Whether the Court can exercise jurisdiction in the case
The ICJ can exercise jurisdiction in this case. The Court has a double jurisdiction. The Court acts on disputes that various States submit to it (contested cases) and cases that the UN authorised bodies and agencies may refer for legal opinions.
The Court shall consider the case under Article 38 of the Statute “in accordance with international law” and apply sources of law based on the international convention, international customs, the general principles of law as civilised nations recognise them, and provisions under Article 59.
Territorial claim between Neganda and Kantara falls within these four areas. The States may accept the compulsory jurisdiction of the ICJ. The ICJ has dealt with a number of territorial jurisprudence. However, the nature of these cases varies. Therefore, it is almost impossible to prioritise and categorise what factors the Court uses to provide decisions. This tendency makes the ICJ unattractive place for territorial cases.
Taylor Sumner examined territorial disputes at the ICJ and concluded that there were nine areas relevant to adjudicating territorial claims: “treaty law, geography, economy, culture, effective control, history, uti possidetis juris (“to whom possesses by law”), “elitism”, and ideology”. In addition, Sumner established that the ICJ mainly bases its decisions on “treaty law, uti possidetis, and effective control” (Sumner 2004).
The ICJ statute provisions also note that the Court “shall not prejudice the power of the Court to decide in cases ex aequo et bono (based on equity and welfare), if the parties agree thereto”. However, the Court shall act on this case because the decision on a legal ground is not possible and concentrate on equities. However, the ICJ has not based all cases on equitable principles.
We must note that the ICJ may consider equitable principles infra legem (under law). This shall enable the Court’s interpretation and application of the law to consider both facts and conditions surrounding Kantara and Neganda case.
The principles of law that will be applicable to the substance of the territorial dispute between Kantara and Neganda
Treaty law
Treaties bind parties under international law, irrespective of their formal designation. Treaties are only relevant in cases where bodies with a treaty-making capacity participate. This is the case of Kantara and Neganda. These states have a treaty-making capacity.
These states are also parties to the Central African Treaty of Friendship and Non-Alignment. This treaty means that states can formulate obligations and rights which international law can enforce.
The Vienna Convention 1969 recognises written treaties. However, the absence of writing does not mean such agreements are not enforceable under international law. The Convention is not clear on when an international agreement falls under treaty. However, the instrument must have some solemnity and gravity.
The Court can consider past cases to make a decision on Neganda and Kantara territorial dispute. For instance, in the case of a territorial dispute between Libya and Chad, the ICJ considered the treaty of 1955 on Friendship and Good Neighbourliness. These parties had to interpret the Treaty of Friendship and Good Neighbourliness in a good faith and apply an ordinary meaning to it.
In this case, the Court must establish the provision of the Central African Treaty of Friendship and Non-Alignment and base its decision of such provisions. This is because the treaty may have annexes that clarify the boundary under agreements. This may settle the issue and disregard arrangement between Kantara and Russia.
In another similar case of Belgium and Netherlands, both parties claimed territorial enclaves that crossed the established borders. The Court based its decision on effective control and treaties. The Court argued that the Dutch side did not undermine bases of sovereignty by limited control over an enclave.
In this case, from the British point of view, the area of the land ‘attached’ to Kantara came under the administration of Kantara. Based on administrative effective control Kantara has maintained over the island, the Court may award the enclave to Kantara.
The Court must also consider the Kantaran declaration accepting the Court’s compulsory jurisdiction, dated 10 May, 1970 and the Negandan declaration of 1 April, 1976, excluded from the jurisdiction of the Court and their relevant contents. It must also note that these declarations do not have any condition of reciprocity.
Uti possidetis
This principle of international law claims that a territory shall remain with the party who possess it after conflict, unless a treaty may define otherwise. A treaty may have conditions regarding possession of a territory. However, in the absence of such provisions, uti possidetis prevails. In this case, Kantara has possessed the enclave ever since colonial periods.
The principle was useful in the issue of Kosovo. However, the Court should consider the political reasons behind uti possidetis provisions in border disputes. For instance, the British colonialists used the enclave for their administrative purposes in Kantara.
