Published: 5 April 2018 Author: Stefan Talmon
On 17 February 2008, Kosovo unilaterally declared its independence from Serbia with the support of Western powers including the United States of America, the United Kingdom, France and Germany. Germany was among the first countries to recognize the Republic of Kosovo as an independent State. Ten years later, Kosovo’s independence was recognized by 111 UN member States but was still strongly opposed by the Republic of Serbia. 82 UN member States did not recognize Kosovo as an independent State, including Brazil, China, India, and the Russian Federation. As a result, Kosovo was not admitted to membership of the United Nations.
The European Union (EU) did not hold a common position on the status of Kosovo. While 23 EU member States had accorded recognition to Kosovo, five member States – Cyprus, Greece, Slovakia, Spain and Romania – had not. The unsettled relationship between Belgrade and Pristina and, in particular, Serbia’s active non-recognition policy vis-à-vis Kosovo constituted the main obstacles of the two countries entering the European Union. On the eve of the tenth anniversary of Kosovo’s declaration of independence, Foreign Minister Sigmar Gabriel travelled to Serbia and Kosovo. The purpose of the trip was to underline the Federal Government’s support of Kosovo and Germany’s great interest in the region. On 14 February 2018, during a joint press conference with Kosovo’s Prime Minister Ramush Haradinaj in Pristina, Foreign Minister Gabriel made the following statement:
“At the outset, I would like to congratulate […] on the 10th anniversary of Kosovo’s independence. […] Germany was one of the first countries to recognize the independence of Kosovo […].
I have also drawn attention in Belgrade to the fact that […] if Serbia wants to take the path toward the European Union, the building of the rule of law is a primary condition. But naturally so is the acceptance of Kosovo’s independence. That is a central condition to take the path toward Europe.”
Foreign Minister Gabriel also said that Germany would help to get Kosovo recognized by the five EU member States that have yet to do so. He stated:
“Naturally, enabling [Kosovo’s] membership of the European Union is the end goal. One of the conditions for that will be to persuade the five European Union countries which don’t recognize Kosovo that such a recognition makes sense because Kosovo will never again be a part of Serbia. It is necessary to accept that. Therefore, it would be best to find a solution with Serbia to end border and recognition disputes. […] Otherwise, Serbia will not be able to become a member of the European Union. At the same time, it is in the interest of Kosovo. […] In truth, it is a win-win situation.”
Foreign Minister Gabriel distinguished between “the acceptance of Kosovo’s independence” by Serbia and the “recognition” of Kosovo by the five EU member States that had not yet accorded recognition. The different wording was to accommodate the Serbian position. The Serbian Government had made it clear on numerous occasions that it could never formally “recognize” the independence of Kosovo. According to opinion polls more than 80 percent of the citizens of Serbia would not support the recognition of Kosovo even as a precondition for Serbia’s accession to the European Union. The Constitution of the Republic of Serbia expressly provided that:
“the Province of Kosovo and Metohija is an integral part of the territory of Serbia, that it has the status of a substantial autonomy within the sovereign state of Serbia and that from such status of the Province of Kosovo and Metohija follow constitutional obligations of all state bodies to uphold and protect the state interests of Serbia in Kosovo and Metohija in all internal and foreign political relations.”
Any amendment of this provision of the Constitution was to be put to a referendum. It seemed unlikely that Serbs would support recognition of Kosovo’s independence in exchange for EU membership.
Germany and others were thus seeking a formula which the Serbian Government could sell to the Serbian public in a referendum. Serbia was to “accept Kosovo’s independence without formally recognizing it”. The acceptance of Kosovo’s independence was to be formalized in “a legally binding agreement” on the normalization of relations between Belgrade and Pristina. Such an agreement was also to pave the way for Kosovo’s membership of the United Nations.
This scenario was reminiscent of the normalization of relations between the German States in the 1970s. On 21 December 1972, the Federal Republic of Germany and German Democratic Republic (GDR) concluded a Treaty on the Basis of their Relations (Basic Treaty) in which the two parties agreed to “develop normal good-neighbourly relations with each other on the basis of equal rights” without prejudice to “their differing views on questions of principle, including the national question.” The Government of the Federal Republic of Germany took the position that the treaty did not entail the formal recognition of the GDR as a separate independent State in terms of international law. Such recognition would have been contrary to the reunification mandate of the Basic Law, the provisional constitution of the Federal Republic of Germany. Under the terms of the treaty, the parties established “permanent missions”, not embassies, at their respective seat of government, and were represented by “permanent representatives”, not ambassadors. Questions of citizenship were not covered by the treaty. According to the Government of the Federal Republic of Germany even the simultaneous accession of the two German States to the United Nations could not be considered recognition of the GDR by the Federal Republic of Germany.
However, the “two Germanies model” was no more than an offer to Serbia to save face. In its decision on the Basic Treaty the Constitutional Court of the Federal Republic of Germany held in July 1973:
“The German Democratic Republic is a State within the meaning of international law and as such a subject of international law. This determination is independent of any recognition of the German Democratic Republic by the Federal Republic of Germany. The Federal Republic of Germany has never formally accorded such recognition, on the contrary, it has repeatedly expressly rejected it. If one considers the conduct of the Federal Republic of Germany towards the German Democratic Republic in the course of its detente policy, in particular the conclusion of the treaty, as amounting to factual recognition, it can only be considered a factual recognition sui generis.
The peculiarity of this treaty is that it is indeed a bilateral treaty between two States to which the rules of international law apply, and which has the force of law as any other international treaty, but [which has been concluded] between two States which are parts of a State which continues to exist but is incapable of action.”
The decision of the Constitutional Court casts doubt on whether the two Germanies model is at all applicable to the relations between Serbia and Kosovo. The two situations are not comparable. In particular, Serbia and Kosovo are not parts of a State which continues to exist but is incapable of action. Unlike the two Germanies, Kosovo and Serbia are not an example of a temporarily divided State but an example of a secession of one State from another.
In any case, the conclusion of a legally binding agreement on the normalization of relations between Belgrade and Pristina on the basis of equal rights automatically amounts to Serbian recognition of Kosovo as an independent State within the meaning of international law and as such a subject of international law. While Serbia – like the Federal Republic of Germany – may claim for constitutional reasons that this is only a “factual recognition sui generis”, this does not alter the fact that in international law such conduct amounts to full de jure recognition. The acceptance of Kosovo’s independence is thus recognition in all but name.
Category: Statehood and recognition