reiterates, sustainable peace cannot be achieved
by a tactic of avoidance but by approaching these realities and
searching for agreement where it can be found. For him, it is not about who is right, but about finding a way forward in a situation of protracted disagreement and discord. At the
same time, while there might be disagreement about international law,
including the roots of disagreement (wilful ignorance of its rules
and principles, uncertainty or exceptionality), what might be agreed
upon is that the current state of affairs constitutes a challenge,
not only to the continued international presence, or peace and
security, but also to international law as such. In particular, it
constitutes a challenge to its authority and ability to govern in
difficult situations where authority and governance seem to be most needed.
Jessica Almqvist
García-Pelayo Research Fellow at the Spanish Centre for Political and Constitutional Studies
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