T i l b u r g U n i v e r s i t y – T i l b u r g L a w S c h o o l LL.M. in International and European Public Law

Recognizing Kosovo: Theoretical and Practical Implications for Recognition Theory and the International Community

Master’s Thesis

Robin Taillefer Supervisor: S.F. van den Driest LLM MPhil

Tilburg 2011

“…there is probably no other subject in the field of international relations in which law and politics appear to be more closely interwoven.”1

______

1 Hersch Lauterpacht on the recognition of states, cited in Christian Hillgruber, “The Admission of New States to the International Community” (1998) 9 E.J.I.L. 491 at 491.

1 Table of Contents

Introduction...... 3 1 Statehood...... 7 1.1 Introduction ...... 7 1.2 Criteria for Statehood...... 7 1.3 Criticisms...... 11 1.3.1 The Montevideo Criteria...... 11 1.3.2 Alternative Criteria...... 14 1.4 Conclusion ...... 16 2 Recognition Theory ...... 17 2.1 Introduction ...... 17 2.2 Constitutive Theory and its Criticisms...... 18 2.3 Declaratory Theory and its Criticisms ...... 21 2.4 Reconciling the two: an intermediary theory?...... 25 2.5 Collective recognition and collective non-recognition...... 27 2.6 Conclusion ...... 32 3 Secession as a Means of External Self-Determination...... 33 3.1 Introduction ...... 33 3.2 Self-Determination and Secession Outside the Colonial Context...... 33 3.3 A ‘Remedial’ Right to Secession ...... 36 3.4 Conclusion ...... 38 4 Recognizing Secession in Practice – The Example of Kosovo ...... 40 4.1 Introduction ...... 40 4.2 Kosovo and Serbia: A Brief History...... 40 4.3 Kosovo after Milosevic: Straight Path to Independence?...... 41 4.4 A Case of ‘Remedial’ Secession?...... 42 4.5 Kosovo and Statehood ...... 45 4.5.1 Kosovo and the Montevideo Criteria...... 45 4.5.2 Kosovo and Additional Criteria ...... 47 4.5.3 Consequences for Statehood and Recognition...... 52 4.6 Kosovo and Recognition ...... 53 4.6.1 Declaratory or Constitutive?...... 54 4.6.2 A Mixing of Theories?...... 58 Conclusions: The Victory of Politics?...... 64 Bibliography ...... 67

2 Introduction In the law and practice of state secession the role of recognition has long been central. Closely intertwined with the requirements of statehood, recognition has been the international community’s primary mechanism for validating and conferring legitimacy on new claims to statehood. While historically states were rarely concerned with how a claim to statehood arose, since the end of the decolonization period the ongoing uncertainty regarding the status of a right to secession in international law has served to significantly alter the way states have exercised their discretion in recognizing ‘new’ entities.2 Specifically, the tension between the principles of self-determination and territorial integrity, which acts of secession inherently bring to the forefront, has been determinative in influencing the role recognition plays with respect to nascent states. Through an examination of Kosovo’s unilateral secession, it is clear that the principle of recognition in international law constitutes a contested space between law and politics. While in theory the principle of recognition provides for a strict division between a legal, constitutive framework, and a political, declaratory framework, in practice this can be quite illusory. Instead, the act of recognition has arguably become a mechanism by which states can control and produce desired outcomes.3 Consequentially, the legitimacy of secessionist claims can remain shrouded in controversy because the very act of recognition “while resulting in legal consequences, is primarily based on political or other non-legal considerations.”4 From the perspective of a seceding state this is problematic. Since international law neither explicitly acknowledges nor prohibits acts of secession, the success of a struggle for external self- determination is highly dependent on the garnering of recognition from the international community. However, if the very act of recognition itself is increasingly viewed as merely a tool in the hands of the governments to accomplish certain geo-political goals, then any legal legitimacy such an act of recognition may normally confer on a nascent state may be

2 James Crawford, The Creation of States in International Law, 2d ed. (Oxford: Clarendon Press, 2006) at 27 [Crawford, “Creation of States”]. 3 Jure Vidmar, “International Legal Responses to Kosovo’s Declaration of Independence” (2009) 42 Vand. J. Transnat’l L. 779 at 844-845. 4 Ibid. at 827.

3 undermined.5 The current uncertain status of Kosovo appears to be a clear example of this dilemma. Regardless of whether Kosovo can be considered a legal expression of external, or remedial, self- determination, the aim of this paper is to examine the manner in which the international community has chosen to exercise its discretion in recognizing Kosovo as a new state in order to determine if the principle of recognition itself has been manipulated and, ultimately, detached from its normative moorings. Specifically, this paper will attempt to provide an answer to the following question: In light of the ongoing debate surrounding the current legal status of Kosovo following its unilateral secession, what are the legal and practical implications of the international community’s response to this situation on the concept of recognition and its role as the primary legal instrument for validating new claims to statehood? As the question itself suggests, its elucidation is not only relevant for future secessionist states, but for the international community as a whole. While other papers have attempted to address the many legal and practical effects stemming from Kosovo’s unilateral act, few have focused specifically on the issue of recognition and how it has been impacted by this ongoing situation. In order to properly assess this query, the first phase of the research shall predominately involve a comprehensive literature study in order to identify, define, and describe the relevant legal concepts, principles, and theories considered central to this question. In order to accomplish these goals, several types of literature will be canvassed including both primary and secondary sources. Specifically, a thorough analysis of different secondary source materials will be undertaken including scholarly texts, journal articles, as well as other print and online media. Particular attention will be paid to the works of leading academics in the field such as, James Crawford, Thomas D. Grant, and Jure Vidmar, while the writings of Hersch Lauterpacht, Antonio Cassese and others will also be referenced. In regards to primary sources, an examination of relevant international and national instruments, including major treaties in the field of Human Rights, as well as important legal acts of the European Community and European Union will be conducted. The jurisprudence of various international and national courts, as well as regional organizations, will also be referenced, particularly the Canadian Supreme Court’s remarks in the Quebec Secession Reference.

5 William Thomas Worster, “Law, Politics, and the Conception of the State in State Recognition Theory” (2009) 27 B.U. Int’l L.J. 115 at 158.

4 The second phase of the research will apply the analytical framework established in this first research phase to the case of Kosovo in order to demonstrate how the relevant principles and theories have been actually applied in practice. In so doing, additional primary sources will be consulted, especially the relevant declarations or statements in which individual states responded to Kosovo’s unilateral act. In particular, this paper will scrutinize the recognition and non- recognition texts of the majority of the current EU Member States, other European players, such as Switzerland and Serbia, and those of other international states such as the United States, Canada, Australia, Japan, and Russia. While the majority of these texts are available in some form, this paper limited its focus to those that were published in English, and to those that the author was able to readily translate. Moreover, particular attention was paid to the texts of the major international powers, such as the permanent members of the United Nations Security Council, and to those states that have their own secessionist concerns, such as Canada and Switzerland. Finally, several other official declarations will be analyzed, including those made by state representatives before the United Nations Security Council. In so doing, the central query of this thesis will be comprehensively addressed. The structure of this paper mirrors the logic of the research just outlined. Specifically, the first chapter will introduce and examine the concept of statehood in order to establish its legal relationship with the notion of recognition. The traditional indicia of statehood will be canvassed and the discourse surrounding the inclusion of alternative criteria will be introduced. The second chapter will be devoted to the discussion of the two classic competing theories and basic legal principles underlying the mechanism of recognition. Criticisms will be highlighted and the idea of whether an intermediary theory can reconcile the competing schools of thought will be addressed. Finally, the corollaries of collective recognition and collective non-recognition will also be outlined in order to construct a suitably broad analytical framework from which to consider the case of Kosovo. The third chapter will address whether there exists a ‘remedial’ right to secession in international law, and under what condition(s) it can be exercised, if at all. While the breadth of this discussion will be limited due to the scope of this paper, the possible existence of such a right is crucial to the discussion of recognition. The fourth, and final, chapter will apply the framework synthesized in the preceding chapters to the ongoing debate surrounding Kosovo’s status. The nexus between statehood and recognition will be analyzed and assessed in order to determine whether the disparate international response to Kosovo’s

5 unilateral declaration of independence has influenced the legal and political understanding of recognition theory.

6 1 Statehood 1.1 Introduction To suggest that there exists a close connection between the indicia of statehood and the recognition of new states is perhaps self-evident. Regardless of the theoretical viewpoint assumed, these two concepts tend to go hand-in-hand. Stated rather simply, statehood, under traditional international legal theory, requires that an entity wishing to be recognized by the international community as a state has to first meet certain factual criteria, or indicia of statehood. Recognition, on the other hand, can be thought of as an assessment of whether the entity effectively fulfilled these factual criteria.6 Thus, while it has been common international practice “to place the emphasis in matters of statehood on the question of recognition” it should not be forgotten that attention to the indicia of statehood independent of recognition is also required.7 Yet, as will become evident below, the concept of statehood itself suffers from a lack of clarity and precision, leading many academics, such as William Worster, to comment, “...the definition of a state alone is an almost impossible task.”8 With the above in mind, this chapter will first outline the nature of statehood within the current framework of international law, theory, and practice prior to taking up the issue of recognition.

1.2 Criteria for Statehood Despite the volumes of academic literature on the subject, there are actually very few authoritative sources that provide a workable, legal definition of statehood.9 Considering that from the outset, the modern nation-state has been “the very raison d’etre” of the international legal framework, one might wonder how the essence of the system’s primary subject could still be lacking a definitive definition.10 Nevertheless, commentators have identified several general legal characteristics, or traits, which can be attributed to statehood. First, as the principle subjects of international law, states possess “plenary competence” to act at the transnational level. In

6 John Dugard & David Raic, “The Role of Recognition in the Law and Practice of Secession” in Marcelo Kohen, ed., Secession: International Law Perspectives (New York: Cambridge University Press, 2006) at 96-97. 7 Crawford, “Creation of States”, supra note 2 at 37. 8 Worster, supra note 5 at 143. 9 Thomas D. Grant, “Defining Statehood: The Montevideo Convention and its Discontents” (1998-1999) at 413 [Grant, “Defining Statehood”]. 10 John H. Currie, Public International Law, 2d ed. (Toronto: Irwin Law, 2008) at 23. James Crawford argues that this may be due to the fact that the question regarding ‘what is statehood’, usually only arises in borderline cases, where a nascent entity has emerged “bearing some but not all characteristics of statehood.” Crawford, “Creation of States”, supra note 2 at 40.

7 other words, they possess international legal personality, which entitles them to, amongst other things, enter into international legal relations (conclude treaties), bring claims (before international tribunals), and possess certain exclusive rights (and obligations).11 Second, states are recognized as being “exclusively competent” in regards to their own internal affairs.12 Third, states are not subject to “international process, jurisdiction, or settlement” without their consent. Finally, all states are to be regarded as ‘equal’ under international law in both status and standing.13 These principles can also be re-phrased and expressed as certain core rights and duties, which are vested in states simply as a consequence of being states. The International Law Commission (ILC) in its “Draft Declaration on Rights and Duties of States” has specifically enumerated these key rights and duties.14 The most important right set out by the ILC is undoubtedly sovereignty. This imbues states with exclusive jurisdiction over its territory and population. In other words, every state has the right to independence and to assert control over its own domestic affairs.15 Closely linked with this concept is the right of states to be viewed as equals under international law. This concept of sovereign equality ensures that all states are formally entitled to the same basic legal rights and duties.16 Conversely, statehood also results in the imposition of certain duties as well. For instance, one of the first duties referred to by the ILC is the flip side of the right to independence: non-interference in the internal affairs of other states by force or other means.17 A further duty placed upon states is the responsibility to respect international law and to fulfill, or to carry out its international obligations in good faith. This, amongst other things, includes the obligation to respect and protect international human rights.18 Taken together, these legal principles, or rights and duties, represent the core of the concept of statehood. While the foregoing may not provide a particularly definite or concise definition of

11 Currie, supra note 10 at 38-40. 12 Crawford, “Creation of States”, supra note 2 at 41. This is not be interpreted in manner that suggests states are not subject to international legal constraints. 13 Ibid. Specifically, this refers to formal equality and not necessarily equality in practice. 14 International Law Commission, “Draft Declaration on Rights and Duties of States,” Articles 1-2, in Report of the International Law Commission on the Work of its First Session, [1949] II Yearbook of the International Law Commission 277 at 287 [ICL Draft Declaration]. Although never formally adopted, it nevertheless does reflect the core precepts of international law. 15 Currie, supra note 10 at 39. 16 Ibid. 17 ILC Draft Declaration, supra note 14. This duty is also reflected in the Friendly Relations & Cooperation Declaration (1970). See infra note 143. 18 Currie, supra note 10 at 40.

8 statehood, it is nevertheless clear that the conferral of such a designation carries with it a privileged position under international law. In order to determine which entities meet the legal conception of statehood outlined above, specific indicia have been developed and advanced. The source most widely cited as providing the basic criteria for statehood, and the standard most commonly referenced in state practice, is Article 1 of the Montevideo Convention on the Rights and Duties of States, 1933.19 Specifically, the Montevideo Convention enumerates four criteria the aspiring entity should possess: a permanent population, a defined territory, an effective government, and the capacity to enter into relations with other states.20 These criteria will serve as this paper’s working definition of statehood. While an in depth discussion of these criteria are beyond the scope of this paper, a brief examination is relevant here. First, the requirement of a permanent population speaks to the notion that states, at the very least, are regarded as “aggregates of individuals.”21 This aggregate is needed to provide support and stability to the overarching structure of the state. While this criterion suggests the need for evidence of a viable community that has sufficiently withstood the rigors of time, in practice most commentators argue that this requirement amounts to very little.22 For example, international law does not prescribe a minimum population threshold thus there exists several states with very small populations.23 Second, states should be in possession of a defined territory. Specifically, in order to be a candidate for statehood international law requires that an entity be able to exhibit actual and effective possession or control over a defined piece of territory.24 Similar to the population criterion, international law does not require a particular minimum area or a certain type of terrain.25 The third requirement is an effective government. According to Crawford, it is arguably the most important criterion of statehood, since all the others are

19 Convention on the Rights and Duties of States, 26 December 1933, 49 Stat. 3097, 165 L.N.T.S. 19 at Article 1 [Montevideo Convention]. 20 Ibid. 21 Crawford, “Creation of States”, supra note 2 at 52. 22 Alexander H. Berlin, “Recognition as Sanction: Using International Recognition of New States to Deter, Punish, and Contain Bad Actors”, (2009) 31 U. Pa. J. Int’l L. 531 at 549; Currie, supra note 10 at 24. 23 The smallest state is Vatican City with fewer than 1000 permanent residents. Tuvalu, an island nation in the South Pacific, has fewer than 11,000. 24 Currie, supra note 10 at 25. 25 For example, Vatican City covers less than one square kilometer, and Monaco covers less than two.

9 dependent upon it.26 As with the other criteria, the content of this requirement is quite scant. Rather than requiring a certain type of government, such as a democracy or dictatorship for example, the focus has been on the idea of ‘effectiveness.’ In short, as long as a government is able to exercise effective control over its territory, including the maintenance of law and order and the like, to the exclusion of all others, then this requirement will largely be viewed as satisfied.27 The fourth, and final, criterion is the capacity to enter into relations with other states. In order to achieve statehood it is essential that the entity be able to fully engage with other actors as an equal at the international level. Thus, the emphasis here is on ‘capacity.’ The entity desiring to become a state must demonstrate that it possesses all the attributes associated with sovereignty, and the “institutional capacity” to stand or exist on its own.28 Taken together, the above criteria suggest that the legal standard facing would-be states is, in the words of Thomas D. Grant, predominately contingent upon the “concepts of effectiveness and territoriality: the entity must have a government that effectively controls an actual territory.”29 The definition outlined in the Montevideo Convention is echoed in the comments of many governments, including the United States, which outlines its criteria for statehood in nearly identical terms noting that these requirements are drawn from the Convention and are “generally accepted in international law.”30 Notwithstanding the fact that the Montevideo Convention has acquired the status of customary international law, many question whether these criteria provide a sufficiently satisfactory definition of statehood.31 Criticisms range from concerns regarding the completeness of the definition, to whether the criteria are over-inclusive by enumerating elements not strictly essential to statehood.32 This paper will now turn its attention to a brief examination of some of these criticisms.

26 Crawford, “Creation of States”, supra note 2 at 56. Crawford argues that a state can only have a permanent population, be in possession of a defined territory, or carry on the state’s international relations if a government is effective enough to be able to exercise control over these matters. 27 Ibid. at 59; Currie, supra note 10 at 28. 28 Currie, supra note 10 at 29; Berlin, supra note 22 at 552. 29 Thomas D. Grant, The Recognition of States: Law and Practice in Debate and Evolution (Westport: Praeger Publishing, 1999) at 27 [Grant, “Recognition of States”]. 30 Restatement (Third) of Foreign Relations Law of the United States 201 (1987). 31 Vidmar, supra note 3 at 819. 32 Grant, “Defining Statehood”, supra note 9 at 434; Vidmar, supra note 3 at 819.

10 1.3 Criticisms In spite of the numerous references made to it, the Montevideo criteria must be treated with caution. This is because many scholars have not only called into question whether these criteria are sufficiently detailed, or if they are altogether necessary indicia of statehood, but they have also cast doubt on its authoritative importance.33 The crux of this uncertainty, as elucidated by John Currie, is that despite the objective nature of the Montevideo criteria there exists no centralized authority that can interpret and apply these criteria in practice.34 While this is a common problem with international law generally, the result here is that there have been numerous situations where entities have been regarded as states by members of the international community without meeting these requirements, or conversely have been denied statehood status despite meeting all of them.35 For example, in the first instance one can consider the acknowledgement of the Democratic Republic of Congo as a state in 1960 even though this status was conferred at a time when a significant part of Katanga was trying to secede. Similarly, the recognition of Bosnia-Herzegovina as a state occurred at a time when its very existence was very much reliant on the physical presence of the UN and NATO. In the second instance, one can look at the Turkish Republic of Northern Cyprus, which appears to fulfill all the Montevideo criteria and yet remains largely unacknowledged as a state.

