The International Court of Justice (ICJ) ruled yesterday that Kosovo’s declaration of independence was not in violation of international law. The blogosphere has already produced some legal analyses of the judgment. Yet, the judgment is also interesting from a political science perspective both in terms of what it says about judicial behavior and what is says about the role of international law in international politics.
The most interesting feature from a judicial behavior perspective is the Court’s decision to sidestep the most politically controversial issues. The judgment did not say whether Kosovo’s secession was legal or whether other states could legally recognize the independence of Kosovo (which 67 states have done). All it did was rule that international law did not prohibit the declaration of independence. Such exercise of “judicial economy” is not at all uncommon on international courts. My colleague Marc Busch and my former student Krzystof Pelc have a recent article in International Organization where they find that the WTO regularly decides not to rule on legal questions, especially when member states submit a mixture of arguments on how to resolve a question. This certainly applies to the Kosovo case, which pitted most EU states and the US against Russia and China (amongst others). Indeed, the Kosovo issue was so important to China that it submitted its first oral argument before the court since the 1960s.
It is also interesting to see which judges dissented from the ICJ’s ruling. Even though judges are not representatives of their countries, there is ample evidence that they vote “as if” the national interests of their national governments do enter into their calculations. This is, by the way, not true for all international courts. My own research has shown that on the European Court of Human Rights judicial ideologies matter but national interests do not. Yet, the ICJ rules on matters that are much more sensitive from a geopolitical perspective. I need to be careful here as I have not been able to read the separate opinions (the ICJ web-site has been down since news of the judgment emerged) but at first glance the patterns certainly don’t seem surprising. Obviously, the Russian judge voted against (the Chinese judge was only recently elected and did not participate). The Moroccan judge may be worried that the decision sets precedent for other cases, such as the Western Sahara. The Slovak judge also dissented, in line with his government’s position. Individual ideology may matter too. For example, I wouldn’t be surprised if judge Trindade’s separate opinion finds the ICJ judgment too narrow.
Onto consequences. The most immediate consequence is likely to be that more states will recognize Kosovo. This does not necessarily open the way for Kosovo’s UN membership given the opposition by China and Russia, two veto-wielding members in the UN Security Council (which has to recommend new members to the General Assembly).
A second consequence may be that more separatist movements feel justified in declaring their independence. Maybe so but here it does become important that the ICJ did not rule on the legality of Kosovo’s statehood. More declarations of independence do not necessarily lead to more states. Yet, they could be symbolically important and could create new unrest.
Ultimately, the Court’s judgment is a rather clear recognition that achievement of statehood is governed by a political process: you become a state when other states decide to recognize you as a state. The role of law in this process is not unimportant but certainly secondary to politics.