¹ Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 136 (9 July).Google Scholar

² Indep. Int'l Comm'n on Kosovo, The Kosovo Report (2000), http://www.reliefweb.int/library/documents/thekosovoreport.htm.Google Scholar

³ See, e.g., Marc Weller, The Crisis in Kosovo 1989–1999 (1999).Google Scholar

⁴ Prosecutor v. Milan Milutinović and others, Case No. IT-05-87-T (26 Feb. 2009).Google Scholar

⁵ In Request for an advisory opinion of the International Court of Justice on whether the unilateral declaration of independence of Kosovo is in accordance with international law, G.A. Res. 63/3, UN Doc. A/RES/63/3 (8 Oct. 2008).Google Scholar

⁶ U.N. Charter art. 92.Google Scholar

⁷ Accordance with International Law of the Unilateral Declaration of Independence in respect of Kosovo, Advisory Opinion, 2010 I.C.J. 141 (22 July), available at http://www.icj-cij.org/docket/index.php?p1=3&p2=4&code=kos&case=141&k=21 (last visited 20 Aug. 2010).Google Scholar

⁸ S.C. Res. 1244, U.N. Doc. S/RES/1244, (10 June 1999).Google Scholar

⁹ Accordance with International Law of the Unilateral Declaration of Independence in respect of Kosovo, supra note 7, at para. 84.Google Scholar

¹⁰ The Case of the S.S. “Lotus,” 1927 P.C.I.J. (ser. A.,) No. 10, at 18–19 (7 Sept.). One would do well here to see Lotus in the proper context: Lotus was decided more than 80 years ago in the different and less developed environment of the League of Nations; although having been framed in general terms, Lotus was mainly concerned with a specific topic (delineation of jurisdiction in criminal matters); finally, the votes of the judges were split in Lotus, so that Max Huber as President of the Court decided the case (id. at 32). See also the argument based on Lotus doctrine in Legality of the Treat or Use of Nuclear Weapons, Advisory Opinion,1996 I.C.J. 226 (8 July) at 239. On this advisory opinion see International Law, the International Court of Justice and Nuclear Weapons (Laurence Boisson De Chazournes & Philippe Sands eds., 1999), notably the contributions by Ole Spiermann, Lotus and the Double Structure of International Legal Argument, 131, and by Daniel Bodansky, Non liquet and the Incompleteness of International Law, 153.Google Scholar

¹¹ Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo (Req. for Advisory Op.) (oral statement by James Crawford on behalf of the United Kingdom) CR 2009/32, (10 Dec. 2009), at paras. 8 and 23, available at http://www.icj-cij.org/docket/index.php?p1=3&p2=4&k=21&case=141&code=kos&p3=2 (last visited 20 Aug. 2010).Google Scholar

¹² Completeness is usually discussed in the context of the role of the judge in international law. See, e.g., Hersch Lauterpacht, The Function of Law in the International Community 64 (1933): “The completeness of the rule of law—as distinguished from the completeness of individual branches of statutory or customary law—is an a priori assumption of every system of law, not a prescription of positive law.” [Emphasis in original] (typically, Lauterpacht refers to Gustav Radbruch in a footnote to the passage.) See also id. at 67 for the possibility of a non liquet. Google Scholar

¹³ See only the “soft” Int'l Law Comm'n, Draft Articles on Responsibility of States for Internationally Wrongful Acts, in 2 Yearbook of the International Law Commission (pt. 2) (2001). For accountability in light of state responsibility, see Helmut Philipp Aust, The Normative Environment for Peace—On the Contribution of the ILC's Articles on State Responsibility, in Peace Through International Law 13 (Georg Nolte ed., 2009).Google Scholar

¹⁴ Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo, supra note 11, at para. 5.Google Scholar

¹⁵ Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, G.A. Res. 2625 (XXV), U.N. Doc. A/8028, GAOR 25th session supp. 28, 121 (24 Oct. 1970).Google Scholar

¹⁶ International Court of Justice, Wall opinion, supra note 1, at 181.Google Scholar

¹⁷ Accordance with International Law of the Unilateral Declaration of Independence in respect of Kosovo (Simma, J., declaration) (22 July 2010), available at http://www.icj-cij.org/docket/index.php?p1=3&p2=4&k=21&case=141&code=kos&p3=4 (last visited 20 Aug. 2010).Google Scholar

¹⁸ See, e.g., Uno-Richter unterstützen Kosovo, Neue Zürcher Zeitung, 23 July 2010, at 1. German Law JournalGoogle Scholar

