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Modesty Can Be a Virtue: Judicial Economy in the ICJ Kosovo Opinion?

Published online by Cambridge University Press:  11 February 2011

MARC WELLER
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Abstract

The Kosovo Advisory Opinion reaches its conclusions in what is admittedly a very condensed and swift way of reasoning. The Court did not expand upon the question that was put to it. However, it is unfair to criticize the Court for failing to address the very issues the drafters of the question carefully and deliberately did not ask. Moreover, the Court did in fact clarify a number of important points that go beyond the narrow question of the lawfulness of Kosovo's declaration of independence. In particular, the Court confirmed that a state is a matter of fact in the first instance. It can come into being in consequence of unilateral secession when attempts to negotiate a separation have been frustrated by the central government. The doctrine of territorial integrity operates among states and furnishes no legal bar in such instances that applies to the seceding entity. Moreover, a decision on independence by such an entity cannot be evaluated according to the domestic legal order of the state from which it secedes. In this instance, Kosovo's secession was in any event not quite as unilateral as it may have seemed. Its declaration of independence and new constitution fully incorporate the entire package of measures proposed by the UN mediators in the final status talks. Hence, Kosovo has implemented what was in fact developed and proposed under the UN mandate for final status talks contained in Resolution 1244. Rather than overturning that resolution, it has acted in accordance with its terms.

Keywords

declaration of independenceindependenceKosovoKosovo Advisory OpinionRambouillet accordsResolution 1244secessionSerbiaterritorial integrityUNMIK
Type
KOSOVO SYMPOSIUM
Information
Leiden Journal of International Law , Volume 24 , Issue 1 , March 2011 , pp. 127 - 147
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2011

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References

1 On the legal aspects of Yugoslavia, see D. L. Bethlehem and M. Weller, The Yugoslav Crisis in International Law: General Issues, Part 1 (1997); P. Radan, The Break-up of Yugoslavia and International Law (2002); B. G. Ramcharan, The International Conference on the Former Yugoslavia, Vols. 1 and 2 (1997); Terrett, The Dissolution of Yugoslavia and the Badinter Commission (2000); A. S. Trbovich, A Legal Geogrpahy of Yugoslavia's Disintegration (2008); S. Trifunovska, Former Yugoslavia through Documents: From Its Creation to Its Dissolution, Part 1 (1994) and Former Yugoslavia through Documents: Froms Its Dissolution to Peace Settlement, Part 2 (1999); M. Weller, Twenty Years of Crisis: The Violent Dissolution of Yugoslavia (forthcoming).

2 [1998] 2 SCR 217, referred to in the Kosovo case: Accordance with International of the Unilateral Declaration of Independence in respect of Kosovo (Request for Advisory Opinion), 2010 ICJ 1, para. 55, hereafter ‘Kosovo AO’.

3 Declaration of Judge Simma, para. 9; and, from a different perspective, Separate Opinion of Judge Sepulveda-Amor, paras. 33 ff.; also Separate Opinion of Judge Yusuf, para. 5.

4 See Kosovo AO, supra note 2, paras. 27 and 29, relying in particular on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 ICJ 156, para. 44; and Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 ICJ 234, para. 13, respectively.

5 See most recently, and critical of the position of the Court, A. Aust, ‘Advisory Opinions’, 1 JIDS (2010) 121, with a host of further references to the previous literature.

6 supra note 2.

7 Declaration of Judge Simma, para. 3.

8 See at greater length M. Weller, Escaping the Self-Determination Trap (2008), 15.

9 See Kosovo AO, supra note 2, para. 56.

10 This issue, 87–94.

11 See Kosovo AO, supra note 2, para. 79.

12 Ibid., para. 80.

13 Ibid., para. 81.

14 Ibid., para. 31.

15 See Weller, supra note 8, at 70 ff.

16 Resolution 1244, 10 June 1999, S/RES/1244, OP 11 (emphasis added).

17 Ibid., Annex I (emphasis added).

18 Ibid., Annex II (emphasis added).

19 Interim Agreement for Peace and Self-Government in Kosovo, Rambouillet, France 1999, Chapter 8, para. 3.

20 See Kosovo AO, supra note 2, para. 104.

21 Constitutional Framework for Provisional Self-Government, UNMIK/REG/2001/9, 15 May 2001, Chapter 12, available at www.unmikonline.org/constframework.htm (last accessed 5 November 2010).

22 Ibid., Preamble (emphasis added).

23 Ibid., para. 94.

24 The developments are related in Kosovo AO, supra note 2, paras. 64–73.

25 UN Doc. S/2007/168/Add.1, 26 March 2007.

26 UN Doc. S/2007/168, 26 March 2007.

27 UN Doc. S/2007/709, 10 November 2005, quoted in Kosovo AO, supra note 2, para. 66.

28 supra note 7.

29 See Kosovo AO, supra note 2, para. 52.

30 Ibid., para. 52.

31 Ibid., para. 54.

32 Declaration of Vice-President Tomka, paras. 10 ff.; Dissenting Opinion of Judge Bennouna, paras. 27 ff.

33 Kosovo AO, supra note 2, para. 108.

34 Ibid., para. 105.

35 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, 2010 ICJ 1.

36 Draft Resolution on Agenda Item 77 of the Sixty-Fourth Session of the General Assembly: Request for an Advisory Opinion of the International Court of Justice on Whether the Unilateral Declaration of Independence of Kosovo Is in Accordance with International Law, www.un.int/serbia/Statements/77.pdf, accessed 15 September 2010, preamble and para. 2.

37 Position of the Republic of Serbia Concerning the Advisory Opinion, www.un.int/serbia/Statements/76.pdf, accessed 15 September 2010.

38 UN Doc. A/64/L.65/Rev.1, 8 September 2010, adopted by consensus.

39 These include, for instance, Cyprus and Spain, both of which have been mindful of their own situation relating to possible secessions when considering the case of Kosovo.

40 In addition to Serbia, these were Azerbaijan, India, and Venezuela, with Russia and China stressing the primacy of the UN Security Council in this instance, and Fiji, Indonesia, and Iran making somewhat more oblique statements; UN Doc. GA/10980, 9 September 2010.

41 See Weller, supra note 8; and M. Weller and B. Metzger, Settling Self-Determination Conflicts: Complex Power-Sharing in Theory and Practice (2008).