ICJ rules on Kosovo's Declaration of Independence 23 Jul 2010
The International Court of Justice finds that the declaration of independence of Kosovo did not violate international law.

On 22 July 2010, the International Court of Justice (ICJ) in The Hague has given its Advisory Opinion on the question of the "Accordance with international law of the unilateral declaration of independence in respect of Kosovo". Kosovo unilaterally declared its independence from Serbia on 17 February 2008. Since then, its statehood has been recognized by 69 countries, including the United States and most European Union nations. Serbia and Russia are among the majority of States rejecting its independence. Serbia sought international validation and support for its stance that the 2008 Kosovo declaration of independence is "illegal" at the General Assembly. On 8 October 2008, the General Assembly of the United Nations adopted resolution 63/3 in which, referring to Article 65 of the Statute of the Court, it requested the Court to render 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?

The advisory proceedings, which began in December, included arguments from 29 additional countries, including the five member-states of the UN Security Council, debating whether Kosovo's unilateral declaration of independence violated international law.

After unanimously finding that the Court has jurisdiction to give the advisory opinion requested by the General Assembly of the United Nations, the judges decided ( nine votes to five), to comply with that request starting with the definition of the scope and meaning of the question.

The court adopted a narrow approach restricting itself to the question whether or not the applicable international law prohibited the declaration of independence. In doing so, the Court refrained from commenting on aspects pertaining to the extent of the right of self-determination or remedial secession.

Initially, the ICJ considered the legality of declarations of independence under general international law against the background of the prohibition of the use of force and the principle of territorial integrity finding that ‘the scope of the principle of territorial integrity is confined to the sphere of relations between States’.

The Court further found that previous condemnations by the Security Council of unilateral declarations of independence had to be seen in their specific context noting that the illegal character of those declarations stemmed from the direct connection with the unlawful use of force or other serious violations of international norms of jus cogens character. However, the Security Council has never taken this position with respect to Kosovo. Further, the Court reasoned that the exceptional character of those resolutions containing a condemnation of a declaration of independence confirmed the absence of a general prohibition against unilateral declarations of independence under international law.

The Court further determined that the law applicable to the situation on 17 February 2008 was made up of Security Council resolution 1244 (1999) and the UNMIK (United Nations Mission in Kosovo) regulations promulgating the Constitutional Framework for Provisional Self-Government defining the responsibilities relating to the administration of Kosovo.

To determine whether the declaration of independence constituted a violation of these laws, the Court first addressed the question of the identity of the authors of the declarations.  The Court found that the authors should be regarded as representatives of the people of Kosovo, acting outside the framework for the interim administration. In accordance with the Court’s reasoning this further means that due to the fact that there is no specific request addressed to the representatives of the Kosovo Albanians to comply with certain aspects of Security Council resolution 1244, they cannot be considered as legally prohibited from issuing a declaration of independence.

Further interpreting Security Council Resolution 1244 (1999), the Court found that it did not contain a determination of the final status of Kosovo, thus, also not prohibiting a unilateral declaration of independence by the leadership of the Kosovo Albanians in order to arrive at such a determination. The Court further based this on the argument that the requirement for a political settlement of the situation required by Security Council resolution 1244, did not address the authors of the declaration of independence but concerns only the responsibilities of the civilian presence in Kosovo, i.e. the Special Representative of the Secretary-General in Kosovo and UNMIK.

Further, based on the arguments that the authors of the declaration of independence were not part of the Provisional Institutions of Self-Government and the fact that the declaration could not be regarded as an act intended to ‘take effect (..) within the legal order in which the Provisional Institutions operated’, the ICJ held that the declaration cannot be seen as violating the Constitutional Framework established under UNMIK.

The Court thus concluded by ten votes to four “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 [adopted on behalf of UNMIK by the Special Representative of the Secretary-General]”, and that “[c]onsequently the adoption of that declaration did not violate any applicable rule of international law”.

A number of declarations, separate and dissenting opinions were issued.

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