Vol. 1, No. 19 (November 1, 2008)

The Kosovo question

Guglielmo Verdirame, Dr.
Lecturer in Public International Law
University of Cambridge
On 8 October 2008, the General Assembly of the United Nations adopted resolution 63/3 requesting the International Court of Justice to “render an advisory opinion on the following question:  Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?” 
The legal basis for the advisory jurisdiction of the International Court of Justice is in Article 96 of the United Nations Charter, which empowers the General Assembly and the Security Council to request opinions from the Court “on any legal question,” while other organs of the UN and specialized agencies may do so only in respect of “legal questions arising within the scope of their activities” when “so authorized by the General Assembly.”  Chapter IV of the Statute of the International Court of Justice and Articles 102-109 of its Rules contain specific provisions on advisory proceedings. 
Since 1946 the Court has rendered 25 Advisory Opinions, including some on important political issues such as South-West Africa (Namibia); Western Sahara; the legality of nuclear weapons; and the consequences of the Wall built by Israel in the Occupied Territories. 
Dismissing the relevance of these pronouncements by the Court would be uninformed – and ill-advised.  However justified the criticism that the enforcement of international law is in some cases exceedingly slow, a pronouncement of the International Court of Justice becomes an inescapable part of the political landscape.  It may not be given immediate effect, but a definitive political solution, if and when it is found, is not going to renege on it: South Africa’s attempt to create a fait accompli in Namibia failed; Morocco’s continued occupation of Western Sahara is still unrecognized, and diplomatic initiatives to end the stalemate have always proceeded on the basis of the legal findings of the Court; and the Israeli Wall has come under attack in Israel’s own courts. 
There can be little doubt that, because of the legal and political significance of the Kosovo question, the Court’s Advisory Opinion will become a landmark in modern international law.  States and international organizations will seek permission to submit written statements to the Court, possibly in even greater numbers than for the Advisory Opinion on the construction of the Wall by Israel in the Occupied Territories.  Strictly speaking, the Court is not obliged to grant permission to intervene to any state or international organization that wishes to do so, but its practice indicates that, particularly in a case of such great resonance and significance as Kosovo, it will accede to any such request. 
The Kosovo Opinion has the potential to affect any state confronting a secession, although it is probable that the Court will try to avoid a definitive ruling on the law governing secession.  States intervening in favor of the legality of the Kosovo declaration are likely to underplay its impact on other secessionist claims, emphasizing its exceptional and even unique nature.  Some of those intervening against it may still opt for a similar strategy, encouraging the Court to adopt a very narrowly-focused pronouncement.  Other states may however submit that the similarities between Kosovo and other secessions are such that any answer given by the Court will have wide and dangerous repercussions the world over – a risky strategy, perhaps, the aim of which would be to frighten the Court into a conservative position. 
Interestingly, the question itself mentions neither secession nor recognition by other states; nor does it more generally request the Court to consider the legal consequences of the secession.  It focuses instead on the compatibility with international law of the declaration of independence by the “Provisional Institutions of Self-Government of Kosovo.”  The premise of the question is that those Provisional Institutions were an international legal person subject to international rights and duties.  The determination of the specific rights and duties of such a sui generis entity is not however an easy task, and much argument is likely to turn on this point.
A variety of approaches to the legal question put to the Court in this case is thus possible.  No doubt many states are at present reflecting on it, receiving advice from lawyers in their foreign ministries and outside in order to weigh the pros and cons of making a written submission to the Court, and, if so, to decide which particular submissions would accord with foreign policy and national interest.
Is there a risk that the Opinion of the International Court of Justice could have a negative impact on Azerbaijani interests in Nagorno-Karabakh?  The risk is there, but probably it is not significant.  The Court is likely to be very sensitive to states’ concerns about secessions, and keen to preserve the principle of territorial integrity.  Nevertheless, much depends on how the relevant parties choose to articulate their case, and what written submissions are received by the Court.  Moreover, while the risk may be limited, what is at stake is of fundamental importance.