Title:The Kosovo Advisory Opinion from the Standpoint of General International Law
Date:29 Sep 2010
Author:Gazzini, Tarcisio
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On 22 September, the Amsterdam Center for International Law held a discussion on some of the controversies triggered by the International Court of Justice’s Kosovo advisory opinion. This commentary is part of a series discussing the opinion and its possible implications for Kosovo’s legal status as well as the added value of the opinion for the development of international law and the settlement of international disputes.

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Tarcisio Gazzini*

This short note discusses, from the standpoint of general international law, the declaration of independence as part of the process leading to the creation of a new State and the applicability to non-State actors of the obligation to respect the territorial integrity of States. It focuses on paragraphs 79 and 80 of the advisory opinion recently delivered by the International Court of Justice in relation to the declaration of independence made by Kosovo.

In paragraph 79 the Court makes two important points. A third one, which I am not going to discuss here, relates to the developments of international law during the second half of the 20th Century and the emergence of a rule creating a right to independence for the people of non-self-governing territories and peoples subject to alien subjugation, domination and exploitation.

The first point is pretty obvious and purely descriptive: some declarations of independence since the 18th Century resulted in the creation of new States; other did not. The process leading to the creation of new States is normally ignited by a declaration of independence. Such act, however, is neither necessary nor sufficient. The outcome of the declaration of independence, and in particular the possible creation of a new State, is a matter of fact (see, for instance, Opinion 1 delivered by the Arbitral Commission established by the then European Communities in the context of the Yugoslav crisis). This is nothing but an application of the principle of effectiveness that permeates the entire international legal order. A State comes into existence when an independent government effectively and permanently exercises its authority over a population and a territory.

The second point concerns the existence of an international rule prohibiting the making of declaration of independence. The Court held that such a rule has not emerged. It did not engage in a full discussion of the relevant State practice and opinio juris. Rather it limited itself to noting that State practice has not been uniform and general enough to affirm the emergence of such a rule.

However cursory, the finding is correct. The history of the United States is particularly interesting as it confirms the incoherence of State practice. In 1776 the thirteen colonies formally declared their independence from the British Empire and were able to establish an independent and effective government. France rapidly reacted to the new factual situation, and concluded with the new government a treaty of amity and commerce. Needless to say, the British government considered the declaration of independence to be unlawful and the conduct of France to be contrary to international law.
Less than 90 years later, in 1861, the Southern States declared their independence from the rest of the United States. The declaration was followed by a long and deadly civil war. The outcome of the conflict, however, was radically different from the war of independence fought by the thirteen colonies, as the seceding government was defeated and the United States territorial integrity preserved.

Once it is accepted that international law does not prohibit the making of a declaration of independence, it must be noted that, at any rate, such a prohibition would hardly have any impact on the behaviour of the entities that may contemplate making one. Such an act is already normally considered a serious criminal offence by the State concerned and is likely to meet the firm resistance of the same State, if necessary by military means.

The crux of the matter is not whether international law prohibits a declaration of independence made by an entity which may develop in due time into a State, but whether international law imposes upon other States any obligations in relation to a declaration of independence. These obligations may include the obligation not to recognize the new entity, the obligation not to support the new entity and so on. In other words, international law is more concerned with the consequences of declaration of independence for other States, rather than on the lawfulness of such a declaration.

From this perspective, States have clearly preferred to keep the question within the realm of politics and refrained from assuming any international obligations related to the making of the declaration of independence. This may be not the case if the declaration of independence is followed by the use of military force against the concerned State.
This brings us to the finding made in paragraph 80 of the advisory opinion that the principle of territorial integrity is confined to the relations between States. In order to refute the argument made during the proceedings that the prohibition of declarations of independence is implicit in the principle of territorial integrity, the Court moves beyond the declaration of independence, briefly discusses the general prohibition on the use of force existing under the United Nations Charter and customary international law, and finally – without offering any explanation -  indicates that only States are subject to such a prohibition.

It is argued that the finding is both unnecessary for the purpose of this advisory opinion and possibly misleading as a matter of general international law. It is unnecessary as the Court could have simply built on its previous findings to hold that a declaration of independence is by definition contrary to the territorial integrity of the State concerned. Indeed, the act is deliberately aimed at affecting the territorial integrity of the concerned State.

The finding is also misleading as it conveys the idea that entities other than States are not bound by the general prohibition on the use of force. Here the Court is following its own narrow approach on the right to resort to force in self-defence. In the Construction of the Wall opinion, it held that Article 51 can be invoked only by a State with regard to other States.
It is unfortunate that the Court failed to distinguish the question of whether the declaration of independence was consistent with international law from the question of whether the rules on the use of force apply to the authors of such declaration. The two questions are independent. The first one falls within the scope of the request from the General Assembly and is capable of a clear answer. The second one, on the contrary, goes beyond the competence of the Court and has proved been intractable for several reasons, including the controversial legal status of the entity resorting to force and the rules on neutrality. Not surprisingly, the Court refrained from discussing the international rules applicable to such entities whether they possess international legal personality or not.

A legal paradox lies behind the question of the application of the general prohibition on the use of force to the entity seeking independence. The process of independence is normally an incremental one and goes through several stages. It starts with internal disturbances that are governed by domestic law and by some humanitarian rules if the hostilities reach the threshold of a non-international conflict. During the conflict, the insurrectional movement may become a subject of international law. Determining when this effectively has occurred may be particularly problematic as it requires an assessment of the independence and effectiveness. However, from this moment the relationship between the parties is governed by international law. It remains to be seen whether these rules include the prohibition on the use of force in spite of the ongoing armed conflict and whether such a prohibition would apply also to the State concerned.
By way of conclusion, whereas the findings in paragraph 79 are firmly based on and respectful of State practice, the final finding of paragraph 80 remains at once unnecessary and rather controversial. This is probably the only paragraph of the advisory opinion where the Court clearly went beyond what had been asked by the General Assembly. The answer it has provided is superficial and ultimately unconvincing, if not misleading.

* Tarcisio Gazzini, Associate Professor of International Law, Department of Transnational Legal Studies, Faculty of Law, VU University Amsterdam. He has previously taught at the Universities of Padova (Italy) and Glasgow (United Kingdom). He is a member of the Committee on non-State actors recently established by the International Law Association.

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