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The Law and Politics of the Kosovo Advisory Opinion$
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Marko Milanovic and Michael Wood

Print publication date: 2015

Print ISBN-13: 9780198717515

Published to Oxford Scholarship Online: May 2015

DOI: 10.1093/acprof:oso/9780198717515.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 30 November 2021

Has the Advisory Opinion’s Finding that Kosovo’s Declaration of Independence was not Contrary to International Law Set an Unfortunate Precedent?

Has the Advisory Opinion’s Finding that Kosovo’s Declaration of Independence was not Contrary to International Law Set an Unfortunate Precedent?

Chapter:
(p.291) 15 Has the Advisory Opinion’s Finding that Kosovo’s Declaration of Independence was not Contrary to International Law Set an Unfortunate Precedent?
Source:
The Law and Politics of the Kosovo Advisory Opinion
Author(s):

Anne Peters

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780198717515.003.0015

In the context of Kosovo’s protracted path to formal independence, some political actors have time and again highlighted the sui generis nature of the Kosovo issue, and denied that it would (or should) have any precedential value. Others, on the contrary, precisely relied on the Kosovo ‘precedent’. This chapter analyses the merits of these claims. It concludes that the Advisory Opinion, while not being a precedent in a technical sense, had the unfortunate effect of not containing subsequent (erroneous) reliance on its meagre holdings. With regard to the possible ‘precedential’ value of the DoI and its implicit endorsement by states and the Court, the chapter concludes that the denial of precedential value had the legal effect of stalling the formation of a general opinio juris on secession, but that the legal technique of distinguishing is a sufficient and normatively preferable strategy for containing other instances of imminent secession.

Keywords:   Kosovo, International Court of Justice, advisory opinion, precedent, secession, customary international law, opinio juris, distinguishing

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