Abstract
It would not be possible to elaborate on the role of the ‘international element’ in Kosovo’s state formation and state-building without first making a preliminary but substantive inquiry on the law of statehood. The inquiry about the role of the ‘international element’ would be nebulous if this book does not explore the nature and the status of Kosovo. More precisely, it is only through this pattern how the role of the ‘international element’ in state formation and subsequent state-building of Kosovo can be questioned.
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Notes
- 1.
Cf.: Kunz (1950), p. 713, arguing on the ‘far-flung practice of states’ in regards to recognition in international relations.
- 2.
- 3.
In relation to the recent case of Crimea and its status according to international law, see the interesting propositions developed by Nikouei and Zamani (2016).
- 4.
On effectiveness principle in defining statehood, see: Peters (2012).
- 5.
For more about the meaning of the right to self-determination and that of secession see Lorca (2014), p. 509 et seq; Shelton (2003), pp. 47–72; Galbreath (2005), p. 545 et seq; Saul (2011), p. 611. et seq; Griffiths (2014); Klabbers (2006); The use and application of the right to self-determination varied and often was depended on the political differences between east and west. Carty, for example, suggests that interpretation of the right to self-determination in the era of the cold war has been progressively used on ideological purposes. He argues that ‘such an ideological use of apparently legal concepts does not permit them to function as positive rules of law’. See Carty (1984), p. 73; Oloka-Onyango (1999), p. 183 et seq.
- 6.
- 7.
Raič (2002), p. 48.
- 8.
Convention on Rights and Duties of States, December 26, 1933, League of Nations - Treaty Series, II, hereinafter Montevideo Convention, available at: https://treaties.un.org/doc/Publication/UNTS/LON/Volume%20165/v165.pdf, art. 1.
- 9.
Crawford (2007), p. 37.
- 10.
Crawford (2007), p. 37.
- 11.
Raič (2002), p. 86.
- 12.
Compare the case of Kosovo with that of Palestine, more on this can be found at: Crawford (1990).
- 13.
See more on the critique about the narrowness of the ICJ in qualifying the scope of application of the principle of territorial integrity in the Kosovo Advisory Opinion. See Corten (2011), pp. 87–94.
- 14.
Vidmar (2012), pp. 110–111.
- 15.
According to Vidmar, rather ‘than trying to explain state creation with a set of four descriptive criteria, it is more plausible to define state creation as a process of overcoming the counterclaim to territorial integrity’. See Vidmar (2016), p. 111.
- 16.
It should be noted that many share the opinion that the right to self-determination has acquired the status beyond ‘convention’ and is considered a general principle of international law. See Reference Re Secession of Quebec, [1998] 2 R.C.S., p. 278, para. 114; and the references mentioned therein. Cassese (1995), pp. 171–72; Doehring (2002), p. 70. Moreover, the right to self-determination is explicitly guaranteed and mentioned in many UN Documents and International Conventions, including the Charter of the United Nations, see: International Covenant on Civil and Political Rights, 999 U.N.T.S. 171; International Covenant on Economic, Social and Cultural Rights, 993 U.N.T.S. 3; the U.N. General Assembly’s Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, GA Res. 2625 (XXV), 24 October (XXV), 1970 (Declaration on Friendly Relations); the U.N. World Conference on Human Rights adopted the Vienna Declaration and Programme of Action, A/CONF.157/24, 25 June 1993; the U.N. General Assembly’s Declaration on the Occasion of the Fiftieth Anniversary of the United Nations, GA Res. 50/6, 9 November 1995; The Final Act of the Conference on Security and Co-operation in Europe, 14 I.L.M. 1292 (1975) (Helsinki Final Act), states (in Part VIII). There is an increasing consensus among scholars claiming that international law does not recognize a right to external self-determination outside the colonial context, but unequivocally opine that international law is at best neutral towards secessionist claims arising outside the colonial context. See Reference Re Secession of Quebec, [1998] 2 R.C.S., p. 287, para. 139; Tomuschat (1993), pp. 1–20; Murswiek (1993), p. 31; Dugard (2003), pp. 93–94; Weller (2011), p. 129.
- 17.
For detailed explanations see Vidmar (2012).
- 18.
- 19.
