Category Archives: Kosovo

Regular readers of this blog will know that I was critical of the ICJ’s advisory opinion as soon as it was released last July. I criticized it in a live blogging session from the ICJ on the day it was issued, and in subsequent posts, both here and on the Hague Justice Portal.

In an article just published in the Leiden Journal of International Law by myself and Yannick Radi, we explore more systematically and systemically the flaws of the opinion, considering that most of the difficulties that arise stem from the fact that the ICJ accepted to answer a question relating to non-State entities, i.e, the authors of the declaration of independence, rather than its core ratione personae jurisdiction, that are States and the UN.

You can follow the full extent of our reasoning in the article, and, for those who have a little less patience, the summary that we published on EJIL Talk!.

For those who have even less patience, one of the core arguments we make is that the acts of the Kosovo assembly, as established under the authority of the UNSC, can be attributed under international law to the UN, thus raising the rather interesting question of whether the UN can unilaterally declare the independence of a State. Pushing the logic even further, we argue that the ICJ implicitly recognises a new legal entity, Kosovo, to which the declaration could be alternatively attributed. I won’t elaborate here, and let you read the article to see how we pulled this one off!

The Hague Justice Portal has just published my new commentary on the ICJ Kosovo advisory opinion. It’s part of an online series discussing the issue, with Jean d’Aspremont, Eric de Brabandere, Jure Vidmar and Tarcissio Gazzini.

I basically argue that the difficulties arising from the decision come from the fact that the Court accepted to answer a question about the legality of the conduct of individuals under international law, which is outside its natural jurisdiction. It should have refused to answer the question asked, or, alternatively, tried to attribute the conduct to the ultimate entity in charge, in this case, the UN.  

I’ve read through the main opinion and the other opinions and it confirms my initial impressions during the issuance of the Opinion yesterday afternoon.

On jurisdiction, I was a little puzzled by the length of the discussion on the question of whether the Court should exercise its discretion in relation to the question. It all seemed quite basic stuff, given past case-law of the Court which has generally said that 1) the fact that the Security Council is dealing with something doesn’t mean another organ can’t discuss it and 2) the political dimensions of a question do not prevent a legal analysis. However, some dissenting opinions (Bennouna, Skotnikov, Keith, Tomka) actually thought that the Court should have declined to answer the question.

On the scope of the question, I’m generally not in disagreement with the opinion. Some separate opinions consider that it was too narrow. Judge Simma said it applied too strictly a “tired” version of the Lotus logic that what is not proscribed is allowed. For him, there is a more public law aspect to international law today, and the Court should have done a more thorough search of the relevant law on independence before answering the specific question. Judge Trindade, in a separate opinion 1,5 times the size of the majority opinion, launched himself in a emotional, but in my opinion ultimately irrelevant plea for taking into account “human suffering” as a criteria for independence. Equally, Judge Yussuf thought the Court could have taken the opportunity to define the scope of self-determination in a post-colonial world. Others (Koroma) thought that it was still too broad and that the Court went beyond its powers in considering that when the GA explicitly mentioned the authors of the UDI as the “Provisional Institutions of Self-Government of Kosovo”, they actually didn’t mean that, and wanted to know who the authors are. I would tend to agree with that actually. The fact, as the Court points out, that this was not discussed in the GA debates, doesn’t necessarily mean that it was an open issue, it might just mean that it was a settled issue. By second guessing the GA like it does, the Court is opening itself to the criticism of why it is re-interpreting the question in this instance, and not in another (for example, by saying that the GA really wanted to know if Kosovo was an independent State).

Which brings me to my main point of contention with the decision: that the authors of the UDI were not acting in their official capacity as Members of the Assembly. The reasoning is just as unconvincing as I thought. The authors of the declaration met in the Assembly, called a special session of that Assembly, and met as the democratically elected representatives of the people in elections set up under the control of the Constitutional Framework, which is the only basis for their right to be present in the assembly to make the UDI in the first place. But they are still considered as private citizens by the Court, based on their intent to be so considered. How can you evaluate whether someone is bound by a legal framework based on the subjective desire not to be bound?
In this sense, I can only agree with Koroma:

5. It is also question-begging to identify the authors of the unilateral declaration of independence on the basis of their perceived intent, for it predetermines the very answer the Court is trying to develop: there can be no question that the authors wish to be perceived as the legitimate, democratically elected leaders of the newly-independent Kosovo, but their subjective intent does not make it so. Relying on such intent leads to absurd results, as any given group ⎯ secessionists, insurgents could circumvent international norms specifically targeting them by claiming to have reorganized themselves under another name. Under an intent-oriented approach, such groups merely have to show that they intended to be someone else when carrying out a given act, and that act would no longer be subject to international law specifically developed to prevent it.

 And Bennouna:

44. The facts that the authors of the Declaration, members of the Assembly of the Provisional Institutions of Self-Government of Kosovo, cited the breakdown of negotiations and that they did not intend to act within the framework of the interim régime of self-government (Advisory Opinion, paragraph 105) do not by themselves change the legal nature of an act adopted by the Assembly of the Provisional Institutions of Self-Government of Kosovo. In law, it is not merely because an institution has adopted an act exceeding its powers (ultra vires) that the legal bond between the institution and the act is broken. In such a case, the institution must be considered to be in breach of the legal framework that justifies and legitimizes it.

45. Similarly, it is not because the Assembly trespassed on the powers of the Special Representative (Advisory Opinion, paragraph 106) by involving itself in matters of Kosovo’s external relations that it must be considered as acting in a different capacity or as an entity no longer related to the Provisional Institutions of Self-Government of Kosovo. Here as well, the Assembly simply committed an act which is illegal under international law.

Although I’m the first one to defend the ICJ against those who claim that it says what it didn’t say, in this part of the decision, i’m struggling to see how the reliance of the ICJ on the intent of the authors of the UDI, and is not an implicit endorsement of the declaration itself.

One final comment on the applicable law. I’ve read in some comments already that the Constitutional Framework and UNMIK resolutions should not necessarily be considered as applicable international law because “after all they are intended to take effect only within a particular domestic system of law”. I would actually side with the ICJ on that one. The question is not the setting (all law is meant to be applied in a specific setting), it’s the nature of the norm and the applicable legal order. For me, a territory under UN administration cannot be seen as a national legal order. There’s no “national” at this point, or “domestic”. Moreover, the source of legal, judicial and even constitutional authority in Kosovo clearly derived from a Security Council Resolution. I don’t find it therefore scandalous to conclude that the norms adopted in this context are at least international enough, and sufficiently integrated in the international legal order, to be considered as relevant international law for the ICJ. But I’ll have to consider this “hybrid” issue further in my PhD (forthcoming…).

And to conclude on a little poetic note, showing that law needn’t necessarily be dry, I love the final line of Bennouna’s opinion:

Such declarations are no more than foam on the tide of time; they cannot allow the past to be forgotten nor a future to be built on fragments of the present. 

The ICJ Website still seems to be unavailable. Here is a link to the opinion, and the separate and/or dissenting opinions by Judges Bennouna, Koroma, Skotnikov, Keith, Sepulveda-Amor, Trindade, Yusuf, Simma and Tomka.

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
defined above.

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… ]