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Case LawWeek 1
Unilateral declaration of independence by Kosovo
Facts
Kosovo was an entity within Serbia and previously within Yugoslavia. Unlike the rest of
Serbia, the inhabitants of Kosovo are mainly of Albanian descent. The ethnical differences
have been the cause of many conflicts in the region. The region was firstly recognized as an
autonomous province under Yugoslavian leader Tito in 1946. Milosevic ended this
autonomy for Kosovo and placed it directly under the Yugoslavian regime. In 2008, Kosovo
was declared independent from Serbia by the Parliament of Pristina. This was a step closer
for Kosovo to become a democratic, multi-ethnic state after a long history of bloody
conflicts.
While Kosovo celebrated this day, some felt that Kosovo did not deserve this independence.
There was a sharp difference of views as to whether the circumstances which some
participants maintained would give rise to a right of 'remedial secession' were actually
present in Kosovo. Some claimed that not every country can declare itself independent, and
many laws favour protecting existing sovereignty and borders. Therefore, the United
Nations General Assembly requested for an advisory opinion referred to the International
Court of justice regarding the 2008 Kosovo declaration of independence.
Legal question
Is the unilateral declaration of independence of Kosovo in accordance with international
law?
Considerations
The Court considers that in the present case, it is not necessary to resolve the debates on
the range of the right of self-determination and on whether or not there is a right to
'remedial secession'. Indeed, the General Assembly has only asked the Court for an opinion
on the question of whether the declaration of independence is in accordance with
international law or not. To answer that question, the Court need only determine whether
the declaration of independence violated general international law or the lex specialis
created by Security Council resolution 1244.
Right rule
The Court considers that general international law contains no applicable prohibition 1 of
declarations of independence.
Relevant paragraphs
Paragraphs 83 and 84.
1
Verbod
,Note: The declaration of independence does not necessarily have a legal effect under
international law, as it must be determined whether the territory has the right to self-
determination.
North Sea Continental Shelf Cases
Facts
In 1969, the Netherlands, Denmark and Germany had a disagreement on the delimitation of
the continental shelf of the North Sea. Germany states that equal parts must be assumed.
But the Netherlands and Denmark are parties to the Geneva Convention, of which art. 6
prescribes the delineation of continental shelfs according to the equidistance principle.
Germany is not a party to this convention and complains about this method of delineation,
because its continental shelf would be unreasonably small. However, Denmark and the
Netherlands argued that even though Germany was not Party to the Geneva Convention, it
was still bound by the equidistance rule because this rule had become a rule of customary
international law. Germany contested these claims. Denmark and the Netherlands initially
brought separate cases before the International Court of Justice (ICJ).
Legal questions
Is Germany under a legal obligation to accept the equidistance-special circumstances
principle, contained in Article 6 of the Geneva Convention on the Continental Shelf of 1958,
either as a customary international law rule or on the basis of the Geneva Convention? And
what are the applicable principles and rules of international law considering the delimitation
of areas of the continental shelf in this case?
Considerations
The Court argued that it is indeed possible for Conventions, while only contractual in origin,
to development into a rule of customary international law, and thus become binding for
countries which have never become parties to the Convention. However, the Court notes
that 'this result is not lightly to be regarded as having been attained' (paragraph 71). For this
to happen, it would first be necessary that the provision should be of a fundamentally norm
creating character, a general rule of law. However, in this case, the obligation of the
equidistance method came second, after the primary obligation to effect delimitation by
agreement. So, the court decides that there is no general rule of law.
Furthermore, the Court considered that - normally - a long period of time needs to elapse
before such a development takes place (from treaty law to international customary law).
However, in paragraph 74 the court states that the passage of only a short period of time is
not necessarily, in itself, a bar to the formation of a new rule of customary law.
Lastly, in paragraph 77, the court describes once more that, for a provision to quality as
customary law, two conditions must be met: the conduct at issue must not only result in a
state practice, but they must also be carried out with legal conviction. According to the
court, the Netherlands and Denmark do not meet the conditions of legal persuasion for
opinio juris, because states must act in compliance with the norm not merely out of
convenience, habit, coincidence, or political expediency, but rather out of a sense of legal
obligation.
