Secession in Theory and Practice: The Case of Kosovo and Beyond

Abstract

533 A. Introduction 533 B. Theory: Secession in International Law 536 I. Defining Secession 537 II. Secession and Fundamental Principles of International Law 540 1. The Principle of Self-Determination 540 2. International Human Rights and Remedial Secession 543 3. Sovereignty and Its Corollary Principles 548 III. An Intermezzo: On State Practice and Secession 552 IV. Is There a Right to Secession? 554 C. The Kosovo Practice 554 I. Kosovo in History 555 ∗ Ioana Cismas is a Ph.D. candidate in international law at the Graduate Institute of International and Development Studies in Geneva and a researcher with the Project on Economic, Social and Cultural Rights at the Geneva Academy of International Humanitarian Law and Human Rights. This article is a revised and updated version of the author’s M.A. dissertation. The author is grateful to Andrew Clapham, Andre Liebich, Claire Mahon, Christophe Golay, Daniel Huegli and the two anonymous reviewers for comments on earlier drafts. Such shortcomings as may remain are the sole responsibility of the author. GoJIL 2 (2010) 2, 531-587 532 1. History and Myth 555 2. Kosovo under Tito and the Titoists 557 3. The Milosevic Era 560 4. The Human Rights Situation (1990-1997) 562 5. The Kosovo Albanian Resistance and Milosevic’s Response 563 II. The International Community and Kosovo 566 1. The Response of the International Community Prior to 1998 566 2.The Breakout of Violence and the Response of the International Community 567 3. United Nations Interim Administration Mission in Kosovo 572 4. The Republic of Kosovo 577 D. Impact of Practice on Theory: the “Kosovo Precedent” and Beyond 581 I. Kosovo’s Independence as an Act of Remedial Secession? 581 II. And Yet the Exceptionality Discourse! 583 E. Conclusion: A Missed Opportunity 587 Secession in Theory and Practice: the Case of Kosovo and Beyond 533