Accordance with international law of the unilateral declaration of independence in respect of Kosovo
OVERVIEW OF THE CASE
On 8 October 2008 (resolution 63/3), the General Assembly decided to ask 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 ?”
Thirty-six Member States of the United Nations filed written statements and the authors of the unilateral declaration of independence filed a written contribution. Fourteen States submitted written comments on the written statements of States and on the written contribution of the authors of the declaration of independence. Twenty-eight States and the authors of the unilateral declaration of independence participated in the oral proceedings, which took place from 1 to 11 December 2009.
In its Advisory Opinion delivered on 22 July 2010, the Court concluded that “the declaration of independence of Kosovo adopted on 17 February 2008 did not violate international law”. Before reaching this conclusion, the Court first addressed the question of whether it possessed jurisdiction to give the advisory opinion requested by the General Assembly. Having established that it did have jurisdiction to render the advisory opinion requested, the Court examined the question, raised by a number of participants, as to whether it should nevertheless decline to exercise that jurisdiction as a matter of discretion. It concluded that, in light of its jurisprudence, there were “no compelling reasons for it to decline to exercise its jurisdiction” in respect of the request.
With regard to the scope and meaning of the question, the Court ruled that the reference to the “Provisional Institutions of Self-Government of Kosovo” in the question put by the General Assembly did not prevent it from deciding for itself whether the declaration of independence had been promulgated by that body or another entity. It also concluded that it was not required by the question posed to decide whether international law conferred a positive entitlement upon Kosovo to declare independence ; rather, it had to determine whether a rule of international law prohibited such a declaration.
The Court first sought to determine whether the declaration of independence was in accordance with general international law. It noted that State practice during the eighteenth, nineteenth and early twentieth centuries “points clearly to the conclusion that international law contained no prohibition of declarations of independence”. In particular, the Court concluded that “the scope of the principle of territorial integrity is confined to the sphere of relations between States”. It also determined that no general prohibition of declarations of independence could be deduced from Security Council resolutions condemning other declarations of independence, because those declarations of independence had been made in the context of an unlawful use of force or a violation of a jus cogens norm. The Court thus concluded that the declaration of independence in respect of Kosovo had not violated general international law.
The Court then considered whether the declaration of independence was in accordance with Security Council resolution 1244 of 10 June 1999. It concluded that the object and purpose of that resolution was to establish “a temporary, exceptional legal régime which . . . superseded the Serbian legal order . . . on an interim basis”. It then examined the identity of the authors of the declaration of independence. An analysis of the content and form of the declaration, and of the context in which it was made, led the Court to conclude that its authors were not the Provisional Institutions of Self-Government, but rather “persons who acted together in their capacity as representatives of the people of Kosovo outside the framework of the interim administration”. The Court concluded that the declaration of independence did not violate resolution 1244 for two reasons. First, it emphasized the fact that the two instruments “operate on a different level” : resolution 1244 was silent on the final status of Kosovo, whereas the declaration of independence was an attempt to finally determine that status. Second, it noted that resolution 1244 imposed only very limited obligations on non-State actors, none of which entailed any prohibition of a declaration of independence. Finally, in view of its conclusion that the declaration of independence did not emanate from the Provisional Institutions of Self-Government of Kosovo, the Court held that its authors were not bound by the Constitutional Framework established under resolution 1244, and thus that the declaration of independence did not violate that framework.
Consequently, the Court concluded that the adoption of the declaration of independence had not violated any applicable rule of international law. On 9 September 2010, the General Assembly adopted a resolution in which it acknowledged the content of the advisory opinion of the Court rendered in response to its request (resolution 64/298).
This overview is provided for information only and in no way involves the responsibility of the Court.