Kosovo and Lotus
Kosovo and Lotus
It has been put to the Court by many that the practice throughout the history of international law shows that the creation of States by secession is not regulated b international law. There are exceptions where secession is triggered by intervention or is in violation of other rules but in general international law does not regulate secession. If one compares the Advisory Opinion of the Court concerning Kosovo with the Lotus judgment of the Permanent Court of International Justice one difference cannot be overlooked. In the Lotus judgment the issue was whether States were free to act if no prohibition existed. The criticism against this holding in present day international law is fully justified where States act in an area which may affect the interests of other States. In the Kosovo Opinion the issue was not whether or not a State could act in an area where interests of other States exist but whether specific persons being the elected representatives of a people could or could not act as ‘pouvoir constituant’ of that people. It would seem that this distinction is of importance for the analysis. While States must certainly respect not only prohibitions existing in international law but must show that they are entitled to act wherever the interests of other States are concerned, this is different in a case like Kosovo. Here, the absence of a prohibition existing in international law for a declaration of independence and for secession can suffice to show that this declaration is in accordance with international law. It would have been preferable for the Court to have gone into the questions of secession and self- determination in some more depth. However, as Judge Simma's voting has shown, the result reached by the Court is correct under international law.
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