LE DROIT INTERNATIONAL À L’ÉPREUVE DU KOSOVO
INTERNATIONAL LAW TESTED BY KOSOVO

Summary/Abstract: This contribution aims at explaining the reasons why international law has been overlooked by the governments and institutions that were supposed to solve the problem of the Kosovo’s final status. It focuses on the conditions under which some governments, mainly Western, have recognized Kosovo as an independent and sovereign state. At first glance, this process contains some similarities to the 1990’s when the federal entities of the Yugoslav federation were recognized as independent on the basis of the right to self-determination and in exchange for their commitment to abide by international legal norms (Human Rights, Democracy, Rule of Law, protection of minorities,etc.) As a matter of fact, the authorities of Kosovo have undertaken to fully apply the provisions of the Ahtisaari’s plan referring to such norms, and in so doing have earned international support for their declaration of independence. Thus a parallel could be drawn between these two processes of conditional recognition. But a thorough examination of the discourse surrounding the settlement of Kosovo’s status shows quite a different picture when it comes to the role played by international legal rules in legitimizing its independence. Indeed the main arguments used in the case of Kosovo were not grounded on international law but rather on political or “ethical” considerations, whereas international norms were mainly used by those governments opposing this decision. To a certain extent, the process of “de-formalization” of international law – defined by Nico Krisch as “the replacement of formal criteria for determining the law by more substantive ones which usually reflect the Universalist principles underlying a hegemon’s foreign policy” – is not entirely new.

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