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The International Court of Justice’s Kosovo Case: Assessing the Current State of International Legal Opinion on Remedial Secession

  • Daniel H. Meester (a1)

Summary

In light of the global prevalence of secessionist movements, some have proposed “remedial secession” as a last resort solution where a “people” is either denied internal self-determination or is faced with massive human rights violations by a repressive regime. While lack of state practice largely confined this concept to academic circles through the 1990s and much of the 2000s, remedial secession received renewed international legal attention in the proceedings concerning the International Court of Justice’s (ICJ) 2008 advisory opinion in the case Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo(Kosovo case). In light of support for remedial secession expressed in the submissions of eleven states, as well as its apparent endorsement in the separate opinions of two ICJ judges, advocates of remedial secession may plausibly argue that the soft law status of the concept has been strengthened and perhaps even that it is in the process of emerging as a regional customary norm for those states that supported it. However, the impact of the Kosovo case on solidifying the legal status of remedial secession should not be overstated, as opponents of the concept may point to a number of contrary indicators that also emerged from the formal discourse surrounding the case.

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1 Report of the International Committee of Jurists Entrusted by the Council of the League of Nations with the Task of Giving an Advisory Opinion upon the Legal Aspects of the Aaland Islands Question (1920) 3 League of Nations Official Journal, Special Supplement [1920 AalandIslands report]; League of Nations, The Aaland Islands Question: Report Submitted to the Council of the League of Nations by the Commission of Rapporteurs, Doc. B7.21/68/106 (1921) [1921 Aaland Islands report].

2 Charter of the United Nations, 26 June 1945, Can TS 1945 No 7, arts i (a), 55. Self-determination is also implicated in arts 73 and 76.

3 See especially Declaration on the Granting of Independence to Colonial Countries and Peoples, GA Res 1514(XV), UNGAOR, 15th Sess, Supp No 16, UN Doc A/L.323 and Add. 1–6 (1960); Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, GA Res 2625, UNGAOR, 25th Sess, Supp No 28, UN Doc A/8082 (1970) [Declaration on Friendly Relations].

4 International Covenant on Civil and Political Rights, 16 December 1966, 999 UNTS 171, art 1, Can TS 1976 No 47, 6 ILM 368 (entered into force 23 March 1976).

5 International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 UNTS 3, art i, Can TS 1976 No 46, 6 ILM 360 (entered into force 3 January 1976).

6 Conference on Security and Co-operation in Europe: Final Act, 1 August 1975, 14 ILM 1292 [Helsinki Final Act].

7 Vienna Declaration and Programme of Action, UNGAOR, UN Doc A/CONF. 157.24 (1993) [Vienna Declaration and Programme of Action], endorsed by the UN General Assembly (UNGA) in World Conference on Human Rights, GA Res 48/ 121, UNGAOR, 48 th Sess, UN Doc A/RES/48/121 (1994).

8 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Resolution 276 (1970), Advisory Opinion, [1971] ICJ Rep 16; Western Sahara, Advisory Opinion, [1975] ICJ Rep 12; East Timor (Portugal v Australia), [1995] ICJ Rep 90 [East Timor case]; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, [2004] ICJ Rep 136 [Israeli Wall case].

9 See Buchheit, Lee C, Secession: The Legitimacy of Self-Determination (New Haven, CT: Yale University Press, 1978), for a strong overview of the historical development and ambiguities of self-determination. As Buchheit explains, “[a]s a descriptive phrase, the title ‘Holy Roman Empire’ was defective … inasmuch as it denoted an entity neither holy, nor Roman, nor an empire. As a legal term of art, ‘the right of self-determination’ fails in much the same fashion. The expression itself gives no clue to the nature of the self that is to be determined; nor does it provide any enlightenment concerning the process of determination or the source and extent of the self’s putative right to this process” (at 8–9).

10 See East Timor case, supra note 8 at para 29; Israeli Wall case, supra note 8 at para 88.

11 See especially Declaration on Friendly Relations, supra note 3.

12 The first international institutional use of the terminology of “internal” and “external” self-determination can be found in the Special Report of the United Nations Commission for Indonesia, 4 UN SCOR, Spec Supp 6, UN Doc S/1417 (1949).

