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Self-Declaratory Independence of Kosovo: Legality

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BS Kang

on 6 January 2014

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Transcript of Self-Declaratory Independence of Kosovo: Legality

Is the Independence by
the Provisional Institution of Self-Government of Kosovo
in Accordance with International Law?

Presented by Bitsaem Kang, Hyein Kim, Hyejin Lim
Table of Contents
Hypothesis
The Independence by the Provisional Institution of Self-Government of Kosovo is
NOT
in accordance with international law.
Hypothesis
Why Kosovo?
Background
Argument for the Independence of Kosovo
Argument against the Independence of Kosovo
Implication/ Future Outlook
Discussion Question
Conclusion
Reference
Why Kosovo?
Self-Declaration on Independence by the Provisional Institution of Self-Government of Kosovo in 2008
ICJ Advisory Opinion in 2010
Unique case:
Major concepts concerning statehood could have been subject to substantial reinterpretation.
Background
Kosovo lied at the heart of the Serbian empire, but after going through the battle against Ottoman empire and Balkan Wars, both the Albanians and Serbians came to live in the region.
Kosovo is absorbed into become part of the Yugoslav federation
Independence is in accordance
with international law

Independence is
NOT
in accordance with international law

Territorial Sovereignty/ Territorial Integrity
Controversial interpretation on Resolution 1224
("...Stating Territorial Sovereignty and integrity of Federal Republic of Yugoslavia(FRY)...")
Two Interpretations:
Overruled by UNMIK, mandating the International Administration in Kosovo
UNMIK’s roles still in favor of FRY, no intention of infringing on sovereignty
Not settled, obscuring Kosovo’s status as wholly independent
Resolution 1244 (1999)
Adopted by the Security Council at its 4011th meeting, on 10 June 1999
"Reaffirming the commitment of all Member States to the s
overeignty and territorial integrity of the Federal Republic of Yugoslavia.
.. as set out in the Helsinki Final Act and annex 2..."
Self -Determination(SD)
UN Resolution 1224
International Covenant on Economic, Social and Cultural Rights (ICESC) Article 1
Kosovo Declaration of Independence, 2008
Who are the 'people'?
Question on the applicability - External and Internal SD
State Practice: International Conference on the Former Yugoslavia Arbitration Commission (1992)
Secession and Distinctiveness of Kosovo
SD leading to right to Secession?
Vienna Declaration and Programme of Action)
Vague reading on secession
Must prove that the people of Kosovo were gravely discriminated enough to proceed with secession even after the NATO-UNMIK involvement
Setting a precedent to radical separatist movements:
Kosovo Declaration of Independence
We, the democratically-elected leaders of our people,
hereby declare Kosovo to be an independent and sovereign state.
This declaration reflects the will

of our people

and it is in full
accordance with the recommendations of UN Special Envoy Martti
Ahtisaari and his Comprehensive Proposal for the Kosovo Status Settlement.
Vienna Declaration and Programme of Action
2. All peoples have the

right of self-determination
.
[…] freely determine their political status, […] Taking into account the particular situation of peoples under colonial or other forms of alien domination or foreign occupation, […]recognizes the right of peoples to take
any legitimate action
. […]the denial of the right of self-determination as a
violation of human rights

and underlines the importance of the effective realization of this right.
Rights and Responsibilities of a state
and State Recognition
Montevideo Convention Article 1: “(d) Capacity to enter into relations with other state”
Does the Republic of Kosovo alone has the capacity?
Political, economic, social instability within Kosovo
Declaratory Recognition? Constitutory Recognition?
Montevideo Convention
Article 1: The state as a person of international law
should possess the following qualifications
(a) a permanent population;
(b) a defined territory;
(c) an effective government;
(d) capacity to enter into relations with other states
Silence from ICJ Advisory Opinion
Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?
Reserved further interpretation on core notions:
No international norm prohibiting ‘declaration’
‘effecting’ is a separate issue -
Silent on consequence, principles of effectiveness, validity and legal effect of state recognition of Kosovo
ICJ Advisory Opinion
The Court observes that […] The question is narrow and specific; […]It notes that the question

does not ask about the legal consequences

of that declaration. In particular,

it does not ask whether or not Kosovo has achieved statehood
. Nor does it ask about the

