Master’s Thesis on
The European Union and state-building in
contested states: The case of Kosovo
Insights from EULEX mission Kosovo
Copyright: Rights-free Image
Dafni Argyraki
Master’s Thesis presented for the Msc in Political Science: European
Politics and External Relations
Student ID: 12286710
Supervisor: Dr. Dimitris Bouris
Second Reader: Dr. Jana Krause
(June 2019)
Acknowledgment
This work would not have been possible without my thesis supervisor, his encouragement, constructive comments and support throughout the process; the fellow friends and researchers for the hours of constructive debates and the mutual support; and finally, my parents, for always supporting my decisions and being there for me even in difficult times.
Key Words:
Contested States; Kosovo; state-building; European Union; sovereignty.
Word Count (pure text):
Abstract
Inspired by the concept of sovereignty as defined by Krasner (2001) and the definition of contested states by Papadimitriou and Petrov (2012) with insights from Caspersen (2011, 2015), this thesis will explore EU’s engagement in contested states, using the case of Kosovo. It will be explored how Kosovo’s contested statehood influences the state-building efforts of the European Union in Kosovo.
Starting from a thorough literature review on sovereignty, contested statehood and EU state-building, the following chapters will explore EU’s presence in the Balkans and Kosovo. Finally, the analysis will focus on the EULEX mission and it will explore how contestation has affected EU state-building efforts in Kosovo.
Table of Abbreviations:
CEFTA: Central European Free Trade agreement. CFSP: Common Foreign and Security Policy Commission: European CommissionCouncil: Council of the European Union CSDP: Common Security and Defence Policy EC: European Council
EEAS: European External Action Service EEAS: European External Action Service ESS: European Security Strategy
EU: European Union
EUDEL: European Delegation
EULEX: European Union Rule of law mission in Kosovo EUO: European Union office in Kosovo
EUPT: EU Planning Team for Kosovo Europol: European Police Office
EUSR: European Union Special Representative ICR : International Civilian Representative
Interpol: The International criminal police organisation KCS: Kosovo Correctional Service
KFOR: Kosovo NATO force
MMA: monitoring, mentoring and advising NATO: North Atlantic Treaty Organization PR: Police Reform
Republic of Kosovo: RoK RoL: Rule of Law
SSR : Security sector reform UN: United Nations
UNESCO: United Nations Educational, Scientific and Cultural Organisation UNMIK: United Nations Mission in Kosovo
UNSC: United Nations Security Council US: United States of America
Table of Contents
ACKNOWLEDGMENT ... II ABSTRACT ... IV TABLE OF ABBREVIATIONS: ... V INTRODUCTION ... 1 CHAPTER 1: METHODOLOGY ... 3 1.1.RESEARCH QUESTION ... 3 1.1.1.Formulation of the Research Question ... 31.2. METHODOLOGICAL APPROACH AND DATA COLLECTION ... 4
1.2.1. Interviews ... 4
1.2.2 PRIMARY AND SECONDARY SOURCES ... 6
1.2. ACADEMIC RELEVANCE OF THE RESEARCH AND CONCEPTUAL FRAMEWORK ... 8
1.3 CASE STUDIES – SELECTION AND JUSTIFICATION ... 9
1.3.1 Choosing Kosovo ... 9 1.3.2. Choosing EULEX ... 10 1.4. LIMITATIONS OF THE RESEARCH ... 11 1.4.1. Ethical considerations ... 11 CHAPTER 2: LITERATURE REVIEW ... 13 2.1. SOVEREIGNTY ... 13 2.1.1. Definitions of Sovereignty ... 16 2.1.2. International recognition ... 20 2.2.CONTESTED STATES ... 25 2.2.1.Types of sovereignty and the types of statehood they define ... 25 2.2.2. Operationalisation of the definition ... 28
2.3. PEACEKEEPING, PEACE-BUILDING AND STATE-BUILDING ... 28
2.4. EU AND STATE-BUILDING ... 30
2.5. EU STATE BUILDING IN CONTESTED STATES ... 32
2.5.1 CSDP, SSR and RoL ... 33
2.5.2 ENP, SAA and Membership perspective ... 34
CHAPTER 3: EU IN KOSOVO ... 36
3.1.KOSOVO AS A CONTESTED STATE ... 36
3.1.1. History of Kosovo and of the conflict ... 36
3.1.2.Kosovo emerging as a Contested State ... 39
3.2.1 EU’s Policies towards the Western Balkans: strategic considerations ... 41
3.2.2 Accession negotiations with Serbia and Kosovo: a conflict resolution tool ... 42
CHAPTER 4: CASE STUDY AND EMPIRICAL FINDINGS ... 46
4.1. EU AND EULEX MISSION ... 46
4.2. HOW CONTESTATION HAS AFFECTED EULEX MISSION ... 47
4.2.1. The Police Reform (PR) and security ... 47
4.2.2. The RoL and judicial system ... 48
4.2.3. Institution-building and norm-transferring ... 50
CHAPTER 5: ANALYSIS ... 54
5.1. LINKING THE RESULTS TO THE RESEARCH QUESTION: OPPORTUNITIES AND CHALLENGES FOR THE EU. ... 54
5.1.OPPORTUNITIES AND CHALLENGES LINKED TO THE LACK OF EXTERNAL SOVEREIGNTY ... 54 5.2. OPPORTUNITIES AND CHALLENGES LINKED TO THE LACK OF INTERNAL SOVEREIGNTY ... 57 CONCLUSION ... 61 BIBLIOGRAPHY: ... 65 PRIMARY SOURCES ... 65 SECONDARY SOURCES ... 70 Academic Articles: ... 71
Introduction
In 1999, after the NATO-led intervention, the UN Security Council placed Kosovo under the administration of UNMIK (United Nations Mission in Kosovo), which was a ‘coalition’ between the United Nation (UN), the Organization for Security and Cooperation in Europe (OSCE) and the European Union (EU). The UNMIK mission in Kosovo changed the direction of its mandate multiple times until 2008. On February 17th, 2008, the Yugoslav and later Serbian province of Kosovo declared unilateral independence (Ker-Lindsay 2012: 47). This declaration came after a long period of UN administration under the UN Security Council (UNSC) Resolution 1244. The International Court of Justice (ICJ) issued an advisory opinion on Kosovo’s declaration of independence in 2010, called “accordance with International law
of the Unilateral Declaration of independence in respect of Kosovo” and found that the
declaration in independence was not itself contrary to international law (Shaw, 2014: 172). Kosovo’s independence divided the international community. The United States (US), Japan, the United Kingdom (UK), Germany together with the majority of EU Member States recognized it, while others, such as Serbia, Russia, Spain and Greece were against recognition (Ker-Lindsay 2012: 145).
While Kosovo was denied entry to International organisations, such as the UN and UNESCO, the EU has been very closely engaged with Kosovo since the declaration of independence in 2008, besides the fact that some of its member states do not recognise Kosovo as a state until today. Indeed, Greece, Romania, Slovakia, Spain and Cyprus do not recognise Kosovo as an independent state. In February 2008, the European Council acknowledged Kosovo’s declaration of independence, underlining EU’s conviction that “Kosovo is a sui generis case” (Commission, 2018). The EU has been very involved in Kosovo, since the period of UNMIK administration. Its involvement became more intense, by launching in December 2008 the European Union Rule of Law Mission in Kosovo (EULEX), the biggest civilian mission the EU ever deployed under the Common Security and Defence Policy (CSDP), which aims to assist Kosovo in “law, security, judiciary and customs” (EEAS, 2018: Kosovo and EU). The EULEX program aimed to replace the much-criticised UNMIK, “as the key ‘operational arm’ of the international community in Kosovo” ( Papadimitriou and Petrov, 2012: 755).
