One of the most complex and uncertain areas of international legal doctrine is how should international law deal with the aspiration of a people to achieve self-determination through the establishment of a new state and the related claim to a specific territory over which statehood is to be exercised. Recently, when the General Assembly of the United Nations referred to the International Court of Justice the question of the legality of the declaration of independence by Kosovar Albanians, the Court was given an opportunity to clarify and develop the law on external self-determination. Instead, the Court answered extremely narrowly, confining its analysis to the legality of the act of declaration without determining any consideration of international legal norms applicable to the act of secession that was being proposed. This paper intends to fill the gap left by the ICJ’s decision: first by critiquing the inadequacy and tensions visible in the existing doctrine and second, by examining how recent developments in international law may allow for a more normatively coherent approach to the problem.
7 LAW & ETHICS OF HUMAN RIGHTS 155-184 (2013)