What’s a Political Court to Do?

, October 19, 2008

On October 8, the General Assembly voted 77-6, with 74 abstentions to back Serbia in requesting an advisory opinion from the International Court of Justice on whether “the unilateral declaration of independence of Kosovo is in accordance with international law” (see resolution here).
The outcome of this one is difficult to predict. This is not due to difficulties in resolving the legal issues. It is true that the legal question is a potentially difficult one in the abstract, but it would be unusual for the ICJ to issue a real ruling on the merits in a politically charged case like this one. Eric Posner and Miguel de Figueiredo have adduced strong statistical evidence that the bias of the ICJ tends to run in favor of the judges’ appointing states (34 J. Legal Stud. 599 (2005)), but I’ve been convinced by Michla Pomerance that the easier way to understand ICJ advisory rulings is as simply giving the General Assembly exactly what it asks for. The question here, of course, is what result the General Assembly is asking for.
Unlike in the case of, say, the request for an advisory ruling on Israel’s security barrier (which attached the question “What are the legal consequences arising from the construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem …” to a resolution that decried the alleged refusal of “Israel, the occupying power … to comply within [sic] international law vis-à-vis its construction of the above-mentioned wall”), the question approved for a ruling in the case of Kosovo (“Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?”) doesn’t instruct the ICJ on how to rule.
It’s too bad the ICJ has lost credibility on these issues, because there are actually interesting legal questions here. Kosovo is (or was) sovereign Serbian territory attacked by NATO countries on what is probably an invalid legal pretext (there’s an extensive literature on the subject of the questionable legality of “humanitarian intervention”). Upon Serbia’s surrender, the Security Council (under Resolution 1244) authorized a NATO occupation force to take control of Kosovo, while reaffirming Serbia’s sovereignty over the territory. The occupation government – the United Nations Interim Administration Mission in Kosovo – then established various self-governing Kosovar institutions, which, in turn, entered into multilateral negotiations about the future of Kosovo. But the negotiations failed as Kosovo demanded independence, Serbia refused to yield sovereignty, and Russia vetoed attempts to force Kosovar independence on Serbia through the Security Council. Kosovo therefore declared independence anyway, with the backing of most of Europe. Former Finnish President Martti Ahtisaari just won the Nobel Peace Prize in large part for his role in facilitating the failure of the Kosovo negotiations and creating what Madeline Albright labeled the “glide path” towards Kosovo’s unilaterally declared independence.
Whether Kosovo is a state ultimately boils down to the question of whether it fulfills the legal requirements of statehood: does it have the requisite permanent population, government, capacity to carry on foreign relations and territory. In this case, the previous illegality of NATO’s and Kosovo’s behavior is only of peripheral relevance. The true question is whether Kosovo has the ingredients today, however acquired. And, indeed, it has them, except, perhaps, one: the controversial questions boils down to whether Kosovo’s de facto control over its territory fulfills the territorial requirement even though the territory is de jure under the sovereignty of Serbia. There are no good legal standards for answering questions of when de facto control is sufficiently strong to override de jure sovereignty (if ever), and it would be nice to see a relatively objective and learning examination of the question. Just don’t expect one from the ICJ.

About Abraham Bell

Dr. Avi Bell of the Faculty of Law of Bar-Ilan University is currently a visiting professor at the University of San Diego. He specializes in international law, particularly the laws of war. Dr. Bell served in an IDF reserve paratrooper brigade in combat in the Second Lebanon war.