The Court may base its decision on utis possidetis juri to grant Kantara the enclave. This shall reflect the former colonial boundaries and administrative positions. However, we have to note that not all rulings of the case may favour the principle of utis possidetis juri.
For instance, in the case of a territorial dispute between Mali and Burkina Faso, the Court defined uti possidetis juri as “a principle that transforms former administrative borders created during the colonial period into international frontiers”. This implies that uti possidetis juris acted as a decolonisation tool in order to preserve and protect the independence and stability of new African countries.
Based on this argument, the Court may grant the enclave to Neganda. This also means that the Court may departure from the principle of uti possidetis juris. Considering this case, the Court may consider the British administrative boundary as an international frontier.
The Court must also note that the principle of uti possidetis juris has changed over time. It now includes issues concerning “democracy, human rights, the rule of law, and rights of the minority groups” (Hasani 2003). In this regard, the Court must ascertain Neganda claims of ill-treatment of its native in the enclave under administration of Kantara.
Effective control (effectivités)
The principle of effective control has both internal and external aspects. Internally, a State government has the capacity to “establish and maintain a legal order in the sense of constitutional autonomy whereas externally, the State can act autonomously on the international level without being legally dependent on other states within the international legal order”.
The Court may dismiss Kantara claims of administrative control from colonial periods to present and sovereign over the enclave and establish a legal title. If the Court can establish a legal title from the British colonial time, then the matter can end. However, if the Court fails to ascertain effective control, then it can apply utis possidetis based on the colonial boundaries.
However, due to changes in the boundary it would be difficult to determine the exact location of the previous boundary. In this case, the Court can decide to divide the disputed enclave in two halves on equitable basis under infra legem. This was the case of Burkina Faso and Mali frontier dispute.
History
Historically, Kantara has always possessed and exercised administrative control over the area. However, the enclave has an ethnic group from Neganda. The Court may consider the history in this case because of its clarity. Consequently, the Court may grant Kantara the enclave based on evidence of the Kantara’s long-established and effective control of the enclave since colonial periods.
This was the case of France and the UK regarding Channel Islands where the Court granted the UK the islands based on its history.
The Court must also consider the fact that African leaders insisted on preserving the administrative boundaries which colonialists established. Enver Hasani notes that African countries, which make territorial claims on grounds of history and ethnic entitlements, have lost their claims. However, uti possidetis juris has worked for most African states. These were cases of Somali and Mali.
The Court shall also assume that Kantara and Neganda can avoid territorial conflicts by recognising their former colonial administrative boundaries. In this context, it can apply the Article 2(4) of the UN Charter to protect such territories.
Explain and critically discuss the following statement
‘It is noted that rather than stating conditions of legality of secession, international law has traditionally acknowledged secession subsequent to a factual state of events which has led to a situation in which the constitutive elements of a State are present’. (Written Statement of the Kingdom of Norway in the Kosovo Advisory Opinion case)
The birth of a new state is an important event in the international politics. This is of interest to scholars in international law because a new state shall carve its territory from an existing state in order to declare independence.
It also provides opportunities to review the legal ramifications of processes involved in creating a new state under provisions of international law. Thus, the secession of Kosovo and the subsequent verdict of the ICJ on the issue raise issues worth examining under the above statement.
The independence of Kosovo in 2008 from Serbia raised issues because Serbia did not provide its consent. Thus, there was no coordinated independence as Kosovo took a section of Serbia’s population and territory. These are facts of Kosovo secession.
Under international law, an entity has a right to secede when the state it belongs to recognise that and when it also reviews constituents rights to self-determination as was the case of South Sudan. The right to self-determination remains limited based on the principle of territorial integrity of a state.
The case of Kosovo is slightly different. From the history of Kosovo, the international community rejected Kosovo’s claims to secession. As a result, Kosovo only had remedial secession as a viable legal option.
Remedial secession grounds have disputes on de lege lata (the law as it exists) and de lege ferenda (what the law ought to be). The history of Kosovo also provides reasons for remedial secession. For instance, Milosevic engaged in systematic discrimination of Kosovo Albanians (cultural group of Serbia). There were no possibilities of achieving meaningful and mutual solution through peace. Thus, the abuse of 1990s made the international community recognise the plight of Kosovo Albanians.
