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The Kosovo Advisory Opinion Scrutinized

Published online by Cambridge University Press:  06 May 2011

Abstract

In the Kosovo Advisory Opinion, the International Court of Justice took the position that Kosovo's unilateral declaration of independence did not violate any applicable rules of international law. This article does not dispute the final finding, but rather critically examines the Court's somewhat controversial reasoning and considers the added value of the opinion for the clarification of legal doctrine in relation to unilateral declarations of independence. An argument is made that the Court's interpretation of the question and the identification of the authors of the declaration had significant implications for the Court's final finding. Yet, the Court cannot be criticized for not answering the question of whether or not Kosovo is a state, whether Kosovo Albanians are beneficiaries of the right of self-determination, or even whether the ‘right to remedial secession’ is applicable. However, the Court may well have implicitly answered that recognition of Kosovo is not illegal.

Type
HAGUE INTERNATIONAL TRIBUNALS: International Court of Justice: Kosovo Symposium
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2011

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References

1 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Request for Advisory Opinion), Advisory Opinion of 22 July 2010, [2010] ICJ Rep. (hereinafter the Kosovo Opinion], para. 122.

2 See, e.g., J. Cerone, ‘The World Court's Non-Opinion’, Opinio Juris, 25 July 2010, available at www.opiniojuris.org/2010/07/25/the-world-court%e2%80%99s-non-opinion.

3 See the Kosovo Opinion, supra note 1, para. 51.

4 Request for an advisory opinion of the International Court of Justice on whether the unilateral declaration of independence of Kosovo is in accordance with international law, UN Doc. A/RES/63/3 (2008).

5 For an explanation, see the Kosovo Opinion, supra note 1, para. 50.

6 See, e.g., C. Tams, ‘The Kosovo Opinion’, EJIL Talk, 6 August 2010, available at www.ejiltalk.org/the-kosovo-opinion.

7 Kosovo Opinion, supra note 1, para. 4 (Judge Simma, Declaration).

8 As argued by Judge Tomka in his declaration, the Court subsequently modified the title of the opinion, as the original title included a reference to the provisional institutions of self-government. See ibid., para. 21 (Judge Tomka, Declaration).

9 See note 3, supra.

10 Kosovo Opinion, supra note 1, para. 122.

11 Ibid., para. 78.

12 Ibid., para. 55.

14 Ibid., para. 56.

16 Ibid., para. 4 (Judge Simma, Declaration).

17 Ibid., para. 56.

18 Compare Reference re Secession of Québec [1998] 2 SCR 217 (Canada) (hereinafter the Quebec case), at 126, where the Supreme Court of Canada clearly established that ‘right to independence’ does not exist under international law.

19 In one of the earliest academic commentaries to the Kosovo Opinion, the following view was expressed: ‘Kosovo Albanians might have been (well) advised not to make a big fuss out of self-determination in their constitutive documents precisely to avoid attracting judicial scrutiny to this issue which would have raised the question of boundaries, and the right's legitimate bearer. In contrast to such a scenario, the Court's minimalist judgment brought them an important political victory.’ See Z. Oklopcic, ‘Preliminary Thoughts on the Kosovo Opinion’, EJIL Talk, 26 July 2010, available at www.ejiltalk.org/preliminary-thoughts-on-the-kosovo-opinion/#more-2505.

20 Kosovo Opinion, supra note 1, para. 109.

21 See subsection 1.3, infra.

22 See subsection 1.1, supra.

23 Kosovo Opinion, supra note 1, para. 52.

24 Ibid., para. 51.

25 See ibid., paras. 49–57, where the Court discussed the scope and meaning of the question and did not express any doubts that the declaration of independence was unilateral.

26 Ibid., paras. 52 and 53.

27 Ibid., para. 109.

28 Quebec case, supra note 18, para. 155.

29 See sub-subsection 1.4.2, infra.

30 The traditional statehood criteria stem from the Montevideo Convention on Rights and Duties of States, 1933 Convention on Rights and Duties of States adopted by the Seventh International Conference of American States, 165 LNTS 19 (1933). Art. 1 of this Convention provides: ‘The State as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with other states.’ It is commonly accepted that these criteria reflect customary international law. See, e.g., D. Raič, Statehood and the Law of Self-Determination (2002), 24.

31 Kosovo Opinion, supra note 1, para. 109.

33 See Constitutional Framework for Provisional Self-Government, UNMIK/REG/2001/9, 15 May 2001, Chapter 9, Section 2 (regulating the post of the president of Kosovo).

