A cura di Francesco Brunetti con la collaborazione della Prof.ssa Silvia Scarpa –
If Facebook were a State, it’d be the most populous one. With 1.39 billion active users¹, it would surpass both India and China, as well as the whole European Union. However, Facebook is not a country and would never be in a position to seek statehood². Notwithstanding that, in late 2013 it did something that in the recent past was pretty much considered as a special State’s prerogative: it recognized the existence of Kosovo as a State. This means that Kosovars can now \register on Facebook identifying themselves as citizens of Kosovo, insted of “Serbians”.
Even if Facebook has rapidly repudiated the political implications of such a move, denying that it holds any power to recognize the existence of new States, many commentators expressed enthusiasm for it. Former Kosovo Prime Minister Hashim Thaçi declared that «being listed by Facebook was like being recognized by a global economic superpower. It has enormous impact»³.
It’s certainly true that recognition from Facebook, or other billion-dollar Internet Corporations has some importance in the international economic world. Still, these are non-governmental actors conducting for profit-activities and they are generally not considered as subjects of international law4. Therefore, we should not over-estimate Facebook’s move, but try to understand its real legal and political value. After a short introduction on Kosovo’s recent history, the role of recognition both by States and non-governamental actors will be examined, as well as the one of the European Union as a mediator in the dispute between Kosovo and Serbia.
Factual Background and the ICJ Advisory Opinion on Kosovo’s Declaration of Independence
Kosovo’s statehood limbo begun when the former province of Serbia unilaterally decleared its independence on 17 February 20085. This move followed years of failed negotiations with Serbia in order to determine the status of Kosovo.
The historical events that led to such decision are the following: after NATO’s humanitarian intervention in Kosovo, that was aimed at stopping gross violations of human rights perpetrated by President Milošević against the Kosovar population6, the United Nations (UN) Security Council (SC) passed Resolution 1244 of 10 June 1999, authorizing the UN Secretary General to establish a transitional UN administration for Kosovo – namely the United Nations Interim Administration Mission in Kosovo (UNMIK) – aimed at guaranteeing to Kosovars a substantial autonomy. This also led to the deployment of the Kosovo Peace Implementation Force (KFOR), a NATO-led peecekeeping force. The UN SC Resolution also reaffirmed «the commitment of all Member States to respect the territorial integrity of the Federal Republic of Yugoslavia», which – after it’s dissolution – was succeded by the Republic of Serbia, while urging the facilitation of a political process «designated to determine Kosovo’s future status»7.
Following the unilateral declaration of independence, upon a request by the General Assembly of the UN, on 22 July 2010, the International Court of Justice (ICJ) delivered an advisory opinion8 on the matter. In this landmark non-binding opinion, the ICJ affirmed that Kosovo’s contested declaration of independence did not violate any applicable rule of international law, since it was neither in contrast with general international law, nor with UN SC Resolution 1244 and the Constitutional Framework «established under the auspices of UNMIK»9.
This means that the unilateral declaration of independence is considered to be legal by the judicial branch of the United Nations. The Court, however, considered the legal act that led to independence, but left aside its thorny practical effect, namely Kosovo’s independence. However, according to some commentators, independence was the only possible outcome for such a deadlocked situation. Among them, Pieter Feith, former International Civilian Representative (ICR) in Kosovo and EU Special Representative (EUSR), claimed in an interview that, since long negotiations with Serbia aimed at reaching a consensual outcome on the status of Kosovo were stalled, «it became clear that there was simply no alternative to independence»10.
But the ICJ advisory opinion, or the point of view of respectable commentators, doesn’t automatically make Kosovo a non-contested independent State. Apart from the 108 States that have so far recognized Kosovo11, the country has failed to gain UN membership, as well as recognition by many important actors of the international community, such as China, Russia, Spain, and almost all of the South American States. Moreover, Serbia still claims the region as one of its autonomous provinces.
The Growing Importance of Soft Power
While efforts made through traditional diplomacy remain stalled, digital diplomats step-in to help. And that is exactly what Kosovo’s 36 years-old Deputy Minister of Foreign Affairs Petrit Selimi is considered to be: a diplomat of the XXIst century. Thanks to his efforts, Kosovo gained recognition from Apple, Google, Facebook, as well as airports, foundations and universities worldwide. They’re all listed in DigitalKosovo.org, the website supported by Kosovo’s Ministry of Foreign Affairs (MFA) and created to help the country’s move to gain recognition by relevant actors of the digital world. According to them, «harnessing advanced technologies, and especially new media, can create much broader and wider support for Kosovo»12. But merits have to be shared with hundreds of volunteers that have been lobbying for recognition by every single relevant entity or institution, sending dozens of e-mails and requests.
