Accordance with International Law of the Unilateral Declaration of Independence in respect of Kosovo
The question on which the advisory opinion of the Court had been requested was set forth in resolution 63/3 adopted by the General Assembly of the United Nations.
The resolution read as follows:
“The General Assembly,
Mindful of the purposes and principles of the United Nations,
Bearing in mind its functions and powers under the Charter of the United Nations,
Recalling that on 17 February 2008 the Provisional Institutions of Self-Government of Kosovo declared independence from Serbia,
Aware that this act has been received with varied reactions by the Members of the United Nations as to its compatibility with the existing international legal order,
Decides, in accordance with Article 96 of the Charter of the United Nations to request the International Court of Justice, pursuant to Article 65 of the Statute of the Court, to render an advisory opinion on the following question:
‘Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?’”
The power of the Court to give an advisory opinion is based upon Article 65, paragraph 1, of its Statute, which provides that:
“The Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request.”
It is for the Court to satisfy itself that the request for an advisory opinion comes from an organ of the United Nations or a specialized agency having competence to make it. The General Assembly is authorized to request an advisory opinion by Article 96 of the Charter, the Court had repeatedly stated that the fact that a question has political aspects does not suffice to deprive it of its character as a legal question. Whatever its political aspects, the Court cannot refuse to respond to the legal elements of a question which invites it to discharge an essentially judicial task, namely, an assessment of an act by reference to international law.
The advisory jurisdiction is not a form of judicial recourse for States but the means by which the General Assembly and the Security Council, as well as other organs of the United Nations and bodies specifically empowered to do so by the General Assembly in accordance with Article 96, paragraph 2, of the Charter, may obtain the Court’s opinion in order to assist them in their activities. The Court’s opinion is given not to States but to the organ which has requested it (Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, I.C.J. Reports 1950, p. 71). Nevertheless, precisely for that reason, the motives of individual States which sponsor, or vote in favour of, a resolution requesting an advisory opinion are not relevant to the Court’s exercise of its discretion whether or not to respond.
The court also rejected the argument that as the resolution gave no indication of the purpose for which the General Assembly needed the Court’s opinion, there was nothing to indicate that the opinion would have any useful legal effect. It held that the General Assembly, in the instant case, has a legitimate interest in the answer to a question, the fact that that answer may turn, in part, on a decision of the Security Council is not sufficient to justify the Court in declining to give its opinion to the General Assembly.
Accordingly, the Court held that there are no compelling reasons for it to decline to exercise its jurisdiction in respect of the present request. The Court’s was to give an opinion on whether or not the declaration of independence is in accordance with international law. The resolution did not ask about the legal consequences of that declaration. In particular, it did not ask whether or not Kosovo has achieved statehood. Nor did it ask about the validity or legal effects of the recognition of Kosovo by those States which have recognized it as an independent State.
The Court was 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 confer an entitlement on entities situated within a State unilaterally to break away from it. Indeed, it is entirely possible for a particular act such as a unilateral declaration of independence not to be in violation of international law without necessarily constituting the exercise of a right conferred by it During the eighteenth, nineteenth and early twentieth centuries, there were numerous instances of declarations of independence, often strenuously opposed by the State from which independence was being declared. Sometimes a declaration resulted in the creation of a new State, at others it did not. In no case, however, does the practice of States as a whole suggest that the act of promulgating the declaration was regarded as contrary to international law. On the contrary, State practice during this period points clearly to the conclusion that international law contained no prohibition of declarations of independence. During the second half of the twentieth century, the international law of self-determination developed in such a way as to create a right to independence for the peoples of non-self-governing territories and peoples subject to alien subjugation, domination and exploitation The Court recalled that the principle of territorial integrity as an important part of the international legal order and is enshrined in the Charter of the United Nations, in particular in Article 2, paragraph 4, which provides that: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations.”
The Court considered that general international law contained no applicable prohibition of declarations of independence. Accordingly, it concluded that the declaration of independence of 17 February 2008 did not violate general international law. The Court further observed that UNMIK regulations, including regulation 2001/9, which promulgated the Constitutional Framework, were adopted by the Special Representative of the Secretary-General on the basis of the authority derived from Security Council resolution 1244 (1999), notably its paragraphs 6, 10, and 11, and thus ultimately from the United Nations Charter. The Constitutional Framework derive its binding force from the binding character of resolution 1244 (1999) and thus from international law. In that sense it therefore possessed an international legal character.
The Constitutional Framework therefore took effect as part of the body of law adopted for the administration of Kosovo during the interim phase. The institutions which it created were empowered by the Constitutional Framework to take decisions which took effect within that body of law. In particular, the Assembly of Kosovo was empowered to adopt legislation which would have the force of law within that legal order, subject always to the overriding authority of the Special Representative of the Secretary-General.
The Court held that both Security Council resolution 1244 (1999) and the Constitutional Framework entrusted the Special Representative of the Secretary-General with considerable supervisory powers with regard to the Provisional Institutions of Self-Government established under the authority of the United Nations Interim Administration Mission in Kosovo.
