Posts Tagged Statehood
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). Read the rest of this entry »
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. Read the full article
There’s a recent internet “buzz” around the question of whether the European Union is or is not a State, following British MP Daniel Hannan’s post claiming that, with the UN recognizing the EU officially and the Lisbon treaty giving it the power to sign treaties, the European Union was now officially a State under international law.
I was doing my usual blog tour through RSS feeds and such, and came across this post on this question by Julian Ku at Opinio Juris. Reading the comments under them, one of them caught my attention. It was written by Tobias Thienel, who contributes at the Invisible College Blog. Tobias Thienel wrote, on the question of whether the EU was or not a State:
“for an entity to be a state, it must not only have powers comparable to a state (a ‘government’ in the words of the Montevideo Convention), but those powers must not be derived from anyone else. They also, therefore, must not be limited by someone else’s consent. That, in a nutshell, is what sovereignty means.
A state naturally has full ‘compétence de la compétence’, in that it can take new powers at any time, of its own initiative.
The EU cannot. It remains bound by the principle of limited attribution, and derives all its powers from the Treaties, that is to say from the member states. It does not hold power in its own right, no matter how much power – or what powers, including the capacity to make treaties – it holds.”
I started writing a comment to discuss this point, and the comment ended up being over a 1000 words long. Feeling it would be too long for a comment, I decided to post it here instead. Hence the abrupt start:
I think Tobias Thienel’s point about the United States having as a State “la compétence de la compétence”, and not the European Union raises an interesting issue of comparison. I believe he is right in the end, but I’ve been toying with the idea of comparing the US’s constitutional structure and the EU’s institutions, and I’ve found some interesting parallels.
First of all, words of caution: comparison is not, of course, reason, and what I am about to write will probably make any comparative legal scholar scream, but I think it’s worth thinking about.
I left my legal lexicon at home, but if I remember correctly, “la compétence de la compétence” as far as State sovereignty is concerned is the capacity of a State to define the limits on its powers on its own, without exterior intervention. In that sense, bar a full-fledged revolution, “compétence de la compétence” is incarnated by the State’s constitution, and more precisely in the clauses concerning the possibility to amend it.
So the question is, how much difference is there in who holds the power to modify or amend the US Constitution and the EU treaties? In principle, Tobias Thienel’s claim that the US has kompetenz-kompetenz and not the EU is exact. But from a practical point of view, the difference is less than it seems. Read the rest of this entry »