13 Klabbers, Jan and Lefeber, Rene, “Africa: Lost between Self-Determination and UtiPossidetis,” in Brölmann, Catherine, Lefeber, René, and Zieck, Marjoleine, eds, Peoples and Minorities in International Law (Dordrecht: Martinus Nijhoff Publishers 1993) 37 at 43.

14 Buchheit, supra note 9 at 16.

15 Hannum, Hurst, Autonomy, Sovereignty, and Self-Determination: The Accommodation of Conflicting Rights, revised edition (Philadelphia: University of Pennsylvania Press, 1996) at 113–14.

16 Klabbers and Lefeber, supra note 13 at 42–43.

17 See, eg, Buchanan, Allen, “Self-Determination and the Right to Secede” (1992) 45:2 J Int’l Affairs 347 at 354 ; Umozurike, Umozurike Oji, Self-Determination in International Law (Hamden, CT: Archon Books, 1972) at 199 ; Klabbers and Lefeber, supra note 13 at 48; Tomuschat, Christian, “Secession and Self-Determination,” in Kohen, Marcelo G, ed, Secession: International Law Perspectives (Cambridge: Cambridge University Press, 2006) 23 at 42 ; Suski, Markku, “Keeping the Lid on the Secession Kettle: A Review of Legal Interpretations Concerning Claims of Self-Determination by Minority Populations” (2005) 12 Int’l J Minority & Group Rights 189 at 225.

18 1920 Aaland Islands report, supra note 1; 1921 Aaland Islands report, supra note 1.

19 The initial report concluded: “Positive International Law does not recognize the right of national groups, as such, to separate themselves from the State of which they form part by the simple expression of a wish, any more than it recognizes the right of other States to claim such a separation. Generally speaking, the grant or refusal of the right to a portion of its population of determining its own political fate by plebiscite or by some other method, is, exclusively, an attribute of the sovereignty of every State which is definitively constituted.” See 1920 Aaland Islands report, supra note 1 at 5.

20 1921 Aaland Islands report, supra note i at 27–28.

21 Declaration on Friendly Relations, supra note 3 [emphasis added]. It should be further noted that the 1993 Vienna Declaration and Programme of Action from the World Conference on Human Rights essentially quotes the Declaration on Friendly Relations verbatim, though it replaces the phrase “without distinction as to race, creed or colour” with the phrase “without distinction of any kind.” See Vienna Declaration and Programme of Action, supra note 7.

22 This interpretation was common to a number of states that took positions that were favourable to remedial secession in their submissions in the Kosovo case, first unnumbered footnote.

23 Reference re Secession of Quebec, [1998], 2 SCR 217 at para 134, 161 DLR (4th) 385.

24 Ibid at 135.

25 It should be noted that the Supreme Court of Canada left this as an open question by neither confirming nor rejecting the existence of such a doctrine in international law. It then showed that its putative requirements were not met in any event in Quebec’s case.

26 See, eg, note 17 in this article.

27 Crawford, James, The Creation of States in International Law, 2nd edition (Oxford: Clarendon Press, 2006) at 390. Cassese, Compare Antonio, Self-Determination of Peoples: A Legal Reappraisal (Cambridge: Cambridge University Press, 1995) at 122, 339. See also Crawford, James, “State Practice and International Law in Relation to Secession” (1999) 90 Br YB Int’l L 69 at 114, who states: “State practice since 1945 shows the extreme reluctance of states to recognise unilateral secession outside of the colonial context. That practice has not changed since 1989, despite the emergence during that period of twenty-three new states. On the contrary, the practice has been powerfully reinforced.”

28 Crawford, The Creation of States, supra note 27 at 390. See also Cassese, supra note 27 at 340; Bayefsky, Anne F, ed, Self-Determination in International Law: Quebec and Lessons Learned (The Hague: Kluwer Law International, 2000) at 241.

29 Request for an Advisory Opinion on the International Court of Justice on Whether the Unilateral Declaration of Independence of Kosovo Is in Accordance with International Law, GA Res 63/3, UNGA, 63rd Sess, UN Doc A/Res/63/3(2008).

