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Kosovo - International Court of Justice (ICJ) Ruling

The International Court of Justice (ICJ) is the principal judicial organ of the United Nations (UN). It was established in June 1945 by the Charter of the United Nations and began work in April 1946. The seat of the Court is at the Peace Palace in The Hague (Netherlands). Of the six principal organs of the United Nations, it is the only one not located in New York (United States of America). The Court’s role is to settle, in accordance with international law, legal disputes submitted to it by States and to give advisory opinions on legal questions referred to it by authorized United Nations organs and specialized agencies.

The International Court of Justice is composed of 15 judges elected to nine-year terms of office by the United Nations General Assembly and the Security Council. These organs vote simultaneously but separately. In order to be elected, a candidate must receive an absolute majority of the votes in both bodies. This sometimes makes it necessary for a number of rounds of voting to be carried out. In order to ensure a measure of continuity, one third of the Court is elected every three years.

In a letter dated 15 August 2008 to the Secretary-General, the Permanent Representative of Serbia to the United Nations transmitted a request from the Republic of Serbia for the inclusion in the agenda of the sixty-third session of the General Assembly of a supplementary item entitled “Request for an advisory opinion of the International Court of Justice on whether the unilateral declaration of independence of Kosovo is in accordance with international law”; an explanatory memorandum was attached to the request (A/63/195 of 22 August 2008).

The Government of Serbia contended, according to Minister of Foreign Affairs Vuk Jeremic, that the Kosovo claim violated U.N. Security Council Resolution 1244 reaffirming the sovereignty and territorial integrity of the Serbian state, the U.N. Charter, and the Helsinki Final Act. Jeremic noted that this is the first time for the ICJ to examine a case on the legality of secession, and Serbia extensively stressed "the fact that this case will affect all other such cases in the future"; moreover, he stated, "[s]ince all countries were allowed to send their opinions to the court, we wanted … as many countries as possible … [to] send their opinion regarding the Kosovo independence and whether they think it is against international law."

On 8 October 2008, the General Assembly, at its sixty-third session, adopted resolution 63/3 by a recorded vote of 77 in favor to 6 against with 74 abstentions, that decided, in accordance with Article 96 of the Charter of the United Nations to request the International Court of Justice, pursuant to Article 65 of the Statute of the Court to render an advisory opinion on the following question: “Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?”

On 22 July 2010, 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. The Court recalled that it had repeatedly stated that the fact that a question has political aspects does not suffice to deprive it of its character as a legal question. It noted that the advisory jurisdiction is not a form of judicial recourse for States but the means by which the General Assembly and the Security Council, as well as other organs of the United Nations may obtain the Court’s opinion in order to assist them in their activities. The Court recalled 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 needed the opinion.

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 context. 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 recalled 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 international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations.’”

The Court observed, that while the Security Council had 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 stated that “the illegality attached to the declarations 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 noted that “[i]n the context of Kosovo, the Security Council has never taken this position”.

Kosovo was iniitally administered by the UN Interim Administrative Mission in Kosovo (UNMIK) pursuant to UN Security Council (UNSC) Resolution 1244 of 1999. Resolution 1244 (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 observed that the declaration of independence reflects the awareness of its authors that the final status negotiations had failed and that a critical moment for the future of Kosovo had been reached.

The Court noted that the reaction of the Special 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 17 February 2008 suggests that he did not consider that the declaration was an act of the Provisional Institutions of Self-Government designed to take effect within the legal order for the supervision of which he was responsible.

The terms of resolution 1244 (1999) the Security Council did not reserve for itself the final determination of the situation in Kosovo and remained silent on the conditions for the final status of Kosovo. Resolution 1244 (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. Bearing this in mind, the Court could not accept the argument that Security Council resolution 1244 (1999) contains a prohibition, binding on the authors of the declaration of independence, against declaring independence.

The Court concluded, by ten votes to four, “that the adoption of the declaration of independence of 17 February 2008 did not violate general international law, Security Council resolution 1244 (1999) or the Constitutional Framework”. Finally, it concluded that “[c]onsequently the adoption of that declaration did not violate any applicable rule of international law.”

Vice-President Peter Tomka (Slovakia) voted in the minority, considering the majority has conducted an “adjustment” of the question posed by the General Assembly, an adjustment 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.

In his dissenting opinion, Judge Abdul G. Koroma (Sierra Leone) concluded that the Court, in exercising 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 had done in this case. Judge Koroma stressed 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 wish to do so.

The declaration of independence violated the provision of resolution 1244 (1999) 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 was an attempt to bring to an end the international presence in Kosovo established by Security Council resolution 1244 (1999), a result which could only be effected by the Security Council itself. Judge Koroma then proceeded to an examination of the accordance of the unilateral declaration of independence with general international law, concluding that it violated the principle of respect for the sovereignty and territorial integrity of States, which entails an obligation to respect the definition, delineation and territorial integrity of an existing State.

Judge Mohamed Bennouna (Morocco) 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, as such, on its agenda, and that had fallen under the exclusive jurisdiction of the Security Council. Judge Bennouna asserted that no unilateral declaration affecting Kosovo’s future status, whatever the form of the declaration or the intentions of its authors, had any legal validity until it had been endorsed by the Security Council.

The Court, in the view of Judge Leonid Skotnikov (Russian Federation), should have used its discretion to refrain from exercising its advisory jurisdiction in the rather peculiar circumstances of the present case. 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. 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. In no way does the Advisory Opinion question the fact that resolution 1244 remains in force in its entirety. This means that “a political process designed to determine Kosovo’s future status” envisaged in this resolution has not run its course and that a final status settlement is yet to be endorsed by the Security Council.