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Applying Kosovo: Looking to Russia, China, Spain and Beyond After the International Court of Justice Opinion on Unilateral Declarations of Independence

Published online by Cambridge University Press:  06 March 2019

Hanna Jamar  and
Mary Katherine Vigness

Extract

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When the International Court of Justice (ICJ) released its advisory opinion regarding the legality of Kosovo's unilateral declaration of independence (UDI) on 22 July 2010, Serbia was not the only State to express its dissatisfaction with the outcome. The broader significance of the ICJ's finding that Kosovo's UDI in 2008 did not violate international law has profound relevance for other States. The United States and its allies claim that Kosovo's situation is unique and does not serve as precedent, but other nations facing separatist movements within their own borders may have reason to be concerned.

Type
Kosovo in the ICJ – The Case
Information
German Law Journal , Volume 11 , Issue 7-8 , 01 August 2010 , pp. 913 - 928
Copyright
Copyright © 2010 by German Law Journal GbR 

References

1 Accordance with International Law of the UDI in Respect of Kosovo, No. 2010/25, Advisory Opinion, 2010 I.C.J. 141 (July 22) (finding that (a) Kosovo's declaration of independence does not violate international law, (b) Kosovo's declaration of independence does not violate UN Security Council Resolution 1244, and (c) independence does not violate the Constitutional Framework for Provisional Self-Government), available at http://www.icj-cij.org/docket/index.php?p1=3&p2=4&k=21&case=141&code=kos&p3=4 (last visited 15 Aug. 2010) [hereinafter Kosovo Decision].Google Scholar

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3 Unlike the United States system of Stare Decisis, ICJ decisions are not binding precedent. However, the opinions have influence on whether nations recognize the holding as a general principle of law, which courts can interpret as international law along with other criteria, see Statute of the International Court of Justice, Art. 38 (to decide disputes in accordance with international law, the Court shall apply: (a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; (b) international custom, as evidence of a general practice accepted as law; (c) the general principles of law recognized by civilized nations; (d) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law). For the entire statute, see http://www.icj-cij.org/documents/index.php?p1=4&p2=2&p3=0#CHAPTER_II (15 August 2010).Google Scholar

4 Secretary of State Condoleezza Rice said on February 18, 2008, during the announcement of the United States’ recognition of Kosovo's independence, “The unusual combination of factors found in the Kosovo situation – including the context of Yugoslavia ‘s breakup, the history of ethnic cleansing and crimes against civilians in Kosovo, and the extended period of UN administration – are not found elsewhere and therefore make Kosovo a special case. Kosovo cannot be seen as a precedent for any other situation in the world today.” For the entire speech, see http://tirana.usembassy.gov/08pr_0219.html (last visited on August 6, 2010).Google Scholar

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35 For an excellent editorial on the impact of the ICJ Kosovo opinion on Taiwan, see ICJ, Kosovo and Taiwan's future, Taiwan News, Aug. 3, 2010, at 6, available at http://www.etaiwannews.com/etn/news_content.php?id=1330828&lang=eng_news&cate_img=46.jpg&cate_rss=news_Editorial.Google Scholar

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38 Kosovo Decision, at 19 (addressing scope and meaning of question put forth by General Assembly and decided by the ICJ).Google Scholar

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40 Id. at 8.Google Scholar

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52 Id. See also A Nationality, not a Nation: The constitutional court limits Catalonia's powers, The Economist, July 3, 2010, at 50, available at http://www.economist.com/node/16490065?story_id=16490065 (last visited 14 Aug. 2010).Google Scholar

53 See supra note 52.Google Scholar

54 See supra note 52.Google Scholar

55 Martínez-Herrera, supra note 39, at 9.Google Scholar

56 See supra note 47 (“She [Deputy Prime Minister De la Vega] said that any kind of parallel drawn between the situation between Serbia and Kosovo and between Spain and Catalonia is ‘unrealistic.”').Google Scholar

