How (not) to recognise Kosovo: judicial pragmatism or judicial whitewash?

Published: Posted on

In this post, Dr Alexander Orakhelashvili discusses the judgment by the Court of Justice of the European Union on legal status of Kosovo

Photo of Dr Alexander Orakhelashvili
Dr Alexander Orakhelashvili

Since the Unilateral Declaration of Independence (UDI) in Kosovo in 2008, the status of that entity has remained unsettled, and it certainly has not qualified to be a State (see also here). Nevertheless, Kosovo has obtained recognitions from many States and acceded to some forms of international cooperation. Most recently, the EU judiciary had to rule on whether the decision of the European Commission of 18 March 2019 on the participation of the National Regulatory Authority of Kosovo in the Body of European Regulators for Electronic Communications (BEREC) has amounted to Kosovo’s recognition as a State. The approach taken by the Court of First instance last year is that the Commission’s action has not recognised Kosovo as a State because it has treated it as a country. According to the Court, the EU law distinguishes between a State and a country and treats them as different entities. In its judgment of 17 January 2023, the CJEU disagrees with the above approach and opines that the EU law does not mandate drawing such distinction between States and countries, among others because the relevant EU legislation enacted in various languages which uses the two terms interchangeably. The CJEU is adamant, as is the Court of the First Instance, that the Commission’s decision does not amount to recognition of Kosovo as a State (para. 72) and that it does not prejudice the effect of Security Council resolution 1244(1999) and the ICJ’s advisory opinion on Kosovo UDI .

The way the CJEU’s judgment is drafted, the discussion of international law does not go beyond mentioning some authorities, and one is left guessing about the extent to which the Court does understand or has reflected on the concept, meaning, types or effect of recognition of States in international law. While some issues could be the subject of a legitimate disagreement, the bottom-line always is that the meaning and effect of recognition depends on what the recognising entity in fact does, not on how that entity perceives or describes it action or decision (for detailed discussion, see here, here, and here). An express recognition describing the relevant entity as a State would be the most obvious acknowledgment of a recognising entity’s position on statehood, but it could remain without the practical importance unless followed up by more concrete steps such as the establishment of diplomatic relations or other forms of cooperation with the recognised entity. Implied recognition, on the other hand, could purport achieving the effect of treating the relevant entity as though it was a State but without stating so expressly. It is a common ground in international law that recognition does not create or constitute a State and that statehood and recognition are different things. Certain forms of cooperation focusing on the exercise of public authority could, nevertheless, amount to treating the relevant entity as a State even if officially the recognising entity professes not to recognise the former as a State. The entity so recognised would not thereby become a State, and the recognising entity would be in breach of its obligation not to recognise the former entity. By doing so impliedly, the recognising entity incurs a political problem with the effect and coherence of its own foreign policy. It also incurs a legal problem by breaching its own obligation of non-recognition which may operate, depending on the type of the case, towards the mother State or towards the international community as a whole (whenever the entity in question has been created through the violation of a jus cogens rule such as aggressive war). That much has always been understood in jurisprudence, notably by English courts in cases relating to Northern Cyprus (here and here), and by the European Court of Justice itself on more than one occasion (here and here).

Nor does the CJEU seem to pay attention to the content of the ICJ’s advisory opinion on UDI in Kosovo delivered in 2010 (discussed in detail here). To begin with, the Court was faced by the difficulty to form a majority that would straightforwardly endorse any view, either that Kosovo is a State or it is not. One of the implications of this problem was that not only did the Court focus on the precise meaning of the question posed by the General Assembly (whether the UDI was in accordance with international law), but also in effect answered a different question about whether the same UDI was in violation of international law. The Court determined that it was not, because Kosovo and the authors of the declaration of independence did not act within the remit of international law to do anything to violate that law. They were not qualified to act within that legal system, and their status was not recognised under international law. Hence, their UDI could not violate international law anymore than a robbery committed on the streets of Birmingham could violate Chinese law.

Mishandled evidence is only part of the problem in the CJEU’s approach. Another part of the problem relates to the Court’s way to handle the contradictions arising in the EU’s own governance system. It will be recalled that, in the earlier ECJ cases referenced above (cases which the CJEU did not even cite, let alone discuss, in the case at hand), the ECJ’s coherent approach to non-recognition was displayed in the context when recognition in question related to the activities of a State or of an entity aspiring to be recognised as a State. By contrast, in the case at hand the Court was dealing with the action and political choice of the European Union itself. The Court was left with the plain fact that the EU has not recognised Kosovo, because there was no agreement of member-States to that effect. Now, while concluding that the Commission has dealt with Kosovo as though it was a State yet it did not recognise it as a State, the Court’s main concern seems to be to overlook the conflict of views and positions between the Commission and EU’s other organs that are composed of heads or other representatives of member-States – organs which are typically meant to decide on foreign policy issues such as recognition of some entities as States. The Commission has in effect acted through the backdoor and, in order to excuse or whitewash that problem in the EU governance, the CJEU adopts a convoluted and contestable line of reasoning that pretends that – at one time – Kosovo is and is not a State, that it can be treated as a State by those who do not recognise it as a State.

To some, the above approach will be an instance of subtlety or pragmatism. However, no court is an island, and far more complex legal and political problems display in the background against which the EU judiciary has operated in the case of Kosovo. Owing to fundamental conflict of interests on Kosovo between major players in international affairs, the Court has essentially made itself part of the political struggle to further the incoherently articulated policy of recognition that the European Union has adopted. Opportunistically framed legal reasoning has now expanded beyond politics and has entered the judicial process. To those who are not inclined to engage in a positivist legal reasoning or find that reasoning too insensitive to political realities, perhaps the awareness of current media news could provide some clues as to where such opportunist legal reasoning has led and what implications it has produced, over and above the expectations of those who were in the past confident that Kosovo’s independence would not compromise the politics of hegemonic recognition.

Leave a Reply

Your email address will not be published. Required fields are marked *