INTERNATIONAL COURT OF JUSTICE
Peace Palace, Carnegieplein 2, 2517 KJ The Hague, Netherlands
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Website: www.icj-cij.org
2010/2 Summary
22 July 2010
Accordance with international law of the unilateral declaration of
independence in respect of Kosovo
Summary of the Advisory Opinion
On 22July2010, the International Court of Justice gave its Advisory Opinion on the
question of the Accordance with international law of the unilateral declaration of independence in
respect of Kosovo.
History of the proceedings (paras. 1-16)
The Court begins by recalling that the question on which the advisory opinion has been
requested is set forth in resolution63/3 adopteby the General Assembly of the United Nations
(hereinafter the General Assembly) on 8 October 2008. It further recalls that that question reads as
follows: “Is the unilateral declaration of i ndependence by the Provisional Institutions of
Self-Government of Kosovo in accordance with international law?”
The Court then gives a brief summary of the history of the proceedings.
Reasoning of the Court
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.
I. URISDICTION AND DISCRETION (paras. 17-48)
A. Jurisdiction(paras. 18-28)
The Court first addresses the question whether it possesses jurisdiction to give the advisory
opinion requested by the General Assembly on 8 Oc tober 2008. The power of the Court to give an
advisory opinion is based upon Article 65, paragraph 1, of its Statute, which provides that “[it] may
give an advisory opinion on any legal question at the request of whatever body may be authorized
by or in accordance with the Charter of the United Nations to make such a request.” - 2 -
The Court notes that the General Assembly is authorized to request an advisory opinion by
Article96 of the Charter, which provides that “[ t]he General Assembly or the Security Council
may request the International Court of Justice to give an advisory opinion on any legal question.”
It recalls that Article 12, paragraph 1, of the Char ter provides that, “[w]hile the Security Council is
exercising in respect of any dispute or situation th e functions assigned to it in the . . . Charter, the
General Assembly shall not make any recommendati on with regard to that dispute or situation
unless the Security Council so requests.”
The Court observes, however, as it has done on an earlier occasion, that “[a] request for an
advisory opinion is not in itself a ‘recommendation’ by the General Assembly ‘with regard to [a]
dispute or situation’” (Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, Advisory Opinion, I.C.J.Reports2004(I) , p.148, para.25). Accordingly,
the Court points out that while Article12 may limit the scope of the action which the General
Assembly may take subsequent to its receipt of the Court’s opinion, it does not in itself limit the
authorization to request an advi sory opinion which is conferred upon the General Assembly by
Article 96, paragraph 1.
The Court notes that, in the present case, th e question put by the General Assembly asks
whether the declaration of independence to which it refers is “in accordance with international
law”. A question which expressly asks the Court whet her or not a particular action is compatible
with international law certainly appears to be a lega l question. It also observes that, in the present
case, it has not been asked to give an opinion on whether the declaration of independence is in
accordance with any rule of domestic law but only whether it is in accordance with international
law. The Court can respond to that question by re ference to international law without the need to
enquire into any system of domestic law.
The Court recalls that it has repeatedly stat ed that the fact that a question has political
aspects does not suffice to deprive it of its character as a legal question (Application for Review of
Judgement No1 . 58 of the United Nations Admi nistrative Tribunal, Advisory Opinion,
I.C.J. Reports 1973, p. 172, para. 14). The Court adds that, whatever its political aspects, it cannot
refuse to respond to the legal elements of a quest ion which invites it to di scharge an essentially
judicial task, namely, an assessment of an act by reference to international law. The Court has also
made clear that, in determining the jurisdictional issue of whether it is confronted with a legal
question, it is not concerned with the political na ture of the motives which may have inspired the
request or the political implications which its opi nion might have (Conditio ns of Admission of a
State in Membership of the United Nations (Artic le4 of the Charter), Advisory Opinion, 1948,
I.C.J. Reports 1947-1948, p. 61, and Legality of the Threat or Use of Nuclear Weapons, Advisory
Opinion, I.C.J. Reports 1996 (I), p. 234, para. 13).
In light of the foregoing, “[t]he Court therefore considers that it has jurisdiction to give an
advisory opinion in response to the request made by the General Assembly.”
B. Discretion (paras. 29-48)
The Court then notes that “[t]he fact that [i t] has jurisdiction does not mean, however, that it
is obliged to exercise it”;
“The Court has recalled many times in the past that Article 65, paragraph 1, of
its Statute, which provides that ‘The Court may give an advisory opinion...’
(emphasis added), should be interpreted to mean that the Court has a discretionary
power to decline to give an advisory opini on even if the conditions of jurisdiction are
met.” (Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory, Advisory Opinion, I.C.J. Reports 2004 (I), p. 156, para. 44.) - 3 -
The Court observes that the discretion whether or not to respond to a request for an advisory
opinion exists “so as to protect the integrity of the Court’s judicial function and its nature as the
principal judicial organ of the United Nations”.
At this point, the Court gives careful considera tion 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. It notes that the advisory jurisdiction is not a form of judicial recourse for
States but the means by which the General Assemb ly and the Security Council, as well as other
organs of the United Nations and bodies specifically empowered to do so by the General Assembly
in accordance with Article 96, paragraph 2, of th e Charter, may obtain the Court’s opinion in order
to assist them in their activities. The Court’s opin ion is given not to States but to the organ which
has requested it. The Court considers that “pre cisely for that reason, the motives of individual
States which sponsor, or vote in favour of, a re solution requesting an advisory opinion are not
relevant to the Court’s exercise of its discretion whether or not to respond”.
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
performance of its functions. In its Advisory Opin ion on Legality of the Threat or Use of Nuclear
Weapons, the Court rejected an argument that it should refuse to respond to the General
Assembly’s request on the ground that the General Assembly had not explained to the Court the
purposes for which it sought an opinion, stating that
“it is not for the Court itself to purport to decide whether or not an advisory opinion is
needed by the Assembly for the performance of its functions. The General Assembly
has the right to decide for itself on the usefulness of an opinion in the light of its own
needs.” (I.C.J. Reports 1996 (I), p. 237, para. 16.)
Similarly, in the Advisory Opinion on Legal C onsequences of the Construction of a Wall in the
Occupied Palestinian Territory , the Court commented that “[t] he Court cannot substitute its
assessment of the usefulness of the opinion requested for that of the organ that seeks such opinion,
namely, the General Assembly” (I.C.J. Reports 2004 (I), p. 163, para. 62).
Nor does the Court consider that it should refuse to respond to the General Assembly’s
request on the basis of suggestions that its opini on might lead to adverse political consequences.
Just as the Court cannot substitute its own assessment for that of the requesting organ in respect of
whether its opinion will be useful to that organ, it cannot ⎯ in particular where there is no basis on
which to make such an assessment ⎯ substitute its own view as to whether an opinion would be
likely to have an adverse effect.
An important issue which the Court must consider is whether, in view of the respective roles
of the Security Council and the General Assembly in relation to the situation in Kosovo, the Court,
as the principal judicial organ of the United Nati ons, 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 Assembly rather than the Security Council.
The Court observes that the situation in Ko sovo had been the subject of action by the
Security Council, in the exercise of its responsibility for the maintenance of international peace and
security, for more than ten years prior to the present request for an advisory opinion.
It notes that the General Assembly has also a dopted resolutions relating to the situation in
Kosovo. Prior to the adoption by the Security Council of resolution1244(1999), the General
Assembly adopted five resolutions on the situation of human rights in Kosovo. Following
resolution1244(1999), the General Assembly adopted one further resolution on the situation of
human rights in Kosovo. - 4 -
The Court finds that, while the request put to it concerns one aspect of a situation which the
Security Council 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. Articles10 and11 of the Charter
confer upon the General Assembly a very broad pow er to discuss matters within the scope of the
activities of the United Nations, including questions relating to international peace and security.
That power is not limited by the responsibility for the maintenance of international peace and
security which is conferred upon the Security Council by Article 24, paragraph 1. As the Court has
made clear in its Advisory Opinion on Legal C onsequences of the Construction of a Wall in the
Occupied Palestinian Territory , paragraph26, “Article24 refers to a primary, but not necessarily
exclusive, competence”. The fact that the situation in Kosovo is before the Security Council and
the Council has exercised its Chapte r VII powers in respect of that situation does not preclude the
General Assembly from discussing any aspect of th at situation, including the declaration of
independence. The limit which the Charter places upon the General Assembly to protect the role of
the Security Council is contained in Article 12 and restricts the power of the General Assembly to
make recommendations following a discussion, not its power to engage in such a discussion.
The Court further observes that Article 12 does not bar all action by the General Assembly in
respect of threats to international peace and secur ity which are before the Security Council. The
Court considered this question in some detail in paragraphs26 to 27 of its Advisory Opinion on
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory , in which
it noted that there has been an increasing tende ncy over time for the General Assembly and the
Security Council to deal in parallel with th e same matter concerning the maintenance of
international peace and security.
In the present case, the Court has already held that Article 12 of the Charter does not deprive
it of the jurisdiction conferred by Article 96, paragr aph 1. The Court considers that the fact that a
matter falls within the primary responsibility of the Security Council for situations which may
affect the maintenance of international peace and security and that the Council has been exercising
its powers in that respect does not preclude the General Assembly from discussing that situation or,
within the limits set by Article 12, making recommendations with regard thereto.
The Court recalls that the purpose of the adviso ry jurisdiction is to enable organs of the
United Nations and other authorized bodies to obtain opinions from the Court which will assist
them in the future exercise of their functions. The Court cannot determine what steps the General
Assembly may wish to take after receiving the Co urt’s opinion or what effect that opinion may
have in relation to those steps. As has been demonstrated, the General Assembly is entitled to
discuss the declaration of independence and, wi thin the limits considered above, to make
recommendations in respect of that or other aspect s of the situation in Kosovo without trespassing
on the powers of the Security Council. That being the case, the fact that, h itherto, the declaration
of independence has been discussed only in the Security 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 respond to the request from the General Assembly.
The Court also notes that the General Assembly has taken action with regard to the situation
in Kosovo in the past. Between 1995 and 1999, the General Assembly adopted six resolutions
addressing the human rights situation in Kosovo. Since 1999, the General Assembly has each year
approved, in accordance with Article 17, paragra ph 1, of the Charter, the budget of UNMIK. The
Court observes therefore that the General Assembly has exercised functions of its own in the
situation in Kosovo.
The Court notes that the fact that it will necessarily have to interpret and apply the provisions
of Security Council resolution1244(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. While
the interpretation and application of a decision of one of the political organs of the United Nations - 5 -
is, in the first place, the responsibility of the organ which took that decision, the Court, as the
principal judicial organ of the United Nations, h as also frequently been required to consider the
interpretation and legal effects of such decisions. The Court therefore finds that there is nothing
incompatible with the integrity of its judicial f unction in undertaking such a task. In its view the
question is, rather, whether it should decline to r espond 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 resolution1244 and the organ which is, in the first place, responsible for
interpreting and applying it. The Court observes th at “[w]here, as here, the General Assembly has
a legitimate interest 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 conclud es from the foregoing that “there are no compelling
reasons for it to decline to exercise its jurisdiction in respect of the . . . request” before it.
