The International Court of Justice today held that international law did not prohibit Kosovo’s declaration of independence, while sidestepping the larger issue of Kosovo’s statehood. All of the opinions can be found here, but we are happy to host the opinion of the court on this JILP Forum, since the ICJ’s site has been difficult to access as of late.
In a way, as Chris Borgen notes at Opinio Juris, this result should not come as a surprise, since international law generally does not seem to have much to say about declarations of independence. The Court sidesteps the trickier problem of the lex specialis created by S.C. Res. 1244 (and the subsequent Constitutional Framework adopted by UNMIK) by holding that the declaration did not constitute an act of one of the Provisional Institutions of Self-Government. This lays the groundwork for the Court to conclude that the declaration essentially took place outside the scope of S.C. Res. 1244 and the framework. Preliminary thoughts after the jump.
I still want to read the separate opinions, etc., before writing any detailed comment, but I have a few initial thoughts. First, the New York Times lede refers to legal experts, and warns that this ruling “could spur separatist movements around the world.” This may be a bit too much spin. If, as many seem to think, international law has largely been silent on declarations of independence, then this ruling likely reinforces the status quo, and a contrary decision would have stifled separatist movements to some degree. The Court arguably affords no privilege to secession in this opinion, and the ruling on 1244, which was perhaps a much tougher (or more suspect) call, can be said to be combined to these facts.
But those are first thoughts, and reading the opinion provides germs for many more. Judge Simma, for example, turns in a brief and engaging attack on the Lotus principle (roughly, that which is not prohibited is permitted), and Judge Cancado Trindade has published a 75-page concurring opinion that will be nice weekend reading. Further questions:
(1) What are the consequences of the Court’s ruling that the principle of territorial integrity did not apply in this case? If territorial integrity is “confined to the sphere of relations between states,” (para 80) then could recognizing and establishing diplomatic relations with Kosovo theoretically still be wrongful within the framework of this opinion?
(2) Is this the first time that the Court has stated that subsequent practice of UN organs and affected States is relevant in interpreting Security Council resolutions? (Para. 94). How would this work? I don’t think it can be justified by the same principles that support the use of subsequent practice in treaty interpretation. (see VCLT art. 31).