CRITERIA FOR STATEHOOD

An oddity of international law is that one of the great, unresolved questions remains: when does a non-state entity receive the status of “state”?^{Footnote 7} Resolving this question is not merely academic. Establishing when an entity becomes a state determines whether and when the panoply of rights and obligations that inhere in states applies to the entity, although some international obligations also apply to non-state entities.^{Footnote 8} Additionally, membership in some international organizations, such as the United Nations (UN), is open only to states.^{Footnote 9}

The precise criteria that entities need to meet in order to ascend to statehood have been long debated amongst international legal scholars. Perhaps the best-known criteria, and the closest that these criteria have come to codification, are found in the Convention on the Rights and Duties of States (Montevideo Convention).^{Footnote 10} The Montevideo Convention sets out four criteria that an entity must fulfil in order to become a state: possession of a permanent population; occupation of a clearly defined territory; effective government exercising control over that territory; and the capacity to enter into international relations with other states. Scholars have critiqued these criteria on two main grounds: first, that the criteria themselves are intrinsically problematic and, second, that the Montevideo criteria fall short in setting out all of the relevant criteria that are required for statehood.

While each Montevideo criterion has had to endure critical analysis, the criterion that has received the most attention has been the “capacity to enter into relations with the other states.”^{Footnote 11} In particular, the criterion has been criticized as being a “consequence of statehood, not a criterion for it.”^{Footnote 12} The critique goes: although non-state entities can enter into relations with states, these relations are generally on a less formalized basis than inter-state relations. Thus, the mere capacity, which would cover non-state entities, cannot be a criterion for statehood.^{Footnote 13} In addressing this critique, James Crawford has suggested reframing the capacity to enter relations as “independence.”^{Footnote 14} Yet he also raises independence up “as the central criterion for statehood.”^{Footnote 15} According to Crawford, independence must be both formal (for example, granted by the constitution of a state or through a treaty) and actual.^{Footnote 16} Independence need not be absolute. Instead, “as a matter of general principle, any territorial entity formally separate and possessing a certain degree of actual power is capable of being and, other things being equal, should be regarded as a State for general international purposes.”^{Footnote 17} Yet, independence is problematic when considering subnational entities. If a subnational entity has been granted significant power by the national entity, can the withholding of formal independence quash any hopes of statehood?

Other positive criteria have been proposed by practitioners and scholars. The European Community (now the European Union (EU)) adopted a set of criteria focusing on respect for the rule of law and the rights of minorities that the constituent territories of the former Yugoslavia and the former Soviet Union had to meet if they were to be granted recognition as states.^{Footnote 18} In another instance related to the former Yugoslavia, International Court of Justice Judge Antônio Augusto Cançado Trindade suggested that aspiring states must guarantee human empowerment and freedom.^{Footnote 19} Scholars have suggested other positive criteria not listed above: that the state is likely to be a permanent entity,^{Footnote 20} that there is a popular process supporting the claim to statehood, and that an organic bond within the entity claiming statehood exists.^{Footnote 21}

Additionally, some individuals hold that a new state cannot be established through violations of jus cogens norms. Three jus cogens norms are typically mentioned as the most prevalent in this regard. First, a state cannot be formed through the (illegal) use of force. Second, a state cannot be formed through a violation of the right to self-determination. Third, a state cannot be formed to pursue racist policies such as an apartheid regime.^{Footnote 22} If a putative state is established through violations of jus cogens norms, it is considered illegal and therefore not entitled to recognition by other states.^{Footnote 23} However, determining illegalities is not always straightforward, and recognition is still granted to entities that have emerged through illegal means.^{Footnote 24} As observed by the Supreme Court of Canada in Reference re Secession of Quebec, international law has the capacity to “adapt to recognize a political and/or factual reality, regardless of the legality of the steps leading to its creation.”^{Footnote 25}

Today, the creation of a new state inevitably results in the partition of an existing state.^{Footnote 26} During decolonization, the establishment of states could be justified by the Montevideo criteria, particularly with respect to the capacity to self-govern and to engage in international relations. Today, any aspiring state must overcome the tension between the right to territorial integrity (uti possidetis juris) of an existing state by asserting its right to self-determination.^{Footnote 27} If the parent state acquiesces in the establishment of a new state, then a new state comes into being. If the parent state does not acquiesce, then something more is needed — namely, recognition by other states.^{Footnote 28}

Given that the international political and legal realm lacks a central arbiter, theoretically only states remain competent to adjudge whether another actor is a state or not. Recognition of a non-state entity by existing states plays a role in resolving the tension between territorial integrity and self-determination.^{Footnote 29} However, the precise role that recognition plays remains debated. For years, the declaratory and constitutive theories of recognition competed against each other. The declaratory theory of recognition posits that an aspiring state becomes a state regardless of whether or not other states recognize the entity as a state. All that an aspiring state needs to do is to fulfil the criteria mentioned above, and recognition by other states is a mere acknowledgement of the established fact.^{Footnote 30} The constitutive theory posits that recognition by other states is a requirement of becoming a state.^{Footnote 31} Support for the theories has been divided.^{Footnote 32}

Both of these theories have problems with internal consistency. The declaratory theory requires that there must be some criteria that must be met to establish statehood that can then be acknowledged. As discussed above, these criteria are not agreed upon. Even if the criteria were agreed upon, criteria such as the “capacity to conduct foreign relations” or the “organic bond” amongst the population have subjective dimensions. Recognition is therefore more discretionary than the declaratory theory would hold. Additionally, states are not required to recognize other states as recognition is ultimately a political act.^{Footnote 33} The constitutive theory, meanwhile, cannot place primacy on recognition, as doing so could lead to states ignoring facts on the ground in granting recognition. For example, requirements that a state not be created through illegal means would be meaningless in a world of absolute discretion over recognition.^{Footnote 34} Similarly, a state could choose to grant or withhold recognition based simply on political calculations and to create inconsistencies on who is a state and who is not.^{Footnote 35} The Supreme Court of Canada, in its discussion of recognition, concluded that, “[a]lthough recognition by other states is not, at least as a matter of theory, necessary to achieve statehood, the viability of a would-be state in the international community depends, as a practical matter, upon recognition by other states.”^{Footnote 36} In the words of Crawford, “[n]either theory of recognition satisfactorily explains modern practice.”^{Footnote 37}

Given the unsettled status of the statehood debate, it is unlikely that a “bright line” can be established that demarcates a state from a non-state entity. Jure Vidmar connects the problems of establishing statehood to the central “conceptual problem of identifying an ‘objective fact’ in the decentralised system of international law,”^{Footnote 38} and he notes that, when recognition is not universal, “[l]egal status can be ambiguous.”^{Footnote 39} Contemporary international legal scholars have begun to move away from the focus on criteria and the “great debate” between the two theories of recognition. Moreover, the practice of recognition is now viewed as somewhere in the middle of the two theories.^{Footnote 40}

Amidst this ambiguity, Janis Grzybowski has proposed a framework that reframes the conceptualization of statehood as contextual in nature. Grzybowski advances three components: effectiveness of the state, recognition, and (il)legality of state creation.^{Footnote 41} She notes that any of these components on their own cannot be determinative of statehood: an effective state may not be recognized, or a recognized state may have been created illegally. Instead, these components are part of a “discursive web” that works according to “the combined strength of the strings and knots of which it is composed, while anything the web carries might slip again through the holes.”^{Footnote 42} To examine this framework further, I turn now to international relations theory.

