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Thread: ICJ: Kosovo Independence is Legal

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    ICJ: Kosovo Independence is Legal

    The United Nations International Court of Justice says Kosovo's unilateral declaration of independence from Serbia in 2008 did not violate international law.

    That non-binding opinion was issued Thursday in The Hague. It is expected to clear the way for more countries to extend formal recognition to the government in Pristina.

    Kosovo Foreign Minister Skender Hyseni, who spoke to reporters after the court session, called the ruling "great news for Europe." He said it "affirmed that the people of Kosovo did the right thing."
    Source: Voice of America

    I am not surprised people here are not paying attention to this issue, but this is probably one of the most important developments in the world so far this year. Kosovo's declaration of independence two years ago essentially sparked of the war between Russia and Georgia and now that there is legal cover for the declaration it could mean a wave of secessions.
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    Re: ICJ: Kosovo Independence is Legal

    For those who are interested, the advisory opinion can be found at: http://www.icj-cij.org/docket/files/...047c72b9262685

    The International Court of Justice's advisory opinion is interesting, but not surprising. There is no prohibition of declarations of independence in international law nor is there customary precedent whereby such declarations would be viewed as being superseded by the principle of territorial integrity. Indeed, the ICJ ruled that the principle of territorial integrity is a matter of state relations, not parties within states. Hence, a party could declare its independence in a given state and international law would not preclude that declaration. However, if a party declared independence and another sovereign state decided to assist that party, that would raise issues concerning territorial integrity. It should also be noted that the ICJ suggested that declarations of independence could be illegitimate if, for example, they were connected to "the unlawful use of force or other egregious violations of norms of general international law..."

    IMO, the absence of a principle in international law that established clear criteria as to when declarations of independence are/are not legitimate, made the decision fairly likely. Having said that, whether other countries should recognize breakaway entities is an entirely different matter. On that matter, more specifically whether Kosovo is a legitimate sovereign state, the ICJ issued no opinion. Its opinion concerned the narrow question as to whether declarations of independence are prohibited under international law.

    Overall, even if the ICJ did not intend the decision to be a destablizing one, it has the potential to have that impact. Restive areas within sovereign states will be encouraged by the decision, even as it is non-binding. At the same time, sovereign states having concern that such declarations could be viewed by others as legitimate given that they are not prohibited under international law could well be inclined to resort to force more quickly to head off such movements than might otherwise have been the case.

    In sum, even as I believe the decision was probably the only one the ICJ could reach, I do not believe it is a helpful one.

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    Re: ICJ: Kosovo Independence is Legal

    I am actually quite surprised, though pleasantly so, at this decision.

    Traditionally, the independence of a separatist area was not internationally recognized until the state recognized as sovereign over the area accepted the independence of the area -- either willingly or through a war for independence. There are exceptions to this, but that has been the general rule. The international recognition of Bosnia as well as its admission to the UN while the war was ongoing. At the time, there were scholars who suggested that this might signal a change in the traditional rule. I would not like to comment on that until I read the advisory opinion, however, as it regards Kosovo.

    The devil will be in the details. However, there will be many places looking at this for direction. Places like Somaliland have a situation quite analogous to Kosovo. Others, like Western Sahara and Taiwan have far stronger cases than Kosovo while even places like Abkhazia, South Ossetia, Transnistria, Tannu Tuva and many others, though their cases on the face of them appear weaker than that of Kosovo, must now be reassessed in light of the details contained in this opinion.
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    Re: ICJ: Kosovo Independence is Legal

    Here is a html version of the ruling for anyone who has trouble with PDF files: International Court of Justice advisory opinion on Kosovo’s declaration of independence | Public International Law

    Quote Originally Posted by donsutherland1 View Post
    The International Court of Justice's advisory opinion is interesting, but not surprising. There is no prohibition of declarations of independence in international law nor is there customary precedent whereby such declarations would be viewed as being superseded by the principle of territorial integrity. Indeed, the ICJ ruled that the principle of territorial integrity is a matter of state relations, not parties within states. Hence, a party could declare its independence in a given state and international law would not preclude that declaration. However, if a party declared independence and another sovereign state decided to assist that party, that would raise issues concerning territorial integrity. It should also be noted that the ICJ suggested that declarations of independence could be illegitimate if, for example, they were connected to "the unlawful use of force or other egregious violations of norms of general international law..."

    IMO, the absence of a principle in international law that established clear criteria as to when declarations of independence are/are not legitimate, made the decision fairly likely. Having said that, whether other countries should recognize breakaway entities is an entirely different matter. On that matter, more specifically whether Kosovo is a legitimate sovereign state, the ICJ issued no opinion. Its opinion concerned the narrow question as to whether declarations of independence are prohibited under international law.
    Actually I think the ruling fully endorsed the recognition of Kosovo's independence by other states. While the headline is the final conclusion how they reached that conclusion is significant as well. Specifically they ruled that the declaration of independence was not issued under UNSCR 1244, but instead was "an attempt to determine finally the status of Kosovo" after the interim period. In other words any subsequent actions are also attempts to determine finally the status of Kosovo. The fact UNMIK continues is irrelevant because it would still conceivably be able to transfer all authority to the independent government. UNMIK will still maintain a presence so long as no resolution can be reached, but they would essentially be doing nothing.

