This year will mark the 10th anniversary of the Kosovar declaration of independence on February 18, 2008. This is a good opportunity to deal with the eventful history of Kosovo, a small area in the Western Balkan as big as Upper Austria. Until now, there is a controversy over the legal status of Kosovo under public international law. The political tensions between Kosovo and Serbia continue. For example, most recently on July 21, 2018 Serbia refused Kosovo´s Minister for Foreign Affairs, Behgjet Pacolli, entry. Since Kosovo is no State, Belgrade argues, Kosovo cannot have a Minister for Foreign Affairs.
Dealing with Kosovo is fruitful in many ways, in my point of view, for it can help to understand the triggers for remedial secession, to explain the external and internal right of self-determination of minorities and to show how political participation and the right to secession are linked.
The eventful history of Kosovo will be portrayed at the outset of my seminar paper by discussing and highlighting selected aspects (2. A Short History of Kosovo – Selected Aspects). In a next step, the ICJ´s Advisory Opinion of July 22, 2010 concerning Kosovo will be presented and critically appraised by discussing two noteworthy separate opinions (3. ICJ Advisory Opinion of July 22, 2010). Afterwards, the controversial instrument of remedial secession will be discussed by examining the normative question about its application in the Kosovo case (4. Right to secession?).
At the end of my seminar paper a conclusion of the findings discussed will be provided.
Table of Contents
1. Introduction
2. A Short History of Kosovo – Selected Aspects
3. ICJ Advisory Opinion of July 22, 2010
4. Right to Secession?
5. Conclusion
6. Bibliography and Internet sources
Research Objectives and Key Topics
This paper examines the legal status of Kosovo following its unilateral declaration of independence in 2008. The central research question investigates whether the International Court of Justice's Advisory Opinion of 2010 adequately addressed the normative justifications for remedial secession in the Kosovo case.
- Historical context of the Kosovo conflict and ethnic relations.
- Analysis of the 2010 ICJ Advisory Opinion regarding international law.
- The theoretical debate surrounding the "right to remedial secession."
- The link between internal self-determination and statehood.
Excerpt from the Book
4. Right to Secession?
Cançado Trindade touches the issue of self-determination briefly at the end of his separate opinion. He states that the principle or the notion of self-determination of people has changed over time and expresses the humanization of public international law. It overcame the oppression of peoples in the historical context of decolonization and, nowadays, “applies in new situations of systematic oppression, subjugation and tyranny”. Although not saying it explicitly, Cançado Trindade – at least in my view – concludes that the Albanians in Kosovo exercised their external right to self-determination: “What has happened in Kosovo is that the victimized “people” or “population” has sought independence, in reaction against systematic and long-lasting terror and aggression, perpetrated in flagrant breach of the fundamental principle of equality and non-discrimination.”
Judge Yusuf in his separate opinion appended to the Advisory Opinion of the ICJ regrets that the ICJ did not focus on the question concerning “the possible existence of a right to self-determination” in general and more precisely in the Kosovo case. In doing so, the ICJ namely could have contributed to a clear-cut definition of such a right in post-colonial contexts, an examination on its normative content and could have helped to avoid potential misuse of such a right.
Leading principles in public international law are the principle of non-aggression (Article 2 para 4 UN-Charter), the principle of non-intervention (Article 2 para 7 UN-Charter) and the principle of territorial sovereignty of States. These principles protect existing States from falling apart. Whenever States fail or are not willing to protect their citizens within its borders from atrocities, persecution, discrimination and crimes against humanity, certain internationally protected rights of peoples, groups or individuals – like the right of self-determination – trump the territorial sovereignty of their State.
Chapter Summaries
1. Introduction: Outlines the historical and legal controversy surrounding Kosovo's independence and introduces the scope of the study.
2. A Short History of Kosovo – Selected Aspects: Provides an overview of the demographic changes, political shifts, and human rights struggles in Kosovo from 1918 through the 1990s.
3. ICJ Advisory Opinion of July 22, 2010: Analyzes the ICJ's ruling that the declaration of independence did not violate general international law while noting the court's omission of the right to secession.
4. Right to Secession?: Examines the normative arguments for remedial secession through the lens of separate opinions by ICJ judges and academic discourse.
5. Conclusion: Synthesizes the findings and reiterates the argument that the normative triggers for remedial secession in the case of Kosovo were indeed met.
6. Bibliography and Internet sources: Lists the academic, legal, and international documentation referenced in the paper.
Keywords
Kosovo, International Court of Justice, Remedial Secession, Self-determination, Public International Law, Milosevic, UN Security Council, Resolution 1244, Human Rights, Sovereignty, Statehood, Ethnic Cleansing, Territorial Integrity, UNMIK, Declaration of Independence.
Frequently Asked Questions
What is the fundamental focus of this paper?
The paper examines the legitimacy of Kosovo's unilateral declaration of independence in 2008 within the framework of public international law, specifically focusing on the 2010 ICJ Advisory Opinion.
What are the central themes covered in the text?
The central themes include the historical conflict between Serbs and Albanians, the normative concept of remedial secession, the right to self-determination of minorities, and the limits of state sovereignty.
What is the primary research goal?
The goal is to determine if the Kosovo case provides a valid example of remedial secession as a last resort against systemic oppression, despite the ICJ's refusal to address the right to secession directly.
Which methodology does the author use?
The author employs a legal-analytical approach, critically examining international legal documents, UN resolutions, and the separate opinions provided by ICJ judges.
What does the main body of the work address?
The main body traces the historical background of Kosovo, analyzes the specific legal findings of the 2010 ICJ Advisory Opinion, and explores the academic debate on remedial secession.
Which key terms best describe this work?
Keywords include remedial secession, self-determination, Kosovo, ICJ Advisory Opinion, and sovereignty.
How does the author evaluate the ICJ's Advisory Opinion?
The author argues that while the ICJ correctly found no violation of international law in the declaration of independence, it failed by not engaging with the core issue of a potential right to remedial secession.
What distinguishes the views of Judge Cançado Trindade and Judge Yusuf?
Both judges criticized the ICJ for failing to consider the historical context of the conflict (1989-1999) and the "exceptional circumstances" that may justify a group's claim to separate statehood.
- Citar trabajo
- Daniel Kurzmann (Autor), 2018, Kosovo and Remedial Secession, Múnich, GRIN Verlag, https://www.grin.com/document/540650