CONSTRUCTING STATEHOOD

International law and international relations scholars have worked to bridge the gap between their disciplines. One particular approach, used here, has been the consideration of the constructivist view of international relations in the application of international law. The basic tenets of constructivism are that, in the anarchic international arena, the beliefs and interests of actors are not pre-determined but, rather, are constructed through interactions with other actors.^{Footnote 43} The interests and actions of international actors are shaped by norms, identities, knowledge, and culture.^{Footnote 44} The interactions may take place between states, but they may also take place between states and other actors, such as supranational entities (for instance, the UN or the EU) or non-state entities such as non-governmental organizations (NGOs). Sporting organizations are highly influential NGOs that are able to influence the behaviours of states as states seek to participate in international sport.^{Footnote 45}

Constructivism has allowed international law to move away from a positive conceptualization to one of a regime that is “constructed through rhetorical activity producing increasingly influential mutual expectations or shared understandings of actors.”^{Footnote 46} International legal scholars who use a constructivist framework often focus on the issue of compliance with international law.^{Footnote 47} In this article, constructivism allows for a focus on the changing of the identity of the actors themselves — from non-state to state. As mentioned above, establishing a state requires recognition of legal status. Vidmar makes the distinction between natural facts and legal status,^{Footnote 48} while John Searle states that there are brute facts and institutional facts.^{Footnote 49} Natural facts, or brute facts, exist outside and independently of human institutions. The fact that the earth rotates and revolves around the sun is a brute fact. Legal, or institutional facts, require human institutions and, consequentially, shared understandings of those institutions.

Needing to establish the institutional fact, the contemporary discussion on statehood is as much about meeting particular criteria as it is about engaging in an ongoing construction of the identity of the state. Eva Erman suggests that entities tell a story about themselves to convince themselves, as well as the international community, about their claims to statehood.^{Footnote 50} Similarly, Grzybowski, when examining the criteria for statehood, suggests that the effectiveness of the “discursive web” of claims to statehood is established in “the routine reiteration of blunt presuppositions of the state character of these latter entities in everyday legal, diplomatic and other practices.”^{Footnote 51} Thus, a state requires international acceptance of institutional facts before it can exercise its specific legal rights.^{Footnote 52} To borrow the words from Hans Kelsen’s 1941 article on state recognition, “[i]t is cognition rather than re-cognition.”^{Footnote 53}

One particular way states tell their story, and obtain acceptance, is through sport. Sport has often been considered “low politics” in international relations.^{Footnote 54} The British government’s view in 1960 sums up this position: the idea that sport could be used as a “major instrument of international diplomacy” or to enhance a state’s power “seems to us to reveal a serious lack of sense of proportion.”^{Footnote 55} Today, sport matters.^{Footnote 56} On a micro level, billions of people globally engage in organized sport, whether through participation or through consumption of sport as entertainment. The audience of the Olympic Games or FIFA World Cup alone is likely in the billions of viewers.^{Footnote 57} On a macro level, winning medals may enhance a state’s soft power,^{Footnote 58} as may hosting sporting events.^{Footnote 59} Meanwhile, sport has been used as a proxy for Cold War competition,^{Footnote 60} and participation in the FIFA World Cup may increase the chance of inter-state conflict by fanning the flames of nationalism.^{Footnote 61}

Sport naturally involves state officials, such as ministers of sport. Today, even heads of state are involved, such as giving speeches to the IOC to support bids to host the Olympic Games.^{Footnote 62} Multinational corporations are involved as sponsors of sporting events. The IOC also works alongside UN organizations and other international bodies. All of these non-sporting actors interact within what Jean-Loup Chappelet considers the broader “Olympic system,” along with the “Olympic movement,” which oversees sport.^{Footnote 63} The next section will discuss the role that sport plays in state building in more detail.

THE GLOBAL SPORTING REGIME

International sport requires that participants adhere to rules that are uniform and that competitions occur with regularity. To that end, international sport is governed by a transnational legal regime,^{Footnote 64} known as the “Olympic movement.”^{Footnote 65} The Olympic movement is led by the IOC,^{Footnote 66} with international federations (IFs) responsible for their particular sports — such as FIFA for football. These IFs are responsible for governing sport from the grassroots to the professional level and are central actors in multi-sport events such as the Olympic Games as well as in their own single-sport competitions. Below the IFs are national federations that regulate sport at a national level. Although national federations are required to be politically independent from state governments,^{Footnote 67} it is difficult to separate the two in practice. On a surface level, sporting federations often use their state’s flag in their logos, and the state’s anthem plays at events. On a deeper level, in many states, the state simply exerts significant financial and political control over the activities of the sporting federation.^{Footnote 68}

In addition to the sport-specific IFs, the Olympic movement has its own regulatory bodies. The main pan-sport regulatory bodies are the World Anti-Doping Agency, which is responsible for establishing and monitoring anti-doping standards, and the CAS, an adjudicatory body responsible for handling sport-related disputes. The CAS is a private arbitral body, established by the IOC in 1984 to oversee the Olympic movement. Since the CAS is an arbitral body, matters are submitted to the CAS through agreement,^{Footnote 69} whether through a specific arbitral agreement or pursuant to the rules of a sporting body. For instance, the Kosovo case was initiated pursuant to the UEFA Statutes’ arbitration clause.^{Footnote 70} The CAS is required to have a minimum of 150 arbitrators^{Footnote 71} and, as of 2018, lists well over 300 arbitrators from around the world.^{Footnote 72} Arbitrators for the CAS must have “appropriate legal training, recognized competence with regard to sports law and/or international arbitration, a good knowledge of sport in general and a good command of at least one CAS working language.”^{Footnote 73}

The Olympic movement is a peculiar regime in international law. Like international organizations, sporting bodies engage in the global regulation of an area of human activity — in this case, sport. Unlike international organizations, international sporting bodies are private organizations, often established as private associations under Swiss domestic law,^{Footnote 74} and do not have states members. The IOC membership consists of up to 115 individuals who are co-opted by the IOC,^{Footnote 75} while IFs generally have national federations as constituent members.^{Footnote 76} This manner of organization is partially historical — the IOC itself was created in 1894, long before modern international organizations,^{Footnote 77} and is partially purposeful — by having individual members as opposed to states representatives, sport is theoretically insulated from politics.

