1. Legal strategy and the framing of the question

Serbia could start the proceedings from a clean sheet. It had full control over the question to be put to the Court, having been the sole sponsor of the General Assembly resolution requesting it. The question that was eventually put was a very narrow one: ‘Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?’

Presumably, the calculation was that this phrasing would move the issue onto legal ground where Serbia was confident of winning the argument – the legal authority of the Provisional Institutions of Self-Government in relation to the declaration of independence. This authority was thought to be circumscribed by Security Council Resolution 1244 (1999) and by the Constitutional Framework that had been adopted under its authority. Serbia's understanding of Resolution 1244 (1999) was presumably informed by recollections of the circumstances of the conclusion of the armed conflict with NATO in 1999. The government of Slobodan Milošević, then in power, may well have assumed that there existed an undertaking in relation to the continued territorial unity of the then Yugoslavia. Other states, too, would be strongly attached to the maintenance of that principle. Accordingly, there might have been a sense that the Court, traditionally a conservative body, would feel constrained to rule the declaration of independence unlawful.

Of course, even if the declaration of independence had been unlawful by virtue of limited authority enjoyed by the PISG, this would not necessarily mean that Kosovo's statehood would be unlawful as well. It would still be an effective entity exhibiting all the criteria of statehood that had, in addition, already attracted a respectable number of recognitions. However, it was presumably thought that a finding determining the declaration of independence unlawful would imply that its statehood was non-existent or tainted. This might have returned Kosovo to the status of an entity under international administration – a status that could then only be changed through a positive decision of the UN Security Council. Serbia would continue to control that decision by virtue of its political alliance with Russia, a permanent member of the Council. Hence, Kosovo would have to resume negotiations on status and continue these until Serbia was ready to agree a settlement.

After an adverse finding by the Court in relation to Kosovo's claim, the UN General Assembly might have been mobilized by Serbia to call upon the Security Council and the Special Representative of the UN Secretary-General in Kosovo to declare the declaration of independence invalid. While the Security Council would most likely have been able to withstand such pressure, the UN Secretariat would have found itself in a very difficult situation. The Court, after all, is the principal judicial organ of the United Nations and its servants would be expected to act according to its pronouncements.

As it turned out, the narrow focus of the question addressing only the authority of the PISG implied a serious risk. If the Court found (as it did) that the declaration of independence did not emanate from the PISG, or that it was not constrained by Resolution 1244 (1999) or the Constitutional Framework, even if it did emanate from the PISG, then that would end the matter. Just as a finding of unlawfulness of the declaration would have been expected to taint Kosovo's claim to statehood, a failure to make such a finding would operate the other way. Anything other than a clear and express finding by the Court that the declaration was not in accordance with international law would be internationally understood as confirmation of Kosovo's claim to statehood. In other words, unless the declaration was clearly ruled unlawful, all other outcomes would favour Kosovo.

Of course, it was known that Kosovo would not disappear, or undeclare its statehood, even if there had been an adverse finding by the Court. Similarly, the 69 states that had recognized Kosovo when the case was argued would have been unlikely to reverse that decision, even in view of a clear determination of the Court that the declaration of independence had been adopted unlawfully. But few would have expected such an unambiguous finding. The Court has in the past been reluctant to come to views that are not in accordance with realities on the ground, and that are consequently at risk of being ignored in practice. Instead, it was thought that the Court might offer a somewhat ambiguous pronouncement in view of some of the legal uncertainties of the case. But even an ambiguous result would have been widely seen as a victory for Kosovo, and a rejection of Serbia's position, as Kosovo's declaration of independence would not have been declared unambiguously unlawful.

It is not easy to see why Serbia did not frame the case in a way that would raise additional issues at Kosovo's expense. Kosovo's position might have been quite vulnerable on some points. As will be discussed further below, the dominant legal view would hold that it is not necessary for Kosovo to have a positive right to self-determination in order to obtain statehood. Statehood is a matter of fact, provided it is not brought about in violation of jus cogens obligations. However, through the phrasing of the question, it might nevertheless have been possible to place upon Kosovo the burden of proving a self-determination entitlement. In analogy to the Canadian Supreme Court reference relating to Quebec, one might have also asked whether Kosovo was entitled, by virtue of the right to self-determination, to secede unilaterally.Footnote ² Again, a finding that it had no such entitlement would not necessarily mean that Kosovo is not a state. But such a finding would have been widely seen to undermine Kosovo's claim to statehood.

