Summaries of Judgments, Advisory Opinions and Orders of the International Court of Justice
before it in a satisfactory manner; it should have provided a fuller treatment of both prohibitive and permissive rules of international law. Secondly, Judge Simma considers that the Court's approach reflects an anachronistic, highly consensualist vision of international law rooted in the so-called Lotus principle developed by the Permanent Court more than 80 years ago. According to Judge Simma, the Court could also have considered the possibility that international law can be neutral or deliberately silent on the international lawfulness of certain acts.
Judge Simma first recalls the wording of the General Assembly's request, which asked whether Kosovo's declaration of independence was "in accordance with international law". He regards this as a neutral wording which deliberately does not ask for the existence of either a prohibitive or permissive rule under international law; the term "in accordance with" being broad by definition. Although Judge Simma concedes that it is true that the request is not phrased in the same way as the question posed to the Supreme Court of Canada (asking for a "right to effect secession", cf. Advisory Opinion, paragraph 55), he maintains that this difference does not justify the Court's determination that the term "in accordance with" is to be understood as asking exclusively whether there is a prohibitive rule, and that, if there is none, the declaration of independence is ipso facto in accordance with international law.
Judge Simma considers that a broader approach would have better addressed the arguments invoked by many of the Participants, including the authors of the declaration of independence, relating the right to self-determination of peoples and the issue of "remedial secession". He considers these arguments important in terms of resolving the broader dispute in Kosovo and in comprehensively addressing all aspects of the accordance with international law of the declaration of independence. Moreover, he argues that consideration of these points is precisely within the scope of the question as understood by the Kosovars themselves, amongst several Participants, who make reference to a right of external self-determination grounded in self-determination and "remedial secession" as a people. Judge Simma believes that the General Assembly's request deserved a more comprehensive answer, which could have included a deeper analysis of whether the principle of self-determination or any other rule (perhaps expressly mentioning remedial secession) permit or even warrant independence (via secession) of certain people/territories. That said, he does not examine the Participants' arguments in extenso, simply declaring that the Court could have delivered a more intellectually satisfying Opinion, and one with greater relevance as regards the international legal order as it has evolved into its present form, had it not interpreted the scope of the question so restrictively.
Judge Simma further maintains that there is also a wider conceptual problem with the Court's approach. He considers that the Court's reasoning leaps straight from the lack of a prohibition to permissibility, and that for this reason, it is a straightforward application of the Lotus principle, with its excessively deferential approach to State consent. He feels that under this approach, everything which is not expressly prohibited carries with it the same colour of legality; it ignores the possible degrees of nonprohibition, ranging from "tolerated" to "permissible" to "desirable". He believes that there is room in international law for a category of acts that are neither prohibited nor
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