The International Court of Justice has held that the declaration of independence by Kosovo is not in violation of international law. Despite what is likely to be said in the media, this opinion is rather narrow. The Court has not ruled that Kosovo is (or is not a State) nor has it ruled that it is lawful (or unlawful) for States to recognise the independence of Kosovo. All that the Court has said is that international law does not prohibit the people of Kosovo (or their representatives) from declaring independence. I suppose this is of some relevance to other people aspiring for independence as it indicates that international law does not prevent a minority from trying to achieve independence – by means of a verbal declaration. I doubt that this is in any way controversial but just to have the ICJ say this gives a political boost to those aspiring for independence. So in this sense, the opinion is a victory for Kosovo. As Marko stated in his excellent preview (which is still worth reading as it captures really well the issues before the Court and the options that it had before it), one of the key issues before the Court was the “question question”: what was the scope of the question before the Court? According to the Court:
“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. Accordingly, the Court does not consider that it is necessary to address such issues as whether or not the declaration has led to the creation of a State or the status of the acts of recognition in order to answer the question put by the General Assembly.” (para. 51)
Furthermore in answering the narrow question as to whether or not the declaration was in accordance with internationa law, the Court took the view that all it had to do was decide whether or not the declaration was prohibited by international law. In its view, it was not called upon to decide whether Kosovo had a right or entitlement to declare independence. This mean that issues to do with self-determination and whether there was a right of minorities to “remedial seccession” were not addressed by the Court . The Court contrasted the question before it with the question that the Canadian Supreme Court was asked in the Reference Re Secession of Quebec Case (1998):
“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, a fortiori, 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.” (para. 56)
In his Separate Opinion, Judge Simma took issue with the position of the Court that saying that the declaration was not prohibited by international law meant that it was in accordance with international law. He thinks this approach follows from a narrrow consensualist approach to international law derived from the Lotus case (what is not prohibited is permitted) and that the court ought to have addressed whether the declaration was permitted by international law. Judge Simma is right in that saying that the declaration is not prohibited only gives a partial answer to the question whether the declaration is “in accordance” with international law. If international law actually expressly permitted the declaration (or provided a right to independence) that would be relevant in saying the declaration was “in accordance with international law”. Also, it is logically possible for international law neither to prohibit nor to permit declarations of independence. Indeed, the answer given by the Court does not imply that internatioanl law permits declarations of independence in these sorts of situations.
The Court considered the legality of the declaration of independence from three perspectives:
whether it was prohibited by general international law;
whether it was prohibited by Security Council Resolution 1244;
and whether it was prohibited by regulations of the United Nations Mission in Kosovo (UNMIK), in particular the Consitutional Framework adopted by UNMIK.
The Court held that neither of these three bodies of law prohibited the declaration. According to it there was no practice in general international law which allowed it to draw the conclusion that declarations of independence are prohibited. The opinion contains interesting statements about the interpretation of Security Council resolutions. In its view Res 1244 was concerned with creating an interim regime for Kosovo and not with dealing with a final settlement of Kosovo’s situation. Also, though the Court appeared to accept that the Security Council can in principle create binding obligations for non-State actors, it held that 1244 was not addressed to the Kosovo Albanian leadership.
The Court’s conclusions that (i) the declaration of independence were not issued by the institutions of self government for Kosovo in that capacity and (ii) that the UNMIK regulations formed part of international law may prove to be some of the most controversial parts of the opinion. The latter point was disputed by Judge Yusuf. I will need to think more about this but the reasoning of the Court does not appear to me to be particularly strong. The reason why the court was so keen to make point (i) above was because of its holding on point (ii). If the Court had found that the UNMIK Constitutional Framework was not part of international law then it would not have needed to engage in what apppares to have been a strained conclusion that the authors of the declaration happened to be members of te Kosovo Assembly, the President and government of Kosovo but that these persons were not acting in their capacity as the institutions of government of Kosovo. On point (ii), it seems to me that because the legal basis for UNMIK regulations are to be found in a UNSC resolution it does not necessarily follow that those instruments are part of international law – afterall they are intended to take effect only within a particular domestic system of law.