Accordance with International Law of the Unilateral Declaration of Independence in respect of Kosovo, ICJ advisory opinion of 22 July 2010, general list no. 141.

AuthorChristie, Emily
PositionInternational Court of Justice

Introduction

On 22 July 2010, the International Court of Justice ('ICJ') gave its Advisory Opinion on the question of the Accordance with International Law of the Unilateral Declaration of Independence in respect of Kosovo. The advisory opinion had been requested by the UN General Assembly on 8 October 2008 following Kosovo's Declaration of Independence on 17 February' 2008. The judgment was narrow in scope, focusing principally on whether the Declaration was prohibited by either general international law, or the lex specialis of the UN Security Council ('UNSC') Resolution 1244. The Opinion did not address the issue of sovereignty, territorial integrity or declarations of independence in any further detail; in particular the Court remained silent on whether there exists an entitlement to independence when certain conditions are met. In a somewhat controversial move, the Court provided an opinion as to whether the authors of the Declaration were acting in the capacity of members of the Provisional Institutions of Self-Government of Kosovo, as was assumed by the General Assembly, or in some alternative capacity as the representatives of the people of Kosovo.

The Court was of the opinion that Kosovo had not breached any international law; however, the judgement was far from unanimous. There was dissent on both the question of jurisdiction and the final opinion, with four judges dissenting on the substantive elements of the final opinion, and dissenting opinions, separate opinion and declarations from nine of the fourteen judges.

  1. Background

    On 17 February 2008, Kosovo unilaterally declared its independence from the Republic of Serbia. Under the Yugoslav constitution, Kosovo had been an autonomous province from 1974 until 1989, when it was stripped of its autonomy by then President Slobodan Milosevic. In 1999, violence between Kosovo liberation fighters and Serbian forces escalated, leading to NATO air strikes in Kosovo and Serbia, driving Serbian forces out of the Kosovo region.

    In attempting to diffuse the Kosovo crisis, the UNSC passed Resolution 1244, implementing UN control of the Kosovo region through the UN Interim Administration in Kosovo ('UNMIK'), The intention was to initiate a political process to establish an interim political framework agreement for providing substantial self government for Kosovo. To that end, UNMIK, under Regulation 1999/1, set up a Constitutional Framework and the Provisional Institutions for the Self-Government of Kosovo ('Provisional Institutions').

    The Provisional Institutions have effectively been in control of Kosovo since 1999 and negotiations to reach a settlement have been fruitless. It was against this background that, in 2008, the democratically elected Assembly of Kosovo passed the Declaration of Independence from Serbia.

    The Republic of Serbia refused to recognise the Declaration, deeming it to be illegal according to, amongst other laws, the UN Charter, the UNSC Resolution 1244 and the Constitution of Serbia. While more than 60 Stales have recognised the Republic of Kosovo, the international community remains split on the implications of Kosovo's Declaration.

    On 8 October 2008, the UN General Assembly passed Resolution 63/3 requesting an advisory opinion from the ICJ, asking 'is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?' Between October 2008 and December 2009 over forty- countries provided written and/or oral statements to the ICJ. The ICJ handed down its opinion on 22 July 2010.

    1. Decision

    1. Jurisdiction

      Under Article 65(1) of the ICJ Statute, the ICJ has the power to give an advisory opinion on any legal matter at the request of a body authorised by the UN Charter, including the General Assembly. (1) While it is clear that the issue at hand has political as well as legal aspects, the existence of such political aspects does not deprive it of its legal nature nor take the issue outside the jurisdiction of the Court. (2) Similarly the Court is not concerned with the possible political motivations of the request or implications of the opinion provided. (3)

      While the Court did agree that it had jurisdiction over the matter, there was a question as to whether the Court should utilise its discretion under Article 65 of the ICJ Statute and decline to exercise jurisdiction. Kosovo queried the motives of the UN General Assembly and Serbia in requesting the opinion, claiming that it was not made to assist the UN General Assembly in its work. (4) The Court held, however, that motives of the requestor are not relevant to the Court's exercise of its discretion; it is for the...

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