The Symbolic Gesture of the ICJ Decision on Kosovo

Professor Daniel Turp, in his recent article to this blog dealt with the ICJ’s recognition of Kosovo’s unilateral declaration of independence. He states that, “le droit […] l’est parfois pour les individus, un instrument au service de la liberté.” Considering Kosovo’s longstanding struggle for independence, it is likely that many Kosovars would agree. However, I believe that the ICJ judgment points to more limits in international law than liberties, and that the likelihood of this decision to enhance personal or collective [political] liberty is illusory.

Although the ICJ intentionally avoided the issue, it is clear that secession invariably invokes self-determination. This is probably the liberty Professor Turp speaks of. The principle of self-determination was first proposed to the League of Nations by Woodrow Wilson’s in his plans for post-World War I Europe. It was based on a “reinterpretation of the principle of self-determination”, which itself has its roots in American and French revolutions [1]. Some of the biggest limits of this principled notion are its definitional ambiguities and the difficulty in applying a concept built on the foundations of individual liberties to collective rights.

Self-determination can be found in the UN Charter articles 1(2), 55 and 73; The Declaration on the Granting of Independence to Colonial Countries and Peoples (Colonial Declaration) and the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations. Yet nowhere is this right clearly defined. That is, while the Colonial Declaration comes the closest to giving the concept full character, by describing “self-determination by virtue of that right they freely determine their political status…” it is not entirely clear that this entails an independent State. However, it is clearly a principle that is linked to democracy [2], which, while certainly not a bad thing in and of itself, is biased enough that it does act as a limiting factor.

A further, and much more powerful argument, is the question of how international law, which is a body of law that essentially promotes the State (the State also being a legal concept) could derogate from its own creation. As Donald Horowitz puts it, “Secession is an anti-State movement, and an international law that forgets that States are its main subjects risks its own survival.” [3] While I don’t entirely agree that secession is ‘anti-State’, as new States are still created, I do take the point that for the purposes of international law State secession is not ideal. Thus, it follows that the liberation of Kosovars, that is, their right to self-determination, is not a model that will be easily replicable in other parts of the world because it would be contrary to the core of international law.

Furthermore, the court did not really associate any positive rights with Kosovo’s unilateral declaration of independence when it stated that, “the declaration of independence of Kosovo adopted on 17 February 2008 did not violate international law.” [4] This is, of course, because State recognition is in fact political. While the judgment allows for Kosovo to be recognized by other States, there is no doubt that State recognition is political. State practice speaks louder than international law on that matter and U.S State recognition is telling. Anthony Aust claims that, “US admin will recognize an unlawful change of government when it approves of the change” [5]. Thus, while the decision was symbolic, practically speaking, it was really little more than that.

This is not to negate the effect that symbolic gestures can have on the international community. It is possible that this decision will inspire other separatist movements to take their claims, or actions, to the ‘next level’. I think it is important, then, that we reflect on what such consequences would mean.

In such a reflection, I leave you with these questions to ponder: Do more states really lead to more equality amongst individuals, both intra-nationally and internationally? Is it unrealistic for people to live peacefully with eachother because of, and despite, differences rather than legally isolating themselves among group identities, such as nationalities? And finally, considering the fluid nature of identities along with the above arguments, does State secession really lead to liberty?

[1] Donald L. Horowitz “The Cracked Foundations of the Right to Secede”, Journal of Democracy 14.2 (2003) 5-17.

[2] Betty Miller Unterberger  “Encyclopedia of American Foreign Policy”, (2002) http://findarticles.com/p/articles/mi_gx5215/is_2002/ai_n19132482/?tag=content;col1

[3] Supra, i

[4] International Court of Justice, July 22 2010 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo: http://www.icj-cij.org/docket/files/141/15987.pdf

[5] Anthony Aust, “Handbook of International Law”( 2010) 2^nd Edition

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