Formosa Online: A new State is (legally) born?

Prelude to Independence

On 24 March 1999, bombs began raining down on Belgrade. In response to Serbia’s continued harassment and forced deportations of Kosovar Albanians, NATO commenced “Operation Allied Force”—up till then the only use of force by the coalition—to “halt the humanitarian catastrophe that was then unfolding in Kosovo”. Undoubtedly, ethnic tensions and political rivalries have been brewing in the region for the better part of the 1990s. Armed conflict broke out, drawing in actors from across the region, resulting in (alleged) horrendous atrocities committed by either side of the conflict (see: Milošević, Slobodan (IT-02-54) "Kosovo, Croatia and Bosnia" cf. Haradinaj et al. (IT-04-84)).

Aside from the legality of the controversial and ambiguous concept of “humanitarian intervention” under which the Allied Forces justified its campaign (see: Legality of the Use of Force: Serbia and Montenegro v. UK; Spain; Portugal; Netherlands; Italy; Germany; France; Canada; Belgium), Kosovo’s slow and painful road to independence began when the international community took interest… and took interest enough to take concerted action. “Pending a final settlement”, Security Council Resolution 1244 called for “substantial autonomy and self-government in Kosovo,” and the UN deployed Kosovo Peace Implementation Force (KFOR) to stabilise the region while peace talks resumed and stalled. Desginated the Special Envoy for the Future Status Process for Kosovo, former Finnish President Martti Ahtisaari concluded that “negotiations [with] potential to produce any mutually agreeable outcome on Kosovo’s status is exhausted. No amount of additional talks, whatever the format, will overcome this impasse”. Later in 2007, Ahtisaari made it unambiguously clear in a report endorsed by the UN Secretary-General that reintegration into Serbia “is not a viable option”, for “Kosovo is a unique case that demands a unique solution. It does not create a precedent for other unresolved conflicts”.

Further, Ahtisaari noted:

The time has come to resolve Kosovo’s status. Upon careful consideration of Kosovo’s recent history, the realities of Kosovo today and taking into account the negotiations with the parties, I have come to the conclusion that the only viable option for Kosovo is independence, to be supervised for an initial period by the international community.

Kosovo’s Unilateral Declaration of Independence and international response

On 17 February 2008, Kosovo formally declared itself to be “an independent and sovereign state”, and defends that its secession from Serbia is in line with the governing international law and the Ahtisaari Plan.

Since, some 69 States have recognised Kosovo, including the majority of Member States of the European Union and the United States. Major opposition to Kosovo’s declaration of independence include, Russia and China, both States struggling to safeguard their respective territorial and political integrity threatened by various secessionist movements. Serbia’s strong opposition to the “breakaway” has so far been reserved:

“from the very onset of this grave crisis, Serbia has ruled out the use of force […] Instead we have opted for a peaceful and diplomatic approach […] We have chosen to use the law”

[…] the most principled, sensible way to overcome the potentially destabilizing consequences of Kosovo’s unilateral declaration of independence is to transfer the issue from the political to the judicial arena”

On 23 September 2008, Serbia filed a request for an Advisory Opinion from the International Court of Justice on the legality of the unilateral declaration of independence, in order to:

prevent the Kosovo crisis from serving as a deeply problematic precedent in any part of the globe where secessionist ambitions are harboured […]. An advisory opinion would provide politically neutral and judicially authoritative guidance to many countries still deliberating how to approach such unilateral declarations.

While opponents cite existing Security Council Resolution 1244, which obliges the maintenance of an international and stabilizing “civil presence” in the region, as a bar on any unilateral change of the Kosovo issue, the Netherlands submitted before the Court that UN presence in Kosovo is strictly on a condition of neutrality. Therefore, a decision, especially one taken by a democratic process by the parliament of Kosovo, to reconfigure the international status of Kosovo is fully consistent with existing resolutions issued by the world’s supreme political body.

The Advisory Opinion

The question, in under twenty words, posed to the highest judiciary body of the UN system is (perhaps, deceivingly) simple:

“Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?”

