The acquisition of defined and fixed territoriality is prerequisite to the recognition of statehood. The quest for recognition has widespread manifestations in contemporary society, from indigenous peoples who seek control over the destiny of their ancestral lands to struggles for self-determination in places such as Kosovo, Iraq, the Basque Country, and many others. Since states are primarily entrusted with the privilege of norm creation in international law, the emphasis on territoriality affects many who would lay claim to such recognition. However, the notion of territoriality itself remains contested in international law. The implication of this contest is most visible in the treatment of the right to self-determination.
Since the beginning of the Ottoman Empire, control of Kosovo has shifted back and forth between the Albanians and the Serbs. It was not until the Balkan War of 1912 that the Serbs successfully conquered and annexed Kosovo. However, after the Second World War, in 1968, after violent Albanian demonstrations, Marshal Josip Broz Tito granted Kosovo wide-ranging autonomy. Until 1989, Kosovo was one of two autonomous provinces in the Federal Republic of Yugoslavia. This autonomy ended in 1989 when the newly-elected Serbian leader Slobodan Milosevic established virtual martial law in Kosovo, changed the constitution, and took away Kosovo’s autonomy. There were gross human right violations which took place in Kosovo where in the name of “ethnic cleansing”, Kosovar Albanian men were taken and placed in reminiscent of the Bosnian concentration camps.
The Kosovar declaration of independence reflects a fascinating case in international law. It poses important questions regarding the modern day understanding of the international legal theories of secession, statehood, and recognition.
So, after which there were various interventions by the International Community like the NATO conducted an eleven-week air campaign against Yugoslav and Serbian security forces and paramilitary groups. The campaign resulted in the agreement of the Federal Republic of Yugoslavia to withdraw all Yugoslav and Serbian security forces from the territory. Following which United Nations Interim Administration Mission was set up in Kosovo (UNMIK) to turn its immediate attention to the reestablishment of the core functions of the Kosovo judiciary. Finally it was UN Special Envoy Mr Martti Ahtisaari, the former President of Finland who developed a plan to build a democratic and multi-ethnic Kosovo and recommended Kosovo be independent, subject to a period of international supervision.
Kosovo then declared its independence on February 17, 2008 and seceded from the Republic of Serbia. This declaration of independence was challenged by Serbia requesting the International Court of Justice to render an advisory opinion on whether “the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo is in accordance with international law?” ICJ on July 22, 2010 concluded that the adoption of the declaration of independence of 17 February 2008 did not violate general international law, Security Council resolution 1244 (1999) or the Constitutional Framework. Consequently the adoption of that declaration did not violate any applicable rule of international law.
I personally believe, the Kosovar declaration of independence reflects a fascinating case in international law. It poses important questions regarding the modern day understanding of the international legal theories of secession, statehood, and recognition. It also challenges to assert new theories as justification for such unilateral separation of an entity from its mother-state. It raises issues about the future of this troubled region, as many wonder about its long-term viability and true independence from Western military and economic support. Finally, it poses concerns over its precedent-setting secessionist ideology. In light of these challenging issues and questions, other solutions to the Kosovar problem, such as the creation of an international protectorate, conditional independence, and the division along ethnic lines should have been envisioned and seriously considered before full independence of Kosovo was embraced by the West.
The situation at Kosovo represents state building from the outside, and consequently, an attack on the supposed illegality of unilateral secession and on concepts of sovereignty and territorial integrity. The Proposal also represents an opportunity for Tibetans to ensure that the international community becomes fully aware of the Tibet Question. Just as China has taken advantage of the Western doctrine of sovereignty, the way is potentially now open for Tibet to take advantage of self-determination through a legitimated claim for supervised statehood. The right of self-determination is indivisible, and thus, if the Kosovan example is applicable to Tibet, Tibet should find support in the international community for a claim to similar independence; it is this indivisibility that should provide greater leverage for Tibetans with China in pursuing their claims for greater autonomy. It is also of relevance that “laws not only represent reality, but also create it.” Law has the potential to create the reality of an independent Kosovo and, consequently, Tibet.
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