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The Kosovo Advisory Opinion: Conflict Resolution and Precedent

Published online by Cambridge University Press:  02 March 2017

Richard Falk
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Extract

The somewhat surprising majority view in the advisory opinion of the International Court of Justice (ICJ) assessing Kosovo's declaration of independence has some bearingon prospects for an eventual end to the bitter conflict between Kosovo and Serbia. It may also have some relevance for a variety of political movements around the world whose leaders might be more inclined than previously to tempt fate by declaring their people and territory to be internationally independent of the sovereign state within which they are now geographically located. Significantly,the ICJ majority sidestepped the question put to it by the General Assembly, in a move objectionable to the four dissenting judges,recasting it in such a way as to limit its response to whether Kosovo's declaration of independence, issued on February 17,2008, was “in accordance with international law” to the rather bland assertion that the declaration did not violate international law. The Court did not say, and explicitly ruled out any interpretation suggesting, that Kosovo's declaration was acceptable under international law, although by Lotus reasoning, what a state is not expressly prohibited from doing is permitted.3 The majority also expressed its view that the declaration was not to be viewed as decidingupon Kosovo's final status in world diplomacy.

Type
Agora: The ICJ'S Kosovo Advisory Opinion
Information
American Journal of International Law , Volume 105 , Issue 1 , January 2011 , pp. 50 - 60
Copyright
Copyright © American Society of International Law 2011

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References

1 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion (Int’l Ct. Justice July 22, 2010) [hereinafter Kosovo Opinion]. Documents of the ICJ and the Permanent Court of International Justice referred to in this essay are available on the ICJ Web site, http://www.icj-cij.org/.

2 Id., paras. 1, 123(3); GA Res. 63/3 (Oct. 8, 2008).

3 S.S. Lotus (Fr. v. Turk.), 1927 PCIJ (ser. A) No. 10.

4 Security Council Resolution 1244 (June 10, 1999) contains several passages that seem inconsistent with the Kosovo declaration of independence. In the preamble the following clause appears: “Reaffirming the commitment of all Member States to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia and the other States of the region . . . .” Then, in operative paragraph 10 the United Nations secretary-general is authorized “to establish an international civil presence in Kosovo in order to provide an interim administration for Kosovo under which die people of Kosovo can enjoy substantial autonomy within the Federal Republic of Yugoslavia”; and paragraph 4 allows an agreed number of Serb military and police personnel to return to Kosovo to perform their functions. All in all, it is hard to negative the conclusion that in Resolution 1244 the United Nations confirmed Serbia’s claim to sovereignty over Kosovo.

5 Four members of the Court dissented from paragraph 123(3) on the declaration’s nonviolation of international law: Vice President Tomka, who appended a declaration to the advisory opinion, and Judges Koroma, Bennouna, and Skotnikov, who appended dissenting opinions to it.

6 Kosovo Opinion, supra note 1, Diss. Op. Bennouna, J., para. 69.

7 E.g., id., Diss. Op. Koroma, J., para. 4.

8 See Kosovo Opinion, supra note 1, para. 114 (majority distinguishing SC Res. 1251 (June 29, 1999) on Cyprus). Republika Srpska’s declaration of independence would also not be acceptable, as the breakaway was achieved through violations of international humanitarian law in the form of ethnic cleansing.

9 Kosovo Opinion, supra note 1, para. 117 (“When interpreting Security Council resolutions, the Court must establish, on a case-by-case basis, considering all relevant circumstances, for whom the Security Council intended to create binding legal obligations.”). The Court relied on a similar approach in Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970)Google Scholar, Advisory Opinion, 1971 ICJ REP. 16, 53, para. 114 (June 21).

10 Falk, Richard A., Toward Authoritativeness: The ICJ Ruling on Israel’s Security Wall, 99 AJIL 42 (2005)CrossRefGoogle Scholar; see also Falk, Richard A., Nuclear Weapons, International Law and the World Court: A Historic Encounter, 91 AJIL 64, 66 (1997)CrossRefGoogle Scholar.

11 See Transcripts of ICJ Public Sittings, CR/2009/24–33 (Dec. 1–11, 2009).

12 The most prominent example of this dynamic arose in the Cold War setting, with the United States leading the effort to give effect to, and the Soviet Union holding out in defiance of, the international law view pronounced by the Court on obligations of members for contributions to peacekeeping budgets for operations that they opposed. Certain Expenses of the United Nations (Article 17, Paragraph 2, of the Charter), Advisory Opinion, 1962 ICJ Rep. 151 (July 20).

13 But the Nicaragua case illustrates that even the denial by the Court of die U.S. effort to withdraw consent from a contentious proceeding and the U.S. refusal to participate in the merits phase did not lead to compliance with an adverse decision, but to rejection of the judgment. Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Jurisdiction and Admissibility, 1984 ICJ Rep. 392 (Nov. 26); Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ REP. 14 (June 27); Contemporary Practice of the United States, 79 AJIL 438–41 (1985) (indicating U.S. withdrawal from proceedings); Contemporary Practice of the United States, 80 AJIL 163–65 (1986) (noting U.S. termination of ICJ’s compulsory jurisdiction); UN SCOR, 41 st Sess., 2716th mtg. at 7, UN Doc. S/PV.2716 (Oct. 22, 1986) (quoting statement to Security Council rejecting Court’s jurisdiction in case by U.S. ambassador Vernon Walters).

