Has the Advisory Opinion’s finding that Kosovo’s Declaration of Independence was not Contrary to International Law Set an Unfortunate Precedent?
For publication in: Marko Milanovic and Michael Wood (eds), The Law and Politics of the Kosovo Advisory Opinion (Oxford UP 2014, Forthcoming)
19 Pages Posted: 2 Jul 2014
Date Written: July 1, 2014
After Kosovo’s independence, politicians and the press of various territorial entities aspiring for independent statehood had pointed to the Kosovo ‘precedence’, for example Transdniestria, Nagorno-Karabakh, the Republika Srpska, and Palestine. Overall, both in the context of the Kosovo’s protracted path to formal independence, after its declaration of independence (DoI), in the course of the proceedings before the ICJ, and more recently, some political actors time and again highlighted the sui generis nature of the Kosovo issue, and denied that it would have (and should have) any precedential value, while others on the contrary relied on the ‘precedent’.
This chapter analyzes the merits of these claims. It concludes that the Advisory Opinion, while not being a precedent in a technical sense, had the unfortunate effect, due to its failure to spell out clear limits of secession, of not containing subsequent (erroneous) reliance on its meagre holdings. With regard to the possible ‘precedential’ value of the DoI and its implicit endorsement by states and the Court, the chapter concludes that the denial of ‘precedent’ had the legal effect of stalling the formation of a general opinio iuris on secession, but that the legal technique of distinguishing is a sufficient and normatively preferable strategy to contain other instances of imminent secessions.
Keywords: self-determination, secession, Crimea, sui generis argument, Advisory Opinion, precedent, customary international law, evolution of double standards
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