The objective of this article is to examine whether the
current conduct of the community of states in the cases of
Kosovo, Abkhazia and South Ossetia has any implications on
international law. This question arises particularly in the
case of Kosovo, since many states have recognised its
separation from Serbia. Can the conduct of the community of
states be used as a legal precedent by other groups seeking
separation, e.g. in Azerbaijan, China, Georgia, Moldova,
Spain or Ukraine? What if more states were to recognise
Kosovo in the future? The focus of this paper will be to
consider the implications of the conduct of the community of
states on the interpretation of international treaties and
customary international law. In this respect, the conduct of
states in the cases of Abkhazia and South Ossetia in August
2008 will also be taken into account.
territorial integrity, self-determination, secession,
Kosovo, Abkhazia, South Ossetia, international law
In many states, ethnic groups are demanding separation from
their “mother state” by invoking the right to
self-determination of peoples, which was originally
developed within the context of decolonisation. This has led
to a general discussion concerning the extent to which
ethnic peoples, groups and minorities are entitled to rights
to self-determination and, in particular, rights to
secession. To date, the community of states has rejected
rights to secession for these groups and supported the
mother states concerned by upholding the principle of
Many states seemingly deviated from this strict course in
the spring of 2008 by recognising Kosovo and its separation
from Serbia. An important question is whether this conduct
has any implications on international law and whether it can
be used as a legal precedent by other groups seeking
separation, e.g. in Azerbaijan, China, Georgia, Moldova,
Spain or Ukraine. States that recognised Kosovo, including
Great Britain, Germany and the United States, have already
ruled out the interpretation of the Kosovo case as a
precedent. However, does this necessarily mean that the
recognition of Kosovo has no influence on international law?
Furthermore, Russia recognised the breakaway regions of
Abkhazia and South Ossetia as being independent from
Georgia. How should the fact that no other state – apart
from Nicaragua – has followed this example be interpreted?
The current article will examine these questions in greater
detail. The main focus will be to consider the implications of
the conduct of the community of states in the case of Kosovo in
the spring of 2008 on the interpretation of international
treaties and customary international law (part II). In this
respect, the conduct of states in the cases of Abkhazia and
South Ossetia in August 2008 is worth taking into account.
Further conclusions will emerge from this analysis (part III).
Subsequently, possible future scenarios will also be discussed
in the case of Kosovo and their hypothetical implications on
international law (part IV).
I. International Right to Secession – Until Late 2007
First of all, it is necessary to
outline how the international right to secession appeared prior
to the spring of 2008. The international right to secession
refers to the entirety of territorial separation rights which
result from international law and which can be exercised by
certain groups of the population against their mother states.
Such rights to separation and secession are recognised in
various constellations. The classic case is represented by
former colonies that were able to break free from their colonial
Secession is also compliant with international law if it is
based on a decision made by the entire population of the mother
Furthermore, this applies if the secession is anchored in the
national law of the mother state and follows the respective
A case is also regarded as legitimate if a region annexed by
another state in circumstances contrary to international law
declares its secession from the annexing state.
Within this context, the separation of the Baltic countries from
the USSR prior to its collapse is a prime example.
Rights to secession for ethnic
peoples, groups or minorities outside the context of
decolonisation are generally rejected if they pursue the
separation unilaterally, i.e. without consulting the entire
population or without any legitimacy through a national
secessionist procedure. As shown below, this constellation
applies to the case of Kosovo, which is why the present article
focuses on this
First and foremost, ethnic
peoples, groups or minorities are entitled to human rights and
the rights to minorities. They may also invoke the so-called
internal (defensive) right to self-determination.
This affects the free organisation of state order, and in turn
the relationship of a people or an ethnic group with the
government. However, there is consensus, at least in principle,
that the aforementioned groups are not entitled to an external
(offensive) right to self-determination. The external right to
self-determination is primarily geared towards constructing an
independent state of one’s own, namely secession. Such a right
to secession is rejected by pointing to the territorial
integrity of the mother state.
The prevailing view held by
international legal scholars does not allow for any exceptions
in this respect.
According to a strongly opposing view, mainly espoused in
Germany, ethnic groups should be entitled to a right to
separation, at least in extreme, exceptional cases.
Accordingly, an ethnic group should be entitled to a right to
secession if it undergoes suppression to an unbearable extent,
and if separation is the only available means as a last resort.
This would need to involve the most severe infringements, namely
crimes under international law, cases of systematic
discrimination and massive human rights
The state apparatus would need to be exposed as a torturous
regime of terror and a tyrannical system
in order for the existing duty of loyalty towards the state to
Some commentators also extend the
list of exceptions to forms of extreme political discrimination.
According to this viewpoint, ethnic groups should be entitled to
a right to secession if they are denied any form of
the political system.
Whether a right to secession under international law also exists
in strictly defined exceptions for ethnic peoples, groups or
minorities, depends upon whether the community of states grants
them such a right by treaty or by custom. These groups must
therefore be able to invoke either international treaties or
customary international law in order to exercise their
1. International Treaties
From a treaty perspective, the
United Nations Charter and the Covenants of Human Rights
(International Covenant on Civil and Political Rights;
International Covenant on Economic, Social and Cultural Rights)
are taken into consideration.
The right to self-determination is cited in all three sources
(Article 1.2 and Article 55 of the United Nations Charter,
Article 1 of both Covenants of Human Rights). If the right to
secession is to be derived from these sources, the existing
right to self-determination must be interpreted in a manner that
substantiates a right to secession.
This is impossible solely on the
basis of the wording of the texts. Forms of self-determination
may also be exercised within an existing state. In this respect,
the concept as such does not necessarily entail secession.
Regarding the UN Charter, it was already rejected as a basis for
pressing secession demands
in its drafting stage.
Indeed the parties to the Charter would clearly have been able
to extend the right to self-determination contained in the UN
Charter, as well as that in the Covenants of Human Rights,
further into a right to secession (the thinking behind Article
31.3 of the
This would have been the case if the states which were parties
to the treaties had been convinced in the past that the right to
self-determination included the right to secession. However, no
such conviction existed. As shown in part I.2 of the current
paper, state practice is characterised as being hostile to
This also applies to the practice of the states signed up to the
UN Charter and the Covenants of Human Rights. None of the three
documents has ever been invoked by the contractual states as a
basis for supporting secessionist movements.
A teleological interpretation is also worthy of consideration.
