By Samuel Lindsay
Having established in Part I that Kosovo satisfies the classic criteria for statehood in the Montevideo Convention, it is necessary to move to the next requirement for statehood: independence. While it may evoke romantic visions of the American Revolutionary War or the long struggle for Indian independence, the term does not require a dramatic struggle culminating in victory over an oppressor. It simply denotes the right to exercise the functions of a State to the exclusion of all others.
In the international legal sphere, the term entails both formal and actual independence.
Is Kosovo formally independent?
Formal independence requires the powers of government of a territory to be vested in the separate authorities of the putative State. This is a legal rather than factual question, simply requiring the putative State to show a source authorising the exercise of governmental powers in the State. To illustrate with regard to Kosovo, this would require the powers of government over the geographical area of Kosovo to be vested in Kosovar authorities exclusively.
There are two main sources from which such powers may arise. First, they may stem from the State’s constitution. For example, in Australia, the Commonwealth Constitution creates, empowers, and limits the Parliament, Executive, and Judiciary. Secondly, they may emerge from a grant of full power from the State’s previous sovereign. An example of this is when Belgium resigned the right to exercise authority over the Democratic Republic of the Congo. Although this sounds rather peaceful, Belgium’s continued involvement in Congolese affairs led to a five year period of rebellion, war, and instability scarcely a week after Congolese independence. Granting independence is not automatically conducive to peaceful self-determination, then. Regardless, in our case, only the first source can be relevant since Serbia has not granted Kosovo full power.
However, although Kosovo does have a Constitution vesting governmental authority in its own institutions, a difficulty arises with the substantial powers provided to the United Nations (UN) by UN Security Council Resolution 1244. Indeed, it may be argued that so long as the UN is empowered to exercise governmental authority over Kosovo, Kosovo is debarred from achieving statehood. However, this was implicitly rejected by the International Court of Justice in its Kosovo Advisory Opinion, where it held that Resolution 1244 operated ‘on a different level’ to the declaration of independence. As such, the resolution did not reserve to the UN ‘the final determination of the situation in Kosovo,’ leaving open the possibility of a lawful declaration of independence and, potentially, statehood. Hence, Kosovo seems to satisfy the criterion of formal independence.
Is Kosovo actually independent?
On the other hand, actual independence is a factual enquiry, and seeks to determine whether the putative State has the minimum degree of governmental control necessary to qualify as independent. In other words, even if a State has claimed formal independence, they must be able to demonstrate that they actually exercise governmental powers in the territory and are not merely puppets through which another State is acting.
Kosovo seems to satisfy actual independence, although this is more contentious than formal independence due to the substantial powers given to the UN to govern under Resolution 1244. Nevertheless, the UN has progressively transferred competences to the Kosovar authorities, intensifying after the declaration in February 2008, and Kosovo has held their own elections (outside the framework of Resolution 1244) since 2010. In 2012, Kosovar authorities gained control of its external affairs from the International Steering Group of States that had been established to oversee Kosovo’s independence. Further, in 2013, Kosovo and Serbia concluded the Brussels Agreement, attempting to normalise relations between the two countries. It provided for a single Kosovar police force, and a single Kosovar judiciary. Since then, more agreements in 2015 led to the establishment of an international dialling code for Kosovo. Yet the country does not have a top-level internet domain, which puts it one step below other disputed territories such as Western Sahara or even Antarctica. Nonetheless, these measures tend to demonstrate increasing levels of actual independence and control by Kosovar authorities over Kosovar territory and declining levels of control by UN and Serbian authorities, arguably to a point where Kosovo may be viewed as actually independent.
If these arguments are accepted, the only criterion that remains to be satisfied in order to establish Kosovo as a State is recognition. This incredibly convoluted and complex topic will be the subject of Part III.
So, once again, stay tuned!
Samuel Lindsay is a second-year Juris Doctor student at the University of Western Australia who is starting to attain Tumblr levels of proficiency in churning out blog posts.