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The paradox of Kosovo’s parallel legal orders; A critical exposition thereof

The following is a guest post by Alexandros  X.M.  Ntovas, Doctoral Grantee in Public International Law, University of Southampton School of Law.

In reading the recent advisory opinion of the International Court of Justice regarding the unilateral declaration of independence of Kosovo,[1] one is compelled to reach the oxymoron conclusion that the latter since the 17th of February 2008, being the date of declaration, enjoys – at least theoretically – two separate, yet concurrent, legal orders. In other words, two distinctive, in terms of legitimacy source, legal orders referring to the same territory at the same time. The first legal order is that established under the UNSC resolution 1244(1999) and the mandate of the interim international administration as were set out in more detail in UNMIK regulation 2001/9 of 15 May 2001 on a Constitutional Framework for Provisional Self-Government. The second is that emanating from the proclaimed sovereignty and independence declaration, which the Court found as not being in violation of any applicable rule of international law. Below both legal orders are being exposed briefly in turn.

The first legal order applying to Kosovo is considered by the Court in many parts of its advisory opinion. More specifically the Court asserts that “the object and purpose of UNSC 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was to establish a temporary, exceptional legal régime which, save to the extent that it expressly preserved it, superseded the Serbian legal order and which aimed at the stabilization of Kosovo, and that it was designed to do so on an interim basis.”[2] Upon the territory contemplated above the interim administration (i.e. UNMIK through the Special Representative of the Secretary General) asserted “[a]ll legislative and executive authority with respect to Kosovo, including the administration of the judiciary”.[3] Furthermore, the Constitutional Framework itself, as “part of a specific legal order”,[4] according to the Court derives within this lex specialis regime its binding force from the binding character of UNSC resolution 1244(1999) and thus from international law. On this very basis therefore it possesses an international legal character.[5] The above regime as characteristically is being put in the dissenting opinion of Judge KOROMA “[c]onstituted the legal order in force at the time in the territory of Kosovo [and therefore] Kosovo was not a legal vacuum.”[6]

Turning to consider the proclaimed legal order in the context of declaration, attention should be drawn to the emphasis of the Court being placed upon the fact that its authors aimed at establishing “an independent and sovereign state” and in doing so they did not act “within that legal order [that considered above] but rather set out to adopt a measure the significance and effects of which would lie outside that order”.[7] Indicative of the proclaimed sovereign regime is the ninth declaratory provision whereby the newly emerged legal order “[u]ndertakes the international obligations of Kosovo, including those concluded on [its] behalf by the United Nations Interim Administration Mission in Kosovo. . .”[8] In effect as the Court underscored in such undertakings are included “all matters relating to the management of the external relations of Kosovo [which] were the exclusive prerogative of the Special Representative of the Secretary-General” under the Constitutional Framework régime.[9]

To summarise, the Court’s advisory opinion creates a paradox between its thesis:

(a)                           To recognise, on the one hand, that Kosovo was subject to the legal order of the interim administration as this particular regime “was still in force and applicable as at 17 February 2008”[10], and

(b)                           To find that the unilateral declaration neither violated general international law nor the lex specialis applicable to Kosovo, and as such its content was valid to the extent that international law is being concerned. [11]

From the foregoing however arises a conflict of legal orders since both of them are referring to the very same territorial entity with more or less mutual exclusivity. The Court did not address this consequential conflict. It will be reminded that in employing a very restrictive approach to the UNGA request it narrowed down the scope and meaning of the question as to confine the answer solely “as to whether or not the declaration of independence [was] in accordance with international law”. Indeed, the Court despite of the fact that it identified the attendant question of “the legal consequences of that declaration” it did exclude it from its consideration as one that could not be justified in the wording of the UNGA’s request.[12] This decision was severely criticised not only on the ground of deviation from its previous practice in similar occasions,[13] but furthermore on the ground of a severe methodological error being responsible for misguiding the Court in its analysis.[14] An expressive direction for dealing with this paradox created by the theoretical presence of both legal orders is being offered by Judge Skotnikov who in arguing that “in no way does the advisory opinion question the fact that resolution 1244 remains in force in its entirety…”[15], proposes that in consistency with the jurisprudence of the Court and the general practice of States domestic acts cannot supersede international rules of law, and in other words that the legal order purported to establish under the declaration of Independence cannot replace that created under the international interim administration.


[1] Accordance with international law of the unilateral declaration of independence in respect of Kosovo, Advisory opinion ICJ (22 July 2010) General List No.141  

[2] Advisory opinion, at §100 (emphasis added).

[3] Idem, at §61.

[4] Idem, at §89.

[5] Idem, at §83 in conjunction with §87.

[6] Dissenting Opinion of Judge KOROMA, at §7.

[7] Advisory opinion, at §105.

[8] Idem, at §75.

[9] Idem, at §106.

[10] Idem, at §91.

[11] Idem, at §122.

[12] Idem, at §51.

[13] Separate opinion of Judge Sepúlveda-Amor, §§33-34 citing e.g. the Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion, ICJ (1980).

[14] Declaration of Judge Simma, at §1.

[15] Dissenting opinion of Judge Skotnikov, at §18.

4 Comments

  1. Gentian Zyberi Gentian Zyberi 12 September 2010

    Dear Alexandros,
    thanks for the interesting piece you contributed and approach to this issue. Indeed, it is an anomaly that the two legal regimes still coexist. Resolution 1244 has run its course for all purposes, however, and is formally being kept alive for no good reason. The government of the Republic of Kosovo is the legitimate representative of its people and is accepted as such by a large number of countries, over 70 at the moment.
    The Court was correct in its findings, although it could have said more, as Judge Simma (and Sepulveda-Amor) pointed out. All participating countries, including Serbia, explicitly asked the Court to construe the question narrowly, which it ultimately did. Judge Sepulveda-Amor, whom you refer to as having severely criticized the advisory opinion voted in its favour. He simply wanted to Court to have explained more of the case.
    I cannot follow Judge Skotnikov’s reasoning, arguing, as you paraphrase him, that ‘the general practice of States domestic acts cannot supersede international rules of law, and in other words that the legal order purported to establish under the declaration of Independence cannot replace that created under the international interim administration.’ Simply, nothing of that happened in the case of Kosovo. The declaration of independence created a new (legal) reality, the Republic of Kosovo, as an independent State outside of the existing legal regime/s. The UN being and remaining neutral to the status issue and having been invited to stay in the country by the Kosovar authorities continues to fulfill certain functions, until the situation is revisited.
    To say that the advisory opinion does not deal with the legal effects of the declaration of independence and it does not pronounce on the final status of Kosovo is a very distorted reading of this advisory opinion. That final status has been decided on 17 February 2008 by the legitimate and democratically elected representatives of the people of Kosovo.

  2. Ioan-Luca Vlad Ioan-Luca Vlad 12 September 2010

    Dear Alexandros,
    Thank you for identifying this issue of the duality of legal orders in Kosovo, something which stroke me on a careful reading of the text.
    When first reading the decision, I was left believing that the Court wishes the General Assembly to address it another question, much better framed, in terms of the effects created by the factual events following the declaration of independence, namely whether Kosovo became a state, and if so, what has happened with the UN legal regime in the meantime.
    Such a question would allow the Court to delve upon the issue of the creation of states, on the validity and termination of UNSC Resolutions, and on other adjacent subjects.
    However, given that it is highly unlikely that such a question will be placed before the Court any time soon, in not deciding upon these issues, the Court has left, in a sense, the facts to create legal situations on the ground which it [and/or the international community] will be able to ascertain with certitude at a later date.

  3. Michael Michael 15 September 2010

    For more on Kosovo and the Advisory Opinion see the current issues of the German Law Journal (www.germanlawjournal.com/) and the Goettingen Journal of International Law (GoJIL)

  4. Michael Michael 15 September 2010

    For more on Kosovo and the Advisory Opinion see the current issues of the German Law Journal (www.germanlawjournal.com/) and the Goettingen Journal of International Law (GoJIL, http://www.gojil.eu, forgot to post also the link…)

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