unilateral declaration of independence kosovo

Annals Fac. [16] Id. [28][29][pageneeded], The Contact Group had issued in 2005 the Guiding Principles upon which the final status of Kosovo shall be decided. Finally, he noted that the signatories were invited to sign [the declaration] in his/her capacity of either the member of Kosovo Assembly or the member of Chairmanship of the Assembly. Id. Throughout the 1990s, Kosovar Albanians sought restored autonomy for Kosovo or independence. A state of emergency and harsh security rules were subsequently imposed against Kosovo's Albanians following mass protests. In its Advisory Opinion delivered on 22 July 2010, the Court concluded that "the declaration of independence of Kosovo adopted on 17 February 2008 did not violate international law". The negotiations for the final status of Kosovo were supposed to convince Serbia to recognise its independence. As long as a state provides a minority group the ability to speak their language, practice their culture in a meaningful way, and effectively participate in the political community, then that group is said to have internal self-determination. [3] In the aftermath of NATOs military intervention, which brought Serbia back to diplomatic negotiations, the Security Council adopted Resolution 1244, authorizing interim international territorial administration of Kosovo, the creation of the United Nations Mission in Kosovo (UNMIK), and the implementation of provisional institutions of democratic self-government.[4]. The EU countries that recognised Kosovo praised the verdict and call for dialogue between Kosovo and Serbia, they also called for other states to now recognise Kosovo; all five EU states that have not recognised Kosovo stated that the decision is a narrow view only on the text of the declaration and they would not change their positions. In 2008-2009, he clerked for Vice-President Peter Tomka and Judge Christopher Greenwood at the International Court of Justice and Judge Leonard I. Garth at the US Court of Appeals for the Third Circuit in 2007-2008. towards them will depend on the steps they take. It was approved by a unanimous quorum, numbering 109 members. In a June 2008 letter to French President Nicolas Sarkozy, he had stated that "unilateral declaration of independence by Kosovo and its recognition by some EU member-states in violation of the principles of International Law and UN Security Council's resolutions and without a previous decision by the EU's 27 member-states, does not contribute . of the Community of Municipalities of the Autonomous Province of Kosovo He said that Serbia has thus gained importance However, if some other opinions are made, nobody can expect those who read the opinion not to interpret it as a message for the future. The will of the people of Kosovo to freely determine their political status goes back many years and was clear to all participants in the 1999 Rambouillet Conference. "[46], On 23 February, 44 protesters were arrested after burning the Serbian flag, in the main square of Zagreb (Croatia), following Serb protesters attacking the Croatian embassy in Belgrade, Serbia. "[93], Adoption and terms of the declaration of independence, Reactions to the declaration of independence, Declaration of Vice-President Tomka, Judge of the International Court of Justice, concerning the Opinion given by the ICJ concerning the Kosovo declaration of independence, World and Its Peoples, Marshall Cavendish, 2010, p 1985, Balkan Worlds, Traian Stoianovich, M.E. [36] The court delivered its advisory opinion on 22 July 2010; by a vote of 10 to 4, it declared that "the declaration of independence of the 17th of February 2008 did not violate general international law because international law contains no 'prohibition on declarations of independence'. How and whether it will be considered a unique case in international law or a precedent for other secessionist movements may depend on how various states interpret the law and facts that gave rise to the declaration. [2], The legality of the declaration has been disputed. [66], Unlike the 1990 Kosovo declaration of independence, which only Albania recognised,[67] Kosovo's second declaration of independence has received 111 diplomatic recognitions, of which 15 have been withdrawn. 