The ICJ's Kosovo Decision: Much Ado about Little?

By Craig Forcese

Cross-referencing: Chapter 4(B)(6)

In July 2010, the International Court of Justice delivered its advisory opinion concerning the legality of the unilateral declaration of independence made by Kosovo in 2008. The question was referred to the ICJ by the United Nations General Assembly, via resolution 63/3 (8 October 2008). That document asked the ICJ to render an advisory opinion on the following: “Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?”.

The ICJ did just that, following its usual segue into a discussion of its jurisdiction to do so.  But for those who thought that the Court might opine on the murky area of self-determination in international law, the decision is a disappointment.  The ICJ confined itself to a strict discussion of unilateral declarations under international law, and consciously declined to discuss  the circumstances in which such declarations are effective or where the international community might be required to accept them, and recognize a newly emergent state (the core issue in any question of self-determination).

On the question of whether unilateral declarations of independence are legal in international law, a majority of the Court concluded that "general international law contains no applicable prohibition of declarations of independence. Accordingly, it concludes that the declaration of independence of 17 February 2008 did not violate general international law" (at para. 84).  Nor did the declaration run counter Security Council resolution 1244 (1999), establishing an interim constitutional structure for Kosovo.

As a result of this very narrowly circumscribed decision, self-determination remains as thorny and perplexing an area of international law are ever.