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In the Kosovo Advisory Opinion the ICJ had to decide if the unilateral declaration of Kosovo of February 2008 was ‘in accordance with’ international law. The Court inquired and concluded that the applicable international law did not prohibit an unilateral declaration of independence. Based exclusively on this finding of a lack of prohibition, the Court decided that ‘the adoption of the declaration of independence did not… violate any applicable rule of international law’.
Judge Simma in his declaration on the Kosovo Advisory Opinion disagreed, inter alia, with Court’s methodology in arriving at this conclusion. He imputed it to the principle established in the Lotus case: that which is not prohibited is permitted under international law.
Simma questioned the wisdom of the ICJ’s continued reliance of the dictum of the Lotus case that “…restrictions on the independence of States cannot be presumed because of the consensual nature of the international legal order”. Simma argued that this strict binary approach of ‘what is not prohibited is permitted’ stems from an out dated, 19th century positivist approach that is excessively differential towards State consent. Simma criticised that in determining if the unilateral declaration was in accordance with applicable international law, the court:
(1) Equated an absence of a prohibition with the existence of a permissive rule – it held that what is not prohibited is ipso facto permitted.
(2) Did not search for permissive rules – i.e. the court did not assess if unilateral declarations of independence could be tolerated or permitted under international law in certain circumstances. He said:
“The relevance of self-determination and/or remedial secession remains an important question in terms of resolving the broader dispute in Kosovo and in comprehensively addressing all aspects of the accordance with international law of the declaration of independence…In this light, I believe that the General Assembly’s request deserves a more comprehensive answer, assessing both permissive and prohibitive rules of international law..… To treat these questions more extensively would have demonstrated the Court’s awareness of the present architecture of international law (paras 5 -7).”
(3) Did not consider the possibility that international law can be deliberately neutral or silent on the international lawfulness of certain acts. Simma argued that the court did not consider the possibility that an act might be ‘tolerated’. Tolerated does not mean that the act is ‘legal’, but rather that it is ‘not illegal’. For the court, argued Simma, “…everything which is not expressly prohibited carries with it the same color of legality; it ignores the possible degrees of non-prohibition, ranging from ‘tolerated’ to ‘permissible’ to ‘desirable’…” Simma did not give examples of areas of neutrality of international law. He criticised the Court’s refusal to do so as follows:
“In this sense, I am concerned that the narrowness of the Court’s approach might constitute a weakness, going forward, in its ability to deal with the great shades of nuance that permeate international law. Furthermore, that the international legal order might be consciously silent or neutral on a specific fact or act has nothing to do with non liquet, which concerns a judicial institution being unable to pronounce itself on a point of law because it concludes that the law is not clear. The neutrality of international law on a certain point simply suggests that there are areas where international law has not yet come to regulate, or indeed, will never come to regulate. There would be no wider conceptual problem relating to the coherence of the international legal order (para 9).”
There would not be a summary of the Kosovo Advisory Opinion on this blog because this is accessible on the web. You may wish to consult the following: