The International Element, Statehood and Democratic Nation-building : Exploring the Role of the EU and International Community in Kosovo’s State-formation and State-building

This book represents a unique endeavor to elucidate the story of Kosovo’s unilateral quest for statehood. It is an inquiry into the international legal aspects and processes that shaped and surrounded the creation of the state of Kosovo. Being created outside the post-colonial context, Kosovo offers a unique yet controversial example of state emergence both in the theory and practice of creation of states. Accordingly, the book investigates the legal pathways, strategies, developments and policy positions of international agencies/actors and regional players (in particular the EU) that helped Kosovo to establish its independence and gradually acquire statehood. Although contested, Kosovo, and its quest for statehood, represents a unique example of successful unilateral secession. The book therefore explores and analyses patterns of state formation and nation-building in Kosovo, and its transition to democracy. It presents a three-level assessment. First, seen from a historical perspective, the book examines the validity of the right of Kosovar-Albanians to self-determination and remedial secession. Second, from a legal positivist perspective, it scrutinizes all of the legalist arguments that support Kosovo’s right to statehood, and claims that both traditional and legality-based criteria for statehood remain insufficient to determine whether Kosovo has achieved statehood. Third, from a post-factum perspective, the book analyzes the scope and extent to which the __internationally blended element__ was decisive in Kosovo’s state-formation and state-building processes. It explains how the EU’s involvement as an ‘internationally blended element’ in Kosovo’s efforts to achieve statehood was instrumental and played a crucial role in shaping the emerging state. In particular, the book elaborates on how the EU was able to streamline its mode of intervention in the context of state-building and reform. Acknowledgements 5 List of Abbreviations 10 Contents 6 Part I: Myths, Realities and Perspectives 13 Chapter 1: State Formation, State-Building and International Element 14 1.1 Introduction 14 1.2 The Main Objectives and the Structure of the Book 17 References 21 Books and Articles 21 Chapter 2: History, Identity and Myths. How Narratives of the Past [Are] Shape[ing] the Present? 22 2.1 The Myth, Identity and Nationhood 22 2.2 Kosovo, Ottoman Empire and Yugoslavia 28 2.3 The Dissolution of Yugoslavia, Kosovar-Albanian Peaceful Resistance Efforts and NATO Intervention 32 References 39 Books and Articles 39 Judicial Decisions and Court Proceedings (International Tribunals and Domestic Courts), Official Documents, Domestic Legislation, International Agreements, Official Letters, Statements and Declarations, Press Releases and Media Reports 41 Chapter 3: Legitimacy Through Missing Consensus. Kosovo and the 1244 Resolution, Vienna Negotiations and Ahtisaari Plan: The Starting Point for the ‘International Element’ 43 3.1 Kosovo Under 1244 Resolution: UNMIK and the International Administration of Kosovo 43 3.2 Developing the Contours of an Independent Multi-Ethnic [and Supervised] Republic. Vienna Negotiations and the Unveiling of Ahtisaari Plan 49 References 59 Books and Articles 59 Judicial Decisions and Court Proceedings (International Tribunals and Domestic Courts), Official Documents, Domestic Legislation, International Agreements, Official Letters, Statements and Declarations, Press Releases and Media Reports 60 Chapter 4: International Element, Quest to Statehood and International Law 62 4.1 Legitimacy Through the Sounds of Silence: ICJs Kosovo Advisory Opinion, the [Attempted] Secession and International Law 62 4.1.1 Jurisdiction and Discretion of the Court: Explaining How [Selection of] the Principles of Interpretation Impact Kosovo’s Claim to Statehood 65 Determination of Jurisdiction 65 Determining Whether the Question Is a Legal Question 67 Whether the Court [Could Have] Used Its Discretion and Declined to Exercise Its Advisory Jurisdiction 69 4.1.2 Rephrasing the Question as a Strategy to Limit the Negative Effects of the Advisory Opinion vis-à-vis Kosovo 76 4.2 The Virtue of Silence: How the Court Explained the Status of (Kosovo’s) Unilateral Declaration of Independence According to