ICJ Advisory Opinion

Guest Post: Pathik Gandhi

The Declaration of Independence by Kosovo has been given a clean chit by a majority of the judges of the ICJ in it’s ICJ’s Advisory Opinion of 22nd July 2010. The question which the UNGA put to the ICJ was whether the Declaration of Independence by Kosovo was valid under international law. The Court while opining on this central issue, also determined several questions as regards the admissibility of the UNGA reference, since the United Nations Security Council was also concerned with the situation in Kosovo. The Majority Court decided to exercise the discretion vested in the ICJ (with the notable dissent of Judges Tomka, Koroma, Keith, Bennouna, and Skotnikov.

As regards the principal issue, the International Court of Justice relied primarily on the argument that there has been no practise in customary international law, where a Declaration of Independence has been rendered invalid, to declare Kosovo’s Declaration legal in international law. The Court narrowed down to the question – who were the authors of the Declaration of Independence? This question was the crux of the issue because the members of the Provisional Assembly in Kosovo had been elected under the Framework created by the United Nations, throught the Representative of the Secretary General, thereby rendering any Declaration by them beyond the ambit of the Framework Resolution of the Security Council.

The Opinion has come for criticism for the radical approach taken by the International Court of Justice, where it has sought to refrain from crucial International Law principles such as self-determination, territorial integritiy, inviolability of borders, use of force etc. An interesting critique is that by, Dr. Alexander Mezyaev International Law Department Governance Academy available here. The Opinion can be accessed here: Accordance with international law of the unilateral declaration of independence in respect of Kosovo (Request for Advisory Opinion) – Advisory Opinion – Advisory Opinion of 22 July 2010.

This Opinion, besides an interesting study of Judicial Process, leads one to ponder over the feasibility of such measures being declared legal in other areas of conflict such as Kosovo or Basque.

Pathik Gandhi has recently graduated from NALSAR University of Law, Hyderabad.

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  • Thanks Pathik. Can you also explain its relevance for India? What if Kashmir takes the UDI route?

  • First, I was pleasantly surprised to read a contemporary international law post on LAOT. Even though some may argue on how much of "international law" is law, for now I think its at least safe to say (and good to see) that it falls under the "Other Things" category!

    Coming to the advisory opinion itself, after having had read it once, to me it doesnt really seem to be "radical" in its approach and may be is not that "landmark" an opinion. Most importantly, upon reading, one realizes that the court ducks (avoids?) the most controversial, albeit quite relevant, issues such as the legitimacy of government (and statehood) and the question of recognition. It finds the issue of external self determination not relevant. It narrowly confines itself to the question "whether or not the applicable international law prohibited the declaration of independence." (para.56) Thus, in reaching a conclusion it effectively only opines that the declaration of independence is not prohibited by international law. Thats far from an iconoclastic conclusion. It formulates narrow questions. Indeed an interesting study of judicial process, but I think thats pretty much it. The separate opinions a certainly worth a read, though.


    P.S. Here are a few more interesting posts on the issue:
    http://www.ejiltalk.org/kosovo-advisory-opinion-preview/ (Marko Milanovic's preview published a few days before the opinion was rendered – a very good starting point)

    http://opiniojuris.org/2010/07/23/the-kosovo-advisory-opinion-self-determination-and-secession/ (Chris Borgen's post on the issue. He also is of the opinion that "[w]hile the ICJ has averted a jurisprudential train wreck in this advisory opinion, it hasn’t done all that much, either". Also see the comments section)

  • Oh, and for those following, here's a very interesting post by Marc Benitah over on the IELP blog. He explains the Kosovo opinion a little and then compares it to WTO AB jurisprudence. Here's the interesting stuff:

    "The Court determined for all practical purposes that the term “in accordance with” is to be understood as asking whether there is a prohibitive rule against Kosovo’s declaration of independence. According to the Court, since there is no such prohibitive rule, then the declaration of independence is ipso facto in accordance with international law.

    Dissenting Judge Simma soon realized that the underlying rationale of the Court’s approach “reflects an old, tired view of international law" based on the adage, famously expressed in the “Lotus” Judgment, according to which restrictions on the independence of States cannot be presumed because of the consensual nature of the international legal order. In other words, the Court has concluded in the Kosovo Opinion that, in relation to a specific act, it is not necessary to demonstrate a permissive rule so long as there is no prohibition.
    It is interesting to recall with Sungjoon Cho ( GLOBAL CONSTITUTIONAL LAWMAKING , University of Pennsylvania Journal of International Law, Spring 2010) that in US Zeroing , a central theme revealed by critics of the AB's anti-zeroing jurisprudence is “sovereignty,” which carries a hallmark of the Lotus principle. Under the well-known principle of public international law, sovereign states are capable of doing whatever they desire as long as no explicit prohibition exists under international law. Following this logic, WTO members would be free to adopt the zeroing practice because the WTO Anti-Dumping Code does not expressly ban such practice.
    Fortunately, as we know, the Appellate Body did not follow the logic of the Lotus principle in the US Zeroing case. It adopted a much more sophisticated approach where competing principles deducted for the texts supplanted the “old tired” Lotus principle. One could say that the WTO Appellate Body is ahead of the ICJ at least on this point."

    Apart from everything else, note Judge Simma's dissent that the Court's approach reflects an "old, tired view of international law".

    Read the full post here: http://worldtradelaw.typepad.com/ielpblog/2010/07/the-old-tired-lotus-principle-in-the-kosovo-case-is-the-wto-ahead-of-the-icj-on-this-point-.html