The private nature of international sporting bodies has fostered concerns that sporting bodies are unaccountable.^{Footnote 78} The lack of states members means that there is little to no government oversight over sporting activities at the highest levels. There are some exceptions, such as the World Anti-Doping Agency, which is jointly governed by states and sporting bodies.^{Footnote 79} Otherwise, the Olympic movement remains a largely closed system. For instance, the Olympic movement is largely immune from domestic judicial bodies and is generally only judicially accountable before the CAS.^{Footnote 80} The Olympic movement largely lacks non-judicial accountability mechanisms as well.^{Footnote 81} This accountability gap is seen as a factor in the current crisis of good governance in international sport, where corruption, human rights violations, and poor legacies from sports mega-events are far too regular occurrences when sport is involved.

Despite sport’s attempt to wall itself off from politics since its early days,^{Footnote 82} and protestations that sports and politics should not mix, the fact of the matter is that they do mix and have since the ancient Olympic Games.^{Footnote 83} In the past, sport leaders would deny this reality, issuing statements such as that by former IOC President Avery Brundage: “[S]port … like music and the other fine arts, transcends politics. … We are concerned with sports not politics and business.”^{Footnote 84} Over time, the IOC has engaged in overtly political activities, such as the boycott against the South African apartheid regime.^{Footnote 85} As a result, perspectives have changed, and current IOC President Thomas Bach recognizes that sport and politics are intertwined, stating in late 2014:

International sport has become increasingly politicized in the international political realm for three reasons. First, sport’s status as “low politics” has enabled sport to become an entry point into global affairs for most states and for some non-states.^{Footnote 87} Since sport is less prestigious and less overtly linked to power than issue areas such as national security or trade, major powers are less likely to dominate sport. This status has also made sport an important diplomatic tool to overcome otherwise strained relationships.^{Footnote 88} Second, sport’s decentralized, privatized organization has created an equality of opportunity for states. While the UN is dominated by its Security Council, and the International Monetary Fund and World Bank are dominated by particular donor states, sport provides a venue where smaller states can compete with larger states both off and on the field of play.

Third, the global media exposure of sport has established sport as a highly visible human activity in comparison to many other activities and political institutions. Individuals use this visibility to create a stage for protest against the state or on behalf of particular issues.^{Footnote 89} Likewise, states have used the visibility of sport to engage in various forms of propaganda about the state since the 1936 Berlin Summer Olympic Games.^{Footnote 90} The nationalistic sentiments of the opening ceremonies of the Olympic Games,^{Footnote 91} the national pride engendered by winning a major championship,^{Footnote 92} and the normalization of international relations with other states following the hosting of major sporting events are just some examples of states using sport for political ends.^{Footnote 93} Simply participating in international sport allows a state whose claim to statehood is contested to act like an established state on the international stage.^{Footnote 94}

Just as the worlds of international sport and international politics interact, the same is happening, although to a lesser degree, with international sport and international law. In recent decades, sport has established its own legal regime. Sports governing bodies set the rules that athletes and administrators must abide by in order to participate in sport. When these rules are broken or challenged, the parties do not turn to domestic courts but, instead, resolve their differences internally and, failing that, through arbitral proceedings at the CAS. When the CAS was created in the 1980s, part of the reason was to keep sporting cases out of domestic courts.^{Footnote 95} This move by sporting organizations has largely been successful. Domestic courts respect CAS decisions pursuant to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards.^{Footnote 96} However, sport is not completely immunized from domestic law, as seen through the application of EU law to sport.^{Footnote 97}

The body of law created by the CAS is seen as the core of a developing lex sportiva.^{Footnote 98} The CAS has also developed a stable body of law that is arguably more efficient and predictable than proceedings before numerous domestic courts would be.^{Footnote 99} However, concerns remain about the practice of mandatory arbitration in sport and the lack of transparency in CAS judgments.^{Footnote 100} Despite the creation of a largely autonomous regulatory order, sport remains influenced by international law, such as through calls to apply international legal norms to the activities of sporting bodies.^{Footnote 101}

The CAS is required to apply the rules of law chosen by the parties to the dispute or the laws of the country in which an applicable sport federation is located. However, a CAS panel can also apply “the rules of law that the Panel deems appropriate,” but it must give reasons for its decision to do so.^{Footnote 102} As such, the CAS has applied principles of international law to its cases. A primary example is the Perez arbitration, decided during the 2000 Summer Olympic Games. Angel Perez had participated for the Cuban canoeing team in the 1992 Summer Olympic Games and sought to compete for the United States in the 2000 Olympic Games. Perez was born in Cuba, defected from Cuba in 1993, became a permanent resident of the United States in 1995, and a citizen in 1999. In order to participate for the United States, Perez had to: (1) have been a national of the United States for more than three years or (2) have Cuba waive the three-year requirement. In determining whether Perez was a national of the United States for more than three years, the CAS panel referred to the infamous Nottebohm case for the proposition that “formal nationality or citizenship may be disregarded if it is not effective.”^{Footnote 103} Ultimately, the panel relied on US domestic law to determine that Perez had been a national of the United States for only one year, as American courts generally only accept individuals as nationals once they become citizens.^{Footnote 104}

Shortly after its initial determination, the panel held another hearing, as Perez himself was not a party to the first hearing.^{Footnote 105} In this second hearing, the panel found that Perez had in fact become stateless upon his defection from Cuba.^{Footnote 106} The panel then examined what statelessness would mean for sporting nationality, relying on international legal texts.^{Footnote 107} The panel held that Perez became stateless in 1993 and that Cuban consent to a change in sporting nationality was not required, allowing Perez to participate in the 2000 Summer Olympic Games.^{Footnote 108} Admittedly, the issue of statelessness was not fully litigated, as the Cuban National Olympic Committee did not show up to the second hearing.^{Footnote 109} Nevertheless, these decisions serve as evidence of the CAS engaging with public international law to regulate the world of sport.

USING SPORT TO ESTABLISH A STATE

How does this mixture of sport and politics play into the construction of statehood? International sport is premised upon competition between nations. While the Olympic Charter states that the “Olympic Games are competitions between athletes in individual or team events and not between countries,” this claim is a fiction.^{Footnote 110} The reality is that an individual athlete must be a member of a NOC or NF to compete in international sporting competitions,^{Footnote 111} barring exceptional circumstances such as an emerging state,^{Footnote 112} the suspension of a National Olympic Committee,^{Footnote 113} or allowing athletes to participate under the Olympic flag as the “Refugee Olympic Team.” In individual sports, and particularly so in team sports, athletes generally compete against athletes from other nations. The use of national colours, flags, and anthems only serves to highlight these distinctions.

