20100728 ICJ’s Kosovo decision is vague and very limited

ICJ’s Kosovo decision is vague and very limited

By Chiang Huang-chih 姜皇池
Wednesday, Jul 28, 2010, Page 8

On Thursday last week, following two years of deliberation, the International Court of Justice (ICJ) in The Hague, the Netherlands, which is the principal judicial organ of the UN, finally issued an advisory opinion regarding the legality of the unilateral declaration of independence by Kosovo, which was, and some maintain still is, a province of Serbia. Although the ICJ’s advisory opinion is not legally binding, it will still have considerable political effect. The publication of the advisory opinion was greeted with celebrations in Kosovo.

Kosovo has reason to celebrate, but the effect of the advisory opinion will clearly be limited. It says that there is no rule of international law that prohibits a declaration of independence, and therefore Kosovo’s unilateral declaration of independence “did not violate general international law.”

On the other hand, not violating international law does not necessarily mean being in accordance with it, and it does not necessarily mean that any minority ethnic group within any territory has the right to demand separation. The advisory opinion merely says that international law does not prohibit declarations of independence. Whether any such declaration of independence is protected in law was not answered by the ICJ.

While the case was under deliberation, experts in international law predicted that the court would have to consider the actual situation and avoid prompting minorities in other countries to cause instability by claiming their right to separation based on the court’s decision.

When the court sought opinions from countries, China stressed repeatedly in the written statement it submitted that international law did not confer a right to secede to ethnic groups within a state, and that the ICJ respects the territorial integrity of sovereign states. The advisory opinion does not refute this position or say that such an opinion is mistaken — it just says that international law does not prohibit declarations of independence.

There is no consequential relationship between the court’s opinion that the declaration of independence was not unlawful and the question of whether Kosovo can become a member state of the UN. It is true that the Republic of Kosovo is recognized by 69 countries, including the US and some EU states. It is also true that the ICJ’s advisory opinion puts Kosovo and its supporters on the moral and political high ground and puts Serbian authorities under greater pressure.

Notably, the NATO-dominated UN peacekeeping administration now has greater justification for demanding concessions from Serbia. Nevertheless, some countries still oppose independence for Kosovo, and two of them — China and Russia — have the power of veto in the UN Security Council. The ICJ’s advisory opinion cannot compel China and Russia to accept Kosovo as a member state of the UN, and it cannot stop them from exercising their veto.

The ICJ’s stated opinion that Kosovo’s declaration of independence was not illegal is indeed a major victory for Kosovo, and for the UK and US, who have been backing Kosovo’s attempts to gain independence.

Although this victory lends justification to British and US intervention and gives it a firmer legal basis, obstacles remain on Kosovo’s road to independence. Unless Serbia decides to recognize Kosovo, the existing differences of opinion among powerful countries regarding Kosovan independence, the love-hate relations between Kosovo and Serbia and the potential changes that Kosovan independence might bring about in the overall international situation are all factors that cannot be resolved by a simple advisory opinion from the ICJ.

Chiang Huang-chih is an associate professor of law at National Taiwan University.