II. SCOPE AND MEANING OF THE QUESTION (paras. 49-56)
In this part of its Advisory Opinion, th e Court examines the scope and meaning of the
question on which the General Assembly has requested that it give its opinion. The Court recalls
that in some previous cases “it has departed fro m the language of the question put to it where the
question was not adequately formulated” (see for ex ample, in Interpretation of the Greco-Turkish
Agreement of 1December1926 (Final Protocol, Ar ticleIV), Advisory Opinion, 1928, P.C.I.J.,
Series B, No. 16) or where the Court determined, on the basis of its examination of the background
to the request, that the request did not reflect the “legal questions really in issue” (Interpretation of
the Agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion,
I.C.J. Reports 1980, p. 89, para. 35). Similarly, where the question asked was unclear or vague, the
Court has clarified the question before giving its opinion (Application for Review of Judgement
No.273 of the United Nations Administrative Tri bunal, Advisory Opinion, I.C.J.Reports1982 ,
p. 348, para. 46).
The Court observes that the question posed by the General Assembly is clearly formulated.
The question is narrow and specific; it asks fo r the Court’s opinion on whether or not the
declaration of independence is in accordance with international law. It notes that the question does
not ask about the legal consequences of that declar ation. In particular, it does not ask whether or
not Kosovo has achieved statehood. Nor does it ask about the validity or legal effects of the
recognition of Kosovo by those States which have recognized it as an independent State. The
Court accordingly sees no reason to reformulate the scope of the question.
It considers however that there are two aspects of the question which require comment.
First, the question refers to “the unilateral declaration of independence by the Provisional
Institutions of Self-Government of Kosovo” (General Assembly resolution 63/3 of 8 October 2008,
single operative paragraph; emphasis added). In addition, the third preambular paragraph of the
General Assembly resolution “[r]ecall[s] that on 17February2008 the Provisional Institutions of
Self-Government of Kosovo declared independenc e from Serbia”. Whether it was indeed the
Provisional Institutions of Self-Government of Kosovo which promulgated the declaration of
independence was contested by a number of those participating in the present proceedings. The
identity of the authors of the declaration of inde pendence, as is demonstrated below, is a matter
which is capable of affecting the answer to the question whether that declaration was in accordance
with international law. It would be incompatible with the proper exercise of the judicial function
for the Court to treat that matter as having been determined by the General Assembly.
Nor does the Court consider that the Genera l Assembly intended to restrict the Court’s
freedom to determine this issue for itself. Th e Court notes that the agenda item under which what
became resolution 63/3 was discussed did not refer to the identity of the auth ors of the declaration
and was entitled simply “Request for an advisory opinion of the International Court of Justice on
whether the declaration of independence of Kosovo is in accordance with international law” - 6 -
(General Assembly resolution63/3 of 8October 2008; emphasis added). The wording of this
agenda item had been proposed by the Republic of Serbia, the sole sponsor of resolution63/3,
when it requested the inclusion of a supplementar y item on the agenda of the Sixty-Third Session
of the General Assembly. The common element in the agenda item and the title of the resolution
itself is whether the declaration of independen ce is in accordance with international law.
Moreover, there was no discussion of the identity of the authors of the declaration, or of the
difference in wording between the title of the r esolution and the question which it posed to the
Court during the debate on the draft resolution (A/63/PV.22).
As the Court has stated in a different context:
“It is not to be assumed that the General Assembly would... seek to fetter or
hamper the Court in the discharge of its judicial functions; the Court must have full
liberty to consider all relevant data available to it in forming an opinion on a question
posed to it for an advisory opinion.” (Certain Expenses of the United Nations
(Article17, paragraph2, of the Charte r), Advisory Opinion, I.C.J.Reports1962 ,
p. 157.)
The Court finds that this consideration is applicable in the present case. In assessing whether
or not the declaration of independence is in accord ance with international law, the Court must be
free to examine the entire record and decide for it self whether that declaration was promulgated by
the Provisional Institutions of Self-Government or some other entity.
The Court then notes, in paragraph 56 of the Opinion, that the General Assembly has asked it
whether the declaration of independence was “in accordance with” international law and that the
answer to that question turns on whether or not the applicable international law prohibited the
declaration of independence. If the Court conclud es that it did, then it must answer the question
put by saying that the declaration of independence was not in accordance with international law. It
follows that the task which the Court is called upon to perform is to determine whether or not the
declaration of independence was adopted in violation of international law. The Court observes 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 declare its independence or, a fortiori , on
whether international law generally confers an entitlement on entities situated within a State
unilaterally to break away from it. Indeed, it is entirely possible for a particular act ⎯ such as a
unilateral declaration of independence ⎯ not to be in violation of international law without
necessarily constituting the exercise of a right conf erred by it. The Court notes that it has been
“asked for an opinion on the first point, not the second.”
III. FACTUAL BACKGROUND (paras. 57-77)
The Court continues its reasoning by indicating that “[t]he 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 developments 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. - 7 -
IV. T HE QUESTION WHETHER THE DECLARATION OF INDEPENDENCE IS IN ACCORDANCE WITH
INTERNATIONAL LAW (paras. 78-121)
In this part of its Advisory Opinion, the Court turns to the substance of the request submitted
by the General Assembly. It recalls that it has been asked by the latter to assess the accordance of
the declaration of independence of 17 February 2008 with “international law”.
A. General international law (paras. 79-84)
The Court first notes that during the eighteenth , nineteenth and early twentieth centuries,
there were numerous instances of declarations of independence, often strenuously opposed by the
State from which independence was being declared . Sometimes a declaration resulted in the
creation of a new State, at others it did not. In no case, however, does the practice of States as a
whole suggest that the act of promulgating the declaration was regarded as contrary to international
law. On the contrary, State practice during this period points clearly to the conclusion that
international law contained no prohibition of declarations of independence. During the second half
of the twentieth century, the international law of self-determination developed 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 exploitation. A great many new States have come into
existence as a result of the exercise of this right. There were, however, also instances of
declarations of independence outside this contex t. The practice of States in these latter cases does
not point to the emergence in international law of a new rule prohibiting the making of a
declaration of independence in such cases.
The Court then recalls that the principle of territorial integrity 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, which provides that:
‘All Members shall refrain in their intern ational 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.’”
In General Assembly resolution2625( XXV), entitled “Declaration on Principles of
International Law concerning Friendly Relati ons and Co-operation among States in Accordance
with the Charter of the United Nations”, which reflects customary international law (Military and
Paramilitary Activities in and against Nicaragua (N icaraguav. 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 integrity or political independence of any State”. This resolution then
enumerated various obligations incumbent upon St ates to refrain from violating the territorial
integrity of other sovereign States. In the same vein, the Final Act of the Helsinki Conference on
Security and Co-operation in Europe of 1August 1975 (the Helsinki Conference) stipulated that
“[t]he participating States will respect the territori al integrity of each of the participating States”
(Art. IV). Thus, the Court notes, “the scope of the principle of territorial integrity is confined to the
sphere of relations between States”.
The Court observes, however, that while th e Security Council has condemned particular
declarations of independence, in all of those instances it was making a determination as regards the
concrete situation existing at the time that those declarations of independence were made; it states
that “the illegality attached to the declarati ons of independence thus stemmed not from the
unilateral 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
international law, in particular those of a peremptory character (jus cogens) ”. The Court notes that
“[i]n the context of Kosovo, the Security Counc il has never taken this position”. The exceptional
character of the resolutions enumerated above a ppears to the Court to confirm that no general - 8 -
prohibition against unilateral declarations of independence may be inferred from the practice of the
Security Council.
The Court considers that it is not necessary, in the present case, to resolve the question
whether, outside the context of non-self-govern ing territories and peoples subject to alien
subjugation, domination and exploitation, the inte rnational law of self-determination confers upon
part of the population of an existing State a right to separate from that State, or whether
international law provides for a right of “remedial se cession” and, if so, in what circumstances. It
recalls that the General Assembly has requested the Court’s opinion only on whether or not the
declaration of independence is in accordance with international law. The Court notes that debates
regarding the extent of the right of self-determina tion and the existence of any right of “remedial
secession”, however, concern the right to separate from a State. That issue is beyond the scope of
the question posed by the General Assembly. To answer that question, the Court need only
determine whether the declaration of independence vi olated either general international law or the
lex specialis created by Security Council resolution 1244 (1999).
For the reasons already given, the Court consid ers that general international law contains no
applicable prohibition of declarations of inde pendence. Accordingly, it concludes that the
declaration of independence of 17 February 2008 did not violate general international law.
B. Security Council resolution1244(1999) and the UNMIK Constitutional Framework
created thereunder (paras. 85-121)
The Court then examines the legal relevance of Security Council resolution 1244, adopted on
10June1999. It notes that within the legal frame work of the United Nations Charter, notably on
the basis of Articles24, 25 and ChapterVII ther eof, the Security Council may adopt resolutions
imposing obligations under interna tional law. It recalls that resolution 1244 (1999) 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 observes that UNMIK regulations, including regulation 2001/9, which
promulgated the Constitutional Framework, are adopted by the Special Representative of the
Secretary-General on the basis of the authority derived from Security Council
resolution1244(1999) and thus ultimately from th e United Nations Charter. It adds that the
Constitutional Framework “derives its bindi ng force from the binding character of
resolution1244(1999) and thus from internationa l law” and that, in that sense, “it therefore
possesses an international legal character”.
At the same time, the Court observes that th e Constitutional Framework functions as part of
a specific legal order, created pursuant to reso lution1244(1999), which is applicable only in
Kosovo and the purpose of which is to regul ate, during the interim phase established by
resolution1244(1999), matters which would ordinar ily be the subject of internal, rather than
international, law. Regulation 2001/9 opens with the statement that the Constitutional Framework
was promulgated
“[f]or the purposes of developing meaningful self-government in Kosovo pending a
final settlement, and establishing provisional institutions of self-government in the
legislative, executive and judicial fields through the participation of the people of
Kosovo in free and fair elections”.
The Constitutional Framework therefore took eff ect 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 Framework to take decisions which took effect within that body
of law. In particular, the Assembly of Kos ovo was empowered to adopt legislation which would - 9 -
have the force of law within that legal order, subject always to the overriding authority of the
Special Representative of the Secretary-General.
The Court notes that both Security Council resolution 1244 (1999) and the Constitutional
Framework entrust the Special Representative of the Secretary-General with considerable
supervisory powers with regard to the Provisional Institutions of Self-Government.
It observes that Security Council resoluti on1244(1999) and the C onstitutional Framework
were still in force and applicable as at 17Febr uary2008. Paragraph19 of Security Council
resolution1244(1999) expressly provides that “the international civil and security presences are
established for an initial period of 12months, to continue thereafter unless the Security Council
decides otherwise”. No decision amending reso lution1244(1999) was taken by the Security
Council at its meeting held on 18February200 8, when the declaration of independence was
discussed for the first time, or at any subsequent meeting. Neither Security Council
resolution1244(1999) nor the Constitutional Fr amework contains a clause providing for its
termination and neither has been repealed; th ey therefore constituted the international law
applicable to the situation prevailing in Kosovo on 17 February 2008. The Court further notes that
the Special Representative of the Secretary-Genera l continues to exercise his functions in Kosovo
and, moreover, that the Secretary-General has con tinued to submit periodic reports to the Security
Council, as required by paragraph 20 of Security Council resolution 1244 (1999).
From the foregoing, the Court concludes that Security Council resolution1244(1999) and
the Constitutional Framework form part of the inte rnational law which is to be considered in
replying to the question posed by the General Assembly in its request for the advisory opinion.
