The ICJ Kosovo Independence Opinion: Uncertain Precedent

JURIST Guest Columnist Curtis Doebbler, professor of law at An-Najah National University in Nablus, Palestine, says that while the recent opinion of the International Court of Justice on Kosovo's unilateral declaration of independence is likely to be an important point of reference for the representatives of other groups seeking self-determination, it is unlikely to be remembered as one of the Court's better attempts to articulate and clarify the law...

On 22 July the International Court of Justice handed down a decision that is likely to have significant consequences for the unilateral declarations of independence for people seeking to form an independent State.

The main legal finding of the Court is that the unilateral declaration of independence by the Kosovo Assembly was legal because international law does not prohibit declarations of independence.

In providing this Advisory Opinion the Court rejects the suggestion that Kosovo's declaration of independence was sui generis (a special case) and thereby established that as a general rule of international law declarations of independence are valid under international law.

This finding by the Court would seem to legitimize declarations of independence such as the 15 November 1988 declaration of independence of Palestine by the Palestinian Liberation Organization, an entity recognized as the legitimate representatives of the Palestinian people by the UN General Assembly. The vagueness of the Court's criteria and reasoning, however, leaves much up to the creativity of those seeking to use to Advisory Opinion to further their cause or to apply common standards to future cases.

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To arrive at its decision the Court had to first confront several jurisdictional obstacles that States had raised.

While it was difficult for any State to challenge the request for an Advisory Opinion from the UN General Assembly as being outside its competence due to the broad manner in which this competence is defined in the Charter of the UN, the nature of the request was challenged.

It was alleged that the request by the General Assembly was outside its powers under the Charter because the Security Council was seized of the matter. The Court, however, dismissed this claim stating that while the Security Council being seized of the matter might limit the ability of the General Assembly to act upon an Advisory Opinion, it did not limit its ability to ask for an Advisory Opinion. (para. 24).

The Court also considered whether the request was for a legal or a political opinion. According to article 96 of the Charter, only legal opinions may be requested. This is consistent with the judicial nature of the Court as the principal judicial organ of the United Nations. The question that had been asked to the Court was: "Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?" The Court first notes that this appears to be a legal question by its clear words. It then goes on to hold that its longstanding jurisprudence has confirmed "that the fact that a question has political aspects does not suffice to deprive it of its character as a legal question." (para. 27). The question is thus found to be legal.

After finding that the General Assembly had authority to ask the Advisory Opinion, the Court finds it necessary to enquire into whether this authority has been properly exercised in the present case. This relative lengthy enquiry (17 paragraphs: 29-48) under the section entitled "Discretion" was described by the Court as the consideration of its "discretion whether or not to respond to a request for an advisory opinion ... so as to protect the integrity of the Court's judicial function and its nature as the principal judicial organ of the United Nations." (para. 29). It might be wondered if after finding that the request was for a legal question, it was appropriate for the Court to consider its discretion.

The failure of the Court to respond to a legitimate legal question would appear to be abrogation of its responsibilities or even indicate a degree of politicization. These consequences, however, were not considered by the Court in its Advisory Opinion. Nevertheless, the Court was on solid ground in pointing out that article 65, para. 1 of its own Statute indicates this discretion exists by using the word 'may' instead of 'shall' to describe its power to give Advisory Opinions.

In its lengthy discussion of its exercise of discretion, the Court emphasized, as it has often held, that requests for Advisory Opinions should not "in principle" be refused. (para. 30). The Court then considers whether there are compelling reason for refusal. It dismisses as not compelling enough the claim that the request was made to serve the political self-interests of individual States holding that "the motives of individual States which sponsor, or vote in favour of, a resolution requesting an advisory opinion are not relevant to the Court's exercise of its discretion whether or not to respond." (para. 33). It also dismisses the arguments that lack of a clear reason for requesting an Advisory Opinion (para. 33) or that there might be possible "adverse political consequences" of its Opinion (para. 35), should move the Court to deny the request.

Revisiting the relationship between the Security Council and the General Assembly, the Court considers whether it would be interfering with the division of powers between these two bodies. The Court essentially deals with the this problem as it did in its Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (see para. 26 of the 1996 Opinion quoted by the Court at para. 40), where it emphasized that the Security Council's competence in the area of peace and security may be primary, but is not exclusive. The Court even stresses the compatibility of General Assembly action on matters that are being dealt with by the Security Council because they concern international pace and security. The Court states

that the fact that a matter falls within the primary responsibility of the Security Council for situations which may affect the maintenance of international peace and security and that the Council has been exercising its powers in that respect does not preclude the General Assembly from discussing that situation or, within the limits set by Article 12, making recommendations with regard thereto.

