When we introduced an analysis of the International Court of Justice’s advisory opinion on Kosovo to our course on multilateral diplomacy, we thought, certainly, of its value as a precedent. However, we did not expect a new reading very soon, unless it was by the new students registered in the course.
This advisory opinion was requested by the General Assembly in its Resolution 63/3 of 8 October 2008, entitled Request for an advisory opinion of the International Court of Justice on whether the unilateral declaration of independence of Kosovo is in accordance with international law.
Despite being warned that curiosity kills that cat, let us have a look at the advisory opinion in question (no. 2010/25 of 22 July 2010), and recall a few key elements from the responses which were given to a question that was seen as dramatic at the time.
On the nature of the question itself
The question - which expressly asked the Court whether or not a particular action is compatible with international law - was certainly deemed by the Court to be a legal question (nota bene: Article 96 has jurisdiction on any ‘legal question’, not on any question). Apart from checking the nature of the question, the Court also responded to some doubts presented by the participants in the proceedings, who suggested that the question posed was not legal, but rather political, governed by domestic law.
The Court clarified this doubt as follows:
- The Court was not asked to give an opinion on whether the declaration is in accordance with any rule of domestic law, but only whether it is in accordance with international law.
- The Court can respond to the question by reference to international law, without the need to enquire into any system of domestic law.
- The fact that a question has political aspects does not suffice to deprive it of its character as a legal question.
On the political neutrality of the advisory opinion
The position of the Court was clear. The advisory jurisdiction is not a form of judicial recourse for states but the means by which main UN organs such as the General Assembly and the Security Council, as well as other bodies, may obtain the Court’s opinion. The motives of individual states which sponsor, or vote in favour of, a resolution requesting an advisory opinion are not relevant to the Court’s exercise of its discretion in whether or not to respond.
Was the question adequately formulated?
From the Court’s perspective, the question posed by the General Assembly was clearly formulated, narrow, and specific. As things turned out, the question was too narrow and too specific, to such an extent that the negative answer was determined somewhat easily from the perspective of the sponsors of the resolution.
On the relation to general international law
The Court noted that in all those instances, the illegality attached to the declarations of independence stemmed not from the unilateral character of these declarations as such, but from other circumstances. The final conclusion was that the declaration of independence did not violate Security Council resolution 1244 (1999).
The general conclusion of the Court was that the adoption of the declaration of independence of 17 February 2008 did not violate any applicable rule of international law.
Let us recall also that the opinion was not adopted unanimously, and four of the judges voted against it. They presented very interesting separate declarations with arguments dissenting from those of the majority. I will reproduce just one such argument, as it deserves respect.
The conclusion that ‘general international law contains no applicable prohibition of declaration of independence’ is misleading. General international law simply does not address the issuance of declarations of independence; it is not the issuance of such declarations that satisfies the factual requirements, under international law, for statehood and recognition.
Relevance for Scotland, Catalonia and Crimea
Four years after the issuance of the advisory opinion, here we are, faced with two referenda which might lead to some forms of declarations of independence.
A Scottish independence referendum is planned for 18 September 2014. The population will have to respond the question: Should Scotland be an independent country?
A Catalonian referendum on independence is planned for 9 November 2014. The question, this time, will contain two sections: Do you want Catalonia to become a State? and In case of an affirmative response, do you want this State to be independent?
I take note of, but do not insist on, the 11 March 2014 Declaration of Independence of the Republic of Crimea, because it was soon followed by the Crimean status referendum of 16 March 2014, which put an end to the short independence and led to joining the Russian Federation. A non-binding resolution of the United Nations General Assembly was later adopted by a vote of 100 in favor, 11 against, and 58 abstentions, which declared the referendum invalid and affirmed Ukraine’s territorial integrity.
Notably, the questions, in all cases, were ‘adequately formulated!’
Now, one may wonder to what extent the advisory opinion on Kosovo is helpful and relevant for the new waves of aspiration to independence?
In the case of Crimea, Ukraine might have deemed, and rightly so, that the opinion of the International Court of Justice would not be of much use. The Russian Federation has not stopped wondering why what was good for Kosovo is not good for Crimea.
In the case of Scotland, the referendum itself was agreed formally by the United Kingdom and the Scotland governments. In the 2012 Agreement between the United Kingdom Government and the Scottish Government on a referendum on independence for Scotland, the two governments:
look forward to a referendum that is legal and fair producing a decisive and respected outcome. The two governments are committed to continue to work together constructively in the light of the outcome, whatever it is, in the best interests of the people of Scotland and of the rest of the United Kingdom.
So, there will be no need for wise advise from the International Court of Justice.
In the case of Catalonia, the central Spanish government considers the referendum a priori as non-constitutional. Unless some royal miracles occur, the dispute will continue, in particular if the response to the first question is affirmative. But, for now, it does not seem that the international legality of the possible statehood and independence of Catalonia will be asked by any party. The Catalonian independentists used the precedent of Kosovo extensively in their political campaigns. They do not need more. For the government in Madrid, it is out of question to go to The Hague: Spain remains among the countries of the European Union that did not recognize Kosovo.
Then what is left of the relevance of the advisory opinion on Kosovo, in relation to these new drives towards independence in 2014?
Paradoxically, the best answer I can suggest is not to be found in the text of the opinion per se, but in two sentences extracted from one of the dissenting views:
International law is not created by non-state entities acting on their own. It is created with the consent of states.
The cat was not killed, but its curiosity remains to a greater extent unsatisfied.