Legality of Kosovos Declaration of Independence under International Law - Essay Example

LEGALITY OF KOSOVO’S DECLARATION OF INDEPENDENCE UNDER INTERNATIONAL LAW AND ITS STATUS IN THE LIGHT OF MONTEVIDEO CONVENTION INTRODUCTION On February 17th, 2008, Kosovo declared itself to be an independent state. It was a shock to the entire international community. Till this declaration, Kosovo was a part of Serbia. Serbia is the main opponent of this declaration. It does not recognise the secession of Kosovo, and considers it to be a part of Serbia. According to Serbia, Kosovo is an autonomous region governed by the United Nation through its mission there i.e. United Nations Mission in Kosovo (UNMIK). Though it had been a protectorate of the United Nations since 1999, it was considered to be autonomous. The region had always been witness to ethnic battles, and the twentieth century saw the most bloody episodes in the unfolding saga of the Balkans. Countries such as the U. S., U. K. and a majority of the European Union are in favour of the declaration and have formally recognized Kosovo as a state. To these countries, Kosovo is officially known as the Republic of Kosovo. The topic of this essay is to determine the legality or otherwise of Kosovo’s declaration of independence. The essay will also deal with the issue of recognition of Kosovo as a state according to the relevant theories. Lastly, it will also examine whether the declaration of Kosovo as a state is proper according to the Montevideo Convention. History of Kosovo Kosovo was a part of the nation of Serbia, which succeeded Yugoslavia after its dissolution. It is a Balkan region given to ethnic strife since antiquity. To the Serbs, it is an integral part of Serbia, as the area covers the Kosovo Polje (Blackbird Field). This place is ‘sacred territory for the Serbs as the place where Serbs were ‘defeated and subjugated by the Turks’.1 is where The Kosovo problem is one step in the still to be completed Balkan saga. The area now comprising Kosovo was first defined as an area of a state in 1945 as the autonomous Kosovo-Metohian Area.As a part of Yugoslavia, Kosovo gained limited internal autonomy ihn the later part of the sixties. In the 1974 Constitution of Yugoslavia, Socialist Autonomous Province of Kosovo was given more powers. A President and prime Minister were formally recognised for the Area. It was also represented in the Federal Presidency. It was thus that Kosovo became a republic in the Federation. The Parliament of the un-recognized Republic of Kosovo approved a resolution supporting the "Independence and Sovereignty of Kosovo" in September 1991.  Put to a clandestinely organized and held referendum in Bosnia the resolution was approved overwhelmingly.2 The Dayton Peace Agreement had given that there would be no change of borders within Yugoslavia would be sanctioned. Despite this the unrest continued and life became difficult for the citizens of all ethnicities including Serbs and Albanians. In the year 1998, major conflicts emerged, forcing the United States to intervene on humanitarian grounds. The self declared R4epublic of Kosovo was formally disbanded. All of its important institutions were replaced by the Joint Interim Administrative Structure established by the United Nations Mission in Kosovo. The UNMIK was creation of the United Nations Security Council Resolution 1244. It placed Kosovo under transitional UN Administration. It authorized KFOR, a peace-keeping force led by NATO. It provided autonomy to Kosovo within the Federal Republic of Yugoslavia. It also affirmed the territorial integrity of Yugolavia. Now the Republic of Serbia has succeeded to Yugoslavia. Declaration of Independence   Kosovo declared its independence from Serbia on February 17 2008 with the backing of the United States. Kosovo’s new Constitution took effect on June16, 2008 nine years almost to the day that the Kosovo war ended with UN resolution 1244. President Bush received President Fatmir Sejdiu and Prime Minister Hashim Thaci of the Republic of Kosovo to the White House on July 21, 2008. Since its declaration of independence many countries have formally recognised Kosovo as a nation. Of the 27 Eropean Union members, only five member states have not recognised it. These countries are Romania, Spain, Greece, Slovakia and Cyprus. 3 Of course, all the countries for or against the declaration have their own interest in their position in international law as regards the declaration. INTERNATIONAL LAW Introduction International Law refers to the set of rules and legislations which govern relations within the states. However, because of the ever changing world, and particularly with internal strife, disputes over ethnicities and humanitarian crises caused by despotic rulers all over the world, more and more focus of international law is now shifting to internal affairs of countries in which intervention is required on humanitarian grounds in order to prevent large scale violence, genocide and other war crimes committed by them. International Law can also be defined as the rules which states observe in their dealings with one another. International Law originated in the antiquity as a necessary tool for achieving smooth relations between traders of two or more states or communities. Advances in means of transportation made travel of men and goods more and more convenient. This allowed traders from different states and even continents to deal in goods of choice for a particular nation or community. Since antiquity, in ancient civilizations there existed a regular code by which wars were declared and fought. Treaties and alliances were negotiated and concluded. Ambassadors were appointed by one state to represent itself in another state. Sources of International