Athletes do not, strictly speaking, represent states in international sporting events. Instead, athletes compete as members of sporting associations, such as NOCs, or national federations. As implied by the term “National” Olympic Committee, or “national” federation, these sporting associations do not always correspond one to one with states. In the case of the Olympics, as of 2018, thirteen territories have a NOC recognized by the IOC but are not members of the UN.^{Footnote 114} The inconsistency between state and nation in sport is due to the IOC, and other sporting organizations, historically using non-state-based definitions for the recognition of sporting bodies. Until 1996, the IOC defined a “country” as “any country, state, territory or part of a territory which the IOC in its absolute discretion considers as the area of a recognized NOC.”^{Footnote 115} In 1996, the IOC amended the Olympic Charter to define “country” as “an independent state recognized by the international community.”^{Footnote 116} Notably, this narrowing of the definition did not prevent Kosovo’s NOC from receiving IOC recognition in 2014.

This gap between “country,” or nation, and state has provided space for aspiring states to use sport as a means to obtain recognition from the international community. During decolonization, entities generally sought “membership of the Olympic movement and de jure recognition from the International Olympic Committee to solidify their de facto status as states.”^{Footnote 117} However, three cases outside of the decolonization context are instructive because of their otherwise contested existence: the recognition of the GDR, the repeal of the recognition of Taiwan, and the failure of Turkish Cyprus to be recognized.

Following the Second World War, the Federal Republic of Germany (West Germany) was swiftly recognized by most states as the successor to the pre-War German state. The Soviet-overseen GDR (East Germany) was recognized only by other Eastern Bloc states.^{Footnote 118} In seeking broader recognition from the international community of states, the GDR used participation in international sport as an “opportunity to demonstrate the existence of the East German state and ... force the issue of de facto recognition which, according to the East German leadership, would lead to de jure recognition.”^{Footnote 119} East Germany committed the state to supporting and funding its athletes as part of a broader plan to obtain international recognition.^{Footnote 120} As East German athletes competed, and excelled, in regional sporting competitions held primarily amongst Eastern Bloc states, the GDR could not be excluded from global sporting competition for long.^{Footnote 121} Through its consistently strong sporting performances, the GDR also demonstrated that it had a viable and stable government.^{Footnote 122} In 1965, the GDR’s NOC was recognized by the IOC and was allowed to participate, somewhat ironically, in the 1972 Olympic Games in Munich, which was then part of West Germany. East Germany’s participation in the 1972 Olympic Games coincided with recognition of the GDR by West Germany and, shortly thereafter, by other states.^{Footnote 123} Notably, the GDR’s approach to sport was valuable not only for the GDR but also for other, existing states as they soon adopted the GDR approach to organizing elite sport.^{Footnote 124}

In contrast to the GDR, sport was a tool used to undermine Taiwan’s claim to statehood. Following the Chinese Civil War, both the People’s Republic of China (PRC) and Taiwan claimed to represent the whole of China. From 1949 until the early 1970s, most of the West recognized Taiwan as the representative of China, as opposed to the communist PRC. In the 1970s, the United States worked to normalize its relationship with the PRC, in part through sport — namely, ping-pong.^{Footnote 125} As the PRC was increasingly recognized as the “One China” by other states, Taiwan’s status as a state was adversely affected. Things came to a head in 1976, when Canada refused to grant visas to Taiwanese athletes who sought to participate in the 1976 Montreal Summer Olympics.^{Footnote 126} The Canadian refusal was meant in part to demonstrate its recognition of the PRC. Canada’s denial of visas violated the Olympic Charter and, according to some commentators, international law.^{Footnote 127} Regardless of the (il)legality of the Canadian actions, the IOC was now faced with the task of encouraging PRC participation in the games, while simultaneously trying to keep the ROC in as well. In 1979, the IOC brokered a compromise where both the PRC and the ROC would compete in the 1980 Lake Placid Winter Olympic Games.^{Footnote 128} The PRC was allowed to use the PRC as its official NOC name and could use its state flag and anthem. Meanwhile, the ROC was required to submit a new NOC name, flag, and anthem to the IOC.^{Footnote 129} One Taiwanese athlete sought an injunction to halt the 1980 Olympic Games unless Taiwan was allowed to compete under the ROC name and flag. However, the court dismissed the claim as a “political question.”^{Footnote 130} Taiwan now competes as “Chinese Taipei” under a special flag that features the Olympic rings instead of its national flag. James Nafziger paints this action as being positive for Taiwan, calling it a “successful exercise in ‘pragmatic diplomacy’” that allowed Taiwan to reduce its insistence on being recognized as the ROC per se, in exchange for increased international engagement.^{Footnote 131}

Unlike the GDR or Taiwan, the Turkish Republic of Northern Cyprus (TRNC) has been unable to use sport to bolster its claims of sovereignty. In 1983, Turkish Cypriots proclaimed their independence from the Republic of Cyprus, establishing the TRNC. Currently, only Turkey recognizes the TRNC, while the creation of the TRNC itself has been viewed as illegal under international law.^{Footnote 132} Various attempts have been made by the Turkish-Cypriot Football Association to join the international football community. However, football authorities have imposed a condition that the Turkish-Cypriot Football Association join the Cypriot Football Association.^{Footnote 133} A plan put into place by FIFA and UEFA now sees some limited cooperation between the two football associations in regard to training referees and coaches.^{Footnote 134} Yet the Turkish-Cypriot Football Association remains unrecognized. While the TRNC does participate independently in some minor sporting events, it appears that the TRNC has been largely shut out of being able to use sport as a springboard to broader political and legal recognition.

While the role of sport could not be said to be dispositive in either the eventual recognition of East Germany or in the recognition of the PRC over Taiwan, it did play a role. It is reasonable to expect aspiring states to engage in the broader world of sport, taking advantage of sport’s perceived status as “low politics” to ease their way into the global consciousness and to look more like a ready-made state. Kosovo is the latest entity to make this attempt.

KOSOVO’S CLAIMS TO STATEHOOD

Historically, Kosovo has been seen as the “cradle” of Serbia.^{Footnote 135} It was in the Battle of Kosovo that Serbia lost its independence to the Ottoman Empire in 1389. While, historically, Kosovo was a territory occupied by ethnic Serbs, by the nineteenth century, the inhabitants of Kosovo were increasingly ethnically Albanian. Following the collapse of the Ottoman Empire in 1919, Kosovo was annexed by the Kingdom of Serbs, Croats, and Slovenes, which became the Socialist Federal Republic of Yugoslavia in 1945. Yugoslavia consisted of six republics (Slovenia, Croatia, Bosnia-Herzegovina, Macedonia, Montenegro, and Serbia), while Kosovo became an autonomous province of Serbia. Kosovo, and its fellow autonomous province Vojvodina, gained increased powers over time.

