13 Mar Kosovo and International Legal Personality
[Relja Radović is an attorney at law based and qualified in Belgrade, Serbia, with an academic background in international adjudication and investment treaty arbitration.]
Another episode in the saga on Kosovo’s status in the international community took place on 27 February 2023, when the EU announced that the President of Serbia and the Prime Minister of Kosovo have agreed on the terms of another agreement on normalization of their relations (it remains unclear whether the agreement will be signed in the future or it will remain informal). This was preceded by another important development in January, when the President of Serbia, during a press conference in anticipation of the upcoming negotiations, said that Serbia cannot prevent Kosovo’s joining the Council of Europe (see in Serbian here and in English here).
Over the past 20 years, scholars and commentators dealing with the status of Kosovo have focused on the question of statehood. That question continues to prove to exceed the limits of legal discipline, and it is quite appealing that the more specific issue of Kosovo’s international legal personality, a legal issue par excellence, has been neglected by international legal scholars. It so happens that now, some 25 years since the Kosovo war and 15 years since Kosovo’s declaration of independence, the issue of statehood is where it was at the beginning: Kosovo claims to be a state, and Serbia claims that Kosovo is not a state but its province. But the issue of Kosovo’s international legal personality has evolved. The above-mentioned agreement and Kosovo’s prospective membership in the Council of Europe bring fresh substance to the latter issue.
The Evolution of Kosovo’s Ability to Undertake International Obligations
No one disputes anymore that Kosovo – or more precisely the entity that claims to constitute the Republic of Kosovo represented by a proper state government, but considered by Serbia to constitute its Autonomous Province of Kosovo and Metohija represented by provisional institutions of self-government – can undertake and has undertaken obligations under international law. However, there has been a long road to this.
The UNSC Resolution 1244 (1999) established the United Nations Interim Administration Mission in Kosovo (UNMIK), which took charge of representing the territory in international relations (and hence obligations), although without an explicit mandate in the resolution. The empowerment was codified in paragraph 8.1(m) of the Regulation No. 2001/9 entitled ‘A Constitutional Framework For Provisional Self-Government in Kosovo’, issued by the Special Representative of the UN Secretary-General, which reserves for UNMIK the power of ‘[c]oncluding agreements with states and international organizations in all matters within the scope of UNSCR 1244 (1999)’. The most prominent example is UNMIK’s signature of the Central European Free Trade Agreement (CEFTA), making Kosovo part of that long-lasting EU-sponsored free trade area in 2007. However, in a wider context, the situation was more complex, insofar as in some sectors (specifically financial) the consent of the local government was required in addition to that of UNMIK (implying a degree of international legal personality; see particularly the 2005 EJIL article by Bernhard Knoll).
In 2008 the Republic of Kosovo declared independence. From that point the situation got even messier, insofar as the Republic of Kosovo started undertaking international obligations on its own, in parallel to those undertaken by UNMIK. Again, free trade agreements offer a case in point: while Kosovo continued to be represented by UNMIK in the CEFTA joint committee, the representatives of the Republic of Kosovo started signing trade agreements on their own (for example, the free trade agreement with Turkey signed in 2013).
The further issue – and in fact central issue in this post – is that the Republic of Kosovo is only partially recognized. In relations between states that recognize Kosovo as a state and Kosovo itself, no issues appeared, because they were able to enter mutual obligations under assumption that both are capable of doing so as sovereign states. However, problems did not appear either in relations involving entities that do not recognize Kosovo as a state, although the origins or the extent of Kosovo’s international legal personality have remained unaddressed. For example, the representatives of the Republic of Kosovo signed the stabilization and association agreement with the EU, which remained status neutral (due to a number of its members not recognizing Kosovo as a state). The preamble states that ‘this Agreement is without prejudice to positions on status, and is in line with UNSCR 1244/1999 and the ICJ Opinion on the Kosovo declaration of independence’, and Kosovo is labelled with an asterisk (to which I will come shortly).
Finally, Kosovo managed to join a number of international organizations, at times acceding to multilateral treaties that also involve non-recognizing states. For example, Kosovo became member of the Permanent Court of Arbitration by acceding to the 1907 Convention. While Serbia is party to the 1899 Convention only, other non-recognizing states parties to the 1907 Convention filed declarations expressing their protest, reaffirming their position on non-recognition, and considering that the obligations under that convention did not extend to relations between them and Kosovo (see, for example, declarations of Spain and Ukraine). However, the crux of these objections was that the convention is open for accession to states only and that they do not recognize Kosovo as a state. They did not challenge Kosovo’s ability to undertake international obligations in other contexts, which are not limited to states.
International Obligations Between Kosovo and Serbia
Kosovo and Serbia have been involved in a long-lasting EU-facilitated negotiations process (so-called ‘Brussels dialogue’), and this process has resulted in a number of agreements, although of unclear legal status. A key agreement was reached in 2012 (English version available here), when the two parties agreed that the Republic of Kosovo can take part on its own account in regional organizations and meetings, however that it must be labelled ‘Kosovo*’ followed by a footnote stating: ‘This designation is without prejudice to positions on status, and is in line with UNSC 1244 and the ICJ Opinion on the Kosovo declaration of independence’. Notably, the agreement also states: ‘Where new agreements are to be initialled and/or signed, a representative of “Kosovo*” will sign under the designation in paras 2 and 3 above’. This was admission by Serbia that the Republic of Kosovo can undertake international obligations on its own, even though Serbia did not recognize it as a state, as opposed to the undertaking of international obligations via UNMIK’s agency.