Law include (1) Roman Law (2) Works of eminent writers (3) Treaties and alliances (4) Municipal Law (5) Decisions in international cases etc. However, the codification of International law started much prior to this. The Declaration of Paris has a unique place in the history of International Law. It was signed by Britain, France, Austria, Russia, Turkey, Prussia and Sardinia after the Crimean War in 1856. However, the Declaration of Paris was mostly concerned with maritime conduct of nations. Another milestone was the First Hague Conference in 1899. It was convened by Emperor Nicholas II of Russia and resulted in the adoption of two conventions in the form of a Code. They were; the Convention on the Pacific Settlement of Disputes and the Convention on the Laws and Customs of war on land. The Second Hague Conference in 1907 resulted in adoption of 13 Conventions on diverse subjects. It was attended by 44 states. The international law applicable till about the turn of the last century was changed most dramatically after the First World War. The United States of America led the mission of organizing of nations under the aegis of The League of Nations. This later on led to the formation of the United after the tragic Second World War. The Second World War also led to the founding of various treaties aimed at securing peace in the international community. The Hague Codification Conference saw three committees; one each for determination of nationality, territorial waters and responsibility of states for the damage done in their territories to property of person of foreigners. RELEVANT CONCEPTS IN INTERNATIONAL LAW Of States State is meant and understood to be a community defined by common ethnicity or defined boundary. A state must possess the following four elements to be considered a state. They are (1) Population (2) Territory (3) Government and (4) Sovereignty. A state is a result of the need of the human being to stay together with others of his own kind. Population and land are the starting point of any study of man in his organized group. According to this interpretation of the statehood Kosovo has all the attributes of a state. The question is whether the declaration of independence is valid under the International Law, particularly in view of the Montevideo convention and whether the said declaration gives other states or nations the right to recognize Kosovo as an independent state As noted above, Kosovo has a defined boundary. This boundary has been fixed much prior to the declaration, and the Kosovars had even earlier declared themselves to be a republic. Though disbanded, the area then demarcated for Kosovo as an area is still the. There are no secessions from within that area, and hence the first two elements essential for recognition of a Community as State statehood are fulfilled by Kosovo. The third i.e. Government is also fulfilled as the area administered by the U. N. had a government backed by the West, predominantly by the United States of America, the United Kingdom and a majority of European Union members. In all, sixty six member states of the United Nations have formally recognized Kosovo as independent. And though there is active opposition of the two members of the United Nations Security Council having veto powers, unless and until settlement is reached between parties to the dispute, mainly Serbia and Kosovo itself or they agree to be bound by verdict of International Court of Justice, the conflict will go on. It is also to be noted that at the instance of the United Nations the International Court of Justice has been referred the dispute. The United Nations have sought advice from the International Court of Justice whether the declaration of independence by Kosovo is according to International Law. Many countries have put in their say in the matter by representations before the International Court of Justice which is supposed to give its verdict this year. Emergence of New States Since the turn of the last century and particularly after then Second World War, many small states were formed and are being formed because of a variety of factors. Also because of the waning of the colonial system, many countries became independent with violent uprisings and freedom struggles of a peaceful kind. The foremost amongst these nations was India which became independent from the United Kingdom. All these states somewhere adapted the theory of self determination to their present day scenario and declared themselves to be independent. Self determination is the freedom of the people of a given territory or national grouping to determine their own political status and how they will be governed without undue influence from any other country.4 The self determination choice or freedom came to be exercised by groups of a particular ethnicity or other shared attribute who felt disenfranchised by the ruling majority and wanted a fair share of the nation’s wealth for themselves. In this situation self determination can be seen as a reaction to imperialism. Such groups often pursued independence and sovereignty over territory. Reasons cited by Kosovo’s declaration of independence and international community Although EU member states decide individually whether to recognise Kosovo, by consensus the EU has commissioned the European Union Rule of Law Mission in Kosovo (EULEX) to ensure peace and continued external oversight. On November 26, 2008, the UN Security Council authorized the deployment of the EULEX mission in Kosovo. Under the plan, the EU mission is to assume police, justice and customs duties from the UN. while remaining neutral regarding Kosovos status and operating under the 1244 resolution that first placed Kosovo under UN administration in 1999. TERRITORIAL INTEGRITY The most