The authors of the unilateral declaration of independence of Kosovo appear before the ICJ

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By Otto Spijkers

The world-wide attention to its Kosovo Case has motivated the International Court of Justice to add some new features to its website. For the first time, we can actually see video-footage of the distinguished professors pleading on behalf of various countries before the Court. Unfortunately, this seems to be restricted to one-minute impressions only. No one has ever argued a case in just one minute. And thus, if you want to see the pleadings from start to finish, I guess you still have to come to The Hague yourself.  

Let’s say something about this case. Obviously, it is about the future of Kosovo, which is a very sensitive issue. But what is it about exactly? Is it about the statehood of Kosovo? In other words, will the Court determine whether Kosovo has a permanent population, a defined territory, a government, and the capacity to enter into relations with other States?  

Or is it about recognition? Will the Court order all States to recognize Kosovo as a new State? We know that, according to traditional doctrine, a State does not need to be recognized as a State in order to become a State. However, in practice it works quite differently. States decide whether or not to accept a new member to the club, and without such acceptance you cannot enter the club, even if you might think you qualify as a State. Could the Court now become the objective entity, the doorman of the club of States? 

 

The question

 

Unfortunately, it is highly unlikely that the question put to the Court will require the Court to say something about Kosovo’s statehood, the (il)legality of recognitions, or the right to self-determination of the people of Kosovo. Indeed, the General Assembly of the United Nations asked the International Court of Justice the following question:

‘is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?’

The question was thus not: ‘Is Kosovo a State?,’ or: ‘Must Kosovo be admitted to the club of States?,’ or: ‘Do the people of Kosovo have a right to self-determination?,’ or anything like that.  

 

The simple answer

 

A simple answer to the question actually posed by the Assembly could be that international law has nothing to say about declarations made by representatives of minorities residing within a particular State. One might argue that such declarations are regulated by national constitutional law. International law might have something to say about whether a certain entity qualifies as a State, and whether other States can recognize it as such. But it does not allow or prohibit the making of such a unilateral declaration of independence itself.   

 

The need for a more complicated answer

 

There seem to be two arguments preventing the Court from providing us with such a simple – and uninformative – answer. The first such argument relates to the principle of territorial integrity, and the second relates to Security Council resolution 1244.

 

Principle of territorial integrity of sovereign States

 

First, one might argue that the issuance of the unilateral declaration of independence by the Kosovo authorities violated the principle of respect for the territorial integrity of Serbia.

One counterargument would be that it is not clear how minority groups could be obligated, under international law, to respect the territorial integrity of the State they reside in. This raises the interesting question of the international legal personality of such groups, and what rights and duties they might have under international law.

Another counterargument to the territorial-integrity-argument is that minorities need not respect the territorial integrity of the State they reside in if they have a right to external self-determination. If the State consistently violates fundamental rights of minorities, it might be argued that such minorities have a right, not just to autonomy within the State (‘internal self-determination’), but to secession from the State (‘external self-determination’). In other words, they may claim their independence.

However, thus far such a claim to independence has only been accepted by the international community in the context of decolonization. Perhaps the Kosovo Case will show that, under certain conditions, self-determination can lead to independence even in the post-colonial world. Indeed, in their pleadings, the Netherlands suggested a number of conditions which must be fulfilled in order for a post-colonial claim to external self-determination to be acceptable. I quote:

First, there are substantive conditions. A right to external self-determination only arises in the event of a serious breach of either:  

1. the obligation to respect and promote the right to self-determination due to the absence of a government representing the whole people belonging to the territory, or the denial of fundamental human rights to a people; or

2. the obligation to refrain from any forcible action which deprives people of this right. 

There is also a procedural condition. All effective remedies must have been exhausted in the pursuit of a settlement before a people may have resort to the exercise of the right to external self-determination.

This is interesting, but probably not relevant for the drafting of the Court’s Advisory Opinion. After all, the case is not directly related to the scope of the right to self-determination of the people of Kosovo.

 

Security Council resolution 1244

 

In any case, if the territorial integrity argument does not work, there is still a second argument that might lead the Court to avoid giving the simple answer, i.e. that international law is irrelevant when it comes to the legality of the issuance of the unilateral declaration of independence. This second argument is based on Security Council resolution 1244, adopted 10 June 1999. Through that resolution, the Security Council established an international civil presence, formally called the United Nations Interim Administration Mission in Kosovo (UNMIK). UNMIK was never explicitly mandated to help Kosovo become an independent State. However, as UNMIK’s website tells us,

‘over the eight years since [UNMIK’s establishment in 2001], as Kosovo’s Provisional Institutions of Self Government (PISG) were established and gained capacity to assume more responsibilities, UNMIK has moved back from an executive role to one of monitoring and support to local institutions.’

It seems, then, that the unilateral declaration of independence by these Provisional Institutions of Self Government, or some other representative of the people of Kosovo, was a logical next – or perhaps even final – step in this process of ‘moving back’.

However, since UNMIK’s formal mandate says nothing explicitly about independence, one may also see the declaration as an obstruction of UNMIK’s work, and thus as a ‘violation’ of resolution 1244. In other words, one might argue that, since UNMIK’s mandate says nothing about the definitive status of Kosovo, this problem can only be solved through a negotiated settlement, i.e. we need to find a solution that is acceptable to both Serbia, Kosovo and the United Nations, particularly the Security Council.  

 

Conclusion?

 

I don’t know what to conclude; that is up to the International Court of Justice. But the global interest in the case does make it tempting for the Court not to give the simple answer, but instead to say a few words about very sensitive stuff, like conditions of statehood, recognition, and self-determination.