30 Kosovo case, supra first unnumbered note at para 82.

31 Ibid at paras 82–83.

32 Ibid at para 122.

33 Burri, Thomas, “The Kosovo Opinion and Secession: The Sounds of Silence and Missing Links” (2010) 11:8 German LJ 881 at 886 [footnotes omitted]. Arp, Compare Björn, “The ICJ Advisory Opinion on the Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo and the International Protection of Minorities” (2010) 11:8 German LJ 847 at 847 : “[T]he present Advisory Opinion might not enter into the judicial history of the Court for its answer to this question, but rather for what it did not say.’

34 Pippan, Christian, “The International Court of Justice’s Advisory Opinion on Kosovo’s Declaration of Independence: An Exercise in the Art of Silence” (2010) 3 Eur J Minority Issues 145 at 151–52.

35 Hannum, Hurst, “The Advisory Opinion on Kosovo: An Opportunity Lost, or a Poisoned Chalice Refused?” (2011) 24:1 Leiden J Int’l L 155 at 159.

36 It should be noted that Kosovo also argued in favour of remedial secession as international law, but its status as a state is yet to be determined.

37 Kosovo case, supra first unnumbered note, “Written Statement of Albania” (14 April 2009), online: International Court ofJustice (ICJ) <http://www.icj-cij.org/docket/files/141/15618.pdf> at 44. Albania emphasized that Kosovars were unable to achieve internal self-determination and that independence was a last resort following protracted internationally supervised negotiations that failed (Ibid at 40, 44–48). It should be noted that Albania’s interpretation of the Supreme Court of Canada’s decision is incorrect. The Court left the existence of remedial secession under international law as an open question, and the Court went on to show that even if it were to exist it would not apply to Quebec in any event (see notes 23–25 in this comment). While the Albanian statement to the ICJ first maintained that the ICJ should exercise its discretion to decline giving the advisory opinion, Albania’s primary substantive argument as to whether Kosovo’s declaration of independence was in accordance with international law was grounded in the principle of self-determination.

38 Kosovo case, supra first unnumbered note, “Written Comments of Albania” (July 2009), online: ICJ <http://www.icj-cij.org/docket/files/141/15694.pdf> at 34. See also at 32, n 72, where Albania cites the criteria for remedial secession as noted earlier.

39 Kosovo case, supra first unnumbered note, “Written Statement of Estonia” (13 April 2009), online: ICJ <http://www.icj-cij.org/docket/files/141/15648.pdf> at 5–6 [“Written Statement of Estonia”]. Estonia further noted that severe and long-standing refusal of internal self-determination is often accompanied by brutal violations of human rights, genocide, or ethnic cleansing and that other possible ways to resolve the situation must be exhausted (Ibid at 6, 9).

40 Ibid at 12. It should be noted that the Estonian statement primarily relied on remedial secession to justify its position. It would be inaccurate to characterize remedial secession as a secondary argument.

41 Kosovo case, supra first unnumbered note, “Written Statement of Finland” (16 April 2009), online: ICJ <http://www.icj-cij.org/docket/files/141/15630.pdf> at 4 [“Written Statement of Finland”].

42 Ibid.

43 Ibid.

44 Ibid at 5–7.

45 Ibid at 12. It should be noted that the Finnish statement to the court is different, in its general legal approach to remedial secession from most other statements that supported remedial secession. Its emphasis on “normal” and “abnormal” situations incorporates a more critical legal perspective on international law. Additionally, the Finnish statement focused on self-determination as the primary basis of its argument. It would be inaccurate to characterize the argument as secondary or alternative in nature.

46 Kosovo case, supra first unnumbered note, “Written Statement of Germany” (15 April 2009), online: ICJ <http://www.icj-cij.org/docket/files/141/15624.pdf> at 33–34 [“Written Statement of Germany”]. It should be noted that the first or primary German argument was that there is no general prohibition on declarations of independence in international law. Arguments about remedial secession appear to have been secondary in nature.

47 Ibid at 35. Germany further noted that this condition “will often coincide with severe violations of human rights, such as the right to life and freedom, but also the rights of association and assembly.”

