‘코소보 독립 예외론’에 대한 소고: 국제법의 권위 추락에 주목하며

This paper criticizes the so-called ‘Kosovo sui generis’ argument, which holds that exceptional circumstances leading to Kosovo’s unilateral independence from Serbia in 2008 should be treated as a special anomaly and should not serve as a ‘precedent’ for future separatist independence movements elsewhere. The reason why this issue is crucial is that Kosovo exceptionalism, which was claimed by major Western liberal countries including the United States, was later misused by Russia when it illegally annexed Crimea in 2014. In 2008 Russia condemned Kosovo’s unilateral independence as a violation of international law, but when it illegally annexed Crimea in 2014, it justified the annexation by invoking Kosovo’s case as a precedent. Aside from the international political context, the notion of Kosovo exceptionalism carries a fatal flaw from the perspective of international law. Considering the nature of the practice of law, Kosovo exceptionalism is neither convincing nor plausible. No matter how much some countries may try to argue that a particular case should not be a precedent for the future, they cannot prevent it from becoming so. More fundamentally, Kosovo exceptionalism has a serious normative problem in that it destroys the very foundation of international law. Kosovo exceptionalism overshadows the reason for the existence of international law. International law, just like any other type of law, consists of norms and is bound to take on general and abstract normative propositions that can regulate present and future events (practices). If a case lacks legal relevancy simply because it is deemed ‘exceptional,’ that is tantamount to declaring that it belongs to the realm of politics rather than that of law. In other words, Kosovo exceptionalism as such is antithetical to the generality and universality of international law. The ICJ, having been swayed by international political influence, also adopted a very cowardly attitude in its 2010 Kosovo Advisory Opinion that essentially avoided the nature of the problem rather than presenting a convincing opinion on the international legal status of Kosovo's independence using persuasive arguments. Instead, Western liberal countries, which supported Kosovo’s unilateral independence, and the ICJ, which had been given an important opportunity to deliver an advisory opinion on the legal status of the independence of Kosovo, should have clearly justified their support with persuasive arguments as to why Kosovo’s unilateral independence could be understood as the legitimate exercise of self-determination for the Kosovar people. Evading this decisive issue through political expediency in the name of Kosovo sui generis, eventually led to a diminution of the authority of international law. The politically calculated concerns of Western liberal countries that Kosovo’s case could trigger separatist independence movements elsewhere gave countries like Russia an excuse to abuse the precedent later on, which became a reality with Russia’s annexation of Crimea in 2014 and invasion of Ukraine in 2022. Kosovo exceptionalism should therefore be regarded as a painful example that revealed the contradictory standards employed by Western liberal countries towards international law, and as a result it is necessary for members of the international community to reassess their approach to international law by returning to its foundations.