The Security Council Resolution 1244 of 1999 depicts a rejection for secession. However, this document has resolutions that guarantee Kosovo Albanians the right to self-determination. Over time, states have recognised the independence of Kosovo due to a gradual change of its population that has evolved from a minority to people. This move contradicts the norm of state practice.
This is because, in the past, states have based their recognitions of new states on the consent of the parent state to separation. Thus, recognition of Kosovo as an independent state show grounds for remedial secession in legal situations.
The US argued that Kosovo was a special case based on its history of abuse, systematic ethnic cleansing, Yugoslavia breakup, and the role of the UN administration. These features were special to Kosovo. As a result, the US recognised Kosovo as an independent state with no precedent for any other conditions.
Serbia showed concern about Kosovo’s declaration of independence in 2008 and sought the advisory opinion of the ICJ on the legality of Kosovo as a state. The ICJ released its advisory opinion in 2010 that Kosovo’s declaration of independence did not break general principles of international law.
The Court based its decision on the UN Security Council Resolution 1244 and the Constitutive Framework. In addition, the Court also considered the unique history of Kosovo under Serbia.
Scholars note that premature recognition of Kosovo presented legal challenges before the international law. They argue that the case of Kosovo was non-precedential. They also note that even states that recognised Kosovo have clearly refused to create rules governing remedial secession.
In the case of Kosovo, secession was the only option for ending oppression of the Kosovo Albanians. This is the basis of the doctrine of remedial secession. However, we can note that the doctrine of remedial secession has a weak legal base and foundation. This explains why Serbia questioned the legality of Kosovo’s independence. It shows that secession is not an entitlement even under oppression.
However, when the oppressed minority strives to create their own state, then remedial secession remains the only option with international recognition. Thus, remedial secession depends on recognition from the international community so as to make it legal. Under the UN Charter, remedial secession has grounds through recognitions. This explains why Kosovo’s declaration of independence was legal.
However, the case of Kosovo independence sets precedence for review of international law as the doctrine of remedial secession is weak. Kosovo only survived because of a combination of several factors that made it a special case before the international community and the ICJ.
Kosovo set a precedent for states or minority groups on how to use remedial secession. The ICJ confirmed Kosovo’s claim for statehood and the issue of legality under international law did not deter it. We can see that remedial secession can establish grounds for minority groups to hold the state accountable for issues under international obligations.
By referring to Kosovo as a special and unique case, the international community disregarded the base and theory of remedial secession. It also created irreproachable states. Kosovo’s case is significant in identification of loopholes that exist in international law and legality of secession.
The case of Kosovo presented the international community with a suitable chance to clarify issues of remedial secession. These issues should include types of alternatives that parties should exhaust, threshold of abuse considered, the issue of uti possidetis juris, description of cultural groups, claims of the parent state, and effects of the secession.
Clarification of these issues can present grounds for the international community to gauge secession and avoid issues of unique and special case. This can show a state of arbitrariness in state secession as the case of Kosovo is similar to secession of Bangladesh from Pakistan.
“International Law is made of a succession of apologetic and utopian moments and arguments.”
The above statement is true due to serious weaknesses in the system. In addition, the system of international law is never perfect. These weaknesses may be due to lack of vital formal institutions and systems, lack of certainty, manipulation, and disregard by states.
However, there are many chances for reforms and improvements. We can also look at the above statement from the point of view of structure of international law and specific issues that arise during enforcement. To this end, various scholars have given their arguments and theories about international law and its origin.
Koskenniemi argues that international law lacks legal objectivity at all. This is a deconstructive approach to explaining international law. Such theorists argue that states can use international law to criticise or justify international behaviours on a rational ground.
According to these critics, we can justify or condemn a given behaviour using a “conjunction of politics, morality and self-interest” (Dixon 2007). Thus, such behaviours can happen in any setting and for reasons not related to any legal rule.
Some jurists claim that international law is a means of pursuing a given community values. Thus, interpretation and application of all rules should conform to such values. This is a value-oriented approach in explaining the existence of international law. Some of these values include “world public order”. Proponents of this view include McDougal, Lasswell and Feliciano.
Realists claim that we should view international law based on the impact it has on the conduct of the international community and relations, rather than trying to establish its validity as a law.