48 Ibid.

49 Ibid at 36.

50 Kosovo case, supra first unnumbered note, “Written Statement of the Netherlands” (17 April 2009), online: ICJ <http://www.icj-cij.org/docket/files/141/15652.pdf> at 9 [“Written Statement of Netherlands”]. It should be noted that the Netherlands placed primary emphasis on the absence of a prohibition of a declaration of independence in UN Security Council Resolution 1244. Remedial secession was addressed as one of several related arguments.

51 Ibid.

52 Ibid.

53 Kosovo case, supra first unnumbered note, “Written Statement of Switzerland” (25 May 2009), online: ICJ <http://www.icj-cij.org/docket/files/141/15614.pdf> at 17 [“Written Statement of Switzerland”].

54 Ibid. It should be noted that Switzerland first substantively focused on UN Security Council Resolution 1244 and its implementation. However, the balance of its submission on whether the declaration of independence was “in accordance with international law” primarily involved articulating a balance between self-determination and territorial integrity. Remedial secession was included in this discussion.

55 Kosovo case, supra first unnumbered note, “Written Statement of Ireland” (17 April 2009), online: ICJ <http://www.icj-cij.org/docket/files/14I/15662.pdf?PHPSESSID=c794ab64a6f225f0371804bbb07cd24a> at 5 [“Written Statement of Ireland”].

56 Ibid at 10.

57 Ibid at 12. It should be noted that Ireland’s primary argument was that Kosovo’s declaration of independence was not unlawful as international law does not prohibit unilateral declarations of independence. Ireland’s arguments about remedial secession were expressly made as “further” or “alternative” arguments.

58 Kosovo case, supra first unnumbered note, “Written Statement of Poland” (15 April 2009), online: ICJ <http://www.icj-cij.org/docket/files/141/15632.pdf> at 25 [“Written Statement of Poland”].

59 Ibid at 26. It should be noted that Poland’s statement first highlighted the sui generis nature of Kosovo’s situation and went on to refer to self-determination and remedial secession as the primary substantive basis for its argument that Kosovo’s declaration of independence was in accordance with international law.

60 Kosovo case, supra first unnumbered note, “Written Contribution of the Authors of the Unilateral Declaration of Independence” (17 April 2009), online: ICJ <http://www.icj-cij.org/docket/files/141/15678.pdf> at 157; Kosovo case, supra first unnumbered note, “Written Contribution of the Authors of the Unilateral Declaration of Independence Regarding the Written Statements” (17 July 2009), online: ICJ <http://www.icj-cij.org/docket/files/141/15708.pdf> at 75–82 [“Written Contribution of the Authors”].

61 “Written Contribution of the Authors,” supra note 60 at 79.

62 Ibid at 80 [footnotes omitted]; see also at 86. It should be noted that Kosovo definitively used arguments about remedial secession as secondary or alternative arguments. Its primary argument was that the declaration of independence did not contravene any applicable rule of general international law.

63 Kosovo case, supra first unnumbered note, “Written Statement of the Russian Federation” (16 April 2009), online: ICJ <http://www.icj-cij.org/docket/files/141/15628.pdf> at 31–32 [“Written Statement of Russia”]. It should be noted that the Russian Federation first focused on UN Security Council Resolution 1244. Its main argument about general international law revolved around reconciliation of territorial integrity, self-determination, and secession.

64 Ibid at 31, 36–37.

65 Ibid at 37.

66 Kosovo case, supra first unnumbered note, “Written Comments of Switzerland” (17 July 2009), online: ICJ <http://www.icj-cij.org/docket/files/141/15698.pdf> at 2 [“Written Comments of Switzerland”]; “Written Statement of Germany,” supra note 46 at 36. Germany, for example, argued that “it would be both illogical and unjust to hold the time needed for these attempts against the group by holding that this lapse of time made the right of external self-determination disappear before it could even be used.”

67 Kosovo case, supra first unnumbered note, “Written Comments of Norway” (6 July 2009), online: ICJ <http://www.icj-cij.org/docket/files/141/15682.pdf?PHPSESSID=boc86fibbeidaofb1202f4e28d76b604> at 2 [“Written Comments of Norway”].

