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Limitations of the ICJ Opinion on Kosovo

JURIST Guest Columnist Kushtrim Istrefi, Legal Advisor to the Deputy Prime Minister of Kosovo, says that it would be misguided to construe the ICJ's recent advisory opinion on the legality of Kosovo's declaration of independence as the opening of the flood gates for all manner of secessionist movements...

The absence of a unified policy of the international community towards the declaration of independence of Kosovo (i.e. collective (non)recognition), led the United Nations General Assembly, upon the request of Serbia, to ask the International Court of Justice (the ICJ) for an Advisory Opinion on the question: "Is the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo in accordance with International Law?" The Government of Kosovo and its allies have stated that the creation of the State of Kosovo did not violate international law and, as such, it constitutes a unique case which cannot be seen as a precedent for other frozen conflicts in the world. However, a great opposition from Serbia, Russia, and other countries alleged that creation of the State of Kosovo was contrary to international law.

In response to a request made by Serbia, the ICJ on 22 July 2010 concluded that the declaration of independence of Kosovo adopted on 17 February 2008, did not violate general international law, Security Council resolution 1244 or the Constitutional Framework. Consequently, the adoption of that declaration did not violate any applicable rule in international law (p.43, para.122 of the opinion).

Since the (il)legality of Kosovo's independence and its (non)recognition had been widely debated, the ICJ clarified the concerns of Serbia and other states regarding the compatibility of Kosovo's declaration of independence with international law. Even though the Advisory Opinion of the ICJ is not a legally binding decision, it is general understanding and practice that findings of the World Court are to be respected. In this regard, most democratic countries expected that Serbia would take into consideration the answer of the Court to the question that Serbia had formulated, and would recognize the new reality for the benefit of its people and neighborhood policy.

However, Serbia--mainly by criticizing the narrow approach taken by the Court in answering the question on the legality of Kosovo's declaration of independence--continues to be destructive to the overall development of the Balkan countries and their integration into the European Union and NATO.

Another critical approach concerning the ICJ opinion in the case of Kosovo has recently been expressed by Dr. Curtis Doebler in his article "The ICJ Kosovo Independent Opinion: Uncertain Precedent". According to Dr. Doebler "the failure of the International Court of Justice to grapple with the issue of self-determination not only explains the Court's limited description of facts, but also indicates a tendency to shy away from controversial legal issues". Further, Dr. Doebler stated that the opinion of the Court in the case of Kosovo is "unlikely to be remembered as one of the Court's better attempts to articulate and clarify the law".

The author, however, believes that before making concrete conclusions as to narrow and concise interpretation adopted by the Court in the Advisory Opinion it is essential to assess the scope of the question put before the Court and to consider the reasons why the authors of the question (Serbia) chose such a formulation. Based on these considerations one can draw conclusions as to whether indeed the ICJ neglected to produce an accurate answer, and whether there is any deficiency in this regard.

Apart from the substantial arguments presented at the ICJ, one of the main debates during the oral hearings was focused on the formulation of Serbia's question. The question of whether the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo is in accordance with international law was highly criticized by the "authors of Kosovo's declaration of independence" and other states that supported Kosovo at the ICJ.

The question as formulated by Serbia asked the Court to assess only the rules in international law regarding declarations of independence and whether Kosovo's declaration of independence complies with those rules, whether this act was adopted by the Provisional Institutions of Self-Government of Kosovo, and whether there was any prohibition pursuant to the UN Resolution 1244, and the Constitutional Framework, that would make that declaration contrary to these documents.

It was argued that such a narrow question would create a deficient understanding of the events which led to the declaration of independence of Kosovo. However, Kosovo--more than Serbia--was interested in assessing the statehood criteria because the state of Kosovo was not created in the isolated act of the declaration of independence. The creation of the State of Kosovo has been indispensably linked to a continual oppression of its people, which created the necessity, and the legal basis for its later secession. Even though the discussion on the legal basis of Kosovo's self-determination is outside the scope of this essay, there are sufficient legal arguments in doctrine, case law, and state practice to justify the secession of Kosovo.

Serbia--irrespective of existing general knowledge of the atrocities and continual oppression committed against Kosovar Albanians since 1989, the violent abolishment of Kosovo's autonomy in 1989, and the ethnic cleansing and acts of genocide committed during the 1998-1999 conflict--tried to direct the ICJ to answer only with regard to the legality of the declaration of independence of Kosovo. In other words, Serbia asked the ICJ Judges to read only those documents after 1999, without taking into account the events which led to that declaration of independence. In its oral presentation, Crawford, in explaining the scope of the question, stated that "with this question Serbia wants to assess the legality of Kosovo's independence as at 17 February 2008; in short, Serbia wants this Court to condemn the Declaration of
Independence in isolation, and to condemn as such" (see CR 2009/32, p.46, para.1, Oral Hearings held on 10 December 2009).

Due to the formulation of the question, the states--either in support of Serbia or Kosovo--presented their arguments outside the scope of the question. Most states argued about the dissolution of Yugoslavia, the principle of "remedial self-determination" and territorial integrity, the Constitution of Serbia, and the recent political and social developments such as the successful implementation of the Ahtisaari Plan in Kosovo's favor or the criticism of a weak and unstable territory in defense of Serbia. The debate during the oral hearings therefore created even more hope between scholars and practitioners that the Court would in terms of assessing the statehood of Kosovo by going beyond the scope of the question.