1.3.1 The Montevideo Criteria Beginning with the existing criteria, many commentators have indicated that their application in practice has been problematic. As mentioned previously, the unrestrictive nature of both the permanent population and defined territory criteria mean that in reality they are often given very little consideration or are simply overlooked. For instance, the criterion of a “defined” territory does not require that the borders of a state be clearly demarcated, nor does it require the absence of disputes in regards to the precise extent of the territory under the state’s control.36 In other words, the mere existence of ambiguity regarding the territorial expanse of a supposed state does not necessarily defeat its claim to statehood. As concisely stated by Currie, the only essential condition is that “some territory be unquestionably under the control of the putative state, even if

33 Grant, “Defining Statehood”, supra note 9 at 434; Vidmar, supra note 3 at 819. 34 Currie, supra note 10 at 24. 35 Ibid.; Berlin, supra note 22 at 549-550; Crawford, “Creation of States”, supra note 2 at 56-57. 36 Deutsche Continental Gas-Gesellshaft v. Polish State (1929), 5 I.L.R. 11 at 14-15 (German-Polish Mixed Arb. Trib.) [Deutsche Continental Gas Case]; confirmed in North Sea Continental Shelf Cases, [1969] I.C.J. Rep 3 at 32.

11 its precise extent is uncertain or varies over time.”37 Thus, in practice it would be a rare situation where this requirement alone would serve as a basis to exclude a supposed state from attaining the mantle of statehood. For Crawford, this matter of ‘control’ over ‘some territory’ speaks to the fact that the requirement of territory is merely a component of the effective government criterion rather than a “distinct criterion of its own.”38 In regards to the requirement of an effective government, it is not surprising that Crawford regards it as a key criterion. However, the difficulty with this criterion, as Crawford rightly points out, is whether it can be objectively applied in borderline cases. For example, many entities have been recognized as states prior to the establishment of effective central governments. This was the case with the emergence of the Republic of the Congo in 1960. Despite the existence of various factions claiming to be the lawful government, the ongoing presence of UN forces, and the bankruptcy of the authorities, it was promptly and widely recognized as a state.39 For Crawford, this suggests the possibility that the requirement of an effective government is less stringent in practice than on paper.40 Similarly, the criterion is also flexibly applied to situations in which a state suffers a temporary breakdown in domestic governmental control. For instance, the disintegration of the central government in Somalia in the early 1990s did not extinguish its status as a state.41 However, when a claim for statehood springs from an entity attempting to secede from an existing state the criterion of an effective government has traditionally been applied much more strictly. For example, the secessionist province of Katanga was not acknowledged as a state during the crisis surrounding the emergence of the Republic of the Congo, despite the fact that the Katangan so-called ‘Government’ was much more stable than its counterpart in Kinshasa.42 Thus, as the preceding

37 Currie, supra note 10 at 25. 38 Crawford, “Creation of States”, supra note 2 at 52. 39 Ibid. at 56-57. 40 Ibid. at 57. 41 Berlin, supra note 22 at 550. 42 Crawford, “Creation of States”, supra note 2 at 404 and 58-59. Other examples of attempted unilateral secession by groups within independent states include Biafra and the position of Finland vis-à-vis Russia in 1917-1918 (Aaland Islands Case). The former was similar to the Katangan example, while the Commission of Jurists in the latter also reflected on the importance of the requirement of an effective government in “secessionary” situations.

12 clearly suggests, whether a putative state actually has an effectively functioning government can be difficult to objectively assess in practice.43 However, arguably the criterion that has come under the most scrutiny has been the capacity to enter into relations with other states. Although the notion of capacity is potentially useful, since it is an indicator of ability or competence, many academics argue that taken as a whole this criterion is not a necessary prerequisite for statehood.44 Crawford argues representatively that capacity is not a condition for statehood, but instead a consequence of statehood, “and one which is not constant but depends on the status and situation of particular states.”45 Instead, he asserts that capacity is the result of the conflation of two other important criteria, namely effective government and independence. Although the latter is not specifically mentioned by name in the Montevideo definition, Crawford argues that independence, both formal and actual, is a generally accepted criterion for statehood.46

According to Crawford, the classic statement regarding ‘independence’ was articulated in the Austro-German Customs Union Case.47 In its decision, the Court outlined the two main elements of independence: the separate, sovereign existence of a state; and its not being subject to the authority of any other state or states.48 Where as the first element is largely dependent on the ability of a supposed state to meet the other Montevideo criteria discussed above, Crawford argues that the second element suggests that something more is required – the absence of foreign control.49 In short, even if the other Montevideo criteria are met, this will mean little if the state is not free from undue foreign influence. In applying this criterion, one would have to distinguish between formal and actual independence. In other words, if independence is to be evaluated on a substantive basis rather than on outward appearances one needs to be able to differentiate

43 Ibid. at 56-59. While statehood is not simply a factual situation, the application of these criteria is often dependent on taking into account the political reality on the ground. The result is that this supposedly objective criterion, ends up being applied on a case-by-case basis. 44 Not all are in agreement however. Christian Hillgruber argues that, “the reliability of the new entity as a partner [i.e. read ‘capacity] in international relations is the decisive criterion of statehood. Hillgruber, supra note 1 at 499. 45 Crawford, “Creation of States”, supra note 2 at 61. 46 Deon Geldenhuys, Contested States in World Politics (UK: Palgrave Macmillan, 2009) at 13. 47 In this case the Court was asked to advise on whether the proposed customs union between Germany and Austria was consistent with the latter’s obligations under various other international treaties. Specifically, the Court discussed the meaning of the term ‘independence’ in the proposed customs union treaty and whether it guaranteed the continued and separate existence of Austria from Germany. 48 Customs Regime Between Germany and Austria, Advisory Opinion (1931), P.C.I.J. (Ser. A/B) No.41 [Austro- German Customs Case] at 45. 49 Crawford, “Creation of States”, supra note 2 at 66.

13 between situations of “true foreign control” versus “mere international pressure”, and to detect the difference between “situations of subordination or dependence” from “consensual agreements” where one state has agreed to place limits on its own freedom of action or has agreed to let another state exercise some of its functions on its behalf.50 However, given the potential difficulty in making some of these evaluations in practice, it is not surprising that this criterion has engendered some division amongst scholars. In particular, those who argue against independence as an additional criterion do so because they believe that the difficulties associated with its application has lead to the reliance on hard to substantiate inferences as to the true status of a specific entity.51

This debate surrounding independence aside, it has been asserted that as a criterion, or as a consequence, of statehood capacity it not very useful because it does not help to distinguish state actors from other international actors.52 In essence, the capacity to enter into relations with other states at the international level “is no longer, if it ever was, an exclusive state prerogative.”53 Although it remains true that states remain the predominant legal subjects in international law, the proliferation of capacity in other non-state actors, such as international organizations, non-governmental organizations or even peoples seeking self-determination, casts doubt on the ability of capacity to be viewed as a decisive criterion of statehood.

1.3.2 Alternative Criteria Stepping outside the Convention, there has been much debate concerning whether the Montevideo definition is missing elements essential to statehood. Much of the existing criticism stems from the fact that the traditional criteria for statehood are “essentially based on the principle of effectiveness.”54 This line of criticism argues that in contemporary international law effectiveness is no longer the only principle regulating statehood. Instead it points to the increasing relevance of ‘additional’ criteria, originally developed in other fields of international

50 Currie, supra note 10 at 30-31. See Crawford, “Creation of States”, supra note 2 at 67-88 for a detailed analysis of the distinction between formal and actual independence. 51 Stefan Talmon, “The Constitutive Versus the Declaratory Theory of Recognition: Tertium Non Datur?” (2005) 75 Brit. Y.B. Intl L. 101 at 112. This is largely a reflection of the fact that claims surrounding the issue of independence are highly contextual, meaning that different legal consequences may be attached to any given determination depending on the facts of the situation. 52 Grant, “Defining Statehood”, supra note 9 at 433. 53 Crawford, “Creation of States”, supra note 2 at 61. 54 Vidmar, supra note 3 at 821.

14 law, which go beyond the principle of effectiveness in determining statehood.55 Of the many suggestions for additional criteria put forward a few of those most commonly reflected in scholarly debates and/or in state practice include: respect for the right to self-determination, the existence of a claim to statehood, respect for fundamental human rights, prohibition of the unlawful use of force, recognition, and democratic institutions.56 With respect to self- determination there exists state practice to suggest that an effective entity cannot become a state if its creation was in violation of the right of self-determination. Thus statehood can be denied to an otherwise effective entity if its creation was in violation of this right.57 For an example of some of these criteria in practice, one need not look further than the European Community’s “Declaration on the ‘Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union’.”58 Developed in response to the disintegration of the USSR and the dissolution of the former Yugoslavia, the EC Guidelines, while duly noting the “normal standards of international practice”, established additional criteria that had to be met by entities that were wishing to “become states.” These criteria included a demonstrated “regard for the rule of law, democracy, and human rights” as well as respect for the principle of self-determination and the protection of minority rights.59 However, many scholars argue that these additional criteria, as set out in the EC Guidelines and elsewhere, are not so much requirements of statehood but instead are relevant to the process of recognition.60 As will be discussed in subsequent chapters when the theories of recognition are introduced and specifically when their application to the case of Kosovo is considered, viewing these ‘new’ criteria as conditions for recognition or as additional criteria for statehood is influenced by whether one sees recognition itself as constitutive (recognition as a requirement of statehood), or as declaratory (recognitions as the acknowledgment of a pre-existing state of affairs). In essence, the problem with these ‘new’ criteria is that they tend to confuse largely political considerations with legal requirements.

55 Ibid. at 822. 56 Ibid.; Grant, “Defining Statehood”, supra note 9 at 439-444; Sean D. Murphy, “Democratic Legitimacy and the Recognition of States and Governments” (1999) 48 I.C.L.Q. 545 at 565. Those who argue it has a constitutive effect have frequently proposed recognition as a criterion for statehood. This will be discussed in much greater detail in Chapter 2 infra. 57 For more on this issue, see Crawford, “Creation of States”, supra note 2 at 181; or Vidmar, supra note 3 at 823- 825. 58 Declaration on the ‘Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union’, 16 December 1991, BYIL 62 (1991) 559, reprinted in (1992) 31 I.L.M 1486-1487 [EC Guidelines]. 59 Ibid. at 3. 60 Talmon, supra note 51 at 126; Murphy, supra note 56 at 558; Roland Rich, “Recognition of States: The Collapse of Yugoslavia and the Soviet Union” (1993) 4 E.J.I.L. 36 at 42.

15 1.4 Conclusion In light of the above two things are clear. First, the traditional criteria of statehood as stated in the Montevideo Convention are no longer held as sacrosanct. Rather, the influence of developments in other areas of international law has changed the way statehood is regarded in contemporary state practice. Second, the increasing application of these additional criteria has arguably further blurred the distinction between what is required to become a state, and what is required to convince other states to recognize an entity as such. Therefore, it is to the issue of recognition that this paper now turns.

16 2 Recognition Theory 2.1 Introduction Without question recognition is a vitally important step in the process of achieving full statehood within the international community. In fact, even if an entity is able to satisfy all the relevant criteria necessary for statehood, as discussed above, its status may still be in doubt if the international community is unwilling to recognize its existence as a state. Historically, recognition did not attract much attention due to the fact that sovereignty was predominately seen as something that emanated from within a state and therefore did not require the acknowledgment of other states.61 However, by the end of the nineteenth century this situation was largely reversed, as positivist thought served to establish a close bond between the act of recognition and statehood that has persisted up to the present.62 In the words of Grant, recognition has become, generally speaking, “a procedure whereby the governments of existing states respond to certain changes in the world community…[or] seek to effect changes in that community.” Specifically, states, “signal their willingness…to treat with a new state…or to accept that consequences, either factual or legal, flow from a new situation.”63 In so signaling, the recognizing state accepts that the putative state is indeed a state and extends to it the benefits and entitlements that stem from being treated as such by the international community. As is apparent, the role of the international community is key. In the absence of any central international authority charged with a general duty to “pronounce upon the status of candidates for statehood”, this crucial act of granting or withholding recognition has remained within the sovereign discretion of each and every individual state.64 In other words, the process of recognition is essentially a bilateral process with individual state actors determining for themselves whether or not they recognize another entity as an ‘equal’ on the international legal plane. Needless to say, the practical implications of this process for a putative state are potentially considerable, especially for a secessionist one.65

61 Crawford, “Creation of States”, supra note 2 at 12. 62 Ibid. at 17. 63 Grant, “Recognition of States”, supra note 29 at xix. 64 Currie, supra note 10 at 34. 65 Crawford, “Creation of States”, supra note 2 at 376. Crawford writes that, “historically, international recognition of statehood has been the major foreign policy goal of any secessionist movement.” The concern for a secessionist state is the possibility that even if it satisfies all the criteria of statehood discussed above the international community may remain unwilling to enter into relations with it. This could be detrimental, if not fatal, to its claim to statehood.

17 However, the crucial question that remains is whether the act of recognition itself results in any normative consequences. In other words, does the act of recognition itself have any legal significance or is it merely a political exercise solely having implications for an entity’s “de facto ability to be treated as a state, as distinct from its de jure existence as one.”66 Two well known competing schools of thought have dominated the debate on this matter, namely the constitutive theory and the declaratory theory. While traditionally commentators have expressed their preference for one theory over the other, the following will endeavor to show that both theories are prone to criticism and hence potentially problematic in practice.

2.2 Constitutive Theory and its Criticisms According to the constitutive theory, recognition by other states is an essential prerequisite of statehood.67 Only recognition makes a state a state: “ a state is, and becomes, an International Person through recognition only and exclusively.”68 From this standpoint, recognition is viewed as an additional requirement of statehood implying that the entity in question is not a state, at least in a legal sense, until others recognize it as such. In short, the act of recognition creates or ‘constitutes’ the state.69 Consequently, this theory presumes that the entity seeking recognition possesses neither the rights nor duties pertaining to statehood, regardless of whether they satisfy the criteria of statehood outlined above, until the international community recognizes its existence.70 In the opinion of William Worster, the constitutive theory reflects a particular conception of statehood, namely that a state is a “bundle of rights” at the international level, “and nothing more.”71 From this perspective, a state’s existence is contingent upon the acquisition of those rights. Rights, in other words, are determinative of status. Since proponents of the constitutive theory hold that a supposed state’s enjoyment of rights and privileges at the international level is dependent on their ‘conferral’ by existing states, the act of recognition becomes key. In light of the fact that putative states acquire rights only as a result of the ‘consent’ of existing states, the constitutive theory also reflects a particular conception of the role that state discretion plays in

66 Currie, supra note 10 at 34. 67 Worster, supra note 5 at 118. 68 Lassa Oppenheim, cited in Talmon, supra note 51 at 102. 69 Dugard & Raic, supra note 6 at 97. 70 Currie, supra note 10 at 35. 71 Worster supra note 5 at 139.

18 the granting of recognition. Generally speaking, the constitutive theory affords states considerable discretion in deciding whether a new state has emerged.72 Thus, despite the fact that constitutive theory attributes significant legal consequences to the act of recognition, the decision to extend recognition is subject to the discretionary, political inclinations of each and every individual state. In sum, the constitutive theory stipulates that a state is only a state upon the political act of recognition by existing states, which is status-creating in its effect. In spite of arguments by its proponents that constitutive theory brings a measure of legal certainty to the process of recognition, the theory nevertheless suffers from several drawbacks.73 First, a criticism that is often cited is that there exists little evidence in practice that states are treated as merely bundles of legal rights and obligations as the constitutive theory suggests. Worster argues that state practice does not indicate that states regard unrecognized states as terra nullius.74 For instance, states have often chosen to not extend recognition to a nascent state, and yet treated that entity as a “de facto state with many of the rights of a de jure state.”75 This implies that some form of international legal personality must exist in the entity in question, which predates statehood. Similarly, the constitutive theory has difficulty explaining the responsibility of non-recognized states under international law. In other words, if an entity has not been recognized as a state, meaning that it is not a subject of international law and is without rights and obligations, how can the international community ascribe violations of international law to such an entity? By way of illustration, Talmon points to the attribution of responsibility to Rhodesia, which had not been recognized as a state, for several acts that violated international law. Thus, Talmon concludes that, “if a non-recognized state can violate international law, it must also (at least partially) be a subject of that law.”76 Second, and perhaps the main objection to the constitutive theory, is its relativism. In the words of Hans Kelsen, “ the legal existence of a state…has a relative character. A state exists legally only in its relations to other states.”77 Crawford, amongst others, argues that in practice

72 Talmon, supra note 51 at 102; Worster, supra note 5 at 146. 73 Crawford, “Creation of States”, supra note 2 at 20. 74 Worster, supra note 5 at 120. 75 Ibid. at 137. Worster cites Macedonia as an example. It went unrecognized for several years due to political problems with Greece, but during this period it was still treated as a state by the majority of the international community. 76 Talmon, supra note 51 at 103. 77 Hans Kelsen, “Recognition in International Law: Theoretical Observations” (1941) 35 Am. J. Intl L. 605 at 609.

19 this aspect of constitutive theory makes little sense.78 Since, the theory maintains that the existence of a state is dependent upon its recognition by other states, the potential exists for entities to be considered both states and non-states at the same time. This is due to the fact that what one state may consider to be a state, may not be shared by others. Thus, the subjective nature of this evaluation may lead to a situation where a given entity’s legal status, including its corresponding rights and obligation at the international level, is only effective vis-à-vis those states which have recognized it. 79 This raises the question of whether an entity can be considered as having and not having an international legal personality at the same time. As a matter of law, can a state both exist and not-exist concurrently? Similarly, one might then wonder how many acts of recognition, or ‘how much’ legal personality has to be conferred on an entity in order for it to be treated as a ‘real’ state. Arguably, such uncertainty would be undesirable. A further criticism that is often cited is the considerable discretion that the constitutive theory affords existing states in determining whether a new state has indeed emerged.80 One of the major concerns raised by placing such discretion in the hands of states is that the process of recognition would then be potentially subject to the influence of state politics and national interests. In essence, it reduces the state “to a subject of another states’ politics.”81 This influence may prompt states to either recognize entities prematurely, before they have met the other criteria for statehood, or to refuse to grant it recognition regardless of the factual situation.82 This in turn raises the related concern that the effect of this discretion may serve to undermine the principle of the sovereign equality of states. As discussed previously, the notion of the sovereign equality of states is one of the basic rights associated with statehood. Hence, the idea that one state can use its unlimited discretion to refuse to recognize the existence of another, thereby denying the extension of certain rights and privileges to it, seems to be inconsistent with the principle of sovereign equality.83 Can a state sit in judgment of another state’s existence?

