22 Jul Breaking News: AP Reports ICJ Rules in Favor of Kosovo
According to the Associated Press:
The United Nations’ highest court says Kosovo’s declaration of independence from Serbia did not break international law.
The nonbinding opinion sets the stage for a renewed push by Kosovo for further international recognition of its independence.
Reading the opinion Thursday, International Court of Justice President Hisashi Owada said international law contains no “prohibition on declarations of independence.”
Kosovo’s statehood has been recognized by 69 countries, including the United States and most European Union nations. Serbia and Russia lead a handful of others in staunchly condemning it.
The opinion is being read at the moment. Once I have had a chance to sift through it, I will post further thoughts. Based on the AP’s pull-out quote, though, it seem that the court has gone for a narrow interpretation of the question that was put before it (“Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?”) and has chosen to rule only on the issue of the declaration itself, rather than on the broader (and more politically contentious and legally difficult) question of recognition by third-party states. If that is the case, then this result in favor of Kosovo makes sense as international law is generally silent as to secession and leaves the issue to domestic law. International law can be relevant in issues where a secession would perpetuate an international wrong (such as an illegal international use of force) but that would be primarily on the issue of recognition, as opposed to the declaration itself. In either case, though, it seems that the ICJ may have cabined-off Serbia’s arguments concerning the (il)legality of NATO’s 1999 bombing campaign.
Once I have a chance to read through the opinion, I will write again on these issues.
For now, here’s Marko Milanovic’s advisory opinion preview, the ASIL Insight I wrote on Kosovo’s declaration of independence, and a later piece comparing the situations in Kosovo and South Ossetia.
For those interested in a survey of the opinion wrote live from the ICJ, while waiting for the full text to be available (the ICJ website seems unavailable for the moment), see here.
“Basically, any group of random individuals can declare independence without violating international law… Fantastic…”
Dov Jacobs (Spreading the Jam Blog)
This about says it all, very surprising judgment. Not surprised by the “caveating” at all but the decision on the substantive issue is just strange… will be very interested to see what Greenwood had to say on this.
Had the ICJ ruled that Declarations of Independence are illegal in general under international law, this would have placed the actions of 1776 in doubt.
The question was asked by Serbia, and the court answered exactly that question. It’s time for the Albanians (maybe through the Republic of Albania) to ask that the GA put forward a question on the statehood of Kosova. I doubt that the Court could say that Kosova doesn’t have what it takes.
What you need is for the new entity not to have violated international law (as TRNC or Rhodesia) and the ICJ has already dealt with that today. All the Court would need to go through is whether Kosova has, and I quote Article 1 of the Montevideo Convention,:
The state as a person of international law should posses the following qualifications
a) a permanent population ✓
b) a defined territory ✓
c) government ✓
d) capacity to enter into relations with the other states ✓
Whether you are a fan of the constitutive or the declaratory doctrine, you got to admit it, Kosova qualifies 🙂
So lets be fair guys and admit that the Republic of Kosova is there to stay, and rightfully so.
P.S. I’m curious what Malcolm Shaw will have to say about this? 😀
As far as I know, d) (“capacity to enter into relations with the other states”) is not commonly conceived of as requirement for statehood.
The narrow interpretation chosen by the court left important questions such as the relationship between secession and self-determination anunswered, at least for now.
After having waited for so long and having read so many interesting previews online and in print, I must admit I am a little bit dissapointed with the final decision. I mean, it could have included a lot more interesting topics. Im curious, is it just me? or do other OJ readers feel the same way?
[…] a way, as Chris Borgen notes at Opinio Juris, this result should not come as a surprise, since international law generally does not seem to have […]
The ICJ website stills seems to be unavailable. I’ve posted links to the opinion and the dissenting and separate opinions and declarations by some of the judges.
please find below the link to the Advisory Opinion and several separate opinions:
The ICJ website has encountered access problem since yesterday afternoon – accidentally or intentionally?
d) capacity to enter into relations with the other states
I think this part deals with subdivisions of states with a federal system: individual provinces in China aren’t states because they can’t enter into agreements with other states, even though they meet the other criteria (same goes for Japanese provinces, or US states)
@ Robert Beckman
The Badinter Commission (3 EJIL 1 (1992), 182; available at http://ejil.org/pdfs/3/1/1175.pdf), for instance, did not include this fourth element. And the public int’l law literature I checked doesn’t include it in a definition either.
The element, I think, has nothing to do with federalism which you mention.