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The ICJ Advisory Opinion on Kosovo: Has International Law Something to Say about Secession?

Published online by Cambridge University Press:  11 February 2011

THEODORE CHRISTAKIS
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Abstract

The objective of this paper is to examine how the Court has dealt with existing general international law governing secession and to evaluate the effects that this opinion could have on future developments in this field. The narrow interpretation of the question submitted by the UN General Assembly permitted the Court to avoid many important questions. The Court made no statements concerning Kosovo's statehood and recognition by third states and made no mention of statehood requirements or the ‘principle of effectiveness’. The Court also refused to examine whether Kosovo (or any other entity outside the colonial context) had a ‘right’ to secession, but gave no endorsement to attempts to apply external self-determination outside the colonial context or to the theory of ‘remedial secession’. This paper explains why the Court did not apply the ‘Lotus’ freedom principle in the Kosovo case. It welcomes the indirect, but clear, position of the Court that a declaration of independence can, in some situations (and especially in the case of external aggression), be illegal – a position that contradicts the old theory, stemming from Jellinek, that the creation of a state is nothing but a ‘simple fact’. While the Court correctly found that outside these exceptional circumstances, no general prohibition against unilateral declarations of independence exists in international law, it should have added that international law is not ‘neutral’ in this field, that it disfavors secession, and that it creates a presumption against the effectiveness of secession. The ‘legal-neutrality’ stance adopted by the Court is not without risks. Indeed, the Court should have been more cautious in its assertion that ‘the scope of the principle of territorial integrity is confined to the sphere of relations between states’, not only because recent practice clearly indicates the contrary, but also because its position could have an unwelcome effect in resolving future separatist conflicts by rendering countries extremely sceptical of solutions of autonomy or international administration.

Keywords

KosovoLotussecessionself-determinationstate
Type
KOSOVO SYMPOSIUM
Information
Leiden Journal of International Law , Volume 24 , Issue 1 , March 2011 , pp. 73 - 86
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2011

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References

1 The impressive number of states participating in the proceedings highlights the interest of the case. In total, 40 states plus Kosovo participated in the written and/or oral proceedings. This cannot match the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory case, in which 57 states or organizations participated, but it is almost as many as in the Legality of the Threat or Use of Nuclear Weapons case (45 states).

2 Traditionally, scholars refer to the case Madzimbamuto v. Lardner-Burke & Phillip George [1968] UKPC 2 concerning Southern Rhodesia and, since 20 August 1998, to the decision of the Canadian Supreme Court in the Reference by the Governor-General Concerning Certain Questions Relating to the Secession of Quebec from Canada [1998] 2 SCR 217.

3 We will not discuss here the position of the Court concerning the lex specialis analysed by other contributions to this symposium.

4 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, 22 July 2010, Judge Bennouna, Dissenting Opinion, para. 37.

5 In the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, at 69, the Court said that it will first ‘indicate the applicable law before seeking to establish whether that law has been breached’ (see also paras. 86 ff). Similarly, in the Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, at 23, the Court declared that ‘In seeking to answer the question put to it by the General Assembly, the Court must decide, after consideration of the great corpus of international law norms available to it, what might be the relevant applicable law’ and wrote 13 long paragraphs to determine what this is, before ‘applying this law to the present case’ (at 35).

6 The question to the Court was approved as contained in Draft Resolution UN Doc. A/63/L.2 (2008) introduced in the General Assembly by the minister of foreign affairs of Serbia. See also the letter by the same minister, 15 August 2008, to the Secretary-General of the United Nations, requesting the inclusion in the agenda of the Sixty-Third Session of the General Assembly of a supplementary item entitled ‘Request for an Advisory Opinion of the International Court of Justice on Whether the Unilateral Declaration of Independence of Kosovo Is in Accordance with International Law’, UN Doc. A/63/195 (2008).

7 See, e.g., contribution of M. Weller to this symposium.

8 See, e.g., the position of Serbia according to which Kosovo ‘does not fulfill the constituent requirements of a state as there is no effective independent government in Kosovo’ (Written Statement of the Republic of Serbia (2009) at 336 and, more generally, at 333–40) or a similar position by Cyprus arguing that the role of the international community in Kosovo is such as to preclude Kosovo from meeting the requirement of independence (Written Statement of the Republic of Cyprus (2009), paras. 159–192). Compare with the detailed response of Kosovo ‘that it does in fact clearly meet the criteria for statehood’ (Written Contribution of the Republic of Kosovo (2009), at 11–28) and the similar position of the United States (Written Statement of the United States of America (2009), at 34 ff.).

