International Legal Responses to Kosovo's Declaration of Independence
Vidmar, Jure, Vanderbilt Journal of Transnational Law
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
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. …