KOSOVO'S DECLARATION OF INDEPENDENCE: AN INCIDENT

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KOSOVO’S DECLARATION OF INDEPENDENCE:

AN INCIDENT ANALYSIS OF LEGALITY,

POLICY AND FUTURE IMPLICATIONS

ANIEL

IERSTEIN

I. I

NTRODUCTION

............................................ 418

II. K

OSOVO AND

ERBIA

: A H

ISTORY OF THE

EGION AND

ONFLICT

................................................. 419

III. R

ELEVANT

........................................... 425

A. The Evolution of Self-determination and Secession ..... 425

B. State Practice and Secession ........................... 430

IV. E

STABLISHING A

EGAL

TANDARD FOR

NILATERAL

ECESSION AND

PPLYING IT TO

OSOVO AND

ERBIA

.... 433

A. What constitutes a people? ............................. 433

B. Human Rights violation ............................... 434

C. Last Resort ............................................ 434

V. A

PPLYING THE

AW T O

OSOVO

.......................... 435

A. Are the Kosovo Albanians a “people”? ................ 435

B. Human Rights violations .............................. 437

C. Last Resort ............................................ 437

VI. P

OLITICAL

EALITIES AND

TATE

ECOGNITION

.......... 438

VII. C

ONCLUSION

.............................................. 441

Possible final destinations include autonomy, partition and indepen-

dence, and the means of arriving at them range from peaceful negoti-

ation or international imposition to civil disobedience, violent

intifada and full-scale war.

We, the democratically-elected leaders of our people, hereby declare

Kosovo to be an independent and sovereign state.

* J.D. Candidate 2009, Boston University School of Law. Many thanks to the

Boston University International Law Journal Editorial Board and staff for its

consideration and editorial contribution. I would also like to thank Professor Robert

D. Sloane for his guidance, supervision, and support throughout the research and

writing process. Finally, this piece would be impossible to put forth without the

unconditional love and support of my family. Errors are mine.

OEL

ALCOLM

OSOVO

: A S

HORT

ISTORY

xxvii (1998). Malcolm wrote this

historical account of Kosovo one year before the NATO bombing campaign began in

1999.

ECLARATION OF

NDEPENDENCE

, (Kosovo 2008), available at http://www.

assembly-kosova.org/?krye=news&newsid=1635&lang=en.

417

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418 BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL [Vol. 26:417

I. I

NTRODUCTION

On February 17, 2008, the Kosovo Parliament in its capital, Pristina,

unanimously voted in favor of declaring its independence from Serbia.

While this development does not, by itself, resolve what has been a nearly

decade-long impasse over Kosovo’s final political status between Bel-

grade, Pristina, and the international community, Kosovo’s parliament,

by taking this action, has put immense pressure on itself, Serbia, and the

international community to help bring finality to this dispute.

Kosovo’s unilateral declaration drew immediate and divided reactions

from the international community. The United States and many Euro-

pean countries quickly recognized and gave support for Kosovo’s declara-

tion.

Serbia, Russia, Spain, Romania and others denounced the Kosovo

Parliament’s action as illegal and contrary to norms of international law.

At the core of this international dispute is the extent to which, if at all,

Kosovo had, at the time of its declaration, a right to secede from Serbia

without Serbia’s consent. As various international actors continue to

weigh in on Kosovo’s controversial action, those aligned against recogniz-

ing Kosovo’s independence contend that the action was illegal under

international law, violating Serbia’s territorial integrity and illegally insti-

tuting changes to its borders without Serbia’s consent.

These opponents

add that recognition would set a risky precedent, providing a legal justifi-

cation for separatist movements around the world to declare indepen-

dence, a sequence of events which could ultimately lead to global

instability.

In response to these assertions, Kosovo and its supporters argue that

the particular circumstances and history between Kosovo and Serbia con-

stitute a unique set of facts that distinguish it from other separatist move-

ments that the international community tends not to support.

Implicit in

this argument seems to be the contention that Kosovo falls within an

exception to otherwise prohibited attempts to secede thus meriting

recognition.

Skeptics of international law might argue that commentary on the

legality of Kosovo’s declaration is irrelevant, asserting that irrespective of

the act’s legality, international actors are responding and taking measures

address the situation. While it is true that Kosovo will not “undeclare” its

Kosovo MPs Proclaim Independence, B

EWS

Feb. 17, 2008, available at

http://news.bbc.co.uk/2/hi/europe/7249034.stm.

Paul Reynolds, Kosovo: To Recognise or not to Recognise?, B

EWS

Feb. 18,

2008, available at http://news.bbc.co.uk/2/hi/europe/7250764.stm [hereinafter To

Recognise].

Paul Reynolds, Legal Furore over Kosovo’s Recognition, B

EWS

Feb. 16,

2008, available at http://news.bbc.co.uk/2/hi/europe/7244538.stm.

Id.

To Recognise, supra note 4.

Id.

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2008] KOSOVO’S DECLARATION OF INDEPENDENCE 419

independence if an international body such as the International Court of

Justice (“ICJ”) were to find the declaration illegal, Kosovo’s actions and

the response of international actors merit careful analysis because of their

inevitable impact on the development of international norms such as the

right to self-determination and its interaction with the principle of territo-

rial integrity. A clearer understanding of the legality of Kosovo’s declara-

tion and perceptions of the legality of the declaration will help students,

practitioners, and politically relevant actors better understand and predict

future behavior in this area.

This note attempts to clarify the state of international law in the area of

secession and apply it to the facts and circumstances surrounding

Kosovo’s recent declaration of independence to determine whether or

not the declaration was a legal act under international law. In order to do

so, this inquiry requires consideration of past and present state practice

and opinio juris in the areas of self-determination, territorial integrity and

State recognition. Despite the international community’s traditional

aversion to unilateral secession, Kosovo’s declaration of independence

fits within an especially narrow range of permissibility.

II. K

OSOVO AND

ERBIA

: A H

ISTORY OF THE

EGION AND

ONFLICT

Determining the legality of Kosovo’s unilateral declaration requires a

careful consideration of the tumultuous history of the region with particu-

lar attention to Kosovo and Serbia. Prior to Kosovo’s declaration of inde-

pendence, it was an internationally administered territory that was,

pursuant to U.N. Security Council Resolution 1244 (“Resolution 1244”),

an autonomous region within the Federal Republic of Yugoslavia.

Kosovo’s population makeup is predominantly Muslim Albanian with

small minorities of Serbs, Bosniaks, Romas and Turks.

Varying statisti-

cal sources suggest the population breakdown between Albanians and

Serbs approaches 92% and 5.3%, respectively.

S.C. Res. 1244, U.N. Doc. S/RES/1244 (June 10, 1999), available at http://daccess

dds.un.org/doc/UNDOC/GEN/N99/172/89/PDF/N9917289.pdf?OpenElement [here-

inafter S.C. Res. 1244]. This Security Council resolution, along with other

international agreements, brought an end to NATO’s bombing campaign in Kosovo

and set up the guidelines for the United Nations Mission in Kosovo (“UNMIK”) and

will be discussed in more detail infra.

See id.

See Marie-Janine Calic, Kosovo in the Twentieth Century: A Historical Account,

OSOVO AND THE

HALLENGE OF

UMANITARIAN

NTERVENTION

: S

ELECTIVE

NDIGNATION

, C

OLLECTIVE

CTION

AND

NTERNATIONAL

ITIZENSHIP

19, 23

(Albrecht Schnabel & Ramesh Thakur eds., 2000).

See generally Statistical Office of Kosovo, http://www.ks-gov.net/esk/ (last visited

Oct. 5, 2008) (containing various population reports conducted by the Provisional

Institutions for Self-Government under the supervision of UNMIK based on prior

censuses and other statistical analyses)[hereinafter Kosovo Statistics].

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420 BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL [Vol. 26:417

Kosovo Albanians and Serbs both stake a claim in this region dating

back centuries, each side arguing that history places them in the region

prior to the other.

Regardless of who arrived first, Albanian and Slavic

peoples

have cohabitated the territory of Kosovo for hundreds of

years.

Serbians controlled Kosovo until the late fourteenth century

when the Ottoman Empire defeated the Serbs in the historic Battle of

Kosovo, a battle which many Serbs view as a symbolic rallying point for

Serbian nationalism.

Serbia regained control of Kosovo from the Otto-

man Empire in 1912

and integrated into the newly formed Kingdom of

Serbs, Croats, and Slovenes.

After World War II, communist dictator Josip Broz Tito (“Tito”) took

control of the region, and incorporated Kosovo into Serbia, one of six

federal republics within Yugoslavia.

