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³ Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, 2010 I.C.J. 403, ¶ 75 (July 22) [hereinafter Kosovo Opinion]:Google Scholar

1. We, the democratically-elected leaders of our people, hereby declare Kosovo to be an independent and sovereign state. This declaration reflects the will of our people and it is in full accordance with the recommendations of UN Special Envoy Martti Ahtisaari and his Comprehensive Proposal for the Kosovo Status Settlement. 2. We declare Kosovo to be a democratic, secular and multi-ethnic republic, guided by the principles of non-discrimination and equal protection under the law. We shall protect and promote the rights of all communities in Kosovo and create the conditions necessary for their effective participation in political and decision-making processes. … 5. We welcome the international community's continued support of our democratic development through international presences established in Kosovo on the basis of UN Security Council resolution 1244 (1999). We invite and welcome an international civilian presence to supervise our implementation of the Ahtisaari Plan, and a European Union-led rule of law mission. … 9. We hereby undertake the international obligations of Kosovo, including those concluded on our behalf by the United Nations Interim Administration Mission in Kosovo (UNMIK). … 12. We hereby affirm, clearly, specifically and irrevocably, that Kosovo shall be legally bound to comply with the provisions contained in this Declaration, including especially, the obligations under the Ahtisaari Plan. … We declare publicly that all states are entitled to rely upon this declaration. …Google Scholar

⁴ The term “juridical” or “legal” is employed throughout the text to connote acts that have binding force on the international plane, as opposed to “political” acts, such as acts that lie outside the ambit of law. For the theory of international juridical acts, see Jan Hendrik Willem Verzijl, International Law in a Historical Perspective, Vol. VI: Juridical Facts as Sources of Rights and Obligations 48 (1979).Google Scholar

⁵ Nuclear Tests (Austl. v. Fr.), Judgment, 1974 I.C.J. Rep. 253, ¶ 43 (Dec. 20) [hereinafter Nuclear Tests]; Nuclear Tests (N.Z. v. Fr.), Judgment, 1974 I.C.J. Rep. 457, ¶ 46 (Dec. 20). The Court's judgments in these two cases are almost identical and for that reason all references are made to the case between Australia and France.Google Scholar

⁶ Unilateral Acts of States, in Analytical Guide to the Work of the International Law Commission ch 9.9, (1949–97), U.N. Doc. E.98.V.10 (1998). For the final product of the ILC's work on the topic, see Guiding Principles Applicable to Unilateral Declarations of States Capable of Creating Legal Obligations, U.N. GAOR, 61st Sess., Supp. 10; U.N. Doc. A/61/10, at 359 (2006) [hereinafter Guiding Principles].Google Scholar

⁷ Nuclear Tests, 1974 I.C.J. at 267, ¶ 43 (“When it is the intention of the State making the declaration that it should become bound according to its terms, that intention confers on the declaration the character of a legal undertaking. … An undertaking of this kind, if given publicly, and with an intent to be bound, even though not in the context of international negotiations, is binding.”).Google Scholar

⁸ Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo, (Request for an Advisory Opinion), Written Comments of the Government of the Republic of Serbia, Kosovo, ¶ 193 (July 14, 2009) [hereinafter Written Comments], http://www.icj-cij.org/docket/files/141/15686.pdf.Google Scholar

⁹ See id. at ¶ 313.Google Scholar

¹⁰ See e.g., Weller, Marc, Contested Statehood: Kosovo's Struggle for Independence 231 (2009).Google Scholar

¹¹ Written Comments, , supra note 8, at ¶¶ 189–243 (July 14, 2009), http://www.icj-cij.org/docket/files/141/15686.pdf.Google Scholar

¹² See generally, Vidmar, Jure, Conceptualizing Declarations of Independence, 32 Oxford J. of Legal Stud. 153 (2012); Jure Vidmar, Unilateral Declarations of Independence in International Law, in Statehood and Self-Determination: Reconciling Tradition and Modernity in International Law 60 (Duncan French ed. 2013).Google Scholar

¹³ Opinion, Kosovo, supra note 3, at ¶¶ 78–121.Google Scholar

¹⁴ Id. at ¶ 51.Google Scholar

¹⁵ Id. Google Scholar

¹⁶ Id. at ¶¶ 78–121.Google Scholar

¹⁷ S.C. Res. 1244, U.N. Doc. S/RES/1244 (June 10, 1999).Google Scholar

¹⁸ Opinion, Kosovo, supra note 3, at ¶ 122.Google Scholar

¹⁹ This narrow approach adopted by the majority of the judges was severely criticized not only by academics, but also by some of the judges. See e.g., Robert Howse & Ruti Teitel, Delphic Dictum: How Has the ICJ Contributed to the Global Rule of Law by Its Ruling in Kosovo?, 11 German L. J. 841 (2010); see also Kosovo Opinion, supra note 3, at 478 (declaration of Simma, J.); Kosovo Opinion, supra note 3 at 618 (separate opinion by Yusuf, J.).Google Scholar

