Kosovo’s Independence: A Legal Analysis
Kosovo Parliament
1. Secession and International Law
We must differentiate between peaceful separation by agreement between the central government and the population that wants to secede. Example: Czechoslovakia (International law allows separation by agreement). International law does not allow secession as a general rule (when part of the population enjoys some government locale and says that it wants to create an independent state).
Exceptions:
- In the case of occupied peoples/attachments (Baltic States)
- Oppressed peoples (suffering genocide, massive violations of human rights). A case recognized by the international community was Bangladesh (when it separated from Pakistan).
(What constitutes an international menace is a conflict between two or more states, not international affairs of the state.)
The second exception, oppressed people, can be applied to Kosovo. It is unlikely that this argument before the international community will prosper because they tend to defend security and stability.
Aland Islands (1920):
Arbitration between Finland, Sweden, and the Aland Islands. The Islands wanted to separate because they are made up of a Swedish population and said to belong to Sweden. The arbitration said no to defining territorial boundaries but said that if Finland efficiently and fairly protected this population, a legitimate separation could prosper (It’s the only sentence).
2. Conflict Resolution and Security Council Resolution 199
Declaring the security and territorial integrity of Serbia over Kosovo’s substantial autonomy, plus Serbia and Kosovo, is proposed to solve the conflict. Security Council resolutions are tools. This resolution of 199 remains in force in addition to Article 103 of the UN Charter: in case of conflicts in international treaties, the Security Council resolution prevails. What students say in favor of independence is that the Security Council cannot do more because its permanent members are divided: the USA, France, and Britain want independence, and China and Russia are against independence.
Causes Precluding Wrongfulness: Force Majeure
France, the UK, and the USA enter a force majeure situation by giving recognition (recognizing a state incurs international responsibility if it interferes in the internal affairs of states; non-recognition does not generate international responsibility).
3. Sui Generis Case and Self-Determination
It’s a case of sui generis (does not apply rules of secession; Serbia has no control over Kosovo since 1999). Since 1999, Kosovo has been under international administration, which has protected citizens, replacing Serbia. However, the replacement is temporary, so we must solve it. We can consider this issue of Kosovo as sui generis (we cannot say that it is an internal affair of Serbia).
Self-determination of peoples:
The internal composition of the general population cannot legitimize self-determination of the people understood as an independent state by the principle of self-determination of peoples.
Answer:
No, because this principle is restricted to calls for confiscations and territories. This is to legitimize the process of decolonization: the occupation was illegal.
Answer B:
Law: rights related to being a sovereign state (political, economic, territorial). This is not the principle of self-determination with substantial autonomy: it refers to an independent people.
4. Use of Armed Force and Countermeasures
No, the use of armed force is prohibited in international law, being an act contrary to mandatory law, and can never be used as a countermeasure. It may only take place by way of self-defense to repel an armed attack and will not be used as a countermeasure but as an attempt to repel an armed attack. Nor would the allies of Serbia be entitled to make any armed attack or use of force, as there is no danger of any international event. Only the UN Security Council would be able, if it were an international event of danger, to maintain security and peace, but it could not do it simply because it is an international crime that concerns the community as a whole, but because the act broke international security. An injured state has certain measures to compel the state concerned; these are: retaliation (as a legal measure), unfriendly reprisals, acts of self-righteousness of the injured state in response to an act contrary to the law of nations of the wrongdoing state, sanctions (as a punitive measure taken by a higher court), and countermeasures (illegal measures in response to other offenses). Non-injured states may take reprisals, such as the breaking of diplomatic steps with another state. If possible, the adoption of countermeasures by the other states that depend on it would be entitled to invoke the responsibility of the offender, and the injured party was requested by the adoption of the countermeasures in their interest.