The Kosovo Conditions & the Case for US’s Unilateral Recognition of Somaliland
Since the turn of the millennium, the United States has extended sovereign recognition to four countries— East Timor (2002), Montenegro (2006), Kosovo (2008), and South Sudan (2011).
In three of these cases, Washington joined an international consensus to admit a sovereign member to the club of nations. Kosovo remains the exception. Fifteen years later, the fact that Kosovo is still only acknowledged by around half of the United Nations membership colors its American diplomatic recognition as uniquely maverick in retrospect.
Yet, Kosovo illustrates the rule rather than the exception of the strategic use of sovereign recognition. Despite common misconceptions that this power is constrained by the need for an international consensus or congressional endorsement, the executive branch retains the unfettered right to recognize foreign sovereignty to advance the American national interest. It is a storied but powerful tool within the president’s foreign policy arsenal. Clear-eyed, even in the absence of international or congressional consensus, the George W. Bush administration’s recognition of Kosovo establishes four guardrail criteria that guide the successful use of this power: the opportunity to tangibly advance the United States’ interests, the existence
of de facto territorial control by the aspirant state, the little chance of its peaceful reintegration, and the demonstrated feasibility of a local democratic regime. Rather than binding domestic or international legal principles, these “Kosovo conditions” clarify appropriate contexts for the deployment of this political power.
Formalizing these conditions, particularly amid a renewed era of international competition, begs the question of whether there are prudent opportunities to employ this powerful tool of American foreign policy.
Somaliland—a prosperous and democratic self-declared country on the Horn of Africa—fits comfortably within the “Kosovo conditions” for American unilateral sovereign recognition. Although nominally shackled to the chronically unstable Somalia, Somaliland has established control over its self-declared territory to foster a democratic system of government with universal suffrage.
For more than thirty years, this aspirant state has refused to rejoin its war-ravaged neighbor and has rebuffed economic overtures from Beijing in preference of a close relationship with a fellow democratic state in search of recognition, Taiwan. Tracing the parallels between the Muslim-majority, aspirant states of Somaliland and Kosovo illustrates how, to advance the United States’ interest in democracy, economic development, and the stability of global trade routes, there is a strong case for the American unilateral sovereign recognition of Somaliland.
US PRESIDENT’S POWER AS TO SOVEREIGNTY RECOGNITION
Although the executive branch enjoys exclusive discretion to recognize foreign sovereignty, this constitutional authority has not precluded efforts by Congress to shape or usurp its use. The potential recognition of Kosovo, for example, provoked dueling legislative resolutions in support and opposition, but none of these resolutions reached the floor for a vote. While it is wholly within a legislator’s right to encourage or discourage the executive branch, these efforts reflect and reinforce the belief that Congress can enable or withhold sovereign recognition.
Yet, Justice Anthony Kennedy’s majority opinion in the Supreme Court case of Zivotofsky v. Kerry in 2015 refutes this misconception.
The justice notes that the advice and consent of the Senate is needed for making treaties and appointing ambassadors and that even the construction of an embassy abroad requires the congressional appropriation of funds. However, on the matter of sovereign recognition, the nation must speak with one voice and “that voice must be the President’s.” The justice argues that because of the framers’ constitutional dedication of diplomatic powers to the president, past executives’ exercise of this right, and the Supreme Court’s earlier recognition thereof, there is little doubt that this power exclusively pertains to the president.
Article II of the Constitution vests the president with the exclusive right to receive foreign ambassadors, which, unlike the process of appointing American ambassadors, does not require the advice and consent of the Senate.
The need for, or a long-held convention of, international consensus when exercising the power of diplomatic recognition is similarly a red herring. France, the Dutch Republic, and the Kingdom of Sweden all recognized American sovereignty before the United Kingdom eventually did through the Treaty of Paris in 1783.
THE KOSOVO CONDITIONS
The George W. Bush administration’s recognition of Kosovo—in the absence of congressional or international consensus—provides an instructive blueprint for an executive’s use of sovereign recognition in the contemporary era. Unlike the former Yugoslav republics that achieved their independence in the 1990s and which were all constituent republics within the Socialist Federal Republic of Yugoslavia, Kosovo had only previously enjoyed the status of an autonomous province within the Socialist Republic of Serbia.
