Misplaced Boldness: The Avoidance of Substance in the International Court of Justice's Kosovo Opinion
Waters, Timothy William, Duke Journal of Comparative & International Law
V. ... AND MAKING SUBSTANTIVE MOVES, LIKE AFTERTHOUGHTS
Having adopted almost as leisurely a pace as this Article, the Opinion is nearly half done--21 of its 45 pages, 56 of its 123 paragraphs--by the time it reaches what are usually, and here perhaps generously, known as "the merits of the case." (153) As is often the case in legal proceedings, by this point, the answer is all but assured.
The Court identifies two major concerns: one "concerning the lawfulness of declarations of independence under general international law, against the background of which ... Security Council resolution 1244 (1999) is to be understood and applied" and another about "the legal relevance of ... 1244 ... [and] whether the resolution creates special rules ... applicable to the issues raised by the ... declaration." (154) The first question asks if general international law says anything about declarations of independence; the other asks if the specific rules created for Kosovo affect the outcome. As we shall see, the Court's analysis quickly disposes of these questions, and where it lingers, it is to a very different purpose--to ensure the question is further, fully emptied of content and of any potential to offend the Security Council or threaten the institutional position of the Court.
A. General International Law--Reaching an Inevitable Conclusion, Quickly
We have already seen that the rules of general international law relating to secession are formally indeterminate--almost agnostic--even though in practice the field is actually more dogmatically inclined. The Court does not actually address secession, since it has already announced that is not a question it has been asked; rather, it notes, quite accurately, that there is no prohibition against declarations of independence as such:
In no case, however, does the practice of States as a whole suggest that the act of promulgating the declaration was regarded as contrary to international law. On the contrary, State practice during this period points clearly to the conclusion that international law contained no prohibition of declarations of independence. (155)
And that is about it---one can almost see the analysis grinding to a halt--since, really, what more is there going to be to say, if that is the question?
There are few mopping-up operations, mostly further limiting the inquiry's scope: some states had objected that territorial integrity implies a prohibition on secession or declarations of independence--or at least prohibited their having any effect--while others objected that territorial norms prevented other states from recognizing such actions. (156) Addressing these objections together, the Court holds that "the scope of the principle of territorial integrity is confined to the sphere of relations between States." (157) In other words, the question of a declaration of independence's effect, or the legality of other states' recognizing a secessionist entity on another state's territory, are very much issues--but not ones this Court will be addressing. (158)
Self-determination likewise is declared outside the scope of inquiry. Several states had advanced a secondary claim that Kosovo had a right to self-determination on a remedial theory (that is, in response to the depredations of Serbia in the 1980s and 1990s), (159) but the Court "considers that it is not necessary to resolve these questions in the present case." (160) As we have seen, the key turn the Court made was to cast the General Assembly's question as a specific one, an evaluation of this declaration in its circumstances, rather than as a general issue of law of the kind considered in Quebec. Yet, although the Court's framing indeed narrows the issue, its effect is the opposite of a detailed analysis--it strips out the specific details of this series of events. The Court chooses to analyze the literal act of declaring independence--not its effect, nor the reactions of other states, nor the causes that might have justified the act--in splendid procedural isolation. …