INTERNATIONAL COURT OF JUSTICE
Peace Palace, Carnegieplein 2, 2517 KJ The Hague, Netherlands
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Website: www.icj-cij.org
Press Release
Unofficial
No. 2010/25
22 July 2010
Accordance with international law of the unilateral declaration of independence
in respect of Kosovo
Advisory Opinion
The Court finds that the declaration of independence of Kosovo adopted
on 17 February 2008 did not violate international law
THE HAGUE, 22 July 2010. The International Co urt of Justice (ICJ), the principal judicial
organ of the United Nations, has today given its Advisory Opinion on the question of the
Accordance with international law of the unilateral declaration of independence in respect of
Kosovo (request for advisory opinion).
In this Opinion, the Court unanimously finds that it has jurisdiction to give the advisory
opinion requested by the General Assembly of th e United Nations and, by nine votes to five,
decides to comply with that request.
The Court then responds to the request as follows:
“(3) By ten votes to four,
Is of the opinion that the declaration of independence of Kosovo adopted on
17 February 2008 did not violate international law.”
Reasoning of the Court
At the end of its reasoning, which is summa rized below, the Court concludes “that the
adoption of the declaration of independence of 17February2008 did not violate general
international law, Security Council resolution 1244(1999) or the Constitutional Framework
[adopted on behalf of UNMIK by the Special Repr esentative of the Secretary-General]”, and that
“[c]onsequently the adoption of that declaration did not violate any applicable rule of international
law”.
The Advisory Opinion is divided into five pa rts: (I)jurisdiction and discretion; (II)scope
and meaning of the question; (III)factual backgr ound; (IV)the question whether the declaration
of independence is in accordance with international law; and (V) general conclusion. - 2 -
I. JURISDICTION AND DISCRETION
The Court recalls that, when seised of a request for an advisory opinion, it must first consider
whether it has jurisdiction to give the opinion reque sted and whether, should the answer be in the
affirmative, there is any reason why the Court, in its discretion, should decline to exercise any such
jurisdiction in the case before it.
It thus first addresses the question whether it possesses jurisdiction to give the advisory
opinion requested by the General Assembly on 8 October2008. Referring in particular to
Articles10,11, paragraph2, and12 of the Char ter of the United Nations, the Court observes that
the General Assembly “may discuss any questions or any matters within the scope of the...
Charter or relating to the powers and functions of any organs provided for in the . . . Charter”, and
that “the Charter has specifically provided the General Assembly with competence to discuss ‘any
questions relating to the maintenance of interna tional peace and security brought before it by any
Member of the United Nations’ and... to make recommendations”. The Court further observes
that the request for an advisory opinion does not contravene the provisions of Article12,
paragraph 1, of the Charter which prohi bit the General Assembly from making any
recommendation with regard to a dispute or situatio n in respect of which the Security Council is
exercising the functions assigned to it by the Charter. The Court then notes that the question put by
the General Assembly “certainly appears to be a legal question” within the meaning of Article 96
of the Charter and Article 65 of its Statute, and concludes from the foregoing that it has jurisdiction
to give an advisory opinion in response to the request made by the General Assembly. It points
out, in so doing, that the fact “that a question has political aspects does not suffice to deprive it of
its character as a legal question” and also makes cl ear that “in determining the jurisdictional issue
of whether it is confronted with a legal question, it is not concerned with the political nature of the
motives which may have inspired the request or the political implications which its opinion might
have”.
The Court then observes that the fact that it has jurisdiction “does not mean, however, that it
is obliged to exercise it”, pointing out that th e discretion accorded to it under Article65 of the
Statute whether or not to respond to a request for an advisory opinion exists “so as to protect the
integrity of [its] judicial function and its nature as the principal judicial organ of the United
Nations”.
After recalling that its answer to a request for an advisory opinion “represents its
participation in the activities of the Organization, and, in principle, should not be refused”, the
Court notes that it “must satisfy itself as to the propriety of the exercise of its judicial function in
the present case” and that it has therefore “given caref ul consideration as to whether, in the light of
its previous jurisprudence, there are compelling reasons for it to refuse to respond to the request
from the General Assembly”. First, the Court considers that the motives which lie behind the
request for an advisory opinion “are not relevant to the . . . exercise of its discretion whether or not
to respond”. Second, it notes that it cannot accep t the argument put forward by some of those
participating in the proceedings that resoluti on63/3 (in which the General Assembly made its
request to the Court for an advisory opinion) gave no indication “of the purpose for which the
General Assembly needed the Court’s opinion an d that there was nothing to indicate that the
opinion would have any useful legal effect”. The Court recalls that it “has consistently made clear
that it is for the organ which requests the opinion, and not for the Court, to determine whether it
needs the opinion for the proper perfo rmance of its functions”. Third, it also cannot accept the
suggestion of some of those participating in the proceedings that it should refuse to respond on the
grounds that its opinion might lead to adverse political consequences.