Following the breakup of Yugoslavia in 1991, the six constituent republics successfully claimed a right to statehood, while the two autonomous provinces were unable to establish that claim.^{Footnote 136} On 21 September 1991, Kosovo declared independence. This declaration was largely ignored as Kosovo lacked control over its own territory, and the international community was otherwise occupied with the conflict in Bosnia-Herzegovina. Only Albania recognised Kosovo’s initial claim to independence.^{Footnote 137} Tensions in Kosovo descended into armed conflict in 1999. The UN responded by establishing a military presence in Kosovo, the Kosovo Force, and an international civilian administration regime, the UN Mission in Kosovo.^{Footnote 138}

After almost a decade, and still under UN administration, Kosovo again declared its independence on 17 February 2008. This time, a number of powerful states, including the United States and the United Kingdom, recognized Kosovo’s independence.^{Footnote 139} In the wake of the declaration of independence, the UN General Assembly sought an advisory opinion from the International Court of Justice on the legality of Kosovo’s unilateral declaration of independence. The advisory opinion was narrowly written, finding that Kosovo’s declaration of independence did not violate international law, stopping well short of finding that Kosovo was a state.^{Footnote 140} The court hinted that state secession may be more of a political, than a legal, issue,^{Footnote 141} echoing obiter dicta from the Supreme Court of Canada in the Reference re Secession of Quebec case.^{Footnote 142} As of 2018, 113 UN member states have recognized Kosovo. Meanwhile, Serbia has begun to normalize relations with Kosovo under the 2013 Brussels Agreement, which provides for protections for Kosovo’s Serbian population.^{Footnote 143}

Like other aspiring states, Kosovo has sought to construct its identity as an independent state in part through participation in international sport. After its initial declaration of independence in 1991, Kosovo established a NOC on 27 May 1992.^{Footnote 144} The Yugoslavian Football Federation, which the FFK was part of, had been dissolved, and the rump Yugoslavia’s football teams had been targeted for sanctions by the UN Security Council as a result of its involvement in the Bosnian war.^{Footnote 145} The sanctions affected the clubs and national team, although to an arguable extent.^{Footnote 146} Just like recognition by states, recognition by international sporting bodies would take time. In the meantime, Kosovar athletes generally competed under the Serbian or Albanian flags, with some competing for other countries.^{Footnote 147}

In establishing itself as a sporting entity, Kosovo has faced three particular challenges: reconstruction and a lack of sport infrastructure, international recognition by IFs, and political integration of the ethnically Serbian population of Kosovo.^{Footnote 148} The international sporting community has largely addressed the second challenge, which is the focus of this article. In 2003, the International Table Tennis Federation was the first IF to recognize a Kosovar national federation. Following that recognition, Kosovar sporting bodies began to receive further recognition from other IFs, and Kosovo eventually had its NOC recognized by the IOC. One of those recognitions — by UEFA — led to a dispute that was argued before the CAS in 2016.

BACKGROUND TO THE KOSOVO CASE: BLAME GIBRALTAR?

UEFA is the governing body for football in Europe. It organizes international competitions in which member associations participate. These competitions include the quadrennial UEFA Euro, which is competed in by national associations (for example, Germany’s, Spain’s, and France’s associations), and the annual club competitions — the Champions League and the Europa League — which are competed in by clubs such as Bayern Munich, Real Madrid, or Paris Saint-Germain. UEFA also plays a significant regulatory role in European football, establishing rules that affect player movement between clubs and that restrict how clubs may spend their money (that is, Financial Fair Play Regulations).^{Footnote 149} UEFA works with FIFA, the global governing body for football, and with national football associations.

Like the IOC and FIFA, UEFA is an association registered under Article 60 of the Swiss Civil Code.^{Footnote 150} UEFA’s supreme decision-making body is the UEFA Congress, on which all of UEFA’s fifty-five members sit.^{Footnote 151} UEFA’s day-to-day operations are carried out by an Executive Committee under the guidance of the president of UEFA.^{Footnote 152} UEFA, like FIFA, has had governance problems in its recent past. In 2016, UEFA President Michel Platini was banned from all football-related activities by FIFA following findings of corruption, a ban upheld by the CAS.^{Footnote 153} Like FIFA, UEFA has worked to implement reforms that seek to improve its governance.^{Footnote 154}

Importantly for the dispute over the status of Kosovo in UEFA, members of UEFA are “national football associations,” not states.^{Footnote 155} Following Kosovo’s admittance, UEFA has fifty-five member associations that stretch across Europe and, in the cases of Kazakhstan and Israel, beyond what is traditionally considered “Europe.” While most of UEFA’s recognized members are congruent with internationally recognized states, who are also members of the UN, there are six exceptions, other than Kosovo: the Faroe Islands (part of Denmark), Gibraltar (a British Overseas Territory), and the “home nations” of England, Scotland, Northern Ireland, and Wales (which make up the United Kingdom).

Fifteen years prior to Kosovo’s application for membership, UEFA changed its membership criteria, likely in response to an application for membership by the Gibraltar Football Association (GFA). The GFA, having organized football in Gibraltar since 1895, sought membership in UEFA in 1999 as part of its application to also become a member of FIFA. Although Gibraltar is a British Overseas Territory, Spain claims sovereignty over Gibraltar on the basis of territorial integrity. The GFA’s application to join UEFA received support from the English Football Association, and opposition from the Spanish Football Association.^{Footnote 156} Spain has been “very sensitive about public recognition of Gibraltar” in international sport, with its foreign ministry intervening to minimize Gibraltar’s participation in a badminton championship held in Spain in 2001.^{Footnote 157}

In the midst of the GFA’s membership drive, UEFA changed its membership rules. The prior rule read that membership in UEFA was “open to national football associations situated in the continent of Europe which are responsible for the organisation and implementation of football-related matters in their particular territory.”^{Footnote 158} In October 2001, UEFA amended the rule to require that the association must be in a “country which is recognised by the United Nations as an independent state.”^{Footnote 159} While Kazakhstan initiated and completed a transfer from the Asian Confederation to UEFA in about a year’s time during this period, the GFA’s application had not been the subject of a final decision one way or another by UEFA after three years. When the GFA’s demands for UEFA to take an immediate decision were not met, the GFA brought a claim to the CAS in June 2002. The CAS required UEFA to consider the GFA’s membership under the old rules based on the presumption against retroactivity.^{Footnote 160} Under these old rules, UEFA eventually accepted the GFA as a member in May 2013.