1. Interpretation of Security Council resolution 1244 (1999) (paras. 94-100)
Before continuing further, the Court recalls sev eral factors relevant in the interpretation of
resolutions of the Security Council. It obser ves that while the rules on treaty interpretation
embodied in Articles31 and32 of the Vienna Convention on the Law of Treaties may provide
guidance, differences between Security Council resolutions and treaties mean that the interpretation
of Security Council resolutions also require that other factors be taken into account. The Court
notes that Security Council resolutions are issued by a single, collective body and are drafted
through a very different process than that used fo r the conclusion of a treaty; they are the product
of a voting process as provided for in Article27 of the Charter, and the final text of such
resolutions represents the view of the Security Council as a body. Moreover, Security Council
resolutions can be binding on all Member States (L egal Consequences for States of the Continued
Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council
Resolution276(1970), Advisory Opinion, I.C.J. Reports 1971 , p.54, para.116), irrespective of
whether they played any part in their formul ation. The interpretation of Security Council
resolutions may require the Court to analyse st atements by representatives of members of the
Security Council made at the time of their adopti on, other resolutions of the Security Council on
the same issue, as well as the subsequent practice of relevant United Nations organs and of States
affected by those given resolutions.
The Court first observes that resolution1244(1999) must be read in conjunction with the
general principles set out in annexes1 and 2 theret o, since in the resolution itself, the Security
Council: “1.Decide[d] that a political solution to the Kosovo crisis shall be based on the general
principles in annex1 and as further elaborated in the principles and other required elements in
annex 2.” Those general principles sought to defu se the Kosovo crisis first by ensuring an end to
the violence and repression in Kosovo and by the establishment of an interim administration. A
longer-term solution was also envisaged, in that resolution 1244 (1999) was to initiate - 10 -
“[a] political process towards the establishm ent of an interim political framework
agreement providing for a substantial self-government for Kosovo, taking full account
of the Rambouillet accords and the principles of sovereignty and territorial integrity of
the Federal Republic of Yugoslavia and th e other countries of the region, and the
demilitarization of the KLA” (Security Council resolution1244(1999) of
10 June 1999, Ann. 1, sixth principle; ibid., Ann. 2, para. 8).
Further, it bears recalling that the tenth pream bular paragraph of resolution 1244 (1999) also
recalled the sovereignty and the territorial integrity of the Federal Republic of Yugoslavia.
Having earlier outlined the principal characteristics of Security Council
resolution1244(1999), the Court next observes that three distinct features of that resolution are
relevant for discerning its object and purpose.
First, resolution1244(1999) establishes an international civil and security presence in
Kosovo with full civil and political authority and so le responsibility for the governance of Kosovo.
On 12June1999, the Secretary-General presente d to the Security Council his preliminary
operational concept for the overall organization of the civil presence under UNMIK. On
25July1999, the Special Representative of the Secretary-General promulgated UNMIK
regulation1999/1, deemed to have entered into fo rce as of 10June1999, the date of adoption of
Security Council resolution1244(1999). Under this regulation, “[a]ll legislative and executive
authority with respect to Kosovo, including the ad ministration of the judiciary”, was vested in
UNMIK and exercised by the Special Representati ve. Viewed together, resolution1244(1999)
and UNMIK regulation1999/1 therefore had the effect of superseding the legal order in force at
that time in the territory of Kosovo and setting up an international territorial administration. For
this reason, the establishment of civil and securi ty presences in Kosovo deployed on the basis of
resolution 1244 (1999) must be understood as an exceptional measure relating to civil, political and
security aspects and aimed at addressing the crisis existing in that territory in 1999.
Secondly, the solution embodied in resolution1244(1999), namely, the implementation of
an interim international territorial administra tion, was designed for humanitarian purposes: to
provide a means for the stabilization of Kosovo and for the re-establishment of a basic public order
in an area beset by crisis. This becomes apparent in the text of resolution 1244 (1999) itself which,
in its second preambular paragraph, recalls Security Council resolution1239, adopted on
14May1999, in which the Security Council had expressed “grave concern at the humanitarian
crisis in and around Kosovo”. The prioriti es which are identified in paragraph11 of
resolution1244(1999) were elaborated further in the so-called “four pillars” relating to the
governance of Kosovo described in the Report of the Secretary-General of 12June1999. By
placing an emphasis on these “four pillars”, namely, interim civil administration, humanitarian
affairs, institution building and reconstruction, and by assigning responsibility for these core
components to different international organiza tions and agencies, resolution1244(1999) was
clearly intended to bring about stabilization and reconstruction. The interim administration in
Kosovo was designed to suspend temporarily Serbia ’s exercise of its authority flowing from its
continuing sovereignty over the territory of Kosovo. The purpose of the legal régime established
under resolution1244(1999) was to establish, organize and oversee the development of local
institutions of self-government in Kosovo under the aegis of the interim international presence.
Thirdly, resolution1244(1999) clearly establishes an interim régime; it cannot be
understood as putting in place a permanent institutional framework in the territory of Kosovo. This
resolution mandated UNMIK merely to facilitate the desired negotiated solution for Kosovo’s
future status, without prejudging the outcome of the negotiating process.
The Court thus concludes that the object and purpose of resolution1244(1999) was to
establish a temporary, exceptional legal régime which, save to the extent that it expressly preserved - 11 -
it, superseded the Serbian legal order and which ai med at the stabilization of Kosovo. The Court
notes that it was designed to do so on an interim basis.
2. The question whether the declaration of independence is in accordance with
Security Council resolution1244(1999) and the measures adopted thereunder
(paras. 101-121)
The Court then addresses the question whether Security Council resolution1244(1999), or
the measures adopted thereunder, introduces a specific prohibition on issuing a declaration of
independence, applicable to those who a dopted the declaration of independence of
17 February 2008. In order to answer this questi on, it is first necessary for the Court to determine
precisely who issued that declaration.
(a)The identity of the authors of the declaration of independence
(paras. 102-109)
The Court turns to the question whethe r the declaration of independence of
17February2008 was an act of the “Assembly of Kosovo”, one of the Provisional Institutions of
Self-Government, established under Chapter9 of the Constitutional Framework, or whether those
who adopted the declaration were acting in a di fferent capacity. It notes that, when opening the
meeting of 17 February 2008 at which the declar ation of independence was adopted, the President
of the Assembly and the Prime Minister of Kosovo made reference to the Assembly of Kosovo and
the Constitutional Framework. The Court considers, however, that the declaration of independence
must be seen in its larger context, taking into account the events preceding its adoption, notably
relating to the so-called “final status process”. Security Council resolution 1244 (1999) was mostly
concerned with setting up an inte rim framework of self-government for Kosovo. Although, at the
time of the adoption of the resolution, it was expect ed that the final status of Kosovo would flow
from, and be developed within, the framework set up by the resolution, the specific contours, let
alone the outcome, of the final status process were left open by Security Council
resolution1244(1999). Accordingly, its para graph11, especially in its subparagraphs(d) , (e)
and (f), deals with final status issues only in so far as it is made part of UNMIK’s responsibilities to
“[f]acilitat[e] a political process designed to determin e Kosovo’s future status, taking into account
the Rambouillet accords” and “[i]n a final stage, [to oversee] the transfer of authority from
Kosovo’s provisional institutions to institutions established under a political settlement”.
The Court observes that the declaration of independence reflects the awareness of its authors
that the final status negotiations had failed and th at a critical moment for th e future of Kosovo had
been reached. The Preamble of the declaration re fers to the “years of internationally-sponsored
negotiations between Belgrade a nd Pristina over the question of our future political status” and
expressly puts the declaration in the context of the failure of the final status negotiations, inasmuch
as it states that “no mutually-acceptable status outcome was possible” (tenth and eleventh
preambular paragraphs). Proceeding from there, the authors of the declaration of independence
emphasize their determination to “resolve” the status of Kosovo and to give the people of Kosovo
“clarity about their future” (thirteenth preambular paragraph). This language indicates that the
authors of the declaration did not seek to act within the standard framework of interim
self-administration of Kosovo, but aimed at esta blishing Kosovo “as an independent and sovereign
state” (para.1). The declaration of independe nce, therefore, was not intended by those who
adopted it to take effect within the legal order created for the interim phase, nor was it capable of
doing so. On the contrary, the Court considers that the authors of that declaration did not act, or
intend to act, in the capacity of an institution creat ed by and empowered to act within that legal
order but, rather, set out to adopt a measure the significance and effects of which would lie outside
that order. - 12 -
The Court observes that this conclusion is rein forced by the fact that the authors of the
declaration undertook to fulfil the international obl igations of Kosovo, notably those created for
Kosovo by UNMIK (declaration of independence, para.9), and expressly and solemnly declared
Kosovo to be bound vis-à-vis third States by the commitments made in the declaration (ibid .,
para.12). By contrast, under the régime of th e Constitutional Framework, all matters relating to
the management of the external relations of Ko sovo were the exclusive pr erogative of the Special
Representative of the Secretary-General.
The Court asserts that certain features of the te xt of the declaration and the circumstances of
its adoption also point to the same conclusion. Nowhere in the original Albanian text of the
declaration (which is the sole authentic text) is any reference made to the declaration being the
work of the Assembly of Kosovo. The words “Assembly of Kosovo” appear at the head of the
declaration only in the English and French translations contained in the dossier submitted on behalf
of the Secretary-General. The language used in the declaration differs from that employed in acts
of the Assembly of Kosovo in that the firs t paragraph commences with the phrase “We, the
democratically-elected leaders of our people . . .”, whereas acts of the Assembly of Kosovo employ
the third person singular.
Moreover, the procedure employed in relation to the declaration differed from that employed
by the Assembly of Kosovo for the adoption of legislation. In particular, the declaration was
signed by all those present when it was adopted, including the President of Kosovo, who was not a
member of the Assembly of Kosovo. In fact , the self-reference of the persons adopting the
declaration of independence as “the democratically-elected leaders of our people” immediately
precedes the actual declaration of independence within the text (“hereby declare Kosovo to be an
independent and sovereign state”; para.1). It is also noticeable that the declaration was not
forwarded to the Special Representative of the S ecretary-General for publication in the Official
Gazette.
The Court notes that the reaction of the Speci al Representative of the Secretary-General to
the declaration of independence is also of some significance. The Constitutional Framework gave
the Special Representative power to oversee and, in certain circumstances, annul the acts of the
Provisional Institutions of Self-Government.
The silence of the Special Representative of the Secretary-General in the face of the
declaration of independence of 17February2008 suggests that he did not consider that the
declaration was an act of the Provisional Instituti ons of Self-Government designed to take effect
within the legal order for the supervision of whic h he was responsible. As the practice shows, he
would have been under a duty to take action with regard to acts of the Assembly of Kosovo which
he considered to be ultra vires.
The Court accepts that the Report of the Secretary-General on the United Nations Interim
Administration Mission in Kosovo, submitted to the Security Council on 28March2008, stated
that “the Assembly of Kosovo held a sessi on during which it adopted a ‘declaration of
independence’, declaring Kosovo an independ ent and sovereign State” (United Nations
doc. S/2008/211, para. 3). This was the norma l periodic report on UNMIK activities, the purpose
of which was to inform the Security Council about developments in Kosovo; it was not intended as
a legal analysis of the declaration or the capacity in which those who adopted it had acted.
The Court thus arrives at the conclusion that, taking all factors together, the authors of the
declaration of independence of 17 February 2008 di d 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. - 13 -
(b) The question whether the authors of the declaration of independence acted
in violation of Security Council resolution1244(1999) or the measures
adopted thereunder (paras. 110-121)
First, the Court observes that Security Council resolution 1244 (1999) was essentially
designed to create an interim régime for Kosovo, with a view to channelling the long-term political
process to establish its final status. The resoluti on did not contain any provision dealing with the
final status of Kosovo or with the conditions for its achievement.
In this regard the Court notes that contempor aneous 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 resolution.