The Court then considers an issue which it deems “important”, that is, whether it “should
decline to answer the question which has been put to it on the ground that the request for the
Court’s opinion has been made by the General Asse mbly rather than the Security Council”. It
notes that “[w]hile the request... concerns one aspect of a situation which the Security Council - 3 -
has characterized as a threat to international peace and security and which continues to feature on
the agenda of the Council in that capacity, that does not mean that the General Assembly has no
legitimate interest in the question”. It recalls th at “the fact that, hitherto, the declaration of
independence has been discussed only in the Secu rity Council and that the Council has been the
organ which has taken action with regard to the situation in Kos ovo does not constitute a
compelling reason for the Court to refuse to res pond to the request from the General Assembly”.
Further, it adds that “the fact that it will nece ssarily have to interpret a nd apply the provisions of
Security Council resolution 1244 (1999) in the course of answering the question put by the General
Assembly does not constitute a compelling reason not to respond to that question”. It observes in
this respect that, while the interpretation and application of a decision of one of the political organs
of the United Nations is, in the first place, the r esponsibility of the organ which took that decision,
the Court, as the principal judicial organ of th e United Nations, “has also frequently been required
to consider the interpretation and legal effects of such decisions”, and that it has already done so
both in the exercise of its advisory jurisdiction and in the exercise of its contentious jurisdiction.
The Court therefore finds that there is “nothing in compatible with the integrity of [its] judicial
function” in answering the question put by the General Assembly.
It points out that the question is, rather, wh ether it should decline to respond to the request
from the General Assembly unless it is asked to do so by the Security Council, the latter being, as
the Court recalls, both the organ which adopted r esolution 1244 and the organ which is responsible
for interpreting and applying that resolution. The Court observes that “[w]here, as here, the
General Assembly has a legitimate in terest in the answer to a question, the fact that that answer
may turn, in part, on a decision of the Security Council is not sufficient to justify the Court in
declining to give its opinion to the General Assembly”.
The Court accordingly concludes that “there are no compelling reasons for it to decline to
exercise its jurisdiction in respect of the . . . request” which is before it.
II. SCOPE AND MEANING OF THE QUESTION
The Court notes that the General Assembly has asked it whether the declaration of
independence of Kosovo adopted on 17 February 2008 was “in accordance with” international law:
the answer to that question therefore turns on whether or not th e applicable international law
prohibited that declaration of independence. The Co urt adds that, if it concludes that international
law did prohibit the said declaration, then it should answer the question put by saying that the
declaration of independence was not in accordance with international law. The Court observes that
the task which it is called upon to perform is theref ore to determine whether or not the declaration
in question was adopted in violation of international law. It points out that it “is not required by the
question it has been asked to take a position on whether international law conferred a positive
entitlement on Kosovo unilaterally to d eclare its independence or, afortiori , on whether
international law generally confers an entitlement on entities situated within a State unilaterally to
break away from it”.
III. FACTUAL BACKGROUND
The Court continues its reasoning by indicating that the declaration of independence of
Kosovo adopted on 17 February 2008 “must be consid ered within the factual context which led to
its adoption”. It briefly describes the relevant ch aracteristics 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 prom ulgated thereunder by the United Nations Mission
in Kosovo (UNMIK). It then gives a succinct account of the devel opments 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. - 4 -
IV. T HE QUESTION WHETHER THE DECLARATION OF INDEPENDENCE IS IN ACCORDANCE WITH
INTERNATIONAL LAW
In this fourth part, the Court examines the s ubstance of the request submitted by the General
Assembly. It recalls that it has been asked by the General Assembly to assess the accordance of the
declaration of independence of 17 February 2008 with “international law”.
The Court first turns its attention to certain questions concerning the lawfulness of
declarations of independence under general international law, against the background of which
the question posed falls to be considered, and Se curity Council resolution1244(1999) is to be
understood and applied. In particular, it notes th at during the second half of the twentieth century,
“the international law of self-determination deve loped 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 explo itation” and that a “great many new States have come into
existence as a result of the exercise of this right ”. The Court observes that there were, however,
also instances of declarations of independence outside this context and that “[t]he practice of States
in these latter cases does not point to the emergenc e in international law of a new rule prohibiting
the making of a declaration of independence in such cases”.
