Remedial Secession: What the Law Should Have Done, from Katanga to Kosovo

In considering Kosovo’s secessionist claims, the International Court of Justice missed a rare opportunity to make a difference. It should have set forth the grounds for granting secession within international law. This Article does not provide yet another doctrinal analysis. Instead, it takes a normative, exploratory route, laying out what the grounds for secession should be and how they should be adjudicated. It defends a refurbished Remedial Model, which provides a morally and legally justification for secession as a last resort remedy for injustices. The Remedial Model requires a three step inquiry, one relational and two status determinations. First, does the parent state have lawful authority over the claimant territory? Second, has the parent state thwarted the claimant’s attempts at self-determination? Third, has the parent state inflicted grievous harms on the claimant? The saliency of each questions becomes apparent when examined in light of past and present secession claims, including Biafra, Chechnya, Katanga, Quebec, the Republika Srpska, and South Ossetia. Throughout the Article, we test the Remedial Model against actual cases. The Article also provides arguments against competing models. These alternatives unsuccessfully attempt to justify secession on grounds of administrative capacity, cultural preservation, and economic disparity. Most importantly, the Remedial Model provides a sensible framework for addressing Kosovo’s secession claim. A claim to secession presupposes that one political territory is lawfully part of another political territory. Surprisingly, we find that Serbia has highly questionable claims over Kosovo. Putting these concerns aside, we further find that Kosovo has strong claims over its status being harmed. Serbia continually blocked Kosovo’s attempts at internal self-determination. While the right to internal self-determination is questionable in international law, international law clearly condemns the taking away of self-determination once granted. Finally, we find Serbia responsible for harms, such as ethnic cleansing, against Kosovo that border on preemptory prohibitions. We find that while the case of Kosovo is not sui generis, it also does not pave the way for a slippery slope of multiple secessions. In keeping with the exploratory thrust of the analysis, the Article ends with some speculations. It entertains the idea of using alternative adjudicatory mechanisms (such as the Human Rights Committee or the Committee on the Elimination of Racial Discrimination), already in place, to address secession claims within international law. No one should have any illusion that the Remedial Model will be warmly received or readily implemented in these or any other ways. However, the failure to at least open the discussion not only commits the sin of omission it also makes us complicit in the next conflict that arises when a secession claim is not resolved peacefully.

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