Kosovo might have found it difficult to demonstrate a positive entitlement to statehood by virtue of the right to self-determination. As was noted above, its claim to constitutional self-determination based on its status as a quasi-republic under the 1974 Yugoslav constitution had hitherto been controversial, as was the new or revived doctrine of remedial self-determination. A conservative Court might have found it difficult to muster a majority in favour of significant legal innovations in relation to these issues, although there was still the argument that the case of Kosovo was sui generis.

It might also have been possible to avoid the possibility of the Court declaring the case sui generis, and thus not regulated by general international law as ordinarily understood. Referring more specifically to the legal regime applicable to Kosovo, the General Assembly might also have asked whether the final status settlement foreseen in Resolution 1244 would require the consent of Serbia and/or endorsement by the Security Council. Again, as is revealed in some of the dissenting opinions, Kosovo might have found it difficult to address that issue effectively.

Some of the dissenting judges have criticized the Court for failing to consider these issues. Serbia, too, has asserted that the Court did not address the actual questions underpinning the request. This included the question of self-determination, the consequences of the declaration of the independence, and the issue of recognition. However, it seems strange to criticize the Court for not answering the questions it was – with great deliberation – not asked. Having failed to frame the question differently may have been a miscalculation on the part of Serbia, but this failing is hardly attributable to the Court.

Of course, Judge Simma and others are right to point out that it would have been helpful to learn more about the post-colonial law on self-determination, statehood, and recognition.Footnote ³ But the Court was not acting as an agency mandated to illuminate legal developments in the abstract. It does not see itself as an agency dedicated to advancing the law or its scholarly discussion. The jurisdiction of the Court in this matter was shaped by the request, and so was the – narrow – focus of its enquiry.

The wish of the Court to dispose of the case in the most direct way may also have been rooted in a further factor. The Kosovo question represents the latest in a series of highly politically charged actions in the International Court of Justice. While these proceedings raise issues of international law, they are, in reality of course, meant to advance the interest of a particular state or group of states in relation to contested issues of international politics. This tendency was inaugurated by the Nicaragua case, brought against the United States amidst allegations of armed intervention in Central America. In other contentious cases, brought by one state against another, this trend was carried forward in the clutch of ‘use-of-force’ cases (United States–Iran, Congo–Rwanda, Congo–Uganda, Congo–Burundi, Serbia–NATO states), and genocide or racial discrimination cases (Bosnia and Herzegovina–Yugoslavia, Croatia–Yugoslavia, Georgia–Russia). The Lockerbie case (United States/United Kingdom–Libya) was also conducted in a highly politically charged environment. Similarly, in terms of advisory opinions, the Court has had to address very controversial issues of both law and policy when considering, for instance, the legality of the threat or use of nuclear weapons, or of the construction of the ‘Wall’ by Israel.

The Court has rightly and consistently held that any issue brought before it, however political it may be, can in the end be addressed and decided as a matter of law.Footnote ⁴ But many of these cases are characterized by the fact that they address issue areas of considerable uncertainty in international law. For instance, the Nuclear Weapons Opinion was brought precisely because states had been unable to agree a specific prohibition in relation to nuclear weapons, or a universally agreed regime in relation to their use or threat of use. Hence, the Court felt considerably discomfited when being asked to resolve, as a matter of law, a question that the states themselves had been unable to settle.

As a court of law, of course, the ICJ is meant to interpret legal obligations, rather than create them – obligations that, in international law, still flow mainly from the consent and legally relevant actions of states. If the states have been unable to settle an issue, the Court will feel very uneasy about attempting to do it for them.Footnote ⁵ Accordingly, the Court chose to address the nuclear weapons affair in a way that confirmed core principles of international law that are indeed universally agreed along with their application to nuclear weapons, while avoiding a definite pronouncement on whether or not the threat or use of nuclear weapons would be permitted in any circumstance.Footnote ⁶

The request for the Kosovo AO falls into this category of cases. Clearly, Serbia was pursuing a political agenda in bringing the action in the UN General Assembly. Clearly, states were divided in relation to the Kosovo issue as a matter of policy. But more critically, in terms of law, the relevant legal principles were also to some extent uncertain or in a state of flux. This concerns in particular the application and the meaning of the concept of self-determination outside the colonial context. Indeed, the Court itself noted this fact. It would have been unrealistic to expect the Court to ‘resolve’ this issue, especially if the question posed did not require it. Hence, the application of judicial economy, or Occam's razor, in deciding the case through the shortest possible route of legal argument is entirely unsurprising.