34 See note 31, supra.

35 See note 32, supra.

36 Kosovo Opinion, supra note 1, para. 51.

37 Compare ICJ, Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo, public sitting held on Thursday 10 December 2009, CR 2009/32, at 47, para. 6 (argument of James Crawford on behalf of the United Kingdom).

38 Kosovo Opinion, supra note 1, para. 81.

39 UN Doc. S/RES/216 (1965), para. 1.

40 Ibid., para. 2.

41 UN Doc. S/RES/277 (1970), para. 1.

42 Ibid., para. 2.

43 Raič, supra note 30, at 134 (emphasis in original).

44 Kosovo Opinion, supra note 1, para. 81.

45 See subsection 3.1, infra.

46 See Raič, supra note 30, at 134.

47 Compare note 95, infra.

48 See collective responses to the situations of Southern Rhodesia and the South African Homelands. For Southern Rhodesia, see: UN Doc. A/RES/1747 (1962); UN Doc. S/RES/202 (1965); UN Doc. A/RES/2022 (1965); UN Doc. A/RES/2024 (1965); UN Doc. S/RES/216 (1965); UN Doc. S/RES/217; and UN Doc. S/RES/277 (1970). For the South African Homelands see: UN Doc. A/RES/2671F (1970); UN Doc. A/RES/2775 (1971); UN Doc. S/RES/402 (1976); UN Doc. S/RES/407 (1977); UN Doc. A/RES/37/43 (1982); UN Doc. A/RES/37/69A (1982); and UN Doc. S/RES/417 (1977).

49 Western Sahara Advisory Opinion, Advisory Opinion of 16 October 1975, [1975] ICJ Rep. 12, para. 55.

50 R. McCorquodale, ‘Self-Determination: A Human Rights Approach’, (1994) 43 ICLQ 857, at 864.

51 See M. Weller, Contested Statehood: Kosovo's Struggle for Independence (2009), 17.

52 ICCPR and ICESCR, Art. 1. 1966 International Covenant on Civil and Political Rights, 999 UNTS 171 and 1071 UNTS 407; 1966 International Covenant on Economic, Social and Cultural Rights, 993 UNTS 3.

53 See Vidmar, J., ‘Confining New International Borders in the Practice of Post-1990 State Creations’, (2010) 70 Heidelberg Journal of International Law 319, at 355Google Scholar.

54 Consider the following definition of peoples: ‘If we look at the human communities recognized as peoples, we find that their members usually have certain characteristics in common, which act as a bond between them. The nature of the more important of these common features may be [historical, racial or ethnic, cultural or linguistic, religious or ideological, geographical or territorial, economic, quantitative]. This list . . . is far from exhaustive . . . [A]ll the elements combined do not necessarily constitute proof: large numbers of persons may live together within the same territory, have the same economic interests, the same language, the same religion, belong to the same ethnic group, without necessarily constituting a people. On the other hand, a more heterogeneous group of persons, having less in common, may nevertheless constitute a people. To explain this apparent contradiction, we have to realize that our composite portrait lacks one essential and indeed indispensable characteristic – a characteristic which is not physical but rather ideological and historical: a people begin to exist only when it becomes conscious of its own identity and asserts its will to exist . . . the fact of constituting a people is political phenomenon, that the right of self-determination is founded on political considerations and that the exercise of that right is a political act.’ International Commission of Jurists, Events in East Pakistan (International Commission of Jurists Secretariat, 1972), at 49. Similar criteria and caveats accompanying these criteria were invoked in the UNESCO context. The following criteria were specifically invoked: (i) a common historical tradition, (ii) racial or ethnic identity, (iii) cultural homogeneity, (iv) linguistic unity, (v) religious or ideological affinity, (vi) territorial connection, (vii) common economic life. UNESCO, International Meeting of Experts on Further Study of the Concept of the Rights of Peoples, Final Report and Recommendations, SHS-89/CONF.602/7 (1990), para. 22.

55 Consider the following definition of minorities: ‘A group numerically inferior to the rest of the population of a State, in a non-dominant position, whose members – being nationals of the State – possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or language.’ F. Capotorti, Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities, UN Doc. E/CN.4/Sub.2/384/Rev.1 (1979), at 96.