However--even though all interested parties presented their arguments for and against the principle of territorial integrity, self-determination, and the dissolution of Yugoslavia--since the question did not require assessing the legality of Kosovo's statehood, the ICJ Judges stated that "the Court considers that is not necessary to resolve the above questions in the present case" (p.31, para.83). The Court further clarified the scope of the question:

In the present case, the question posed by the General Assembly is clearly formulated. The question is narrow and specific; it asks for the Court's opinion on whether or not the declaration of independence is in accordance with international law. It does not ask about the legal consequences of that declaration. In particular, it does not ask whether or not Kosovo has achieved statehood. Nor does it ask about the validity or legal effects of the recognition of Kosovo by those States which have recognized it as an independent State. 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 (see, for example, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 16 and Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), p. 136). (p.20, para.50).

If one may argue that the Court could have asked Serbia to reformulate the question, as it has previously done in cases of inadequately formulated questions (see for example Interpretation of the Greco-Turkish Agreement of 1 December 1926 (Final Protocol, Article IV), Advisory Opinion, 1928, P.C.I.J., Series B, No. 16), the Court clarified that even though the question is narrow and specific, it was however acceptable and it was a legal question (p.12, para.25).

The very fact that Serbia requested the ICJ to clarify the compatibility of Kosovo's declaration of independence with international law sets certain reservations as to criticism towards the ICJ for not providing the criteria and guidance for other isolated conflicts in the world. The Court answered the question that was asked. It was not for the Court to elaborate on the current developments of secession, self-determination, and its possible consequences. The examination of the Advisory Opinion shows that the case of Kosovo has been considered a unique and special case, which has to be seen from the perspective of an international peace agreement of the UN resolution, rather than from the perspective of an ordinary secessionist case.

It is debatable why Serbia formulated such a question, and what their initial intention was. Nevertheless, when Serbia asked for the Advisory Opinion of the ICJ, the Foreign Minister of Serbia Vuk Jeremic stated that "whatever the ICJ decides, Serbia will not recognize Kosovo." Certainly, this position remained unchanged after the ICJ concluded that the adoption of the Kosovo declaration of independence did not violate any applicable rule of international law. It is important to note the political statement of the Foreign Minister of Serbia, given that it was made even before the ICJ had handled its Advisory Opinion.

The foregoing observations illustrate that the intention of Serbia--by asking the ICJ for its opinion--was probably not to assess the statehood criteria, but rather to slow down the recognition of Kosovo and to create as many doubts as possible vis a vis the legality of Kosovo's independence, as far as international law is concerned.

The question of whether Kosovo constitutes a precedent for other isolated conflicts in the world was raised even before Kosovo declared its independence. Furthermore, it is a misuse of the Advisory Opinion of the ICJ by claiming that ICJ has given a "green light" for other secessionist movements. Indeed, the very fact that ICJ was not asked and did not answer the issue of the statehood of Kosovo, shows that it cannot be used as a legal argument for any other secessionist movements.

While it is impossible to assess here all the differences between Kosovo and other groups of people seeking secession and independence, Marko Attila Hoare proposes what can be the consequences of the Kosovo case in his article "The ICJ's ruling on Kosovo sets a precedent that is dangerous only for tyrants and ethnic cleansers." It should be added that even before the case of Kosovo, there existed enough references which could be invoked by groups of people struggling for their independence. An example of this could be seen in the creation of the state of Bangladesh without the consent of the state of Pakistan, and even with the intervention and support from India in 1971. There are a considerable amount of cases where the continual oppression of a group of people by the state has led to secession and the creation of a new state, and there is enough support in doctrine and case law to do so. With regard to the principle of territorial integrity the ICJ found that Kosovo did not violate the principle of territorial integrity, from the perspective of current existent international law. The Court further stated that "the scope of the principle of territorial integrity is confined to the sphere of relations between states" (see p.30, para.80), but not as general prohibition of internal developments.

Thus, the case of Kosovo certainly contributes to the raising of awareness of human rights and their implications on the concept of territorial integrity and the sovereignty of states. Hence, for all those states that continually oppress their people, Kosovo--when grouped with other cases--can be used as a legal argument for secession. At the same time, it would be poor reasoning to generalize that the creation of the State of Kosovo and the ICJ Advisory Opinion on Kosovo can be used as an argument to justify any secession without further analysis of the circumstances of each concrete case.

Kushtrim Istrefi is the Legal Advisor to the Deputy Prime Minister of Kosovo, a Ph.D. candidate at Graz University in Austria, a teaching assistant at the Law Faculty of the University of Prishtina, and author of the book: Secession, Statehood and the Recognition of Kosovo.

Suggested citation: Kushtrim Istrefi, Limitations of the ICJ Opinion on Kosovo, JURIST - Forum, Aug. 13, 2010, http://jurist.org/forum/2010/08/limitations-of-the-icj-opinion-on-kosovo.php.

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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