29 Oct 2010

'Secession' under International law

Creation of new States is always an interesting issue both in international politics as well as international. Under both, as distinct subject-matters of study, the facts in which a territory is carved out from an existing State so as to attain independent Statehood and the legal ramifications of such process provide an interesting insight over how international law is used as a tool to give sanction to international politics. Secession as a method of State formulation, thus finds itself as an interesting area of examination. In this context the recent secession of Kosovo and the decision of the International Court of Justice on the validity of the secession provides interesting insights into examination of this concept.

In this context we recommend Ioana Cismas who in the paper titled "Secession in Theory and Practice: the Case of Kosovo and Beyond" (published in Goettingen Journal of International Law) has succinctly brought out the peculiarities of secession as a concept under international law so as to examine the facts in which Kosovo was declared validly seceded in the context of the law and policy on the issue.

The abstract reads as under;
Since 17 February 2008 - the day of Kosovo’s declaration of independence from Serbia - it has become rather pressing to understand whether this act has legal precedential value and hence what its consequences are. This article carves out the place of secession in international law by appeal to fundamental principles and legal doctrine. It also explores major sociopolitical aspects in Kosovo’s history, from the battle of Kosovo Polje in 1389 to Security Council resolution 1244 (1999) that set up the United Nations Interim Administration Mission in Kosovo (UNMIK). By following these two analytical paths Kosovo is exposed as a case of remedial secession and thus as a potential legal precedent. While the elements of remedial secession are gathered, it is argued that states deprived this instance of practice of its precedential value and made it a legally insignificant act. In other words, the international community missed a rare opportunity to clarify the concept of remedial secession and to reassert its preventive force as a non-traditional human rights protection mechanism. 

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