What Zeman’s Comments Mean in Kosovo’s Quest for International Recognition

[Todd Carney is a student at Harvard Law School. He holds a Bachelor’s degree in Political Science and Public Communications. He has also worked in digital media in New York City and Washington D.C.]

On September 10, the President of the Czech Republic, Milos Zeman, caused a commotion when he announced he wanted the Czech Republic to rescind its recognition of Kosovo as a nation. Though the international community as a whole does not consider Kosovo to be a state, most of the West has recognized Kosovo as a state. Despite the backing of major powers like the US and nearly all of the EU, Kosovo does not have enough international support to join NATO, the EU and the UN. So any backslide in support could further hurt Kosovo’s efforts to be recognized on the international stage. Moreover, the Czech Republic’s attempt to rescind its recognition of Kosovo raises crucial political and legal issues in terms of what entails statehood in the international community.

Issues with Recognition of Kosovo

Kosovo existed as a nation from the fifteenth century until the early twentieth century. Upon the formation of Yugoslavia, Serbia absorbed Kosovo, but the people in Serbia with Kosovoan lineage still considered Kosovo a nation. Over the second half of the twentieth century, tensions flared between Kosovo and Serbia as Kosovo tried to gain more autonomy. Serbian leader Slobodan Milosevic exploited this tension to eventually justify an attack against the people of Kosovo. NATO and the US were key in ending the genocide and granting Kosovo some autonomy.

In the decade to follow, the EU and US tried to broker a deal for Serbia to allow Kosovo to secede and prevent any further tension. After several stalled talks, Kosovo got fed up and declared itself an independent country. Serbia challenged this move at the International Court of Justice (ICJ). The ICJ issued an advisory opinion (as opposed to a ruling) that Kosovo did not violate international law in its declaration of independence because international law does not have a “prohibition on declarations of independence.” The ICJ said there was no reason to address whether Kosovo achieved statehood because the issue of recognition is a political one.

The ICJ’s decision made it unclear for many states whether they should recognize Kosovo. Since Kosovo’s declaration, 108 nations have recognized it. Despite this broad support, Kosovo has been unable to join the UN, the EU and NATO. Furthermore, some major players such as China and Russia have refused to recognize Kosovo. In the meantime, Kosovo and Serbia have remained in conflict. Serbia has blocked Kosovo from joining many international organizations and Kosovo has protested through economic measures against Serbia, such as tariffs.

Kosovo and the Czech Republic

The Czech Republic originally recognized Kosovo about six months after it declared independence. A poll taken at the same time showed that the citizens of the Czech Republic were divided over whether the Czech Republic should recognize Kosovo.

Zeman has long had issues with Kosovo. When Zeman first ran for President in 2012, he said Kosovo was a “terrorist dictatorship funded by narcotics” and that no democratic country should recognize Kosovo.

Although Zeman did not act on moving to rescind recognition in his first term, a groundswell of support has existed for ending recognition of Kosovo. A pro-Serbian group known as “Czech Friends of Kosovo Serbs” has consistently held annual protests to support a withdrawal of the Czech Republic’s recognition of Kosovo. Several members of parliament have supported these protests.

On Wednesday, amid a visit to Serbia, Zeman raised the possibility of rescinding recognition of Kosovo saying “I’m not a dictator … [b]ut … I will ask the question of whether it (reversal) can be done.” During the visit, Zeman also repeated his claim of Kosovo being a country run by war criminals. Though Zeman has used that attack before, this time Zeman’s comment appeared to be a reference to news that an EU Court on Yugoslavia war crimes summoned Kosovo’s Prime Minister Ramush Haradinaj for questioning.

Czech Foreign Minister Tomas Petricek followed up a few hours after Zeman’s comments and said the Czech government had no rationale to reconsider its recognition of Kosovo but that he would speak with Zeman on the issue. Nonetheless, Haradinaj cancelled a previously planned visit to the Czech Republic.

Though the comments might seem abrupt, the remarks came while Zeman was in Serbia to promote relations between Serbia and the Czech Republic, so it is possible Zeman made the statement as part of a charm offensive to Serbia. Furthermore, the Czech Republic is very supportive of Serbia joining the EU and the EU will not permit Serbia to ascend to the EU until it recognizes Kosovo, so Zeman might have been trying to give Serbia more leverage.