2. Assuming the Lotus position?

The final preliminary issue to be considered relates to the phrasing of ‘in accordance with international law’. Whether an activity has to be permitted by international law, be in accordance with it, or not be prohibited by international law was a key issue in the nuclear weapons proceedings. In its opinion, the Court reversed the burden of proof implied in the question put by the General Assembly (permitted), arguing that international law was instead a system of rules framed in terms of rules of prohibition. In other words, that which is not prohibited is permitted. Accordingly, it analysed whether there existed any legal rules prohibiting the threat or use of nuclear weapons.

This approach, based on the famous Lotus case from the League of Nations era, has been severely criticized as being out of step with a more modern or even postmodern view of the international legal order. Judge Simma, in particular, has criticized such an ‘anachronistic, extremely consensualist vision of international law’.Footnote ⁷

According to that more advanced view, the question of permission/prohibition has to be addressed with specific reference to the issue area at hand. For instance, a state engaging in an ultra-hazardous activity may indeed be required to establish a legal entitlement to pursue this course of action.

In this instance, the question of whether or not an entity seeking secession must produce a legal licence under a permissive rule of international law was a key consideration. If secession is in principle prohibited in international law, then only entities qualifying under the exceptional doctrine of self-determination (in the sense of secession) can do so lawfully. Hence, the seceding entity would have to prove that it can invoke that doctrine. Otherwise, the ‘rule’ of territorial integrity (or, more accurately, territorial unity) would prevail.

The dominant legal view amongst scholars has, however, been that the ‘rule’ of territorial integrity applies to relations among states. International law is neutral on the issue of possible secession.Footnote ⁸ Whether statehood emerges is a matter of fact – it depends on whether or not the entity in question manages to obtain effectiveness. This does not render self-determination irrelevant. If an entity enjoys a colonial entitlement to self-determination, it is positively entitled to statehood (if it chooses that option) and many legal benefits flow during its struggle towards that end. An entity that cannot rely on a recognized self-determination claim remains legally unprivileged until it has actualized its claimed statehood. But it is not an unlawful entity. The exceptions are entities that come into being in violation of jus cogens rules. These are ‘non-states’, even if fully effective, by virtue of the offence against core rules of the international system that brought them into being (use of force, genocide, ethnic cleansing, apartheid, etc.).

The Court followed the dominant legal view where issues of statehood are concerned. It found that it was called upon ‘to determine whether or not the declaration of independence was adopted in violation of international law’.Footnote ⁹ That is to say, it framed the issue in terms of a rule of prohibition. As the Court confirmed when considering the rule concerning territorial integrity, there is no a priori stance against a possible secession in international law, at least inasmuch as the seceding entity is concerned. Only states are precluded from violating the territorial integrity and political independence of other states according to Article 2(4) of the UN Charter.Footnote ¹⁰ In view of the specific construction of international law as it relates to unilateral statehood, rather than a blanket endorsement of the outdated Lotus principle, this approach was appropriate in this particular context.

3. Territorial integrity

This approach was not only important in relation to this case, and the burden of proof imposed upon the parties. It has important implications that will be of wider significance, although this fact is somewhat disguised by the fact that the Court appears only to deal with the issue of the lawfulness of declarations of independence. The Court finds that throughout modern history, practice of states as a whole does not suggest that an act of promulgating the declaration of independence is contrary to international law. Even where declarations of independence were adopted during the second half of the twentieth century outside the colonial context, the Court notes that there is no trend pointing towards ‘the emergence in international law of a new rule prohibiting the making of a declaration of independence in such cases’.Footnote ¹¹

Of course, one might argue that this assertion is somewhat facetious. While the Court is ostensibly addressing declarations of independence, it would be difficult to ascertain their legal implications, or lawfulness, without at the same time pronouncing on the issue of unilateral secession. To separate the two issues would appear artificial. The Court recognizes this, when it engages the contention that ‘a prohibition of unilateral declarations of independence is implicit in the principle of territorial integrity’Footnote ¹² by finding instead that ‘the scope of the principle of territorial integrity is confined to the sphere of relations between states’. While this conclusion allows the Court to declare that accordingly there is no prohibition of declarations of independence, the same would apply to the phenomenon of unilateral secession. If the rule of territorial integrity does not inhibit the one, it also cannot constrain the other. Both operate in relation to non- or pre-state entities that are thus not addressed by the rule of territorial integrity.

