Is the declaration of independence by the provisional authorities in Kosovo compatible with international law?

Résumé du document

Is the declaration of independence by the provisional authorities in Kosovo compatible with international law?. Rédigé en anglais, international law. Fait en European Licence of Law (2nd year). 7 pages



The 2008 Kosovo declaration of independence was an act of the Provisional Institutions of Self-Government Assembly of Kosovo, adopted on 17 February 2008 by unanimous quorum (109 members present), which declared Kosovo to be independent from the Republic of Serbia.

Extraits

[...] This type of recognition is increasingly rare. The United States and France (among many other states) recognised Kosovo by a letter. In France, the recognition was made by a letter from the French President N. Sarkozy to the President of Kosovo F. Sejdiu on 18 February 2008. And the recognition is implied when a state does not proceed to one of the precedent forms. But by its behaviour, the entity to be recognised will understand that its independence had been acknowledged. [...]

[...] International Public Law Essay Is the declaration of independence by the provisional authorities in Kosovo compatible with international law? The 2008 Kosovo declaration of independence was an act of the Provisional Institutions of Self-Government Assembly of Kosovo, adopted on 17 February 2008 by unanimous quorum (109 members present), which declared Kosovo to be independent from the Republic of Serbia. It was the second declaration of independence by Kosovo's Albanian- majority political institutions, the first having been proclaimed on 7 September 1990. [...]

[...] In the case of Kosovo, none of those violating principles of international law were used so, we can guess that until now Kosovo's claim to statehood is legal. Another question has to be asked: is a democratic government a requirement of statehood? The only situation in which democracy is required, to reach statehood, is when there is a creation of state. Indeed, all the new states should be ruled by a democratic regime. So, it is not a necessary requirement but other states may refuse recognition (that we will study in a minute) on account of the undemocratic credentials of an aspirant state. [...]

[...] On the contrary, the constitutive theory shows the act of recognition as a necessary precondition to the existence of the legal rights claimed: a state is not a state unless it has been recognised as such by other states. If recognition does not occur, the entity cannot have international personality. This theory was defended by Lauterpacht who asserted that recognition is constitutive and that there is a legal duty to recognise other states since there are no institutions to do it. [...]

[...] Finally, Kosovo, as a state', should implement a democratic regime and that is what was done. So the criterion of ‘government' seems to be respected. How about the ‘capacity to enter into relations with the other states'? It denotes ‘independence' and states with legal independence have the legal capacity to enter relations with other states on their own behalf as a matter of right. It is understood to mean that a state cannot be a puppet state or a surrogate one. [...]