Following a breakdown in negotiations to end the Kosovo war of 1998–99, and amid accusations of war crimes, a North Atlantic Treaty Organization (NATO) bombing campaign precipitated the withdrawal of Slobodan Milošević’s regime from the territory. In its place, the United Nations was tasked with developing institutions of democratic self-rule and administration.
Less than ten years after the Yugoslav institutions in Kosovo had evaporated, the UN-facilitated Assembly of Kosovo adopted a declaration of independence on February 17, 2008.
Conveyed by a letter from President Bush to his Kosovar counterpart, the United States formally recognized Kosovo sovereignty the following day and established diplomatic relations. The opportunity to advance the United States’ interests, particularly by cultivating an American ally in the Balkans, was a primary objective of this recognition; President Bush wrote that “on this historic occasion, I note the deep and sincere bonds of friendship that unite our people. This friendship, cemented during Kosovo’s darkest hours of tragedy, has grown stronger in the 9 years since war in Kosovo ended. . . . As in the past, the United States will be your partner and your friend.”
The further rationales for the United States’ recognition of Kosovar sovereignty were elaborated by then secretary of state Condoleezza Rice. In a press statement, Secretary Rice noted that “the unusual combination of factors found in the Kosovo situation—including the context of Yugoslavia’s breakup, the history of ethnic cleansing and crimes against civilians in Kosovo, and the extended period of UN administration — are not found elsewhere and therefore make Kosovo a special case. Kosovo cannot be seen as a precedent for any other situation in the world today.”
BEYOND KOSOVO
These four conditions are framed in the context of Kosovo, yet, the recognition power is not exclusive to the Kosovo case. Secretary Rice’s emphasis on “the unusual combination of factors” rather than an innate quality of the Kosovo case suggests that their appearance in an alternative context may merit sovereign recognition. Similarly, Rice’s explanation of the Kosovo conditions clearly implies that they may guide the use of the recognition powers in other contexts in the future. Rice asserted that “Kosovo cannot be seen as a precedent for any other situation in the world today” (emphasis added). Indeed, the inclusion of the word “today” qualifies that the Kosovo conditions may be relevant for the use of the recognition powers in the future.
If the Kosovo case might establish guiding conditions for the use of the recognition powers, the factors elucidated by President Bush and Secretary Rice must be interpreted as conditions that are portable to other contexts. The first condition is the need to advance the United States’ national interest. President Bush noted, “As Kosovo opens a new chapter in its history as an independent state, I look forward to the deepening and strengthening of our special friendship.” Rather than perfunctory diplomatic platitudes, President Bush’s letter reflects, and seeks to build upon, the United States’ role in the NATO bombing campaign against Yugoslavia to end the ethnic cleansing of Albanians in Kosovo. The decision was
thus not a random humanitarian gesture but, rather, an effort to advance the United States’ interests by recommitting support to a friendly aspiring nation.
The second condition, as elucidated by Secretary Rice, is “the context of Yugoslavia’s break up.” Following Slovenia’s and Croatia’s declarations of independence in June 1991, Yugoslavia progressively disintegrated. In its place rose several governments that enjoyed independent administrative control over discrete territory along the lines of the classic Weberian state, in the shadow of any lingering authority claimed by the Yugoslav regime in Belgrade. In effect, the context of Yugoslavia’s breakup resulted in the creation of de facto control over territory by an aspiring state. Importantly, territorial irredentism, and disputes over the legal successor status of the erstwhile Yugoslav Socialist Republic, persisted after the state’s dissolution. While the new self-declared republics established their own state capacities, the context of Yugoslavia’s breakup was rife with protracted de jure conflict. This second condition can thus be characterized as the attainment of de facto territorial control even when de jure control may be contested.
