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I. INTERNATIONAL COURT OF JUSTICE, ACCORDANCE WITH INTERNATIONAL LAW OF THE UNILATERAL DECLARATION OF INDEPENDENCE IN RESPECT OF KOSOVO, ADVISORY OPINION OF 22 JULY 2010

  • Dov Jacobs (a1)

Extract

‘Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?’ It is to answer this question that the General Assembly of the United Nations (‘UNGA’) requested an advisory opinion of the International Court of Justice (‘ICJ’). The request, adopted in October 20081 and initially sponsored by Serbia, was triggered by the declaration of independence of Kosovo issued on the 17 February 2008.2 Some two years later, on the 22 July 2010, the ICJ delivered its Advisory Opinion.3 By a 10–4 vote, the ICJ found that the declaration of independence of Kosovo did not violate international law.

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1 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, UNGA Res. 63/3 (2008), 8 October 2008.

2 Declaration of Independence of Kosovo, 17 February 2008, available at http://www.assembly-kosova.org/?cid=2,128,1635.

3 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion of 22 July 2010, [2010] ICJ Rep (hereafter, Advisory Opinion).

4 Art 65(1), ICJ Statute.

5 Art 96(1), UN Charter: ‘The General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question’.

6 Advisory Opinion, 21–24.

7 ibid 21 (emphasis added).

8 ibid 25.

9 Jacobs, D and Radi, Y, ‘Waiting for Godot: An Analysis of the Advisory Opinion on Kosovo24 Leiden Journal of International Law 331, 338.

10 Art 65(1), ICJ Statute.

11 Advisory Opinion, 29.

12 ibid 33.

13 ibid 34.

14 ibid 35.

15 ibid 40 and 42.

16 ibid 41.

17 ibid 44.

18 ibid 50.

19 ibid 51.

20 ibid 56.

21 ibid 52.

22 ibid.

23 Advisory Opinion, 53.

24 Jacobs and Radi (n 9) 332.

25 ibid 339.

26 ibid 50.

27 Advisory Opinion, Declaration of Judge Simma, 5.

28 Advisory Opinion, 79.

29 ibid.

30 The examples given in the Advisory Opinion are Southern Rhodesia, Northern Cyprus and Republika Srpska (Advisory Opinion, 81).

31 Advisory Opinion, 81.

32 ibid 80.

33 ibid.

34 Declaration On Principles Of International Law Friendly Relations And Co-Operation Among States In Accordance With The Charter Of The United Nations, UNGA Resolution 2625(XXV), 24 October 1970.

35 Advisory Opinion, 82.

36 ibid 83.

37 Kohen M, M and Del Mar, K, ‘The Kosovo Advisory Opinion and UNSCR 1244 (1999): A Declaration of ‘Independence from International Law’?24 Leiden Journal of International Law 109, 112.

38 Advisory Opinion, Separate Opinions of Judges Yussuf and Cançado Trindade.

39 Advisory Opinion, Declaration of Judge Simma, 3.

40 Christakis, TThe ICJ Advisory Opinion on Kosovo: Has International Law Something to Say about Secession?24 Leiden Journal of International Law 73, 79.

41 See section 1.3.

42 Corten, OTerritorial Integrity Narrowly Interpreted: Reasserting the Classical Inter-State Paradigm of International Law24 Leiden Journal of International Law 87.

43 R, Wilde, ‘Self-Determination, Secession, and Dispute Settlement after the Kosovo Advisory Opinion24 Leiden Journal of International Law 149, 152.

44 Advisory Opinion, 81.

45 Vidmar, J, ‘The Kosovo Advisory Opinion Scrutinized24 Leiden Journal of International Law 355, 373.

46 Advisory Opinion, 85.

47 ibid 86.

48 ibid 88.

49 UNMIK Reg. 2001/9, 15 May 2001.

50 Advisory Opinion, 88.

51 ibid.

52 ibid para. 91.

53 ibid para. 93.

54 Given its approach to the legal nature of the question. See above section 1.1.

55 Advisory Opinion, 89 (emphasis added).

56 Advisory Opinion, Separate Opinion of Judge Yussuf, 18. The Court could also have found support for this position in the Permanent Court of International Justice Advisory Opinion on the Treatment of Polish Nationals and other Persons of Polish Origin or Speech in the Danzig Territory (4 February 1932, (1932) PCIJ Series A/B No. 44), where the Constitution of Danzig, despite its international character, was deemed to be internal law and non-invocable directly by Poland. It is in this sense surprising that this opinion, despite its obvious similarities with Kosovo, was not referred to by the Court.

57 The absurdity of this possible conclusion is due to the fact that the Court accepted to answer a question on the conduct of non-state entities, as developed further in the conclusion.

58 See above section 1.3.

59 A statement that, it turns out, is not entirely correct. See ibid section 3.3.

60 Advisory Opinion, 105 (emphasis added).

61 ibid 107.

62 ibid 108.

63 Declaration of Independence of Kosovo, 17 February 2008, available at http://www.assembly-kosova.org/?cid=2,128,1635

64 Vice-President Tomka, in his Declaration appended to the Advisory Opinion, refered to additional circumstantial evidence suggesting that the authors of the declaration were in fact acting as the PISG (Advisory Opinion, Declaration of Vice-President Tomka, 19–20).

65 Kohen M, M and Mar, K Del, ‘The Kosovo Advisory Opinion and UNSCR 1244(1999): A Declaration of ‘Independence from International Law‘?24 Leiden Journal of International Law 109, at 122.

66 ibid.

67 Advisory Opinion, Dissenting Opinion of Judge Bennouna, 44.

68 Advisory Opinion, Dissenting Opinion of Judge Koroma, 5.

69 Advisory Opinion, Dissenting Opinion of Judge Bennouna, 46.

70 Advisory Opinion, 114.

71 UNSC Resolution 1251, 29 June 1999. ibid 114.

72 Advisory Opinion, 118.

73 ibid 115.

74 ibid 116. Interestingly, one of the other Resolution referred to, Resolution 1203 (1998), adopted on 24 October 1998, seems to indicate the preference of the UNSC for a negotiated solution. Indeed, it provides that the UNSC ‘Stresses the urgent need for the authorities in the Federal Republic of Yugoslavia and the Kosovo Albanian leadership to enter immediately into a meaningful dialogue without preconditions and with international involvement, and to a clear timetable, leading to an end of the crisis and to a negotiated political solution to the issue of Kosovo’ (emphasis added). In light of this, it begs the question why this Resolution, and others, were not introduced in the reasoning as relevant international law, especially as they were not explicitly excluded from the applicable law (Advisory Opinion, 86, above section 3.1).

75 Advisory Opinion, 121. Considering the Court's conclusions, a more adequate phrasing would have been ‘could not violate’ rather than ‘did not violate’. Indeed, there can be no violation of a rule that is not binding.

76 Christakis, T, ‘The ICJ Advisory Opinion on Kosovo: Has International Law Something to Say about Secession?24 Leiden Journal of International Law 73, 75.

77 D Jacobs ‘The Kosovo Advisory Opinion: A Voyage by the ICJ into the Twilight Zone of International Law’, Hague Justice Portal, 12 October 2010, http://www.haguejusticeportal.net/eCache/DEF/12/131.html, accessed 6 June 2011.

78 Above section 3.1.

79 Jacobs, D and Radi, Y, ‘Waiting for Godot: An Analysis of the Advisory Opinion on Kosovo24 Leiden Journal of International Law 331, at 344.

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