¹⁹ Prosecutor v. Milan Milutinović and others, supra note 4.Google Scholar

²⁰ See also Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo (Req. for Advisory Op.), public hearings (oral statement by Martti Koskenniemi on behalf of Finland), CR 2009/30, (8 Dec. 2010), at para. 13–14 (laying out the “brief, formally correct response” and continuing to elaborate on self-determination and territorial integrity).Google Scholar

²¹ See also Judge Abdul Koroma's dissenting opinion: Accordance with International Law of the Unilateral Declaration of Independence in respect of Kosovo (Koroma, J., dissenting) (22 July 2010) at para. 20, available at http://www.icj-cij.org/docket/index.php?p1=3&p2=4&k=21&case=141&code=kos&p3=4 (last visited 20 Aug. 2010).Google Scholar

²² S.C. Res. 1244, supra note 8. For the assessment of the facts in light of this Resolution, see Accordance with International Law of the Unilateral Declaration of Independence in respect of Kosovo, supra note 7, at para. 85.Google Scholar

²³ Daniel Thürer & Thomas Burri, Secession, in Max Planck Encyclopedia of Public International Law (Rüdiger Wolfrum ed., 2009).Google Scholar

²⁴ Accordance with International Law of the Unilateral Declaration of Independence in respect of Kosovo, supra note 7, at para 82. One can, of course, only speculate about the deep divisions within the court. Quite probably the opinions of the judges published along with the advisory opinion only offer a glimpse of these divisions.Google Scholar

²⁵ Accordance with International Law of the Unilateral Declaration of Independence in respect of Kosovo (Koroma, J., dissenting), supra note 21, at para 23. Judge Koroma's citation, it is respectfully submitted, stops before the relevant part of the passage of the Supreme Court of Canada's opinion in Reference re Secession of Quebec. The entire passage reads: It is clear that international law does not specifically grant component parts of sovereign states the legal right to secede unilaterally from their ‘parent’ state. [Judge Koroma's citation stops here] This is acknowledged by the experts who provided their opinions on behalf of both the amicus curiae and the Attorney General of Canada. Given the lack of specific authorization for unilateral secession, proponents of the existence of such a right at international law are therefore left to attempt to found their argument (i) on the proposition that unilateral secession is not specifically prohibited and that what is not specifically prohibited is inferentially permitted; or (ii) on the implied duty of states to recognize the legitimacy of secession brought about by the exercise of the well-established international law right of ‘a people’ to self-determination.” [brackets added] Reference re Secession of Quebec, [1998] 2 S.C.R. 217, para. 111 (Can.).Google Scholar

²⁶ Id. at para. 126 (as to self-determination outside the colonial context: “A right to external self-determination (which in this case potentially takes the form of the assertion of a right to unilateral secession) arises in only the most extreme of cases and, even then, under carefully defined circumstances.” (underlining in original)); id. at para. 133 (“The other clear case [i.e. apart from decolonization] where a right to external self-determination accrues is where a people is subject to alien subjugation, domination or exploitation outside a colonial context.”); id. at para. 134: A number of commentators have further asserted that the right to self-determination may ground a right to unilateral secession in a third circumstance. Although this third circumstance has been described in several ways, the underlying proposition is that, when a people is blocked from the meaningful exercise of its right to self-determination internally, it is entitled, as a last resort, to exercise it by secession. id. at para. 135: While it remains unclear whether this third proposition actually reflects an established international law standard, it is unnecessary for present purposes to make that determination. Even assuming that the third circumstance is sufficient to create a right to unilateral secession under international law, the current Quebec context cannot be said to approach such a threshold. (Brackets added); see also the summary in para. 138.Google Scholar

²⁷ For a similar reason the problem of creating a precedent for all cases in which secession looms—a problem of which the Court is obviously aware (see only the stress it puts on the exceptionality of the regime established under S.C. Res. 1244 in para. 97 of the advisory opinion)—can only partly explain the Court's reluctance to address secession: With the approach chosen by the Court in the advisory opinion, a precedent is established, too (albeit a negative one in the sense that declarations of independence are a zone free from [general] international law).Google Scholar

²⁸ To be sure, the International Court of Justice had dealt with self-determination before: For instance, in the Western Sahara advisory opinion the Court confirmed the right to self-determination (see Western Sahara, Advisory Opinion, 1975 I.C.J. 12 (16 October), notably para. 70), and in the Wall opinion the Court ruled that self-determination had been violated (see Wall opinion, supra note 1, at 184). Yet, it should be recalled that the Western Sahara opinion mainly addressed self-determination in a decolonization context (the classic domain of self-determination) and that in the Wall opinion the right to self-determination of the Palestinian people played a rather vague and marginal role.Google Scholar