What the Kosovo advisory opinion means for the rest of the world.

Position:Proceedings of the One Hundred Fifth Annual Meeting of the American Society of International Law - Discussion
 
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This panel was convened at 9:00 a.m., Friday, March 25, by its moderator, Ralph Wilde of University College London, who introduced the speakers: Marko Milanovic of the University of Nottingham; Anne Peters of the University of Basel; and Qerim Qerimi of the University of Prishtina in Kosovo, and Harvard Law School.

INTRODUCTORY REMARKS BY RALPH WILDE

On February 17, 2008, the "Assembly of Kosovo" declared "Kosovo to be an independent and sovereign state" from Serbia. The Assembly was one of the Provisional Institutions of Self-Government of Kosovo (PISG), which had been created by the UN Interim Administration Mission in Kosovo (UNMIK) through its Constitutional Framework Regulation as a way of enabling local representatives to play a direct role in the governance of the province, under the overall authority of the UN mission.

States were divided on the declaration, with some supporting it, some opposing it, and others refraining from taking a position. As of today, Kosovo has been recognized by 75 of the 192 member states of the United Nations (including three of the five permanent members of the Security Council--France, the United Kingdom, and the United States), including roughly four-fifths of EU member states, two-thirds of OSCE member states, half the Arab League member states, and one-third of the Organization of the Islamic Conference member states. (1) It has also joined the World Bank and the IMF.

Some of the states opposing independence took the view that the declaration of independence was unlawful, that the recognition of it by other states was unlawful, and that Kosovo was not a state. The adoption by the General Assembly of a request for an Advisory Opinion from the International Court of Justice was viewed as a means of vindicating these positions, and the broader political ideas concerning self-determination, secession, and territorial integrity implicated in them.

However, the states objecting to Kosovo's independence were only able to obtain the necessary level of support combined with abstentions within the General Assembly for a question focusing exclusively on the declaration of independence. The court was asked, "Is the unilateral declaration of independence by the Provisional Institutions of Self-Government in Kosovo in accordance with international law?" The terms of the question did not encompass such matters as the legality of the recognition of the declaration or Kosovo's legal status post-independence. This stands in contrast to certain more generalized questions put to the Court by the General Assembly previously, asking it about the "legal consequences" of a particular situation.

The request was made in Resolution 63/3 of October 8, 2008. Seventy-seven states voted in favor, with six voting against, 74 abstaining, and 28 being absent. (2) The Court issued its decision on July 22, 2010. (3)

It might be said that this Advisory Opinion was always going to be of marginal significance because the question put to the Court necessitated a consideration of only a subset of the legal issues implicated in Kosovo's independence declaration. The problem with such an explanation is that even within the constraints of the question, the Court adopted a particularly narrow approach to and offered a partial treatment of the relevant legal issues. Moreover, although the finding on the issue before the Court was minimalist--there were, it turns out, no substantive legal rules applicable to the act whose conformity to international law was being determined by the Court--ironically, the findings on the law the Court had to make to reach this point were relatively broad and, significantly, of important substantive relevance beyond the Kosovo context. In saying little about Kosovo, then, the Court actually said quite a lot about international law more generally.

This panel will offer a discussion of these broader findings, and consider their relevance to other situations, as well as addressing the legal issues relating to Kosovo not dealt with by the Court, including matters of self-determination, the legality of recognition, and the status of Kosovo now. I am delighted to have such a distinguished and expert group with me to engage in this discussion: Marko Milanovic, Anne Peters, and Qerim Qerimi. The format of the panel will be a series of questions put by me to the panelists, which we will work through progressively.

JURISDICTION

RALPH WILDE

Beginning with the Court's exercise of jurisdiction with respect to the Advisory Opinion, the Court found that the request concerned a "legal question." It rejected an objection to this based on the argument that international law does not regulate the act of declaring independence, and affirmed the notion that the existence of political aspects does not deprive the question of its legal character. (4) On the matter of whether the Court, even if possessing jurisdiction, should or should not use its discretion to exercise this jurisdiction, the Court affirmed its earlier finding that there is a presumption in favor of such exercise, which is rebutted only if there are compelling reasons. (5) Several potential reasons here were rejected, in each case with the Court's previous decisions invoked as authorities.