78 Crawford, “Creation of States”, supra note 2 at 21; Worster, supra note 5 at 120; Talmon, supra note 51 at 102; Hersch Lauterpacht, as cited in Crawford, “Creation of States”, supra note 2 at 21-22. 79 Currie, supra note 10 at 35. Even Lauterpacht, who accepts the fact that relativity plays a role in the constitutive theory, acknowledges that this result is a “glaring anomaly.” As cited in Crawford, “Creation of States”, supra note 2 at 21. 80 Worster, supra note 5 at 146. 81 Ibid. at 148. 82 This may provide a vehicle for major states to exert their influence over a given territory or region. For example, Russia’s quick, and arguably premature, recognition of the independence of Georgia’s two breakaway regions of Abkazia and South Ossetia, suggests the influence of political interests. 83 Talmon, supra note 51 at 102; Worster, supra note 5 at 148; and Currie, supra note 10 at 35.

20 At its core, the above criticisms appear to largely stem from the notion that the constitutive theory is problematic in practice because it allows states to ignore the facts on the ground – that is, the factual existence of a state. Worster posits that if states are free to completely refuse to acknowledge the reality of such a situation, then at some point this insistence on the non-existence of a given entity has the potential to become “absurd.”84 In response to these criticisms, proponents of the constitutive theory have argued that states do have an obligation to recognize entities as states as soon as they have fulfilled the criteria of statehood.85 Thus, it is suggested that there exist limits on the discretion of states to deny, or to confirm, the factual existence of any would-be state. However, there is little evidence of state practice to suggest that states accept or recognize such a general obligation.86 Moreover, John Currie questions whether states can properly be said to owe obligations under international law to a state, which does not yet exist.87 In fact, the mere suggestion of an obligation presupposes at the very least some measure of pre-existing legal personality, which the putative state is only supposed to acquire through the process of recognition. Prima facie, this seems to undermine the essence of the constitutive theory. On the other hand, even if one accepts that such an obligation exists and that there are limits on the discretion of states this begs the question as to what criteria or what standard(s) should be employed to limit that discretion. This in turn brings one back to the issue of statehood itself, and whether the Montevideo criteria, or any additional criteria need to be fulfilled before such an obligation to recognize arises.

2.3 Declaratory Theory and its Criticisms The declaratory theory, on the other hand, maintains that an act of recognition has no significant legal consequences.88 Rather, an entity becomes a state as soon as it meets the factual criteria of statehood. In other words, the conditions of statehood, however defined, confer a legal status on the entity in question independent of recognition.89 Therefore, recognition would actually play no part in constituting a state, but would merely be an acknowledgment of an already pre-existing

84 Worster, supra note 5 at 149. 85 Dugard & Raic, supra note 6 at 97; See generally, Hersch Lauterpact, Recognition in International Law (Michigan: University Press, 1947). 86 Crawford, “Creation of States”, supra note 2 at 22; Talmon, supra note 51 at 103. According to the Third Restatement of Foreign Relations Law of the United States, “a state is not required to accord formal recognition to any other state…” (Section 202). 87 Currie, supra note 10 at 36. 88 Ibid. 89 Crawford, “Creation of States”, supra note 2 at 4.

21 state of affairs. According to Crawford, where a state factually exists, “the legality of its creation or existence must be an abstract issue: the law must take account of the new situation…”90 Thus, the status of statehood is based on fact, and not on the discretion of individual states. In effect, the declaratory theory suggests that recognition is, at most, a diplomatic or political act and not a legal one.91 In so recognizing, a state merely acknowledges and accepts the legal personality of the new state in order to further international relations. This notion that recognition has a status-confirming effect rather than a status-creating effect is rooted in the view that a state is not merely a bundle of legal rights. Instead, a state is “more than a purely legal construction; it is also an organic entity” that can factually “precede the acquisition of international legal rights” and “presumably survive” their loss.92 Consequently, the existence of a state is not contingent upon the acquisition of such rights meaning that recognition should be, in principle, automatic as long as certain objective criteria of statehood are satisfied. Theoretically then, this merely declaratory role accorded to the act of recognition serves to limit the discretion of states in the overall process. According to Brownlie, “if an entity bears the marks of statehood, other states put themselves at risk legally, if they ignore the basic obligations of state relations.”93 Hence, proponents argue that by limiting discretion, the declaratory theory seeks to establish a process that is more legal, than political in nature. Given this legal emphasis, it is argued that the declaratory theory avoids both the logical and practical shortcomings inherent in the constitutive school of thought.94 A significant body of opinion supports the declaratory theory. In fact, Grant goes so far as to suggest that, “the role of recognition was once debated…[but] most writers today assume that recognition itself does not create statehood.”95 Many commentators argue that this predominance has been supported in practice.96 For instance, the German-Polish Mixed Arbitral Tribunal held – in regards to the existence of the ‘new’ state of Poland after the First World War – that, “the recognition of a State is not constitutive but merely declaratory. The State exists by

90 Ibid. 91 Vidmar, supra note 3 at 827. 92 Worster, supra note 5 at 124. 93 Ian Brownlie, cited in Crawford, “Creation of States”, supra note 2 at 25. 94 Crawford, “Creation of States”, supra note 2 at 23. 95 Grant, “Defining Statehood”, supra note 9 at 446. 96 Crawford, “Creation of States”, supra note 2 at 23-25; See generally the writings of T-C. Chen; I. Brownlie; and Grant.

22 itself and the recognition is nothing else than a declaration of [its] existence…”97 Proponents argue that similar sentiments can be found in the pronouncement of the ICJ in the Bosnian Genocide case, where it dismissed the Federal Republic of Yugoslavia’s (FRY) claim that the Court could not adjudicate matters pursuant to the Genocide Convention because the FRY and Bosnia-Herzegovina had not recognized each other at the time the proceedings began. The Court held that Bosnia-Herzegovina was competent to bring the claim as of the moment it became a state regardless of when the FRY decided to recognize it.98 This support for the declaratory theory can also be seen in the words of the Arbitration Commission established to advise the European Peace Conference on Yugoslavia (Badinter Commission). The Commission was created in order to consider questions relating to the recognition of new states and state secession arising from the disintegration of the Socialist Federal Republic of Yugoslavia (SFRY). In its first opinion on 29 November 1991, the Badinter Commission stated that, “the effects of recognition by other States are purely declaratory.”99 Despite this substantial body of opinion, there still remain several drawbacks to the declaratory theory. Arguably, the main criticism leveled against the declaratory theory is that it tends to too completely disregard the importance recognition has in enabling entities to fully participate as states at the international level.100 For instance, it may be difficult to substantiate that an entity, which has not been recognized by any other states, can claim to actually function as a state if it cannot effectively demonstrate that it possesses the ‘ability’ to enter into legal relations with other states. In other words, even if a state has met the criteria for statehood, of what use is this practically if other states choose to take no notice of its status and thereby constrain its ability to act at the international level? In short, mere existence may not matter if other states are unwilling to treat an entity as having the rights of a state. Thus, even if an act of recognition is not constitutive, it still arguably remains a vitally important step in the process of a state’s accession to full statehood in practice. Even Crawford, one of the staunchest supporters of

97 Deutsche Continental Gas Case, supra note 36 at 13. 98 Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), [1996] I.C.J. Rep at 595, 612-613. 99 Conference on Yugoslavia, Arbitration Commission, Opinion No. 1 [Disintegration of the SFRY], 29 November 1991, 92 ILR 165. The opinions of the Commission will be considered in more detail in Chapter 4 of this paper infra. 100 Worster, supra note 5 at 137.

23 the declarative theory, acknowledges that statehood may have little practical significance if it is not at some point complemented by recognition.101 Similarly, critics of the declaratory theory contend that if an act of recognition were devoid of all importance then there would be virtually no consequences attached to a threat of non-recognition.102 Hillgruber argues that non-recognition is premised on denying an entity the legal status of a state under international law. If such an entity were to acquire this legal status automatically upon meeting the criteria of statehood, and hence independently of any act of recognition by the international community, then it “would not be possible to bring about the negative legal consequence intended by non-recognition.”103 In short, the decision to not extend recognition to a supposed state would be futile under the declaratory model. However, acts of non-recognition have occurred in state practice meaning that some manner of consequence must be attached to such an act. This leaves proponents of the declaratory model with a theoretical dilemma if they wish to justify such an act of non-recognition in a manner that is consistent with their point of view – i.e. that acts of non-recognition do not result in the withholding of the rights and privileges which are inherent to statehood. Thus, these proponents attempt to justify acts of non-recognition on the basis of a particular entity’s failure to meet the legal criteria of statehood in the first place, or because of its failure to comply with international law and not because the act of recognition itself has some sort of constitutive effect.104 Another drawback of the declaratory model is that it ignores the fact that even if the mantel of statehood is ‘automatically’ bestowed on a given entity, the issue of state discretion has not necessarily been removed from the equation. Although the theory emphasizes that entities will automatically become states upon meeting the prescribed criteria for statehood, it still remains up to individual states to ascertain whether this is indeed the case. As described above, there are two problems with the existing statehood criteria that would impact any such determination. First, there is a lack of consensus on what exactly are the criteria for statehood. The possibilities for criteria are currently contentious and are often not consistently applied. This undermines the supposed strength of the declaratory model, which is that it allows for clear and

101 Crawford, “Creation of States”, supra note 2 at 44. For example, the TRNC (Turkish Republic of Northern Cyprus) is only recognized by the state of Turkey. This has significantly impacted its ability to be treated as a functioning state in the global arena. 102 Hillgruber, supra note 1 at 494. 103 Ibid. 104 Talmon, supra note 51 at 107.

24 predicable determinations as to which entities are states and which entities are not.105 Second, even if the criteria to be used are clear, a further problem is their consistent and objective application. Thus, the political attitudes and interests of individual states remain a potential obstacle to the neutral assessment of supposedly fixed legal criteria.106 In spite of these criticisms, the essence of the declaratory theory remains the one most widely endorsed by commentators who argue that this affirmation is confirmed by state practice. A further example of such practice, in addition to those already outlined above, can be seen in the language used by the German Foreign Office in regards to its decision to not recognize the FRY in the wake of the dissolution of the former Yugoslavia. Its statement clearly supports the declaratory position: “We and our partners in the EU have not recognized the FRY…this is of no relevance for the question of the international legal personality of the [FRY], as recognition does not have constitutive effect.”107 This further supports the contention that many states generally consider recognition to be a political matter governed by its own interests and independent from the issue of statehood. To this end, Crawford cites as an example the fact that even states that choose not to recognize other entities as states nevertheless do not treat them “as exempt from international law.”108 In other words, once an entity satisfies the criteria of statehood, the international community will treat such entities as if they were already states subject to specific obligations under international law. Recognition, then, is intended to be a declarative act that has a purely political effect.

2.4 Reconciling the two: an intermediary theory? Although the declaratory doctrine is supposedly predominant, it has been argued that the mere existence of contested states points to the continuing influence of the constitutive theory on state practice.109 Taking into account both the practical realities faced by states, as well as the actual behavior of states when confronted with such realities, it has been suggested that the declaratory theory does not always satisfactorily reflect state practice on the matter of recognition and

105 Worster, supra note 5 at 160. 106 Ibid. at 159. 107 German Foreign Office (10 February 1994), cited in Talmon, supra note 51 at 106. 108 Crawford, “Creation of States”, supra note 2 at 26. 109 Geldenhuys, supra note 46 at 20.

25 statehood.110 In fact, some academics argue that neither theory satisfactorily describes the actual state of the law on the matter.111 This has led some commentators to advance an intermediary theory of recognition, which seeks to apply a more comprehensive concept of recognition by combining parts of the declaratory and constitutive theories together. As discussed previously when rebuttals to criticisms of the constitutive theory were considered, the suggestion, originally advanced by Lauterpacht, that states had a duty to recognize a state if the criteria of statehood were fulfilled actually represented an attempt to merge together aspects of the two competing theories.112 While such formal attempts to synthesize the declaratory and constitutive theories together have been met with their own criticism,113 it nevertheless remains arguable that the strict division between the two theories has become increasingly illusory in practice. This is illustrated by the fact that there exist instances of state practice that appear to support each theory simultaneously. The best example of this, which will be explored more thoroughly when the case of Kosovo is considered below, is the stance adopted by the Badinter Commission in discussing the independence and status of states in the wake of the disintegration of the SFRY. Specifically, by stating that, “recognition is purely declaratory” but does “confer certain rights and obligations under international law” the Commission seems to have taken an intermediary approach to the issue of recognition and its application to the situation in the former Yugoslavia.114 While this could be dismissed as an unfortunate misstatement resulting in unintended effects, it may also be interpreted as a growing tacit acknowledgment that the declaratory theory of recognition has some constitutive aspects. Regardless, there appears to be an intermingling of the two theories in practice. Thus, the question that needs to be addressed is whether this signals a reconciliation of the two competing theories in the form of a new intermediary theory, or whether states are simply not intending to apply any particular theory at all. This issue will be addressed when the situation in Kosovo is discussed below.

110 Milena Sterio, “The Kosovar Declaration of Independence: ‘Botching the Balkans’ or Respecting International Law” (2008-2009) 37 Ga. J. Int’l & Comp. L. 267 at 284. 111 Ibid. at 284-285; Worster, supra note 5 at 119; Berlin, supra note 22 at 559. Even Crawford acknowledges that neither the constitutive nor the declaratory theory satisfactorily explains modern practice. Crawford, “Creation of States”, supra note 2 at 5. 112 See note 85 supra. 113 As noted previously, Worster argues that there is little state practice to suggest that state’s feel they are under a duty to recognize new states. Crawford also dismisses Lauterpacht’s synthesis stating that at a “fundamental level a choice has to be made [between one theory or the other]. Crawford, “Creation of States”, supra note 2 at 27. 114 Worster, supra note 5 at 126-127.

26 2.5 Collective recognition and collective non-recognition Finally, as a corollary to the above discussion, it is important to note that recognition can be a collective endeavor as well as a unilateral one. Generally speaking, collective recognition occurs when a group of states chooses to recognize the existence of a new state directly, through an act of recognition, or indirectly, through its admission to an organization.115 In fact, international and multilateral organizations have been used extensively by states as a means of coordinating behavior.116 Though it is not without controversy, perhaps the best example of collective recognition is admission to the United Nations. It is clear from the Charter that membership in the UN is limited to states only.117 Moreover, decisions regarding admission of new states require a two-thirds majority vote in the General Assembly in addition to the approval of all five permanent members of the Security Council.118 Thus, full membership in the UN is arguably “tantamount to collective de jure recognition.”119 In theory, the idea of the UN as an arbiter of statehood status seems favorable because it would avoid the problems associated with unlimited discretion and the resulting inconsistent recognition practices of individual states. The controversy lies in the fact that the UN membership process is, in practice, highly politicized and does not strictly apply the traditional Montevideo criteria in making determinations of statehood.120 Therefore, it is arguable whether some entities would have received such widespread recognition by individual states had such declarations been made unilaterally rather than through the UN membership process. For example, Croatia, Slovenia, and Bosnia- Herzegovina were admitted to the UN almost immediately after their ‘separation’ from the former Yugoslavia. Yet, whether they were actually deserving of such admission, and the implied widespread recognition that accompanied it, at that early moment is quite debatable. In the case of Croatia and Bosnia, collective recognition came at a moment when the criteria for statehood remained, arguably, unfulfilled. Specifically, neither state had complete control over its own territory, with Bosnia, in particular, bereft of an effectively functioning government.121 Thus, much like unilateral recognition there is no guarantee that an international body like the

115 Dugard and Raic, supra note 6 at 97. 116 Murphy, supra note 56 at 555. 117 United Nations, Charter of the United Nations, 24 October 1945, 1 U.N.T.S. 16 at Articles 3, 4 [UN Charter]. 118 Geldenhuys, supra note 46 at 22. 119 Ibid. In fact, membership in the UN often directly leads to membership in other multilateral organizations such as NATO, the EU or the OSCE. 120 Worster, supra note 5 at 164. 121 Roland Rich, supra note 60 at 56.

27 UN would objectively and consistently apply statehood criteria to a given situation in practice. Nevertheless it is fair to suggest from the above that some states have been accepted as states, whether it was premature or not, purely through their admission to the UN. Similarly, the European Community (now the European Union) has in recent years taken steps in an effort to effectively coordinate their own practices in relation to recognizing new states in Europe. This is evidenced by the adoption of the EC Guidelines by EC Member States in December 1991, in direct response to the developing situations in both Yugoslavia and the USSR.122 The criteria set out in the EC Guidelines were meant to engender a measure of consistency in how and when states recognized the emerging entities. The content of the EC Guidelines “affirms the readiness of the EC countries to recognize new states”, which have “constituted themselves on a democratic basis, have accepted the appropriate international obligations and have committed themselves in good faith to the peace process…” Specifically, the EC Guidelines then set out a number of requirements including: commitment to the rule of law, democracy and human rights; the extension of guarantees to protect minority rights; respect for the inviolability of frontiers; commitment to disarmament as well as to security and regional stability; willingness to settle by agreement all questions concerning state succession and regional disputes; and that there would be no recognition for states “which are the result of aggression.”123 Moreover, the European Community imposed further requirements on ‘states’ emerging from the former Yugoslavia, including the demand that each entity wishing to be recognized as independent states adopt “constitutional and political guarantees ensuring that it has no territorial claim towards a neighboring Community State…”124 Whether an emerging state met these criteria would be determined by an designated arbiter specifically set up the European Community (the aforementioned Badinter Commission). If the application by the emerging entity was approved by the Badinter Commission, then the European Community and its member states would recognize the putative state. Thus, by providing a set of guidelines the European Community hoped that this would allow its member states to collectively recognize new entities as states, and thereby avoid the uncertainty and inconsistency that often stems from unilateral acts of recognition. In practice, however, this was not the case. For instance, although the Badinter Commission found in early January 1992, that Slovenia had met the EC recognition

122 EC Guidelines, supra note 58. 123 Ibid. 124 Declaration on Yugoslavia, Extraordinary EPC Ministerial Meeting, Brussels, 16 December 1991.

