1. The Opinion

During the Security Council debate after the ICJ issued its Advisory Opinion, the foreign minister of Kosovo, Skender Hyseni, declared ‘Nothing in the opinion issued by the Court casts any doubt on the statehood of the Republic of Kosovo, which is an established fact’.Footnote ¹ The representative of the United Kingdom stated that the opinion ‘must . . . mean an end to debate over Kosovo's status’.Footnote ² These diplomats are either poor lawyers, poor politicians, or both, since – for better or worse – the carefully circumscribed ICJ Advisory Opinion (which is not legally binding on Kosovo, Serbia, or anyone else), held merely that ‘the adoption of the declaration of independence of 17 February 2008 did not violate general international law’.Footnote ³ This conclusion is hardly surprising, since international law is completely silent on most such domestic issues – it has never been illegal for a group or region of any country to revolt, declare independence, or seek to separate from that country. While such situations may give rise to international rights and obligations under the laws of war, the latter are concerned only with jus in bello, not jus ad bellum.

Whether or not this represents merely a restatement of the Lotus principle is addressed by other comments in this volume, but it is certainly a plausible (if not inevitable) response to the question actually posed by the General Assembly. That question was, in toto, ‘Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?’. Leaving aside issues of whether Kosovo's declaration of independence was contrary to mandates of the UN Security Council or whether it was actually proclaimed by ‘the Provisional Institutions of Self-Government’ (the Court responded in the negative to both), this question is equivalent to asking whether the decision of the United Kingdom to make drivers drive on left side of the road rather than the right is in accordance with international law. The answer in both cases is clear: international law simply does not address the issue. Perhaps the court should have addressed the broader issue of the scope of self-determination under international law or whether international law includes any right of unilateral secession and, if so, under what circumstances, as advocated most persuasively by the Declaration of Judge Simma and the Separate Opinion of Judge Yusuf. But, if the Court's task is to interpret the law as it is rather than as it might be, it is very difficult to disagree with the modest conclusion that it reached, by a vote of ten votes to four.

Contrary to the assertions of Kosovo's partisans, neither the Court nor international law supports the argument that Kosovo possesses a positive right under international law to declare its independence, unless one seeks to found the latter on an extreme interpretation of freedom of expression under international human rights law. Similarly, neither the Court nor international law draws any particular legal consequence from the not-unlawful declaration of independence, such as the transformation of Kosovo from a part of Serbia into an independent state. Statements by France, the United Kingdom, the United States, and others that Kosovo is independent are little more than feeble attempts to substitute a constitutive approach to recognition for the widely accepted declaratory theory.Footnote ⁴ Such assertions fly in the face of the consensus that Security Council Resolution 1244 continues to apply to the territory of Kosovo, and it might be noted that the ‘preliminary legal assessment’ of the United Nations is that ‘the opinion does not affect the status of UNMIK or a status-neutral policy’.Footnote ⁵

2. The scope of self-determination and remedial secession

To its credit, the Court specifically notes the ‘radically different views’ expressed to it on the question of whether either a contemporary form of ‘self-determination’ or a right of ‘remedial secession’ exists that might grant part of an existing state a right to separate from that state.Footnote ⁶ The Court somewhat lamely – although correctly – concludes simply that ‘it is not necessary to resolve these questions in the present case . . . [which] is beyond the scope of the question posed by the General Assembly’.Footnote ⁷ No amount of ‘spin’ can transform this very conservative reading of the issue into legal (as opposed to political) support for Kosovo's independence. Even the lengthy ‘humanist’Footnote ⁸ opinion of Judge Cançado Trindade is able to conclude only that

Judge Yusuf appears to go a bit further, but he also limits himself to observing that ‘[u]nder . . . exceptional circumstances, the right of peoples to self-determination may support a claim to separate statehood, provided it meets the conditions prescribed by international law, in a specific situation, taking into account the historical context’.Footnote ¹⁰