However, when the Ahtisaari proposals failed to pass at the UNSC, the deployment of the EULEX in Kosovo faced significant delays (Dursun-Ozkanca and Crossley-Frolick 2012:241). The EULEX’s mission was launched in 2008 under UNSC Resolution 1244, with the condition to respect status neutrality (Papadimitriou and Petrov 2012: 757; Greicevci 2011: 292). The external contestation of Kosovo by some member states, together with the failure of the Ahtisaari proposals, created a delicate ground for the deployment of the EULEX mission. The EU operated under the principle of ‘constructive ambiguity’ (Papadimitriou and Petrov, 2012:758).
In addition, the EU holds strong relations with Kosovo through The Stabilisation and Association Process (SAP), a framework which, according to the European Commission, aims at facilitating the relations between the EU and the Western Balkan (WB) countries “all the way to their eventual accession to the Union” (Commission, 2018). In 2016, Kosovo signed a Stabilization and Association Agreement (SAA) with the EU, using the “asterisk solution”, which was an important step forward. Currently, Kosovo is characterized as a “Potential Candidate” according to the European Commission (Commission), with the promise that Kosovo can start negotiating the prospect of membership when “ready” (Commission, 2018). Issues with internal sovereignty in Kosovo arise, as EU’s is helping Kosovo consolidate its democracy, by focusing in Rule of Law (RoL), judiciary and police reform, among others. This framework is also influencing EULEX' work because it is contributing to” state-building” by assisting Kosovo to develop democratic institutions. EU’s state-building efforts in Kosovo are part of this general framework and seem to be influenced by issues arising from the (lack of) internal and external sovereignty of Kosovo and (lack of) international legal recognition.
But the question remains, why has the EU has invested so much in human, financial and political capital, in a region that is so controversial and disputed?. What are the opportunities offered for the EU thanks to these engagements and what are the challenges?. How is the EU affected?. Taking into consideration the above, this thesis is going to address how Kosovo’s
contestation affects EU’s policies in Kosovo and, in particular, its state-building efforts, using the example of the EULEX mission in Kosovo.
Chapter 1: Methodology
This chapter aims to present the research design and the methodological approach. After the research question has been introduced, the data collection method will be defined together with the research design which better corresponds to answering the research. Then, the pertinence of the case selection, the academic relevance of the research and the relevant limitations will be explored.
1.1.Research Question
1.1.1.Formulation of the Research Question
The research question has been chosen to guide the research in a way that it allows to explore and EU’s engagement as a state-builder in contested states providing interesting answers on how EU’s engagement in contested Kosovo has been influenced.
Research question: “How does the issue of contestation affect the EU’s
state-building policies in Kosovo?”
In particular, the thesis will explore how the (lack) of internal and external sovereignty of Kosovo influence EU’s state-building efforts in Kosovo. It will give insight on what kind of
opportunities or limitations Kosovo’s contested statehood offers to the EU and how the
different dimensions of EU’s state-building efforts in Kosovo were affected by contestation.
Previous literature has given indications that the contestation has influenced the EU’s engagement in states with non- consolidated internal or external sovereignty. In this thesis, the aim is to give additional insight into “how” contestation has affected the EU’s efforts. The word “affected” is used in the research question because the accent in this thesis will be given on what kind of opportunities are offered to the EU from engaging in Kosovo, due to/thanks to this contested statehood status.
1.2. Methodological Approach and Data Collection
The methodological approach and data collection have been chosen based on the research question with the aim to explore the different dimensions of the issue effectively. Driven by the research question, the qualitative data collection method will be used, based on primary and secondary sources.
1.2.1. Interviews
Interviews were used to gather primary data. The kind of interviews that were used for this thesis were open-ended and semi-structured interviews. The two kinds of interviews were chosen because they allow more flexible questions and the researcher has the chance to take more comprehensive answers by the interviewee.
In particular, in the semi-structured interviews, the researcher can direct the debate discreetly and take more direct answers, while letting the interviewee express and develop the questions as he/she wishes. This is useful for the researcher because more dimensions for the research can be discovered and the interviewee feels freer to develop the questions as he/she prefers. However, there is always the barrier that the interviewee might feel a bit restrained by the questions or be influenced by the presence of the researcher and not express as freely as in the open-ended interview. In the open-ended interview, the interviewee is speaking freely, without the intervention of the researcher. However, this can pose challenges for the researcher because an important part of the data collected might not be relevant to the research.
For this thesis, the interviews that were conducted have been the following. During the field trip in Brussels 10-11 April, as part of the research project of the university, there was the chance to realise open-ended interviews/ personal interactions with EU Officials form DG HOME and DG NEAR. Their insight was particularly useful, as each of them expressed different points of view. In particular, in DG HOME there were essential insights shared relevant to security issues and also to “norm transferring” towards the Western Balkans. This interview, for the purpose of the thesis, is going to be referred to as “Personal interaction with
The second insight was from DG NEAR, where Kosovo, SAA and EUELX were discussed and put in perspective. This interview will be referred to as “Personal interaction with EU Official,
DG NEAR, Brussels, 11April 2019”.
During a personal field trip to Brussels, on 8 May 2019, there were two joint semi-structured interviews contacted with EU Officials form DG NEAR, one focused on RoL (Interview with
Commission Official 1, Brussels, 8 May 2019) and one focused on Trade in the Western Balkans
and Kosovo (Interview with Commission Official 2, Brussels, 8 May 2019).
Additionally, there were tree semi-structured interviews conducted online:
- One with an EULEX official to gain an insight on the work of EULEX (Interview with
EULEX Official, Kosovo, 6 June 2019);
- With an Official from the EU Office in Kosovo (Interview with EUO Official, Kosovo,
15 June 2019);
- An interview with an Independent research institution form Kosovo (Interview with IRI,
Kosovo, 11 June 2019).
In order to respect the anonymity of the interviewees, the specific functions or names with not be mentioned and in one case, the name of the organisation will not be mentioned at all.
The interviews with EU officials were chosen to give additional insight into how the EU is coping with the issue of contested statehood how this impacts the EU’s work with Kosovo. In addition, the insight from the Kosovo authorities is vital to evaluate the degree of involvement of the EU, its relations with the Kosovo authorities, its legitimacy as an international actor in Kosovo and have the Kosovo perspective of the EULEX mission, its importance and effect.
Moreover, during the data collection period, there have also been attempts to conduct structured interviews that were meant to represent the Kosovo point of view, in the form of broad questions send via email. However, probably due to the complexity and sensitivity of the topic, by the time the data collection for the completion of this was finished, the answers were not yet received. Therefore those interviews will not be used.
