Monday, 25 February 2008

Principle of self-determination at international law: the case of Kosovo (REVISED)


There is a plausible case for the Kosovo Albanians to claim a right to self-determination and exercise it to go independent, although it is acknowledged that the application of this right in this context might not have a long-standing basis at international law. My analysis is by no means a conclusive statement of international law as it stands today as international law is inherently quite fluid and arguable for the most part. This article considers four main legal issues that will inform our analysis.

The central argument in this article is this:

The Kosovo Albanians qualify as a people, and are therefore entitled to a claim for self-determination at international law. Arguably, the right to self-determination has evolved over the last 15 years to be wide enough to cover the current case. Serbia however has a strong claim to territorial integrity and that this claim will likely override any right to self-determination.


For our purposes, the principle of self-determination is understood in the external, political sense as ‘the right to collectively decide on the political status of a people through democratic means.’ (internal self-determination is essentially participatory democracy within a State)

Self-determination is an ongoing process of choice with a broad scope of possible outcomes, as long as it corresponds to the free and voluntary choice of the people concerned. These outcomes can include secession (separation from State), guarantees of cultural security, self-governance and autonomy, economic self-reliance, etc.


The right to self-determination has been recognised at customary international law as embodied in the UN Charter (Articles 1 and 55(2)), ICCPR and ICESCR; recognised by General Assembly resolutions (637A, 1514, 1541, and 2625), Helsinki Final Act, and the African Charter on Human and Peoples’ Rights; and affirmed by the International Court of Justice in various cases eg the Western Sahara, East Timor and Namibia cases.

It is also clear that this principle applies in the context of decolonialisation, for instance, the 1970 Declaration on the Granting of Independence to Colonial Countries and Peoples and the 1970 Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in accordance with the Charter of the UN (Res 2625) apply specifically to ‘bring an end to colonialism’. That much is not in dispute.





The international legal instruments refer to ‘ALL PEOPLES’ as holders of the right to self-determination. In order for Kosovo Albanians to enjoy the right to self-determination, they have to be a ‘people’.

Definition of ‘peoples’

There is no international consensus on the precise meaning of ‘peoples’. However, it fairly clear that there are a few essential features:

First, the group must possess a focus of identity sufficient for it to attain distinctiveness as a people.

Second, the group must establish a close connection to a particular territory.

Thirdly, the group must be linked by a common history and have expressed a will to live together and continue the common traditions.

UNESCO International Meeting of Experts for the Elucidation of the Concepts of Rights of Peoples has defined a people as:

a group of individual human beings who enjoy some or all of the following common features:

(a) a common historical tradition;

(b) racial or ethnic identity;

(c) cultural homogeneity

(d) linguistic unity;

(e) religious or ideological affinity;

(f) territorial connection;

(g) common economic life.

The UNESCO experts further stated that "the group as a whole must have the will to be identified as a people or the consciousness of being a people,"

A key issue is the distinction between ‘peoples’ and ‘minorities’, as this is the major concern of many States in their opposition to the right to self-determination. The significance of the distinction is that while peoples have the right to self-determination, minorities do not.

What constitutes a minority is largely a question of self-identification. The principal elements include numerical inferiority, ethnic, linguistic, cultural or religious characteristics distinct from those of the rest of the population of a state and the non-dominant position of the minority.


Kosovo consists of an overwhelming 90% majority of Albanians. They have for centuries long maintained and cultivated distinct characteristics from other groups inhabiting the territory of the former Yugoslavia. They speak a common language (the Albanian language), have their culture and traditions, and share the same customs.

Since 1918, Kosovo has been recognised as a distinct geographical region with clearly defined borders in Yugoslavia. Since the creation of the Socialist Federal Republic of Yugoslavia, Kosovo was an autonomous region and subsequently designated as a province. The borders were in line with the historical lines and could not be changed without approval by Parliament under the Yugoslav Constitution.

The Kosovo Albanians have also spoken in the 1991 Referendum and Declaration for Independence, and again just earlier this month – therefore they have expressed their will as to their political future.

There are a few weaknesses in the argument:

Firstly, the status of ‘autonomous’ region is ambiguous: it can apply equally to many minority regions in the world, for example, Tibet – and it is not clear whether ‘autonomous status’ lends itself to strengthening the argument for it being a people.

