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Kosovo declares independence

The Kosovo parliament declared on 17 February 2008 Kosovo’s independence. This post attempts to dissect Kosovo’s declaration from international law point of view.

United Nations Security Council established the current status of Kosovo on 10 June 1999 and placed it under the temporary administration of the United Nations Mission in Kosovo, under the leadership of a Special Representative of the Secretary General (U.N. Security Council Resolution 1244, 10 June 1999). It also explicitly upheld the existing sovereignty of Serbia over Kosovo, reaffirming the commitment of all Member States to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia and the other States of the region. In this line, Belgrade proposed that Kosovo be highly autonomous and remain a part of Serbia; Belgrade officials have repeatedly said that an imposition of Kosovo’s independence would be a violation of Serbia’s sovereignty and therefore contrary to international law. That said, the 1998-1999 Kosovo conflict left some 10,000 Kosovo Albanians dead and forced about 800,000 to flee their homes. Today, there are about 100,000 ethnic Serbs still living in the province, where the ethnic Albanian majority accounts for 90 per cent of its population of two million. Albanian dominated Kosovo parliament in Priština therefore declared Kosovo’s independence, arguing that the violence of the Miloševic years has made continued union between Kosovo and Serbia not viable.

The Community which claims the right to self-determination has to fulfil certain objective criteria: they have to be perceived by themselves and by the world as the people, the nation; this is fulfilled by the common history, language and culture. They have to live on the particular territory in an organized and united way – presumably being a majority of the inhabitants. They have to exercise control over the territory. If this territory is a part of the larger state structure where the majority in the entire state (as opposed to this particular territory) has for a very long time breached their fundamental rights – just because they are a different ethnic group – then this is another compelling reason towards the fulfilment of conditions of the right to self-determination.

Kosovo Albanians fulfil those conditions: they are of a particular ethnicity, with their own language, culture and history and are perceived as such by themselves as well as by the Serbs and the rest of the world. Also they form a big majority in a clearly defined territory, which is under their de facto control. They exercise local government; they have schools, universities and have had all these for decades now. In fact and a fortiori they were even recognized as an autonomous region within Serbia during former Yugoslavia, which just strengthens their case. This autonomy was abandoned against their will in the time of Milosevic’s totalitarian regime. But this was just an apex of the violations of their fundamental political as well as human rights that have lasted since the mid 1980s.  Having said that, in my normative view based on the coherent analysis of legal and factual practice there is not a single shadow of doubt that Albanians in Kosovo have fulfilled the conditions for the right to self-determination. Serbia can have no say on that, if the right to self-determination is destined to have any sense.

It is submitted that the issues of self-determination and creation of states in international law and international relations have always been much more political than they are legal questions. Some would argue that, the creation of a state is a political act, and legal justifications are usually realizations of what has happened in reality. There was once no state of Slovenia, but now there is, and the law has little to do with it. All in all, it is argued that Kosovo’s parliament, made a right decision in unanimously declaring independence from Serbia, and by doing so established the newest state on the European continent. Now real work for Kosovo state only begins.

One Comment

  1. Soumya Biswal Soumya Biswal 3 January 2010

    There is a difference between Independence and Self-Determination. Self-Determination is a mode of achieving independence. UN General Assembly resolution 1514 has expressly recognized the principle of self-determination but at it same time suggested that the principle of Self-Determination has to be reconciled with the principle of territorial integrity. International Court of Justice in its advisory opinion in the Western Sahara case held the principle of Self-Determination to be customary in nature but in this judgment also ICJ has emphasized on the principle of territorial integrity. The logical outcome is that the though principle of self determination is erga omnes with express recognitions in all major international instruments like United Nations charter, International Covenant on Civil and Political Rights e.t.c but can be used in the framework of existing sovereign state. United Nations General Assembly Resolution no 1541 also lay down methods for the implementation of principle of Self-Determination.
    In Kosovo issues it not actually ccommunity which is claiming the right to self-determination, but it is a unilateral act of declaration of Independence. United Nations also already invoked the advisory jurisdiction of ICJ on this matter on 8th October 2008, the decision expected to arrive this year in 2010. This decision may have serious implications if ICJ recognizes the independence of Kosovo, were sovereignty of Serbia over Kosovo has been recognized, may spark revolutions around the world by minorities groups for independence. The recent Telangana issue in Eastern India where a minority group is calming independence may be justified if Kosovo’s unilateral declaration of independence is lawfull under International law.

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