This political structure, along with

the issuance of Serbia’s 1947 constitution, granted Kosovo autonomous

rights with respect to culture and economics.

The 1974 SFRY constitution was the high water mark for Kosovo Alba-

nian autonomy.

Legally, the region was considered an autonomous

Calic, supra note 11, at 22. International law seems to favor claims of self-

determination made by indigenous people based on a “first people” entitlement

rationale. See generally Richard Falk, The Rights of Peoples (In Particular Indigenous

Peoples), in

IGHTS OF

EOPLES

17 (James Crawford ed., 1988). This area of

self-determination law, while potentially favorable, is probably not relevant here

because of the lack of credible historical evidence for either side, Albanian or Serb.

Both sides’ historical claims have largely been reduced to myth. See Calic, supra note

11, at 22-23.

Serbs are considered a Slavic people, whose origins can be traced to medieval

states of South Slavic peoples. See

ATJAZ

LEMENCIC

& M

ITJA

AGAR

ORMER

UGOSLAVIA

’

IVERSE

EOPLES

1-2 (2004).

See generally

ALCOLM

, supra note 1, ch. 2.

LEMENCIC

& Z

AGAR

, supra note 14, at 23.

See Hajredin Kuci, The Legal and Political Grounds for, and the Influence of the

Actual Situation on, the Demand of the Albanians of Kosovo for Independence, 80

.-K

ENT

L. R

331, 333 (2005).

See

ALCOLM

, supra note 1, at 264. The Federation, as it more formally

developed in 1945, also included the federal republics of Croatia, Slovenia, Bosnia

and Herzegovina, Macedonia, and Montenegro. See

LEMENCIC

& Z

AGAR

, supra

note 14, at 197.

ALCOLM

supra note 1, at 315-16. In order to avoid confusion with

nomenclature, the Federal People’s Republic of Yugoslavia, as it was named in 1945,

became the Socialist Federal Republic of Yugoslavia (“SFRY”) in 1963 after

constitutional reform. See

LEMENCIC

& Z

AGAR

, supra note 14, at 197, 206. After

the SFRY was deemed disintegrated in 1992 (discussed below), the remaining federal

republics Serbia and Montenegro became the Federal Republic of Yugoslavia

(“FRY”), a separate and distinct State from the dissolved SFRY. Id. at 333.

ALCOLM

, supra note 1, at 316.

Id. at 327.

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2008] KOSOVO’S DECLARATION OF INDEPENDENCE 421

province within the Federal Republic of Serbia.

Kosovo’s rights

included representation to the Presidency of the SFRY and authority to

draft its own constitution.

Despite this augmentation of Kosovo’s

autonomy, the 1974 SFRY constitution was clear in denying Kosovo the

right to secede from the SFRY, a right arguably granted to each of the six

federal republics.

Following Tito’s death in 1981, a period of political instability com-

menced in the SFRY.

In Kosovo, independence movements developed

amongst Albanians,

while Slobodan Milosevic rose to power in Serbia

on a nationalist platform.

Milosevic accused Kosovo Albanians of vio-

lating the rights of the Serb minority in Kosovo, and the Serbian parlia-

ment began preparing amendments that would strip Kosovo Albanians of

the autonomy granted to them in the 1974 SFRY constitution.

Back-

and-forth atrocities ensued; Albanians responded to Serbian oppression

with violence against the Serb minority, and Milosevic reacted by order-

ing 25,000 Serbian police officers into the province.

Throughout the violent escalation, Kosovo Albanians made efforts to

free themselves from Serbian control. In 1990, most Albanian members

of the Kosovo Parliament met outside of its building

and passed a reso-

lution declaring Kosovo independent within the SFRY.

Slightly more

than a year later in 1991, Albanians in Kosovo organized a referendum in

which 87% of voters took part, and 99% voted in favor of Kosovo as a

sovereign and independent republic.

Additionally, the Kosovo Albani-

ans organized parallel government structures, including a local govern-

ment assembly, schools, and clinics.

Finally, following the declarations

Id. Technically, Kosovo obtained this status in the Yugoslav Constitution of

1963, but its rights as an autonomous province were more protected under the 1974

Constitution. Id. at 323-24, 327.

Id. at 327.

See

AMES

RAWFORD

REATION OF

TATES IN

NTERNATIONAL

401

(2006).

See generally

ALCOLM

, supra note 1, ch. 17.

Id. at 334-38

LEMENCIC

& Z

AGAR

, supra note 14, at 243.

ALCOLM

, supra note 1, at 343. According to the Constitution, these

amendments could not be ratified without support in the Kosovo Parliament. Id. In

1989 Serbia coerced the Kosovo Assembly to accept the amendments by surrounding

it with tanks and armored vehicles, and some believe Serbian officials took part in the

voting as well. Id. at 343-44.

Id. at 345.

After the Serbian leadership coerced Kosovo’s acceptance of the autonomy-

stripping amendments, the Kosovo parliament building was locked up. Id. at 346.

Id. at 346.

Id. at 347.

Id. at 349.

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422 BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL [Vol. 26:417

of independence of Slovenia and Croatia in 1991, the Democratic League

of Kosovo

asserted claims of full sovereignty and independence.

Prior to the NATO intervention in 1999, violence continued to increase

in frequency and intensity. After the Dayton Accords of 1995, which

brought the ongoing war in Bosnia and Herzegovina to an end, failed to

address the volatile situation in Kosovo, terrorist organizations like the

Kosovo Liberation Army (“KLA”) began to develop.

Massacres of

Albanians ensued, houses and schools were destroyed, and nearly 400,000

Albanians were forced to leave their homes.

A 1999 ceasefire agree-

ment failed to last, and a massacre of 45 Albanians in Racak led the inter-

national community to intervene.

Contrary to the FRY’s opposition, NATO proceeded with air strikes

against the FRY in Kosovo and Serbia.

Despite expectations that

Milosevic would back down

immediately and sign the Rambouillet

Agreement,

an interim agreement aimed toward bringing finality to the

dispute over Kosovo’s political status, the NATO air strike lasted several

weeks and did not conclude with Milosevic’s signature.

In the end, Ser-

bian forces committed massacres and rapes, tortured individuals, and

forced approximately one million Kosovo Albanians from their homes.

The Democratic League of Kosovo was formed by a group of Albanian

intellectuals set up in opposition to Serbia’s revocation of Kosovo’s autonomy and for

the realization of Kosovar independence. Id. at 348.

Id. at 350.

Id. at 353-55.

Agon Demjaha, The Kosovo Conflict: A Perspective from Inside, in

OSOVO

AND THE

HALLENGE OF

UMANITARIAN

NTERVENTION

, 34 (Albrecht Schnabel

& Ramesh Thakur eds., 2000) (referencing several October issues of the Kosovo daily

newspaper, Koha Ditore (Pristina), and reports from the U.N. Refugee Agency office

in Pristina).

Id. at 35. This action took the form of the Rambouillet Conference in February

of 1999, where the Albanian and Serbian delegations failed to agree on settlement

terms due to Albanian insistence on a referendum and Serbian opposition to a

potential NATO military presence in Kosovo. Id.

Id. at 36.

Demjaha, supra note 37, at 36.

The Rambouillet Peace Agreement was an instrument which members of the

international community, particularly under the supervision of the United States,

E.U. members, and Russia, drafted hoping to bring a peaceful conclusion to the

violent strife in Kosovo prior to NATO’s intervention. The Agreement called for

Serbia to concede substantial autonomy to Kosovo and allow for a final political

solution based on the will of the people of Kosovo three years after taking effect. See

generally Rambouillet Peace Agreement: Interim Agreement for Peace and Self-

Government in Kosovo, http://www.state.gov/www/regions/eur/ksvo_rambouillet_

text.html (last visited Oct. 6, 2008).

Demjaha, supra note 37, at 36.

Id.

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2008] KOSOVO’S DECLARATION OF INDEPENDENCE 423

NATO’s intervention concluded in June of 1999 with the Military Tech-

nical agreement

between NATO and the FRY as well as Resolution

1244.

Following these agreements, NATO deployed its Kosovo Force

(“KFOR”), the international security force responsible for maintaining

peace and stability in the region.

