The Kosovo Advisory Opinion, Self Determination, and Secession

Now that I’ve had a chance to read through the ICJ’s advisory opinion, following are a few initial reactions. (I will consider the separate opinions in another post.) Marko Milanovic has done a great job parsing the main issues that were at bar, namely

1. Whether the ICJ should exercise advisory jurisdiction in this case;

2. How broadly or narrowly the question posed by the General Assembly should be interpreted;

3. The legality of the declaration of independence in light of the international law of self determination; and,

4. The legality of the declaration of independence in light of Security Council Resolution 1244.

Around the time of Kosovo’s declaration, I had discussed issues (3) and (4), as well as the substantive issue of recognition in an ASIL Insight and in a series of posts on this blog. I will now return to these issues in light of the advisory opinion.(Issue 1, which is a rich topic but primarily dealing with ICJ practice, I will leave for another post.)

Interpreting the Question

The General Assembly asked the ICJ for an advisory opinion on this question (as drafted by Serbia):

“Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?”

I have heard many lawyers who were befuddled by the wording of the question. Why ask this question, when there seems to be general agreement among jurists that secession is neither legal nor illegal under international law? Why not ask the question that not only seemed closer to the real issue but was also one about which there are real differing views of the state of international law: whether there is an obligation on third party states notto recognize Kosovo, given the circumstances of its independence?  In any case, that was not how the question was worded by the General Assembly. Perhaps there would have been fewer votes for a reference to the ICJ if the ICJ’s ruling could have implicated the legality of the actions not of Kosovo, but of the UN member states who recognized it. Serbia’s wording the question this way might have thus been smart tactics in order to get an ICJ reference, but a strategic blunder in regards to final results.

Perhaps, as well, Serbia was hoping that the ICJ would interpret the question more broadly and opine on the issue of recognition as well as. That was not to be. The Court wrote:

50. The Court recalls that in some previous cases it had departed from the language of the question put to it where the question was not adequately formulated…

51. In the present case, the question posed by the General Assembly is clearly formulated. The question is narrow and specific; it asks for the Court’s opinion on whether or not the declaration of independence is in accordance with international law. It does not ask about the legal consequences of the declaration. In particular, it does not ask whether or not Kosovo has achieved statehood. Nor does it ask about the validity of legal effects of the recognition of Kosovo by those States which have recognized it as an independent State. The Court notes that, in past requests for advisory opinions, the General Assembly and the Security Council, when they have wanted the Court’s opinion on the legal consequences of an action, have framed the question in such a way that this aspect is expressly stated.

Opinion, paras 50 – 51.

If anything, the Court seemed set on reading the question as narrowly as possible. Just the fact that it took time to contrast this case to the Canadian Supreme Court’s task in the Reference relating to the Secession of Quebec from Canada is quite telling. The ICJ wrote (my emphasis added):

56. The question put to the Supreme Court of Canada inquired whether there was a right to “effect secession”, and whether there was a rule of international law which conferred a positive entitlement on any organs named. By contrast, the General Assembly has asked whether the declaration of independence was “in accordance with” international law. The answer to that question turns on whether or not the applicable international law prohibited the declaration of independence.

Opinion, para. 56 (emphasis added).

And so, we turn specifically to the narrow question of whether international law prohibits such declarations.

International Law and the Declaration

The ICJ framed the historical record as follows. In the 18th, 19th, and early 20th centuries there were various declarations of independence; some were contested, some were not.

In no case, however does the practice of States as a whole suggest that the act of promulgating the declaration was regarded as contrary to international law. On the contrary, State practice during this period points clearly to the conclusion that international law contained no prohibition of declarations of independence… The practice of States… [in the second half of the twentieth century] does not point to the emergence in international law of a new rule prohibiting the making of a declaration of independence in such cases.

Opinion, para 79.

In the next paragraph, the Court clarifies that the principle of territorial integrity is not implicated in cases of declarations of independence, it “is confined to the sphere of relations between states.” (Opinion, para. 80)  Thus, when the Security Council condemned particular declarations of independence, such as those of Rhodesia or Northern Cyprus, the issue related to an  an “unlawful use of force or other egregious violations of norms of international law,” in particular, jus cogens. (Opinion, para. 81)

As for whether there is a right to “remedial” secession under international law, the Court notes that there were “radically different views” among the States taking part in the proceedings regarding secession outside of the context of decolonization and that…

[s]imilar differences existed regarding whether international law provides for a right of “remedial secession” and, if so, in what circumstances. There was also a sharp difference of views as to whether the circumstances which some participants maintained would give rise to a right of “remedial secession” were actually present in Kosovo…

The Court considers that it is not necessary to resolve these questions in the present case.

Opinion, paras. 82-83.

So there you have it.  The Court took what was probably the most contentious issue– whether and when there is a right to remedial secession (also known as “external self determination”)– and found that it was not really relevant to the question at hand.  I do note the one small point that rather than dismissing the idea of remedial secession outright, the Court merely said it was highly contentious and there was no need to decide the issue.

Overall, though, I think the ICJ did the right thing and averted what could have been a disaster in the main opinion. I was critical of the the ICJ for accepting this reference from the General Assembly because I thought it would wade into areas where there wasn’t defined law and, in a riot of opinions, make a muddle of things. While the Court did take the reference, it has written an opinion in which it almost seems to regret having done so. It has chosen restraint and narrow readings. But better that than going well beyond the political will of the Member States in over-defining rules of self determination, secession, and recognition, which may be deliberately vague (or non-existent). Perhaps if the General Assembly had written a different question in its request for an advisory opinion and shown the political will and desire to have a lawyerly gloss on some of these issues, the ICJ would have rendered a different opinion. But that is not what happened. Instead we are left with what I think was the consensus before we started: declarations of independence are primarily domestic affairs and the UN does not condemn such declarations unless there is a separate violation of international law (such as the prohibition on the use of force).  

The Declaration of Independence and Resolution 1244

I have discussed the interpretation of Resolution 1244 in a previous post. I will not go into it at length here, except to note that the ICJ seems to have given the resolution a similar reading to that which I outlined in my earlier post. In paticular, it notes in paragraph 114 that Resolution 1244

was essentially designed to create an interim regime for Kosovo, with a view to channelling the long-term political process to establish its final status. The resolution did not contain any provision dealing with the final status of Kosovo or with the conditions of its achievement…

The Security Council did not reserve for itself the final determination of the situation in Kosovo and remained silent on the conditions for the final status of Kosovo.

Opinion, para. 114

Consequently, 1244 did not preclude the issuance of a declaration of independence. See also the discussion at paragraph 118 of the Opinion.

Concluding Thoughts

While the ICJ has averted a jurisprudential train wreck in this advisory opinion, it hasn’t done all that much, either. It has carefully cabined-off the thorniest issues and reiterated what was generally (though not universally) agreed-upon. The separate opinions are likely to be livelier and I will discuss them in a follow-up.