Concerning the UN Charter, it could be assumed that secession
represents the final resort. From a peace-keeping perspective,
the separation of a region may appear to make sense in a region
that is permanently subject to violent ethnic disputes. However,
it is debatable whether the permanent dismemberment of a state
constitutes a particularly effective peace-keeping measure.
Secession only serves the interests of the group seeking
separation and scarcely allows for compromise solutions on the
basis of which a long-term peaceful co-existence might appear
possible without international support. Moreover, separatist
movements worldwide would be encouraged to use force. In a
prolonged violent dispute, groups seeking secession would
interpret the UN Charter in their favour and call for secession
regardless of the actual circumstances. This would do scant
justice to the intentions behind the UN Charter.
In respect to the Covenants of Human Rights, it might appear
that the means of secession must be open to groups of
populations suffering the most severe forms of discrimination.
Beyond any doubt, these groups require effective assistance from
the community of states and the United Nations. The community of
states should intervene on humanitarian grounds in the mandate
of the UN Security Council
and, if necessary, set up interim international administrations
and take measures to address the problem at its root, namely
against the respective suppressive regime. However, on first
glance it could be unclear why it should also make sense to
permanently split up the mother state.
On the one hand, a new state created from secession can hardly
survive on its own and is dependent on intensive international
support. On the other hand, the Kosovo case shows that human
rights will be respected if long-term international engagement
is present. The aim of the Covenants of Human Rights can
therefore be achieved through other means. If these means are
proven to be successful, the Covenants of Human Rights can no
longer be referred to as a basis for dismembering the mother
Consequently, it is highly
debatable whether rights to secession can be inferred from the
United Nations Charter or the Covenants of Human Rights.
Moreover, there are good reasons in favour of rejecting rights
to secession, even in exceptional situations. Otherwise there is
a danger that ethnic groups might be too quick to interpret
exceptional rules in their favour and incite the mother states
in question to take discriminatory countermeasures and
preventative steps. This does not correspond to the spirit of
international treaties which is primarily focused on prevention.
As a result, there are strong arguments against the exceptional
granting of secession through the UN Charter
and Covenants of Human Rights.
2. Customary International Law
Rights to secession under
international law for ethnic peoples, groups or minorities could
at best arise from customary international law. The classic
requirements of a norm under customary law are an appropriate
practice of the states, as well as the firm belief that this
practice meets a legal obligation (opinio juris sive
Proponents of legal schools of thought espousing natural law
only consider the subjective element, namely the opinio juris,
to be essential.
Proving the existence of a norm under customary international
law frequently raises difficulties. For this reason, it is often
correctly deemed satisfactory for so-called "fundamental
principles of international law"
to arise from international relations or fundamental treaties
(e.g. UN Charter, Treaty of Maastricht on European Union). Here
it is not a matter of so-called general legal principles
resulting from national legal systems, but of norms belonging to
customary law. To be precise, determining such principles does
not represent any departure from the classic approach of
customary international law, but further simplifies the proof of
the existence of a customary norm.
It is beyond dispute that no clear
state practice, common practice throughout the state and
opinio juris in favour of ethnic groups seeking secession,
was visible up until the end of 2007.
Moreover, even proponents of an exceptional right to secession
agree that state practice was hostile to secession until that
Accordingly, states did not even offer any rights to secession
to ethnic groups or minorities which were proven to be the
victims of severe human rights violations. Acts of violence
infringing on human rights may have been broadly censured;
nonetheless, the community of states underlined the territorial
integrity of the mother states exerting this violence. Pertinent
examples are the cases of Eritrea,
and Kosovo. Within the UN Security Council resolution 1244
(1999) on Kosovo, this notion was formulated as follows:
“Condemning all acts of violence against the Kosovo
population as well as all terrorist acts by any party, …
Reaffirming the commitment of all Member States to the
sovereignty and territorial integrity of the Federal Republic of
Yugoslavia and the other States of the region, as set out in the
Helsinki Final Act and annex 2, …”
Regardless of this rejecting stance of states and the prevailing
view, some legal scholars presuppose the existence of rights to
secession in exceptional cases, as previously mentioned. This
could be dogmatically explained by accepting the premise that an
exceptional right to secession constitutes a “fundamental
principle of international law”. This principle could arise from
fundamental international documents. It is indeed questionable
whether this applies, as states are not neutral in regard to
secessions, but rather disapprove of them.
Proponents of exceptional secession point first and foremost to
a paragraph contained in the Friendly Relations Declaration,
which is not binding per se. This “saving clause” states:
“Nothing in the foregoing paragraphs shall be construed as
authorizing or encouraging any action which would dismember or
impair, totally or in part, the territorial integrity or
political unity of sovereign and independent States conducting
themselves in compliance with the principle of equal rights and
self-determination of peoples as described above and thus
possessed of a government representing the whole people
belonging to the territory without distinction as to race, creed
The upshot of this is that the declaration should not constitute
any warrant to question the territorial integrity of a state
which acts according to the self-determination of peoples and
has a government representing all groups of the population.
According to this line of reasoning, it does not necessarily
follow that ethnic groups should be granted a right to
separation in extreme, exceptional cases.
It is already unclear which groups of the population fall under
the concept of a “people”, and particularly whether ethnic
groups and minorities are also included. It is impossible to
provide a conclusive answer to this as the community of states
and international institutions do not use any firm criteria to
define a “people”.
In addition, the preamble to the declaration asserts that any
attempt aimed at the partial or total disruption of the national
unity and territorial integrity of a state is incompatible with
the purposes and principles of the UN Charter
and is in turn incompatible with the spirit of the declaration.
Accordingly, this calls into question whether the saving clause
can be interpreted in favour of groups seeking separation.
Furthermore the saving clause does not contain any exact legal
conditions justifying a separation. Such an unspecified right to
secession would leave the doors wide open to the possibility of
abuse, and would be difficult to reconcile with the primary aims
of the declaration, namely to preserve security and keep the
In order to encounter these risks effectively, it is not
sufficient to affirm the existence of a right to secession, but
to limit its scope and to make it conditional upon
non-regulated, purely academic and inconsistent criteria. Even
legal scholars representing the view that the right of secession
applies in exceptional cases concede that ultimately, on the
basis of the saving clause, it is impossible to formulate clear,
definable and universal conditions for an exceptional secession.
It would ultimately be essential for any perceived
interpretation of the saving clause in favour of the exceptional
right to secession to reflect a “fundamental principle of
international law” (see above)..