The U.N., along with other interna-

tional organizations such as the European Union (“E.U.”), would be

responsible for, inter alia:

Deployment in Kosovo of effective international civil and security

presences, endorsed and adopted by the United Nations, capable of

guaranteeing the achievement of the common objectives;

Establishment of an interim administration for Kosovo to be decided

by the Security Council of the United Nations to ensure conditions

for a peaceful and normal life for all inhabitants in Kosovo;

The safe and free return of all refugees and displaced persons and

unimpeded access to Kosovo by humanitarian organizations;

A political process towards the establishment of an interim political

framework agreement providing for a substantial self-government

for Kosovo, taking full account of the Rambouillet accords and the

principles of sovereignty and territorial integrity of the Federal

Republic of Yugoslavia and the other countries of the region, and the

demilitarization of the KLA . . . .

In sum, the international community would intermediately replace the

FRY as the governing body of the Kosovo region until a more final politi-

cal solution could be reached.

Since Resolution 1244 passed, the United Nations Mission in Kosovo

(“UNMIK”) has administered the territory, along with the Provisional

Institutions of Self-Government

(“PISG”) that have developed under

To consult the document, see generally Military Technical Agreement Between

the International Security Force (“KFOR”) and the Governments of the Federal

Republic of Yugoslavia and Serbia, U.N. Doc. S/1999/682/Annex, June 1999, http://

www.un.org/peace/kosovo/s99682.pdf (last visited Oct. 26, 2008).

Demjaha, supra note 37, at 37.

Id.

See generally S.C. Res. 1244, supra note 9.

See id.

Pursuant to an UNMIK Regulation promulgated by the Special Representative

to the Secretary General (“SRSG”) based on the framework provided in S.C. Res.

1244, the Provisional Institutions of Self-Government (“PISG”) is the branch of the

administration in Kosovo controlled by Kosovo rather than the U.N. Int’l Crisis

Group, Kosovo: Landmark Election 1-7 (2001), available at http://www.crisisgroup.

org/library/documents/europe/balkans/120___kosovo_landmark_election.pdf. See also

RAWFORD

, supra note 24, at 559.

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424 BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL [Vol. 26:417

UNMIK’s supervision.

This interim arrangement provides Kosovo with

“substantial autonomy within the Federal Republic of Yugoslavia . . . .”

Because the language of Resolution 1244 is crucial to determining

whether Kosovo’s declaration of independence is legal, it is important to

distill its complex political arrangement and the relevant international

actors responsible for maintaining peace and stability in the region.

There are five principal groups pursuant to Resolution 1244 with some

form of governmental authority and responsibility in Kosovo: (1) the

U.N. (UNMIK); (2) Kosovo (PISG); (3) Serbia; (4) NATO (KFOR); and

(5) other international organizations (e.g., E.U.).

UNMIK wields broad power under Resolution 1244 and is responsible

for the general supervision of Kosovo’s provisional institutions as well as

conducting the region’s external relations with international organiza-

tions and other States.

The PISG (Kosovo-controlled) is responsible for

most of the domestic affairs of the region, almost always subject to

UNMIK supervision through the Special Representative of the Secretary

General (“SRSG”).

Serbia, after agreeing to withdraw its military and

police presence in Kosovo, is limited to clearing minefields, maintaining a

security presence at Serb patrimonial sites, and maintaining a presence at

key border crossings.

NATO is responsible for providing an interna-

tional military presence to maintain peace and stability in the region,

Int’l Crisis Group, Kosovo: No Good Alternatives to the Ahtisaari Plan 43 (2007),

available at http://www.crisisgroup.org/library/documents/europe/balkans/182_kosovo

_no_good_alternatives_to_the_ahtisaari_plan.pdf.

See S.C. Res. 1244, supra note 9, Annex II ¶ 5. Note that this language is clear

in reaffirming the territorial integrity of Serbia; i.e., Kosovo is an autonomous region

within Serbia pursuant to the language of S.C. Res. 1244. See

RAWFORD

, supra note

24, at 558. For purposes of nomenclature, note that at the time Resolution 1244 was

drafted and passed, the FRY was made up of Serbia and Montenegro. See

LEMENCIC

& Z

AGAR

, supra note 14, at 323. Indeed, “the Federal Republic of

Yugoslavia [FRY], which included only Montenegro and Serbia, was formed in 1992

and replaced in 2003 by the State Union of Serbia and Montenegro, which in turn

dissolved into its component republics in June 2006 after Montenegro voted in a

referendum for independence.” Int’l Crisis Group, Southern Serbia: In Kosovo’s

Shadow 1& n.1 (2006), available at http://www.crisisgroup.org/library/documents/

europe/balkans/b043_southern_serbia_in_kosovo_s_shadow.pdf.

See generally S.C. Res. 1244, supra note 9.

See Constitutional Framework for Provisional Self-Government, ch. 8,

U.N.

. UNMIK/REG/2001/9 (May 15, 2001), http://www.unmikonline.org/pub/misc/

FrameworkPocket_ENG_Dec2002.pdf [hereinafter Constitutional Framework]; see

also S.C. Res. 1244, supra note 9, Annex II.

See id., Preamble. With respect to the SRSG, S.C. Resolution 1244, in its

creation of a civil presence (i.e., UNMIK), provided for the appointment of a special

representative to control the overall civil presence. See S.C. Res. 1244, supra note 9, ¶

Id. at Annex II ¶ 6.

Id. at Annex II ¶ 4.

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2008] KOSOVO’S DECLARATION OF INDEPENDENCE 425

and the above mentioned relevant international organizations are respon-

sible for the economic development and stabilization of the region.

III. R

ELEVANT

Determining whether a unilateral declaration of independence is legal

requires an inquiry of various moving parts. Among them include the

legal right(s) of the group seeking independence, the legal right(s) of the

State from which the group attempts to separate, and the relevance of the

international community, i.e., its member states and constituent organiza-

tions. Corresponding to each of these components are the legal princi-

ples of self-determination, territorial integrity and State sovereignty, and

State recognition. Based on the relatively recent emergence of the indi-

vidual as a legally recognized and protected personality under the cus-

toms and norms of international law, along with the related diminution in

legal preeminence the State has undergone, it seems plausible to infer a

recognized right for a population within a State to secede.

Self-determination is an international legal principle that, if properly

invoked, arms a population with the authority to choose its political

fate.

If unrestricted and carried out to its logical end, this principle

could conceivably give rise to a situation where a collection of people

within a State chooses to detach itself and form its own independent

country. In theory and in practice, however, a people’s right to self-deter-

mination is restricted considerably. Concerns over global order and a

State’s traditional dominion over its inhabitants weigh heavily against a

people’s wish to establish its own country or merge with another. These

underlying policies, juxtaposed against the principle of self-determina-

tion, give rise to a conceptual conflict that when reconciled, leaves a very

narrow exception to a traditional presumption against a people’s right to

secede from its original state.

A. The Evolution of Self-determination and Secession

Following World War I, the Allies introduced the concept of self-deter-

mination as a way to resolve the political status of various contested terri-

tories.

At this time, the international community sacrificed the idea of

self-determination as a way for populations to determine their political

destiny for what were considered superseding interests of peace and sta-

bility.

Germany and Austria voiced strong objections to the principle,

and their appeasement was seen as paramount to the full employment of

Id. at Annex II ¶ 9.

ROWNLIE

RINCIPLES OF

UBLIC

NTERNATIONAL

553 (6th ed. 2003).

See

NTONIO

ASSESE

ELF

DETERMINATION OF

EOPLES

: A L

EGAL

EAPPRAISAL

23-27 (1995).

Id. at 23-24.

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426 BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL [Vol. 26:417

Wilsonian self-determination.

In addition to self-determination’s sub-

servience to peace and stability, the principle also yielded to the strategic

political and economic interests of the victorious nations of World War

Thus, “[t]he arbitrary manner in which the Allies decided which

populations were entitled to determine their fate defeats any suggestion

that a ‘right’ to self-determination existed.”

During the same era, the Council of the League of Nations appointed a

committee of three jurists

to determine whether the inhabitants of the

Aaland Islands possessed a right to secede from Finland and join the

Kingdom of Sweden.

The jurists conceived of three situations: (1)

where a State recognizes a population’s claim of self-determination in the

form of autonomy within the State;

(2) where the State does not recog-

nize a right to self-determination but instead provides the claimant with

sufficient minority protections;

and (3) where the State neither recog-

nizes self-determination nor extends minority protections.

If the third

situation emerges, i.e., if the State engages in oppression and persecution

of a particular group seeking to recognize a right to self-determination,

the Commission of Rapporteurs left open the possibility that secession

could be the proper remedy:

Id. at 24. President Wilson’s brand of self-determination was based on

traditional Western democratic theory. “In other words, for Wilson self-

determination basically consisted of the right of peoples freely to choose their

government.” Id. at 19.

Id. at 25.

Id. at 26.

