2010 - International Court of Justice

1 International Court OF JUSTICEREPORTS OF JUDGMENTS,ADVISORY OPINIONS AND ORDERSACCORDANCE WITH International LAWOF THE UNILATERALDECLARATION OF INDEPENDENCEIN RESPECT OF KOSOVOADVISORY OPINION OF 22 JULY 20102010 COUR INTERNATIONALE DE JUSTICERECUEIL DES ARRE|TS,AVIS CONSULTATIFS ET ORDONNANCESCONFORMITEuAU DROIT INTERNATIONALDE LA DEuCLARATIONUNILATEuRALE D INDEuPENDANCERELATIVE AU KOSOVOAVIS CONSULTATIF DU 22 JUILLET 2010 Official citation :Accordance with International Law of the Unilateral Declarationof Independence in Respect of Kosovo, Advisory Opinion, Reports 2010, officiel de citation :Conformit au droit International de la d claration unilat raled ind pendance relative au Kosovo, avis consultatif, Recueil 2010, 0074-4441 ISBN 978-92-1-071107-4 Sales numberNode vente:997 ACCORDANCE WITH International LAWOF THE UNILATERALDECLARATION OF INDEPENDENCEIN RESPECT OF KOSOVOCONFORMITEuAU DROIT INTERNATIONALDE LA DEuCLARATIONUNILATEuRALE D INDEuPENDANCERELATIVE AU KOSOVO22 JULY 2010 ADVISORY OPINION22 JUILLET 2010 AVIS CONSULTATIFTABLE OF CONTENTSP aragraphsCHRONOLOGY OF THEPROCEDURE1-16I.

2 JURISDICTION ANDDISCRETION17-48A. Jurisdiction18-28B. Discretion29-48II. SCOPE ANDMEANING OF THEQUESTION49-56 III. FACTUALBACKGROUND57-77A. Security Council resolution 1244 (1999) and the relevantUNMIK regulations58-63B. The relevant events in the final status process prior to17 February 200864-73C. The events of 17 February 2008 and thereafter74-77IV. THEQUESTION WHETHER THEDECLARATION OFINDEPENDENCEISINACCORDANCE WITHINTERNATIONALLAW78-121A. general International law79-84B. Security Council resolution 1244 (1999) and the UNMIKC onstitutional Framework created thereunder85-1211. Interpretation of Security Council resolution 1244 (1999)94-1002.

3 The question whether the declaration of independence isin accordance with Security Council resolution 1244 (1999)and the measures adopted thereunder101-121(a)The identity of the authors of the declaration of inde-pendence102-109(b)The question whether the authors of the declarationof independence acted in violation of Security Councilresolution 1244 (1999) or the measures adopted there-under110-121V. GENERALCONCLUSION122 OPERATIVECLAUSE1234034 International Court OF JUSTICEYEAR 201022 July 2010 ACCORDANCE WITH International LAWOF THE UNILATERALDECLARATION OF INDEPENDENCEIN RESPECT OF KOSOVOJ urisdiction of the Court to give the advisory opinion 65, paragraph 1, of the Statute Article 96, paragraph 1, of theCharter Power of general Assembly to request advisory opinions Arti-cles 10 and 11 of the Charter Contention that general Assembly acted out-side its powers under the Charter Article 12, paragraph 1.

4 Of the Charter Authorization to request an advisory opinion not limited by Article that the question on which the Court is requested to give itsopinion is a legal question Contention that the act of making a declarationof independence is governed by domestic constitutional law The Court canrespond to the question by reference to International law without the need toaddress domestic law The fact that a question has political aspects does notdeprive it of its character as a legal question The Court is not concerned withthe political motives behind a request or the political implications which itsopinion may Court has jurisdiction to give the advisory opinion requested.

