Waiting for Godot: An Analysis of the ICJ Kosovo Advisory Opinion

Waiting for Godot: An Analysis of the ICJ Kosovo Advisory Opinion

Dov Jacobs and Yannick Radi are both postdoctoral researchers at the Amsterdam Center of International Law, University of Amsterdam

Nearly two years after the United Nations General Assembly (UNGA) submitted a request to the International Court of Justice (ICJ) in relation to the February 2008 Declaration of independence of Kosovo, the Court issued its advisory opinion on 22 July 2010, finding that the declaration was not in violation of international law.

This opinion gave rise to a number of commentaries which discussed various aspects of the case. Here on EJIL Talk!, See the extensive preview of the legal issues of the case before the issuance of the opinion by Marko Milanovic and the subsequent analysis by Dapo Akande. Elsewhere, you can refer to the initial analysis by Dov Jacobs over at Spreading the Jam (here and here) and the comprehensive online symposium on The Hague Justice Portal. These commentaries usually isolate a topic related to the opinion (exercise of discretion, self-determination, the application of international law to individuals…) and deconstruct the reasoning of the Court in relation to it.

In an article just published by the Leiden Journal of International Law, we try to explain more generally, the feeling that something is missing in the decision irrespective of the specific flaws in the legal reasoning of the Court, which gives the impression that we are waiting for something that will never come, in essence waiting for Godot.

In a nutshell, we argue that the main problem with the opinion is that the ICJ accepted to respond to a question that did not concern its core ratione personae jurisdiction which is primarily States and the UN. By considering the conduct of non-State entities, the ICJ let itself be dragged in a sort of twilight zone of international law where its conclusions could in fact not make sense.

The article therefore highlights the inconsistencies in the Court’s logic and how they relate to this ratione personae issue, and, ultimately suggests that the ICJ should have looked beyond the conduct of the authors of the declaration, to the responsibility of the UN, as the administrator of the territory, and the responsibility of Kosovo, which we argue, was implicitly recognized by the Court as an autonomous State.

1. The exercise of jurisdiction and discretion

The first thing that the article focuses on is the criterion applied by the ICJ to determine its jurisdiction and the exercise of its discretion. We argue that the current framework is confusing (a) and that this confusion could be cleared with a clear refocus on the judicial function of the Court, more specifically in relation to its rationa personae jurisdiction (b). We conclude that the key issue is how the question is formulated (c).

a)      A Confusing Framework

The article highlights the confused and in many ways arbitrary framework that the Court applies for determining that it has jurisdiction and whether to exercise discretion not to proceed should it indeed have jurisdiction.

In relation to jurisdiction, the Court does not explain why it feels compelled to go beyond a textual application of Article 96(1) of the UN Charter, which gives general competence to the UNGA (and the UNSC) to request an advisory opinion, irrespective of whether this falls within “the scope of its activities”, as required for advisory opinions requested by other organs or specialized agencies in application of Article 96(2). The only reason the Court gives for considering the question of the distribution of competences between the UNGA and the UNSC, and more generally the competences of the UNGA, is that is has “sometimes” done so in the past (Advisory Opinion, §21). This is hardly a solid basis for establishing a jurisdictional criterion. It is suggested that the ICJ should clearly decide whether it is or not adopting a restrictive reading of Article 96(1) and if so why.

In relation to the exercise of discretion, the absence of any clear guidelines is even more confusing. For one, on a general methodological level, it is unclear from a legal point of view why the Court needs to explain its reasons for not exercising its discretion. There is certainly a pedagogical dimension, but it is not legally required. Once a court has jurisdiction, the presumption is that it exercises it, and it is only if it decides not to, that it would be under an obligation to explain. Second of all, the Court does not give any explanation of why it considers some of the questions that might lead it to not exercise its jurisdiction. For example, it considers the possible adverse effects of the opinion, the motives of the requesting State, or, here again, the internal relationship between the UNGA and the UNSC. Why these issues rather than others is not made clear.

b)      The search for a guiding principle: respecting the judicial function of the Court

The reason for this confusion is the absence of an underlying guiding principle. We therefore suggest one: the compatibility with the judicial function of the Court. In fact, this principle is mentioned in the opinion itself, where the Court considers that “the discretion […] exists so as to protect the integrity of the Court’s judicial function and its nature as the principal organ of the United Nations” (advisory opinion, §25), but never draws the contours of what it means exactly. For Judge Cançado Trindade, in his lengthy separate opinion, the Court “has confused discretion with judicial propriety” (Separate opinion, §26).

What would this have changed in the reasoning of the Court?

In relation to jurisdiction, it should compel the ICJ to more strictly interpret the “legal nature” of the question. Right now, there seems to be a presumption that if the question is framed in international law language, it is a legal question. But this misses out a fundamental aspect of the exact nature of the ICJ. It is not just a Court of international law. It is a Court that essentially deals, as the principal judicial organ of the UN, with international law as relating to States and the UN. The absence of this fundamental personal dimension to jurisdiction has for a consequence that the ICJ could have, in theory, jurisdiction to answer the question of whether Dov Jacobs and Yannick Radi violated international law by crossing the street when the light was not green. This would certainly fit the actual evaluation by the Court of the legal nature of the question, but is surely not what the drafters of the UN Charter had in mind when creating the ICJ. We therefore suggest that the Court could have found that it did not in fact have jurisdiction because the question related to the conduct of entities (either an internal organ, or a group of individuals, depending on the interpretation of the facts) that do not fall within its natural personal jurisdiction.

In relation to the exercise of discretion, such a focus on the judicial function of the Court would have several consequences. First of all, it would clearly remove from the discussion the considerations mentioned previously on the political effect of the question, the motives of the State at the origin of the request or the distribution of competences between various UN organs. Second of all, it would justify, in the exercise of its judicial function, that the ICJ be allowed to analyze the legal utility of the question, both from the point of view of the requesting organ and the content of the question itself.

On the requesting organ, we make the following finding: technically, an ICJ advisory opinion can never have any legal utility for the UNGA. Indeed, as an essentially political organ that issues non-binding resolutions, it need not be guided by conformity with international law. For example, it would have been perfectly possible for the UNGA to approve the declaration of independence, even if the ICJ had found it to not be in conformity with international law. Which leads us to a rather radical solution, which is logical, but unlikely to be picked up on:  to remove the power of the UNGA to request an advisory opinion, except for issues touching upon the internal functioning of the UN.

Less radically, the Court should acknowledge that it is within its judicial power to evaluate the legal utility of the question itself. Indeed, the whole advisory mechanism is premised on the idea that the UNGA does not have sufficient knowledge in law to answer the question, why should it be trusted to phrase the question correctly? In effect, this would mean that if the question does not cover relevant areas of international law, such as, in this case, the statehood, sovereignty or self-determination, the Court would be legitimate to refuse to answer it.

c)      Conclusion on jurisdiction and discretion

What becomes apparent from the previous developments is that the key issue is the question itself. What we have suggested so far is that the Court decline to exercise jurisdiction if the question does not meet certain criteria that relate to its judicial function. Alternatively, it could grant itself full discretion to bring the question in line with these criteria. In this case, it would have implied to not stop at the level of the Kosovo assembly, or the individuals that compose it, but look to the responsibility of either the UN or Kosovo, as we discuss in the final part of our article. But first, we chose to illustrate one particular difficulty with the Court’s findings, in relation to the relevancy of the Constitutional Framework.

1. The ICJ’s unconvincing view on the Constitutional Framework

Our article takes issue with the reasoning of the Court on of the Constitutional Framework as relevant international law to be considered in the proceedings. In a nutshell, it considers that because it is an UNMIK regulation, adopted by the Special Representative of the UNSG, who himself draws his authority from UNSC Res 1244, it “derives its binding force from the binding character of resolution 1244(1999) and thus from international law. In that sense it possesses an international legal character” (advisory opinion, §88) taking effect in a sui generis international legal order.

We argue however that this reasoning is fundamentally flawed. Indeed, if all UNMIK Regulations are relevant international law, and if, as it did here, the Court accepts jurisdiction over non-State entities, then the ICJ in effect becomes the Kosovo constitutional court, or even, a criminal court and a civil court, should the UNMIK Regulation under consideration touch upon criminal or civil obligations.