However, the legal value of these “digital” recognitions is scarse. While recognition by sovereign States, who are still very much considered among the main actors of the International Community, is generally regarded as being without legal effect on international personality13, there is no doubt that important transnational corporations cannot confer neither rights nor duties to new-born entities who aspire to join the International Community.
Nevertheless, it would be unfair to discredit the importance of this kind of achievements. About them, Selimi made an interesting point: «National identities these days, they’re not so much based on memberships to these old world organizations like the UN and Council of Europe. Those still matter, no dispute about that. But if you don’t have a team in Champions League in football; if your country is not on Facebook; if you don’t have a song in the Eurovision song contest, then are you a real country?»14.
Therefore, in the XXIst century’s digital world-era, recognition on social media and by relevant non-state actors, such as transnational corporartions, might help countries in rising their profile and generating tourism and economic growth. This is what happended to Taiwan, when in 2003 it spent almost two billion dollars in the building of Taipei 101, a miracle of engineering and for some years the tallest skyscraper in the world, which soon became an unparalleled icon of the island worldwide15.
Kosovo will compete with an independent team in the 2016 Olimpics in Rio de Janeiro, which might inevitably persuade people worldwide that Kosovo is, indeed, a sovereign State. And, finally, it is also possible that all these important steps might one day put pressure on other relevant actors of the International Community to allign. Of course, the final goal for Kosovo remains joining the UN. However, because of Russia – who is a close ally of Serbia –, UN membership might remain a mirage for a very long time to come. A glimmer of hope comes anyway from the European Union.
The Role of the EU
On 19 April 2013, Serbia and Kosovo have signed landmark EU-brokered agreements – usually referred to as the Brussels Agreements – on the normalization of the relations between them16. The agreements guarantee that Serbs living in northern Kosovo will have their own police and appeals court; on the other side, none of these two actors will block the other’s aspiration in seeking EU membership. Baroness Katherine Ashton, former High Representative of the Union for Foreign Affairs and Security Policy, acted as a mediator between the two countries in this historical step.
Of course, the Brussels Agreements do not recognize Kosovo as an indipendent State. The region is still claimed by Serbia as part of its territory; however, the agreements open the door for further negotiations. It’s no secret that Serbia is a candidate to becoming the 29th Member State of the EU17, and this Agreement has been a propeller for accession negotiations. The EU has an enormous “contractual power” on countries queuing for accession. The most likely outcome is, therefore, that Serbia will eventually end up – sooner or later – recognizing Kosovo, in order to gain admission in the EU. This scenario would end, once and for all, Kosovo’s struggle for international recognition.
¹Official information gathered from the Facebook newsroom (https://newsroom.fb.com/company-info/).
²According to the 1933 Montevideo Convention on the Rights and Duties of States, which represents customary international law in this field and codifies the principle of effectiveness, States are subjects of international law when they possess: a) a permanent population; b) a defined territory; c) an independent government and d) the capacity to enter into relations with the other States. (https://www.ilsa.org/jessup/jessup15/Montevideo%20Convention.pdf). See also: CASSESE, A. (2005). “International law”. Oxford: Oxford University Press, pp. 71-77; CRAWFORD, J. (2007). “The creation of states in international law”. Oxford: Oxford University Press, pp. 97-99.
³Dan Bilefsky, Kosovo Attains Status (on Facebook) It Has Sought for Years: Nation, The New York Times, December 12 (2013), (http://www.nytimes.com/2013/12/13/world/europe/kosovo-seeking-recognition-follows-the-crowd-to-facebook-social-media.html?pagewanted=all&_r=0).
4Experts of international law, such as Antonio Cassese and Malcom Evans do not consider transnational corporations as subjects of international law. However, Jan Klabbers generally recognises companies as having a limited subjectivity “in that their investments tend to be protected under international law”. See: CASSESE, A. (2005). “International law”. Oxford: Oxford University Press, pp. 71-72; EVANS, M. D. (2014). “International law”. Oxford: Oxford University Press, p. 33; KLABBERS, J. (2013). “International Law”. Cambridge: Cambridge University Press, p. 69.
5Kosovo MPs proclaim independence, BBC news (http://news.bbc.co.uk/2/hi/europe/7249034.stm).
6CASSESE A., (2005), “International Law”, Oxford: Oxford University Press, p. 351.
7United Nations Security Council, Resolution 1244, par. 11 (available at http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/1244(1999)).
8Accordance with International Law of the Unilateral Declaration of Independence in respect of Kosovo, Advisory Opinion of the Permanent Court of International Justice, (http://www.icj-cij.org/docket/files/141/15987.pdf).
9Ibid, par. 120-122.
10Colin Murphy, Building Trust in the New Kosovo, Law Society Gazette, May 2010, p 15, (http://www.lawsociety.ie/Documents/Gazette/Gazette%202010/May2010.pdf).