28 requirements but Croatia had not, the EC nevertheless decided to recognize both.125 Conversely, while the Commission found that Macedonia had met the EC criteria, the Community decided not to recognize it as a new state due to some resistance from Greece. Instead, it simply declared that a ‘state’ had come into existence, allowing each member states to decide on its own whether or not it would extend recognition to Macedonia.126 While it is certainly debatable as to whether the EC Guidelines can be considered a true example of collective recognition, it is clear that states sometimes look to international or regional organizations to ensure some measure of efficiency and consistency to the recognition process particularly in situations that may lead to considerable instability. Questions relating to the efficacies of collective recognition aside, there are a few interesting things to note from the above discussion. First, collective recognition serves to once again highlight the blurring of the distinction between what is required to become a state, and what is required to convince other states to recognize an entity as such. For example, can UN membership be considered as an additional criterion for statehood? Is it necessary for an entity to become a state? Or, is admission to the UN merely a form of confirmation of an entity’s status as a state? Given state practice, it is very unlikely that admission to the UN is necessary for statehood. One just needs to look at the case of Switzerland, which for many years refused to join the UN without facing arguments that its lack of membership conferred upon it a non-state status.127 Yet, on the other hand, if admission merely confirms an entity’s status as a state then this is not easy to square with the case of Bosnia mentioned above if the traditional criteria of statehood are adhered to it. The EC Guidelines also demonstrate the blurring of this distinction. By enumerating additional criteria that “new states” had to meet in order to be recognized by the European Community, which did not include the traditional criteria for statehood, it is easy to comprehend how the process of recognition can blur perplexingly with the definition of what constitutes a state. Additionally, the EC Guidelines also illustrate the intermingling of the two competing theories of recognition in practice. While most academics hold that the listed

125 Murphy, supra note 56 at 562. The Commission found that Croatia had not done enough to ensure the protection of minorities under its new constitution. 126 Ibid. Greece’s concern stemmed largely from the name of the putative new state. See Rich, supra note 60 at 51- 53. 127 Worster, supra note 5 at 164. See Grant, “Defining Statehood”, supra note 9 at 445-446.

29 requirements are simply political criteria that condition recognition,128 in practice it is not necessarily clear whether these conditions were purely declaratory or whether they had some constitutive effects. All of these issues will be teased out in a more complete manner below when the case of Kosovo is discussed. The international community has also acted collectively to withhold recognition from emerging entities. This so-called ‘doctrine of collective non-recognition’, which arguably has its origins in the League of Nations’ refusal to recognize the emergence of the independent state of Manchukuo after Japan’s illegal invasion of Manchuria in 1932, is meant to prevent the consolidation of unlawful situations arising from a state’s creation.129 In other words, emerging entities whose claim to statehood is based on violations of one or more peremptory norms of international law will not be considered valid and will prompt acts of non-recognition in reaction. Typically in response to such a situation, the United Nations has invoked a formal resolution obliging its members to collectively withhold recognition from the entity in question.130 For example, the United Nations has invoked a duty of collective non-recognition in response to unlawful situations in Southern Rhodesia (violation of the right to self- determination), and in Northern Cyprus, or the TRNC, and Kuwait (violation of the prohibition on the use of force).131 Generally speaking, the notion of non-recognition has traditionally been used by states as a means of withholding from a state its legal status as a state, or to “deny that [unlawful] situation’s legal effects.”132 In short, non-recognition is said to have a ‘status-denying’ effect.133 Specifically, the rights, competences and privileges that are inherent to statehood are to be withheld from the new entity. Viewed in this manner, non-recognition is meant to operate as a type of sanction. That being said, withholding from an emerging entity the legal status of a ‘state’ does not necessarily mean that the unrecognized state is treated as a nullity. Rather, the

128 Grant, “Defining Statehood”, supra note 9 at 452; Talmon, supra note 51 at 109; Berlin, supra note 22 at 560; Rich, supra note 60 at 55; Colin Warbrick, “Recognition of States” (1993) 41 Intl L. & Comp. L.Q. 480. 129 Dugard & Raic, supra note 6 at 100. 130 Vidmar, supra note 3 at 829-830. An obligation of non-recognition can also apply under customary international law. However the circumstances that would trigger collective non-recognition under customary law are debatable. 131 Crawford, “Creation of States”, supra note 2 at 159; SC Res 217, U.N. SCOR, 21st sess., 1265th mtg, U.N. Doc S/Res/217 (20 November 1965); SC Res 541, U.N. SCOR, 38th sess., 2500th mtg, U.N. Doc S/Res/541 (18 November 1983) at 7; SC Res 661, U.N. SCOR, 2933rd mtg, U.N. Doc S/Res/661 (6 August 1990) at 9(b); SC Res 662, U.N. SCOR 2934th mtg, U.N. Doc S/Res/662 (9 August 1990) at 2. 132 Martti Ahtisaari, cited in Talmon, supra note 51 at 144. 133 Ibid.

30 de-facto situation on the ground is noted, and only those rights and privileges that specifically suggest a claim to statehood are withheld.134 As succinctly stated by Crawford, “an obligation not to recognize the legality of an act does not necessarily involve an obligation not to recognize its effects.”135 The goal is to protect certain basic norms that are of fundamental interest to the international community as a whole, not to completely ignore the factual reality of the situation. It should be noted that this perception of collective non-recognition is very much imbued with the language of the declaratory perspective. This perspective acknowledges that an internationally wrongful act does not prevent the creation of a state, which is a question of fact independent of recognition. Instead it attempts to rationalize the withholding of certain inherent rights and privileges of statehood by positing that collective non-recognition has a status-denying effect that operates like a sanction. While this withholding is prima facie illegal under international law, this perspective argues that the issuing of a binding UN resolution to that effect ameliorates any illegality. Nevertheless, the fact that non-recognition still brings with it a consequence, the denial of status as a state, suggests that in practice recognition might still have some constitutive elements. Specifically, this perspective of collective non-recognition appears to address the apprehension that recognition brings with it some form of tacit approval, which in turn would suggest that recognition might have a “legitimizing”, i.e. constitutive, effect.136 This again highlights the conflation of the two competing theories of recognition in practice. A further issue that the above raises, is whether recognition may be granted in situations where the illegality is not of a fundamental nature and non-recognition is not owed erga omnes. Crawford argues that in situations where the illegality does not stem from a violation of a preemptory norm, “recognition of an unlawful situation is not necessarily forbidden by international law.” Specifically, he holds that a state that is directly affected by the unlawful situation may “waive” its right in regards to a particular issue, or other states may “waive any interest they may have in observance of the rule in question.”137 Thus, whether recognition may be properly granted in situations of secession, as in the case of Kosovo, may turn on whether a preemptory or fundamental norm has been breached. Thus, it is to the issue of secession that this paper now turns.

134 Ibid. at 147. Talmon argues that this is reflected in the language used by states in referring to entities that do not enjoy widespread recognition. For example, the UN speaks of the “Turkish-Cypriot authorities.” 135 Crawford, “Creation of States”, supra note 2 at 160. 136 Worster, supra note 5 at 140. 137 Crawford, “Creation of States”, supra note 2 at 158.

31 2.6 Conclusion In light of the above it is clear that despite the declaratory theory’s supposed predominance in the literature and in the practice of states, neither theory of recognition has been able to completely ‘occupy’ the field in this respect. Given the plethora of factors faced by states when making recognition decisions, it has been suggested that neither theory sufficiently explains the emergence of new states. While this has led some academics to advance an intermediary theory of recognition, which in turn has been met with its own criticism, some state practice nevertheless suggests that a strict division between the two may be misleading. Whether this is indicative of a formal reconciliation of the two competing schools of thought, or whether it is reflective of a more random result will be addressed below when the case of Kosovo is discussed. Finally, the fact that recognition, or non-recognition, can be a collective act, i.e. coordinated between states, as well as an individual one is an important corollary to keep in mind when one is considering the nexus between statehood and recognition as well as the blending of the declaratory and constitutive theories of recognition in state practice.

32 3 Secession as a Means of External Self-Determination 3.1 Introduction While any attempt to deal methodically with the concept of secession in international law is limited by the scope of this paper, the following will endeavor to cogently outline the aspects of secession most relevant here. Namely, it will attempt to address whether there exists a ‘remedial’ right to secession in international law. The possible existence of such a right is crucial to the discussion of recognition outlined above because the means or method by which a new state ‘emerges’ is a central consideration for existing states in deciding whether or not to extend recognition to that particular entity. In the case of Kosovo, the core of the ongoing dispute surrounding its status is the extent to which it had the right, if it had the right at all, to secede from Serbia without the latter’s consent. While the exploration of whether or not Kosovo’s unilateral secession constituted a legal or illegal act under international law is, in and of itself, of only cursory importance to this paper, it is the impact that this contentious situation has had on the manner in which states comprehend and utilize their discretion to recognize new states that merits closer analysis.

3.2 Self-Determination and Secession Outside the Colonial Context Outside of the colonial context, the primary basis for a right to self-determination can be found in the first articles of both the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR).138 While this right has been applied in colonial situations, its exercise beyond this context has been more uncertain. Its interaction with the rights and duties inherent to statehood, such as territorial integrity, has led to the establishment of a distinction between two dimensions of the right to self-determination: internal and external.139 The exercise of internal self-determination does not require any one particular mode. It can take a variety of forms, including self-government or autonomy over certain areas of national law and policy-making, as long as it aids in the creation of a government that is representative of all of its inhabitants, allows for a participatory political system, and is responsive to the popular

138 International Covenant of Civil and Political Rights, 19 December 1966, UNGA Res. 2200A (XXI), 21 UN GAOR Supp. (No. 16) at p. 52, UN Doc. A/6316 (1966), 999 U.N.T.S. 171 at Article 1 [ICCPR]; International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 U.N.T.S. 3 at Article 1 [ICESCR]. 139 Vidmar, supra note 3 at 808.

33 will.140 Thus, at its core this dimension allows for the exercise of a particular peoples’ right to self-determination within the framework of the already existing state of which it forms a part. Typically, the language of international law tends to prefer this internal dimension of self- determination, as it is less intrusive on the principles of state sovereignty and territorial integrity. For example, the people of Katanaga were denied the right to secede from Zaire because the African Commission on Human and Peoples’ Rights held that Katanga was “obliged to exercise a variant of self-determination that is compatible with the sovereignty and territorial integrity of Zaire.”141 The Supreme Court of Canada in the Quebec Secession Reference made a similar statement in regards to the situation of Quebec, remarking that, “A state whose government represents the whole of the people or peoples within its territory, on a basis of equality and without discrimination” and respects the principles of internal self-determination “is entitled to maintain its territorial integrity under international law…”142 This sentiment is echoed in both the 1970 Declaration on Principles of International Law (Friendly Relations Declaration)143, and the 1993 Vienna Declaration and Programme of Action adopted by the World Conference on Human Rights. For example, the latter document, after affirming that all peoples have the right to self-determination, nevertheless emphasized that this right shall not be construed as “authorizing or encouraging any action which would dismember or impair” the territorial integrity of independent states.144 However, this does not mean that the exercise of external self-determination is absolutely precluded under international law. Just like its counterpart, the external dimension also has several modes of implementation outside of the colonial context, namely dissolution and a union or merger of states. In the first case the predecessor, or parent state, breaks apart into its constituent parts so that the parent state as a whole ceases to exist. This was the position largely

140 Milena Sterio, supra note 110 at 277. These requirements of a participatory political system, which expresses the popular will of the entire population is reflected in Articles 18, 19, 21, 22, and 25 of the ICCPR. 141 Katangese Peoples’ Congress v. Zaire, (1994) African Commission on Human and Peoples’ Rights, Communication 75/92, at 27-28 [Katanga]. 142 Reference re Secession of Quebec, [1998] 2 S.C.R. 217 at para. 154 [Quebec Secession Reference] at para 154. Other examples where similar language was employed include Chechnya, and Republic Srpska. See generally Crawford, “Creation of States”, supra note 2 at 403-415. 143 Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, GA Res. 2625(XXV), UN GAOR, 25th Sess., UN Doc. A/RES/25/2625 (1970) [Friendly Relations Declaration]. 144 Vienna Declaration and Programme of Action, UN GAOR, World Conf. on Hum. Rts., 48th Sess., UN Doc. A/CONF.157.24 (1993) [Vienna Declaration and Programme of Action] at 7.

34 taken by the international community in regards to the break up of the SFRY.145 In the latter case, two states come together to form a new state. For example, the (re)unification of East and West Germany. These modes of self-determination are generally accepted under international law. It is the third mode of external self-determination that remains potentially problematic – secession. Generally speaking, secession may be defined as the separation of part of the territory of a state by a portion of the resident population with the aim of creating a new state. The parent state remains in existence without the seceding territory (unlike dissolution).146 Read alongside the principle of self-determination, secession is a means by which a ‘people’ could achieve external self-determination. However, it is important to note that the prevailing contention surrounding the existence of a so-called right to secession is not an issue when certain conditions are present. David Raic correctly points out that secession will not incur opposition if the constitution of the parent state allows for such action, or where the central authorities of the parent grant the seceding entity its consent or approval.147 Nevertheless, where there is no constitutional arrangement or no consent of the parent state then the issue of a right to secession is, not surprisingly, much more disputable. Thus, one must make a distinction between consensual or constitutional secession, which is not necessarily problematic, with unilateral secession, which is considered to be much more questionable. Not surprisingly, the notion of a unilateral secession collides head on with the principle of territorial integrity outside the colonial context. Therefore, it is a generally accepted notion that a positive right to unilateral secession does not exist under international law outside of colonial situations.148 Specifically, a review of the relevant treaty law, namely common Article 1 of both the ICCPR and the ICESCR, is inconclusive with respect to a right to unilateral secession. In fact, both Covenants are silent on the issue.149 A review of state practice since 1945 is also inconclusive, as the international community has been generally reluctant to accept acts of unilateral secession. However, it is also a commonly held belief amongst academics that

145 James Crawford, “Right of Self-Determination in International Law: Its Development and Future” in Philip Alston, ed., Peoples Rights (Oxford: Oxford University Press, 2001) at 52 [Crawford, “Right of Self- Determination”]. 146 Dugard & Raic, supra note 6 at 102. 147 David Raic, Statehood and the Law of Self-Determination (NL: Martinus Nijhoff Publishers, 2002) at 313-314. This consent can be provided before or after the seceding entity’s declaration of independence. 148 Quebec Secession Reference, supra note 142 at para. 222. 149 ICCPR, supra note 138 at Art. 1; ICESCR, supra note 138 at Art. 1.

35 international law neither recognizes, nor prohibits unilateral secession.150 For example, Crawford is right to point out that the reluctance of states to accept acts of unilateral secession is not necessarily indicative of the legality or illegality of such an act.151 The Canadian Supreme Court in the Quebec Secession Reference confirms this, when it stated that, “international law contains neither a right of unilateral secession nor the explicit denial of such a right.”152 In other words, while a general right to unilateral secession may not exist, it is nowhere explicitly stated in the law that such an act is absolutely prohibited in all circumstances. Nevertheless, given the state of the law on the matter and the general hostility of states to the idea of secession vis-à-vis their own territory one can conclude that there exists no general right to unilateral secession under international law. That being said, recent developments in jurisprudence, and academic thought has lead many to conclude that a qualified right may indeed exist.

3.3 A ‘Remedial’ Right to Secession This notion of a qualified, or ‘remedial’ right to secession was first suggested by the Commission of Rapporteurs in the Aaland Islands case. It argued that if a state engages in oppression and persecution of a particular minority group who are seeking to separate, secession could be an appropriate remedy.153 However, the Commission emphasized that unilateral secession would only be considered as an “exceptional solution, a last resort” when a state “lacks either the will or the power to enact and apply just and effective guarantees.”154 Nevertheless, the possibility was left open. This idea of a secession as a last resort has found support in academic literature. Antonio Tancredi notes that, “contemporary international law recognizes the existence of this right [only] in situations of extreme persecution.”155 This approach is largely based on a

150 Hurst Hannum, “Self-Determination in the Post-Colonial Era” in Donald Clark & Robert Williamson, eds., Self- Determination: International Perspectives (London: Macmillan Press Ltd., 1996) 12 at 30; Crawford, “Creation of States”, supra note 2 at 390. 151 Crawford, “Creation of States”, supra note 2 at 390. See pages 403-415 for examples of unsuccessful attempts at secession. 152 Quebec Secession Reference, supra note 142 at para. 112. 153 Daniel Fierstein, “Kosovo’s Declaration of Independence: An Incident Analysis of Legality, Policy and Future Implications” (2008) 26 B.U. Int’l L. J. 417 at 426. 154 The Aaland Islands Question: Report submitted to the Council of the League of Nations by the Commission of Rapporteurs, League of Nations Document B7.21/68/106, 16 April 1921, at 21, 28 [Aaland Islands]. 155 Antonello Tancredi, “A Normative ‘Due Process’ in the Creation of States through Secession” in Marcelo Kohen, ed., Secession: International Law Perspectives (New York: Cambridge University Press, 2006) 171 at 175. Emphasis is mine. Crawford also views external self-determination as a last resort. Crawford, “Creation of States”, supra note 2 at 120. For a detailed list of the academic support for remedial secession, see Tancredi at 175-177.

36 contrario reading of principle five, paragraph seven of the Friendly Relations Declaration.156 Commonly referred to as the ‘safeguard clause’, the language of this provision can be read as striking a balance between the right to self-determination and territorial integrity by seemingly conditioning the right to secession on the denial of internal self-determination.157 This ‘safeguard’ clause was reiterated in the Vienna Declaration and Programme of Action, allowing for a similar textual interpretation.158 While this interpretation of the safeguard clause is not without debate, some academics, such as Antonio Cassese and Crawford, nevertheless support this analysis arguing that both Declarations implicitly recognize the right of remedial secession in extreme cases of oppression or alien subjugation outside of the colonial context.159 Moreover, while both declarations are important in that they acknowledge a qualified right to secession, they are also significant for implicitly limiting the principle of territorial integrity vis-à-vis a right to internal self-determination. The availability of such a ‘remedial’ right has also been expounded upon in the jurisprudence of various national courts. The Canadian Supreme Court in the Quebec Secession Reference expressly allowed for the possibility of external self-determination not only in situations of domination or oppression, but also in a third circumstance where a people are “denied any meaningful exercise of its right to self-determination within the state of which it forms a part.”160 In applying this to the facts of the reference, the Supreme Court found that Quebec had not been denied its right to ‘meaningfully’ exercise its internal right to self- determination. Although not a decision by a national court, the judicial decision made by the African Commission on Human and Peoples’ Rights in the case of the Katanga peoples’ also noted the existence of a ‘remedial’ right. The Commission held that in the case of serious human rights violations or a denial of internal self-determination, the Katanga people would be entitled to secede.161 While it was mentioned above that the Katanga people were denied their claim for secession, this was not because the Commission was of the opinion that no remedial right

156 Friendly Relations Declaration, supra note 143. 157 Tancredi, supra note 155 at 178. 158 Vienna Declaration and Programme of Action, supra note 144. 159 Crawford, “Right of Self-Determination”, supra note 145 at 57; Antonio Cassese, Self Determination of Peoples. A Legal Appraisal (Cambridge: Cambridge University Press, 1995) at 109. 160 Quebec Secession Reference, supra note 142 at para. 154. The first circumstance being a colonial situation, which is not relevant to our discussion here. 161 Kathryn Sturman, “New Norms, Old Boundaries: The African Union’s Approach to Secession and State Sovereignty” in Aleksandar Pavkovic & Peter Radan, eds., On the Way to Statehood: Secession and Globalisation (England: Ashgate Publishing Limited, 2008) 67 at 74.

