The Kosovo province, constituted mostly of Albanians, took shape in 1946 within Socialist Yugoslavia as a province of the Federal Republic of Serbia. In 1974, Serbia recognized more administrative autonomy to the Kosovo province and the province was renamed Autonomous Province of Kosovo. Following Tito’s death in 1980, Yugoslavia entered a period of instability as political factions started calling for greater autonomy.

In this context, ethnic tensions increased. Albanians began carrying out resistance actions against the central government. In particular, the liberal conservative party, i.e. the Democratic League of Kosovo (DLK), promoted several actions in support of Kosovo’s fight for independence.

In 1990, DLK declared Kosovo’s independence, which was recognized only by Albania. That same year, the new Kosovo Constitution was adopted. Five years later, in 1995, after the end of the Balkan Wars, some of the Kosovar Albanians chose the armed struggle as means to assert independence from Serbia. The reaction of Serbia in face of the attacks perpetrated by Kosovar Albanians armed separatist guerrilla groups was very tough. The repression that followed led to several massacres and the death of at least 11,000 Albanian civilians, and caused the destruction of houses, schools, and other buildings, including mosques of the Albanian population.

After the Kosovo crisis, NATO adopted a policy of deterrence and threats against the government of the Federal Republic of Yugoslavia. On March 24, 1999, after the failure of the Rambouillet peace conference attended by both representatives of the Serbian government and Kosovo, NATO began a bombing campaign in Serbia. NATO’s military intervention was not authorized by the UN Security Council and was justified by the need to put an end to the serious humanitarian emergency in Kosovo. At the end of the war, the Serbian government agreed to withdraw its military troops and  place Kosovo under the United Nation Interim Administrative Mission in Kosovo (UNMIK). On June 10, 1999, the UN Security Council adopted the Resolution No. 1244 with which it authorized an international civil and military presence in Kosovo and established the UNMIK.

After eight years, on February 17, 2008, the Provisional Institutions of Self-Government (Kosovo Assembly) voted unanimously to set forth its independence from Serbia. Serbia declared that Kosovo’s independence was illegal and was backed by Russia in taking that stance.

Kosovo’s independence precedent and the ICJ advisory opinion

On July 22, 2010, the International Court of Justice (ICJ) gave its Advisory Opinion on the question of the accordance with international law in respect of Kosovo’s unilateral declaration of independence. The ICJ advisory opinion on this question was requested by the General Assembly of the United Nations under the diplomatic pressure of Serbia in the resolution No. 63/3 of October 8, 2008.

The opinion of the ICJ appears very articulated and complex. Its analysis starts from the political background of Kosovo: In particular, the ICJ refers to the resolution No. 1244 of the UN Security Council which guaranteed the administrative autonomy of Kosovo from the central government of Belgrade. The ICJ observes that UNMIK regulations, including regulation No. 2001/9, which officially established the Constitutional Framework, were adopted by the Special Representative of the Secretary General on the basis of the authority derived from Security Council resolution No. 1244 (1999) and thus ultimately from the United Nations Charter. The ICJ states that the Constitutional Framework “derives its binding force from the binding character of resolution No. 1244 (1999) and thus from international law” and that “it therefore possesses an international legal character.” The ICJ continues its reasoning by indicating that “[t]he declaration of independence of [Kosovo adopted on] 17 February 2008 must be considered within the factual context which led to its adoption.” It briefly describes the relevant characteristics of the framework put in place by the Security Council to ensure the interim administration of Kosovo, namely the SC resolution No. 1244 (1999) and the regulations promulgated thereon by the United Nations Mission in Kosovo (UNMIK). It then gives a succinct account of the developments relating to the so-called “final status process” in the years preceding the adoption of the declaration of independence, before turning to the events of February 17, 2008.

The ICJ continues by examining the principle of self-determination in the light of the territorial integrity principle. Territorial integrity and self-determination are two core principles of international law, the former being “an important part of the international legal order and (…) enshrined in the Charter of the United Nations, as well as in other important texts, including those on self-determination. The concept of territorial integrity includes the inviolability of the territory of the State, including that under the effective control and possession of a State. The ICJ states that “the scope of the principle of territorial integrity is confined to the sphere of relations between States;” while “self-determination denotes the legal right of people to decide their own destiny in the international order. Self-determination is a core principle of international law, arising from customary international but also recognized as a general principle of law, and enshrined in a number of international treaties.”

In the light of these principles and their evolution, the ICJ then considers whether the declaration of independence of Kosovo has violated international law. It begins by examining the oldest and then the most recent practices. The ICJ finds that during the colonial period the right to self-determination had led to the emergence of a “right to independence.” It also occurs in non-colonial contexts, and  nothing would indicate the emergence of a rule of prohibition of such acts to exercise that right (par. 79). “The Court first notes that during the 18th, 19th and early 20th centuries, there were numerous instances of declarations of independence, often strenuously opposed by the State from which independence was being declared. Sometimes a declaration resulted in the creation of a new State, at others it did not. In no case, however, does the practice of States as a whole suggest that the act of promulgating the declaration was regarded as contrary to international law. On the contrary, State practice during this period points clearly to the conclusion that international law contained no prohibition of declarations of independence. During the second half of the twentieth century, the international law of self-determination developed in such a way as to create a right to independence for the peoples of non-self-governing territories and peoples subject to alien subjugation, domination and exploitation. A great many new States have come into existence as a result of the exercise of this right. There were, however, also instances of declarations of independence outside this context. The practice of States in these latter cases does not point to the emergence in international law of a new rule prohibiting the making of a declaration of independence in such cases.”

