Spain’s recognition of Kosovo’s passport has stimulated debate about Kosovo’s statehood and what it means for Catalonia, but continued comparisons between Kosovo and Catalonia are not legal or political. Kushtrim Istrefi argues that this is inappropriate from a viewpoint.
Kushtrim Istrefi is an assistant professor of international law at Utrecht University.
Deputy member of the Venice Commission.
In January 2024, Spain recognized the passport of the Republic of Kosovo. Almost 15 years after Kosovo declared independence, it is unclear what prompted the approval of the Kosovo passport.
One argument could be that through the EU-brokered 2023 Kosovo-Serbia Agreement, even Serbia recognized Kosovo’s national attributes, including the document.
I have argued elsewhere that this agreement amounts to tacit recognition of Kosovo by Serbia. However, in Spain, passport recognition quickly became linked to the Catalan issue.
This opinion explains why continuous comparisons between Catalonia and Kosovo are inappropriate from a legal and political point of view.
Although a detailed assessment merits a broader discussion, the legality of Kosovo’s independence is built on at least two central and continuous legal arguments, and these are based on the creation of a state outside of a colonial context. It is sufficient to note that this is essential in the case of Catalonia, but is absent in the case of Catalonia.
The first concerns serious human rights violations and is understood under the concept of remedial withdrawal. The second concerns the relevant provisions of SC Resolution 1244, which left open the possibility of a unilateral declaration of independence.
salvific withdrawal
There is an overwhelming body of literature and case law supporting the argument that the systematic oppression of certain peoples justifies the creation of new states.
This view was supported, inter alia, by the Supreme Court of Canada in the so-called Quebec question, by the British Supreme Court in the Scottish independence question, and by the Spanish Constitutional Court in the Catalonia question.
In all three cases, the court ruled that while such rights exist under international law, the people of Quebec, Scotland, and Catalonia were not suppressed by the current governments. However, the very same judgment hints that if there was oppression against such people, they might have had the right to unilaterally create a state.
The repression of Kosovo’s people and the abolition of Kosovo’s autonomy under Serbia’s Milosevic regime are still fresh in the memory, and more than 1,000 people are still missing from the war.
Some 25 years ago, Spain was one of the countries that decided it was necessary to use force against the Federal Republic of Yugoslavia (FRY) to stop the ethnic cleansing of Kosovars. Against this background, it is somewhat inappropriate for Spain to compare Kosovo and Catalonia.
Security Council Resolution 1244 paved the way for Kosovo’s independence
Beyond the remedial secession issue, in 1999 the UN Security Council (SC) elevated Kosovo’s final political status from an internal matter within the FRY and the Serbian Constitution to an international dispute with SC resolution 1244. It should be noted that Law.
When Resolution 1244 was drafted, Vladislav Jovanovic, the (then) representative of the Federal Republic of Yugoslavia to the United Nations, advocated for changes to the draft’s provisions. Federal Republic of Yugoslavia.
Nevertheless, draft SC resolution 1244 was adopted without change. Therefore, in the operational part of the resolution on the final status of Kosovo, no reference to the territorial integrity of the FRY and Serbia was identified.
Significantly, if the SC was interested in preserving the territorial integrity of the state, it communicated that position through explicit language in the operative part of the resolution.
As an example, SC Resolution 1251 on Cyprus, adopted in the same month as SC Resolution 1244, states that “Cypriot settlements shall be based on the State of Cyprus with unitary sovereignty, international personality, and unitary citizenship. Independence and territorial integrity shall be safeguarded…and such settlement shall exclude union, in whole or in part, with other States, or any form of division or secession.”
Such clear language can also be found in SC resolutions 787 on Republika Srpska, SC resolutions 1037 on Eastern Slavonia, Baranja and Western Sirmizum, and SC resolutions 1225 and 1255 on Abkhazia, to name just a few.
In contrast to the above cases, SC Resolution 1244 does not prohibit any specific outcome.
As the International Court of Justice (ICJ) argued in its 2010 advisory opinion, neither the terms nor the objectives of the resolution included a prohibition on Kosovo’s declaration of independence.
Given the Kosovar people’s clear support for independence at the time, the resolution’s reference to the 1999 Rambouillet Agreement, which recognized the will and silence of the people regarding Serbia’s territorial integrity, may not be taken uncritically. do not have.
Finally, SC Resolution 1244 did not require an agreement to reach a final solution. Although the parties had a duty to negotiate, the ICJ has repeatedly held that where there is a duty to negotiate, there is no need to continue negotiating until success occurs.
Spain has long been at the forefront of European countries challenging Kosovo’s independence and denunciation of the EU.
It took place before the ICJ and more recently before the Court of Justice of the European Union (CJEU). The judgment failed in both cases, as the ICJ and CJEU made it clear that Kosovo’s independence was not illegal and that Kosovo could be considered a country and state.
Spain’s approach to Kosovo, and its tendency to compare Kosovo more generally with Catalonia, is also politically counterintuitive.
They suggest, to name a few, that Catalans are being oppressed and that their political status is dictated by Security Council resolutions that leave the issue of independence open.
In fact, the fact that Kosovo and Catalonia are different does not mean that Spain should not do better regarding Catalans.
Spain has plenty of room to do more on transitional justice and devolution.
However, as far as statehood is concerned, just as Catalonia’s inability to create an independent state cannot undermine the strengthening of Kosovo’s statehood, Kosovo’s path to statehood enhances Catalonia’s claim to independence. I can’t.