The present writer also would have welcomed a serious analysis by the Court of whether it could be possible for Kosovo to acquire a right of secession and independence, as a result of the ‘humanitarian catastrophe’ or ‘grave humanitarian crisis’ cited, in particular, by Judge Cançado Trindade.Footnote ¹¹ However, such an exploration would have been problematic if it sought not only to define emerging international norms in abstracto, but also to apply them to the specific case of Kosovo. While Judge Cançado Trindade, for example, goes to great lengths to detail the suffering of the Kosovo population, his discussion is largely limited to the 1989–99 period, when Slobodan Milošević was in power and including the mass expulsions and atrocities that occurred during the NATO bombing of Serbia and Kosovo in March–June 1999.Footnote ¹² The references to UN expressions of concern over the human rights situation in Kosovo leave no doubt about the extent of suffering that occurred, but the failure to mention NATO ultimatums, the withdrawal by Serb forces from Kosovo in October 1998, and intimidation and war crimes by the KLA, as well as references to ‘the humanitarian consequences of the conflict’Footnote ¹³ accompanied by only a single mention of the NATO bombing,Footnote ¹⁴ leave, at best, an incomplete picture. The few references to post-1999 violence are largely to crimes committed by Kosovars against ethnic Serbs and other minorities,Footnote ¹⁵ which hardly supports arguments for independence based on either self-determination or remedial secession. A fuller factual examination by the Court might have found that the situation in Kosovo after 1999 and the establishment of a democratic government in Serbia in 2000 would put a problematic gloss on any finding that Kosovo had acquired a right to independence.Footnote ¹⁶ Judge Yusuf is correct when he observes that ‘the restriction of the scope of the question [put by the General Assembly to the Court] to whether international law prohibited the declaration of independence as such voids it of much of its substance’.Footnote ¹⁷ Nonetheless, it should come as no surprise that the Court decided not to take a stand on an issue that is both divisive and unclear, with major powers on each side.

To avoid any ambiguity, the question that the General Assembly should have put to the Court was: ‘Does the recognition by states of the juridical independence of Kosovo violate their obligations under international law not to interfere with the territorial integrity and political independence of Serbia?’ Because international law is primarily concerned with relations between states, not within them, this is where the nexus of the dispute actually lies. Unfortunately, whether due to the diplomatic ineptitude of Serbia or the cowardice of the General Assembly, the Assembly was not willing to pose a question that would have challenged the actions of some of its most powerful members, including the United States and most of the members of the European Union, which have recognized Kosovo over Serbia's objections. One should also note that such a question would have embarrassed Russia, as well, which is one of very few states to have recognized the breakaway regions of Abkhazia and South Ossetia, both of which seek independence from Georgia.

When the Advisory Opinion was delivered, only 69 of the United Nation's 192 member states had recognized Kosovo as an independent country, and there is nothing in the opinion that requires or even encourages other states to join that number – nor, perhaps unfortunately, does the opinion discourage that option. As correctly noted by the Serbian minister of foreign affairs, ‘never in the history of the United Nations has a territory achieved statehood by seceding from a parent State that did not give its consent at the end of the process’.Footnote ¹⁸ This was the case for Bangladesh, for example, which won its physical battle for independence from Pakistan in 1971 but was not recognized by most states or admitted as a member of the United Nations until 1974 – after Pakistan itself had accepted the partition. This is likely to be the case for Kosovo, too. Major powers such as China, Russia, India, and most of Latin America, Africa, and Asia have declined to climb on board the US and EU bandwagon. Not until Serbia itself accepts Kosovo's independence are the positions of these states likely to change.

Ultimately, given the majority's conservative approach, the Advisory Opinion will have minimal legal significance either for the status of Kosovo or for our understanding of state formation and self-determination in the twenty-first century. However, as noted by Judge Yusuf, the opinion ‘may be misinterpreted as legitimizing such declarations [of independence] under international law, by all kinds of separatist groups or entities’.Footnote ¹⁹ While this view is undoubtedly speculative (separatist groups rarely consult international lawyers, except when propaganda demands require it), the counterargument to this fear, based on Kosovo's alleged uniqueness, fails to find support in the Court's opinion. The United Kingdom claims, for example, that ‘Kosovo is a unique case. Its independence is contingent on its particular facts. It does not provide a template for secession elsewhere’.Footnote ²⁰ The foreign minister of Kosovo stated plainly that ‘Kosovo, the Court has said, is a unique and special case’.Footnote ²¹ Unfortunately for the foreign minister, the word ‘unique’ appears nowhere in the opinion, nor is there any reference to Kosovo as special. Whatever the Court said in its discussion of general international law applies universally, although every secessionist situation differs from every other such situation in some respects.