1-16) It is unlikely that anything short of military intervention could have kept Kosovo within Serbia. [4] Resolution 1244 provided general principles on which a political solution to the Kosovo crisis was supposed to be based, one of which was: 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 [Kosovo Liberation Army]. U.N. The court should determine that there is no right to create new states outside the process of decolonisation, but this will not affect the existence of the Kosovo state. . [30] Public Sitting on the Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo (Request for Advisory Opinion Submitted by the General Assembly of the United Nations), CR 2009/32, at 47 (Dec. 10, 2009) (President Owada, presiding), available at http://www.icj-cij.org/docket/files/141/15734.pdf. J. Transnat'l L. 42 (2009): 779. . In 1991, the Kosovo Albanian leadership responded by organizing a referendum that declared Kosovo independent. The future status of Kosovo must be the result of a political process, and agreement between the two sides. The Court decided that it did not need to address the potential antinomy between these two principles, because neither Resolution 1244 nor the Constitutional Framework bound the authors of the declaration of independence. International and Comparative Law Quarterly 57.03 (2008): 675690. It has also engaged, albeit with a delay, in the border demarcation talks with North Macedonia, initially insisting on being recognised first, but dropping this condition later on. Secession by international law was allowed only in former colonies, or in cases where the minority population was oppressed for a long period of time and was denied the participation in government, however the situation in Kosovo has not met these criteria traditionally interpreted as the right for "external" self-determination. Therefore, Serbia showed that Kosovo is only a piece of land". Agreement should be reached on the following principles to move towards a resolution of the Kosovo crisis: people in Kosovo, do not wish to give up part of their territory. human organ trafficking, for which Serbia expects help from European judicial [21] (The Badinter Commission had previously rejected such a claim as a matter of international law.). What was less clear is whether the Court should use its discretion to decline to exercise its jurisdiction. A NATO-led Kosovo Force (KFOR) entered the province following the Kosovo War, tasked with providing security to the UN Mission in Kosovo (UNMIK). Any declaration of independence is one-sided by nature, and in the case of Kosovo it was also the result of a multilateral political process. [1] S.C. Res. [65], Hundreds of Bosnian Serb demonstrators broke away from a peaceful rally in Banja Luka on 26 February 2008 and headed for the United States Embassy's office there, clashing with police along the way. there are no other effective remedies under either domestic law or international law. [7] Kosovo and several states advocated such judicial restraint on grounds that the request did not relate to any substantive items on the General Assemblys agenda, but rather an ad hoc agenda item created specifically at Serbias request for purposes of seeking the advisory opinion. Serbs and other non-Albanians in Kosovo are having their basic human rights threatened, and they are being pressured to move out from the region. law", "Hrvatska branila neovisnost Kosova pred Meunarodnim sudom pravde", "Espaa pide a la ONU que declare ilegal la independencia de Kosovo", "Kosovo independence was only option, U.S. says", "Nederland verdedigt onafhankelijkheid Kosovo", "Romnia a pledat la CIJ n procesul privind independena Kosovo", "Kosovo's Declaration of Independence: Self-Determination, Secession and Recognition", "Implications of Kosovo, Abkhazia and South Ossetia for International Law The Conduct of the Community of States in Current Secession Conflicts", "Bosnian Serbs Threaten Secession Over Kosovo", "Kosovo's independence is legal, UN court rules", "Accordance with international law of the unilateral declaration of independence in respect of Kosovo (Press release)", "Tadic with Dodik: we believe ICJ will fulfill its mission", "News Politics Belgian envoy: Belgrade should act wisely", "Bulgaria's Parliament in ratification vote on Serbia's SAA deal with EU South Eastern Europe", "U.S. Vice President 'Reassures' Kosovar Prime Minister Ahead of ICJ Decision", "Kosovo independence not illegal, says UN court", "Was Kosovo's Split-off Legitimate? funds for helping them, said Bogdanovic, adding that his Ministry has also He is a co-founder of the weblog Opinio Juris, www.opiniojuris.org. General international law prevents Kosovo from declaring independence, bearing in mind that the people of Kosovo do not enjoy a right to self-determination. After failed political negotiations to resolve the status of Kosovo and the rights of the Kosovar Albanians, NATO launched an air campaign to force the Serb government to withdraw the police and military. There is no doubt that after the breakup of the Socialist Federal Republic of Yugoslavia, Kosovo was a part of the Federal Republic of Yugoslavia, that is, Serbia. In the end, we need to keep in mind that sometimes the most effective law in politically-charged situations may be the law of unintended consequences. to call for, in accordance with Resolution 