    That is how I interpret it at least. It seems to me this ruling implies the recognitions are also not illegal under international law, but in fact efforts to effect a settlement on the future status.

    Quote Originally Posted by ludahai View Post
    There are exceptions to this, but that has been the general rule. The international recognition of Bosnia as well as its admission to the UN while the war was ongoing.
    Bosnia had the clear and explicit right under the Yugoslav constitution to secede. The war itself was an ethnic conflict attempting to take parts of the country and incorporate them into other countries.

    However, there will be many places looking at this for direction. Places like Somaliland have a situation quite analogous to Kosovo. Others, like Western Sahara and Taiwan have far stronger cases than Kosovo while even places like Abkhazia, South Ossetia, Transnistria, Tannu Tuva and many others, though their cases on the face of them appear weaker than that of Kosovo, must now be reassessed in light of the details contained in this opinion.
    I'll do this one-by-one:

    Somaliland has an even stronger case as they opted into Somalia and there is currently no stable Somali government.

    Western Sahara's case is explicitly authorized. In fact, it is one of the great travesties as they were supposed to have a vote on independence nearly two decades ago under a UN resolution Morocco agreed to, but Morocco changed its mind and refuse to allow the vote. This is one potential worry we should have with regards to Southern Sudan's independence referendum next year.

    Taiwan definitely does not have a stronger case. That Taiwan is a part of China is undisputed in the world as well as supported by every relevant part of international law.

    I agree generally with the post-Soviet separatist states, though.
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    Re: ICJ: Kosovo Independence is Legal

    Quote Originally Posted by Demon of Light View Post
    Somaliland has an even stronger case as they opted into Somalia and there is currently no stable Somali government.
    no argument there... Shameful that no one has recognized it...

    Western Sahara's case is explicitly authorized. In fact, it is one of the great travesties as they were supposed to have a vote on independence nearly two decades ago under a UN resolution Morocco agreed to, but Morocco changed its mind and refuse to allow the vote. This is one potential worry we should have with regards to Southern Sudan's independence referendum next year.
    I believe it was a GA resolution, not a SC resolution (i have to check) so there is no legal binding level of authority for the referendum. However, as Western Sahara was a part of Spanish territory and when Spain relinquished control over it, it did NOT transfer control to Morocco, Morocco's claims to sovereignty is spurrious..

    Taiwan definitely does not have a stronger case. That Taiwan is a part of China is undisputed in the world as well as supported by every relevant part of international law.
    Absolutely wrong. It is disputed. Furthermore, Taiwan was a part of Japan. In the post-war treaty, there is no transfer of sovereignty over Taiwan to China following the war. It is a clear principle of international law that territory can only be transferred from one state to another state through a properly ratified and executed treaty. Taiwan's situation is more analogous to Western Sahara or East Timor where the previous soveriegn surrendered sovereignty over the territory but did not assign a new sovereign over the territory.

    I agree generally with the post-Soviet separatist states, though.
    I haven't finished reading the opinion yet... posting on here and reading it article by article between sets of my dumbell workout... I won't comment more specifically about those separatist states until I have fully digested the advisory opinion...

    Bosnia had the clear and explicit right under the Yugoslav constitution to secede. The war itself was an ethnic conflict attempting to take parts of the country and incorporate them into other countries.
    Can you please link it? I would like to look at it. English, French, or traditional Chinese would do.
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    Re: ICJ: Kosovo Independence is Legal

    Quote Originally Posted by ludahai View Post
    I believe it was a GA resolution, not a SC resolution (i have to check) so there is no legal binding level of authority for the referendum. However, as Western Sahara was a part of Spanish territory and when Spain relinquished control over it, it did NOT transfer control to Morocco, Morocco's claims to sovereignty is spurrious..
    Here's the Security Council Resolution: United Nations Security Council Resolution 690 - Wikipedia, the free encyclopedia

    Western Sahara probably has one of the strongest arguments for independence in the world right now, which is partly why they are recognized by the African Union and countless nations. The only comparable situation is that of East Timor, though Western Sahara has only been subjected to oppression rather than genocide and ethnic cleansing.

    Absolutely wrong. It is disputed.
    By Taiwan and its supporters, but no one else.

    Furthermore, Taiwan was a part of Japan. In the post-war treaty, there is no transfer of sovereignty over Taiwan to China following the war.
    Yeah the U.S. just allowed the ROC to control the territory with its military because they thought Taiwan should have independence.

