The Legality & Legal Effect of Kosovo’s Purported Secession and Ensuing Acts of Recognition
New England Law | Boston
November 15, 2008
International law has very little to say about the legality of secession. This neutrality derives largely from the principle of non-intervention. Thus, in general, the legally significant issue is the effect of the attempted secession; i.e. whether a new state has come into existence. The principle of territorial integrity operates only to impose a duty on states to refrain from acts that encroach upon another state’s territorial sovereignty, which of course would include an obligation to refrain from assisting separatist movements in their pursuit of secession. It does not bind these movements as such.
The legality of recognition is analytically distinct from the question of the legality of secession, though the two are interrelated. Recognition of newly independent states is generally lawful, so long as that new state has effectively established its independence in fact. However, it is increasingly accepted that it is unlawful to recognize territorial sovereignty acquired through a violation of the prohibition on the use of force, or violation of another peremptory norm of international law. It would also be unlawful to recognize a state where the Security Council has decided, with reference to a particular situation, that states must refrain from recognizing that state.
At first glance, Kosovo would seem to meet the Montevideo criteria. However, the application of the criteria is complicated by the unique circumstances in which it has evolved over the past nine years. In particular, closer scrutiny is warranted with regard to the claim that Kosovo has an independent government in effective control. It should be recalled that the necessary level of control is context-dependent. It should be considered whether the necessary degree of control must be established in absolute terms, or relative to the level of control retained by the parent state. This then leads to an inquiry as to the relevance of external support.
The last step in the legal analysis is to consider whether and to what extent the legal situation has been altered by the terms of Security Council Resolution 1244. The resolution envisions UNMIK as a neutral facilitator, while at the same time implying movement (“transitional”) and direction (“autonomy”; “democratic self-governing institutions”). Thus, the language of enabling the enjoyment of substantial autonomy must be seen as stipulating UNMIK’s goal as an interim presence. UNMIK does not appear to be required to take steps to prevent independence.
The real significance of SCR 1244 then is not the legal effect of the resolution as such, but its practical effect. The regime imposed by the resolution does not de jure affect the status of Kosovo. However, that regime created a space for developments on the ground to dictate the final outcome.
Number of Pages in PDF File: 9
Keywords: Kosovo, Existence of State, Secession, International Law, Security Council Resolution 1244, Montevideo Convention, Independenceworking papers series
Date posted: July 23, 2010
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