[Viewpoint] The World Court and secessionism

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 recognize the Republic of Kosovo could have.”

But this reading is largely wishful thinking by those who support secession. The Court’s nonbinding 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 of 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 two weeks ago did 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.

Likewise, the Court was not asked and did not rule on whether Serbia or, indeed, any other state in the world community is required to recognize Kosovo as an independent state.

Nor did the Court’s decision address the borders of an independent Kosovo, or whether and under what circumstances force could legally be used either to impose independence or to resist it.

If the fate of Kosovo - and the entire Balkan region - is to be guided by the global rule of law, these questions need to be answered, not swept under the table.

Under existing procedures, framing questions to the World Court is entirely a prerogative of states, either as contending parties or, as with the Kosovo opinion, operating through the UN.

But the rights of persons and peoples, not just interests of states, are at stake in controversies such as this one. To fulfill international justice today, we need a new kind of World Court, open to other voices.
by Robert Howse and Ruti Teitel

Copyright: Project Syndicate, 2010.

*Howse teaches international law at New York University, and Ruti Teitel teaches international and comparative law at New York Law School and is a visiting professor in global governance at the London School of Economics.