The Court also pointed to circumstances under which the Council had expressly declared unlawful certain declarations of independence or, in fact, attempted secessions (Southern Rhodesia, Northern Cyprus, Republika Srpska):

This pronouncement is highly important, as it resolves something of a clash of views between states’ pronouncements on the one hand and actual state practice and scholarship on the other. Governments have never tired of adopting texts seeking to preserve the territorial integrity, or sometimes expressly the territorial unity, of the states they represent. Indeed, there has been the occasional suggestion that the jus cogens status of the prohibition of the use of force against the political independence and territorial integrity of states (Article 2(4) of the UN Charter) also extends to the protection of the unity of states from threats from within. Hence, any state obtaining independence without the consent of the central government would not only offend against international law, but it would be a legal nullity, because its very existence conflicts with a rule of jus cogens. The dominant view in scholarship, on the other hand, has been that there is no prohibition of secession in international law, either in jus cogens or in general custom, that is addressed at the secessionist unit. Instead, the relevant rules preclude external intervention or the cross-border use of force in relation to secessionist conflicts. Whether or not a secessionist unit matures into a state depends principally on the extent of effectiveness and especially the permanence it achieves. This latter position has now been decisively endorsed by the Court.

Some have countered this view by asserting that it would render the right to self-determination meaningless. If states can be created lawfully without invoking such a right, why would it need to exist at all? But this view represents a fundamental confusion in the understanding of the right to self-determination. Even in the absence of a blanket prohibition to unilateral secession, from which it would be an exception, the right does have important consequences. In the context of colonial self-determination, it establishes a positive entitlement to statehood for the population in question. It generates pre-state legal personality for the self-determinating entity; protects it from repression, alienation of territory and resources, etc.; and provides access to international support that would otherwise be considered incompatible with the rules of non-intervention and possibly the prohibition of the use of force. In that context, self-determination remains a very powerful entitlement indeed, irrespective of the admission that unilateral secession can also take place in other contexts. Where constitutional self-determination is concerned, recent practice has also established a range of entitlements that flow from that right.

Where there is no positive entitlement to self-determination in the sense of secession, statehood is not precluded – it is simply unprivileged beyond the application of human rights and possibly humanitarian law to its population. The entity will need to exhibit the objective and subjective criteria of statehood and remains exposed to attempts by the predecessor state to reintegrate it until its status has been clarified. Unhappily, this process has generally involved armed contestation, often with disastrous results for the relevant populations (Katanga, Biafra, Southern Sudan until the 2005 settlement, Sri Lanka, etc.).

The Court took note of the revival of arguments claiming a third level of the right to self-determination in the sense of secession. In addition to colonial and constitutional self-determination, this concerns remedial secession. The Court itself took no position on the issue, other than noting that there are ‘radically different views’ in relation to the existence of such a right, and that there is a ‘sharp difference of views’ as to its circumstances of application.Footnote ¹⁴ It would be wrong to claim that the Court has therefore denied the existence of this right, given the requirement in international law of widespread and uniform practice and opinio juris, which is apparently not met. Instead, it is a claimed or contested right put forward by some states – a right that may be in the process of emerging, but that has in any event not yet been consolidated. In fact, it is likely that the invocation of the doctrine of remedial secession by a significant number of states in the pleadings in this case will be seen to have strengthened it significantly, despite the objections of others. Moreover, one would need to ask whether the standards for the creation of customary international law are in fact relevant when we are instead dealing with a process of discovery in practice of new ways of rendering operational the right to self-determination – a foundational right or structural principle that underpins the international legal order and that does not need to be established afresh through a new rule of custom.

One may therefore conclude that in confirming that there is no prohibition of a declaration of independence in general international law, the Court has also confirmed that there is no prohibition of unilateral secession. It was left for the Court to determine, next, whether Resolution 1244 (1999) established a more particular prohibition, specifically in relation to Kosovo.

