Abstract
Emergence of new states, throughout history, tends to be explained by rational interpretation of existing terms, definitions and rules of international law. Creation of states emerging out of exemptions (to the prevailing bulk of rules) are either embraced and therefore legitimized or habitually denied. New states created as a result of unilateral secession associated with widespread international support but questioned by parent states remain erratic. These atypical practices have prompted debates about the limits of international law, new borders of illegality and, perhaps, necessity for development of international law. Explaining the emergence of the state of Kosovo is thus an inquiry of both rational interpretations of international law, exemptions and international legal processes that shaped Kosovo’s quest to statehood.
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Notes
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International Community has continuously played a role in shaping statehood claims and managing creation of new states, as it is clearly shown through the Vienna Congress (1815), the creation of new states as a result of decolonization, or even by “managing” the dissolution of former federal entities such as Yugoslavia. For more see Crawford (2007), pp. 503–545. However the role of international community was either isolated or concealed compared with the dimension and profoundness of its involvement in the case of Kosovo (as it is clearly elucidated in the next chapters of the book).
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For example Ernst acknowledges that: ‘State-building in Kosovo is a negotiation process between “internationals” and “locals.” Its logic is more political than technical, the outcome contingent on the intentions of the international actors. The goals of “internationals” and “locals” differ, which results in fuzzy governance. In time the balance of power tilts toward the local actors. With the start of the status process, the relation between internationals and locals is depoliticized. The “peacebuilding” process excludes the warring parties and imposes a predefined settlement’ See Ernst (2011), abstract.
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The book is based on the author’s interpretation of developments and events leading to Kosovo’s independence and state-building. As a citizen of the Republic of Kosovo, and considering the need to respect the principle of objective and neutral interpretation of these developments, I would like to express that in certain perspectives I follow a subjective line of reasoning. I make the two subjective points overt hereby in order to ensure that the reader is kept informed of what appears in the remaining chapters. I commit to be absolutely objective in the rest of interpretations, and rely heavily on literature to make sure this is the case. The two subjective positions I follow are the following: (a) I support an independent state of Kosovo and I trust there is a legitimacy in domestic and international terms for it to be so, and, (b) I support the idea of secession under international law under the conditions of systemic violations of international human rights law and international humanitarian law. The idea of the preliminary notice on this issue is to make the flow of the argument transparent, and, as most authors do, ensure that the scientific contribution of this book is accurate and preliminarily noted to the reader.
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The book is primarily based on a positivist methodologic interpretation of law relating to the developments inside and outside Kosovo, considering the normative aspect as rather isolated from its political and social features. The use of positivist method is primarily noted in those parts where the author elucidates the legal texts and court decisions that played a major role in the process of Kosovo’s state formation and state-building. It was in several cases accompanied with a doctrinal analysis over those positivist interpretations relying on relevant literature and landmark case-law interpretations. Besides the positivist methodology, the book uses descriptive methods to elaborate the flow of developments especially in relation to the historical parts of the book (part I) and those in the chapters relating to state-building in Kosovo (part III). The descriptive approach has helped this book by elaborating upon the ways developments flowed and the nature of position of the parties. Historical developments have been primarily considered from this position. In very limited scenarios, the book uses a prescriptive approach in providing recommendations for improving the situation in Kosovo, for both local and international stakeholders. The book uses several sources to analyze the developments and legal position of Kosovo under international law. First and foremost, UNSC resolutions concerning Kosovo’s status are pursued in a chronological order. UNSC documents, including Secretary General Reports on Kosovo and other cases provide for the majority of this legal analysis. The UN documents are given a primary position in this analysis. In this regard, ICJ opinions and landmark cases have also been extensively used to interpret developments in relation to Kosovo, and to determine an understanding of several events that shaped Kosovo’s position under international law, as well as others. Except for the ICJ, the book also relies on the legal texts and documents of the EU, considering that it often acted as an UN intermediary on Kosovar affairs, and, later on, as the key specialized organization internationally authorized to deal with the Kosovo state-building process. The decisions of the European Court of Justice have also been considered in some cases, with a view of interpreting the meaning of EU laws on several treaty bases whereby the EU framed its engagement on Kosovo. Legal texts and documents from Kosovar institutions and other third states have been used too, including interpretations provided by Kosovo’s Constitutional Court and EULEX judges sitting on Kosovo’s courts. Other texts relevant to Kosovo’s regional context, such as documents and conventions from the Council of Europe, and European Court of Human Rights standards on the broader European human rights law architecture have been frequently cited in the book. The book also relied on a bulk of rich literature, comprising of books, journal articles and other policy articles relating to the international process on Kosovo. While there is a solid literature on Kosovo, this primarily tackles Kosovo’s developments from 1998 to 2008. There is little, or far less, literature elaborating upon Kosovo’s development in international law after 2008. Aspects of the Kosovo-Serbia dialogue, or the EU’s role in Kosovo’s internal, and external state-building, have only been rarely examined by relevant literature. To this end, the book makes an extensive review of the existing literature, selecting literature on pre-2008 developments in Kosovo on the basis of legal relevance for Kosovo’s independence and state-building. The literature covering the post-2008 legal developments has been used quite exhaustively. To this end, the book relies on a large bulk of literature in an attempt to ensure that it takes into consideration a depth of scientific knowledge on the issue. The original contribution of the book on the topic relies profoundly on this ground; it, however, draws upon this on the basis of the author’s interpretation and the narrow research question. One must note that, however, most authors have chosen a rather similar pattern of explanation with regards to the meaning of the ICJ Opinion on Kosovo’s Declaration of Independence. While there is similarity between all authors on this interpretation, the study aims to depart from that line of interpretation to offer a more nuanced argumentation on the topic. The part concerning Kosovo’s state-building post-2008 and the legal consideration of this perspective is of course more novel than the previous part due to the fact that state-building developments in a legal perspective remain rather silent in the current literature.
References
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Doli, D. (2019). State Formation, State-Building and International Element. In: The International Element, Statehood and Democratic Nation-building. Springer, Cham. https://doi.org/10.1007/978-3-030-05995-8_1
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