International Legal Responses to Kosovo's Declaration of Independence

Article excerpt

ABSTRACT

On February 17, 2008, Kosovo declared independence. As of March 6, 2009, fifty-six states have recognized Kosovo's independence, while a number of states maintain that Kosovo's 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's territorial integrity, and called for a political process leading to settlement of Kosovo's 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's 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.

TABLE OF CONTENTS

  I. INTRODUCTION

 II. KOSOVO: HISTORICAL, POLITICAL, AND LEGAL
     FRAMEWORK
     A. Kosovo, Serbia, Yugoslavia, and International
        Aspects
        1. Autonomous Status Within the SFRY
           and Background
        2. Suspension of Autonomous Status
           and Aftermath
        3. The Rambouillet Accords, the NATO
           Intervention, and Their Repercussions
     B. From Resolution 1244 to the Declaration
        of Independence
        1. Resolution 1244 and the Effective
           Situation
        2. The Political Process, the Ahtisaari
           Plan, and the Declaration of
           Independence

III. KOSOVO AND SECESSION
     A. The Right of Self-Determination and
        Kosovo Albanians
        1. The Right of Self-Determination and
           Territorial Integrity
        2. Are Kosovo Albanians a People for
           the Purpose of the Right of
           Self-Determination?
     B. Secession: "Remedial" and Unilateral
        Aspects

 IV. KOSOVO AND STATEHOOD CRITERIA
     A. The Traditional Statehood Criteria and
        Kosovo
     B. The Additional Statehood Criteria and
        Kosovo
        1. The Additional Statehood Criteria:
           General Doctrine
        2. The Additional Statehood Criteria:
           Does Kosovo Meet Them?

  V. KOSOVO AND RECOGNITION
     A. Recognition Theories, Collective
        Nonrecognition, and Kosovo
        1. Constitutive and Declaratory Theories
        2. The Doctrine of Collective
           Nonrecognition and Kosovo
     B. Resolution 1244, Secession, and Recognition
        1. General Observations
        2. Serbia and Russia
        3. The European Union and the
           United States
        4. Commentary on State Practice
        5. The Practice of Post-1991 State
           Creations and Kosovo

 VI. CONCLUSION

I. INTRODUCTION

On February 17, 2008, the Kosovo Assembly adopted the Declaration of Independence. (1) The Declaration makes reference to, among other things, "years of strife and violence in Kosovo, that disturbed the conscience of all civilised people" (2) and expresses gratefulness that "in 1999 the world intervened, thereby removing Belgrade's governance over Kosovo and placing Kosovo under United Nations interim administration." (3) It declares Kosovo to be "a democratic, secular and multi-ethnic republic, guided by the principles of non-discrimination and equal protection under the law," (4) welcomes "the international community's continued support of ... democratic development through international presences established in Kosovo," (5) and states that "independence brings to an end the process of Yugoslavia's violent dissolution. …