On the 22nd of July the International Court of Justice (ICJ) came down with its advisory opinion on the question put to it in October 2008 by the United Nations (UN) General Assembly (GA): “Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?”.
The Court concludes by ten votes to four that it is of the opinion that the declaration of independence of Kosovo adopted on 17 February 2008 did not violate international law. The majority vote bases its view on four main pillars. First it is held that the rights to self-determination (Common Article 1 of the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic Social and Cultural Rights (ICESCR), and of remedy against violations of guaranteed freedoms under international law “by […] competent authorities provided for by the legal system of the state […]” (ICCPR, Art. 1 and 2) is not constrained by norms of state sovereignty and territorial integrity, unless it was pursued by use of force, and that many previous acts of unilateral declarations of independence have been accepted under international law. Second the opinion confirms that the Constitutional Framework for Kosovo is part of international law as it is internationally mandated. Third, the Court sees the spirit of the declaration of independence as not contradicting the UN’s line of policy of increasing autonomy and self-government of Kosovo. Fourth, while the institutions of self-government of Kosovo were instituted by the UN Security Council, the Court suggests that this did not make the validity of their political and legal expressions contingent on formal approval or ratification by the UN Security Council, nor in fact meant that they could not speak separately on behalf of the Kosovar people and set their own agenda independently of the UN Security Council as the body which created them.
The fact that four Judges (Bennouna, Koroma, Skotnikov, and Tomka) did not concur with the overall conclusion shows how difficult the Court found it to balance different aspects in its advisory opinion, on many of which it remained split. With whom rests the authority to make, interpret, and enforce international law? Does it primarily sit with international institutions, or does it arise from and requires the necessary assent to such laws by concerned nation states, including to their interpretation and enforcement. What role do non-state entities play in the development of international law and UN practice of work? Should the concept of sovereignty support primarily the rights of existing states to their integrity, or does it focus on the rights of citizens to choose their form and scope of government. Do democratic rights to self determination by ethnic, linguistic or religious groups as set out in the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic Social and Cultural Rights (ICESCR) continue to be applicable outside the decolonization process which informed their original framing? Common to the dissenting opinions is also a concern about preservation of the legal nature of the Court’s work, and the need to avoid getting involved in politics, for instance by interpreting the line of policy of the Security Council and the UN institutions in Kosovo as part of arriving at its opinion. Several dissenting judges therefore challenge the wisdom of the Court giving an advisory opinion on this question at all.
In addition to dissenting views, several judges have made separate statements. Judge Simma, while agreeing with the majority opinion, raises concerns about the advisory opinion’s lack to make a more discerning difference between the absence of a prohibitive rule, and explicit permission for an act such as the declaration of independence. Judge Keith, also concurs with the overall findings, but raises concerns about the locus standing of the General Assembly in approaching the Court on this issue as the GA had only marginally engaged with the issue of Kosovo. Judge Sepúlveda Amor explains his concerns about the competence of the authors of the declaration of independence to act separately from the UN, a point also supported by Judge Yusuf. In an extensive separate statement, Judge Cançado Trindade arrives at the same substantive result as the majority opinion, but expands on the changing and increasing role of non-state actors in both the practice of the UN’s work, and the evolution of international law. Finally, Judge Yusuf would have wished for a greater exploration of the question how to deal with rights to self-determination in the post colonial context, and how to square the recognition of this right with the general discouragement in international law of state fragmentation.
While the discussion of the above concerns by the judges in dissenting and some of the separate statements has its merits, the Court’s majority opinion overall has to be considered the most pragmatic of all statements, and appears in tune with principles of subsidiarity in decision making, which remain essential to retain buy-in by citizens for the international rule of law and the work of global institutions more widely. This is why both the recognition by the authors of the declaration of independence of their regret to see all attempts to reach a mutual agreement with Serbia on the status of Kosovo to have failed, and the importance attached to giving the Kosovo people clarity about their future, are given a central space in the majority opinion. If one were to follow some of arguments put forward by dissenting judges, and some other separate statements, the Kosovo people would remain forever dependent on the agreement by the Security Council about their future, and potentially be subject to a long political stalemate, which in turn would effectively violate other fundamental and inalienable rights they hold under international law, such as to self-determination, non-discrimination, and access to remedy. The Court could also be seen to have had no choice other than to accept the legality of the declaration of independence at risk of a deterioration of anyway very fragile faith of common citizens in international law, and the global institutions that affect their lives.
Despite some questions about the locus of power in determining and interpreting international law on balance the advisory opinion therefore can be seen to support the international rule of law more than it damages it. The Court, like all international organisations, has an inherent responsibility to ensure that its work and international law remains meaningful to world citizens, and evolves, appoint reflected in the changing attitudes put forward regarding the role of non-state entities. To do this it has to make choices about which accountability relationships in the necessarily complex web of multiple stakeholders in international law deserve greater attention in each case under its jurisdiction. It has to be commended for having chosen to emphasise accountability to people and their local democratic institutions over the interests of a nation state, and the problematic interpretations of the concept of state sovereignty which would have further disempowered the citizens that are most dependent on the fulfilment of their rights and the delivery of global institutions and frameworks to address their needs.
Tags: Citizens, Human Rights, International Court of Justice, peace and security, self-determination

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