Wednesday, September 29, 2010

The World Court's Decision in the Kosovo Case: Some Regrettable Ommissions

The International Court of Justice (ICJ) recently ruled that the unilateral declaration of independence by the government of Kosovo was in accordance with international law. The world court held that the declaration was not prohibited by general international law, or by any other specific sources of international law. Regrettably, the world court chose not to address the issue of remedial self-determination or secession under international law, an area of law in which guidance by the most supreme international judicial organ would have been of much value.
By way of background, the Kosovar government issued a declaration of independence on February 17, 2008. In fact, since the Rambouillet Accords of 1999, ending a three-month bombing campaign by NATO countries on the territory of the Former Republic of Yugoslavia, Kosovo had been governed by a United Nations Mission, and its security guarded by a NATO-led defense force. Negotiations between Kosovo and Serbia over the former's final status failed to produce a result, and in the beginning of 2008, the Kosovar government took matters into its own hands and proclaimed the province independent. Many states immediately recognized Kosovo as a new state, whereas many others refused to do so. On October 8, 2006, the United Nations General Assembly adopted a resolution to request the world court's advisory opinion on the issue.
It is laudable that the world court accepted jurisdiction on this difficult legal issue. In fact, the Kosovar government and its supporters had urged the court not to accept jurisdiction at all, as the request for an advisory opinion was political rather than legal, and as the Security Council had already been seized with other issues relating to Kosovo. The ICJ properly answered by accepting jurisdiction, and by rejecting these arguments.
However, it is regrettable that the ICJ refused to address the most relevant issue: when and under what circumstances do minority groups, or peoples, have the right to external self-determination, leading toward remedial secession? In particular, the world court could have taken up the opportunity to address, in the Kosovar context, whether the Kosovar declaration of independence serves the values and interests of the United Nations system, as well as those of the existing international legal order. Instead of answering these difficult questions, the ICJ suggests in this opinion that we live in a lawless world when it comes to declarations of independence, and that anything in this domain is permitted unless expressly prohibited by the Security Council. The rule of law and the elaboration of specific legal rules - even when none already exist- is the province of courts and judges, and the world court should not have shied away from its responsibilities in the international community. Possibly, the world court's willingness to accept jurisdiction in this instance signifies a shift whereby the world jurisdiction will in the future accept other similar cases on self-determination and secession. Possibly, the world court judges will decide to elaborate on legal standards governing these difficult issues.

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