A case for Kosovo? Self-determination and secession in the 21st century

Abstract

This article focuses on how the right of self-determination may be used to justify Kosovo's secession for Serbia in 2008. This investigation will occur in two parts. First, it will be ascertained whether the Kosovo Albanians are capable of invoking the right of self-determination. While some have maintained that only colonial entities and those under foreign occupation are holders of this right, it will be argued the right may also apply to certain subgroups within independent states, and that the Kosovo Albanians constitute one such group. Secondly, the question of whether the content of the right of self-determination includes the option of secession will be addressed. While it will be accepted that a right of self-determination must be qualified by the principle of territorial integrity, the assertion that a ‘remedial’ right to secession exists will be investigated. This will occur through considering evidence for such a right in the sources of international law, ultimately focusing on its development as a rule of custom. It shall be argued that states have resisted the explicit recognition of such a right, and have thus prevented its crystallisation into a rule of customary international law. Consequently it will be concluded that Kosovo cannot base its claim to statehood in a right to self-determination.