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Delphic Dictum: How Has the ICJ Contributed to the Global Rule of Law by its Ruling on Kosovo?

Published online by Cambridge University Press:  06 March 2019

Robert Howse  and
Ruti Teitel

Extract

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The most immediately striking aspect of the ICJ's recent ruling on Kosovo's unilateral declaration of independence is the divergence between what the Court actually said and how its decision is being read in the media and by political actors. Typically the Court is said to have found secession by Kosovo to be “legal” or “lawful” under international law. According to Kosovo President Fatmir Sejdiu, “The decision finally removes all doubts that countries which still do not recognize the Republic of Kosovo could have.” The angry reaction to the decision by Serbian nationalists likewise supposed that the Court had endorsed a right to secession. In fact, what the Court did was to read literally—and some would say narrowly or pedantically—the question it was asked, and thus to avoid opining on the major legal (and related policy) issues raised by the act of secession, including whether there is a right to proceed with a unilateral act of secession, and to whom such a right may or may not belong. On the literal reading, the Court was not asked, and thus it did not rule on, whether international law requires that the final status of Kosovo protect the group and individual rights of minorities, whether Kosovar Serbs or Roma. Likewise, the Court did not rule on whether Serbia or, indeed, any other State in the world community is required to recognize Kosovo as an independent State. Nor did the Court's decision address the borders of an independent Kosovo, or whether and under what circumstances force could legally be used either to impose independence or to resist it.

Type
Kosovo in the ICJ – The Case
Information
German Law Journal , Volume 11 , Issue 7-8 , 01 August 2010 , pp. 841 - 845
Copyright
Copyright © 2010 by German Law Journal GbR 

References

1 Robert Howse & Ruti Teitel, Beyond Compliance: Rethinking Why International Law Really Matters, Global Policy Vol. 1 No. 2 (2010).Google Scholar

2 Legality of the Threat or Use of Nuclear Weapons (1996).Google Scholar

3 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2004).Google Scholar

4 Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda)(2005).Google Scholar

5 For an extensive jurisprudential argument (made prior to the judgment itself) as to why the Canadian Court should use these principles to provide normative guidance on secession, see Robert Howse & Alissa Malkin, Canadians Are a Sovereign People: How the Supreme Court Should Approach the Reference on Quebec Secession, 76 Cdn. Bar Rev. 186 (1997).Google Scholar

6 Ruti Teitel, Humanity's Law (forthcoming, Oxford University Press, 2011).Google Scholar

7 See Ruti Teitel & Robert Howse, Cross-Judging: Tribunalization in a Fragmented but Interconnected Global Order, 41 NYU J. Intl .L. & Pol. 959 (2009).Google Scholar

8 See generally Armin von Bogdandy & Ingo Venzke, In Whose Name? An Investigation of International Courts’ Public Authority and its Democratic Justification (April 21, 2010), available at SSRN: http://ssrn.com/abstract=1593543.Google Scholar

9 Judge Simma has noted the virtues of horizontal judicial dialogue in international law. See Bruno Simma, Fragmentation in a Positive Light, 25 Mich. J. Int'l L. 845 (2004).Google Scholar