validity or legal effects of the recognition of Kosovo

by those States which have recognized it as an independent State. The Court accordingly sees no reason to reformulate the scope of the question.
Implication
Conclusion
Reference
Ethnic Albanian leaders declare independence from Serbia, but the Serbian government dissolves the Kosovo government.
prosecution against Albanians during the 90s
NATO warn against the federation to take care of the conflict
NATO military intervention in the New Yugoslav federation
President Milosevic agrees to withdraw troops from Kosovo
UN Resolution 1224:
Mandated United Nations Mission to Kosovo (UNMIK) to establish interim government
provided for some autonomy to Kosovo and acknowledged sovereignty and territorial integrity of the Federal Republic of Yugoslavia
continued armed conflicts
United Nations envoy Martti Ahtisaari unveils a plan to set Kosovo on a path to independence, which is immediately welcomed by Kosovo Albanians and rejected by Serbia.
The Kosovo Assembly’s unanimously (109 members present) voted to declare independence. Unilateral declaration of Kosovo’s independence from Serbia.
ICJ, the court within UN, gave an advisory opinion about Kosovo’s declaration of independence.
93 states have recognized Kosovo as a state
New Yugoslav federation was established by Milosevic, who downgraded Kosovo as a state of Serbia within the New Yugoslav federation
1987
1990.7
1990.9
1993.3.22
1993.3.24
1996.6
1999.1.28
2004-2006
2007.2
2008.2.17
2010.7.22
2012.4.25
1946
14th century
1998-1999
Armed conflicts between the Albanians' Kosovo Liberation Army (KLA) and the Serbian government army
•History
1389 War against the Ottoman Empire - 100,000 Serbians died to secure the Kosovo region, which was the Serbians' Holy Land
•Different ethnicity: Serbians 10%, Albanians 90%
•Different language
•Different religion: Greek Orthodox Church and Islam
•International politics involved: NATO, China, Russia etc.
This case laid the cornerstone for new interpretations concerning the ambiguous legal terms such as the people, self-determination, secession, territorial integrity and state recognition.
Declaration of independence and state recognition are two different matters.
Future Outlook
Political interest always intervenes in the process of state recognition. Therefore, global consensus on the issue is difficult to elicit.
e.g.) American interest being involved (OIL!)
vs. Russia, China opposition is unlikely to be subdued.
Revision of major legal concepts concerning statehood is unlikely until the prosperity of the Republic of Kosovo is witnessed or the UN membership is granted.
Discussion Questions
Would there be a new trend of prerequisites for secession to ethnic minorities within a country, excluding the cases of decolonization?
Bothe, Michael. "Kosovo-So What? The Holding of the International Court of Justice is not the Last Word on Kosovo's Independence." German Law Journal 11, no. 08 (2010): 837-840.

Fawn, Rick. "The Kosovo-and Montenegro-effect." International Affairs 84, no. 2 (2008): 269-294.

Jamar, Hanna, and Mary K. Vigness. "Applying Kosovo: Looking to Russia, China, Spain and Beyond After the International Court of Justice Opinion on Unilateral Declarations of Independence." German Law Journal 11, no. 08 (2010): 913-928. Krasniqi, Jakup. "Kosovo Declaration of Independence." Republic of Kosovo Assembly. Accessed May 20, 2012. http://www.assembly-kosova.org/?cid=2,128,1635.

Montanaro, Lucia. "The Kosovo Statebuilding Conundrum: Addressing Fragility in a Contested State." International Alert. http://www.international-alert.org

"Montevideo Convention." Encyclopædia Britannica. Encyclopædia Britannica Online Academic Edition. Encyclopædia Britannica Inc., 2012. Web. 31 May. 2012. http://www.britannica.com/EBchecked/topic/390844/Montevideo-Convention.

Muharremi, Robert. "A Note on the ICJ Advisory Opinion on Kosovo." German Law Journal 11, no. 08 (2010): 867-878.

North Atlantic Treaty Organization . "Resolution 1244 (1999)." Accessed May 17, 2012. http://www.nato.int/kosovo/docu/u990610a.htm

Owada, Hisashi. "Advisory Opinion." International Court of Justice . Accessed May 20, 2012. http://www.icj-cij.org/docket/files/141/15987.pdf.

Park, Jungwon. "Kosovo's Unilateral Independence and Contemporary International Law: with Special Reference to the Difficulties of the Exercise of the Right of Self-Determination." Journal of International Law 56, no. 2 (n.d.): 89-112.

Pellet, Alain. "The Opinions of the Badinter Arbitration Committee A Second Breath for the Self-Determination of Peoples." Badinter Arbitration Committee. Accessed May 20, 2012. http://www.ejil.org/pdfs/3/1/1175.pdf.

The Supreme Court of Canada. "Reference re Secession of Quebec, [1998] 2 S.C.R. 217." Accessed May 12, 2012. http://scc.lexum.org/en/1998/1998scr2-217/1998scr2-217.html.

