Rocznik_2014-215

Is Kosovo a Precedent Legal and International Dilemmas...
29
norities within other countries. Whereas the anxious opponents of
the recognition of Kosovo persist in pressing the charge of a violation
of the principles of international law which should safeguard, first of
all, the territorial integrity of the existing countries, those who accept
the foundation of Kosovo claim that the act of separation of the province
from Serbia is unique in international practice and does not set
a precedent for the future 4 .
Therefore, it seems that in order to assess the legitimacy of the dilemmas
rationally, it has to be stated that the problem of a precedent
is described and analyzed differently in international legal doctrine
and practice and in the theory of international relations. Political scientists
usually use the term “precedent” with reference to finite past
events which are politically convincing and usable in terms of daily
political and diplomatic practice. In contrast, lawyers, show a more
principled and stricter understanding of that term and use it when
a past event confirms the legitimacy of its application in current and
analogue cases. From a practical, technical point of view, it should be
stressed that in international law, unlike in intrastate law, a precedent
is not binding. For example, a previous decision by the International
Court of Justice in the case between A and B does not define a legal
rule and, in consequence, the practice of its use later in a similar situation
occurring between countries C and D.
However, in defiance of this stipulation, in international legal practice
attempts are often made to create and use a coherent catalogue of
rules possible to use in similar or analogical situations. The questions
is whether Kosovo’s Declaration of Independence and the acceptance
of its consequences in international practice by means of diplomatic
recognition signifies that both international lawyers and political
decision-makers have decided to follow that example and as a result
use it as a legal principle for other analogical cases, or, if that practice
is, in fact, incorrect and should rather be perceived as an actual violation
of international law.
4 Cf. P. Daranowski, Uznanie niepodległości Kosowa – usankcjonowanie precedensu, [in:] Księga
pamiątkowa ku czci Profesora Jana Białocerkiewicza, T. Jasudowicz, M. Balcerzak (ed.), Toruń
2009, p. 1-2.
Rocznik Instytutu Europy Środkowo-Wschodniej • Rok 12 (2014) • Zeszyt 3