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

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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.

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Nicholas Tsagourias says

July 23, 2010

Thank you Dapo for this commentary. I think the Court should have declared a non liquet. This is actually the thrust of its argument. International law does not deal with declarations of independence and is totally agnostic as far as declarations of independence are concerned. It only deals in exceptional circumstances (use of force) with the legal consequences of such declarations.

Umberto says

July 23, 2010

I wonder whether it is going to be prohibited for Sicily to declare its independence...According to this advisory opinion any region tomorrow could make a declaration of independence and be in compliance with International Law. In Other words, they are saying that what is not prohibited is automatically legal (even though it was Judge Simma alone to present this logical argument). But such a conclusion for a fragmented body of law such as International law is particularly grave...Walking naked in the streets of New York is not specifically prohibited...still, you won't be allowed to do so.

Abebe says

July 23, 2010

I agree with the view that this is indeed a very narrow case which leaves many questions unanswered, namely, the legal consequences of unilateral declaration, legality of state recognition to Kosovo, statehood of Kosovo, the relationship between self-determination and secession. With respect to the framework within which the advisory opinion is being given, I thought Judge Koroma's dissenting opinion made a strong critique to the Court's expansive reformulation of GA's question.

Enrico Milano says

July 24, 2010

Thanks to Dapo Akande for his thoughtful, preliminary reading of the Court’s opinion. The narrow reading anticipated by Marko has been realised. Still, at a first analysis, I find the opinion disconcerting under several respects, namely: 1) because it re-formulates the question in negative terms and it re-affirms the Lotus principle that anything, which is not expressly prohibited, goes in international law (see Simma’s declaration); 2) because in two pages it examines the question from the perspective of general international law (where fundamental principles such as territorial integrity and self-determination interact), a perspective that would have deserved a much more extensive and in-depth examination from the principal judicial organ of the United Nations; 3) because the conclusion that 1244 did not create obligations for the Kosovo authorities to respect the territorial status quo ‘pending a political settlement’ is clearly untenable in light of the object and purpose of the resolution and of the subsequent practice of the SG; 4) because the expression 'political settlement' in 1244 is indeed open to different interpretations, but that is exactly what the GA was seeking from the Court, i.e. to provide the correct interpretation of applicable international law, including 1244; 5) because the determination that the 'authors of the UDI' were not acting in the capacity of provisional authorities and they were acting 'outside' UNMIK legal framework flies in the face of common legal sense (‘outside’ where? In a legal vacuum?). More generally, the Court’s discharge of its advisory function is unsatisfactory: was it unprepared to provide the GA with a thorough and reasoned opinion, it would have done better done to declare itself unwilling to render it due to compelling reasons (see Keith’s separate opinion).

Irini says

July 25, 2010

Many thanks to Dapo for his overview and to those commenting the opinion. Here are some remarks .
1) As already pointed out, the reformulation of the question posed by the GA is open to discussion. However, the Court does not seem to follow even its own interpretation of the question, according to which “the task … is to determine whether or not the declaration of independence was adopted in violation of international law” (para. 56). An act may be in violation of international law in two cases: a) because is prohibited by a specific rule; or b) because, without being specifically prohibited (indeed, it could even be considered as a right under law), it is performed in a way that violates law. Cases concerning freedom of expression illustrate this point. Having examined only the first case, the conclusion in para. 84 seems quite overreaching.
2) I agree with Enrico that the discussion of general international law is unsatisfactory, the more so as this field of law is considered relevant. In addition, some phrases seem quite random, e.g. “the scope of the principle of territorial integrity is confined to the sphere of relations between States”. Are international organizations not bound by it then? Also, is this an indirect way to say that Kosovo is not a State, since it is not bound by the principle of territorial integrity?
3) The treatment of the drafters of the declaration is at least ambiguous: for example in para. 109, how can they be acting outside the organ to which they belong, and at the same time be considered as expression of the people of Kosovo? (of those who voted them? Or of all the people?)
4) Finally, the overall impression is that of a minimalist opinion, which omits a necessary part of the legal reasoning, drafted in terms that a skilful lawyer could use to sustain any opinion (from the fact that the declaration of independence cannot be questioned any more, to the fact that the declaration was only the personal opinion of a group of people and that therefore it has no relevance whatsoever for international law), but conveying a precise political message, especially in its interpretation of Res. 1244.