Only in this case could a legal claim be construed on the basis
of the Friendly Relations Declaration, which actually
constitutes “soft law”. It would be necessary for such a
principle to gain general acknowledgement and to be supported by
a far-reaching and clearer combination of documents. Otherwise
its character could hardly be approved as a basic norm of
customary international law. Due to the lack of clarity and the
contentiousness of the saving clause in the Friendly Relations
Declaration, the declaration does not in and of itself
constitute grounds for asserting the existence of a fundamental
principle of exceptional secession.
In the final analysis, other
documents may also not be of use in this respect. The CSCE Final
Act (Helsinki Final Act) of 1975 and the OSCE Charter of Paris
of 1990 are examples of this. Both documents assert the right to
self-determination of peoples. The CSCE Final Act even mentions
the possibility of being able to determine the external
political status for oneself.
However, the documents do not provide any clearer information on
who should wield this right – whether that be the peoples of
states, colonised peoples or ethnic peoples, groups and
minorities. Furthermore, both documents stress that the right to
self-determination is only to be respected if it is exercised in
accordance with the principle of territorial integrity.
There is no basis for granting an independent right to secession
to override the principle of territorial integrity.
The lack of authoritative documents in favour of a right to
secession was not addressed by the declaration of the World
Human Rights Conference of 1993, and the declaration to
commemorate the 50th anniversary of the United
Nations. Both declarations, which took place after the Friendly
Relations Declaration, contain a saving clause which is
comparable to the Friendly Relations Declaration and is
therefore just as imprecise. This means that the community of
states, fully aware of the “contestability” of the saving clause
in the Friendly Relations Declaration, was not able to confirm
the existence of an exceptional right to self-determination by
clarifying and enshrining it in the two subsequent declarations.
Nor can the Vienna Convention on
the Succession of States – often cited by proponents of the
opposing viewpoint – be presented as a convincing argument.
Although the Vienna Convention establishes “separation” as a
form of state succession, this does not necessarily mean that
ethnic groups should have rights to secession.
Consequently, it cannot be assumed that international documents
go against state practice, which is hostile to secession, and
that they reflect the existence of a principle of exceptional
secession. This deduction is consistent with the prevailing
international view – at least right up to the end of 2007 – that
international law did not provide any rights to secession for
ethnic peoples, groups and minorities. Moreover, the latter were
merely entitled to established human rights and minority rights,
and, potentially, internal rights to self-determination such as
the right to autonomy.
3. Alternative Approaches to Secession
Alongside the discussion on the
right to self-determination of people, other approaches are
argued by individual authors. These approaches are based on the
premise that the separation of ethnic groups is supposedly
legitimate in exceptional cases. This applies to constellations
in which the mother state rejects every compromise solution in a
conflict situation, or when there is no realistic prospect of a
conflict being resolved, especially when the methods of peaceful
conflict resolution appear to have been exhausted.
The arguments are merely the projections of individual authors
and have not yet gained any general recognition in theory or in
Even if it is not possible to deal with such approaches in any
detail here, there appears to be grounds for scepticism. In the
fairly recent past, the conduct of states in secession conflicts
reflected very diverse conflict resolution strategies and
These scarcely allow for any clear general legal conclusions to
be reached. As shown below, this was confirmed in the case of
Set against this background, it is difficult to identify
convincing rules of customary law.
II. Conduct of the Community of States in the Case of Kosovo in
Spring of 2008, and Implications on the International Right to
1. The Kosovo Conflict
the causes of the Kosovo conflict – like many other ethnic
conflicts – can be traced to the fact that an area is claimed by
several groups of the population primarily for historical and
ethnological reasons. For Serbians, Kosovo represents an
essential constituent part of Serbia, particularly due to the
Battle of Kosovo in 1389, in which Christian Serbians fought
against the troops of the Ottoman Empire. The Kosovo Albanians,
who are predominantly Muslim, also lay claim to Kosovo because
of the Albanian majority living there.
From 1449 until 1912, Kosovo was part of the Ottoman Empire.
After its liberation from the Turks it was split up between
Serbia and Montenegro, and after the Second World War it was
assigned to the constituent republic of Serbia within
Yugoslavia, which had become Communist in the meantime. In light
of the hostilities between Serbians and Albanians, the Yugoslav
leadership declared Kosovo to be an autonomous
territorial entity whose status was continually extended. In
fact, Kosovo held similar status to the republics of Yugoslavia,
but it never received their formal standing.
The Kosovo Albanians therefore continued to demand their
independence more vehemently. This led to an increase in
tensions between the Albanian majority and the Serbian minority,
as well as early trouble at the beginning of the 1980s. The
migration of tens of thousands of Serbians and Montenegrins over
the following period unleashed Serbian fears, which the future
Serbian President Slobodan Milosevic used to his advantage in
1986. This subsequently led to a restriction of Kosovo's
autonomy and reprisals, breeding further tensions. In 1989 the
autonomy of Kosovo was completely suspended.
From 1996, the Albanian resistance grew more radical under the
Kosovo Liberation Army (KLA/UÇK).
The tensions between Serbian special forces and the Albanian
UÇK adopted a form resembling war. Kosovo’s civilian
population was driven into exile, and acts of violence were
carried out towards them by the Serbians. After fruitless
international attempts to intervene, NATO conducted air strikes
that were intended to put an end to the expulsions.
Since the end of the war in 1999, Kosovo has been placed under
the UN Interim Administration Mission
in Kosovo (UNMIK). Security has been upheld by
international peace-keeping troops (KFOR) under NATO leadership.
Tensions between the Albanian and Serbian populations still
persist. The most serious disturbances occurred in the divided
city of Mitrovica in 2004, and were mainly directed against
Serbians. Right up to the spring of 2008, Serbia and Kosovo were
unable to reach an agreement on the status of the breakaway
province. Kosovo's own administration declared independence on
17 February 2008. For Serbia, this declaration remains without
any legal effect, and Kosovo should still belong to Serbia.
2. Conduct of the Community of States
The community of states did not
react to the Kosovo conflict until 1998, when warlike conditions
broke out. The Kosovo Contact Group, consisting of France,
Germany, Great Britain, Italy, the Russian Federation and the
United States, imposed an arms embargo and froze Serbian bank
Furthermore, the UN Security Council passed resolution 1160
(1998), in which Serbian attacks on Albanian civilians were
condemned, as were terrorist acts committed by the Albanian UÇK.
