The conclusion reached by a majority of ten to four judges of the International Court of Justice (the Court) in a concise Advisory Opinion (Kosovo AO) rendered on 22 July 2010, ‘that the declaration of independence of Kosovo adopted on 17 February 2008 did not violate international law’,Footnote 1 could simply be read as a pronouncement that the unilateral declaration of independence (UDI) amounts to nothing more than ink on parchment: a sheet of paper, signed by a group of people, and about which international law could not care less. As James Crawford argued during the oral hearings on behalf of the United Kingdom, the UDI could be viewed as a mere utterance made by ‘devoted but disgruntled’ citizens of a country that produces no legal effects,Footnote 2 for ‘[a] declaration issued by persons within a State is a collection of words writ in water; it is the sound of one hand clapping’.Footnote 3
Such a conclusion can only plausibly be drawn in relation to Kosovo if the UDI is viewed abstractly, completely removed from the legal context in which it was issued. James Crawford's argument holds water for the illustration he invoked before the Court, namely himself, an Australian citizen, declaring the independence of South Australia in early December 2009. However, the situation is dramatically different if the collective of persons issuing a UDI constitutes a subsidiary body of the United Nations Security Council (UNSC), and where the actions of these persons were governed at the critical date not only by general international law, but by lex specialis, established in the legally binding provisions of a UNSC resolution. The ‘devoted and disgruntled’ authors of the UDI in the case of Kosovo cannot express their intention to secede territory from a member state of the United Nations in an international legal vacuum, in contrast to the lone albeit distinguished South Australian.
The Kosovo AO rendered by the principal judicial organ of the United Nations is unsettling. The reasoning employed by the Court raises concerns about fundamental aspects of international law, the UN collective security system, the exercise of the Court's advisory jurisdiction, and the good administration of justice in general. This Kosovo AO stands in sharp contrast to the stalwart voice of international law vocalized by the Court in the advisory opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (the Wall AO),Footnote 4 and it echoes back to the feeble murmur of international law in the unsatisfactory conclusion reached by the Court in its advisory opinion on the Legality of the Threat or Use of Nuclear Weapons (Nuclear Weapons AO),Footnote 5 which was decided on a knife's edge by the casting vote of the President. It is open to conjecture why, on the one hand, the Court strictly applied international law in the Wall AO, and why, on the other hand, it failed to do the same in both the preceding Nuclear Weapons AO and the subsequent Kosovo AO. This article will not speculate about the reasons underlying these differences.
This article focuses on the reasoning employed by the Court with respect to most formidable legal impasse of the accordance with international law of the UDI: the applicable lex specialis that applied, and which continues to apply to Kosovo,Footnote 6 as established in UNSC Resolution 1244 (1999) (UNSCR 1244), and developed in a detailed legal framework. The Court's analysis of the lex specialis occurs in the last ten pages of the Kosovo AO, and it cannot be understood in isolation from two preliminary issues: the scope of the question that the Court was asked to address and the identity of the authors of the UDI.
Section 1 addresses the narrow approach adopted by the Court in answering the General Assembly's (UNGA) question. The Court's decision only to address whether or not the UDI violated international law means that the UNGA's question on the ‘accordance with international law’ of the UDI has partly been left unanswered. Section 2 examines the basis upon which the Court grounded its finding that the authors of the UDI were not the Provisional Institutions of Self-Government (PISG), but rather were persons acting outside the legal framework of the interim administration. Section 3 examines the interpretative approach taken by the Court with respect to UNSCR 1244. The Court went to great lengths to provide some general guidance on the interpretation of UNSC resolutions in the Kosovo AO.Footnote 7 However, an analysis of the Court's interpretative approach vis-à-vis UNSCR 1244 and, in particular, its disregard for the guarantees of respect of the territory integrity of Serbia contained therein reveal that the Court does not follow its own guidance in practice.
1. Scope of the question the Court was asked to address
The ‘clearly formulated’, ‘narrow and specific’ questionFootnote 8 that the Court was asked to address by the UNGA in Resolution 63/3 was the following: ‘Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?’Footnote 9 The Court narrowed the scope of this question on the ‘accordance with international law of the UDI’, and it confined its analysis to only addressing whether, in its view, the UDI violated international law. The Court thus read the UNGA's question on whether ‘the UDI was in accordance with international law?’ as ‘was the UDI unlawful?’. It considered that it only needed to determine ‘whether the declaration of independence violated either general international law or the lex specialis created by resolution 1244 (1999)’.Footnote 10 These are very narrow avenues of inquiry to pursue in light of the question that the Court was asked to address. Non-accordance with international law encompasses the question of illegality, and the Court did not err in deciding to address the illegality of the UDI. However, ‘accordance’ or ‘non-accordance’ also encompasses an examination of whether the issuance of a UDI had an international legal basis.