The International Court of Justice began with the issue of jurisdiction, and rightly held that the General Assembly has every authority to refer an issue to the Court for its opinion on a “legal question” even though the Security Council is already “seised of the matter”(paras. 18-25;). The General Assembly perfectly has the right to take action it so desires in response to threats to international peace and security, even if the same issue is before the Security Council (paras. 40-42).

Though an unilateral declaration of independence (UDI) is a highly political act, the Court recalled:

“[it] has repeatedly stated that the fact that a question has political aspects does not suffice to deprive it of its character as a legal question […] Whatever its political aspects, the Court cannot refuse to respond to the legal elements of a question which invites it to discharge an essentially judicial task, namely, in the present case, an assessment of an act by reference to international law. The Court has also made clear that, in determining the jurisdictional issue of whether it is confronted with a legal question, it is not concerned with the political nature of the motives which may have inspired the request or the political implications which its opinion might have (para. 27)”

Indeed, the Court found no “compelling reason” to refuse giving its opinion on the legal matter of the legality of Kosovo’s UDI under international law. That a situation is political, and that there may be political motivations behind submitting a request for an advisory opinion “are not relevant to the Court’s exercise of its discretion whether or not to respond” [para. 33]. Even if an opinion on a highly political situation “might lead to adverse political consequences” [para. 35], the Court reminds us this is not reason enough for the Court to shy away from fulfilling its duty within the UN system:

the purpose of the advisory jurisdiction is to enable organs of the United Nations and other authorized bodies to obtain opinions from the Court which will assist them in the future exercise of their functions […]as the principal judicial organ of the United Nations, has also frequently been required to consider the interpretation and legal effects of such decisions. It has done so both in the exercise of its advisory jurisdiction […] and in the exercise of its contentious jurisdiction [para. 44-46]

Regarding the scope of the question posed in the present case, the Case made it unambiguously clear:

The question is narrow and specific; it asks for the Court’s opinion on whether or not the declaration of independence is in accordance with international law. It does not ask about the legal consequences of that declaration. In particular, it does not ask whether or not Kosovo has achieved statehood. Nor does it ask about the validity or legal effects of the recognition of Kosovo by those States which have recognized it as an independent State. […]Accordingly, the Court does not consider that it is necessary to address such issues as whether or not the declaration has led to the creation of a State or the status of the acts of recognition in order to answer the question put by the General Assembly [para. 51].

So was it legal or not?

Turning to the very “substance” of the request for Advisory Opinion, the Court noted that of the various UDI’s in history, some of which succeeded to create a new State, some of which failed, nothing in the:

practice of States as a whole suggest that the act of promulgating the declaration was regarded as contrary to international law. On the contrary, State practice during this period points clearly to the conclusion that international law contained no prohibition of declarations of independence [para. 79]

In short, any entity can unilaterally declare independence under international law (cf Lotus presumption: what is not prohibited under international law is permitted), but whether the result of that declaration results in the creation of a new legal personality is another issue altogether—one which the Court does not deal with in the present opinion. The Court did differentiate between an UDI issued “just like that”, and one issued in the context of self-determination. The decolonisation period of the latter half of the 20^th Century recognised the right of “the peoples of non-self-governing territories and peoples subject to alien subjugation, domination and exploitation” to pursue self-determination through the declaration of independence [para. 79]. The Court did not find it necessary to consider whether Kosovo’s UDI is in line with the universally recognised principle of self-determination, and therefore completely sidelined whether “the international law of self-determination [today] confers upon part of the population of an existing State a right to separate from that State” [para. 82].

Most fundamentally, does an UDI necessary impair the territorial integrity and sovereignty of an existing State—a principle which is a cornerstone of the current international legal order (Cf. UN Charter, Art2(4))? In an absolutely groundbreaking declaration, the ICJ held the principle of territorial integrity applies only and is confined only “to the sphere of relations between [existing] States” [para. 80].