9 H. Lauterpacht was already writing in his famous Recognition in International Law (1947), at 8: ‘It is generally agreed that premature recognition is more than an unfriendly act; it is an act of intervention and an international delinquency.’ For an application of this notion to Kosovo and other recent cases, see O. Corten, ‘Déclarations unilatérales d'indépendance et reconnaissances prématurées: Du Kosovo à l'Ossétie du Sud et à l'Abkhazie’, 112(4) RGDIP (2008), at 751–7.

10 Kosovo AO of 22 July 2010, at 51: ‘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 . . . . The Court accordingly sees no reason to reformulate the scope of the question.’

11 Kosovo AO, supra note 10, at 56.

12 Cf. Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, 22 July 2010, Separate Opinion of Judge Sepulveda-Amor, paras. 33–35. During the proceedings in Legality of the Threat or Use of Nuclear Weapons, supra note 5, where the question submitted to the Court by the General Assembly was ‘Is the threat or use of nuclear weapons in any circumstance permitted under international law?’, there were many discussions concerning the meaning of the question. The use of the word ‘permitted’ was criticized by certain nuclear powers on the ground that this implied that the threat or the use of nuclear weapons would only be permissible if authorization could be found in international law. Such a starting point, those states submitted, was ‘incompatible with the very basis of international law, which rests upon the principles of sovereignty and consent’, at 21. The Court nonetheless took a broader perspective, saying that the ‘real objective [of the question] is clear: to determine the legality or illegality of the threat or use of nuclear weapons’, at 20. And the Court concluded: ‘The argument concerning the legal conclusions to be drawn from the use of the word “permitted”, and the questions of burden of proof to which it was said to give rise, are without particular significance for the disposition of the issues before the Court’, at 22.

13 Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion of 20 December 1980, para. 35.

14 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, 22 July 2010, Separate Opinion of Judge Tomka, at 1.

15 Kosovo AO, supra note 10, at 56.

16 Reference by the Governor-General Concerning Certain Questions Relating to the Secession of Quebec from Canada, supra note 2.

17 During the Cambridge ESIL IGPS workshop of 2 September 2010, some delegates pointed out that ‘the real problem was not the question but the answer’. It would certainly be unfair to focus only on the question when it was pretty clear that the majority of the Court wanted, anyway, to give a very narrow answer. But had Serbia formulated the question using those terms, we can hardly see how the Court could have avoided making a pronouncement about the (in)existence of a right to secession outside the colonial context, without rephrasing the question in a narrower way!

18 For a detailed analysis, see T. Christakis, Le droit à l'autodétermination en dehors des situations de décolonisation (1999), at 35–322.

19 Reference by the Governor-General Concerning Certain Questions Relating to the Secession of Quebec from Canada, supra note 2, para. 111.

20 Report of the Independent International Fact-Finding Mission on the Conflict in Georgia, 30 September 2009, Vol. II, at 147, available at www.ceiig.ch (emphasis added).

21 In reality, very few states suggested in a clear enough way that there is a right to external self-determination outside the colonial context. This seems to be only the position of the Netherlands (Written Comments of the Kingdom of the Netherlands (2009), at 3 ff.), Switzerland (Written Statement of Switzerland (2009), at 20 ff.) and Slovenia (Written Statement of the Republic of Slovenia (2009), at 2–3). The position of Albania was more ambiguous: after stating that ‘through the DoI the people of Kosovo exercised its right of self-determination’ (Written Statement of the Republic of Albania (2009), at 39), Albania seemed to link this right to ‘remedial secession’. It is interesting that even though Kosovo initially refused to give its view concerning the existence of a right to secession on the basis of the argument that the Court does not need, in the light of the question, to ‘reach the issue of the right of self-determination’ (Written Contribution of the Republic of Kosovo (2009), at 157), it subsequently made some ambiguous comments presenting Kosovo as ‘a self-determination unit’ (Further Written Contribution of the Republic of Kosovo (2009), at 4.45), arguing that the principle of territorial integrity is not a principle that disfavours changes in international boundaries (at 4.38), and insisting that ‘since the right [of self-determination] is not limited to situations of decolonization, it is entirely irrelevant that Kosovo did not constitute a mandate or trusteeship territory or was not listed as dependent territory by the United Nations General Assembly’ (at 4.35). Kosovo seemed to link nonetheless also all those arguments to the theory of ‘remedial secession’.

