Territorial Integrity Narrowly Interpreted: Reasserting the Classical Inter-State Paradigm of International Law
![handle is hein.journals/lejint24 and id is 94 raw text is:
Leiden Journal ofinternational Law, 24 (20 11), pp. 87-94
Q Foundation of the Leiden Journal of International Law doi:ic. 1017/S92 21565 ioCoo6io
Territorial Integrity Narrowly Interpreted:
Reasserting the Classical Inter-State
Paradigm of International Law
OLIVIER CORTEN*
Abstract
Paragraph 8o of the Kosovo AO reflects a very traditional conception of international law. By
insisting on the inter-state character of the principle of territorial integrity, the Court refused to
challenge the classical argument of the 'neutrality' of international law in regard to secession.
The Court also refused any reinterpretation of Article 2(4) of the UN Charter. As already stated
in the Wall Advisory Opinion, the prohibition of the use of force is only applicable between
states. It does not apply between states and non-state actors, whether secessionist or not.
Similarly, the Court refused the argument of 'remedial secession', at least as far as it would
imply a right to violate the principle of territorial integrity of a state by a secessionist group.
Indeed, if the latter principle is not applicable in such situations, it logically cannot be violated
and there is therefore no right to infringe it. Finally, the Court refused to consider Kosovo as a
'special case' or a sui generis situation. According to the Court, this situation must be governed
by the traditional rules of general international law. This implies that Kosovo did not violate
international law by proclaiming independence. But this also implies that a declaration of
independence by a secessionist group inside Kosovo would not be contrary to international law.
Moreover, it can be pointed out that if Kosovo is not a state (a hypothesis perfectly compatible
with the advisory opinion), then general international law would not preclude Serbia from
invoking the argument of 'legal neutrality' to support such a secessionist group.
Key words
legal neutrality; non-use of force; remedial secession; self-determination; territorial integrity
In the part of the judgment dedicated to general international law,' the Court insisted
on the inter-state character of the principle of territorial integrity. According to
Paragraph 8o of the opinion:
Several participants in the proceedings before the Court have contended that a prohibi-
tion of unilateral declarations of independence is implicit in the principle of territorial
integrity.
* Professor at the Universite libre de Bruxelles, International Law Centre. Author of The Law against War(20IO)
[ocortenpulb.ac.be]. I would like to express my gratitude to Pierre Klein and Theodore Christakis for their
valuable help in the finalization of this text.
I ICJ, Accordance with International Law ofthe Unilateral Declaration ofIndependence in Respect ofKosOvO, 22 July
201O (hereafter Kosovo AO), paras. 79-84.](ViewImageLocal?handle=hein.journals/lejint24&div=10&collection=&method=preview&ext=.png&size=3)
Territorial Integrity Narrowly Interpreted: Reasserting the Classical Inter-State Paradigm of International Law
Territorial Integrity Narrowly Interpreted: Reasserting the Classical Inter-State Paradigm of International Law