Statehood, Effectiveness and the Kosovo Declaration of Independence

Abstract

Although many attempts, States failed to find a general definition of statehood. The most authoritative description of the constitutive elements of statehood is contained in Article 1 of the 1933 Montevideo Convention on the Rights and Duties of States, in which four criteria must be satisfied in judging statehood. They include the requirements that the putative state must occupy a defined territory, must operate effective government over the extent of such territory and must be in possession of a permanent population. Finally, the claimant to statehood must have the capacity to engage in international relations, taken to include the ability to fulfill treaty obligations. These criteria are also referred to as the traditional criteria for statehood. The traditional criteria of statehood are based on 'effectiveness' and such on the Latin maxim 'ex factis jus oritur' which means that certain legal consequences are attached to particular facts. However, the relevance of effectiveness is not, always, complete. State practice shows that a new criterion based on legality has to be taken into consideration in 'exceptional cases'. On 20 February 2008, Kosovo unilaterally declared itself independent. This declaration has been followed by its recognition from a number of States. Nonetheless, the formation of statehood is independent of recognition. In order to become a State, Kosovo has, firstly, to effectively fulfill the requirements of statehood stated in the Montevideo Convention and secondly, to have been created lawfully.