The 2010 advisory opinion on Kosovo's unilateral declaration of independence from Serbia
is one of the most important cases ever brought before the International Court of Justice.
However, in the decade since it was delivered, it has been widely misinterpreted.
In this video, I'm going to take a look at the opinion
and analyze exactly what it did and didn't say about secession.
In doing so, I'll also explore something that's confused me for quite a while:
did Serbia actually ask the wrong question?
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Hello. My name is James Ker-Lindsay.
Welcome to 'Independent Thinking'.
A channel dedicated to international relations, statehood, independence and the origins of countries.
Kosovo's declaration of independence from Serbia in 2008 was one of the most high-profile cases
of secession in modern international politics.
As I've noted in other videos, the right of self-determination leading to independence had come
to be understood as applied to cases of colonization and external occupation.
It didn't apply to minorities within states unless permission was granted by the so called 'parent states'.
And yet Kosovo's secession challenged these long-standing positions.
Here was a case that could not be considered to meet either criteria
of colonization or foreign military occupation.
And yet, despite this, the United States, Britain, France and many other Western countries nevertheless
decided to recognize Kosovo as a sovereign independent state
- even though Russia, China and many other countries around the world refused to do so.
In light of the controversy surrounding Kosovo's secession, Serbia's decision to refer the question
of the declaration of independence to the International Court of Justice,
the principle judicial organ of the United Nations, the world's highest authority on matters of international law,
was hugely significant.
However, the Court's eventual opinion on the matter was in fact a finely balanced document that appeared
to be designed to steer a political course as much as a legal one.
Indeed, it was just as important for what it didn't address as what it formally stated.
So, what exactly did the court say?
First of all, it's important to briefly cover the background of the case.
As with any dispute, the background to Kosovo is long and highly contested.
However, the story really starts with the collapse of Yugoslavia.
Predominantly inhabited by ethnic Albanians, Kosovo was an autonomous province of Serbia
within federal Yugoslavia until its autonomy was abolished by the Serbian government in 1989.
As Yugoslavia disintegrated at the start of the 1990s,
Kosovo called to be given the right of independence alongside the six republics in Yugoslavia.
However, this was rejected by Serbia and the wider international community.
As a result, a guerrilla campaign emerged to fight for statehood.
In 1999, following an escalation of fighting and a series of atrocities against Albanian civilians,
NATO launched a two and a half month military campaign against Serbia,
which was eventually forced to withdraw from the province.
Although Kosovo formally remained under Yugoslav sovereignty according to the terms
of UN Security Council Resolution 1244, it was placed under UN administration
pending a final agreement on its future status.
These talks on Kosovo's status eventually started in early 2006.
While Serbia offered Kosovo extensive autonomy, Kosovo's leaders insisted on full independence.
By late 2007, it was clear that no agreement would be reached.
Accepting that Kosovo would not agree to be under Serbian sovereignty,
and fearing that a breakdown of talks could be highly destabilizing, the United States, Britain and France
agreed that there was no choice but to let Kosovo declare independence.
However, due to opposition from Russia and China, which backed Serbia,
it was not possible to get a UN Security Council resolution endorsing this independence.
On 17 February 2008, Kosovo unilaterally declared independence.
Almost immediately, the new Republic of Kosovo was recognized by the United States and most
of the European Union as well as other key international partners such as Japan, Canada and Australia.
For its part, Serbian began a major campaign to prevent countries from recognizing Kosovo.
As a part of this campaign, the Serbian Government decided to obtain an advisory opinion
on the act of secession from the International Court of Justice.
To do this, it needed a resolution from the UN General Assembly.
Although Serbia's efforts to refer the matter to the ICJ was initially opposed by the United States,
Britain and France, they realized that it would be wrong to be seen to be preventing Serbia from pursuing
a peaceful legal route to address the situation.
On 8 October 2008, the General Assembly passed resolution 63/3 by 77 votes in favor to 6 against
with 74 abstentions.
This put the following question to the Court:
"Is the unilateral declaration of independence by the provisional institutions of self-government
of Kosovo in accordance with international law?"
The court proceedings got underway in early 2009 with written submissions.
This was then followed by oral statements.
From the start, the case attracted unprecedented international interest.
Indeed, it marked the first time in the history of the Court that all five permanent members of the Security Council
took part in a case.
In actual fact, it was the first time China had ever taken part in an ICJ case.
Other countries that chose to take part included Argentina, Brazil, Burundi, Cyprus, Denmark, Ireland,
Jordan, the Maldives, Romania, Saudi Arabia and Vietnam - to name just a few.
On 22 July 2010, the Court presented its opinion.
In essence, the ruling could be broken down into four parts.
As is often the case, the first thing the Court decided was whether it had the jurisdiction to hear the case
and whether it should actually do so.
The unanimous view was that it did have the jurisdiction.
It then decided by votes of 9 to 5 that it should comply with the request for the opinion.
Turning to the main issue, the Court decided by 10 votes to 4 that, except in cases where
it been specifically outlawed, for example by a UN Security Council resolution,
general international law in fact contained no applicable prohibition on declarations of independence.
