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Name:

Donovan J Pentz

Student No:

571091

Tutorial No:

13

Tutor:

Kelvin

Essay: Does

Kosovo qualify as a state under international law? Apply the factual criteria

to this case and elaborate on the role of recognition by other states. What does this case
study contribute to the debate around the nature of international law?

Words:

1700

Introduction:

Article 1 of the 1993 Montevideo Convention on the Rights and duties of states
contains the most authoritative description of constitutive elements of statehood. 1
It stipulates four criterias that must be satisfied in judging for the claimant
statehood. These requirements include that the putative state must occupy a
defined territory, must be in a possession of a permanent population, must
operate an effective government over such territory and lastly, an entity must
have full capacity to engage in international relations, as well as an ability to fulfil
1

Crawford, J.: Creation of States in International Law, Oxford University Press, Oxford, 2002, p.32.

treaty obligations.2 Kosovo unilaterally declared itself independent on 20


February 2008, and this declaration has been followed by recognition from other
states although the formation of states is independent of recognition. 3 For Kosovo
to become a state it firstly has to effectively fulfil the requirements of statehood
stated in the Montevideo Convention and to have been created lawfully. 4 By
applying the traditional factual criteria and the role of recognition the essay will
explain whether Kosovo qualify as a state under international law, and through
these requirements shall also discuss how this case study contribute to the debate
around the nature of international law.

Brief Historical Background:

As within the Socialist Federal Republic of Yugoslavia, Kosovo has never been
constituted as a Republic, but only as an autonomous territory. Starting with the
year 1974 under Yugoslav Constitution, Kosovo was granted the status of an
autonomous Province. Accorded by the Jugoslav constitution to the single
republic was a clear purpose behind this choice; no legal basis for a demand for
self-determination should be created. Nevertheless, virtually far-reaching rights
were granted to this province; such as an autonomous government, a Supreme
Court, a separate territorial defence army and the right to grant citizenship and
to issue passports.5
After Milosevic acquired power in 1989 the degree of autonomy granted by
Belgrade to Kosovo was substantively reduced, and participation of ethnic
Albanians in public office was actively discouraged. In response, Kosovo
Albanian

leaders

withdrew

from

all

public

institutions,

created

parallel

administrative structures and on 19 October 1991 declared Kosovo a sovereign


and independent state.6 The Federal Republic of Yugoslavia (FRY) authorities
launched a military campaign against its region in February 1998 after these
2

Ibid. p.33.

Okeowo, O.,Statehood, Effectiveness and the Kosovo Declaration of Independence,


http://www.ssrn.com/abstract=1316445, 3 November 2008, p.1.
4
5

Loc cit.
Malcolm, N.: A Short History of Kosovo, Macmillan, London, 1998, p.64.

Enrico Milano.: Security Council Action in the Balkans: Reviewing the Legality of Kosovo's Territorial Status,
European Journal of International Law, March 2003.

attacks committed by the Kosovo Liberation Arm. Gross violations of human


rights were committed by the FRY authorities in the region and on 24
March1999, NATO began a bombing campaign against FRY claiming for a
humanitarian intervention. The bombing campaign ended on 9 June 1999.
On 15 May 2001, Kosovo Assembly acquired certain powers from a Constitutional
Framework for Provisional Self-Government. On 20 February 2008, it declared
itself independent for the second time. Although its first declaration of
independence had been only recognized by Albania, the Independence of Kosovo
done in February 2008 was followed by the recognition of a number of countries
including the United States and the major part of European countries.7
Applying the factual traditional criteria for statehood in the case of Kosovo:

A Permanent Population:
The criterion of permanent population as described in the Montevideo Convention
of 1993 has no minimum population required and microstates are accepted as full
members of the international community, Nauru has less than 10 000
inhabitants.8

According Raic two points should be recognised concerning the

conditions of this criterion. First the population must have the intention to
inhabit the territory on a permanent basis and the territory claimed has to be
habitable.9

It is therefore beyond dispute that Kosovo has a permanent

population. As of April 2011, Kosovo had a population of approximately 1.8 million


people.10
A Defined Territory:
For this requirement clearly, defined and undisputed borders are not a necessary
prerequisite of statehood. No rule regarding the size or continuity of such
territory is required, as recognised in the North Sea Continental Shelf cases,
where the International Court of Justice declared there is no rule that the land
frontiers of a State must be fully delimited and defined and Israels borders has
7
8
9

Okeowo, O Op. Cit. p.4.


