STATEHOOD, EFFECTIVENESS AND THE KOSOVO DECLARATION

OF INDEPEDENCE∗
Introduction
Although many attempts, States failed to find a general definition of statehood.1 The most
authoritative description of the constitutive elements of statehood is contained in Article 1 of
the 1933 Montevideo Convention on the Rights and Duties of States,2 in which four criteria
must be satisfied in judging statehood. They include the requirements that the putative state
must occupy a defined territory, must operate effective government over the extent of such
territory and must be in possession of a permanent population. Finally, the claimant to
statehood must have the capacity to engage in international relations, taken to include the
ability to fulfill treaty obligations.3 These criteria are also referred to as the traditional criteria
for statehood. The traditional criteria of statehood are based on ‘effectiveness’4 and such on
the Latin maxim ‘ex factis jus oritur’5 which means that certain legal consequences are
attached to particular facts. However, the relevance of effectiveness is not, always, complete.
State practice shows that a new criterion based on legality has to be taken into consideration in
‘exceptional cases’.6 On 20 February 2008, Kosovo unilaterally declared itself independent.
This declaration has been followed by its recognition from a number of States. Nonetheless,
the formation of statehood is independent of recognition. In order to become a State, Kosovo
has, firstly, to effectively fulfill the requirements of statehood stated in the Montevideo
Convention and secondly, to have been created lawfully.

Traditional Criteria of Statehood

Permanent Population

The first requirement of a permanent population is not at stake in most of the cases. In fact, the
definition is broad enough to embrace the major part of the claims. According to Raic, two
points should be made concerning the condition of ‘permanency’: first, the population must
have the intention to inhabit the territory on a permanent basis; second, the territory claimed

∗
Okeowo Ademola Oladimeji, LL.M Candidate, International Law and the Law of International Organizations
(Specialization Human Rights) and Fellow Faculty of Law, University of Groningen, The Netherlands
1
See for example, the International Law Commission’s work on the proposed Declaration on the Rights and
Duties quoted in Crawford, Creation of States in International Law, p.38-39.
2
Crawford J., Creation of States in International Law, 2nd edition, 2006, Oxford University Press, p. 32.
3
Michael Redman, Should Kosovo Be Entitled to Statehood, The Political Quarterly, 2002, p.339.
4
David Raic, Statehood and the Law of Self-determination, geboren te 's-Gravenhage, 2002, p.49.
5
Supra note 2, p.45.
6
Supra note 2, p.46.

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has to be habitable.7 Basically, there is no minimum limit of the size of a State’s population
prescribed. Who actually belongs to the population of a state is determined by the municipal
law on nationality.8

Territory

However, the second requirement of territory is more problematic. Whereas, there is no rule
regarding the size or continuity of such territory, Crawford observes that “the right to be a State
is dependent at least in the first instance upon the exercise of full governmental powers with
respect to some area of territory”.9 This is otherwise referred to as territorial sovereignty. The
Court in Island of Palmas Case has held that territorial sovereignty “involves the exclusive
right to display the activities of a State.”10

Government

The issue of territorial sovereignty is interconnected to the third requirement of an effective

government. According to Crawford, “The requirement that a putative State have an effective
government might be regarded as central to its claim to statehood”11. Raic posits that “the
criterion ‘government’ consists of two related dimensions. Firstly, there should be an
institutionalized political, administrative and executive organizational machinery for the
purpose of regulating the relations in the community and charged with the task of upholding
the rules. Secondly, and based on the concept of effectiveness, the criterion ‘government’ refers
to the existence of effective government, which means that the institutionalized political,
administrative and executive organizational machinery must actually exercise state authority
over the claimed territory and the people residing in that territory.”12 Raic goes ahead saying
that “to be effective there must be an entity or organ capable of establishing and maintaining a
legal order throughout the territory of the prospective State.”13 Where there is a lack of
effective government, this will form a bar to the acquisition of statehood and even where
statehood has been attained, the persistent lack or absence of effective government will
eventually lead to the extinction of the State as an international person14. It should be noted that