Perhaps this interpretation and application of the principle of territorial integrity is restricted only to the very particular circumstances surrounding Kosovo’s UDI. Up until now, the issue of territorial integrity has indeed only been raised in contentious cases between States, in which one State alleges the other State is interfering or intervening in matters within its sovereign territory in violation of international law. However, the Court’s reasoning for its holding that the principle of territorial integrity applies horizontally between States and not vertically between a State and its component part suggests that indeed an entity can declare unilaterally independence if it wished, provided that that entity did not violate other norms of general international law. Thus,

the illegality attached to the declarations of independence [of e.g. Southern Rhodesia, Northern Cyprus, and Republika Srbska] thus stemmed not from the unilateral character of these declarations as such, but from the fact that they were, or would have been, connected with the unlawful use of force or other egregious violations of norms of general international law, in particular those of a peremptory character (jus cogens) [para. 81].

In the present situation, existing Security Council resolutions (primarily SC Res. 1244) had recognised the “grave concern at the humanitarian crisis in and around Kosovo” as part of the conflict with Serbia, the State which did in fact exercise of sovereignty over the territory of Kosovo. However, as a result of the conflict with Serbia, and the subsequent entry of peacekeeping and reconstruction forces of the international community into Kosovo, the Court held:

The interim administration in Kosovo was designed to suspend temporarily Serbia’s exercise of its authority flowing from its continuing sovereignty over the territory of Kosovo. The purpose of the legal régime established under resolution 1244 (1999) was to establish, organize and oversee the development of local institutions of self-government in Kosovo under the aegis of the interim international presence [para. 98].

This reasoning and ruling is again groundbreaking. In the current international legal order, the fictitious entity known as the “international community” is represented by the 15 (the cynic and realist would say 5) States on the Security Council. Any action taken or resolution passed by the SC is binding on all States, and trumps over all other international legal obligations [UN Charter, Art. 103]. In effect, the Court in the Kosovo Advisory Opinion pronounced that if the international community (as represented by the SC) wills it, it is perfectly legitimate for the SC to pass a resolution and carve out an enclave within any State’s territory, thereby effectively suspending that State’s sovereignty over that territory. And all other States have no right to protest or object, and must comply, and indeed, recognize the new territorial demarcation:

The Court thus concludes that the object and purpose of resolution 1244 (1999) was to establish a temporary, exceptional legal régime which, save to the extent that it expressly preserved it, superseded the Serbian legal order and which aimed at the stabilization of Kosovo, and that it was designed to do so on an interim basis [para. 100]

Of course, for all (five) members of the SC to agree on any issue is painstakingly political and slow, however, the case of Kosovo is evidence it is perfectly possible that by the passage of a resolution, Serbia’s ties with Kosovo are effectively severed and replaced. What constraints are there on the SC to undertake such a decision? What are the conditions that must be fulfilled for the SC to reach such a radical undertaking which effectively permits it (or rather, its permanent five) to break up existing States? The Court is silent on these matters.

The ICJ on The Secession of Quebec

On a side note, the ICJ in its Advisory Opinion took the opinion to differentiate the situation of Kosovo from the thorny question of the legality of Quebec seceding from the Federation of Canada. There is a subtle, but nonetheless important difference between the two cases. Before the Supreme Court of Canada, the question posed was whether the political organ(s) of a constituent part of Canada (in this case, Quebec’s National Assembly, legislature and government) has a right to unilaterally secede. In an oft criticized, and no doubt highly politicised, the Supreme Court of Canada held, on constitutional grounds that:

Quebec could not, despite a clear referendum result, purport to invoke a right of self-determination to dictate the terms of a proposed secession to the other parties to the federation [Secession of Quebec].

Further, in the opinion of the Canadian Supreme Court, there is no right to secession for Quebec, because it is in no way an imperial colony, which would give its people a right to self-determination; Quebec’s people are not “subject to alien subjugation, domination or exploitation”; and nor are Quebecers “denied any meaningful exercise of its right to self-determination within the state of which it forms a part.” Upholding the territorial integrity of Canada, the Supreme Court went on to declare:

A state whose government represents the whole of the people or peoples resident within its territory, on a basis of equality and without discrimination, and respects the principles of self-determination in its internal arrangements, is entitled to maintain its territorial integrity under international law and to have that territorial integrity recognized by other states [re Secession of Quebec].

