Théodore Christakis

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

The 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 Kosovos 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.

Under the UN Security Council's Watchful Eyes: Military Intervention by Invitation in the Malian Conflict

Responding to an urgent request by the authorities of Mali, France launched in January 2013 “Operation Serval” against several terrorist armed groups. The French troops were assisted by a Chadian contingent and by forces progressively deployed by other African countries within a UNSC authorized African force (resolution 2085). While the French and African military Operations in Mali were clearly legal, they raise important questions of jus ad bellum in relation with the two legal arguments put forward to justify them: intervention by invitation and UNSC authorization. In this paper we first discuss the general rules of international law applying on intervention by invitation. We explain that such an intervention could sometimes be contrary to the principle of self-determination and we propose a purpose-based approach. We then apply these rules to the situation in Mali and conclude that the French and Chadian interventions were legal because, on the one hand, the request was validly formulated by the internationally recognised government of Mali and, on the other hand, their legitimate purpose was to fight terrorism. The UNSC approved this legal basis and “helped” France and Chad appeal validly to it by listing the enemy as “terrorist groups”. It gave its “blessing” to these interventions, without authorizing them and observed the events with relief. The adoption of resolution 2100 on 25 April 2013 raises new legal questions. The Council creates a UN peace enforcement mission in Mali, MINUSMA, which has a robust use of force mandate. Created just a few weeks after the DRC “Intervention Brigade”, this force seems to indicate an ongoing evolution (revolution?) in UN peacekeeping, notwithstanding the assurances by some UNSC member States that MINUSMA will avoid “offensive counter-terrorism operations”. At the same time resolution 2100 gives a restricted use of force mandate to France (to protect MINUSMA), without challenging the legal validity of intervention by invitation for all other tasks! The conflict in Mali might thus remain for some time yet between the latitude of UNSC authorization and the longitude of unilateral intervention by invitation.

The Limits of Complicity as a Ground for Responsibility: Lessons Learned from the Corfu Channel Case

International law has long been infused with a vague commitment towards an indeterminate notion of humanity. An examination of humanity as a specific normative idea in the historical discourse of international law provides a platform for better understanding the rhetorical and substantive meaning of ‘elementary considerations of humanity’ in the seminal Corfu Channel case, as well as Judge Alverez’s use of the more affective (and perhaps honest) term ‘sentiments of humanity’ in his separate opinion. With the Court otherwise silent as to the content, scope and status of the principle, such background informs the judicial attitudinal stance taken towards this apparently ‘self-evident’ principle, as well as the values which the Court and other international tribunals would subsequently bring to their norm creation and enforcement roles, not least with respect to general principles as a source of law. Drawing upon the work of Koskenniemi and the analyses of the Martens clause by scholars such as Meron and Cassese, the chapter places particular emphasis on the political, normative and empathetic potential of the term, and its inherent relationship to a foundational, essentialist and idealistic notion of humanity which continues to gain strength in the discipline.

Symposium: The ICJ Advisory Opinion on the Unilateral Declaration of Independence of Kosovo: Editors' Introduction

The present symposium follows on from a workshop held at the University of Cambridge on 2 September 2010 by the Interest Group on Peace and Security (IGPS) of the European Society of International Law, in collaboration with the Centre for International Security and European Studies (CESICE) of the University of Grenoble II and the International Law Centre of the Universite Libre de Bruxelles.