THE CAS DECISION: KOSOVO AS A COUNTRY UNDER THE UEFA STATUTES

It is against this background that the FFK submitted its application for UEFA membership. The FFK was founded in 1946 before becoming part of the Yugoslav Football Federation in 1948. The FFK became independent again in 1991.^{Footnote 161} On 9 March 2015, the application was submitted, and it was on 3 May 2016 that the UEFA Congress approved the FFK’s membership. The vote was close, with twenty-eight member associations in favour, twenty-four opposed, and two votes declared invalid.^{Footnote 162} Ten days after UEFA’s approval of the FFK’s membership, the FFK was admitted as a member of FIFA. The Serbian football federation, the FSS, opposed UEFA’s decision, both before and after the vote.

Unable to seek redress before UEFA, the FSS appealed UEFA’s decision to the CAS. The FSS requested that the CAS annul UEFA’s decision to admit the FFK.^{Footnote 163} The FSS based its request for relief largely on the ground that UEFA could not admit the FFK under the UEFA Statutes — the governing document of UEFA.^{Footnote 164} A hearing was held on 31 October 2016, and the CAS rendered its decision in favour of UEFA on 23 January 2017. The decision turned on the interpretation of the UEFA Statutes. Both parties argued, and the CAS concurred, that “statutes and regulations of an association shall be interpreted and construed according to the principles applicable to the interpretation of the law rather than to contracts.”^{Footnote 165} The CAS adhered to prior jurisprudence by taking a two-step approach to statutory interpretation, looking at the text and the purpose of the rule.^{Footnote 166}

The text of Article 5(1) of the UEFA Statutes that was at issue in the dispute reads as follows:

The CAS began its interpretation by breaking down the article into three parts: (1) national football associations, (2) which are responsible for the organization and implementation of football-related matters in the territory of their country and (3) based in a country that is recognized by the UN as an independent state. The CAS found that the FFK satisfied the first two elements. The FFK was a football association that generally organized football throughout Kosovo, although some football clubs in northern Kosovo played under the auspices of the FSS.^{Footnote 168} Therefore, the only part of the article that required interpretation was Kosovo’s status as a “country which is recognised by the United Nations as an independent state.”

In conducting a textual analysis, the CAS found that the text could not hold together. The parties agreed “that the provision — if applied literally — makes little sense, because it is undisputed that the United Nations do not recognise countries. Only countries may recognise other countries.”^{Footnote 169} Leaving aside the CAS’s conflation of country with state, the panel was correct since entities that wish to join the UN must be “peace-loving states,”^{Footnote 170} but no provision is made for the UN to recognize states. Nor are states required to become members of the UN, as Switzerland did not join until 2002. Given that the operative element of the definition — recognition by the UN — was nullified, the CAS then turned to other tools to examine whether Kosovo was a “country” under the UEFA Statutes.

The CAS then turned to other sections of the UEFA Statutes to lend context to the text of Article 5(1). The parties agreed that Article 5(1) had to be read together with Article 69(1) of the statutes, which states that “Article 5 does not apply to the following member associations: England, Scotland, Northern Ireland, Wales, Faroe Islands and Gibraltar.”^{Footnote 171} The FSS argued that Article 69(1) provides an exhaustive list of exceptions to Article 5(1) since these entities were not UN members and the only members of UEFA that were not so. UEFA countered that when Article 69(1) was enacted, Switzerland was a member of UEFA but not of the UN. The CAS found this to be of little value given that Switzerland became a member of the UN shortly after the enactment of Article 69(1).^{Footnote 172} Additionally, Switzerland’s status as a state, and its qualifications to become a UN member, had never been debated, unlike the other entities under Article 69(1) — namely, Kosovo. Overall, the CAS was unconvinced by either argument and found that Article 69(1) offered little contextual value in interpreting Article 5(1).^{Footnote 173}

Finally, the CAS examined the purpose of Article 5(1). When UEFA amended the article in 2001, the primary purpose was to have one member federation per country.^{Footnote 174} As discussed above, a one-to-one ratio has historically not been the case. What UEFA sought to do was to grandfather existing federations that were not tied to a specific state, while limiting future federations to those that have a tie to an independent state. The CAS recognized that the “attempt to mirror the solutions and realities of the political map onto the sporting world makes a lot of sense.”^{Footnote 175} Although the CAS recognized sport’s desire to move closer to public international law in determining what a “state” or “country” is, it noted that the definition should not be read too strictly.^{Footnote 176} While a need for a stable basis of membership does advocate for a narrow reading of the UEFA Statutes, the CAS found that the exceptions in Article 69(1), while not helpful for informing the text of Article 5(1), provide the basis for a more permissive reading of the statutes.^{Footnote 177}

In interpreting the purpose of Article 5(1), the CAS also looked to other international sporting organizations and how they have defined membership eligibility. Both FIFA and the IOC defined “country” as “an independent state recognised by the international community.”^{Footnote 178} And it was under these definitions that Kosovo had its NOC recognized by the IOC and its football association recognized by FIFA. The CAS also found it “noteworthy” that Kosovar sporting federations had been recognized by other international sporting organizations.^{Footnote 179} Therefore, the CAS held that “if the UEFA Statutes are interpreted in line with the common understanding in the sporting community,” Kosovo is eligible to become a member of UEFA as “Kosovo’s independence is recognised by the majority of the international community.”^{Footnote 180}

THE POST-DECISION LANDSCAPE

The CAS decision itself did not change life much for the Kosovar football team, as it was already playing in football matches during the hearing. Between the filing of the appeal to the CAS on 13 May 2016 and the final decision on 23 January 2017, the Kosovo national team had played four international matches as part of qualifying for the UEFA Euro championships.

Although the CAS does have the power to issue provisional measures such as a preliminary injunction, the decision on the merits makes no mention of such preliminary relief previously being requested or denied. However, it is possible that the CAS, if asked to grant an injunction to prevent Kosovo from participating in qualifying for the UEFA Euro until after the hearing, would have ruled against it. In awarding an injunction, the CAS panel considers “whether the relief is necessary to protect the applicant from irreparable harm, the likelihood of success on the merits of the claim, and whether the interests of the Applicant outweigh those of the Respondent(s).”^{Footnote 181} In this case, there would have been no particular harm to Serbian footballing interests from Kosovar participation in the UEFA Euro qualification matches, as Serbia was not in Kosovo’s group. Even if the Football Association of Serbia had been successful in its claim, the likely remedy would have been to nullify Kosovo’s four match results, which would have required the other teams in its qualifying group to play a few more games or receive points from an imposed forfeit by Kosovo.