14 The United States used its political leverage unsuccessfully in the General Assembly to prevent referring the issue of the legality of nuclear weaponry to the ICJ for an advisory opinion.

15 Status of Eastern Carelia, Advisory Opinion, 1923 PCIJ (ser. B) No. 5, at 19 –21 (July 23).

16 See Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 ICJ Rep. 226 (July 8) [hereinafter Nuclear Weapons]; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 ICJ Rep. 136 (July 9) [hereinafter Wall].

17 See, e.g., Nuclear Weapons, 1996 ICJ Rep. at 266–67, para. 105(2)(C), (D), (F); Wall, 2004 ICJ REP. at 201–02, para. 163(3).

18 Hedley Bull’s formulation of this position remains the clearest. See Bull, Hedley, The Grotian Conception of International Society, in Hedley Bull on International Society 95 (Alderson, Kai & Hurrell, Andrew eds., 2000)Google Scholar.

19 The exemplary case of a legitimacy war was the antiapartheid campaign of the late 1980s and early 1990s that was waged byway of sanctions, boycotts, and divestment, instruments of coercion reinforced by symbolic support from the United Nations. The General Assembly’s repudiation of the judicial outcome in the South West Africa Cases (Eth. v. S. Afr.; Liber, v. S. Afr.), Second Phase, 1966 ICJ REP. 6 (July 18), was one contribution by the United Nations to the antiapartheid campaign. See GA Res. 2145 (XXI) (Oct. 27, 1966).

20 It is notable that on the jurisdictional question the Court was unanimous. Kosovo Opinion, supra note 1, para. 123(1).

21 See separate opinion of Judge Keith, who dissented on this issue alone, voting with the majority on the question of substance. Id., Sep. Op. Keith, J. (explaining his vote against paragraph 123(2) of the dispositif).

22 For the sovereignty language in Resolution 1244, see note 4 supra.

23 See, e.g., Serbians Strive to Keep Kosovo, Australian, July 28, 2010, at 9 Google Scholar (quoting parliamentary motion stating that Serbia would never recognize Kosovo’s “unilaterally proclaimed independence” and citing Serb president Boris Tadić to same effect), available in LEXIS, News Library, Major World Newspapers File; McLaughlin, Daniel, Serbia in UN Bid to Ward off Kosovo’s Secession, Irish Times, July 31, 2010, at 9 Google Scholar, available in id. (noting Serbia’s submission of draft resolution to General Assembly calling for peaceful dialogue by all parties involved to find a mutually acceptable solution).

24 See, e.g., UN Press Release SC/10000 (Aug. 3, 2010) (citing statement to Security Council of Kosovo foreign minister Skender Hyseni).

25 The Independent International Commission on Kosovo issued a report in 2000 that recommended at that time “conditional sovereignty,” subject mainly to reliable assurances that Kosovar minorities would be protected. Independent International Commission on Kosovo, The Kosovo Report: Conflict, International Response, Lessons Learned 259–79 (2000), available at http://www.reliefweb.int/library/documents/thekosovoreport.htm Google Scholar; Independent International Commission on Kosovo, The Follow-up of the Kosovo Report: Why Conditional Independence? (2001), available at http://www.heimat.de/home/illyria/kosovocommission.org_report_english_2001.pdf Google Scholar (elaborating on the earlier report). The present author was a member of me commission.

26 See Deng, Francis M. et al., Sovereignty as Responsibility: Conflict Management in Africa (1996)Google Scholar.

27 See note 4 supra.

28 Compare, e.g., ICJ, Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Written Contribution of the Republic of Kosovo (Apr. 17, 2009), and Written Statement of the United States of America (Apr. 2009), with Written Statement of the Government of the Republic of Serbia (Apr. 15, 2009), and Written Statement of the Russian Federation (Apr. 16, 2009) (conveying a sense of the geopolitical encounter as expressed in the opposed legal interpretations of the status of the Kosovo declaration).

29 For extensive academic discussion of legality/legitimacy trade-offs, including in light of the Kosovo intervention by NATO, see Legality and Legitimacy (Falk, Richard, Juergensmeyer, Mark, & Popovski, Vesselin eds., forthcoming 2011)Google Scholar.

30 The declaration conditionally affirms the idea that the right to self-determination should not disturb the unity of existing states. 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 (XXV), annex (Oct. 24, 1970) (“Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.”).

31 The present author was designated as special rapporteur on the situation of human rights in the Palestinian territories occupied since 1967 by the UN Human Rights Council in 2008.

32 Quigley, John, The Statehood of Palestine: International Law in the Middle East Conflict (2010)CrossRefGoogle Scholar.

33 SC Res. 242 (Nov. 22, 1967).

34 See UN Human Rights Council, Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact-Finding Mission on the Gaza Conflict [“Goldstone Report”], UN Doc. A/HRC/12/48 (Sept. 25, 2009). For a general assessment of Israeli violations of international humanitarian law in occupied Palestine, see Report of the Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied Since 1967, Richard Falk, UN Doc. A/65/331, at 2 (Aug. 30, 2010).