Los principios de soberanía e integridad territorial y de autodeterminación de los pueblos en la Opinión consultiva sobre Kosovo: una oportunidad perdida
In its Advisory Opinion concerning Kosovo, the International Court of Justice avoided addressing the role and relationship of the basic principles of sovereignty and territorial integrity and self-determination of peoples. The Court reformulated the question put by the General Assembly with a very f...
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| Format: | Article |
| Language: | Spanish |
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Asociación Española de Profesores de Derecho Internacional y Relaciones Internacionales
2011
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| Online Access: | https://dialnet.unirioja.es/servlet/oaiart?codigo=3723383 |
| Source: | Revista española de derecho internacional, ISSN 0034-9380, Vol. 63, Nº 1, 2011 (Ejemplar dedicado a: La Opinión consultiva de la Corte Internacional de Justicia de 22 de julio de 2010 sobre la conformidad con el Derecho internacional de la declaración unilateral de independencia de Kosovo), pags. 29-54 |
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| Summary: |
In its Advisory Opinion concerning Kosovo, the International Court of Justice avoided addressing the role and relationship of the basic principles of sovereignty and territorial integrity and self-determination of peoples. The Court reformulated the question put by the General Assembly with a very formalist and restrictive interpretation, which converted the response into an innocuous opinion. The Court simply states that the unilateral declaration of independence made by a hundred Kosovan Albanians individuals, in its view, was neither contrary to Public International Law nor to Security Council Resolution 1244. Moreover, the Court notes that the said declaration does not necessarily constitute the exercise of a right conferred by the international legal order; nor does it consider the legal consequences arising from this statement. To sum up, the Court considers the issue of Kosovo as a sui generis case. In view of this response, perhaps it might have been more consistent, from a legal perspective, not to answer the question raised by the General Assembly, as in fact five out of fourteen Judges participating in the deliberations suggested. In any case, the majority of the Court decided in favour of the arguments
presented by the States supporting the independence of Kosovo, and implicitly highlights the importance of the principle of effectiveness and government discretion concerning the recognition of States, as an institution established in the relational structure of International Law.
In our opinion, the deference with which the Court has treated the declaration of independence of Kosovo is legally very questionable, since there is evidence that it breached both Resolution 1244 and the international administration regime that is its basis. However, from a political perspective, it is clear that the majority of the Court has sought to adapt International Law in force to the issue with a pacifying purpose, behaving more like a friendly conciliator than as a court of justice. This conclusion refers to the deeply political nature of International Law, which is undoubtedly reinforced by this Advisory Opinion. The outcome of the Kosovo case and, in particular, the Advisory Opinion of the Court, constitutes a negative precedent for the future of the system of international administration of territories, which has been legally and politically damaged. Since the Court did not resolve the uncertainties concerning the problematic relationship in these situations between the principles of sovereignty and territorial integrity and selfdetermination, it will be difficult to preach the virtues of the international administration of territories to weak or failed States. Finally, leaving aside the radical divergences maintained over the independence of Kosovo between supporting and opponent States, the position of all States participating in the proceedings leads us to the conclusion that there is a certain consensus regarding the inexistence of a right to unilateral secession and independence from parts of a State as a rule of contemporary International Law, even though secession might be admitted under exceptional circumstances, which need to be determined on a case-by-case basis: for instance, when the human rights of any sector of a population are seriously violated, including the right to internal self-determination, and when no other means to solve the controversy created by the conduct of that State exists. |
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