What the CAS decision has accomplished is to regularize Kosovar participation in football, with the Kosovar national team participating in UEFA competitions as well as football clubs participating in the UEFA Champions League and the UEFA Europa League.^{Footnote 182} Yet Kosovar participation has not been completely regularized, as the Kosovar flag was banned from stadiums during the 2018 FIFA World Cup, which was held in Russia, an ally of Serbia.^{Footnote 183}

What about a potential Kosovo–Serbia match? There is a high likelihood that one will not happen for some time. If it does, extraordinary security measures will need to be undertaken. UEFA has prevented national teams from playing each other when tensions are high, such as when it separated Armenia and Azerbaijan from a qualifying group in 2012^{Footnote 184} or when it removed Gibraltar from Spain’s group after the two were randomly placed in the same group in 2013.^{Footnote 185} A simple bar on the two teams facing each other may be the only solution for some time, particularly given the events of 2014’s Serbia–Albania football match.

On 14 October 2014, Serbia and Albania — two states separated by Kosovo, geographically and politically — played a UEFA Euro qualifying match in Belgrade, Serbia. Serbia and Albania were assigned to the same group. Neither football association protested the draw, although both recognized that Albanian fans should be prohibited from attending the game in Serbia.^{Footnote 186} Prior to the match, the Football Association of Albania (FAA) informed UEFA that its bus, president, and athletes had been assaulted with various projectiles.^{Footnote 187} Things were no better in the stadium, as fans engaged in racist chants, threw flares and bottles, and burned the North Atlantic Treaty Organization’s flag. The referee stopped play twice, and, during the second stop, a drone carrying a flag emblazoned with Albanian nationalist slogans flew into the stadium. A Serbian player took the flag, after which the teams, fans, and even security personnel engaged in a brawl. The game was eventually abandoned.

In the aftermath, UEFA penalized both the FAA and the FAS, both of which appealed to the CAS. UEFA fined the FAA €100,000 for the drone incident and penalized the Albanian team with a three-to-zero loss. Meanwhile, UEFA held the FAS responsible for the lax security and for the conduct of its fans, fining the FAS €100,000, deducting three points in the Euro qualifying rounds, and requiring the Serbian team to play its next two home matches in an empty stadium. Following the FAA’s appeal, the CAS upheld the fine, finding that UEFA’s presumption that an Albanian fan had operated the drone was “objectively reasonable.”^{Footnote 188} However, the CAS panel did not uphold the forfeit penalty, finding that the match was not abandoned due to Albania’s refusal to play but, rather, due to the “totality of the circumstances,”^{Footnote 189} which was the “exclusive responsibility” of the FAS.^{Footnote 190} In doing so, the CAS panel overturned UEFA’s initial decision about the three-to-zero loss and, instead, assigned the three-to-zero loss to Serbia.^{Footnote 191} The FAA was also awarded costs.^{Footnote 192} The FAS’s appeal to the CAS was less successful. The CAS upheld UEFA’s sanctions, finding that, if anything, UEFA was “too lenient.”^{Footnote 193} The FAS was also ordered to pay modest costs.^{Footnote 194} A further match was held between Albania and Serbia in 2015 without much incident, other than the alleged drone operator from 2014 being arrested a few days before the match.^{Footnote 195}

This incident will likely preclude a Kosovo–Serbia match for some time. UEFA was criticized for not separating Serbia and Albania in 2014. In its defence, UEFA pointed out that the states had normal diplomatic relations, there was no military or armed conflict, and there was no request for separation.^{Footnote 196} This will not likely be the case with a Kosovo–Serbia match. Not only is there an absence of normal diplomatic relations; tensions over football remain. In 2018, the FFK cancelled a match between Red Star Belgrade and the Kosovar club of Graçanica. The two clubs had held several matches against each other over a period of a few years, donating proceeds to a local hospital. However, concerns over tensions in the predominantly ethnically Serbian town led to the cancellation of the 2018 match.^{Footnote 197} Given these tensions, and the violence that engulfed the Serbia–Albania match, it is unlikely that a Kosovo–Serbia game is in the cards in the near future.

THE CAS DECISION SUPPORTS A CONTEXTUAL APPROACH TO STATEHOOD

As outlined in the second section of this article, international law remains unsettled as to precisely when an entity becomes a state. A decision from the CAS is not going to fill that gap. What the CAS decision does, however, is underscore the real-world consequences of the lack of settled law and, perhaps more importantly, supports a contextual definition of statehood. The CAS decision itself did not rely on public international legal principles in this case, beyond acknowledging that the UN does not recognize states. The two traditional elements of establishing statehood, meeting the Montevideo criteria and (under the constitutive theory) recognition by other states, played only a minor role in the CAS decision. Notably, the CAS did not rely on the Montevideo criteria at all in determining the statehood of Kosovo, while reference was made to the recognition of Kosovo by other sporting bodies and by other states.

In particular, the CAS judgement supports James Crawford’s proposition, discussed earlier in this article, that independence is perhaps the most important aspect in establishing statehood. The CAS itself focused on independence throughout the decision. At the beginning of its analysis, the CAS had to establish the independence of the FFK from the FSS before examining any other element of Article 5(1) of the UEFA Statutes. At the end of its discussion of the merits of the case, the CAS noted that the FFK’s eligibility to become a member of UEFA was cemented through Kosovo’s other, independent, sporting bodies as well as through the international community’s recognition of Kosovo’s independence. As such, Kosovo’s political independence, which falls short of statehood, assisted in its obtaining official sporting independence. Recognition by sporting bodies of Kosovo’s sporting independence may support its claims of political independence — to the point of statehood. This outcome suggests that independence in one area of activity could create a virtual circle, a positive feedback loop, supporting claims of independence in other areas.

The case of Kosovo demonstrates how independence may overcome the tension between the principles of uti possidetis juris and self-determination, tipping the balance towards recognition of a new state. In interpreting the UEFA Statutes, it was likely difficult for the CAS panel to ignore the facts on the ground. Although the Serbian football association strongly opposed Kosovar membership in UEFA, the FFK had been operating in some form for a half-century before applying for UEFA membership.

What is the particular precedent set by the Kosovo case? It is possible to read the Kosovo case and its predecessor, the Gibraltar case, as narrow administrative decisions. The Kosovo case can be viewed as a simple exercise in statutory interpretation, while the Gibraltar case can be narrowly read as a rebuke against sporting bodies changing their rules mid-stream. However, the focus of the CAS on the “independence” of both Kosovo and Gibraltar fit within Gryzbowski’s “discursive web” of effectiveness (if one reads “independence” along the same lines), recognition, and (il)legality.

