5th November 2019.
Law student Kieran Sewell writes on the legal complications surrounding statehood on the international stage and the problems facing unrecognised states.
The United Nations Security Council ‘Resolution 1244’, adopted on the 10 June 1999, aimed to promote ‘the establishment of substantial autonomy and self-government in Kosovo’. On the basis of this, international negotiations on Kosovo’s status began in February 2007. A draft Security Council Resolution was circulated and withdrawn after failing to gain Russia’s support in July 2007.
Despite international indecisiveness, Kosovan Parliamentary Elections were held on the 17 November 2007 which were followed by a declaration of independence from Serbia on the 17 February 2008, rendering it, effectively, an independent state.
Kosovo has received 115 diplomatic recognitions as an independent state yet 15 have been withdrawn.
This number may continue to rise as Czech President, Miloš Zeman, seeks to withdraw his country’s recognition of Kosovo. This demonstrates the importance of politics in the issue of statehood. How can a de facto regime exist for over ten years, yet not be acknowledged by nearly half of the Member States of the world?
Public International Law is the legal ruling that affects all international legal entities, from liberation movements, to member states and international organisations. Public international law has taken the Montevideo Convention, signed by 16 states in the Americas, as a mere codification of pre-existing legal principles relating to states in international law; thus, its articles apply to all subjects of international law.
The Convention defines a state as having a permanent population, a defined territory, an effective government and the capacity to enter into relations with other states. The final condition is indisputably linked to international politics as a de facto regime’s capacity to enter into relations with other states depends on whether other states acknowledge its existence.
For example, despite its annexation by the Soviet Union in 1940, Lithuania is considered to have still existed in international law since its original declaration of independence in 1918, even though it was unable to enter into relations with other states. How can a state that does not fit the criteria be considered to exist, whereas a state that does is not recognised in international law?
Political recognition can make a non-existent state exist and unmake a state that exists
Denial of political recognition can, at times, be useful. Collective non-recognition of a state has in the past forced states to make changes to their internal regime in order to be a player on the world stage. A prominent example of this is the case of Rhodesia, an “illegal racist minority regime” which was not recognised by the international community as it was based upon an apartheid.
However, this has the reverse effect of leaving the unrecognised state with no rights or obligations vis-à-vis the states that don’t recognise it. Therefore, an unrecognised state is neither party to the Geneva Conventions nor the International Labour Organisation, as well as other universal systems of human rights protection.
Rather than accept the objective situation of a state’s existence, the international community would prefer to misdirect accountability for a state’s actions – Serbia would be responsible for a violation of international law by Kosovo.
In order to rectify this issue, the international community should consider adopting Opinion No.1 of the Badinter Commission, that the ‘existence or disappearance of the State is a question of fact’ and that ‘the effects of recognition by other States are purely declaratory’.
An objective determination of statehood would better serve the protection of human rights and the allocation of responsibility for actions of international legal entities.
By Kieran Sewell
Image by Hrachia Kazhoyan
 Harris, D.J. (2004) “Cases and Materials on International Law” 6th Ed. at p. 99. Sweet and Maxwell, London; Castellino, Joshua (2000) “International Law and Self-Determination: The Interplay of the Politics of Territorial Possession With Formulations of Post-Colonial National Identity” Martinus Nijhoff Publishers. p. 77.