Why Does the Kosovo Opinion Not Grant Kosovo Its Independence?

Last week, the International Court of Justice delivered its advisory opinion (PDF file) on the legality of Kosovo’s declaration of independence. It considered that Kosovo’s declaration of independence was not illegal but did not go as far as officially recognizing Kosovo’s independence in a positive manner. This caused a lot of confusion for many people – including the mainstream media – trying to understand what the ICJ said. This post attempts to clarify what the Court said, why it said what it said, and what the consequences are.

As Justine has noted in her post a few days ago, paragraph 56 is particularly interesting in its display of how the Court defined the question (it goes without saying that the emphasis is mine):

56. The question put to the Supreme Court of Canada inquired whether there was a right to “effect secession”, and whether there was a rule of international law which conferred a positive entitlement on any of the organs named. By contrast, the General Assembly has asked whether the declaration of independence was “in accordance with” international law. The answer to that question turns on whether or not the applicable international law prohibited the declaration of independence. If the Court concludes that it did, then it must answer the question put by saying that the declaration of independence was not in accordance with international law. It follows that the task which the Court is called upon to perform is to determine whether or not the declaration of independence was adopted in violation of international law. The Court is not required by the question it has been asked to take a position on whether international law conferred a positive entitlement on Kosovo unilaterally to declare its independence or, afortiori, on whether international law generally confers an entitlement on entities situated within a State unilaterally to break away from it. Indeed, it is entirely possible for a particular act ⎯ such as a unilateral declaration of independence ⎯ not to be in violation of international law without necessarily constituting the exercise of a right conferred by it. The Court has been asked for an opinion on the first point, not the second.

It must be noted that for many international lawyers, this strict interpretation of the question that was asked to the Court by the General Assembly of the United Nations – “Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?” – in Resolution 63/3 on 8 October 2008 is particularly frustrating, as we all (more or less) secretly expected a much bigger bombshell to come out of the Peace Palace in The Hague (no pun intended). The Court justifies its strict interpretation of the question in paragraph 51 of the Opinion:

51. In the present case, the question posed by the General Assembly is clearly formulated. The question is narrow and specific; it asks for the Court’s opinion on whether or not the declaration of independence is in accordance with international law. It does not ask about the legal consequences of that declaration. In particular, it does not ask whether or not Kosovo has achieved statehood. Nor does it ask about the validity or legal effects of the recognition of Kosovo by those States which have recognized it as an independent State. (…)

The problem with this is that it generates a lot of confusion, especially among non-lawyers who saw this in the news – which, as Dov Jacobs noted, initially reported that the ICJ had recognized Kosovo’s independence – and did not understand how the Court could declare Kosovo’s declaration of independence not illegal and yet fail to fully recognize Kosovo’s statehood. To all my non-lawyer friends, if it may reassure you, I did not quite fully understand it either – despite having studied law for now five years – until I researched it and thought a bit more about it.

So this post is for all my friends who know I study international law and have asked me, whether by email or at work, what the Court’s decision really means, and how can it say that Kosovo’s declaration of independence is not illegal and yet not recognize Kosovo as an independent state.

The first thing that needs to be mentioned about the ICJ’s Kosovo Opinion is that – as its name indicates and as was previously mentioned – it is an advisory opinion (experienced international lawyers may skip this paragraph). For non-lawyers, allow me to explain. The ICJ has two different types of “jurisdiction”: it has a contentious jurisdiction, where it settles disputes between States and its decisions are in effect binding upon the parties to the dispute, and it has an advisory jurisdiction, in which it gives advisory opinions to essentially United Nations organs such as the General Assembly or the Security Council and other UN agencies (for a list of UN organs and agencies authorized to request advisory opinions, see here). These advisory opinions are not binding, even though they do carry in principle great moral authority. For those who live in a civil law system, think of the Conseil d’Etat (or its equivalent in your respective countries) and its contentious and advisory jurisdiction. It’s basically the same thing.

In the case of the Kosovo Opinion, the question was put to the court through General Assembly Resolution 63/3. Therefore, the Court’s decision has no binding effect on Serbia or any other State.

Although I think that mentioning that the Court’s decision last week really was an advisory opinion, it does not answer the initial question: how can Kosovo’s declaration be declare “not illegal” and yet not systematically entail recognition of its Statehood. Welcome to the twisted world of international law, where the legal is always confronted with the political, and sometimes fails to assert itself as a regulation force in the international system.

So what did the Opinion say? What the ICJ did in fact do is analyse the legality of Kosovo’s unilateral declaration of independence on the grounds of general international law, Security Council Resolution 1244 (1999) and the Constitutional Framework that was created to set up a governmental structure in Kosovo. In both cases, it found nothing illegal about the declaration. But, as I previously mentioned, it deliberately kept away from granting statehood to Kosovo.

So, it’s really simple even though it seems to go against common sense: Kosovo, by unilaterally declaring its independence did not violate international law. But just because it didn’t violate international law by declaring itself independent does not mean that the Court recognizes its independence.