5 **Discretion of the Court to decide whether it should give an of the Court s judicial function Only compelling reasons shouldlead the Court to decline to exercise its judicial function The motives of indi-vidual States which sponsor a resolution requesting an advisory opinion are notrelevant to the Court s exercise of its discretion Requesting organ to assesspurpose, usefulness and political consequences of of the respective powers of the Security Council and the General404201022 JulyGeneral ListNo. 1415 Assembly Nature of the Security Council s involvement in relation to Kos-ovo Article 12 of the Charter does not bar action by the general Assembly inrespect of threats to International peace and security which are before the Secu-rity Council general Assembly has taken action with regard to the situationin compelling reasons for Court to use its discretion not to give an advisoryopinion.

6 **Scope and meaning of the of the question in general Assembly resolution 63/3 Power of theCourt to clarify the question No need to reformulate the question posed bythe general Assembly For the proper exercise of its judicial function, theCourt must establish the identity of the authors of the declaration of independ-ence No intention by the general Assembly to restrict the Court s freedom todetermine that issue The Court s task is to determine whether or not the decla-ration was adopted in violation of International law.**Factual for interim administration of Kosovo put in place by the SecurityCouncil Security Council resolution 1244 (1999) Establishment of theUnited Nations Interim Administration Mission in Kosovo (UNMIK)

7 Roleof Special Representative of the secretary - general Four pillars of theUNMIK r gime Constitutional Framework for Provisional Self-Govern-ment Relations between the Provisional Institutions of Self-Government andthe Special Representative of the events in the final status process Appointment by secretary - general of Special envoy for the future status process for Kosovo GuidingPrinciples of the Contact Group Failure of consultative process Compre-hensive Proposal for the Kosovo Status Settlement by Special envoy Failureof negotiations on the future status of Kosovo under the auspices of the Troika Elections held for the Assembly of Kosovo on 17 November 2007 Adoption ofthe declaration of independence on 17 February 2008.

8 **Whether the declaration of independence is in accordance with prohibition of declarations of independence according to State practice Contention that prohibition of unilateral declarations of independence is implicitin the principle of territorial integrity Scope of the principle of territorialintegrity is confined to the sphere of relations between States No general pro-hibition may be inferred from the practice of the Security Council with regard todeclarations of independence Issues relating to the extent of the right of self-405 UNILATERAL DECLARATION OF INDEPENDENCE(ADVISORY OPINION)6determination and the existence of any right of remedial secession are beyondthe scope of the question posed by the general International law contains no applicable prohibition of declarationsof independence Declaration of independence of 17 February 2008 did notviolate general International Council resolution 1244 and the Constitutional Framework Reso-lution 1244 (1999)

9 Imposes International legal obligations and is part of theapplicable International law Constitutional Framework possesses interna-tional legal character Constitutional Framework is part of specific legalorder created pursuant to resolution 1244 (1999) Constitutional Frameworkregulates matters which are the subject of internal law Supervisory powers ofthe Special Representative of the secretary - general Security Council resolu-tion 1244 (1999) and the Constitutional Framework were in force and applica-ble as at 17 February 2008 Neither of them contains a clause providing fortermination and neither has been repealed The Special Representative of theSecretary- general continues to exercise his functions in Council resolution 1244 (1999) and the Constitutional Frameworkform part of the International law to be considered in replying to the questionbefore the of Security Council resolutions Resolution 1244 (1999)

10 Established an International civil and security presence in Kosovo Temporarysuspension of exercise of Serbia s authority flowing from its continuing sover-eignty over the territory of Kosovo Resolution 1244 (1999) created aninterim r gime Object and purpose of resolution 1244 (1999).Identity of the authors of the declaration of independence Whether the dec-laration of independence was an act of the Assembly of Kosovo Authors ofthe declaration did not seek to act within the framework of interim self-admin-istration of Kosovo Authors undertook to fulfil the International obligationsof Kosovo No reference in original Albanian text to the declaration being thework of the Assembly of Kosovo Silence of the Special Representative of theSecretary- general Authors of the declaration of independence acted togetherin their capacity as representatives of the people of Kosovo outside the frame-work of the interim or not the