International Law 80 4.2.1 Kosovo’s Unilateral Declaration of Independence as an Expression of the Pouvoir Constituant 82 4.2.2 The Status and Nature of Kosovo’s Unilateral Declaration of Independence According to International Law 86 4.3 In Lieu of a Conclusion 95 References 98 Judicial Decisions and Court Proceedings (International Tribunals and Domestic Courts), Official Documents, Domestic Legislation, International Agreements, Official Letters, Statements and Declarations, Press Releases and Media Reports 100 Chapter 5: Kosovo’s Quest for Statehood: From Unilateral Secession to Recognition 103 5.1 Theoretical Overview of the International Law of Statehood 103 5.2 Kosovo and the Criteria for Statehood 110 5.2.1 Traditional Criteria for Statehood 110 Permanent Population and Defined Territory 110 Government, Capacity to Enter in Relations with Other States and Criterion of Independence 113 5.2.2 The Additional Criteria for Statehood 121 5.3 State Formation as ‘a Grant of Legal Authority’: Kosovo and Recognitions 123 References 132 Books and Articles 132 Judicial Decisions and Court Proceedings (International Tribunals and Domestic Courts), Official Documents, Domestic Legislation, International Agreements, Official Letters, Statements and Declarations, Press Releases and Media Reports 136 Part II: Containing Challenges to Democracy: The Role of the EU in Kosovo’s State Formation and State-Building 138 Chapter 6: The Policy of Deliberate Ambiguity: Petitioning the Role of the EU in Kosovo’s State-Formation and State-Building 139 6.1 The EU’s Engagement with Kosovo’s State-Building Process: A Legal Perspective on Internal and External Factors 139 6.2 The Role of the EU Under CFSP: A Legal Review of the Role of EULEX on Kosovo’s Transition to an Independent State 141 6.2.1 Managing the Dichotomy Between UN Law and the State of Kosovo’s Internal Legal Order Through EULEX 141 6.2.2 EULEX in the View of Kosovo’s Internal Legal Order and the Question of Sovereignty 145 6.2.3 EULEX Mission Accommodated Under Kosovo’s Law 149 6.2.4 The EU’s Management of Dichotomy Between UN Law and the State of Kosovo’s Legal Order 151 6.3 The Role of the EU Under Enlargement Policy: A Legal Analysis of Kosovo’s Standing 153 6.3.1 The First Footprint: A Feasibility Study on Kosovo-EU Treaty-Making Capacity Under EU Treaties 153 6.3.2 Kosovo’s Legal Status in the SAA with the EU 155 References 159 Books and Articles 159 Judicial Decisions and Court Proceedings (International Tribunals and Domestic Courts), Official Documents, Domestic Legislation, International Agreements, Official Letters, Statements and Declarations, Press Releases and Media Reports 160 Chapter 7: Brussels Agreement: Between Statehood and 1244 Status 162 7.1 Introduction 162 7.2 The 19 April Agreement: An Internal Perspective 165 7.2.1 An Introduction to the Main Points and the Structure of the Agreement 165 7.2.2 The Association of Serbian Municipalities in the View of the 19 April Agreement 167 7.2.3 A View on the Founding Mechanics 168 7.2.4 The Structure and Authority of the Association 169 7.2.5 Police in the Northern Kosovo 172 7.2.6 Judicial Control in the Northern Kosovo 174 7.2.7 Bilateral Approval of Each Other’s European Perspective 177 7.2.8 EU’s Role in the Implementation of the Agreement(s) 179 7.2.9 Other Issues Addressed by the 19 April Agreement 180 7.3 The 19 April Agreement: An External Perspective 181 7.3.1 The Status of 19 April Agreement in International Law 181 7.3.2 The International Relevance of the Agreement in Governing Relations Between Kosovo and Serbia 183 7.4 In Lieu of a Conclusion 185 References 185 Books and Articles 185 Judicial Decisions and Court Proceedings (International Tribunals and Domestic Courts), Official Documents, Domestic Legislation, International Agreements, Official Letters, Statements and Declarations, Press Releases and Media Reports 187 Chapter 8: The EU’s Recent Engagement with Kosovo Through the Special Court Project: A Case Study Indicating the EU’s Supportive Position on the State of Kosovo 188 8.1 Introduction on the Legal Basis for the Establishment of the EU-Engineered Special Court of Kosovo Between International, European and Kosovar Law 188 8.2 A View on the Legal Aspect of the EU-Engineered Special Court 190 8.3 Where Does the Fundamental Mandate of the SC Originate From? 191 8.3.1 A General Overview 191 8.3.2 Whether the ‘Exchange of Letters’ Constitutes a Bilateral Treaty: Is the SC a Treaty-Based Court? 