It was open to the Court to examine the possible legal grounds under international law that may be argued to have authorized the UDI. In contemporary international law, practice reveals that the creation of states is the result of the exercise of the right to self-determination and – outside the cases of dissolution and unification – the separation of part of an existing state with its consent.Footnote 11 Serbia has not consented to the separation of the province of Kosovo from its territory; thus, the most pertinent legal ground for the Court to discuss vis-à-vis the ‘lawfulness’ of the UDI was a purported right of independence exercisable by a so-called ‘Kosovar people’. Indeed, most of the participants in the advisory proceedings discussed the issue of self-determination at great length.Footnote 12 Instead, the Court considered that an examination of the right of self-determination was beyond the scope of the UNGA's question as it had framed it, because it encompassed a consideration of the ‘right to separate from a State’.Footnote 13 Another legal ground that the Court also could have examined in order to determine the ‘lawfulness’ of the UDI was whether the existence of the constitutive elements of a state allowed the authors of the UDI to proclaim their existence as an independent state. However, the Court chose not to address any legal grounds that could have been argued to have authorized the UDI. It considered that it was ‘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’.Footnote 14
Even with respect to the narrow avenue of inquiry that the Court decided to pursue, namely the ‘illegality’ of the UDI, the Court adopted a very limited approach by searching for express prohibitions of declarations of independence, both under general international lawFootnote 15 and with respect to the applicable lex specialis.Footnote 16 In relation to general international law, the Court concluded that ‘general international law contains no applicable prohibitions of declarations of independence’.Footnote 17 This is tantamount to stating the obvious: that there is no explicit rule prohibiting declarations of independence. Not a single participant in the advisory proceedings claimed otherwise. Such an approach allowed the Court to avoid any analysis of the concrete rules that the UDI had infringed, and which were invoked by a number of participants. The Court only addressed – in a few lines – whether the principle of territorial integrity could be applicable to the authors, and it concluded that it could not, since it considered that the principle only applies to inter-state relations.Footnote 18 The Court also failed to examine whether one party to a mediation or negotiation process can unilaterally bring to an end the settlement-of-dispute procedure and attempt to impose its desired solution on the other party.Footnote 19 Moreover, the Court did not examine whether the support of certain states to the authors in the issuance of the UDI would constitute an infringement of the obligation not to interfere in the domestic affairs of another state, and the obligation to respect the territorial integrity of states.Footnote 20
Similarly, with respect to the ‘illegality’ of the UDI in relation to the applicable lex specialis – which, as Judge Bennouna has pointed out, the Court regrettably addresses after, rather than before, an examination of general international lawFootnote 21 – the Court again went in search of an express prohibition from declaring independence contained in UNSCR 1244 and the legal framework developed in line with this resolution, and – unsurprisingly – did not find one. The Court did not address whether the UDI was prohibited because it violated guarantees of respect for the territorial integrity of Serbia contained in UNSCR 1244. Instead, it determined that the authors of the UDI were not acting in their ‘capacity’ as the PISG when they issued the UDI. This concretely meant that although UNSCR 1244 applied to Kosovo at the critical date, the Court reasoned that it was not applicable to the authors of the UDI at the moment that they issued the UDI ‘because the two instruments operate on a different level’.Footnote 22 The Court did not elaborate on the meaning of this passage in the Kosovo AO. Contrary to what the Court seems to be implying, the question of whether Kosovo can or cannot be declared independent falls within the purview of UNSCR 1244, since such a change in the status of Kosovo requires a political process involving Serbia in order to determine the future status of the Serbian province. Moreover, if the ‘instruments operate at a different level’, this means that they coexist. As a matter of course, this is not legally possible, as is reflected in practice. The PISG – the organs exercising self-government as envisaged by UNSCR 1244 – have ceased to act in this ‘capacity’ immediately following the issuance of the UDI, and they now purport to act as the organs of an independent state rather than an interim administration. The Court simply concluded that ‘Security Council resolution 1244 (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 [UDI] did not violate Security Council resolution 1244 (1999)’.Footnote 23
Furthermore, the scope of the question that the Court was asked to address went beyond an examination of both the ‘illegality’ and the ‘lawfulness’ of the UDI. The question put to the Court encompassed – more broadly – the validity/invalidity (in French the efficacité) of the issuance of the UDI by the PISG. A finding that an act was, or was not, ‘in accordance’ with international law does not necessarily imply that an act was lawful or wrongful. Together with the dichotomy of lawfulness/wrongfulness, there is room in any legal system for analysis of the validity or invalidity of acts. An act may be legally ineffectual because it is invalid: null and void ab initio, or voidable. This may be the case for treaties, resolutions of organs of an international organization, arbitral awards, or any other kind of act. A declaration issued by an organ, a plurality of organs, or simply a group of people can be legally analysed through the prism of its validity. However, the Court failed to examine whether the issuance of the UDI was a valid or an invalid act, and thus whether or not it was in accordance with international law.