68 Ibid.

69 “Written Statement of Russia,” supra note 63 at para 88.

70 Kosovo case, supra first unnumbered note, “Written Statement of Slovenia” (17 April 2009), online: ICJ <http://www.icj-cij.org/docket/files/141/15654.pdf?PHPSESSID=boc86fibbeidaofb1202f4e28d76b604> at 2 [“Written Statement of Slovenia”]. It should be noted that Slovenia’s primary stated bases for supporting Kosovo’s declaration of independence were its belief that the unilateral declaration of independence (UDI) was in conformity with international law and its respect for the right to self-determination.

71 Ibid. Slovenia also stated: “[I]n recent decades, the right to self-determination as a human right has been given precedence over the principle of respect for the territorial integrity of states” (Ibid).

72 Kosovo case, supra first unnumbered note, “Written Comments of Slovenia” (17 July 2009), online: ICJ <http://www.icj-cij.org/docket/files/141/15696.pdf> at 6–7.

73 Kosovo case, supra first unnumbered note, “Written Statement of Latvia” ( 17 April 2009), online: ICJ <http://www.icj-cij.org/docket/files/141/15656.pdf> at 1–2.

74 Ibid at 1.

75 Kosovo case, supra first unnumbered note, “Written Statement of Luxembourg (translation by the Registry)” (30 March 2009), online: ICJ <http://www.icj-cij.org/docket/files/141/15634.pdf> at 1–2.

76 Kosovo case, supra first unnumbered note, “Written Statement of Maldives” (15 April 2009), online: ICJ <http://www.icj-cij.org/docket/files/141/15670.pdf> at 1.

77 Ibid.

78 Kosovo case, supra first unnumbered note, “Written Statement of France (translation by the Registry)” (7 April 2009), online: ICJ <http://www.icj-cij.org/docket/files/141/15607.pdf> at 27.

79 Ibid at 29.

80 Ibid.

81 Kosovo case, supra first unnumbered note, “Written Statement of Japan” ( 17 April 2009), online: ICJ <http://www.icj-cij.org/docket/files/141/15658.pdf> at 4.

82 Ibid at 6–8. Japan concluded: “[W]e cannot, and should not, deduce any general rule or principle of international law from the legal assessment of the case of Kosovo” (Ibid at 8).

83 Kosovo case, supra first unnumbered note, “Written Statement of the United Kingdom of Great Britain and Northern Ireland” (17 April 2009), online: ICJ <http://www.icj-cij.org/docket/files/141/15638.pdf> at 11–14.

84 Ibid at io [emphasis in original].

85 Kosovo case, supra first unnumbered note, “Written Statement of Austria” (16 April 2009), online: ICJ <http://www.icj-cij.org/docket/files/141/15620.pdf> at 14.

86 Ibid at 22.

87 Kosovo case, supra first unnumbered note, “Written Statement of the Czech Republic” (15 April 2009), online: ICJ <http://www.icj-cij.org/docket/files/141/15605.pdf> at 7.

88 Ibid.

89 Kosovo case, supra first unnumbered note, “Written Statement of Sierra Leone” (15 April 2009), online: ICJ <http://www.icj-cij.org/docket/files/141/15672.pdf> at 1.

90 Kosovo case, supra first unnumbered note, “Written Statement of the United States of America” (17 April 2009), online: ICJ <http://www.icj-cij.org/docket/files/141/15640.pdf> at 50.

91 Kosovo case, supra first unnumbered note, “Written Comments of the United States of America” (17 July 2009), online: ICJ <http://www.icj-cij.org/docket/files/141/15704.pdf> at 21 [footnotes omitted].

92 Ibid at 22.

93 Ibid at 22–23.

94 Kosovo case, supra first unnumbered note, “Written Statement of Denmark” (17 April 2009), online: ICJ <http://www.icj-cij.org/docket/files/141/15664.pdf>

95 Ibid at 12.

96 Kosovo case, supra first unnumbered note, “Written Statement of Brazil” ( 17 April 2009), online: ICJ <http://www.icj-cij.org/docket/files/141/15660.pdf> at 2.