Concerning the choice of the interviewees, they were chosen based on their expertise in the field of research. There was an attempt to gather information from different actors and points of view so that a more global understanding of the situation is gained. To that end, different EU institutions and agencies were contacted by email or phone for the possibility of an interview: the European Commission (Commission), the European External Action Service (EEAS), the EULEX mission and the EU Office (EUO) and Special Representative of the EU in Kosovo (SREU). The idea was to evaluate how the different actors inside the EU see the issue and to enrich the empirical material with their different points of view. Also, there were attempts to take into consideration Kosovo’ point of view. For that purpose, the Embassy of Kosovo in the Hague was contacted and together with an independent research institution from Kosovo.
However, organising interviews proved to be difficult, probably due to the relevant sensitivity of the topic of contested statehood and some of the above interviews were not scheduled (EEAS). Some other institutional sources from the Kosovo side have not responded by this day (for the protection of the anonymity it will not be mentioned who). In addition, in many cases the interviewees asked to send them some questions in advance so as “to be prepared” and all of them asked for anonymity. Through the realisation of data collection, the realisation was made that the topic chosen was considered quite sensitive for many actors for political reasons. Therefore, some questions were modified to be more “neutral” and to help the interviewee to express more freely. Some new interviews had to be rescheduled since some institutions did not respond to the demand for an interview.
All in all, the interviews realised were successful in the sense that they represent different points of view from multiple actors who participate directly or independently or who are influenced by the events studied.
1.2.2 Primary and Secondary sources
The data collection is based on primary and secondary sources of literature. In relation to primary sources, EU institutional documents were used in order to enhance, compare and relate the data gathered from the interviews and the secondary sources. In particular, several Commission and Council documents, Decisions and Communications were studied, relevant to the Western Enlargement, the European Neighbourhood Policy (ENP), the stabilization and association partnership (SAP), the SAA with Kosovo, in particular, the ‘Kosovo* 2019 Annual
report’. A focus was also given to documents by EEAS and EULEX relevant to EULEX’s mandate and its evolution over time. Moreover, different press releases from the EEAS, EUELX and the EUO/ EUSR Kosovo were also studied, in order to gain additional insight the activities and priorities of EULEX and EUO/EUSR in Kosovo and EU’s relations with Kosovo. Moreover, some relevant UN documents were also studied, such as the UNSC resolution 1244 and documents on UNMIK’s mandate and same happened with some relevant NATO documents, from KFOR and NATO involvement in Kosovo.
Moreover, in order to be able to put into perspective EU’s views with Kosovo’s views, sources from the official online portal of the ‘Republic of Kosovo” and the Ministry of foreign affairs were carefully studied throughout the research. Particular attention was given to sections on issues relevant to diplomacy, norms harmonization, trade, economic relations with the EU and cooperation with the EU. In this way, the study was able to include some views from the Kosovo point of view, even without an interview. Of course, the information from the online portal cannot be compared to an interview, but it allowed, however, to see some interesting patterns and put everything that was said by the EU officials in perspective.
The data collection from secondary sources will be focused on an extensive academic literature review, with the aim to explore and define: the concepts that were going to be used for this research (with a focus on sovereignty, contested statehood, EU building, EU state-building in Contested states). “When we begin our research, we should always specify and define our concepts” (Sartori, 1984: 74, cited in Della Porta and Keating, 2008: 179). Moreover, the literature relevant to the EU’s presence in the Balkans, European Enlargement, Security Sector Reform and the rule of law was also explored, in order to understand EU’s involvement in the Balkans and Kosovo. “We need to know what we are going to measure and compare before we begin with the measurement and the comparison (Della Porta and Keating, 2008: 179).
Finally, the academic literature relevant to the emergence of UNMIK and EULEX, the international involvement in Kosovo and the Kosovo conflict was also explored, in order to be able to understand and define the study case. The main aim of the review of the literature, together with the primary data, was to gain a better understanding of the presence of EU in Kosovo and its policies and identify how are they influence by the lack of internal and external sovereignty and therefore, the contested statehood of Kosovo.
1.2. Academic relevance of the research and Conceptual
framework
The topic was chosen based on the academic relevance and the possibilities of its operationalisation, taking into consideration the time frame offered for the realisation of the research.
Characteristically, the issue contestation linked to state-building and how it influences policies has not been much explored in academia. On the issue of international recognition, academia has focused on how recognition is accomplished and the issue of sovereignty has mostly been linked to decolonisation (R.H Jackson 1990). More recently, Krasner (Krasner) was focused on the issue of sovereignty by defining “internal” and “external” sovereignty and inspired by this concept of sovereignty, many authors such as Ker-Lindsay or Caspersen further explored and defined different entities with different levels of contestation. Concerning state-building, academic research has mainly focused on state-building in post-conflict situations, or it was explored in relation to Europeanisation. International recognition has been explored in the field of international law and it has less been explored by field of political science or international relations literature (Visoka 2018:2).
In particular, up until recently, the common perception in International relations was that a state “either is sovereign or it does not exist at all”. Therefore, entities that fall somewhere in between a sovereign independent state and a non-independent territory did not constitute a subject of study, due to their hybrid nature that it is not clearly defined neither by international law or international relations. Sociological approaches, constructivism or area studies have provided some interesting insights on entities with lack of sovereignty and some authors, such as Visoka (2018) have more recently focused on the practices of achieving recognition.
Even though relatively new, the issue of interaction of the EU with contested entries has been studied, notably by authors such as Papadimitriou and Petrov (2012), Bouris and Kyris (2017), Visoka (2018), Visoka and Newman (2016). However, the effects of contestation on state-building have not been much discussed and explored. Nevertheless, the focus has been mainly on the mechanisms used by the EU for conflict resolution, according to the level of contestation of the entity, the tools at the disposition of EU to deal with contested states, the efficiency of
the engagement and the capacity-capabilities gap. For example, Papadimitriou and Petrov (2012), have explored the EU ‘presence–capabilities’ cap, using the example of the EULEX mission in Kosovo (Papadimitriou and Petrov 2012:751). However, their research focused more on “the ‘pre-ontological’ stage of the Europeanization and ‘external governance’ literature” and less on the opportunities offered to the EU by the Kosovo conflict and how this affected the EULEX mission, which is what this thesis is going to emphasise. Hence, in the literature, there has been little emphasis on the effects that contestation has on the EU itself and how it influences its policies and engagement.
Inspired by authors such as Papadimitriou and Petrov (2012) and their argument that “the changing and conflicting expectations of EULEX are exposing the limits of the EU when faced with contested statehood issues in its neighbourhood” (Papadimitriou and. Petrov, 2012:747), this thesis is going to explore how contestation effects EU’s engagement in contested states, by exploring the case of Kosovo. The aim will be to understand what are the limits that the EU faces and what the possibilities that are offered to the EU when it is engaging in contested States, using the example of EULEX Kosovo. Hence, this thesis aims to provide some new insights into the challenges or opportunities contestation presents to state-building.
1.3 Case Studies – Selection and Justification
1.3.1 Choosing Kosovo
Kosovo is said to meet, at least at some extent, the essential criteria of statehood according to Montevideo Convention, being population, a territory, a government and capacity to enter into relations with third states (Geldenhuys 2009). However, it is not an international recognised by an essential part of the international community. Most importantly, it has not managed to become a full UN member state, which has been seen by many authors such as Geldenhuys (2009) and Ker-Lindsay (2012) as the act that is granting statehood and allows an entity to enter the club of sovereign states. Also, the non-recognition by some of the key members of the International Community, such as Russia and China, question the status of Kosovo as an independent state and leave the issue of state sovereignty open (Shaw, 2014: 172). This contestation of the Status of Kosovo by the international community has direct consequences at the sovereignty of Kosovo and influences the EU who is highly engaged in Kosovo.