Secondly, Kosovo has not always consisted of such an overwhelming majority of Albanians – there were a much bigger proportion of Serbians in the 80’s. A majority of them left Kosovo in the 90’s as a result of the discrimination. Therefore, arguably the demographic domination of the Albanians has not been established for very long.

Thirdly, there is some complexity of the issue with regard to the regional minority of Serbians within Kosovo. The right to self-determination of the people of Kosovo Albanians will necessarily affect them. It is not clear how far it can go.


Article 2(7) UN Charter:

the UN does not have the authority to intervene in matters which are essentially within the domestic jurisdiction of any State.

There are two ways Serbia can make this argument that it falls within its domestic jurisdiction (meaning the international community should keep their hands off the matter).

Firstly, Serbia can argue that secession in itself is a domestic matter because some internal groups seek to overthrow the government and declare independence. Say Tibet or Quebec wants to set up its own government and separate from China and Canada, these States are likely to argue that it is internal to the States themselves, and not the business of the international community.

But the application of this principle very largely boils down to the second argument: Serbia can argue that it is a domestic matter based on its territorial title to the Kosovo region. Serbia can support this claim by also arguing that the principle of self-determination would violate its territorial integrity. In my view this is the strongest argument that Serbia can make.

The region of Kosovo has been part of the territory of Serbia, and Serbia has the territorial title to this piece of land. At international law, the principle of state sovereignty and territorial integrity are given primacy, and States do not lose their claim to the piece of land merely because the region is inhabited by a certain ethnic group. This is similar to the minority and people distinction, but this lays its focus on the territorial title of the State of Serbia to it – whether or not the Albanians are classified as a people.

The claim that it is Serbian land is very strong given its political boundaries for the last few decades. There is also a very strong international law principle for stability of territorial borders – I will spare you the details, but the legal term is called ‘uti possidetis’ – acceptance that colonial boundaries were not to be challenged after independence. The stability of frontiers comes before the principle of self-determination. This principle applies to all territories, not just colonial territories.

The International Court of Justice has considered this issue in Western Sahara case that the issue of territorial claim comes before the application of principle of self-determination to the people of Western Sahara. If the territory did belong to Mauritania or Morocco, the people of Western Sahara would have had no right to self-determination.

The 1970 Declaration on the Principles of International Law concerning Friendly Relations and Cooperation Among States”, the section entitled 'the principle of equal rights and self-determination of peoples' reads

“Every state shall refrain from any action aimed at the partial or total disruption of the national unity and territorial integrity of any other State or country.”

This principle is there mainly for the purpose of stability of international relations, given that most conflicts arise out of territorial disputes. The claim for independence necessarily involves a claim for territory, and therefore infringes the territorial integrity of States. If it is shown to be within Serbian territory, Serbia has a strong claim based on its claim to territorial integrity – and for the same reason, it is a domestic matter.

There is one argument that can be made in rebuttal to affirm the right to self-determination: Serbia does not have the territorial claim to the region of Kosovo, based on some older claim. I don’t have the geographical and historic data to give further analysis on this – but it looks pretty weak to me.

The strongest basis is probably that the Kosovan borders have become an international boundary after the NATO intervention. Kosovo is currently under UN Mandate, and Article 76 of the UN Charter can be invoked to support the argument that after this interim period of UN trusteeship (UN looking after the region, essentially), they would have the right to independence.

The article reads ‘promote their progressive development towards self-government or independence as may be appropriate to the particular circumstances of each terriotry and its peoples and the freely expressed wishes of the people concerned, and as may be provided by the terms of each trusteeship agreement’.

There is however much uncertainty over interpretation of the exact scope of application of this Article.

Firstly, it does not refer to ‘self-determination’, but it refers to ‘self-government’ or ‘independence’ – essentially the stronger and more controversial forms of exercise of the right to self-determination.

Secondly, it does not define the circumstances under which independence or self-government can be a solution – it merely says ‘as may be appropriate to the particular circumstances of the territory’. That seems to me to suggest that the solution still depends on the very circumstances of the territory. That is to say, if Serbia has a territorial claim to the province of Kosovo, neither self-government nor independence can be a possibility.

