Serbia’s Non-recognition of Kosovo’s Independence Sets New Precedence in International

Law

On November 2, 2010, interim Kosovar President Jakub Krasniqi of the Democratic League of
Kosovo (LDK) dissolved government through a vote of no confidence.1 Immediate elections
must be held within 45 days of the vote – on December 12, 2010 – two months earlier than
expected.2 Krasniqi announced that negotiations with Serbia will now be held after election.

Serbia and Kosovo were set to begin negotiations in the fall of this year on technical issues
surrounding Kosovo’s declaration of independence in February 2008. Kosovo had fought for
independence from Serbia in 1997 after years of suffering grave human rights abuses, alien
subjugation, domination, and exploitation only to acquire an interim government run by the
United Nations (UN) in 1999.

When Kosovo declared independence in 2008, Serbia took the dispute to the International Court
of Justice (ICJ). In July, the ICJ ruled Kosovo’s independence in accordance with international
law. Yet, Serbia refuses to recognize Kosovo’s “unilateral declaration of independence.”

With these recent snap elections, opposition to compromises is removed. Without opposition,
uncompromising issues fall on Serbia’s shoulders revealing Serbia’s attitude to humiliate and
snub Kosovo by preventing independence. Kosovo’s reliance on Serbia’s mercy to allow
independence sets new precedence in international law. This need for recognition redefines state
sovereignty to require recognition from a mother country in cases of secession.

International Law and the ICJ Opinion

State sovereignty has been defined as a state 1) permitted by international law to decide and act
without intrusions from other sovereign states,3 2) without the need of recognition by other
states, while 3) having a defined territory, population, government, and the ability to enter into
relations with other states.4

Kosovo possessed the first two attributes through the ICJ’s ruling and the Montevideo
Convention, but without Serbia’s recognition, Kosovo cannot acquire the third attribute –
overruling established law of sovereignty.

The ICJ dismissed Serbia’s three allegations that Kosovo violated 1) Serbia’s territorial integrity,
2) UN Resolution 1244 (Resolution 1244), and 3) the Constitutional Framework.

The ICJ ruled that Kosovo could not have violated Serbia’s territorial integrity because it only
applies to relations between states, not within former states. Moreover, Kosovo was allowed to
secede because international law has been allowing secession for the past 100 years.

1
Daniel Richey. “Kosovo government collapses in aftermath of court ruling against president”. JURIST. 3 Nov.
2010.
2
“Vote of no confidence triggers snap elections in Kosovo”. Deutsche Welle. 3 Nov. 2010.
3
“State Sovereignty”. International Development Research Centre. 2002.
4
“Montevideo Convention on the Rights and Duties of States”. Treaty. 26 Dec. 1933.
The ICJ dismissed the accusation of violating Resolution 1244 because independence fell outside
the jurisdiction of Resolution 1244. Resolution 1244 only covered Kosovo’s transition to
independence, not the act of becoming independent.

Finally, the ICJ concluded the Assembly of Kosovo did not declare independence, which is
illegal under the Constitutional Framework.5

With these decisions, the ICJ granted Kosovo permission to declare independence. Nonetheless,
the ICJ’s authoritative value was squashed by Kosovo’s need for Serbian recognition even
though Article 3 of the Montevideo Convention declares that recognition is not required for
sovereignty. Kosovo cannot acquire a definitive territory, population, government, and the ability
to enter into relations with other states unless Serbia consents.

How Serbia Prevents Kosovo’s Independence

Serbia’s refusal to solve the problem of the North and technical issues with Kosovo prevents
Kosovo from acquiring a defined territory, population, government, and ability to enter to
relations with states. At the same time, Serbia’s issue with the Serbian Orthodox Church in
Kosovo reveals Serbia’s intention to drag the negotiations process out as long as possible –
preventing Kosovo’s independence.

The North

Kosovo and Serbia’s dispute over the northern territory of Kosovo prevents Kosovo from
acquiring a definitive territory, population, government, and ability to enter into external
relations. Serbia claims the territory between the Ibar River and Serbia where 95 percent of the
population are Serbs. Yet, Kosovo wants the North because Pristina wants the North fully
integrated to protect its territorial integrity. This dispute legally locks the North into a frozen
conflict by preventing the UN Security Council from writing a new resolution.

Kosovo is, then, left with an undefined territory and population because northern Serbian
Kosovars live under Serbian courts and police.

Technical Issues

Kosovo’s disputed northern territory causes problems in communications and customs and trade
preventing Kosovo from acquiring a government and the ability to enter into external relations,
respectively.

Serbia’s issue with the North causes problems with Kosovo’s telecommunications preventing
Kosovo from establishing a sovereign government. Serbian operators can still send signals to the
North without paying taxes. The ability to direct taxes is a fundamental characteristic of a
sovereign government. Without this power in the North, Kosovo loses part of its sovereign
government, and Serbia flexes its power by controlling Kosovo government functions.

5
“Accordance with international law of the unilateral declaration of independence in respect of Kosovo: Summary
of the Advisory Opinion”. International Court of Justice. 22 July 2010.
Serbia also takes Kosovo’s independence by regulating its external relations. Serbia successfully
blocked Kosovo from entering into regional trade treaty CEFTA by pulling out its ambassadors
from countries who recognized Kosovo’s independence and using other diplomatic tactics. This
requirement for Serbia’s approval revealed Kosovo’s lack of sovereignty because Serbia
determined Kosovo’s relationships. Nonetheless, Serbia’s last issue with its orthodox church in
Kosovo does not prevent sovereignty, but shows Serbia’s true motive for not solving the
problems in the North and on technical issues. Serbia wants to stall negotiations and prevent
Kosovo independence.