7
Supra note 3, p.59.
8
Michael Akenhurst, A Modern Introduction to International Law, 82 (7th ed. 1997).
9
Supra note 2, p. 46.
10
Island of Palmas Case (1928) 1 RIAA 829, 839 (Arbitrator Huber) 4 ILR 3, 103, 108, 110, 111, 113, 114,
418, 479, 482, 487, 492.
11
Supra note 2, p. 55
12
Supra note 4, p. 62
13
Ibid.
14
This point is illustrated by Raic, Statehood and the Law of Self-Determination, 1967, Geboren te’s-
Gravenhage, p. 70. “The case of Somalia since 1991 is an example of civil war which is characterized not

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though international law does not prescribe the type of government that must be in power, it
falls within reasoning that such government must conform with the right to self-determination
of the governed. The existence of a system of government in and of a specific territory
indicates a certain legal status, and is in general a pre-condition for statehood.

The capacity to enter into relations with other States

The forth requirement relating to the capacity to enter into relations with other States has been
declared deficient by many publicists, stating that: this capacity is a consequence of, rather
than a criterion for, statehood.15 Furthermore, the capacity to enter into foreign relations is not
limited to States, but also extended to international organizations and constituent parts of States
(like federal components).16

Independence

Though not enumerated in the 1933 Montevideo Convention, the requirement of independence
is also frequently appended to the Montevideo criteria.17 Many academics believe that this
requirement is to be implied from the fourth criterion, for without independence, an entity
cannot operate fully in the international sphere.18 ‘The independence of a State is demanded in
order to prove that the entity can lead a separate existence. It should not be a continuation of
another State.’19 There are two pertinent elements involved in the term ‘independence’: 1) ‘the
separate existence of an entity within reasonably coherent frontiers; and 2) its not being
“subject to the authority of any other State or group of States”, which is to say that it has over it
“no other authority than that of international law”’.20

Independence is generally divided in formal and actual or real independence. And according to
Crawford’s definition “[f]ormal independence exists where the powers of government of a
territory (both in internal and external affairs) are vested in the separate authorities of the

only by a division of authority over several groups within the country but also, and in particular, by the
absence of government. In the power vacuum after the fall of President Siad Barre’s regime in 1991, civil war
broke out between factions and clans who either supported Interim President Ali Mahdi Mohamed or General
Mohamed Farah Aidid. This resulted in the disappearance of a structure of government, disintegration of
society and widespread death and destruction. As a result, Somalia is referred to as the principal example of a
‘failed’ or ‘collapsed’ State.”
15
Supra note 3, p.339.
16
Supra note 4, p.74.
17
Omar M. Dajani, Stalled Between Seasons: The International Legal Status of Palestine during the Interim
Period, Denver Journal of International Law and Policy, 1997, p.81.
18
Nii Lante Wallace-Bruce, Claims to Statehood in International Law 21-22 (1994), p.57.
19
Jorri Duursma, Self-determination, Statehood and International Relations of Micro-States, University of
Leiden, the Netherlands, 1994, p.116-117.
20
Cf Vattel, Droit des gens, vol I, ch1, ss5-11: Sovereignty is ‘the right to self-government’, so that a people
‘under the rule of another’ are not a State.

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putative State”; whereas actual independence is defined as “the minimum degree of real
government power at the disposal of the authorities of the putative State, necessary for it to
qualify as ‘independent’”.21 Only when the two types of independence exist, the entity may
qualify as a State.

