THE CONSERVATIVE AND THE NEW REMEDIAL THEORY OF SECESSION IN PUBLIC INTERNATIONAL LAW AND SO-CALLED KOSOVO ATTEMPT TO SECESSION

Abstract

Up until the declaration of independence of so-called Kosovo in 2008, international legal theory was dominated by “conservative” attitudes toward secession and its permissibility within public international law. Most jurists believed that secession was permitted only in cases of decolonization or in the process of African, Asian, and other colonies gaining independence which reached its pinnacle after the end of World War II and lasted until the late 1970s and the early 1980s. Such “conservative” attitudes permitting secession or the right to external self-determination only within the process of decolonization were prevalent in public international law up until so-called Kosovo’s attempt at unilateral secession. This event marked a turning point in Western legal theory. Western jurists, as if on command, change their attitudes to secession. It is no longer linked to a colonial context. The Charter of the United Nations, the significance of the UN Security Council, and a UN resolution are ignored. A new theory is developed, the so-called remedial secession theory, which is meant to justify the political goals of Western countries when it comes to the, from the view point of international law, illegal secession of so-called Kosovo. In this context, the “conservative” theory of secession which was linked to the anti-colonial context is replaced with the remedial theory of secession. Malcolm N. Shaw is a representative of the conservative theory of secession, whereas Glen Anderson is a representative of the remedial theory. Their attitudes are analyzed in this paper. Anderson attempted to wrongly present the secession of so-called Kosovo as a successfully completed process which was in accordance with public international law, although this secessionist entity is not a member of the United Nations.