Lawfulness of Kosovo’s Declaration of Independence
Bart M.J. Szewczyk
Columbia Law School
ASIL Insights, Vol. 14, No. 26, August 17, 2010
The International Court of Justice advisory opinion, holding that Kosovo’s declaration of independence did not violate international law, properly avoided definitive statements on the concept of remedial self-determination through unilateral secession. Notably, while the Court reserved judgment on whether Kosovo’s independence was justified under international law based on remedial self-determination, it did analyze an array of subsidiary questions fundamental to the structure of the contemporary international system, including 1) the appropriateness of invoking the Court’s jurisdiction; 2) the existence and applicability of general international law governing declarations of independence; 3) the relevance of Security Council Resolution 1244; and 4) the availability of a right to remedial self-determination through unilateral secession.
However, the Court should have provided further guidance as to when remedial secession may be lawful as the only possible means to safeguard fundamental human rights in the aftermath of grave violations of such rights. An international law principle that counts and provides authority for controlling decision-making should distinguish between irrelevant and relevant decisions, as well as between lawful and unlawful actions. Indeed, there are strong reasons to distinguish Kosovo’s declaration of independence from, for instance, that of South Ossetia or Abkhazia. Remedial secession may be lawful as the only possible means to safeguard fundamental human rights so as to maximize values of human dignity, but does not justify all territorial fragmentation. Lawful action means not only that which is not prohibited, but that which can and should be supported (or at least not resisted) by other effective actors of the international community.
Number of Pages in PDF File: 7
Date posted: July 8, 2011 ; Last revised: August 18, 2015