Not such a ‘sui generis’ case after all: assessing the ICJ opinion on Kosovo

Abstract

For 60 years, the international community has limited the right of territories to gain independence without the permission of the “parent state.” Such limits were, however, challenged when Kosovo unilaterally declared independence from Serbia, in February 2008. As a result, Belgrade referred the matter to the International Court of Justice (ICJ). On 22 July 2010, it came back with its long-awaited decision. Taking a narrow view of the question, the majority argued that, in general, declarations of independence, as mere statements, do not violate international law unless stated otherwise by the Security Council. Thus, Kosovo's declaration of independence cannot be considered as being wholly “unique” – as those states that supported its statehood have claimed. On the key questions of whether Kosovo's secession is legal, or if it is even a state, they chose to avoid controversy. On these points, the international community is no clearer now than it was before the case.

Keywords:

• Kosovo
• International Court of Justice
• secession

Notes

Clapham has, however, argued that there is a need to adopt a more flexible understanding of statehood in international politics that recognizes a more subtle variance between entities.

While these elements of what Jackson has called “positive sovereignty” are necessary condition for initial recognition, the recognition of sovereignty is not rescinded by the failure of a state to continue meeting these conditions. This has given rise to what has been termed “quasi-states,” which possess “negative sovereignty” in the form of international recognition, but diminished or absent elements of the “positive sovereignty” that allowed them recognition in the first place.

Belarus and Ukraine were rather interesting inasmuch as they had formally been members of the UN prior to the breakup of the Soviet Union, and so did not have to apply for membership as such. Instead, they simply informed the UN of a name change. However, this did not mean that they were formally recognized as states by the international community, nor did they have their own diplomatic missions to other states.

As Crawford (“State Practice and International Law in Relation to Secession” 114) has noted, states are still reluctant to recognize new states formed outside of the colonial experience: “This practice has not changed since 1989, despite the emergence during that period of 22 new states. On the contrary, the practice has been powerfully reinforced.”

Written submissions were made by the following states, in order of submission: Czech Republic, France, Cyprus, China, Switzerland, Romania, Albania, Austria, Egypt, Germany, Slovakia, Russian Federation, Finland, Poland, Luxembourg, Libyan Arab Jamahiriya, United Kingdom, United States of America, Serbia, Spain, Islamic Republic of Iran, Estonia, Norway, Netherlands, Slovenia, Latvia, Japan, Brazil, Ireland, Denmark, Argentina, Azerbaijan, Maldives, Sierra Leone and Bolivia. A submission made by Bolivarian Venezuela after the deadline was subsequently accepted.

The participants in this process were, in the following order, Serbia, the authors of the declaration of independence, Albania, Germany, Saudi Arabia, Argentina, Austria, Azerbaijan, Belarus, Bolivia, Brazil, Bulgaria, Burundi, China, Cyprus, Croatia, Denmark, Spain, United States, Russia, Finland, France, Jordan, Norway, Netherlands, Romania, United Kingdom, Venezuela and Vietnam.

The full proceedings of the Court, including transcripts of the oral proceedings, can be found on the ICJ website: <www.icj-cij.org>

As the judges stated, ‘Whatever its political aspects, the Court cannot refuse to respond to the legal elements of a question which invites it to discharge an essentially judicial task, namely, in the present case, an assessment of an act by reference to international law. The Court has also made clear that, in determining the jurisdictional issue of whether it is confronted with a legal question, it is not concerned with the political nature of the motives which may have inspired the request or the political implications which its opinion might have.’ (ICJ para.27)

Some of the headlines at the time included: “Kosovo's independence is legal, UN court rules.” The Guardian 22 July 2010; “ICJ rules Kosovo independence ‘legal’.” Euronews 22 July 2010; “ICJ rules Kosovo statehood ‘legal’.” Aljazeera 23 July 2010.

However, at least one of the judges disagreed with this assessment, arguing that the Court should have taken the opportunity to address this very question. “The relevance of self-determination and/or remedial secession remains an important question in terms of resolving the broader dispute in Kosovo and in comprehensively addressing all aspects of the accordance with international law of the declaration of independence. None other than the authors of the declaration of independence make reference to the ‘will of [their] people’ in operative paragraph 1 thereof, which is a fairly clear reference to their purported exercise of self-determination (see paragraph 75 of the Opinion, where the declaration of independence is quoted in full). Moreover, consideration of these points would very well have been within the scope of the question as understood by the Kosovars themselves, amongst several Participants, who make reference to a right of external self-determination grounded in self-determination and ‘remedial secession’ as a people. The treatment – or rather, non-treatment – of these submissions by the Court, in my opinion, does not seem to be judicially sound, given the fact that the Court has not refused to give the opinion requested from it to the General Assembly” (Simma para.6.).

For example, Guido Westerwelle, the German Foreign Minister stated, during a press conference held with the Cypriot Foreign Minister in Nicosia, that, “It is a unique decision in a unique situation with a unique historical background” (Republic of Cyprus).