The Court correctly noted that the question before it ‘does not ask about the legal consequences of that declaration’,Footnote 24 unlike the questions the Court was asked to address in the advisory opinion on Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970),Footnote 25 and the Wall AO.Footnote 26 Therefore, the Court was not called upon to address ‘the validity or legal effects of the recognition of Kosovo by those States which have recognized it as an independent State’.Footnote 27
However, it is striking that the Court did not distinguish between the question that was put to it in UNGA Resolution 63/3 and the question that it was asked to address with respect to the Nuclear Weapons AO: ‘Is the threat or use of nuclear weapons in any circumstance permitted under international law?’,Footnote 28 which the majority of the Court in the Nuclear Weapons AO read as requiring a determination of ‘the legality or the illegality of the threat or use of nuclear weapons’.Footnote 29 The UNGA clearly phrased the two questions in the Nuclear AO and the Kosovo AO very differently. However, the Court read both in the same manner.
The very restrictive approach taken by the majority of the Court in defining the parameters of the UNGA's question means that the question has largely been left unanswered. The majority's approach was criticized by different members of the Court for amounting to an ‘adjustment’ and for being ‘outcome-determinative’ by Vice-President Tomka,Footnote 30 as a reformulation ‘against the intent of the body asking it’ by Judge Koroma,Footnote 31 and as ‘overly restrictive and narrow’ by Judge Yusuf,Footnote 32 and it led Judge Simma to conclude that ‘the Court has not answered the question put before it in a satisfactory manner’.Footnote 33 The self-imposed requirement of the Court to find a ‘specific prohibition’ to the UDI in the applicable lex specialis has resulted in its problematic interpretation of UNSCR 1244. The Court's interpretation of UNSCR 1244 was premised on the identity of the authors of the UDI, discussed in the next section.
2. Identity of the authors of the UDI: a finding based on contradictory claims and unsubstantiated inferences
An analysis of the identity of the authors of the UDI is addressed in detail in the Kosovo AO, and the conclusion reached by the majority of the Court on this point – as Judge Koroma remarked – forms the presumptive basis of the entire Kosovo AO.Footnote 34 The majority of the Court went to great lengths to reason that the authors of the UDI were not acting in the ‘capacity’ of the PISG when they issued the UDI. The basis on which the Court stood when making this finding is analysed below. However, it is important to note from the outset that it is immaterial whether or not the authors were the PISG, as all the actors taking part in the political process in Kosovo were, and remain, bound by UNSCR 1244. Indeed, this resolution sits at the top of the pyramid that forms the international legal structure of the exercise of UN authority over Kosovo. As such, all individuals subject to this legal regime are obligated to respect it. As the British representative stated in the UNSC in 1999, ‘[t]his resolution applies also in full to the Kosovo Albanians’.Footnote 35
In UNSCR 1244, the UNSC decided to create the PISG,Footnote 36 whose task it is to locally govern the territory of Kosovo in a democratic and autonomous manner ‘pending a political settlement’,Footnote 37 in accordance with UNSCR 1244 and the Constitutional Framework.Footnote 38 The PISG must operate within the legal framework established by the UNSC, and its competences – specified in Part V of the Constitutional Framework – must be exercised under the authority of the Special Representative of the UN Secretary-General.Footnote 39 The issuance of a UDI by the PISG – an attempt to alter the international legal status of Kosovo – is unquestionably contrary to UNSCR 1244. It constitutes an ultra vires act defying the entire legal regime established by this resolution because it purports to modify the administration of the territory established by the UNSC, it attempts to bring to an end to the political process established by the UNSC, and it aims at disrupting the territorial integrity of Serbia, which was explicitly guaranteed by the UNSC. The Court simply acknowledged in the Kosovo AO that the UDI was not ‘capable’ of ‘tak[ing] effect within the legal order created for the interim phase’.Footnote 40 This arguably amounts to an attempt to disguise illegality and invalidity as the mere incapacity of an illegal act to produce legal effects ‘within the legal order created for the interim phase’.