22 This position was held by Albania, Estonia, Finland, Germany, Ireland, Jordan, Lithuania, Maldives the Netherlands, Poland, Russia, Slovenia, Switzerland, and the Authors of the Declaration. For exact quotations, see the contribution of O. Corten in the present symposium, note 28.

23 Indeed, during the proceedings, the majority of states rejected the existence of both a ‘general right to secession’ outside the colonial context and of a more specific right to ‘remedial secession’. This was, for example, the position of Argentina, Azerbaijan, Belarus, Bolivia, Brazil, Burundi, China, Cyprus, Iran, Romania, Slovakia, Serbia, Spain, Venezuela, and Vietnam. For exact quotations, see the contribution of O. Corten in the present symposium, note 30.

24 Kosovo AO, supra note 10, at 83.

25 But see contribution of O. Corten in the present symposium.

26 For this debate compare, for example, the opposite positions of L. Buchheit, Secession: The legitimacy of Self-Determination (1978), at 221 ff. and Corten, O., ‘A propos d'un désormais “classique”: Le droit à l'autodétermination en dehors des situations de décolonisation, de Théodore Christakis’, (1999) 36 RBDI, at 340Google Scholar–7.

27 Kosovo AO, supra note 10, Declaration of Judge Simma, at 3.

28 Many authors have criticized this extreme positivistic approach, which seems to suggest that the international legal order is ‘closed’ and ‘complete’ and thus unable to have any lacuna because everything that is not prohibited is permitted (which leaves no room for gaps or for neutrality of the law). According to G. Fitzmaurice, ‘The Problem of Non-Liquet’ (1974) Mélanges offerts à Charles Rousseau 89, at 109, for example: ‘This basis is itself deficient and unsatisfactory, . . . because it speedily leads to a reductio ad absurdum, – for if the logic of the matter is pressed, the outcome would be that even if the legal order contained no substantive rules or principles at all, it would still be formally complete since on that very basis the tribunal could give a decision in favour of the respondent-defendant.’ See also H. Lauterpacht, ‘Some Observations on the Prohibition of Non-Liquet and the Completeness of the Law’, (1958) Mélanges Verzijl 196, at 203.

29 The argument used in this case by France and Russia, and to a lesser extent by the United Kingdom and the United States, was that since the use of nuclear weapons during wartime is not expressly and specifically prohibited by international law, states remain presumptively free to use those weapons. For an analysis, see M. P. Lanfranchi and T. Christakis, La licéité de l'emploi d'armes nucléaires devant la Cour internationale de justice (analyse et documents) (1997), at 48–53.

30 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, Point E of the dispositif. In his Declaration to this Opinion, at 12, President Bedjaoui wrote: The Court's decision in the “Lotus” case, which some people will inevitably resurrect, should be understood to be of very limited application in the particular context of the question which is the subject of this Advisory Opinion.’

31 The Case of the S.S. “Lotus” (France v. Turkey), Judgment of 7 September 1927, Ser. A No. 10, at 18.

32 Amongst other things (e.g. international responsibility), this illegality authorizes external interference. We can easily think, for example, of the universal pressure against Portugal's refusal to accept self-determination for Portuguese non-self-governing territories in Africa during the Salazar years. In UN Doc. A/RES 2918 (1972), the General Assembly affirmed that ‘the national liberation movements of Angola, Guinea-Bissau and Cape Verde, and Mozambique are the authentic representatives of the true aspirations of the peoples of those territories’ and recommended that, pending the independence of those territories, all governments and UN bodies should, when dealing with matters pertaining to the territories, ensure the representation of those territories by the liberation movements concerned. International reaction in other similar cases, like Namibia or Southern Rhodesia, demonstrates also that there is a big difference between having a right to independence and not having such a right . . . .