Therefore, Kosovo is considered a contested state because it still lacks international recognition and external sovereignty (westphalian and international legal sovereignty) as defined by Krasner (2001). In the meantime, the EU is assisting Kosovo to consolidate its internal sovereignty (being domestic sovereignty and interdependence sovereignty. Kosovo, as the “newest state of Europe” has been actively assisted by international actors, NATO, UN and the EU, since 1999, with the EU taking over in 2008, with EULEX mission, a mission that started for security purposes but its mandate quickly expanded to many areas (the rule of law, capacity-building, security, trainings, institution-building). With the SAA agreement in 2016, the “European Future of Kosovo” was an evident prospect and enhanced the need of Kosovo to stick to European norms and standards. In other words, the EU is present in many different dimension Kosovo and the ‘potential member status’ offers a strong motive for Kosovo to adhere to EU norms.
1.3.2. Choosing EULEX
The EULEX mission in Kosovo was chosen as a study case since EULEX mission has been the biggest civilian mission that the EU has deployed under the CSDP (Ker-Lindsay and Economides 2012:81-82). EULEX is contributing to “state-building” as it is present in different domains in Kosovo, notably in the police and the judiciary, by strengthening the institutions and building capacity in Kosovo. EULEX aim, since its conception has been building local capacity in the key sectors of policing, justice and customs (Papadimitriou and Petrov 2012: 754). Hence, EULEX is highly involved in domains that are vital for the sovereignty of the state and this makes it a very interesting case to explore, assess and evaluate how contestation is affecting EULEX mission and, by extension, the EU. In this sense, EULEX emerged as an important actor, as “the mission touched at the very heart of Kosovo’s ‘existential discourse’ ”(Idem: 755).
Regarding the time frame, the analysis is going to focus on the period after 2008, when Kosovo declared unilateral independence from Serbia and when the EULEX mission was launched. In 2008, the EULEX mission took over UNMIK with the EU becoming an increasingly strong
actor in the Western Balkans. This time frame was chosen because the thesis is interested in exploring the most recent challenges and opportunities that were offered to the EU due to contestation and lack of internal/ external sovereignty of Kosovo. However, the period before the launch of EULEX (1999-2008) is also going to be presented since it exposes crucial elements that are influencing EULEX and the EU till today.
1.4. Limitations of the Research
1.4.1. Ethical considerations
There is several ethical consideration to address. First, there is the parameter of the bias the researcher might have and which might influence the way the researcher operationalises the research and is drawing conclusions. In this case, it should be underlined that the way the research unfolded and the results were analysed, might be influenced by the way the researcher interprets the situation. The researcher might have certain presumptions towards the case and the researcher might search for the conclusions he/she expects to see. In this sense, the researcher should be aware of the framework, the social influences that might apply and the impact of socialisation.
In relation to interviews, there was a significant effort to protect the interviewees’ anonymity. While conducting the interviews, it should be noted that the results of the interview are subject to personal interpretation, in the sense that different researcher might have had a different interpretation of some of the answers. The conclusion drew by the information given by the interviewees might be influenced by the biases, the experiences or socialisation effects of the researcher and the three is the effect of personal judgement.
Concerning the choice and operationalisation of the interviews, it should be noted that throughout the research, the goal was to treat the data and consider all the different sides carefully. However, since the topic of the research is the different effects of contestation to EU’s state-building efforts, the primary focus what given to the EU, in order to better understand the challenges and opportunities for the EU in the context of contested statehood and not to evaluate the contested statehood itself in Kosovo.
In addition, it should be noted that the semi-structured interviews conducted online have important limitations and it is not the same as the personal contact, because the interview via Skype might be seen as more impersonal. However, due to financial and time constraints, making a field trip to Kosovo would not have been possible. Therefore the online interviews offered a way to include the “on ground” view of the actors involved. Also, the researcher should be aware that the interviewees were representing the intuitions they are working for and that limits what they can say.
Another difficulty faced during the research was the sensitivity of some parts of the chosen topic. Characteristically, the name of “Kosovo” is itself subject to debate. In Kosovo’s declaration of independence, the official name was “The Republic of Kosovo” while for countries non-recognising it as an independent state “Kosovo” rereferring to the Serbian province. The EU is using ‘Kosovo*’ with an asterisk leading to a footnote ‘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’. Authorities from Kosovo, refer to the ‘Republic of Kosovo’, while for Serbia ‘Kosovo’ is a still territory of Serbia’. Each name was a different
political significance, but since Kosovo is a contested state, there is no internationally accepted agreement on a ‘country name’. Therefore, even the name itself is linked to the contestation and should be carefully defined. In the thesis, taking into account the above, the designation for the entity which is going to be used will be ‘Kosovo’ to refrain from taking any position relevant to the status, as this is not the subject if this thesis.
Chapter 2: Literature Review
2.1. Sovereignty
“The sovereign state model is a cognitive script characterised by organised hypocrisy. [...] norms are decoupled from actions.”
- (Krasner 2001a:19)
For the classical theorists as Hobbes and Bodin (17th) the accent was given to domestic sovereignty as the predominant form of sovereignty (Krasner 2001a1: 20; Krasner 2001b:7). To
be a state is to be sovereign, no matter the type of regime. After the Peace of Westphalia in 1648, the principle of ‘non-intervention’ and the ‘recognition of independent states’ became central to the debate on sovereignty (Krasner 2001a:18,41) and it introduced a more “extrovert” approach to sovereignty, with the idea that states are autonomous to decide for their affairs but also that other states have to respect that autonomy. In the 20th century, different disciplines had different approaches to sovereignty, notably law, international relations, political science and international political sociology (Krasner 2001b:5-6).
The sovereign state model of the Peace of Westphalia has influenced the classical approaches in international relations such as neorealism and neoliberalism (Krasner 2001a:21). The Westphalian sovereign state is at the centre of both approaches, which is trying to maximize its security (neorealism) or it is market strength (neoliberalism). According to those approaches, the only limitation of the Westphalian state is other independent states, no other (domestic or international) actor. Concerning the theory of International relations, Caspersen (2011) identifies that a sovereign state is supreme in relation to other authorities in the same territorial jurisdiction and it is independent of all foreign authorities. Thus, in the classical view, a state is “either sovereign or not sovereign at all” (Caspersen 2011:13; Geldenhuys 2009:16).
The idea of sovereignty, according to International law, is quite different, but the state remains in the core of sovereignty (Krasner 2001:18b). According to international law, a state exists when it is reuniting the three ‘constitutive elements of a state’, which are: the existence of a determined territory, of a determined population and the existence of independent governmental
1Krasner 2001a refers to the article: Krasner (2001), Rethinking the sovereign state model, Review of International
Studies, 27,17-42; Krasner 2001b refers to the book: Kranser (2001), Problematic Sovereignty, Columbia University Press, New York.
authority which exercises its power over this population (Aledo 2014: 29). These ‘constitutive
elements’ of the state are also called the ‘Westphalian characteristics of a state’ (Krasner
2001a:18, 41).
Most recently, the Montevideo Convention on Rights and Duties of States, adopted in 1933 defined some ‘legal characteristics’ that define when an entity qualifies for a state, which are: a defined territory and populations, an effective form of governance and an ability to enter into foreign relations with other states (Ker-Lindsay 2015: 270; Geldenhuys 2009: 8,14,20,22). However, the Montevideo2 criteria have not been forcefully followed in the modern
international relations ( 2009: 12; Visoka 2018:28). As Geldenhuys (2009) puts is: “without recognition an entity is not a state and cannot have international personality” (Geldenhuys 2009:20). As it is going to be seen in the following section on contested states, the existence of the concept of contested statehood derives from the ‘constitutive theory’ in world politics (ibid).
There are two classic approaches of recognition in International law, the constitutive and the declaratory recognition (Caspersen 2011:14-15; Visoka 2018:28). For the constitutive approaches, recognition is essential for the existence of a state, because recognition attributes to the state the right to negotiate and conclude international agreements (Caspersen 2011:14-15).
On the other hand, the declaratory approach of international law argues that recognition is not a requirement for the existence of a state (Caspersen 2011:14; Visoka and Newman 2018:369; Ker-Lindsay 2015: 269; Aledo 2014: 42-43). In this case, recognition is a declarative act, by which the state is announcing its willingness to enter in diplomatic relations with another state (Aledo 2014: 43; Geldenhuys 2009: 12). The recognition signifies the willingness of other states to have relations with it (Geldenhuys 2009:20). As Ker-Lindsay puts it, “recognition is the ‘imprimatur’ of statehood; [...] recognition does not make a state but it does serve to legitimize the state as a member of the wider international community” (Ker-Lindsay 2015: 270). Geldenhuys (2009) adds that in the declaratory theory of recognition, the existence of a government with an effective rule, capable of maintaining control over its population and
2 Otherwise referred to as ‘classic criteria of statehood’ or’ constitutive elements of a state or ‘objective criteria
territory is the crucial criteria of statehood (Geldenhuys 2009: 12). Then, the legitimacy of a government is said to be proven (ibid).
However, Geldenhuys argues that in the recent years, this is no longer pertinent, since the form of authority and the treatment of the population matters increasingly and not only the existence of an effective rule (Geldenhuys 2009: 12). He also argues, that the capacity to enter into relations with other states is, according to his view, a consequence of recognition rather than a criterion of statehood, because an entity should first be admitted to the international community as a sovereign state and then have relations with it (Geldenhuys 2009: 13). Institutionalists, see sovereignty as an “artefact of legal arrangements” (Visoka 2018: 25).
These conceptions have given the accent to the legal dimension and the external dimension of sovereignty, as sovereignty is defined in relation to other states, while the internal dimension, what happens inside the state itself, was put aside.
There was an interesting development in the discipline of sociology and political science and more critical perspectives. In international political sociology, constructivism was offered a more open approach and has looked at sovereignty as a more bendable concept. It is considering state the factor that forms actors’ ideas and behaviours and for which structures cannot be taken for granted (Krasner 2001a:21; Krasner 2001b:6). In the field of sociology and area studies, Visoka (2018) examines the diplomatic practices lead to eventual recognition of a state (Visoka: 2-13) and offers an insight on how recognition is being constructed.
Krasner (2001a,b) observes that the principles of the Westphalian state model have been violated under certain circumstances. Besides considering the Westphalian sovereignty a good starting point, he recognises the need to expand the debate further, by recognises different forms of sovereignty: what he calls internal sources of contestation to independent statehood (interdependence and domestic sovereignty) and external (Westphalian and International legal sovereignty). These different forms of sovereignty can lead to different sources of contestation.
2.1.1. Definitions of Sovereignty
It can be concluded from the above, that sovereignty is amongst the most debated concepts in international relations, political science and law, therefore adopting a single definition for sovereignty is difficult. However, for this thesis, the definition which is going to be used will be the one by Krasner, since it better reflects the challenges faced by ‘contested states’ regarding sovereignty and addresses both the external and the internal dimension of sovereignty.
Krasner offers critical insights on sovereignty, as he is assuming both an internal and an external dimension of sovereignty, an idea that he describes by the concept of “problematic sovereignty” (Krasner 2001b:1-2,7-12; Papadimitriou and Petrov 2012: 748). Krasner (2001a,b) distinguishes four types of sovereignty: interdependence sovereignty, domestic sovereignty, international legal sovereignty and Vattelian (Westphalian) sovereignty (Krasner 2001a: 19, 20, 21; Krasner 2001b:2,7-12). In detail:
Interdependence sovereignty is the ability of a government to control the trans-border movement on the defined territory. It includes both a physical dimension, such as the transfer of people and goods or less tangible, such as ideas, internet communications, capital, diseases, criminality. Therefore, the power of a State to “control” its borders is not limited to what passes the physical border and the policies states pursue to ensure their Interdependence sovereignty might go beyond border control policies; Domestic sovereignty refers to the existence of an effective government (authority and structures) able to regulate behaviour throughout the territory. This refers to 1) the recognition/legitimacy of a ruling authority and 2) the actual control the authority can exercise in the territory. In short, domestic sovereignty includes the existence of an organised authority and its capability to control effectively (Krasner 2001b: 6). Westphalian (Vattelian) sovereignty refers to the autonomy of the governing authorities from foreign interference or judgement in domestic affairs; International legal sovereignty is the official legal recognition of the entity as a state by other independent states. For a state to be recognised, it was to be juridically independent (Krasner 2001b:2).
According to Krasner’s definition of sovereignty, if a state lacks one or more of the above four characteristics, then they have a case of “problematic sovereignty”. However, it should be
noted that some entities might have most of the above types of sovereignty, some might lack or present severe limitations to some or all of them (Papadimitriou and Petrov 2012: 748). For example, high Westphalian sovereignty and low interdependence sovereignty is possible (Krasner 2001:20; Papadimitriou and Petrov: 2012: 748). As Krasner puts it: “Control over
trans-border movements, domestic authority and control, international recognition, and the autonomy of domestic structures do not necessarily go together. In fact rulers have often traded one off against the other. “ (Krasner 2001b: 3).
Krasner seems to consider that the different kinds of sovereignty might be interconnected, underlining that, for example, limited interdependence sovereignty might result in some loss in domestic sovereignty, or that inability to control cross border criminal activities might result in higher internal rates of criminality (Krasner 2001a:20). He also considers that sovereignty can be expressed both through practices (e.g. border protection) and norms (e.g. International recognition) (Krasner 2001a:21). Krasner’s notable contribution is as well the fact that not all elements of sovereignty as seen in law, sociology and political science go necessarily together (Krasner 2001b:6). He also ads, that in case of contested sovereignty, the principles of autonomy and recognition based on judicial autonomy might be bridged (Krasner 2001a:23). This will give ground to foreign intervention to domestic affairs, as it can be argued that it is the case with institution-building in the concept of state-building (See Chapter 3.3: State-building).
It is also worth mentioning that Krasner sometimes ‘Vattelian’ from ‘Westphalian’ sovereignty. The Westphalian state system includes both the principle of non-intervention and international recognition of Independent States. For Krasner, the principle of non-intervention is what he refers to as “Vattelian (Westphalian) sovereignty” and the principle of International recognition of Independent states is “International legal sovereignty”.
