Essay: Serbia and Kosovo

In 1989 when Slobodan Milosevic became President of Serbia he reduced the autonomy granted to Kosovo, and discouraged the participation of Albanians in public jobs. When the Kosovo Albanian leaders heard this they started withdrewing from all public institutions and created new administrativestructures. This lead to an declaration of a independant and sovereign Kosovo state on 19 October 1991 by the Kosovo Albanian leaders. However this declaration was only recognised by Albania and would not lead to a sovereign independent State of Kosovo. 17 years later on 20 February 2008 the Assembly of Kosovo adopted the Kosovo declaration of independance, which declared that Kosovo would be independent from Serbia. This declaration was recognized by almost al of the European countries and also by the United States. However for Kosovo to become a state she has to be created lawfully and fulfill the criterea of statehood arising from The Montevideo Convention on the Rights and Duties of States.And why is recognition for Kosovo as a new born State so important.
On 26 December 1933 a treaty was signed at Montevideo in Uruguay which is called The Montevideo Convention on the Rights and Duties of States. This treaty gives the traditional criterea for statehood. In article 1 of the Montevideo Convention the four criterea are giving that must be fulfilled by the entity in order to speak of statehood. These criterea are:
There should be a permanent population.
There should be a defined territory
There should be a government.
There should be the capacity to inter into relations with other states.
Critereon 1 should be interpreted as the population in a certain land needs to inhabit the land permanently, so refugees who are living on a territory with the intention not to stay there but returning to their homecountry can’t be seen as permanent and also the territory which is claimed by the population needs to be habitable so it needs to make live on that territory possible.Furthermore there is no minimum for the numbers of people living on the territory, good examples to show this are Nauru and Tuvalu.Kosovo has a permanent population consisting of 1.8 milion people in 2013, therefore there is no doubt that they fullfill the first criterea. For the second criterion there is no minimum size for the territory, like Nauru and Tuvalu both are states with the size of there territory not bigger than 25 square kilometres. So a definid territory is neccessary for Statehood, however this does not mean there need to be a landfrontier which is accepted by neighbour states. This rule was also recognised in the North Sea Shelf Cases by the International Court of Justice. Kosovo also fullfills this criterea because they were already in 1974 given the status of a province which is autonomous in the Yugoslav Constitution and therefore you can speak of a defined territory which has her own frontier. For the third criterion there needs to be a government which needs to be split in two separate components.First there needs to be an organ which regulates the relations in the community and also needs to ensure that the rules are followed. Secondly this organ needs to excercise state authority over the territory and the people who live in that territory thus they need to establish and maintain a legal order. Kosovo has a government which is democratic chosen by its citizens. The elections were organised in June 1999 by the UN, EU and other international bodies and these bodies also had the task to supervise the elections. Even though the government of Kosovo had been chosen democraticly, they could not deal with its internal affairs without permission or control from the International bodies i mentioned earlier. However on June 2008 a new constitution entered into force which changed a lot, important powers were givin to the Kosovo government. From now on the president would announce the new laws, they would get there minister of foreign affairs and organize their own elections.The last criterion is that Kosovo needs to have the capacity to enter into relations with other states. This criterion conferms the existence of the etnity of Kosovo and it shows the importance of recognition by other states.It is a essential element for a State to have the capability of creating legal relations with other states it shows that the state is independence. Kosovo has been recognised by 96 countries in the world which include almost al the European coutries and the United States.So Kosovo also fulfills the last criterion an can be seen as a state so they can enjoy the rights on statehood. But why is it so important for Kosovo that they have been recognized by al these countries, and how does recognition take place?
There are two theories on recognition the ‘constitutive’ and the ‘declatory’theory. The constitutive says that recognition does not occur automatically a state can only been seen as a state if it has been recognized by a group of other states. Thus without this recognition the new state does not exist when you look at it from a legal perspective. The declatory theory which is the most supported way of recognition in the international community is nothing more than accepting an already existing state it depends on facts. Kosovo fullfilld the criterea for statehood as i mentioned earlier and therefore they are a state and recognition by the declatory way only confirms this. It shows Kosovo that other countries have accepted them as states and therefore they are subject to international law as a state and belong to the international community of states. Kosovo which can be seen as a State and has been recognised benifiets from a lot of right. The Government of Kosovo can exercise their power in their own country without any other country of the international community interfering. Other states need to respect the territory of Kosovo her borders and are not allowed to have any aggression against Kosovo. Because Kosovo has been accepted as a member of the International community and under international law they also benifit of the right that all states are equal and can enter into international treaties, whitout another state forcing them. Kosovo can enter into treaties with other countries who have recognized them, they can be treaties with political purposes but also economical or a treaty which Kosovo enters into an alliance against crime with an other country. However international rights and duties did not arise because Kosovo got recognised it has primarily a political reason . Just like article 3 of the Montevideo Convention on Rights and Duties of States shows:
The political existence of the state is independent of recognition by the other states. Even before recognition the state has the right to defend its integrity and independence, to provide for its conservation and prosperity, and consequently to organize itself as it sees fit, to legislate upon its interests, administer its services, and to define the jurisdiction and competence of its courts.