Something about law
1. The advisory opinion issued by the ICJ on the adoption of the declaration of independence leaves a lot of room for us to rethink.
As to me, I do not agree with the conclusion very much on the one hand that the answer is not exact to the question, and on the other hand, I believe the question that in the present case should be reformulated in another way.
2. The ICJ organized the advisory opinion quite clear, seemly. In the substance part, to start with, the ICJ identified the scope and the meaning of the question, and then went to the factual background. After that, it focused on the original question, searching for the applicable law(s) as well as analyzing ...view middle of the document...
Yet the work is in vain. Often a statement that the declaration of independence does not violate international law gives those untutored in law the misimpression that it is lawful. The mass media brandished headlines in many forums proclaiming a similar message, such as “World court says Kosovo’s independence is legal”.
Besides, the only problem as the court sees in the question is whether the author of the declaration is the Provisional Institutions of Self-Government of Kosovo. In assessing whether or not the declaration of independence is in accordance with international law, the Court said it must be free to examine the entire record and decide for itself whether that declaration was promulgated by the Provisional Institutions of Self-Government or some other entity.
II. Find the applicable law
4. Second, the court focused on the original question:
“Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?”
To then, the problem faced by the court is what the applicable law(s) is (are). The court turned its attention to the general international law and Security Council resolution 1244(1999).
II.A. General international law
5. As to general international law, the court found that “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. During the second half of the twentieth century, the international law of self-determination developed in such a way as to create a right to independence for the peoples of non-self-governing territories and peoples subject to alien subjugation, domination and exploitation. A great many new States have come into existence as a result of the exercise of this right.”
5. Meanwhile, the court denied the opinion that the principle of territorial integrity shall be mentioned in this situation since the court considered that this principle could only be applied in the relationship between states.
6. The court also denied the link of the present declaration with the formers which are condemned by Security Council: see, inter alia, Security Council resolutions 216 (1965) and 217 (1965), concerning Southern Rhodesia; Security Council resolution 541 (1983), concerning northern Cyprus; and Security Council resolution 787 (1992), concerning the Republika Srpska. The Court notes, the illegality attached to the declarations of independence thus stemmed not from the unilateral character of these declarations as such, but from the fact that they were, or would have been, connected with the unlawful use of force or other egregious violations of norms of general international law, in particular those of a peremptory character (jus cogens).
What is the fact...