Dugard, J.: International Law A South African Perspective, JUTA, Cape Town, 2005, p.83.
David, R.: Statehood and the Law of Self- determination, Geboren Tes-Graven, 2002, p.49.

10

U.S. Department of State Diplomacy in action: Bureau of European and Eurasian Affairs,
http://www.state.gov/r/pa/ei/bgn/100931.htm ,September 2011.

been a subject of dispute for forty years. 11Kosovo certainly certifies the
territoriality condition of the Montevideo convention as its land mass enjoys a
distinguished place in the history of Serbia. A territorially defined space can also
be traced back under the 1974 Yugoslav Constitution when it was granted the
status of an autonomous province with virtually the same rights as six other
Yugoslav Republics.12

Government:
To satisfy this requirement an entity must have a government that effectively
exercise state authority over the claimed territory, the people residing in that
territory and that is independent of any other authority. 13According to Crawford,
The requirement that a putative State have an effective government might be
regarded as central to its claim to statehood. 14 Raic posits that the criterion of
government should be institutionalised political, administrative and executive
organisational machinery for the purpose of regulating the relations in the
community and charged with the task of upholding the rules.15
While it is true to say that there is a government in Kosovo, its power however
fails to cover the extent sovereign territory.

It has a democratic elected

government chosen by its citizens via elections organised and supervised by the
United Nations, European Union and other international bodies. The government
functions through legal acts based on a constitutional framework and through
laws passed by the legislative organs, which have been approved by the special
Representatives of the UN Secretary General. NATO enforces laws relating to
international security, and UN police forces enforce laws relating to internal law
and order. The judicial system operates under the control of UNMIK, utilizing
international judges and prosecutors.16 A close look to this shows that every

11

Dugard, J Op. Cit. p.83.


Redman, M. Should Kosovo be entitled to Statehood? in The political Quarterly, Vol.73, Iss.3, July 2002, p.341.
13
Dugard, J Op. Cit. p.83.
14
Crawford, J Op. Cit. p. 55.
15
David, R Op. Cit. p.62.
16
Hajredin, K.: The Legal and Political Grounds for, and the Influence of the Actual Situation on, the Demand of the Demand
of Kosovo for Independence, Chicago-Kent Law Review, Chicago, 2005, p.349.
12

institution in Kosovo has an international component and in this sense its still not
fully independent as it lacks the ability to deal with its own internal affairs.
Capacity to enter into relations with other states:
If a state is subject to the authority of another state in the handling of its foreign
affairs, it fails to meet this requirement and cannot be described as an
independent state.17 Although Kosovo in October 2008 opened an embassy in
Washington DC, has 21 diplomatic missions, 13 consular posts worldwide and
have joined the International Monetary Fund and World Bank in June 2009,
undeniably the government of Kosovo is still under the tutelage of the U.N. 18As
outlined above the presents of international bodies on the territory of Kosovo and
the powers it does not itself exercise, which are assumed by the international
community shows that Kosovo is not fully independent.

Recognition:

Although the concept of the traditional criteria plays an important role in the
determination of statehood, states practice shows that its effectiveness is limited
and that it is not the only criterion for statehood. Recognition may be either
unilateral or collective19. In unilateral, an already accepted individual state
recognise an entity claiming statehood meets the factual requirement of
statehood and is therefore to be regarded as a state, with the rights and duties
attached too statehood. Two principal schools of thought dominate this orthodox
of recognition; the constitutive and the declaratory. 20 For constitutive
recognition of a claimant entity as a state creates or constitutes the state,
therefore becoming an additional requirement for statehood. On the other hand
the declaratory school maintains that an entity becomes a state upon meeting the
prescribed requirements of statehood and that recognition by other states
17

18

Dugard, J Op. Cit. p.83.