Id. at 27. This committee, which set out to determine whether the Aaland

Islands dispute was a domestic or international legal issue, was known as the

Committee of Jurists. Id. at 28.

Id. at 27; see also Philip Marshall Brown, The Aaland Islands Question, 15 A

. J.

’

268, 268-272 (1921). In fact, the League of Nations issued two reports

concerning this dispute. As mentioned supra in note 64, the initial opinion, issued by

the Committee of Jurists, decided whether or not the League of Nations was

competent to determine the fate of the Aalanders. See

ASSESE

, supra note 59, at 28.

Once the Committee found the issue to be of an international character, a second

decision, issued by another League-appointed commission, the Commission of

Rapporteurs, recommended a course of action. Id. at 29.

Today this form of self-determination, because autonomy is granted within the

political structures of the existing State, is referred to as internal self-determination.

See

ALCOLM

N. S

HAW

NTERNATIONAL

273 (5th ed. 2003). See also Reference

re Secession of Quebec, [1998] 2 S.C.R. 217, 282 (Can.) [hereinafter Secession of

Quebec].

Minority protections are a form of legal safeguard that a State grants to its

minority constituencies often in the form of laws granting protective rights in

language, education, religious practice and culture. See generally

HAW

, supra note

66, at 273-281.

See

ASSESE

, supra note 59, at 29-31.

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2008] KOSOVO’S DECLARATION OF INDEPENDENCE 427

The separation of a minority from the State of which it forms a part

and its incorporation in another State can only be considered as an

altogether exceptional solution, a last resort when the State lacks

either the will or the power to enact and apply just and effective

guarantees.

Considering the Commission of Rapporteurs’ opinion issued its analy-

sis not long after the Covenant of the League of Nations was established

and well before the drafting of the U.N. Charter and the codification of

much of today’s human rights law, this opinion represents an early step

toward recognizing a narrow exception to the traditional presumption

against an external means of realizing a group’s self-determination claim,

i.e., secession.

The principle of self-determination, which drafters excluded from the

League Covenant, was included in Article 1(2) of the U.N. Charter.

Based on its language and placement within the Charter, the principle of

self-determination is more of an aspiration than legal duty imposed on

States.

In fact, the “equal rights” to which Articles 1(2) and 55 refer

seem to be within a context of protecting people of a State from interfer-

ence by other States

, rather than protecting people of a State from the

State itself as in the case of Kosovo. Given this subtlety within the Char-

ter, “[w]e cannot ignore the coupling of ‘self-determination’ with ‘equal

rights’ and [sic] it was equal rights of States that was being provided for,

not of individuals.”

Despite its rather weak status in the Charter, the

The Aaland Islands Question: Report Submitted to the Council of the League of

Nations by the Commission of Rapporteurs, League of Nations Doc. B7/21/68/106, at

28 (1921) [hereinafter Commission of Rapporteurs]. Applying these criteria to the

facts, the Commission of Rapporteurs found that the Aalanders had no right to

secession because they had not been oppressed by Finland. Id.

That said, the Commission was clear in its rejection of an absolute right to

secede:

To concede to minorities, either of language or religion, or to any fractions of a

population the right of withdrawing from the community to which they belong,

because it is their wish or their good pleasure, would be to destroy order and

stability within States and to inaugurate anarchy in international life; it would be

to uphold a theory incompatible with the very idea of the State as a territorial

and political unity.

Id.

Article 1(2) reads, “[t]o develop friendly relations among nations based on

respect for the principle of equal rights and self-determination of peoples, and to take

other appropriate measures to strengthen universal peace.” U.N. Charter art. 1, para.

2. Similar language also appears in U.N. Charter article 55. See U.N. Charter art. 55.

ASSESE

, supra note 59, at 65.

Judge Rosalyn Higgins, Self-Determination and Secession, in

ECESSION AND

NTERNATIONAL

21, 23 (Julie Dahlitz ed., 2003).

Id. For evidence of this intended meaning, see Belgian Delegation Amendment

to Paragraph 2 of Chapter I, U.N. Doc. 374/I/1/17, 6 U.N.C.I.O. Docs. San Francisco,

300 (1945).

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428 BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL [Vol. 26:417

principle quickly progressed into a “legal entitlement to decoloniza-

tion”

due to the development of State practice, the increase in African

and Asian U.N. membership in the 1960’s, and the passage of the 1960

Declaration Granting Independence to Colonial Countries and Peoples

(“1960 Declaration”).

The period of decolonization was followed by a contemporary expan-

sion of self-determination as more of a human right.

The 1966 Interna-

tional Covenants on Human Rights, particularly Article 1, described the

principle of self-determination to include the right of an entire people to

determine its political status.

Article 25, which demands representative,

participatory democracy, seems to be the means by which the drafters

and signatory parties believe Article 1 self-determination is to be real-

ized.

Subsequently, the adoption of the 1970 Declaration on Principles

of International Law Concerning Friendly Relations and Co-operation

among States in Accordance with the Charter of the United Nations

(“Declaration on Friendly Relations”) contributed to the expansion of

ASSESE

, supra note 59 at 65. For a more detailed account of standards

concerning colonial peoples, see id. at 72-73.

See generally G.A. Res. 1514 , U.N. Doc. A/4684 (Dec. 14, 1960) [hereinafter

G.A. Res. 1514]. The relevant language here reads: “All peoples have the right to

self-determination; by virtue of that right they freely determine their political status

and freely pursue their economic, social and cultural development.” Id. at ¶ 2. It is

important to note the context of this paragraph: it immediately follows paragraph 1,

which deems “subjection of peoples to alien subjugation . . . contrary to the Charter of

the United Nations and . . . an impediment to the promotion of world peace and co-

operation.” Id. at ¶ 1.

G.A. Res. 1514, supra note 76. See also Higgins, supra note 73, at 24. The

abovementioned State practice was affirmed by the International Court of Justice in

its Namibia and Western Sahara Advisory Opinions, affirming the right of peoples

under colonial rule to independence should the people choose such a fate. See Legal

Consequences for States of the Continued Presence of South Africa in Namibia

(South West Africa) Notwithstanding Security Council Resolution 276, Advisory

Opinion, 1971 I.C.J 16, 31 (June 21) [hereinafter Namibia]; see also Western Sahara,

Advisory Opinion, 1975 I.C.J. 12, 68 (Oct. 16) [hereinafter Western Sahara].

See Higgins, supra note 73, at 26.

Article 1 reads, “[a]ll peoples have the right of self-determination. By virtue of

that right they freely determine their political status and freely pursue their economic,

social and cultural development.” International Covenant on Civil and Political

Rights art. 1, Dec. 16, 1966, 999 U.N.T.S. 171, available at http://www2.ohchr.org/

english/law/ccpr.htm#art25 [hereinafter ICCPR].

See Higgins, supra note 73, at 30.

See generally G.A. Res. 2625, U.N. Doc. A/RES/25/2625 (Oct. 24, 1970)

[hereinafter G.A. Res. 2625]. The relevant language reads: “The establishment of a

sovereign and independent State or the emergence into any other political status

freely determined by a people constitute modes of implementing the right of self-

determination by that people.” Id. Also note the so-called “saving clause,” addressed

below, which reaffirms the preeminence of the principle of territorial integrity:

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2008] KOSOVO’S DECLARATION OF INDEPENDENCE 429

the principle of self-determination and the possibility of a people’s right

to secede to areas outside of the decolonization context.

With respect to secession, it is important to note “that the overwhelm-

ing majority of States participating in the drafting of the Declaration [on

Friendly Relations] took strong exception to the notion that peoples

might have a right of secession.”

It should also be noted, however, that

the text of the Declaration on Friendly Relations does not rule out seces-

sion. The impairment of a State’s territorial integrity resulting from

secession is logically admitted because it is not totally excluded from the

saving clause.

The clause’s prohibition of the impairment of a State’s

territorial integrity is limited to instances where the State in question is

conducting itself “in compliance with the principle of equal rights and

self-determination of peoples . . . [and] representing the whole people

belonging to the territory . . . .”

It follows logically that where a State is

not in compliance with equal rights, an oppressed people could have a

valid claim for impairing the State’s territorial integrity through the vehi-

cle of secession.

Beginning with the Commission of Rapporteurs’s ruling on the status

of the Aaland Islands, there seems to be consistency over time and

among the views of the international community with respect to a non-

colonized people’s right to secede.

Specifically, there is consistency in

that the possibility for secession has never been totally foreclosed from

the time the Commission of Rapporteurs inked their opinion through the

codification of the Declaration on Friendly Relations.