56 I. Jennings, The Approach to Self-Government (1956), at 55.

57 Compare the following observation made by the ICJ in the South West Africa case: ‘[The ICJ] is a court of law, and can take account of moral principles only in so far as these are given a sufficient expression in legal form. Law exists, it is said, to serve a social need; but precisely for that reason it can do so only through and within the limits of its own discipline. Otherwise, it is not a legal service that would be rendered.’ South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Second Phase, Judgment of 18 July 1966, [1966] ICJ Rep. 6, para. 49.

58 Compare notes 5963, infra.

59 In Germany and Austria, for example, historical and political developments led to the creation of two distinct peoples who are not only allowed to have separate states but are actually precluded from unification. See State Treaty for the Re-Establishment of an Independent and Democratic Austria, Art. 4 (27 July 1955).

60 This implicitly follows even from the Kosovo Opinion. Indeed, the Court concluded that the unilateral declaration of independence was not prohibited under international law without clarifying whether or not the right of self-determination is applicable to Kosovo Albanians. The Court thus accepted that the question of whether the population of a territory constitutes a separate people for the purpose of the right of self-determination does not influence the question of legality of unilateral declarations of independence.

61 See the Badinter Commission, Opinion 2 (11 January 1992), para. 4, reprinted in S. Trifunovska, Yugoslavia through Documents: From its Creation to its Dissolution (1994), 474. The Commission established, inter alia, that the Serbian population of Bosnia–Herzegovina had the right of self-determination. This implies that in Bosnia–Herzegovina, the right of self-determination is not applicable to the entire people of Bosnia–Herzegovina, but rather that each one of the three constitutive ethnic groups of that state holds the right of self-determination in its own right.

62 Ibid., at 486.

64 Ibid., at 1017.

65 For a more detailed argument, see J. Vidmar, ‘International Legal Responses to Kosovo's Declaration of Independence’, (2009) 42 Vand. JTL 779, at 825–7. That there was no doubt regarding the will of Kosovo Albanians (and thus roughly 90 per cent of Kosovo's population) with respect to the future legal status of Kosovo was, inter alia, established in the Ahtisaari Plan. Letter dated 26 March 2007 from the Secretary-General addressed to the President of the Security Council, UN Doc. S/2007/168 (2007).

66 In Western Sahara, supra note 49, para. 55, the ICJ held that ‘the application of the right of self-determination requires a free and genuine expression of the will of the peoples concerned’. The Court, however, continued: ‘The validity of the principle of self-determination, defined as the need to pay regard to the freely expressed will of peoples, is not affected by the fact that in certain cases the General Assembly has dispensed with the requirement of consulting the inhabitants of a given territory. Those instances were based either on the consideration that a certain population did not constitute a “people” entitled to self-determination or on the conviction that a consultation was totally unnecessary, in view of special circumstances’, ibid., para. 59.

67 See sub-subsection 1.4.1, supra.

68 See sub-subsection 1.4.2, supra.

69 Compare subsection 1.3, supra.

70 See note 15, supra.

71 Kosovo Opinion, supra note 1, para. 81.

72 See note 17, supra.

73 J. Crawford, The Creation of States in International Law (2006), at 390.

74 Kosovo Opinion, supra note 1, para. 80.

76 UN Doc. A/RES/2625 (1970), Annex, Principle 5. According to the Court, this declaration reflects customary international law. Kosovo Opinion, supra note 1, para. 80.

79 See note 38, supra.

80 Kosovo Opinion, supra note 1, para. 81.

81 See Draft Articles on Responsibility of States for Internationally Wrongful Acts, adopted by the International Law Commission at its 53rd session (2001), UN Doc. A/RES/56/83 (2002) (hereinafter the ILC Articles on State Responsibility), Art. 41(2), 2001 YILC, Vol. II (Part Two), at 26. See also the Commentary to Article 41: Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries (hereinafter the ILC Articles on State Responsibility, with Commentaries), 2001 YILC, Vol. II (Part Two), at 26, Commentary to Article 41, paras. 10 and 11.

82 See note 93, infra.

83 UN Charter, Art. 2(4) provides: ‘All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.’ The exceptions are regulated in Art. 42 (use of force authorized by the Security Council) and Art. 51 (use of force in self-defence). 1945 Charter of the United Nations, 1 UNTS 15.