By contrast, under the terms of resolution1244 (1999) the Security Council did not reserve
for itself the final determination of the situati on in Kosovo and remained silent on the conditions
for the final status of Kosovo.
Resolution1244(1999) thus does not preclude the issuance of the declaration of
independence of 17 February 2008 because the two instruments operate on a different level: unlike
resolution 1244 (1999), the declaration of independence is an attempt to determine finally the status
of Kosovo.
Secondly, turning to the question of the addressees of Security Council
resolution 1244 (1999), as described above, it sets out a general framework for the “deployment in
Kosovo, under United Nations auspices, of interna tional civil and security presences” (para. 5). It
is mostly concerned with creating obligations and authorizations for United Nations Member States
as well as for organs of the United Nations such as the Secretary-General and his Special
Representative (see notably paras3 ., 5, 6, 7, 9, 10 and 11 of Security Council
resolutio1244(1999)). There is no indication, in the text of Security Council
resolution1244(1999), that the Security Counc il intended to impose, beyond that, a specific
obligation to act or a prohibition from acting, addressed to such other actors.
The Court recalls in this regard that it h as not been uncommon for the Security Council to
make demands on actors other than United Na tions Member States and intergovernmental
organizations. More specifically, a number of S ecurity Council resolutions adopted on the subject
of Kosovo prior to Security Council resolu tion1244(1999) contained demands addressed
eo nomine to the Kosovo Albanian leadership.
The Court points out that such reference to th e Kosovo Albanian leadership or other actors,
notwithstanding the somewhat general reference to “all concerned” (para. 14), is missing from the
text of Security Council resolution1244(1999). When interpreting Security Council resolutions,
the Court must establish, on a case-by-case basis, considering all relevant circumstances, for whom
the Security Council intended to create binding legal obligations. The language used by the
resolution may serve as an important indicator in this regard. The approach taken by the Court
with regard to the binding effect of Security Co uncil resolutions in general is, mutatis mutandis ,
also relevant here. In this context, the Court recalls its previous statement that:
“The language of a resolution of th e Security Council should be carefully
analysed before a conclusion can be made as to its binding effect. In view of the
nature of the powers under Article25, the qu estion whether they have been in fact
exercised is to be determined in each case, having regard to the terms of the resolution
to be interpreted, the discussions leading to it, the Charter provisions invoked and, in
general, all circumstances that might assist in determining the legal consequences of
the resolution of the Security Council.” (Legal Consequences for States of the
Continued Presence of South Africa in Namibia (South West Africa) notwithstanding - 14 -
Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971 , p. 53,
para. 114.)
Bearing this in mind, the Court cannot accept the argument that Security Council
resolution1244(1999) contains a prohibition, bi nding on the authors of the declaration of
independence, against declaring independence; nor can such a prohibition be derived from the
language of the resolution understood in its contex t and considering its object and purpose. The
language of Security Council resolution1244(1999 ) is at best ambiguous in this regard. The
object and purpose of the resolution, as has been e xplained in detail, is the establishment of an
interim administration for Kosovo, without making any definitive determination on final status
issues. The text of the resolution explains that the
“main responsibilities of the international ci vil presence will include . . . [o]rganizing
and overseeing the development of provisional institutions for democratic and
autonomous self-government pending a political settlement ” (para. 11 (c) of the
resolution; emphasis added).
The phrase “political settlement”, often cited in the proceedings before the Court, does not modify
this conclusion. First, that reference is made within the context of enumerating the responsibilities
of the international civil presence, i.e., the Speci al Representative of the Secretary-General in
Kosovo and UNMIK, and not of other actors. Secondly, as the diverging views presented to the
Court on this matter illustrate, the term “political set tlement” is subject to various interpretations.
The Court therefore concludes that this part of Security Council resolution1244 (1999) cannot be
construed to include a prohibition, addressed in pa rticular to the authors of the declaration of
17 February 2008, against declaring independence.
The Court accordingly finds that Security Council resolution1244(1999) did not bar the
authors of the declaration of 17 February 2008 from issuing a declaration of independence from the
Republic of Serbia. Hence, the declaration of independence did not violate Security Council
resolution 1244 (1999).
Turning to the question whether the declaration of independence of 17February2008 has
violated the Constitutional Framework established under the auspices of UNMIK, the Court notes
that it has already held that the declaration of independence of 17 February 2008 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. It
follows 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. Accordingly, the Court finds that the declaration of independence did not
violate the Constitutional Framework.
V. G ENERAL CONCLUSION (para. 122)
The Court recalls its conclusions reached earlier, namely, “that the adoption of the
declaration of independence of 17 February 2008 did not violate general international law, Security
Council resolution1244(1999) or the Constitutiona l Framework”. Finally, it concludes that
“[c]onsequently the adoption of that declaration did not violate any applicable rule of international
law.”
* - 15 -
The full text of the final paragraph (para. 123) reads as follows:
For these reasons,
T HE C OURT ,
U(na)nimously,
Finds that it has jurisdiction to give the advisory opinion requested;
(2) By nine votes to five,
Decides to comply with the request for an advisory opinion;
IN FAVOUR : President Owada; Judges Al-Khasawneh, Buergenthal, Simma, Abraham,
Sepúlveda-Amor, Cançado Trindade, Yusuf, Greenwood;
AGAINST : Vice-President Tomka; JudgesKoroma, Keith, Bennouna, Skotnikov;
(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.
IN FAVOUR : President Owada; Judges Al-Khasawneh, Buergenthal, Simma, Abraham,
Keith, Sepúlveda-Amor, Cançado Trindade, Yusuf, Greenwood;
AGAINST : Vice-President Tomka; JudgesKoroma, Bennouna, Skotnikov.
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; JudgesKeith and Sepúlveda-Amor
append separate opinions to the Advisory Opinion of the Court; JudgesBennouna and Skotnikov
append dissenting opinions to the Advisory Opinion of the Court; JudgesCançado Trindade and
Yusuf append separate opinions to the Advisory Opinion of the Court.
___________ Annex to Summary 2010/2
Declaration of Vice-President Tomka
The Vice-President considers that the majo rity has conducted an “adjustment” of the
question posed by the General Assembly, an adjust ment which he cannot in his judicial conscience
follow. The Vice-President considers that the Court should have exercised its discretion and
declined answering the request in order to protect the integrity of its judicial function and its nature
as a judicial organ.
The Vice-President first considers that the S ecurity Council is the body empowered to make
a determination whether an act adopted by the institutions of Kosovo, which has been put under a
régime of international territorial administration, is or is not in conformity with the legal
framework applicable to and governing that régi me. However, the Security Council has made no
such determination and its silence cannot be in terpreted as implying the tacit approval of, or
acquiescence with, the declaration of independence adopted on 17 February 2008. Yet, the General
Assembly is the body which has addressed the reque st to the Court. The Vice-President considers
that Article12, paragraph1, of the Charter prevents the General Assembly from making any
recommendation with regard to the status of Kos ovo, as he fails to see any “sufficient interest” for
the Assembly in requesting the opinion from the C ourt. He considers that the majority’s answer
given to the question put by the General Assembly prejudices the determination, still to be made by
the SecurityCouncil, on the conformity velnon of the declaration with resolution1244 and the
international régime of territorial administration established thereunder.
As regards the question itself, the Vice-Pr esident considers it clearly formulated and
sufficiently narrow and specific so as not to warrant any adjustment. He explains that he considers
the Court’s conclusion, that the authors of the declaration of independence did not act as one of the
Provisional Institutions of Self-Government, as lack ing a sound basis in the facts relating to the
adoption of the declaration. After enumerating a series of facts and declarations by various
relevant parties in relation to the declaration of 17February2008, the Vice-President concludes
that the Assembly of Kosovo, consisting of its members, the President of Kosovo and its
Government, headed by the PrimeMinister, c onstituted, on 17February2008, the Provisional
Institutions of Self-Government of Kosovo, and they together issued the declaration. Thus,
according to him, the question was correctly formulated in the request of the General Assembly and
there was no reason to “adjust” it and subsequently to modify the title itself of the case.
As regards the applicable legal framework, th e Vice-President first recalls that Security
Council resolution 1244 did not displace the Federal Republic of Yugoslavia’s title to the territory
in question; and he states that, by establishi ng an international territorial administration over
Kosovo, which remained legally part of the FR Y, the United Nations assumed its responsibility for
this territory. Reiterating the primary responsibilities falling upon the United Nations in the interim
administration of Kosovo under resolution 1244 (1999) , he considers that the Security Council has
not abdicated on its overall responsibility for the s ituation in Kosovo, and that it has remained
actively seised of the matter.
The Vice-President affirms that the notion of a “final settlement” cannot mean anything else
than the resolution of the dispute between the part ies concerned, either by an agreement reached
between them or by a decision of an organ havi ng competence to do so. He denies that the notion
of a settlement may be reconciled with the unilateral step-taking by one of the parties aiming at the
resolution of the dispute against the will of th e other. Turning then to the negotiations on
determining Kosovo’s future stat us, which led to no agreement, he questions whether the parties
negotiated in good faith because, as the Court observed in several earlier cases, negotiating in good
faith means that the parties are under an obligation to enter into negotiations with a view to arriving
at an agreement, and not merely to go through a formal process of negotiation; and that they are
under an obligation so to conduct themselves that the negotiations are meaningful, which will not - 2 -
be the case when either of them insists upon its own position without contemplating any
modification of it. Observing that the proposal for supervised independence by Special Envoy
MarttiAhtisaari was not endorsed by the Security Council, to his mind the only United Nations
organ competent to do so, he considers that th e Kosovo Declaration of Independence has been a
way to put, to the extent possible, into practice the unendorsed Ahtisaari plan.
Finally, the Vice-President recalls that on pr evious occasions in 2002, 2003 and 2005, the
Special Representative of the Secretary-General, en trusted by the UnitedNations with the interim
administration of Kosovo, has not hesitated, in the exercise of that supervisory role, to declare null
and void a measure of one of the Provisional Institu tions which he considered to be beyond that
Institution’s powers (ultra vires). He considers that the Adviso ry Opinion provides no explanation
why acts which were considered as going beyond th e competencies of the Provisional Institutions
in the period2002-2005, would not have such char acter any more in 2008, despite the fact that
provisions of the Constitutional Framework on the competencies of these institutions have not been
amended and remained the same in February 2008 as they were in 2005.
The Vice-President concludes with the observa tion that the Court, as the principal judicial
organ of the United Nations, is supposed to upho ld the respect for the rules and mechanisms
contained in the Charter and the decisions adopted thereunder. In his view, the majority has given
preference to recent political developments and current realities in Kosovo, rather than to the strict
requirement of respect for such rules, thus trespassing the limits of judicial restraint.
Dissenting opinion of Judge Koroma
In his dissenting opinion, JudgeKoroma concl udes that he cannot concur in the finding of
the Court that the “declaration of independence of Kosovo adopted on 17February2008 did not
violate international law”.
In the view of Judge Koroma, the Court, in ex ercising its advisory jurisdiction, is entitled to
reformulate or interpret a question put to it, but is not free to replace the question asked of it with
its own question and then proceed to answer that question, which is what the Court has done in this
case. JudgeKoroma explains that the Court, as well as its predecessor, the Permanent Court of
International Justice, has previously reformulated the question put in a request for an advisory
opinion in an effort to make that question more closely correspond to the intent of the institution
requesting the advisory opinion, but has never refo rmulated a question to such an extent that a
completely new question results, one clearly distinct from the original question posed.
