Self-determination in Flux: Kosovo’s Independence in International Law

In the winter of 2008, the United Nations General Assembly submitted a request for an advisory opinion from the International Court of Justice on whether “the unilateral declaration of Independence of Kosovo” was in accordance with international law. [1] The representatives of Serbia argued that Kosovo’s independence not only violated the historical and territorial integrity of Serbia, but also that the declaration as a political action from the “Assembly of Kosovo” had contravened the regulations set forth by UN Security Council Resolution 1244 (1999). [2] Among other things, the opponents of independence were concerned that if Kosovo “unilaterally declared independence” based on the notion of self-determination through the means of secession, other regions and territories worldwide would be emboldened to pursue similar political aspirations, thus infringing the Helsinki Final Act of 1975, which gave precedence to territorial integrity over self-determination. [3] Yet, based on the legal history of much of the last century, and several post-1990 legal cases: (i) Kosovo had a legal right to independence based on an existing precedent, namely federal units declaring independence after the dissolution of Yugoslavia; and (ii) the declaration did not breach the sovereignty of Serbia since the relevant UNSC Resolutions did not explicitly prohibit it. The dissolution of Yugoslavia occurred within the framework of the dismemberment of a federation, thus preventing a legal collision of territorial integrity and the principle of self-determination.

To conduct an in-depth examination of this topic, it is imperative to provide a detailed historical overview of the legal status of Kosovo. The Serbian government has disputed Kosovo’s independence, contending that the former province was confirmed as part of its territory before the Yugoslav Federation was created in 1945, thus arguing that Kosovo’s status as a federal unit at the time of independence should not have superseded its longstanding status as an integral part of Serbia. [4] Yet, when the Kingdom of Serbia and the Ottoman Empire signed the treaty for its annexation in 1913, Kosovo only de facto joined the former. Under international law, when a territory passes from one state to another, the treaty establishing this change is only legally legitimate if both countries sign and ratify it. [5] When the two belligerent sides signed the treaty at the London Conference of 1913, Serbia was operating under its 1903 Constitution, which, under Article IV, required the gathering of the Grand National Assembly for the ratification of any treaty that included border and territorial changes. [6] Such an assembly never occurred. Therefore, from 1912 to 1918 Kosovo was technically an occupied territory, with Serbia having only de facto, and not de jure, control over Kosovo.

Furthermore, upon this control becoming de jure in 1918, Kosovo did not enter the Kingdom of Serbia. Rather it became part of the amalgamation of Serbia with Croatia and Slovenia into what came to be known as the Kingdom of Serbs, Croats, and Slovenes, subsequently named the Kingdom of Yugoslavia in 1929. This is reinforced by the fact that when Serbia entered the Kingdom, its international persona disappeared as per the grounding principles of international law, ending Serbia’s previous statehood. [7] Later, in 1945, when the Yugoslav government decided to adopt a federal structure, Kosovo’s status was a cause for debate. Deliberations focused on whether it would be incorporated as an autonomous territorial unit of Serbia, Montenegro, or Macedonia, thereby acknowledging: (i) a territorial identity for Kosovo, and (ii) the absence of a prior official incorporation of the territory into Serbia. As such, Kosovo’s official entrance into Serbia in 1945 was strictly conditional upon Serbia being part of the Federal Yugoslavia, with Kosovo having a legal personality established directly under the Federal framework in 1945.

The Yugoslav Constitution of 1974 provides additional insight into how the principle of self-determination applied to the relative statuses of Kosovo and the other constituent units of Yugoslavia at the time of their independence. Through this constitution, Kosovo’s limited status as an autonomous region (Serbian: oblast) within the Serb Republic of Yugoslavia was upgraded to that of an autonomous province (Serbian: pokrajina), and most importantly, to one of the full constituent units of the Federation. [8] This Constitution, which would remain in force until the dissolution of Yugoslavia, granted Kosovo rights that were in many ways similar to those of the six Republics and which, accordingly, made Kosovo a “fully-fledged Federal body.” [9] Kosovo had direct representation in the Federal institutions alongside Serbia, including a representative in the Presidency of Yugoslavia, similar rights in foreign policy, a police force, a self-governed public university, and a virtual veto power over federal actions. The institutional basis for Kosovo was set up separately from Serbia, with the province having a right to issue no longer just a simple statute, but rather its own constitution. [10] In general, the 1974 Constitution caused the separation of Kosovo’s institutional framework from Belgrade’s authority, giving the province an equal status to the other Republics as a constituent unit of the Federation, and thus, a similar right to independence when the Federation started to dissolve in the early 1990s.

The unilateral revocation of Kosovo’s autonomy in 1989 under unusual circumstances did not technically change this devolution of powers within the Federation, as the amendments to revoke Kosovo’s autonomy bypassed the Constitutional safeguards of 1974. More specifically, apart from the amendments never being published in the Official Gazette, article 206 of the 1974 Constitution stipulated that the Republican and the Provincial Constitutions may not be contrary to the Federal one, and Article 4 noted that the territory of an autonomous province may not be altered without the consent of that autonomous province. Accordingly, the 1974 Constitution recognized that if a constituent unit statute, constitution, regulation, or amendment, in this case from Serbia, was passed contrary to the Federal Constitution, it would be temporarily applied until the Yugoslav Constitutional Court rendered a verdict on its validity. [11] These requirements were not met in 1989 as the amendments never received the required two-thirds majority vote from the Assembly of the Province of Kosovo, and a decision from the Federal Constitutional Court never occurred. As such, Serbia's prolonged, yet temporary, rule over Kosovo, was executed through unconstitutional means.

In these circumstances – with Kosovo's autonomy being de facto revoked – the Federation started its dissolution in the early 1990s. The Arbitration Commission of the Peace Conference on Yugoslavia, notably known as the Badinter Commission, concluded, among other things, that the Federation had not been subject to the secession of its units, but had dissolved entirely. [12] Despite the commission answering only questions for the units it was assigned to, the statement was a crucial finding as it opened the path for an emerging precedent: the independence of Yugoslavia’s federal units. As Noel Malcolm questions, "when a federation dissolves, what does it dissolve into?" [13] The answer is simple: its federal units. The dissolution of the Federation from within, later confirmed by the International Court of Justice in 2010, disproves the claim that the independences of the Yugoslav constituent units were achieved through "secession instead of dismemberment" from the Federation.

In practice, Kosovo was treated as part of an independent Serbia for two years (2006-2008) after Montenegro declared independence. Yet, even during this period, Kosovo was not legally an integral part of Serbia, given that its sovereignty fell under a UN temporary imperium established through UNSC Resolution 1244 (1999). The resolution sought to establish an interim international administration for Kosovo in respect to the territorial integrity of Yugoslavia, but relegating its sovereignty over the territory to nudum ius by forcing the withdrawal of Yugoslav military, police, and civil forces from Kosovo. Such complete separation of control continued with Serbia having no exercise of legislative, executive, and judicial authority in Kosovo after 2006. [14] Under this framework, UNSC Resolution 1244 articulated that Kosovo would gradually attain “self-governing institutions” during the Resolution’s temporary functioning time, without specifying what form the institutions would take until a final “solution on its status” was settled. The Resolution noted, among other things, that there was a “pending final status” for the province, and until then, the territory would fall under a transitory and intermediate phase without discrimination as to its status. [15] That the temporary status of Kosovo was referred to as “transitory” and “in respect of the territorial integrity of the Federal Republic of Yugoslavia” is important to note, primarily since Yugoslavia ceased to exist in 2006. Consequently, the independence of Kosovo in 2008 could not have violated the territorial integrity of any state, as the relevant state, namely the Federal Republic of Yugoslavia, no longer existed.

Moreover, when interpreting UN Resolution 1244 (1999), it is necessary to consider the Advisory Opinion of the International Court of Justice in 2010. As the Court argued, the Security Council never intended to foretell the political status of Kosovo, as they had done with “Republika Srpska” in Bosnia & Herzegovina, where UNSC explicitly prohibited any attempt at independence on the part of the Serb-led territory by passing Resolution 787. [16] When it came to Kosovo, which unlike Republika Srpska had the status of a constituent unit of the former Yugoslavia, Resolution 1244 stated that there was a “pending final status,” and mentioned the territorial integrity only in the preambular language, meaning that the Security Council never intended to adjudicate against the legality of the independence of Kosovo. In its operative language, the Court argued that the purpose of the Resolution was the governance of Kosovo until self-governing institutions were formed without discrimination as to how the final settlement of its status would be made, let alone its nature, leaving the final status of Kosovo in an open-ended statu nascendi. [17] On this basis, the ICJ Advisory Opinion of 2010 concluded that Kosovo’s declaration of independence did not violate international law or the territorial integrity of Serbia since the Security Council did not explicitly prohibit a declaration of independence in its existing resolutions on Kosovo. Thus, Resolution 1244, by exclusively serving the purpose of institution-building, did not preclude Kosovo’s declaration of Independence of February 17, 2008, primarily since the two instruments, namely institution building and the declaration of independence, operated on different levels. Unlike Resolution 1244 that left the final status settlement open-ended, the declaration of independence was an attempt to finally determine that status.

