The Kosovo Opinion

The Kosovo Opinion

 Christian J. Tams is Professor of International Law at the Univeristy of Glasgow. His publications include Enforcing Obligations Erga Omnes in International Law (Cambridge University Press, 2005).

The International Court of Justice’s Kosovo opinion of 22 July had been much expected. It was one of the not so frequent instances which the world (as opposed to State parties, or a small group of international lawyers) was waiting for the world court to speak. Great expectations can lead to great disappointment. And judging from the first round of reactions and responses on this blog and in other fora, there is indeed a feeling of disappointment: of course among those who expected a different outcome, but also among those who would have hoped for a fuller discussion of the legal issues raised by the unilateral declaration of independence of 17 February 2008.

I share many of the points made in the posts by Dapo and Zoran in their posts on this blog, notably their surprise at the Court’s strained conclusion on the identity of the authors of the declaration of independence – a readjustment of the request that is rightly criticised by Vice-President Tomka in his declaration. Instead of reiterating my agreement with other criticisms, I will use this comment to make two broader points on the scope of the opinion. The first comes back to the “minimalist” focus of the opinion, and essentially is an attempt to shift some of the blame away from the Court. The second is a reflection on what seems to be the crucial substantive statement of the opinion – namely that general international law does not prohibit declarations of independence.

A narrow answer to a narrow question

First, the Court’s minimalism. Few fail to mention it, some even speak of a “non-opinion”. I agree: the Kosovo opinion is narrowly argued, and its advisory value limited. But unlike some others, I do not think the Court can really be blamed for that. Of course, some of the judges may have been relieved to offer a narrow/cautious/minimalist reasoning, yet this is not unusual: when faced with high profile disputes courts often decide to be technical, and the ICJ is no exception. The real point is another one, and while obvious, I do not think it is properly reflected in the discussion so far. It is this: Subject perhaps to Judge Simma’s point on the Lotus principle (a separate issue which I leave to a side for reasons of time/space) the Court was perfectly justified to answer narrowly, as it was asked a narrow question. In focusing on the legality of Kosovo’s declaration of independence, the General Assembly took one aspect of the broader ‘Kosovo problem’ and presented it to the Court. The Court therefore was surely right not to pronounce on “the legal consequences of that declaration” such as “whether or not Kosovo has achieved statehood” or “the validity or legal effects of the recognition of Kosovo by those States which have recognized it as an independent State” (cf. para. 51). These are of course the crucial issues that really make the ‘Kosovo problem’ so interesting for international lawyers. Yet the sponsors of the resolution did not include them in their request – and they chose not to do so deliberately, presumably (although the virtual absence of discussion on GA Res 63/3 makes it difficult to prove it) to ensure a majority in the General Assembly. In other words, the Court’s jurisdiction in the Kosovo proceedings was “truncated” – and it was States in the General Assembly that deliberately truncated it so to avoid an ICJ pronouncement on other issues, notably recognition.

The truncation of disputes is of course a common feature of ICJ proceedings. It is typically encountered in contentious proceedings based on jurisdictional clauses covering one aspect of an overarching crisis – hence the need for the Court to evaluate disputes originating in the Bosnian civil war through the lens of an inter-State dispute  about genocide (and genocide only), or Rwanda’s use of force against the DRC against the yardsticks of (among other treaties) CEDAW, or the UNESCO Constitution. The Kosovo proceedings present an interesting variant on the same theme, this time not based on a narrow compromissory clause, but on a narrow request. Just as the contentious cases mentioned above, they presented the Court with the rather thankless task of having to address a small portion of a complex dispute. In the present case, the Court was probably relieved to be able to give a technical, narrow, or even minimalist answer. But those disappointed with the opinion should bear in mind that it was the General Assembly’s formulation that forced/enabled the Court to argue narrowly. As observed by Judge Skotnikov (para. 18), the “scope of the Advisory Opinion is as narrow and specific as the question it answers”. I do not think the “expansive reading” mentioned in Marko’s case preview ever was a realistic option.

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A “unilateral disarmament”?

