De-recognition of States : the Case of Kosovo

Papić, Tatjana (2020) De-recognition of States : the Case of Kosovo. Cornell International Law Journal, 53 (4). pp. 683-729. ISSN 0010-8812

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Abstract

De-recognitions of statehood are by any account an exceptional phenomenon in international practice, which the doctrine of international law has never systemically discussed. By examining a rather extraordinary recent series of de-recognitions of Kosovo as a state, this article aims at filling the void. This article challenges the dominant doctrinal stance which considers that recognition is irrevocable, save in exceptional cases when statehood itself would objectively cease to exist. It argues that recognition of statehood is revocable under international law, and finds support for this position in the lack of international laws prohibiting de-recognitions, the state practice pertaining to Kosovo’s de-recognition, and the political nature of the act of recognition. At the same time, the article demonstrates that a de-recognition does not affect the existence of a de-recognized state, nor its enjoyment of rights that stem from statehood on the international plane. However, de-recognition can lead to it being denied future enjoyment of the rights within the domestic legal orders of de-recognizing states. The article also argues that the “consummation” of rights after recognition reduces the possibility of de-recognition, or, at least, offsets its adverse effects. Finally, the article suggests that viewing state recognition as revocable – primarily on the basis of the absence of any legal rule to the contrary – recognizes limits of international law in managing contested social realities, such as the statehood of Kosovo. In these cases, it seems prudent for international law to remain silent, while allowing its principles, processes and mechanisms to contribute to the solution, which ultimately must be reached within the political process.

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