33 In Odyssey IX, Homer speaks about the lotophagi, who were a race of people from an island near North Africa. The lotus fruits and flowers, primary food of the island, were delicious, but were narcotic and addictive, causing the people who eat them to sleep in apathy. See Christakis, supra note 18, at 79. For a more recent piece about some other ‘Lotus eaters’ in international law, see www.ejiltalk.org/the-lotus-eaters/#more-2279.

34 For a detailed analysis, see Christakis, supra note 18, at 78–84, criticizing the position of Th. Frank submitted at the Supreme Court of Canada by the experts of the amicus curiae in Reference by the Governor-General Concerning Certain Questions Relating to the Secession of Quebec from Canada, supra note 2, rapports d'experts de l'amicus curiae, No. 25506 (December 1997), at 2.11, according to which: ‘It cannot seriously be argued today that international law prohibits secession. It cannot seriously be denied that international law permits secession. There is a privilege of secession recognized in international law. . . .’

35 Commenting on the ICJ opinion, the ‘foreign minister’ of Kosovo, S. Hyseni, said: ‘It is clear that Kosovo's independence has not set any precedent. Kosovo is and has always been a special case.’ Foreign minister of Italy F. Frattini said that the ICJ's decision ‘clearly states that Kosovo must remain a unique case and that it cannot cause a domino effect, since such an event would lead to a crisis of international relations’. The UK foreign secretary, W. Hague, said that ‘Kosovo is a unique case and does not set a precedent’. And assistant Secretary of the US State Department Ph. Gordon, said that ‘The court's opinion was closely tailored to the unique circumstances of Kosovo. This was about Kosovo. It was not about other regions or states. It doesn't set any precedent for other regions or states’, available at www.state.gov/p/eur/rls/rm/2010/145104.htm. All this information has been compiled in Wikipedia entry Reactions to the International Court of Justice Advisory Opinion on Kosovo's Declaration of Independence, available at en.wikipedia.org/wiki.

36 As Cyprus emphasized, Written Statement Commenting on Other Written Statements of the Republic of Cyprus (2009), at 28: ‘This argument does not purport to apply the general rules of international law to special facts; on the contrary it attempts to exempt the situation of Kosovo from the rules.’

37 See, e.g., Kosovo, Verbatim Record, CR 2009/25 (2009), at 39.

38 For a detailed presentation and discussion of this theory, see T. Christakis, ‘The State as a “Primary Fact”: Some Thoughts on the Principle of Effectiveness’, in M. Kohen (ed.), Secession: A Contemporary International Law Perspective (2006), at 138–70, and A. Tancredi, ‘A Normative “Due Process” in the Creation of States through Secession’, in Kohen, supra, at 171–207.

39 Burundi's main argument was that ‘The creation of a State is a question of fact and cannot be the object of a judgment of validity’. For Burundi, ‘to pursue an argument of validity in this case would be tantamount to espousing what, in the theory of international law, is traditionally regarded as a “Kelsenian” approach . . . . Such an approach would presuppose that, of itself, international law validates the creation of subjects of the international legal order. According to Burundi, this concept does not correspond to positive international law. International law does not regulate the creation of states as regards the exercise of the right to self-determination, the violation of the latter having no consequence as regards validity, only as regards responsibility, for example with respect to the obligation not to recognize. This is confirmed by practice, as the case of Rhodesia illustrates. Moreover, it is because international law does not validate the creation of States that secessions are almost always regarded, in doctrine, as pure questions of fact which are not subject to any judgment of validity as regards international law’ (Burundi, Verbatim Record, CR 2009/28 (2009), at 32 ff., notes omitted). Similarly, Kosovo argued that ‘several States claimed during the written phase that declarations of independence are actually subject as such to the requirement of compliance with international law, because in certain situations, such as where an attempt is made to create a State by the use or threat of force by a third State or a régime is established based on apartheid or racial discrimination, these declarations are not recognized by the international community and are even declared invalid by the Security Council . . . . However, in no way does it follow from the examples given in the Written Statements and Comments that declarations of independence proclaimed, for example, with resort to armed force are intrinsically invalid; instead their condemnation by the Security Council and the international community stems from the principle that there should be no recognition of a situation created by a serious breach of an obligation arising under a peremptory norm of general international law and no aid or assistance rendered in maintaining such a situation’ (Kosovo, Verbatim Record, CR 2009/25 (2009) at 41, notes omitted).

