|Title:||The Kosovo Advisory Opinion: A Voyage by the ICJ into the Twilight Zone of International Law|
|Date:||12 Oct 2010|
On 22 September, the Amsterdam Center for International Law held a discussion on some of the controversies triggered by the International Court of Justice’s Kosovo advisory opinion. This commentary is part of a series discussing the opinion and its possible implications for Kosovo’s legal status as well as the added value of the opinion for the development of international law and the settlement of international disputes.
The Advisory Opinion issued by the International Court of Justice on 22 July 2010 has given rise to a number of commentaries1 which have identified the various legal questions touched upon by the Court and how the legal reasoning could be improved on each of these specific aspects.
But generally, beyond these usual legal debates, the Advisory Opinion seems to have given rise to an unidentifiable feeling that something is missing. Everything seems to be normal; the Court seems to be abiding by its jurisdiction, exercising its discretion in a fashion consistent with its past practice, and using familiar vocabulary in order to achieve what seems to be a fairly uncontroversial conclusion. And yet, there is this sense of unease, that something is just not quite right, that, in effect, we have entered a legal Twilight Zone of sorts, where our perception of normality is tinged with a sense of strangeness.
I would argue that this sense of unease is explained by the subject-matter of the opinion. Indeed, this is, to the best of my knowledge, the first opinion or judgment of the Court which does not deal, even remotely, with the conduct, rights and obligations of either States or international organizations. It deals solely with whether the actions of a group of individuals, acting (or not) as the Provisional Institutions of Self-Government of Kosovo or not, are in accordance with international law. This might seem like an obvious statement to make in light of the question put to the Court by the General Assembly, but it does inform the very relevant difficulties identified by other commentators, as will be shown below.
With this conceptual clarification in mind, this brief commentary proposes to illustrate the “Twilight Zone” effect with two series of examples, the first one relating to the conduct and nature of the authors of the declaration (2) and the second one relating to the applicable law (3). In conclusion, I will suggest how this effect could have been avoided, either with the Court actually declining to exercise jurisdiction in the first place or with the Court leading the reasoning into familiar territory of international responsibility (4).
2. Illustrating the Twilight Zone Effect: The Authors of the Declaration, Who They Are and What They Did
In relation to the question of who the authors of the declaration are, commentators have already identified the profoundly flawed approach of the Court in relying exclusively on the intention of the authors in order to determine whether they were acting in their official capacity.2 Beyond that, I do agree, as pointed out by Jean d’Aspremont, that there is nothing in itself shocking with the idea that although indeed being the Provisional Institutions of Self-Government, the authors were not acting in their official capacity.3 However, there is still something disturbing about the whole discussion in light of our previously laid-down conceptual clarification. Indeed, the Court is answering a question, and with the corresponding vocabulary, that is usually relevant in order to identify whether a particular conduct can be attributed to a State because the individuals were acting in their official capacity. But once again, there is something missing here because ultimately the opinion shies away from any discussion of international responsibility. If you are not going to attribute the conduct of that group of individuals to another entity, why bother with identifying whether they were acting in their official capacity or not? In fact the futility of this endeavor is confirmed later on in the opinion when the ICJ in any case acknowledges that there is nothing, either in general international law or in Resolution 1244 that regulates this conduct in the first place.
In relation to the qualification of the acts done, Jean d’Aspremont points out the ambiguity in the Court’s discussion on the notion of “illegality”, leaving the reader uninformed as to whether the term refers to the validity of the act of declaration or the responsibility of the authors of the declaration rising from their actions.4 This is certainly true, but one has to wonder if the lack of clarity of the Court is not ultimately due to the fact that no question of State responsibility was raised, making it unnecessary for the Court to be more specific on the nature of the illegality.
3. Illustrating the Twilight Zone Effect: the Relevant Applicable Law
This “twilight zone effect” applies to one issue that has not been at the forefront of discussions until now, that is the legal nature of the Constitutional Framework. In its discussion on the relevant provisions of international law applicable to the question, the ICJ, having presented the general rules of international law, had to identify what lex specialis applied to the opinion. In that respect, it was unproblematic (and uncontested)5 that Security Council Resolution 1244(1999) was to be considered. Not as obvious, however, was the question of the Constitutional Framework. The reasoning of the Court is not entirely clear on this point.
It starts by recalling that the Framework was adopted by a Regulation of the United Nations Interim Administration Mission in Kosovo (UNMIK) in 2001.6 UNMIK Regulations, as pointed out by the ICJ,7 are executive decisions adopted by the Special Representative of the Secretary-General who draws his authority from Resolution 1244. This leads the Court to the following conclusion: “The Constitution Framework derives its binding force from the binding character of resolution 1244(1999) and thus from international law. In that sense it therefore possesses an international legal character.”8
Having said that, the ICJ, for reasons not explicated, then goes on to describe the legal order in which the Framework is to take effect. It describes a “specific legal order, created pursuant to resolution 1244(1999), which is applicable only in Kosovo and the purpose of which is to regulate, during the interim phase established by Resolution 1244(1999), matters which would ordinarily be the subject of internal, rather than international, law.”9 The Court therefore seems to describe a legal order that is not national in the traditional sense, but that is internationally created and where international law applies, thus making it a sui generis international legal order, even if the judges do not use the expression.
