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The unilateral declaration of independence by Kosovar authorities in Pristina in 2008 has been the source of various controversies in international affairs. From a legal perspective, Kosovo’s secessionist drive is contrary to the well-established position of international law regarding the territorial integrity of states. From a political perspective, Kosovo’s case exemplifies the political drive to alter the law – a drive that applies to other entities in Kosovo’s position. Both these phenomena are accompanied by the divergent interests held by Kosovars as the ‘local agency’ and by the interests of Serbia and third states (including great powers) that support or oppose Kosovo’s independence. The interdisciplinary nature of this matter is enhanced by the intersection of applicable legal frameworks with competing political interests. The motivating factors – and implications of – great power conduct in this context should be examined through the prism of political realism, which provides an enhanced perspective on the relationship between legal and political factors in all their complexity.
Any legal system, including the international legal system, consists of rules that serve multiple purposes and functions that the legal system in question needs to perform in order to survive as a viable organism. Jurisprudence of national and international courts relating to areas such as responsibility, immunity, and dispute settlement has involved intensive discussions as to the nature and implications of the various categories of rules. Approaching this broad area, with its multiple components, requires careful differentiation of the nature of those various categories of rules, for the fact that the relevant classification of rules works in one area does not inherently make it workable in other areas, which is confirmed in practice. The most problematic issue remains the judicial application of jus cogens in relation to state immunities and the ensuing distinction between substantive and procedural rules. It is shown in this contribution that this artificial distinction does not reflect the functions international law actually accords to its various rules, and is instead a product of political and ideological preference to keep particular classes of plaintiffs out of certain jurisdictions.
The disciplines of international law and geopolitics have evolved around the same object – the exercise of State power in space. But the interaction between geopolitical and legal categories has not been properly examined yet. Similar to international law, geopolitics focuses on certain, albeit not formally binding, laws that govern or explain the conduct of States in relation to space. There is room for the geopolitical laws reasoning to lead to outcomes that differ from those required under international legal obligations of States. In other cases, geopolitical laws and reasoning could actually explain why certain international legal rules and institutions are what they are. This contribution is the first attempt to study geopolitics and international law in parallel to each other. It is demonstrated that the evolution of geopolitical thinking, whether as part of a particular expansionist or containment agenda or as scientific approach, has constantly reflected on the categories of international law, and also has been used in practice by States to justify their particular conduct in defiance of international legal requirements. At the same time, international law has traditionally left to States the room for pursuing their geopolitical agenda without breaking the requirements of international law. It is here that the significance of geopolitical factors for international law becomes clear, as the allegedly lawful expansionist action by States can lead, and has repeatedly led, to reactions that involve breaches, and potentially damage the integrity, of international law. Despite geopolitical agenda being allegedly lawful, it still has to observe certain geopolitical laws in order to avoid broader negative repercussions both for that agenda and for international law.
Doctrinal contributions on international law and politics broadly build upon the merits of international criminal justice. This applies especially to the prosecution of international crimes before national courts, which assumes the predominant importance given the limited ambit of jurisdiction of international criminal jurisdiction. A number of doctrinal contributions develop the policy view of these processes, which does not always overlap with the requirements under the international legal standards on this subject-matter. This contribution assesses the general merit of policy approaches, and their relevance in terms of more specific issues, such as universal jurisdiction, amnesties for perpetrators of international crimes, and immunity of state officials. Having analysed the pertinent evidence, this contribution concludes that the policy argument possesses no independent relevance in the legal discourse on international criminal justice, and should not be used in a way that contradicts the international legal argument.
The outcome of the litigation before the International Court of Justice can be seriously affected by the Court's treatment of the parties' submissions, not just because the Court's disregard of the submission of the party can affect the legal rights of that party. The final decision can end up being substantially different from what most people would expect. This happened, for instance, in some cases in which much was at stake, such as Arrest Warrant, Oil Platforms or Legality of the Use of Force. The reasoning and outcome of these cases, involving the issues of the use of force and the account-ability for serious violations of human rights and humanitarian law, was important not merely for the parties' rights and interests, but also had a wider dimension of clarifying the applicable law on the important questions that very frequently arises within the international legal system and affects its operation and efficiency. It is therefore crucial to ascertain what the Court's powers are in dealing with the parties' submissions and if such powers are subject to certain limits.
The last decade marked the unprecedented increase in the importance of the role of judicial bodies in the maintenance of international legal order and their assumption of hitherto unprecedented judicial powers. The principle of consent and its implications are the issues that pose major questions on possible limitations in this process. The tension between these conflicting factors has been witnessed in the treatment by the ICJ of the disputes related to the right of convicted foreign nationals to consular notification. In LaGrand, the Court made substantial advances in terms of diminishing the role of the principle of consent as an obstacle to proper judicial enforcement of international obligations. Avena – a similar case – demonstrates that such an approach has acquired an important degree of consistency in the ICJ's jurisprudence.