Despite this pos-

Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging

any action which would dismember or impair, totally or in part, the territorial

integrity or political unity of sovereign and independent States conducting themselves

in compliance with the principle of equal rights and self-determination of peoples as

described above and thus possessed of a government representing the whole people

belonging to the territory without distinction as to race, creed or colour. Id.

[hereinafter Declaration on Friendly Relations Saving Clause].

ASSESE

, supra note 59, at 70. Additionally, it is important to note that, while

these General Assembly Resolutions do not constitute opinio juris, they nonetheless

demonstrate legal positions taken and adopted by U.N. Member States. Id. at 69-70.

Id. at 112.

For the full text of the Declaration on Friendly Relations Saving Clause, see

supra note 81.

Id.

In assessing the views of the international community, where South Africa

expressed reservations about the saving clause due to its logical outcome of impairing

territorial integrity, “the other States did not contest either the specific contention of

South Africa, nor its general thrust, namely that the saving clause made allowance for

secession.”

ASSESE

, supra note 59, at 119.

Note the language of the saving clause seems to limit any possible entitlement to

secede to racial and religious groups (precluding distinction based on “race, creed or

colour”). See Declaration on Friendly Relations Saving Clause, supra note 81. For a

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430 BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL [Vol. 26:417

sibility, the interpretation that self-determination is to be exercised within

the territory and political framework of the independent State is more

commonly accepted.

As further evidence of the extensive limitations on an external right to

self-determination, “[p]ractice does not support a broad interpretation [of

the Declaration on Friendly Relations] and further, no mechanism really

exists to determine whether a particular State may be the subject of

secession on the basis of nonconformity with the proviso [the saving

clause].”

Despite this contention, the Canadian Supreme Court’s most

recent judicial decision concerning Quebec’s right to secede from Canada

reaffirms the Declaration on Friendly Relations’ contention that a right

to secession may not be limited to formerly colonized peoples:

[A] right to secession only arises under the principle of self-determi-

nation of people at international law where ‘a people’ is governed as

part of a colonial empire; and possibly where ‘a people’ is denied any

meaningful exercise of its right to self-determination within the state

of which it forms a part.

That said, “[a] right to external self-determination . . . arises only in the

most extreme of cases and, even then, under carefully defined circum-

stances.”

Despite this possibility, it is difficult to establish a standard by

which a State’s breach of the saving clause can be determined.

B. State Practice and Secession

For a secession claim to be considered legal, State practice tends to

emphasize consent of the parties involved as a necessary condition.

the case of the Baltic States, Lithuania, Estonia and Latvia, after the col-

lapse of the Soviet Union, the U.N. Security Council did not consider

applications for recognition and membership until the Soviet Union

agreed to recognize the newly declared States.

With respect to the for-

mer SFRY, none of the federal republics was admitted to the U.N. until

Serbia-Montenegro adopted a new constitution and renounced territorial

claims to the former republics.

Once Serbia-Montenegro adopted its

more detailed discussion of what constitutes a “people” and who holds the power to

employ the narrow exception of secession, see infra Section IV.A.

See Malcolm N. Shaw, The Role of Recognition and Non-recognition with

Respect to Secession: Notes on Some Relevant Issues, in

ECESSION AND

NTERNATIONAL

243, 248 (Julie Dahlitz ed., 2003).

Id.; see also

ASSESE

, supra note 59, at 122.

Secession of Quebec, supra note 66, at 222.

Id. at 282.

See generally

RAWFORD

, supra note 24, at 391-415.

Id. at 394.

Id. at 399. It is interesting to note the general acceptance among the

international community that the former SFRY was a case of dissolution. Technically,

this finding suggests no continuing State existed, including the newly-formed FRY,

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2008] KOSOVO’S DECLARATION OF INDEPENDENCE 431

new constitution and most of the former SFRY republics were admitted

to the U.N., the Badinter Commission concluded that the dissolution of

the SFRY was complete.

This trend in State practice, that consent and international recognition

are prerequisites for recognizing a right to secession, raises questions

about the role State recognition law plays in situations where the people

of a territory like Kosovo declare their independence without consent

from the predecessor State.

The facts and circumstances surrounding the unsuccessful attempts at

secession since 1945 are also instructive. Indeed, “no new State formed

since 1945 outside the colonial context has been admitted to the United

Nations over the opposition of the predecessor State.”

State practice

suggests that there is very little, if any, support for unilateral declarations

of independence like that of Kosovo, where the government of a particu-

lar State demonstrates opposition to secession.

In fact, this contention

“has been true even when other humanitarian aspects of the situations

have triggered widespread concern and action.”

The situation of the Kurdish people in northern Iraq, for example,

became a matter of international concern based on oppression by the

Iraqi government.

100

The calamity triggered action on the part of the

U.N. Security Council as well as individual States. Despite what

appeared to be the kind of persecution and violent mistreatment that the

Commission of Rapporteurs foresaw as necessary before recognizing

secession as a remedy, the Security Council continuously reaffirmed

Iraq’s territorial integrity each time it took action.

101

Either the abuse

Iraq perpetrated against the Kurds was insufficiently serious or something

more than mere abuse is necessary to satisfy a unilateral claim for

secession.

In the situation of Bosnia-Herzegovina, the Serbian population within

Bosnia-Herzegovina, which constituted approximately thirty-five percent

during the early 1990’s,

102

conducted a plebiscite in favor of indepen-

that would have to recognize the other new States prior to obtaining U.N.

membership and more broadly accepted international recognition.

Conference on Yugoslavia Arbitration Commission: Opinions on Questions

Arising from the Dissolution of Yugoslavia, Opinion No. 8, July 4, 1992, 31 I.L.M.

1488, 1521-23 (1992) [hereinafter Badinter Commissioner].

This issue is discussed in more detail infra Section VI.

RAWFORD

, supra note 24, at 415.

See id. at 403.

Id.

100

See id. at 403-04.

101

See id. at 404. See also S.C. Res. 686, U.N. Doc. S/RES/686 (Mar. 2, 1991); S.C.

Res. 687, U.N. Doc. S/RES/687 (Apr. 3, 1991); S.C. Res. 688, U.N. Doc. S/RES/688

(Apr. 5, 1991); S.C. Res. 949, U.N. Doc. S/RES/949 (Oct. 15, 1994), available at http://

www.un.org/documents/scres.htm.

102

See

RAWFORD

, supra note 24, at 406.

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432 BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL [Vol. 26:417

dence. In analyzing the validity of this claim, the Badinter Commission

found that “the right to self-determination must not involve changes to

existing frontiers at the time of independence (uti possidetis juris) except

where the States concerned agree otherwise.”

103

As a remedy, the Serbs

of this region were limited to international standards of minority and

human rights protection which amounted to autonomy within Bosnia-

Herzegovina (internal self-determination) rather than independence

(external self-determination). The Commission based its finding on what

it viewed as the overriding principles of uti possidetis and territorial integ-

rity,

104

which, if applied to Kosovo’s declaration of independence, seems

to indicate the action was illegal.

Within the context of an unstable federated State like the former SFRY

a strong argument can be waged against extending an international right

to secede:

Early recognition of the successor States was based on the conclu-

sion that as a matter of political fact the former Yugoslavia was dis-

solving, that this process was irreversible and that the so-called

‘federal authorities’ were in fact an emanation of Serbia-Montenegro

and had no title to represent the former Yugoslavia as a whole.

105

The Badinter Commission relied more on the breakdown of federal

power sharing than it did on self-determination grounds in its finding that

the former SFRY had dissolved.

106

The fact that the Commission justi-

fied its conclusion on these grounds is significant to the case of Kosovo

because no right to secede was ever expressly accepted during the

breakup of the SFRY, a political unit of which Kosovo once was a part.

107

This State practice, in addition to international silence on Kosovo’s

expressed desire to disassociate from Serbia, cuts strongly against recog-

nizing an international legal right for Kosovo to secede from Serbia.

Perhaps the only instance of State practice providing favorable support

for Kosovo is Bangladesh’s secession from Pakistan. In the case of Ban-

gladesh, the U.N. and international community viewed the violence and

repression employed by Pakistan’s army as an irreversible roadblock to

reunification.

108

Whether the people of East Bengal had a right to self-

determination or whether their State arose out of a “remedial secession”

or a fait accompli is unclear.

109

Regardless of the reason, it is important

to note that Bangladesh’s admission to the U.N. followed Pakistan’s rec-

103

Badinter Commission, supra note 95, Opinion No. 2, Jan. 11, 1992, 31 I.L.M.

1497, 1498 (1992).

104

Id.

105

RAWFORD

, supra note 24, at 401.

