George Kennan says in American Diplomacy that “the national state pattern is not, should not be, and cannot be, a fixed and static thing.” Kennan believed that the general freezing of the map that persisted (excepting two major exogenous shocks) after World War II was not a good thing. He argued that a body of laws should not set the standards for statehood. Kennan said that despite their claims to the contrary, states would make their decisions to recognize new states, and almost all other decisions, based on national interest.
It is against the backdrop of an all too static map that the International Court of Justice (ICJ) issued its advisory opinion on Kosovo’s 17 February 2008 declaration of independence. The importance of this case is not found in the text of the decision, though I will discuss the decision shortly. The importance is in how both de facto states and recognized states act on this decision.
The Peace Palace, seat of the International Court of Justice, in The Hague (UN).
In my view, this advisory opinion will not affect states’ policies toward Kosovo and will not affect Russo-American relations. I believe that Russia will ultimately recognize Kosovo as part of an exchange for US recognition of one or both of the Russian-backed breakaway regions in Georgia. Nevertheless, this decision is one of a very few recent cases on issues related to new statehood and thus, despite its narrow scope, it is of much interest to me and to the handful of other academics who have a specialty in diplomatic recognition.
The reason for its prima facie unimportance is due to the extremely narrow scope of the decision. The reason why it could end up important anyway, is how it is interpreted by de facto states and existing states. If it is interpreted as meaning that any declaration of independence is legal and that states should recognize other states that declare independence, it will not matter that the actual opinion says no such thing. Alternatively, if the opinion is applied carefully, it will merit one or two sentences in the introduction of a relatively obscure academic’s dissertation.
It is inarguable that many states believed that the decision was important. Thirty-six states provided first-round written statements to the ICJ, fourteen states provided follow up statements, and twenty-eight states argued before the court (excluding the representatives from Kosovo). Many of these states have no clear stake in this particular region, and some do not even have active separatist movements to worry about. Those states that do have separatist movements fear that the decision will be interpreted as giving the go-ahead for breakaway regions or de facto states to declare independence.
The advisory opinion is quite clear and any broad interpretations would likely be deliberate, or out of ignorance. The ICJ found that Kosovo’s 17 February 2008 declaration of independence did not violate international law. That is all. It does not say that all declarations of independence do not violate international law. It does not set a precedent. The ruling explicitly does not have any bearing on the question of recognition and/or statehood. It does not force Russia, Spain, or any other state to recognize Pristina (and not Belgrade, or the United Nations Interim Administration Mission in Kosovo (UNMIK)) as sovereign power in Kosovo.
The court reasoned that there was no applicable law explicitly barring a declaration of independence (as there is regarding Northern Cyprus, for example). It also found that the political process towards negotiating a final status for Kosovo, as is called for in United Nations Security Counsel Resolution 1244, had ended. Finally, the court determined that the declaration was not made in a UN sponsored circumstance and so did not violate UNMIK’s mandate of neutrality.
The breakdown of the 10-4 decision by nationality of the judges is not surprising for followers of the often-partisan United States Supreme Court and/or world politics. The four dissenters were judges from Russia, Morocco, Slovakia, and Sierra Leone. Judge Mohamed Bennouna’s (Morocco) dissent posits four major distinct arguments and a handful of minor arguments. Most egregiously, he argues that the court should not guarantee that a fait accompli would be validated. However, historically, fait accomplis are often used as a basis for recognition of new states. The dissent feels almost desperate, but then Morocco might have the most at stake in this decision. The Russian judge took a more focused approach and thus mounted a more effective, if ultimately unconvincing, case against the opinion (all of the opinions can be downloaded here).
The court found that the context of a declaration of independence and who makes the declaration are key factors in the declaration’s legality. The Kosovo case differs from other potential cases in one major and one less major way. Most importantly, Serbia lost its sovereignty over Kosovo as a result of the war crimes committed in that territory. There is a growing body of scholarly work, which the ICJ and International Criminal Court (ICC) are free to consider in opinions (the ICJ does in this case), that argues that states can lose their sovereignty over a territory if they have committed gross human rights violations. The international community, through the International Criminal Tribunal for the Former Yugoslavia (ICTY), prosecuted Serbian war criminals for their crimes. There have not been any Georgians prosecuted for such crimes in South Ossetia or Abkhazia. The political contexts are distinct.
The less important way that Kosovo is unique is that the international community, represented by the Special Representative of the Secretary-General for Kosovo, who had control of UNMIK and almost absolute power over Kosovo, governed the territory. It was not largely supported by one state (the record of Kosovo’s success in achieving recognition from other states vs. the breakaway Georgian territories’ success demonstrates this difference). This situation makes Kosovo more comparable to East Timor, which fought against the Indonesian military and was granted autonomy and UN administration after Indonesian human rights violations against the East Timorese, than to the aforementioned territories.