Reference Re Secession of Quebec, [1998] 2 R.C.S., p. 296, paras 143 and 155.
- 20.
Cf. Christakis (2011), p. 86.
- 21.
Kosovo Advisory Opinion, para. 81. For more on the concept of jus cogens and their relationship with human rights see Bianchi (2008). For example, in the Right of Passage case, Judge Fernandez (ad hoc Judge) in his dissenting opinion referred to jus cogens as rules ‘which no special practice can prevail’. See Dissenting Opinion of Judge Fernandes, Case concerning Right of Passage over Indian Territory (Merits), Judgement of 12 April 1960: I.C.J. Reports 1960, p. 135, para. 29 Moreover, it is to be noted that, according to the Judge Tanaka, the laws concerning protection of human rights may be considered to belong to the category of the peremptory norms (jus cogens). See Judge Tanaka Dissenting Opinion, Ethiopia v. South Africa; Liberia v. South Africa (South West Africa case) Second Phase, Judgment [1966] ICJ Rep, 298.
- 22.
However according to Kelsen, recognition ‘may be said to be comprised of two quite distinct acts: political act and legal act… This declaration in itself has no legal consequences, although it may be of great importance politically, especially for the prestige of the state and government to be recognized. This…since it has no legal effect whatsoever, is not constitutive for the legal existence of the recognized state …’ see Kelsen (1941), p. 605.
- 23.
Crawford maintains that modern criteria for statehood can have an ambiguous role, since they can ‘either supplement or in certain cases contradict this principle on grounds of legality or legitimacy. Crawford (2007), p. 46.
- 24.
Raič (2002), p. 53.
- 25.
Crawford (2007), p. 37.
- 26.
Raič (2002), p. 153.
- 27.
On the relevance of Lauterpahct’s book on state recognition from 1928 onwards, see: Kunz (1950), p. 713.
- 28.
Lauterpacht in Crawford (2007), p. 106.
- 29.
Paraphrasing Dugard, Raic contends that ‘at least on the basis of the cases discussed, the traditional criteria for statehood remain unchanged, and thus that the relevant territorial entities created in violation of international law do constitute States, but that these States, although existing in fact, are without legal effect’. See Raič (2002), p. 153.
- 30.
See Raič (2002), p. 153.
- 31.
Raic trying to explain these competing arguments contends that once an ‘entity meets the traditional criteria for statehood on the basis of effectiveness, it exists as an effective territorial entity. In order to become a State in the sense of international law, the entity should be created lawfully, that is to say, its creation should not have been accompanied by, or be the result of, a violation of certain fundamental rules of international law. This is so because as was seen above, an effective territorial entity which has been brought about in violation of a fundamental rule—and in particular one having the character of jus cogens—is without legal effect’. Raič (2002), p. 154.
- 32.
- 33.
Thürer and Burri recognize that ‘the Independent International Commission on Kosovo, author of one of the most authoritative documents on Kosovo, assumed without much discussion that there is a people of Kosovo: arguably, the strong moral and political duty on the part of the international community ‘extends to the realization of the right of self-determination for the people of Kosovo’ and ‘[t]he people of Kosovo must take over the running of their affairs”. See Thürer and Burri (2008) para. 21; Zimmermann and Stahn (2001), p. 454.
- 34.
EC, ‘Declaration on the Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union’, UN Doc S/23293, Annex 2 (1991), the so-called Guidelines on Recognition’. For a detailed overview of the relationship between democratic principles and recognitions in the European context see Vidmar (2013), pp. 78–104; Oeter (2007).
- 35.
See for example the declarations made by the US Administration and the Government of the Netherlands: U.S. Recognizes Kosovo as Independent State, Secretary Condoleezza Rice Washington, DC, February 18, 2008, available at: https://2001-2009.state.gov/secretary/rm/2008/02/100973.htm; The Netherlands recognizes Kosovo, Press Release, 04-03-2008, available at: https://www.government.nl/latest/news/2008/03/04/the-netherlands-recognises-kosovo.
- 36.
Island of Palmas Case, Netherlands vs USA, (1928), Reports of International Arbitral Awards, Volume II, pp. 829–871, p. 839.
- 37.
Crawford (2007), p. 46.
- 38.