106

See id. at 397; see also Matthew C.R. Craven, The European Community

Arbitration Commission on Yugoslavia, 1995

RIT

. Y.B. I

’

333, 389-390 (1995).

107

See

RAWFORD

, supra note 24, at 400.

108

See id. at 416.

109

See id. at 393.

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2008] KOSOVO’S DECLARATION OF INDEPENDENCE 433

ognition of Bangladesh.

110

Therefore, despite Bangladesh’s success in

achieving its independence against the will of the predecessor State, it

still needed Pakistan’s recognition before earning admission to the

United Nations.

111

IV. E

STABLISHING A

EGAL

TANDARD FOR

NILATERAL

ECESSION

AND

PPLYING IT TO

OSOVO AND

ERBIA

A. What constitutes a people?

Perhaps most damaging to Kosovo’s case is whether the Kosovo

Albanians constitute a “people” entitled to independence from Serbia.

The concept of “people,” to which the U.N. Charter,

112

General Assem-

bly resolutions,

113

and Human Rights treaties

114

refer, has been ill-

defined and remains unclear. This lack of clarity, like in many areas of

international law, allows adverse parties to make equally plausible argu-

ments, which perpetuates the confusion. In the case of Kosovo and

Serbia:

Parties affirming an existing disposition of territory [like Serbia]

have used the term “people”, if at all, as referring to the accepted

categories of self-determination unit discussed above [“the majority

within a generally accepted political unit”]. Parties seeking revision

of some territorial arrangement [like the Kosovo Albanians], in con-

trast, will take the view that the inhabitants of the territory constitute

a separate ‘people’ if the population favours change . . . .

115

Throughout international legal history, “the term ‘people’ has been

used to signify citizens of a nation-State, the inhabitants in a specific terri-

tory being decolonized by a foreign power, or an ethnic group.”

116

“people” refers to the entire nation, i.e., all inhabitants of Serbia, then the

Kosovo Albanians have no valid claim because those seeking indepen-

dence are severely outnumbered by the majority Serbs. If, on the other

hand, the “people” to which much of the relevant treaty law and judicial

opinions refer includes an ethnic minority within a particular territory,

then the Kosovo Albanians would seem to fit this criterion.

110

See id. at 158.

111

See id. at 393. Kosovo differs from these instances of State creation because the

predecessor State, Serbia, has not, and vows it never will, recognize Kosovo as an

independent State. See James Robbins, Serbia Faces Crossroads over Kosovo, B

EWS

Feb. 22, 2008, available at http://news.bbc.co.uk/2/hi/europe/7258842.stm.

112

See generally U.N. Charter, supra note 71.

113

See generally G.A. Res. 1514, supra note 76; see also G.A. Res. 2625.

114

See generally ICCPR, supra note 79.

115

RAWFORD

, supra note 24, at 125.

116

Christopher J. Borgen,

OSOVO

’

ECLARATION OF

NDEPENDENCE

: S

ELF

ETERMINATION

, S

ECESSION AND

ECOGNITION

, ASIL I

NSIGHTS

Feb. 29, 2008,

http://www.asil.org/insights/080229.cfm.

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434 BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL [Vol. 26:417

In resolving this conceptual inconsistency, it seems difficult to imagine

Serbia’s conception of “people” as the prevailing standard for secession

analysis because it is antithetical to well established legal norms of human

rights and minority protections. Without recognizing the smaller, politi-

cally weaker collections of a State’s population as units entitled to an

internationally protected right to self-determination, a State is free to

ignore the demands of such groups without the fear of consequences.

Recognizing a minority group’s right to secede, however limited and

remote, is an effective way to deter a State from engaging in discrimina-

tory behavior and human rights abuse against its minorities. Because

minority protection and human rights are one of the few concrete, cus-

tomary norms under international law, it seems likely that the “people”

to which various international instruments refer in attempting to define

self-determination is not limited to the entire nation. Despite this intui-

tive notion of “people,” practice supports the contrary view that “people”

is the entire State.

117

Due to the fact that “self-determination units are

coming increasingly to be States . . . it is likely that self-determination in

the future will be a more conservative principle than has sometimes been

feared.”

118

B. Human Rights violation

A claimant seeking to secede must show serious human rights viola-

tions by the State of which it was formerly a part. This requirement, as

mentioned above, has become fairly well established through the Aaland

Islands,

119

Badinter,

120

and Secession of Quebec

121

cases. The more con-

troversial aspect of this requirement is whether the violations must be

ongoing and persistent. Construed in the most limiting light, as entitle-

ments to secession are to be granted “in only the most extreme of

cases . . . and under carefully defined circumstances,”

122

it seems plausible

to infer that the abuses must be ongoing.

C. Last Resort

As the Canadian Supreme Court wrote in its discussion of the possibil-

ity of secession, there may be a rule developing under international law

such that “when a people is blocked from the meaningful exercise of its

right to self-determination internally, it is entitled, as a last resort [empha-

sis added], to exercise it by secession.”

123

This criterion is consistent with

the notion of secession as permissible only in the most dire situations.

117

See

RAWFORD

, supra note 24, at 126.

118

Id.

119

See generally Commission of Rapporteurs, supra note 69.

120

See generally Badinter Commission, supra note 95.

121

See generally Secession of Quebec, supra note 66.

122

Secession of Quebec, supra note 66, at 282.

123

Id. at 285.

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2008] KOSOVO’S DECLARATION OF INDEPENDENCE 435

Realistically, such extreme circumstances like government-sponsored

violence against its own citizens leave few, if any, domestic solutions.

Under less harsh circumstances, viable remedies falling short of secession

are realistic and often workable. For instance, where a government or

private institutions actively engage in discriminatory practices against a

particular minority, legislative and judicial channels are more likely to be

fruitful than in a violent state of affairs. Alternatively, a government may

agree to a federal arrangement in which the aggrieved population attains

enough autonomy to develop free from oppression without relinquishing

all of its control over the region. Due to the traditional presumption

against secession, it is reasonable to limit the exception to situations

where no other remedy seems feasible.

V. A

PPLYING THE

AW T O

OSOVO

The aforementioned three prongs of this standard for secession, in real-

ity and in practice, are inseparable. For instance, the Albanians of

Kosovo should qualify for “people” status within the law of self-determi-

nation largely because of the history of Serbia’s perpetration of human

rights abuses against the Albanian minority. The remedies have been

exhausted and attempts to return to the political arrangement of the 1974

Constitution are futile because of Serbia’s perpetration of human rights

abuses against the Albanian minority. Conceptually, however, it is help-

ful to separate these three principle components of the analysis.

A. Are the Kosovo Albanians a “people”?

While the question of whether the Albanians of Kosovo constitute a

people under the current state of the law of self-determination is unclear,

the violent historical context and cultural and linguistic divide between

Kosovo and Serbia merits classifying Kosovo as a people.

In support of such a classification, the Albanians of Kosovo have

inhabited the region for centuries

124

and view themselves as culturally

separate and distinct from the Serbians with whom they share the region.

On the other hand, the Kosovo Albanians are generally seen as an ethnic

enclave rather than their own nation like Albania.

125

Indeed, the country

of Albania borders the Kosovo region to the southwest and is populated

by a significant Albanian Muslim majority, the same ethnic majority con-

stituting roughly 90% of Kosovo.

126

The international community might

find it troubling to recognize a new State of approximately two million

Muslim Albanians when an entire State of this nationality exists across its

southwestern border.

124

AIN

ING

& W

HIT

ASON

EACE AT

RICE

: H

OW THE

ORLD

AILED

OSOVO

25-27 (2006).

125

See Borgen, supra note 116.

126

ALCOLM

, supra note 1, at 9-10; see also Kosovo Statistics, supra note 12.

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436 BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL [Vol. 26:417

Given this population arrangement, the Albanians seem to more

closely resemble the Swedes residing in the Aaland Islands rather than

the Fins seeking separation from Russia. Indeed, Swedish Aalanders

were linguistically and historically similar to the inhabitants of Sweden as

the Albanian Kosovars are linguistically and historically similar to the cit-

izens of Albania. However, according to the reporters charged with

determining whether the Aalanders’ attempt to merge with Sweden was a

matter outside the domestic jurisdiction of Finland, without “a manifest

and continued abuse of sovereign power, to the detriment of a section of

the population of a State . . .”,

127

the matter is to be characterized as

domestic and within Finland’s authority to determine the political fate of

the Aalanders.

The human rights atrocities that took place throughout the late twenti-

eth century are well documented. The Serbian republic of the former

FRY used its military and police forces to intimidate, massacre, and expel

Kosovo Albanians.

