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Self-Determination, Secession, and Dispute Settlement after the Kosovo Advisory Opinion

Published online by Cambridge University Press:  11 February 2011

RALPH WILDE
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Abstract

This piece provides critical analysis of some of the broader consequences of what is potentially suggested by certain findings in the 2010 Advisory Opinion of the International Court of Justice on ‘Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo’. The focus is on consequences for disputes generally, and disputes relating to self-determination and secession in particular, in either case including disputes that have been made subject to a Security Council-imposed settlement process. In the first place, the piece considers the relatively specific suggestion that sub-state groups are free to unilaterally terminate a Security Council-imposed process aimed at enabling the resolution of a dispute concerning their aspirations to external self-determination, without this termination having to comply with the principles of justice and international law. In the second place, the piece considers the relatively broad suggestion that the act of any sub-state group of declaring independence and seceding from the state within which it is located, without the consent of that state or any other international legal sanction, is likewise not regulated by international law.

Keywords

Advisory Opiniondispute settlementICJKosovosecessionself-determination
Type
KOSOVO SYMPOSIUM
Information
Leiden Journal of International Law , Volume 24 , Issue 1 , March 2011 , pp. 149 - 154
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2011

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References

1 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion of 22 July 2010, 2010 ICJ Rep., obtainable from www.icj-cij.org (hereinafter Kosovo Advisory Opinion).

2 Resolution 1244, adopted by the Security Council at its 4011th meeting on 10 June 1999, UN Doc. S/RES/1244 (1999), obtainable from http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N99/172/89/PDF/N9917289.pdf?OpenElement (hereinafter Security Council Res. 1244).

3 Kosovo Advisory Opinion, supra note 1, para. 97.

4 Ibid., paras. 98 and 100.

5 For a detailed consideration of the purposes associated with UNMIK in Kosovo, and how they relate to other arrangements involving international territorial administration, see Ralph Wilde, International Territorial Administration: How Trusteeship and the Civilizing Mission Never Went Away (2008), Chapters 7 and 8.

6 Ibid., at 194–5, 220, and 241–2.

7 Security Council Res. 1244, supra note 2, para. 11(c).

8 Charter of the United Nations, signed on 26 June 1945, entered into force on 24 October 1945, Art. 1 (obtainable from www.un.org/en/documents/charter/index.shtml).

9 Cf. Ralph Wilde, ‘Kosovo 2008: Independence, Recognition and International Law’, (2008) V(2) Soochow Journal of International Law 50–82; a version of the remarks also available as Ralph Wilde, ‘Kosovo: Independence, Recognition and International Law’, paper presented at Chatham House (the Royal Institute of International Affairs), London, 22 April 2008, contained in ‘Kosovo: International Law and Recognition’, Discussion Group Summary, Chatham House, 8–20 (obtainable from www.chathamhouse.org.uk/files/11547_il220408.pdf).

10 Kosovo Advisory Opinion, supra note 1, para. 118.

11 See the discussion and sources cited in the publications cited supra note 9, passim.

12 Kosovo Advisory Opinion, note 1, paras. 79–84.

13 The source material on self-determination is voluminous. See the sources cited, and the discussion, in Wilde, supra note 5, Chapter 5, note 5 and Sources List, section 5.4.

14 Kosovo Advisory Opinion, supra note 1, para. 80.

15 See, e.g., the discussion in Ralph Wilde, ‘Recognition in International Law’, paper presented at Chatham House (the Royal Institute of International Affairs), London, 4 February 2010, contained in ‘Recognition of States: The Consequences of Recognition or Non-recognition in UK and International Law’, International Law Discussion Group Summary, Chatham House (obtainable from www.chathamhouse.org.uk/files/16184_040210il.pdf).

16 See the sources on self-determination indicated supra note 13.

17 For the argument that the people of Kosovo did not enjoy a legal right to external self-determination in 2008, see the publications cited above supra note 9, passim.

18 See Wilde, supra note 5, Chapter 5, sections 5.7 (on East Timor), 5.5 (on South West Africa/Namibia), and 5.6 (on the Western Sahara), and sources cited therein.

19 See the sources on self-determination indicated supra note 13, passim.