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International Court of Justice: Advisory Opinion on Accordance with International Law of the Unilateral Declaration of Independence of Kosovo

Published online by Cambridge University Press:  27 February 2017

Christopher J. Borgen
Christopher J. Borgen*
Affiliation:
St. John's University School of Law in New York City
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Type
International Legal Materials
Information
International Legal Materials , Volume 49 , Issue 5 , October 2010 , pp. 1404 - 1440
Copyright
Copyright © American Society of International Law 2010

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References

End notes

* This text was reproduced and reformatted from the text available at the International Court of Justice website (visited October 6, 2010) http://www.icj-cij.org/docket/files/141/15987.pdf.

1 Prior to the ICJ case, the Chinese Journal of International Law had an agora on Kosovo in its March 2009 issue. See Rein Mullerson, Precedents in the Mountains: On the Parallels and Uniqueness of the Cases of Kosovo, South Ossetia an Abkhazia, 8 Chinese j. Int’l L. 2 (2009); Bing Bing Jia, The Independence of Kosovo: A Unique Case of Secession?, 8 Chinese J. Int’l L. 27 (2009); Peter Hilpold, The Kosovo Case and International Law: Looking for Applicable Theories, 8 Chinese j. Int’l L. 47 (2009). Analysis of the opinion that appeared on the Internet includes Bart M. J. Szewczyk, Lawfulness of Kosovo’s Declaration of Independence, 14 ASIL Insights 25 (Aug. 17, 2010), http://www.asil.org/insights100817.cfm; Christian Tams, The Kosovo Opinion, EJIL:Talk! (Aug. 6, 2010), www.ejiltalk.org/the-kosovo-opinion; Marko Milanovic, Kosovo Advisory Opinion Preview, EJIL:Talk! (July 14, 2010),www.ejiltalk.org/Kosovo-advisory-opinion-preview. See also Special Issue of the German Law Journal, including Robert Howse & Ruti Teitel, Delphic Dictum: How Has the ICJ Contributed to the Global Rule of Law by its Ruling on Kosovo?, 11 German l. j. 841, 841 (2010) (noting ‘‘the divergence between what the Court actually said and how it is being read in the media and by political actors’’); and Elena Cirkovic, An Analysis of the IVCJ Advisory Opinion on Kosovo’s Unilateral Declaration of Independence, 11 German l. j. 895 (2010). I have also previously written on this opinion; see Chris Borgen, The Kosovo Advisory Opinion, Self-Determination, and Secession, Opinio Juris (July 23, 2010), http://opiniojuris.org/2010/07/23/the-kosovo-advisory-opinion-self-determination-and-secession/.

2 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, ¶ 123 (July 22, 2010), available at http://www.icj-cij.org/homepage/pdf/20100722_KOS.pdf [hereinafter Advisory Opinion].

3 Tim Judah, Kosovo: What Everyone Needs to Know 130 (2008) (concerning Kosovo becoming an autonomous province).

4 S.C. Res. 1244, U.N. Doc. S/RES/1244 (June 10, 1999).

5 Resolution 1244 provided for the cessation of military and paramilitary activities by all parties and the commencement of demilitarization of armed groups (¶¶ 3, 15), the establishment of an international civilian presence under UN auspices to assist in interim administration (¶¶ 5-11), the commencement of international financial assistance to Kosovo, and ongoing reporting requirements. In addition, Annex 1 to the resolution listed ‘‘general principles on the political solution to the Kosovo crisis’’ adopted by the G-8 foreign ministers in May 1999, and Annex 2 listed general principles on which there should be agreement in order ‘’to move towards a resolution of the Kosovo crisis.’’

6 Ralph Wilde, International Territorial Administration: How Trusteeship and the Civilizing Mission Never Went Away 144-46 (2008). According to some, the UN’s administration of the territory was ‘‘of uneven quality’’ over the years. International Crisis Group, Kosovo and Serbia After the ICJ Opinion, Europe Report No. 206, 2 (Aug. 26, 2010), available at http://www.crisisgroup.org/en/regions/europe/balkans/kosovo/206-kosovo-and-serbia-after-the-icjopinion. aspx [hereinafter Crisis Group Kosovo Report].

7 For a brief description of the Ahtisaari Plan, see Judah, supra note 3, at 113–15.

8 Kosovo Declaration of Independence (2008), 47 I.L.M. 467, 1 (2008). See also Christopher J. Borgen, Kosovo’s Declaration of Independence, 47 I.L.M. 461 (2008).