    Taiwan's situation is more analogous to Western Sahara or East Timor where the previous soveriegn surrendered sovereignty over the territory but did not assign a new sovereign over the territory.
    The Potsdam Declaration, accepted in the Japanese Instruments of Surrender, explicitly says Japan will carry out the terms of the Cairo Declaration, which included the return of Chinese sovereignty over Formosa (Taiwan) and the Pescadores (Penghu). At no point was Chinese sovereignty over Taiwan in question. In fact, given that the recognized government of China has never even been granted actual authority over territory internationally recognized as its own then there is no argument for remedial secession either. In essence there is no conceivable legal argument in favor of Taiwanese independence. So we could say Taiwan has the weakest case for independence compared to nearly every unrecognized state in the world. It is certainly weaker than Kosovo's case where one could argue remedial secession and that independence was clearly allowed as a final status for it.

    Can you please link it? I would like to look at it. English, French, or traditional Chinese would do.
    Link what? Do you mean the provisions of the Yugoslav constitution allowing Bosnian secession? Right now the only version in any of those languages I found is Google Books and it's a very limited preview, which I doubt is what you'd want.
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    Re: ICJ: Kosovo Independence is Legal

    Quote Originally Posted by Demon of Light View Post
    Thanks

    Western Sahara probably has one of the strongest arguments for independence in the world right now, which is partly why they are recognized by the African Union and countless nations. The only comparable situation is that of East Timor, though Western Sahara has only been subjected to oppression rather than genocide and ethnic cleansing.
    I agree with most of this statement, except that Taiwan's situation is also comparable as like Taiwan, Western Sahara's sovereignty was abandoned by its previous soveriegn (Spain in this case) but soveriegnty was not assigned to another state.


    By Taiwan and its supporters, but no one else.
    That is all that matters... Political support does not equate to legal legitimacy.


    Yeah the U.S. just allowed the ROC to control the territory with its military because they thought Taiwan should have independence.
    The ROC military occupied Taiwan in 1946 ON BEHALF of the allies. There was no transfer of sovereignty.


    The Potsdam Declaration, accepted in the Japanese Instruments of Surrender, explicitly says Japan will carry out the terms of the Cairo Declaration, which included the return of Chinese sovereignty over Formosa (Taiwan) and the Pescadores (Penghu).
    However, these are not treaties -- they are statements. Under international law, the only way territory can be transferred from one state to another state is through a signed, ratified, and executed treaty between the states involved. There is no such treaty in which Japan ceded control of Taiwan to another state. Some cite the Treaty of Taipei, but that occurred AFTER Japan surrendered soveriegnty without assigning it to another state in the Peace Treaty of San Francisco.

    At no point was Chinese sovereignty over Taiwan in question. In fact, given that the recognized government of China has never even been granted actual authority over territory internationally recognized as its own then there is no argument for remedial secession either. In essence there is no conceivable legal argument in favor of Taiwanese independence.
    On what basis? Again, the only way sovereignty can be transferred is through a treaty. There is no treaty in this case. This is long established international law based on centuries of state practice. The legal argument for Taiwan's independence is FAR STRONGER than that of Kosovo which was regarded as an integral part of Yugoslav territory confirmed by the Treaty of London following the First Balkan War. There are no treaties confirming that Taiwan was a part of Chinese territory.

    So we could say Taiwan has the weakest case for independence compared to nearly every unrecognized state in the world. It is certainly weaker than Kosovo's case where one could argue remedial secession and that independence was clearly allowed as a final status for it.
    Hardly, given that Taiwan has its own functioning government that represents the people, has its own armed forces, its own currency, and is technically terra derelicta in accordance with the fact that Japan relinquished sovereignty over Taiwan in 1952 and failed to name a beneficiary in accordance with international law in the San Francisco Peace Treaty.

    Link what? Do you mean the provisions of the Yugoslav constitution allowing Bosnian secession? Right now the only version in any of those languages I found is Google Books and it's a very limited preview, which I doubt is what you'd want.
    Let's both keep looking and post what we find. As the weather here today is crappy, I have a lot of time on my hands. If I find it, I will post it...
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    Re: ICJ: Kosovo Independence is Legal

    I support Kosovo for purely selfish reasons.
    Hope ICJ know they may have opened a Pandora's box.


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    Re: ICJ: Kosovo Independence is Legal

    84. For the reasons already given, the Court considers 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. Having
    arrived at that conclusion, the Court now turns to the legal relevance of Security Council
    resolution 1244, adopted on 10 June 1999.
    Still reading through the decision, but this part of the decision is quite interesting... If there is to be a blanket acceptance that there is no prohibition on declarations of independence, what happens to North Cyprus, Somaliland, Transnistria, and many other successionist states with limited recognition (or no recognition in the case of Somaliland).
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    Re: ICJ: Kosovo Independence is Legal

    Quote Originally Posted by ludahai View Post
    Still reading through the decision, but this part of the decision is quite interesting... If there is to be a blanket acceptance that there is no prohibition on declarations of independence, what happens to North Cyprus, Somaliland, Transnistria, and many other successionist states with limited recognition (or no recognition in the case of Somaliland).
    It means we should theoretically be able to declare ourselves Independent and it should be recognised.


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