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Accordance with international law of the unilateral declaration of independence in respect of Kosovo – Advisory Opinion of 22 July

On 22 July 2010 the International Court of Justice (ICJ) gave its advisory opinion on the initial question: ‘Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?“

The advisory opinion was requested by the General Assembly (GA) on 8 October 2008. The ICJ established that the question was clearly formulated, not asking about the legal consequences of the declaration of independence, nor whether Kosovo had achieved statehood, nor about the validity or legal effects of the recognition of Kosovo by the states that had recognized it as an independent State.

Although the GA had determined that the Provisional Institutions of Self-Government of Kosovo declared independence from Serbia, the ICJ wanted to establish the identity of the authors of the declaration of independence, because it considered that the answer to the identity question could affect the answer to the question, whether the declaration of independence was in accordance with international law. Security Council (SC) resolution 1244 (1999) contained rules that were specified in UNMIK regulation 2001/9 of 15 May 2001 on a Constitutional Framework for Provisional Self-Government, which regulation defined the responsibilities for administration of Kosovo between the Special Representative of the SG and the Provisional Institutions of Self-Government of Kosovo. There was the SG’s intention to start a political process with the aim to determine Kosovo’s future status, as was foreseen in SC’s resolution 1244 (1999), and supported by the SC. Former Finnish President, Martti Ahtisaari, was appointed as the SG’s Special Envoy for the future status process for Kosovo with Letter of Appointment, to which letter had been annexed “Terms of Reference”. The SC Members attached to their approval of Mr. Ahtisaari’s appointment the Guiding Principles of the Contact Group (an informal grouping of France, Germany, Italy, the Russian Federation, the UK, and the US from 1994 to address the situation in the Balkans), which Principles foresaw „negotiated solution“ of the situation as international priority. Negotiations took place between 20 February 2006 and 10 March 2007. In his report on Kosovo’s future status, the Special Envoy concluded: „Upon careful consideration of Kosovo’s recent history, the realities of Kosovo today and taking into account the negotiations with the parties, I have come to the conclusion that the only viable option for Kosovo is independence, to be supervised for an initial period by the International community“. After additional negotiations under the auspices of the EU, the Russian Federation, and the US, no decision on Kosovo’s independence was taken.

On 17 February 2008, the declaration of independence was adopted. The Declaration itself states that its authors were „[c]onvened in an extraordinary meeting on February 17, 2008, in Pristina, the capital of Kosovo“ and recalls „the years of internationally-sponsored negotiations between Belgrade and Pristina over the question of [Kosovo’s] future political status,“ regretting „that no mutually-acceptable status outcome was possible”. But the Declaration also states that it is in full accordance with the recommendations of UN Special Envoy Martti Ahtisaari and his Comprehensive Proposal for the Kosovo Status Settlement.

The ICJ now started to determine, whether the Declaration was an act of the “Assembly of Kosovo”, one of the Provisional Institutions of Self-Government (established under Chapter 9 of the Constitutional Framework), or adopted by the people acting in a different capacity. The ICJ established that when the declaration of independence was adopted, the President of the Assembly and the Prime Minister of Kosovo made reference to the Assembly of Kosovo and the Constitutional Framework, but although the ICJ was of opinion that the Declaration must be seen in its larger context, it concluded that the authors of the Declaration did not act as one of the Provisional Institutions of Self-Government within the Constitutional Framework, but rather as persons who acted together in their capacity as representatives of the people of Kosovo outside the framework of the interim administration.

Answering the question, whether the Declaration corresponded to international law, the ICJ established that no practice of States pointed that there was a rule prohibiting the making of declarations of independence, and that one of the major developments of international law during the second half of the twentieth century had been the evolution of the right of self-determination. Since neither general international law, nor the SC resolution 1244 (1999) banned issuance of declarations of independence, the Declaration could not violate general international law and SC resolution 1244 (1999) respectively.

Since the declaration of independence was not issued by the Provisional Institutions of Self-Government, nor was it an act intended to take effect, or actually taking effect, within the legal order in which those Provisional Institutions operated, the ICJ also established that the declaration of independence did not violate the Constitutional Framework, about which Framework the ICJ stated that it derived its binding force from the binding character of resolution 1244 (1999) and thus from international law, that way possessing both international and internal legal characteristics.

The conclusion was that the adoption of the declaration of independence did not violate any applicable rule of international law. Meaning that Kosovo’s independence is not illegal.

In favour of that part of the judgment were President Owada; Judges Al-Khasawneh, Buergenthal, Simma, Abraham, Keith, Sepúlveda-Amor, Cançado Trindade, Yusuf, Greenwood; against that part of the judgment were Vice-President Tomka; Judges Koroma, Bennouna, Skotnikov.

The following documents are added to the judgment:

● Declaration by Vice-President Tomka;

● Dissenting opinion by judge Koroma;

● Declaration by judge Simma;

● Separate opinions by judges Keith, and Sepúlveda-Amor;

● Dissenting opinions by judges Bennouna, and Skotnikov;

● Separate opinions by judges Cançado Trindade, and Yusuf.

The ICJ also clarified some other more or less general international law issues in this advisory opinion:

In paragraph 94, the judgment casts light on the difference between international treaties and SC resolutions that should be taken into account when interpreting SC resolutions – namely, SC resolutions are issued by a single, collective body and drafted through a very different process than that used for the conclusion of a treaty, being the „product of a voting process as provided for in Article 27 of the [UN] Charter, and the final text of such resolutions represents the view of the Security Council as a body“. In addition, SC resolutions can be binding on all Member States irrespective of whether they played any part in their formulation.

The judgment inter alia clarified the “four pillars” of the UNMIK regime, namely, according to the Secretary General’s report, there were four Deputy Special Representatives working within UNMIK, each responsible for one of four major components of the UNMIK regime: (a) interim civil administration (leaded by the UN); (b) humanitarian affairs (leaded by the Office of the UN High Commissioner for Refugees (UNHCR)); (c) institution building (leaded by the OSCE); and (d) reconstruction (leaded by the European Union – the latter regime was one of the reasons allowing discussions about the EU’s presumed legal personality).

The ICJ’s advisory opinions are not formal-legally binding.

The judgment has been reflected, for example, by Euractiv that also brings the reactions of the EU institutions on Kosovo.

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