02 Dec ICJ Begins Advisory Proceedings on Kosovo
I will write on this at greater length in a couple of days after a few of the key parties have made their arguments. For now, I just want to note that the oral proceeding transcripts will be available here. In the Tuesday morning session (which is all that has been posted at the time of this writing), Serbia set out its argument.
Without having gone in depth into Serbia’s argument, I do note that they seem to be staking out a claim that the declaration of independence made by Kosovo’s Parliament is itself illegal under international law, violating both the territorial integrity of Serbia and falling afoul of UN Security Council Resolution 1244 (which I have analyzed here). Given that most international lawyers tend to argue that secession itself is neither legal nor illegal under international law (or, put another way, that international law is silent as to the legality of secession), I am interested in both reading the oral statements at greater length, as well as the written submissions to see how Serbia constructed this argument.
More to come…
A “unilateral declaration declaration of independence” is per se illegal under international law for the following three reasons:
First, “in order to create a state you necessarily have to mutilate an existing state“. And the mutilation of existing states is per se illegal under international law. And without the prior unequivocal consent of the state whose territory is mutilated, such an act remains illegal under international law.
Second, if one assumes that the “existence of a state” is not a matter of law but one of “political unilateralism“, then it follows that not only the “unilateral creation” of new states is legal but also a “unilateral extinction” of a state is legal, notably without that state’s prior consent! Why would the unilateral extinction suddenly be a matter of law and not a matter of fact?
Third, if the creation of new states is assumed not to be a matter of law but one of unilateral declaration of political will, then it follows that international law does not exist at all.
How could the ICJ declare the unilateral declaration of indepence legal?
[…] Borgen is reviewing the Kosovo situation on Opinio Juris; however, his analysis will be restricted to the International Law Paradigm of […]