Following Kosovo’s declaration of independence on Sunday, those who refuse to recognise the province’s new status have argued that such a recognition would be a violation of Serbia’s sovereignty. Ilana Bet-El, writing yesterday on the Guardian’s Comment is Free site, endorses this view, arguing that
"while the UN Charter effectively enshrined three rights: of state sovereignty, self determination of a people, and human rights – it has always been the case that state sovereignty has been the abiding principle."
She then goes on to highlight that UN Security Council Resolution 1244, passed after the NATO bombing campaign in 1999, reaffirmed the sovereignty and territorial integrity of the Federal Republic of Yugoslavia (now Serbia). She and others have unfortunately taken an overly simplistic view of international law, myopically focusing on those provisions of the UN Charter which support their case, without recognising that international law is a body of rules much broader than one treaty passed in 1945.
First off, those who reject international law as non-existent, as some in the comments of the article did, are plain wrong. Whilst it is true that there are inadequate enforcement mechanisms for international law (although the International Criminal Court and the greater use of the International Court of Justice in recent years have gone some way to remedying this), it is clear that there are a group of rules which govern and influence the behaviour of States. I concede that these rules are more fluid and less tightly drafted than our own national laws, but that is to be expected when you need the approval of 192 States to achieve universal acceptance.
In the past 50 years, the sanctity of State sovereignty, and the complementary principle of non-intervention, has taken on an almost mythical quality in political and legal discourse, to the exclusion of other principles of international law. The dangers of this narrow approach are clear – despotic regimes from Idi Amin’s Uganda to modern day Sudan have used the principle of sovereignty as a shield to protect themselves against outside scrutiny of and responsibility for actions which are undoubtedly violations of international law. To be clear, the UN Charter does enshrine the rights of state sovereignty and non-interference (Articles 2 (1) and (7) respectively), but it is equally clear that these rights are not absolute. They are subject, for instance, to the prohibition on the use of force except in two explicit circumstances (self-defence and UN-authorised military actions) and universally accepted obligations relating to the protection of human rights.
A further limit on state sovereignty is the state recognition principle, whereby the international community, either unilaterally or through the UN, may recognise an entity as a state with international legal personality. The principles under which such recognition may take place are in dispute, but the general starting point is the Montevideo Convention on the Rights and Duties of State, 1933, Article 1 of which specified that a state should have four elements: a permanent population, a defined territory, a government and the capacity to enter into relations with other states. Kosovo certainly has the first three attributes, and the fourth element is essentially a circular one – a state will have capacity when it is recognised, and it will be recognised when it has capacity – and can be disregarded.
Since the Montevideo Convention, countries have used other tests to determine whether they should recognise a new state: respect for the rule of law and human rights, territorial effectiveness, compliance with international law. Kosovo has more than satisfied all of these tests and, in the absence of admittance to the UN by the General Assembly (the preferred option), it is now up to the international community to make unilateral declarations of whether they are satisfied that Kosovo is a state. For the stability of the Balkans, and to maintain international peace and security, they should do so without haste.
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9 responses so far ↓
1 Manfarang // Feb 21, 2008 at 2:00 am
So,why not recognise Taiwan?
2 Gavin Whenman // Feb 21, 2008 at 10:03 am
Because Taiwan doesn’t recognise itself. It argues that it is China (which is why until the 1970s it held China’s seat in the UN).
3 Kosovo Independence | Shane Greer // Feb 21, 2008 at 12:32 pm
[...] Whenman has a fantastic post looking at the legality of Kosovo’s declaration of independence. I completely agree with Gavin’s legal analysis, although I generally subscribe to the [...]
4 Manfarang // Feb 21, 2008 at 1:58 pm
The ROC recognises that its effective territory has been limited to the large island of Taiwan and a number of smaller islands and that it has become to be universally known as Taiwan.It has long ceased to claim to be all of China.
5 Gavin Whenman // Feb 21, 2008 at 2:08 pm
As far as I’m aware (and based on a brief internet search, as I’m not an expert on Taiwan), there’s been no declaration of independence by the ROC.
6 Manfarang // Feb 22, 2008 at 4:49 am
The ROC was established on 1st January 1912, although it did not include Taiwan at that time.
The Formosan Republic,Taiwan Republic was declared in 1895, prior to the Japanese occupation.
