PSDA

ON
KOSOVO’S DECLARATION

BY NEHA SACHDEVA
A3256119078

Introduction
On February 17, Kosovo's parliament declared Kosovo's independence from
Serbia.[1] Following that declaration, the U.S. and several European states
officially recognized the independence of Kosovo. An examination of Security
Council Resolution 1244, which set forth the international oversight of Kosovo
following the 1999 NATO intervention, and the international law of self-
determination, secession, and recognition demonstrates that while Kosovo's
declaration of independence and its recognition by various states can be
justified under existing international law, it is not a clear case. Rather, Kosovo
presents a quintessential "tough case," demonstrating the ways in which
political interests of states affect how the international law is given effect. How
and whether it will be considered a unique case in international law or a
precedent for other secessionist movements may depend on how various
states interpret the law and facts that gave rise to the declaration. Questions
concerning Kosovo's status within international organizations and its
succession to rights and obligations of Serbia remain open.
BACKGROUND

Within the former Socialist Federal Republic of Yugoslavia (SFRY), Kosovo

was an autonomous province within the Republic of Serbia. The ethnic make-
up of Kosovo is majority Albanian with a Serb minority. Kosovo's special
autonomy was ended by Slobodan Milosevic in 1989. In 1991 and 1992,
Slovenia, Croatia, Macedonia, and Bosnia, four of the six republics of the
SFRY, declared independence. In 1992, the Federal Republic of Yugoslavia
(FRY) succeeded the SFRY, and in 2003, the FRY was succeeded by the
federation of Serbia-Montenegro. In 2006, Montenegro declared
independence in accordance with the law of Serbia-Montenegro. Serbia
declared itself the successor to Serbia-Montenegro later that year. On
February 17, the Parliament of Kosovo issued a statement declaring "Kosovo
to be an independent and sovereign state."[5] The Parliament pledged
compliance with the process envisioned in the Ahtisaari Plan.
On February 18, U.S. Secretary of State Condoleezza Rice announced that
the U.S. "formally recognized Kosovo as a sovereign and independent
state."[6] France, the U.K., Germany, and other EU member states have either
recognized Kosovo's independence or are in the process of doing so.[7] At the
time of this writing, seventeen states have formally recognized Kosovo and
another thirteen have begun proceedings to do so. Eighteen countries have
announced that they do not recognize the secession, twelve states have
asked for further negotiations, and twenty-nine states have unclear positions.

The Law and Politics of Recognizing Kosovo's Declaration

In difficult situations such as these, the issue of legality often shifts from the
question of the legality of secession, to the question of the legality of the
recognition of secession, a subtly different, but nonetheless different,
question.[17]
The EU memorandum on Resolution 1244 contends that "[g]enerally, once an
entity has emerged as a state in the sense of international law, a political
decision can be taken to recognise [sic] it." This reflects the general
understanding that recognition itself is not a formal requirement of statehood.
Rather, recognition merely accepts a factual occurrence. Thus recognition is
"declaratory" as opposed to "constitutive." Nonetheless, no state is required to
recognize an entity claiming statehood.
Is Kosovo Unique?
t can be argued that Kosovo is different from other secessionist claims
because Kosovo has been under international administration as the
international community considered the situation so volatile. Reintegrating
such a territory is different from assessing a claim by a separatist group that,
on its own, is seeking to overturn the authority of the pre-existing state and
unilaterally secede. While secessions are primarily an issue of domestic law,
Resolution 1244 internationalized the problem. It also moved Kosovo from
being solely under Serbian sovereignty into the grey zone of international
administration.
This is a highly controversial position. Various reactions to the "uniqueness"
argument include that such a contention is "absurd" or that it is an esoteric
legal point that will be forgotten in the rush of politics.
It may, however, be possible to argue that Kosovo is both unique and a
source of precedent at the same time. Two reasons are cited for Kosovo's
uniqueness: (1) Kosovo has been under international administration since
1999; and (2) the Kosovar Albanians are an ethnically homogenous enclave,
physically separate and ethnically different from the Serbs.