The Court states that several participants in the proceedings have contended that a
prohibition of unilateral declarations of independen ce is implicit in the principle of territorial
integrity. It “recalls that [this] principle . . . is an important part of the international legal order and
is enshrined in the Charter of the United Nations, in particular in Article 2, paragraph 4”, under the
terms of which “[a]ll Members shall refrain in their international relations from the threat or use of
force against the territorial integrity or political independence of any State, or in any other manner
inconsistent with the Purposes of the United Nations”.
The Court adds that in General Assembly resolution2625(XXV), entitled “Declaration on
Principles of International Law concerning Frie ndly Relations and Co-operation among States in
Accordance with the Charter of the United Nati ons”, which reflects customary international law
(Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America), Merits, Judgment, I.C.J. Reports 1986 , pp.101-103, paras.191-193), the General
Assembly reiterated “[t]he principle that States shall refrain in their international relations from the
threat or use of force against the territorial inte grity or political independence of any State”. This
resolution then enumerated various obligations in cumbent upon States to refrain from violating the
territorial integrity of other sovereign States. Th e Court points out that, in the same vein, the Final
Act of the Helsinki Conference on Security and Co-operation in Europe of 1August1975 (the
Helsinki Conference) stipulated that “[t]he partic ipating States will respect the territorial integrity
of each of the participating States” (Art.IV). Hence the Court considers that “the scope of the
principle of territorial integrity is confined to the sphere of relations between States”.
After recalling that several participants have invoked resolutions of the Security Council
condemning particular declarations of independence (see, inter alia , Security Council
resolutions216(1965) and 217(1965), concerning Southern Rhodesia; Security Council
resolution541(1983), concerning northern Cyprus; and Security Council resolution787(1992),
concerning the Republika Srpska), the Court “notes, however, that in all of those instances the
Security Council was making a determination as rega rds the concrete situation existing at the time
that those declarations of independence were made ; the illegality attached to the declarations of
independence thus stemmed not from the unilatera l character of these declarations as such, but
from the fact that they were, or would have been, connected with the unlawful use of force or other
egregious violations of norms of general interna tional law, in particular those of a peremptory
character (jus cogens)”. “In the context of Kosovo”, the Court continues, “the Security Council has
never taken this position. The exceptional character of the resolutions enumerated above appears
to the Court to confirm that no general prohibiti on against unilateral declar ations of independence
may be inferred from the practice of the Security Council.” - 5 -
Turning to the arguments put forward by a number of participants concerning the extent of
the right of self-determination and the existence of any right of “remedial secession”, the Court
considers that the debates on these points “concern the right to separate from a State”. The Court
recalls that “as almost all participants agreed, that issue is beyond the scope of the question posed
by the General Assembly”. It notes that, to an swer the question posed, it need only “determine
whether the declaration of independence violat ed either general international law or the
lex specialis created by Security Council resolution 1244 (1999)”.
The Court concludes that “general internati onal law contains no applicable prohibition of
declarations of independence” and accordingly that the declaration of independence of
17 February 2008 did not violate general international law.
The Court then examines the legal relevance of Security Council resolution 1244 , adopted
on 10June1999, in order to determine whether the resolution creates special rules, and therefore
ensuing obligations, under international law applicab le to the issues raised by the present request
and having a bearing on the lawfulness of the declaration of independence of 17 February 2008.
The Court first notes that resolution1244(1 999) was expressly adopted by the Security
Council on the basis of ChapterVII of the United Nations Charter, and therefore clearly imposes
international legal obligations. The Court observ es that “none of the participants has questioned
the fact that [this] resolution..., which specifically deals with the situation in Kosovo, is part of
the law relevant in the . . . situation [under consideration]”.
The Court then addresses the UNMIK regul ations, including regulation2001/9, which
promulgated the Constitutional Framework for Provisional Self-Government and which defined the
responsibilities relating to the administration of Kosovo between the Special Representative of the
Secretary-General and the Provisional Institutions of Self-Government of Kosovo. It notes that
these regulations are adopted by the Special Representative of the Secretary-General on the basis of
the authority derived from Security Council reso lution1244(1999) and thus ultimately from the
United Nations Charter. It goes on to state that “[t]he Constitutional Framework derives its binding
force from the binding character of resolution1244(1999) and thus from international law” and
that “[i]n that sense it therefore possesses an international legal character”.
