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Does Kosovo Lie in the Lotus-Land of Freedom?

  • ANNE PETERS
Abstract

This paper finds that the ICJ's Kosovo Advisory Opinion reached the right result, but in a methodologically not fully satisfactory way. It examines five aspects that underpin the opinion: the temporal (purely ex post) perspective; the Court's equation of legal conformity and non-prohibition and the idea of a deliberate silence of international law; the applicability of the Lotus principle that was evoked by numerous states in the proceedings; the structural analogies between international law and private, criminal, or public law; and the oscillation between legal positivist and jusnaturalist paradigms. Finally, the paper argues in favour of procedural requirements for the international lawfulness of secession, and claims that this approach is compatible with the findings of the Advisory Opinion.

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1 Question reproduced in ICJ, Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion of 22 July 2010, 2010 ICJ Rep., para. 1 (in the following: Kosovo AO).

2 Ibid., para. 84.

3 Ibid., para. 79.

4 Ibid., para. 79.

5 Ibid., para. 81.

6 Ibid., para. 84: ‘[G]eneral international law contains no applicable prohibition on declarations of independence. Accordingly, . . . the declaration of independence of 17 February 2008 did not violate general international law.’

7 Ibid., para. 119.

8 Ibid., para. 114 (emphasis and brackets added).

9 Ibid., para. 118.

10 Ibid., paras. 120–121.

11 Ibid., paras. 102–109.

12 The ICJ contrasted the question laid before it with the one posed to the Canadian Supreme Court in 1998. In that case, the question was whether there was a ‘right to effect secession of Quebec from Canada’.

13 ICJ, Kosovo AO, para. 56.

15 ICJ, Kosovo AO, para. 118: ‘[T]he Court cannot accept the argument that Security Council resolution 1244 (1999) contains a prohibition.’

16 The treatment as identical issues is most visible in the headings before paras. 101 and 110. The heading 2 is ‘The question whether the declaration of independence is in accordance with Security Council resolution 1244 (1999) and the measures adopted thereunder’. Subheading (b) then is ‘The question whether the authors of the declaration of independence acted in violation of Security Council resolution 1244 (1999) or the measures adopted thereunder’.

17 The treatment of conformity and lawfulness as synonymous is visible in heading IV, ‘The Question Whether the Declaration of Independence Is in Accordance with International Law’ (before para. 78), and in para. 78 itself, asking for the ‘lawfulness’.

18 ICJ, Kosovo AO, para. 56.

19 ICJ, Kosovo AO, paras. 84, 119, 120, 121, and 122.

20 Ibid., paras. 55–56 and 83.

21 Ibid., Declaration of Judge Simma, para. 9.

23 For the reasons stated in subsection 3.4 below.

24 PCIJ, SS Lotus Case (France v. Turkey), PCIJ Rep., (1927) Series A No. 10, at 18–19.

25 Austria, written statement of 16 April 2010, paras. 22–23; Denmark, written statement of 17 April 2010, ses. 2.2., at 3.

26 Germany, pleadings (Wasum-Rainer), CR 2009/26 of 2 December 2009, para. 22 (at 29); Croatia, pleadings (Andreja Metelko-Zgombić), CR 2009/29 of 7 December 2009, at 52; Denmark, pleadings (Thomas Winkler), CR 2009/29 of 7 December 2009, at 69.

27 Serbia, written statement of 17 April 2010, paras. 1017–1032, at 350–6.

28 I leave aside the problem that under the (both national and international) rule of law, this idea has become untenable.

29 ICJ, Kosovo AO, para. 89.

30 Ibid., para. 105.

31 The idea that secession is neither allowed nor prohibited by international law is widespread. Its principal justification is that the principle of territorial integrity is directed at the outside, at third states. The Kosovo AO espouses this view: ‘Thus, the scope of the principle of territorial integrity is confined to the sphere of relations between States’ (para. 80). But this statement seems hardly in conformity with recent practice of states and international organizations. See, on that issue, Olivier Corten, in this issue.

32 See in more detail A. Peters, ‘Transnational Law Comprises Constitutional, Administrative, Criminal, and Quasi-private Law’, in P. Bekker (ed.), Making Transnational Law Work: Liber Amicorum Detlev Vagts (2010), 154–73.

33 T. Holland, Studies in International Law (1898), 152.

34 See generally T. Christakis, ‘Les “circonstances excluant l'illicéité”: une illusion optique?’, in T. Christakis, Droit du pouvoir, pouvoir du droit: Mélanges offerts à Jean Salmon (2007), 223–70, finding that most of the circumstances enumerated in the ILC Articles do not exlude illegality, but rather exclude or only temper responsibility.

35 See in this sense also ICJ, Kosovo AO, declaration of Judge Simma, para. 3.

36 A. Peters, J. Klabbers and G. Ulfstein, The Constitutionalization of International Law (2009).

37 Cf. Prosecutor v. Milan Milutinović, judgement of the trial chamber of 26 February 2009, finding mass killings and sexual assaults motivated by ethnic hatred, and the destruction of religious sites, committed by Serbs against Kosovars, ICTY, IT-05–87 T.

38 T. Hobbes, A Dialogue between a Philosopher and a Student of the Common Laws of England (1681), ed. by J. Crosey (1971), at 55: ‘It is not Wisdom, but Authority that makes a Law.’

39 G. Abi-Saab, Cours général de droit international public (1987/VII) 207 Recueil des cours de l'Académie de la Haye 9, at 68.