4. Resolution 1244 (1999)

Before asking whether Resolution 1244 (1999) actually includes an express prohibition of independence, or of a declaration of independence, it is necessary to ask whether such a prohibition can actually exist. Presumably, a balance needs to be established between the dominant function of the UN Security Council in relation to international peace and security and the jus cogens entitlement of peoples to self-determination. Where such an entitlement exists (at least in classical, colonial circumstances), one presumes that the Council could only defer its implementation, but not displace it. At the other end of the spectrum, it is clear that the Council can reflect the consequences of jus cogens infractions in pronouncing – negatively – on resulting statehood claims (Katanga, Southern Rhodesia, Bantustans, Northern Cyprus, Nagorno-Karabakh, Srpska). But does the Council have the legal power to determine, by virtue of a Chapter VII resolution, that a secessionist entity that does not offend against jus cogens cannot be a state?Footnote ¹⁵

Clearly, as the Kosovo case confirms, the Council has the power to address itself to non-state actors (for instance, the KLA in Kosovo in terms of secessionist movements, or the Khmer Rouge or UNITA in another context,). It can also guarantee settlements achieved by the parties to a self-determination dispute, ruling out subsequent challenges to it (Bosnia and Herzegovina, possibly Cyprus if a settlement is reached). But would we expect a binding determination in other instances? Clearly, the Council has repeatedly confirmed its preference for the continued territorial integrity of existing states. However, the relevant resolutions tend to have the air of a non-binding recommendation (Iraq, Darfur, Macedonia, Somalia, previously Georgia).

Moreover, in these kinds of instances, the language tends to reflect Article 2(4) of the Charter – territorial integrity mostly, rather than continued unity. As was already noted, such findings are addressed at the international layer – at other state actors, rather than the secessionist entity. Accordingly, when balancing the claim of a population to reconstitute itself as an independent state against considerations of international peace and security outside the colonial context, one would expect at least three elements: (i) a specific prohibition of statehood that is (ii) expressed in a Chapter VII resolution and (iii) directly and specifically addressed to the seceding entity. Such practice is rare, but not unknown (Southern Rhodesia, Cyprus, Srpska). Resolution 1244 (1999) does not meet this threshold. It therefore does not rule out statehood as a matter of Chapter VII obligation. This finding is consistent with the flow of events in this instance.

When addressing the situation in Kosovo before the armed confrontation of 1999, the Council sought a negotiated settlement leading to meaningful or wide-ranging self-government for Kosovo, respecting the territorial integrity of the FRY (Resolutions 1160 and 1199). The Hill negotiations conducted over the summer of 1998, followed by the last-ditch attempt at a settlement at Chateau Rambouillet in February 1999, aimed to implement this mandate, at least for an interim period, after which the issue of Kosovo's status might be addressed again.

After the conflict, which resulted in the wholesale displacement of most of Kosovo's ethnic Albanian majority population by Serbian forces, the Council took a different approach.

In Resolution 1244 (1999), it merely reaffirmed the ‘commitment of all Member States to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia and the other States of the region, as set out in the Helsinki Final Act and annex 2’ (emphasis added). There is therefore no injunction against independence addressed at Kosovo, an entity that was not a state then, and is not a member state even now.

In its preamble, the resolution notes the call in previous resolutions for substantial autonomy and meaningful self-administration for Kosovo. However, when rendering this operational in the mandatory elements of the resolution, this is in fact applied only for the period of international interim governance. In particular, OP 10 authorizes ‘an international civil presence in order to provide an interim administration for Kosovo under which the people of Kosovo can enjoy substantial autonomy within the Federal Republic of Yugoslavia’.

OP 11 decides that the main responsibilities of the international civil presence will include:

Annex I, reproducing the G8 Foreign Minister Statement at Petersburg of 6 May 1999, similarly restricts the application of autonomy and the preservation of the territorial integrity of the then Yugoslavia to an interim arrangement:

Similarly, Annex 2 merely provides for:

Hence, the confirmation of substantial autonomy taking into account the Rambouillet accords and territorial integrity of the FRY in the resolution and Annexes 1 and 2 only applies in relation to the period of interim administration. Moreover, there is no express prohibition of independence in the operative parts of the resolution. There is also no implied prohibition of independence through a reference to other instruments. The reference to the Helsinki accords, often taken to be a pointer in the direction of territorial integrity in the preamble of Resolution 1244 (1999) is unspecific, related to the position of member states rather than the UNSC. It is not restated in the annexes to which the resolution refers. Moreover, the Helsinki Final Act itself contains a balancing of the right to territorial integrity and other principles, including human rights, etc., and cannot be taken to equate a clear-cut injunction ruling out potential statehood.

