영토보전원칙과 일방적 분리 독립의 추구 - ICJ 코소보 권고적 의견이 낳은 규범적 혼란에 주목하며 -

This paper argues that the ICJ in its 2010 Kosovo Advisory Opinion committed two critical errors of misconception regarding the nature of the principle of territorial integrity and its reading of the meaning of Kosovo’s unilateral declaration of independence. Both of these errors seem to have brought about significant normative confusion. Contrary to the ICJ’s understanding of the nature of the principle of territorial integrity in its 2010 Kosovo Advisory Opinion, this paper has shown that the principle of territorial integrity under present international law also applies within sovereign states beyond inter-state relations. Thus, the principle of territorial integrity applies to certain regions or groups seeking separation from their mother states with the effect of restraining such secessionist movements. As to the question put to the ICJ in its 2010 Kosovo Advisory Opinion, “Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?” the ICJ answered that such a “unilateral declaration of independence” itself was not contrary to international law. This paper has argued, however, that the ICJ misunderstood the essence of the question put to it by simply separating such an act of ‘unilateral declaration of independence’ from the ‘international legal effects’ of such a unilateral declaration. In other words, the ICJ’s reading of the meaning of “unilateral declaration of independence” was too formalistic. By holding simply that such an act (unilateral declaration of independence) in itself is not prohibited by international law per se, it provided a false impression, whether intended or not, that any act of unilateral separation by a particular region from its mother state may not be prohibited as such, because such an act is a factual phenomenon. In other words, the ICJ's formalistic reading of the “unilateral declaration of independence” is simply a flawed reading that completely ignores the fact that the adoption of unilateral declaration of independence by Kosovo was made in the process of creating a new sovereign state of Kosovo, which is essentially a legal matter as well as a factual one. In this regard, such a formalistic reading of the question put to the 2010 ICJ’s Kosovo Advisory Opinion presented a very serious problem in that it failed to examine fully the post-colonial context of the pursuit of external self-determination of a particular region, such as Kosovo in Serbia, by seeking ‘remedial secession’. If the particular region has been subjected to ethnic cleansing or gross violations of human rights with the result that residents in that region could not exercise their legitimate ‘internal’ self-determination through political participation in their mother state, they could pursue the creation of independent statehood by exercising external self-determination. Nevertheless, the ICJ did not address the question of whether the right to self-determination, the essence of Kosovo’s independence, applies to ‘Kosovo’s circumstances’ at all, by simply stating that adopting the unilateral declaration of independence is not in itself a violation of international law. What is frustrating is that when the Russian Federation annexed Crimea in 2014, it justified its actions by referring to this 2010 ICJ Kosovo Advisory Opinion. Russia had said during the 2010 ICJ Kosovo Advisory Opinion proceedings that Kosovo’s unilateral independence from Serbia was not a legitimate exercise of the right to external self-determination, but argued later that the residents of Crimea had exercised their legitimate external right to self-determination from Ukraine in 2014. Although Russia’s misuse and manipulation of international law to justify its illegal annexation of Crimea cannot be blamed entirely on the flawed 2010 ICJ Kosovo Advisory Opinion, it deserves noting that the 2010 ICJ Kosovo Advisory Opinion has, albeit unintentionally, caused normative confusion in the fields of territorial integrity and self-determination.