crucial question is whether Kosovo had the right of self determination with respect to the territorial integrity of Serbia. It is also to be considered what the effect of the United Nation’s Security Council’s Resolution No. 1244. Almost at the start of the episode of Kosovo’s striving for independence, United Nations Security Council Resolution 1244 authorized an international civil and military presence in Kosovo, then part of the Federal Republic of Yugoslavia, placing it under interim UN administration. It was adopted on 10 June 1999. Both sides in the conflict subsequently adopted it in the Kumanovo Treaty. One of the main effect was in order to reaffirm the sovereignty and territorial integrity of the Federal Republic of Yugoslavia i.e., Kosovo remains part of the FRY, to which Serbia is now the recognized successor state and the other States of the region, as set out in the Helsinki Final Act and annex 2 of UNSCR 1244. It is this that the declaration breaches, as Kosovo had agreed to the Resolution 1244, ahnd is now bound by it. Kosovo maintains that there is nothing in International law to prevent it from declaring independence. It is also argued by Kosovo that creation of state is a matter of fact and that International Law has nothing to do with it. The Security Council Resolution 1244 is neutral to the final status of Kosovo. On the other hand, it is the contention of Serbia5 that the declaration is invalid for the following two reasons (1) With regard to general international law, the unilateral declaration of independence is illegal as per the principle of territorial integrity of states. It can not be justified on the basis of principle of self determination as Kosovo Albanians are not entitled to external self determination. (2) The resolution 1244 of the United Nations Security Council which established an international regime for the territory including respect for its integrity. It is in view of the above discussion that the declaration of independence by Kosovo is not in accordance with International Law. It has also directly stated that it will go ahead as an independent state even if the International Court of Justice decides that the act of declaration was illegal according to principles of international law. THEORIES OF RECOGNITION The society of sovereign states is based on the principles of co-option. In exercising the right to co-opt a particular state in to the international community, the theory of recognition is used. In exercising the right in favour of a new state, the international community acknowledges that the said state has fulfilled all conditions necessary to constitute a state. Recognition of a state is the prerogative of already existing and recognized states. There are two theories of recognition of state. Declaratory theory of Recognition In this theory, the statehood of a particular government is irrespective of recognition. The statehood is not conferred by act of another entity i. e. no other recognition is needed for a state to exist. According to this theory, recognition is merely a formal acknowledgment through which established facts are accepted. According to this theory, Kosovo is in facxt a state, as it has all the attributes. The only reservation is whether it has acted in violation of the Resolution 1244. Constitutive theory of Recognition According to this theory, recognition gives the state rights and duties under international law. Recognition according to the constitutive theory is a process through which a political community acquires international community by becoming member of the international community. However, most states at least since the last century have adopted the declaratory 6theory in practice. Applying this theory, Kosovo will never become a state as the international community comprising mainly of the United Nations will never acknowledge the statehood in the present scenario, with China and Russia opposing the declaration of independence. De facto Recognition is already given to Kosovo as the International Court of justice has to decide whether the declaration was properly done, not whether Kosovo had a right to do it. De jure recognition, as noted above may not be given to Kosovo as per the present circumstances. Montevideo Convention On December 26, 1933 the Seventh International Conference of American States witnessed the adoption of The Montevideo Convention on the Rights and Duties of States at Montevideo, Uruguay. The Convention codified the declarative theory of statehood. The convention was signed by 19 states. According to this theory, the state as an entity in international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states. The Montevideo Convention has expressly declared that there is no need of recognition by other states for one state to be and act as such. It only prohibits use of military force in order to declare statehood. Hence according to the Montevideo Convention, Kosovo has all the entitlements to be called a state. Bibliography G. Richard Jansen Albanians and Serbs in Kosovo:  An Abbreviated History An Opening for the the Islamic Jihad in Europe http://lamar.colostate.edu/~grjan/kosovohistory.html Kosovo’s Declaration of Independence text http://news.bbc.co.uk/2/hi/europe/7249677.stm Kosovo’s Independence http://www.idsa.in/idsastrategiccomments/KosovosIndependence_NGoswami_140508 Kosovo declares Independence http://www.idsa.in/idsastrategiccomments/KosovoDeclaresIndependenceEastAsiaFeelstheHeat_RNarayanan_040308 The Perils and Repercussions of Kosovo’s Independence http://www.globalresearch.ca/index.php?context=va&aid=17820 Boost to seperatism http://www.sarkaritel.com/news_and_features/infa/march2008/31_kosovo_independence.htm http://desicritics.org/2008/02/17/190954.php Read More