This view posits that what is important is the influence of international law in international politics and relations. Issues of acceptance or obedience to international law are irrelevant. Therefore, its role to enhance international politics is what matters.
Some scholars apply non-statist theories to explain the nature of international law. They disregard the fundamental principle of international law as a system created mainly for states and by states. They claim that notable developments in international law render its fundamental concept narrow.
They seek to show the importance of international law to individuals. In addition, international law should also be a means of gaining justice and accommodating diverse cultures and ethic orientations of the modern world since the world no longer revolves around Europe.
This view has gained popularity especially with issuing relating to the ICJ ruling on Africa states. For instance, Gbenga Odentun claims that both the ICJ and Permanent Court of Arbitration (PAC) have shown a lack of interest in matters regarding African states and their Western counterparts.
The author also claims that representation of Africans in these institutions is insufficient. According to Odentun, this undermines the basis that such courts within their charter should represent “the principal legal systems of the world”. This idea has gained popularity as states depend on international law for checking excesses of other sovereign states.
Any attempt to achieve a consensus or conclusion regarding the nature, source, or system of international law shall draw criticisms from all quarters. What is of importance in this case is the binding problem that leads to the formation of international law. Such problems are both national and international matters.
At the national level, we have an institution like the Australian parliament that has the mandate to create laws. This is not the case with the international law. However, the significant issue is that states and individuals have recognised international law.
Such a succession of apologetic and utopian moments and arguments drives vital interests of states. However, we must note that a vital interest of state is important than the dictates of the law.
The legal system may recognise vital interests in cases of self-defence in relation to international law. In this regard, the international law may not be different from any national law and the issue of obedience may not arise. However, we can see that due to weaknesses in international law, states can violate it.
In this sense, it becomes a weaker system than any other national legal system that has machinery for enforcement. It is difficult for states to rely on international law in situations where their vital interests are under threat. As a result, they are likely to engage in illegal conducts. These could be the reasons for “the US invasion of Iraq and Afghanistan and NATO’s 1999 action in Serbia” (Dixon 2007).
From these observations, we can note that international law cannot stop such attacks. However, this does not mean it is irrelevant when it comes to protection of vital interest of states. The international community can formulate laws to control future behaviours of such states and soften their approaches.
This also leads to confusion about the major role of international law in relation to political and diplomatic crises. In all, international law role should be to ensure “world public order” among international communities.
Therefore, what shows the effective of vital rules of international law is the extent to which states obey or enforce them. This is the failure of international law. It cannot enforce its vital rule of prohibiting the use of force against other states.
Such creations of international law have led to lack of certainty. It is too flexible and open to manipulation. For instance, we can see that Serbia challenged Kosovo’s declaration of independence because the international law was not clear on remedial secession. This lack of clarity can lead to disputes among states.
Thus, the issue of creation of international law is debate that cannot end. However, the fundamental concept is that international law protects sovereign states with regard to their international relations.
Therefore, these rules are for states and created by states as they give state sovereignty high regards as it is the fabric that holds international community. We have to recognise that states need international law and its processes of creation remain irrelevant.
Bibliography
Cismas Ioana, ‘Secession in Theory and Practice: the Case of Kosovo and Beyond’ (2010) 2(2) Goettingen Journal of International Law 531-587.
Dixon Martin, Textbook on International Law (Oxford University Press, 2007).
Harris David, Cases and Materials on International Law, 7th ed (Sweet and Maxwell, 2010).
Hasani Enver, ‘International Law under Fire: Utis Possidetis Juris: From Rome to Kosovo’ (2003) Fletcher Forum of World Affairs 1-3.
Malanczuk Peter, Akehurst’s Modern Introduction to International Law (Routledge, 1997).
Odentun Gbenga, ‘Africa before the International Courts: The Generational Gap in International Adjudication and Arbitration’ (2004) 44(4) Indian Jrn. Int. Law 701-748.
Sumner Taylor, ‘Note: Territorial Disputes at the International Court of Justice’ (2004) 53 Duke Law Journal 1779-1812.
Vidmar Jure, ‘Remedial Secession in International Law: Theory and (Lack of) Practice’ (2010) 6(1) St Antony’s International Review 37-56.