84 See note 76, supra.

85 Kosovo Opinion, supra note 1, para. 79.

87 Quebec case, supra note 18, para. 155.

88 Kosovo Opinion, supra note 1, para. 81.

89 See, e.g., Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment of 14 February 2002, [2002] ICJ Rep. 3, para. 56.

90 For an argument in favour of the role of jus cogens in the creation and recognition of states, see J. Dugard, Recognition and the United Nations (1987), especially at 102. See also Crawford, supra note 73, at 102–5. For a counterargument, see S. Talmon, ‘The Duty Not to “Recognize as Lawful” a Situation Created by the Illegal Use of Force or Other Serious Breaches of a Jus Cogens Obligation: An Obligation without Real Substance?’, in C. Tomuschat, The Fundamental Rules of the International Legal Order: Jus Cogens and Obligations Erga Omnes (2006), 101, at 103.

91 See Crawford, supra note 73, at 107–57. See also supra note 48 for resolutions on Southern Rhodesia, South African Homelands, and Northern Cyprus.

92 See note 90, supra.

93 ILC Articles on State Responsibility, supra note 81, Arts. 40 and 41. The doctrine of withholding recognition as an obligation erga omnes has been affirmed even in the ICJ's Israeli Wall Advisory Opinion, where the Court held: ‘Given the character and the importance of the rights and obligations involved, the Court is of the view that all States are under an obligation not to recognize the illegal situation resulting from the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem. They are also under an obligation not to render aid or assistance in maintaining the situation created by such construction. It is also for all States, while respecting the United Nations Charter and international law, to see to it that any impediment, resulting from the construction of the wall, to the exercise by the Palestinian people of its right to self-determination is brought to an end.’ Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, [2004] ICJ Rep. 136, para. 159. It needs to be noted, however, that, here, the Court did not base its argument on the jus cogens character of the violated norm (in this instance, the right of self-determination) but rather on its erga omnes nature. Ibid., paras. 155 and 156. Yet, the terms jus cogens and erga omnes should not be used interchangeably. While all jus cogens norms have an erga omnes effect, not all obligations erga omnes ‘constitute peremptory norms of international law’. E. de Wet, ‘The International Constitutional Order’, (2006) 55 ICLQ 51, at 61.

94 See, e.g., Talmon, supra note 90, at 103.

95 ILC Articles on State Responsibility with Commentaries, supra note 81, Commentary to Article 40, para. 5 (emphasis added).

97 ILC Articles on State Responsibility, supra note 81, Commentary to Article 26, para. 5, and Commentary to Article 40, para. 4.

98 See Crawford, supra note 73, at 146.

99 Kosovo Opinion, supra note 1, para. 81.

100 See, e.g., K. Marek, Identity and Continuity of States in Public International Law (1968), 137, rejecting Lauterpacht's view that when an entity meets the statehood criteria, other states are under a legal obligation to grant recognition. See H. Lauterpacht, Recognition in International Law (1947), 12–24.

101 See, e.g., Dugard, supra note 90, at 135.

102 ILC Articles on State Responsibility, supra note 81, Commentary to Article 41, paras. 4–10.

103 Kosovo Opinion, supra note 1, para. 81.

104 Ibid., para. 84.

105 See, e.g., B. Simma, ‘NATO, the UN and the Use of Force: Legal Aspects’, (1999) 10 EJIL 1, at 10; A. Cassese, ‘Ex Iniuria Ius Oritur: Are We Moving towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community?’, (1999) 10 EJIL 23, at 24; C. Chinkin, ‘Kosovo: A “Good” or “Bad” War?’, (1999) 93 AJIL 841, at 844; D. Kritsiotis, ‘The Kosovo Crisis and NATO's Application of Armed Force against the Federal Republic of Yugoslavia’, (2000) 49 ICLQ 330, at 340.

106 For a more thorough analysis, see Vidmar, supra note 65, at 826–7.

107 J. d'Aspremont, ‘Regulating Statehood: The Kosovo Status Settlement’, (2007) 20 LJIL 649, at 663.

108 Kosovo Opinion, supra note 1, para. 83.

109 Ibid., para. 114. In this regard, the Court at an earlier stage referred to Security Council resolutions on Southern Rhodesia, Northern Cyprus, and Republika Srpska, which were invoked in some of the pleadings before the Court. See ibid., para. 81.

110 Ibid., para. 118.

111 Ibid., para. 114.

112 The Court argued ‘that the object and purpose of resolution 1244 (1999) was to establish a temporary, exceptional legal régime which, save to the extent that it expressly preserved it, superseded the Serbian legal order and which aimed at the stabilization of Kosovo, and that it was designed to do so on an interim basis’, Kosovo Opinion, supra note 1, para. 100.

