THE RECENT non-binding decision of the International Court of Justice (ICJ) with respect to the declaration of independence of Kosovo from Serbia should give some measure of hope to oppressed people everywhere; perhaps not the Palestinians.
On February 17, 2008, the Provisional Institutions of Self-Government (PIS) of Kosovo declared independence from Serbia, fully aware that this act had been received with varied reactions by the members of the United Nations (UN) as to its compatibility with the existing international legal order.
The ICJ, in accordance with Article 96 of the UN Charter, and pursuant to Article 65 of the Statute of the ICJ, was asked to render an advisory opinion on whether the unilateral declaration of independence by the PIS of Kosovo was in accordance with international law.
It was observed that during the 18th, 19th and early 20th centuries, there were numerous instances of declarations of independence. Sometimes a new state was created. 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.
The ICJ said this practice pointed clearly to the conclusion that international law contained no prohibition against such declarations. The law of self-determination developed in such a way as to create a right to independence for the people of non-self-governing territories and people subject to foreign domination and exploitation.
Kosovo’s delight may be of some concern to some states. The ICJ’s non-binding decision backing Kosovo’s 2008 split from Serbia is being seen by separatist groups as a precedent to further their objectives.
However, some legal pundits beg to differ and submit that the decision is specific and doesn’t embolden secessionist tendencies. Yet, it has opened a Pandora’s Box and kick-started a debate among entities who nurse grievances while being part of otherwise heterogeneous states.
Rightly dubbed as the 21st century doctrine of international relations, this opinion could open doors for a few states in Eurasia and the pro-independence movements in South Asia and in the heartland of Europe.
The advisory legal opinion of the highest court of UN-led world order is likely to be contested on the grounds of state sovereignty. The very fact that the ruling is non-binding and does not have any legal force takes out much of the heat.
What is feared, however, is that governments might resort to undue use of force and political repression to subdue minorities and pro-secessionist movements and restrict their right to freedom of expression.
Nonetheless, the consolation is that the World Court itself has come up with some damage control. Though it said international law did not prohibit declarations of independence, the court also did not say it was legal to do so.
The judgment is likely to create much political interest, while stiffening governments’ negotiating resolve worldwide. The right to independence and statehood cannot simply be done away with.
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