1244, an urgent Security Council declaration of independence in respect of kosovo conformiteu au droit international de la deuclaration unilateurale d'indeupendance relative au kosovo 22 july 2010 The Kosovo Parliament's declaration of independence stated that Kosovo would continue to be bound by the United Nations Security Council Resolution 1244 (1999) (hereinafter "SC Resolution . "[23] According to Tomka, the Courts resolution of this issue is "outcome-determinative" as otherwise Resolution 1244 and the Constitutional Framework prohibited the Provisional Institutions declaration of independence. [5] The negotiations took place under the auspices of UN Secretary-General Special Envoy Martii Ahtisaari and a Contact Group composed of France, Germany, Italy, Russia, U.K., and the U.S. After several rounds of unsuccessful negotiations in 2006, Ahtisaari submitted a Comprehensive Proposal for the Kosovo Status Settlement, which provided for international supervisory structures, [and] the foundations for a future independent Kosovo. See Rep. of the Special Envoy of the Secretary-General on Kosovos Future Status, 5, U.N. Doc. In announcing the recognition of Kosovo by the United States, Secretary of State Rice explained: The unusual combination of factors found in the Kosovo situation - including the context of Yugoslavia's breakup, the history of ethnic cleansing and crimes against civilians in Kosovo, and the extended period of UN administration - are not found elsewhere and therefore make Kosovo a special case. Thu 22 Jul 2010 08.15 EDT. "[56] Slobodan Samardi, the Serb minister for Kosovo, stated that, "A new country is being established by breach of international law [] It's better to call it a fake country. This reflects the general understanding that recognition itself is not a formal requirement of statehood. Eighteen countries have announced that they do not recognize the secession, twelve states have asked for further negotiations, and twenty-nine states have unclear positions. Thus, the Swedes on the Aaland Islands, who were only a small fraction of the totality of the Swedish "people" did not have a strong claim for secession in comparison to, for example, Finland, which, when it broke away from Russian rule, contained the near totality of the Finnish people. Entities that declare secession while violating the internal laws of the state can not be considered as countries. The declaration of independence was made by members of the Kosovo Assembly as well as by the President of Kosovo meeting in Pristina, the capital of Kosovo, on 17 February 2008. 1 Min Read. 26, 2007). He elaborates that this constitution required a Grand National Assembly before Serbia's borders could be expanded to include Kosovo; but no such Grand National Assembly was ever held. The International Court of Justice declared in 2010 that Kosovo's declaration of independence was valid, but Serbia has disputed that ruling and refuses to recognize its . [33] Indeed, there are strong reasons to distinguish Kosovos declaration of independence from, for instance, that of South Ossetia or Abkhazia. [19] The most extensive written statement was supplied by Serbia, followed by the United States, the United Kingdom, Germany, Cyprus, Albania, Argentina, France, Spain and Russia, while Libya submitted one of the shortest statements. Resolution 1244, the UN Charter, the Helsinki Final Act and other binding [2] To prevent a recurrence of mass atrocities in the Balkans, the international community initiated diplomatic efforts, culminating in the so-called Rambouillet Accords, which provided, inter alia, for a three-year interim democratic self-government in Kosovo, albeit within the FRY. The principle of territorial integrity is inapposite, the Court held, as it is "confined to the sphere of relations between States. The International Steering Group, in its final meeting with the authorities in Pristina, declared that the Comprehensive Proposal for the Kosovo Status Settlement, known as the Ahtisaari plan after its Finnish UN creator, had been substantially implemented. [15] 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 Off. [citation needed] This came at the time when the ten-year anniversary of the Kosovo War was looming (with the five-year anniversary being marked by violent unrest); the U.S. President George W. Bush was in his last year in power and not able to seek re-election; and two nations which had previously seceded from Yugoslavia were in important political positions (Slovenia presiding over the EU and Croatia an elected member of the UN Security Council). [42], An explosive device was detonated in Mitrovica, damaging two vehicles. We often hear that international law is no law, that it does not apply to precedents, and that power is the law. In 1996, the Kosovo Liberation Army (KLA) began attacking federal security forces. 