11Who recognized Kosova as an independent country? The Kosovar people thank you (http://www.kosovothanksyou.com/); Ministry of Foreign Affairs, Solomon Islands recognise Kosovo`s Independence, (http://www.mfa-ks.net/?page=2,4,2415&offset=1).
12About DigitalKosovo.org (http://www.digitalkosovo.org/about/).
13However, it has to be underlined that has a strong political and legal relevance according to late Prof. Cassese. State recognition is politically important since it testifies the will of the recognizing State to initiate international relations with the new State; moreover, it’s legally relevant both because it proves that the recognizing State considers the new entity as effectively a State, and also because it prevents the recognizing State from contesting the legal personality of the new State in the future. See: CASSESE, A. (2005). “International law”. Oxford: Oxford University Press, pp. 71-77.
14Rick Pinchera, Kosovo can’t get recognition from the UN, but it can get it from Facebook, PRI, December 2014 (http://www.pri.org/stories/2014-12-11/kosovo-cant-get-recognition-un-it-can-get-it-facebook).
15Shelley Rigger, Why Taiwan Matters: Small Island, Global Powerhouse, excerpt by The China Beat, June 2011 (http://www.thechinabeat.org/?p=3504). The status of Taiwan is controversial. Claimed by the People’s Republic of China (PRC) as a part of its territory, the island is ruled by the ROC (Republic of China) government that, since the 1970s, was recognized as the sole legitimate ruler on mainland China too. However, in 1971 the UN decided to recognize the PRC as the sole State, representing both mainland China and Formosa. Taiwan tried then to request UN membership as an independent State that is not part of the PRC, but it was denied it. See, in particular: Taiwan’s UN Dilemma: to Be or Not to Be by Sigrid Winkler, Brookings, June 2012 (http://www.brookings.edu/research/opinions/2012/06/20-taiwan-un-winkler); King of the U.N., Wall Street Journal, August 2013 (http://www.wsj.com/articles/SB118696621693795613).
16Serbia and Kosovo reach EU-brokered landmark accord, BBC News, 19 April 2013
17EU enlargment: the next seven, BBC News, 2 September 2014 (http://www.bbc.com/news/world-europe-11283616).
CASSESE, A. (2005). “International law”. Oxford: Oxford University Press.
CRAWFORD, J. (2007). “The creation of states in international law”. Oxford: Oxford University Press.
EVANS, M. D. (2014). “International law”. Oxford: Oxford University Press.
KLABBERS, J. (2013). “International law”. Cambridge: Cambridge University Press.
Peter Beaumont, Kosovo’s independence is legal, UN court rules, TheGuardian.com, 22 July 2010 (http://www.theguardian.com/world/2010/jul/22/kosovo-independence-un-ruling).
Dan Bilefsky, Kosovo Attains Status (on Facebook) It Has Sought for Years: Nation, The New York Times, December 12 (2013), (http://www.nytimes.com/2013/12/13/world/europe/kosovo-seeking-recognition-follows-the-crowd-to-facebook-social-media.html?pagewanted=all&_r=0).
EU enlargment: the next seven, BBC News, 2 September 2014 (http://www.bbc.com/news/world-europe-11283616).
Kosovo MPs proclaim independence, BBC news (http://news.bbc.co.uk/2/hi/europe/7249034.stm).
Ministry of Foreign Affairs, Solomon Islands recognise Kosovo`s Independence, (http://www.mfa-ks.net/?page=2,4,2415&offset=1).
Colin Murphy, Building Trust in the New Kosovo, Law Society Gazette, May 2010, p 15 (http://www.lawsociety.ie/Documents/Gazette/Gazette%202010/May2010.pdf).
Rick Pinchera, Kosovo can’t get recognition from the UN, but it can get it from Facebook, PRI, December 2014 (http://www.pri.org/stories/2014-12-11/kosovo-cant-get-recognition-un-it-can-get-it-facebook).
Shelley Rigger, Why Taiwan Matters: Small Island, Global Powerhouse, excerpt by The China Beat, June 2011 (http://www.thechinabeat.org/?p=3504).
Serbia and Kosovo reach EU-brokered landmark accord, BBC News, 19 April 2013 (http://www.bbc.com/news/world-europe-22222624).
Who recognized Kosova as an independent country? The Kosovar people thank you (http://www.kosovothanksyou.com/).
Montevideo Convention on the Rights and Duties of States (1933).
Soft Law Standards
United Nations Security Council, Resolution 1244 (1999).
Table of Advisory Opinions
Accordance with International Law of the Unilateral Declaration of Independence in respect of Kosovo, Advisory Opinion of the Permanent Court of International Justice (2010).