At the same time, the resolution stressed that any solution to
the Kosovo question would be based on the territorial integrity
of former Yugoslavia and would take into account the Albanians'
position under international law. The preamble to the resolution
emphasised the continuing sovereignty and territorial integrity
of Yugoslavia in even clearer terms. The resolution was
manifestly not a question of giving a legal or political
foundation to the secession attempts of the Albanians, but to
put a stop to the violent attacks and expulsions.
The NATO air strikes of 1999 were also indicative of this
objective. They were solely aiming to end the violence. On an
international level, the solution to this conflict seemed to be
extensive autonomy for Kosovo as enshrined in resolution 1244
(1999) of the UN Security Council.
A right to self-determination, which could have led to the
territorial separation of Kosovo, was also rejected here.
In 2006, intervention talks began under UN auspices. These did
not produce any result as both Serbia and the Kosovo Albanians
stuck to their respective positions. In February 2007, the UN
special envoy Ahtisaari presented a proposal under which Kosovo
was supposed to receive the status of a
A UN Security Council resolution was drafted, but this was not
supported by Russia, which cited the territorial integrity of
Serbia, and was therefore rejected. Another attempt to
intervene, undertaken by a troika consisting of the European
Union, Russia and the USA in August 2007, also failed at the end
of 2007. The Kosovar leadership then set its aims to announce
breaking away from Serbia in 2008, a step which ultimately
occurred in February 2008.
The community of states has not reacted unanimously to the
unilateral separation of Kosovo from Serbia.
Several states recognised Kosovo's independence mainly due to
the need to resolve the conflict (as detailed below in part II.3
and part IV). These states include Albania, Afghanistan,
Australia, Belgium, Denmark, Germany, France, Great Britain,
Ireland, Italy, Austria, Peru, Switzerland, Turkey and the USA.
Up until now, 58 countries have formally recognised Kosovo's
Other countries have refused to acknowledge Kosovo's secession
on the grounds of upholding the territorial integrity of Serbia.
These states include Argentina, Azerbaijan, Bolivia,
Bosnia-Herzegovina, China, Georgia, Kazakhstan, Romania, Russia,
Slovakia, Spain, Sri Lanka, Serbia, Venezuela and Vietnam.
Other states (e.g. Egypt, India, Iran and Iraq) have adopted a
neutral position to date. Some – including Brazil, Chile,
Greece, Mexico and South Africa– have at least voiced their
scepticism concerning Kosovo's independence and suggest further
3. Implications on the International Right to Secession
recognises various constellations in which the secession of a
territorial part of a state may be acknowledged as legitimate.
These include the territorial separation within the context of
decolonisation, separation based on the decision taken by the
entire population of the mother state, secession arising under
national law, or independence for an area which was originally
unlawfully annexed (see part I).
Kosovo's secessionist endeavours do not fall into these
categories. The Kosovo Albanians can neither invoke a decision
taken by the entire Serbian population nor an intra-state right
to secession. Even if the constitution of former Yugoslavia
provided for the possibility of secession, this applied to
republics of the union and not to autonomous regions such as
Kosovo. Nor can it be assumed that Serbia necessarily annexed
Kosovo in unlawful circumstances. The region was split up in
1912 after Serbia and Montenegro defeated the Turks. At that
time, the modern prohibitions on the use of force and
annexations did not yet apply under the regime of classic
international law. In the early 20th century, wars
waged by sovereign countries were still regarded as legitimate (ius
and, in the case of annexation, were considered to be a legal
means of obtaining territory.
In the subsequent course of history, Kosovo was assigned to the
republic of Serbia inside Communist Yugoslavia. On this basis
and according to the principle of uti possidetis,
it remained a composite part of Serbia after the break-up of
The case of Kosovo is therefore a constellation in which an
ethnic group unilaterally decided to break away from its legal
mother state. The conduct of the community of states in the case
of Kosovo in the spring of 2008 might at best have an impact on
the assessment of such constellations under customary
international law. This issue arises if the widely-held view
that Kosovo Albanians have hitherto not been entitled to any
right to separation is adopted. On the one hand, commentators
rejecting rights to secession for ethnic groups under any
have been drawn to this conclusion. On the other hand, this is
also the view espoused by some commentators who accept the right
to secession in exceptional circumstances as a last resort in
the face of severe human rights infringements.
In their opinion, the safeguarding of human rights has already
been restored by UNMIK, meaning that no desperate situation
existed which may have necessitated secession as a final means
of recourse to protect human rights.
However, even for commentators who have already accepted a right
to secession for Kosovo Albanians prior to 2008,
the conduct of the community of nations is of interest, as it
possibly confirms the legal view they have held.
There are possible normative implications in two respects:
first, implications on the interpretation of international
treaties, and second, implications on customary international
Implications on the Law of International Treaties
According to Article 31.3.b of the
Vienna Convention on the Law of Treaties (VCLT), the conduct of
states in the application of an international treaty should be
considered when it is interpreted. State practices may therefore
also affect the interpretation of international treaties. One
might question whether the conduct of the community of states in
the spring of 2008 had an impact on the interpretation of the
right to self-determination, as resulting from Article 1.2 and
Article 55 of the UN Charter and Article 1 of the Covenants of
Human Rights. It is theoretically conceivable that in the case
of Kosovo, state practice cemented the right to
self-determination as provided for in these articles to become a
right to secession for ethnic peoples, groups or minorities
under certain conditions. Hitherto this had not
Article 31.3.b of the VCLT, which by analogy is also applicable
to the UN Charter,
requires for such an interpretation that the signatory states
establish a common agreement on the meaning
of a treaty when applying it.
For this to be the case, the signatory states of the UN Charter
and the Covenants of Human Rights would have to have assumed
that the separation of Kosovo from Serbia is based on Article
1.2 and Article 55 of the UN Charter and on Article 1 of the
Covenants of Human Rights.
However, this is not the case. The
signatory states of the UN Charter and the Covenants of Human
Rights are as divided as the entire community of states in
respect to the legality of Kosovo's separation. Signatory states
(e.g. Russia, Serbia, Spain) which did not recognise Kosovo made
it clear that Serbia's territorial integrity should be
protected. This made indirect reference to the validity of
Article 2.1 of the UN Charter (sovereign equality of states)
which enshrines respecting a state's territorial integrity as a
basic principle of the UN.
