Last week the International Court of Justice (ICJ) ruled that Kosovo’s 2008 declaration of independence did not violate international law. Read the opinion here. This came as no surprise since international law is largely silent on secession, and as John Cerone wrote at Opinio Juris:
Similarly, if I were to stand in my living room and declare it to be an independent state, I would have violated no rule of international law. Even if I were to broadcast that declaration to the world, it would still not be unlawful. It would also not have any legal effect.
Keep in mind, though, that the ICJ vote was 10-4. And I’m with the dissenters. Let me explain why.
For me, it comes down to Security Council resolution 1244, passed in 1999 (read it here). The resolution establishes an international civil and security presence in Kosovo as an interim solution until a final settlement is decided. According to the resolution, “the international civil and security presences are established for an initial period of 12 months, to continue thereafter unless the Security Council decides otherwise.”
So one would think that any result that alters the situation, unless decided by the Security Council, violates the resolution. This is exactly the point made by the dissenters. Read Vice-President Tomka’s statement here, Judge Koroma’s dissent here, Judge Bennouna’s dissent here, and Judge Skotnikov’s dissent here.
But the majority opinion of the court finds a way around this issue. Actually, two ways. The first argument is that the authors of the declaration of independence were not acting as a Provisional Institution of Self-Government called for in resolution 1244. As paragraph 109 of the opinion states:
The Court thus arrives at the conclusion that, taking all factors together, the authors of the declaration of independence of 17 February 2008 did not act as one of the Provisional Institutions of Self-Government within the Constitutional Framework, but rather as persons who acted together in their capacity as representatives of the people of Kosovo outside the framework of the interim administration.
The second argument is that resolution 1244 was about an interim solution while the declaration of independence was about a final solution. They deal with different things and thus aren’t inherently incompatible. As paragraph 114 of the ICJ opinion states:
Resolution 1244 (1999) thus does not preclude the issuance of the declaration of independence of 17 February 2008 because the two instruments operate on a different level: unlike resolution 1244 (1999), the declaration of independence is an attempt to determine finally the status of Kosovo.
But still, though resolution 1244 makes no mention of what the final solution would be, 1244 establishes a mechanism for figuring it out, i.e. through the Security Council. Is this not relevant? I say yes, and thus I join the dissent.