97 Ibid.

98 Kosovo case, supra first unnumbered note, “Written Statement of the Libyan Arab Jamahiriya (translation by the Registry)” (17 April 2009), online: ICJ <http://www.icj-cij.org/docket/files/141/15636.pdf> at 1.

99 Kosovo case, supra first unnumbered note, “Written Statement of Venezuela” (24 April 2009), online: ICJ <http://www.icj-cij.org/docket/files/141/15676.pdf> at 1.

100 Ibid at 2.

101 Kosovo case, supra first unnumbered note, “Written Statement of Argentina” (17 April 2009), online: ICJ <http://www.icj-cij.org/docket/files/141/15666.pdf> at 38.

102 Ibid at 34.

103 Kosovo case, supra first unnumbered note, “Written Statement of Azerbaijan” (17 April 2009), online: ICJ <http://www.icj-cij.org/docket/files/141/15668.pdf> at 5.

104 Kosovo case, supra first unnumbered note, “Written Statement of Bolivia” (17 April 2009), online: ICJ <http://www.icj-cij.org/docket/files/141/15674.pdf> at 1.

105 Kosovo case, supra first unnumbered note, “Written Comments of Bolivia” (17 July 2009), online: ICJ <http://www.icj-cij.org/docket/files/141/15700.pdf> at 4.

106 Kosovo case, supra first unnumbered note, “Written Statement of China” (16 April 2009), online: ICJ <http://www.icj-cij.org/docket/files/141/15611.pdf> at 2–3.

107 Ibid at 3–4.

108 Ibid at 6.

109 Kosovo case, supra first unnumbered note, “Written Statement of Cyprus” (3 April 2009), online: ICJ <http://www.icj-cij.org/docket/files/141/15609.pdf>

110 Ibid [footnotes omitted].

111 Kosovo case, supra first unnumbered note, “Written Statement of Egypt” (16 April 2009), online: ICJ <http://www.icj-cij.org/docket/files/141/15622.pdf> at 8.

112 Ibid at 19 [emphasis added].

113 Ibid at 20.

114 The Egyptian statement was also highlighted as being of particularly high value. See “Written Comments of Norway,” supra note 67 at 2, n 1.

115 Kosovo case, supra first unnumbered note, “Written Statement of the Islamic Republic of Iran” (17 April 2009), online: ICJ <http://www.icj-cij.org/docket/files/141/15646.pdf> at 6–7. Iran went on to state that “the right to self-determination for minorities is an internal one and means their entitlement to democracy and human rights and does not involve any right to secession” (Ibid at 7).

116 Kosovo case, supra first unnumbered note, “Written Statement of Romania” (14 April 2009), online: ICJ <http://www.icj-cij.org/docket/files/141/15616.pdf> at 40.

117 Ibid.

118 Ibid at 43–45.

119 Kosovo case, supra first unnumbered note, “Written Statement of Serbia” (17 April 2009), online: ICJ <http://www.icj-cij.org/docket/files/141/15642.pdf> at 189.

120 Ibid at 189–92.

121 Ibid at 207. Serbia also argued in the alternative that even if a right to remedial secession were found to exist, it would not apply to Kosovo on the grounds that Kosovars did not constitute a “people” (Ibid at 215).

122 Kosovo case, supra first unnumbered note, “Written Comments of Serbia” (15 July 2009), online: ICJ <http://www.icj-cij.org/docket/files/141/15686.pdf> at 146.

123 Kosovo case, supra first unnumbered note, “Written Statement of Slovakia” (16 April 2009) online: ICJ <http://www.icj-cij.org/docket/files/141/15626.pdf> at 1.

124 Ibid at 2.

125 Kosovo case, supra first unnumbered note, “Written Statement of Spain” (14 April 2009), online: ICJ <http://www.icj-cij.org/docket/files/141/15644.pdf> at 18; see also at 12.

126 Kosovo case, supra first unnumbered note, “Written Comments of Spain” (July 2009), online: ICJ <http://www.icj-cij.org/docket/files/141/15706.pdf> at 6.

127 Kosovo case, supra first unnumbered note at para g (separate opinion of Judge Yusuf).

128 Ibid at para 11.

129 Ibid at para 16.

130 Ibid at para 175 (separate opinion of Judge Cançado Trindade). Vienna Convention on the Law of Treaties, 8 ILM 679 (1969).