3. Prospects for a negotiated settlement

More disturbing than the questionable claims about Kosovo's uniqueness, however, is the arrogant assertion by the United Kingdom and the United States that Kosovo is not only independent, but is imbued with all of the rights pertaining to that status, including respect for its current – contested – borders. Let us quote the United Kingdom again:

The Russian representative responded to this statement by questioning whether the Security Council had ‘heard something that came close to being a threat of confrontation by countries that recognize Kosovo . . . . We hope that the majority of them will . . . not impede Pristina from adopting the sole correct solution – dialogue with Belgrade’.Footnote ²³ The subsequent General Assembly resolution adopted in response to the Advisory Opinion, a compromise text introduced jointly by Serbia and the 27 members of the European Union, welcomes the European Union's willingness to facilitate ‘a process of dialogue between the parties’.Footnote ²⁴ The resolution says nothing about the status of Kosovo, but encouraging dialogue appears to be one issue on which there is broad consensus.Footnote ²⁵

As has just been noted, however, the scope of that dialogue remains a source of disagreement. The British and American view of dialogue appears to be the same as the one they promoted at the 1999 Rambouillet talks, where dialogue was equivalent to acceptance by the parties of whatever NATO proposed. By mandating that one potentially crucial element of that dialogue be ignored, the entire concept is undermined. There is nothing magical about existing state borders, which may always be changed by agreement. There is no fundamental moral or political reason why Kosovo should not be independent, either, even if that independence is not currently mandated or even supported by general international law. At the same time, however, it is difficult to find any morality or consistency in the continuing refusal of the Albanian majority in Kosovo to grant to some of its Serb minority population the same ‘self-determination’ that Kosovar Albanians claim. Partition is always messy, as demonstrated all too clearly by the barbarity of the Yugoslav civil wars and the self-serving piety of many of its participants, who disingenuously asked ‘Why should I be a minority in your state, when you can be a minority in mine?’Footnote ²⁶ But if the ‘wishes of the people’ are to be the basis of the state, then it is difficult to understand why the wishes of Kosovar Albanians to separate from Serbia deserve more support than the wishes of Serbs to separate from Kosovo.

Given political realities, there is no doubt that Kosovo will eventually become a full member of the international community, its independence recognized by all, and one should not bemoan that fact. Unfortunately for Kosovo's supporters, however, the International Court of Justice has not done much to advance that date. The Court's opinion that Kosovo's declaration of independence is of no international legal consequence simply maintains the status quo, and it may be the best that the Court could have done in the charged political circumstances. Despite claims of uniqueness, it is difficult to distinguish the unilateral declaration by Kosovo as different from those made, at various stages, by South Ossetia, Abkhazia, Nagorno-Karabakh, the Turkish Republic of Northern Cyprus, Chechnya, Tamils in Sri Lanka, Kurds in Turkey and Iraq, and many more dissatisfied and/or oppressed groups around the world. A continued ‘frozen’ conflict will do little to advance either Kosovo's or Serbia's search for the holy grail of EU membership, and most states in the world have not, to date, accepted Kosovo's independence. Until they do – and until Serbia does – Kosovo will be little more than an international oddity like Taiwan, albeit with probably a lesser degree of real independence. Kosovo's persistent refusal to accept anything less than independence during the United Nation's feeble attempts at mediation prior to 2008Footnote ²⁷ may have been a successful tactic, but the good faith required to reach a settlement that both Pristina and Belgrade find acceptable is sadly lacking. Kosovo's dream of normalcy, international recognition, and eventual EU membership will not be fulfilled until there is a sustainable solution for all of the former Yugoslavia, not just for those with powerful friends. Partition may not be the optimal solution, but that is not for outsiders to determine. Kosovo's supporters should not attempt to place preconditions on the necessary negotiations between Pristina and Belgrade, and their mechanistic assertions that Kosovo now enjoys a right to territorial integrity should be given the same weight as those states gave to the territorial integrity of the former Yugoslavia and the territorial integrity of Serbia.