Even so, the highest court in Canada did point out that even if there is no legal right to secession, this in no way rules out the de facto secession of Quebec, should it choose to break away from Canada. Even if Quebec should choose to secede, the success “of such a secession would be dependent on recognition by the international community”.

In the Advisory Opinion asked of the International Court of Justice, the question was whether Kosovo’s UDI was in accordance with international law:

The Court is not required by the question it has been asked to take a position on whether international law conferred a positive entitlement on Kosovo unilaterally to declare its independence or, a fortiori, on whether international law generally confers an entitlement on entities situated within a State unilaterally to break away from it [para. 56, Kosovo Advisory Opinion]

What ends well, goes well?

So Kosovo’s UDI was in accordance with international law. But what does this mean for Kosovo, which today is still in limbo as only a third of all States in the world recognize it officially? The Court completely sidelined the (perhaps fundamental) question of pronouncing or redefining the international law on the creation and secession of a State. It also did not take the opportunity (to be fair, it did not have one, given the restrictive nature of the question before it) to clarify the law on recognition. Both statehood and recognition are still controversial, yet nonetheless fundamental questions regarding the existence of a State, and in the long run, the viability of a State to exist. After all, despite the ongoing trend of ‘globalization’ and formation of ever powerful regional actors on the international arena, the State is still sovereign, and the State is still the object of and subject to international law.

The Court did not address whether in the 21^st Century, a time when much of the world’s territory has already been carved up between and incorporated into the territorial and political integrity of existing members of the international community of States, whether it is legitimate to secession is ever legitimate under international law. The Advisory Opinion, restricted by the scope of the question posed, does not address the future of Kosovo, however it does offer an inking of hope to for independence-minded movements and peoples. The Court has reached the conclusion that a unilateral declaration of independence is possible, is not prohibited under international law—as long as the declaration is not coupled with actions which violate norms of international law (eg. use of force).

Nothing much may change after the 15 judges sitting in the Great Hall of Justice in The Hague deliver their collective advisory opinion, and separate and/or dissenting opinions. Six years after declaring that the “Wall” in the Occupied Palestinian Territories is illegal and severely contravenes international humanitarian law and the right of the Palestinians to self-determination, the Wall still stands. It may have been gratified, defaced, cursed and condemned. But The Wall still stands, defiant as ever, a symbolic mockery and evidence of international law’s inability to reconcile with or force its weight on the hard realities of politics.

The Court has however provided the irrefutable confirmation that Kosovo’s UDI did not violate international law (in fact, there was no law to violate in the first place!) Whether Kosovo will continue to exist and continue to function as a State depends entirely on the response of other members of the international community to the Advisory Opinion and toward Kosovo. For the bizarre nature of the international legal system is such that for a State to exist and to properly function, it requires the recognition and support of existing States, or at least of “States that matter”. The recognition of statehood is of great importance, because the existence or the lack of such recognition will dictate whether the entity is deserving of the full protection, privileges and entitlements available in this state-centric world, regardless of whether that world is viewed through legal or political lenses. Recognition is not a legal obligation, and neither is it a legal right. Therefore, it is unfortunately often hijacked by political interests and objectively granted or withdrawn to serve and preserve status quos and political realities (of primarily the ‘superpowers’.

While many see the Opinion as a legal “rite of passage” or “christening” (albeit much of Kosovo’s population are Muslims) as a new State, Kosovo’s fate has more or less been decided last after its UDI on 17 February 2008. With the backing of the United States and a majority of European States, Kosovo has enough recognition and backing to function on the international arena. Further, Kosovo’s admission to various international organisations under an independent name and as an independent entity will further aid its road to becoming a fully fledged and fully functioning member of the community of States.

Kosovo, after so many years of suffering and struggles, has finally become free and independent. And the Court’s Advisory Opinion today marks another step in this process. There is reason to be proud, reason to celebrate, reason to treasure the dignity and privilege of sitting at world meetings as an equal member of the international community. For not all States aspiring to be States can become a State.