JudgeKoroma concludes that this is what the Court has done in this case by, without explicitly
reformulating the question, concluding that the authors of the declaration of independence were
distinct from the Provisional Institutions of Self-G overnment of Kosovo and that the answer to the
question should therefore be developed on this presumption.
Turning to the Court’s answer to the question, Judge Koroma begins by emphasizing that the
Court’s conclusion that the declaration of inde pendence of 17 February 2008 was made by a body
other than the Provisional Institutions of Self-G overnment of Kosovo and thus did not violate
international law is legally untenable, because it is based on the Court’s perceived intent of those
authors. JudgeKoroma stresses that positive international law does not recognize or enshrine the
right of ethnic, linguistic or religious groups to break away from the State of which they form part
without its consent merely by expressing their wi sh to do so, especially in the present case where
Security Council resolution 1244 (1999) is applicab le. He cautions that to accept otherwise and to
allow any ethnic, linguistic or religious group to declare independence and break away from the
State of which it forms part without the existin g State’s consent, and outside the context of
decolonization, would create a very dangerous precedent, amounting to nothing less than
announcing to any and all dissident groups around the world that they are free to circumvent
international law simply by acting in a certain way and crafting a unilateral declaration of - 3 -
independence in certain terms. In the view of Judge Koroma, rather than reaching a conclusion on
the identity of the authors of the unilateral decl aration of independence based on their subjective
intent, the Court should have looked to the intent of States and, in particular in this case, the intent
of the Security Council in resolution 1244 (1999).
Judge Koroma establishes that Security C ouncil resolution1244 (1999) constitutes the legal
basis for the creation of the Provisional Institutions of Self-Government of Kosovo, and therefore
the Court has first and foremost to apply resolution 1244 (1999), as the lex specialis , to the matter
before it. Applying resolution1244(1999), Judge Koroma concludes that the declaration of
independence contravenes that resolution for several reasons. First, that resolution calls for a
negotiated settlement, meaning the agreement of all the parties concerned with regard to the final
status of Kosovo, which the authors of the d eclaration of independence have circumvented.
Secondly, the declaration of independence violat es the provision of that resolution calling for a
political solution based on respect for the territorial integrity of the Federal Republic of Yugoslavia
and the autonomy of Kosovo. Additionally, the unilateral declaration of independence is an
attempt to bring to an end the international pr esence in Kosovo established by Security Council
resolution 1244 (1999), a result which could only be e ffected by the Security Council itself. In this
analysis, JudgeKoroma draws on the text of resolution1244(1999) ⎯ in particular its preamble
and operative paragraphs 1, 2, 10 and 11 ⎯ as well as other instruments it references, including its
Annexes1 and 2, the Helsinki Final Act and the Rambouillet accords. He also reviews the
positions taken by various States with regard to resolution 1244 (1999).
Judge Koroma notes that the unilateral declara tion of independence has also violated certain
derivative law promulgated pursuant to reso lution 1244 (1999), notably the Constitutional
Framework and other UNMIK regulations. He observes that the majority opinion avoids this result
by a kind of judicial sleight-of-hand, reaching a h asty conclusion that the authors of the unilateral
declaration of independence were not acting as th e Provisional Institutions of Self-Government of
Kosovo but rather as the direct representatives of the Kosovo people and were thus not subject to
the Constitutional Framework and UNMIK regulations.
JudgeKoroma then proceeds to an exam ination of the accordance of the unilateral
declaration of independence with general international law, concluding that it violated the principle
of respect for the sovereignty an d territorial integrity of States, which entails an obligation to
respect the definition, delineation and territorial in tegrity of an existing State. In his analysis,
JudgeKoroma cites Article2, paragraph4, of the Charter of the United Nations, and the
Declaration on Principles of International Law concerning Friendly Relations and Co-operation
among States in accordance with the Charter of the United Nations.
Finally, JudgeKoroma refers to the finding made by the Supreme Court of Canada that
“international law does not specifically grant component parts of sovereign States the legal right to
secede unilaterally from their ‘parent’ State”. Whil e Judge Koroma takes the view that that Court
correctly answered the question posed to it, he emphasizes that the question now before this Court
is different and provides an opportunity to comple te the picture partially drawn by the Supreme
Court of Canada. In particular, this Court should have made clear that the applicable law in this
case contains explicit and implicit rules against the unilateral declaration of independence.
Judge Koroma thus concludes that the Court should have found that the unilateral declaration
of independence of 17February2008 by the Prov isional Institutions of Self-Government of
Kosovo is not in accordance with international law.
Declaration of Judge Simma
Judge Simma concurs with the Court on the gr eat majority of its reasoning, but questions
what he considers to be its unnecessarily limited analysis. Judge Simma considers that, as the - 4 -
Advisory Opinion interprets the General Assemb ly’s request to require only an assessment of
whether or not the Kosovar declaration of indepe ndence was adopted in violation of international
law, the Opinion not only ignores the plain wordin g of the request itself, which asks whether the
declaration of independence was “in accordance with international law”, but that it also excludes
any consideration of whether international la w may specifically permit or even foresee an
entitlement to declare independence when certain conditions are met. Judge Simma finds this
approach disquieting in the light of the Cour t’s general conclusion that the declaration of
independence “did not violate international law”.
In Judge Simma’s view, the underlying rationale of the Court’s approach, that, in relation to
a specific act, it is not necessary to demonstrate a permissive rule so long as there is no prohibition,
is obsolete. He justifies this position for two r easons. First, by unduly limiting the scope of its
analysis, the Court has not answered the question put before it in a satisfactory manner; it should
have provided a fuller treatment of both prohibitive and permissive rules of international law.
Secondly, Judge Simma considers that the Court’s approach reflects an anachronistic, highly
consensualist vision of internationa l law rooted in the so-called Lotus principle developed by the
Permanent Court more than 80years ago. Accord ing to Judge Simma, the Court could also have
considered the possibility that international la w can be neutral or deliberately silent on the
international lawfulness of certain acts.
Judge Simma first recalls the wording of the General Assembly’s request, which asked
whether Kosovo’s declaration of independence wa s “in accordance with international law”. He
regards this as a neutral wording which deliberat ely does not ask for the existence of either a
prohibitive or permissive rule under international law; the term “in accordance with” being broad
by definition. Although Judge Si mma concedes that it is true that the request is not phrased in the
same way as the question posed to the Supreme Cour t of Canada (asking for a “right to effect
secession”, cf.Advisory Opinion, paragraph55), he maintains that this difference does not justify
the Court’s determination that the term “in accordance with” is to be understood as asking
exclusively whether there is a prohibitive rule, and th at, if there is none, the declaration of
independence is ipso facto in accordance with international law.
Judge Simma considers that a broader appro ach would have better addressed the arguments
invoked by many of the Participants, including th e authors of the declaration of independence,
relating the right to self-determination of peoples and the issue of “remedial secession”. He
considers these arguments important in terms of resolving the broader dispute in Kosovo and in
comprehensively addressing all aspects of the accord ance with international law of the declaration
of independence. Moreover, he argues that cons ideration of these points is precisely within the
scope of the question as understood by the Kosovars themselves, amongst several Participants, who
make reference to a right of external self-d etermination grounded in self-determination and
“remedial secession” as a people. JudgeSimma believes that the General Assembly’s request
deserved a more comprehensive answer, which coul d have included a deeper analysis of whether
the principle of self-determination or any other rule (perhaps expressly mentioning remedial
secession) permit or even warrant independence (via secession) of certain people/territories. That
said, he does not examine the Par ticipants’ arguments in extenso , simply declaring that the Court
could have delivered a more intellectually satisfy ing Opinion, and one with greater relevance as
regards the international legal order as it has evolved into its present form, had it not interpreted the
scope of the question so restrictively.
Judge Simma further maintains that there is also a wider conceptual problem with the
Court’s approach. He considers that the Court’s reasoning leaps straight from the lack of a
prohibition to permissibility, and that for this reason, it is a straightforward application of the Lotus
principle, with its excessively deferential appro ach to State consent. He feels that under this
approach, everything which is not expressly prohibited carries with it the same colour of legality;
it ignores the possible degrees of non-prohibition, ranging from “tolerated” to “permissible” to
“desirable”. He believes that there is room in international law for a category of acts that are - 5 -
neither prohibited nor permitted. In JudgeSimma ’s view, by reading the General Assembly’s
question as it did, the Court denied itself the po ssibility to enquire into the precise status under
international law of a declaration of independen ce. He expresses concern that the narrowness of
this approach might constrain the Court in future cases with regard to its ability to deal with the
great shades of nuance that permeate contemporary international law.
Judge Simma concludes his declaration by sta ting that the Court should have considered the
question from a slightly broader perspective, and not limited itself merely to an exercise in
mechanical jurisprudence. He states that for the Court consciously to have chosen further to
narrow the scope of the question has brought w ith it a method of judicial reasoning which has
ignored some of the most important questions relating to the final status of Kosovo. Consequently,
this method has significantly reduced the advisory quality of the Opinion.
Separate opinion of Judge Keith
Judge Keith in his separate opinion explains why he considers that the Court in its discretion
should have refused to answer the request for an Advisory Opinion put to it by the General
Assembly.
For good reason, he says, the Statute of the Court recognizes that the Court has a discretion
whether to reply to a request. The Court, in ex ercising that discretion considers both its character
as a principal organ of the United Nations and its character as a judicial body. In terms of the
former, the Court early declared that its exerci se of its advisory jurisdiction represents its
participation in the activities of the Organization and, in principle , should not be refused. Later it
said that “compelling reasons” would be required to justify a refusal. While maintaining its
integrity as a judicial body has so far been the reason for refusal which the Court has emphasized, it
has not ever identified it as the only factor which might lead it to refuse. So too may other
considerations, including the interest of the re questing organ and the relative interests of other
United Nations organs. For JudgeKeith that matter of interest is critical in the present case. He
asks whether the request in this case should have co me from the Security Council rather than from
the General Assembly and whether for that reason the Court should refuse to answer the question.
He accordingly considers in some detail the facts re lating to this particular request and the relative
interests of the General Assembly and Security Council.
At the end of that consideration he reach es this conclusion concerning the relative and
absolute interests of the General Assembly and the Security Council in the matter submitted to the
Court by the Assembly: Resolution 1244 adopted by the Security Council, the Council’s role under
it and the role of its subsidiary organ, UNMIK, are the very subject of the inquiry into the
conformity of the declaration of independence with the lex specialis in this case ⎯ the resolution
and the actions taken under it. The resolution, adopted under ChapterVII of the Charter and
having binding force, established an interim international territorial administration with full internal
powers which superseded for the time being the au thority of the Federal Republic of Yugoslavia
which remained sovereign. By contrast, the A ssembly’s only dispositive role since June 1999 and
the introduction of that régime has been to approve the budget of the Mission.
Judge Keith then turns to the case law of the C ourt and in particular to the critical reason for
its recognition that, as a principal organ of the United Nations, it should in principle respond to
requests for opinions. The Court in cases decided ove r the last 50 years has regularly coupled that
recognition with an indication of the interest wh ich the requesting organ has in seeking an opinion
from the Court. In the case of every one of the other requests made by the General Assembly or
the Security Council, their interest has been manife st and did not need to be expressly stated in the
request or discussed by participants in the proceedings or by the Court. In its most recent Advisory
Opinion in 2004, the Court stated this proposition: “As is clear from the Court’s jurisprudence,
advisory opinions have the purpose of furnishing to the requesting organ the elements of law - 6 -
necessary for them in their action .” (Emphasis added.) While the Court has made it clear that it
will not evaluate the motives of the requesting or gan it does in practice determine, if the issue
arises, whether the requesting organ has or claims to have a sufficient interest in the subject-matter
of the request.