Applying the traditional criteria in the case of Kosovo

Under the 1974 Yugoslav Constitution, Kosovo was granted the status of an autonomous
province with virtually the same rights and responsibilities as the six Yugoslav Republics.
Kosovo’s autonomy included its own identity, territory, international relation powers, and
representation in all organs of the Yugoslav Federation. After Milosevic took power in 1989,
the degree of autonomy granted by Belgrade to Kosovo was substantively reduced, and the
participation of ethnic Albanians in public office was actively discouraged. In response,
Kosovo Albanian leaders withdrew from all public institutions, created parallel administrative
structures and on 19 October 1991 declared Kosovo a sovereign and independent state.22 After
attacks committed by the Kosovo Liberation Army, the Federal Republic of Yugoslavia (FRY)
authorities launched a military campaign against its region in February 1998. Gross violations
of human rights have been committed by the FRY authorities in the region and on 24 March
1999, NATO began a bombing campaign against FRY claiming for a ‘humanitarian
intervention’. The bombing campaign ended on 9 June 1999. The United Nations Mission in
Kosovo (UNMIK) 23 has been established and exercises ‘All legislative and executive authority
with respect to Kosovo, including the administration of the judiciary’.24 On 15 May 2001, a
Constitutional Framework for Provisional Self-Government gave certain powers to a Kosovo
Assembly.25 On 20 February 2008, Kosovo declared itself independent for the second time.
Although its first declaration of independence has been only recognized by Albania, the
independence of Kosovo done in February 2008 has been followed by the recognition of a
number of countries including the United States and the major part of European countries.

It is beyond dispute that Kosovo has a permanent population: as of November 2007, Kosovo
had a population of approximately 1.9 million people.26 There is also no question the citizens

21
Supra note 2, p52, 56-57.
22
Enrico Milano, Security Council Action in the Balkans: Reviewing the Legality of Kosovo's Territorial Status,
European Journal of International Law, 2003
23
Constitutional Framework for Provisional Self Government, UNMIK/REG/2001/9, 15 May 2001.
24
UNMIK/REG/1999/1, 25 July 1999, S/1999/987, 14.
25
Constitutional Framework for Provisional Self Government, UNMIK/REG/2001/9, 15 May 2001.
26
United Nations Interim Admin. Mission in Kosovo, Kosovo in November 2007 (2007),

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of Kosovo wish to live permanently where they are and that the territory is habitable. As well,
Kosovo as an entity capable of entering into international relations is illustrated clearly by the
presence of a Kosovar Albanian delegation at the Rambouillet conference in the lead-up to the
1998-9 war.27

However, Kosovo fails to show the necessary attribute of effective government and
independence. Kosovo fulfills the requirement of territory but it is more doubtable relating to
the exercise of sovereign territory. It has a democratic government that was chosen by its
citizens via elections organized and supervised by the OSCE, U.N., EU and other international
bodies. The government functions through legal acts based on a constitutional framework and
through laws passed by the legislative organs, which have been approved by the Special
Representative of the U.N. Secretary-General. NATO enforces laws relating to international
security, and U.N. police forces enforce laws relating to internal law and order. The judicial
system operates under the control of UNMIK, utilizing international judges and prosecutors. It
is easy to see that, every institution of Kosovo has an international component.28

Undeniably, the Government of Kosovo is still under the tutelage of the U.N. There are many
powers it does not itself exercise, which are assumed by the international community.29 In this
sense, Kosovo is still not fully independent. It lacks the ability to deal with the affairs on its
own, both internally and externally.

Modern Criteria of Statehood

The concept of effectiveness used to play leading role in the determination of statehood.30 Its
aim is to give full legal effect to factual situations. Raic argued that the ‘raison d’être’ of
effectiveness is “the absence of a central organ with general powers of attribution and
enforcement of rights and obligation” at the international level. 31 Thus, effectiveness is a ‘pre-
condition’ for the attribution of a legal statute. According to Raic, the importance of the role
played by effectiveness is limited to situations where statehood has to be ‘claimed’ or ‘proved’.
The attitude of the State parent has to be taken into account. When it consents to the attribution

http://www.unmikonline.org/docs/2007/Fact_Sheet_nov_2007.pdf. (Consulted on 20 Oct 2008).