The Legality of Rescission

Any discussion of rescinding recognition of Kosovo as a nation requires a brief analysis of where Kosovo stands under international law regarding being a state and what could hurt Kosovo in its process of becoming a state. There are two theories of what creates a state. The declaratory theory is that when a political entity meets the legal requirements to be a state, it is a state regardless of whether other nations recognize it. Opponents of Kosovo receiving recognition as a state argue that Kosovo fails to meet Art. 1(D) of the Montevideo Convention – commonly understood to reflect customary international law – which provides that a state must have the “capacity to enter into relations with the other States.” The other theory is constitutive theory, which is that, in addition to meeting the legal requirements, other states need to recognize the state in order for it to achieve statehood. Kosovo’s detractors thus additionally maintain that since Kosovo is not widely recognized, it is not a state.

Opponents of Kosovo obtaining statehood status have several arguments for why Kosovo does not have the capacity to “enter into relations with other states.” First, Kosovo does not have the ability to engage with all major players on the international stage, since China and Russia both do not recognize Kosovo. However, while it may detract from Kosovo’s foreign policy ability to not engage with these powers, there is nothing that says a state has to be able to enter relations with all major powers. Opponents also argue that Kosovo does not have enough state support to join major international institutions such as the UN, which prevents Kosovo from engaging global rules through the UN General Assembly and various committees of the UN. Even though Kosovo’s inability to join these institutions impacts its capacity to engage internationally, it is still in several international organizations such as the World Bank and the IMF. Overall, Kosovo’s ability to engage with many nations and join international organizations shows that Kosovo clearly has the legal independence that Montevideo Art. 1(D) requires for statehood.

Beyond the issue of whether Kosovo is considered a state on the international stage, it is important to evaluate the subject of whether a state can rescind its recognition of another state in international law. Montevideo Art. 6 specifically says recognition is “irrevocable.” Moreover, many legal authorities have argued state recognition to be a political issue rather than a legal one. These authorities believe that one state recognizing another does not have a legal effect internationally, it only has a political impact such as whether trade deals still work and if citizens can travel between countries. Other legal scholars have distinguished between de facto and de jure recognition. De facto recognition is when a state does not formally recognize another state but engages with them as if they are a state. De jure recognition is when a state formally recognizes another state. These scholars argue de jure recognition cannot be revoked, but de facto recognition can be revoked by ceasing to engage with the state. The Czech Republic engaged in de jure Recognition of Kosovo, so it would seem it couldn’t revoke recognition.

Moreover, the Czech Republic still has a ways to go to rescind its recognition of Kosovo. Zeman admitted he did not have the sole authority to rescind recognition of Kosovo, so there is a good chance the rescission of recognition will never happen. It does not appear Zeman or anyone in the Czech government even knows if a rescission of recognition of a state is possible. The Prime Minister of the Czech Republic, Andrej Babis, said the cabinet would convene to discuss the possibility.

Effects of Withdrawing Recognition

There are powerful forces such as China and Russia preventing Kosovo from being universally recognized as a state. So this raises the question of whether it should matter that a small country with little relevance to Kosovo, like the Czech Republic, might no longer recognize Kosovo. In the immediate term, it does not matter. The Czech Republic is not going to convince the US or the majority of the EU to no longer recognize Kosovo. Having 107 nations recognize Kosovo as opposed to 108 nations does not doom Kosovo’s mission for statehood.

However, long-term if the Czech Republic rescinded its recognition, it could further divide Europe over Kosovo, which would hinder Europe’s ability to exert influence on Serbia to strike a deal with Kosovo. Though major European powers such as Britain, Germany and France are unlikely to ever rescind their recognition of Kosovo, several European nations that currently recognize Kosovo have elected leaders similar to Zeman, such as Austria, Poland, Hungary, and Italy. Given that the leaders of these nations have shown animosity towards Western Europe on other matters, they could decide to follow the Czech Republic’s move on Kosovo. Moreover, the Czech Republic is not beholden to Russia, while most other states that have not recognized Kosovo rely on China and Russia, so these other European states that are not beholden to Russia and China could now potentially be persuaded to follow suit. If these states followed the Czech Republic, it would give Serbia further support within Europe and potentially allow Serbia to ascend to the EU without having to recognize Kosovo, a key bargaining chip that the West has against Serbia.

Zeman’s comments have set off a firestorm, but it may have just been that an off the cuff remark meant to simply charm Serbia. Even if Zeman was serious, it seems there is a long way to go before it could have an affect on Kosovo’s fortunes in obtaining full statehood. Regardless, the incident provides an important reminder of how subjective it is to determine what makes a state in the international community.