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An Uncertain state: the legality and consequence of Kosovo’s declaration of independence under international law


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Jenkins, J (2010) An Uncertain state: the legality and consequence of Kosovo’s declaration of independence under international law. Research Master thesis, University of Tasmania.

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On the 17 February 2008, Kosovo’s Provisional Institutions of Self-Government
unilaterally declared their independence from Serbia and, since this time, a significant
number of the worlds existing states have conferred recognition upon it. Serbia and its
allies ardently contest its legality, however; reaffirming their right to territorial integrity
and, as such, their continued sovereignty over the territory that is so often said, by the
citizens of it, to be the ‘heartland’ of their country. The Kosovar Albanians, on the other
hand, assert their right to self-determination, and the concomitant ‘freedom’ that it offers
them from a regime at whose hands they have suffered – in recent decades in particular –
abuses of immeasurable gravity.
This thesis submits that the nascent state of Kosovo satisfies the general requirements of
statehood, as set out in the Montevideo Convention on the Rights and Duties of States
(1933) – especially in light of the leniency with which borderline cases are so often
assessed – and, also, that independence was not precluded under the provisions of United
Nations Security Council Resolution 1244.1 As such, and although the resolution did not
itself confer a right to independence upon the people of Kosovo, it remained an
alternative available to them to the extent that it was also available under the framework
of international law in the more general sense.
On this front, this thesis endorses the legality of Kosovo’s declaration of independence,
and third states subsequent recognition of it, in accordance with what is commonly
referred to as a ‘remedial right’ to secession. This right, it is submitted, allows those
‘people’ that have suffered ‘grievous wrongs at the hands of the parent State from which
it wishes to secede’ – including the denial of their right to internal self-determination,
and/or serious and widespread violations of their fundamental human rights – to break
away, as a ‘last resort’ and in the absence of any further, realistic and effective remedies
for the peaceful settlement of the conflict.

Item Type: Thesis (Research Master)
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Date Deposited: 28 Apr 2011 05:03
Last Modified: 11 Mar 2016 05:53
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