United Nations General Assembly. "Vienna Declaration and Programme of Action." Accessed May 20, 2012. http://www.unhchr.ch/huridocda/huridoca.nsf/(symbol)/a.conf.157.23.en.


U.S. Department of State. "FY 2010 Foreign Operations Appropriated Assistance: Kosovo." http://www.state.gov/p/eur/rls/rpt/seedfy10/156893.htm.
Statehood
Territory and Population
Declared that its international borders would be as set out in Annex VIII of the Ahtisaari Plan i.e. effectively the territory of almost 11,000 km2 that was administered by the United Nations Mission in Kosovo (UNMIK).

Kosovo’s population was about 2 million of which 88% were Kosovo Albanians, 6% Kosovo Serbs, 3% Bosniaks plus smaller minorities of Roma and Turks.
Comprehensive Proposal for the Kosovo Status Settlement (Ahtisaari Plan)

Article 3 Border

3.2 The territory of Kosovo shall be defined by the frontiers of the Socialist Autonomous Province of Kosovo within the Socialist Federal Republic of Yugoslavia as these frontiers stood on 3 1 December 1988, except as amended by the border demarcation agreement between the Federal Republic of Yugoslavia and the former Yugoslav Republic of
Macedonia on 23 February 2001.11
Government
The Kosovo Government
, with organs already developed under UNMIK’s Constitutional Framework
The newly adopted Constitution
for Kosovo effectively signaled the end of the interim, transitional administration under UN auspices.
The EU operates an EU police and rule of law mission (
EULEX
)
NATO’s Kosovo Force
, mandated under Resolution 1244, also continues to play an invaluable role.
International presences in Kosovo did not mean that Kosovo was not able to exercise independent Government.
Kosovo had taken the sensible precaution of asking for support in line with the Ahtisaari Plan, in demonstration of its commitment to ensure a democratic and multi-ethnic society.
Post-independence support given on an international basis
e.g.) Cambodia, Bosnia-Herzegovina, and East Timor.
Independent External Relations
Arguably Kosovo's capacity to conduct international relations had been established relatively quickly.
50 states engaging in diplomatic relations with Kosovo
Member of International Organizations such as IMF and World Bank
Secession
Definition
Refers to separation of a portion of an existing
state, whereby the separating entity either seeks to become a new state or to join yet another state, and whereby the original state remains in existence without the breaking off territory.
Involved with the concept of
self-determination
Montevideo Convention
Article 1: The state as a person of international law
should possess the following qualifications
(a) a permanent population;
(b) a defined territory;
(c) an effective government;
(d) capacity to enter into relations with other states
<Vienna Declaration and Programme of Action>
2. All peoples have the
right of self-determination
.[…]
freely determine their political status
, […] Taking into account the particular situation of peoples under colonial or other forms of alien domination or foreign occupation,[…]recognizes the right of peoples to take
any legitimate action
. […]the denial of the right of self-determination as a violation of human rights and underlines the importance

of the effective realization of this right.
Recognition
Definition
the legal right for a “people” or a minority group to attain a certain degree of autonomy from its sovereign.
International Covenant on Civil and Political Rights
International Covenant on Economic, Social and Cultural Rights
Article 1
1. All 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.
UN Charter
Article 1

2. To 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;
Article 55
With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and

self-determination of peoples
, the United Nations shall promote:
1. higher standards of living, full employment, and conditions of economic and social progress and
development;
2. solutions of international economic, social, health, and related problems; and international cultural and
educational cooperation; and
3. universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.
According to
constitutive recognition
, recognition of Kosovo by outside actors is one of the elements of its statehood.
Under this view, then, the fact that so many countries have chosen to recognize Kosovo would indicate that at least one of the criteria of Kosova's statehood has been fulfilled.
93 states have so far recognized Kosovo as an independent state
Outside actors determined that it would be best to accept Kosovo as a new sovereign partner
Are the People of Kosovo 'the people'?
share a common racial background, ethnicity, language, religion, history, and cultural heritage,”
Kosovar-Albanians are 'the people' share a common ethnicity, culture, language, religion, and social values that distinguish them clearly from the Serbs.
Are there serious violation of human rights?
External Self-Determination: only when internal self-determination is not fulfilled
Clear that their rights to internal self-determination had not been respected by the Milosevic-led Serbia
Tremendous human rights violation during the Milosevic's regime
UN Resolution 1224: "...grave humanitarian situation..." and "threat to international peace and security"
Is Secession the only solution?
The political situation prior to the declaration of independence: no realistic alternatives to secession
As of December 2007, Kosovo and Serbia could not seem to resolve their differences and the involving parties declared the political negotiations a failure.
Unlikely that anything short of military intervention could have kept Kosovo within Serbia.
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