The Court further adds that at the same time, “the Constitutional Framework functions as
part of a specific legal order, created pursuant to resolution1244 (1999), which is applicable only
in Kosovo and the purpose of which is to re gulate, during the interim phase established by
resolution1244(1999), matters which would ordinar ily be the subject of internal, rather than
international, law”; the “Constitutional Framework therefore took e ffect as part of the body of law
adopted for the administration of Kosovo during the interim phase”. The institutions which it
created were empowered by the Constitutional Fram ework to take decisions which took effect
within that body of law, the Court continues, observing “[i]n particular, [that] the Assembly of
Kosovo was empowered to adopt legislation which w ould have the force of law within that legal
order, subject always to the overriding au thority of the Special Representative of the
Secretary-General”.
The Court notes that “neither Security C ouncil resolution 1244 (1999) nor the Constitutional
Framework contains a clause providing for its term ination and neither has been repealed; they
therefore constituted the international law applicab le to the situation prevailing in Kosovo on
17 February 2008”. It concludes from the foregoing that “Security Council resolution 1244 (1999)
and the Constitutional Framework form part of the in ternational law which is to be considered in
replying to the question posed by the General Assembly”. - 6 -
After considering the interpretation of resolution1244(1999) itself, the Court concludes
that “the object and purpose of [the] resolution . . . was to establish a temporary, exceptional legal
régime which, save to the extent that it expressl y preserved it, superseded the Serbian legal order
and which aimed at the stabilization of Kosovo, an d that it was designed to do so on an interim
basis”.
The Court then turns to the question whether resolution1244(1999), or the measures
adopted thereunder, introduces a specific prohib ition on issuing a declaration of independence,
applicable to those who adopted the declaration of independence of 17 February 2008. In order to
answer this question, it is first necessary for the Court to determine precisely who issued that
declaration.
In the part of its Advisory Opinion devoted to the identity of the authors of the declaration
of independence , the Court seeks to establish whether the declaration of independence of
17February2008 was an act of the “Assembly of Kosovo”, one of the Provisional Institutions of
Self-Government, established under the Constitutional Framework, or whether those who adopted
the declaration were acting in a different capaci ty. On this point, the Court arrives at the
conclusion that “the authors of the declaration of independence... 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”.
The Court then turns to the question, debated in the proceedings, whether the authors of the
declaration of independence acted in violation of Security Council resolution1244(1999) .
After outlining the arguments submitted by the part icipants in the proceedings on this point, the
Court undertakes a careful reading of resolution12 44(1999) in order to determine whether that
text prohibits the authors of the declaration of 17 February 2008 from declaring independence from
the Republic of Serbia.
It first points out that the resolution did not contain any provision dealing with the final
status of Kosovo or with the conditions for its ach ievement. In this regard, the Court notes that
contemporaneous practice of the Security Council shows that “in situations where the Security
Council has decided to establish restrictive conditions for the permanent status of a territory, those
conditions are specified in the relevant resolu tion”. The Court notes that “under the terms of
resolution 1244 (1999) the Security Council did not reserve for itself the final determination of the
situation in Kosovo and remained si lent on the conditions for the fina l status of Kosovo”. It finds
that resolution 1244 (1999) “thus does not preclude the issuance of the declaration of independence
of 17February2008 because the two instru ments operate on a different level: unlike
resolution 1244 (1999), the declaration of independence is an attempt to determine finally the status
of Kosovo”.
Turning to the question of the addressees of Security Council resolution 1244 (1999) , the
Court recalls that, when interpreting Security Council resolutions, it must establish, “on a
case-by-case basis, considering all relevant circumstances, for whom the Security Council intended
to create binding legal obligations”. It recalls that “it has not been uncommon for the Security
Council to make demands on actors other than United Nations Member States and
intergovernmental organizations”, more speci fically, in this case, on the Kosovo Albanian
leadership, but points out that such reference to th at leadership or other actors, notwithstanding the
somewhat general reference to “all concerned” (para.14), is missing from the text of Security
Council resolution1244 (1999). The Court therefor e considers that it cannot accept the argument
that resolution1244(1999) contains a prohibition, binding on the authors of the declaration of
independence, against declaring independence. It a dds that “nor can such a prohibition be derived - 7 -
from the language of the resolution understood in its context and considering its object and
purpose”, and that “[t]he language of... resolution1244(1999) is at best ambiguous” on the
question of whether the resolution creates such a prohibition. The Court notes that the object and
purpose of the resolution “is the establishment of an interim administration for Kosovo, without
making any definitive determination on final status issues”.