Island of Palmas Case, Netherlands vs USA, (1928), Reports of International Arbitral Awards, Volume II, pp. 829–871, p. 840.
- 39.
Crawford moreover acknowledges that claims ‘to the entire territory of a State have commonly been raised in the context of admission to the United Nations: this was the case with Israel, and also with Kuwait, Mauritania and Belize….The proposition that a State exists despite claims to the whole of its territory was not challenged in these cases. It should be noted that the question of admission to the United Nations raises somewhat different issues from those simply of statehood. Thus the obligations of a State towards a fellow Member are greater than those towards a non-Member State: there would seem to be grounds for refusing United Nations membership to any State the territory of which was subject to a serious and genuine unresolved territorial claim of another Member…It is only to be expected then that claims to less than the entire territory of a new State, in particular boundary disputes, do not affect statehood.’ Crawford (2007), pp. 48 and 49.
- 40.
North Sea Continental Shelf Judgment, I.C.J. Reports 1969, page 32, para 46.
- 41.
Lauterpacht thus acknowledges that ‘when in 1919 Estonia and Latvia were recognized by the Allied Powers, no recognition was granted to Lithuania on the express ground that owing to the Vilna dispute, her frontiers were not yet fixed’. Lauterpacht (1944), p. 412.
- 42.
For more on the EU positioning towards Kosovo after the Kosovo Advisory Opinion: Tannam (2013).
- 43.
See Raič (2002), p. 52.
- 44.
Crawford (2007), p. 56.
- 45.
See Legal Status of Eastern Greenland, Judgment, 1933, P.C.I.J., Series A/B, No. 53, pp. 45–46, and Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment, I.C.J. Reports 2007, p. 659.
- 46.
For example according to Higgins in relation to the application for membership in the UN, as far as the criteria of government is concerned ‘Two points become apparent: first, that by and large there has been a tendency among members to interpret this legal criterion to mean democratic, rather than purely effective, government; and second, that the requirement of the existence of a government as a prerequisite to statehood at times comes very near, and in part overlaps, the requirement of independence,’. See Higgins (1961), p. 1136.
- 47.
Lauterpacht (1944), p. 408.
- 48.
Crawford explains that ‘A striking modern illustration is that of the former Belgian Congo, granted a hurried independence in 1960 as the Republic of the Congo views can be taken of the Congo situation. It may be that international recognition of the Congo was simply premature because, not possessing an effective government, the Congo was not a State’. Crawford (2007), p. 56. As far as Finland is concerned, the Report of the International Committee of Jurists investigating the Aaland Islands Case in 1920 stated “It is, therefore, difficult to say at what exact date the Finnish Republic, in the legal sense of the term, actually became a definitely constituted sovereign State. This certainly did not take place until a stable political organisation had been created, and until the public authorities had become strong enough to assert themselves throughout the territories of the State without the assistance of foreign troops. It would appear that it was in May, 1918, that the civil war ended and that the foreign troops began to leave the country, so that from that time onwards it was possible to re-establish order and normal political and social life, little by little”. See: The Report of the International Committee of Jurists entrusted by the Council of the League of Nations with the task of giving an advisory opinion upon the legal aspects of the Aaland Islands question. League of Nations, Official Journal, Special Supplement, No. 3, October 1920. Similarly, commenting on this Lauterpacht acknowledged that: ‘The importance of the requirement of an effective government may be gauged from the fact that the Committee of Jurists, who were asked to give an opinion in the matter of the Aaland Islands, held that notwithstanding the above acts of recognition, Finland was not at that date a State in the contemplation of international law having regard to her unsettled condition and the absence of an orderly administration’. See Lauterpacht (1944), p. 412.
- 49.
Crawford (2007), p. 56.
- 50.
The declaration by the member States of the European Community acknowledged that: ‘The Community and its member States warmly welcome the restoration of the sovereignty and independence of the Baltic States which they lost in 1940,’ See the Declaration by the member States of the European Community on the independence of the Baltic States, 27 August 1991, available at: http://www.mfa.gov.lv/images/archive/data/Izstades/atkalatzisana/078EK_n.JPG. The same statement was reaffirmed in the Joint Statement at the occasion of the meeting between the EC Ministers of Foreign Affairs, the representative of the Commission and the Foreign Ministers of the Republics of Estonia, Latvia and Lithuania, No. 91/255, 6 September 1991, available at: www3.lrs.lt/docs2/MDCUKZCC.DOC.