113 Ibid., para. 114.

114 Ibid.

115 UN Doc. S/RES/353 (1974); UN Doc. S/RES/541 (1983); UN Doc. S/RES/1251 (1999).

116 See note 48, supra.

117 See note 48, supra.

118 See note 48, supra.

119 See Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion of 21 June 1971, [1971] ICJ Rep. 115, where the Court argued that even if a Security Council resolution was not adopted under Chapter VII of the UN Charter, it may nevertheless be ‘binding on all States Members of the United Nations, which are thus under obligation to accept and carry them out’.

120 See notes 48 and 109, supra.

121 UN Doc. S/RES/1244 (1999), para. 11(e).

122 Ibid., paras. 11(a) and 11(e) (emphasis added).

123 Ibid., Annex 2.

124 Ibid., Annex 2, Principle 8 (emphasis added).

125 See Interim Agreement for Peace and Self-Government in Kosovo (23 February 1999) (hereinafter the Rambouillet Accords), available at www.ess.uwe.ac.uk/kosovo/Rambouillet%20Index.htm. For more on the Rambouillet Accords, see Herring, E., ‘From Rambouillet to the Kosovo Accords: NATO's War against Serbia and Its Aftermath’, (2000) 4 International Journal of Human Rights 225CrossRefGoogle Scholar.

126 Art. 1(4) of the Framework of the Rambouillet Accords provides: ‘Citizens in Kosovo shall have the right to democratic self-government through legislative, executive, judicial, and other institutions established in accordance with this Agreement. They shall have the opportunity to be represented in all institutions in Kosovo. The right to democratic self-government shall include the right to participate in free and fair elections.’

127 Rambouillet Accords, supra note 125, Preamble, para. 4.

128 Ibid., Chapter I, Constitution, Preamble, para. 4.

129 Ibid., Chapter VII, Article 1 (emphasis added).

130 See note 74, supra.

131 Kosovo Opinion, supra note 1, para. 116.

132 See note 131, supra.

133 See note 27, supra.

134 Kosovo Opinion, supra note 1, para. 118 (emphasis added).

135 Ibid., para. 118 (emphasis added).

136 Ibid., para. 119 (emphasis added).

137 Ibid., para. 118.

138 See note 112, supra.

139 UN Doc. S/RES/1244, para. 11(a) (emphasis added).

140 Ibid., para. 11(e).

141 Ibid., para. 11(f).

142 For more, see Vidmar, supra note 65, at 800.

143 It is indeed possible that a Chapter VII resolution would prohibit secession of a certain entity, even if consent to its emergence was given by its parent state.

144 Kosovo Opinion, supra note 1, para. 95.

145 Ibid., para. 59 (in the context of principal responsibilities of international civil presence); para. 104 (in the context of the identity of the authors of the Declaration); para. 112 (in the context of the will of the people).

146 Quebec case, supra note 18, para. 155.

147 The Constitutional Framework makes the following perambulatory reference: ‘Pursuant to the authority given to him under United Nations Security Council Resolution 1244(1999) of 10 June 1999’, Constitutional Framework, Preamble, para. 1. UNMIK/REG/2001/9 (2001).

148 See note 11, supra.

149 Kosovo Opinion, supra note 1, para. 108.

150 Ibid.

151 Ibid.

152 It is notable that immediately upon the declaration of Kosovo's independence, in his address to the Security Council, the president of Serbia, Boris Tadić stated, inter alia, ‘We request the Secretary-General, Mr. Ban Ki-moon, to issue, in pursuance of the previous decisions of the Security Council, including resolution 1244 (1999), a clear and unequivocal instruction to his Special Representative for Kosovo, Joachim Rücker, to use his powers within the shortest possible period of time and declare the unilateral and illegal act of the secession of Kosovo from the Republic of Serbia null and void. We also request that Special Representative Rücker dissolve the Kosovo Assembly, because it declared independence contrary to Security Council resolution 1244 (1999). The Special Representative has binding powers, and they have been used before. I request that he use them again’, UN Doc. S/PV.5839 (2008), at 5.

153 Kosovo Opinion, supra note 1, para. 121.

154 UN Doc. A/RES/63/3 (2008).

155 See subsection 1.2, supra.

156 See subsection 1.3, supra.

157 See subsection 1.3, supra.

158 See subsection 1.3, supra.

159 Kosovo Opinion, supra note 1, para. 119 (emphasis added).

160 See note 112, supra.

161 Kosovo Opinion, supra note 1, para. 118.

162 See subsection 3.2, supra.

163 See subsection 3.2, supra.

164 See sub-subsection 1.4.1, supra.

165 See notes 1024, supra.