40 Kosovo AO, supra note 10, at 81.

41 In the case of violation of a peremptory norm, this illegality exists, according to us, in an intrinsic way and independently of the adoption of a UN Security Council resolution asking states not to recognize the illegal situation thus created. For an analysis of this point, see T. Christakis, ‘L'obligation de non-reconnaissance des situations créées par le recours illicite à la force ou d'autres actes enfreignant des règles fondamentales’, in Ch. Tomuschat and J. M. Thouvenin (eds.), The Fundamental Rules of the International Legal Order: Jus Cogens and Obligations Erga Omnes (2005), at 134 ff.

42 Christakis, supra note 38, at 139.

43 See, e.g., Written Statement of Switzerland (2009), para. 28; Written Statement of the Federal Republic of Germany (2009), at 29; Written Statement of the Republic of Estonia (2009), at 4; Written Statement of Finland (2009), para. 2; Written Statement of Ireland (2009), para. 22.

44 Written Statement of the French Republic (2009), para. 2.14.

45 See Legality of the Use of Force (Serbia and Montenegro v. United Kingdom), (Serbia and Montenegro v. Portugal), (Serbia and Montenegro v. Netherlands), (Serbia and Montenegro v. Italy), (Serbia and Monténégro v. Germany), (Serbia and Montenegro v. France), (Serbia and Montenegro v. Canada), (Serbia and Montenegro v. Belgium), Preliminary Objections, Judgments of 15 December 2004.

46 United Kingdom, Verbatim Record, CR 2009/32 (2009), at 47.

47 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, 22 July 2010 Dissenting Opinion of Judge Skotnikov, para. 17.

48 See T. Christakis, ‘La sécession: Une question de simple fait?’, Working Papers of the European Society for International Law (2007), available at www.esil-sedi.eu/fichiers/en/Agora_Christakis_855.pdf.

49 See Written Statement of Austria (2009), para. 37; Written Statement of the Republic of Estonia (2009), at 4; Written Statement of the French Republic (2009), paras. 2.6–2.8; Written Statement of Ireland (2009), para. 18; Written Statement of Switzerland (2009), para. 55; Written Statement of United Kingdom (2009), paras. 5.8–5.11; Written Statement of the United States of America (2009), at 69.

50 For a detailed presentation, see Christakis, supra note 18, at 177–236.

51 Ibid., at 231.

52 The French text indicates even more clearly that the principle of territorial integrity applies also to individuals: ‘Aucune des dispositions de la présente Convention-cadre ne sera interprétée comme impliquant pour un individu un droit quelconque de se livrer à une activité ou d'accomplir un acte contraires aux principes fondamentaux du droit international et notamment à l'égalité souveraine, à l'intégrité territoriale et à l'indépendance politique des Etats’ (emphasis added).

53 Christakis, supra note 18, at 180–3.

54 This interpretation is possible. Indeed, the Court not only used the term ‘confined’, but it also stated no exception to this ‘confinement’.

55 Central governments facing separatist conflicts all over the world use, if needed, police or military force to quell armed separatist movements. During those last years, for example, states like Russia, India, Sri Lanka, Indonesia, the Philippines, Papua New Guinea, Georgia, China, the Comoros, Senegal, and many other states in all continents took action to defend their territory against secessionist attempts.

56 In all declarations since the UDI of Kosovo and since the ICJ Kosovo AO, Serbia clearly stated it will only seek a solution by ‘peaceful means’. See, e.g., V. Jeremić, minister for foreign affairs for Serbia, during the discussion of the Kosovo AO at the UN security Council, UN Doc. S/PV 6367 (2010), at 6: ‘From the very onset of this grave crisis, the Republic of Serbia responded to the UDI in a non-confrontational manner. We will continue to use all diplomatic resources at the disposal of a sovereign State to oppose this attempt to forcibly change our borders in peacetime.’

57 Indeed, the Kosovo AO has been received with great enthusiasm by separatist movements all over the world (see the Wikipedia entry Reactions to the International Court of Justice Advisory Opinion on Kosovo's Declaration of Independence, available at http://en.wikipedia.org/wiki).