- 51.
Raič (2002), p. 73. Crawford further details that ‘in applying the general principle to specific cases, the following must be considered: (1) whether the statehood of the entity is opposed under title of international law: if so, the requirement of effectiveness is likely to be more strictly applied; (2) whether the government claiming authority, if it does not effectively control the territory in question, has obtained authority by consent of the previous sovereign and exercises a certain degree of control; (3) there is a distinction between the creation of a new State on the one hand and the subsistence or extinction of an established State on the other. In the former situation, the criterion of effective government may be applied more strictly.’ See Crawford (2007), p. 59.
- 52.
Crawford (2007), pp. 61 and 62.
- 53.
Higgins (1961), p. 1138.
- 54.
Crawford (2007), p. 63.
- 55.
See above the case of Baltic Countries, EC declarations and facts therein contained.
- 56.
Bartkusm acknowledges that sovereignty ‘is central to secession, as it is the essential characteristic of statehood to which secessionist communities aspire’. See Bartkusm (2004), p. 218.
- 57.
Island of Palmas Case, p. 838.
- 58.
Judge Anzilotti, Individual Opinion, Customs Regime Between Germany and Austria, Advisory Opinion, PCIJ, Ser. A/B, No. 41, Protocol of March 19th, 1931, pp. 57 and 58.
- 59.
Crawford (2007), p. 58.
- 60.
Similar argument is delivered by Chinkin, pronouncing that ‘In one case (Western Sahara) the SC has found no way to end an illegal status quo and statehood remains in abeyance, while in the other (Kosovo) it has effectively facilitated de facto status and regime change.’ See Chinkin (2015), p. 156. Cf. Kohen and del Mar (2011), p. 122 calming that a neutral position, like the one adopted by the Secretary-General and his Special Representative, cannot be read as either favouring or condemning the UDI’.
- 61.
Article 14, entitled the ‘Transitional Arrangements and Final Provisions’ of the Comprehensive Proposal details the model of transition of powers from UNMIK to Kosovo authorities, determining among other that such transition will close within 120 days after the entry into force of the Comprehensive Proposal. See for more the Letter from the Secretary-General addressed to the President of the Security Council (26 March 2007), UN Doc. S/2007/168.
- 62.
In a report to the Security Council the Secretary-General asserts that: ‘On 9 April, the Assembly of Kosovo passed a constitution for Kosovo that is scheduled to come into force on 15 June. The constitution is designed in such a way that it would effectively remove from UNMIK its current powers as an interim civil administration. In this regard, the government of Kosovo has indicated that it would welcome a continued United Nations presence in Kosovo provided that it carries out only limited residual tasks… to these developments on the ground, on 18 February I received a letter from the High Representative for the Common Foreign and Security Policy of the European Union informing me of the willingness of the European Union to play an enhanced role in the area of the rule of law in Kosovo within the framework provided by resolution 1244 (1999). Since then, the European Union has reiterated its readiness to deploy staff to Kosovo in the functional areas of police, justice and customs…In the meantime, the Kosovo government has passed legislation that comes into force on 15 June that effectively seeks to assume tasks and competencies currently carried out by pillar IV…This legislation, combined with the announced closure of pillar IV, effectively removes UNMIK authority and capacity to control those areas…My discussions with members of the Security Council indicate that there is an interest in adjusting the operational role of the United Nations in Kosovo in the light of the evolving circumstances…It is understood that the international responsibility of the United Nations will be limited to the extent of its effective operational control. The United Nations presence will carry out the following functions, among others to be defined: (a) monitoring and reporting; (b) facilitating, where necessary and possible, arrangements for Kosovo’s engagement in international agreements; (c) facilitating dialogue between Prishtina and Belgrade on issues of practical concern; and (d) functions related to the dialogue concerning the implementation of the provisions specified in my letter to Mr. Tadić and referenced in my letter to Mr. Sejdiu.’ See UN Doc. S/2008/354, Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, paras. 7, 8, 9, 11, 16.
- 63.
- 64.