40 Note that there is not only a choice between law and morality to make. Even if there is no rule on secession in international law, the issue may still be regulated by domestic law.

41 See above, Subsection 3.3. In contrast, Judge Cançado Trindade's separate opinion displayed some affinity with a jusnaturalist approach.

42 Incidentally, the PCIJ in Lotus mentioned the ‘teachings of publicists’, but left expressly apart ‘the question as to what their value may be from the point of view of establishing the existence of a rule of customary law’. PCIJ, SS Lotus Case (France v. Turkey), supra note 24, at 26.

43 Diagnosing and supporting remedial secession (as a rule of positive international law derived from the savings clause of the Friendly Relations Declaration), C. Tomuschat, ‘Secession and Self-determination’, in M. Kohen (ed.), Secession: International Law Perspectives (2006), 23, at 42: ‘[R]emedial secession should be acknowledged as part and parcel of positive law, notwithstanding the fact that its empirical basis is fairly thin. But not totally lacking.’ See also T. Schweisfurth, Völkerrecht (2006), at 382; M. Suksi, ‘Keeping the Lid on the Secession Kettle: A Review of Legal Interpretations Concerning Claims of Self-Determination by Minority Populations’, (2005) 12 IJMGR 189, at 225: ‘Unilateral secession from an existing State is not supported by public international law except in some very special circumstances that, against the background of the solutions in situations like Kosovo and Chechnya, are almost unlikely to materialise’ (emphasis added). See the wealth of references to numerous eminent authorities, including Karl Doehring, Yoram Dinstein, Hurst Hannum, P. H. Kooijmans, Daniel Thürer, and Luzius Wildhaber, in A. Tancredi, ‘A Normative “Due Process” in the Creation of States through Secession’, in Kohen (ed.), supra, at 175, note 13.

44 In their entire history, the PCIJ and the ICJ have extremely rarely, and only summarily, referred to teachings, doctrine, or the opinion of writers (see the references in A. Pellet, ‘Article 38’, in A. Zimmermann et al. (eds.), The Statute of the International Court of Justice (2006), 677, at 791, para. 321). This does not mean that legal doctrine is not being taken into account. The lack of explicit references rather indicates that the Court prefers not to base its authority on scholarly writing, or it might simply show that the Court (or the majority of the judges) does not find existing scholarship sufficiently convincing. Both could have been the case in the Kosovo advisory proceeding. Clear support for remedial secession was expressed only by Judge Yusuf, sep. opinion, paras. 11–16.

45 ICJ, Kosovo AO, para. 81.

47 J. A. Frowein, ‘De facto Regime’, Max Planck Encyclopaedia of Public International Law (www.mpepil.com), paras. 4–5; A. Randelzhofer, in B. Simma (ed.), The Charter of the United Nations: A Commentary (2002), Vol. I, Article 2(4), para. 29; R. Kolb, Ius contra bellum: Le droit international relative au maintien de la paix (2009), 247–50. This view relies on GA Res. 2625 (XXV) of 24 October 1970, which states that ‘[e]very State likewise has the duty to refrain from the threat or use of force to violate international lines of demarcation, such as armistice lines, established by or pursuant to an international agreement to which it is a party or which it is otherwise bound to respect’. See also Eritrea/Ethiopia Claims Commission partial award, Jus ad bellum: Ethiopia's claims 1–8, of 19 December 2005, para. 10, stating that the non-application of the prohibition on the use of force to a boundary dispute ‘would create a large and dangerous hole in a fundamental rule of international law’. However, the situation in Eritrea/Ethiopia was not identical to the case of Kovoso, because Eritrea was, at the time of the armed conflict of 1998 to which that award relates, already an independent (and recognized) state. At that time, not the existence of Eritrea as a state, but only the exact location of the boundary was controversial.

48 Independent International Fact-Finding Mission on the Conflict in Georgia, report of September 2009 (‘Tagliavini-Report’), Chapter 6, at 239–41 (www.ceiig.ch/Report.html). The report relied primarily but not exclusively on contractual prohibitions of the resort to military force by the sides in the armed conflict between Georgia and Abkhazia and South Ossetia.

49 See, e.g., the Opinion No. 4 of the Badinter Commission on Bosnia–Herzegovina, which required a referendum as a precondition for recognition by the EC (repr. in (1992) 31 ILM 1501–3). In scholarship A. Peters, Das Gebietsreferendum im Völkerrecht (1995); Tancredi, supra note 43, at 190–1. See in that sense also the written statement by Switzerland in the Kosovo proceedings, of 17 October 2008, paras. 69–80.

50 O. Corten, ‘Déclarations unilaterales de l'indépendance et reconnaissances prématurées: Du Kosovo à l'Ossétie du sud et Abkhazie’, (2008) 112 RGDIP 723, at 747–8.

51 Report of the Secretary General to the Security Council of 3 January 2008, UN Doc. S/2007/768, para. 3.

52 Judges Bennoua, Keith, Skotnikov, and Sépulveda-Amor.

53 See above, section 4.

54 Cf. ICJ, Kosovo AO, declaration of Judge Simma, para. 7.

55 Cf. UN GA Res. of 9 September 2010 (UN Doc. A/64/L.65/Rev.1), a consensus resolution taking note of the Advisory Opinion, and welcoming a dialogue between the parties.

* Prof. Dr. iur., LL M (Harvard), University of Basel, Switzerland []. The author thanks Olivier Corten and Théodore Christakis for valuable criticism of previous versions of this text.

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