Territorial Integrity Narrowly Interpreted: Reasserting the Classical Inter-State Paradigm of International Law

2011 ◽  
Vol 24 (1) ◽  
pp. 87-94 ◽  
Author(s):  
OLIVIER CORTEN
Keyword(s):  
International Law ◽  
Use Of Force ◽  
Advisory Opinion ◽  
Territorial Integrity ◽  
Declaration Of Independence ◽  
Traditional Conception ◽  
State Actors ◽  
Special Case ◽  
Inter State

AbstractParagraph 80 of the Kosovo AO reflects a very traditional conception of international law. By insisting on the inter-state character of the principle of territorial integrity, the Court refused to challenge the classical argument of the ‘neutrality’ of international law in regard to secession. The Court also refused any reinterpretation of Article 2(4) of the UN Charter. As already stated in the Wall Advisory Opinion, the prohibition of the use of force is only applicable between states. It does not apply between states and non-state actors, whether secessionist or not. Similarly, the Court refused the argument of ‘remedial secession’, at least as far as it would imply a right to violate the principle of territorial integrity of a state by a secessionist group. Indeed, if the latter principle is not applicable in such situations, it logically cannot be violated and there is therefore no right to infringe it. Finally, the Court refused to consider Kosovo as a ‘special case’ or a sui generis situation. According to the Court, this situation must be governed by the traditional rules of general international law. This implies that Kosovo did not violate international law by proclaiming independence. But this also implies that a declaration of independence by a secessionist group inside Kosovo would not be contrary to international law. Moreover, it can be pointed out that if Kosovo is not a state (a hypothesis perfectly compatible with the advisory opinion), then general international law would not preclude Serbia from invoking the argument of ‘legal neutrality’ to support such a secessionist group.

Extraterritorial Use of Force against Non-State Actors: PS to Hague Academy Lectures

2021 ◽  
Vol 54 (2) ◽  
Author(s):  
Dire Tladi
Keyword(s):  
International Law ◽  
Use Of Force ◽  
Apparent Contradiction ◽  
Territorial Integrity ◽  
The Hague ◽  
State Actors ◽  
Self Defence

In July 2021, the author presented a Special Course for the Hague Academy of International Law Summer Courses on the Extraterritorial Use of Force against Non-State Actors. The course focused on two bases for the extraterritorial use of force against non-state actors, namely self-defence and intervention by invitation. The lectures came to a conclusion that may, at first glance, appear contradictory. With respect to the use of force in self-defence, the lectures adopted a restrictive (non-permissive) approach in which the use of force is not permitted save in narrowly construed exceptions. With respect to intervention by invitation, the lectures adopted a more permissive approach in which the use of force is generally permitted and prohibited only in narrowly construed exceptions. This article serves as post-script (PS), to explain the apparent contradiction. It concludes that the main reason for this apparent contradiction is the application of the fundamental principles of international law—sovereignty, territorial integrity and independence—which are consistent with intervention by invitation but are undermined by self-defence against non-state actors.

The ICJ Advisory Opinion on Kosovo: Has International Law Something to Say about Secession?

2011 ◽  
Vol 24 (1) ◽  
pp. 73-86 ◽  
Author(s):  
THEODORE CHRISTAKIS
Keyword(s):  
International Law ◽  
Self Determination ◽  
General Assembly ◽  
Advisory Opinion ◽  
Simple Fact ◽  
Territorial Integrity ◽  
Declaration Of Independence ◽  
Future Developments ◽  
The Icj ◽  
Un General Assembly

AbstractThe objective of this paper is to examine how the Court has dealt with existing general international law governing secession and to evaluate the effects that this opinion could have on future developments in this field. The narrow interpretation of the question submitted by the UN General Assembly permitted the Court to avoid many important questions. The Court made no statements concerning Kosovo's statehood and recognition by third states and made no mention of statehood requirements or the ‘principle of effectiveness’. The Court also refused to examine whether Kosovo (or any other entity outside the colonial context) had a ‘right’ to secession, but gave no endorsement to attempts to apply external self-determination outside the colonial context or to the theory of ‘remedial secession’. This paper explains why the Court did not apply the ‘Lotus’ freedom principle in the Kosovo case. It welcomes the indirect, but clear, position of the Court that a declaration of independence can, in some situations (and especially in the case of external aggression), be illegal – a position that contradicts the old theory, stemming from Jellinek, that the creation of a state is nothing but a ‘simple fact’. While the Court correctly found that outside these exceptional circumstances, no general prohibition against unilateral declarations of independence exists in international law, it should have added that international law is not ‘neutral’ in this field, that it disfavors secession, and that it creates a presumption against the effectiveness of secession. The ‘legal-neutrality’ stance adopted by the Court is not without risks. Indeed, the Court should have been more cautious in its assertion that ‘the scope of the principle of territorial integrity is confined to the sphere of relations between states’, not only because recent practice clearly indicates the contrary, but also because its position could have an unwelcome effect in resolving future separatist conflicts by rendering countries extremely sceptical of solutions of autonomy or international administration.

