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.