In addition, by not answering the question set forth by several members of the UN General Assembly on whether self-determination through secession provided a good case for independence, the ICJ established a crucial legal precedent, which prevented the utilization of the Court’s opinion on Kosovo against territorial integrity. ICJ’s lack of a definitive opinion on the matter, halted movements that sought to rely on the Court’s opinion to justify a right of secession, notably from disputed territories like Abkhazia and South Ossetia in Georgia, Catalonia in Spain, or Northern Cyprus in Cyprus. In the case of Yugoslavia, its dissolution occurred along the constituent units’ boundaries, in line with the principle of uti possidetis. [18] This principle, which emphasizes the conservation of pre-existing administrative boundaries during state transformations, inherently lacks applicability in unitary states. As such, the ICJ ruling conveyed two significant implications: (i) the events in the Former Yugoslavia served as a precedent for federal states only, and (ii) the dissolution of Federations from within is not prohibited by international law, providing stable supporting evidence for the declarations of independence of the federal units of the Former Yugoslavia.

In the light of the foregoing analysis, a comprehensive exploration of Kosovo’s legal history and landscape shows that its independence came as a continuation of what had already been the case for other federal units of the Former Yugoslavia. Specifically, Croatia, Slovenia, North Macedonia, Bosnia & Herzegovina, and Montenegro paved the way for Kosovo’s independence, contrary to the argument that Kosovo’s unilateral declaration of independence created a new precedent of allowing self-determination to override territorial integrity. Secondly, the Declaration of Independence of 2008 as an act did not violate the territorial integrity of Serbia or the foundational tenets of the UN Charter. The Security Council did not explicitly prohibit the Declaration of Independence through UNSC Resolution 1244, as it did in other cases when it unequivocally precluded a declaration of independence. [19] By all relevant standards of international law, Yugoslavia’s dismemberment created the chance for its federal units to determine their own political futures. This paradigm shift created a pathway for self-determination to be applied, not in violation of territorial integrity, but rather through a federation dissolving such that its constituent units had the chance to decide their own fates. Therefore, one can assert that self-determination in the case of the federal units of the Former Yugoslavia, including Kosovo, did not override the territorial integrity of a state, primarily since that state no longer existed.

Edited by Susannah Maria Cray

[1] UN General Assembly, Resolution 63/3, “Request for Advisory Opinion: Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo,” A/RES/63/3, 4 , October 8, 2008, https://www.icj-cij.org/sites/default/files/case-related/141/14799.pdf.

[2] The Government of the Republic of Serbia, “Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Request for Advisory Opinion): Written Statement of the Government of the Republic Serbia,” 361, April 15, 2009, https://www.icj-cij.org/sites/default/files/case-related/141/15642.pdf.

[3] Conference on Security and Co-Operation in Europe Final Act (Helsinki Final Act), August 1, 1975, at 5.

[4] Mark Weller, Contested Statehood: Kosovo’s Struggle for Independence, Oxford: Oxford University Press, 2009, 56.

[5] Noel Malcolm, Kosovo: A Short History, New York: Macmillan, 1998, 264.

[6] Constitution of the Kingdom of Serbia of 1903, art. IV.

[7] Constitution of the Federative People’s Republic of Yugoslavia of 1946, sec. II.; John P. Grant and J. Craig Barker, Encyclopedic Dictionary of International Law, Oxford: Oxford University Press, 2009, 376.

[8] Constitution of the Socialist Federal Republic of Yugoslavia of 1974, art I. [9] Malcolm, Kosovo: A Short History, 327.

[10] Sabrina Ramet, Nationalism and Federalism in Yugoslavia, 1962-1991, Bloomington: Indiana University Press, 1992.

[11] Constitution of the Socialist Federal Republic of Yugoslavia of 1974, art IV; Robert M. Hayden, “The Beginning of the End of Federal Yugoslavia,” Carl Beck Papers in Russian & East European Studies, no. 1001, 1992, 16.

[12] Conference on Yugoslavia Arbitration Commission: Opinions on Questions Arising from the Dissolution of Yugoslavia, July 4, 1992, 31 I.L.M. 1488.

[13] Malcolm, Kosovo: A Short History, xli.

[14] UN Security Council, “Comprehensive Proposal for the Kosovo Status Settlement,” S/2007/168, March 26, 2007, https://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF 9%7D/Kosovo%20S2007%20168.pdf.

[15] UN Security Council, Resolution 1244 (1999), On the Situation Relating to Kosovo, S/RES/1244, June 10, 1999, https://peacemaker.un.org/sites/peacemaker.un.org/files/990610_SCR1244%281999%29.pdf.

[16] Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, I.C.J. Reports 2010, p. 403.

[17] Bernhard Knoll, “From Benchmarking to Final Status? Kosovo and The Problem of an International Administration’s Open-Ended Mandate,” European Journal of International Law 16, no. 4, 2005, 638.

[18] Ronald Rich, “Recognition of States: The Collapse of Yugoslavia and the Soviet Union,” European Journal of International Law 4, no. 1, 1993, 61.

[19] UN Security Council, Resolution 787, Bosnia and Herzegovina, S/RES/787, November 16, 1992,
https://digitallibrary.un.org/record/153793?ln=en.