37 existed. Rather, it was due to a lack of concrete evidence that fundamental human rights had indeed been violated.162 Thus, there is some judicial and academic support for the position that a remedial right to secession does in fact exist. From this support one can elucidate the parameters of such a qualified right. First, there has to be a denial of internal self-determination. Second, there must be evidence of gross and systemic human rights violations. And finally, secession must be a last resort. It follows, then, that if these conditions are met an emerging entity should be able to legally secede from the ‘parent’ state. However, this remedial right is heavily circumscribed and it is still uncertain whether it has crystallized as a norm in international law. As succinctly noted by the Supreme Court of Canada in the Secession Reference, “it remains unclear whether this…proposition actually reflects an established international law standard.”163 A significant reason for this uncertainty is the acute lack of state practice in support of this doctrine. Arguably the only example of a successful secession might be the creation of Bangladesh in the early 1970s.164 However, even here it is debatable as to whether this was truly a case of remedial secession or whether the international community merely accepted it as a fait accompli.165 In all other potential cases, such as the collapse of communism in Eastern and Central Europe, consent of the parent state was acquired before the secessionist claim was externally recognized– hence they cannot be considered truly remedial. Moreover, one could characterize these examples as cases of dissolution and not secession, making it even more difficult to identify an instance of state practice.

3.4 Conclusion In general, since 1945 the international community has been very reluctant to accept unilaterally seceding entities as states, outside of the colonial context, if the secession is opposed by the government of the parent state. This is exemplified by the fact that over the same time period the UN has chosen to not admit any seceding entity where parental approval was outstanding.166

162 Dugard & Raic, supra note 6 at 108. 163 Quebec Secession Reference, supra note 142 at para. 135. 164 See Crawford, “Creation of States”, supra note 2 at 140 for a detailed background to this case. 165 Vidmar, supra note 3 at 816. Crawford posits that the UN treated the situation as a fait accompli achieved as a result of foreign military assistance and the withdrawal of Pakistani military forces. Under the circumstances there was little choice but to accept the results. The UN did not extend membership to Bangladesh until after Pakistan recognized it. 166 Crawford, “Creation of States”, supra note 2 at 390; Fierstein, supra note 153 at 430.

38 Given this trend in state practice, it is not surprising that Kosovo has attracted much attention in this regard as it may prove to be potentially precedent setting in so far as that it may aid in the crystallization of a right to remedial secession under international law. However, more importantly Kosovo also raises questions about the role recognition plays in situations where a unilateral declaration of independence is made without the approval of the parent state. In order to assess the potential theoretical and practical implications for recognition in light of this role, this paper will now examine the case of Kosovo.

39 4 Recognizing Secession in Practice – The Example of Kosovo 4.1 Introduction On February 17, 2008, the Kosovo Assembly voted in favor of declaring its independence from Serbia. Citing the numerous human rights violations suffered under the Milosevic regime, the North Atlantic Treaty Organization’s (NATO) military intervention, and the United Nations’ subsequent interim administration, Kosovo’s Declaration of Independence stated that its adoption “brings to an end the process of Yugoslavia’s violent dissolution.”167 Not surprisingly, this unilateral action drew immediate and divided reactions from the international community.168 While some states extended their prompt recognition of a ‘unique’ set of circumstances, others condemned the action as illegal and contrary to the norms of international law that risked the creation of an unfortunate precedent. Given the fact that recognition of secessionist situations has generally required consent of the parent state as a precondition, the ongoing debate regarding Kosovo’s status merits closer analysis because of the important implications it may have for the practice of state recognition.

4.2 Kosovo and Serbia: A Brief History Kosovo Albanians and Serbs both stake a claim to the disputed region of Kosovo dating back centuries.169 After the Turks lost control over the region in 1912, Kosovo came under the de facto authority of the Kingdom of Serbia, which subsequently became integrated into the Kingdom of Yugoslavia after the end of the First World War.170 After the end of the Second World War and the subsequent assertion of communist control under Josip Tito, Kosovo was incorporated into Serbia, one of the six federal republics within Yugoslavia.171 Under this federal structure Kosovo enjoyed increasing autonomy, including representation to the Presidency of the Socialist Federal Republic of Yugoslavia and authority to draft its own constitution. Arguably, it could be said that Kosovo, at this juncture, was ‘meaningfully’ exercising its right to internal self-determination.172

167 Kosovo Declaration of Independence (2008), online www.assembly-kosova.org/common/docs/Dek_Pav_e.pdf 168 BBC. “Kosovo: To Recognize or Not to Recognize.” BBC News (18 February 2008), online: The British Broadcasting Corporation, . 169 Fierstein, supra note 153 at 420. 170 Vidmar, supra note 3 at 784. It was officially given this name in 1929. 171 Fierstein, supra note 153 at 420. 172 Vidmar, supra note 3 at 786.

40 However, after Tito’s death in 1981, a period of political instability began in the SFRY. Rising to power on a nationalist platform, Slobodan Milosevic began to strip away Kosovo’s autonomous status within the Republic of Serbia, until it was effectively terminated in the late 1980s.173 As a result of these actions, the demand of ethnic Albanians for Kosovo to become an independent state began to intensify. The dissolution of the SFRY, which began in 1991 and was largely completed by 1992, only strengthened the resolve of secessionists. During this period, Kosovo Albanians not only organized parallel political institutions, but also parallel systems of education and healthcare.174 This already volatile situation was escalated further after the Dayton Accords of 1995, which brought the ongoing war in Bosnia-Herzegovina to an end, but failed to address Kosovo in its resolution.175 The remainder of the decade witnessed ever-increasing violence, including the commission of numerous human rights violations by Serbian military and paramilitary forces operating within Kosovo. In response to the breakdown of a promising political settlement at Rambouillet, which sought to provide meaningful self-government for Kosovo while maintaining the territorial integrity of Serbia, NATO began a military campaign against Milosevic in the spring of 1999. While a discussion regarding the legality of this action is beyond the scope of this paper, it should be recalled that the justification for the intervention was made on humanitarian grounds. Serbian forces had perpetrated numerous human rights abuses and had driven several hundred thousand Kosovo Albanians from their homes.176

4.3 Kosovo after Milosevic: Straight Path to Independence? Following NATO’s intervention, Resolution 1244 was adopted under Chapter VII of the UN Charter on June 10, 1999.177 Pursuant to this resolution, the UN, along with other international institutions such as the EU and NATO, were responsible for establishing an interim administration for the governance of Kosovo. Specifically, the Resolution called for the deployment of international security forces, as well as the appointment of a UN Special Representative to manage the implementation of the international civilian presence.178 The stated goal of Resolution 1244 was for the UN Interim Administration Mission in Kosovo (UNMIK) to

173 Ibid. at 787. 174 Ibid. at 790. 175 Fierstein, supra note 153 at 422. 176 Ibid. 177 SC Res 1244, U.N.S.C. Resolution 1244, Annex 2, U.N. Doc. S/RES/1244 (10 June 1999) [“Resolution 1244”]. 178 Jean D’Aspremont, “Regulating Statehood: The Kosovo Status Settlement” (2007) 20 Leiden J. Int’l L. 649 at 650; Resoluton 1244, supra note 177 at para. 5-7.

41 work alongside and supervise Kosovo’s provisional authorities in establishing and organizing institutions of autonomous self-government. Despite this, Resolution 1244 did not attempt to define a future territorial status for Kosovo. Instead, it provided for a “political process leading toward[s] a final settlement.”179 However, the continuing lack of certainty regarding Kosovo’s future following the creation of UNMIK, prompted the Security Council to press the political process forward in late 2005. Following a year of unproductive negotiations with both Kosovo and Serbia, UN Special Envoy Martti Ahtisaari presented his findings to the President of the Security Council on March 26, 2007. His report, the “Ahtisaari Plan”, recommended independence for Kosovo “supervised by the international community.”180 In short, the proposed solution would endow Kosovo with many of the trappings of statehood, without actually referring to the endowment as such. Not surprisingly, Serbia rejected the plan and Russia threatened to veto any Security Council resolution expressing support for the supervised independence of Kosovo. Not surprisingly, the Security Council did not endorse the Ahtisaari Plan.181 After a further round of negotiations failed, Kosovo forced the issue by declaring its independence on February 17, 2008. In addition to its resounding condemnation of Kosovo’s unilateral declaration, Serbia requested an ICJ Advisory Opinion on the matter. In response, the UN General Assembly adopted Resolution 63/3, which put before the ICJ the question of whether Kosovo’s unilateral declaration of independence was “in accordance with international law.”182 The resulting Opinion will be touched on in the subsequent sub-sections.

4.4 A Case of ‘Remedial’ Secession? In order to properly assess and evaluate the practice of states in responding to secessionist situations, it needs to also be briefly considered whether Kosovo had a ‘remedial’ right to secede from Serbia under the circumstances. As noted in the framework provided above, the existence of a ‘remedial’ right to secession has found some support, although state practice is scarce, but it

179 Vidmar, supra note 3 at 800. Resolution 1244, supra note 177 at para. 11(a) and (f). 180 D’Aspremont, supra note 178 at 651. See, Special Envoy of the Secretary General on Kosovo, Report of the Special Envoy of the Secretary-General on Kosovo’s Future Status Delivered to the Security Council, U.N. Doc. S/2007/168 (26 March 2007) [The Ahtisaari Plan]. 181 Vidmar, supra note 3 at 802. 182 UNGA Resolution 63/3, U.N. Doc. A/RES/63/3, 8 October 2008, at 5.

42 is very tightly circumscribed and only arises in the most extreme cases.183 To evaluate the case of Kosovo, each of the three parameters qualifying such a right to secession needs to be addressed. In regards to the first parameter, there is evidence that the Kosovo Albanians have been denied a right to internal self-determination. First, it is generally accepted that the Kosovo Albanians do qualify as a ‘people’ for the purpose of the right to self-determination.184 Moreover, it is clear that Milosevic did not respect their rights throughout his time in power. For example, in 1989 Milosevic passed amendments to Serbia’s constitution that effectively stripped the province of Kosovo of the autonomous status it had established under Tito.185 In regards to the second parameter, it is also clear that throughout the Milosevic-era Kosovo Albanians were the deliberate targets of numerous human rights abuses. Such violations included instances of ethnic cleansing and mass executions. It has been estimated that by August 1998, Serb military and paramilitary forces had displaced over 300,000 Kosovo Albanians.186 Finally, in regards to the third parameter there are strong arguments to be made that Kosovo has thoroughly exhausted all other possible options open to it. The 1999 NATO intervention under the pretense of ending humanitarian suffering, the subsequent establishment of an international interim administration aimed at ‘divorcing’ Kosovo from Serbian control, and continuing outbursts of ethnic violence187 is strong evidence to suggest that Kosovo’s unilateral secession was indeed a last resort. On the other hand, there is an argument to be made that Kosovo’s remedial right to secession has abated in the time period following the NATO intervention.188 This line of reasoning holds that the circumstances responsible for the lack of internal self-determination and the human rights abuses were effectively ended by the NATO intervention in 1999. Furthermore, since then the situation between Kosovo and Serbia has changed. For instance, Serbia has been an active participant in all of the subsequent negotiations regarding Kosovo’s final status, and has even been willing to grant Kosovo a high degree of internal autonomy.189 Most importantly,

183 See Chapter 3.3 supra. 184 See Vidmar, supra note 3 at 809 for a detailed discussion of whether Kosovo Albanians are a ‘people.’ Or see Kushtrim Istrefi, Secession, Statehood and the Recognition of Kosovo (Germany: Lap Lambert Academic Publishing, 2010) at 23. In fact, even Serbia seems to have acknowledged this fact. Vidmar, supra note 3 at 839. 185 Geldenhuys, supra note 46 at 110. 186 Ibid. at 114. 187 Vidmar, supra note 3 at 801. 188 Vjeran Pavlakovic & Sabrina Petra Ramet, “Albanian and Serb rivalry in Kosovo: Realist and Universalist Perspectives on Sovereignty” in T. Bahcheli, B. Bartmann & H. Srebrnik, eds., De Facto States: The Quest for Sovereignty (London: Routledge, 2004) 74 at 88. 189 Vidmar, supra note 3 at 817.

43 the Milosevic regime is no longer in power, which, understandably, represented one of the strongest arguments for not allowing Serbia to re-assert its control over Kosovo. In essence, this reasoning suggests that a more persuasive argument for remedial secession would have been possible if Kosovo had declared independence immediately after the NATO intervention, rather than almost nine years later.190 This time lapse makes it more difficult to view Kosovo’s declaration of independence in 2008 as a truly last resort given the potential for greater, internal, autonomy in the post-Milosevic era. However, at the same time it would be difficult to state with any certainty that Serbia will not re-offend in the future thereby making the time lapse a moot point. Moreover, one could quite easily attribute the relatively peaceful, recent, co-existence between Serbia and Kosovo to the presence of UNMIK and NATO in the region as a constant buffer.191 The ICJ’s Advisory Opinion on Kosovo’s unilateral declaration of independence, issued on 22 July 2010, has failed to resolve the uncertainty surrounding the concept of remedial secession and its potential application to the case at hand.192 By approaching the General Assembly’s request in a restrictive manner the ICJ left several important questions unanswered including, whether the right to self-determination was applicable in this situation and, specifically, whether Kosovo did in fact have a right to unilaterally secede from Serbia under the circumstances. Although it remains unclear as to the exact circumstances required in order for remedial secession to become an entitlement, if in fact any situation could provide for such an entitlement, a persuasive argument can be made in favor of Kosovo. However, even if it is maintained that Kosovo is not in fact a clear example of remedial secession, this does not necessarily mean that its unilateral act was illegal.193 As established previously, although there is no right to unilateral secession under international law, the absence of such a right does not imply illegality.194 Rather, it is understood that international law neither explicitly recognizes nor prohibits acts of secession. Crawford sums up this line of argument by stating that, “secession is neither legal nor illegal in international law, but a legally neutral act the consequences of which are regulated

190 Pavlakovic and Ramet, supra note 188 at 88; Sterio, supra note 110 at 288. 191 Fierstein, supra note 153 at 438. 192 Accordance with International law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion [2010] I.C.J. Rep [Kosovo Advisory Opinion]. 193 Vidmar, supra note 3 at 818. 194 See Chapter 3.2 supra.

44 internationally.”195 This position was also upheld in the Supreme Court of Canada’s decision in the Quebec Secession Reference. In its ruling, the Court addressed the possibility of an unconstitutional or nonconsensual declaration of secession which results in a de facto secession. It held that the legality and legitimacy, and hence the success, of such a unilateral secession would be ultimately dependent on its recognition by the international community.196 While such recognition would not “provide any retroactive [legal] justification for the act of secession” the Court conceded that international law is prepared to acknowledge political realities, or factual situations, once the process of secession has effectively run its course and the independence of a seceding entity is established.197 If Kosovo can indeed be classified as a de facto secession then this is interesting from the perspective of recognition theory for a couple of reasons. First, it highlights the potential blending of the declaratory and constitutive theories. While the language of the Supreme Court of Canada is primarily declarative in nature when it speaks about recognizing factual realities – “recognition by other states is not…necessary to achieve statehood”198 – it also states that, “recognition is not alone constitutive of statehood.” In essence, the Court recognizes that while the process of recognizing a secessionist entity is largely declaratory, is also suggests that it has some constitutive aspects as well: “the viability of a would-be state…depends…upon recognition by other states.”199 Second, by premising the legitimacy of a de facto unilateral secession, such as Kosovo’s, on the recognition it garners from the international community, one is assuming that the recognition process itself is based on and guided by legal norms. While theoretically this is arguably the case, practically speaking the case of Kosovo suggests that this assumption is no longer sacrosanct. In order to evaluate these contentions, the issues of statehood and recognition will be examined in turn below.

4.5 Kosovo and Statehood 4.5.1 Kosovo and the Montevideo Criteria Regardless of how one qualifies the question of recognition, the issue of statehood remains a central consideration. Any entity wishing to be recognized as a state by the international

195 Crawford, “Creation of States”, supra note 2 at 390. 196 Quebec Secession Reference, supra note 142 at para. 155. 197 Ibid. at para. 155, 143-144. This is known as the principle of ‘effectiveness.’ 198 Ibid. at para. 143-144. 199 Ibid.

45 community has to meet certain factual criteria of statehood.200 In the case at hand, it is not entirely apparent if Kosovo meets the traditional definition of statehood. In regards to the first two criteria of the Montevideo definition, there is arguably little doubt that Kosovo has both a permanent population, as well as a historically defined territory.201 While some commentators posit that there is considerable doubt, most of these arguments can be dismissed. For example, Sterio argues that since Kosovo’s territory is heavily disputed by Serbia the criterion of territory cannot be met.202 Yet, both Cassese and Crawford both point out that the mere existence of ambiguity as to the territorial limits of a supposed state is not enough to defeat a claim to statehood. As long as the putative state exercises authority over some “coherent” territory its claim will not fail on this criterion alone.203 However, in regards to the requirement of an effective government there is a strong argument to be made that in the case of Kosovo this is significantly lacking. In order to fulfill this criterion there must not only exist a governmental authority, but this authority must also be able to exercise effective control over the entirety of its territory to the exclusion of all others. Since Resolution 1244 remains in force even after the declaration of independence it is questionable whether Kosovo’s government is sufficiently stable on its own.204 While it is clear that Kosovo has a central authority that is independent of Serbia, at the time of its unilateral declaration the Kosovo governing structure remained – and still remains – heavily reliant on an international administrative structure wielding significant powers in internal decision making, especially in regards to the provision of security for the region.205 This support is even explicitly acknowledged and welcomed in the Kosovar declaration itself: “until such time as Kosovo institutions are capable of assuming these responsibilities.”206 Yet, as stated previously, when the example of the Republic of Congo was explored, this requirement has been applied less stringently in practice than in theory and therefore might not defeat Kosovo’s claim.207 However, on the other hand Kosovo’s situation must be distinguished in that it is seeking statehood by way of an adverse claim, i.e. secession,

200 See Chapter 1.2 supra. These criteria as they apply to Kosovo will be largely assessed as of the moment Kosovo declared its unilateral independence. 201 Vidmar, supra note 3 at 819; Tancredi, supra note 155 at 177. 202 Sterio, supra note 110 at 289. 203 Cassese, supra note 159 at 190-193; Crawford, “Creation of States”, supra note 2 at 48-52. 204 Vidmar, supra note 3 at 820. 205 Sterio, supra note 110 at 289. 206 Kosovo Declaration of Independence, supra note 167 at Article 5. 207 See Chapter 1.3.1 supra.