Bureau of European and Eurasian Affairs Op. Cit. p. 55 .

19

Dugard, J Op. Cit. p.94.

20

Loc cit.

acknowledges something that has been uncertain. 21 Collective recognition occurs


when a group of states, such as United Nations and European Union recognises a
claimant of a state directly, by an act of recognition, or indirectly, by admission of
the state to the organisation.22
The Significance of Recognition in International Law:
Recognition as an act under International law confers legal status to an entity
seeking statehood and the following established states are said to have
overridden the traditional principles of public International
Law regarding recognition.23 By way of recognition Poland, the Baltic States,
Guinea-Bissau, Kuwait, Austria, Ethiopia and were regarded as states whereas
they were not effective entities. Rhodesia and Taiwan which were effective
entities were not regarded.24 Recognition is therefore left to the governments of
other states which in many instances will be guided by rational political
considerations. For Kosovo, its recognition by the major states such as the United
States and the United Kingdom will boost its legitimacy to statehood as
recognition by major powers plays an important legitimating role. Withholding of
recognition by these powers may have serious consequences, both political and
economic.25

International Law:

In the case of statehood, international law is clearly ineffective as it provides


unsatisfactory results which are unclear with no courts to interpret or correct.
Raic argued that its because of the absence of a central organ with general
powers of attribution and enforcement rights and obligation. 26 It is unclear in
21

Loc cit.

22

Okeowo, O Op. Cit. p.4.

23

Christian, H.: The Admission of New States to the International Community ,http://www.ejil.org/pdfs/9/3/664.pdf ,
November 2008
24
Dugard, J Op. Cit. p.112.
25
26

Loc cit.
David, R Op. Cit. p.50.

international law as to how many states exactly need to recognise a territory


before it becomes a state, and the reason for this is that existing states dont want
to lose their sovereignty and hand over power to a world government. Through
the procedure of recognition, states exercise their prerogative to determine in
advance whether the newcomer, in their judgment, is able and willing to carry out
all its obligations as a subject of international law. Statehood is therefore
dependent on the acceptance by pretty much all other states, each state
maintains the right to choose which territory is a state and which is not. This is a
clear indication where existing states hold on to their sovereignty despite this
being to the detriment of more effective international law.27
'

Conclusion:

It is clear that apart from the traditional criterion in the 1993 Montevideo
Convention on the Rights and Duties of States other criteria exist that an entity
must fulfil in order to be regarded as a state. Kosovo fails to meet some of the
requirements for statehood under the traditional criteria and from the foregoing
Kosovo may not yet be regarded as a State properly under International Law.

27

Christian, H Op. Cit. p.1

Bibliography:
Crawford, J.: Creation of States in International Law, Oxford University Press, Oxford, 2002.
David, R.: Statehood and the Law of Self- determination, Geboren Tes-Graven, 2002.
Dugard, J.: International Law A South African Perspective, JUTA, Cape Town, 2005.
Enrico Milano.: Security Council Action in the Balkans: Reviewing the Legality of Kosovo's Territorial Status, European Journal
of International Law, March 2003
Hajredin, K.: The Legal and Political Grounds for, and the Influence of the Actual Situation on, the Demand of the Demand of
Kosovo for Independence, Chicago-Kent Law Review, Chicago, 2005.

Malcolm, N.: A Short History of Kosovo, Macmillan, London, 1998.


Okeowo,

O.,Statehood,

Effectiveness

and

the

Kosovo

Declaration

of

Independence,

http://www.ssrn.com/abstract=1316445, 3 November 2008


Redman, M. Should Kosovo be entitled to Statehood? in The political Quarterly, Vol.73, Iss.3, July 2002.
U.S.

Department

of

State

Diplomacy

in

action:

http://www.state.gov/r/pa/ei/bgn/100931.htm ,September 2011.

Bureau

of

European

and

Eurasian

Affairs,