Serbian Orthodox Church

Serbia’s dispute over its orthodox churches in Kosovo only reveals how it wants to prolong
negotiations indefinitely because of its fears of victimization.

Because Kosovo is willing to give Serbia “exercise of executive, legislative and judicial
jurisdiction” in Church law and monks power to interact with Kosovo authorities, Belgrade
shows its desire to humiliate and snub Kosovo. Serbia does not need extraterritoriality to protect
itself if Kosovo is willing to grant the Church its own government and wants to be a member of
the EU. Since Serbia does not need extraterritoriality,6 Serbia’s excessive request shows Serbia’s
spiteful nature as seen throughout Kosovo-Serbian history.

History of Kosovo

Serbs have felt victimized by Albanians since the Ottoman Empire stole Kosovo from the Serbs
and gave it to the Albanians for converting to Islam.

Since then, these feelings continued into World War I (WWI) when the Central Powers drove the
Serbs into Albanian territory allowing them to brutally oppress the Serbs as allies of the Central
Powers.

After WWI, Yugoslavia was created, which was governed from Belgrade. Kosovo kept its
autonomy until it was subsumed into Yugoslavia after World War II when Yugoslavia cut ties
with Russia forcing Kosovo to cut ties with Albania.

Since then, Belgrade has humiliated and oppressed Kosovo by transferring it to Serbian
jurisdiction from federal Yugoslavian jurisdiction. Nonetheless, Kosovo managed to create a
semi-autonomous government under Serbian rule.

This semi-autonomy gave Kosovo hope of a better situation for a time, but when the Kosovar
government could no longer sustain itself, the situation began to unravel. Albanian Kosovars
fought a civil war for independence.7 The war left Kosovo in a state of limbo for eight years
being poorly administered by the UN and ending in a protracted negotiation process. It was

6
“Kosovo and Serbia after the ICJ Opinion”. International Crisis Group. 26 Aug. 2010.
7
G. Richard Jansen. “Albanians and Serbs in Kosovo: An Abbreviated History -- An Opening for the The Islamic
Jihad in Europe”. Colorado State University. 22 July 2008.
compelled to accept a constitution largely written by foreigners with a generic flag; prohibited
from having an army; and made to offer Serbs far greater rights and privileges than comparable
minorities.8

Even after Serbia witnessed Kosovo suffer, Serbia still refused to grant Kosovo independence.
Serbian disinclination to integrate 2 million people into their country that hate them9 reflects
what the International Crisis Groups describes as Serbia’s determination to snub Kosovo and to
“insist[] on ever-changing but humiliating conditions [and un]realistic goals….”10 Serbia simply
demands unrealistic compromises to humiliate and snub Kosovo, and this motive reveals itself
with Kosovo’s increased flexibility due to its snap elections.

How Kosovo’s Snap Elections Reveal Belgrade’s Spite

With snap elections, PM Hashim Thaci can easily implement flexible negotiations. Thaci’s two
main rivals will be removed.

Ramush Haradinaj, who is standing trial at the Hague, will not return by December 12, and
Former President Fatmir Sejidu can no longer run as president after becoming president of his
party.

Thaci removed Sejidu and his LDK from opposition when he won a court case in the
Constitution Court. The Constitutional Court ruled that Sejidu could not be president of both
Kosovo and the LDK. Sejidu chose to be president of the LDK and withdrew the LDK from the
coalition government it was in with Thaci’s Democratic Party of Kosovo (PDK). The
government collapsed giving Thaci an easy win both as president and as ruling party in
parliament.11

Conclusion

With Thaci’s oppositions gone, Thaci’s flexibility12 highlights Serbia’s unwillingness to

negotiate and prevent Kosovo’s independence. This unwillingness emphasizes Serbia’s
determination to humiliate and snub Kosovo, which makes Kosovo unlikely to achieve full
independence. Kosovo’s recent snap elections have undermined international law to create a new
precedent that even if international law permits a state to be sovereign, recognition by a mother
country is required to be sovereign. Needing recognition from a mother country to be
independent disregards the established international law on sovereignty. Established law
declared that recognition does not determine sovereignty, but the permission of international law
determines sovereignty. This need for recognition overrules international law’s authority to
determine sovereignty and delegates authority to mother countries in cases of secession.
Secession cases are now at the mercy of their oppressors.

8
“Kosovo and Serbia after the ICJ Opinion”. International Crisis Group. 26 Aug. 2010.
9
“Kosovo and Serbia after the ICJ Opinion”. International Crisis Group. Page 4. 26 Aug. 2010.
10
“Kosovo and Serbia after the ICJ Opinion”. International Crisis Group. Page 24. 26 Aug. 2010.
11
Shaun Byrnes. “ High Stakes Politics Produce A Crisis In Kosovo”. Radio Free Europe/Radio Library. 19 Oct.
2010.
12
“Kosovo and Serbia after the ICJ Opinion”. International Crisis Group. 26 Aug. 2010.