Kosovo and Serbia have since then concluded a number of agreements that arguably establish proper obligations under international law. In 2013, they for the first time agreed on the ‘Principles Governing the Normalization of Relations’ (so-called ‘Brussels Agreement’; English version available here). The legal status of the Brussels Agreement remained unclear. It was not signed but initialled. Kosovo’s perspective implied legal bindingness: the Parliament of Kosovo ratified the Brussels Agreement and the Constitutional Court of Kosovo affirmed its international legal validity (see EU statement here).
In contrast, Serbia’s perspective at first seemed to reject legal bindingness: the Constitutional Court of Serbia rejected to assess the constitutionality of the Brussels Agreement under Serbian law, ruling that the Brussels Agreement is not a treaty, because under the Vienna Convention and Serbian law the concept of a ‘treaty’ is limited to agreements concluded between states, and Serbia does not recognize Kosovo as a state. Because the jurisdiction of the Constitutional Court is limited to the assessment of constitutionality of ratified treaties, it had no jurisdiction to assess the constitutionality of the Brussels Agreement (the decision is available in Serbian only).
There is an opinion among Serbian scholars that the Constitutional Court’s decision established that ‘the signing of the Brussels Agreement did not contradict the Constitution [of Serbia], because it was a political agreement and not a legal act’. That opinion is manifestly wrong. The Constitutional Court never addressed the issue of the constitutionality of the Brussels Agreement (or of the signing itself). The Court found that it had no jurisdiction to do so, because its jurisdiction is limited to the assessment of constitutionality of (inter-state) treaties and domestic general legal acts, and the Brussels Agreement is neither an (inter-state) treaty nor a domestic general legal act. The Constitutional Court did endorse an opinion that the Brussels Agreement was ‘closest to political modus vivendi’ and lacked legal force, but that remark was clearly an obiter and manifestly unsubstantiated: 1) the comment was made only after reaching the conclusion that the Brussels Agreement was outside the Court’s jurisdiction of constitutional review; 2) the Court did not analyze at any point the difference between legal and political agreements, but only commented that the ‘political modus vivendi’ qualification, made in an expert opinion, was ‘acceptable’; 3) because the Court found that the Brussels Agreement was outside its jurisdiction (for not being concluded between two states), it had no authority to qualify that agreement as legal or political in substance.
The Constitutional Court certainly did not rule out any possibility of the Brussels Agreement’s legal force: it was not required to address, it did not address, and it did not have jurisdiction to address the legal character of agreements concluded between states and non-state entities under international law. Later on, the President of Serbia started referring to the Brussels Agreement as legally binding.
The affirmation of the binding force of previous agreements comes in Article 10 paragraph 2 of the latest proposed agreement, which states: ‘Both Parties confirm their obligation to implement all past Dialogue agreements, which remain valid and binding.’
What These Developments Mean for the Theory of International Legal Personality?
International legal personality, i.e. the ability to hold rights and obligations under international law, is relative. This is so not only regarding international organizations, whose personality is tied to their functions (see the 1949 ICJ Reparation advisory opinion), but also regarding non-state actors more generally (see the 2016 Brooklyn JIL article by William Worster). The case of Kosovo offers an example of extreme relativity.
First, the case of Kosovo shows that international legal personality is not an erga omnes but inter partes category. Kosovo assumes full international legal personality as a sovereign state in relations with recognizing states. But its relations with non-recognizing states, particularly with Serbia, are different, due to the other party’s view that Kosovo is not a state and therefore can have only limited international legal personality.
Kosovo’s prospective membership in the Council of Europe brings additional complexities (regarding Kosovo’s long ambition to join see the 2022 EJIL: Talk! post by Andrew Forde). It is a well-established rule that member states within international organizations do not need to recognize each other as states. However, if membership in an organization is limited to states (as Article 4 of the Statute of the Council of Europe requires future members to be ‘European states’), admission to membership means recognition of statehood for the purposes of that organization, even in the absence of recognition by all members individually (see the 1949 AJIL article by Hans Aufricht). Therefore, the co-membership of Kosovo and Serbia and other non-recognizing states is not an issue in principle. However, the prospect of Kosovo becoming party to the European Convention on Human Rights, which comprises an inter-state adjudicative mechanism, opens the question whether these different views on Kosovo’s international legal personality could be sustained in the likely scenario of an inter-state application case between Kosovo and Serbia.
However, these complexities should not be troubling us. The second implication of the case of Kosovo is that the concept of international legal personality is rather academic, purely descriptive, and practically redundant. No one will check whether an entity possesses some degree of international legal personality before entering a legal arrangement. And no one will reject to enter a legal arrangement with an entity due to the unclear degree of international legal personality. The concept of legal personality in international law finally becomes what it has already become in domestic laws: a simple label for the quality of being a carrier of rights and obligations in practice.