Thursday, August 12, 2010

Ideas for Teaching the ICJ Advisory Opinion regarding Kosovo Independence

As we international law professors start preparing for the fast-approaching new school year, I would like to encourage a sharing of ideas about how we may be incorporating the ICJ's 22 July 2010 Advisory Opinion on the legality of Kosovo's unilateral declaration of independence in our courses on international law.  Readers of this blog will likely recall that the exact question posed by the UN General Assemby in its request for the advisory opinion was:  ‘Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?’”  The succinct answer of the Court to this question was: "yes."

Arguably this opinion is an important one because it sanctions unilateral declarations of independence, reaffirming the concept of declatoratory statehood endorsed by the Montevideo Convention.  In response to the argument that the declaration is contrary to Article 2.4 of the UN Charter, the Court opines that the scope of the principle of territorial integrity only applies in relations between states.  This opinion thus has the potential to unnerve other states with minority populations that have secessionist tendencies.

On the other hand, it may be argued that the ICJ's decision does little to advance the law.  The Court's opinion is only an advisory opinion and is not binding on parties to a contentious dispute.  In addition, the Court specifically avoids resolving any debates regarding the scope and application of the concept of self-determination.  The Court states that it is not asked to opine on the legal consequences of its decision; in particular, whether Kosovo has reached statehood. The Court simply took a positivist view of international law by declaring that nothing in international law prohibits the actions taken by Kosovo (as it did in The Lotus Case).  The Court further states that its opinion does not address whether Kosovo has a positive right to secede.

On a related note, will you teach the jurisdictional parts of the decision, e.g., the Court's decision that it has jurisdiction over the General Assembly's request despite the fact that the UN Security Council was seized of the matter in Kosovo?  Or its decision to exercise jurisdiction despite the arguments of some of the parties that the question presented is really a political one intended to serve the interests of particular states, not a legal one?  If you use the Certain Expenses or the Western Sahara advisory opinions to teach these points now, will you substitute?

Please consider sharing your thoughts and ideas using the comment feature on this blog.

(cgb)

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Maybe it is a good lesson from this opinion that one has to think twice before one asks a stupid question. Serbia wanted to know whether Kosovo had a right to secede, rather than if it was legal to call yourself independent. If one formulated the question more like the one posed to the Canadian Supreme Court in the Quebec case, the court might have delivered a more informative answer. But don’t take my advice, since I’m just a student and not a professor.

Posted by: Mihai Martoiu Ticu | Aug 13, 2010 1:04:35 AM

At the Australian National University we are using the AO in an analytical exercise for our students in the basic International Law course. The exercise is as follows:


WRITTEN ASSIGNMENT

1. Background

The Discovery Islands (DI) are a small group of three small islands (North, South and East island) located 800km off the east coast of Australia and together have a land mass of 36km2. They were originally discovered and claimed on behalf of England in 1820 and soon thereafter were included within the colony of New South Wales. France claims to have discovered and claimed East island in 1819 which was named ‘Ile des Pins’ (due to pine trees on the island), but while the island was located on French charts of the South Pacific it was never settled by the French. Modern French maps of the region however still show the French name for the island.

The DI were uninhabited at the time of discovery. However, convicts were sent to the islands from England during 1822-1835 and a small convict settlement developed on the islands comprising soldiers, prison guards, and their accompanying families. Upon the closure of prison facilities, many of the ex-convicts became members of the local community which began to develop a small agricultural and fishing industry.

Upon Federation in 1901 the DI remained a part of New South Wales, but in 1920 became an external territory of Australia consistent with procedures under the Commonwealth of Australia Constitution. Originally the DI was governed by an Administrator, but in 1974 the islands were granted limited self-government with the establishment of a Legislative Assembly. In recent decades the economy of the DI has grown partly due to a surge in tourism and an expanded fishing industry taking advantage of productive fishing grounds in the 200 nautical mile exclusive economic zone adjacent to the islands in the Tasman Sea. Partly as a result of the strength of the DI economy the islanders, who now number 3,100 in total (many of whom are the descendants of the original settlers from the 1820-1830s), have in recent decades begun to agitate for independence from Australia. This has resulted in the formation of a new political party – the Discovery Islands Independence Movement (DIIM), which now has majority support in the DI Legislative Assembly.

