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ICJ Rules on Kosovo Independence

The Inter­na­tion­al Court of Jus­tice today held that inter­na­tion­al law did not pro­hib­it Kosovo’s dec­la­ra­tion of inde­pen­dence, while side­step­ping the larg­er issue of Kosovo’s state­hood.  All of the opin­ions can be found here, but we are hap­py to host the opin­ion of the court on this JILP Forum, since the ICJ’s site has been dif­fi­cult to access as of late.

In a way, as Chris Bor­gen notes at Opinio Juris, this result should not come as a sur­prise, since inter­na­tion­al law gen­er­al­ly does not seem to have much to say about dec­la­ra­tions of inde­pen­dence.  The Court side­steps the trick­i­er prob­lem of the lex spe­cialis cre­at­ed by S.C. Res. 1244 (and the sub­se­quent Con­sti­tu­tion­al Frame­work adopt­ed by UNMIK) by hold­ing that the dec­la­ra­tion did not con­sti­tute an act of one of the Pro­vi­sion­al Insti­tu­tions of Self-Gov­ern­ment.  This lays the ground­work for the Court to con­clude that the dec­la­ra­tion essen­tial­ly took place out­side the scope of S.C. Res. 1244 and the frame­work.  Pre­lim­i­nary thoughts after the jump.

I still want to read the sep­a­rate opin­ions, etc., before writ­ing any detailed com­ment, but I have a few ini­tial thoughts.  First, the New York Times lede refers to legal experts, and warns that this rul­ing “could spur sep­a­ratist move­ments around the world.”  This may be a bit too much spin.  If, as many seem to think, inter­na­tion­al law has large­ly been silent on dec­la­ra­tions of inde­pen­dence, then this rul­ing like­ly rein­forces the sta­tus quo, and a con­trary deci­sion would have sti­fled sep­a­ratist move­ments to some degree.  The Court arguably affords no priv­i­lege to seces­sion in this opin­ion, and the rul­ing on 1244, which was per­haps a much tougher (or more sus­pect) call, can be said to be com­bined to these facts.

But those are first thoughts, and read­ing the opin­ion pro­vides germs for many more.  Judge Sim­ma, for exam­ple, turns in a brief and engag­ing attack on the Lotus prin­ci­ple (rough­ly, that which is not pro­hib­it­ed is per­mit­ted), and Judge Can­ca­do Trindade has pub­lished a 75-page con­cur­ring opin­ion that will be nice week­end read­ing.  Fur­ther ques­tions:

(1) What are the con­se­quences of the Court’s rul­ing that the prin­ci­ple of ter­ri­to­r­i­al integri­ty did not apply in this case? If ter­ri­to­r­i­al integri­ty is “con­fined to the sphere of rela­tions between states,” (para 80) then could rec­og­niz­ing and estab­lish­ing diplo­mat­ic rela­tions with Koso­vo the­o­ret­i­cal­ly still be wrong­ful with­in the frame­work of this opin­ion?

(2) Is this the first time that the Court has stat­ed that sub­se­quent prac­tice of UN organs and affect­ed States is rel­e­vant in inter­pret­ing Secu­ri­ty Coun­cil res­o­lu­tions? (Para. 94).  How would this work? I don’t think it can be jus­ti­fied by the same prin­ci­ples that sup­port the use of sub­se­quent prac­tice in treaty inter­pre­ta­tion.  (see VCLT art. 31).

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