While the text of paragraph11(c) of resolution1244(1999) explains that the “main
responsibilities of the international civil presence will include . . . [o]rganizing and overseeing the
development of provisional institutions for demo cratic and autonomous self-government pending a
political settlement ” (emphasis added), the Court nevertheless states that the phrase “political
settlement”, often cited in the proceedings, “does not modify [its] conclusion” that resolution 1244
(1999) does not contain a prohibition, binding on the authors of the declaration of independence,
against declaring independence. The Court explains that this reference is made within the context
of enumerating the responsibilities of the international civil presence, i.e., the Special
Representative of the Secretary-General in Kosovo and UNMIK, and not of other actors; the Court
adds that, as the diverging views presented to it on this matter illustrate, the term “political
settlement” is subject to various interpretations. The Court therefore concludes that this part of
resolution 1244 (1999) “cannot be construed to include a prohibition, addressed in particular to the
authors of the declaration of 17February2008, against declar ing independence”. The Court
accordingly finds that Security Council resolution1244(1999) did not bar the authors of the
declaration of 17February2008 from issuing a d eclaration of independence from the Republic of
Serbia, and that “[h]ence, the declaration of independence did not violate Security Council
resolution 1244 (1999)”.
Finally, on the question whether the declaration of independence of 17February2008
has violated the Constitutional Framework established under the auspices of UNMIK, as argued
by a number of States which participated in the proceedings, the Court recalls that it has already
held, earlier in its Advisory Opinion, “that [this] declaration of independence . . . was not issued by
the Provisional Institutions of Self-Government, no r was it an act intended to take effect, or
actually taking effect, within the legal order in which those Provisional Institutions operated”.
Accordingly, the Court states that “the authors of the declaration of independence were not bound
by the framework of powers and responsibilities established to govern the conduct of the
Provisional Institutions of Self-Government”, and fi nds that “the declaration of independence did
not violate the Constitutional Framework”.
V. G ENERAL CONCLUSION
To bring its reasoning to a close, the Court summarizes its conclusions as follows:
“The Court has concluded above that the a doption of the declaration of independence of
F7ebruar2008 did not violate general international law, Security Council
resolution1244(1999) or the Constitutional Fram ework. Consequently the adoption of that
declaration did not violate any applicable rule of international law.”
Composition of the Court
The Court was composed as follows:
President Owada; Vice-President Tomka; Judges Koroma, Al-Khasawneh, Buergenthal, Simma,
Abraham, Keith, Sepúlveda-Amor, Bennouna, Skot nikov, CançadoTrindade, Yusuf, Greenwood;
Registrar Couvreur. - 8 -
Vice-President Tomka appends a declaration to the Advisory Opinion of the Court;
Judge Koroma appends a dissenting opinion to the Advisory Opinion of the Court; Judge Simma
appends a declaration to the Advisory Opinion of the Court; Judges Keith and Sepúlveda-Amor
append separate opinions to the Advisory Opinion of the Court; Judges Bennouna and Skotnikov
append dissenting opinions to the Advisory Opinion of the Court; Judges Cançado Trindade and
Yusuf append separate opinions to the Advisory Opinion of the Court.
___________
A summary of the Advisory Opinion is contained in the document “Summary No. 2010/2”,
to which summaries of the opinions and declarations appended to the Advisory Opinion are
attached. This press release, the summary and the full text of the Advisory Opinion (including the
opinions and declarations of the judges) can also be found on the Court’s website (www.icj-cij.org)
under the heading “Cases” (click on “Advisory Proceed ings”). Photographs and audiovisual files
will be made available to the media in the early evening of 22 July 2010 by the Court’s Information
Department (consult the “Press Room” section).
___________
Information Department:
Mr. Andrey Poskakukhin, First Secretary of the Court, Head of Department (+31 (0)70 302 2336)
Mr. Boris Heim, Information Officer (+31 (0)70 302 2337)
Ms Joanne Moore, Associate Information Officer (+31 (0)70 302 2394)
Accordance with international law of the unilateral declaration of independence in respect of Kosovo - Advisory Opinion - The Court finds that the declaration of independence of Kosovo adopted on 17 February 2008 did not violate international law