Guest Post: Pathik Gandhi
The Declaration of Independence by Kosovo has been given a clean chit by a majority of the judges of the ICJ in it's ICJ's Advisory Opinion of 22nd July 2010. The question which the UNGA put to the ICJ was whether the Declaration of Independence by Kosovo was valid under international law. The Court while opining on this central issue, also determined several questions as regards the admissibility of the UNGA reference, since the United Nations Security Council was also concerned with the situation in Kosovo. The Majority Court decided to exercise the discretion vested in the ICJ (with the notable dissent of Judges Tomka, Koroma, Keith, Bennouna, and Skotnikov.
As regards the principal issue, the International Court of Justice relied primarily on the argument that there has been no practise in customary international law, where a Declaration of Independence has been rendered invalid, to declare Kosovo's Declaration legal in international law. The Court narrowed down to the question - who were the authors of the Declaration of Independence? This question was the crux of the issue because the members of the Provisional Assembly in Kosovo had been elected under the Framework created by the United Nations, throught the Representative of the Secretary General, thereby rendering any Declaration by them beyond the ambit of the Framework Resolution of the Security Council.
The Opinion has come for criticism for the radical approach taken by the International Court of Justice, where it has sought to refrain from crucial International Law principles such as self-determination, territorial integritiy, inviolability of borders, use of force etc. An interesting critique is that by, Dr. Alexander Mezyaev International Law Department Governance Academy available here. The Opinion can be accessed here: Accordance with international law of the unilateral declaration of independence in respect of Kosovo (Request for Advisory Opinion) - Advisory Opinion - Advisory Opinion of 22 July 2010.
This Opinion, besides an interesting study of Judicial Process, leads one to ponder over the feasibility of such measures being declared legal in other areas of conflict such as Kosovo or Basque.
Pathik Gandhi has recently graduated from NALSAR University of Law, Hyderabad.