Today there are political and diplomatic restraints to prevent the performing of actions or espousing statements that would unilaterally alter Taiwan’s status.
There were similar restraints concerning Kosovo. Unlike Taiwan, Kosovo is a basket case.
It is hard to see how its Albanian population will respect the human rights of the Serbs, gypsies, and others in its territory.
Some kind of special administrative zone should have been set up. Expect years more of conflict to come.
7 R Guraziu // Apr 20, 2008 at 6:45 pm
Kosova will respect other minorities , however its up to the Serbs whether they want to conform to Kosova constitution or continue being used/abused as a political Pawn from Belgrade and Moscow . The Ahtisaari plan guaranties Serbs more rights than any other minority in the EU currently enjoys.
8 Miroslav Papich // Dec 31, 2008 at 12:09 am
If I understand Gavin’s (il) logic, than there is no validity to any pact or treaty signed by the West, or for that matter, the existence of the UN. Fine. Then, according to this rationale, any group of nations could have, or might decide in the future that the historical treatment meted out to African Americans or Native Americans, (or even gays,) within our borders was/is justification to dissolve certain American states and divide them amongst these minorities, where they may be in the majority in smaller locals.
This entire discussion is absurd and lacking in legal merit. I know of few renowned US jurist centers that have not declared the US backed NATO incursion into the ex-Yugoslavia as illegal. There judgments also correspond to that sentiment in regards to Kosovo’s self-declared statehood, where both sides lost some four thousand-plus lives. I will concede that while most agree this action is absurdly illegal, they cannot come up with a better solution. Well, that isn’t and shouldn’t be Serbia’s problem.
The former US Ambassador to Yugoslavia, Lawrence Eagleburger, former US Ambassador to the UN John Bolton, and former Assistant Secretary of Defense John Rodman attacked the illegality of the US dismemberment of Serbia. They also agreed, as have most political analysts that that a terrorist KLA organization fermented conflict and not the Serbs.
Finally, Kosovo is not in compliance with a single “test” in regards to sovereignty, as Gavin would expect anyone over the age of ten to believe; it’s quite the opposite. It is awash in bloody violence and more often then not is referred to as a narco-nazi entity. It is the single most glaring blip on Interpol’s European radar. Territorial integrity is non-existent, as any number of fellow states would and could crush them within a week for any number of reasons, including, but not limited to their Mafioso, Somali pirate-like culture. And, the international community does not recognize them in either numbers or sentiment. The world’s populace does not support their unilaterally declared independence in any sense. This situation is as sickly ludicrous as that of Roosevelt’s1903 give-away in Columbia/Panama. It is/was a grave mistake, a great injustice and a legal travesty.
Gavin has made more points for Serbia and the vast majority of nations refusing to recognize a terrorist state than he has for Kosovo; which has always been Serbian and shall always remain Serbian.
Instead of setting a dangerous president of illegally and violently carving chunks from a sovereign nation in order to satisfy the “whim of another territory,” one need only look on to recognize that Kosovo, as most EU members fear, is already doomed to become a failed state, even before its recognition; should that day ever arrive. At present, it is best described as “Europe’s black hole.”
9 Prof. Dr. Eblaite Frockelberg // Mar 13, 2009 at 2:00 pm
What about Quebec, Pais Basquo, Abchazia…
Following the definition suggested, we might find endless examples… But to make you understand Kosovo, i will use a different example from these you always come across in the media
Did you know that before the Second World War, or even before 1990, there were One Million ethnic Albanians living in Kosovo together with over 500.000 Serbs, not to mention the minorities, such as Gyspies, Gorani, Turks etc.
Today there are almost 2 million Albanians in Kosovo and some 70 thousand others (including Serbs)
Lets draw a parallel to the US state of Calfornia, Colorado, New Mexico or Texas…
Massive flows of immigrants from Mexico, ethnic Mexicans, settling in these states. More and more come, used to live in somewhat humble ways, making most of other American citizens in those states move out for various reasons…
A substantial majority developes and decides to simply declare independence.. According to your argument, this would be perfectly legitimate, for a territory, a permanent population (these people would not want to move), a government and the ability to interact with other states would be present..
How would an American feel about that?
How would the USA react (with CIA or granting the independence) ?
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