International Court of Justice's Advisory Opinion on Kosovo, Self-determination and Unrecognised Entities
May 16, 2011 17:00
Prof Bill Bowring
This talk focused on the International Court of Justice's (ICJ) Advisory Opinion on Kosovo, self-determination, and unrecognised entities: Abkhaziya, Nagorno Karabakh, Northern Cyprus, South Ossetiya, Transdniestria. The ICJ was asked a very short question: ‘Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?’” Its Advisory Opinion of 22 July 2010 decided, by 10 votes to 4, that "the declaration of independence of Kosovo adopted on 17 February 2008 did not violate international law." This was on the basis (para 84) that "general international law contains no applicable prohibition of declarations of independence." Marc Weller(2011: 130) points out that the question was Serbia's - "the calculation was that this phrasing would move the issue onto legal ground where Serbia was confident of winning the argument – the legal authority of the Provisional Institutions of Self-Government in relation to thedeclaration of independence." He adds "It is not easy to see why Serbia did not frame the case in a way that would raise additional issues at Kosovo’s expense." He asks (p.147): "Will this case be considered a licence for unending claims to secession by sub-state groups? This seems unlikely. The wider implications of the opinion are somewhat disguised in its text. Moreover, secessionists tend to be driven by actual or imagined grievances in their campaign for independence, rather than by a detailed reading of the pronouncements of even the most elevated of international judicial bodies." Anne Peters (2011: 108) is more critical, but agrees that the answer given by the Court was to be expected, and in her opinion, is correct For her, "it leaves room for the argument that contemporary international law has established procedural requirements for secession, notably the non-use of military force and a democratic process."
73 Watling Street London EC4M 9BJ
73 Watling Street London EC4M 9BJLondon Centre for Social Studies (LCSS)