128

Therefore, while the Albanians of Kosovo may

share qualities with the Swedish Aalanders in their status as a small, eth-

nic enclave, they did not suffer the same legal shortcoming. Kosovo

Albanians suffered sufficiently grievous human rights abuses perpetrated

by Serbia, re-characterizing a once domestic issue as an international one.

When considering the principle of self-determination, “[t]his core con-

sists in the right of a community which has a distinct character to have

this character reflected in the institutions of government under which it

lives.”

129

Character is made up of various criteria – race, culture, lan-

guage, religion, group psychology, etc.

130

Some scholars, like Brownlie,

believe “the heterogeneous terminology which has been used over the

years—the references to ‘nationalities’, ‘peoples’, ‘minorities’, and ‘indig-

enous populations’—involves essentially the same idea.”

131

The notion

of a minority is relative, while the question of whether a collectivity con-

stitutes a “people” is qualitative.

132

Most importantly, the notion of a

people depends on context – sometimes it includes only the formerly col-

onized, sometimes it includes all citizens of a state, and sometimes it

includes all self-identifying groups.

133

Because the history, language,

127

Report of the International Committee of Jurists Entrusted by the Council of the

League of Nations with the Task of Giving an Advisory Opinion upon the Legal

Aspects of the Aaland Islands Question, League of Nations O.J., Special Supp. No. 3

(1920).

128

Demjaha, supra note 37, at 34-35.

129

Ian Brownlie, The Rights of Peoples in Modern International Law, in

IGHTS OF

EOPLES

1, 5 (James Crawford ed., 1988).

130

See id.

131

Id.

132

David Makinson, A Logician’s Point of View, in

IGHTS OF

EOPLES

69, 73

(James Crawford ed., 1988).

133

James Crawford, The Rights of Peoples: Some Conclusions, in

IGHTS OF

EOPLES

159, 169 (James Crawford ed., 1988).

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2008] KOSOVO’S DECLARATION OF INDEPENDENCE 437

religion, and culture of the two main constituent groups of Serbia’s popu-

lation, Serbs and Muslim Albanians, are so clearly distinct, it is sensible to

confer the status of “peoples” to the Muslim Albanians in order to allow

for their realization of self-determination.

B. Human Rights violations

The Serbian government quite clearly perpetrated human rights abuses

against the Albanians of Kosovo,

134

including the Racak Massacre which

ultimately inspired the international community to act.

135

What remains

debatable, however, is how to factor in the nearly decade-long period of

fairly abuse-free behavior on the part of the Serbian government.

In the balance, Kosovo seems to fulfill this most fundamental legal

requirement of unilateral secession. The human rights abuses initially

ceased only after several months of a NATO-led bombing campaign. The

longevity of this cessation of violence can be directly attributed to

NATO’s military presence, which has remained in the region as a peace-

keeping force since the day Milosevic signed the agreement to withdraw

Serbia’s military presence in exchange for the end of the bombing cam-

paign. There is no empirical method to surmise what would have hap-

pened had NATO withdrawn its forces at the time Serbia withdrew its

forces, but the violent nature of the conflict between the Albanians and

the Serbs makes it difficult to argue plausibly that the atrocities would

have ceased and relative peace and stability would have ensued. It seems

fundamentally unfair to find against the Albanians and for the Serbs sim-

ply because the international community intervened and put a stop to

what otherwise could have resulted in the kinds ongoing human rights

abuses necessary to satisfy claims of secession.

C. Last Resort

There are strong arguments that Kosovo and Serbia have exhausted the

prospect internal remedies. Primarily, the experiment of substantial

autonomy within a federated political arrangement failed when Slobodan

Milosevic and the SFRY government coercively abolished the autonomy

Albanians had previously enjoyed under the 1974 Constitution. Follow-

ing this revocation of self-government and the development of the

Kosovo Liberation Army

136

(“KLA”), the former SFRY’s behavior esca-

lated to physical violence in response to the development of the KLA.

137

Finally, in order to end the atrocities, then FRY President Milosevic

agreed to remove the FRY’s military and police presence pursuant to

134

Demjaha, supra note 37, at 34-35.

135

Id. at 35.

136

The KLA was an armed organization which developed in response to Serbian

repression that committed acts of violence against Serbian police and civilians. Id. at

34.

137

Id.

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438 BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL [Vol. 26:417

Resolution 1244 and the Military Technical Agreement.

138

As a result,

UNMIK became the dominant government administrator.

Serbia might contend that because the human rights violations took

place a decade ago, and because those responsible are being prosecuted

in the International Criminal Tribunal of the Former Yugoslavia

(“ICCTY”), a peaceful arrangement in which Kosovo remains an autono-

mous political unit within Serbia can and should be achieved over time.

In response, Kosovo’s supporters could argue that this relatively stable

interlude would be unsustainable but for UNMIK’s and NATO’s nearly

decade-long presence in the region as a buffer. In other words, Kosovo’s

final legal status cannot be resolved using domestic political resources

because there seems to be too much inflammatory history and political

contention between Serbia and Kosovo to conceive of a realistic arrange-

ment other than an independent Kosovo.

In fact, U.N. Special Envoy to Kosovo Martti Ahtisaari supervised

talks between Kosovo and Serbian delegations for more than one year,

which were unable to reach a settlement.

139

The Troika, made up of the

United States, the E.U., and Russia, reported to the U.N. Secretary Gen-

eral in December 2007 that “the parties were unable to reach an agree-

ment on the final status of Kosovo. Neither party was willing to cede its

position on the fundamental question of sovereignty over Kosovo.”

140

seems that “most, if not all, realistic options other than separation had

failed.”

141

VI. P

OLITICAL

EALITIES AND

TATE

ECOGNITION

Certain inconvenient realities often make it difficult to fully ascertain

the state of a particular area of international law and the expected out-

comes of its application. For instance, there is no existing legal system

under which Kosovo, prior to declaring its independence, could sue Ser-

bia and have a court make an enforceable declaration of its right or lack

of a right to secede. After years of failed negotiations and what Kosovo

perceived as a dead end, it unilaterally declared its independence, putting

the pressure on the rest of the world to react and respond. Critics who

view as futile the type of retrospective, theoretical analysis undertaken in

this note are right to point out the limits of its on-the-ground impact.

While Kosovo’s unilateral attempt to secede will influence the develop-

ment of the law in this area, ultimately the international community and

its member States, through their collective and individual decisions to

138

Id. at 37.

139

Report of the E.U./U.S./Russia Troika on Kosovo, ¶ 2 (Dec 4, 2007), http://

www.ico-kos.org/pdf/Report%20of%20the%20EU-US-Russia%20Troika%20on%20

Kosovo.pdf.

140

Id. at ¶ 3.

141

Borgen, supra note 116.

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2008] KOSOVO’S DECLARATION OF INDEPENDENCE 439

recognize or not recognize Kosovo, may ultimately determine whether or

not Kosovo will attain the rights accompanying statehood.

The doctrine of State recognition is crucial to the assessment of

Kosovo’s declaration of independence because it brings to light the politi-

cal realities which cannot be separated from the law or from any inquiry

aimed at ascertaining the law in a particular area. Does it matter whether

entities which view themselves as States have the support of other States

and relevant international actors? The two principal notions of State rec-

ognition which grapple with this question are the declaratory and consti-

tutive theories. Under the declaratory view, recognition is merely a

political act, irrelevant to the determination of whether a political entity

constitutes a State.

142

The entity’s status is based on objective criteria,

which, along with the declaratory view, was codified in the Convention on

the Rights and Duties of States (“Montevideo Convention”).

143

The two

provisions relevant to this discussion declare:

Article 1

The State as a person of international law should possess the follow-

ing qualifications: (a) a permanent population; (b) a defined terri-

tory; (c) government; and (d) capacity to enter into relations with

other States.

Article 3

The political existence of the state is independent of recognition by

the other States . . . .

144

Since its codification in 1933, the declaratory theory has been more

prevalent, but “to reduce . . . the issues to a choice between the two

opposing theories is to greatly oversimplify the legal situation.”

145

The countervailing view, the constitutive theory, “maintains that it is

the act of recognition by other states that creates a new state . . . and not

the process by which it actually obtained independence.”

146

Despite the

fact that the declaratory view seems to be more consistent with state prac-

tice, there is considerable support for the constitutive view. In 1965, after

the white-dominated minority government of Southern Rhodesia

147

uni-

laterally declared its independence from Britain, the U.N. Security Coun-

cil, despite the clear satisfaction of the Montevideo Convention criteria,

condemned what it viewed as a racist regime and deemed the declaration

142

ROWNLIE

, supra note 58, at 86-87.

