Kosovo and International Law: A Divided Legal Scholarship

Abstract

Riven by controversies, international legal scholarship has been unable to provide policy-makers with a uniform position on the legal problems fueled by the independence of Kosovo. For instance, while this author has argued elsewhere that secession was a question of facts which could not be authorized or prohibited by international law, others have contended that Kosovo needed to be entitled to secede under international law to claim independence. By the same token, this author has submitted that the recognition of Kosovo following its declaration of independence does not constitute an international wrongful act as recognizing the new entity does not boil down to a recognition of a serious breach of a norm of imperative character. This view has been contested by many scholars. The practice that preceded or ensued the declaration of independence adopted by the government of Kosovo on 17 February 2008 is worth some discussion as it may, to some extent, help unravel or clarify some of these legal difficulties. Particular attention should be paid to the EULEX mission created by the European Union, the special reference to the UN Special Envoy's Kosovo Status Settlement in the declaration of independence, the conditional recognition offered by some States, the border demarcation negotiation with Macedonia, the lingering unrest in the northern part of Kosovo, etc.

This short exploratory paper is followed by the pleadings by his author in the oral proceedings before the International Court of Justice in the framework of the Request for Advisory Opinion on the accordance with international law of the unilateral declaration of independence in respect of Kosovo, 4 December 2009.

Keywords: Kosovo, Statehood, Recognition, EULEX, International Law, International Court of Justice, Advisory Opinion, Obligation not to recognize, State Responsibility, Non-State Actors