Last week, on July 22nd, the International Court of Justice in the Hague issued an advisory opinion regarding Kosovo's 2008 declaration of independence from Serbia. According to the opinion issued by the ICJ, “the Court considers that general international law contains no applicable prohibition of declarations of independence. Accordingly, it concludes that the declaration of independence [by Kosovo] did not violate general international law.” Wow, what a momentous decision! International law does not prohibit declarations of independence. Separatist movements and freedom fighters around the world can breathe a sigh of relief knowing that their words will not get them into trouble at the Hague. Of course, if they are caught closer to home, they may still be tried and executed for treason against the governments they seek independence from. Imagine if international law had held sway in 1776. How might an earlier version of the International Court of Justice have reckoned with Jefferson's handiwork? “We hold these truths to be self-evident…” The court might have objected to his discourse on natural law and the rights it supposedly confers, instead insisting that positive law – in this case the law of the British Empire and English common law – was dispositive. Had it come to a court of law, our founding fathers might have lost their case for independence. What if the court hearing the Kosovo case had ruled the other way? What if the ICJ were to conclude that declarations of independence in general or the specific declaration of independence in question constituted a violation of international law? Should the Kosovars then have rescinded their freedom charter since international law prohibited it? This decision of the United Nations-affiliated ICJ should trouble anyone concerned with the global future of freedom and the independence of nations, not because of the particular outcome in the case but because the court dealt with the question at all. Something is wrong when a court decides whether or not oppressed peoples can declare their independence. For legal determinations to encroach on the realms of the political and the moral is nothing new, but that trend is increasingly prevalent, increasingly accepted, and I would argue, increasingly dangerous. If every controversy of international import becomes a legal question to be handled by lawyers and adjudicated in courts, humanity will be the loser. Legal systems are instituted to maintain the order of things and to procedurize orderly change. Revolutions, by their very nature, overturn the order of things, as do declarations of independence. Therefore, they should be illegal, and they should continue to occur – outside the legal system. What needs to be fought against is the idea that the only legitimate change to the international order is that which is sanctioned by law. In 1988, the PLO famously and ineffectively declared the independence of Palestine. Many nations recognized the newly declared state, though on the ground nothing changed. Israel continued to control the West Bank, Gaza, and East Jerusalem, as if no declaration had occurred. Salam Fayyad, the Palestinian Authority's prime minister based in Ramallah, has been putting the West Bank's house in order. Uniformed Palestinian police now patrol city streets, maintaining the peace. Ministries operate with established budgets and procedures. Transparency is the watchword of Fayyad's financial administration, making donor nations happy, while public and private investment increases. Fayyad plans to build the infrastructure of a Palestinian state and to declare its independence (once again) by the end of 2011. Imagine that Abu Mazen (or his successor) and Fayyad (or his successor) do indeed declare an independent state of Palestine next year. Imagine further that Israel objects and the U.N. General Assembly thereupon requests that the International Court of Justice issue an advisory opinion on the matter. Given the history of the ICJ, especially its 2004 advisory opinion about the wall or security barrier in the West Bank, odds are that it would support the Palestinian position. But is that how Israeli-Palestinian conflict can or should be resolved – by the act of a group of judges sitting in the Hague, far removed from daily life in Rafah, Ramallah, and Rehovot? The hundred years' war between Jews and Arabs in Palestine is not fundamentally a legal dispute to be settled by both sides getting their day in court. Sometimes the U.S. Supreme Court refuses to adjudicate issues which are viewed as inherently political matters better addressed by the legislative and executive branches of government. Some of the dissenting opinions by ICJ members in the Kosovo case raised similar objections, but to no avail. In a lengthy concurring opinion, Judge Cançado Trindade of Brazil posited that “ours is the age of an ever-increasing attention to the advances of the rule of law at both national and international levels.” There ought to be limits, however, to the advance of the rule of law into all spheres of public life. Law cannot resolve all conflicts, and law will not resolve the most intractable political and religious controversies of our time. To think that it can is to ignore power relationships as well as the strength of historical memory, nationalist fervor, moral and religious conviction. The cool rationality of adherence to legal reasoning and precedent does not outweigh people's collective passions. Kosovo's future should be determined in the Balkans, by Kosovars and Serbs, along with their immediate neighbors, i.e., by the people who live there and are most directly affected by the conflict. Likewise, Palestine's future should be decided upon not in Washington, New York, or the Hague, but in the Middle East, by Arabs and by Jews. ** to read more from Michael Lame, check out his blog. BM