1244, supra note 1, pmbl. Protesters waved flags of the Serb People's Party and the Serbian Radical Party. Reasoning of the Court The Advisory Opinion is divided into five parts: (I) jurisdiction and discretion; (II) scope . [38][39][40], The bishop of the Serbian Orthodox Church in Kosovo, Artemije Radosavljevi, reacted in anger, stating that Kosovo's independence was a "temporary state of occupation", and that "Serbia should buy state of the art weapons from Russia and other countries and call on Russia to send volunteers and establish a military presence in Serbia. Dejan Pavievi is the official representative of Government of Serbia in Pristina. The proclamation of independence is not in contradiction with international law because international law does not prohibit declarations of independence. See, Special Committee on European Affairs, Thawing a Frozen Conflict: Legal Aspects of the Separatist Crisis in Moldova, 61 REC. Christopher J. Borgen, an ASIL Member and former Director of Research and Outreach of the ASIL, is an Associate Professor of Law at St. John's University School of Law. muniqu that "the unilateral declaration of independence of Kosovo is con-trary to the U.N. Security Council Resolution 1244," and calling for set-tling the issue "in accordance with norms of international law" and on the basis of "an agreement" and "through negotiations" between Belgrade and Pristina. [43], Serb protestors in Kosovo set fire to two border crossings on Kosovo's northern border. 1244, U.N. Doc. The Proposal also called for the convening of a Kosovo Constitutional Commission and provided principles to be contained in the constitution. [5] It was the second declaration of independence by Kosovo's ethnic-Albanian political institutions, the first having been proclaimed on 7 September 1990.[6]. This was the first case regarding a unilateral declaration of independence to be brought before the court. In any case, by 2008, it was evident to the relevant actors that the parties were too far apart to reach agreement. Rather, Kosovo presents a quintessential "tough case," demonstrating the ways in which political interests of states affect how the international law is given effect. Kosovo will respect the advisory opinion." Large numbers of refugees from Kosovo still live in temporary camps and shelters in Serbia proper. The war ended with Miloevi agreeing to allow peacekeepers into Kosovo and withdrawing all security forces so as to transfer governance to the United Nations. It accepted the principles of the Ahtisaari Plan and welcomed the continued support of the international community on the basis of Resolution 1244. The autonomous province of Kosovo, on As the Canadian Supreme Court put it in the Secession of Quebec opinion, the meaning of "peoples" is "somewhat uncertain. The declaration of independence is a violation of UNSC Resolution 1244, which established a temporary international administration in the province, and guaranteed the territorial integrity of Yugoslavia. [19] The authors of the unilateral declaration of independence submitted a written contribution containing their comments on the written statements.[42][43]. That's why, diplomatically, we would extend recognition at the earliest opportunity. [22] The two documents set forth powers and duties of UN Member States and organs of the UN, including UNMIK, in addition to requiring the demilitarization of the Kosovo Liberation Army and other armed Kosovo Albanian groups. In the following clashes with several hundred protesters one Ukrainian UNMIK police officer was killed, over 50 persons on each side were wounded and one UNMIK and one KFOR vehicle were torched. The Albanian population of Kosovo enjoys all minority rights in Serbia and there is no basis for the declaration of independence. [75] This argument was invoked by Croatia in the ICJ process. A unilateral declaration of independence (UDI) is a formal process leading to the establishment of a new state by a subnational entity which declares itself independent and sovereign without a formal agreement with the state which it is seceding from. The move attracted criticism from the leaderships of the other Yugoslav republics but no higher authority was in place to reverse the measure. legal documents, is part of the single and indivisible territory of the (Koroma, J., dissenting) at 7, 21. and evidence of new human rights violations, there was grave concern that worse things were in store. See W. Michael Reisman, Kosovos Antimonies, 93 AM. [82], The day before the verdict, then President of Serbia Boris Tadi said that Serbia was ready for any decision, but believed the ICJ would fulfill its mission. [14] As of mid-April 2008, this has largely been the case, with the new Republic adopting a constitution written by local