In the absence of such an interest, the purpo se of furnishing to the requesting organ the
elements of law necessary for it in its action is not present. Consequently, the reason for the Court
to co-operate does not exist and what is sometimes referred to as its duty to answer disappears.
In this case the Court, in JudgeKeith’s opinion, has no basis on which to reach the
conclusion that the General Assembly, which has not itself made such a claim, has the necessary
interest. Also very significant is the almost ex clusive role of the Security Council on this matter.
Given the centrality of that role for the substa ntive question asked (as appears from the Court’s
Opinion) and the apparent lack of an Assembly interest, JudgeKeith concludes that the Court
should exercise its discretion and refuse to answer the question put to it by the General Assembly.
Cases on which the Court relies in this context were not seen as affecting this conclusion. In
all of them, both the General Assembly and the Security Council had a real interest, and none
involved anything comparable to the régime of international territorial administration introduced by
Security Council resolution 1244.
As is indicated by his vote, JudgeKeith st ates that he agrees with the substantive ruling
made by the Court, essentially for the reasons it gives.
Separate opinion of Judge Sepúlveda-Amor
In his separate opinion, Judge Sepúlveda-Amor asserts that there are no compelling reasons
for the Court to decline to exer cise jurisdiction in respect of the General Assembly’s request.
Moreover, in his view, the Court has a duty, by vi rtue of its responsibilities in the maintenance of
international peace and security under the United Nations Charter, to exercise its advisory function
in respect of legal questions relating to Chapter VII situations.
JudgeSepúlveda-Amor is unable to agree with the Court’s findings on the authors of the
declaration of independence. In his opinion, th e declaration was indeed adopted by the Assembly
of Kosovo as one of Kosovo’s Provisional Institu tions of Self-Government, and not by “persons
who acted together in their capacity as repr esentatives of the people of Kosovo outside the
framework of the interim administration”. Acco rdingly, the Court should have examined the
legality of the declaration by reference to Se curity Council resolution1244(1999) and the
Constitutional Framework.
Finally, Judge Sepúlveda-Amor observes that the Court could have taken a broader approach
so as to elucidate a number of important legal issues not addressed in the Advisory Opinion. These
include, inter alia the scope of the right of self-determina tion, the powers of the Security Council
in relation to the principle of territorial integr ity, the question of “remedial secession”, and State
recognition.
Dissenting opinion of Judge Bennouna
1. The propriety of the Court giving an advisory opinion
Judge Bennouna could not subscribe to the conclusions reached by the Court in its Advisory
Opinion, nor to its reasoning. The judge considers, firstly, that the Court should have exercised its
discretionary powers and declined to respond to the question put by the General Assembly. It is the
first time that the General Assembly has sought an advisory opinion on a question which was not, - 7 -
as such, on its agenda, and that had fallen under th e exclusive jurisdiction of the Security Council
for at least ten years or so, in particular since the latter decided to place the territory of Kosovo
under international administration (resolution 1244 of 10 June 1999).
In the judge’s view, if the Court had declined to respond to this request, it could have put a
stop to any “frivolous” requests which political organs might be tempted to submit to it in future,
and indeed thereby protected the integrity of its judicial function. The question of the compatibility
of a request for an opinion with the functions of the Court and its judicial character still stands,
even if no case of incompatibility has yet been r ecorded. In the Kosovo case, the Court has been
confronted with a situation that has never occurre d before, since it has ultimately been asked to set
itself up as a political decision-maker, in the place of the Security Council. In other words, an
attempt has been made, through this request fo r an advisory opinion, to have it take on the
functions of a political organ of the United Nations , the Security Council, which the latter has not
been able to carry out.
While pointing out that the Special Envoy of the Secretary-General, Mr.MarttiAhtisaari,
advocated the independence of Kosovo in his repor t of 26 March 2007 on Kosovo’s future status,
and that the Security Council has made no finding in this respect, Judge Bennouna emphasizes that
the Court cannot substitute itself for the Secu rity Council in assessing the lawfulness of the
unilateral declaration of independence. It is es sential for the Court to ensure, in performing its
advisory function, that it is not exploited in favour of one specifically political strategy or another,
and, in this case in particular, not enlisted either in the campaign to gather as many recognitions as
possible of Kosovo’s independence by other States, or in the one to k eep these to a minimum;
whereas the Security Council, which is primar ily responsible for pronouncing on the option of
independence, has not done so.
JudgeBennouna believes that the Court cannot substitute itself for the Security Council in
exercising its responsibilities, nor can it stand legal guarantor for a policy of fait accompli based
simply on who can gain the upper hand. The Court’s duty is to preserve its role, which is to state
the law, clearly and independently. That is how it will safeguard its credibility in performing its
functions, for the benefit of the international community.
2. The scope and meaning of the question posed
Judge Bennouna regrets that the Court has deem ed itself authorized to modify the scope and
meaning of the question posed, considering that it was free “to decide for itself whether that
declaration was promulgated by the Provisional In stitutions of Self-Government or some other
entity” (Advisory Opinion, paragraph 54).
The question put to the Court does not need to be interpreted in any way. The General
Assembly did not request the Court to give its opi nion on just any declaration of independence, but
on the one adopted on 17February2008 by the Provisional Institutions of Self-Government of
Kosovo, which were established with specific competences by the United Nations. At that point in
time, the only institution recognized by the Unite d Nations as representing the people of Kosovo
was the elected Assembly of the Provisional Institutions of Self-Government.
The judge notes that never before in its ju risprudence has the Court amended the question
posed in a manner contrary to its object and purpose. - 8 -
3. Accordance with international law of the unilateral
declaration of independence
In JudgeBennouna’s opinion, the Court should first look into the applicable lex specialis
(that is to say, the law of the United Nations) be fore considering whether the declaration is in
accordance with general international law. Th e Court has chosen instead to examine “the
lawfulness of declarations of independence under general international la w” (Advisory Opinion,
paragraph78). The General Assembly did not howev er ask the Court to opine in the abstract on
declarations of independence generally, but rather on a specific declaration adopted in a particular
context ⎯ that of a territory which the Council has placed under United Nations administration ⎯
and this at a time when Security Council resolution 1244 was in force, as it still is.
In the judge’s view, the Court’s reasoning, aimed at dispelling any inkling of the
declaration’s illegality under the law of the Un ited Nations, consisted of severing it from the
institution (the Assembly) that was created within this framework: “the au thors of the declaration
of independence of 17February2008 did not act as one of the Provisional Institutions of
Self-Government . . . but rather as persons who acted together in their capacity as representatives of
the people of Kosovo outside the framework of th e interim administration” (Advisory Opinion,
paragraph109). To reach this conclusion, th e Court relies upon the language used and the
procedure employed. Thus it was enough for th e authors of the declaration to change the
appearance of the text, and to hold themselves out as “the democratically-elected leaders of [the]
people” in order for them to cease to be bound by the Constitutional Framework for Kosovo, which
states that “[t]he Provisional Institutions of Self-Government and their officials shall . . . [e]xercise
their authorities consistent with the provisions of UNSCR1244(1999) and the terms set forth in
this Constitutional Framework”. If such reasoning is followed to its end, it would be enough to
become an outlaw, as it were, in order to escape having to comply with the law.
JudgeBennouna asserts that no unilateral decl aration affecting Kosovo’s future status,
whatever the form of the declaration or the inten tions of its authors, has any legal validity until it
has been endorsed by the Security Council. Contrary to what the Court implies, it is not enough for
the authors simply to step beyond the bounds of the law to cease being subject to it.
He recalls that the Security Council was prevented, by a lack of agreement among its
permanent members, from taking a decision on th e Kosovo question after receiving the Ahtisaari
report in March2007. And, as is often the case wi thin the United Nations, this deadlock in the
Council had a reverberating effect on the Secr etary-General, charged with implementing its
decisions, and his Special Representative. But a st alemate in the Security Council does not release
either the parties to a dispute from their oblig ations or by consequence the members of the
Assembly of Kosovo from their duty to respect the Constitutional Framework and resolution 1244.
Were that the case, the credib ility of the collective security system established by the United
Nations Charter would be undermined. This would, in fact, leave the parties to a dispute to face off
against each other, with each being free to implem ent its own position unilaterally. And in theory
the other party, Serbia, could have relied on the deadlock to claim that it was justified in exercising
full and effective sovereignty over Kosovo in defence of the integrity of its territory.
UNMIK thus adopted the Constitutional Framework and set up the interim administration on
the basis of the mandate it had received from the Secu rity Council in resolution 1244. A violation
of the Constitutional Framework therefore entails a simultaneous violation of the Security Council
resolution, which is binding on all States and non- State actors in Kosovo as a result of the territory
having been placed under United Nations administration. In Judge Bennouna’s view, this being the
case, it is difficult to see how the Court could find that “Security Council resolution1244(1999)
did not bar the authors of the declaration of 17February2008 from issuing a declaration of
independence from the Republic of Serbia” (Advisory Opinion, paragraph 119). He thinks it does
establish such a bar, on at least two counts: because the declaration is not within the Constitutional
Framework established pursuant to the mandate gi ven to UNMIK in the resolution; and because - 9 -
the declaration is unilateral, wh ereas Kosovo’s final status must be approved by the Security
Council.
In the judge’s opinion, it does not matter whet her or not the authors of the declaration of
independence are considered to be members of th e Assembly of Kosovo; under no circumstances
were they entitled to adopt a declaration that contravenes the Cons titutional Framework and
Security Council resolution1244 by running counter to the legal régime for the administration of
Kosovo established by the United Nations.
Finally, JudgeBennouna observes that the Cour t in this case has not identified the rules,
general or special, of international law gove rning the declaration of independence of
17February2008; according to the Opinion, genera l international law is inoperative in this area
and United Nations law does not cover the situation the Court has chosen to consider: that of a
declaration arising in an indeterminate legal order. Accordingly, there is apparently nothing in the
law to prevent the United Nations from pursuing its efforts at mediation in respect of Kosovo in
co-operation with the regional organizations concerned.
Dissenting opinion of Judge Skotnikov
The Court, in the view of Judge Skotnikov, should have used its discretion to refrain from
exercising its advisory jurisdiction in the rather peculiar circumstances of the present case. Never
before has the Court been confronted with a ques tion posed by one organ of the United Nations, to
which an answer is entirely dependent on the inte rpretation of a decision taken by another United
Nations organ. What makes this case even more anomalous is the fact that the latter is the Security
Council, acting under ChapterVII of the United Nati ons Charter. Indeed, in order to give an
answer to the General Assembly, the Court has to make a determination as to whether or not the
Unilateral Declaration of Independence (UDI) is in breach of the régime established for Kosovo by
the Security Council in its resolution 1244 (1999).
The Security Council itself has refrained from making such a determination. Nor has the
Council sought advice from the Court on the subject. That is the position currently taken by the
Council on the issue of the UDI.
Security Council resolutions are political d ecisions. Therefore, determining the accordance
of a certain development, such as the issuance of the UDI in the present case, with a Security
Council resolution is largely political. This means th at even if a determination made by the Court
were correct in the purely legal sense (which it is not in the present case), it may still not be the
right determination from the political perspective of the Security Council. When the Court makes a
determination as to the compatibility of the UDI with resolution 1244 ⎯ a determination central to
the régime established for Kosovo by the Security Council ⎯ without a request from the Council,
it substitutes itself for the Security Council.
