Thursday, August 12, 2010
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.