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ICJ to Give Advisory Opinion on the Legality of Kosovo`s Independence

Yesterday, the UN General Assembly by 77 votes in favor, 6 votes against and 74 Member States abstaining backed Serbia’s proposal to submit the question of the legality of Kosovo’s independence to the International Court of Justice (ICJ). 

According to the resolution the ICJ will thus have to give an opinion on whether “the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo [is] in accordance with international law?”.

After Kosovo’s February 17th declaration of independence Serbia proclaimed it will defend its territorial integrity by diplomatic means and in accordance with international law. According to Serbian Minister for Foreign Affairs, Vuk Jeremić they beleived that sending the question to the ICJ would provide politically neutral and judicially authoritative guidance to many countries still deliberating how to approach such unilateral declarations of independence in line with international law.

In the debate several countries presented their statements, explaining the vote, many of them questioning the “use” of the advisory opinion since (UK) “Kosovo’s independence is, and will remain, a reality.” Several EU Member States also reminded Serbia of its European integration prospects. They however did not vote against the proposal but abstained, whereas the EU Member States that have not recognized Kosovo (so far) voted in favor of the request. The United States were the only member of the International Steering Group for Kosovo that voted against the resolution.

Kosovo is currently still administered according to Security Council Resolution 1244 which deployed international civil and security presences in Kosovo, under UN auspices. The Resolution was passed after the second Kosovo crisis in 1999 had led to NATO air-strikes which in turn led to the removal of Yugoslav forces from the region. The Resolution established civilian executive powers in the form of the United Nations Interim Administration Mission in Kosovo (UNMIK) and an international military presence, the Kosovo Force (KFOR), a NATO-led international force responsible for establishing and maintaining security in Kosovo. In spring this year the EU has started implementing its February 2008 Joint Actions, on the appointment of European Union Special Representative in Kosovo (EUSR) as the International Civilian Representative and the establishment of the European Union Rule of Law Mission in Kosovo (EULEX Kosovo). EULEX was foreseen to replace UNMIK, but due to lacking consent among the UN Security Council Members, especially Russia’s opposition, it now seems that UNMIK and EU mission will operate concurrently. 

This is not the first time that ICJ has been requested by the General Assembly to give an opinion on also very sensitive political issue. In 2003 the “World Court” was requested to answer the question of the legal consequences arising from Israel’s wall built to separate part of the West Bank from Israel.

7 Comments

  1. Dominika Svarc Dominika Svarc 10 October 2008

    Maja,
    thanks for your informative entry and I am looking forward to more from you on this interesting blog.
    I would be interested in some more of your thoughts on this issue, as this will without doubt be a very important and spot-lighted procedure.
    For example, I wonder whether we will again see the Court beating around the bush and avoiding to proclaim on the issue in any definite terms.
    After the declaration of independence in February, many legal commentators opined that there is no clear answer in international law to this question, or better said, that IL neither explicitly prohibits nor explicitly allows a unilateral secession. A clearer answer would probably be possible if the question was related to the (il)legality of recognitions of Kosovo (but that would be less relevant for Serbia and would also less likely get the necessary vote in the GA, I guess).
    So, it will be interesting to see whether the Court will offer a more general comment on the legality of unilateral secession as such, how much it will contribute to the interpretation of customary law in this respect, how eloquent it will be on the concept of “remedial secession”, etc.
    I agree with Vuk Jeremič that this is an important moment for international law, at least if the Court in fact helps to clarify some of the very murky and controversial issues related to territorial integrity, self-determination and secession. But given the Court’s record in such sensitive matters, I am not too optimistic.
    Best,
    Dominika.

  2. Jana Lozanoska Jana Lozanoska 11 October 2008

    I look forward to the Court’s opinion especially in regard to the areas that the previous commentator has mentioned. I consider that Serbian government should have asked additional question and that is: “Is the recognition by third states of Kosovo’s independence in accordance with UN SCR 1244?”. Because not necessarily ICJ would delve on this if it concludes that the unilateral proclamation by the authorities is legal under pretext of the right to secession and self-determination.

  3. msmrk msmrk Post author | 12 October 2008

    Dear Dominika, Dear Jana,
    I agree very much with both of your comments and thoughts. I think it will be very interesting to see what the ICJ comes up with but I can also just speculate myself and this goes all very much in your direction, Domnika.

  4. Dominik Zimmermann Dominik Zimmermann 14 October 2008

    What should also be highlighted with regard to the UNGA’s request for an advisory opinion is that the UNGA once again did not (have to) give a definitive answer as to whether a two-thirds majority (pursuant to Art. 18(2) UN Charter: “important questions”) or a simple majority (pursuant to Art. 18(3) UN Charter: “other questions”) of the members “present and voting” is needed when the UNGA takes a decision under Art. 96 UN Charter. The UNGA has so far always either reached a two-thirds majority or not even reached a simple majority thus not being obligated to take a definite stance on the issue. Pursuant to the rules of the UNGA, and in particular Rule 86, the phrase “members present and voting” means “members casting an affirmative or negative vote. Members which abstain from voting are considered as not voting.” This translates into the following results from the Wall-Case and the latest request: In the Wall-Case, the vote was 91% in favor of requesting an advisory opinion (90 in favor, 8 against), and in the present case the vote was even higher at 93% in favor (77 in favor, 6 against). Does anybody know of a case where the voting result in the UNGA, voting to take a decision under Art. 96(1) UN Charter, was more than a simple majority but even remotely close to not reaching the two-thirds threshold?

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