It’s not every day that an exclusive club of just under a couple of hundred members faces the prospect of initating a new member, so the International Court of Justice’s ruling that Kosovo’s unilateral declaration of independence in 2008 was not illegal is terribly exciting stuff.
This is a world where, after the two big waves of independent states following decolonization and post-Soviet fragmentation, the creation of new states or the dissolution of existing ones is still very much a rarity. Montenegro (also ex-Yugoslavia) and East Timor have been the most recent, and a referendum in south Sudan is coming up soon in January. The normative presumption over the course of the 20th century has been that territorial integrity trumps self-determination claims, one reason being in the fear that the messiness of judging and delineating such claims increases the propensity for violent conflict. It hasn’t always been this way, although the historical flexibility of borders is related more closely to conquest than efforts at self-determination.
So this is the context in which the ICJ ruling falls – and the question raised by observers is whether it leads to a more permissive understanding of efforts at secession – Tibet, South Ossetia and Catalonia come to mind. Many point to the unique alignment of US power with Kosovar aspirations, that has made independence a de facto reality, even if mass de jure recognition has been withheld up to this point. Somewhere in between these two is how I’d read it (and without a legal background, the ICJ ruling is surprisingly readable (take that as a caveat to my blabbering)):
The ICJ sets aside the issue of a ‘remedial right’ to secede – that is, the argument that injustices suffered by a group lend it the right to secede as a last resort of survival, or indeed what ‘right’ to secede there may exist. It notes that “it is entirely possible for a particular act ⎯ such as a unilateral declaration of independence ⎯ not to be in violation of international law without necessarily constituting the exercise of a right conferred by it. The Court has been asked for an opinion on the first point, not the second” (para. 56).
The particular, and much narrower question that it seeks to address are the specifics of legality in the context of the UN Security Council mandate for the UN-led transitional authority in Kosovo, and the constitutional terms of its interim self-governing institutions – against which its finding was that the unilateral declaration of independence was not illegal (see a much more useful commentary by a proper legal expert here).
The weight of great power sponsorship matters a great deal, because it is that, not questions of legality, that determines the extent to which diplomatic recognition is extended by other states (think of Taiwan). But this ruling may encourage other states that have sat on the fence so far in terms of offering this social status, and to that extent, an acceptance of the arrival of new states into the international system does matter. Each state may be born under specific, and indeed exceptional circumstances. But over time, all this does add up and affect the collective tolerance of states regarding the flexibility of territorial boundaries.
A final and different thought: is this what the endgame to humanitarian intervention looks like? It has been well over a decade since NATO warplanes took to the skies over Kosovo in the name of stopping crimes against humanity. But when such crimes take place in a geographically delimited area, and an international response is mobilised in response, can the province or territory under question ever be fully rehabilitated into the original parent state? The purpose of external intervention is to arrest the violence taking place and protect the vulnerable. Those doing the intervention profess to be even-handed and their presence only temporary. At the outset, to gain broad support, they will never state ‘independence’ as a goal (“substantial self-government” are the terms in Security Council resolution 1244). But independence may be what – perhaps inevitably(?) – lies further down the road from bombs and blue helmets.