Furthermore, the ICJ observes that while the Security Council has condemned particular declarations of independence, in all of those instances it was making a determination regarding the concrete situation existing at the time those declarations of independence were made; in fact, the Court considers that the declaration of independence, condemned by the Security Council, had been made contrary to the “prohibition of force” as a principle of jus cogens.[1] “The illegality attached to the declarations of independence thus stemmed not from the unilateral character of these declarations as such, but from the fact that they were, or would have been, connected with the unlawful use of force or other egregious violations of norms of general international law, in particular those of a peremptory character (jus cogens).” Therefore, ICJ concludes that in the context of Kosovo, the Security Council has never taken this position (par. 81).

In the light of these considerations, the ICJ recognizes that the Kosovo unilateral declaration of independence is legitimate because it is accomplished within the constitutional framework created under the auspices of UNMIK, and it would not be in breach of general international law.

The political status of Kosovo, a challenge for the European Union and Serbia

Since the Kosovo declaration of independence, diplomatic relations between Serbia and Kosovo have been carried out by UNMIK and EULEX. However, at the beginning of 2011, under EU input Serbia decided to deal with Kosovo on the determination of territorial borders. Talks for the normalization of relations between Pristina to Belgrade, mediated by the European Union, began in Brussels on October 12, 2012. Serbian Prime Minister Ivica Dacic and Kosovar Prime Minister Hashim Thaci agreed on the implementation of the border agreement to start on December 10, 2012. On April 19, 2013, the representatives of both governments brought to completion the Brussels Agreement pointing to the normalization of diplomatic relations between the two States.

Amongst other measures, the deal established for the Serb minority in Kosovo a special police commander to be appointed by Pristine from a list submitted by Serbs, and an Appeal Court Pristine laws and procedures. This agreement was hailed as a major step to advance Serbia’s and Kosovo’s integration in Europe, but it represents no acknowledgment of Kosovo’s independence by Belgrade.

A major achievement for the pacification of relations between Serbia and Kosovo was reached with the 2014 elections. These elections were won by Hashim Thaci, leader of the Democratic Party of Kosovo and former leader of the separatist guerrilla (KLA). For the first time since the Kosovo independence, Serb minorities have actively participated in the elections, granting the appeal launched by the leadership of Belgrade. In fact, the Vucinic government had called the Serbs to vote for their own parliamentary representatives, who will represent the interests of the Serbian minority.

Despite the positive elements of the vote, the turnout fell to 41.5% compared to 46% of the political elections of 2010. This percentage change is justified by the social and political unrest, caused by the absence of change in the political class. On the other side, Belgrade government considered that the large participation of Serbs in the elections was a favorable factor for the creation of the new Association of Serb Community in Kosovo, as planned by the Agreement of April 19, 2013, reached in Brussels through the mediation of the EU.

If the policy seems to move forward especially on the international level, the situation between KOA (Kosovo Albanian) and KOS (Kosovo Serbians) remains very complex. Kosovo maintains a high level of instability related to the low confidence in the institutions and ethnic division. After the war of the 90s and the bloody riots of 2004, about 90% of the population is Albanian, 6% is Serb, and the remaining 2% includes the Bosniak, Roma, and Gorani minorities. The Serb minority is reduced to enclaves scattered mainly in the northern Kosovar territory.

Peace in Kosovo is still only apparent. The unstable equilibrium, especially in the northern area near the border with Serbia, is a powder keg ready to explode and generate a new war in the Balkans that could undermine the EU balance. Balkans pacification is a goal hard to achieve for the EU.

Giorgia Durante

Master’s degree in Law (LUISS “Guido Carli”)


Notes

[1] The ICJ refers to the unilateral declarations of independence made by the Southern Rhodesia (1970) and Northern Cyprus (1983).

References

Corker, Robert, Rehm, Dawn, and Kostial, Kristina. Kosovo : macroeconomic issues and fiscal sustainability, Washington, D.C.: International Monetary Fund, 2001. ec.europa.eu/enlargement/archives/seerecon/kosovo/documents/imf-kosovo-mifs.pdf

Greppi, Edoardo. “La proclamazione dell’indipendenza del Kosovo e il diritto internazionale,” ISPI (Istituto per gli Studi di Politica Internazionale), April 15, 2008. www.ispionline.it/sites/default/files/pubblicazioni/Greppi_2.pdf

International Court of Justice. “Accordance with international law of the unilateral declaration of independence in respect of Kosovo,” Summary of the Advisory Opinion 2010/2, July 22, 2010. www.icj-cij.org/docket/files/141/16010.pdf

Legal Information Institute. “Self-determination (international law),” Cornell University School of Lawwww.law.cornell.edu/wex/self_determination_international_law

Milano, Enrico. “Il parere consultivo della Corte internazionale di giustizia sulla dichiarazione di indipendenza del Kosovo: qualche istruzione per l’uso,” SIDI – Società Italiana di Diritto Internazionale e di Diritto dell’Unione Europea, 2010. www.sidi-isil.org/wp-content/uploads/2010/02/Milano-su-Kosovo.pdf

Ronzitti, Natalino. “Kosovo in mezzo al guado,” AffarInternazionali, July 27, 2010. www.affarinternazionali.it/articolo.asp?ID=1511

Wood, Michael. “Territorial Integrity,” Encyclopedia Princetoniensis: The Princeton Encyclopedia of Self-Determinationpesd.princeton.edu/?q=node/271