What makes a country?

If you cast your mind back to the later half of the 1990s, you might remember Britain being embroiled in a foreign war that was rather better received than any militaristic ventures this side of the year 2000. Then, the Kosovo Liberation Army (KLA) sought to create an autonomous province, free from Serbian control. Slobadan Milosevic and the Serbian military were of a different mind, and ultimately refused to leave the 'occupied' territory (Kosovo being within Serbia). Then NATO got involved (without a UNSC resolution, interestingly, but that's not what I'm here to discuss), and the Serbian military was driven from the province, finally leading to the arrest of Slobodan Milosevic on war crimes charges

Pursuant to this, The UN passed Resolution 1244, allowing Kosovo to be UN administered. Importantly, Kosovo was granted autonomy within the Federal Republic of Yugoslavia (that is to say, Serbia, as Serbia is the successor state to the FRY). The matter, of course, was far from settled - many ethnic Serbs live in Kosovo, and you will not be too surprised to hear that the Kosovans, ethnic Albanians ruthlessly persecuted by the Serbs during the 1990s, have turned on them. Tensions have remained high.

In 2006 negotiations were begun within the UNSC to try and solve the problem. It was widely anticipated that Kosovan independence would be the ultimate aim, but Russia, holding a veto and permanent seat on the Security Council, held that they would not support any resolution that was not agreeable in both Belgrade and Pristina. Unsurprisingly, the Serbs do not want Kosovo to become independent. Russia's argument was that to allow such would undermine the principle of state sovereignty.

Transitional moves, giving the Kosovans an independent legislative assembly, led to the first elections in 2007. This culminated, ultimately, in Kosovo declaring independence in February 2008, and this was recognised by 65 states, including France, the UK and the US. Kosovo is a member of the World Bank and IMF, as the 'Republic of Kosovo'.

So, is Kosovo independent? Is it a state? It certainly satisfies two of the Montevideo criteria, namely that it has a defined geography and borders, and a defined population. It has a government, and can seemingly enter into relations with other states - but is this 'legal'? There is a Serbian government department with responsibility for Kosovo, and only sovereign states can enter into public relations - surely, legally, Serbia has this power?

This very question, of whether the unilateral secession of a province from a sovereign state, becoming a new sovereign, self-ruling state, can be legal, was referred to the International Court of Justice by the UN, following Serbia's proposal that it should be (it was a narrow vote, 77 states voting to refer the question against 74 opposing). All UN states were invited to submit their positions to the court, and public hearings were held on the 1st of December 2009. Serbia argued that independence violated international law, citing resolution 1244 as its key basis (that Kosovo was part of Serbia, as successor state to the FYR). It was keen to play on international fears of secession in other states, and declared that the move would be a dangerous precedent.

Kosovo argued that Serbia had forfeit its right to the province due to its long-standing abuse of Kosovar human rights, and pointed out that Serbia had never been serious about granting Kosovans independence - indeed, it had re-drafted its constitution specifically to include Kosovo as part of its sovereign territory after resolution 1244 had been passed.

A decision on the matter is due at some point in 2010. It is unclear which way the court will go. There are arguments that such secession is not prohibited by international law, but the lack of an explicit rule makes this a rather soft argument. By contrast, Russia, who opposes the move, recognised Abkhazia and South Oseetia as independent of Georgia during the recent fighting there, citing Kosovo as a precedent (amazing, since they reject Kosovo's independence as illegal, but never mind). The UK, pleasingly in my view, made the apt statement that 'Courts do not order estranged spouses to continue in a broken marriage.', implying that it would be manifestly wrong to make Kosovo surrender its tentative freedom and re-engage with Serbia once more.

I feel that the testimony by significant states such as the US and China is most instructive - the US states that Kosovo should be viewed as a special case, but that it should not provide a precedent for other states to utilise. China, like Russia, argues that the move violates resolution 1244 and thus cannot be legal. I feel that the ICJ will ultimately decide along one of those two lines. It would be a sad and retrograde step for Kosovo to be denied its freedom, but then, if it is free, what can other nations do to stop their own breakups, should states wish to secede? Might we begin to see fresh, bolder moves for Scottish and Welsh independence? An independent Kurdistan (and more bloodshed in Iraq?). It would certainly be of great interest to the Quebecois. The title posits the question of what a country is, and the simple answer is that we cannot say with certainty, and the outcome of this case will probably not really clarify the question. The ICJ's decision, however, will be of great interest and may have a huge impact, especially if the court's Opinion is in Kosovo's favour.