By Samuel Lindsay
Statehood is a deceptively simple concept. While identifying France or Argentina as a State is not exactly ground-breaking, entities such as Palestine or Kosovo pose considerably more difficulty. Clearly, politics plays a significant role in designation. Yet substantial complexities exist in international law as well. Over the course of three articles these complexities will be explored, using Kosovo as a demonstration.
First, what is going on in Kosovo?
Kosovo unilaterally declared its independence from Serbia on 17 February 2008. Serbia did not and does not recognise Kosovo as a State, considering it to be an entity governed by the United Nations (UN) under UN Security Council resolution 1244. This resolution was adopted in response to the Kosovo War of 1998-9 and established ‘an international civil presence in Kosovo in order to provide an interim administration for Kosovo.’ It remains in force to this date.
In response to the declaration, upon Serbia’s request, the UN General Assembly adopted a resolution on 8 October 2008 seeking an Advisory Opinion from the International Court of Justice (ICJ) on whether ‘the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo [was done] in accordance with international law.’
Handing down its decision on 22 July 2010, the ICJ determined that the declaration was done in accordance with international law. However, the Court’s judgment emphasised that their interpretation of the question was ‘narrow and specific,’ viewing the issue of ‘whether or not Kosovo has achieved statehood’ as beyond the scope of the question.
Almost exactly seven years later, it becomes interesting to consider whether Kosovo has indeed achieved statehood.
Secondly, what would be the consequences of statehood for Kosovo?
Of course, if States were not different to other entities with international legal personality, the problems and complexities of determining statehood would be rendered meaningless. Indeed, many academics – apologies, highly qualified publicists – would find themselves sitting idly by wondering what to do next. Fortunately, however, there are differences.
States have several general and exclusive characteristics. They have plenary competence to perform acts and make treaties in the area of their foreign policy. Their consent is required for international settlement procedures. They are formally equal in status and standing with other States in the international arena. They have a right to peaceful co-existence with other States. Most importantly for places like Palestine and Kosovo, they have exclusive competence in their internal affairs, ensuring that other States cannot interfere (at least legally). For Kosovo, this would be important for keeping Serbia and the UN from meddling in its internal affairs.
Therefore, it is clear that there are benefits to Kosovo in being classified as a State; it is not an empty concept.
Thirdly, what are the criteria for statehood, and does Kosovo satisfy them?
Although subject to much criticism and not exhaustive, article 1 of the Montevideo Convention on the Rights and Duties of States (Montevideo Convention) provides the classic criteria for statehood:
- a permanent population;
- a defined territory;
- government; and
- capacity to enter into relations with other States.
The first two criteria are fairly self-explanatory, although in relation to a defined territory it is important to note that it is not necessary for defined or settled boundaries. Kosovo clearly satisfies both criteria as they have a permanent population of around 1.8 million, who reside on a territory defined and delimited in successive Yugoslav and Serbian constitutions as the autonomous region of Kosovo.
An effective government is the most important criterion, and requires a system of government in general control of its territory, to the exclusion of other entities. This standard of ‘effective government’ varies with context, applying more stringently in the context of secession (where the former sovereign (Serbia) objects to the putative State’s (Kosovo’s) claim of statehood) than in the situation where a new State is granted full formal independence by a former sovereign (for example where Belgium resigned its right to exercise authority over the Democratic Republic of the Congo). However, in either scenario, ‘effective government’ requires only the establishment of basic institutions and law and order rather than a sophisticated apparatus of executive and legislative organs. This criterion again provides no object for Kosovo, which has a structured government created under the 2008 Constitution of the Republic of Kosovo.
Kosovo’s capacity to enter into relations with other States, the final criterion in the Montevideo Convention, is evidenced by its membership in the International Monetary Fund and the World Bank.
Therefore, it would seem that Kosovo satisfies the classic criteria for statehood. However, this is not all that is required. To determine whether Kosovo definitively qualifies as a State, it is necessary to consider independence and recognition, which will be considered in Parts II and III to come respectively.
So get excited!
Samuel Lindsay is a second-year Juris Doctor student at the University of Western Australia who procrastinates public international law exam study by writing public international law blogs.