The provisions relating to a final settlement instead confirm that the resolution is neutral where the final status of Kosovo is concerned. In OP1, the Council decides that a political solution to the Kosovo crisis shall be based on the general principles in Annex 1 and as further elaborated in the principles and other required elements in Annex 2. However, as was noted already, both annexes only address the interim administration. OP 11(e) refers to facilitating a political process designed to determine Kosovo's future status, taking into account the Rambouillet accords. There is no reference to any criteria other than Rambouillet (such as the conditions of Annex 2). Rambouillet provided that:

It is true that this paragraph is not exactly clear. There is a reference to the Helsinki Final Act, but it is balanced by an invocation of the will of the people as a basis for a settlement. Hence, the ICJ concluded in this instance that ‘the specific contours, let alone the outcome, of the final status process were left open by Security Council Resolution 1244 (1999)’.Footnote ²⁰ Accordingly, there is no specific prohibition of independence, or a declaration of independence, contained in mandatory, Chapter VII, resolutions addressed to Kosovo or its population.

5. Subsidiary instruments

The Constitutional Framework governed the activities of the PISG. It was adopted as an UNMIK regulation. As such, its legal basis is self-referential Regulation 1, assigning to the SRSG all public powers in Kosovo, based on Resolution 1244. The Constitutional Framework expressly refers to the limitations set by 1244 for the interim period. In its preamble, it affirms ‘that the exercise of the responsibilities of the Provisional Institutions of Self-Government in Kosovo shall not in any way affect or diminish the ultimate authority of the SRSG for the implementation of UNSCR 1244(1999).

According to Chapter 2, Section (a), the Provisional Institutions of Self-Government and their officials shall ‘exercise their authorities consistent with the provisions of UNSCR 1244(1999) and the terms set forth in this Constitutional Framework’.

Chapter 12, addressing the authority of the Special Representative of the UN Secretary-General, provides that:

However, the preamble of the Constitutional Framework also specifically reserves the final status process:

Indeed, the express reference to the will of the people, previously only incorporated indirectly by reference to the Rambouillet accord, is an important addition. It is therefore clear that neither Resolution 1244 (1999) nor the implementing Constitutional Framework precluded independence as the outcome of the final status process. Instead, the Constitutional Framework, adopted under the authority of the Security Council, strengthens the expectation of a negotiating outcome in accordance with the overwhelming wish of the population – independence.

6. Subsequent practice: the status process

The Court confirmed that subsequent practice is an important element in the interpretation of Security Council resolutions. As the Court indicated:

The UN administration in Kosovo, acting under the guidance and authority of the Council, launched and carried out a policy of ‘standards before status’ for a number of years. This policy expressly provided for the possible option of independence in the status process, in accordance with Kosovo's demonstrated ability of self-rule. In June 2005, the Council authorized commencement of a ‘political process to determine Kosovo's Future Status, as foreseen in Security Council Resolution 1244 (1999)’.Footnote ²⁴ The guiding principles of the Contact Group (which included Russia) that set the framework for the ensuing talks restated the requirement that any settlement had to be in accordance with the will of the people of Kosovo. There was no restriction of the negotiating mandate to options short of independence imposed by the Council or the Contact Group. In fact, throughout, independence was one of the options for discussion. Intensive negotiations were held at Vienna for close to two years. The outcome was the Ahtisaari settlement proposal.Footnote ²⁵ The proposal itself did not expressly refer to statehood, but it equipped Kosovo with all the elements of statehood. Moreover, the UN Special Envoy recommended supervised statehood to the Council as the only viable option for a solution of the Kosovo issue when presenting his proposal to the Council, a view endorsed by the UN Secretary-General.Footnote ²⁶

The Security Council itself undertook a fact-finding mission, determining that there was no prospect for an agreed settlement. Similarly, a further negotiating effort of a United Nations-mandated Troika consisting of senior EU, US and Russian envoys failed to generate agreement.

