SELF-DETERMINATION, RECOGNITION AND THE PROBLEM OF KOSOVO

Abstract

Kosovo's declaration of independence from Serbia in February 2008 has proven to be a controversial action. Although recognised by a not insignificant number of states, the opposition of a greater number reflects the uncertainty over the legality of an entity's secession from its parent state within international law. The present article considers three ways in which international lawyers might choose to respond to Kosovo. Firstly, it seeks to assess whether the norm of self-determination affords grounds upon which Kosovo's secession might be justified. It will be shown that the scope of self-determination, as a norm which evolved in response to post-War pressures for decolonisation, is insufficiently clear and certain to apply to the case of Kosovo. Secondly, the case for broadening any right of secession afforded by international law so as to apply to cases such as Kosovo is considered. However, it will be shown that to take such an approach would open a pandora's box and risk legitimising serious fragmentation of the international states system. Finally, the possibility of treating Kosovo as a unique and exceptional situation is considered. However, it will be concluded that it is difficult to establish any genuinely unique and exceptional characteristics applicable to Kosovo.