Contrary to what it might have been expected in the Montevideo definition of a state was used, Krasner uses the term “territoriality” to describe the exercise of political authority in a territory and mentions little the term ‘population’. The term refers to the exercise of power and authority over a specific territory and defined borders, but he does not mention ‘population’. However, there are cases where borders are more or less defined, but the population in some cases is not fully controlled; therefore the population in a region does not accept the borders and therefore might not accept the authority of the government in place, it this might make the pursuit of
sovereignty different. Therefore, if a government lacks legitimacy at some parts of the territory it controls (domestic sovereignty), then its ability to control borders (interdependence sovereignty) might be undermined, as it has been the case in Kosovo, which is going to be addressed in the next chapters.
Several authors have built on or criticised the concept of sovereignty as defined by Krasner. Kolstø (2006), emphasises on the ‘Nation’ and underlines that the contemporary international system is consisting of nation-states, which are enjoying double sovereignty, internal and external. The internal sovereignty is the sovereignty of their citizens, where authorities of the state have the monopoly of tax collection in the national territory and they are responsible for providing, in return, basic services such as welfare and protection. A state enjoys external sovereignty when it is recognised in international activities as the only representative of the Nation (Kolstø 2006: 724).
Inspired by the concept of sovereignty as defined by Krasner, Kolstø (2006) distinguished two “deviations” from the nation-state sovereignty model. In the first case, the state might lack internal sovereignty: the state might be internationally recognised, but it might fail to achieve internal legitimacy, or might not be able to assure basic services or security (Kolstø 2006: 724).In the second case, the state enjoys domestic sovereignty but lacks international recognition, therefore lacks external sovereignty. The lack of international recognition is due to the fact that this state used to be part of the territory of an internationally recognised state and it was created after seceding from the old State (Kolstø 2006: 724). It seems that for Kolstø (2006), external sovereignty is synonymous to international recognition, while internal sovereignty comes from the 1) acceptance of the people in its territory and 2) the ability of the state to offer sufficient protection and services to its citizens. Therefore, internal sovereignty is linked to domestic factors such as an organised state capable of offering services and protection and institutions that are able to offer and put those policies into practice (Kolstø 2006: 724).
The study of Caspersen (2011) underlines that ‘independence’ or ‘external sovereignty’ are other ways to describe International legal sovereignty and ‘supremacy’ or ‘internal sovereignty’ were also used instead of Westphalian sovereignty. Domestic sovereignty and interdependence sovereignty are also known as ‘de facto sovereignty’, ‘positive sovereignty’ or ‘empirical sovereignty’ or “simply as ‘statehood’” (Caspersen 2011: 14). R.H.Jackson (1990) develops the concept of ‘negative sovereignty’ as opposed to “positive sovereignty
(R.H.Jackson 1990:1). Visoka (2018) defines the concept of “performing sovereignty” which is the result of “diplomatic performances” which encompass “patterned and fluid routines, repetition, practices and spontaneous activities” (Visoka 2018:9) and give meaning to statehood and justify its existence.
Geldenhuys argues that since the Montevideo Convention does not include sovereignty and independence as a formal requirement for an entity to be a state (Geldenhuys 2009:14), therefore, no universally accepted definition of sovereignty exists. As expressed by Krasner’s categorization of sovereignty, Geldenhuys is contrasting international legal sovereignty (the formal recognition of its statehood) with domestic sovereignty (the organization and efficiency of the state’s public authority) (Idem: 19). Internal sovereignty refers to ‘the state’s exclusive right or competence to fix the character of its institutions, to guarantee for their function, to legislate according to their wish and guarantee their respect (ibid). A state can only be sovereign if no national or international entity can dictate its laws and if it is not restrained by a wider constitutional arrangement (Idem: 15). Independence is linked to external sovereignty, too, as the right of the state to determine its relations with other states (ibid). Sovereign states enjoy legal equality with other states (Idem: 18). Therefore all states are regarded as equals in the international system. Besides the legal duty, as Geldenhuys underlines, foreign interference has been widespread in international relations (ibid) (See chapter 3.2.). Therefore, to refer to the beginning of the section, not surprisingly sovereignty has been portrayed as “organized hypocrisy” (Ibid).
Very different from the perception by international law, the variety of concepts used by authors to refer to entities that lack sovereignty, made authors such as Noutcheva (2018), conclude that there are gradations of sovereignty and that sovereignty is a “matter of degree” (Keohane 2002, cited in Noutcheva 2018: 7). For example, Krasner’s (2001ab) concept of ‘problematic sovereignty’ also accepts that a state might have one element of sovereignty but lack another or present any combination. Rotberg’s (2004) categorisation of strong, weak and failed states indicates too that sovereignty is a matter of degree ( . Geldenhuys acknowledges that various contested states have different degrees of deficit in recognition (Geldenhuys 2009:7).
Moreover, Bouris and Kyris suggest that different nuances of internal and external sovereignty might coexist in a case (Bouris and Kyris 2017: 760). They provide a definition that can enable to evaluate the degree of external sovereignty of an entity. According to their typology, they
define ‘high external sovereignty’ when a (contested) state is recognised by more than two-thirds of the United Nations (UN) member states. The state has ‘low external sovereignty’ when it is recognised by less than one-third of UN members. Contested states with degrees of sovereignty in-between as said to have ‘medium external sovereignty’ (Bouris and Kyris 2017: 758-760).
The various definitions of sovereignty indicate that it is not a firm and rigid concept, but one that is open to interpretation and it can be a matter of point of view, time and place.
2.1.2. International recognition
“Individual states decide whom to recognize, when to do it and for what reason”.
- ( Ker-Lindsay 2012: 7)
The Montevideo Convention of 1933 defined some legal characteristics of an entity that qualifies for a state (Ker-Lindsay 2015: 270), the end of the World war one introduced some ideological considerations, notably the principle of non-determination (Caspersen 2011: 1). Later, the EU defined several human and minority rights norms that should be respected by a territory before it is recognised by its members (Ker-Lindsay 2015: 270-271). This introduction of ideological criteria made many authors say that ‘the act of state recognition (narrowly defined) is generally held up to be a political decision [...] Individual states decide whom to recognize when to do it and for what reason’ (Ker-Lindsay 2012: 7) However, “recognition remains a sovereign political decision” (Ker-Lindsay 2015: 270-271).
Following Krasner’s definition of sovereignty, International Recognition, or International legal recognition, is one of the two external dimensions of sovereignty and this definition is going to be used for this thesis. Besides, as Papadimitriou and Petrov (2012) underline, the issue of International recognition is essential for the debate on contested states (Papadimitriou and Petrov 2012: 748).
Geldenhuys (2009) distinguishes ‘de facto’ recognition from ‘de jure’. ‘De facto’ recognition is provisional and it is when the entity meets some requirements of statehood, but it has yet to achieve ‘de jure’ recognition (Geldenhuys 2009: 21,105). When all the criteria are achieved, the entity might enjoy ‘de jure recognition’ (Geldenhuys 2009:105). According to his conception, a common characteristic of all contested states is the lack of conventional
international recognition, meaning that they lack collective recognition, as expressed through the full UN membership (Geldenhuys 2009:7). He admits that besides the debate between the declaratory and the constitutive approach in International law on recognition, the lack of formal recognition of contested states’ has a negative impact on their participation in international affairs (Geldenhuys 2009: 14).