Moreover, having considered the specific circumstances of the case,
including whether Resolution 1244 specifically prohibited the move,
the Court decided that Kosovo's declaration of independence did not violate general international law.
However, and crucially, the Court also made it clear that its opinion was solely focused
on the declaration of independence.
As noted in paragraphs 82 and 83 of the opinion,
it didn't address the broader issues of self-determination or even remedial secession.
Even more importantly, it had deliberately avoided taking a position on Kosovo's statehood.
As the justices stated in paragraph 51:
"the question posed by the General Assembly is clearly formulated. The question is narrow and specific.
It asks for the Court's opinion on whether or not the declaration of independence is in accordance with international law.
It does not ask about the legal consequences of that declaration.
In particular, it does not ask whether or not Kosovo achieved statehood.
Nor does it ask about the validity or legal effects of the recognition of Kosovo
by those states which have recognized it as an independent state.
Accordingly, the Court does not consider that it's necessary to address such issues
as whether or not the declaration has led to the creation of a state or the status of the acts of recognition
in order to answer the question put by the General Assembly.
In Kosovo, the outcome was seen as a victory.
The Court had indeed clearly stated that the declaration of independence wasn't contrary to international law.
As can be seen, this is certainly the case.
However, many erroneously also went on to claim that the court had in fact confirmed its statehood.
Even now, many will argue that the ICJ case proves that Kosovo is a state.
As shown, this isn't in fact true.
The Court emphatically avoided touching on this.
Meanwhile, although many read the opinion as a defeat for Serbia,
it too argued that its position had been vindicated.
Although the Court decided that the declaration of independence hadn't been contrary to international law,
by not ruling explicitly in favor of Kosovo's statehood,
Serbia was free to continue its campaign against recognition.
None of this was accidental.
In truth, the opinion was designed to be both narrow and ambiguous.
While the justices would have understood that their primary responsibility was to address a point of law,
they would also have been acutely aware of the political significance of any decision they reached.
On this, they were caught between two very different groups within the international community.
A ruling that the declaration of independence was illegal would have caused a huge shock.
It would also have created major problems for those countries that had supported Kosovo.
There was even the very real possibility that some countries, notably the United States,
would have ignored the advisory opinion altogether, thus weakening the Court's standing.
Equally, had the court said that the declaration was legal and that Kosovo was now a state,
it would have opened the door for a general principle of unilateral secession in international politics.
Under these circumstances, taking the very narrow route of looking at the declaration of independence
as a mere statement, rather than trying to pronounce on the consequences of that statement,
was the less controversial route.
This all raises the question of whether Serbia in fact asked the right question?
In retrospect, focusing on the legality of the declaration of independence does seem to have been
an odd question to ask.
The real issue was not so much whether Kosovo had broken international law by declaring independence,
but whether other countries had violated international law by recognizing it.
Under the UN Charter, members are bound to recognize the territorial integrity of one another.
This point has been repeatedly asserted in UN resolutions,
including the 1970 Friendly Relations Declaration and other international agreements,
such as the Helsinki Final Act.
This was what Serbia really need clarified.
Indeed, the Court even alluded to this in Paragraph 80 of the opinion, when it stated that:
"the scope of the principle of territorial integrity is confined to the sphere of relations between states."
Following on from this, the natural question is whether this was deliberate or not?
For a start, it seems unlikely that it could have been accidental.
Serbia worked with top legal advisors.
More to the point, it would have been very aware of the wider political ramifications of the situation.
Having faced such strong opposition from Western countries that had recognized Kosovo,
it would have been under enormous pressure not to rock the boat.
In the minds of many, it seemed that the question posed was deliberately structured to ensure that Serbia
could be seen to be acting on Kosovo's unilateral declaration of independence,
but do so in a way that would not antagonize or fundamentally upset the situation on the ground.
Of course, there was always the danger that the Court could have produced a shock.
But again, the justices would it be more than aware of the wider political ramification of their opinion.
The International Court of Justice Advisory Opinion on Kosovo was a landmark decision.
It remains the most important ruling the Court has ever made on secession.
However, both at the time and in the years since,
there's been a lot of confusion about what the Court did and didn't say.
As I hoped to show, the Court did not say that Kosovo was a state.
It very clearly and specifically emphasized that it took no position on this question
and that nothing should be inferred from its opinion.
Equally, though, its position on the declaration of independence is important.
By stating that declarations of independence do not violate international law,
unless there is some sort of specific prohibition on such a declaration in a specific case,
the Court also made it clear that any group is perfectly at liberty to state that
a territory it controls is now an independent state.
In the end, what really matters is whether that statement is accepted by other countries,
and whether they then recognize the territory as a sovereign country.
In this sense, it confirmed the importance of recognition as a central plank of statehood, in real terms.
And this brings us back to the biggest question in the whole story:
did Serbia pursue the right path?
If recognition is so important, and if recognizing Kosovo can be considered to be a violation
of Serbia's territorial integrity, then why wasn't this question put to the Court instead?
If nothing else, this underscores the point that the answer you get
very often depends on the question you ask.
I hope you found this interesting and useful.
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