A brief summary of the Advisory Opinion of 22 July 2010 in the Kosovo case
As customary, the Court dealt first with the issue of whether it had jurisdiction and in turn whether it should exercise its discretion and refuse to answer the question (paras. 17-48). This part is rather interesting in that it clarifies the powers of the General Assembly and its relationship with the Security Council. Having found that it had jurisdiction and that there were no compelling reasons not to answer the question the Court turned to the the scope and meaning of the question on which the General Assembly had requested that it give its opinion. Recalling that in some previous cases it has departed from the language of the question put to it where the question was not adequately formulated, the Court found that in the present case, the question posed by the General Assembly was clearly formulated.
Scope and meaning of the question
As the Court stated (para. 51):
“The question is narrow and specific; it asks for the Court’s opinion on whether or not the declaration of independence is in accordance with international law. It does not ask about the legal consequences of that declaration. In particular, it does not ask whether or not Kosovo has achieved statehood. Nor does it ask about the validity or legal effects of the recognition of Kosovo by those States which have recognized it as an independent State.”
As the Court noted, it was not required by the question 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. Thus, the Court left aside issues of self-determination and remedial secession and focused on whether Kosovo’s declaration of independence did violate international law.
Identity of the authors of the declaration of independence (paras. 102-109)
According to the Court, the identity of the authors of the declaration of independence was a matter capable of affecting the answer to the question whether that declaration was in accordance with international law. Having considered certain features of the text of the declaration and the circumstances of its adoption the Court 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.
Factual background leading to the Declaration of Independence of 17 February 2008 (paras. 57-77)
Having determined that the declaration of independence of 17 February 2008 must be considered within the factual context which led to its adoption, the Court briefly described the relevant characteristics of the framework put in place by the Security Council to ensure the interim administration of Kosovo, namely, Security Council resolution 1244 (1999) and the regulations promulgated thereunder by the United Nations Mission in Kosovo. The Court then proceeded with a brief description of the developments relating to the so-called “final status process” in the years preceding the adoption of the declaration of independence, before turning to the events of 17 February 2008.
The Question Whether the Declaration of Independence Is in Accordance with International Law (paras. 77-121)
The Court looked first to certain questions concerning the lawfulness of declarations of independence under general international law, against the background of which the question posed fell to be considered, and Security Council resolution 1244 (1999) is to be understood and applied. After having determined the general framework, the Court turned to the legal relevance of Security Council resolution 1244 (1999), and considered whether the resolution created special rules, and ensuing obligations, under international law applicable to the issues raised by the request and having a bearing on the lawfulness of the declaration of independence of 17 February 2008.
General international law (paras. 79-84)
The Court held that 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. In no case, however, did State practice 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 pointed 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.
In dealing with the contention that a prohibition of unilateral declarations of independence is implicit in the principle of territorial integrity, the Court held that the scope of the principle of territorial integrity is confined to the sphere of relations between States. The Court also confirmed that no general prohibition against unilateral declarations of independence may be inferred from the practice of the Security Council; exceptions being the unlawful use of force or other egregious violations of norms of general international law, in particular those of a peremptory character (jus cogens). In the context of Kosovo, the Security Council has never taken this position. According to the Court, general international law contains no applicable prohibition of declarations of independence; thus, the Kosovo’s declaration of independence of 17 February 2008 did not violate general international law.
Security Council resolution 1244 (1999) and the UNMIK Constitutional Framework created thereunder (paras. 85-121)
The Court noted that none of the participants had questioned the fact that resolution 1244 (1999), which specifically deals with the situation in Kosovo, is part of the law relevant in the present situation. Subsequently, the Court stated that the Constitutional Framework derives 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 Court next observed three distinct features of resolution 1244, relevant for discerning its object and purpose. 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. 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. Thirdly, resolution 1244 (1999) clearly established an interim régime; it cannot be understood as putting in place a permanent institutional framework in the territory of Kosovo. This resolution mandated UNMIK merely to facilitate the desired negotiated solution for Kosovo’s future status, without prejudging the outcome of the negotiating process. 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.
Having earlier established the identity of the authors of the declaration of independence, the Court turned to the question whether their act in promulgating the declaration was contrary to any prohibition contained in Security Council resolution 1244 (1999) or the Constitutional Framework adopted thereunder (paras. 110-121).
First, the Court observed that Security Council resolution 1244 (1999) was essentially designed to create an interim régime for Kosovo, with a view to channelling the long-term political process to establish its final status. The resolution did not contain any provision dealing with the final status of Kosovo or with the conditions for its achievement. Hence, according to the Court, Resolution 1244 (1999) did 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.
Secondly, turning to the question of the addressees of Security Council resolution 1244 (1999), the Court determined that there was no indication, in the text of Security Council resolution 1244 (1999), that the Security Council intended to impose, beyond that, a specific obligation to act or a prohibition from acting, addressed to such other actors. The Court concluded that, this part of Security Council resolution 1244 (1999) cannot be construed to include a prohibition, addressed in particular to the authors of the declaration of 17 February 2008, against declaring independence. The Court accordingly found that Security Council resolution 1244 (1999) did not bar the authors of the declaration of 17 February 2008 from issuing a declaration of independence from the Republic of Serbia. Hence, the declaration of independence did not violate Security Council resolution 1244 (1999).
The Court turned to the question whether the declaration of independence of 17 February 2008 violated the Constitutional Framework established under the auspices of UNMIK. Having found 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, the Court found that the declaration of independence did not violate the 2001 Constitutional Framework.
General conclusion (para. 122)
Having concluded that the adoption of the declaration of independence of 17 February 2008 did not violate general international law, Security Council resolution 1244 (1999) or the Constitutional Framework, the Court stated that consequently, the adoption of that declaration did not violate any applicable rule of international law.
The Court unanimously decided that it had jurisdiction to give the advisory opinion requested.
By nine votes to five it decided to comply with the request for an advisory opinion.
By ten votes to four the Court held:
[The Court] Is of the opinion that the declaration of independence of Kosovo adopted on 17 February 2008 did not violate international law.