Kosovo Declares Independence!

Yesterday, February 17, 2008, Kosovo’s parliament unanimously voted to declare independence from Serbia. This marked the next step in the decade-long territorial uncertainty of Kosovo since it became administered by the United Nations (United Nations Mission in Kosovo – UNMIK) in 1999 following conflict with Serbia involving mass atrocities. The primarily ethnically Kosovar Albanian territory had long-sought complete autonomy and independence from Serbia and the ethnic Serbs and declared independence only after multiple negotiations failed to resolve the future of the territory. Kosovo’s declaration came after a 2007 UN report entitled the Comprehensive Proposal for the Kosovo Status Settlement (otherwise known as "the Ahtisaari Plan"), which detailed Kosovo becoming independent after international supervision.

Kosovo’s declaration of independence followed other territorial separations from the former Yugoslavia, including Montenegro in 2006. However, Kosovo’s declaration has prompted significant discussion in regards to its legality (see a quick summary of the debate here). What the debate misses is that there are no legal requirements for a state to secede and become its own independent legal entity, as long as after secession, the state meets the requirements of the Montevideo Convention on the Rights and Duties of States. Much of the legal discussion has tried to show how Kosovo is different from other territories seeking independence because of its UN-administered status and Security Council resolution 1244 or the history of human rights and humanitarian law abuses. This focuses on uncertain and unrepeatable legal tests, as opposed to the real issue, which is capacity to succeed in the attempt to become an independent entity (as Serbia has a lawful right to fight to prevent the secession). If Kosovo can successfully fend off all Serbian attempts to become a state, then it is a new legal state regardless of how widespread its recognition or the nature of how it got there. While this position is not popular because it opens the way for other attempts at independence throughout the Caucuses, in the end all that really matters is whether a territory can successfully perform the act of the secession in the face of political and military force in order to become a state.

(Hat tip to Professor John Cerone for helping me think this one through.)