Historical Development

2018 ◽  
Author(s):  
Kubo Mačák
Keyword(s):  
International Law ◽  
Historical Development ◽  
General Trend ◽  
Armed Conflicts ◽  
Fundamental Transformation ◽  
State Actors ◽  
The Law ◽  
State Relations ◽  
Inter State ◽  
State Territory

This chapter traces the development of the law of belligerent occupation in order to identify trends relevant to the regulation of internationalized armed conflicts. It observes that despite the general grounding of this body of law in a state-centric paradigm, several isolated developments have contemplated the possibility of non-state actors becoming belligerent occupants of a portion of state territory. Moreover, the chapter highlights that the law of belligerent occupation has undergone a fundamental transformation as part of a general trend of individualization and humanization of international law. Therefore, it is no longer simply a brake on inter-state relations and a protector of states’ interests and institutions. Instead, the law has gradually brought individuals’ interests to the fore, putting persons before institutions and individuals before states. Overall, the chapter uncovers the historical reasons that support an extensive view of the applicability of the law of occupation to modern internationalized armed conflicts.

Crimea in International Courts and Tribunals: Matters of Jurisdiction

2018 ◽  
Vol 21 (1) ◽  
pp. 378-403
Author(s):  
Gaiane Nuridzhanian
Keyword(s):  
Human Rights ◽  
Use Of Force ◽  
International Court Of Justice ◽  
Territorial Integrity ◽  
International Courts ◽  
Preliminary Examination ◽  
Court Of Justice ◽  
European Court ◽  
International Court ◽  
Inter State

The events taking place in Crimea since early 2014 have given rise to a number of international disputes currently pending before international courts and tribunals. Ukraine instituted inter-State proceedings against Russia before the International Court of Justice, the European Court of Human Rights and an unclos Annex vii Tribunal. Seven investor-State cases have been commenced against Russia. The Prosecutor of the icc is conducting preliminary examination into the crimes allegedly committed in Crimea in 2014 and afterwards. Foreign courts have also had to deal with cases related to the annexation of Crimea. This article provides an overview of cases pending before international courts and tribunals in relation to events in Crimea. The focus is on the questions related to jurisdiction of the international courts and tribunals seized in Crimea-related cases. The study explores the limits of the jurisdiction of international courts to adjudicate disputes concerning the interpretation and application of a treaty arising in connection with a larger dispute regarding the use of force, respect for sovereignty and territorial integrity. The article also discusses novel and debated jurisdiction-related matters that arise in cases brought in relation to events in Crimea. A brief description of cases heard in foreign courts is provided as well.

A Note on the ICJ Advisory Opinion on Kosovo

2010 ◽  
Vol 11 (7-8) ◽  
pp. 867-880 ◽  
Author(s):  
Robert Muharremi
Keyword(s):  
United Nations ◽  
International Law ◽  
General Assembly ◽  
Advisory Opinion ◽  
International Court Of Justice ◽  
Declaration Of Independence ◽  
Court Of Justice ◽  
International Court ◽  
Unilateral Declaration ◽  
The Icj

On 22 July 2010, the International Court of Justice (hereinafter the “ICJ”) delivered its advisory opinion on the accordance with international law of the unilateral declaration of independence in respect of Kosovo. The ICJ concluded that the declaration of independence dated 17 February 2008 did not violate any applicable rule of international law consisting of general international law, UNSC resolution 1244 (1999) (hereinafter the “Resolution 1244”) and the Constitutional Framework for Provisional Self-Government in Kosovo (hereinafter the “Constitutional Framework”). The ICJ delivered the advisory opinion in response to a question set out in resolution 63/3 dated 8 October 2008 of the General Assembly of the United Nations Organization (hereinafter the “General Assembly”), which asked if “the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo is in accordance with international law.”