131 Kosovo case, supra first unnumbered note at para 180.

132 Ibid at 181.

133 It should also be noted that Judge Cançado Trindade has generally taken a very distinctive approach to international law. For example, Judge Cançado Trindade has advocated what he refers to as a “people-centred outlook on contemporary international law — reflecting the current process of its humanization” (Ibid at para 170). In the event that Judge Cançado Trindade’s remarks on remedial secession were to be referenced as evidence of customary international law in the future, it is unclear to what degree his more general views on international law would inform understandings of the specific concept of remedial secession.

134 Ibid at para 2 2 (dissenting opinion of Judge Koroma).

135 Ibid at paras 6–7 (separate opinion of Judge Simma); at para 35 (separate opinion of Judge Sepulveda-Amor).

136 See, eg, Pippan, supra note 34; Hannum, supra note 35.

137 See, contra, Sienho Yee, “Notes on the International Court of Justice (Part 4): The Kosovo Advisory Opinion” (2010) 9:4 Chinese J Int’l L 763.

138 Currie, John, Craig Forcese, and Valerie Oosterveld, International Law: Doctrine, Practice, and Theory (Toronto: Irwin Law, 2007) at 121.

139 It should also be noted that mere silence or inaction by a state in the face of state practice by others may be considered to be acquiescence to that practice. See Fisheries Case (United Kingdom v Norway), [1951] ICJ Rep 116 at 139.

140 North Sea Continental Shelf Cases (Federal Republic of Germany v Denmark; Federal Republic of Germany v Netherlands), [1969] ICJ Rep 3 at paras 73–74 [North Sea Continental Shelf case]. The ICJ stated that “it might be that, even without the passage of any considerable period of time, a very widespread and representative participation in the convention might suffice of itself, provided it included that of States whose interests were specially affected” (Ibid at 73).

141 Ibid at 227 (dissenting opinion ofJudge Lachs).

142 Ibid at 229.

143 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), [1986] ICJ Rep 14 at para 186 [Nicaragua v United States of America].

144 North Sea Continental Shelf case, supra note 140 at para 77.

145 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, [1996] ICJ Rep 226 at para 67.

146 Nicaragua v United States of America, supra note 143 at para 188.

147 Ibid.

148 For a more detailed survey of the methodological complications inherent in the ascertainment of customary international law, see Currie, Forcese, and Oosterveld, supra note 138 at 133.

149 Of the eleven states making Category 1 country submissions, Russia has not recognized the independence of Kosovo (at the time of writing).

150 Yee, supra note 137 at 777-78. See also Arp, supra note 33 at 853: “The Court briefly addressed [the issue] by stating that remedial secession was ‘a subject on which radically different views were expressed by those taking part in the proceedings and expressing a position on the question.’ From this it can be inferred that the Court may consider that there is no consolidated legal opinion (opiniojuris) in international law on this topic.”

151 Kosovo case, supra first unnumbered note at para 82.

152 See, eg, “Written Statement of Germany,” supra note 46; “Written Statement of Ireland,” supra note 55; “Written Contribution of the Authors,” supra note 60.

153 See, eg, “Written Statement of Estonia,” supra note 39; “Written Statement of Finland,” supra note 41 ; “Written Statement of Poland,” supra note 58; “Written Statement of Slovenia,” supra note 70.

154 See, eg, “Written Statement of Albania,” supra note 38; “Written Statement of Netherlands,” supra note 50; “Written Statement of Russia,” supra note 63. In fairness, it should be noted that analyzing whether an argument is “primary” or “secondary” is a highly subjective exercise.

155 Crawford, The Creation of States, supra note 27 at 390.

156 Asylum Case (Colombia v Peru), [1950] ICJ Rep 266 at 276.

157 Case Concerning Right of Passage over Indian Territory (Portugal v India), [1960] ICJ Rep 6 at 39.

158 Arp, supra note 33 at 853.

The International Court of Justice’s Kosovo Case: Assessing the Current State of International Legal Opinion on Remedial Secession

  • Daniel H. Meester (a1)

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