46 meaning that this criterion is likely to be applied more strictly.208 Thus, it remains quite questionable as to whether Kosovo’s governmental structure is capable of meeting this benchmark. Similarly, the reliance on this substantial international presence also calls into question Kosovo’s ability to meet the fourth criterion, the capacity to effectively enter into relations with other states. As discussed above, this criterion has undergone much scrutiny as many academics consider this to be a consequence rather than a condition of statehood.209 Thus, capacity is very much tied to the issue of recognition in that this criterion will be largely fulfilled vis-à-vis those states that choose to recognize Kosovo.

4.5.2 Kosovo and Additional Criteria Despite Kosovo’s inability to effectively come within the meaning of the Montevideo definition of statehood, this does not necessarily imply that Kosovo is not in fact a state and hence should not be recognized. Rather, the case of Kosovo demonstrates that the way the international community views statehood is changing in practice along with the criteria by which it is being assessed.210 The result is that often new, additional criteria are being applied and taken into consideration when making determinations on statehood. For instance, an additional criterion that is often suggested, amongst academics, is ‘independence.’211 To reiterate, if the independence of a state is to be properly evaluated one needs to differentiate between formal and actual independence. In the case of Kosovo, which has been heavily reliant on a substantial international presence, the ability to distinguish its independence as ‘actual’ as well as ‘formal’ is not without some difficulty. According to the Crawford, situations where governmental competencies are exercised by another international actor, such as the UN, on the supposed state’s behalf there is no derogation from formal independence. However, Crawford also notes that “substantial illegality of origin” may indeed derogate from an entity’s actual independence in that it places the entity’s “title to be a ‘state’…in issue.”212 Given the uncertainty regarding the legality of Kosovo’s unilateral declaration and the degree to which it may be said that the international presence actually “externally controls” rather than “influences” Kosovo’s governing authority, it is unclear whether this criterion would be met or not. Another additional

208 See Chapter 1.3.1 supra; See footnotes 42-43 above and accompanying text. 209 See discussion above, Chapter 1.3.1 supra. 210 Grant, “Defining Statehood”, supra note 9 at 408. 211 See Chapter 1.3.1 supra, where this possible criterion is discussed. 212 Crawford, “Creation of States”, supra note 2 at 74.

47 criterion that is often suggested is the right of self-determination. As mentioned previously, there exists sufficient state practice to suggest that statehood can be denied to an otherwise effective entity if its creation was in violation of this right to self-determination. Despite the uncertainty surrounding Kosovo’s declaration it is arguable that its parliament did in fact act as a representative of the people of Kosovo. While it could be contended that no direct public consultation took place prior to the declaration of independence, one could point to the reasoning of the Badinter Commission in Opinion No. 4 regarding Bosnia-Herzegovina, which stated that there might exist circumstances where the will of the peoples is obvious and a formal public consultation is not strictly necessary.213 Kosovo could also be an example of such a situation. Perhaps the best example of the application of additional criteria to the case of Kosovo is in the political process that followed the adoption of Resolution 1244. For instance, in 2003 the Security Council endorsed the “Standards for Kosovo,” a document that was created under the auspices of UNMIK and the Special Representative to the Secretary-General.214 The paper laid out eight standards or ‘criteria’ that Kosovo had to implement or meet prior to the determination of its final status. Specifically, the document required the development of benchmarks in the areas of: democratic governance; the rule of law; freedom of movement; rights of ethnic communities; property rights; economic rights; protection of cultural heritage; and dialogue (with Serbia). In short, the document required the development of a democratic, multi-ethnic, and economically stable Kosovo before power was incrementally handed over to local authorities.215 Despite the fact that these standards were not met, their essence was largely reiterated in the subsequent Ahtisaari Plan, known as the Kosovo Status Settlement, which also laid out steps that Kosovo needed to take in order to ‘become’ an independent state. For instance, the Ahtisaari Plan required that Kosovo’s governing institutions must: be democratic; uphold the rule of law; respect human rights; multi-ethnic and multi-lingual in their makeup; and provide for an open market economy. These criteria were to be enshrined in the Kosovar constitution.216 Taken together, the constitutive language ascribed to these additional criteria leaves little doubt that had they been fulfilled Kosovo would have ‘qualified’ as a state - even if fulfillment of the Montevideo criteria had remained contentious.

213 Conference on Yugoslavia, Arbitration Commission, Opinion No 4, 11 January 1992: 92 ILR 173. 214 UNMIK, “Standards for Kosovo”, presented by the Special Representative of the Secretary-General, 10 December 2003. 215 Ibid.; D’Aspremont, supra note 178 at 650. 216 The Ahtisaari Plan, supra note 180; D’Aspremont, supra note 178 at 659.

48 While the above ‘criteria’ and the political process in which they embedded were either overlooked, in the case of the “Standards for Kosovo”, or not endorsed by the Security Council, in the case of the Ahtisaari Plan, it is nevertheless tenable that they were quite influential in regards to how the international community approached the issue of statehood in this case. For instance, in the Security Council meeting convened a day after Kosovo’s Declaration of Independence was adopted, all EU member states present made reference to the Ahtisaari Plan in rationalizing their decision to recognize Kosovo. The representative of the United Kingdom stated that its government was “convinced that the proposal of the UN Special Envoy [Ahtisaari]…is the only viable way forward.”217 France also responded similarly, stating that a supervised independence will allow the EU to ensure the emergence of “a Kosovo that is genuinely multi-ethnic and democratic, pursuant to the provisions of the Ahtisaari Plan.”218 Both Belgium and Italy also echoed these sentiments in their statements.219 Moreover, Kosovo’s Declaration of Independence itself adopted the Ahtisaari Plan as a part of its foundation as a state. Article 3 of this document prescribes that, “We accept fully the obligations…contained in the Ahtisaari Plan, and welcome the framework it proposes.”220 This not only demonstrates the continuing influence of the criteria set out in the Ahtisaari Plan, but also serves to highlight how the case of Kosovo has used additional criteria in a manner that has manipulated the ‘definition’ of statehood and thereby complicated the process of identifying new states. First, Kosovo demonstrates the various problems associated with the establishment and application of new standards. Given the fact that the traditional Montevideo criteria of statehood are no longer held as sacrosanct, as well as the general lack of consensus as to which additional criteria can, or should be applied,221 it is not surprising that when alternative standards are introduced in practice they are frequently vague and ill-defined. This is evident in the criteria outlined by the “Standards for Kosovo” document. While the criteria themselves are certainly laudable – democracy, rule of law, minority rights – they are nevertheless imprecise and thus difficult to objectively evaluate. For example, how can ‘democracy’ be evaluated without resorting to subjective benchmarks? This is particularly difficult considering that many existing

217 U.N. SCOR, 63d Sess. 5839th mtg. at 4-5, U.N. Doc. S/PV.5839, 18 February 2008, at 13 [Security Council Meeting on 18 February 2008]. 218 Ibid. at 20. 219 Ibid. at 9 and 10. 220 Kosovo Declaration of Independence, supra note 167, at Article 3. 221 See Chapter 1.3 supra.

49 states do not prima facie meet this criterion either.222 As a result, such criteria are often prone to being circumvented or simply ignored by states. When the “Standards for Kosovo” were developed a proviso was attached which stated that if the criteria were not adequately fulfilled then the status of Kosovo would not be reviewed.223 Yet, within a year the standards were reviewed and although they were determined to be largely unsatisfied, the Security Council decided in favor of moving forward with the political process in order to more quickly determine Kosovo’s final status.224 The rationale provided by the Special Envoy of the UN Secretary- General for the decision to take the next step was that the standards were “[too] highly ambitious.”225 This was supported by the Security Council, which argued that despite the inability of Kosovo to meet these standards the time had come to “move to the next phase” in determining its final status.226 If such justifications for abandoning criteria are sustainable in practice then one needs to question their supposed importance in the first place. Moreover, the fact that additional criteria can be so easily ignored by states does not only call into question their necessity but their legitimacy and credibility as well. The strength of the Montevideo criteria, despite their shortcomings, is that they had the weight of custom behind them and hence their application brought a measure of clarity and predictability to the state determination process.227 While this is not meant to suggest that additional criteria should not be relied upon, it does propose that their selective application should be avoided. For UNMIK to establish standards and then subsequently ignore them does little to reinforce the idea that statehood is a legal process, guided by legal norms. Similarly, even if the Ahtisaari Plan is fully implemented by the government of Kosovo, it will only be done so after Kosovo has already been recognized as a state by a significant part of the international community making the supposed statehood criteria contained therein a moot point. Directly stemming from the issues raised above is the related concern that the case of Kosovo has conflated the criteria that make, or create, a state, with those criteria that merely condition the act of recognition. As noted above, many of the criteria put forward following the

222 Murphy, supra note 56 at 556. 223 D’Aspremont, supra note 178 at 650. 224 Vidmar, supra note 3 at 801. 225 “Letter from Kofi Annan, Secretary General, United Nations, to the President, United Nations Security Council”, U.N. Doc. S/2004/982, 30 November 2004, at 4. 226 “Letter from Kofi Annan, Secretary General, United Nations, to the President, United Nations Security Council”, U.N. Doc. S/2005/635, 7 October 2005, at 10. 227 Worster, supra note 5 at 160.

50 adoption of Resolution 1244, particularly those contained within the Ahtisaari Plan, can be interpreted as criteria that are meant to condition Kosovo’s statehood. In fact, they have been referred to as such by both the international community and Kosovo itself.228 Moreover, many of the additional criteria set out in these documents have been imbued with the language of legality. For instance, in the Security Council Meeting on 18 February 2008, the representative for Belgium referred to the Ahtisaari criteria as the “so-called Ahtisaari laws…”229 Additionally, the inclusion of the Ahtisaari Plan in Kosovo’s constitutional order has, together with the acknowledgment of that fact by recognizing states, imparted on these additional criteria some measure of legal relevance. Yet, at the same time these criteria may just as readily be viewed as political conditions for recognition. Not only do many of these criteria contain subjective elements, they also largely presuppose the factual existence of a state. For example, the Ahtisaari Plan’s requirements of an “open market economy with free competition”, that Kosovo “will assume full…responsibility and accountability for, its airspace”, and that it will seek membership in international organizations, all appear to give countenance to the assumption that these are not conditions of statehood but of recognition.230 In fact, the Ahtisaari Plan does not even expressly mention the word “statehood” anywhere in its text. Instead it refers to criteria that will help Kosovo to develop as a “society.”231 Additionally, both the “Standards for Kosovo” and the Ahtisaari Plan are both political documents produced by a process that has been acknowledged as being political in nature.232 Arguably, the reason for this conflation is that as additional criteria are added to the statehood equation the subjective or political dimension of the process tends to increase.233 This serves to undermine the distinction between the legal criteria that create a state and the political criteria that condition the act of recognition. Thus by confusing largely political considerations with legal requirements, these additional criteria have ‘brought’ issues normally associated with

228 See Chapter 4.5.2 supra. 229 Security Council Meeting on 18 February 2008, supra note 217 at 9. 230 Ahtisaari Plan, supra note 180 at Art. 1.4, Art. 7 of Annex VIII, and Art. 1.5. 231 Ibid. at Art. 1. 232 Resolution 1244, supra note 177. “Overseeing the transfer of authority…under a political settlement.” See D’Aspremont, who also describes both documents as ‘political.’ D’Aspremont, supra note 178 at 652. Although intrinsically non-legal in character this does not mean that such documents are not capable of influencing the behavior of states. 233 Grant, “Defining Statehood”, supra note 9 at 452. To clarify, this does not mean to suggest that the existing Montevideo criteria are completely free of such subjectivity, but instead to purpose that the more inherently vague criteria that one introduces into the process the greater the possibility that the overall result is much more subjective in nature.

51 recognition into the realm of statehood. Not surprisingly this becomes problematic during the recognition of new states, as this blurring has consequences for both statehood and recognition theory and how they are applied to situations such as Kosovo.

4.5.3 Consequences for Statehood and Recognition From the perspective of statehood, the lack of clarity just described means that the addition of new criteria has not made it abundantly obvious which criteria are being applied to assess Kosovo’s statehood – if any are being actually applied at all. If the traditional Montevideo criteria are being applied, then it is arguable that they have not being fully satisfied prior to Kosovo’s unilateral declaration. If additional criteria are being considered, such as those laid out in the Ahtisaari Plan, then this means that the meaning of ‘state’ has changed in practice and opinion. However, even if that is the case it is not clear that these new criteria have actually been applied since their fulfillment appears to be largely aspirational given that states have recognized Kosovo without these standards being satisfied first. This brings into question the underlying legal nature of these criteria. If, however, these additional criteria are in fact merely conditions of recognition, then that brings us back to the issue of what are the standards being used to asses Kosovo’s statehood in the first place. Thus, the introduction of multiple vague criteria into the definition of statehood, such as those laid out in the Ahtisaari Plan, increases the risk that the process becomes unhinged from the rule of law as states exhibit a growing tendency to closely regulate statehood and influence as much as possible the emergence of new state entities.234 Arguably one of the concerns made clear by the recognition of Kosovo is that state practice has increasingly tended to focus exclusively on the act of recognition and its effects, and to shift its attention away from the indicia of statehood.235 Thus, Kosovo was able to attain immediate recognition although arguably it had not yet met the legal requirements of a state. From the perspective of recognition, the blurring of the distinction between the two sets of criteria in the case of Kosovo suggests that it is potentially being recognized (or not recognized) on grounds that in the past had little to do with statehood. This is not necessarily problematic as long as the additional statehood criteria in question furnish adequate legal grounds for such determinations.236 However, if, as noted previously, the decision to recognize is

234 D’Aspremont, supra note 178 at 653. 235 Crawford, “Creation of States”, supra note 2 at 19. 236 Grant, “Defining Statehood”, supra note 9 at 452.

52 premised on requirements beyond those of simple statehood, which are inspired by political and not legal considerations, then this risks undermining the legitimacy that an act of recognition is supposed to confer on a putative state.

4.6 Kosovo and Recognition On 18 February 2008, a day after Kosovo’s unilateral Declaration of Independence, the Serbian President, in a statement before the Security Council, insisted that Kosovo was still its southern province and characterized Kosovo’s unilateral action as illegal: “Serbia will not accept [this] violation of its sovereignty and territorial integrity…”237 While there was no doubt that Kosovo had declared its independence without the consent of the parent state, within 48 hours of so doing major European powers, including France, the United Kingdom, and Germany, along with the United States and Australia, had nevertheless already formally recognized Kosovo as a state.238 In fact, as of the time this paper was written, seventy-five states have formally recognized Kosovo, including twenty-two of the twenty-seven EU member states.239 Considering that the international community has typically been quite reluctant to recognize seceding entities where constitutional or parental approval has been outstanding, the immediate reaction of these states has been revealing. Specifically, while a persuasive argument could be made in favor of Kosovo’s unilateral secession, as discussed above, none of the recognizing states have thus far made explicit reference to such an argument in their declarations. Instead states have purposely avoided such language. For instance, the United States explicitly stated that its recognition of Kosovo’s independence “is based upon the specific circumstances in which Kosovo finds itself.”240 This was echoed by the United Kingdom, which asserted that although “it is not ideal for Kosovo to become independent without the consent of Serbia…[these] unique circumstances…make this a sui generis case.”241 In essence, these statements suggest that regardless of whether Kosovo can be considered a case of remedial secession or not, states are choosing not to recognize the situation as such. Instead the language

237 Security Council Meeting on 18 February 2008, supra note 217 at 5. In fact the Serbian government had even preemptively adopted a resolution decreeing Kosovo’s Declaration of Independence “null and void” on February 14, 2008. 238 The US, France, and UK recognized Kosovo on the same day as its declaration, with Australia recognizing it on 19 February, and Germany on 20 February. See kosovothanksyou.com in order to view the recognition dates at a glance. 239 The list of recognizing states now includes Italy, the Netherlands, Belgium, Japan, and Canada. 240 Security Council Meeting on 18 February 2008, supra note 217 at 19. 241 Ibid. at 14.

53 employed by the majority of states suggests that Kosovo is being recognized as a “unique” or de facto situation. For example, Canada, in its recognition statement, referred to Kosovo as a “unique case” occurring under “unique circumstances” implying that it “does not constitute any kind of precedent.”242 Further to this suggestion are the words of the Italian representative to the aforementioned Security Council meeting on 18 February, “Kosovo’s independence is today a fact.”243 If this is indeed how the situation in Kosovo can be classified – that is, as a de facto secession – then, recalling the Canadian Supreme Court’s comments in the Quebec Secession Reference case, the success of such a unilateral action is highly dependent on the garnering of recognition from the international community. However, by premising the legitimacy of Kosovo’s secession on the issue of recognition, one is assuming that the process itself is guided by a specific legal theory or set of norms which would bring a measure of certitude and predictability to the outcome. Yet, the case of Kosovo demonstrates that this presumption is not valid, and in fact has served to undermine the role of recognition as the primary legal instrument for validating new claims to statehood.

4.6.1 Declaratory or Constitutive? In trying to reconcile the international response to the unilateral declaration of Kosovo with the principle of recognition, it quickly becomes apparent that neither the declaratory nor the constitutive theories can effectively do so. Pursuant to the declaratory view, recognition is merely the acknowledgment of a preexisting situation.244 Considered by many states to be a largely political act, recognition is viewed as having a status-confirming effect in that it simply provides evidence of an objective legal situation – the factual existence of a state. Such language can be found in the statements made by several of the states that recognized Kosovo. In formally recognizing Kosovo, Canada’s communication outlined the need to acknowledge “this new international reality.”245 Echoing Canada, Belgium stated that while it regretted the fact that a negotiated solution could not be found, “we cannot ignore the reality on the ground…”246 Even more explicitly, the Italian government stated that the existence of Kosovo “is a new reality that

242 Foreign Affairs and International Trade Canada, Canada Joins International Recognition of Kosovo, 18 March 2008. Most of the other EU members that have recognized Kosovo have also noted the “uniqueness” of the situation. 243 Security Council Meeting on 18 February 2008, supra note 217 at 10. 244 See Chapter 2.3 supra. 245 Foreign Affairs and International Trade Canada, supra note 242. 246 Security Council Meeting on 18 February 2008, supra note 217 at 8.

