The International Court of Justice's Advisory Opinion on Kosovo's declaration of independence: an exercise in the art of silence

Abstract

On 22 July 2010 the International Court of Justice (ICJ) presented its advisory opinion on the accordance of Kosovo's unilateral declaration of independence (UDI) with international law. The Court's opinion marks further milestone in the international community's engagement with Kosovo and the so-called status question. It remains to be seen, however, whether the present opinion will go down in the history of the ICJ as groundbreaking decision or, rather, an exercise of mechanical jurisprudence. In the view of this author, the substance of the opinion is, for the most part, neither spectacular nor particularly controversial. Most notably, assertions according to which the opinion provides a guide and instruction manual for secessionist groups the world over, seem greatly exaggerated. The ICJ deliberately leaves open whether Kosovo's UDI has in fact led to the creation of new state. Likewise, it does not take any position on the legality under international law of the acts of recognition hitherto extended to Kosovo. In the end, the Court simply confirms that general international law is largely indifferent towards attempted secessions; notwithstanding the existence of narrow zones of law, within which secession is either prohibited or expressly permitted. Unfortunately, the Court does not provide any guidance on how to approach the crucial question of whether – beyond the well established right to independence for colonial peoples and peoples subject to alien subjugation, domination and exploitation – international law positively permits secession in certain (exceptional) situations by conferring right upon majority residing within definable territory to separate from the state to the jurisdiction of which that territory belongs. Thus, what we are eventually left with is further affirmation – this time by the ICJ – that, from the perspective of international law, secession is for the most part still matter of fact rather than law.