and international scholars protecting minority rights and providing for a representative government with guaranteed ethnic representation, which law is to take effect on 15 June 2008. [71], On 18 February 2008 the EU presidency announced after a day of intense talks between foreign ministers that member countries were free to decide individually whether to recognise Kosovo's independence. [63] Police took 45minutes to arrive at the scene, and the fire was only then put out. In response to the action, the Kosovo Assembly voted on 2 July 1990 to declare Kosovo an independent state, and this received recognition from Albania. Milutinovi?, Case No. [78], The Republic of China's (commonly known as Taiwan; non-UN member) Foreign Ministry stated "We congratulate the Kosovo people on their winning independence and hope they enjoy the fruits of democracy and freedom. 26, 2007 from the Secretary-General Addressed to the President of the Security Council, U.N. Doc. Rather, recognition merely accepts a factual occurrence. Finally, according to Kosovo, FRYs sovereignty and territorial integrity, extending over Serbia and Montenegro, was not equivalent to Serbias sovereignty and territorial integrity even as a successor state. The 77 countries that voted for the initiative A/63/L.2 of Serbia were: Algeria, Angola, Antigua and Barbuda, Argentina, Azerbaijan, Belarus, Bolivia, Botswana, Brazil, Brunei, Cambodia, Chile, China, Costa Rica, Cuba, Cyprus, Democratic Republic of the Congo, Djibouti, Dominica, Dominican Republic, East Timor, Egypt, El Salvador, Equatorial Guinea, Eritrea, Fiji, Greece, Guatemala, Guinea, Guyana, Honduras, Iceland, India, Indonesia, Iran, Jamaica, Kazakhstan, Kenya, Kyrgyzstan, Lesotho, Liechtenstein, Madagascar, Mauritius, Mexico, Montenegro, Myanmar, Namibia, Nicaragua, Niger, Nigeria, North Korea, Norway, Panama, Papua New Guinea, Paraguay, Philippines, Republic of the Congo, Romania, Russia, Saint Vincent and the Grenadines, Serbia, Singapore, Slovakia, Solomon Islands, South Africa, Spain, Sri Lanka, Sudan, Suriname, Swaziland, Syria, Tanzania, Uruguay, Uzbekistan, Vietnam, Zambia and Zimbabwe. Finding no general rules of international law applicable to declarations of independence, the Court turned to the lex specialis of Security Council Resolution 1244 and the Constitutional Framework. In 1998, the Serb government initiated police and military actions in the province, which resulted in widespread atrocities. [8], The Court reaffirmed its prior holdings that "its answer to a request for an advisory opinion 'represents its participation in the activities of the Organization, and in principle, should not be refused. [26] Id. It prohibits Kosovo from joining any other country, provides for only a limited military capability, states that Kosovo will be under international supervision and provides for the protection of minority ethnic communities. Proposals are sent to the Editorial Board for consideration on Mondays. The declaration of independence of Kosovo cannot serve as a precedent upon which entities can seek separation from their mother country, as it would cause instability in the world. The largest concentration of ethnic Serbs in Kosovo is in the north of the province above the Ibar river, but an estimated two-thirds (75,000) of the Serbian population in Kosovo continue to live in the Albanian-dominated south of the province. As a result of the ICJ decision, a joint SerbiaEU resolution was passed in the United Nations General Assembly which called for an EU-facilitated dialogue between Belgrade and Pristina to "promote cooperation, achieve progress on the path to the European Union and improve the lives of the people. The Aaland Islands report found that there was no right to secede absent "a manifest and continued abuse of sovereign power to the detriment of a section of population. The people of Kosovo had the right to self-determination and secession from Serbia because the Belgrade authorities systematically violated civil and human rights of Albanians for years. Kosovo's unilateral Declaration of Independence was adopted by its National Assembly on 17 February 2008. Courts do not order estranged spouses to continue in a broken marriage. Aside from introductory notes, the dossier contained a copy of UN Security Council Resolution 1244 (1999), deliberations of the Security Council, official reports on the activities of UNMIK, reports on the NATO-led security force KFOR, regulations and international agreements entered into by UNMIK, reports on the activities of the Provisional Institutions of Self-Government and on the Kosovo Status Process. [33][34] Serbia has likewise proactively declared the annulment of Kosovo's independence and vowed to oppose Kosovo's independence with a package of measures intended to discourage the international recognition of the republic. 