27
Supra note 3, p.340.
28
Hajredin Kuçi, The Legal and Political Grounds for, and the Influence of the Actual Situation on, the Demand
of the Albanians of Kosovo for Independence, Chicago-Kent Law Review, 2005, p.349.
29
Ibid.
30
De Visscher, EFFECTIVITES, p.36 quoted in David Raic, Supra note 4, p.49.
31
Supra note 4, p.50.

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of statehood to a territorial entity by the way of treaty or other source of law, the role played by
effectiveness is less important. In the case of Kosovo, the statehood contestation by the parent
State, namely Serbia, requires a strict application of the concept of effectiveness. However,
effectiveness is not strictly applied when the lack of an effective government is the result of an
unlawful conduct of the State parent. In such cases, relating mainly to colonisation, “the lack of
effective government is compensated by an applicable right of external self-determination.”32

Furthermore, State practice shows that effectiveness is not the only criterion for statehood. By
way of illustration, Ethiopia, Austria, Czechoslovakia, Poland, the Baltic States, Guinea-Bissau
and Kuwait were regarded as States whereas they were not effective entities. Rhodesia, Taiwan
and the Turkish Republic of Northern Cyprus, which were effective entities were not regarded
as States.33 In fact, academics distinguish two criteria of statehood; ‘effectiveness’, known as
the ‘traditional criteria’ and ‘legality’, also referred as the ‘modern criteria’. This modern
criterion has sometimes been rejected, arguing that the non attribution of statehood to an
effective entity because of its illegality will consequently leave this entity in a legal vacuum.
Crawford counter-argues, saying that international law applies as well to “de facto entities”34.
For example, Taiwan which is an effective entity, but not a State, cannot act contrary to
international law.

The aim of the legality criterion is to prevent the formation of a State, which is in fact an
effective entity, but is in contravention of peremptory norms of international law. A peremptory
norm is, as defined in Article 53 of the Vienna Convention on the Law of Treaties, ‘a norm
accepted by the international community of States as a whole as a norm of which no derogation
is permitted and which can be modified only by a subsequent norm of general international law
having the same character.’35 Although the Vienna Convention deals with treaties, Crawford,
relying on the International Law Commission36, argues that the scope of Article 53 is not
limited to the law of treaties. 37 In the case of formation of States, Raic deduced from the State
non-recognition practice, that the ‘legality’ criterion covers three areas: “(a) the prohibition of
aggression, (b) the prohibition of the violation of the right of self-determination of peoples (in
the colonial context at least) and (c) the prohibition of systematic racial discrimination,

32
Ibid p.104.
33
Supra note 2, p.97.
34
Ibid p.99.
35
Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331, Art 53.
36
International Law Commission, Commentary to ARSIWA, Part Two, Chapter III, para (7).
37
Supra note 2, p. 105

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including the prohibition of Apartheid.”38 Crawford claims that the violation of a peremptory
norm makes the act void and that no State is created. The terminology used by the Security
Council and the General Assembly seems to go into this direction. In fact, it has always been
avoided to use the word ‘State’ in the case of an effective but illegal entity. As such, the
Security Council qualified Southern Rhodesia as “illegal racist minority régime”39, the Turkish
Republic of Northern Cyprus as “purported State”40. For its part, the General Assembly,
referring to the Homelands, talks about “the so-called independent Transkei”41 and the “so-
called ‘independent’ bantustans”.42 In sum, the effectiveness criterion is not enough. Where the
effectiveness criterion is fulfilled the entity is “an effective territorial entity”43 but not a State,
unless it has been created lawfully.

On 8 October 2008, at the request of Serbia, the General Assembly requested an advisory
opinion of the International Court of Justice (ICJ) about the legality under international law of
the declaration of independence made by Kosovo the 20 February 2008. Although, an advisory
opinion of the ICJ is not legally binding and thus the ICJ cannot cancel the declaration of
independence, its opinion has a considerable political impact. The ICJ will have to apply the
statehood criteria to Kosovo. Firstly, relating to the traditional criterion of effectiveness, the
extensive role played by UNMIK, shows that Kosovo has an effective government, but it is not
independent from the international community. Secondly, Kosovo’s claim of statehood based
on the violation on human rights committed by the former Republic of Yugoslavia, does not
fall within the category of the ‘modern’ criteria of statehood. In fact, Crawford concludes from
State practice, in particular in the case of Chechnya, that the consequence of a violation of
fundamental human rights by a State “[does] not entail the loss of title or statute of the State
concerned.”44