Finally, neither Security Council resolution 1244 (1999) nor the Constitutional Framework contained a clause providing for its termination and neither had been repealed; they therefore constituted the international law applicable to the situation prevailing in Kosovo on 17 February 2008.
Also the Special Representative of the Secretary-General continued to exercise his functions in Kosovo. Moreover, the Secretary-General had continued to submit periodic reports to the Security Council, From the foregoing, the Court concluded that Security Council resolution 1244 (1999) and the Constitutional Framework formed part of the international law which was to be considered in replying to the question posed by the General Assembly in its request for the advisory opinion.
First, resolution 1244 (1999) established an international civil and security presence in Kosovo with full civil and political authority and sole responsibility for the governance of Kosovo. For this reason, the establishment of civil and security presences in Kosovo deployed on the basis of resolution 1244 (1999) must be understood as an exceptional measure relating to civil, political and security aspects and aimed at addressing the crisis existing in that territory in 1999.
Secondly, the solution embodied in resolution 1244 (1999), namely, the implementation of an interim international territorial administration, was designed for humanitarian purposes: to provide a means for the stabilization of Kosovo and for the re-establishment of a basic public order in an area beset by crisis.
The interim administration in Kosovo was designed to suspend temporarily Serbia’s exercise of its authority flowing from its continuing sovereignty over the territory of Kosovo. The purpose of the legal régime established under resolution 1244 (1999) was to establish, organize and oversee the development of local institutions of self-government in Kosovo under the aegis of the interim international presence.
The Court thus concluded that the object and purpose of resolution 1244 (1999) was to establish a temporary, exceptional legal régime which, save to the extent that it expressly preserved it, superseded the Serbian legal order and which aimed at the stabilization of Kosovo, and that it was designed to do so on an interim basis.
The question whether the declaration of independence was in accordance with Security Council resolution 1244 (1999) and the measures adopted there under –
The Court then turned to the question whether Security Council resolution 1244 (1999), or the measures adopted there under, introduced a specific prohibition on issuing a declaration of independence, applicable to those who adopted the declaration of independence of 17 February 2008. The Court thus arrived at the conclusion that, taking all factors together, the authors of the declaration of independence of 17 February 2008 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.
The question whether the authors of the declaration of independence acted in violation of Security Council resolution 1244 (1999) or the measures adopted there under –
Some participants to the proceedings contended that the declaration of independence of 17 February 2008 was a unilateral attempt to bring to an end the international presence established by Security Council resolution 1244 (1999), a result which it said could only be effectuated by a decision of the Security Council itself. It was also argued that a permanent settlement for Kosovo could only be achieved either by agreement of all parties involved (notably including the consent of the Republic of Serbia) or by a specific Security Council resolution endorsing a specific final status for Kosovo, as provided for in the Guiding Principles of the Contact Group. According to view, the unilateral action on the part of the authors of the declaration of independence cannot be reconciled with Security Council resolution 1244 (1999) and thus constituted a violation of that resolution.
Other participants submitted to the Court that Security Council resolution 1244 (1999) did not prevent or exclude the possibility of Kosovo’s independence. They argued that the resolution only regulates the interim administration of Kosovo, but not its final or permanent status. In particular, the argument was put forward that Security Council resolution 1244 (1999) does not create obligations under international law prohibiting the issuance of a declaration of independence or making it invalid, and does not make the authors of the declaration of independence its addressees. According to this position, if the Security Council had wanted to preclude a declaration of independence, it would have done so in clear and unequivocal terms in the text of the resolution, as it did in resolution 787 (1992) concerning the Republika Srpska. Under the terms of resolution 1244 (1999) the Security Council did not reserve for itself the final determination of the situation in Kosovo and remained silent on the conditions for the final status of Kosovo. Resolution 1244 (1999) thus does not preclude the issuance of the declaration of independence of 17 February 2008 because the two instruments operate on a different level: unlike resolution 1244 (1999), the declaration of independence is an attempt to determine finally the status of Kosovo.
The Court could not accept the argument that Security Council resolution 1244 (1999) contained a prohibition, binding on the authors of the declaration of independence, against declaring independence; nor can such a prohibition be derived from the language of the resolution understood in its context and considering its object and purpose. The language of Security Council resolution 1244 (1999) is at best ambiguous in this regard. The object and purpose of the resolution was the establishment of an interim administration for Kosovo, without making any definitive determination on final status issues.
It was argued by a number of States which participated in the proceedings before the Court that the promulgation of a declaration of independence was an act outside the powers of the Provisional Institutions of Self-Government as set out in the Constitutional Framework. But the Court held that the declaration of independence of 17 February 2008 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. It followed that the authors of the declaration of independence were not bound by the framework of powers and responsibilities established to govern the conduct of the Provisional Institutions of Self-Government.
Accordingly, the Court found that the declaration of independence did not violate the Constitutional Framework