Any interpretation of the UN Charter and the Covenants of Human
Rights in favour of a right to secession which is able to
contravene the principle of territorial integrity was thereby
Signatory states that acknowledged
Kosovo (e.g. France, Germany, USA) have not stated clear legal
reasons for Kosovo's separation or their positive reaction to it.
In the first instance they pointed out that only recognition by
several states can lead to enduring stability in the region, and
also that any solution by means of negotiation seems hopeless.
They scarcely referred to the UN Charter or the Covenants of
Human Rights. One reference to the UN Charter is made in the
Declaration of the Council of the European Union of 18 February
“The Council reiterates the EU's adherence to the principles
of the UN Charter and the Helsinki Final Act, inter alia the
principles of sovereignty and territorial integrity and all UN
Security Council resolutions. It underlines its conviction that
in view of the conflict of the 1990s and the extended period of
international administration under SCR 1244, Kosovo constitutes
a sui generis case which does not call into question these
principles and resolutions.”
However, it was not clear whether
the Council of the European Union, and with it the Foreign
Ministers of the EU Member States, regard the UN Charter as a
legal basis for the secession of Kosovo. Moreover, they
specifically referred to the extensive and paramount validity of
the principle of territorial integrity. In this context, it
remains unclear why the separation was regarded as a special
case that numerous EU Member States obviously regarded as
conforming to international law.
The mere reference to the events of the 1990s and the period of
international administration does not provide any clarity from a
legal perspective. In any case, the declaration cannot be used
as explicit proof of the legitimacy of Kosovo's separation on
the basis of the UN Charter.
As a result, there is no identifiable overriding conviction on
the part of the signatory states that the UN Charter or the
Covenants of Human Rights can be interpreted in favour of a
right to secession for ethnic peoples, groups or minorities. On
the contrary, states that rejected Kosovo's independence
referred to the full validity of the principle of territorial
integrity. Yet even states that supported Kosovo's independence
did not refer to these treaties, thus raising the issue of the
legal basis on which the secession was recognised. Accordingly,
the conduct of the community of states in the Kosovo question in
the spring of 2008 cannot have had any identifiable implications
on the interpretation of applicable international treaties.
b.Implications on Customary International Law
The next point examines the
possible implications of the conduct of the community of states
in the Kosovo case on customary international law. The conduct
of states represents the source and the engine of customary
international law. To establish a customary norm, a state
practice is required in addition to the conviction that the
practice corresponds to a legal obligation (opinio juris).
Advocates of natural law and consensus-oriented jurisprudence
only regard the opinio juris as essential. The existence
of a customary norm in the form of a “fundamental principle of
international law” can already stem from basic international
Since no new basic documents have
been enacted in respect to Kosovo, there is no departure from
the above conclusion that international documents do not prove
the existence of a right to secession for ethnic peoples, groups
and minorities in the form of a fundamental principle of
Therefore, it is necessary to consider whether there is any
identifiable practice and/or opinio juris which documents
the creation of a right to secession for ethnic groups in
At least until the
end of 2007, this was not the case.
However, this perspective probably changed during the spring of
2008. First of all, this perspective requires sufficient state
practice. The conditions for this are highly contentious: at the
very least, this must involve a de jure or de facto manner of
conduct of states, which is of a certain duration, uniformity
Objections cannot be raised to the
creation of a customary norm if the manner of conduct is only
observed over a short period of time.
As such, the conduct of states in the spring of 2008 would have
been more than sufficient to establish a customary norm.
A manner of conduct is seen as
being uniform if a representative number of subjects governed by
international law tend to conduct themselves in a similar
fashion, and if no noteworthy
differences can be ascertained.
A manner of conduct is seen as attaining sufficient coverage if
it is at least supported by those states whose interests are
It is insufficient for only the directly opposing parties to
act. Nor does it, on the other hand, depend on all subjects
governed by international law.
The key criterion is whether there is a uniform and prevalent
manner of conduct to support the existence of a right to
secession under certain conditions. As mentioned in part II, the
community of states is extremely divided.
In addition to the 58 countries recognising Kosovo, there were
also several that rejected its independence. Others adopted a
neutral stance, suggested further negotiations or are still
awaiting further developments. This means that the majority of
countries have not yet recognised Kosovo. Nor has the state
practice of the 58 recognising countries been accepted without
any opposition. Moreover, their practice has been clearly
rejected or sceptically opposed. Therefore, there can be no talk
of a uniform manner of conduct on the part of the states.
Furthermore, it should be noted that the countries refusing or
opposing the recognition of Kosovo with scepticism were those
that are potentially or actually affected by internal separation
movements. The creation of a customary norm is conditional on
their positive stance towards the secession. Precisely the
interest of these nations would have been decisively affected by
the creation of a right to secession under customary law. In
addition to Serbia, these countries include Azerbaijan, China,
Georgia, Moldova, Romania, Russia, Slovakia, Spain, Sri Lanka
and Ukraine. As a result, the conduct of states is lacking not
just in uniformity, but also in coverage. Consequently, there is
insufficient state practice for ethnic groups to be able to
legally justify their secession ambitions.
There is also a deficiency concerning the necessary opinio
juris. This is based on a uniform and prevalent action on
behalf of the states and only focuses on their motivation. In
the face of disagreement between states in the case of Kosovo,
it can not be assumed that the community of states was or is
entirely convinced that ethnic groups should be entitled to
rights to secession under certain circumstances. It could be
implied that such a view is held by the countries that
recognised Kosovo, but even this stance is partially unclear
(see part IV). However, their sole perspective is not enough to
justify the creation of a customary norm. This fact remains
equally unchanged when considering that the understanding of the
legal position is also partially unclear in the countries
refusing to recognise Kosovo. At the very least, this applies to
Russia which directly and indirectly supports secession attempts
elsewhere, such as the cases of Abkhazia, South Ossetia and
All things considered, it can not ultimately be assumed that
there has been a prevalent conviction on the part of the
community of states under which ethnic peoples and groups are
entitled to rights to secession under certain circumstances.
Accordingly, the conduct of states in the spring of 2008 did not
have any documentable implications on customary international
law. There was a lack of sufficient state practice as well as
the necessary legal conviction. Hence, even the recognition of
Kosovo was unjustified and unlawfully in terms of international
law due to an insufficient legal basis.