Conclusion
It can be seen from this treatise that apart from the traditional criteria of Statehood as laid down
by the 1933 Montevideo Convention on the Rights and Duties of States, other criteria exist
which an ‘entity’ must fulfil in order to be properly regarded as a State. The criteria of

38
Supra note 4, p.156.
39
United Nations Security Council Resolution 424, 17 March 1978.
40
United Nations Security Council Resolution 550. 11 May 1984.
41
United Nations General Assembly Resolution 31/6A, 26 October 1976.
42
United Nations General Assembly Resolution 32/105 N, 14 December 977.
43
Supra note 4, p.154.
44
Supra note 2, p.149.

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independence and legality which have been accepted as the modern criteria for statehood have
been put to test in the case of Kosovo and have been found to be missing. From the foregoing
therefore, it is our conclusion that Kosovo may not yet be regarded as a State properly so called
under International law. It should also be noted that though the opinion of the ICJ is generally
not binding, the outcome of the recently referred Kosovo case to the Court by the UN General
Assembly has so much to do on the status and future of the entity called Kosovo.

Bibliography

Books and Articles:

- Crawford J., Creation of States, 1979, Oxford, Clarendon Press.
- Crawford J., Creation of States in International Law, 2nd edition, 2006, Oxford
University Press.
- David Raic, Statehood and the Law of Self-Determination, 2002, Geboren te’s-
Gravenhage.
- Enrico Milano, Security Council Action in the Balkans: Reviewing the Legality of
Kosovo's Territorial Status, European Journal of International Law, 2003.
- Hajredin Kuçi, The Legal and Political Grounds for, and the Influence of the Actual
Situation on, the Demand of the Albanians of Kosovo for Independence, Chicago-Kent
Law Review, 2005, p.349.
- Jorri Duursma, Self-determination, Statehood and International Relations of Micro-
States, University of Leiden, the Netherlands, 1994, p.116-117.
- Michael Akenhurst, A Modern Introduction to International Law, 82 (7th ed. 1997).
- M. Lachs, The Development and General Trends of International Law in Our Times,
HR, Vol. 169, 1980.
- Michael Redman, Should Kosovo Be Entitled to Statehood, The Political Quarterly,
2002, p.339.

Page 8 of 9
 - Nii Lante Wallace-Bruce, Claims to Statehood in International Law 21-22 (1994),
p.57.
- Omar M. Dajani, Stalled Between Seasons: The International Legal Status of Palestine
during the Interim Period, Denver Journal of International Law and Policy, 1997,
p.81.
- Subin Nijhawan, ‘The criteria for statehood in international law are based on the
principle of effectiveness not legitimacy’, 2003, School of Oriental and African
Studies, London.

Documents:
- Constitutional Framework for Provisional Self Government, UNMIK/REG/2001/9, 15
May 2001.
- International Law Commission, Commentary to ARSIWA, Part Two, Chapter III, para
(7).
- Island of Palmas Case (1928) 1 RIAA 829, 839 (Arbitrator Huber) 4 ILR 3.
- United Nations General Assembly Resolution 31/6A, 26 October 1976.
- United Nations General Assembly Resolution 32/105 N, 14 December 977.
- United Nations Security Council Resolution 550. 11 May 1984.
- UNMIK/REG/1999/1, 25 July 1999, S/1999/987, 14.
- 1933 Montevideo Convention on the Rights and Duties of States.

Others:
- United Nations Interim Admin. Mission in Kosovo, Kosovo in November 2007
(2007), http://www.unmikonline.org/docs/2007/Fact_Sheet_nov_2007.pdf. (Consulted
on 20 Oct 2008).

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