Ultimately, however, the fact that the Georgian breakaway regions lack the legal legitimacy to secede does not mean that they will not be widely recognized. The reality on the ground certainly plays a role, as do traditional great power politics. That is why the fate of other de facto states and secessionist movements does not depend on this ICJ advisory opinion; it depends on cables, communiqués, cooperation, and negotiaton between the world’s major powers.
My thanks to Dr. Amanda Toronto for her valuable comments on a draft of this post.
The ICJ opinion is indeed very narrow as the Court says it has been asked only to say whether such a Declaration of Independence is against the law – not whether the Declaration has any effect.
The Court considers that the Declaration doesn’t break any law, but doesn’t say that Kosovo is independent as a result of this Declaration.
This decision certainly left me in the dark as to the legality of regions/groups of people unilaterally deciding to go their own way, and that is surely the guidance that’s people had been hoping for.
I would like to see suggestions for background reading in this and other posts since many readers are probably interested novices in these matters and need more context. I believe this blog is unlike most others in that it truly has an educational and not a partisan mission.
Thank you for this post, Jonathan Cristol.
On a technical note, I use dial-up, and, until today, never had a problem opening Mr. Mead’s blog. Three minutes, not the usual ten seconds.
Also, the format is different – where the text spreads full screen left to right, with none of the TAI formatting. When I click on the comments to getto an individual post, all is well.
Just thought you should know in case something actually had changed at your end.
Not everyone has access to high speed.
In my village, 22 miles from Amherst, Massachusetts, the Cellphone Civil War still simmers. Rumor has it that cable is migrating north, but this is a village of readers.
It is important to have blogs of this quality accessible to dial-up connections.
The Moro Islamic Liberation Front (in the Southern Philippines) in an editorial on their webisite
http://www.luwaran.com/index.php?option=com_content&view=article&id=1489:a-pandoras-box&catid=editorial&Itemid=274
concluded:
The case of the MILF-led sovereignty-based struggle in Mindanao is not one that is not fascinated by the turn of event in Kosovo. It is enriching, as it is widening the theatre of the debate. Armed with diminishing valid arguments on the basis of international law and current diplomatic practices, the Manila government would likely dig deep into its domestic laws, in addition to brute force, to expunge or suppress valid political aspirations of peoples such as those of the Moros and indigenous people in Mindanao. But in the long run, such approach will have more negative side effects than what it can achieve for the proponent.
I visit this URL to for the sparkling prose and brilliant insight of my favorite living historian and instead there’s this grad school wonk-wank, a compendium of conventional wisdom and pedestrian tower-think — no one living in the real world thinks the Hague has any relevance to world affairs, any more than the UN.
When’s Reid back?
What has become our mentor, WRM? Is he safe or in danger? When will hear from him?
To answer a couple of questions:
John Barker,
I very much like your idea for background readings to put things in context and will do that in the future, where appropriate. In this case it is difficult because the best books on the subject are out of print and very expensive (M.J. Peterson’s Recognition of Governments); or are found in international law journals in the 1930s and 1940s. There is a new book on the subject by Marcus Fabry, which is so new I have yet to read it, that may be interesting.
To answer your other question. Walter is safe and well. He returns to the United States on Monday so you only have to put up with me for one more post.
Cromwell,
I suspect you don’t know too many people in the Balkans, for whom this decision was greatly important. And, as I said in the post, it was taken seriously enough that dozens of states gave formal testimony on the subject. Of course, in the end, I say it doesn’t matter, just as you do.
Hugh,
Interestingly enough, the precedent is that once a secessionist group is strong enough to manage its own affairs (and looks like it might win a civil conflict), it is able to declare independence (so long as, like Kosovo, it promises to live up to the obligations the rebels/secessionist/whatever undertook). That this is so vague is precisely why a clear decision on the matter would be useful. This just didn’t happen to be that decision.
All the best,
Jonathan Cristol
Thank you Mr. Cristol
It seems to me that the only question that the law should ask is does the government control the country i.e. is it sovereign or not. To put it in other words, if the country can fullfill its international obligations, then it is sovereign and should be so recognized at law. It not, then not. Thus Hamas is-was sovereign over part of the teritory of lebanon and the government of lebanon was not. Thus the borders should have been redrawn. Then Hamas could be held to its obligations in international law.
[...] opinion on Kosovo: How it does and does not matter. The American Interest Online. Retrieved from http://blogs.the-american-interest.com/wrm/2010/08/09/the-icj-advisory-opinion-on-kosovo-how-it-does... Dyer, G. (2010, August 1). Probable catalyst for violence. The Japan Times. Retrieved from [...]
[...] ICJ Advisory Opinion on Kosovo: How It Does and Does Not Matter”, The American Interest Online, http://blogs.the-american-interest.com/wrm/2010/08/09/the-icj-advisory-opinion-on-kosovo-how-it-does... (last accessed 20/08/10) Mancini, S. (2008). Rethinking the boundaries of democratic secession: [...]