In other exercises of its advisory jurisdiction, the Court has clearly delimited the competences of international organizations in situations in which the organization in question did much less than attempt to operate completely outside the legal framework governing its activities. For example, with respect to the World Health Assembly, an organ of the World Health Organization (WHO), the Court held that the Assembly did not have the competence to address the legality of the use of nuclear weapons and therefore it did not have the competence to address a question on this issue to the Court, because ‘the competence of the WHO to deal with [the effects of the use of nuclear weapons on health] is not dependant on the legality of the acts that caused them’.Footnote 41 That the authors of the UDI were the PISG constituted an insurmountable challenge to the accordance with international law of the UDI because the issuance of such a statement by the PISG was an ultra vires act contrary to the legal framework established by UNSCR 1244.
There was an abundance of conclusive evidence that the PISG had issued the UDI. Indeed, the very question put to the Court by the UNGA was: ‘Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?’Footnote 42 In the third preambular paragraph of the same resolution, UNGA Resolution 63/3, the UNGA recalled that ‘on 17 February 2008 the Provisional Institutions of Self-Government of Kosovo declared independence from Serbia’. Despite the unambiguous wording of UNGA Resolution 63/3, the Court considered the question of whether or not it was the PISG that had declared the independence of Kosovo not to have been ‘determined’ by the UNGA.Footnote 43 This finding raises concerns about the evidentiary value of factual qualifications made by the UNGA, in both preambular and operative provisions of its resolutions.
Of course, the Court can depart from the wording of the question it has been asked to address, if ‘the question was not adequately formulated’,Footnote 44 if ‘the request did not reflect the “legal questions really in issue”’,Footnote 45 or ‘where the question asked was unclear or vague’.Footnote 46 However, to reformulate a vague or poorly drafted question is one thing. To challenge a clearly formulated qualification of events by the UNGA, contained both in the question the Court was asked to address and in a preambular paragraph in the same resolution, is quite another. As Judge Koroma stated in his Dissenting Opinion, ‘the General Assembly has clearly stated that it views the unilateral declaration of independence as having been made by the Provisional Institutions of Self-Government of Kosovo’.Footnote 47 Similarly, Judge Bennouna noted in his Dissenting Opinion that ‘Never . . . has the Court amended the question posed in a manner contrary to its object and purpose, which in this case are to determine whether the declaration of independence of 17 February 2008 did or did not fall within the competence of the Provisional Institutions of Self-Government of Kosovo’.Footnote 48
Certainly, a political organ of the United Nations could make a legal or a factual assessment that could be considered erroneous by the principal judicial organ of the United Nations. However, this would be rather an exceptional circumstance that would require a thorough legal analysis grounded on strong evidence that meets a high standard of proof. This was not the case in the Kosovo AO. No state during the debate that took place at the UNGA on whether to refer the question to the Court ever raised the possibility that an entity other than the PISG had issued the UDI. On the contrary, states that recognized the independence of Kosovo indicated that in their view, it was the Assembly of Kosovo that had issued the UDI. The Permanent Representative of the UK stated that ‘Kosovo's Assembly declared Kosovo independent’.Footnote 49 The Permanent Representative of France said that ‘[o]n 17 February 2008, the Assembly of Kosovo declared the independence of the Republic of Kosovo’.Footnote 50 Similarly, the United States, which did not vote in favour of referring the question to the Court and which recognized Kosovo as an independent state, made reference to ‘the declaration of independence of Kosovo Provisional Institutions of Self-Governance’.Footnote 51 States that recognized Kosovo as an independent state also acknowledged that it was the Assembly of Kosovo that had issued the UDI, in their instruments of recognition.Footnote 52 That the authors of the UDI may not have been the PISG was only an issue that emerged during the written phase of the advisory proceedings.Footnote 53 Consequently, an argument of last resort made by some states only during the advisory proceedings and which challenged a qualification of the events concerning the issuance of the UDI adopted in a clear and unambiguous manner by the UNGAFootnote 54 led the Court to conclude that:
. . . the authors of the declaration of independence of 17 February 2008 did 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.Footnote 55
This extraordinary finding was premised on two even more extraordinary grounds, which are each discussed in turn below.