In 2008, the then SRSG, Ambassador Zannier confirmed that: ‘…even with a Chapter VII mandate and, in theory, concomitant powers, UNMIK has been effectively prevented from carrying out that mandate in the absence of the consent of local authorities. See Address by Ambassador Lamberto Zannier, Special Representative for the UN Interim Administration Mission in Kosovo (UNMIK), to the OSCE Permanent Council, 4 Sept. 2008, available at http://www.osce.org/pc/33233. D’Aspremont and Liefländer (2012), p. 4. Moreover, the then Secretary General, Ban Ki-moon acknowledged that: ‘It is evident that Kosovo’s declaration of independence has had a profound impact on the situation in Kosovo. The declaration of independence and subsequent events in Kosovo have posed significant challenges to the ability of UNMIK to exercise its administrative authority in Kosovo. To address these challenges, UNMIK, guided by the imperative need to ensure peace and security in Kosovo, has acted, and will continue to act, in a realistic and practical manner and in the light of the evolving circumstances…The evolving reality in Kosovo is likely to have significant operational implications for UNMIK. Pending Security Council guidance, there might be a need for UNMIK to adjust its operational deployment to developments and changes on the ground in a manner consistent with the operational framework established under resolution 1244 (1999)… The overriding need to ensure peace and security in Kosovo carries with it an obligation to address the reality on the ground as it develops.’ See UN Doc. S/2008/211, Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, paras. 30, 32 and 33. Moreover, according to Papic ‘UNMIK was facilitating Kosovo’s participation in international co-operation and regional economic initiatives even after the declaration of independence.’ See Papić (2013), p. 554, and the references mentioned therein.
- 65.
See Serra (2008), p. 78.
- 66.
Kosovo Advisory Opinion, para 114.
- 67.
- 68.
As it is confirmed in the letter sent from the Secretary-General to the Security Council a day after Kosovo’s Declaration of Independence: ‘I have received today the attached letter from Mr. Javier Solana, European Union High Representative for the Common Foreign and Security Policy, informing me of the decision by the European Union to deploy a rule of law mission to Kosovo within the framework provided by resolution 1244 (1999), and of the decision by the European Union to appoint a European Union Special Representative for Kosovo.’ See for more: UN Doc., S/2008/106, Letter dated 18 February 2008 from the Secretary-General to the President of the Security Council.
- 69.
The International Civilian Representative (ICR) according to the Comprehensive Proposal the ICR had to be appointed by the International Steering Group (an informal group of states and international organizations) after the endorsement by the UNSC and the EU. Since the Comprehensive Proposal was not endorsed by the Security Council, the appointment was done by the EU with the endorsement of the ISG. According to the Comprehensive proposal the ICR was the final authority as far as the interpretation of the Comprehensive Proposal and had the responsibility to supervise its implementation. Apart from these general functions, the ICR was mandated with particular tasks during the entire duration of the international supervision of Kosovo’s independence. See Letter from the Secretary-General addressed to the President of the Security Council (26 March 2007), UN Doc. S/2007/168., annex IX and X.
- 70.
Cf. Knoll (2009).
- 71.
D’Aspremont and Liefländer (2012), p. 6.
- 72.
For example in the Declaration of Independence of Kosovo such commitments towards international presence of Kosovo were explicitly expressed. Whether such call for the continuation of the presence of international institutions in Kosovo was done as an intermediary strategy to guarantee a soft transition of powers and complement their authority to effectively govern in the entire territory of Kosovo remains most probably true: “5. We welcome the international community’s continued support of our democratic development through international presences established in Kosovo on the basis of UN Security Council resolution 1244 (1999). We invite and welcome an international civilian presence to supervise our implementation of the Ahtisaari Plan, and a European Union-led rule of law mission. We also invite and welcome the North Atlantic Treaty Organization to retain the leadership role of the international military presence in Kosovo and to implement responsibilities assigned to it under UN Security Council resolution 1244 (1999) and the Ahtisaari Plan, until such time as Kosovo institutions are capable of assuming these responsibilities. We shall cooperate fully with these presences to ensure Kosovo’s future peace, prosperity and stability… We hereby undertake the international obligations of Kosovo, including those concluded on our behalf by the United Nations Interim Administration Mission in Kosovo (UNMIK) a… In all of these matters, we shall act consistent with principles of international law and resolutions of the Security Council of the United Nations, including resolution 1244 (1999).’ See Kosovo Declaration of Independence, 17 February 2008, available at: http://www.assembly-kosova.org/common/docs/Dek_Pav_e.pdf, accessed 22 Nov 2017.
