Highly charged
Date: 06 August 2010
Authors: Marc Weller
Issue: Vol 160, Issue 7429
Categories: Features, Human rights, Local government, Constitutional law
The International Court of Justice (ICJ) determined last month that the adoption of the declaration of independence by the Kosovan authorities did not violate international law. While non-binding, the advisory opinion represents a significant setback for Serbia’s campaign to stop the consolidation of Kosovo’s statehood. The opinion was not only surprisingly clear and unambiguous in rejecting the challenge put forward by Belgrade, but was also carried by a solid majority of ten votes to four.
The Kosovo question represents the latest in a series of highly politically charged actions in the ICJ. While these proceedings raise issues of international law, they are in reality meant to advance the interest of a particular state or group of states in relation to contested issues of international politics. This tendency emerged in the 1980s when Nicaragua brought a case against the US alleging armed intervention.
This trend was carried forward in other contentious cases, including the Use of Force cases (US-Iran, Congo-Rwanda, Congo-Uganda, Congo-Burundi, Serbia-NATO states) and the Genocide or Racial Discrimination cases (Bosnia and Herzegovina-Yugoslavia, Croatia-Yugoslavia, Georgia-Russia). The Lockerbie case (US/UK-Libya) was also conducted in a highly politically charged environment. Similarly, where advisory opinions are concerned, the court has had to address very controversial issues of both law and policy when considering, for instance, the legality of the threat or use of nuclear weapons, or of the construction of the “Wall” by Israel.
Many of these cases are characterised by the fact that they address issue areas of considerable uncertainty in international law. For instance, the Nuclear Weapons opinion was sought precisely because states had been unable to agree a specific prohibition in relation to nuclear weapons. Hence, the court felt considerably discomfited when being asked to resolve, as a matter of law, a question which the states themselves had been unable to settle. As a court of law, of course, the ICJ is meant to interpret legal obligations, rather than create them. In international law, these still flow mainly from the consent and legally relevant actions of states.
If the states have been unable to settle an issue, the court will feel uneasy about attempting to do it for them. Hence, the court chose to address the Nuclear Weapons affair in a way that confirmed core principles of international law that are indeed universally agreed along with their application to nuclear weapons in general terms while avoiding a definite pronouncement on whether or not the threat or use of nuclear weapons would be permitted in any circumstance.
The request for the Kosovo Opinion falls into this category of cases. Clearly, Serbia was pursuing a political agenda in bringing the action in the United Nations (UN) General Assembly. States were divided in relation to the Kosovo issue as a matter of policy. Moreover, in terms of law, the relevant legal principles are also to some extent uncertain or in a state of flux. This concerns, for instance, the application and the meaning of the concept of self-determination and the question of unilateral secession.
The court is a conservative body. It would have been reluctant to advance a broader understanding of the concept of self-determination outside of the colonial context when considering the case of Kosovo. On the other hand, the court is also pragmatic and realistic. It is loath to offer opinions which it knows will be ignored in practice. Had it ruled the declaration of independence unlawful, Kosovo would of course not have disappeared. Its de-facto statehood was known to be irreversible as a matter of practical politics.
Accordingly, the court faced a difficult dilemma in considering this case—it had to reflect reality without at the same time establishing a precedent stretching the doctrine of self-determination to the extent that it might encourage secession elsewhere.
One way out would have been to decline to give a ruling, in view of the political dimension of the case and its treatment by the Security Council, rather than the General Assembly which had requested it. However, the court traditionally considers that any question of policy can also be decided as a matter of law. Moreover, the court was unwilling to refuse a ruling, given its role as the principal judicial organ of the UN.
Narrow scope
Instead, the court chose to interpret the question put in a narrow way, as it had been framed by Serbia. The question was whether the declaration of independence by the Provisional Institutions of Self-Government in Kosovo was in accordance with international law, and not whether Kosovo had a right to self-determination, or whether it is a lawful state, etc.
Serbia undoubtedly hoped that in phrasing the question narrowly, it would move the argument on to terrain where its chances of winning the argument were strong. This concerned, particularly Security Council Resolution 1244 of 1999, adopted when NATO terminated hostilities against the former Yugoslavia. The resolution expressly confirmed the territorial integrity of Yugoslavia, while at the same time removing Kosovo from the exercise of Belgrade’s sovereignty and placing it under administration by the UN—the Interim Administration Mission in Moscow (UNMIK).