III. Conduct of the Community of States in the Cases of Abkhazia
and South Ossetia in Summer of 2008, and Implications on the
International Right to Secession
Despite all historical, political and social differences, the
cases of Abkhazia and South Ossetia reveal strong parallels to
the case of Kosovo in view of the right to secession. Like
Kosovo, Abkhazia and South Ossetia were subordinate, autonomous
areas within a former Socialist multi-ethnic state. When signs
of reform and decay began to emerge throughout the entire
Eastern Bloc at the end of the 1980s, strong independence
movements were also erupting in Abkhazia and South Ossetia. When
this occurred, neither region had any more right than Kosovo to
claim secession under national or international law. Against
this background, the community of states continually refused to
recognise the independence of these two breakaway regions from
Georgia. These regions were not granted rights to secession, nor
were the de facto regimes that were formed in the meantime
accepted as states.
In the course of the
Russia-Georgia conflict in August 2008, Russia recognised the
independence of Abkhazia and South Ossetia. Russian President
Medvedev referred to the free will of the Abkhazian and South
Ossetian people. He claimed Georgia had failed to bring about a
for many years.
According to Russia, independence was the only way to protect
Abkhazia and South Ossetia. The UN Charter, the Friendly
Relations Declaration and the CSCE Final Act of 1975 were drawn
upon to support this position.
In light of these assertions and the aforementioned documents,
the Russian line of argument was not based on the de facto
status existing in Abkhazia and South Ossetia in the meantime.
It referred to the highly controversial external right to
self-determination of peoples, the existence of which Russia had
denied in other cases, such as Kosovo. Nicaragua was the only
country to follow the Russian example and recognise Abkhazia and
South Ossetia. In fact, many countries rallied against the
course taken by Moscow. Even countries which had supported
Kosovo's independence, such as France, Germany and the USA,
vehemently rejected the independence of both regions. They
referred to the need to protect the territorial integrity of
The conduct of Russia was strongly condemned.
In line with part II’s conclusion, the recognition of Kosovo did
not change anything regarding the position of the community of
states that were hostile to secession. The vehement rejection of
the Russian line of argument in the cases of Abkhazia and South
Ossetia particularly highlighted how no legal foundation had
been laid for secessionist claims advanced by individual groups
within the population. Russia failed to convince with its
arguments aimed at affirming the Abkhazians’ and South Ossetians’
external right to self-determination. What is more, Russia was
condemned for recognising the breakaway Caucasus regions.
This underlines to what extent there still remains a lack of
uniformity and widespread coverage of practice and a
corresponding opinio juris on the part of states.
Accordingly, there are still no grounds for approving the
existence of a right to secession for certain groups within the
IV. Scenarios and Conceivable Future Implications of the Case of
Kosovo on the International Right to Secession
Developments in the current secessionist conflicts are still
ongoing. This does not just apply to Abkhazia and South Ossetia
but also to Kosovo. Particularly in the case of Kosovo, it is
conceivable that other countries will sooner or later follow the
course of the USA and numerous European states, and recognise
Kosovo. The crucial question will then be whether a right to
secession under certain circumstances is established on this
The recognition of Kosovo by other
nations should have no bearing on the interpretation of
international treaties. Even states that have already recognised
Kosovo did not explain their conduct on the basis of the UN
Charter or the Covenants of Human Rights.
It is therefore unlikely that other states will refer to the
treaties to support their stance. It seems as if the lack of a
firm treaty basis is also currently preventing them from
accepting Kosovo's independence.
Apart from this, it is disputable
whether a right to secession under customary law will be created
within the process of Kosovo's recognition by a broader range of
countries. After all, the states’ divided opinion on the Kosovo
question is currently preventing a corresponding right from
developing. However, at present there are grounds for doubt as
to whether this schism between states will be overcome in the
near future, and whether a uniform, pervasive practice will be
observed. For sufficient uniformity to be seen to exist, it
would be necessary for Kosovo's independence to be recognised by
the very states which are actually or potentially affected by
separation movements, as their interests would be particularly
compromised by a possible
normative validation of the right
However, these states – among them China, Serbia, Russia, Spain
and Ukraine – vehemently denied Kosovo's independence or were
particularly critical of its unilateral defection from Serbia.
At present, there is no prospect of these stances changing.
even if a scenario, in which states like China,
Russia, Spain and
Ukraine recognized Kosovo, were
to be accepted, it remains questionable whether the opinio
juris needed to justify a norm by international customary
law would apply.
This would constitute the remaining essential condition for a
right to secession to be approved under customary law.
For a corresponding opinio juris we would have to assume
that in recognising Kosovo, the states would be convinced that
they were observing a legal obligation
or considering this recognition to be appropriate, as it
would be legitimate due to specific reasons grounded in the law
of secession. Whether this has been the case until now requires
As a matter of principle, it may
be contended that firm legal convictions underlie the
recognition of a region as a state.
Normally, one of the prime objectives behind recognition is the
elimination of doubts concerning the legal position
of such a region.
Therefore, it could be assumed that recognition contains a
juristic element. This applies to so-called de facto
recognition, but also to de jure recognition. Unlike the
latter, the former should only have temporary implications.
Furthermore, it may be assumed
that states generally wish to conduct themselves in accordance
with international law and would only confirm the independence
of a territory on the assumption that statehood has fully been
established or the conviction that secession from the mother
state is legitimate. According to general opinion, a region
seeking secession may be accepted in principle if it meets all
qualitative conditions of statehood, especially if a new
effective government emerges.
Prior recognition would constitute interference in the internal
affairs of the mother state in question and would therefore be
contrary to international law.
In the case of Kosovo, the existence of its own effective
government could not be ascertained. The latter was still
supposed to be under construction. Kosovo was still, and
effectively continues to be, administered by the international
interim administration (UNMIK). In addition, Serbia did not lose
its sovereignty because of the international interim
As such, it was essential for at least a right to secession to
exist on the basis of which Kosovo could break free from Serbia
prior to the construction of its own effective statehood.
Accordingly, the conduct of the states recognising Kosovo
arguably leads to the deduction that they assumed the existence
of such a right to secession. At the very least, it could be
presumed that these states were hoping for their conduct to be
copied by other states, thereby enabling the creation of a novel
right to secession.
