STATEHOOD, RECOGNITION AND THE UNITED NATIONS SYSTEM: A UNILATERAL DECLARATION OF INDEPENDENCE IN KOSOVO

Abstract

The Unilateral Declaration of Independence (UDI) in Kosovo in February 2008 has raised several fundamental questions of international law in terms of the legal status of secessionist entities, but also of the legality of certain acts and conduct in the context which is being managed by the UN Security Council in the exercise of its Chapter VII powers to maintain and restore the international peace and security.

States that have sponsored and recognised the independence of Kosovo have neither declared that this matter is outside the realm of international law because of its political nature, nor do they have, as will be shown below, developed any consistent explanation of the international legal position that would envisage or tolerate the independent state of Kosovo. The question of whether Kosovo is a state is material for a number of issues arising in international practice, before international and national courts, in terms of the aspects of recognition of the acts and transactions of this entity. These issues will no doubt be raised in due course before courts and beyond, and it may be premature to examine them at this stage.

Instead, the present contribution will cover the basic issues that pervaded the process in which independence was declared in Kosovo and debated in various international fora, and a number of recognitions were granted to this entity. The arguments raised in this process are most material and current for this contribution, as well as determinative of more specific claims and incidences of statehood that may be raised in national and international organs over the coming years. The contribution will also engage with different views regarding the statehood claims and recognition of Kosovo, especially with the argument that the existence of Kosovo is now a fact and part of reality.

In accordance with the above, the following Part II. will examine the facts and history of the Kosovo situation; Part III. will cover then the statehood and secession requirements and their application under international law in the case of Kosovo; Part IV. will examine the argument that the independence of Kosovo is unique and cannot establish any precedent; Part V. shall examine the legality of recognition of the independence of Kosovo; and Part VI. will cover the compatibility of the UDI and the deployment of the EU Mission EULEX in Kosovo with the relevant UN Security Council resolutions; the future prospects of resolving the Kosovo situation will be dealt with in Part VII.; and finally Part VIII. will offer some conclusions, among others on policy issues.