- 73.
In relation to Cyprus, Tocci gives an interesting analysis about the likelihood to apply the concept of remedial secession as an argument to validate the partition of Cyprus. See Tocci (2003), pp. 71–96.
- 74.
Concerning Rhodesia see UN Security Council Resolution 216 of 1965 and UN Security Council Resolution 217 of 1965. For more on the role of the UN and International law towards unilateral illegal actions see McDougal and Michael (1968). Concerning northern Cyprus, the Security Council resolution 541 (1983). Security Council resolution 787 (1992) concerning the Republika Srpska.
- 75.
Kosovo Advisory Opinion, para 81.
- 76.
Moreover, Gioia acknowledges that the ‘…practice relating to the recognition of Kosovo confirms that, in the absence of a binding decision on the part of the UN Security Council, it is unlikely that most States will agree that a violation of jus cogens has occurred and that, consequently, there is a duty of non-recognition.’ Gioia (2008), p. 32. Cf. Orakhelashvili (2008), p. 31.
- 77.
An interesting qualification of Kosovo’s current status is provided by Sterio, claiming that ‘…it seems that Kosovo is an independent-dependent state-an entity that is officially recognized as a state but that cannot in reality function as a state absent strong international support’. See Sterio (2009), p. 297. Of course such perceptions have in general been present and were utilized to support the ideas about the viability of Kosovo’s quest to statehood and independence. However, by 2016, these arguments are both misleading and erroneous.
- 78.
Vidmar (2012), p. 110.
- 79.
- 80.
Vidmar (2012), p. 113.
- 81.
Weller (2011), pp. 129–130.
- 82.
Vidmar (2012), p. 114.
- 83.
- 84.
Vidmar (2012), p. 112.
- 85.
Vidmar (2012), p. 113.
- 86.
Vidmar (2012), p. 114. Similar view is shared by Van den Driest (2015b), p. 335 et seq; Oeter (2012), p. 113, confirming examples that national constitutions can serve as a grant of legal authorization to secede. However, in relation to South Sudan, the role of the UN Security Council through UNMIS is worth considering. See for more Qerimi (2013), pp. 78 and 79.
- 87.
Examples of secession guided by constitution are identified also by Jovanivic. See Jovanovic (2009), pp. 64–65.
- 88.
Vidmar (2012), p. 121. In relation to Bangladesh, however, Crawford notes that by ‘contrast where the government of the predecessor State maintains its status as such, its assent to secession is necessary, at least unless and until the seceding entity has firmly established control beyond hope of recall. Bangladesh is the only clear case in international practice since 1945.’ See Crawford (1999), p. 93; See also Shaw (2003), p. 246.
- 89.
For more on the genesis of war between Pakistan and Bangladesh see Sisson and Rose (1990).
- 90.
Vidmar (2012), p. 122.
- 91.
Vidmar (2012), p. 123.
- 92.
Vidmar (2012), p. 123. Crawford in addition notes that the ‘dissolution of a State may be initially triggered by the secession or attempted secession of one part of that State. If the process goes beyond that and involves a general withdrawal of all or most of the territories concerned, and no substantial central or federal component remains behind, it may be evident that the predecessor State as a whole has ceased to exist. As will be seen, this was the position taken by the international community in the cases of Yugoslavia and Czechoslovakia’. Crawford (1999), pp. 92–93.
- 93.
- 94.