From the preceding two steps of the reasoning, the Court finally concludes that the Constitutional Framework forms part of the international law which is to be considered.10 Two comments can be made on this. The first one relates to the reasoning of the Court, the second to the consequences of its findings.
Firstly, in relation to the reasoning of the Court, it is puzzling that it is not more specific, not only on the nature of the Constitutional Framework, but on its relevance in the international legal order. Indeed, there is no denying that it has an international character. But that character does not necessarily make it relevant international law in international proceedings.
On this point, it is surprising that the Court did not refer to a similar situation dealt with by the Permanent Court of International Justice (PCIJ) in 1932, that of the treatment of Polish Nationals in the Danzig Territory.11 In a nutshell, according to the Treaty of Versailles “the Principal Allied and Associated Powers undertake to establish the town of Danzig […] as a Free City. It will be placed under the protection of the League of Nations.”12 Moreover, “A constitution for the Free City of Danzig shall be drawn up by the duly appointed representatives of the Free City in agreement with a High Commissioner to be appointed by the League of Nations. This constitution shall be placed under the guarantee of the League of Nations.”13 This Constitution had to be approved by the League of the Nations, and couldn’t be changed without its permission.14 The similarities with the situation in Kosovo are striking. However, when Poland claimed that the Constitution was relevant international law for the purposes of establishing Danzig’s discriminatory practices against Polish nationals, the PCIJ embarked on an entirely different reasoning. It recognized the Constitution’s “peculiarities which are not to be found in the constitutions of other countries,”15 but later adopted the following conclusion:
The peculiar character of the Danzig Constitution […] affects only the relations between Danzig and the League. A violation or an erroneous application of the Constitution by Danzig is, therefore, as far as international relations are concerned, a matter solely between the League, as guarantor, and Danzig. With Regards to Poland, the Danzig Constitution, despite its peculiarities is and remains the Constitution of a foreign State.16
This approach should also apply to Kosovo. Irrespective of the international origin of the Constitutional Framework in international law, its purpose, as recalled by the ICJ itself, was to regulate the specific legal order of Kosovo, and “the institutions which it created were empowered […] to take decisions which took effect within that body of law.”17 The conclusion should therefore have been that, notwithstanding the international character of the Constitutional Framework, it did not however give rise to international obligations to be regulated in international proceedings. From an external point of view, to paraphrase the PCIJ, the Constitutional Framework remains a domestic regulatory instrument and is, as such, not invocable (or opposable) in international proceedings. Its violation can only indirectly be relevant in an international legal context if it leads to the entity’s violation of an international norm, such as for example in this case Resolution 1244.
Secondly, the ICJ’s conclusion, that the Framework is relevant international law, is all the more problematic in light of our proposed “Twilight Zone Effect”, because the conduct under consideration is not that of a State or international organization, but that of a group of individuals. Indeed, the consequence of such reasoning is that the Court is basically saying that it can be, even in its advisory function, a sort of constitutional court of last resort in the Kosovo legal order. In fact, the consequences can even be more far reaching than that. Indeed, if the Regulation that adopts the Constitutional Framework is relevant international law for ICJ proceedings, it follows that all UNMIK resolutions are relevant international law. If we combine this with the ICJ’s acceptance to evaluate the conduct of a non-state organ, one could imagine that the ICJ, tomorrow, could be competent to give an advisory opinion on whether an public agent (say a policeman) has violated an UNMIK Regulation on some substantive area of law (say on the prevention of torture).
This last example shows the absurdity of the Court’s reasoning in relation to the applicable law, which leads to conclusions it surely did not want, but more importantly, to its approval to answer the question that was asked of it. Which leads us to the last point of our commentary, how the ICJ could have prevented the “Twilight Zone Effect”.
4. Avoiding the Twilight Zone Effect: Either Decline Jurisdiction altogether or Complete the Legal Argumentation
The above mentioned difficulties with the reasoning ultimately beg the question of whether the question, as it was (re)phrased in fact falls within the jurisdiction of the ICJ. Of course, neither the black letter of the UN Charter, nor the Statute (and case-law) of the ICJ, especially in relation to advisory opinions, seem to prohibit this sort of question.18 But, is it really in the spirit of the role and, most importantly, function, of a Court the natural area of expertise is the international law of States (and international organizations)? I would argue that the only evaluation of the actions of individuals that is relevant for a legal analysis done by the ICJ is the one that will be attributable to a State, or international organization, at some point in the reasoning. Any other analysis of the conduct of non-State actors falls beyond the natural jurisdiction of the Court.