For Ker-Lindsay ‘recognition’ refers to “the range of activities that confer to a territory a greater or lesser degree of acceptance on the world stage” (Ker-Lindsay 2012: 7). There is no requirement for a sovereign country to recognise an entity as “independent” in international law (Ker-Lindsay 2012: 12). Ker-Lindsay (2012) is looking into how entities became accepted recognised states in the international system (Ker-Lindsay (2012:6). According to Ker-Lindsay (2012), recognition can either be de facto or de jure: ‘de jure’ state recognition is a permanent state of affairs, while ‘de facto’ recognition is when a state does not enjoy full de jure recognition, e.g. due to conflict or civil instability. De facto recognition is instead ‘temporary and subject to withdrawal (Ker-Lindsay 2012:7-8).
Granting recognition, or de jure recognition as Geldenhuys puts it, can take many forms (Geldenhuys 2009:105). Geldenhuys (2009) distinguishes different kinds of recognition (Geldenhuys 2009:25): Titular recognition, which refers to the full formal acceptance (at multilateral level) of an entity’s right of or title to statehood and it also lacks full UN membership. Partial recognition is the case when a wannabe state receives de jure recognition from a minority of existing states and lacks UN membership (Kosovo and Taiwan are current examples). Paltry recognition refers to a situation when only a handful of existing countries recognises a contested state. The lowest form of paltry recognition is when a contested state gains formal recognition from a single confirmed state that is not its creator or patron state. Patron recognition is when the patron (or creator) state of the entity is the only confirmed state recognising a contested state. Peer recognition is when contested states recognise each other; zero recognition is when an entity is not formally recognised by either confirmed states or fellow contested states.
Inspired by Geldenhuys (2009), Ker-Lindsay (2012) defines ‘express3’ and ‘implied’
recognition (Ker-Lindsay 2015: 272). ‘Express’, ‘explicit’ or ‘direct’ recognition occurs when a state openly announces its decision to recognize the state in question. Direct/explicit
recognition is a clear expression of recognition, meaning that it should be publicized or announced in a press conference or a press release, be sent to the foreign ministry official. Indirect/implied recognition includes informal communications or participation in independence ceremony (Ker-Lindsay 2012: 9; Ker-Lindsay 2015: 272; Geldenhuys 2009: 105). However, Ker-Lindsay notes that ‘implied’ recognition tends to be somewhat unusual in international affairs’ (Ker-Lindsay 2012:8; Ker-Lindsay 2015: 272-273). Most cases have recognized Kosovo explicitly (Ker-Lindsay 2012: 9; Ker-Lindsay 2015: 272), with a formal decision on recognition. However, that typology might be problematic since it ignores the existence of more subtle or indirect paths to recognition and the practical aspect of international recognition (Bouris and Fernández-Molina 2018: 312).
Ker-Lindsay (2015) defines four methods which a state can use to declare its recognition of an entity: recognition by conference, recognition by treaty, bilateral recognition and collective recognition (Ker-Lindsay 2015: 272). As it is crucial for the case of Kosovo (Ker-Lindsay 2012: 10), it should be mentioned that ‘collective recognition’ (versus individual recognition) is when states decide to act together to recognise an entity, a method which has been more important since the end of the end world war and the rise of multilateral diplomacy’ (Ker-Lindsay 2012: 10; Ker-Lindsay 2015: 273-274 ). ‘Indirect collective recognition’ is when an entity is admitted to an international organisation composed of sovereign states and counts as “a strong evidence of statehood” (Ker-Lindsay 2015: 274).
Is should be noted that for Ker-Lindsay, recognition can “only refer to the practice of the states” (Ker-Lindsay 2012: 6). He considers that only other sovereign states can recognise an entity and he underlines that in legal terms, no international organisation or further non-state actors can recognise states (Ker-Lindsay 2012: 6; Ker-Lindsay 2015: 274). However, he recognises that international and regional organisations and bodies might be playing a vital role in the recognition process (Ker-Lindsay 2012: 6.). However, he acknowledges that in a less strict definition of ‘recognition’, which understands recognition not just as a steer legal act, but also assumes that some forms of acknowledgement by other states can be “short of actual legal recognition” (Ker-Lindsay 2012: 6).
Ker-Lindsay (2012) also underlines that a state can interact with an unrecognised entity without implying recognition, although attributing some level of legitimacy (Ker-Lindsay 2012:14). Recognised passports, officials interaction are such examples (ibid). However, “legitimation”
or “acknowledgement” does not imply recognition (Ker-Lindsay 2012: 14-16) since only formal statements can account for recognition (ibid).
Moreover, Ker-Lindsay (2015) conceptualised what happens in cases of engagement with un-recognised entities: ‘engagement without recognition’ is the situation when a sovereign state engages with a contested state without recognising it (Ker-Lindsay 2015: 268). Diplomatic engagement without recognition is when government officials interact with each other (Ker-Lindsay 2015:275). In the case of Kosovo, multiple states are engaging with Kosovo without recognising it, together with supranational entities, such as the EU.
Due to the ambiguities involved, international actors might be careful with their engagement with contested entities, or even avoid all interaction, because they do not want that their engagement to be interpreted as “recognition” (Bouris and Fernández -Molina 2018:312; Ker-Lindsay 2015: Kyris 205:25) Those kinds on behaviours do not recompensate for the lack of legal recognition (Kyris 2015: 25). Kyris (2015) observes that contested states might are isolated from world affairs. The problem is the lack of de jure recognition. In addition to the problem of recognition by implication might become more important when there is a parent state whose territorial integrity is might be on the forefront and might veto any engagement in the contested state (as in the case of Serbia and Russia for the case of Kosovo) (Bouris and Kyris 2017:759). Besides, the non-recognition by some of the key members of the International Community, such as Russia and China, question the status of Kosovo as an independent state and leave the issue of state sovereignty open (Shaw, 2014: 172).
However, according to Ker-Lindsay (2012) being a member of an international organisation can offer a considerable deal of legitimacy, even if statehood is not a requirement for membership (Ker-Lindsay 2012:15,131) and participating in such activities might strengthen the status of the entity (Ker-Lindsay 2012:6). The United Nations, as an international organisation, do not have the legal right to recognise an entity as a state. Nonetheless, UN membership is considered “the unique necessary symbol of international acceptance of statehood and international legitimacy” (Ker-Lindsay 2012:131-132). Geldenhuys (2009) also admits that the lack of formal recognition of contested states’ has a negative impact on their participation in international affairs (Geldenhuys 2009: 14).
In addition, for Geldenhuys (2009) the common characteristic of all contested states is the lack of conventional international recognition, meaning that they lack collective recognition, as expressed through the full UN membership (Geldenhuys 2009:7). Ker-Lindsay (2012) adds that becoming a full member of the UN is a primary objective of a contested state (Ker-Lindsay 2012:131) because its statehood will no longer be a question, without that meaning that it will be recognised by all UN member states (Ker-Lindsay 2012:132). As Geldenhuys (2009) puts it, UN membership is commonly viewed as the ‘birth certificate’ of a state (Geldenhuys 2009: 22). Admitted to regional organisations such as to the EU, the North Atlantic Treaty Organization (NATO), the Organization for Security and Cooperation in Europe (OSCE) and African Union adds to an entity’s de jure recognition (ibid).