The Members of the United Nations, emphasize s Judge Skotnikov, have conferred distinct
responsibilities upon the General Assembly, the Secu rity Council and the International Court of
Justice and have put limits on the competence of each of these principal organs. The Court ⎯ both
as a principal United Nations organ and as a judicial body ⎯ must exercise great care in order not
to disturb the balance between these three principa l organs, as has been established by the Charter
and the Statute. By not adequately addressing the is sue of the propriety of giving an answer to the
present request, the Court has failed in this duty. The Court’s decision to answer the question
posed by the General Assembly is as erroneous as it is regrettable.
As to the majority’s attempt to interpret Secu rity Council resolution 1244 with respect to the
UDI, JudgeSkotnikov points out that, unfortunately , in the process of doing so, the majority has
drawn some conclusions, which simply cannot be right. - 10 -
One of these is finding that resolution1244, which had the overarching goal of bringing
about “a political solution to the Kosovo crisis” (res.1244, operative para.1), did not establish
binding obligations for the Kosovo Albanian lead ership (see Advisory Opinion, paragraphs117
and118). The SecurityCouncil cannot be accused of such an omission, which would have
rendered the entire process initiated by resolution 1244 unworkable.
No less striking is the Court’s finding to th e effect that “a political process designed to
determine Kosovo’s future status, taking in to account the Rambouillet accords” envisaged in
resolution 1244 (res. 1244, operative para. 11 (e)), can be terminated by a unilateral action by the
Kosovo Albanian leadership (see Advisory Opinion, paragraphs 117 and 118). In other words, the
SecurityCouncil, in the view of the major ity, has created a giant loophole in the régime it
established under resolution1244 by allowing for a unilateral “political settlement” of the final
status issue. Such an approach, had it indeed been taken by the Council, would have rendered any
negotiation on the final status meaningless. Obviously, that was not what the SecurityCouncil
intended when adopting and implementing resolution 1244.
Finally, the authors of the UDI are being allowed by the majority to circumvent the
Constitutional Framework created pursuant to resolution 1244, simply on the basis of a claim that
they acted outside this Framework:
“the Court considers that the authors of that declaration did not act, or intend to act, in
the capacity of an institution created by and empowered to act within that legal order
[established for the interim phase] but, rather, set out to adopt a measure [the UDI] the
significance and effects of which would lie outside that order” (Advisory Opinion,
paragraph 105).
The majority, unfortunately, does not explain the difference between acting outside the legal
order and violating it.
The majority’s version of resolution1244, in the opinion of JudgeSkotnikov, is untenable.
Moreover, the Court’s treatment of a Security Council decision adopted under ChapterVII of the
United Nations Charter shows that it has failed its own responsibilities in the maintenance of
international peace and security under the Charter and the Statute of the Court.
In conclusion, Judge Skotnikov points out that the purport and scope of the Advisory
Opinion is as narrow and specific as the question it answers. The Opinion does not deal with the
legal consequences of the UDI. It does not prono unce on the final status of Kosovo. The Court
makes it clear that it
“does not consider that it is necessary to address such issues as whether or not the
declaration has led to the creation of a State or the status of the acts
of recognition in
order to answer the question put by the GeneralAssembly (Advisory Opinion,
paragraph 51).
The Court also notes that
“[d]ebates regarding the extent of the right of self-determination and the existence of
any right of ‘remedial secession’... concern the right to separate from a State...
and . . . that issue is beyond the scope of the question posed by the General Assembly”
(Advisory Opinion, paragraph 83).
In no way does the Advisory Opinion question th e fact that resolution 1244 remains in force
in its entirety (see paragraphs91 and 92 of the Advisory Opinion). This means that “a political
process designed to determine Kosovo’s future stat us” envisaged in this resolution (para.11(e) ) - 11 -
has not run its course and that a final status se ttlement is yet to be endorsed by the Security
Council.
Separate opinion of Judge Cançado Trindade
1. In his separate opinion, composed of 15pa rts, JudgeCançadoTrindade explains how he
has concurred with the conclusions that the Cour t has reached, on the basis of a reasoning distinct
from that of the Court. He begins by laying the foundations of his own personal position on the
matter at issue, by addressing, at first, the pr eliminary questions of ju risdiction and judicial
propriety, with attention turned to the preponderant humanitarian aspects of the question put to the
Court by the General Assembly, and to the Court’s duty to exercise its advisory function, without
attributing to so-called judicial “discretion” a dimension which it does not have. In his view, the
Court´s jurisdiction to deliver the present Advi sory Opinion is established beyond doubt, on the
basis of Article 65 (1) of its Statute; it is for the Court, as master of its own jurisdiction, to satisfy
itself that the request for an Advisory Opinion comes from an organ endowed with competence to
make it. The General Assembly is so authorized by Article 96 (1) of the United Nations Charter, to
request an Advisory Opinion of the ICJ on “any legal question”.
2. Moreover, the ICJ itself has lately pointed out (as to the interpretation of Article 12 of the
United Nations Charter) that in recent years th ere has been an “increasing tendency” for the
General Assembly and the Security Council to deal “in parallel” with the same matter concerning
the maintenance of international peace and secur ity: while the Security Council has tended to
focus on the aspects of such matters related to international peace and security, the General
Assembly has taken a broader view, consideri ng also their humanitarian, social and economic
aspects. Furthermore, in its jurisprudence constante , the ICJ has made it clear that it cannot
attribute a political character to a request for an Advisory Opinion which invites it to undertake an
“essentially judicial task” concerning the scope of obligations imposed by international law,
namely, an assessment of “the legality of the po ssible conduct of States” in respect of obligations
imposed upon them by international law. By adopting, on 8 October 2008, resolution 63/3, seeking
an Advisory Opinion from the ICJ relating to the declaration of independence by the authorities of
Kosovo, the General Assembly has not acted ultra vires in respect of Article12(1) of the United
Nations Charter: it was fully entitled to do so, in the faithful exercise of its functions under the
United Nations Charter.
3. JudgeCançadoTrindade, in sequence, discar ds all arguments based on so-called judicial
“discretion”, observing that the Court’s advisory function is not a simple faculty, that it may utilize
at its free discretion: it is a function , of the utmost importance ultimately for the international
community as a whole, of the principal judicial organ of the United Nations. The Court, when
seized of a matter, has a duty to perform faithfully it s judicial functions, either in advisory matters
or in respect of contentious cases. He ponders that ours is the age of an ever-increasing attention to
the advances of the rule of law at both national and internati onal levels. The international
community expects that the Court acts at the hei ght of the responsibilities incumbent upon it; it is
incumbent upon the Court to say what the Law is (juris dictio), and it ought thus to deliver, as it has
just done, the requested Advisory Opinion, thus fulfilling faithfully its duties as the principal
judicial organ of the United Nations.
4. His next line of considerations (PartIII of his separate opinion) concerns the factual
background and context of the question put to the Court by the General Assembly. In his
understanding, the Court should have devoted much more attention than it has done, in the present
Advisory Opinion, to the factual context ⎯ in particular the factual background ⎯ of the question
put to it by the General Assembly, focusing partic ularly on the preponderant humanitarian aspects . - 12 -
After all, declarations of independence are not proclaimed in a social vacuum , and require
addressing at least its immediate causes, lying in the tragic succession of facts of the prolonged and
grave humanitarian crisis of Kosovo , which culminated in the adoption of Security Council
resolution 1244 (1999).
5. He recalls that this issue, to which he attaches great relevance, was, after all, brought
repeatedly to the attention of the Court, in the course of the present advisory proceedings, by
several participants, in both the written and oral phases. He adds that, on successive previous
occasions, somewhat distinctly, the ICJ deemed it fi t to dwell carefully on the whole range of facts
which led to the questions brought to its cognizan ce for the purpose of the requested Advisory
Opinions. It thus looks rather odd that, in the present Advisory Opinion, the Court has given only a
brief and cursory attention to the factual background of the question put to it by the General
Assembly for the purpose of the present Advisory Opinion.
6. He considers Kosovo’s humanitarian catastrophe as deserving of careful attention on the
part of the Court, for the purpose of the present Advisory Opinion. The Court should, in his view,
have given explicit attention to the factual bac kground and general context of the request of its
Opinion. After all, the grave humanitarian crisis in Kosovo remained, along the decade of
1989-1999 (from the revocation of the constitutiona lly-guaranteed autonomy of Kosovo onwards),
not only a continuing threat to international peace and security, ⎯ till the adoption of Security
Council resolution 1244 (1999) bringing about the Un ited Nations’s international administration of
territory, ⎯ but also a human tragedy marked by the massive infliction of death, serious injuries of
all sorts, and dreadful suffering of the population.
7. The Court should not, in his view, have limited itself, as it did in the present Advisory
Opinion, to select only the few reported and instantaneous facts of the circumstances surrounding
the declaration of independence by Kosovo’s authorities on 17.02.2008 and shortly afterwards,
making abstraction of its factual background. He re grets that this factual background has been to a
great extent eluded by the Court, apparently sa tisfied to concentrate on the events of 2008-2009,
and only briefly and elliptically referring to the crisis in Kosovo, without any explanation of what it
consisted of.
Ye8t,. ⎯ Judge Cançado Trindade adds, ⎯ that grave humanitarian crisis, as it developed in
Kosovo along the nineties, was marked by a prolonged pattern of successive crimes against
civilians, by grave violations of Internationa l Humanitarian Law and of International Human
Rights Law, and by the emergence of one of the most heinous crimes of our times, that of ethnic
cleansing. The deprivation of Kos ovo’s autonomy (previously secured by the Constitution of
1974) in 1989, paved the way for the cycle of systematic discrimination, utmost violence and
atrocities which, for one decade (1989-1999), victimized large segments of the population of
Kosovo, leading to the adoption of a series of resolutions by the main political organs of the United
Nations, and culminating in the adoption of Security Council resolution1244(1999), and, one
decade later, in Kosovo’s declaration of independence.
9. Judge Cançado Trindade considers it necessary to insert the matter at issue into the larger
framework of the Law of the United Nations . To that end, he starts (in PartIV of his separate
opinion) by recalling pertinent antecedents linked to the advent of international organizations, in
their growing attention to the needs and aspirati ons of the “people” or the “population” (in the
mandates system under the League of Nations, in the trusteeship system under the United Nations,
and in contemporary United Nations experiments of international territorial administration). Such
experiments, in JudgeCançadoTr indade’s perception, show that international organizations have - 13 -
contributed to a return to the droit des gens , and to a revival of its humanist vision, faithful to the
teachings of the “founding fathers” of the law of nations.
10. That vision marked its presence in past experiments of the mandates system, under the
League of Nations, and of the trusteeship syst em, under the United Nations, as it does today in the
United Nations initiatives of international administration of territory. In Judge Cançado Trindade’s
reassessment, the recurring element of the due care with the conditions of living of the “people” or
the “population” provides the common denominator, in an inter-temporal dimension, of the
experiments of mandates, trust territories and contemporary international administration of
territories. Those juridical institutions, ⎯ each one a product of its time, ⎯ were conceived and
established, ultimately, to address, and respond to, the needs (including of protection) and
aspirations of peoples, of human beings.
11. Other considerations were taken into account , in approaching those experiments. Resort
to private law analogies is one of them. For ex ample, the relation of the mandates, the analogy
with the original mandatum , a consensual contract in Roman law; the roots of “trust” and
“tutelage” in the tutela of Roman law (a sort of guardianship of infants); the English trust , to some
extent a descendant of the fideicomissa of Roman law (in “fiduciary” relations). In any case, a new
relationship was thereby created, in the mandat es and trusteeship systems, on the basis of
confidence (the “sacred trust”) and, ultimately, of human conscience. What ultimately began to
matter was the well-being and huma n development of the population , of the inhabitants of
mandated and trust territories, rather than the notio n of absolute territorial sovereignty. Those
experiments were intended to give legal protection to newly-arisen needs of the “people” or the
“population”; and the mandatory, tutor or trustee had duties, rather than rights.