Christian Pippan says

July 27, 2010

Re: ICJ Opinion on Kosovo’s Declaration of Independence

The view of the International Court of Justice that Kosovo’s UDI is in accordance with (or, in the reading of the majority of the judges, “is not prohibited by”) general international law is, in my estimation, fairly uncontroversial. This aspect of the opinion was generally expected and, given the narrow wording of the UNGA’s request, certainly did not come as a surprise.
Indeed, by far the most perplexing aspect of the ICJ’s opinion comes with its assessment of the compatibility of the UDI with the legal regime established under UNSCR 1244. I agree with Dapo Akande that the Court’s assertion that the authors of the declaration did not act as one of the Provisional Institutions of Self-government of Kosovo (PISG), “but rather as persons who acted together in their capacity as representatives of the people of Kosovo outside the framework of the interim administration” (para. 109) constitutes a rather strained conclusion. It has to be noted, though, that this conclusion ultimately appears to be of little relevance as far as the lawfulness of the UDI under UNSCR 1244 itself is concerned. According to its interpretation by the Court, the resolution does not at all deal with the final status of Kosovo or with the conditions for its achievement (para. 114). Moreover, even if the resolution would be read as containing certain explicit or implicit conditions for Kosovo’s final status (a view that, as just mentioned, is not shared by the majority of the judges), those conditions would be relevant only to UN member states and UN organs but not to “other (i.e. non-state) actors”, since – according to the ICJ – Res. 1244 is addressed only to the former but not to the latter (paras. 115 – 118).
If these findings of the Court are taken at face value, it doesn’t appear to be relevant whether the authors of the UDI acted in their capacity of one of the PISG (the Kosovo Assembly) or as some other organic entity representing the people of Kosovo. Whatever their identity, the authors of the UDI must obviously be regarded as “other actors” to which, following the Court’s logic, Res. 1244 does not apply. To be sure, as highlighted by Marko Milanovic in another post, Serbia and its supporters have argued with verve (and with some plausibility) that – as entities created by UNMIK, which itself was created by Res. 1244 – the PISG must themselves be bound by Res. 1244. However, if one agrees with the Court that Res. 1244 does not contain any provision dealing with the final status of Kosovo or the conditions of its achievement, the UDI must ultimately be viewed as being in accordance with 1244 even if one considers the Kosovo Assembly (as one of the PISG) as its actual author .
Turning to the question as to whether the UDI is also in accordance with the Constitutional Framework (CF), promulgated by the SRSG on behalf of UNMIK in May 2001, the situation becomes more complex. Having determined that the CF forms part of the applicable international law within the meaning of the UNGA’s request (para. 93), the Court would have had to assess in detail whether the promulgation of the UDI was a violation of the provisions of CF had the majority of the judges accepted that the authors of the declaration were acting in their capacity as one of the PISG and thus within the legal framework established by UNMIK (the only legal framework in place in Kosovo at the time of the adoption of the UDI). However, since it considered the authors of the UDI to have acted in some other (eventually unspecified) capacity unrelated to the UNMIK legal regime, the Court was able to spare itself the effort. Only at this point it becomes clear why the Court went out of its way to effectively reformulate the question addressed to it by the UNGA (which had explicitly requested the Court to assess whether the UDI “by the Provisional Institutions of Self-Government of Kosovo” is in compliance with IL). Had the majority agreed with the dissenters on the bench that the UDI was in fact adopted in a special session of the Kosovo Assembly (in its capacity as one of the PISG) it arguably could not have retained its restrictive approach in dealing with the UNGA’s request. It then would have had to ascertain whether or not the UDI constitutes an ultra vires act, i.e. an act outside of the powers of the PISG as set out in the CF; which in turn would have necessitated an up-to-date interpretation of the CF, taking into account not only its wording, but also its overall context as well as its function and purpose. One can of course only speculate as to the outcome of such an interpretative exercise. But assuming that the Court would have come to the same conclusion as the SRSG and the UNSG in previous similar instances, namely that the adoption of an UDI by the Kosovo Assembly is in fact a violation of the CF, the ICJ arguably would have been forced to venture further into the difficult and controversial question whether there exists, under general international law, an entitlement on the part of the people of Kosovo to (external) self-determination in the form of remedial secession. The sheer possibility that such a right might have emerged in contemporary IL (arguments to this effect were put forward by a number of states in the proceedings before the Court) is, in my view, reason enough to hold that the Court no longer could have avoided addressing this issue. After all, ascertaining the existence of such a right would immediately raise the question as to whether acts of a subsidiary organ of the Security Council (not even, in the present case, acts of the Council itself … remember that the ICJ found that Res. 1244 neither predetermines the outcome of the Kosovo status process nor, indeed, how exactly a final status solution is to be achieved) could indefinitely prevent a people from exercising this right. Obviously – and unfortunately (cf. Bruno Simma’s declaration appended to the ICJ’s opinion) – the Court was not at the least prepared to take up such thorny legal issues. Instead, it preferred to operate with a rather dubious normative construct regarding the actual authors of Kosovo’s UDI; a construct that is open to a whole range of serious counter-arguments, thereby straining – unnecessarily, in my view – both the judicial authority of the Court in general and the usefulness of its opinion in particular.