The Court also draws attention to the Uniting for Peace Resolution (UNGA Res. 377A (V)) which recognizes the General Assembly's power to make recommendations in such situations. The Court's only hesitance to recognize these broad reaching powers of the General Assembly is its reiteration of the Assembly's ability to merely 'recommend' steps, while the Security Council has the ability to make legally binding decisions.

Finally, as concerns it jurisdiction the Court finds there is no obstacle to its discretion to respond to the request of the General Assembly that can be found in the fact that "it will necessary have to interpret and apply the provisions of Security Council resolution 1244 (1999)." (para. 46).

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The Court then considers whether the question asked by the General Assembly was appropriate, but quickly determines it to be "clearly formulated," "narrow and specific." (para. 51).

In reviewing the language of the question, the Court also considers whether the General Assembly's determination that the declaration was made by the "Provisional Institutions of Self-Government of Kosovo" was binding on the Court in the determination of the facts. (paras. 51-56). The Court notes that some States had contested "[w]hether it was indeed the Provisional Institutions of Self-Government of Kosovo which promulgated the declaration of independence." (para. 52). Responding to this concern the Court holds that its ability to review what entity had actually made the declaration of independence remained unfettered. In this section, the Court also considers the relevance of a well-known domestic decision by the Canadian Supreme Court (para. 55 citing Reference by the Governor-General concerning Certain Questions relating to the Secession of Quebec from Canada ([1998] 2 S.C.R. 217; 161 D.L.R. (4th) 385; 115 Int. Law Reps. 536)). The Court finds that the question in the Canadian case deals with secession, and thus is "markedly different" from that in the present case.

The Court describes the facts almost exclusively on the basis of UN action. This is done in three sections dealing with, respectively, (i) UN Security Council Resolution 1244; (ii) the relevant events in the final status process prior to 17 February 2008; and (iii) the events of 17 February 2008 and thereafter. (paras. 57 to 77). Only scant attention is given to the actions of the representatives of the Kosovo people, except in the last of the three sections and almost no attention is given to the situation that the Kosovo people suffered at the hands of the Serbian authorities.

The Court then begins its legal analysis, which is divided into three parts, (paras. 78-121) commencing with an historical review of declarations of independence based on State practice during "the eighteenth, nineteenth and early twentieth centuries." (para. 79). This practice, the Court concludes, "points clearly to the conclusion that international law contained no prohibition of declarations of independence." (para. 78). With this determination the Court has essentially decided the question it was asked.

This is particularly evident in paragraphs in this section in which the Court considers the importance of self-determination, but dismisses it as it is "not necessary to resolve these questions in the present case." (para. 83). The failure 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.

Moreover, the failure of the Court to consider the practice of States in the General Assembly, the body asking for the Advisory Opinion, in relation to this issue and similar issues concerning the independence of States would appear to be a significant omission. The practice and opinions of States in the General Assembly should likely have been relevant to determining the existence and interpretation of customary international law, which the Court was seeking to ascertain.

Having disposed of the central question, the Court then turns to the compatibility of Kosovo's declaration of independence with Security Council Resolution 1244 and the Constitutional Framework that had been promulgated by the UN Mission in Kosovo (UNMIK). More space--thirty-six paragraphs (paras. 85-121)--is devoted to this consideration than to any other issue, in the Advisory Opinion.

The Court starts its discussion by recognizing the legally binding nature of Security Council resolutions. (para. 85). The consideration of Security Council resolutions as separate forms of international law--i.e. based on the Charter--although necessary, is a reminder of the limited nature of the Security Council's membership that makes its views and actions of less relevance to the formation of customary international law than those of the General Assembly.

The Court also considers the Constitutional Framework as part of "a specific legal order, created pursuant to resolution 1244 (1999)." (para. 89). As such the Court considers the compatibility of the declaration of independence with both with Resolution 1244 and the Constitutional Framework.

Considering Resolution 1244, the Court acknowledges that while the rules of interpretation of treaties (articles 31 and 32 of the 1969 Vienna Convention on the Law of Treaties) "may provide guidance, differences between Security Council resolutions and treaties mean that the interpretation of Security Council resolutions also require that other factors be taken into account." (para. 94). The Court also emphasizes that "Security Council resolutions can be binding on all Member States ... irrespective of whether they played any part in their formulation." (para. 94).

Consequently (subsection 1), the Court determines that "three distinct features of that resolution are relevant for discerning its object and purpose." (para. 96). First, the Court finds the UNMIK to be an "exceptional measure" because its authority superseded that of the "legal order in force at that time in the territory of Kosovo." (para. 97). Second, because UNMIK was established for humanitarian purposes "to bring about stabilization and reconstruction," it follows, according to the Court, that "[t]he purpose of the legal régime established under resolution 1244 (1999) was to establish, organize and oversee the development of local institutions of self-government in Kosovo under the aegis of the interim international presence." And third, the resolution "clearly establishes an interim régime" therefore "it cannot be understood as putting in place a permanent institutional framework in the territory of Kosovo." (para. 99). In paragraph 100, the Court thus concludes that "the object and purpose of resolution 1244 (1999) was to establish a temporary, exceptional legal régime which, save to the extent that it expressly preserved it, superseded the Serbian legal order and which aimed at the stabilization of Kosovo, and that it was designed to do so on an interim basis." The logic of the Court appears somewhat circular: because an exceptional legal regime has been established, it is exceptional.

The Court also seems to rely excessively on the preference of the concerned actors, who will of course characterize their acts as legitimate. Perhaps the Court could have undertaken a more detailed review of the manifested actions and intentions of the concerned actors to determine in what capacity, and with what motivation, they were acting.

In a section entitled "[t]he question whether the declaration of independence is in accordance with Security Council resolution 1244 (1999) and the measures adopted thereunder," the Court considers whether the declaration of independence violated the Constitutional Framework. To make this determination the Court first has to decide whether the declaration of independence was promulgated by a body subject to the legal order of the Constitutional Framework, and consequently Resolution 1244. Again the Court seems to resort to the somewhat circular logic that those who adopted the declaration of independence, despite being virtually the same persons that sit in the Assembly of Kosovo, one of the Provisional Institutions of Self-Government, were not acting in that capacity. The Court arrives at this conclusion based on its interpretation of the views expressed by the drafters of the declaration of independence; evidence of their intention being found in the words and processes.

For example, the drafters of the declaration of independence referred to themselves as "[w]e, the democratically-elected leaders of our people . . ." instead of using the third person singular as they do in acts of the Assembly. (para. 107). Additionally, the Court draws attention to the fact that the declaration was signed by the President of Kosovo, who is not a member of the Assembly of Kosovo. (para. 107). Moreover, the Court finds significance in the fact that the Special Representative of the Secretary-General who had the power to annul acts of the Assembly remained silent on this act. The Court, however, appears to ignore the fact that the Special Representative has usually accepted without challenge acts promulgated by the Kosovo Assembly.

Nevertheless, "taking all factors together" the Court finds that "the authors of the declaration of independence ... did not act as one of the Provisional Institutions of Self-Government within the Constitutional Framework, but rather as persons who acted together in their capacity as representatives of the people of Kosovo outside the framework of the interim administration." (para. 109).

This finding would appear to provide national liberation movements around the world a basis for declaring the independence of territory and the persons who they represent as long as they are not acting--as will most often be the case--within the established legal order. Perhaps it is essential--although the Court declined to indicate this--that the persons declaring independence must be able to sustain the legitimacy of their representation of the people on whose behalf they claim to act. In the present case, however, the Court did not appear to require this.

After identifying the authors of the declaration of independence to have been acting outside the existing legal order created by Resolution 1244, the Court then considers whether their actions nevertheless violated Resolution 1244 and/or the Constitutional Framework.

As concerns Resolution 1244 the Court finds that it does not prohibit the declaration of independence principally because such a prohibition should have been made explicit. (paras. 113-119). Applied to Security Council resolutions concerning countries like Iraq, Iran, and North Korea, it would seem that the Court has strengthened the basis of these countries' arguments that vague language in Security Council resolutions does not create duties. The Court, however, appears to be attempting to avoid this issue of consistency, by claming that it must interpret Security Council resolutions on a "case-by-case basis." This failure to clarify general rules of interpretation does not contribute to developing a coherent set of rules of international law.

As concerns the Constitutional Framework, the Court finds that "the authors of the declaration of independence were not bound by the framework of powers and responsibilities established to govern the conduct of the Provisional Institutions of Self-Government." (para. 121). Again the basis of this finding is not clear in the two short paragraphs in which it is articulated, but it appears to rest on the self-reference of the drafters to being outside any legal order that would restrict them.

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Finally, a one paragraph conclusion reiterates that the Court finds that "the declaration of independence of 17 February 2008 did not violate general international law, Security Council resolution 1244 (1999) or the Constitutional Framework."

The operative paragraphs of the Advisory Opinion indicate that the Court voted unanimously to find it had jurisdiction, by nine to five that it should comply with the request, and by ten to four that "that the declaration of independence of Kosovo adopted on 17 February 2008 did not violate international law."

While the Court's Advisory Opinion will likely be an important point of reference for the representatives of groups of individuals seeking independence, it is unlikely to be remembered as one of the Court's better attempts to articulate and clarify the law. Instead, the Court seems to base a general principle of recognizing declarations of independence upon a shaky foundation of "case-by-case" determination without clearly articulating clear standards for future cases.

If law can contribute a degree of certainty to decision making processes, it appears that it has failed to do so in this case.


Dr. Curtis Doebbler is an international lawyer and a professor of law at An-Najah National University in Nablus, Palestine.

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