9 Kosovo Declaration of Independence, supra note 8, ¶ 12.

10 G.A. Res. 63/3, U.N. Doc. A/RES/63/3 (Oct. 8, 2008). The voting record is as follows:

In favor:

Algeria, Angola, Antigua and Barbuda, Argentina, Azerbaijan, Belarus, Bolivia, Botswana, Brazil, Brunei Darussalam, Cambodia, Chile, China, Congo, Costa Rica, Cuba, Cyprus, Democratic People’s Republic of Korea, Democratic Republic of the Congo, Djibouti, Dominica, Dominican Republic, Egypt, El Salvador, Equatorial Guinea, Eritrea, Fiji, Greece, Guatemala, Guinea, Guyana, Honduras, Iceland, India, Indonesia, Iran (Islamic Republic of), Jamaica, Kazakhstan, Kenya, Kyrgyzstan, Lesotho, Liechtenstein, Madagascar, Mauritius, Mexico, Montenegro, Myanmar, Namibia, Nicaragua, Niger, Nigeria, Norway, Panama, Papua New Guinea, Paraguay, Philippines, Romania, Russian Federation, Saint Vincent and the Grenadines, Serbia, Singapore, Slovakia, Solomon Islands, South Africa, Spain, Sri Lanka, Sudan, Suriname, Swaziland, Syrian Arab Republic, Timor-Leste, United Republic of Tanzania, Uruguay, Uzbekistan, Viet Nam, Zambia, Zimbabwe.

Against:

Albania, Marshall Islands, Micronesia (Federated States of), Nauru, Palau, United States of America.

Abstaining:

Afghanistan, Andorra, Armenia, Australia, Austria, Bahamas, Bahrain, Bangladesh, Barbados, Belgium, Belize, Benin, Bhutan, Bulgaria, Burkina Faso, Cameroon, Canada, Colombia, Croatia, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Ghana, Grenada, Haiti, Hungary, Ireland, Israel, Italy, Japan, Jordan, Latvia, Lebanon, Lithuania, Luxembourg, Malaysia, Malta, Monaco, Mongolia, Morocco, Nepal, Netherlands, New Zealand, Oman, Pakistan, Peru, Poland, Portugal, Qatar, Republic of Korea, Republic of Moldova, Saint Lucia, Samoa, San Marino, Saudi Arabia, Senegal, Sierra Leone, Slovenia, Sweden, Switzerland, Thailand, the former Yugoslav Republic of Macedonia, Togo, Trinidad and Tobago, Uganda, Ukraine, United Arab Emirates, United Kingdom of Great Britain and Northern Ireland, Vanuatu, Yemen. U.N. GAOR 63d Sess, 22d mtg. at 10, U.N. Doc. A/63/PV.22 (Oct. 8, 2008).

11 For an updated list of recognitions, including dates of recognition, see Who Recognized Kosova as an Independent State?, http://www.kosovothanksyou.com (last visited Dec. 13, 2010).

12 The United States was one country which argued that the request was more political than legal. See U.N. Doc. A/63/ PV.22, supra note 10, at 4–5.

13 Christian Tams argued that the authors of the resolution probably drafted the question in this way in order to be able to attract a majority of General Assembly members. Tams, supra note 1.

14 See, e.g., Milanovic, supra note 1 (‘‘in Serbia’s view, the question is not confined to the legality of a purely verbal act by a non-state actor, but pertains to the lawfulness of a purported act of state creation, i.e. the secession of part of Serbia’s sovereign territory.’’).

15 Advisory Opinion, supra note 2, ¶¶ 50-51.

16 Id. ¶ 51.

17 Id. ¶ 56 (emphasis added).

18 An interpretation which, as discussed in part 4 of this Note, was described by some as being an echo of the S.S. Lotus decision.

19 Advisory Opinion, supra note 2, ¶ 79.

20 Id. ¶ 80. Thus, when the Security Council condemned particular declarations of independence, such as those of Rhodesia or Northern Cyprus, the issue related to an ‘‘unlawful use of force or other egregious violations of norms of international law,’’ in particular, jus cogens. Id. ¶ 81.