It is on this basis that the ICJ should have declined to exercise its jurisdiction. Given the current state of the Court’s case-law, this would require it to introduce an additional criteria to its evaluation of the “legal” nature of the question asked, by requiring that not only the material scope of the question be legal, but that it refer to a recognized subject of international responsibility, namely States and International Organizations. Indeed, the current opinion shows the limits of its current practice. Basically, the Court says that because the General Assembly’s question asks for the “accordance with international law”, it is a legal question.19 Does that mean that if the General Assembly had asked the Court to tell it whether the conduct of any random individual was “in accordance with international law”, it would have considered that it had jurisdiction? That would seem unlikely.
Alternatively, the Court could modify the exercise of its discretion in exercising its jurisdiction, by allowing itself to make an evaluation of the usefulness of the opinion for the requesting organ, which it so far refuses to do.20 It would not seem an abuse of its discretion by a Court to evaluate whether the question raised in fact has any legal usefulness, in general, and in relation to the work of the requesting organ. Of course, one could argue that strictly speaking, no opinion can ever be legally useful for the General Assembly, a purely political body which adopts non-binding resolutions. This would lead to strip the General Assembly of its right to ask for an opinion altogether. But, discarding this rather radical solution, and politically inconceivable one, given that it would require a change in the UN Charter, there are obvious cases, like this one, where the question is clearly pointless because its answer will not deal with the core issues at stake: territorial sovereignty, right to secession, self-determination, obligation of non-recognition. It would even make sense logically: the whole mechanism rests on the premise that the GA requires outside help to make an adequate legal evaluation of an issue. Why should it then be trusted on the framing of the question itself? In this opinion, the ICJ implicitly acknowledges this reality when it reformulates the question, but falls short of drawing the natural conclusion of being able, either to reject the question as a whole as irrelevant, or to change its focus radically.
Indeed, the change of focus would have been a second and more ambitious option. The Court could have pushed the logic of its reasoning to its natural outcome, that of ultimately attributing the conduct of that group of individuals to an entity. It would then have been this time entirely legitimate for it to evaluate the existence of any responsibility under international law. The Opinion would have therefore unfolded in the following way.
It would start with the discussion on the authors of the declaration. If their conduct could not be attributable to another entity (i.e., they were not acting in an official capacity), that would be the end of it, because, as mentioned previously, international regulation of the conduct of individuals falls beyond the scope of the ICJ’s natural jurisdiction. If on the other hand, the authors of the declaration were acting in their official capacity, as I would have argued in the present situation, the question then arises of whom this conduct is attributable to. If one follows the reasoning of the Court on the particular structure of the Kosovo legal order, it appears that the Provisional Institutions act within the framework of an UNMIK Resolution, adopted executively by the Special Representative of the Secretary-General, who himself draws his authority from the Security Council. It thus would not be an absurd conclusion that the conduct of Kosovo institutions is ultimately attributable to the Security Council, and above that the UN as an international organization. The real (and definitely trickier) question that the ICJ should have had to answer therefore becomes whether the UN, through the actions of the Security Council, can unilaterally declare independence for a territory.
This far more ambitious question would have led the Court into fascinating territory on the powers of the Security Council in relation to interim administrations and what it means for it to exercise traditional executive sovereign powers in the name of the international community for the benefit or the local population. More generally, the Court could have explored the ambiguous relationship between the acts of international organizations, State sovereignty and territorial integrity.
As it stands, however, and to answer the question asked at the meeting held at the University of Amsterdam on the 22nd of September, the opinion is definitely a non-opinion, because the ICJ allowed itself to enter into a warped legal Twilight Zone where its conclusions could have no bearings in the real world of the international legal order.
1 In addition to the current discussion here on the Hague Justice Portal, see, for an initial analysis of the opinion, Dov Jacobs, Live from ICJ: Kosovo declaration of independence not in violation of international law, but the Court DOES NOT validate Kosovo independence!, Spreading the Jam, 22 July 2010, and Dov Jacobs, Some Additional Thoughts on the ICJ Advisory Opinion, Spreading the Jam, 23 July 2010. For a more detailed analysis, see the German Law Journal, Vol. 11, issue 8, 2010.
2 Dov Jacobs, Live from ICJ: Kosovo declaration of independence not in violation of international law, but the Court DOES NOT validate Kosovo independence!, Spreading the Jam, 22 July 2010.
3 Jean d’Aspremont, The Creation of States before the International Court of Justice: Which (Il)Legality?, Hague Justice Portal, 28 September 2010.
5 ICJ Advisory Opinion, § 85.
6 UNMIK Regulation No. 2001/9, 15 May 2001.
7 ICJ Advisory Opinion, § 88.
9 Ibid, § 89 (emphasis added).
10 Ibid, § 93.
11 PCIJ, Advisory Opinion, Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory, Series A/B, No. 44, p. 4.
13 Ibid, Article 103.
14 PCIJ, Advisory Opinion, Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory, Series A/B, No. 44, p. 21.
16 Ibid, p. 24.
17 ICJ Advisory Opinion, § 89.
18 Eric De Brabandere, The Kosovo Advisory Proceedings and the Court's Advisory Jurisdiction as a Method of Dispute Settlement, Hague Justice Portal, 28 September 2010.
19 ICJ Advisory Opinion, §25.
20 Ibid, §35.