The third condition is “the history of ethnic cleansing and crimes against civilians in Kosovo.” The overwhelming majority of war crime victims in Kosovo were Kosovar Albanians, typically at the hands of the Yugoslav state or its allied paramilitaries. Non-Albanian Kosovars, including ethnic minorities such as the Roma, were similarly subject to war crimes. The third condition for recognition is thus not the incidence of ethnic cleansing or crimes against civilians per se, but, rather, a situation where peacefully relinquishing the would-be sovereign entity’s de facto territorial control would be impossible.
The fourth condition is “the extended period of UN administration.” The principle undergirding this condition is further clarified with reference to that time Kosovo has built its own democratic institutions separate from Belgrade’s control.” The second sentence thus illustrates that it was not the United Nations’ presence that was the deciding factor but, rather, the creation of local and enduring democratic institutions.
THE CASE OF SOMALILAND
These four conditions—the US national interest, de facto territorial control, little chance of peaceful reintegration, and the demonstrated feasibility of a local democratic regime—provide a guiding framework for US unilateral diplomatic recognition that is portable to other contexts
One context where such an “unusual combination of factors” occurs today—to use Secretary Rice’s words—is the self-proclaimed Republic of Somaliland. Having declared its independence from Somalia in 1991, Somaliland has enjoyed relative peace, stability, and democracy in the shadow of the mismanagement and chaos of Mogadishu’s rule. Despite local aspirations for Somaliland’s de facto independence to enjoy de jure status, the United States nonetheless formally considers the most successful democracy on the Horn of Africa as subject to Mogadishu’s authority. Rather than a deliberate endorsement of Mogadishu’s authority over a region it does not govern, the United States’ policy toward Somaliland to date largely appears to be the byproduct of privileging the status quo or deferring to the leadership of influential regional states. Yet, approaching the question of Somaliland’s recognition anew—particularly in light of the Kosovo conditions—demonstrates an overlooked opportunity to advance the American national interest in a manner consistent
with the earlier unilateral use of the recognition powers.
The ability to recognize the sovereignty of a foreign nation is a powerful prerogative vested in the presidency. Without the need for consensus among nations or lawmakers in Congress, and despite its potentially profound economic implications, the recognition power nonetheless has been seldom used in the twenty-first century. If presidents have this foreign policy tool at their disposal, when should it be employed? The United States’ recognition of Kosovo in 2008 represents an instructive example. In the absence of congressional or international consensus, the George W. Bush administration exercised this unilateral power and, in the process, established four guiding conditions for its successful use—the opportunity to advance the United States’ interests, the existence of de facto territorial control by the aspirant state, the little chance of peaceful reintegration, and the demonstrated feasibility of a local democratic regime.
The self-declared Republic of Somaliland on the Horn of Africa meets these four “Kosovo conditions.” Recognizing Somaliland would advance the United States’ interests by supporting a fellow democratic regime, promoting stability near the Bab al-Mandab trade choke point, and facilitating economic growth—particularly as Somaliland deepens its relations with Taiwan. Enjoying de facto control over most of its claimed territory, with little chance of reintegration with its former state in the wake of war crimes and the decades-long demonstration of a democratic regime, the case of Somaliland clearly parallels that of Kosovo.
The relatively infrequent use of the recognition power should not preclude its deployment when the appropriate opportunity arises. Coupled with a diplomatic plan to protect the nation’s broader regional interests, the United States should recognize Somaliland as the independent and sovereign nation that it is.
ABOUT THE AUTHORS
OLIVER MCPHERSON-SMITH ; Oliver McPherson-Smith is a research fellow at the Hoover Institution. He holds a PhD in politics from the University of Oxford, an MA in Middle Eastern studies from Harvard University, and a BA in land economy from the University of Cambridge. Prior to pursuing graduate studies, McPherson-Smith enjoyed a career as a broadcast journalist in Africa and the Middle East.
ENDAYI E. FRAZER ; Jendayi E. Frazer is the Duignan Distinguished Visiting Fellow at the
Hoover Institution. Previously she served as the US assistant secretary of state for African affairs, US ambassador to South Africa, and special assistant to the president and senior director for African affairs at the National Security Council. Among her degrees, she holds a PhD in political science from Stanford.