,Rule of law
The Court concluded that the equidistance principle was not binding on Germany by way of
treaty or customary international law. As such, the Court held that the use of the
equidistance method is not obligatory for the delimitation of the areas concerned in the
present proceedings. There must be an agreement between the parties on demarcation
based on fair principles, and which takes into account all circumstances, so that each
country receives a fair share.
Relevant paragraphs
Paragraphs 69, 72-74, 77, 83.
Nicaragua
Facts
Nicaragua initiated proceedings against the US at the International Court of Justice (ICJ) in
1986 due to the events that occurred in Nicaragua after the fall of the Government of
President Somoza in 1979 and the actions of the US in Nicaragua thereinafter. In July 1979,
the Government of President Somoza was replaced, and Supporters of the former Somoza
Government opposed the new government. The Us - initially supportive of the new
government - changed its attitude when it found that Nicaragua was providing logistical
support and weapons to guerrillas in El Salvador. So, in 1981 the US stopped its aid to
Nicaragua and decided to plan and undertake activities directed against Nicaragua.
However, in court, the US stated that it relied on an inherent right of collective self-defense
guaranteed in Art. 51 UN Charter when it provided assistance to Costa Rica, Honduras, and
El Salvador in response to Nicaragua's acts of aggression against those countries.
Legal question
1. Did the US act in violation of its obligations under customary international law by training,
arming, equipping, and financing the military operations by the Contras in Nicaragua? The
obligations under customary international law concerned Moreover, was the US violating its
obligations under the 1956 Treaty of Friendship, Commerce and Navigation between the US
and Nicaragua:
1 The obligation not to intervene in the affairs of another state.
2 The obligation not to use force against another state.
3 The obligation not to violate the sovereignty of another state.
4 The obligation not to interrupt peaceful maritime commerce.
Considerations
The importance of this case is that Nicaragua not only invokes treaty provisions but also
rules of customary law. The US defends itself by arguing that it is not bound by those
customary law rules at all, because such principles have been enshrined in the text of the
conventions relied upon by Nicaragua. However, the court states that the fact that the
principles have been codified in multilateral conventions does not mean that they cease to
exist and apply as principles of customary law, even when it regards countries that are
parties to such conventions. Principles such as those of the non-use of force, non-
intervention, respect for the independence and territorial integrity of states, and the
freedom of navigation, continue to be binding as part of customary international law.
, This is the case despite the operation of provisions of conventional law in which they have
been incorporated.
However, according to the United States argument, the court should refrain from applying
the rules of customary international law because they have been "subsumed" and
"supervened" by those of international treaty law, and especially those of the United
Nations Charter. So, the United States apparently takes the view that the existence of
principles in the United Nations Charter precludes the possibility that similar rules might
exist independently in customary international law. However, on a number of points, the
areas governed by the two sources of law do not exactly overlap, and the substantive rules
in which they are framed are not identical in content.
But, in addition, even if a treaty norm and a customary norm relevant to the present dispute
were to have exactly the same content, this would not be a reason for the Court to take the
view that the operation of the treaty process must necessarily deprive the customary norm
of its separate applicability.
In fact, the United Nations Charter, the convention to which most of the United States
argument is directed, by no means covers the whole area of the regulation of the use of
force in international relations. On one essential point, this treaty itself refers to pre-existing
customary international law. So, the Charter does not go on to directly regulate all aspects
of its content. For example, it does not contain any specific rule whereby self-defense would
warrant only measures which are proportional to the armed attack and necessary to
respond to it, a rule well established in customary international law.
The essential consideration is that both the Charter and the customary international law
flow from a common fundamental principle outlawing the use of force in international
relations. So, the court will not decide whether the US has violated Art. 51 UN Charter, but
whether the US has violated customary law. The UN Charter will not be applied directly, but
it will be taken into account when interpreting customary law. So, the US attempt to use the
reservation to ensure that the UN Charter cannot be applied directly has succeeded. But,
because Nicaragua has not only put the requirements on the treaty, but also on customary
law, the court can rule on the basis of customary law.
Rule of law
The violence used was not justified on the grounds of self-defense (the US argument) and
was contrary to customary rules.
Relevant articles
- Art. 2 (4) UN Charter.
- Art. 51 UN Charter.
Relevant paragraphs
Paragraphs 115, 116, 174-179, 186-191, 195 and 232.
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