194 8.3.3 Whether the Constitutional ‘Notwithstanding Norm’—In Connection with KRSJIA—Comprises a Constitutive Element for the Establishment of the SC? 202 8.4 Whether EU Law Authorizes the EU to Engage in an International Criminal Court Project? 204 8.5 In Lieu of a Conclusion 206 References 207 Books and Articles 207 Judicial Decisions and Court Proceedings (International Tribunals and Domestic Courts), Official Documents, Domestic Legislation, International Agreements, Official Letters, Statements and Declarations, Press Releases and Media Reports 208 Chapter 9: Concluding on the Significance of the ‘International Element’ in Kosovo’s Statehood and State-Building Process 210 9.1 A Doctrinal Analysis of the Role of the International Element: An Appraisal 210 9.2 A Doctrinal Input on the Role of the EU 212 9.3 A Concluding Rejoinder 215 Reference 216 Bibliography 217 Books and Articles 217 Judicial Decisions and Court Proceedings (International Tribunals and Domestic Courts) 229 UN General Assembly Resolutions and Documents 231 Other Official Documents, Domestic Legislation, International Agreements, Official Letters, Statements and Declarations, Press Releases and Media Reports 233 "This book represents a unique endeavor to elucidate the story of Kosovo's unilateral quest for statehood. It is an inquiry into the international legal aspects and processes that shaped and surrounded the creation of the state of Kosovo. Being created outside the post-colonial context, Kosovo offers a unique yet controversial example of state emergence both in the theory and practice of creation of states. Accordingly, the book investigates the legal pathways, strategies, developments and policy positions of international agencies/actors and regional players (in particular the EU) that helped Kosovo to establish its independence and gradually acquire statehood. Although contested, Kosovo, and its quest for statehood, represents a unique example of successful unilateral secession. The book therefore explores and analyses patterns of state formation and nation-building in Kosovo, and its transition to democracy. It presents a three-level assessment. First, seen from a historical perspective, the book examines the validity of the right of Kosovar-Albanians to self-determination and remedial secession. Second, from a legal positivist perspective, it scrutinizes all of the legalist arguments that support Kosovo's right to statehood, and claims that both traditional and legality-based criteria for statehood remain insufficient to determine whether Kosovo has achieved statehood. Third, from a post-factum perspective, the book analyzes the scope and extent to which the internationally blended element was decisive in Kosovo's state-formation and state-building processes. It explains how the EU's involvement as an 'internationally blended element' in Kosovo's efforts to achieve statehood was instrumental and played a crucial role in shaping the emerging state. In particular, the book elaborates on how the EU was able to streamline its mode of intervention in the context of state-building and reform."-- Back cover Front Matter ....Pages i-xiii Front Matter ....Pages 1-1 State Formation, State-Building and International Element (Dren Doli)....Pages 3-10 History, Identity and Myths. How Narratives of the Past [Are] Shape[ing] the Present? (Dren Doli)....Pages 11-31 Legitimacy Through Missing Consensus. Kosovo and the 1244 Resolution, Vienna Negotiations and Ahtisaari Plan: The Starting Point for the ‘International Element’ (Dren Doli)....Pages 33-51 International Element, Quest to Statehood and International Law (Dren Doli)....Pages 53-93 Kosovo’s Quest for Statehood: From Unilateral Secession to Recognition (Dren Doli)....Pages 95-129 Front Matter ....Pages 131-131 The Policy of Deliberate Ambiguity: Petitioning the Role of the EU in Kosovo’s State-Formation and State-Building (Dren Doli)....Pages 133-155 Brussels Agreement: Between Statehood and 1244 Status (Dren Doli)....Pages 157-182 The EU’s Recent Engagement with Kosovo Through the Special Court Project: A Case Study Indicating the EU’s Supportive Position on the State of Kosovo (Dren Doli)....Pages 183-204 Concluding on the Significance of the ‘International Element’ in Kosovo’s Statehood and State-Building Process (Dren Doli)....Pages 205-211 Back Matter ....Pages 213-232