International Law - Unilateral Secession - International Court of Justice Concludes That Kosovo's Unilateral Declaration of Independence Did Not Violate International Law

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INTERNATIONAL LAW--UNILATERAL SECESSION--INTERNATIONAL COURT OF JUSTICE CONCLUDES THAT KOSOVO'S UNI-LATERAL DECLARATION OF INDEPENDENCE DID NOT VIOLATE INTERNATIONAL LAW.--Accordance with International Law of Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion (July 22, 2010), http://www.icj-cij.org/docket/files/141/15987.pdf.

That each state's territorial integrity is inviolable and that all peoples have a right to self-determination are bedrock principles of international law enshrined in the U.N. Charter. (1) Yet these two principles conflict when an oppressed minority seeks to achieve self-determination by seceding from an existing state. Such a conflict emerged when Kosovo declared independence from Serbia on February 17, 2008. (2) Recently, the International Court of Justice (ICJ) issued an advisory opinion, Accordance with International Law of Unilateral Declaration of Independence in Respect of Kosovo, (3) concluding that Kosovo's declaration of independence did not violate international law. (4) However, the ICJ refused to address the consequences of that declaration, particularly the question of whether Kosovo is entitled to statehood. (5) This unnecessarily narrow opinion failed to clarify the boundaries of the right to self-determination, while also weakening the principle of territorial integrity by giving separatist movements around the world legal license to declare independence. The ICJ should have affirmed Kosovo's right to secede on the grounds that it suffered repression and denial of fundamental rights, thereby distinguishing Kosovo's claim from weaker separatist claims.

Kosovo is a former autonomous province of Yugoslavia contained within Serbia (6) with a population consisting of approximately ninety percent ethnic Albanians. (7) In 1989, Serbia revoked Kosovo's autonomy, (8) leading Kosovo to declare independence and various armed groups to launch attacks under the banner of the Kosovo Liberation Army.9 In response, the Serb government initiated repressive actions and policies--including employment discrimination, arbitrary detention and torture, rape, summary executions, and ethnic cleansing--leading to a vast refugee crisis. (10) In 1999, NATO intervened with a bombing campaign against Serbia, which resulted in the Serb government withdrawing security forces and Security Council Resolution 1244 bringing Kosovo under U.N. and NATO administration. (11)

That resolution demanded an end to violence and empowered the U.N. Secretary General to establish "an interim administration for Kosovo" that would "[p]romot[e] the establishment ... of substantial autonomy and self-government in Kosovo," (12) yet the resolution reaffirmed the United Nations' commitment to "the sovereignty and territorial integrity of the Federal Republic of Yugoslavia." (13) Following seven years of U.N. administration, U.N. envoy Martti Ahtisaari led final status negotiations between Kosovo and Serbia in 2006, but when negotiations failed, he authored a report recommending independence for Kosovo. c (14) After Serbia rejected that plan, and further negotiations failed, Kosovo declared independence on February 17, 2008. (15) On October 8, 2008, the General Assembly requested an advisory opinion from the ICJ to answer the question: "Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?" (16)

The ICJ unanimously found that it had jurisdiction to give an advisory opinion, decided to comply with the request by a nine-to-five vote, and concluded by a ten-to-four vote that Kosovo's declaration of independence "did not violate international law." (17) Writing for the court, President Owada of Japan stated that the question was "narrow and specific"; it asked only whether the declaration of independence was in accordance(10) Kosovo, 98-105, 119, 150 (separate opinion of Judge Cancado Trindade). …