The ICJ Advisory Opinion on Kosovo: Has International Law Something to Say about Secession?

International audienceThe objective of this paper is to examine how the Court has dealt with existing general international law governing secession and to evaluate the effects that this opinion could have on future developments in this field. The narrow interpretation of the question submitted by the UN General Assembly permitted the Court to avoid many important questions. The Court made no statements concerning Kosovo's statehood and recognition by third states and made no mention of statehood requirements or the ‘principle of effectiveness’. The Court also refused to examine whether Kosovo (or any other entity outside the colonial context) had a ‘right’ to secession, but gave no endorsement to attempts to apply external self-determination outside the colonial context or to the theory of ‘remedial secession’. This paper explains why the Court did not apply the ‘Lotus’ freedom principle in the Kosovo case. It welcomes the indirect, but clear, position of the Court that a declaration of independence can, in some situations (and especially in the case of external aggression), be illegal – a position that contradicts the old theory, stemming from Jellinek, that the creation of a state is nothing but a ‘simple fact’. While the Court correctly found that outside these exceptional circumstances, no general prohibition against unilateral declarations of independence exists in international law, it should have added that international law is not ‘neutral’ in this field, that it disfavors secession, and that it creates a presumption against the effectiveness of secession. The ‘legal-neutrality’ stance adopted by the Court is not without risks. Indeed, the Court should have been more cautious in its assertion that ‘the scope of the principle of territorial integrity is confined to the sphere of relations between states’, not only because recent practice clearly indicates the contrary, but also because its position could have an unwelcome effect in resolving future separatist conflicts by rendering countries extremely sceptical of solutions of autonomy or international administration