Spain’s recognition of Kosovo passports has revitalised the debate over Kosovo’s statehood and what this means for Catalonia, but the continued comparison of Kosovo with Catalonia is ill-suited from the legal and political standpoint, argues Kushtrim Istrefi.

Kushtrim Istrefi is an assistant professor of International Law at Utrecht University and a
substitute member of the Venice Commission.

In January 2024, Spain recognised the passports of the Republic of Kosovo. It is unclear what triggered the recognition of Kosovo passports now, almost 15 years after Kosovo declared independence.

One argument might be that through the 2023 EU-facilitated Kosovo-Serbia Agreement, even Serbia has recognised Kosovo’s state attributes, including documents.

I have argued elsewhere that this agreement amounts to Serbia’s implicit recognition of Kosovo. Yet, in Spain, the recognition of passports was immediately tied to the question of Catalonia.

In this opinion, I explain why the continued comparison of Catalonia with Kosovo is ill-suited from a legal and political standpoint.

While a detailed assessment merits more extended discussion, it suffices to note that the legality of Kosovo’s independence is built on at least two core consecutive legal arguments, which are essential for state creation outside the colonial context and are absent in the case of Catalonia.

The first concerns gross human rights violations and is understood under the concept of remedial secession. The second concerns pertinent terms of the SC Resolution 1244, which left open the possibility of a unilateral declaration of independence.

Remedial secession

There is overwhelming literature and case law in support of the argument that systemic oppression against a specific group of people justifies the creation of a new state.

This view was supported by, among others, Canada’s Supreme Court in the so-called Quebec question, the UK Supreme Court in the Scottish independence question, and the Spanish Constitutional Court in the Catalan question.

In all three cases, it was decided that while such a right exists under international law, neither Quebec, Scottish, or Catalan people were oppressed by current governments. Yet, the very same judgments allude that if there was oppression against such people, they could have been entitled to unilaterally create a state.

The oppression of the Kosovo people and abolishment of Kosovo’s autonomy under Serbia’s Milosevic regime is still fresh, as more than a thousand people are still missing from the war.

Some 25 years ago, Spain was one of the states that found it necessary to use force against the Federal Republic of Yugoslavia (FRY) to stop the ethnic cleansing of Kosovo people. Against this background, it is somewhat ill-fitting for Spain to compare Kosovo with Catalonia.

Security Council Resolution 1244 paved the way for Kosovo’s independence

Beyond the remedial secession question, it should be noted that in 1999, the UN Security Council (SC) elevated the final political status of Kosovo from an internal matter within the FRY and the Serbian Constitution to a dispute guided by the SC Resolution 1244 and international law.

When the Resolution 1244 was drafted, the (then) Federal Republic of Yugoslavia representative to the UN, Vladislav Jovanovic, insisted that the draft terms be changed otherwise: “Paragraph 11 … opens up the possibility of the secession of Kosovo and Metohija from Serbia and the Federal Republic of Yugoslavia”.

The draft SC Resolution 1244, nevertheless, was adopted without changes. Thus, reference to the territorial integrity of FRY and Serbia was not affirmed in the operative part of the Resolution concerning Kosovo’s final status.

It is relevant to note that in cases where the SC was concerned with preserving a state’s territorial integrity, it conveyed that standing through the explicit language of the operative parts of resolutions.

By way of example, the SC Resolution 1251 on Cyprus, adopted in the same month as the SC Resolution 1244, provided that “a Cyprus settlement must be based on a State of Cyprus with a single sovereignty and international personality and a single citizenship, with its independence and territorial integrity safeguarded, … and that such a settlement must exclude union in whole or in part with any other country or any form of partition or secession”.

Such lucid wording can also be found in SC Resolution 787 concerning Republika Srpska, SC Resolution 1037 concerning Eastern Slavonija, Baranja and Western Sirmijum, and SC Resolutions 1225 and 1255 concerning Abkhazia, to name just a few.

Contrary to the cases above, SC Resolution 1244 did not prohibit any particular outcome.

As the International Court of Justice (ICJ) reasoned in its 2010 Advisory Opinion, neither the terms nor the object and purpose of the Resolution contained a prohibition against Kosovo declaring independence.

Given the apparent support at the time on the part of the Kosovo people for independence, the Resolution’s reference to the 1999 Rambuillet accords, which recognised that the people’s will, and silence as to Serbia’s territorial integrity, may not be taken uncritically.

Lastly, the SC Resolution 1244 did not require a consensus to reach a final solution. Although the parties had an obligation to negotiate, the ICJ has repeatedly held that when an obligation to negotiate exists, it does not require continuing to negotiate until success is achieved.

For a long time, Spain has been at the forefront of European states challenging Kosovo’s independence and reproachment with the EU.

It did so before the ICJ and, more recently, before the Court of Justice of the EU (CJEU). It failed in both instances as the ICJ and CJEU clarified that there is no illegality attached to Kosovo’s independence and that Kosovo can be considered a country and a state.

Spain’s approach to Kosovo, and more generally, the tendencies to compare Kosovo with Catalonia, are also politically counterintuitive.

They suggest that Catalan people are oppressed and that their political status is guided by a Security Council Resolution that leaves open the question of independence, to name a few.

Indeed, the fact that Kosovo and Catalonia are different does not imply that Spain should not do more regarding the Catalan people.

There is sufficient room for Spain to do more regarding transitional justice and devolution of powers.

However, as far as statehood is concerned, Kosovo’s path to statehood cannot boost Catalonia’s claim to independence, just like Catalonia’s inability to create an independent state cannot undermine Kosovo’s consolidation of statehood.