After the ICJ's Advisory Opinion on Kosovo: The future of self-determination conflicts

Abstract

Despite the expectation that the ICJ’s Advisory Opinion on Kosovo will profoundly contribute to the clarification of international law on self-determination, the Court, nevertheless, confined itself to a rather narrow reading of the submitted question. Yet, I will argue that some of its findings are of general nature. Such are the following conclusions: 1. that 'general international law contains no applicable prohibition of declarations of independence', except in cases where they are in connection with a violation of general international legal norms of jus cogens; 2. that 'the scope of the principle of territorial integrity is confined to the sphere of relations between States' and, hence, does not concern non-state actors, including secessionist groups; and 3. that 'persons who acted together in their capacity as representatives of the people' of some territory under the UN interim regime of governance are not bound to act within the framework of powers and responsibilities established to govern the conduct of provisional institutions. I will argue, furthermore, that these findings might have disastrous consequences for the future of self-determination conflicts. First, by being excluded from the duty to respect the jus cogens norm of territorial integrity, secessionist groups, as non-state actors, might be inclined to use all possible means, including the violent ones, to seize as much power as possible over delineated piece of territory of the recognized state. Second, secessionists may now even more relentlessly resort to the issuing of UDIs, while simultaneously searching for some patron(s) among Great Powers, which would at the critical moment back up their strive for statehood, by formally recognizing the new entity as a state. This, in turn, may even affect the role of ‘recognition theory’ in international law. Finally, states drawn into prolonged self-determination conflicts with their rebellion minorities will be dissuaded from entering into provisional UN-mandated conflict-settlement arrangements, because no guarantee will exist that ‘representatives of a self-determining people’ would not unilaterally dissolve them.