ICJ rules on Mindanao

is the subject of my Trade Tripper column in this Friday-Saturday issue of BusinessWorld:

No, it did not. It never did and never has. And contrary to the rubbish that some parties are spouting around in the media, the International Court of Justice’s July 22, 2010, advisory opinion (formally titled "Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo -- Request for Advisory Opinion") has no bearing whatsoever on the Philippines.

It is a very specific case involving a very specific question relating to quite specific circumstances involving specific parties. Add to this the fact that rulings or opinions issued by the ICJ, like most international tribunals, are applicable only to the parties to that case and only for that case. There is no rule of "precedent" in international law, at least unlike the way our Supreme Court establishes precedent. And, for the record, the Philippines had no formal participation in the Kosovo Advisory Opinion (interestingly enough, two of my teachers, Daniel Bethlehem and James Crawford, were there representing the UK, as well as two others who at one time or another lectured in Cambridge: Malcolm Shaw and Sir Robert Jennings, as counsels for Serbia).

That the Advisory Opinion revolved around a very particular question forwarded to it by the UN’s General Assembly was made quite clear by the ICJ: "the question is narrow and specific; it asks for the Court’s opinion on whether or not the declaration of independence is in accordance with international law. It does not ask about the legal consequences of that declaration. In particular, it does not ask whether or not Kosovo has achieved statehood. Nor does it ask about the validity or legal effects of the recognition of Kosovo by those States which have recognized it as an independent State." The ICJ also points out that the purpose of the advisory opinion was merely to "enable organs of the United Nations and other authorized bodies to obtain opinions from the Court which will assist them in the future exercise of their functions. The Court cannot determine what steps the General Assembly may wish to take after receiving the Court’s opinion or what effect that opinion may have in relation to those steps." It must be emphasized that Kosovo’s unilateral declaration was done within very distinctive parameters provided by the Security Council (by way of its resolution 1244 [1999], as well as the Constitutional Framework).

The question itself is stated as follows: "Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?" In approaching this question, the ICJ focused on the "clearly formulated" wording of the question. It did not say that such "unilateral declaration" was encouraged or sanctioned under international law; nor did it agree that Kosovo was moving correctly within any alleged right of secession.

As the ICJ itself puts it: "the General Assembly has asked whether the declaration of independence was ’in accordance with’ international law. The answer to that question turns on whether or not the applicable international law prohibited the declaration of independence. x x x The Court is not required by the question it has been asked to take a position on whether international law conferred a positive entitlement on Kosovo unilaterally to declare its independence or, a fortiori, on whether international law generally confers an entitlement on entities situated within a State unilaterally to break away from it. Indeed, it is entirely possible for a particular act such as a unilateral declaration of independence not to be in violation of international law without necessarily constituting the exercise of a right conferred by it."

The ICJ, therefore, made no new declaration regarding self-determination: "the international law of self-determination developed in such a way as to create a right to independence for the peoples of non-self-governing territories and peoples subject to alien subjugation, domination and exploitation." Definitively, the ICJ considered "that it is not necessary to resolve these questions in the present case. x x x Debates regarding the extent of the right of self-determination and the existence of any right of ’remedial secession’, however, concern the right to separate from a State. As the Court has already noted, and as almost all participants agreed, that issue is beyond the scope of the question posed by the General Assembly."

As it stands -- and ignoring nonsense like making distinctions between "traditional" and "modern" international law (there is only "international law") -- international law makes it clear that the right to self-determination does not allow an ethnic or religious group to secede or otherwise carve out its own territory to become an independent State.

In the end, the ICJ merely said that Kosovo’s unilateral declaration "did not violate general international law." Nothing more, nothing less. Such has no bearing on the Philippines. And the Philippines is free to do what it can to protect its national interests, which clearly includes maintaining its territorial integrity.