The World Court’s Non-Opinion

by John Cerone

[John Cerone is Professor of International Law, and Director of the Center for International Law & Policy at New England Law | Boston]

The World Court’s conclusion that Kosovo’s declaration of independence was not unlawful is being with a resounding “duh” by most international lawyers. The International Court of Justice, in the narrow advisory opinion, simply found that the making of the declaration was not itself an act contrary to international law. Similarly, if I were to stand in my living room and declare it to be an independent state, I would have violated no rule of international law. Even if I were to broadcast that declaration to the world, it would still not be unlawful. It would also not have any legal effect.

It is essential to clarify what the Court did not find. The Court did not find that Kosovo had a right to secede. It did not find that Kosovo’s declaration was legally effective, that the attempted secession was successful, or that Kosovo is otherwise an independent state. It did not find that other states acted lawfully in recognizing Kosovo as an independent State. Indeed, the Opinion does not in any way support Kosovo statehood. It merely cuts off one possible avenue for arguing that the attempted secession is unlawful.

Concerns have already been raised about the potential effects of the Opinion on separatist movements around the globe. Should the Opinion have any knock-on effect? No. It states nothing unusual; virtually nothing has changed as a legal matter. Will it have a knock-on effect? That depends on how the decision is spun by the various stake-holders.

If the Opinion simply maintains the legal status quo on the question of Kosovo’s independence, does this mean that the Court has in some sense abdicated its responsibility? The Court’s restrictive interpretation of the question posted, and its preservation of the legal status quo, is appropriate in this area of the law – one which is driven primarily by political reality. If the overwhelming majority of states endorse Kosovo’s accession to sovereignty, its factual independence will be given the imprimatur of international law. That is not to say that the Court should eschew matters that are politically sensitive. It has, rightfully, consistently rejected such arguments. But where, as here, the law leaves its conclusions to the political process, the Court should sit back and allow that process to come to resolution.

10 Responses

  1. after having read through para. 56, it seems to me that the court spends a lot of time arguing why it has jurisdiction and why it complies with the request. in comparison to the meager outcome (which I still have to go into more profoundly) this is kind of astonishing, isn’t it?  or is the court so happy having found a comfortable way to not to decide anything (just as John Cerone emphasizes in his post) that it loves to delve into rather formal details?
    and at the end of the day, after so many pages on why the ICJ can respond to the request, it chooses the narrowest interpretation of the question. mainting the legal status quo (as John says) while still declaring itself competent in general. maybe that was really smart. or a bit cowardly… but you’re right: should the ICJ really mess with world politics?

  2. I do not agree. I think the Court should have actually responded what it was asked,thus clarifying a grey area of International Law. The answer it gave is pretty much useless-and it does not seem to me that it’s what it was asked to do…oh well…

  3. In an area where “the law leaves its conclusions to the political process” why shouldn’t the ICJ have simply declined jurisdiction stating as such instead of going through the process of narrowing the issue to a meaningless question and then answering that?

  4. I have yet to read the opinion, but it sounds like fairly typical court behavior from all the reviews. The ICJ defended its ‘turf’ by keeping the option open to rule again on such issues in the future and then engaged in some textbook judicial risk aversion by tailoring their judgment on the substance as narrowly as possible. It would be interesting to know more on why the question was phrased so poorly. Did Serbia neglect to consult international lawyers in advance or was there a risk that the UNGA wouldn’t adopt a more to-the-point inquiry for some reason?

  5. I don’t think the Court can be crticized for its decision. It might have been overly cautious in its tone and explaining the limited nature of the question posed, but it was not asked to address whether Kosovo is an independent state.

    The ICJ was fully aware that the entire world was waiting with bated breath for it to answer the question of whether Kosovo is an independent state. I would suggest that the reason the Court was so extremely deliberate in explaining the very limited scope of the question and therefore the answer was to ensure that nobody would misinterpret the the ruling it issued regarding the legality of making such a declaration as instead being a holding that Kosovo is an independent state warranting international recognition as such.

    If the ICJ had not limited itself and proceeded as cautiously as it has in this case, it and the individual judges would have, most likely, lost significant credibility. 

  6. I would really, really like to hear what Marko and Professor Heller have to say about this case and Lotus.  I have often been mocked for invoking Lotus, but I think this decision is affirmation that Lotus is alive and kicking.  I don’t want to gloat or anything ……

  7. I agree that there was a potential Lotus issue.  But my take on it is that the way the question was formulated helped the Court to avoid squarely facing the issue.  See: at p. 62.

  8. On Lotus, see Judge Simma’s declaration, as he addresses the point squarly.

Trackbacks and Pingbacks

  1. […] There’s an interesting post by Professor John Cerone over at Opinio Juris, not very different from mine except that it’s much better written, to […]

  2. […] This came as no surprise since international law is largely silent on secession, and as John Cerone wrote at Opinio Juris: Similarly, if I were to stand in my living room and declare it to be an independent state, I would […]