2.1. Contradictory wording of the UDI and procedural irregularities in its adoption
It has been explained above that the UNGA as a body, and states that had recognized Kosovo as a sovereign state, made it clear that the authors of the UDI were the PISG. This was also the position taken by the United Nations, as discussed below in subsection 2.2. However, the Court's selective interpretation of the UDI and the procedural irregularities that occurred during its adoption constituted the first basis on which the Court grounded its conclusion that ‘the authors of the declaration did not act, or intend to act, in the capacity of an institution created by and empowered to act within [the] legal order [of the interim self-administration of Kosovo] but, rather, set out to adopt a measure the significance and effects of which would lie outside that order’.Footnote 56 In short, instead of calling a spade a spade, the Court called the spade by a different name in order for its actions to fall outside the scope of any legal constraints.Footnote 57
First, with respect to the wording of the UDI, the Court placed great emphasis on selected parts of the UDI in which its authors claimed that the status of Kosovo had been ‘resolved’ and that the aim of the UDI was to establish Kosovo as ‘an independent and sovereign state’.Footnote 58 The Court considered that ‘[t]his language indicates that the authors of the declaration did not seek to act within the standard framework of interim self-administration of Kosovo’.Footnote 59 Thus, the very evidence that demonstrated the ultra vires nature of the UDI – that it was intended to operate outside the legal framework established by the UNSC – led the Court to reach the reverse conclusion that one would have expected. Instead of declaring the act to have been exercised ultra vires, the Court considered that the act was so far outside the realm of the competences of the PISG that it was not governed by the legal framework established by UNSCR 1244 to apply to the PISG. However, as Judge Bennouna noted:
In law, it is not merely because an institution has adopted an act exceeding its powers (ultra vires) that the legal bond between the institution and the act is broken. In such a case, the institution must be considered to be in breach of the legal framework that justifies and legitimizes it.Footnote 60
Furthermore, it is to be expected in those cases in which the relevant domestic legal system does not recognize a right to separate from the state in question that persons issuing a UDI would claim that the act is not governed by the applicable legal regime because they are performing a revolutionary act of a pouvoir constituant. Such a claim is nothing more than the unilateral perception of those issuing a UDI. In contemporary international law, newly independent states were created contrary to the constitutional order of some colonial powers, but their creation was lawful under international law because the principle of self-determination applied. The problem with the UDI of 17 February 2008 is that such a coup d'état not only was issued contrary to the constitutional order of the state concerned, but it was also a ‘coup des Nations Unies’, namely issued contrary to the legal order of the United Nations, which is responsible for administering the territory.
Contradictions in the wording of the UDI appear to undermine the Court's analysis and make clear that the authors of the UDI themselves acknowledged their status as the PISG. The first preambular paragraph of the UDI describes the context in which the declaration was issued, by the ‘Assembly of Kosovo, Convened in an extraordinary meeting on February 17, 2008, in Pristine, the capital of Kosovo’, and that the Assembly of Kosovo ‘approves’ the ‘Kosova Declaration of Indipendence [sic]’.Footnote 61 The Court was aware of these, and other, contradictions: the majority of the Court omitted the words ‘Assembly of Kosovo’ in its summary of the facts when it noted that it was the ‘authors’ who had been ‘[c]onvened in an extraordinary meeting’;Footnote 62 it acknowledged that the UDI was adopted by 109 of the 120 members of the Assembly of Kosovo;Footnote 63 and it noted that ‘when opening the meeting of 17 February 2008 at which the declaration 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’.Footnote 64 However, the majority of the Court simply stated that the UDI ‘must be seen in its larger context’.Footnote 65
Second, with respect to the procedural irregularities, these were twofold. The issuance of the UDI violated both the procedure for determining the final status of Kosovo, set out in UNSCR 1244, and it also violated the procedure for the adoption of legislation by the Assembly of Kosovo. These two types of procedural irregularity were not only condoned by the Court, but they were used as evidence by the Court that by issuing the UDI in this irregular fashion, the legal framework of the interim administration in Kosovo did not apply to this act.