To avoid this weird conclusion, the Court should have considered in what legal order the Constitutional Framework was meant to take effect, as suggested by Judge Yussuf in his separate opinion (§18). Indeed, the majority opinion itself finds that the Framework applies in the specific legal order created by Resolution 1244 (Advisory opinion, §89). It therefore was not meant to take effect in the international legal order, irrespective of the “international law character of the norm”, which is the relevant legal order for the ICJ.

In this respect, it is surprising that the ICJ does not even mention the case of the PCIJ relating to the treatment of Polish nationals on the Danzig territory, despite the obvious links to the current case. Indeed, in that case, Poland was claiming that there were discriminatory practices against Polish nationals living in the Free City of Danzig. That territory was set up by the Treaty of Versailles and had a Constitution drafted under the authority of the League of Nations, approved by it and that could not be changed without its permission. Poland was claiming that the practices violated, inter alia, the Constitution. This clearly rings a bell in relation to Kosovo.

However, contrary to the ICJ, the PCIJ considered that “The peculiar character of the Danzig Constitution, as has been said above, affects only the relations between Danzig and the League. A violation or an erroneous application of the Constitution by Danzig is, therefore, so far as international relations are concerned, a matter solely between the League, as guarantor, and Danzig. With regard to Poland, the Danzig Constitution, despite its peculiarities, is and remains the Constitution of a foreign State” (Danzig opinion, at 24). This more subtle approach, which looks at the relevant legal order, in addition to the nature of the document would have been perfectly suited for the situation of Kosovo. The Constitutional Framework did not give rise to international legal obligations to be regulated in the international legal order.

In fact, this could apply to UNSC Resolution 1244, which has a dual status. It is both a binding chapter VII Resolution in the international legal order, and the founding document of the Kosovo internal order. Ultimately, what nature should prevail depends on whose conduct is considered. In relation to the addressees under consideration here, the authors of the declaration of independence, it could be argued that Resolution 1244 must be seen as internal law and not as relevant international law.

Once again, the difficulties that arise from the opinion seem to stem from the question itself and more particularly from the fact that the Court is dealing with the conduct of a group of individuals. This is why, in the final section of the article we argue that the Court should have unveiled this issue of responsibility which ‘haunts’ its reasoning, making us waiting for Godot. Based on the analysis of the Opinion, we defend the idea that the Court provides explicitly the legal arguments for the reader to reach the conclusion that the responsibility of two entities can be invoked: the UN and Kosovo.

1. The Responsibility of the UN and Kosovo

a)      The Responsibility of the UN

Starting with the UN, it appears that the two elements of an international wrongful act of an international organization are met.

As for the attribution, the Declaration is attributable to the UNSC and to the United Nations itself. The Assembly of Kosovo is one of the Provisional Institutions of Self-Government established under Chapter VII of UNSC Resolution 1244 (1999) and Regulation 2001/9 of 15 May 2001. Following the Comments of Articles 2 and 5 of the ILC Draft Articles on international organizations responsibility, the conduct of the Assembly of Kosovo, created by a UNSC Resolution, is thereby attributable to the Security Council which is itself an organ of the UN. In relation to this, the conclusion of the Court that authors did not act as one of the Provisional Institutions, mainly based on their intention, not only flies in the face of the facts of the case (the declaration itself claims to be from the Assembly of Kosovo, convened in an extraordinary meeting, and signed by Jakup Krasniqi, with a explicit mention of his function as President of the Assembly), but leads to adverse results, both in relation to statehood and responsibility. As declared by Judge Benounna: ‘Si on suivait jusqu’au bout un tel raisonnement, il suffirait, en quelque sorte, de se mettre hors la loi pour ne plus avoir à respecter la loi’. In the light of the fact that the Court’s interpretation of authors’ intention is open to discussion, its reasoning seems to be, as qualified by Vice-president Tomka, ‘nothing more than a post hoc intellectual construct’. In any case, the Assembly of Kosovo having acted in its capacity as a Provisional Institution, the ultra vires dimension of the Declaration of independence is irrelevant.

