Spain’s recognition of Kosovo passports has revitalised the talk over Kosovo’s statehood and what this implies for Catalonia, however the continued comparability of Kosovo with Catalonia is ill-suited from the authorized and political standpoint, argues Kushtrim Istrefi.
Kushtrim Istrefi is an assistant professor of Worldwide Legislation at Utrecht College and a
substitute member of the Venice Fee.
In January 2024, Spain recognised the passports of the Republic of Kosovo. It’s unclear what triggered the popularity of Kosovo passports now, virtually 15 years after Kosovo declared independence.
One argument is perhaps that via the 2023 EU-facilitated Kosovo-Serbia Agreement, even Serbia has recognised Kosovo’s state attributes, together with paperwork.
I’ve argued elsewhere that this settlement quantities to Serbia’s implicit recognition of Kosovo. But, in Spain, the popularity of passports was instantly tied to the query of Catalonia.
On this opinion, I clarify why the continued comparability of Catalonia with Kosovo is ill-suited from a authorized and political standpoint.
Whereas an in depth evaluation deserves extra prolonged dialogue, it suffices to notice that the legality of Kosovo’s independence is constructed on at the very least two core consecutive authorized arguments, that are important for state creation outdoors the colonial context and are absent within the case of Catalonia.
The primary considerations gross human rights violations and is known underneath the idea of remedial secession. The second considerations pertinent phrases of the SC Decision 1244, which left open the potential of a unilateral declaration of independence.
Remedial secession
There may be overwhelming literature and case regulation in assist of the argument that systemic oppression in opposition to a particular group of individuals justifies the creation of a brand new state.
This view was supported by, amongst others, Canada’s Supreme Court docket within the so-called Quebec query, the UK Supreme Court docket within the Scottish independence query, and the Spanish Constitutional Court docket within the Catalan query.
In all three instances, it was determined that whereas such a proper exists underneath worldwide regulation, neither Quebec, Scottish, or Catalan individuals had been oppressed by present governments. But, the exact same judgments allude that if there was oppression in opposition to such individuals, they might have been entitled to unilaterally create a state.
The oppression of the Kosovo individuals and abolishment of Kosovo’s autonomy underneath Serbia’s Milosevic regime remains to be contemporary, as greater than a thousand individuals are nonetheless lacking from the battle.
Some 25 years in the past, Spain was one of many states that discovered it crucial to make use of power in opposition to the Federal Republic of Yugoslavia (FRY) to cease the ethnic cleaning of Kosovo individuals. Towards this background, it’s considerably ill-fitting for Spain to match Kosovo with Catalonia.
Safety Council Decision 1244 paved the best way for Kosovo’s independence
Past the remedial secession query, it must be famous that in 1999, the UN Safety Council (SC) elevated the ultimate political standing of Kosovo from an inside matter inside the FRY and the Serbian Structure to a dispute guided by the SC Decision 1244 and worldwide regulation.
When the Decision 1244 was drafted, the (then) Federal Republic of Yugoslavia consultant to the UN, Vladislav Jovanovic, insisted that the draft phrases be modified in any other case: “Paragraph 11 … opens up the potential of the secession of Kosovo and Metohija from Serbia and the Federal Republic of Yugoslavia”.
The draft SC Decision 1244, nonetheless, was adopted with out modifications. Thus, reference to the territorial integrity of FRY and Serbia was not affirmed within the operative a part of the Decision regarding Kosovo’s remaining standing.
It’s related to notice that in instances the place the SC was involved with preserving a state’s territorial integrity, it conveyed that standing via the express language of the operative elements of resolutions.
By means of instance, the SC Decision 1251 on Cyprus, adopted in the identical month because the SC Decision 1244, offered that “a Cyprus settlement should be primarily based on a State of Cyprus with a single sovereignty and worldwide persona and a single citizenship, with its independence and territorial integrity safeguarded, … and that such a settlement should exclude union in entire or partly with every other nation or any type of partition or secession”.
Such lucid wording will also be present in SC Decision 787 regarding Republika Srpska, SC Decision 1037 regarding Jap Slavonija, Baranja and Western Sirmijum, and SC Resolutions 1225 and 1255 regarding Abkhazia, to call only a few.
Opposite to the instances above, SC Decision 1244 didn’t prohibit any explicit consequence.
Because the Worldwide Court docket of Justice (ICJ) reasoned in its 2010 Advisory Opinion, neither the phrases nor the article and objective of the Decision contained a prohibition in opposition to Kosovo declaring independence.
Given the obvious assist on the time on the a part of the Kosovo individuals for independence, the Decision’s reference to the 1999 Rambuillet accords, which recognised that the individuals’s will, and silence as to Serbia’s territorial integrity, will not be taken uncritically.
Lastly, the SC Decision 1244 didn’t require a consensus to achieve a remaining answer. Though the events had an obligation to barter, the ICJ has repeatedly held that when an obligation to barter exists, it doesn’t require persevering with to barter till success is achieved.
For a very long time, Spain has been on the forefront of European states difficult Kosovo’s independence and reproachment with the EU.
It did so earlier than the ICJ and, extra lately, earlier than the Court docket of Justice of the EU (CJEU). It failed in each situations because the ICJ and CJEU clarified that there isn’t any illegality connected to Kosovo’s independence and that Kosovo will be thought of a rustic and a state.
Spain’s method to Kosovo, and extra typically, the tendencies to match Kosovo with Catalonia, are additionally politically counterintuitive.
They counsel that Catalan individuals are oppressed and that their political standing is guided by a Safety Council Decision that leaves open the query of independence, to call a couple of.
Certainly, the truth that Kosovo and Catalonia are totally different doesn’t suggest that Spain shouldn’t do extra relating to the Catalan individuals.
There may be enough space for Spain to do extra relating to transitional justice and devolution of powers.
Nonetheless, so far as statehood is anxious, Kosovo’s path to statehood can not increase Catalonia’s declare to independence, similar to Catalonia’s incapability to create an impartial state can not undermine Kosovo’s consolidation of statehood.