In the case of Yugoslavia, the European Community appointed an Arbitration Commission on Yugoslavia, the so-called the Badinter Commission, to settle the disputes among republics and constituent entities within Yugoslavia. The role of the Badinter Commission was vague, however it managed to deliver several important opinions that shaped the future of Yugoslavia. The Commission addressed among others the issue of borders between the republics endorsing the view that the principle of uti possidetis was to be applied. According to this view the internal federal borders in case of successful secession of federal entities would become international borders. For more on the critiques about the application of the principle of uti possidetis see Pomerance (1998), pp. 50–57; Radan (2000), p. 50; Ratner (1996), pp. 590–624; Dugard and Raic (2006), pp. 94–137. More on the application of the Uti Possidetis in relation to Kosovo see Hasani (2003) and Jankov and Ćorić (2012). Uti Possidetis was widely applied in settling decolonization disputes in Latin America and Africa, and was moreover applied by the ICJ in the case between Burkina Faso and Haiti in the Frontier Dispute. See Judgment, I.C.J. Reports 1986, p. 554. Majinge (2010). The application of the Uti Possidetis juris in Africa has been forcedly criticized as an artificial tool linking decolonization with liberty and self-determination. See Makau (1995) and McGee (1992).
- 95.
- 96.
In this regard it is particularly important to note that the status of the East Timor was particularly discussed in relation to role of the UN organs to establish a regime of non-recognition against Indonesia’s claims. See Grant (2000). Writing for the regime of non-recognition Dugard claims that the UN has developed rules of non-recognition, that were particularly manifested with regard to the attempted secession of Katanga. See Dugard (1987), p. 86 et seq.; Dugard (2013), p. 158 et seq.
- 97.
However, the argument advanced by Vidmar that East Timor was a territory forming part of Indonesia was not properly settled. Its claim was continuously disregarded by the UN. As an example the General Assembly, through Resolution 31/53 of December 1976, determined that it: ‘Rejects the claim that East Timor has been integrated into Indonesia, in as much as the people of the Territory have not been able to exercise freely their right to self-determination and independence’ and called ‘…upon the Government of Indonesia to withdraw all its forces from the Territory’. See UN GA Resolution 31/53 1 December 1976.
- 98.
Qerimi (2013), pp. 69–72.
- 99.
Vidmar (2012), pp. 136–137.
- 100.
For example, de Villiers argues that Kosovo ‘shares the experience of East Timor where strong international support for secession followed massive human rights infringements against a minority group. Had it not been for the human rights atrocities followed by widespread international support, Kosovo would in all likelihood not have received its independence.’ See De Villiers (2012), p. 92.
- 101.
It is, however worth recalling that the negotiations process carried out within the framework of the UN have been more than exhaustive, and the international community engagement to find a final solution even more so. See Chap. 2 above.
- 102.
For example Fox argues that UN guided independence for Kosovo requires a new resolution to be adopted. See Fox (2008), p. 97 et seq.
- 103.
Vidmar (2012), p. 138.
- 104.
Vidmar acknowledges that the foundations of the doctrine of remedial secession ‘remain controversial both in theory and in practice’. This pattern of course reflects to Kosovo, See Vidmar (2010), p. 50.
- 105.
See Sterio (2010), p. 175 arguing that the recognition of the right to self-determination to Kosovo is politically motivated.
- 106.
On the obligation to withhold recognition see Shaw (2003), pp. 250–251.
- 107.
Reference Re Secession of Quebec, [1998] 2 R.C.S., p. 296, para. 155.
- 108.
Involving in the debate about the constitutive and declaratory theories of recognitions would set this line of argument farther, it is suffice to say that doctrinal approach of both theories cannot appropriately help explain the existing problem.
- 109.
It is worth recalling Buchanan. He developed the following proposition about the conditions of the application of the right to remedial secession, claiming that this right can be recognized to particular entities if there ‘…has been a formal international legal determination (1) that the state is responsible for the breakdown of the autonomy arrangement and (2) that secession is the remedy of last resort…’ and only if ‘…secession is a remedy of last resort for three types of grave injustices: (1) unjust taking of the territory of a legitimate state, (2) large-scale and persistent violations of the human rights of members of the seceding group, or (3) major and persisting violations of intrastate autonomy agreements by the state, when a suitable formal international legal inquiry has determined that the state is responsible for the violations and when secession is the remedy of last resort.’ Buchanan (2004), pp. 359 and 394. In addition see Buchanan (1998), pp. 225–250.
- 110.
Reference Re Secession of Quebec, [1998] 2 R.C.S., p. 285, para. 134.
- 111.
