The Independence of Kosovo from an International Law Perspective

On Sunday, Kosovo declared its independence from Serbia. The United States were the first country to recognize Kosovo as an independent state, followed by France, Germany and many others. Yet, other countries, like Israel and Spain are reluctant to recognize an independent Kosovo because they fear that this may cause Palestinians and Basque respectively to undertake similar steps. The FAZ has more [article in German].

What do all these events mean from an international law perspective? Can any sub-region of a given country simply declare its independence and enter statehood? And what are the effects of recognition by other states? Section 201 of the Restatement (Third) of the Foreign Relations Law of the United States (1987) defines a state as follows:

Under international law, a state is an entity that has a defined territory and a permanent population, under the control of its own government, and that engages in, or has the capacity to engage in, formal relations with other such entities.

This provision enumerates the four "formal" requirements for statehood. Yet, section 201 of the Restatement (Third) does not say anything about recognition by other states. Is recognition then necessary for an independent state to exist?

The significance of recognition on statehood has long been subject to debate. According to some, it is the recognition by other states that makes an entity become a state. Consequently, this point of view sees recognition as an essential requirement for statehood, a fifth element so-to-speak. Such an approach, however, may prove problematic. It makes statehood contingent upon the discretion of other states and it is unclear how many states will have to recognize an entity in order for it to constitute a state. Therefore, others say that recognition by other states is only declaratory. According to this view, an entity that fulfills the above-mentioned four criteria is considered a state under international law. Yet, these four conditions are not necessarily clearly established in a particular case and their determination generally depends upon assessment by other states which, by means of recognition (!), indicate that they consider the four elements of statehood to be present... [Source: Damrosch et al., International Law (2001), pp. 250 et seq.]

In the end, all still seems to boil down to state recognition. Thus, the fact that some important countries have already recognized the independent Republic of Kosovo does constitute an important stepping stone. Yet, will it be enough given that Serbia has accused the President of Kosovo, the Prime Minister, and the President of the Parliament for treason and that there have already been some attacks to Kosovo borders? How important is endorsement of Kosovo by the U.N.? It remains to be seen how things further develop.

Presidential Elections in the US: Where Do the Respective Candidates Stand on International Law Issues?

Ever wondered about where your favorite presidential candidate stands on issues of international law? The American Society of International Law (ASIL) may have the answer. In its web-initiative International Law 2008, ASIL presents Presidential candidates' policy statements on international law topics, publishes the answers of some candidates to ASIL's candidate surveys (interestingly, though, only Democratic candidates seem to have answered the surveys), and provides some comments by ASIL Executive Council members on the question of the most important international policy issue that will face the next U.S. administration. Even as a foreigner, I find this website extremely useful.

In particular, as a strong proponent of the International Criminal Court (ICC), I found it especially interesting how candidates responded to the question what the U.S. policy towards the ICC should be. While the two leading Democratic candidates, Clinton and Obama, recognized the important role the ICC has played so far, they did not provide a clear answer whether the United States should sign the Rome Statute establishing the ICC or not. The other (former) Democratic candidates who submitted answers, Edwards and Kucinich, explicitly argued for a United States membership of the ICC. It would be interesting to know how the Republican candidates would answer this question...

Status Report on Lisbon Treaty Ratification

Our move has unfortunately broken the flux of my blog posts. Yet, as I am now well settled in New Haven, you will hopefully hear from me more often ;-) Many interesting things have happened on the international plane since I last posted on this blog and it is impossible to catch up with everything. I would therefore like to focus on recent developments in one of the major areas covered on this blog last year - the EU Reform Treaty, now officially called Lisbon Treaty.

The Lisbon Treaty was signed by the European heads of state in December 2007. The signing ceremony had been clouded by British Prime Minister Gordon Brown arriving after the whole ceremony was over. Eventually, however, the Lisbon Treaty was signed by all heads of state and thus entered its ratification stage - the last step before entering into force. Yet, it is the ratification process that is the most volatile. Previous reform efforts had failed when referenda in France and the Netherlands had rejected ratification of the EU Constitutional Treaty.

The ratification of the current Lisbon Treaty was then already up for a rough start as the current text had been drafted in a way to avoid referenda whenever possible. To date, only Ireland will have to cast a popular vote on the Lisbon Treaty. Yet in at least two countries, France and the UK, governments face opposition to their decisions to have the Lisbon Treaty ratified by parliament and not by referendum.

In France, the government has been exceedingly eager to avoid a repetition of the 2005 reversal. On Monday, the French Senate and National Assembly both passed an amendment to the French Constitution. The amendment cleared the way for a parliamentary ratification of the Lisbon Treaty (instead of a referendum). Besides eliminating any reference in the French Constitution to the failed Constitutional Treaty, the amendment also adds two articles concerning the interrelationship between the French legislature and the European Union. For the text of the constitutional amendments, visit the blog of former French President, Valéry Giscard d'Estaing [in French]. The French Senate and National Assembly are scheduled to vote on the ratification of the Lisbon Treaty at the end of this week.

It is worth noting that while the above-described amendments to the French Constitution were necessary to allow for a parliamentary vote on the ratification of the Lisbon Treaty, the French Constitution has at all times provided for a parliamentary vote on the ratification of international treaties. According to Valéry Giscard d'Estaing, the parliamentary vote is even the primary path for ratification, a referendum being just an alternative option [pdf, in French]. The issue is that the previous government had deemed the Constitutional Treaty to be so important to warrant a popular vote by the French People. It seems that the current government has made a reassessment concerning the Lisbon Treaty and decided to resort to the parliamentary ratification procedure. This reassessment is not approved by some members of parliament as well as 59% of the French voters. EUobserver has more.

In the UK, the government's decision not to hold a referendum on the Lisbon Treaty has encountered even more severe resistance. Several efforts are being made to stop a parliamentary vote on the ratification. The major argument of ratification opponents is that the government had previously promised to hold a referendum on the Constitutional Treaty before the treaty failed due to negative referenda in France and the Netherlands. A donor of the British conservative party therefore tries to get judicial review of the British Prime Minister's decision not to hold a referendum claiming a possible breach of contract. A similar case has been filed in a different court by a member of the UK Independence Party. BBC has more. Meanwhile, the so-called "I Want a Referendum (IWR)" campaign [website] intends to run "mock" referenda on the Lisbon Treaty in several constituencies across the UK. It remains to be seen how the situation develops.

I would like to conclude this post with some positive news: According to the BBC, Romania, Hungary, Malta, and Slovenia have already ratified the Lisbon Treaty. In Germany, the government has introduced a law to ratify the Lisbon Treaty. The German parliament is expected to vote on that law in the months to come. For more information regarding the German ratification of the Lisbon Treaty, click here [website of the German government, in German].