Of course, notwithstanding the truncated nature of the request, the advisory opinion contains important statements of law. It puts forward a controversial reading of SC Res. 1244 – which I will leave to other commentators to discuss. And more importantly (at least from an overarching perspective) it establishes that no rule of general international law prohibited the unilateral declaration of independence of 17 February 2008. This is likely to be the key clarification brought about by the proceedings. It is not a revolutionary point, though; it had been made before, and had been a key aspect in the Secession of Quebec proceedings before the Canadian Supreme Court. But for decades, it tended to be overshadowed by the protracted debates about the existence or otherwise of a right of remedial secession.

Paras. 79-81 of the ICJ’s opinion now state very clearly that general international law contains no prohibition against declarations of independence. In fact, the Court gives the impression that things are really quite obvious. Its reasoning is based on three straightforward propositions: (i) Many States have emerged following declarations of independence; international practice provides no evidence for a prohibition. (ii) The principle of territorial integrity, enshrined in dozens of documents, does not imply a prohibition, as it applies in inter-State relations only. (iii) Instances in which the Security Council has condemned declarations of independence (Northern Cyprus; Republika Srpska; Southern Rhodesia) are exceptional and cannot be generalised.

I agree with some commentators to this blog (see particularly the comment by Irini)  that the Court might have said more. Counsel for Cyprus eg made an eloquent argument that attempted secessions were not “purely factual questions about which international law must remain silent”, and that they had to be “consistent with international law” (CR 2009/29, at p. 40). However, it was difficult to find concrete evidence translating the law’s general concern for territorial integrity into a concrete prohibition imposed on the entity claiming statehood. The Court’s answer probably was correct. However, from a broader perspective, this correct answer is rather frustrating. The reason for that is simple: An international legal system aspiring to regulate fundamental question of international relations should regulate questions of secession in more detail than present-day international law does. If we accept the ICJ’s view, then present-day international law really has very little to say directly. And while that may be correct as a matter of law, it is a major gap in the normative ordering of international relations – or even (to borrow an expression with which Professor James Crawford underlined the need for a normative approach to statehood more generally) “a unilateral disarmament” of the law in the face of important values protected by principles such as territorial integrity and self-determination (cf. Crawford, The Creation of States in International Law, 2^nd edn., 2006, at p. vi). More generally, the Court’s Kosovo opinion may perhaps be seen as further evidence of how little integrated non-State actors presently are in the international legal order. The debate about their personality has been won: non-State actors can be bearers of rights and duties. Yet rather frequently, international law does not impose any such rights or obligations, even on questions of fundamental importance such as the use of force by or against non-State actors (not covered by Article 2, para 4, a point much discussed) or – in this case – secession.

The absence of direct rules could be acceptable if international law provided meaningful rules regulating declarations of independence indirectly. This is after all how international law re-appropriates the use of force against non-State actors abroad: by treating it as an attack on the foreign State, which after all international law comprehensively regulates. By the same token, one might be content if international law contained clear rules on how to respond to declarations of independence. But it does not. To be sure, international law does provide institutions to address declarations of independence, primarily the mechanism of recognition. While not constitutive, recognition is indicative: widespread recognition is clear evidence of statehood; widespread non-recognition undermines an entity’s claim to statehood. But the rules on recognition are equally lenient. (To come back to the first of my two points, the General Assembly could have, of course, requested the Court’s view on this matter, but it deliberately chose not to.) We have ceased to discuss duties to recognise in earnest, and duties of non-recognition remain exceptional (cf. Article 41 of the ILC Articles on State Responsibility; or occasional Security Council resolutions addressing particularly problematic declarations of independence). In most cases, recognition remains discretionary. When using their power to recognise, or to withhold recognition, States may well give effect to fundamental values of the international legal order, and they seem to have done so when responding to declarations of independence of, for example, the Bantustans. Yet only in rare instances does the law require them to do so. In short, just as with direct rules, international law provides rather little indirect normative guidance on how to treat declarations of independence, and imposes very few specific commands.

The brief, almost cursory, dismissal of a prohibition against secession in paras. 79-81 of the Kosovo opinion therefore leaves a feeling of emptiness. The problem with the Court’s answer is not that it is wrong, but that it is right. In giving the correct answer to the General Assembly’s curiously formulated question, the Court has drawn attention to a serious gap in the international legal system: international law’s failure to provide meaningful rules that give normative guidance on how the international community should deal with claims to statehood. The Court cannot be blamed for giving that answer, but its opinion reflects a state of the law that is highly unsatisfactory. This, it is submitted, should be the real source of disappointment.