Monday, July 26, 2010

Kosovo, the International Court of Justice and Judicial Restraint

Although the International Court of Justice, delivering an advisory opinion last week, simply said that international law does not prohibit the people of Kosovo (or their representatives) from declaring independence, many minorities in the international community will find the opinion of the main judicial body of the United Nations as an ally in their way to achieve independence. No doubt, the International Court of Justice has just given a major boost to all of those aspiring for independence.

First, let us remember that the International Court of Justice has an advisory jurisdiction, pursuant to Article 65 of its Statute, to answer any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations. Thus, some months ago the General Assembly asked the ICJ the following question: 
“Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law”? 
Legally speaking, this method of question referral is worth studying, since in a political body like the General Assembly it is very important how you draft the question in order to get the sufficient votes for the referral to the International Court of Justice, but it is precisely the narrow scope of a determined question that affects the final result of an advisory opinion. 

The genuine issue with Kosovo is not really whether the unilateral declaration of independence is in accordance with international law, but whether there is an obligation in international law for third States to recognize Kosovo, considering the circumstances of its independence. However, the International Court of Justice, in what seems a landmark application of the interpretation theory of judicial restraint, said that although it recalls that in previous cases it had departed from the language of the question put to it where the question was not adequately formulated, in the present case, the question posed by the General Assembly is clearly formulated. Specifically, it said: 
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 the declaration. In particular, it does not ask whether or not Kosovo has achieved statehood. Nor does it ask about the validity of 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. 
In regards to the core issue of the opinion, that is, the legality in international law of Kosovo’s declaration of independence, the Court was very straightforward, establishing that in the second half of the twentieth century there is no evidence of the emergence in international law of a new rule prohibiting the making of a declaration of independence. In other words, there is no conclusive international custom at the present time that would make illegal that a determined minority declares its independence, being this one of the most dangerous affirmations the Court made.

More importantly, the ICJ stated that the principle of territorial integrity does not apply in cases of declaration of independence, because, in the words of the Court, “it is confined to the sphere of relations between States”, hinting that a declaration of independence is respectful of international law at least if it does not involves the unlawful use of force or other serious violations of international law, like jus cogens norms. 

It is worth noticing that the most controversial issue during the development of the advisory proceedings, was not answered by the Court, since the majority of the judges thought that the question of the right to remedial secession under international law was highly contentious among the States that participated in the proceedings and was not relevant in order to answer the question the General Assembly of the United Nations submitted to the Court.

In my humble opinion, the Court has done here a very dangerous thing, since while not answering completely the legal issues surrounding the Kosovo case, there is still no clear law regarding the complex relation between the principle of self-determination, secession and recognition of new States, and now probably some separatist groups are just going to think that they can easily declare independence from their States, causing a severe political crisis in several countries. However, it is also true that the Court cannot surpass the political will of the Member States of the United Nations, determining what the international law is, leaving us that with the conclusion that the Court should not have accepted to give the opinion in the first place. 

Anyhow, it is important to notice the judicial restraint of this International Court of Justice, compared with the one that decided the Wall Advisory Opinion. After all, it does not correspond to the judiciary, especially in a setting like the United Nations, to say what the law is, but to apply the law. In any case, it is important to keep in mind that declarations of independence are mainly domestic affairs and the United Nations does not reprove them except there is a violation of international law involved in the making of the declaration. Therefore, States better hurry in prohibiting minorities to declare independence in their domestic legal systems.

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