THE RIGHT TO SELF-DETERMINATION OF PEOPLES THROUGH EXAMPLES OF KOSOVO AND CATALONIA: WHY IS THE SECESSION OF KOSOVO ACCEPTABLE IN MODERN PUBLIC INTERNATIONAL LAW?

At a time of progressive development of public international law, the internal self-determination of peoples has no alternative, but external self-determination is justifi ed in a situation where, as a result of oppression, dispossession, and collective discrimination, a certain people have full rights to freely determine its political, social, economic, and cultural setting. In the case of Kosovo, the right to “remedial secession” based on the right to external self-determination has been achieved. According to many legal scholars, the related right is an exception and could be realized outside the colonial context, in limited circumstances that resemble the colonial paradigm. Modern customary public international law provides a legal basis for the introduction of the concept of the right to “remedial secession” and forms an argument that is supported by the “Great Powers” and is consistent with international institutional practice provided that the people’s fundamental human rights are threatened. Th is article aims to explain through the case of Kosovo that the external form of self-determination, which includes secession, is possible only exceptionally in the case of grave violations of human rights and freedoms, war crimes, repression, and systematic oppression, and that the internal self-determination of the peoples is a more acceptable form of realizing this collective human right, which should be realized through broad constitutional and legal reforms in every multi-ethnic state (a certain degree of autonomy or decentralization).

Introduction e rst great multilateral agreement that established the concept of the right to self-determination of the people was the Treaty of Versailles. en the question arose, does the right to self-determination of the peoples lead to in nitesimal fragmentation and disintegration of states and the emergence of a large number of new national states, which could endanger the existing public international policy in the future? Like any other right, the right to self-determination of the people is possible to abuse.
It is necessary to understand in which aspects the right to self-determination of the people is positive (a rmative), in terms of the protection of collective rights of the peoples, and in which aspects this right is negative, and in the function of disintegration processes, distortions of territorial integrity, sovereignty and political independence of the states, as well as the disintegration of other complex entities under public international law. In this context, we recognize the scienti c terms of the internal and external form of the self-determination of the peoples and we answer the question of which the a rmative nature of internal self-determination in relation to the negative aspect of external self-determination, which in modern public international law and in political terms, can also be linked to secession.
Here, it is suggested that the right to self-determination of the people is divided into external (o ensive) and internal (defensive) self-determination.
How its name suggests this right unquestionably belongs to the people. e aim of this paper should be an a rmation of the internal exercise of the right to self-determination of the peoples and its relationship to the manifestation of its external shape which o en leads to the secession of territories and con icts with the principle of uti possidetis juris. e division of this right to external and internal one is determined by the space of exercising the right to self-determination, i.e. whether is it contrary to the principle of uti possidetis juris (Cornell Law School -Legal Information Institute, n.d.) or within the internationally recognized borders of one country (the most common in the matter of a complex multi-ethnic states). e right to self-determination of the people is stated in a series of international documents, both binding and, in a much larger number, nonbinding. us, the "right to self-determination" we nd in the UN Charter, the UN General Assembly on e Right of Peoples and Nations to Selfdetermination (1952), the International Covenant on Civil and Political Rights (1966), the International Covenant on Economic, Social and Cultural Rights (1966) e right to self-determination is today applicable as customary law and is recognized in that form by public international law. It is normative, provided in Article 1 of both Covenants on Human Rights (Šarčević, 2022), that the right to self-determination becomes the fundamental principle of modern international law with erga omnes e ect. It prescribes that: "all peoples have the right to self-determination on the basis of which they freely choose their political status." Political status (Šarčević, 2022) represents a constitutional status within the meaning of the establishment of the internal arrangement, while the external arrangement represents an international positioning and obtaining recognition.
External self-determination of peoples includes the right of peoples to decide on their international status, i.e. to create their own sovereign and independent state, to unite with an existing sovereign state, or to integrate into an existing sovereign state. (Bursać, 2010, p. 279) is form of selfdetermination of the peoples is most o en the subject of abuse in modern public international law, which includes secession, and thus the territorial integrity and sovereignty of the existing state are directly violated. Demands for the external self-determination of peoples can be established, thus representing an exception that is rarely, but nevertheless, accepted in modern public international law (the case of Kosovo), and unfounded under the in uence of economic, cultural, religious, and ideological reasons, which may indicate the abuse of this right, as in the example of the province of Catalonia in the Kingdom of Spain. However, in the 1960s, this type of external self-determination of the people was not considered as an abuse of right, it was considered the right to be a state in which the people will be liberated from foreign interference and stopped to be under foreign occupation or domination. is issue was particularly relevant at the time of dra ing the texts of International Covenants on Human Rights, i.e. at the time of the condemnation of colonialism, and marked the emergence of a much-needed anti-colonial wave in the public international order.
