I’m at the ICJ right now with my iphone, so sorry for the typos.
The Court just finished delivering its advisory opinion on the Kosovo declaration of independence.
Having established jurisdiction, it Unsurprisingly adopted a very narrow reading of the question, considering that it was not asked:
1) to evaluate the legal consequences of declaration
2) whether Kosovo has actually obtained Statehood
3) whether the recognition by other States was legal
4) whether there is a general right under international law to declare independence or secession.
Therefore: the question is really whether the specific declaration was in accordance with international law (both general and specific)?
The Court found that in general international law, there is no prohibition of declarations of independence and that issues of territorial sovereignty or secession are not relevant within the strict boundaries of the question to be answered on the legality of the declaration.
Moving to the lex specialis of SC Res. 1244 and the Constitutional Framework, the Court considered that they were the international law basis for the authority of Kosovo institutions and the boundaries of their powers, at the time of the declaration of independence.
Moving to the interpretation of this applicable international law, it was meant at a temporary solution for the stabilisation of Kosovo.
Illogically, the Court then considers the author of the declaration BEFORE analysing whether the lex specialis contained a clear prohibition of declaration of independence. Here the judgment appears a little hazy (i’ll have to to read the decision). The Court seems to consider the subjective perception of the authors of the declaration as not acting under the established legal framework. But whether you are bound by a legal framework doesn’t depend on your subjective desire to be or not to be bound. It’s an objective test. This is the whole point of ultra vires challenges! The Court in any case finds that the authors were just individuals, rather than the Kosovo Assembly! I’m not convinced at the reasoning at this point. If the French MPs meet in the French Parliament, to which they have access by virtue of their parliamentary Status, i think there is a presumption that they are acting in their official capacity.
Coming back to the contet of the lex specialis, the Court considered that it is silent as to the final Status of Kosovo, suggesting negotiation rather than requiring it, thus not explicitly excluding unilateral declarations. Moreover, a Resolution is only binding on its recipients, which don’t include the authors of the declaration as
All in all, not a surprising decision. The jurisdictional part and the framing of the question were to be expected. It also makes some interesting comments on the relationship between the various organs of the UN. The key point turned out to be the exact author of the declaration. The conclusion in itself is not that shocking, but the reasoning seems a little poor. In any case, as it stands, the Opinion isn’t very useful. Basically, any group of random individuals can declare independence without violating international law… Fantastic…
[UPDATE: the press is characteristically getting it wrong, with for example, Le Monde’s headline saying that the ICJ “validates Kosovo Independence”, the BCC‘s headline being, in a slightly less inaccurate way that “Kosovo Independence not illegal”, or CNN saying that “Kosovo Independence Legal”… Unsurprinsingly, Serbian websites are more accurate… ]