A few days after the International Court of Justice has delivered its advisory opinion on Kosovo’s independence its website is still not operating normally. The situation is seen by many as an important precedent for people seeking independence. While many media have seen the judgement as the ICJ giving the green light to independence of Kosovo, the topic was the legality of Kosovo’s declaration of independence.
The ICJ has now declared that that declaration was legal or to put it more carefully (as the Court did) no international legal provision can be found to doubt the legality of the declaration. This is very good news for the government (it seems we no longer have to add brackets) of Kosovo. Especially since it emerged earlier this week that the trial against Ramush Haradinaj, Kosovo’s former prime minister, needs a partial re-trial.
For most people in the legal community the ICJ’s judgment will come as a surprise. Marko Milanovic, a member of the Serbian legal team in this case has posted a strong analysis of the case. Here, I will focus on how the way the question was formed and how this led to an outcome that in my opinion has lead to a lose/lose outcome for both parties. As Milanovic points out the advisory opinion does not concern Kosovo’s had a possible right to independence, but if the unilateral declaration of independence was in accordance with international law. By asking the General Assemblee to make a request for an advisory opinion based upon this question, Serbia hoped that the ICJ’s judgment would favour their side of the argument. A question about Kosovo’s right to independence would be much more final and have greater consequences for the way it was perceived by other states. However, (and this is of course speculation) according to international law a right to self-determination for entities other than former colonies (so-called external self-determination) is problematic.
The ICJ has decided to stick to the question at hand and has declined from slightly amending the question or going beyond the question at hand. It is quite understandable that the judges decided not go beyond that point, but as the judgment notes in para. 56, the declaration might be in accordance with international law while exercising the right of self-determination might be a violation of international law. As this was not addressed by the ICJ Kosovo can now claim victory, while Serbia can argue (and it has) that the advisory opinion does not change anything. Should the ICJ have been more outspoken on the issues related to the question?