21 Id. ¶¶ 82-83.

22 Id. ¶ 114

23 See id. ¶ 118.

24 Cirkovic, supra note 1, at 903.

25 Tams, supra note 1.

26 Advisory Opinion, supra note 2, ¶¶ 82-83.

27 See, e.g., James Crawford, The Creation of States in International Law 127–28 (2d ed. 2006); Patrick Daillier, Alain Pellet, & Nguyen Quoc Dinh, Droit International Public 526, § 344-1 (7th ed. 2002) (‘‘la sécession n’est pas prise en compte en elle-même par le droit international,’’ that is, ‘‘secession in itself is not taken into account by international law’’); Thomas M. Franck et al., The Territorial Integrity of Québec in the Event of the Attainment of Sovereignty, in Self-Determination in International Law: Quebec and Lessons Learned 241, 248, 279–80 (Anne F. Bayefsky ed., 2000) (stating that secession is only recognized as a remedy in the case of decolonization); Antonio Cassese, Self-Determination of peoples: A Legal Reappraisal 40 (1995) (stating that self-determination does not mean a right to secede). But see Malcolm N. Shaw, International Law 271 n.140 (5th ed. 2003) (stating that a posited right of remedial secession is ‘‘the subject of much debate’’).

28 Jean d’ Aspremont, The Creation of States Before the International Court of Justice: Which (Il) Legality?, in The International Court of Justice andKosovo: Opinion or Non-Opinion?, Amsterdam Center for Int’l L., at 2, 3 (Sept. 28, 2010), available at http://www.haguejusticeportal.net/eCache/DEF/12/079.html.

29 Advisory Opinion (Separate Opinion of Judge Keith, ¶ 2), supra note 2 (quoting Status of Eastern Carelia, Advisory Opinion, 1923 P.C.I.J., Series B, No. 5, at 29).

30 Id. ¶¶ 4-5.

31 See Advisory Opinion, ¶¶ 24, 29-48.

32 Id. (Declaration of Vice President Tomka, ¶¶ 2-7).

33 Id. (Separate Opinion of Judge Canc¸ado-Trindade, ¶ 26). He also argued that the Court made an error in not truly considering the grave humanitarian crisis in Kosovo. Consequently his opinion contains a detailed discussion of the facts and the importance of peoples in international law, reframing and redefining what are the relevant facts and issues.

34 See, e.g., Advisory Opinion, supra note 2 (Declaration of Judge Simma, ¶ 1).

35 Id. ¶ 3.

36 See, e.g., D’Aspremont, supra note 28, at 5; see also Brad Roth, The International Court of Justice’s Role in Resolving the Kosovo Crisis, Presentation at International Law Weekend: 89th Annual Meeting of the American Branch of the International Law Association (Oct. 22, 2010).

37 I am indebted to Professor Brad Roth of Wayne State University for suggesting this line of inquiry. Regarding the related issue of recognition of a state formed by secession, see Brad Roth, Secessions, Coups and the International Rule of Law: Assessing the Decline of the Effective Control Doctrine, 11 Mel. j. Int’l L. (forthcoming 2010).

38 Judge Vereshchetin wrote in his declaration in Nuclear Weapons Case that the Court should

[r]efuse to assume the burden of law-creation, which in general should not be the function of the Court. In advisory procedure, where the Court finds a lacuna in the law or finds the law to be imperfect, it ought merely to state this without trying to fill the lacuna or improve the law by way of judicial legislation. The Court cannot be blamed for indecisiveness or evasiveness where the law, upon which it is called to pronounce, is itself inconclusive.

See Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226 (July 8).

39 D’Aspremont, supra note 28, at 2.

40 See generally U.N. Doc. A/63/PV.22, supra note 12. By way of examples, see the statements of the representatives from Egypt, Greece, Mexico, Panama, Romania, Slovakia, and Spain. Id. at 5–8.

41 See Crisis Group Kosovo Report, supra note 6, at 2 (adjusting the total number of recognitions to seventy-two). Of course, we do not know how many recognitions there might have been absent an ICJ referral.

42 Id. 1.

43 Id.

44 U.N. Doc. A/64/L.65 (July 27, 2010). See also Crisis Group Kosovo Report, supra note 6, at 1, 4.

45 Press Release, General Assembly, Adopting Consensus Resolution, General Assembly Acknowledges World Court Opinion on Kosovo, Welcomes European Union Readiness to Facilitate Process of Dialogue, U.N. Press Release GA/10980 (Sept. 9, 2010), available at http://www.un.org/News/Press/docs/2010/ga10980.doc.htm [hereinafter GA Consensus Resolution Press Release].

46 U.N. Doc. A/64/L.65/Rev.1 (Sept. 8, 2010). Serbia’s Foreign minister described the resolution as a ‘‘status-neutral’’ document. GA Consensus Resolution Press Release, supra note 45. The United States also welcomed the adoption of the resolution, emphasizing, for its part, that the ICJ’s opinion was clear that the declaration did not violate international law. Id.

47 Crisis Group Kosovo Report, supra note 6, at 4.

48 Id. 20.