Is Kosovo a state in international legal terms?

Natalie Züfle International Law

Task: Conduct basic internet research on the territory known as Kosovo. A basic "Google" search will point you in the right direction. Write a 500 word response that addresses the following issues:

1. Is Kosovo a state in international legal terms? Why or why not?
2. If you determine that Kosovo is not a state, what could its leaders do to try to become a state?
3. What would be the benefits for Kosovo of becoming a state?

The Republic of Kosovo

On 17 February 2008, Kosovo province declared its independence from the Republic of Serbia in order to become a separate republic. Kosovo's declaration of independence is quite controversially discussed, splitting the international community. As of 28 March 2008, 36 states, among them the USA, Germany, France or Japan, have acknowledged Kosovo as a separate state (see Kosova.org 2008). However, around 30 other countries have denied recognition so far, arguing that Kosovo’s declaration of independence is against international law (see ICG 2008, p.14, Wikipedia 2008). Accordingly, Kosovo at present is only a partially recognized state within the international community.

Legally, Kosovo can be denoted as a state in terms of the Montevideo Convention from 1933, which generally is drawn for determining the criteria of statehood. According to Article 1 of this convention a state must possess the following four characteristics: a) a permanent population, b) a defined territory, c) government, and d) capacity to enter into relations with the other states (Montevideo Convention, 26 December 1933).

In any case, Kosovo has a population living and working permanently on a determined territory that has been demarcated as the province of Kosovo. It has an effective government, exerting authority and control over its people as well as its territory. Last but not least – and this is the crucial point – it has shown the ability to enter into relations with other states, which was demonstrated by opening up diplomatic relations with several major nations like the USA or Japan, recognizing Kosovo’s claim of sovereignty as a new independent state.

However, given the fact that currently the international community is divided on the status of Kosovo, the leaders of the young nation should increasingly underline its recent independence by trying to strengthen its capacities to enter into relations on the international stage. For that reason Kosovo should approach other countries and encourage them to take up official relations. The more states share relations with Kosovo, the more established, and thus recognized as independent state, it becomes internationally.

Becoming a state promises several benefits for the new nation. Some of these desirable principles are laid down in Article 2 and 51 of the UN Charter: so e.g. ascertains the principle of sovereignty that “states are constitutionally independent (sovereign) and have exclusive authority to rule within their own borders” (Caporaso 2000, p. 2), i.e. this concept implicates the right to rule (jurisdiction) and to exclude (from intruding into the own territory, see Cassese 2005, p.49ff.). Furthermore, sovereign states are treated equally, irrespective of being small or large in size and population. Other benefits include the right to be free of external interference and the right to self defense in the case of being attacked.

Another great advantage consists of the right to take up diplomatic relations which form the basis of interstate relations, allowing for participation in international affairs, and thus for exerting a certain degree of influence on the international stage through negotiation and co-determination. Kosovo expresses the importance of participation in its Declaration of Independence, “reaffirming our wish to become fully integrated into the Euro-Atlantic family of democracies” (Kosova.org 2008).

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