The International Court of Justice (ICJ) should be open to more than just state voices in forming of its verdicts, write Robert Howse, professor of international law at New York University and faculty director of the Institute for International Law and Justice, and Ruti Teitel, professor of international and comparative law at New York University.
The following contribution is authored by Robert Howse, professor of international law at New York University and faculty director of the Institute for International Law and Justice, and Ruti Teitel, visiting professor in global governance at the London School of Economics.
"The World Court's recent ruling on Kosovo's unilateral declaration of independence is being widely touted as giving a green light to secessionist movements to gain statehood. According to Kosovo President Fatmir Sejdiu, 'The decision finally removes all doubts that countries which still do not recognise the Republic of Kosovo could have'.
But this reading is largely wishful thinking by those who support secession. The Court's non-binding advisory opinion responded to a narrow question posed by the United Nations General Assembly: whether declaring independence is legal under international law.
The judges rightly held that there is no international rule preventing a group from stating its intention or wish to form a state. But they said nothing about the terms and conditions that apply to following through on this intention – i.e. the act of secession itself.
Indeed, the Court sought to leave no doubt about this: 'The question is narrow and specific […] it does not ask whether or not Kosovo has achieved statehood.'
The judges contrasted their opinion with that handed down by the Supreme Court of Canada when it was asked to rule on Quebec's right to secede unilaterally.
In that case, the question went far beyond a declaration of independence; the court was asked whether and under what conditions Quebec had a right to break away from Canada, under either the Canadian constitution or international law.
The Canadian judges held that international law granted no such unilateral right (and nor did the country's own constitution). As the World Court pointed out, its judgment last week did not refute that crucial point: 'The Court is not required by the question it has been asked to take a position […] on whether international law generally confers an entitlement on entities within a state to break away from this [state].'
Moreover, the Court noted the radically different views expressed before it on whether self-determination in international law implies a unilateral right to secede. By acknowledging the range and intensity of disagreement among states on a right to secede, the Court seems to have hinted that the necessary consent of the world community does not exist to establish firmly the existence of any such right.
Before concluding that there is now a 'clear path' to Kosovo's independence, it is worth pondering the important questions that the Court did not answer (and was not asked by the General Assembly).
The Court was not asked, and thus did not rule on, whether international law requires that the final status of Kosovo protect the group and individual rights of minorities, whether Kosovar Serbs or Roma."
To read the full op-ed, click here.
Published in partnership with Project Syndicate.