In the first place, the motives of those states supporting Advisory Opinion requests are irrelevant. (6) In the second place, whether or not the Opinion will serve a useful purpose for the organ requesting it is not for the Court to decide. (7) In the third place, it is not for the Court to determine whether the Opinion would have adverse political consequences. (8) In the fourth place, the fact that the situation in Kosovo had been the subject of action by the Security Council, and that the Court, in order to answer the question, would have to interpret and apply Resolution 1244 of the Council, is not a compelling reason for the Court to decline to exercise its jurisdiction with respect to a request by the General Assembly rather than the Council. The Assembly still possessed competence under the Charter with respect to the situation in Kosovo, and the Court had in the past interpreted and applied Security Council Resolutions in both contentious cases and Advisory Opinions provided to the General Assembly. (9)

My question to the panelists is this: Was the Court right to use its discretion to exercise its jurisdiction?

ANNE PETERS

Under Article 65 of the ICJ Statute, the Court "may" render an Advisory Opinion when requested. According to the ICJ's previous case law, it should in principle not refuse to render the Opinion, only if there are "compelling reasons." The two main arguments against the "propriety" of the exercise of the judicial function in this case were that (1) the request in reality served the interests of one state, namely Serbia, and (2) it disturbed the separation of powers between the General Assembly and the Security Council. Because the answer to the request required an interpretation of Resolution 1244, the Court should have only replied if the question had been put by the Security Council.

However, these considerations are not strong enough to rebut the presumption in favor of the propriety; they do not constitute "compelling reasons" for declining to render the Opinion. As for the alleged "usurpation" of the Assembly, a majority of those states present and voting (10) espoused the interests of Serbia by voting in favor of the request (77 states out of 83). The abstentions of 74 states (whose votes do not count under Rule 86 of the rules of procedure of the Assembly) were probably motivated by their desire to remain neutral. Especially those states which had already recognized Kosovo as a state sought to avoid venire contra factum proprium. They abstained because their own prior recognition of Kosovo could reasonably be understood as implicitly acknowledging the lawfulness of the declaration of independence.

Second, Article 12 of the UN Charter and the general policy of ensuring inter-organ balance do not deprive the Court of its jurisdiction. The Security Council has no exclusive, but only a primary competence to maintain international peace and security. The General Assembly is also competent in this regard, and is in particular endowed with the competence to request an Advisory Opinion, on equal footing with the Council. The necessity for the Court to interpret a Security Council resolution is in no way a barrier to exercise its jurisdiction. Because the Security Council is subject to the rule of law, a Security Council resolution is not only a political document but also a legal text. Interpreting such texts is a legitimate function to be performed by courts.

A refusal to render the Opinion would have undermined the constitutional function of the World Court. Exactly because of the implications for the maintenance of peace and security, the Court was well-guided to render the opinion.

MARKO MILANOVIC

Let me first make a brief disclaimer: I participated in the case as an adviser to the Serbian team, and therefore everything I say is suspect. And of course whatever I say today is my opinion alone.

As for the question, the Court was, I think, right. These issues of jurisdiction and discretion are generally very tedious, both academically and during argument in the case. At the time, the argument that the Court lacked jurisdiction to render the Opinion or that it should exercise its discretion not to give it seemed bound to fail. The Court has never refused to answer a question on the basis of its discretion; when we say that the Court may give an Advisory Opinion, the Court does not interpret this discretion in the same way in which, say, the U.S. Supreme Court has discretion whether or not to grant certiorari in a case, i.e., a total liberty whether or not to do so. Rather, the Court sees discretion as essentially a safeguard against abuse of process.

In fact, though, the opinion almost turned on the discretion...

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