In this paper, it is necessary to say that not every external form of selfdetermination of the people that seek secession is illegal and a sort of abuse of that right. It is possible if certain conditions are previously met that would justify the realization of such a right or opportunity, which we also call "remedial secession", in the case of denying the right of a part of the people to be represented in state authorities. Antonio Cassese continues and believes that this right exists, but that it is an exception to the general rule that the territorial integrity and political independence of states are protected by international law and as such they must be interpreted narrowly and subjected to strict conditions. (Bursać, 2010, p. 299.) Cassese continues and lists three conditions that must be met in order to exercise the right to secession: 1. the central authorities of the state must persistently deny the group the right to participate in the government; 2. the group must be subjected to massive and systematic human rights violations, and 3. any possibility of nding a peaceful solution within the existing state structure must be excluded. (Bursać, 2010, p. 299.) In order for a people to submit a request for self-determination against the territorial integrity of a state, it must prove that there is no rule of law in a particular state, that the government did not result from free democratic elections, that the rights of minorities, as well as human rights and basic freedoms, are not respected and that cultural, linguistic and religious rights are suppressed. (Bursać, 2010, p. 78.) Only when these conditions are met, the right to selfdetermination of the peoples becomes justi ed. e demand for self-determination is increasingly justi ed if the people are aware of their historical position and identity in their ethnic and cultural areas. at they live in a country that they cannot consider their own and that they are discriminated against by one or more other people (Berković, 2021, p. 43.), and there are no prospects that the situation could be changed or improved in the foreseeable future (realization of autonomy). (Ibler, 1992, p. 61.) e rst step in the abuse of the right to self-determination of the peoples is manifested in the desire to achieve international legal subjectivity (external statehood or independent state), even more so if that people enjoy true autonomy, and the members of that people enjoy all human rights and basic freedoms, in a way that they can participate in the work of representative bodies, the government and the judiciary of the state in which they live (Ibler, 1992, p. 61.), as is the case with the people of Catalonia. e importance of this article is seen in the promotion of the internal form of self-determination of the people and the encouragement of the implementation of constitutional reforms that will ensure a certain degree of participation of the people in the legislative and executive authorities in complex multi-ethnic states. Signi cant constitutional reforms will ensure a certain degree of autonomy in certain provinces in which people will be able to successfully realize their political, economic, and cultural rights. All this together will prevent future separatist and secessionist movements, and thus contribute to peace and stability in the world.
A brief historical overview on the development of the right to selfdetermination of peoples e entire history of mankind was characterized by colonialism and foreign domination over certain areas, but also the response to them through the realization of the right to self-determination of peoples. World War and the end of the 60s of the 20th century. (Whelan, 1992, p. 25.) In this phase, the former colonies achieved their independence and freedom A er a brief historical description of the development of the right to selfdetermination of peoples, in the following text, we will move on to the theoretical and normative de nition of the internal and external forms of self-determination of peoples.

