Kosovo's Declaration of Independence: Self-Determination and Sovereignty Revisited

Abstract

In this article, the author analyzes the implications of Kosovo's declaration of independence on state sovereignty and the principle of self-determination of peoples. He begins with an outline of the political process leading to the declaration of independence and the reactions of the international community thereto in which he also presents the various legal arguments raised for and against the lawfulness of Kosovo's secession from Serbia. The author continues with a discussion of whether the principle of self-determination of peoples does apply in the Kosovo case and whether the operation of this principle would justify a 'remedial secession'. Subsequently, he analyzes whether UN Security Council Resolution 1244 may be a legal barrier to Kosovo's independence to the extent that Serbia does not consent to such independence. Finally, in view of the extensive powers vested in the new international presence following Kosovo's declaration of independence, he discusses whether Kosovo fulfills the criteria of effective government and independence for being a state under general international law. The author concludes that international law remains controversial as to questions pertaining to conflicts between state sovereignty and self-determination of peoples and particularly to 'remedial secession', and that it is still too early to determine the impact of the Kosovo case on the development of international law.

Peoples’ Right to Self-Determination: From a Political Ideal to an Ever-Evolving Legal Right

“…For minorities, the right to internal self-determination should be achieved "by establishing constitutional mechanisms that allow the entity in question to pursue its political, economic, social and cultural development within the framework of an existing state." 182 External self-determination, in other words secession, is restricted to a very narrow interpretation and still rejected by many authors. Although, as Thornberry rightfully points, "every secession creates fresh complexities and oppositions, new minorities, and has the potential to produce new forms of illiberalism" 183 , it is problematic to prohibit secession when the oppression and injustice towards a minority is so grave and living together becomes virtually impossible.…”

Declarations of Independence after the Cold War: Abandoning grievance and avoiding rupture

“…From an international law point of view, Vidmar (2012a) discusses the question of the legality of some recent DoIs and their impact on international recognition of new states, without however analysing their content. In addition, the Kosovo DoI in 2008 sparked some attention from an international law perspective as well (among others, Muharremi, 2008; Sevastik, 2008). Nevertheless, a systematic analysis of DoIs as statements of intent that investigates the rhetoric employed for legitimizing secession is missing.…”

The role of Islam in Indonesia's contemporary foreign policy

“…As is widely known, Kosovo's conflict has seen a debate between state sovereignty and territorial integrity on the one hand, and a people's self determination and independence on the other hand. The unilateral declaration of independence has added further legal complexity (Muharremi, 2008), including raising the legal principles of territorial integrity, self-determination, state sovereignty and state recognition (Fierstein, 2008). The declaration of has sparked controversy over the legality of Kosovo's statehood (Jaber, 2010).…”

“…Although supporting states avoided references to self-determination, their arguments inherently implied remedial-self determination when they cited the impossible human rights situation facing Kosovo under Serbia's rule. Instead, their argument has been made in conjunction with references to the principles of effectiveness where for many years Serbia and Kosovo had been governed in total separation (Muharremi, 2008;Pippan, 2010). On the other hand, past human rights concerns did not directly lead to the right to secession but constructed "an effective situation that ultimately legitimized secession" (Vidmar, 2009, p. 837).…”