57 See The Hague Portal, ICJ rules on Kosovo's Declaration of Independence: The International Court of Justice finds that the declaration of independence of Kosovo did not violate international law, Hague Academic Coalition, July 22, 2010, available at http://www.haguejusticeportal.net/smartsite.html?id=11906 (also notes that the ICJ initially considered the legality of declarations of the prohibition of the use of force and principle of territorial integrity as confined to the relations between the States, also discusses the contrast of Kosovo's situation to previous ICJ condemnations of UDIs and how those cases were determined illegal in character because of their direct connection with unlawful use of force and other serious violations of international norms of jus cogens character). See also Kosovo Decision, supra note 1.Google Scholar

58 See Gaspar Pericay Coll, Catalan nationalist parties react to the international recognition of Kosovo's independence, Catalan News Agency, Jan. 23, 2010, available at http://beta.catalannewsagency.com/tabid/78/ID/521/Catalan-nationalist-parties-react-to-the-international-recognition-of-Kosovos-independence.aspx. (“[I]nsisting on not recognising Kosovo stresses the implicity parallelism that the Spanish Government fears. Besides, Catalan nationalist parties do not see a clear parallelism between both cases.”).Google Scholar

59 Martínez-Herrera, supra note 39, at 14.Google Scholar

60 Id. at 15.Google Scholar

61 Id. Google Scholar

62 Id. Google Scholar

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67 See The Hague Portal, ICJ rules on Kosovo's Declaration of Independence: The International Court of Justice finds that the declaration of independence of Kosovo did not violate international law, Hague Academic Coalition, July 22, 2010, available at http://www.haguejusticeportal.net/smartsite.html?id=11906.Google Scholar

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70 See Borgen, supra note 11 (cites the Russian Parliament's statement regarding the ICJ opinion as a reason for why separatist movements may cite the ICJ holding: “The right of nations to self-determination cannot justify recognition of Kosovo's independence along with the simultaneous refusal to discuss similar acts by other self-proclaimed states, which have obtained de facto independence exclusively by themselves); see also Nicholas Kulish and C.J. Chivers, Kosovo Is Recognized but Rebuked by Others, NY TIMES (Feb 19, 2008) available at http://www.nytimes.com/2008/02/19/world/europe/19kosovo.html?pagewanted=2&hp.Google Scholar

71 Id. (“So long as the question of status and sovereignty and territorial integrity are clear, I think there are plenty of things these two governments can constructively talk about…”).Google Scholar

72 To view the official statements of the countries who recognize Kosovo, please see Kosovo Thanks You, available at http://www.kosovothanksyou.com/ (last visited 15 Aug. 2010).Google Scholar

73 Borgen, supra note 11.Google Scholar

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75 Steven Woehrel, Serbia: Current Issues and UNITED STATES Policy, 7-5700, RS22601 Congressional Research Service (Report for Congress), 2, 7 (12 April 2010), available at http://fpc.state.gov/documents/organization/142747.pdf (discussing Serbia's path to the EU and how progress of Serbia's integration into the EU has been hindered by a failure to arrest remaining indicted independence of Serbia's Kosovo province).Google Scholar

76 Id. at 7.Google Scholar

77 Id. Google Scholar

78 Id. at 7; see also EU Official Statement, supra note 74.Google Scholar

79 See Goodwin, supra note 45, at 17 (discussing the support for either sovereignty or an independent Kosovo (citing Martti Koskenniemi, The Police in the Temple—Order, Justice and the U.N.: A Dialectical View 6 EJIL 334 (1995); Jason A. Beckett, Rebel Without a Cause? Koskenniemi and the Critical Legal Project, 7 German Law Journal 1045 (2006); available at http://www.germanlawjournal.com/pdf/Vol07No12/PDF_Vol_07_No_12_1045-1088_SI_Beckett.pdf, commenting on Koskenniemi's work in this area).Google Scholar

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81 See Warning Light on Kosovo, supra note 64 (“Current United States policy relies on the unconvincing claim that Kosovo is ‘unique’ and would set no precedent for other troublespots. Of course every conflict has unique characteristics. However, ethnic and religious minorities in other countries already are signaling their intention to follow a Kosovo example.”).Google Scholar

82 Id. (“Recognition of Kosovo's independence without Serbia's consent would set a precedent with far-reaching and unpredictable consequence for many other regions of the world.”).Google Scholar