It has been argued that there existed no authority to impose a settlement upon the parties. Instead, Serbia's consent for any outcome was required. But the Council had previously endorsed the negotiating modalities established by the Contact Group. This included the provision that the process ‘cannot be blocked and must be brought to a conclusion. . . . and that the decision on the final status should be endorsed by the Council’.Footnote ²⁷ Clearly, progress had been blocked and negotiations had been exhausted. There was no requirement for a Council decision on status, instead mere endorsement that ‘should’ occur.

The question is what happens if status talks remain fruitless? The Quebec Supreme Court reference is of assistance in this respect.Footnote ²⁸ In that case, the Court had held that an entity may seek independence, but it cannot do so unilaterally. Instead, it has to engage in a negotiating process leading to independence. However, if this process is frustrated or blocked by the central government, then independence may be proclaimed unilaterally.

Moreover, in this instance, the decision on independence was not quite a unilateral decision. It resulted from the United Nations-sponsored process, and fully implemented the result of that process, as certified by the UN Special Envoy, and endorsed by the UN Secretary-General. In fact, Kosovo adopted the full negotiating result, in formally incorporating it into its declaration of independence and its Constitution. Accordingly, Kosovo fully accepted all the terms of an independence settlement that had been judged appropriate by the best-placed international agency – in this case, the United Nations itself, acting through UNOSEC, the office of the Special Envoy.

It has been argued that the declaration of independence represents an unlawful and unprecedented act of a non-state entity, removing itself from the application of a Chapter VII legal regime imposed upon it by the Council. However, the declaration of independence enacts and implements the result of the final status process carried out under the terms of Resolution 1244 (1999), fully in accordance with the recommendation of the UN Special Envoy and the Secretary-General. It therefore implements the terms of the resolution, rather than overturning it. Moreover, all parties, including Kosovo and Serbia, are in agreement that Resolution 1244 (1999) still applies. Its implementation is being gradually adjusted to meet the new realities, in full consultation with the Security Council. Accordingly, it is difficult to claim that the declaration of independence represents an unacceptable challenge to the authority of the Council.

This result is reflected in the fact that the UN Special Representative in Kosovo did not annul the decision to declare independence. Nor was such an annulment demanded by the Security Council. While this latter fact is due to the application of the veto, the same would need to be said in relation to the failure of the Council to endorse the Ahtisaari package.

7. Who were the authors of the declaration of independence?

The question, as posed by the General Assembly, identifies the PISG as the author of the declaration of independence (‘by the Provisional Institutions of Self-Governance’). At least according to the view of Serbia and states supporting its position, that issue in itself would determine the outcome of the case, given the restrictive legal framework imposed upon the PISG by Resolution 1244 (1999) and the Constitutional Framework for Kosovo. In essence, this would have meant that the Court would have been invited to address the question ‘Was the unlawful declaration of independence unlawful?’. As the Court put it, somewhat less directly:Footnote ²⁹ ‘The identity of the authors of the declaration of independence . . . is a matter with is capable of affecting the answer to the question whether that declaration was in accordance with international law.’

The Court concluded that ‘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’.Footnote ³⁰ Noting that that question had been phrased by Serbia, the sole sponsor of the resolution, it found that ‘the Court must be free to examine the entire record and decide for itself whether that declaration was promulgated by the Provisional Institutions of Self-Government or some other entity’.Footnote ³¹

This finding confirms the independent exercise of the judicial function by the Court. The Court was unwilling to be bound by the General Assembly, or the sponsor of the resolution, to a particular answer. Instead, it insisted that its own reasoned judgment would have to determine the legal issue that had been put. This attitude, routinely observed by the Court and inherent in its function as a judicial body, rather than an executive agency, triggered a few strong, almost angry dissents, for reasons that are not easy to understand.Footnote ³²

Exercising its independent function, the Court considered whether or not the declaration of independence was in fact adopted by the Kosovo Assembly – an element of the PISG. There were some indications that this had been the case. Kosovo politicians referred to the Assembly when the declaration was adopted. Initially, it appears that the Kosovo authorities treated the meeting as a Special Session of the Assembly, and the UN Special Representative of the Secretary-General referred to the act in his initial report as one adopted by the Kosovo Assembly.

On the other hand, the Court noted that the declaration referred to ‘We, the democratically elected leaders of our people’ as its authors. The declaration was adopted in deviation of the procedure governing Assembly meetings. It was not published in the official Gazette or forwarded to the UN administration for approval, as would be the case with the legislative acts of the Assembly.