As for the second element of an international wrongful act, the question to be answered is whether the Declaration, attributable to the UN, is in breach of its international obligations? In other words, could the UN, and more specifically the Security Council, legally declare Kosovo independence?  Beyond the fact that this question may be asked in relation to Resolution 1244 (1999), the Declaration is in breach of the principle of territorial integrity enshrined in the UN Charter. As mentioned by Judge Koroma, the UNSC is not entitled to dismember the FRY (Serbia) or impair its territorial integrity without its content’. While under the current state of international law, the Declaration is in breach of the UN Charter and the responsibility of the UN could thereby be sought, the increased “humanization” of international law, as argued by Judge Cançado Trindade, could legitimize such a Declaration by the UNSC. Through this de lege ferenda lens, the primacy of peoples in relation to statehood and the one of human integrity over territorial integrity would not only make the declaration of independence legal but could even be interpreted as entailing an obligation for the UNSC to declare independence.

b)      The Responsibility of Kosovo

One enigmatic issue which creeps up at several places in the Advisory opinion concerns is the legal order wherein the Court considers that the authors of the Declaration acted. The only conclusion which can be drawn in our view is the implied recognition of a Kosovar legal order, this implied recognition raising the issue of the responsibility of Kosovo.

Implied recognition of Kosovo by the ICJ

The ICJ makes many statements on the legal order issue. Mutatis mutandis, it always considers ‘that the declaration of independence of 17 February 2008 was not issued by the Provisional Institutions of Self-Government, nor was it an act intended to take effect, or actually taking effect, within the legal order in which those Provisional Institutions operated’ (advisory opinion, §121). This statement raises a basic question: where does the ICJ consider that the Declaration of independence actually took effect? Given that the Court considers that it did not in the sui generis legal order set up by the UNSC and that the Declaration cannot exist in a legal vacuum, we suggest that it can only have such an effect within another legal order, that is, Kosovo. Implicitly, it appears that the Court recognized thereby Kosovo as a state.

This impression is strengthened by the political evaluation made by the Court when it states, for examples, that “The declaration of independence reflects the awareness of its authors that the final status negotiations had failed and that a critical moment for the future of Kosovo had been reached” (Advisory opinion, §105). Beyond the issue of the propriety of such a statement in a judicial decision, it clearly indicates that the ICJ itself feels that there was no other choice.

Responsibility of Kosovo

It is on this basis which is a necessary consequence of the ICJ’s reasoning, that one can wonder whether the Declaration of independence entails the responsibility of Kosovo as a State.

As for attribution, one can consider that authors acting ‘together in their capacity as representatives of the people of Kosovo outside the framework of the interim administration’ are an organ of Kosovo as understood under Article 4 of the ILC Draft articles on State responsibility. In addition to this primary ground for attribution, one could argue, based on a cross-interpretation of Article 10(2) of the ILC Drafts Article on State responsibility (‘Conduct of an insurrectional or other movement’) and their comments with the comments on attribution of the ILC Draft Articles on IO responsibility, that the authors of the Declaration succeeded in establishing a new state in the territory under UN administration, the Declaration having to be considered as an act of the New Kosovar state, irrespective of its alleged illegality.

Being attributable to Kosovo on these alternative basis, is the Declaration of independence in breach of international law? Concerning Resolution 1244 (1999), Kosovo not being a UN member State nor an explicit addressee of the Resolution, it is difficult to affirm that it is bound by it. However, one can notice that the Declaration of independence itself provides for the respect of, among other things, the principles of the UN Charter and the treaties and other obligations of the former Socialist Federal Republic of Yugoslavia. In light of these elements, we may consider that Kosovo has bound itself by the Charter and thereby breached the principle of territorial integrity as enshrined in it.

It is only by drawing a de lege ferenda, except for Judge Cançado Trindade, analogy with the ‘Declaration on Principles of International Law concerning Friendly relations and Cooperation among States in Accordance with the Charter of the United Nations’, that we may consider that the Declaration, altering territorial integrity for the sake of a persecuted population, is not in breach of the UN Charter.

Conclusion:

The scenario put forward by our article could seem a little far-fetched. However, in the evolving nature of the international legal order, there is an ever-increasing role of the UN in the exercise of sovereign powers traditionally exercised by States, to the point of expecting the UN to recognize a State unilaterally, as Palestine has tried to obtain in recent months. It therefore makes sense to bring to the fore the idea that with these new powers, comes a greater need for accountability and responsibility mechanisms.