Yes, it is frustrating. It is disappointing. And it feels incredibly incomplete. “You did nothing wrong, but we’re not recognizing that you are right.” I particularly like Dov Jacob’s live reaction to the Opinion:

“The conclusion in itself is not that shocking, but the reasoning seems a little poor. In any case, as it stands, the Opinion isn’t very useful. Basically, any group of random individuals can declare independence without violating international law… Fantastic…”

German Judge Bruno Simma’s reaction in his dissenting opinion – I’m still looking for a link to that, do not hesitate to put it up in a comment if you’re faster than I am // EDIT: Dov Jacobs graciously posted a link in comments to all the opinions in this case – is particularly interesting in its criticism of the Court’s decision. As EJIL: Talk!’s Dapo Akande notes, Judge Simma takes issue with the Court’s method of establishing that Kosovo’s declaration of independence is not illegal on the ground that it does not violate any existing law as being neo-Lotusian. Again, for the non-lawyers, the Lotus Case is a very famous case from 1927 in which the Permanent Court of International Justice, the ICJ’s predecessor, famously declared that what was not prohibited by international law was necessarily legal. I’m missing my law books right now (I’m stuck in Paris, until Monday, and my books are in Lyon) but I think the famous quote was “les limitations à l’indépendance des Etats ne se présument donc pas.” (limitations to the independence of the States may not be presumed).

It’s true that the Lotus decision’s reasoning sounds a bit anachronistic in the 21st century, in which international law has considerably expanded in just a century.

In the end, the one word we’ll always associate with this advisory opinion is disappointment. Although it seems to strengthen Kosovo’s position rather than Serbia’s, the stalemate is still there, both legally and politically. I don’t think the Court did anyone a favour but itself by throwing the hot potato back into the political realm. And for the international lawyer, there’s no bigger humiliation.

UPDATE: There’s an interesting post by Professor John Cerone over at Opinio Juris, not very different from mine except that it’s much better written, to convince skeptics that the ICJ really didn’t say that much, and leaves everything to the political process. And, if I understand Professor Cerone’s point correctly, as it should. Here’s an excerpt from the introducing paragraph:

“The World Court’s conclusion that Kosovo’s declaration of independence was not unlawful is being with a resounding “duh” by most international lawyers. The International Court of Justice, in the narrow advisory opinion, simply found that the making of the declaration was not itself an act contrary to international law. Similarly, if I were to stand in my living room and declare it to be an independent state, I would have violated no rule of international law. Even if I were to broadcast that declaration to the world, it would still not be unlawful. It would also not have any legal effect.”

Advertisements

, , , ,

  1. #1 by Dov Jacobs on 29 July 2010 - 21:33

    Nice commentary (and not just because it refers back to my blog…). I’ve been equally struggling to explain the full extent (or rather “lesser extent” in this case) of what the ICJ actually said.
    What’s worrying is not so much that the media and the general public are not getting it but that some lawyers are also totally misrepresenting the content of the decision in the press. I find that quite intellectually dishonest, but I suppose that political spin is part of the game.
    BTW, If you’re still looking for the Simma opinion, I posted a link to all the opinions the following day: http://dovjacobs.blogspot.com/2010/07/icj-kosovo-opinion-files-for-download.html

  2. #2 by Xavier Rauscher on 29 July 2010 - 21:42

    I didn’t know Blogspot had trackback links, or did you find out about the link to your blog through a different way? Maybe the stats. Hmm, I’m curious.

    And yes, many people are a bit confused about what the court said, because honestly, it just feels like something’s missing. When I first heard about the Court’s decision (through your blog, incidentally), I didn’t understand either. Surely the ICJ didn’t just say that . Many friends and some colleagues at work have actually come up to me to ask about it, which gave me the idea of this post.

    And others are, as you indicate, trying to profit from the ambiguities and the non-dits of the Opinion, but that’s after all what lawyers are paid to do…

    Et merci pour le lien vers l’opinion de Simma!

  3. #3 by Mohamed on 13 August 2010 - 15:02

    In my part I have been thinking about it also. What did the ICJ really say ?
    Maybe the real answer was : “I have no competences to open the UN to more then 192 states.
    Because we can find the same situation (of course with very big diferences) in Spain with its autonomous regions, in France with Corse, New-Caledonia, but also in Angola with Cabinda, Occidental Sahara with Morocco, Abkhasie and South Ossetie, Vietnam, even Palestine, and all those countries with important minorities like Casamance in Senegal, even Kathanga. To all those desires for independence the answer is: if you declare independence unilaterally, you have the right but I can, I won’t be there for you. That’s how I agree with you Xavier, the General Assembly and the states concerned were sent back to find a political solution.

  4. #4 by Xavier Rauscher on 15 August 2010 - 12:39

    The question I can’t bring myself to answer is: is it really in anyone’s interest that the ICJ, or any other court of law, gets involved in issues relating to statehood. Is it possible – even on a theoretical plane – to truly have binding legal criteria that would suffice to establish whether a polity qualifies or not as a state?
    If it was possible, would we want it? The issue of statehood is so politicized, so complex, that I have a hard time believing that a legal framework would be adequate to establish statehood.

    But then again, I might be wrong.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: