In its vote on Wednesday 8 October, the Member States of the United Nations General Assembly voted in favour of referring the legality of Kosovo’s declaration of independence on 17 February 2008 to the International Court of Justice (ICJ).

A total of 77 Member States voted in favour of the resolution while 74 countries abstained. Only six countries voted against the Republic of Serbia’s draft resolution, including the United States.

Of the EU Member States, the vast majority abstained from the vote although Romania, Slovakia, Spain, Greece and Cyprus voted in favour.

‘Unilateral independence declaration’

Serbia asked the UN Member States to vote for the ICJ to give 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?”

A simple majority was required in order for the Court to be requested to deliver an Advisory Opinion on the issue.

Serbia sought to have the question placed on the General Assembly’s agenda this year as only organs of the UN (and some of its Special Agencies) may ask the Court to deliver advisory opinions.

The General Assembly will now make the request to the ICJ.

ICJ advisory proceedings

As the principal judicial organ of the UN, the International Court of Justice has two functions: to settle disputes between States by binding judgments (contentious cases) and to give advisory opinions on legal questions submitted to it by the United Nations (advisory proceedings). The proceedings leading to an Advisory Opinion may take up to two years.

Advisory opinions are issued by the Court and do not have the effect of resolving a specific legal case but rather advise on the interpretation of the law.

Advisory opinions are essentially not binding. Nevertheless, advisory opinions benefit from the authority and prestige of the Court. Serbian Foreign Minister Jeremić said his country would respect the Court’s decision.

Advisory opinions which the General Assembly requests the ICJ to deliver can be of a highly political nature.

The last advisory opinion given by the ICJ, on 9 July 2004, related to the legal consequences of Israel’s construction of a wall in the occupied Palestinian territory.

Serbia: Declaration “illegal and illegitimate”

Kosovo unilaterally declared its independence from Serbia on 17 February 2008, but Belgrade has refused to recognise its sovereignty. Serbia claims that the declaration by the ethnic Albanian authorities of what the Serbian Government calls “our southern provinces of Kosovo and Metohija” was “unilateral, illegal and illegitimate” and in violation of UN Security Council Resolution 1244 (1999) as well as other key documents.

Resolution 1244, which was passed in June 1999 in the wake of NATO’s bombing campaign, reaffirmed the “commitment of all Member States to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia”.

The United States is one of 47 UN Member States which has thus far formally recognised Kosovo’s independence. Twenty-one EU Member States have done so.

Interestingly, only six members of the 57-member Organisation of the Islamic Conference (OIC) have recognised Kosovo’s independence to date. Approximately 90 per cent of Kosovo's 2.1 million people are Muslim.

Agenda of the sixty-third session of the General Assembly