And I don’t think one can argue that Serbia has lost its territorial claim merely because NATO intervened – it is a general principle of international law that territory obtained by use of force is not recognised, for example, Japan’s claim over Manchuria in World War Two.


Although I personally don’t buy it, it can be argued that territorial integrity is not absolute and can be subordinated to the right to self-determination under certain circumstances. The argument goes as follows:

If peoples within existing States are treated in a grossly discriminatory fashion by an unrepresentative government, they can claim self-determination and territorial integrity will not defeat their claim. When a people is blocked from the meaningful exercise of its right to self-determination internally, it is entitled, as a last resort, to exercise this right by secession.

To make the argument for the Albanians, Serbia has wronged and oppressed the Albanians in the first place during the humanitarian crisis in 1999. Serbia as a State that grossly violates its international obligations to its citizens has no legitimate claim to invoke this limitation of territorial integrity.

The main features of the Serbian government policy pursued in Kosovo were:

1) a total blockage of the Kosovo Albanian people from a meaningful realisation of its political, economic, social and cultural development, including massive job expulsions, discriminatory land policy, banning mass media in Kosovo;

2) systematic discrimination and the commitment of gross human right violations, including torture, arbitrary arrests and detentions, trials for political prisoners, deliberate and indiscriminate attacks on civilians;

3) the commitment of acts by Serbian military and police seriously attacking the physical existence and integrity of the Kosovo Albanian people especially after the Serbian forces’ crackdowns in Kosovo from early spring 1998.

The legal basis for such an interpretation can be found as follows:

The 1970 Declaration on Principles of International Law concerning Friendly Relations and Cooperation Among States, the section entitled 'the principle of equal rights and self-determination of peoples' reads:

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 self-determination and thus possessed of a government representing the whole people belonging to the territory without distinction as to race creed or color.”

The Vienna Declaration and Programme of Action (1993) while recognising the right of all peoples to self-determination states that:

“this shall not be construed as authorising or encouraging any action which would dismemberor 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 and thus possessed of a Government representing the whole people belonging to the territory without distinction of any kind.” (Emphasis added).


I don’t find this a very strong argument. I find that it puts the cart before the horse.

Its basic argument is basically saying that the prohibition in the two General Assembly Resolutions does not apply when the States themselves do not represent the whole people and deny them the right to internal self-determination.

BUT to say that something is not expressly prohibited DOES NOT MEAN there is a right to do it. The overriding status of territorial integrity over principle of self-determination has been established above – and its claim stems from fundamental purposes of the UN Charter of maintaining peace and security, and territorial integrity and political independence of States are expressly enshrined. Its overriding status stands INDEPENDENTLY OF the States’ treatment of their nationals, sadly as it stands.


The last argument that Serbia can invoke is even if territorial integrity does not override the right to self-determination, the right to self-determination itself at international law does not extend to Kosovo in the present circumstances.

Basically the two clearly recognised situations for right to secession are peoples under colonial or alien domination or under racist regimes.

However, there is no international legal prohibition on the application of the right to self-determination outside these two contexts.

Kosovo can argue that the right has been widened over the past 30 years or so.

First, the right has arguably evolved over the past 15 years as there has been recent state practice in favour of a wider right to secession outside the decolonialisation especially in the dissolution of Yugoslavia and the USSR – the first time the international community has recognised secessionist movements as such. The very recognition of the new States born as a result of the two dissolved States is an affirmation of an extended application of the principle of self-determination.

Secondly, many of the international legal instruments state the right to self determination in very broad terms esp the ICCPR, ICESCR and the African Charter on Human and Peoples’ Rights.

Article 20 of the African Charter on Human and Peoples’ Rights states:

All peoples shall have the right to existence. They shall have the unquestionable and inalienable right to self- determination. They shall freely determine their political status and shall pursue their economic and social development according to the policy they have freely chosen. ‘

However, the interpretation of the exact content of this right is still very much subject to more legal scrutiny. The law is pretty much still developing in my opinion, and we can’t really say what the precise ambit of the right to self-determination is.



Well done! I only skimmed through the whole thing. Maybe I should read it in details when I start writing my own article on Kosovo. By then we should be able to have a proper intellectual discussion!

(Indeed you wrote your article in a very succinct and readable way. Would you mind if I read your original work? I mean the full article if possible.)


No wonder it has taken you so long to write this up....That's great work!