Exit law, enter politics: The foundations and the legacy of the contested independence of Kosovo

Abstract

The way Kosovo is achieving independence has been welcomed with antithetical opinions in the international community, especially with respect to international law. This paper attempts to shed light on the legal trajectory which brought Kosovo on the way to statehood. After determining that Kosovo has not, prima facie, any positive right to independence, its de facto statehood is contrasted with a few doctrines that could contribute to support it, namely self-determination, remedial secession theory, and international dispositive powers. The analysis finds that Kosovo independence might be legally justifiable under a collective recognition theory, possibly supported with remedial arguments. Having further enquired over the effectiveness and the legitimacy of its independent status (statehood criteria), this article contends that such turn of developments in Kosovo is better explained through more genuine political reasoning. The validity of independence as a solution is not debated in itself, but on the basis of the whole process the negative effects of reaching such outcome by the way of a one-sided decision are discussed.