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Donovan J Pentz
Student No:
571091
Tutorial No:
13
Tutor:
Kelvin
Essay: Does
Kosovo qualify as a state under international law? Apply the factual criteria
to this case and elaborate on the role of recognition by other states. What does this case
study contribute to the debate around the nature of international law?
Words:
1700
Introduction:
Article 1 of the 1993 Montevideo Convention on the Rights and duties of states
contains the most authoritative description of constitutive elements of statehood. 1
It stipulates four criterias that must be satisfied in judging for the claimant
statehood. These requirements include that the putative state must occupy a
defined territory, must be in a possession of a permanent population, must
operate an effective government over such territory and lastly, an entity must
have full capacity to engage in international relations, as well as an ability to fulfil
1
Crawford, J.: Creation of States in International Law, Oxford University Press, Oxford, 2002, p.32.
As within the Socialist Federal Republic of Yugoslavia, Kosovo has never been
constituted as a Republic, but only as an autonomous territory. Starting with the
year 1974 under Yugoslav Constitution, Kosovo was granted the status of an
autonomous Province. Accorded by the Jugoslav constitution to the single
republic was a clear purpose behind this choice; no legal basis for a demand for
self-determination should be created. Nevertheless, virtually far-reaching rights
were granted to this province; such as an autonomous government, a Supreme
Court, a separate territorial defence army and the right to grant citizenship and
to issue passports.5
After Milosevic acquired power in 1989 the degree of autonomy granted by
Belgrade to Kosovo was substantively reduced, and participation of ethnic
Albanians in public office was actively discouraged. In response, Kosovo
Albanian
leaders
withdrew
from
all
public
institutions,
created
parallel
Ibid. p.33.
Loc cit.
Malcolm, N.: A Short History of Kosovo, Macmillan, London, 1998, p.64.
Enrico Milano.: Security Council Action in the Balkans: Reviewing the Legality of Kosovo's Territorial Status,
European Journal of International Law, March 2003.
A Permanent Population:
The criterion of permanent population as described in the Montevideo Convention
of 1993 has no minimum population required and microstates are accepted as full
members of the international community, Nauru has less than 10 000
inhabitants.8
conditions of this criterion. First the population must have the intention to
inhabit the territory on a permanent basis and the territory claimed has to be
habitable.9
10
U.S. Department of State Diplomacy in action: Bureau of European and Eurasian Affairs,
http://www.state.gov/r/pa/ei/bgn/100931.htm ,September 2011.
been a subject of dispute for forty years. 11Kosovo certainly certifies the
territoriality condition of the Montevideo convention as its land mass enjoys a
distinguished place in the history of Serbia. A territorially defined space can also
be traced back under the 1974 Yugoslav Constitution when it was granted the
status of an autonomous province with virtually the same rights as six other
Yugoslav Republics.12
Government:
To satisfy this requirement an entity must have a government that effectively
exercise state authority over the claimed territory, the people residing in that
territory and that is independent of any other authority. 13According to Crawford,
The requirement that a putative State have an effective government might be
regarded as central to its claim to statehood. 14 Raic posits that the criterion of
government should be institutionalised political, administrative and executive
organisational machinery for the purpose of regulating the relations in the
community and charged with the task of upholding the rules.15
While it is true to say that there is a government in Kosovo, its power however
fails to cover the extent sovereign territory.
government chosen by its citizens via elections organised and supervised by the
United Nations, European Union and other international bodies. The government
functions through legal acts based on a constitutional framework and through
laws passed by the legislative organs, which have been approved by the special
Representatives of the UN Secretary General. NATO enforces laws relating to
international security, and UN police forces enforce laws relating to internal law
and order. The judicial system operates under the control of UNMIK, utilizing
international judges and prosecutors.16 A close look to this shows that every
11
institution in Kosovo has an international component and in this sense its still not
fully independent as it lacks the ability to deal with its own internal affairs.
Capacity to enter into relations with other states:
If a state is subject to the authority of another state in the handling of its foreign
affairs, it fails to meet this requirement and cannot be described as an
independent state.17 Although Kosovo in October 2008 opened an embassy in
Washington DC, has 21 diplomatic missions, 13 consular posts worldwide and
have joined the International Monetary Fund and World Bank in June 2009,
undeniably the government of Kosovo is still under the tutelage of the U.N. 18As
outlined above the presents of international bodies on the territory of Kosovo and
the powers it does not itself exercise, which are assumed by the international
community shows that Kosovo is not fully independent.
Recognition:
Although the concept of the traditional criteria plays an important role in the
determination of statehood, states practice shows that its effectiveness is limited
and that it is not the only criterion for statehood. Recognition may be either
unilateral or collective19. In unilateral, an already accepted individual state
recognise an entity claiming statehood meets the factual requirement of
statehood and is therefore to be regarded as a state, with the rights and duties
attached too statehood. Two principal schools of thought dominate this orthodox
of recognition; the constitutive and the declaratory. 20 For constitutive
recognition of a claimant entity as a state creates or constitutes the state,
therefore becoming an additional requirement for statehood. On the other hand
the declaratory school maintains that an entity becomes a state upon meeting the
prescribed requirements of statehood and that recognition by other states
17
18
19
20
Loc cit.
International Law:
Loc cit.
22
23
Christian, H.: The Admission of New States to the International Community ,http://www.ejil.org/pdfs/9/3/664.pdf ,
November 2008
24
Dugard, J Op. Cit. p.112.
25
26
Loc cit.
David, R Op. Cit. p.50.
Conclusion:
It is clear that apart from the traditional criterion in the 1993 Montevideo
Convention on the Rights and Duties of States other criteria exist that an entity
must fulfil in order to be regarded as a state. Kosovo fails to meet some of the
requirements for statehood under the traditional criteria and from the foregoing
Kosovo may not yet be regarded as a State properly under International Law.
27
Bibliography:
Crawford, J.: Creation of States in International Law, Oxford University Press, Oxford, 2002.
David, R.: Statehood and the Law of Self- determination, Geboren Tes-Graven, 2002.
Dugard, J.: International Law A South African Perspective, JUTA, Cape Town, 2005.
Enrico Milano.: Security Council Action in the Balkans: Reviewing the Legality of Kosovo's Territorial Status, European Journal
of International Law, March 2003
Hajredin, K.: The Legal and Political Grounds for, and the Influence of the Actual Situation on, the Demand of the Demand of
Kosovo for Independence, Chicago-Kent Law Review, Chicago, 2005.
O.,Statehood,
Effectiveness
and
the
Kosovo
Declaration
of
Independence,
Department
of
State
Diplomacy
in
action:
Bureau
of
European
and
Eurasian
Affairs,