54 we must face and acknowledge.”247 Thus, these statements reflect one of the basic tenants of the declaratory theory: the issue of whether or not an entity is a state is entirely independent of the issue of recognition.248 Hence, according to the declaratory theory even though many states have not yet recognized Kosovo this would not affect its legal status as a state. However, and this is where the application of the declaratory theory to Kosovo starts to encounter some difficulties, this conclusion assumes that there exist workable criteria for statehood that allows for precise and predictable determinations as to which entities are in fact states. As noted above, the addition of new criteria in the case of Kosovo has sufficiently muddled the situation, making it difficult to determine which criteria are being used to assess Kosovo’s claim to statehood. For instance, none of the recognition declarations canvassed make reference to the traditional criteria of statehood, and all mentions of the Ahtisaari criteria, if they are indeed indicia of statehood, only speak of their fulfillment as a goal going forward.249 Given Kosovo’s rather dubious qualities of statehood it is clear that state discretion, more commonly associated with the constitutive position, played a more significant role in the recognition process then is typical of the declaratory model. Therefore, if the declaratory theory is indeed the one being utilized by states vis-à-vis Kosovo then its claim to being a more legal process which endeavors to limit state discretion in recognizing states does not accord with state practice in this case. Finally, the application of the declaratory theory is problematic because although it downplays the legal consequences that flow from an act of recognition, this does not adequately reflect the immediacy and importance being placed by states on the recognition of Kosovo. In other words, if recognition were nothing more than a formality it would not explain the international community’s continuing concern about determining a final status for Kosovo.250 For example, in his statement of formal recognition the President of the Swiss Confederation stressed that, “the clarification of the status of Kosovo” is a necessary precondition “for the economic and political development” of the region.251 Italy’s statement before the Security Council also speaks to this sense of immediacy: “we intend, together with the majority of EU

247 Ibid. at 10. At the same meeting the French representative also stated that the international community needs to acknowledge “a new reality.” Ibid. at 20. France’s foreign minister also stated that the declaration was a “victory for common sense.” NY Times, “Kosovo is Recognized but Rebuked by Others”, 19 February 2008. 248 Berlin, supra note 22 at 558. 249 See Chapter 4.5.2 supra. 250 Hillgruber, supra note 1 at 494. 251 Federal Department of Foreign Affairs, “Statement by the President of the Swiss Confederation, Pascal Couchepin”, 27 February 2008.

55 member states, to proceed swiftly with the recognition of Kosovo’s new status of independence…”252 Similarly, in its statement before the Council, the French representative attached much significance to the fact that the majority of other EU member states were currently in the process of preparing statements of their own and that a great many more recognitions could be expected “in the days and weeks to come.”253 This seems to suggest that Kosovo’s mere existence as a state may not substantially matter, if states are unwilling to treat it as having the rights and obligations of a state. Thus, despite the utilization of language by states that suggests the declaratory theory is being applied to Kosovo, the lack of clear statehood criteria and the immediacy being attached to the act of recognition makes it difficult to reconcile this model with state practice in this case. This leads one to ask whether Kosovo’s statehood was indeed constituted by those states that have formally recognized it. According to the constitutive theory, recognition is a requirement of statehood meaning that Kosovo is not a state, at least in a legal sense, until the international community formally recognizes it as such.254 Hence, accordingly Kosovo does not possess the rights or the obligations that flow from statehood, regardless of whether it meets the other criteria of statehood, until other states recognize its existence. This perspective finds some support in the statements of recognizing states. In the text of a letter to the President of Kosovo, George W. Bush states that with its recognition of Kosovo, the United States is now willing to “establish diplomatic relations” with the new state.255 Further to this comment, the United States also stated to the Security Council that the recognition of Kosovo “by a substantial number” of states has “ensured” Kosovo’s existence as a state.256 Employing similar language in its own declaration, President Nicolas Sarkozy asserted that with its extension of recognition “our two countries [could] establish diplomatic relations.”257 Both the Swiss declaration and the German declaration also echo this idea that recognition constitutes a condition precedent to the “willingness” of these states to enter into “enter into diplomatic relations” with Kosovo.258 In

252 Security Council Meeting on 18 February 2008, supra note 217 at 10. 253 Ibid. at 19. 254 See Chapter 2.2 supra. 255 The White House, “Letter from the President to the President of Kosovo”, 18 February 2008. 256 Security Council Meeting on 18 February 2008, supra note 217 at 18-19. 257 N. Sarkozy, “Kosovo: Lettre du president de la Republique addressee a M. Fatmir Sejdiu, president du Kosvo”, 18 February 2008. 258 Federal Department of Foreign Affairs, supra note 251; Die Bundesregierung, “German Cabinet approves recognition of Kosovo: Official Statement”, 20 February 2008.

56 light of these statements it is clear that many of the states that have recognized Kosovo do attach some legal consequences to their decision, which supports the notion that putative states only acquire certain rights as a result of the consent of existing states. Similarly, many of those states that have refused to extend recognition to Kosovo, treat their decision as having a status-denying consequence. In other words, they regard their non-recognition as an act that withholds the rights, competences, and privileges that are inherent to statehood. For instance, this understanding is implicit in the approach of non-recognizing states such as Russia, which has continued to refer to Kosovo as a “province” of Serbia, and thus argues that all of its “institutions of self-government” should be dissolved.259 Moreover, both Russia and Serbia have called on the United Nations and the international community to “declare the unilateral…act of secession… null and void” and that other states have the obligation not to recognize this illegality.260 This implied request for collective non-recognition, which has not been forthcoming and, given the number of recognitions extended thus far is, is unlikely to ever materialize, nevertheless serves to suggest that states consider the act of recognition to have some sort of a constitutive effect. However, just like the declaratory model, the constitutive theory also encounters problems in attempting to explain the international response to Kosovo’s independence. Perhaps the main difficulty is that if states are in fact consciously applying the constitutive theory to the case at hand it would simultaneously allow for Kosovo to be considered both a state by the seventy-five recognizing states, and a non-state by every other non-recognizing state. This would mean that Kosovo’s legal status, including its corresponding rights and obligations at the international level, would only be effective vis-à-vis those states which have recognized it. Can Kosovo be considered as having and not having an international legal personality at the same time? Clearly both recognizing and non-recognizing states alike would find such uncertainty undesirable. All of the statements canvassed express the implicit desire for the international community to settle the situation in one way or the other, not both. For example, the United Kingdom desires “that the Security Council…can recover its unity of purpose on this issue” in order to bring a measure of “stability” to the situation.261 Likewise, China, which has not recognized Kosovo, asserted that an “acceptable solution…should be the common goal of all the

259 Security Council Meeting on 18 February 2008, supra note 217 at 6. 260 Ibid. at 5. 261 Ibid. at 14.

57 parties concerned.”262 While such statements may appear to be little more than political posturing, it is arguable that states wish to avoid issues that the constitutive theory brings to the fore, such as how many acts of recognition are required in order to allow Kosovo to ‘achieve’ statehood? Secondly, despite the statements made by states that suggest recognition has a constitutive effect, there is no evidence to suggest that states that have not recognized Kosovo regard it as terra nullius. This can be seen in the words of Russia, which has urged the UN to annul “the decisions of the Pristina government organs” and to take “severe administrative measures against them.”263 In so stating, the implication is that some form of international legal personality must exist in the entity that is Kosovo in order for it to be held in violation of international law. Thus, despite Russia’s unwillingness to recognize Kosovo’s de jure existence, it is arguable that it does nevertheless acknowledge its de facto existence. Such a conclusion is difficult to square with the theory of the constitutive model. Therefore, despite the constitutive language being employed by states it does not accord with state practice in this case in that its application could lead to a situation where Kosovo simultaneously is and is not a state, and because recognizing and non-recognizing states alike appear to acknowledge Kosovo’s de facto, if not its de jure, existence.

4.6.2 A Mixing of Theories? It is clear from the foregoing that both theories of recognition are difficult to reconcile with the situation in Kosovo. The reasoning and, more importantly, the specific language being utilized by states to explain their decision to extend or withhold their recognition from Kosovo speaks to the fact that a strict demarcation between the two theories is no longer reflected in practice. Instead, the case of Kosovo suggests a mixing of elements from both theories. In other words, while many recognizing states still purport to be applying the declaratory theory, their corresponding state practice suggests the incorporation of constitutive elements. State practice, which appears to support each theory simultaneously, is not new. If one looks at the behavior of states during the so-called dissolution of the SFRY it is clear that the close involvement of the European Community in the process resulted in many constitutive effects.264

262 Ibid. at 7. 263 Russian Foreign Ministry as cited in, USA Today, “Russia Denounces Kosovo Declaration”, 18 February 2008. 264 Vidmar, supra note 3 at 844.

58 As discussed previously,265 in response to the unilateral declarations of independence by Slovenia and Croatia in June 1991, the EC Member States adopted the EC Guidelines as well as the Declaration on Yugoslavia. The latter specifically invited all Yugoslav Republics wishing to be “recognized as Independent States” to apply.266 Although attempting to coordinate the European Community’s response to the break-up of the SFRY, the Badinter Commission expressly stated that it did not perceive its role to be a state-creating body and furthermore held that the act of recognition is purely declaratory.267 This position is supported by its reasoning in Opinion No. 11, in which the Commission clarified the dates upon which the Yugoslav Republics emerged as states. For instance, the Commission held that both Slovenia and Croatia became states on 8 October 1991.268 In all cases, the date of emergence of the nascent Yugoslav Republics as states predated their recognition.269 Prima facie, this suggests the endorsement of a purely declaratory theory of recognition by the EC in that the issue of statehood is not dependent on the issue of recognition. Yet, despite the use of this declaratory language by the Commission, the actual approach applied was much more constitutive in nature. When the Badinter Commission issued Opinion No. 11 on 16 July 1993, Slovenia, Croatia, and Bosnia-Herzegovina had already been recognized as states by the international community and had been admitted to the United Nations. While at that moment their statehood was assured, on 8 October 1991 their status was much more controversial, particularly in the case of Croatia and Bosnia where it is arguable that the criteria for statehood remained unfulfilled.270 Moreover, regardless of whether the EC Guidelines are properly viewed as additional criteria for statehood or merely conditions for recognition, it is arguable that neither Croatia nor Bosnia fully satisfied these criteria either. Hence, in practice the international recognition of these new entities may have had a constitutive effect rather than a declaratory one. The issue is whether the intermingling of these two theories in state practice is indicative of the development of a new intermediary theory, as advanced by some commentators such as Lauterpacht, or whether something else is at work. Lauterpacht’s theory attempted to merge

265 See Chapter 2.5 supra. 266 Declaration on Yugoslavia, supra note 124. 267 Conference on Yugoslavia, Arbitration Commission, Opinion No. 1 [Disintegration of the SFRY], 29 November 1991, 92 ILR 165. 268 Conference on Yugoslavia, Arbitration Commission, Opinion No. 11, 16 July 1993, 92 ILR 189. 269 As noted previously, Croatia and Slovenia both began to garner recognition in January 1992, following the Commission’s findings set out in Opinions No. 5 and 7 (respectively). 270 See discussion in Chapter 2.5 supra.

59 together various aspects of the two schools of thought primarily by imposing a duty on the international community to recognize a new state if the Montevideo criteria of statehood were fulfilled. As alluded to previously271, trying to identify a so-called intermediary theory is problematic as the case of Kosovo not only demonstrates that the ability to reconcile the often- disparate contentions of the two competing theories of recognition is difficult, but because it also points to a much less ‘formal’ explanation. In other words, the case of Kosovo does not represent a balancing of the constitutive and declaratory effects of recognition. Rather, the preceding discussion appears to speak to their rather haphazard application. The establishment of an intermediary premise would require evidence of some sort of theoretical framework that could be usefully applied to similar future situations. Instead, it is this paper’s contention that Kosovo suggests a much more random result with states either paying no more than cursory lip-service to a particular theory or simply not intending to apply any particular theory at all. In short, recognition theory has increasingly become a mechanism by which states can regulate and create desired political outcomes. As has been noted, politics has always had some role to play in the field of recognition. Given the fact that the recognition process remains a largely bilateral one, with each and every individual state acting as its own arbiter vis-à-vis new claims to statehood, discretion and the realpolitik associated with international relations has always been a factor.272 However, this discretion has always arguably been tempered by its attachment to one of the two theoretical frameworks of recognition. The inability to reconcile either theory with the case of Kosovo suggests that this is no longer the case. As a result, the principle of recognition has been arguably manipulated and ultimately detached from its former normative moorings. Once again, in order to flesh-out this supposition, consideration of state practice during the dissolution of the SFRY is insightful. For instance, despite the semi-legal appearance of the recognition process, conditioned in theory by the EC Guidelines, the political nature of the decisions ultimately taken by states in practice, all the while citing some combination of the declaratory and constitutive theories, was quite clear.273 To begin with, the text of the EC Guidelines declared that the European Community was prepared to recognize the new Yugoslav Republics as states “subject to the normal standards of international practice.” Yet, it also emphasized that the “political

271 See Chapter 2.4 supra. 272 Worster, supra note 5 at 149. 273 Berlin, supra note 22 at 564.

60 realities in each case” would be considered.274 Moreover, by conditioning the recognition of the new entities on a number of additional requirements beyond those of simple statehood, many of which were difficult to objectively evaluate, increases the likelihood that the process was influenced by political considerations.275 Further to this point, the fact that criteria, in both the EC Guidelines and the Declaration on Yugoslavia, were fashioned specifically for states emerging from Yugoslavia, and not for future situations as well, speaks to the detachment of the decision to recognize from any generally applicable legal theory. The discretionary nature of this process is evidenced by the fact that Croatia, Slovenia and Bosnia-Herzegovina were all recognized with little actual regard being paid to the EC Guidelines or to the Declaration on Yugoslavia. Yet, Macedonia, which largely met the criteria, had its recognition delayed due to concerns about its choice of name. As accurately summed up by one Slovenian official, recognition was “only a matter of choosing the right moment and the right circumstances.”276 Thus, not only did the introduction of additional criteria shift the EC’s focus away from the traditional indicia of statehood, but their application was clearly influenced by political outcomes: recognition was granted when these additional conditions were not met, and was withheld when they clearly were. The use of recognition in this manner is evident in the case of Kosovo as well, and its consequences are potentially even more problematic for future secessionist situations. It is clear that in deciding to recognize or not recognize Kosovo, the language used by many states oscillated between the acknowledgement of a factually pre-existing state, and the ‘creation’ of a new state entity made possible through the vesting of all the corresponding legal rights and obligations of statehood. The reason behind this apparent waffling is that the international community is trying to achieve and justify a specific desired political outcome(s), while still simultaneously referencing the language of legality. Hence, states are jumping back and forth in their reasoning in order to arrive at a pre-determined end. This end appears to be geo-political. Specifically, the declarations of many states indicate that the goal of recognition is to ensure some pre-determined form of stability. For instance, in its statement before the Security Council the United States emphasized that the development of Kosovo as an independent state is crucial to ensuring “that the entire region of South-East Europe can move…towards a democratic,

274 EC Guidelines, supra note 58. 275 See discussion of EC Guidelines Chapter 2.5 supra. 276 Ana S. Trbovich A Legal Geography of Yugoslavia’s Disintegration (NY: Oxford University Press, 2008) at 253.

61 prosperous and stable future.”277 Similarly, the Belgium representative at the same meeting stated that Kosovo’s “independence effectively and finally sets out the necessary conditions…for stability and prosperity for the entire region.”278 Italy’s statement also echoes this sentiment: “independence is the only viable option to deliver stability and security…in the region as a whole.”279 Finally, the public recognition declaration of the German Federal Government makes the link between recognition and stability even more explicit by expressing that it “is convinced that [the] rapid recognition of the Republic of Kosovo by as many states as possible will serve to promote lasting stability in the region.”280 Needless to say this form of stability clearly favors, or benefits, some state actors more than others. Undoubtedly aware of this fact, many of the above statements also extend some political ‘carrots’ to Serbia as well, again in the interests of ensuring a stable situation. For example, the UK representative to the Security Council stated that, “a stable and prosperous Serbia [without Kosovo], integrated into the family of European nations, is important for the stability of the region…[the UK] calls on [Serbia’s] leaders to…focus on that prize.”281 These hints at possible EU membership for Serbia if it cooperates is made even more explicit in France’s statement: “the future of the Western Balkans lies in the European Union and that Serbia’s progress towards the European Union [could] be accelerated.”282 When considered together with the previous involvement of a number of these same recognizing states in the failed negotiating process leading up to Kosovo’s declaration of independence it should not be surprising that the eventual outcome was greatly influenced at the political level. Indeed, several media reports leading up to Kosovo’s declaration suggest that the timing was coordinated between Western officials and the new Republic.283 Italy’s representative to the Security Council was quite straightforward about this: “We certainly can not say that yesterday’s declaration…caught any one of us unprepared…[it was the] result of long and intensive efforts by the international community…”284 Hence, in the case of Kosovo the legal language of recognition was largely employed as a “vehicle for political choice.”285

277 Security Council Meeting on 18 February 2008, supra note 217 at 19. 278 Ibid. at 8. 279 Ibid. at 10. 280 Die Bundesregierung, supra note 258. 281 Security Council Meeting on 18 February 2008, supra note 217 at 13. 282 Ibid. at 20. 283 NY Times, “Here Comes Kosovo”, 14 February 2008; NY Times, “U.S. and Germany Plan to Recognize Kosovo” 11 January 2008. 284 Security Council Meeting on 18 February 2008, supra note 217 at 9. 285 Worster, supra note 5 at 116.