²⁰ Opinion, Kosovo, supra note 3, at ¶ 122.Google Scholar

²¹ Of course, this particular question did arise in the context of nuclear weapons. See Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. Rep., 226 (July 8). The Court's methodological approach in the Kosovo Opinion stands in stark contrast to the one adopted in the Nuclear Weapons Advisory Opinion. In the latter case, the Court examined both prohibitive and permissive relevant rules before concluding that “in view of the current state of international law … the Court cannot conclude definitely whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defense, in which the very survival of a State would be at risk.” Id. at ¶ 52, 105 (2) E.Google Scholar

²² Opinion, Kosovo, supra note 3, at 479–80 (declaration of Simma, J.).Google Scholar

²³ See Crawford, James, The Creation of States in International Law 389–90 (2006); see also Hersch Lauterpacht, Recognition in International Law 8 (1947).Google Scholar

²⁴ See e.g., Frowein, Jochen A., Kosovo and Lotus, in From Bilateralism to Community Interest: Essays in Honour of Bruno Simma 923 (Ulrich Fastenrath ed., 2011); Hanna Jamar & Mary Katherine Vigness, Applying Kosovo: Looking to Russia, China, Spain and Beyond After the International Court of Justice Opinion on Unilateral Declarations of Independence, 11 German L. J. 913 (2010); Alexander Orakhelashvili, Statehood, Recognition and the United Nations System: A Unilateral Declaration of Independence in Kosovo, 12 Max Planc Y.B. of United Nations L. 1 (2009); Marcelo G. Kohen & Katherine Del Mar, The Kosovo Advisory Opinion and UNSCR 1244 (1999): A Declaration of “Independence from International Law”?, 24 Leiden J. Int'l L. 109 (2011).Google Scholar

²⁵ See Comments, Written, supra note 8, ¶ 174.Google Scholar

²⁶ Id. Google Scholar

²⁷ Id. at ¶ 181.Google Scholar

²⁸ Id. at ¶ 174; The Montevideo Convention was ratified through 1941 by 16 States, including the United States of America, Brazil, Mexico and Colombia). See Montevideo Convention on the Rights and Duties of States, Dec. 26, 1933, 165 L.N.T.S. 19 [hereinafter Montevideo Convention].Google Scholar

²⁹ See Comments, Written, supra note 8, at ¶ 313.Google Scholar

³⁰ Id. at ¶ 313; See also Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo, Verbatim Record, C.R. 2009/24, at 73, ¶ 29, (Dec. 1) [hereinafter Kosovo—Verbatim Record], http://www.icj-cij.org/docket/files/141/15710.pdf.Google Scholar

³¹ Of course, Serbia's final submission was that, because Kosovo did not have a right to external self-determination at the time that the Declaration was made, the Declaration was unlawful and did not create its purported legal effects—i.e. the creation of the Republic of Kosovo. Written Comments, supra note 8, ¶¶ 313-360.Google Scholar

³² Id. at ¶¶ 208–10.Google Scholar

³³ See S.C. Res. 216. ¶ 1 (Nov. 12, 1965); S.C. Res. 217, ¶ 3 (Nov. 20, 1965).Google Scholar

³⁴ See S.C. Res. 169, ¶ 8 (Nov. 24, 1961).Google Scholar

³⁵ See S.C. Res. 541, ¶ 2 (Nov. 18, 1983).Google Scholar

³⁶ See Tests, Nuclear, supra note 5, at ¶ 43; Guiding Principles, supra note 6, at 370.Google Scholar

³⁷ In fact, the Court itself, in the context of the Kosovo Opinion, was quick to draw the line between States and non-State entities and rejected an argument according to which the principle of respect for territorial integrity is applicable mutatis mutandis to non-State entities. See Kosovo Opinion, supra note 3, at¶ 80.Google Scholar

³⁸ See Convention, Montevideo, supra note 28, at art. 1; Reference re Secession of Quebec, 2 S.C.R. 217, ¶ 142 (1998), scc-csc.lexum.com/scc-csc/scc-csc/en/item/1643/index.do; Opinion No. 1 of the Conference on Yugoslavia Arbitration Commission: Opinions on Questions Arising from the Dissolution of Yugoslavia, 31 ILM 1488, 1495 (1992) ([hereinafter Opinion No. 1 of the Badinter Commission] (“The Committee considers … that … the existence or disappearance of the state is a question of fact.”). See also The Report of the Independent International Fact-Finding Mission on the Conflict in Georgia vol. II, 127–29, RT (Sept., 2009), http://www.caucasus-dialog.net/Caucasus-Dialog/Activities_&_Docs_files/IIFFMCG_Volume_II%20Kopie.pdf, [hereinafter The Report].Google Scholar

