Abstract
On 22 July 2010 the International
Court of Justice (ICJ) reached a final decision in one of
its most momentous
cases: Kosovo. The
media response was huge and many headlines were plain in
pointing out that “Kosovo's independence is legal”.
But what sounds so clear at first sight arguably becomes an
erroneous assumption upon closer examination. Indeed, the
ICJ explicitly avoided deciding upon the legality of
Kosovo's independence. Finally, there are sound reasons to
question the legal significance of the Court’s findings.
Keywords: Kosovo, International
Court of Justice,
secession, international law
Introduction
In February 2008 Serbia was confronted
with Kosovo’s Declaration of Independence. The Community of
States was split on how to react on this unilateral act. In
all, 69 of
192 UN member-states recognized
the declaration. Other countries either refused to
acknowledge it, or adopted a neutral position.
Faced with the broad recognition of Kosovo, Serbia initiated
a request for a non-binding advisory opinion with the ICJ,
asking whether the unilateral declaration of independence
was in accordance with international law. But this
apparently substantial question would turn out to be a quite
insubstantial request.
The Explosive Nature of
the Request
Serbia presented the ICJ with a dilemma.
The judges were indirectly asked to clarify one of the most
disputed and politically charged issues in international law
today: secession. The ICJ
was about to deal with an issue which the
Community of States had for decades explicitly avoided
settling. On the one hand, the difficulty lies in how to
create clear rules that are suitable for the variety of
current and possible future secession conflicts. On the
other hand, third countries use secession conflicts as
leverage to pursue their own goals, which has always been a
crucial obstacle to the general solutions to such conflicts.
In addition to these difficulties, the
ICJ was confronted with the tense political peculiarities of
the Kosovo case. A rejection of Kosovo’s independence would
have exposed many western countries that recognized and
eagerly fought for the breakaway region (e.g. the US, Great
Britain, France and Germany). By contrast, the clear
acknowledgement of Kosovo’s statehood could have affected
many other regions in the world, causing damage difficult to
calculate.
The Advisory Opinion
Caught in this dilemma, the ICJ’s judges
nevertheless found an easy way to close the case. They
adopted a narrow interpretation of Serbia’s request by
considering only its literal wording. The ICJ was literally
only asked whether the declaration of independence is in
accordance with international law. Since general
international law contains no prohibition of declarations of
independence and the authors of the given declaration were
obviously not bound by Security Council resolution 1244
(1999), the request could quite quickly be answered. The ICJ
found that Kosovo’s declaration of independence did not
violate international law.
The Remains of the
Trial
Does that mean that the ICJ recognized
the legality of Kosovo’s independence? No. Unlike many press
reports suggest, the ICJ explicitly made clear that it did
not handle the question of the legal consequences of the
declaration of independence. But this would have been the
crucial question. Without an answer to that question, the
ICJ could not clear up Kosovo’s legal status.
In fact, declarations of independence may
actually be voiced by any group of the population using any
kind of procedure. This is not prohibited under
international law. The crucial issue is instead whether a
certain declaration, or any other reason, changes the given
legal status and creates certain rights and obligations
under international law. In terms of the Kosovo case this
includes the questions: Has Kosovo achieved statehood? Had
the Kosovo Albanians the right to secession? Did Serbia
indeed lose a part of its territory? And most importantly:
Was Kosovo lawfully recognized by numerous states?
The ICJ answered none of these questions
and so it did not clarify Kosovo’s legal status. Indeed, it
left more uncertainty than it brought light to the case.
This outcome does not affect just the Kosovo case, but also
many other cases of separatist movements around the world,
e.g. in Abkhazia, Nagorno-Karabakh
and South Ossetia. In view
of the remaining uncertainty, conflict parties and third
countries are now also enabled to square their
interpretation of the ICJ’s Kosovo opinion with their own
political ends.
Was the ICJ’s Decision
Inevitable?
It is important to note that the ICJ did
not arrive at a legally wrong decision when interpreting the
original request narrowly. It is safe to assume that Serbia
cautiously chose the wording, so that there might have been
no reason to derogate from the literal request and to answer
any additional question. A clear statement of Serbia’s
Minister for Foreign Affairs underlines this perspective.
When introducing the request in the UN General Assembly he
announced that there is no need for any changes or additions
in respect of the request.
Of course, the choice of the request
remains a mystery. Apparently Serbian officials hoped that
the ICJ would identify the crucial questions anyway. In that
case Serbia would not have had to point a finger at many
states, which had already assumed Kosovo’s statehood and had
recognized the region. Such a challenge could have been the
knockout blow in the UN’s General Assembly, which had to
adopt the request before it could be forwarded to the ICJ.
As became obvious, even the original request with its less
confrontational wording had big problems to pass the
Assembly. The above-mentioned statement from Serbia’s
Minister for Foreign Affairs also emphasizes this
perspective.
Accordingly, Serbian officials tried to formulate a
non-controversial request representing the lowest common
denominator of the positions of the UN Member States on the
Kosovo question. They supposed that this was the only way to
bring the request through the General Assembly.
However, the ICJ must have noticed that
the choice of the wording did not really reflect the legal
questions in issue. Moreover, the controversial subject was
evident in view of both Serbia losing a part of its
territory and of the international quarrel over Kosovo’s
legal status and the possibility to recognize it, which
ultimately also influenced the procedure in the UN General
Assembly. It could not be excluded that Serbia and the
countries which backed the request in the General Assembly
(which did not include many of Kosovo’s proponents) had
these facts still in mind when calling on the ICJ. In the
light of these circumstances, the ICJ should have given a
broad interpretation to the request, as it did in a previous
case
and as was even suggested by some of its judges.
Conclusion
Finally, the ICJ’s opinion has not
provided a better understanding from a legal perspective.
This applies to Kosovo’s status in particular, and to the
issue of secession in general. For this reason the decision
has no implications for the normative substance of
international law. The legal issue of secession and the
questions related to it remain disputable, even though
persuasive arguments imply that there is no right to
unilateral secession outside the
context of decolonization.
What remains is the sad confirmation that
international law is a weak means by which to solve
secession conflicts. As many other cases indicate, secession
conflicts are frequently in the arena of third countries’
interests. Legal considerations are quite flexible here, and
coincide with the given interests of foreign affairs, which
concern particularly the maintenance or extension of
influence in regions of strategic importance. This is shown
in the cases of Abkhazia,
Nagorno-Karabakh
and South Ossetia, but also
in the Kosovo case. In the end, a
solution is heavily dependent upon the weight of the
involved third countries and their interests. With regard to
the Kosovo case, several countries tried to maintain this
interest-oriented policy by preventing the ICJ from
conducting a deeper legal analysis. Remarkable in this
regard was particularly the
negative attitude of the USA,
France and Germany.
Overall, the conduct of a number of
states questions not only the significance of international
law in the context of conflict resolution but also the
current procedure to call on the ICJ for an advisory
opinion. At least in highly disputed cases, where even the
conduct of a number of powerful countries is challenged, the
General Assembly does not appear as an appropriate body to
formulate and pass conclusive requests to the ICJ. However,
the ICJ had the chance to carry out a deeper analysis and to
recapture ground for international law in the context of
secession. But it missed the chance, which means a setback
for the resolvability of secession conflicts and for the
rule of law in general.
In sum, the modest result of Serbia’s
request is due to a conjunction of several circumstances,
which include the conflicting interests of third countries
in the Kosovo conflict and a procedure at the UN General
Assembly open to interference by these opposing positions.
Of course, there was also the misjudgement by Serbia’s
officials when formulating the request, and the ICJ’s
constraints in dealing with a matter that is extremely
politically charged. Both reasons
were also decisively responsible for the outcome of the
trial.
In the end, the Kosovo case seems to
remain unsettled. Currently, the proponents of Kosovo’s
independence benefit from a broad misinterpretation of the
ICJ’s opinion in the press. The misunderstanding is
primarily due to the difficulties in understanding the
nuances of the ICJ’s opinion and the court’s insufficient
communication policy. Though it tried to avoid a legal
substantiation, the ICJ accordingly plays a crucial role in
establishing Kosovo’s independence.