However, moving the question away from considerations of self-determination, and focussing on the interpretation of resolution 1244 proved a serious miscalculation. The court found that the terms of the resolution mainly govern the interim period of international administration pending a final status settlement for Kosovo. The resolution did not constrain the nature of the final status for Kosovo—a question that had been deliberately left open. All attempts to establish this final status through negotiations had been exhausted. Independence was therefore not precluded by the resolution.
More broadly, the court also considered the meaning of the doctrine of “territorial integrity” to which resolution 1244 had referred. It confirmed the dominant scholarly view which holds that this obligation is addressed only to states, and does not cover those seeking to become states. Hence, it precludes changes in the status of a territory brought about through external use of force (Kuwait, Northern Cyprus, arguably Abkhasia and South Ossetia). It does not prevent groups within a state from declaring statehood.
Prohibited
The court also considered whether there exists in general international law a prohibition of unilateral declarations of independence. Invoking the long tradition of such declarations, including the US declaration of independence, the secessions of the Latin American states and more recent instances, it found that this is not the case.
If the declaration of independence was not prohibited by general international law, or by the terms of resolution 1244, the question remained whether the Provisional Institutions of Self-Government of Kosovo exceeded their authority in declaring independence under the provisional Framework Constitution adopted by the UNMIK authorities in Kosovo. Of course, any unilateral declaration of independence will tend to be incompatible with the constitutional framework from which the seceding entity seeks to escape. It is the very essence of such a declaration that it breaks the claim to supreme jurisdiction of the predecessor state. Hence, it would not be appropriate to measure the lawfulness of such a declaration according to the constitution that is meant to be displaced in relation to the territory in question.
In the event, the court simply questioned whether the declaration had in fact been adopted by the Kosovo Parliamentary Assembly at all. It noted that the declaration itself merely referred to the “democratically elected leaders” of Kosovo as its authors, rather than the Assembly. Hence, it was not an act of the Provisional Institutions of Self-Goverment which might not have had the authority to issue the declaration under the UN Framework Constitution. This was confirmed by the fact that the declaration had not been submitted to UNMIK for review, as would have been the ordinary path for legislation adopted by the Assembly, or published in the official gazette. Moreover, the UN Special Representative had not declared it null and void. This would have been his duty if the declaration had constituted an ultra vires act of the Assembly.
Hence, having reviewed general international law, resolution 1244 and the framework constitution, there were no grounds for ruling the declaration of independence invalid. Statehood in international law is regarded, in the first instance, as a matter of fact. An entity that has a territory, a population and an effective government capable of engaging in international relations, can be a state. In addition to holding a popular consultation on secession, it needs to formally articulate its will to be a state, and its existence must not be tainted by violations of core rules of the international system. This includes the prohibition of genocide, ethnic cleansing, the unlawful use of force, etc.
The court confirmed incidentally that Kosovo’s statehood was not obtained in violation of any of these rules—an important finding, given the allegation that statehood came about as a result of NATO’s use of force in 1999, or resulted in the displacement of elements of the ethnic Serb population of the territory.
Of course, if the question had been framed differently, the result might well have been different. For instance, it would have been far more challenging for Kosovo to demonstrate a positive entitlement to independence under the law on self-determination. Strictly speaking the ruling merely confirms that the declaration of independence was not adopted unlawfully.
However, the way the question was put, any finding other than a clear ruling that the declaration was manifestly invalid would have been widely considered an endorsement of Kosovo’s statehood. In a dramatic own-goal, Serbia has now obtained a finding that will be widely read as a clear and unambiguous confirmation of Kosovo’s statehood.
Strategy
Hence, Serbia will need to reassess its strategy at the UN. After the ruling, a significant number of further recognitions beyond the 69 already obtained are expected. This will soon bring the number of states recognised to over half the membership of the General Assembly. There will be little appetite on the part of these states to challenge Kosovo’s statehood (along with their own decision to recognise it) by adopting further resolutions in pursuit of Belgrade’s attempt to rewind the clock on the issue of status. Instead of attacking the fact that Kosovo is a state, there will now be pressure on both sides to negotiate practical modalities of peaceful coexistence and resolve issues of common concern, such as the situation in Northern Kosovo that is mainly controlled by Belgrade. A failure to address these co-operatively will put Serbia’s campaign for EU membership in jeopardy.
Marc Weller is Professor of International Law and International Constitutional Studies in the University of Cambridge & the author of Contested Statehood: Kosovo’s Struggle for Independence
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