12. Beyond those private law analogies, and we ll before them, were the teachings of the
so-called “founding fathers” of the law of nations (le droit des gens) , characterized by their
essentially humanist outlook, supported by Judge Cançado Trindade. He recalls (Parts V and VI of
the present separate opinion) that, from a historical as well as a deontological perspectives, peoples
assumed a central position already in the early da ys of the emergence of the droit des gens (the jus
gentium emancipated from its private law origins). The droit des gens was originally inspired by
the principle of humanity lato sensu , with the legal order binding everyone (the ones ruled as well
as the rulers); the droit des gens regulates an international community constituted by human beings
socially organized in States and co-extensive with humankind (FV . itoria, Indis ⎯
Relectio Prior, 1538-1539); thus conceived, it is sole ly Law which regulates the relations among
members of the universal societas gentium (A.Gentili, De Jure Belli , 1598). This latter (totus
orbis) prevails over the individual will of each Stat e (F. Vitoria). There is thus a necessary law of
nations, and the droit des gens reveals the unity and universality of humankind (F.Suárez,
De Legibus ac Deo Legislatore, 1612).
13. The raison d´État has limits, and the State is not an end in itself, but a means to secure
the social order pursuant to the right reason (recta ratio) , so as to perfect the societas gentium ,
which comprises the whole of humankind (H. Grotius, De Jure Belli ac Pacis, 1625). The legislator
is subject to the natural law of human reas on (S.Pufendorf, De Jure Naturae et Gentium , 1672),
and individuals, in their association in the State, ought to promote together the common good
(C.Wolff, Jus Gentium Methodo Scientifica Pertractatum , 1749). Since the times of those
writings, the world of course has entirely changed, but human aspirations have remained the same.
The advent, along the XXth century, of international organizations, has much contributed to put an
end to abuses against human beings, and gross violations of human ri ghts and international
humanitarian law. The United Nations, in our tim es, has sought the prevalence of the dictates of - 14 -
the universal juridical conscience, particularly when aiming to secure dignified conditions of living
to all peoples, in particular those subjected to oppression.
14. The old Permanent Court of International Ju stice (PCIJ) gave its own contribution to the
rescue of the “population” or the “people”, and some of its relevant obiter dicta in this respect seem
to remain endowed with contemporaneity. Thus, even well before the 1948 Universal Declaration
of Human Rights, the fundamental principle of e quality and non-discrimination had found judicial
recognition. The Universal Declaration placed the principle in a wider dimension, and projected it
at universal level, by taking the individual qua individual, qua human being, irrespective of being a
member of a minority, or an inhabitant of a te rritory under the mandates system, or, later on, under
the trusteeship system. The Universal Declaration recalled in its preamble that “disregard and
contempt for human rights have resulted in barb arous acts which have outraged the conscience of
mankind” (para.2). And it then proclaimed, in its Article1, that “all human beings are born free
and equal in dignity and rights”.
15. JudgeCançadoTrindade then points out that the juridical institutions of mandates,
trusteeship and international administration of territories emerged, in succession, to extend
protection to those “peoples” or “populations” who stood in need of it. The respective “territorial”
arrangements were the means devised in order to achieve that end, of protection of “populations” or
“peoples”. It was not mandates for mandates’ sake, it was not trusteeship for trusteeship’s sake,
and it is not international administration of territo ry for administration’s sake. Turning to their
causes, as one ought to, their common purpose is clearly identified: to safeguard the “peoples” or
“populations” concerned.
16. He then proceeds to an examination (in Part VII) of the grave concern expressed by the
United Nations as a whole with various aspects of the humanitarian tragedy in Kosovo. To that
end, he reviews successive resolutions adopted by the Security Council (period 1998-2001), by the
General Assembly (period 1994-2008), and by ECOSOC (1998-1999), as well as reports (on
UNMIK) and statements by the Secretary-General (period 1999-2008), ⎯ to all of which he
ascribes much importance, as they disclose the factual background of the Kosovo crisis which was
eluded by the Court.
17. After recalling the principle ex injuria jus non oritur , he moves on to an examination (in
PartIX of the present separate opinion) of the re levant aspect of the conditions of living of the
population in Kosovo (as from 1989), on the basis of the submissions adduced by participants in
the present advisory proceedings be fore the Court, in their written and oral phases. He also recalls
the judicial recognition (by the ICTY), and further evidence, of the atrocities perpetrated in Kosovo
(in the decade 1989-1999), and ascribes a central pos ition to the sufferings of the people, pursuant
to the humanizing people-centered outlook in contemporary international law.
18. Under this outlook, JudgeCançadoTrinda de reassesses territorial integrity in the
framework of the humane ends of the State, and considers the principle of self-determination of
peoples applicable, beyond decolonization, in new situations of systematic oppression, subjugation
and tyranny. He stresses the fundamental importanc e, in the context of the Kosovo crisis, of the
principles of humanity, and of equality and non-discrimination, so as to extract the basic lesson: no
State can use territory to destroy the population; su ch atrocities amount to an absurd reversal of the
ends of the State, which was created and exists for human beings, and not vice-versa.
19. JudgeCançadoTrindade adds (PartXI V of the present separate opinion) that the
prohibitions of jus cogens have an incidence at inter-State , as well at intra-State , levels, that is, in - 15 -
the relations of States inter seas well as in the relations of States with all human beings under their
respective jurisdictions.
20. He adds (PartXV) that an examination of the factual background of Security Council
resolution1244(1999), followed by Kosovo’s decl aration of independence on 17.02.2008, leaves
no room for a “technical” and aseptic examination of the question put to the Court by the General
Assembly for the present Advisory Op inion. It is the United Nations Charter that is ultimately to
guide any reasoning. In his view, Kosovo’s decl aration of independence can only be appropriately
considered in the light of the complex and tr agic factual background of the grave humanitarian
crisis of Kosovo , which culminated in the adoption by Security Council of its
resolution1244(1999). The Law of the United Nations has been particularly attentive to the
conditions of living of the population, in Kosovo as in distinct parts of the world, so as to preserve
international peace and security.
21. JudgeCançadoTrindade finally recalls a qu estion he put to the participants at the close
of the oral proceedings before the Court, in the public sitting of 11December2009, and the
answers given to it by 15 of them. The point was made that Security Council
resolution1244(1999) was meant to create th e conditions for substa ntial autonomy and an
extensive form of self-governance in Kosovo, in vi ew of the unique circumstances of Kosovo. In
the course of the following decade (1999-2009), the population of Kosovo was able, due to
resolution1244(1999) of the Security Counc il, to develop its capacity for substantial
self-governance, ⎯ as its declaration of independence by the Kosovar Assembly on
17February2008 shows. Declarations of the kind are neither authorized nor prohibited by
international law, but their consequences and implications bring international law into the picture.
22. It is true that United Nations Security Council resolution 1244 (1999) did not determine
Kosovo’s end-status, nor did it prevent or impede the declaration of independence of
17 February 2008 by Kosovo’s Assembly to take place. The United Nations Security Council has
not passed any judgment whatsoever on the chain of events that has taken place so far, and UNMIK
has adjusted itself to the new s ituation. There remains the United Nations presence in Kosovo,
under the umbrella of Security Council resoluti on 1244 (1999); the permanence of United Nations
presence in Kosovo, also from now on, appears n ecessary, for the sake of human security, and the
preservation of international peace and security in the region.
23. The Comprehensive Proposal for the Kosovo Status Settlement , presented in
mid-March 2007 by the Special Envoy of the United Nations Secretary-General, contains proposals
of detailed measures aiming at: (a) ensuring the promotion and protection of the rights of
communities and their members (with special atte ntion to the protection of Serb minorities);
(b)the effective decentralization of government and public administration (so as to encourage
public participation); (c) the preservation and protection of cult ural and religious heritage. The
ultimate goal is the formation and consolidation of a multi-ethnic democratic society, under the rule
of law, with the prevalence of the fundamental principle of equality and non-discrimination, the
exercise of the right of participation in public lif e, and of the right of equal access to justice by
everyone.
24. In its declaration of independence of 17 February 2008, Kosovo’s Assembly expressly
accepts the recommendations of the United Nations Special Envoy, and the continued presence of
the United Nations in Kosovo; moreover, it e xpresses its commitment to “act consistent with
principles of international law and resolu tions of the Security Council”, including
resolution1244(1999). The Special Representa tive of the United Nations Secretary-General - 16 -
continues, in effect, to exercise its functions in Kosovo to date. Judge Cançado Trindade concludes
that States exist for human beings and not vice-versa . Contemporary international law is no longer
indifferent to the fate of the population, the most precious constitutive element of statehood. The
advent of international organizations has helped to put an end to the reversal of the ends of the
State, and the expansion of international le gal personality has entailed the expansion of
international accountability.
Separate opinion of Judge Yusuf
Although generally in agreement with the Cour t’s Opinion, Judge Yusuf appends a separate
opinion in which he explains his serious reservatio ns regarding, first, what he considers as the
Court’s restrictive reading of the question po sed by the General Assembly, and, secondly, the
inclusion by the Court of the Constitutional Framework established under the auspices of the
United Nations Interim Administration Mission in Kosovo (UNMIK) in the category of the
applicable international legal instruments unde r which the accordance of the declaration of
independence with international law is assessed.
With regard to the first issue, Judge Yusuf is of the view that the question put to the Court by
the General Assembly, did not merely concern wh ether or not the applicable international law
prohibited the declaration of independence as such. A declaration of independence is the
expression of a claim to separate statehood. From a legal standpoint, the question also concerned
whether or not the process by which the people of Kosovo were seeking to establish their own State
involved a violation of international law or whethe r it was in accordance with such law due to the
possible existence of a positive right which could legitimize it.
Judge Yusuf finds it regrettable that the Court decided not to address this important aspect of
the question, thereby failing to seize the opportunity offered by the General Assembly’s request to
define the scope and normative content of the post-colonial right of self-determination. Addressing
the question of self-determination and clarifying its applicability to this specific case would have
allowed the Court to contribute, inter alia, to the prevention of the misuse of this important right by
groups promoting ethnic and tribal divisions within existing States.
Judge Yusuf then proceeds to elaborate on his own views regarding the post-colonial
conception of the right of self-determination, and its scope of application. He considers this right
to be chiefly exercisable within States, and examines the exceptional circumstances in which a
claim to external self-determination may be su pported by international law, as well as the
conditions that such a claim may have to meet.
With respect to the second issue, regarding th e legal nature and status of the Constitutional
Framework for the Interim Administration of Kos ovo enacted by the Special Representative of the
Secretary-General of the United Nations(SRSG), J udgeYusuf is of the view that the legislative
powers vested in the SRSG were not for the promulgation of international legal rules and
principles, but were meant for the enactment of laws and regulations which are exclusively
applicable in Kosovo.
According to him, the Constitutional Framewor k as well as all other regulations enacted by
the SRSG are part of a domestic legal system esta blished on the basis of authority derived from an
international legal instrument. The fact that the source of this authority is international does not
however qualify such regulations as part of intern ational law. Since the Constitutional Framework
is not, in his view, part of international law, the Court should not have taken it into account in
assessing the accordance of the declaration of independence of Kosovo with international law.
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Summary of the Advisory Opinion of 22 July 2010