While previous decisions of the Kosovo Assembly had in fact been overturned by the UN Special Representative, including one proclaiming Kosovo's sovereignty, this was not the case in this instance. Clearly, the intervening process of prolonged negotiations, and the fact that Kosovo was implementing the negotiating result through the declaration of independence, had changed the situation, along with the question of whether or not the people's representatives were acting as the Kosovo Assembly.

The Court saw in this action evidence of the view of the Special Representative that he:

More fundamentally, the Court acknowledged that a declaration of independence will always and necessarily step out of the legal order from which it seeks to separate the declaring entity. It is not therefore an act that can be sensibly evaluated according to that legal order:

While it is possible to criticize the Court's finding that the authors of the declaration were not acting as members of the Assembly, this important finding disposes of the issue in any event. Whether or not the freely elected representatives of the people of Kosovo acted through the medium of the Assembly, their action could no longer be evaluated according to the constitutional framework. This finding links up with, and confirms, the view of the Court that the lawfulness of a declaration of independence, and unilateral secession, in international law is a different matter from its appreciation from the perspective of the relevant state and its domestic legal order.

8. Reception of the Opinion by the General Assembly

Within a week of the rendering of the Advisory Opinion on Kosovo by the International Court of Justice, Serbia produced a draft resolution for adoption by the UN General Assembly.Footnote ³⁵ The draft took note of the opinion. However, this acknowledgement came with strings attached. The text also expressed awareness of the fact that the parties had not reached agreement ‘on the effects of the unilateral declaration of independence of Kosovo from Serbia’. The Assembly, ‘mindful of the fact that a unilateral secession cannot be an acceptable way for resolving territorial issues’, would have called upon the parties to find a ‘mutually acceptable solution for all outstanding issues through peaceful dialogue, in the interest of peace, security and cooperation in the region’.Footnote ³⁶

Serbia issued a position paper in support of its draft. The paper argued that the Court had not endorsed Kosovo's claim to be a state, or that its declaration of independence was a unique case. ‘Moreover, the Court did not affirm the Province of Kosovo's right to secession from the Republic of Serbia.’ Accordingly, Serbia argued that Kosovo ‘remains a territory subject to an international regime, whose final status is undetermined. It is therefore not an independent, sovereign state’. Rather, the General Assembly should now focus on the consequences and implications of Kosovo's unilateral declaration for the international system. ‘It is our profound belief that unilateral attempts at secession must never be automatically recognized.’Footnote ³⁷

However, there was no appetite in the General Assembly to endorse Serbia's wish for a reopening of the Kosovo status issue. That matter had been the subject of United Nations-sponsored negotiations, conducted for some two years under the authority of the Security Council. In complying with Serbia's request for an Advisory Opinion, there was a general sense that Serbia had been given by the General Assembly its day in court. Having failed to obtain an adverse finding in relation to Kosovo's claim to, or declaration of, independence, Serbia was now left internationally isolated. In the end, Belgrade had to withdraw its draft. Instead, it joined a group of European Union co-sponsors of an alternative text, which merely welcomed the readiness of the European Union to facilitate a process of dialogue between the parties. That dialogue ‘would be to promote cooperation, achieve progress on the path to the European Union and improve the lives of the people’.Footnote ³⁸ Hence, there was no longer any reference or even implication relating to a reopening of the status issues, or a finding that unilateral secessions cannot ever be admitted. Instead, practical issues relating to the co-operative management of relations between the parties are to be addressed.

This result, achieved with the active co-sponsorship of Serbia, and of EU states that had argued in favour of Serbia's position during the advisory proceedings, represents a rather astonishing provisional cap-stone to the saga of Kosovo's struggle for independence.Footnote ³⁹ While it is unlikely that Serbia and some other states will recognize Kosovo in the near future and UN membership for Kosovo will remain an uncertain prospect, this decision of the General Assembly was adopted by consensus. True, some states emphasized their attachment to the doctrine of territorial unity upon adoption of the resolution.Footnote ⁴⁰ But their number was small, and there is no disputing that the resolution represents a first step in the regularization of Kosovo's international relations – the opposite of what was intended by Serbia when the request to the Court was put. This instant adaptation of practice to the outcome of the case greatly adds to its significance in clarifying wider aspects of international law.