11. Harman, Matej: The precedent of Kosovo – law and politics



The Unilateral Declaration of Independence of Kosovo has created unusual turbulence between world politics and traditional principles of international law. In the past decades, the Balkans have experienced the most tragic conflict in Europe since World War II, evolving into an extraordinary transformation of state frontiers and the birth of several new states in a short period of time. The secession of Kosovo has been already considered by many authors, and still most of them are contradictory or even absolute opposites. This has led me to analyse the situation and try to conclude a stable legal argument. Kosovo is a complex issue, not merely because of the antagonist legal definitions and claims, but also because of unclear historical interpretation and unusual impact of political aspects incorporated within the legal argumentation, defined as political pragmatism, making the situation even more ambiguous.

 Nevertheless, by using simple legal instruments as interpretation of international treaties, general common law principles and case law, it is concluded that in accordance to the actual creation of a State, the Kosovars do not satisfy the requirements of the right to external self-determination of peoples due to the restrictive definition of people, as a nation; consequently, this characterises Kosovo Albanians as a minority not entitled to secession. This claim is supported with insufficient international recognition by the majority of world states, as well as blocked membership to the UN, a political consequence, but essentially because of the secession with no regard to its parent state, Serbia. Therefore, the secession has been committed from outside, which is the biggest barrier to general international recognition.

Creation of such a Statehood, despite claims of Western democracies, such as the USA or the UK, has established a clear legal precedent in international law and international relations, which has already been misused by Russia in the Georgian conflict last year. Claiming Kosovo as a case of sui generis according to the humanitarian intervention is not relevant, because this concept has been created only to stop and reverse human rights violations. In these terms, it is effectively being misused as a supporting argument for secession. Consequently, the implementation of the final settlement for Kosovo, in order to be lawful, cannot be modelled barely on principles of international law and at the same time not constituting a precedent.

Nevertheless, Kosovo’s best claim to full legal Statehood is based on the doctrine of repression and extreme circumstances together, but this will require substantial political action by the world community to be successful. Without such essential political action by other states – which is unlikely to happen in the foreseeable future – Kosovo will not be able to achieve legal Statehood. It is important to following of legal principles in order to avoid misusing of precedents in the future; otherwise the law just reflects the conduct of states with no regard to sustainable doctrines and authority of law. However, we might see a shift in legal interpretation in relation to the expected ICJ decision soon.