143

See generally Montevideo Convention on the Rights and Duties of States, Dec.

26, 1933, 49 Stat. 3097, 165 L.N.T.S. 19 [hereinafter Montevideo Convention].

144

Id. at arts. 1, 3.

145

ROWNLIE

, supra note 58, at 88.

146

HAW

, supra note 66, at 368.

147

Rhodesia is present-day Zimbabwe.

EFFREY

ERBST

TATE

OLITICS IN

IMBABWE

xiii (1990).

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440 BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL [Vol. 26:417

illegal.

148

Nearly all States subsequently refused to engage in external

relations with Southern Rhodesia, demonstrating that in some circum-

stances, there is more at play in determining the merits of a claim to state-

hood than the objective criteria set out in the Montevideo Convention.

In addition to the illustration of Southern Rhodesia, the international

response to the former Yugoslav crisis, with respect to Europe at least,

suggests a shift away from a declaratory view of State recognition toward

a more constitutive view. The Guidelines on Recognition of New States

in Eastern Europe and the Soviet Union (“Guidelines on Recognition”)

“laid down various preconditions for recognition of new States in Eastern

Europe and the Soviet Union, including respect for minority rights and

maintenance of existing boundaries.”

149

The practice of the European

Community (“EC”), which involved placing preconditions for recognition

on the former Yugoslav republics set out in the Guidelines for Recogni-

tion, like Security Council Resolution 217 on Southern Rhodesia, went

beyond the traditional statehood criteria

150

and based recognition on

political considerations.

The Canadian Supreme Court, after denying Quebec the right to

secede under Constitutional or international law, understood that “this

[denial of the right to secede] does not rule out the possibility of an

unconstitutional declaration of secession leading to a de facto secession.

The ultimate success of such a secession would be dependent on recogni-

tion by the international community . . . .”

151

This passage, as well as the

abovementioned Guidelines on Recognition, are relevant to Kosovo

because many countries have made their support clear, and if a critical

mass of politically relevant States continues to recognize its Statehood,

while State practice in the region seems to have shifted towards a consti-

tutive view of State recognition, then Kosovo’s declaration may have

already become a de facto secession.

152

Even if the proper view of State recognition is declaratory, Kosovo

seems to objectively satisfy the traditional criteria. With more than two

148

See S.C. Res. 217, ¶ 3, U.N. Doc. S/RES/217 (Nov. 20, 1965), available at http://

daccessdds.un.org/doc/RESOLUTION/GEN/NR0/222/88/IMG/NR022288.pdf?Open

Element. The U.N. has considerable influence over State recognition and whether an

entity possesses the rights of States. Indeed, “in practice since the U.N. is only open

to States, admission to the U.N. amounts to recognition of statehood.” Shaw, supra

note 88, at 251.

149

RAWFORD

, supra note 24, at 397.

150

It is important to consider, though, that despite the imposition of stricter

conditions for recognition, these conditions may not be realized in practice. It is

likely, for instance, that “in the case of certain Yugoslav successor States, the

conditions posited [by the Guidelines] were not fulfilled, or were not at the time of

the recognition in question.” Shaw, supra note 88, at 253-54.

151

Secession of Quebec, supra note 66, at 296.

152

Of course, “[s]uch a recognition, even if granted, would not, however, provide

any retroactive justification for the act of secession.” Id.

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2008] KOSOVO’S DECLARATION OF INDEPENDENCE 441

million inhabitants residing in the region, Kosovo is made up of a perma-

nent population. The boundaries are well-established, as the earlier con-

stitutions of the SFRY and FRY acknowledge Kosovo as an autonomous

province within the federated State. With this status came a clear territo-

rial definition over which local government institutions presided. Since

UNMIK first took over the civil administration of Kosovo in 1999,

uniquely Kosovar institutions of self-government have been in place and

have gradually taken on more responsibility throughout UNMIK’s pres-

ence in the region.

153

Finally, while UNMIK has remained responsible

for entering into relations with other states on behalf of Kosovo, and

while the existence of a viable Kosovo military is weak at best, “it is possi-

ble for a state to assign some of its foreign relations capacity to another

state (such as Liechtenstein has assigned to Switzerland) or to an interna-

tional organization (such as has occurred in the European Union) with-

out losing its status as a state.”

154

Irrespective of this potential deficiency,

Kosovo’s capacity to carry out its own foreign relations will likely grow as

the United States and many of the European States are poised to set up

diplomatic institutions within Kosovo.

In its current conflated form, the law of State recognition seems ill-

equipped to thwart unlawful secessionist claims validated by widespread

international approval. In order to prevent the necessarily narrow excep-

tion from swallowing the general rule against unilateral claims of seces-

sion, it is advisable for States to base recognition determinations on legal,

rather than political considerations.

155

Given the realities of political,

economic and military pressure often exerted by more powerful actors,

and the lack of crystallized criteria in the area of unilateral secession, this

prescription is lofty. As the political status of Kosovo moves closer to

finality and the state of the law in this area becomes clearer, States will be

more competent to render judgments with respect to claims of unilateral

secession where legal, rather than political, considerations will weigh

most heavily in the decision.

VII. C

ONCLUSION

Based on the substantial history of international treaties, opinions, and

practice, the door leading to unilateral secession has remained open,

albeit slightly. A valid claim requires, at least, (1) a people (2) subject to

153

Int’l Crisis Group, Kosovo Countdown: A Blueprint for Transition 14 (2007),

http://www.crisisgroup.org/library/documents/europe/balkans/188_kosovo_countdown

___a_blueprint_for_transition.pdf.

154

EAN

D. M

UPRHY

RINCIPLES OF

NTERNATIONAL

33 (2006).

155

See Robert D. Sloane, The Changing Face of Recognition in International Law:

A Case Study of Tibet, 16

MORY

’

L. R

107, 110-111 (2002) (arguing failure

to distinguish political recognition from legal recognition and civil legitimacy results

in ambiguity along with the risk that confusing political recognition with perceptions

of legitimacy can result in the perpetuation of injustice).

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442 BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL [Vol. 26:417

historical and persistent State-sponsored human rights abuse (3) with no

viable alternative recourse within domestic legal channels. Kosovo’s

overwhelming majority of Muslim Albanians constitutes an ethnic, relig-

ious, linguistic and cultural enclave within the larger population of Serbia,

separate and distinct from its majority Serbs. Beginning in the 1980’s and

through the end of the century, the Kosovo Albanian people suffered

human rights abuse ranging from publicly and privately sponsored dis-

crimination to State-backed massacre. As a result of this ugly history,

failed internationally-led negotiation attempts, and nearly a decade of,

effectively, a Serbian-free government, an independent State of Kosovo

seems to be not only realistic, but also inevitable.

Serbia and its supporters

156

are correct to cite the language of Security

Council Resolution 1244 as an international reaffirmation of its sover-

eignty and territorial integrity with respect to Kosovo.

157

Additionally,

they are justified in their concern over a risky precedent which could

result from an internationally legitimized claim of unilateral secession.

Indeed, international peace and stability cannot be emphasized enough

when considering a claim for secession. With that said, in a close case like

that of Kosovo, these arguably paramount values of peace and stability

must not be employed dismissively and without careful consideration of

the countervailing policies.

Kosovo, in recent years, has been an epicenter of international contro-

versy. In 1999, the international community conducted the experiment of

humanitarian intervention in Kosovo, which remains controversial. In

2008, Kosovo and its supporters have commenced the experiment of uni-

lateral secession. Accompanying these experiments has been regrettable

violence and loss of life. If the international community seeks to avoid

these calamities rather than wait for them to unfurl, a fairly uncontrover-

sial objective, it is crucial to develop widely accepted legal norms that

lurk in the background and serve as deterrents. If Kosovo is upheld in

the international community as the rare but legitimate paradigm for

claims of unilateral secession, then oppressive States will have to think

more than twice before engaging in atrocities against defenseless mem-

bers of its population.

Improving clarity in this area of law, as well as increasing the predict-

ability of the behavior of international actors in future situations of simi-

lar character, is equally valuable to reaching the right result. Recognizing

Kosovo’s declaration of independence as legal would bring a considerable

extent of finality to a previously tumultuous and uncertain situation in the

Balkans. Globally, acceptance would elucidate, rather than continue to

veil, a legitimate, developing principle of international law.

156

This group consists largely of other States with similar separatist concerns, e.g.

Spain, Cyrpus, Russia, and China. See To Recognise, supra note 4.

157

See S.C. Res. 1244, supra note 9, Preamble, Annex I, Annex II ¶ 8.