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Home Archive for category "Self-Determination" (Page 6)

ICJ finds that Kosovo’s Declaration of Independence not in Violation of International Law

Published on July 23, 2010        Author: 

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 . Read the rest of this entry…

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Kosovo Advisory Opinion Preview

Published on July 14, 2010        Author: 

Editor’s Note: This is a featured post. Newer posts, including those in our online symposium on The Constitutionalization of International Law, appear below

The ICJ has now officially announced that it will deliver its advisory opinion in the Kosovo case on 22 July. This essay/post is intended to serve as a preview of the many issues raised in the case, of the main lines of argument by states before the Court, and of the several possible avenues that the Court might take in deciding the case. Read the rest of this entry…

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Reflections on self-determination, and the status of Kosovo in light of the Report of the Independent International Fact-Finding Mission on the Conflict in Georgia

Published on December 31, 2009        Author: 

Zoran Oklopcic is Assistant Professor, Department of Law, Carleton University, Ottawa

Editor’s Note: This post is part of a series discussing the the Report of the Independent International Fact-Finding Mission on the Conflict in Georgia. Other posts in this series include Gazzini, “Criteria for Statehood as Applied by the EU’s Independent Fact-Finding Mission on the Conflict in Georgia” and de Hoogh, “Georgia’s Short-Lived Military Excursion into South Ossetia: The Use of Armed Force and Self-Defence

What is the role of self-determination in regulating territorial conflicts in the post-Cold War world? According to the Report of the Independent International Fact-Finding Mission on the Conflict in Georgia: there is no such role. The Report takes a conservative view on the principle of self-determination claiming that it can justify the emergence of new states only in the contexts of decolonization. While noting that there is a body of scholarship that understands self-determination in a remedial way—as a right of seriously persecuted groups to secede from an oppressive state, the Report claims that documents that purport to give backing to this interpretation, such as the Friendly Relations Declaration, are merely “ a deviation from general state practice” (138).

The Report is not without ambiguities, and quite possibly inconsistencies. In Chapter 3 of Volume 2, the Report discusses the criteria for statehood consisting of objective and ‘additional’ criteria. The objective criteria are a defined territory, a permanent population, and an effective government. Interestingly, the Report mentions self-determination as an additional “standard for the qualification of an entity as a state”, which together with prohibition of the use of force and the degree of recognition of the entity ought to inform the judgment of states about whether or not to recognize the nascent entity as an independent state. From this list, one might infer that the officials of foreign states ought to make a judgment about whether the emergent entity has been created in accordance with the principle of self-determination. Given the Report’s opinion on the geographical and historical scope of self-determination, such a judgment couldn’t apply to the states that arose outside of a decolonization context. A more charitable (if questionable), reading of the ‘additional standard’ would be to understand self-determination in its internal capacity. Understood this way, the “qualification” of whether a state exists would turn on whether the new entity provides mechanisms for participation, representation and political equality. The Report does maintain the possibility that the additional criterion of self-determination is not necessarily a legal norm, but a political standard. Such an interpretation would show the way out of inconsistency, but would immediately open up a more difficult question: How can we access the putative normative promise of self-determination now that self-determination had become a defunct legal principle unable to tell us when to trigger the creation of a new polity, how to draw its boundaries, and what degree of recognition to accord to such an entity?  Read the rest of this entry…

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