The International Court of Justice has today declared that Kosovo's declaration of independence
was legal. Worried about the prospects of this ruling being used to justify other secession movements (such as South Ossetia), I decided to wade through the
dry legalese being used to justify this desicion by the Court. I am only a layman, so my views on this ruling are likely wrong, so I need a legal scholar to make sure. International law is very important, even if it has no practical application whatsoever to international politics.
The question that was posed 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 has clarified that it has been asked only this: It has not been asked if Kosovo's secession was legal. It has not been asked if Kosovo have acheived statehood. It has not been asked if people have the right to seccede from another state. The court was asked only if the declaration of independence was 'in accordance with international law'.
The court has found that declarations of independence was generally in accordance with international law.
During the eighteenth, nineteenth and early twentieth centuries, there were numerous
instances of declarations of independence, often strenuously opposed by the State from which
independence was being declared. Sometimes a declaration resulted in the creation of a new State,
at others it did not. In no case, however, does the practice of States as a whole suggest that the act
of promulgating the declaration was regarded as contrary to international law. On the contrary,
State practice during this period points clearly to the conclusion that international law contained no
prohibition of declarations of independence.
Some people argue that declarations of independences are an implict violation of the principle of territorial integrity, however, the court has declared that the principle of territorial integrity only apply to relationships between States, and thus is not applicable.
Certain declarations of independences has been condemned by the Security Council (Northern Cyrpus, Republika Srpska, Southern Rhodesia). However, the Court argued that these condemnations were done for other reasons.
[T]he illegality attached to the declarations of independence thus stemmed
not from the unilateral character of these declarations as such, but from the fact that they were, or
would have been, connected with the unlawful use of force or other egregious violations of norms
of general international law, in particular those of a peremptory character (jus cogens). In the
context of Kosovo, the Security Council has never taken this position. The exceptional character of
the resolutions enumerated above appears to the Court to confirm that no general prohibition
against unilateral declarations of independence may be inferred from the practice of the Security
Council.
The Court does not wish to address the concept of "remedial secession" as it was only asked to decide on the legality of the declaration of independence.
Finally, the Court focuses on Kosovo itself. The United Nations has passed many resolutions on Kosovo, including creating a Constitutional Framework for Kosovo. There was debate over if the Constitutional Framework was a part of international law; some people argued that the Constitutional Framework of Kosovo was a part of domestic law, and thus the court should not decide on the legality of a domestic matter. However, the Court stated that since the Constitutional Framework was created by Resolution 1244 and has its power due to international law, that the Constitutional Framework is itself a part of international law. The Court also held that the Framework have very limited powers according to Resolution 1244; the goal 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 t the stabilization of Kosovo, and that it was designed to do so on an interim basis."
On 17 Feburary 2008, the "Assembly of Kosovo" one of the Provisional Institutions of
Self-Government, established under Chapter 9 of the Constitutional Framework, published a declaration of independence. The Court stated however that the Declaration of Independence was not done by the "Assembly of Kosovo", but rather as "persons who acted together in their capacity as representatives of the people of Kosovo outside the framework of the interim administration".
Security Council resolution 1244 did not explicitly condemn any declaration of independence of Kosovo. It is not unreasonable for the Security Council to make demands on entities other than States and intergovernmental organizations, stating that the Security Council has made many demands on the Kosvar Albanian population. It has also pointed to Resolution 1251, passed 19 days before, which stated that “Cyprus settlement must be based on a State of Cyprus
with a single sovereignty and international personality and a single citizenship, with its
independence and territorial integrity safeguarded”. In Resolution 1244, "the Security Council did not reserve for itself the final determination of the situation in Kosovo and remained silent on the conditions for the final status of Kosovo.". The United Nations Security Council therefore did not prohibit declarations of independence, as if it would have wanted to, it would have explictily condemned it.
The declaration of independence was not issued by the Provisional Institutions of Self-Government (for example, the National Assembly), as doing so would violate the Constitutional Framewor, by urusuping powers that was not granted to it. Instead, the declaration of independence was done by people who were doing so outside of the Provisional Institutions, and thus were not bound by the Constitutional Framework. (By the way, this is the part of the ruling that bugged me the most. Judge Skotnikov, who was dissenting from the opinion stated: "Finally, the authors of the UDI are being allowed by the majority to circumvent the Constitutional Framework created pursuant to resolution 1244, simply on the basis of a claim that they acted outside this Framework ... The majority, unfortunately, does not explain the difference between acting outside the legal order and violating it. [This was in a summary of the Skotnikov ruling, a full list of summaries of judicial opinions for this is
here.])
10 justices voted in favor of declaring that Kosovo's declaration of independence was legal. 4 justices voted against. The court case itself was a non-binding advisory ruling.
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Topic: International Law Concerning the Declaration of Independence by Kosovo (Read 1383 times)