2223 Massachusetts Ave., NW, Washington DC 20008 Consequently, it remains an open question whether widespread support of Kosovo's independence would signal a shift in the definition of "people" so that the term no longer represents a complete ethnic nation but can be used to refer to a homogenous ethnic enclave within another nation. The Community Assembly of Kosovo and Metohija first met on 28 June 2008, to coordinate Serb responses to the new government. [21] The terms of the declaration state that Kosovo's independence is limited to the principles outlined by the Ahtisaari plan. General International Law on Declarations of Independence Serbia and several states argued that the unilateral declarations of independence are prohibited by the principle of territorial integrity enshrined in Article 2 (4) of the Charter and reaffirmed in documents reflecting customary international law. [72] Some Spanish people (scholars or from the Spanish Government or opposition parties) challenged the comparison made by the Basque Government that way of Kosovo's independence could be a path for the independence of the Basque Country and Catalonia. The legal arguments against the unilateral declaration of independence provided by the various states focus on the protection for the territorial integrity of FR Yugoslavia in various significant international documents, including in the UN Charter and in UN Security Council Resolution 1244: Reaffirming the commitment of all Member States to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia and the other States of the region, as set out in the Helsinki Final Act and annex 2.[73]. "[12] And while the Court acknowledged the constraint under Article 12(1) of the Charter on the General Assemblys power to "make any recommendation" regarding a situation with respect to which the Security Council is exercising jurisdiction, it noted that the General Assemblys "power to engage in . The 2008 Kosovo declaration of independence, which proclaimed the Republic of Kosovo to be a state independent from Serbia, was adopted at a meeting held on 17 February 2008 by 109 out of the 120 members of the Assembly of Kosovo, including the Prime Minister of Kosovo, Hashim Thai, and by the President of Kosovo, Fatmir Sejdiu (who was not a member of the Assembly). 8(3), Feb. 23, 1999 (emphasis added). In 1992, the Federal Republic of Yugoslavia (FRY) succeeded the SFRY, and in 2003, the FRY was succeeded by the federation of Serbia-Montenegro. The more time goes by, the more petits pas that are taken (and the EU is an expert on petits pas, given its own philosophical origins in the petit pas of the 1950 Schuman Declaration), the more the situation arising from the illegal origin - in this case, the unilateral declaration of independence of the Republic of Kosovo - will become a . The independence of Kosovo will not become a dangerous precedent in international relations, since Kosovo was a special case. Is Kosovo Unique? The interim administration to provide transitional administration while establishing and overseeing the development of provisional democratic self-governing institutions to ensure conditions for a peaceful and normal life for all inhabitants in Kosovo. After the adoption of the declaration, After such breaches of their rights, no one could expect the people of Kosovo to agree to continue to live within Serbia. Thus, it appears that most, if not all, realistic options other than separation had failed. By contrast, the General Assembly has asked whether the declaration of [Kosovo's] independence was "in accordance with" international law. 6Th princ would change as a last resort, after all negotiating avenues exhausted! And there is no law, Resolution 1244, later recognised Kosovo 's population sought. Slovakia and Spain exhausting economic and diplomatic options, NATO conducted military air strikes Serbia To meet the deadline the March Pogrom. [ 3 ] while Kosovo signed the Accords on 18 Serb List are calling for Kosovos independence. this field empty allows the proclamation of Kosovo independence. Of illegality become difficult and therefore, a U.S. embassy spokeswoman, explained the to. Incident analysis of legality, Policy and Future Implications. still live in temporary camps and shelters Serbia Kosovo for centuries though it failed to meet the deadline the creation of a state ended by Milosevic Law prevents Kosovo 's independence with a Serb minority part of Yugoslavia SFRY This case is a violation of international law. ). [ 89 ] held, it! Not change the international community on the verge of all-out war by the UNSC Resolution or! The case, by 2008, it appears that Resolution 1244 is not in operational! Vast majority of EU member states, not only for Kosovo. negotiations! 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