³⁹ See Craven, Matthew, Statehood, Self-Determination, and Recognition, in International Law 201, 215 (Malcolm D. Evans ed., 2014). Crawford, supra note 23, at 5. Of course, a State is not, as Crawford notes, a fact “in the sense that a chair is a fact.” Id. It is rather “a legal status attaching to a certain state of affairs by virtue of certain rules or pracices.” Id. For a similiar approach, see also Jure Vidmar, Democracy and Statehood in International Law 47 (2013) (“The emergence of a new state is not a simple matter of a self-evident fact, but rather a matter of an international legal acceptance of a certain territory having a specific legal status.”). See also Théodore Christakis, The State as A “Primary Fact”: Some Thoughts on the Principle of Effectiveness, in Secession: International Law Perspectives 138 (Marcelo G. Kohen ed., 2006).Google Scholar

⁴⁰ This is not to suggest that an entity that fulfills the factual requirements enunciated in the Montevideo Convention on the Rights and Duties of States will necessarily achieve Statehood. In practice, recognition by other States plays an important role in consolidating claims to Statehood, as it will be discussed below. In modern State practice, it seems that recognition is not solely based on the existence of the factual elements of Statehood. A whole host of additional considerations, such as the existence of democratic institutions, respect for human rights, and the protection of minorities, may lead a State to grant or withhold recognition. See e.g., the EC Declaration of Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union, 4 Eur. J. Int‘l L. 72 (1993); see also Vidmar, supra note 39, at 137–38. It would be unfair to assume that because modern recognition practice goes beyond the traditional criteria for Statehood, these criteria have become redundant. Rather, this recent trend highlights the fact that recognition is determined by both legal and political factors. See Cedric Ryngaert & Sven Sobrie, Recognition of States: International Law or Realpolitik? The Practice of Recognition in the Wake of Kosovo, South Ossetia and Abkhazia, 24 Leiden J. Int‘l L. 467, 483–84 (2011).Google Scholar

⁴¹ See The Oral Statements Made During the Public Sitting at the Peace Palace, in the Kosovo Advisory Opinion, C.R. 2009/31, 46 (Dec. 9, 2009) (oral statements made by Norway), http://www.icj-cij.org/docket/files/141/15750.pdf; id., at 9 (oral statements by France); The Oral Statements Made During the Public Sitting at the Peace Palace in the Kosovo Advisory Opinion, C.R. 2009/30, 57 (Dec. 9, 2009) (oral statements made by Finland), http://www.icj-cij.org/docket/files/141/15761.pdf.Google Scholar

⁴² Convention, Montevideo, supra note 28, at art. 6; see also Opinion No. 1 of the Badinter Commission, supra note 38, at 1495. (“The Committee considers … that the effects of recognition by other states are purely declaratory.”). For different theories on recognition, see Thomas D. Grant, The Recognition of States: Law and Practice in Debate and Evolution 1–18 (1999).Google Scholar

⁴³ See Reference re Secession of Quebec, 2 S.C.R. 217, at ¶ 142.Google Scholar

⁴⁴ See The Report, supra note 38, at 129.Google Scholar

⁴⁵ Id.; see also Caglar v. Billingham (Inspector of Taxes) & Related Appeals, S.T.C. 150, ¶ 182 (1996) (“In view of the non-recognition of the Turkish Republic of Northern Cyprus by the whole of the international community other than Turkey we conclude that it does not have functional independence as it cannot enter into relations with other States.”).Google Scholar

⁴⁶ Crawford, , supra note 23, at 74; see also Jan Klabbers, International Law 73 (2013).Google Scholar

⁴⁷ It would be beyond the scope of the present work to provide a detailed account of these four instances of unilateral secession. All of them have attracted much scholarly attention and thus, the relevant territory is fairly well chartered. On Bangladesh and Abkhazia, see John Dugard & David Raic, The Role of Recognition in the Law and Practice of Secession, in Secession: International law Perspectives 94, 113-19, 120-23 (Marcelo G. Kohen ed., 2006). On Bangladesh, see Crawford, supra note 23, at 393. On Kosovo, see Kosovo and International law: The ICJ Advisory Opinion of 22 July 2010 (Peter Hilpold ed., 2012); Jessica Almqvist, The Politics of Recognition: The Question About the Final Status of Kosovo, in Statehood and Self-Determination: Reconciling Tradition and Modernity in International law 165 (Duncan French ed., 2013). On Abkhazia, see Grace Bolton, International Responses to the Secession Attempts of Kosovo, Abkhazia and South Ossetia 1989-2009, in Statehood and Self-Determination: Reconciling Tradition and Modernity in International Law 109 (Duncan French ed., 2013). On Biafra, see Crawford, supra note 23, at 406; see also David A. Ijalaye, Was “Biafra” at Any Time a State in International Law?, 65 Am. J. Int'l L. 551 (1971).Google Scholar

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⁴⁹ See “Who Recognized Kosova as an Independent State? The Kosovar People Thank you!,” www.kosovothanksyou.com (last visited Apr. 2, 2016).Google Scholar

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⁵⁴ On Southern Rhodesia, S.C. Res. 217, supra note 33, ¶ 3; on the Turkish Republic of Northern Cyprus, S.C. Res. 541, supra note 34, ¶ 3.Google Scholar

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