Viewed from this perspective, the conduct of states recognising
Kosovo genuinely seems to reflect legal convictions. However,
the deduction at hand is drawn from a general approach, and this
does not automatically allow for any assumptions concerning the
creation of a certain right to secession. Processes of secession
are extremely complex and multi-faceted. Circumstances normally
allow for various interpretations in respect to the legal and
political motives of the states. Yet clarity must ultimately
prevail in this respect: only concrete, identifiable legal
motives enable one to reconstruct the clear structure of a right
to secession under customary law and its conditions. Customary
law is founded upon specific manners of conduct and reasons for
behaving in this way. General arguments may be able to indicate
a trend, but they can not be a substitute for a legal and
sociological analysis of
individual cases, and do not refute the conclusions arising from
The motives expressed in the
Kosovo case must be more precisely considered. It is significant
that the states that have already recognised Kosovo have been
reluctant to reveal their reasons for doing so. For instance, in
its Declaration on the Independence of Kosovo, the Council of
the European Union alluded to the need for the establishment of
stable relationships in the western region of the Balkans.
Furthermore, it referred to the conflict in the 1990s and the
long period of interim administration.
The German government made the following declaration: “After
long years of trying, no other intervention attempts had enjoyed
any success. Therefore, speedy recognition of the Republic of
Kosovo by the greatest possible number of states is the only way
to bring enduring stability to the region”.
Referring to two decades of violence and conflict, British
Secretary of State for Foreign and Commonwealth Affairs David
Miliband said: “There is a very strong head of steam building
among a wide range of EU countries that do see this as the piece
of the Yugoslav jigsaw and don't see stability in the western
Balkans being established without the aspirations of the Kosovar
people being respected”.
Swiss President Couchepin regarded Kosovo's independence as a
solution preferable to all others.
The Austrian Foreign Ministry expressed itself in similar terms
and characterised the status quo of Kosovo as the unsustainable
and constant source of instability.
The reasons expressed for the recognition of Kosovo can be
summarised as follows:
- the need for regional stability and a solution to the
- the view that a peaceful solution to the conflict and
international intervention have failed,
- the view that Kosovo's independence represents the best
- human rights abuses and expulsions on a massive scale (events
in the 1990s),
- continued exclusion of the rightful sovereign by the
international interim administration, and
- Kosovo as a piece
in the multi-ethnic jigsaw of former Yugoslavia.
The motivation behind the
recognition of Kosovo was clearly much more complex than openly
However, there is no need for this discussion to focus on
possibly concealed foreign policy motives. Instead, it is
essential to gauge whether any legal convictions emerge from
these identifiable motives. Otherwise the discussion would
encroach upon the realm of political hypotheses which would be
far too speculative for legal evaluation.
Matters are complicated by the fact that no exact deduction can
be made as to whether any legal importance was attached to one
or several of the motives cited. It was not clear whether the
pertinent legal reason was seen as the Kosovo Albanians’
external right to self-determination, the permanent de facto
exclusion of Serbian sovereignty by the interim administration,
the failure of the status negotiations or a combination of these
aspects. In this regard, the states recognising Kosovo
deliberately failed to lay their cards on the table. There was
no explanation as to whether the reasoning was based purely on
external security, economic and social grounds, or if it were
also a product of legal convictions.
In particular, the declaration of
the Council of the European Union is revelatory, as it hinted
that the council envisaged the possibility of Kosovo being
recognised in conformity with international law. However, within
this context it was not attributed to legal considerations, but
to aspects which clearly reflect external security motives. It
was a matter of re-establishing stability in the Balkan region.
This failure to adduce clear and more precise legal reasons was
symptomatic of the states recognising Kosovo. Any reasoning
allowing for generally applicable legal conclusions was avoided
outright. In particular, there was no talk of any external right
to self-determination for the Kosovo Albanians. Even the
reference to human rights violations in the 1990s sheds no light
on the question, as these did not give the community of states
any cause to grant the Kosovo Albanians their own state in the
Closer examination confirms a
trend which could also be observed in other secession conflicts.
The conduct of the states was dominated by political motives,
and legal aspects were only given secondary importance. The
states in favour of Kosovo's secession were primarily concerned
with improving the precarious security and economic situation in
Kosovo. They saw the acceptance of an independent Kosovo as the
key for enduring peace and stability in the region. The
objective lay in dissolving the stalemate situation in which
Serbians, Kosovo Albanians and the members of the UN Security
Council had become entangled. The decisions to accept Kosovo's
independence reflected what was regarded as correct conflict
resolution strategies, as well as other considerations which
served foreign policy aims. It can not be concluded that the
states recognising Kosovo also espoused certain legal
These findings are confirmed by
the fact that the pro-Kosovo states explicitly tried to rule out
the lasting binding effect of their supporting stance on
customary law. They expressly denied the nature of the Kosovo
example as a precedent and characterised it as a case sui
Certainly, this casts doubt upon whether such a rejection of the
precedent nature can be of any relevance. It must be borne in
mind, at least according to the general argumentation presented
above, that the states probably considered the recognition of
Kosovo – for whatever reasons – to be in accordance with
international law, and that a normative right to secession
existed or was being established. Such a normative right to
secession could then have applied in comparable cases and would
have rendered the dismissal of the precedence effect obsolete.
Therefore, the assertions of the assenting states were not just
unclear, but also ambivalent. On the one hand, it appeared that
these states were operating on an international legal basis
which they failed to define in any more detailed terms. On the
other hand, they rejected its normative character again by
defining the Kosovo solution as a non-transferable case sui
On the whole, the
motives appear unclear and ambivalent from a legal point of
view. As shown above, when construing a right to secession and
its preconditions, there is a need to support it with concrete
and univocal legal convictions. Such a normative right to
secession can not be inferred from the conduct of the states.
The general approach outlined above (see part IV) is of no
further assistance, as any possible conclusions based on it are
too speculative. As a result, it can not be expected that the
conduct of states in the case of Kosovo will have any clear
influence on the international right to secession in the future.
On the contrary: even the conduct of states supporting Kosovo's
independence confirms their opposition to secession in general.
These states were reluctant to recognise general rights to
secession for ethnic groups and, in particular, the right to
external self-determination. This is substantiated by their
vehement rejection of the Russian line of argument in the cases
of Abkhazia and South Ossetia – a line which takes the right to
external self-determination for granted (see part III).
Finally, the deduction made from the case of Kosovo seemingly
accommodates the line of the assenting states in de facto
establishing Kosovo as an independent state without creating a
legal precedent. However, it should be noted that this is
fundamentally based on the demotion, neglect and
non-communication of legal considerations, as can be observed in
other cases of secession. In this manner, these states are
running the risk that secessionist movements elsewhere make
their own legal or political deductions from their conduct in
the case of Kosovo and, consequently, feel encouraged to pursue
secession with the exertion of force.
In strictly dogmatic terms, the question raised about the
repercussions which the conduct of the community of states in
the cases of Kosovo, Abkhazia and South Ossetia could have on
the international right to secession must be answered in the
negative. No tangible arguments are forwarded in favour of a
change in international law. According to the view represented
here, which continues to prevail internationally, ethnic
peoples, groups and minorities are still not entitled to secede
from their mother state if they pursue separation unilaterally
or without any justification rooted in national law. At best,
these groups may have recourse to human rights, minority rights
and internal rights to self-determination. Not even the states
that recognised Kosovo's independence deviated from this
fundamental stance. Therefore international law is characterised
as being hostile to secession which seemingly also applies for
the future. That implies that there is no legal basis for a
justified recognition of Kosovo, Abkhazia and South Ossetia,
meaning the recognising states violated international law.
Despite this dogmatic perspective, the conduct of the community
of states bears other legal implications, namely in sociological
terms. Due to the violation of legal principles and the focus on
political aims in the case of Kosovo and other secessionist
international law is practically losing its validity. The
contours of the international law which applies in secessionist
situations seem to become increasingly blurred due to the
priority status accorded to political considerations. Therefore,
the international law on secession is represented as being of
indefinite shape, even for international bodies dealing with
secessionist conflicts. This unclear situation, which the
community of states is not resolving with any clarity, is
compounded by the debate between experts in international law
concerning exceptional rights to secession. As a result,
international law does not seem to set a reliable benchmark for
affected mother states or for groups of populations seeking
The consequences are clear for all to see: secessionist attempts
are being stepped up all over the world, breakaway regions are
less willing to compromise, status negotiations are proving more
difficult, affected mother states are becoming more unsettled,
and – at worst – they feel impelled to undertake violent
countermeasures. Furthermore, third countries are given more
scope for pursuing their own strategic interests, which was
particularly demonstrated by the Russia-Georgia conflict in
The conduct of Western nations
appears inconsistent in this context, as they vehemently insist
on maintaining the rule of law and upholding law as a top
priority elsewhere. The European Union Rule of Law Mission in
Kosovo (EULEX), whose set-up makes senses in principle and
serves the aims of establishing the rule of law in Kosovo, is
equally exposed against this backdrop. Particularly in light of
the legal ambiguities and deficiencies described above, the
mission is obviously based on questionable foundations with
regard to international law.
Even if the negligence observed at the expense of international
law may appear justified in individual cases from a political
point of view, from a global and long-term perspective the
dangers and disadvantages still outweigh the gains by far, in
terms of worldwide security and, also, economic and
socio-political aims. Western nations are making a convincing
case for upholding the rule of law within emerging states.
However, it would be desirable if this attitude were to prevail
just as strongly within the framework of external relations.
Kohen (op. cit. 3) 19; Cassese (op. cit. 2) 129
(“Peoples under foreign military occupation”).
See section II. 3. below.
Tomuschat, (op. cit. 8) 9; Ibid., in Kohen (op. cit. 7)
See also Tomuschat, in Kohen (op. cit. 7) 26 et seq.
VCLT = Vienna Convention on the Law of Treaties, 1980.
See also Kohen
(op. cit. 3) 10 et seq.
Art. 38 Para. 1 lit. b ICJ statute; Hobe/Kimminich
(op. cit. 8) 184; Wolff Heintschel von Heinegg, in
Völkerrecht [International Law], ed.
Knut Ipsen (Munich: 2004),
214 et seq.;
Shaw, International Law (Cambridge:
68 et seq.
UN, Friendly Relations Declaration, Preamble.1,
2, 3 & 4.
Cf. the following reports: Reuters, “US, EU
powers recognise Kosovo: some opposed,” February 18,
(accessed April 22, 2009); Euractiv, “Europe
split on Kosovo independence,” February 18, 2008,
(accessed April 22, 2009); Tagesschau, “Tiefe
Gräben im Sicherheitsrat,” [Deep rift in Security
Council] February 19, 2008,
(accessed April 30, 2009).
The prohibition under international law of aggressive
war began with the ratification of the Kellogg-Briand
Pact signed in 1928. It obtained validity under
customary international law at the outbreak of the
Second World War.
See Hobe/Kimminich (op. cit. 8) 36 et seq., 49; Georg
Dahm/ Jost Delbrück/ Ruediger Wolfrum, Völkerrecht
[International Law], vol. I/3 (2002), 821; Knut Ipsen,
Völkerrecht [International Law] (Munich: 2004),
35; Horst Fischer, in Völkerrecht [International
Law], ed. Knut Ipsen (Munich: 2004), 1069; Theodor
Schweisfurth, Völkerrecht [International Law]
(Tuebingen 2006), 357.
Cf. the official letter of the US President to the
President of Kosovo regarding the recognition of Kosovo
by the USA, Washington, February 18,
2008; German Federal Press Office, press release no. 51,
“Zustimmung des Kabinetts zur völkerrechtlichen
Anerkennung des Kosovo” [Consent of the Cabinet to
International Recognition of Kosovo], February 20,
Cf. also section III below.
Council Conclusions on Kosovo, 2851st
External Relations Council meeting, Brussels, February
Cf. BBC,“West Condemns Russia over Georgia,”
August 26, 2008,
(accessed April 22, 2009); and Civil Georgia, “Rice Says
Russia’s Move ‘Regrettable,” Civil Georgia, August 26,
(accessed April 22, 2009); Civil Georgia, “Merkel:
Russia’s Move Unacceptable,” Civil Georgia, August 26,
(accessed April 22, 2009); Civil Georgia, “OSCE Chair
Condemns Russia’s Recognition of Abkhazia, S.Ossetia,”
Civil Georgia, August 26, 2008,
(accessed April 22, 2009).
Cf. Shaw (op. cit. 21) 84.
Convincing in this respect Wirth (op. cit. 55), 1065,
1077 et seq.
Declaration “Schreiben über Anerkennung des Kosovo
unterzeichnet” [Letter of recognition of Kosovo signed],
Vienna, February 28, 2008.
Council Conclusions on Kosovo, 2851st
External Relations Council meeting, Brussels, February