62 This politicization of the recognition process means that the factors that will be taken into account, or not taken into account as the case may be, by states when deciding to extend recognition to new entities will largely depend on the given situation. In order to ensure that the goals of its recognition decision are met, different cases will require the application of different ‘legal’ criteria. This much seems evident in the situation at hand. As discussed previously, the Ahtisaari Plan, and the criteria outlined therein, has been continually invoked by those states that have recognized Kosovo in order to legitimize their decisions. However, given the uncertainty surrounding the legal nature of these criteria, and Kosovo’s rather dubious qualities of statehood it is arguable that the act of recognition itself has become detached from a clear normative framework. In short, recognition, at least in the context of secessionist situations, has been deprived of any inherent legal meaning. This is not to say that recognition no longer results in any consequences. Clearly it does. Even supporters of the declaratory theory recognize that Kosovo’s factual existence, as a state may not amount to much if the international community is unwilling to treat it as such. Hence, the utility of recognition in “establishing lawful relationships” between states remains.286 Nevertheless, its detachment from a clear normative framework does undermine the legitimacy that an act of recognition is meant to carry with it. For Kosovo, the importance of this legitimacy should not be understated. If Kosovo is indeed an example of a de facto secession, then recalling the Quebec Secession Reference, its ultimate success is tied to the recognition it receives from other states and the corresponding legitimacy this confers. In the absence of such legitimacy, Kosovo’s legal status as a state may be permanently overshadowed given the lack of overwhelming support in favor of its unilateral independence. In other words, the detachment of recognition from a legal framework means that there will even less certainty and predictability to the process going forward. This is not only problematic for future secessionist states, but for the international community generally. The ability to confer or withhold recognition on the basis of political criteria or conditions that traditionally had little, if anything, to do with statehood could potentially reduce the process to a game of power politics.

286 Ibid.

63 Conclusions: The Victory of Politics? In light of the ongoing uncertainty surrounding the legal status of Kosovo, this paper has examined the manner in which states have chosen to exercise their discretion in deciding whether to recognize Kosovo as a new state. In so doing, it has become clear that the concept of recognition in international law constitutes a contested space between law and politics. While in theory recognition is presented as providing for a strict division between a legal constitutive framework and a political declaratory framework, in state practice this has proven to be quite illusory. Instead, it is tenable that the act of recognition itself has been manipulated and detached from its former normative moorings and thus has increasingly become a mechanism by which states can control and produce desired outcomes. The use of recognition as such, is particularly germane in the context of state secession. While the exploration of the legality of Kosovo’s unilateral secession was beyond the scope of this paper, the impact that this legal uncertainty has had on the concept of recognition, and how states approach this matter has been significant. Despite the silence of the ICJ’s Advisory Opinion on the issue of remedial secession and its potential application to the case of Kosovo, this does not necessarily mean that Kosovo’s action was illegal. Instead, if Kosovo can indeed be classified as a de facto secession, as this paper suggests that it could be, then the legitimacy of such a unilateral act is largely premised on the issue of recognition and the corresponding support of the international community that the extension of recognition demonstrates. However, in making such a premise one is assuming that the recognition process itself is based on and guided by a normative framework. This paper has argued that while theoretically this arguably remains the case, practically speaking the case of Kosovo suggests that this assumption is no longer sacrosanct. From the perspective of statehood, the addition of new criteria, such as those outlined in the Ahtisaari Plan, has further muddled the situation, thereby making it difficult to precisely determine which criteria, if any, are being used to assess Kosovo’s claim to statehood. The case of Kosovo arguably demonstrates that the introduction of additional criteria into the definition of statehood increases the risk of the process as a whole becoming detached from the rule of law as individual states exhibit a growing tendency to more closely regulate statehood in order to influence – as much as possible – the emergence of new states. Consequently, one of the concerns made clear by the decision of whether to extend recognition to Kosovo is that state

64 practice has increasingly tended to focus exclusively on the act of recognition and its effects and in so doing, shift its attention away from the indicia of statehood. In essence, then, while one can still point to the existence of criteria that supposedly guide the process of statehood, in practice such criteria are often either devoid of normative content or merely ignored. From the perspective of recognition, it is clear that both the declaratory and the constitutive theory are difficult to reconcile with the situation in Kosovo. The language and reasoning employed by states in attempting to explain their decision to extend or withhold recognition from Kosovo suggests a mixing of elements from both theories. However, rather than constituting a new intermediary theory the case of Kosovo speaks to a more random intermingling and application of the two. In other words, the case of Kosovo suggests that states have deployed recognition as a political tool in order to ensure that a ‘right’ scenario results in an independent state, and that a ‘wrong’ scenario does not. This logic suggests that different cases require the application of different ‘legal’ criteria, which will inevitably produce different results. However, given the uncertainty surrounding the legal nature of these criteria, it is arguable that the case Kosovo demonstrates that recognition, at least in the context of secessionist situations, has become deprived of any inherent normative meaning. For a seceding state, this is potentially problematic. If the very act of recognition is increasingly viewed as merely a tool in the hands of governments to accomplish certain geo- political goals, then the legitimacy of a de facto unilateral secession itself may be undermined. Kosovo is a clear example of this dilemma. Although Kosovo has been recognized by seventy- five states, its secessionist claim still remains shrouded in controversy largely because of the not unfounded perception that its independence is primarily the result of political considerations and not the application of a clear legal framework. In light of the above, one might ask whether the case of Kosovo represents the victory of politics over law within the context of the recognition of new states. Recent state practice suggests that there might be some support for this premise. Specifically, in the immediate wake of Kosovo’s unilateral declaration Moscow choose to recognize the independence of two small territories along Georgia’s northern border with Russia. Echoing the rationale used by many Western leaders in regards to Kosovo, the Russian Parliament recognized the secession of South

65 Ossetia and Abkhazia from the state of Georgia.287 While it is beyond the scope of this paper to go into the background of these secession claims, it is the reaction of the international community to their unilateral acts that is worthy of brief mention here. Despite the fact that both the Abkhazian and South Ossetian authorities were quick to make favorable comparisons with the unilateral declaration of Kosovo, most Western or EU states, including France, the United Kingdom, Germany, Canada, and the United States were quick to denounce Russia’s recognition of the two contested regions.288 The statement made by President Bush, argues representatively, that Russia’s actions violates the principle of territorial integrity and undermines Georgian sovereignty.289 While it would be incorrect to suggest that the situation in the two breakaway Georgian territories is the same as the situation in the Balkans, it is nevertheless interesting to note that the majority of those states that have recognized the latter justify their positions against recognizing South Ossetia and Abkhazia using the language of territorial integrity which they do not view as a legal constraint in their recognition of Kosovo. For these states, the situation of Kosovo was simply “unique.”290 For its part, Russia, in order to garner an increase in the number of states willing to extend recognition to the two Georgian territories, has attempted to ‘buy’ international support.291 For example, in late 2009 Russia offered the small atoll state of Nauru $50 million (US) in aid if in return in would recognize and establish relations with South Ossetia and Abkhazia.292 Even though this paper exercises caution in deriving too much from this chain of events, it nevertheless remains arguable that this situation seems to support the notion that the process of recognition has been largely relegated to the realm of politics. The continuing uncertainty surrounding the legal status of Kosovo has seemed to prompt a “war of recognitions”, which has little, if anything, to do with the application of a clear normative framework and everything to do with the application of geo-political considerations.

287 EU Observer. “EU Leaders Condemn Russia in Shadow of Kosovo.” EU Observer (26 August 2008), online: EU Observer.com, . 288 Geldenhuys, supra note 46 at 85. 289 The White House, “President Bush Condemns Actions Taken by Russian President in Regards to Georgia”, 26 August 2008. 290 EU Observer, supra note 287. 291 As of the time this paper was written, only 4 (Russia, Nicaragua, Venezuela, Nauru) states (possibly 5 if one includes Vanuatu which has oscillated back and forth on the issue) have recognized the two new republics. 292 The Guardian, “Tiny Nauru Struts World Stage by Recognizing Breakaway Republics”, The Guardian UK (14 December 2009), online: The Guardian UK, < http://www.guardian.co.uk/world/2009/dec/14/nauro-recognises- abkhazia-south-ossetia>.

66 Bibliography

INTERNATIONAL INSTRUMENTS

Convention on the Rights and Duties of States, 26 December 26 1933, 49 Stat. 3097, 165 L.N.T.S. 19.

Declaration on Principles of International Law concerning Friendly Relations and Co- operation among States in accordance with the Charter of the United Nations, GA Res. 2625(XXV), UN GAOR, 25th Sess., UN Doc. A/RES/25/2625 (1970).

International Covenant of Civil and Political Rights, 19 December 1966, UNGA Res. 2200A (XXI), 21 UN GAOR Supp. (No. 16) at p. 52, UN Doc. A/6316 (1966), 999 U.N.T.S. 171.

International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 U.N.T.S. 3.

International Law Commission, “Draft Declaration on Rights and Duties of States,” Articles 1-2, in Report of the International Law Commission on the Work of its First Session, [1949] II Yearbook of the International Law Commission 277.

United Nations, Charter of the United Nations, 24 October 1945, 1 U.N.T.S. 16.

Vienna Declaration and Programme of Action, UN GAOR, World Conf. on Hum. Rts., 48th Sess., UN Doc. A/CONF.157.24 (1993).

JURISPRUDENCE

Accordance with International law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion [2010] I.C.J. Rep.

Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), [1996] I.C.J. Rep.

Customs Regime Between Germany and Austria, Advisory Opinion (1931), P.C.I.J. (Ser. A/B) No.41 [Austro-German Customs Case].

Deutsche Continental Gas-Gesellshaft v. Polish State (1929), 5 I.L.R. 11 at 14-15 (German- Polish Mixed Arb. Trib.).

Katangese Peoples’ Congress v. Zaire, (1994) African Commission on Human and Peoples’ Rights, Communication 75/92.

67 North Sea Continental Shelf Cases, [1969] I.C.J. Rep 3 at 32.

Reference re Secession of Quebec, [1998] 2 S.C.R. 217.

The Aaland Islands Question: Report submitted to the Council of the League of Nations by the Commission of Rapporteurs, League of Nations Document B7.21/68/106, 16 April 1921.

BOOKS

Crawford, James, The Creation of States in International Law, 2d ed. (Oxford: Clarendon Press, 2006).

Crawford, James, “Right of Self-Determination in International Law: Its Development and Future” in Philip Alston, ed., Peoples Rights (Oxford: Oxford University Press, 2001) at 52.

Currie, John H. Public International Law, 2d ed. (Toronto: Irwin Law, 2008).

Dugard, John & David Raic, “The Role of Recognition in the Law and Practice of Session” in Marcelo Kohen, ed., Secession: International Law Perspectives (New York: Cambridge University Press, 2006) 94.

Geldenhuys, Deon, Contested States in World Politics (UK: Palgrave Macmillan, 2009).

Grant, Thomas D. The Recognition of States: Law and Practice in Debate and Evolution (Westport: Praeger Publishing, 1999).

Hannum, Hurst. “Self-Determination in the Post-Colonial Era” in Donald Clark & Robert Williamson, eds., Self-Determination: International Perspectives (London: Macmillan Press Ltd., 1996) 12.

Istrefi, Kushtrim, Secession, Statehood and the Recognition of Kosovo (Germany: Lap Lambert Academic Publishing, 2010).

Lauterpact, Hersch, Recognition in International Law (Michigan: University Press, 1947).

Pavlakovic, Vjeran & Sabrina Petra Ramet, “Albanian and Serb rivalry in Kosovo: Realist and Universalist Perspectives on Sovereignty” in T. Bahcheli, B. Bartmann & H. Srebrnik, eds., De Facto States: The Quest for Sovereignty (London: Routledge, 2004) 74.

Raic, David, Statehood and the Law of Self-Determination (2002).

Sturman, Kathryn. “New Norms, Old Boundaries: The African Union’s Approach to Secession and State Sovereignty” in Aleksandar Pavkovic & Peter Radan, eds., On the Way to Statehood: Secession and Globalisation (England: Ashgate Publishing Limited, 2008) 67.

68 Tancredi, Antonello. “A Normative ‘Due Process’ in the Creation of States through Secession” in Marcelo Kohen, ed., Secession: International Law Perspectives (New York: Cambridge University Press, 2006) 171.

Trbovich, Ana S. A Legal Geography of Yugoslavia’s Disintegration (NY: Oxford University Press, 2008).

JOURNAL ARTICLES

Berlin, Alexander H., “Recognition as Sanction: Using International Recognition of New States to Deter, Punish, and Constrain Bad Actors” (2009-2010) 31 U. Pa. J. Int’l L. 531

D’Aspremont, Jean, “Regulating Statehood: The Kosovo Status Settlement” (2007) 20 Leiden J. Int’l L. 649.

Fierstein, Daniel, “Kosovo’s Declaration of Independence: An Incident Analysis of Legality, Policy and Future Implications” (2008) 26 B.U. Int’l L.J. 417.

Grant, Thomas D. “Defining Statehood: The Montevideo Convention and its Discontents” (1998-1999) 37 Colum. J. Transnat’l L. 403.

Hillgruber, Christian, “The Admission of New States to the International Community” (1998) 9 E.J.I.L 491.

Kelsen, Hans, “Recognition in International Law: Theoretical Observations” (1941) 35 Am. J. Intl L. 605 at 609.

Murphy, Sean. D. “Democratic Legitimacy and the Recognition of States and Governments” (1999) 48 I.C.L.Q. 545.

Roland Rich, “Recognition of States: The Collapse of Yugoslavia and the Soviet Union” (1993) 4 E.J.I.L. 36.

Sterio, Milena, “The Kosovar Declaration of Independence: ‘Botching the Balkans’ or Respecting International Law” (2008-2009) 37 Ga. J. Int’l & Comp. L. 267.

Talmon, Stefan, “The Constitutive Versus the Declaratory Theory of Recognition: Tertium Non Datur?” (2005) 75 Brit. Y.B. Intl L. 101.

Vidmar, Jure. “International Legal Responses to Kosovo’s Declaration of Independence” (2009) 42 Vand. J. Transnat’l L. 779.

Warbrick, Colin, “Recognition of States” (1993) 41 Intl L. & Comp. L.Q. 480.

69 Worster, William Thomas, “Law, Politics, and the Conception of the State in State Recognition Theory” (2009) 27:115 B.U. Int’l L.J. 115.

OTHER MATERIALS

BBC. “Kosovo Receives Recognition Boost.” BBC News (10 October 2008), online: The British Broadcasting Corporation, .

BBC. “Kosovo: To Recognize or Not to Recognize.” BBC News (18 February 2008), online: The British Broadcasting Corporation, .

BBC. “Russian MPs Back Georgia’s Rebels.” BBC News (25 August 2008), online: The British Broadcasting Corporation, .

Conference on Yugoslavia, Arbitration Commission, Opinion No. 1 [Disintegration of the SFRY], 29 November 1991, 92 ILR 165.

Conference on Yugoslavia, Arbitration Commission, Opinion No 4, 11 January 1992: 92 ILR 173.

Conference on Yugoslavia, Arbitration Commission, Opinion No. 11, 16 July 1993, 92 ILR 189.

Declaration on the ‘Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union’, 16 December 1991, BYIL 62 (1991) 559, reprinted in (1992) 31 I.L.M 1486-1487.

Declaration on Yugoslavia, Extraordinary EPC Ministerial Meeting, Brussels, 16 December 1991.

Die Bundesregierung, “German Cabinet approves recognition of Kosovo: Official Statement”, 20 February 2008.

EU Observer. “EU Leaders Condemn Russia in Shadow of Kosovo.” EU Observer (26 August 2008), online: EU Observer.com, .

Federal Department of Foreign Affairs, “Statement by the President of the Swiss Confederation, Pascal Couchepin”, 27 February 2008.

Foreign Affairs and International Trade Canada, Canada Joins International Recognition of Kosovo, 18 March 2008.

70 The Guardian, “Tiny Nauru Struts World Stage by Recognizing Breakaway Republics”, The Guardian UK (14 December 2009), online: The Guardian UK, < http://www. guardian.co.uk/world/2009/dec/14/nauro-recognises-abkhazia-south-ossetia>.

Kosovo Declaration of Independence (2008), online: www.assembly-kosova.org/common/docs /Dek_Pev_e.pdf.

NY Times, “Here Comes Kosovo”, NY Times (14 February 2008), online: The New York Times, < http://www.nytimes.com/2008/02/14/opinion/14cohen.html?ref=slobodanmilosevic>.

NY Times, “Kosovo is Recognized but Rebuked by Others”, NY Times (19 February 2008), online: The New York Times, .

NY Times, “U.S. and Germany Plan to Recognize Kosovo”, NY Times (11 January 2008), online: The New York Times, < http://www.nytimes.com/2008/01/11/world/europe/11 kosovo.html>.

Restatement (Third) of Foreign Relations Law of the United States 201 (1987).

SC Res 217, U.N. SCOR, 21st sess., 1265th mtg, U.N. Doc S/Res/217 (20 November 1965).

SC Res 541, U.N. SCOR, 38th sess., 2500th mtg, U.N. Doc S/Res/541 (18 November 1983).

SC Res 661, U.N. SCOR, 2933rd mtg, U.N. Doc S/Res/661 (6 August 1990).

SC Res 662, U.N. SCOR 2934th mtg, U.N. Doc S/Res/662 (9 August 1990).

SC Res 1244, U.N.S.C. Resolution 1244, Annex 2, U.N. Doc. S/RES/1244 (10 June 1999).

Sarkozy, N. “Kosovo: Lettre du president de la Republique addressee a M. Fatmir Sejdiu, president du Kosvo”, 18 February 2008.

Special Envoy of the Secretary General on Kosovo, Report of the Special Envoy of the Secretary- General on Kosovo’s Future Status Delivered to the Security Council, U.N. Doc. S/2007/168 (26 March 2007) [The Ahtisaari Plan].

U.N.M.I.K., “Standards for Kosovo”, presented by the Special Representative of the Secretary- General, 10 December 2003.

U.N. SCOR, 63d Sess. 5839th mtg. at 4-5, U.N. Doc. S/PV.5839, 18 February 2008.

U.N.S.G., “Letter from Kofi Annan, Secretary General, United Nations, to the President, United Nations Security Council”, U.N. Doc. S/2004/982, 30 November 2004.

71 U.N.S.G., “Letter from Kofi Annan, Secretary General, United Nations, to the President, United Nations Security Council”, U.N. Doc. S/2005/635, 7 October 2005.

USA Today, “Russia Denounces Kosovo Declaration”, USA Today (18 February 2008), online: USA Today, < http://www.usatoday.com/news/world/2008-02-17-kosovo- russia_N.htm>.

The White House, “Letter from the President to the President of Kosovo”, 18 February 2008.

The White House, “President Bush Condemns Actions Taken by Russian President in Regards to Georgia”, 26 August 2008. www.kosovothanksyou.com, last viewed on 5 June, 2011.

72