The Annexation of Crimea and International Law: Review of Thomas D Grant's Aggression Against Ukraine: Territory, Responsibility and International Law

2017 ◽  
Vol 50 (2) ◽  
pp. 211-225 ◽  
Author(s):  
Natalia Cwicinskaja
Keyword(s):  
International Law ◽  
Use Of Force ◽  
Legal Issues ◽  
Self Determination ◽  
Territorial Integrity

Thomas D Grant's Aggression Against Ukraine: Territory, Responsibility and International Law (Palgrave Macmillan 2015) is the first book which offers a careful, meticulous examination of all aspects of Russia's involvement in Crimea in 2014 in terms of international law, as well as of both Russian and Ukrainian municipal legal orders. It covers probably the widest possible spectrum of legal issues connected with Russia's involvement in Crimea and provides a comprehensive, analytical overview of relevant modern rules of international law in the field of territorial integrity, self-determination and use of force.

scholarly journals The Legality Of Nato'S Action In The Former Republic Of Yugoslavia (Fry) Under International Law

2000 ◽  
Vol 49 (4) ◽  
pp. 910-925 ◽  
Author(s):  
Christine Chinkin
Keyword(s):  
International Relations ◽  
United Nations ◽  
International Law ◽  
Use Of Force ◽  
Territorial Integrity ◽  
Political Independence ◽  
The United Nations ◽  
United Nations Charter

The use of force has been prohibited in international relations since at least the United Nations Charter, 1945. Article 2 (4) of the Charter states:All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the United Nations.

NATO's Intervention in the Federal Republic of Yugoslavia

2000 ◽  
Vol 13 (1) ◽  
pp. 193-205 ◽  
Author(s):  
Eric Suy
Keyword(s):  
Federal Republic ◽  
International Law ◽  
Security Council ◽  
Use Of Force ◽  
Armed Force ◽  
The Core ◽  
Legal Arguments ◽  
The Government ◽  
State Relations ◽  
Inter State

At the outset of the conflict over Kosovo, the use of armed force by NATO member states has been justified to force the Government of the Federal Republic of Yugoslavia to accept and sign the Rambouillet agreement. Later on, the use of force was justified in order to prevent a major humanitarian catastrophe. But examination of the relevant Security Council resolutions and of the circumstances surrounding the Rambouillet negotiations shed a totally different light on the legal arguments advanced by proponents of NATO's intervention. Modern international law on the use of force by states, as enshrined in the UN Charter, is still at the core of inter-state relations.

Modesty Can Be a Virtue: Judicial Economy in the ICJ Kosovo Opinion?

2011 ◽  
Vol 24 (1) ◽  
pp. 127-147 ◽  
Author(s):  
MARC WELLER
Keyword(s):  
Central Government ◽  
The State ◽  
Legal Order ◽  
Advisory Opinion ◽  
Territorial Integrity ◽  
Declaration Of Independence ◽  
The Icj ◽  
Judicial Economy

AbstractThe Kosovo Advisory Opinion reaches its conclusions in what is admittedly a very condensed and swift way of reasoning. The Court did not expand upon the question that was put to it. However, it is unfair to criticize the Court for failing to address the very issues the drafters of the question carefully and deliberately did not ask. Moreover, the Court did in fact clarify a number of important points that go beyond the narrow question of the lawfulness of Kosovo's declaration of independence. In particular, the Court confirmed that a state is a matter of fact in the first instance. It can come into being in consequence of unilateral secession when attempts to negotiate a separation have been frustrated by the central government. The doctrine of territorial integrity operates among states and furnishes no legal bar in such instances that applies to the seceding entity. Moreover, a decision on independence by such an entity cannot be evaluated according to the domestic legal order of the state from which it secedes. In this instance, Kosovo's secession was in any event not quite as unilateral as it may have seemed. Its declaration of independence and new constitution fully incorporate the entire package of measures proposed by the UN mediators in the final status talks. Hence, Kosovo has implemented what was in fact developed and proposed under the UN mandate for final status talks contained in Resolution 1244. Rather than overturning that resolution, it has acted in accordance with its terms.

I. INTERNATIONAL COURT OF JUSTICE, ACCORDANCE WITH INTERNATIONAL LAW OF THE UNILATERAL DECLARATION OF INDEPENDENCE IN RESPECT OF KOSOVO, ADVISORY OPINION OF 22 JULY 2010

2011 ◽  
Vol 60 (3) ◽  
pp. 799-810 ◽  
Author(s):  
Dov Jacobs
Keyword(s):  
United Nations ◽  
International Law ◽  
General Assembly ◽  
Advisory Opinion ◽  
International Court Of Justice ◽  
Declaration Of Independence ◽  
Court Of Justice ◽  
International Court ◽  
Unilateral Declaration ◽  
The Icj

‘Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?’ It is to answer this question that the General Assembly of the United Nations (‘UNGA’) requested an advisory opinion of the International Court of Justice (‘ICJ’). The request, adopted in October 20081 and initially sponsored by Serbia, was triggered by the declaration of independence of Kosovo issued on the 17 February 2008.2 Some two years later, on the 22 July 2010, the ICJ delivered its Advisory Opinion.3 By a 10–4 vote, the ICJ found that the declaration of independence of Kosovo did not violate international law.

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