Does the Advisory Opinion of the International Court of Justice on Kosovo's Declaration of Independence Resolve Anything?

I always tell my students that, when sitting an exam, they have to answer the question that has been set rather than one that they feel comfortable with. No analogy is ever perfect, but this one sums up pretty neatly the outcome of the deliberations by the International Court of Justice (ICJ), which, by ten votes to four, found that the Declaration of Independence (DoI) of Kosovo adopted on 17 February 2008 did not violate international law.

The Court did so on the basis of a very narrow interpretation of the question put to it by the General Assembly of the UN. Specifically, the ICJ noted in its Opinion that the General Assembly ‘does not ask whether or not Kosovo has achieved statehood. Nor does it ask about the validity or legal effects of the recognition of Kosovo by those States which have recognized it as an independent State.’ In other words, ‘the Court [did] not consider... it... necessary to address such issues as whether or not the declaration has led to the creation of a State or the status of the acts of recognition’.

This is a major opportunity lost by the ICJ to clarify very important issues in contemporary international law and international relations – in particular, the conditions under which new states can be legally established by unilateral acts of one party to a secessionist conflict.

In addition, there is considerable margin for mis-interpretation of the Court’s Opinion. The ‘headline news’ that the Court had ruled that Kosovo’s DoI did not violate international law has led leaders of other entities in similar circumstances, most notably Abkhazia and South Ossetia, to assume that their DoIs now have endowed them with independent statehood under international law. Yet, this is precisely the issue that the ICJ did not address.
Rather, what the Court did was three things:

• It demonstrated that ‘general international law contains no applicable prohibition of declarations of independence’. 
• It argued that the authors of the DoI were not the Provisional Institutions of Self-Government of Kosovo, but rather that they ‘acted together in their capacity as representatives of the people of Kosovo outside the framework of the interim administration.’
• It found that Security Council Resolution 1244 (1999), which established the UN Mission in Kosovo (UNMIK) and thus the UN’s interim administration of Kosovo, was not violated by the DoI.

So where does this leave the world of self-determination conflicts and contested statehood?
Even if one were to accept the reasoning of the Court, it provides no guidance on the effects of Declarations of Independence; in fact, the ICJ specifically refused to do so. Secessionists all over the world may rejoice in the fact that, in the view of the Court, ‘general international law contains no applicable prohibition of declarations of independence’. Yet, they would be grossly misleading themselves and their followers if they were to derive from this an endorsement of the legality of any process to create new states in this way.

The debates that the ICJ Opinion on Kosovo’s Declaration of Independence has already sparked will undoubtedly continue. Yet, in the same way in which the ICJ Opinion is less than helpful in determining the legality of Kosovo’s independence, the debates on similar cases are equally unlikely to contribute much to the actual resolution of any ongoing secessionist conflicts. For, sadly, these are resolved far more often by the balance of power on the ground. In the case of Kosovo seceding from Serbia with the backing of the United States and 22 of 27 EU member states, the ICJ’s advisory opinion is as irrelevant as it is in the case of Abkhazia and South Ossetia seceding from Georgia with the backing of Russia. That this is the case, and will continue to be so for the foreseeable future, has much to do with the unhelpfully narrow view that the Court of International Justice took in its opinion and in the rather dubious logic that it at times employed in its reasoning.

To return to my initial analogy, there is only one sin greater to commit for a student sitting an exam than adjusting a set question to his or her own comfort level–and that is to answer that question wrongly.

Stefan Wolff
Professor of International Security
University of Birmingham

For further information visit Stefan’s website at www.stefanwolff.com