The right to external self-determination of peoples
In that represents the entire people of that territory, without differences in terms of race, religion or color of skin." (Coleman, 2014, p. 24.) By interpreting this provision, it can be concluded that exercising the right to self-determination through coercion is prohibited if the people of a territory can exercise the right to internal self-determination. (Perišić, 2013, p. 770.) And in cases where state governments carry out repression against a people, limiting their collective human rights and the exercise of their right to internal self-determination, then that people have no choice but to exercise their right in the context of external self-determination, provided that international peace is not threatened and security and this again depends on the factors of redistribution of power in the international community. (Summers, 2004, p. 341.) Supreme Court of Canada dealt with this issue in detail, which gave a very important advisory opinion on "Reference re Secession of Quebec", to which we will brie y refer here. e Court took the position that the right to self-determination of the people is exhausted by the realization of internal self-determination, that is, by achieving an appropriate level of political, economic, social, and cultural autonomy within the existing state. (Summers, 2004, p. 342.) So, the Court interpreted that the right to external self-determination is realized only if it is a people released from colonial rule when the people are subjected to foreign domination or exploitation, and when a certain people are denied adequate participation in government. (Perišić, 2013, p. 770.) is opinion of the Court should not be interpreted as if the Court gave an exception to the Declaration of Seven Principles or as a justi cation to resort to the external self-determination of the peoples, but it is only applied if separation from the existing state is the only possible solution (the concept of accepting the consensual theory of secession). (Castellino & Gilbert, 2003, p. 156.) is opinion can also be interpreted extensively and that the right to external self-determination could exist if the violation of human rights is massive and discriminatory towards a certain people and that a people are systematically excluded from political and economic life and when it is denied the right to a minimum level of minority rights or autonomy. (Castellino & Gilbert, 2003, p. 157.) In the papers of some experts in public international law, the opinion that the external self-determination of the peoples, i.e. secession, is the last measure that can be taken only if all other possible solutions have been exhausted, and the state brutally and massively violates the human rights of its citizens or part of its citizens (the concept of advocating "remedial secession"). (Gavrilović, 2013, p. 14.) e right to self-determination of peoples can serve as an example, i.e. secession of East Pakistan (Bangladesh) from Pakistan. We hereby con rm that the right to secession can only have "peoples who suffer discrimination, waiver of the right to representative government and only if the discriminatory behavior is so pervasive, ramifi ed and systematic that it concretely threatens the survival of such peoples and where there is no strong probability that the discrimination will end." (Castellino & Gilbert, 2003, p. 157.) Not every discrimination can justify the right to achieve secession, but the "quality and quantity of discrimination" is taken into account, as whether the state is ready to stop the violence, and whether e ective legal means are available through domestic institutions. (Gavrilović, 2013, p. 15.) So, in the end, the right to secession can exist if "a discriminated minority is exposed to the actions of a sovereign state that consist in an obvious and brutal violation of basic human rights, e.g. through killing or indefi nite imprisonment without legal protection, the destruction of family ties, expropriation without taking into account the means necessary for life, through special prohibitions directed against a certain religious community or the use of one's own language, and fi nally through the enforcement of these prohibitions by brutal methods and measures." (Hannum, 1993, p. 11.) The right to internal self-determination of peoples e right to self-determination of the people in the post-colonial world is to focus on its internal dimension and the enjoyment of individual human rights. Malcolm Shaw states that outside the colonial context, the principle of self-determination of peoples was transformed into issues of human rights within the territory of each state. McCorquodale explains the right to self-determination of peoples through international human rights law. (Hannum, 1993, p. 11.) e right to self-determination of peoples is the cornerstone on which human rights rest, and to the greatest extent the International Covenants on Human Rights are responsible for this, which introduced the right to self-determination of peoples into the discourse of human rights. Fox states that the internal right to self-determination is "manifested through the structures of domestic political institutions" which may include "regimes of minority protection, democratic political process, guarantees of cultural rights and various forms of autonomy." A er the decolonization process was completed, emphasis was placed on the internal dimension of the self-determination of peoples in order to reconcile this principle with the principle of territorial integrity of states. (Hannum, 1993, p. 23  A er the autonomy of Kosovo was revoked in 1989 (which represented a violation of the right to internal self-determination), international war crimes were committed (Marijan, 2021, p. 67.), especially in the period from 1998-1999 (even NATO intervened by bombing Serbia), and negotiations between Kosovo Albanians and Serbs in Rambouillet failed. (Arbatov & Acheson, 2000, p. 9.) erefore, undoubtedly, in 1999 the conditions were met for the legal remedial secession 1 and independence of Kosovo. (Ryngaert & Gri oen, 2009, p. 585.) It should be admitted that the independence of Kosovo is completely predetermined. (Vidmar, 2009, p. 846.) It is almost impossible that the ticking clock will be turned back and that Kosovo will somehow return to a Regarding the situation in Kosovo, the International Court in the Hague considers: "the fact that the Kosovo issue has its own political aspect does not deprive it of its character as a legal issue -the Court does not deal with 1-At the commemoration of the 600th anniversary of the Battle of Kosovo in June 1989, in his speech in Gazimestan, Milošević expressed his desire that Kosovo remains Serbian and announced the possibility of armed con icts. e international community, which in the 1990s failed in Bosnia and Herzegovina, at the end of the 1990s, she was not overly interested in the background of the con ict, it was important to prevent bloodshed. e United Nations and NATO did not want to repeat Srebrenica in front of their eyes, and Milosevic's regime exceeded every measure. e violence of the Yugoslav police began, and terrible war crimes and ethnic persecution of Kosovars were committed. e committed war crimes were a valid reason for the international community to accept the secession of Kosovo from Serbia, thus ful lling the conditions for remedial secession.
the political motives behind the request or the political implications that its opinion may have." (Jamar & Vigness, 2010, p. 914.) On February 17, 2008, Kosovo declared independence from Serbia in a statement declaring: "Kosovo will be an independent and sovereign state." Since this declaration is a very controversial act, the General Assembly, on behalf of Serbia, requested an advisory opinion from the International Kosovo illustrates a situation similar to that of East Timor, where a minority group fought, seeking self-determination and supported by Great Powers, eventually achieving independence from its central government, in this case, Serbia. (Sterio, 2010, p. 165 (Sterio, 2010, p. 166.)

Case Study of Catalonia
For centuries, Catalonia was part of the Crown of Aragon, an important Mediterranean empire. Catalonia emerged as a separate and de ned territory in the 12th century and became part of Spain in the 15th century with the marriage of King Ferdinand and Isabella of Castile. (Lulić, 2019, p. 79.) Catalonia retained its autonomy, culture, language, and tax system, but its autonomous rule gradually declined over the two centuries that followed. Catalonia, as a state, disappeared in 1716 as a result of its loss in the War for the Spanish Succession. (Lulić, 2019, p. 80 Catalonia. (Lulić, 2019, p. 82.) In the Constitution of Spain (1978) in Art.
2. it is stated, inter alia, that the Constitution is based on the unbreakable unity of the Spanish nation, the common and indivisible homeland of all Spaniards, recognizes and guarantees the right to self-government of the nationalities of the regions of which it consists and solidarity among them.
According to the Constitution, let's remind, the Spanish army has the right to protect the territorial integrity of the Kingdom (Article 8 ese are a) dependent peoples, b) peoples under racist regimes, and c) peoples under foreign military occupation or annexation. In these cases, it is more or less possible to determine who the peoples are (who have the right to self-determination) and in which procedure (how they can) exercise that right. e Catalan people do not belong to any of these groups of people, but the Kosovar people do. (Lulić, 2019, p. 99.) Oppressed peoples, in theory, have the right to external self-determination, which includes the right to "remedial secession" and independence. (Sterio, 2010, p. 138.) Kosovo is such an example. Unlike Kosovo, the case of Catalonia is an example of abuse of the right to self-determination of the people through its external form, and if it had been realized, it would have represented an illegal unilateral secession. e right to self-determination of peoples, including secession, has exceptionally begun to be tolerated against the will of the central authorities of the states in the case when the con icts between the central authorities and secessionists have reached the proportions of major humanitarian disasters (Lulić, 2019, p. 101.) and serious systematic violations of human rights, as it is on an example of Kosovo. In that case, as Buchanan previously de ned in his theory of remedial secession, secession will only be allowed as a last resort when a group in a certain territory within an existing state is denied basic human rights and freedoms and their survival is threatened.
In the examples of the case studies, and especially of Catalonia, we see that they strongly shook and destabilized the EU and that a signi cant step was taken towards the disintegration of the European political scene, which will eventually a ect the whole world.
In the case of Catalonia, Coppieters believes that the "Franco's Map" as a justi cation for secession is a "fi g leaf" for social and economic egoism, cultural and national arrogance, and the "bare ambitions" of local politicians. (Lulić, 2019, p. 103.) Since in the case of Catalonia there is no place for the application of "remedial secession", because Spain has been a democratic state since the end of the 70s, Connolly proposes the so-called "consensual secession", anything beyond that would represent an abuse of that right. (Lulić, 2019, p. 105.) According to opponents of secession, Catalonia is not a dependent territory or a territory where severe human rights violations occur, unlike Kosovo where it was evident. e internal right to self-determination has been realized and exhausted because they live in a democratic and highly decentralized state. (Lulić, 2019, p. 108.) It is necessary to conclude that the issue of Kosovo should remain a sui generis case in modern public international law and the last permissible action in achieving independence in the world, and not a precedent in international legal practice.