코소보 독립과 현대국제법: 자결권 행사의 어려움에 특히 주목하며

The question of whether component entities within an existing state may secede for the purpose of creating an independent state by invoking the right of self-determination is one of the most difficult and controversial issues in contemporary international law. The unilateral establishment of independence of Kosovo from Serbia on 17 February 2008, in this regard, presents a fascinating research problem for international lawyers, as it is essentially connected with such fundamental questions of contemporary international law as state recognition, respect of territorial integrity and the scope of the right of self-determination. In the first place, there is a contention that the independence of Kosovo was in violation of the UN Security Council Resolution 1244,under which Kosovo was placed under the United Nations Interim Administration Mission in Kosovo (UNMIK) after the end of the NATO military campaign in 1999, on the ground that it explicitly stated that the United Nations reaffirmed the commitment of all member states to the sovereignty and territorial integrity of Serbia. As to this contention,this article makes a point that such an argument would be pointless if the independence of Kosovo were to be assessed from the perspective of the exercise of the right of self-determination. This is so because,normatively speaking, the United Nations Security Council resolution may not prevent the creation of a state by the international legally justified exercise of the right of self-determination. Under international law,self-determination is regarded as a peremptory norm of international law which all members of the international community, including the United Nations, should observe. Therefore, the essential problem of the independence of Kosovo and whether or not it violated international law has become about the question of whether the unilateral secession from Serbia of ethnic Albanians in the Kosovo region may be justified by proper exercise of the right of self-determination under international law. It may be that the exercise of the right of self-determination by means of secession from the existing state can be justified in very exceptional situations in current international society where decolonization has already been completed. With respect to Kosovo, it has been examined whether there are sufficiently relevant factors in existence which could warrant acceptance of its succession on exceptional grounds. Nevertheless, it seems there is nothing particularly unique about the situation of Kosovo to justify making an exception to the general norm rejecting secession on the part of the component entities of sovereign states. Regardless of the legal status of secession, Kosovo has declared its independence and this has been recognized by approximately over one-third of states in the world. Insofar as a clear majority of states continue not to recognize its statehood, Kosovo cannot be properly integrated within the international community of states. Yet, given that Kosovo has secured the recognition of a substantial number of powerful states, including that of the US, the UK and France, it cannot conceivably retreat to a position whereby it is once again a mere province within Serbia. Moreover, given that ICJ Kosovo advisory opinion concluded that the adoption of the declaration of independence of Kosovo did not violate general international law, Kosovo is likely to attain recognition on a more widespread basis and eventually become fully accepted by the international community. While a main argument of this article has been that Kosovo cannot avail itself of a right of self-determination by means of secession under international law, it is also true that political factors can result in the emergence of a new state notwithstanding the lack of any principled legal justification for its secession from its parent state. Kosovo may illustrate this case in point. However, what the case of Kosovo also shows is that unless its case for independence is carefully limited to factual circumstances, there is a real danger that it will serve as a precedent provoking secessionist movements elsewhere, thereby contributing to fragmentation of the international system of states. In other words, for component entities from an existing state to pursue secession outside of the colonial context, they must meet very clear and restrictive criteria for the exercise of the right of external self-determination. The important task for international lawyers is to elaborate such criteria in a more constructive manner.