The precedential weight of the CAS decision may be minimal for future litigation. International law generally does not rely on precedent for its value as stare decisis but relies instead on prior decisions for their persuasive value.^{Footnote 198} Although the CAS is increasingly using its prior decisions as persuasive precedent^{Footnote 199} to shape the predictable, regularized corpus of law that some scholars view as a foundational element of a growing lex sportiva,^{Footnote 200} this is not necessarily the case for other judicial and arbitral bodies, which can choose whether to follow such precedent or not.^{Footnote 201} The CAS’s focus on the private legal aspect, combined with the limited precedential value of arbitral decisions in international law, may limit the impact of the CAS decision on Kosovo’s status in international law. Yet it does add to the broader story of Kosovo as a state and of the role of sport in constructing statehood.

SPORTING RECOGNITION MIGHT BOLSTER A CLAIM TO STATEHOOD

Regardless of the precedential value of the particular CAS decision, it does add support to the premise that establishing statehood is a contextual exercise and that international sporting independence has a role to play in establishing a claim to statehood. Historically, the GDR’s sporting independence, and sporting excellence, may have accomplished as much in establishing the GDR as an independent state as any other formal mechanism. Kosovo appears to be following a similar model. Blocked from embarking on a more traditional path to statehood, Kosovo is establishing de facto independence from Serbia in part through participation in the Olympic Games, FIFA World Cup, and UEFA Euro under the Kosovar flag. Although Kosovo may never reach the heights of the GDR, which was so successful in sports that it could not be ignored,^{Footnote 202} Kosovo is investing in sport.^{Footnote 203}

In addition to establishing statehood, sport has also been a flashpoint for existing states to establish control over contested territory. Recent examples include Palestine and Crimea. Obtaining permission from the sporting organizations to carry on sporting activities in an occupied zone may bolster the claims of an occupying authority. The Palestinian Football Association (PFA) has been a member of FIFA since 1998. In 2015, the PFA complained to FIFA that five teams, under the organization of the Israeli Football Association, were playing in settlements on occupied Palestinian territory.^{Footnote 204} Israel countered that the territories were under their political control until a final agreement between Israel and Palestine was reached.^{Footnote 205} FIFA established a Monitoring Committee to provide a legal opinion on what FIFA should do. In 2017, the Monitoring Committee provided FIFA with three options: maintain the status quo, allowing the settlement teams to play until Israel and Palestine reach a final agreement; warn Israel that it was violating Article 72.2 of the FIFA Statutes, which prohibits member associations from allowing their clubs to play on the territory of another member association; or encourage discussion between the football associations.^{Footnote 206} Ultimately, FIFA chose to maintain the status quo, mentioning its need to remain neutral in political matters and that its involvement might exacerbate tensions in the region, “which would not be in the best interests of the game.”^{Footnote 207}

UEFA took a different approach to the issue of football clubs in Crimea playing in Russian leagues. Crimea was occupied by Russia in 2014, only days after the Sochi Winter Olympic Games. After several months of deliberation, UEFA designated Crimea as a “special zone.”^{Footnote 208} In practice, this has meant that Crimea maintains a Crimean Football Union, and its teams are prohibited from playing in Russian football leagues.^{Footnote 209} In Palestine, FIFA allowed Israeli settlement teams to continue playing in the Israeli league, while, in Crimea, UEFA established a quarantine for football. These decisions are unlikely to be dispositive of issues of statehood or of sovereign control over territory, but they likely carry some weight, and they do matter to those who live in the territories.

The path of using sport to establish independence, and statehood, is not one that is successful for all. As discussed in the third section of this article, Taiwan is perhaps the most notable entity to fall short of recognition as a state, despite participation in international sport, while the TRNC has apparently been shut out of sport. Other non-state entities have invested in sport to assert their national identity, with little apparent impact on their political status. For instance, the Basque region of Spain sponsored the cycling team Euskatel-Euskadi from 1994 to 2013, while the region of Catalonia had a short-lived national rugby league team from 2007 to 2010.

Non-state entities have also created their own international sporting competitions. The “VIVA World Cup” was held from 2006 to 2012.^{Footnote 210} A successor, the Confederation of Independent Football Associations (ConIFA) now holds its own World Football Cup. ConIFA itself is a collection of teams that represent “nations, minorities, isolated dependencies or cultural regions.”^{Footnote 211} Members include regions that have sought, or are seeking, independence, such as Kurdistan, Northern Cyprus, Western Sahara, Tibet, and Quebec. Other members are representative of cultural groups that do not necessarily seek independence, such as the Romani, the Sami, Cascadia, and the Korean diaspora in Japan.^{Footnote 212} Both the Spanish cases and the football competitions mentioned here differ from Kosovo as Kosovo sought, and received, recognition from established entities such as the IOC, FIFA, UEFA, and so forth. In these other cases, the established organizations are absent. As such, these attempts are likely to be less persuasive compared to the GDR’s policy or to Kosovo’s actions.

It therefore remains unlikely that any aspiring state could simply set up their own sporting federation, claim it to be independent, and obtain sporting recognition on the road to statehood. International sporting bodies have been trying to narrow the definition of their national associations and are likely to continue to do so in the future. Meanwhile, in obtaining recognition, both Kosovo and Gibraltar had independent football federations for decades. This temporal aspect establishes a real independence that was hard for the CAS to ignore. Additionally, there was some semblance of international support. The English Football Association supported Gibraltar’s membership in UEFA. Given the United Kingdom’s sovereignty over Gibraltar, this support likely carried significant weight. Meanwhile, over half of the world’s states recognize an independent Kosovo, a factor in the CAS’s decision. If an entity is seeking to establish sporting independence, it should probably be prepared to operate at the periphery for some time before receiving recognition.

The Kosovo case does support the broader constructivist theory suggesting that non-state actors have a meaningful role in international relations and in international law. In a contextual inquiry, recognition by bodies such as international organizations, or private international bodies, would hold some, although limited, weight. The recognition of a national sporting federation by international sporting organizations demonstrates that the entity seeking statehood is able to exercise independence in an area of human activity. The CAS panel cited the recognition by other sporting organizations to support its decision to uphold UEFA’s recognition of the FFK. In the case of Kosovo, its claim to statehood would be supported by the CAS decision and its successful joining of UEFA. The decision itself would not be determinative, but it would form part of a contextual approach. The CAS did this in support of its decision, noting the recognition of the Kosovar sporting associations by the IOC and FIFA to support its decision to uphold UEFA’s recognition of the FFK.

This may play out in other non-sport realms as well. For instance, would the granting of a Kosovo-specific Internet country domain name by the Internet Corporation for Assigned Names and Numbers, which is a non-profit corporation, enhance Kosovo’s claim to statehood?^{Footnote 213} The answer is probably “yes.” In 2013, Facebook allowed users to identify themselves as citizens of Kosovo, prompting Kosovo’s then deputy foreign minister to remark: “Being recognized on the soccer pitch and online has far greater resonance than some back room in Brussels.”^{Footnote 214}