What it did not say: Secession after the ICJ's opinion on Kosovo

Gëzim Krasniqi
ICJ building
The much-anticipated opinion of the International Court of Justice (ICJ) on the legality of Kosovo’s declaration of independence (DoI) caught many by surprise for its clear answer, yet it failed to declare itself on essential issues such as Kosovo’s right to statehood as well as the right of its people to self-determination. Contrary to general expectations, the Court's opinion was unequivocal, concluding that ‘the adoption of the DoI of 17 February 2008 did not violate general international law, Security Council Resolution 1244 (1999) or the Constitutional Framework. Consequently the declaration did not violate any applicable rule of international law.’

Until July 2010 Kosovo had been recognised by 69 states. Serbia, which strongly opposes Kosovo’s independence, sponsored a draft-resolution at the General Assembly of the United Nations (UN) to request an advisory opinion from the ICJ on the legality of Kosovo’s DoI. The question on which the advisory opinion of the Court was requested was put forth in Resolution 63/3 adopted by the General Assembly of the United Nations on 8 October 2008. The Court was asked to provide an advisory opinion on the following question: ‘Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?’

This was the first time the International Court of Justice, as the highest judicial body of the UN, had been invited to deliver an advisory opinion on the legality of a DoI. Its opinion was considered to carry particular weight not only for Serbia and Kosovo, but also other UN Member States (in particular those having secessionist concerns within their borders), academic audience and general public opinion. Within the time-limit fixed by the Court, 37 states (including Kosovo which was invited by the court in the capacity of the ‘the authors of the unilateral declaration of independence’) filed written statements. 15 states submitted additional comments, whereas in the course of hearings held from 1 to 11 December 2009, the Court heard oral statements from representatives of 29 states.

 

Political reactions and implications

The Court’s Opinion, adopted by 10 votes to 4, was a blow for Serbia (which had requested this opinion) and a major endorsement for Kosovo, which hopes to establish itself as a full member of the international community. Serbia reiterated its position of non-recognition of the unilateral DoI, implicitly or explicitly. In an article titled ‘Kosovo’s Disastrous Precedent’ published in The Wall Street Journal, the Foreign Minister of Serbia Vuk Jeremić argued that the ICJ approach was too narrow, in that it neither endorsed the view that Kosovo’s unilateral DoI was a unique case, nor Pristina's claim that Kosovo is a state. Jeremić also claimed that the Court failed to approve Kosovo’s avowed right of secession from Serbia, or any purported right to self-determination for Kosovo's Albanians.

On the other hand, Kosovo’s politicians interpreted this as a ratification of Kosovo’s DoI and statehood. Its Prime Minister, Hashim Thaçi, in an article published in The Guardian, claimed that the ICJ finally ratified Kosovo as a sovereign, independent state and that, crucially, ‘the court reaffirmed Kosovo's place in the international community’. Despite totally contradictory interpretations of the ICJ's opinion, both Serbian and Kosovar leaders seem to agree on the narrowness of the Court's ruling. According to Thaçi, the narrowness of the Court’s ruling on this issue should reassure any country reluctant to recognise Kosovo that the DoI of Kosovo did not set a precedent.

Likewise, the opinions of both those states who support Kosovo’s independence and those who oppose it remain unchanged after the ICJ opinion. Contrary to predictions that an ICJ opinion in Kosovo’s favour would trigger a wave of additional recognitions for the new state, only four states – Honduras, Kiribati, Tuvalu and Qatar – have extended recognition to Kosovo following the ICJ opinion. This suggests that the Court’s opinion has not helped untie the main political knot in the Balkans. As Veton Surroi, a former politician and renowned publicist from Kosovo put it, ‘the first practical consequence on the ground of this verdict was the understanding that the Kosovo question had never actually moved to the legal terrain, but had always remained in the political sphere’.

Serbia reacted swiftly by submitting a draft resolution to the General Assembly of the UN that dismisses the Court’s opinion and calls for new negotiations on Kosovo’s status, thus initiating a diplomatic battle with the EU and US over the interpretation of the Opinion in the international community. However, as a result of  diplomatic pressure from the EU Member States, at the last minute Serbia agreed to amend the draft resolution for the UN General Assembly on Kosovo. The new draft calls for a dialogue between Belgrade and Pristina without reference to the issue of Kosovo’s status. Resolution 64/298, while acknowledging the content of the advisory opinion of the ICJ, ‘welcomes the readiness of the European Union to facilitate a process of dialogue between the parties; the process of dialogue in itself would be a factor for peace, security and stability in the region, and that dialogue would be to promote cooperation, achieve progress on the path to the European Union and improve the lives of the people.’ The content of this resolution in a way reflects Serbia’s agreement with the EU to move the Kosovo issue from UN fora to EU fora.

As required by UN Resolution 64/298, on 8 March 2011 Kosovo and Serbia held the first meeting in Brussels chaired by EU facilitator, Mr. Robert Cooper, Director General for External and Political and Military Affairs. The Serbian delegation was led by Mr. Borko Stefanović, political director of the Serbian Ministry of Foreign Affairs,and the Kosovo delegation led by Ms. Edita Tahiri, Deputy Prime Minister of Kosovo. This dialogue is under way and so far has touched upon the issue of civil registry, cadastre records, telecommunication, aviation, electricity, regional trade and free movement of goods and people.

This dialogue may help to solve difficult issues such as customs in  northern Kosovo, travel documents, refugees, property rights, which are essential for the new state and its efforts to consolidate an autonomous citizenship regime. The ICJ opinion and an eventual normalisation of relations between Serbia and Kosovo through dialogue will certainly affect the emerging citizenship regime in Kosovo in many ways. A fruitful dialogue between Pristina and Belgrade would also ease tensions in the region and accelerate both countries’ EU integration process. In addition, such developments would create new opportunities for Kosovo to join various international and regional political organizations, allowing it to adhere to crucial human rights instruments such as the European Convention on Human Rights. Finally, the ICJ Opinion is expected to pave the way for new political dynamics within the European Union (EU) regarding its stance on Kosovo.

 

Academic and legal debates

Despite the clear majority in favour of the Opinion that the DoI of Kosovo did not violate international law, the approach adopted by the Court as well as its reasoning have been criticised by Court Members and scholars alike. With regard to the former, Judge Bruno Simma from Germany criticised the Court for adopting an approach that represents an outdated view of international law. According to him, by upholding the ‘Lotus principle’ or the notion that in international law everything is allowed that is not expressly prohibited), the Court ‘fails to seize a chance to move beyond this anachronistic, extremely consensualist vision of international law’. Further, Simma argues that by refusing to enquire into whether a DoI might be ‘tolerated’ or even expressly permitted under international law does not do justice to the General Assembly’s request and, thus, significantly reduces the advisory quality of the Opinion. In a similar vein, Judge Abdulqawi Ahmed Yusuf from Somalia claims that the Court failed to seize the unique opportunity, ‘which would have allowed it to clarify the scope and normative content of the right to external self-determination, in its post-colonial conception, and thus to contribute, inter alia, to the prevention of unjustified claims to independence which may lead to instability and conflict in various parts of the world’.

In their dissenting opinions, Judge Leonid Skotnikov from Russia and Judge Mohamed Bennouna from Morocco claim that the Court should have used its discretion to refrain from exercising its advisory jurisdiction in the rather peculiar circumstances of the Kosovo case. According to them, there is no point in the Court deciding to answer a question posed by the General Assembly of the UN, when such an assessment is a matter for the Security Council alone and that organ has not sought its opinion on the question. This view is also held by Judge Kenneth Keith from New Zealand who voted in favour of the Opinion.

Vice-president Peter Tomka from Slovakia criticised the Court for giving an answer only after having ‘adjusted’ the question with regard to the identity of the authors of the DoI. For Tomka, that ‘adjustment’ was ‘of critical importance to the answer given; in fact, it was outcome-determinative’. Indeed, the identity of the authors of the DoI seemed to have been a controversial issue among the judges. Even Judge Bernardo Sepúlveda-Amor from Mexico, who voted with the majority, is unable to agree with the reasoning of the Court to the effect that the authors of the DoI did not act as one of the Provisional Institutions of Self-Government within the Constitutional Framework.

The last two separate opinions by Abdul G. Koroma from Sierra Leone and Antônio A. Cançado Trindade from Brazil represent the diametrical extremes in Judge’s opinions. For Koroma, the unilateral DoI of 17 February 2008 was not intended to be without effect: ‘It was unlawful and invalid, and failed to comply with laid down rules. It was the beginning of a process aimed at separating Kosovo from the State to which it belongs and creating a new State and for these reasons the Court should have found that the unilateral DoIof 17 February 2008 by the Provisional Institutions of Self-Government of Kosovo is not in accordance with international law’. On the other hand, Judge Trindade maintains that the Court pursued a minimalist approach to the factual background of the question put to it by the General Assembly, ‘concentrating its attention on Kosovo’s DoI, and making abstraction of its causes, lying in the tragic succession of facts of the prolonged and grave humanitarian crisis of Kosovo, which culminated in the adoption of Security Council resolution 1244 (1999)’. By recalling a well-established general principle of international law - ex injuria jus non oritur (a wrongful act cannot become a source of advantages, benefits or else rights for the wrongdoer) – Judge Trindade argues that ICJ opinion should have been more explicit in condemning the transformation of states into machines of oppression and destruction.A motive from Prishtina1_0.jpg

It can be argued that an increased emphasises on grave humanitarian crisis invokes the issue of remedial secession. However, although elements of remedial secession are present in the case of Kosovo, according to Iona Cismas, the international community ‘missed a rare opportunity to clarify the concept of remedial secession and to reassert its preventive force as a non-traditional human rights protection mechanism’.1 Thus, neither those states that recognised Kosovo nor the ICJ Opinion treat Kosovo’s independence as an instance of remedial secession that could set a precedent. The situation is one where there is no general jus secedenti or rule governing remedial secession. But the paradox is that although the legitimacy of Kosovo’s independence stems from its recent history of violent conflict and oppression, its independence is not treated as a remedial secession. In this context, Cismas rightly points out that Kosovo is nothing nut a Bangladeshi déjà-vu’.

The ICJ Opinion has intensified the ongoing scholarly debate on the (il)legality of Kosovo’s independence. Most scholars seem to feel let down by the narrowness of the Court’s Opinion. In a typical expression of regret for the approach taken by the Court, Thomas Burri2 argues that the Court failed to seize the opportunity to clarify the scope of secession and self-determination. According to him, although the very foundation of the international law was at stake, the Court followed the reasoning of James Crawford (who appeared before the court on behalf of the United Kingdom) that there are no rules in international law that prohibit secession, thus refusing to address the missing link between the DoI and secession or self-determination. Likewise, Michael Bothe3 argues that Court’s judicial restraint has consequences that are of political importance. While the ICJ left the issue of Kosovo’s statehood unanswered (it said that no more than Kosovo’s DoI was not prohibited), it certainly made it impossible for other secessionist movements to rely on the ICJ’s opinion to justify a right to secession. Or, as Marc Weller put it, ‘other secessionist movements around the world are in fact unlikely to be either encouraged or discouraged by the Advisory Opinion; they have their own strong motivational factors driving their campaigns linked to the particular context’.

According to Robert Muharremi, by not declaring its position on both the legal aspects of secession and the eventual creation of a new state, the ICJ fails to distinguish between ‘declaring independence’ and ‘effecting independence’. The ICJ’s reasoning in this case is that ‘a people, whether or not it qualifies under the right of self determination, have the liberty to declare independence without violating international law’ but it does not address the issue of legal consequences of such actions and whether effecting independence violates international law’.4 The Court’s decision to apply a ‘negative-test’ indicates the former’s reluctance to deal with the right to self-determination and secession. Elena Cirkovic also argues that although the Court has reformulated the question, it remains vague as to the essence of the Kosovo problem and the issue of the right of people to self-determination outside the context of decolonisation. In fact, as Cirkovic argues, the vagueness of the opinion is a symptom of a broader problem – ‘the continuous tension in the international legal system’s ability to provide rules on claims to external self-determination’.5

Stefan Talmon maintains that the Court’s reasoning on the substance can be summarised as being: ‘whatever rules of international law might have prohibited a declaration of independence were not applicable to the authors of the declaration of independence, who were acting as the ‘representatives of the people of Kosovo’’. However, according to him, irrespective of the ICJ Opinion, Kosovo is neither independent nor sovereign and does not qualify as a state. The ICJ’s Opinion once more highlights the fact that there is no right to remedial secession in customary international law. The ICJ Opinion has not helped to dispel uncertainty regarding Kosovo’s legal status and statehood.

Finally, Richard Caplan argues that while the Advisory Opinion will not resolve the longstanding dispute between Belgrade and Pristina, it will nevertheless facilitate further recognition of Kosovo, thus helping to dispel doubts about Kosovo’s statehood and make a contribution to peace and stability in the Balkans region. As far as the wider impact of the Opinion is concerned, Caplan argues that separatists elsewhere, however, are likely also to be mindful of the uniqueness of the Kosovo case in one important respect; ‘they will appreciate that even if their own situations may appear to be comparable to those of Kosovars, the basis for international support ultimately is often political rather than legal’.

 

Conclusion

It is generally agreed that the ICJ Opinion on Kosovo’s declaration of independence did not address the burning issue of Kosovo’s right to statehood or the right of people to self-determination. Rather, the Court did a negative-test finding that the adoption of the DoI did not violate general international law, the UNSC Resolution 1244 or the Constitutional Framework of Kosovo (the latter two forming what is known as the Lex specialis). In this way, it dealt with the act of DoI per se, as well as its authors. As far as the authors are concerned, the Court found out that it was the representatives of the Kosovo people who adopted the DoI and not Provisional Institutions for Self-government established by the UN Mission in Kosovo. Yet another important point of the Opinion is the Court’s ruling that territorial integrity is confined to the sphere of relations between states.

As many scholars, as well as Judges, commented, unfortunately the Court did not address the issue of Kosovo’s statehood, general criteria for statehood, or that of the right to secession. However, the fact that Kosovo’s DoI was not considered unlawful by the Court (based on the Lotus principle), does not mean that there is a jus secedendi in general international law. This way, the Court has reinforced the argument that secession happens in an international legal vacuum. Or, to be more precise, it is prohibited only in cases provided that there is violation of jus cogens (the peremptory norms of international law), such as in the case of the Turkish Republic of Northern Cyprus.

Undoubtedly, the ICJ Opinion marks the beginning of a long political process that, in one way or another, will consolidate Kosovo’s statehood and its international subjectivity. Yet, irrespective of the ICJ Opinion, the issue of statehood and (remedial) secession remain either vague or unregulated by the general international law. Likewise, there is no general consensus on the statehood criteria that would be used as a standard against which the would-be-states would be measured. Although the ICJ Opinion did not justify secession, it did not put an end to the aspirations to independent statehood in the future. As Bjorn Arp put it, ‘the present Advisory Opinion might not enter into the judicial history of the Court for its answer to this question, but rather for what it did not say.’6

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1 Ioana Cismas, ‘Secession in Theory and Practice: the Case of Kosovo and Beyond,’ Goettingen Journal of International Law 2 (2010) 2, 533.

2 Thomas Burri, ‘The Kosovo Opinion and Secession: The Sounds of Silence and Missing Links,’ German Law Journal, Vol. 11 (No. 08); 881-890.

3 Michael Bothe, ‘Kosovo – So What? The Holding of the International Court of Justice is not the Last Word on Kosovo’s Independence,’ German Law Journal, Vol. 11 (No. 08); 837-840.

4 Robert Muharremi, ‘A Note on the ICJ Advisory Opinion on Kosovo,’ German Law Journal, Vol. 11 (No. 08), 880.

5 Elena Cirkovic, ‘An Analysis of the ICJ Advisory Opinion on Kosovo’s Unilateral Declaration of Independence,’ German Law Journal, Vol. 11 (No. 08), 912.

6 Björn Arp, ‘The ICJ Advisory Opinion on the Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo and the International Protection of Minorities,’ German Law Journal, Vol. 11 (No. 08), 847.