Building on the work of Geldenhuys (2009) and Ker-Lindsay (2012), Visoka and Newman (2016) perceive recognition as not a state but rather as a process (Visoka and Newman 2018:370-371). Visoka (2018) uses the concept of diplomatic recognition, which refers to the concept of international legal recognition with a distinct accent to the full membership in the UN (Visoka 201: 3-7). For Visoka and Newman (2016) “recognition is not a single political and legal act” (Visoka and Newman 2016: 383). They argue that membership in the UN has been generally considered to be the accepted demonstration that International Recognition has been achieved (Visoka and Newman 2016: 368). However, this does not mean that if some entities have not recognised a state individually that they do not hold diplomatic relations with.
Therefore, this thesis will consider not achieving full recognition, as expressed by the full membership of the UN, as one of the criteria of a contested state. The full criteria of a contested state will be defined in the following section.
2.2.Contested States
“States that do not fit the ‘Westphalian’ box are not a new issue of international politics”
- (Kyris 2015:25).
The creation of post-communist states at the European periphery meant that the EU had to face some problematic cases of contested statehood at its close neighbourhood. Following the collapse of Yugoslavia in the 1990’, the cases of contested statehood that the EU has to face multiplied and disputes grew due to the secessionist efforts of the contested states that emerged, such as Kosovo (Bouris 2014: 32; Bouris and Fernández-Molina 2018:310; Kyris 2015: 13l; Caspersen 2015: 395).
As Kyris (2015) underlines, sovereignty is essential for the definition of a contested statehood (Kyris 2015:25) and it remains relatively stable and central to how we understand statehood (Bouris and Kyris 2017:748). As Newman and Visoka put it, the status quo is seen as a more sustainable measure as opposed to renegotiating the status with the host state or providing full diplomatic recognition” (Visoka and Newman 2016: 370). However, contested states are challenging the state versus non-state categorisation of the ‘Westphalian System’ definition (Bouris and Fernández-Molina 2018: 307). Some of the contested states might be somehow stuck in a ‘middle position’ while transiting towards sovereignty and recognition (Bouris and Molina 2018: 309), or sometimes recognition is implied (Bouris and Fernández-Molina 2018:312).
2.2.1.Types of sovereignty and the types of statehood they define
Authors have used multiple concepts to describe political entities that are not fully recognised but hope to become states (Bouris and Fernández-Molina 2018:309). According to the different grades and types of sovereignty, different authors have qualified accordingly entities that lack some form-s or degree-s of sovereignty.R.H. Jackson (1990) refers as ‘quasi-states’ to entities that lack what he calls ‘positive’ or ‘empirical’ sovereignty (R.H.Jackson 1990:1,5). Quasi-states are entities with external sovereignty, but that fails to be a sovereign state. Authors, such as Kolossov and O’Loughlin (1998) use the concept of “Pseudo-states” to refer to entities with ‘transitional’ or ‘incomplete’
statehood (Kolossov and O’Loughlin 1998:151) and low levels or international recognition (Kolossov and O’Loughlin 1998:152).
Rotberg (2004) underlines the consequences that different degrees of loss of internal sovereignty might cause for an entity (Rotberg 2004: 4-14). He distinguishes between strong, weak and failed states, according to the level of expectations state apparatus manages to fulfil (Idem). States suffering from a lack of internal sovereignty (internal violence and insufficient state apparatus) are characterised as ‘failed’ states, since the political authority in place lost effective control and as it is unable to provide for essential political goods such as security. This situation might lead to the collapse of the nation-state in place (Idem :1,2). In other words, he is referring to cases when a state is already established and recognised, but its sovereignty starts to erode due to loss of domestic legitimacy.
Krasner (2001b) criticises the concept of “failed states” as the cases of entities where governments are failing to retain control in the territory but hold their international legal sovereignty (Krasner 2001b:7; Krasner 2001 cited in Caspersen 2011:15) and rules out the definition as too narrow. For Ker-Lindsay, contested states are the ones lacking external sovereignty while the ones lacking internal are called all the other mentioned above (Kyris 2015:25). Bouris and Fernández-Molina (2018) underline that those terms fail to include in the definition of the internal/operational dimension of those entities (Bouris and Fernández-Molina 2018: 309).
For Geldenhuys, contested statehood is perceived in link to international recognition. According to Geldenhuys, polities that are denied de jure recognition (international legal recognition) but otherwise comply with the formal criteria of statehood are cases of contested statehood (Geldenhuys 2009: 21-23). A contested state enjoys internal recognition but lacks external sovereignty (Idem: 25). Geldenhuys explains that the level of deficit of formal (legal) international recognition might vary according to the entity. What all entities have in common is some degree of factual (de facto) recognition. Entities’ deficit of recognition might be due to: lack of inhabitants’ real support for the government or independence; usually borders of such entities are not internationally recognized as legal and legitimate frontiers; doubts on governments’ right to govern because “‘confirmed states’ challenge the ‘self-declared states’ exclusive right to operate separately from the parent state" (Idem: 23). Therefore, even when an entity has empirical statehood, coming from de facto recognition, the contested state still
lacks ‘juridical statehood’ coming from de jure recognition (international legal recognition) (Ibid).
Caspersen (2011)4 also addresses the lack of government efficiency of ‘failed states’
(Caspersen 2011:7). Weak state apparatus and loss of territorial control might give ground to the creation of unrecognised states (ibid). She stresses that failing or quasi-states enjoy external sovereignty without internal sovereignty, while unrecognised states lack external sovereignty. (Caspersen 2011:8). According to the degree of lack of de jure statehood, she describes various sub-types of unrecognised entities (idem:8-11), such as ‘States within-states’, ‘black-holes’ or other forms of ‘para-states’. Later in her later work, Caspersen (2015) also uses the dichotomy between de facto and de jure states, to put the accent on: the (lack of) international recognition, the mechanisms of creation of the de facto states and the need for acceptance of the de jure parent state of the new de facto state (Caspersen 2015: 395).
Caspersen adopts the concept of unrecognised states, who are entities that have not achieved international recognition (Caspersen 2011: 16). Her definition underlines the lack of non-recognition but also that institution-building has already taken place in the entity (Caspersen 2011:11). She defined ‘unrecognised states’ as entities that (idem: 6,11): have achieved de facto
independence and control at least at least two-thirds of the territory to which they lay claims, including the main city and key regions; 2) governing authorities are willing to develop state structures and reinforcing their legitimacy;3) The entity has declared formal independence or demonstrated the will to do so; 4) international recognition has not been achieved by a great part of states; 5)the entity it has existed for at least two years (Caspersen 2011:11).
Based on the definition of Geldenhuys (2009) Bouris and Kyris (2017) define contested states as entities that reunite the typical characteristics of statehood, being a population, territory, government and capacity conclude relations with third states) and who have declared independence. However, they are not recognised by a considerable part, or the whole, of the international community (Bouris and Kyris 2017: 576; Kyris 2015: 13) and therefore lack international legitimacy (Papadimitriou and Petrov 2012: 748).
