Exceptionalism in Generic Situations - Should the Kosovo Advisory Opinion be regarded as sui generis?

Abstract: The right to remedial secession is one of the most divisive issues in interna-tional law. An increasing number of legal scholars have argued that such a right exists, but State practise has shown little support for such a right. Fol-lowing Kosovo’s unilateral declaration of independence from Serbia in 2008, the legality of remedial secession was put at the centre of attention once again. While the ICJ ruled that the declaration was not a violation of international law, they chose not to answer whether Kosovo had achieved statehood or not in order to avoid legitimising remedial secession as a part of international law. If the Advisory Opinion is seen to set a precedent on other conflicts, then it could serve as an important steppingstone for numerous separatist movements all around the world, like the Catalan in Spain. This has caused several states like Spain and Russia to not recognise Kosovo and the Advisory Opinion, as it could set “a dangerous precedent for other sepa-ratist movements”. Other states instead argued that Kosovo did have a right to secession, but that it set no precedent as the case was “exceptionally unique”. This argument stems from the fact that the humanitarian catastro-phe in Kosovo was remarkably unique, along with the heavy international involvement. The purpose of this essay is threefold. Firstly, it seeks to clarify whether remedial secession is a part of international law or not. Secondly, it strives to apply the framework of international law to see whether Kosovo had a right to secession or not. Thirdly, it aims to answer if the Advisory Opinion is to be seen as too unique to set a precedent on other conflicts or if it can serve as a framework for future secessionist conflicts.