25 Jul The World Court’s Non-Opinion
[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.