Katangese Peoples’ Congress v Zaire, Merits, Communication No 75/92, IHRL 174 (ACHPR 1995), October 1995, African Commission on Human and Peoples’ Rights [ACHPR].
- 112.
Many authors have already invoked the sui-generis patter to argue, or at least contemplate, the remedial secession for Kosovo. Continuous denial of internal self-determination and human rights abuses, international humanitarian intervention followed by international administration of Kosovo are some of the characteristics numbered to distinguish Kosovo as unique. For example in the view of the ‘Danish Government “two key elements give the case of Kosovo a unique character: 1) the history and dissolution of the SFRY, and 2) Security Council resolution 1244.’ See Written Submissions of Denmark, p. 6; German Government in its submission acknowledged that ‘… uniqueness of the Kosovo situation is a feature that unites proponents and detractors of Kosovo’s independence alike’ in particular ‘…the antecedents of the conflict of the 1990s, possibly as far back as 1912, but in particular those of the late 1990s, as documented in relevant UN and other documents; the nature and scope of what happened in 1998-99 (as documented): massacres and pillaging, mass ethnic cleansing, necessity of international community intervention to prevent, or rather put an end to this; the involvement of the international community and in particular its most universal institution, the UN: before and after 1999; the earnest and intense, but ultimately unsuccessful search for a negotiated solution in this framework (in other words: no other avenue left open, unilateral action is ultima ratio).” See Written Submission of Germany, p. 26; The United Kingdom has throughout emphasized the sui generis character of the Kosovo situation. “It has done so publicly and repeatedly for two reasons. First, it is the United Kingdom’s considered view that the circumstances leading up to and surrounding, and pertinent to an appreciation of, Kosovo’s Declaration of Independence are indeed unique… Second, it is important that the unique character of the Kosovo situation is clearly and forcefully articulated’. See Written Submission of the United Kingdom of Great Britain and Northern Ireland, at. 9 and 10. See also the Written Submission of France, pp. 25, 29, 30 and 48; Written Submission of Kingdom of Norway, p. 24. For more see Thürer and Burri (2008), para. 43; Higgins (2003), p. 37. However, for example Bing Bing Jia argues that ‘Kosovo case is, even at first glance, an example of the singular complexity of a process towards independence pursued by an entity without a colonial past’. See Jia (2009), p. 31. Moreover, according to Cismas, by trying to present Kosovo “…as unique, the international community undermined the theory of remedial secession…” In her view, Kosovo “…represents a missed opportunity of clarifying the concept of remedial secession: the ‘required’ threshold of abuse, the needed characteristics of a cultural group, the alternatives to be exhausted, the effect of time and democratization of the parent state on a secessionist claim, and not least, the question of uti possidetis iuris… Today, arbitrariness prevails. Thirty-nine years ago, Bangladesh seceded from Pakistan. The debate whether Bangladesh set a precedent for a right to remedial secession continues. Regrettably, Kosovo is merely a Bangladeshi deja-vu.” See Cismas (2010), p. 587.
- 113.
Written Submission of Germany, Kosovo Advisory Opinion, p. 34.
- 114.
Written Submission of Germany, Kosovo Advisory Opinion, p. 35.
- 115.
Ibid.
- 116.
Kosovo Advisory Opinion, Separate Opinion of Judge Yusuf, para. 16.
- 117.
- 118.
Knoll-Tudor (2015), p. 95 confirming that the success of the unilateral declaration of independence of Kosovo and acquisition of statehood relies mainly on recognition. The contention of Vidmar is however different, since he maintains that widespread ‘…recognition of unilateral secession may create ambiguity rather than clarify the legal status of an entity. The ambiguity could be ended by subsequent admission of the secessionist entity to membership of the U.N.; however, practice shows that no State has been admitted to the U.N. against the competing claim to territorial integrity by its parent State. This does not necessarily mean that such an entity may not be a State. At the same time, in the absence of U.N. membership, there exists no objective international indicator that would end the ambiguity and show that the entity is indeed a State’. See Vidmar (2012), p. 144.
- 119.
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Doli, D. (2019). Kosovo’s Quest for Statehood: From Unilateral Secession to Recognition. In: The International Element, Statehood and Democratic Nation-building. Springer, Cham. https://doi.org/10.1007/978-3-030-05995-8_5
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