Successive Commonwealth governments have over the past decade become privately concerned with the growth of the independence movement on the DI. Despite the injection of significant federal funding by way of a ‘Discovery Islands Stimulus Package’ which resulted in the building of a new school and airport, the DIIM list a number of grievances including the high rate of a ‘fisheries resources tax’, strict controls over gambling which it is argued deters tourism, and poor health facilities which require many islanders to return to the ‘mainland’ for basic medical procedures.

On 23 July, a senior delegation of Canberra-based Commonwealth government officials visited the DI. They were dismayed to learn that the DIIM had been closely monitoring developments at the International Court of Justice in The Hague and were now actively considering their options following the Court’s Advisory Opinion in the Kosovo case. The Commonwealth officials have recently returned to Canberra and have briefed a number of agencies regarding the situation on the DI, including officials from the Department of Foreign Affairs and Trade.

2. Task

You have been asked to prepare a ‘Legal Brief’ on the International Court of Justice’s Advisory Opinion of 22 July 2010 on Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo and its implications for the situation of the DI.

The question you have been asked to answer is:

Would a unilateral declaration of independence by the DI be in accordance with international law, taking into account the Advisory Opinion of the court and any relevant Declarations, Separate Opinions, and Dissenting Opinions delivered by the Judges of the court?

You have been instructed:

+ to focus on paragraphs 78-84 of the Court’s Advisory Opinion and paragraphs 1-17 of the Separate Opinion of Judge Yusuf;

+ to refer to other Separate Opinions and Dissenting Opinions only insofar as they are relevant to the issues raised in the above parts of the Advisory Opinion and Separate Opinion of Judge Yusuf;

+ not to discuss the question of whether the Court should have declined to provide an Advisory Opinion in this case..

You are reminded, that unlike the situation of Kosovo, the DI have never been the subject of any United Nations resolutions by either the General Assembly or the Security Council. Nor has the situation of the DI ever been the subject of discussion before any United Nations human rights body or agency.

3. Format

You are to write a ‘Legal Brief’ in your ‘role’ as a legal adviser in the Department of Foreign Affairs and Trade. You should:

Number each paragraph and where relevant provide headings and sub-headings
Give complete paragraph references to the Kosovo Advisory Opinion, including relevant Declarations, Separate Opinions and Dissenting Opinions
Give complete URLs and date of access for any internet material referenced

Refer to Stuhmke Legal Referencing (3rd, 2005) for general style and referencing guidelines.

Footnote style should be in accordance with the Australian Guide to Legal Citation (2010, 3rd) [AGLC3] http://mulr.law.unimelb.edu.au/go/aglc, of which Part IV is devoted to International Materials.

4. Marking Criteria

The assignment will be marked holistically; there is no division of marks between the various parts of the task.

1. Analysis - Your ability to fully analyse and evaluate the legal issues raised by the task in a critical and original manner will be assessed. Your knowledge of applicable international legal rules and your ability to apply those rules form an important part of this assessment.

2. Research - you are expected to conduct independent research (ie beyond the casebook and any materials provided by your lecturer or via WATTLE) which should be evident in your analysis and the references to primary and secondary authority to which you cite. Appropriate use of relevant primary and secondary authority is important. A bibliography, which will not count towards the word limit, must be included.

3. Structure - the assignment must follow a logical structure and address the principal issues you have been asked to address. Your assignment should have an introduction in which the approach to the Legal Brief is set out and in which key parts of the assignment are flagged for the reader. Each sentence, paragraph and section of the Legal Brief must lead logically to the next. Use of subheadings is advisable.

4. Literacy - the assignment should demonstrate the writing and literacy skills evident in contributions to a quality refereed law journal. To learn what the standard is, students should be reading articles in such law journals as part of their research. Typographical errors, spelling mistakes and the like are distracting and may lead to a lower mark.

5. Academic Honesty - Students are referred to the ANU Code of Practice for Student Academic Integrity: http://policies.anu.edu.au/policies/code_of_practice_for_student_academic_integrity/policy

Posted by: Don Anton | Aug 30, 2010 12:31:26 AM

A great hypothetical - thanks for sharing!

Posted by: Cindy G Buys | Sep 6, 2010 9:48:02 AM

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