A week has passed so far without the sky falling in. A week, that is, since the international court of justice ruled that Kosovo’s 2008 declaration of independence was not contrary to international law — a decision that might have been expected to open the floodgates to the numerous oppressed peoples who would like to have their own countries.

Probably the majority of the world’s actual and potential armed conflicts centre on the question of self-determination, which makes it all the more remarkable that the question behind the Kosovo dispute had never before been considered by the court — despite the fact that support for self-determination is one of the founding principles in the UN charter. This case was referred to the court by the UN general assembly at the request of Serbia, which claims Kosovo as its own and hoped for a judgement that its unilateral declaration of independence was illegal.

Although the decision received some media coverage last week, it’s worth reading the judgement in full to see why that hope was disappointed, and also why impact of the decision looks like being relatively modest.

The court acknowledged that international law now recognises “a right to independence for the peoples of non-self-governing territories and peoples subject to alien subjugation, domination and exploitation” (para 79). But it declined to bring Kosovo under that general description, or indeed any general description at all, insisting on treating the case in isolation:

“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.” (56)

In effect, the court reinterpreted the question it had been asked; first by limiting it to whether the declaration was actually prohibited, rather than whether it was legally justified, and then by finding that the declaration had not in fact been made in the name of the provisional institutions of Kosovo self-government, thus taking it outside of their treaty obligations: “the scope of the principle of territorial integrity is confined to the sphere of relations between states.” (80)

The four dissenting judges protested against this, and even a few of those who voted with the majority issued separate judgements in which they regretted the failure to consider the extent of the right of self-determination. But the broader questions were just what the majority judges were determined to avoid.

These narrowing tactics are one reason why the decision hasn’t led to a rush of attempts to imitate Kosovo’s success. But just as important is the fact that international law in this area has always tended to lag behind the facts on the ground, and those who are struggling for their independence are used to doing it without much help from the accepted legal framework.

Despite the lack of legal acknowledgement, self-determination has been making huge gains in the past two decades. Many countries have won internationally recognised independence (Eritrea, former USSR, former Yugoslavia) or autonomy (Catalonia, Scotland, Aceh), while even some of those without recognition have succeeded in building functioning states (Wikipedia, of course, has a handy list).

It’s also become pretty generally accepted that when a secession movement succeeds in establishing itself in effective control of its territory, the parent government should not try to reconquer it by force but should negotiate peacefully. It was Georgia’s breach of this rule that led to its brief and unsuccessful war with Russia in 2008, and Serbia shows no sign of repeating the mistake. (The contrast between Russia’s enthusiastic support of self-determination on that occasion and its strident opposition in Kosovo and Chechnya is just one of the many hypocrisies on display on this issue.)

It will take time for the full implications of the Kosovo precedent to sink in, and when it does some of the language in the judgement may have wider effects than the court intended. But at best it will just give further impetus to a trend that has been going for two hundred years and continues to gather pace.