In relation to the peaceful settlement of disputes, it is profoundly disquieting that the Court implicitly condoned a unilateral measure taken by one party to the dispute that attempted to bring to an end a political process on the future status of Kosovo – a process that was clearly governed by binding provisions contained in UNSCR 1244. The Court stated that the UDI ‘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’.Footnote 66 It should be recalled that Mr Ahtisaari's recommendation that Kosovo's final status be independence under the supervision of the international communityFootnote 67 was not accepted by the UNSC,Footnote 68 nor was any outcome reached in the negotiations held under the auspices of the European Union/United States/Russian Federation Troika.Footnote 69 The negotiations between the two sides thus should have continued in good faith. As Judge Bennouna noted, ‘[a] stalemate in the Security Council does not release either of the parties to a dispute from their obligations’.Footnote 70 A party to a settlement of dispute procedure cannot unilaterally modify the situation, as the UK ambassador noted in 2003 with respect to Kosovo.Footnote 71 The approach taken by the Court in implicitly condoning the unilateral imposition of an outcome by one party in a settlement-of-dispute procedure has serious implications for the mechanisms of mediation and negotiation. The Court seems to suggest that if one party to a dispute considers that the negotiations have gone on for too long, then it may unilaterally impose its desired outcome on the other party. If this were indeed the case – which it is not – then, as Judge Bennouna noted, ‘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’.Footnote 72 This approach raises serious concerns if it is to be generally applied in international relations.
Concerning the violations of the procedural rules governing the adoption of legislation by the Assembly of Kosovo, instead of these posing a problem for the accordance with international law of the UDI, the Court treated them as factors that lent support to its conclusion that the UDI was not issued by the PISG.Footnote 73 The Court noted that at least in two respects, the issuance of the UDI was not carried out in conformity with the procedural requirements. It noted that ‘the declaration was not forwarded to the Special Representative of the Secretary-General for publication in the Official Gazette’,Footnote 74 and that ‘the procedure employed in relation to the declaration differed from that employed by the Assembly of Kosovo for the adoption of legislation’ because the president of Kosovo – who, the Court noted, was not a member of the Assembly of Kosovo – attached his signature to the UDI.Footnote 75 Even if the UDI was adopted by the Assembly, the president, and the prime minister of Kosovo, they all constituted organs of the PISG. All the individuals who issued the UDI were acting in that capacity, since they considered themselves to be the ‘democratically elected representatives’. As a matter of course, they were elected within the framework of UNSCR 1244 and as organs constituting the PISG. As the ILC's commentary to Article 7 of the Articles on State Responsibility affirms:
Cases where officials acted in their capacity as such, albeit unlawfully or contrary to instructions, must be distinguished from cases where the conduct is so removed from the scope of their official functions that it would be assimilated to that of private individuals, not attributable to the State. In the words of the Iran-United States Claims Tribunal, the question is whether the conduct has been ‘carried out by persons cloaked with governmental authority.Footnote 76
As a result of the Court's finding in relation to both the material competence of the PISG and the applicable procedural rules that the UDI was not an act ultra vires because the authors of the UDI were not acting as the PISG, but in a different ‘capacity’, the Court effectively absolved the United Nations of international responsibility for the issuance of the UDI. Draft Article 7 of the ILC's draft articles on the Responsibility of International Organizations reads ‘[t]he conduct of an organ or an agent of an international organization shall be considered an act of that organization under international law if the organ or agent acts in that capacity, even though the conduct exceeds the authority of that organ or agent or contravenes instructions’.Footnote 77 On the basis of the reasoning in the Kosovo AO, an organ or agent of an international organization (or, by extension, a state) that wishes to act in a way that would either fall outside its material competence or violate applicable procedural rules may claim simply not to be acting in the capacity of the organization in question and call itself by a different name, in order to argue that its actions should not to be considered ultra vires.
2.2. The ‘silence’ of the Special Representative of the Secretary-General
The second ground on which the Court based its finding that the authors of the UDI were not the PISG was an inference drawn by the Court concerning the conduct of the Special Representative of the UN Secretary-General. After noting that on previous occasions, the Special Representative had qualified certain acts of the PISG as being ultra vires, the Court went on to note that:
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. 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.Footnote 78
The inference drawn by the Court vis-à-vis the ‘silence’ of the Special Representative of the Secretary-General is extraordinary. The Special Representative's inaction was not a case of what Sherlock Holmes described as the curious incident of the dog not barking in the night,Footnote 79 when, in the ordinary course of events, something that should have taken place does not occur, leading one to draw certain inferences. Indeed, the ‘silence’ of the Special Representative of the Secretary-General vis-à-vis the UDI was entirely unrelated to his views on whether or not the UDI was issued by the PISG in whatever ‘capacity’ and whether or not the UDI constituted an ultra vires act of the PISG. It is common knowledge that the silence of the Special Representative was due to the ‘neutral-status’ policy adopted by the Secretary-General with regard to the issuance of the UDI, as a result of what he considered to be his position in light of the lack of consensus within the UNSC, and pending further guidance from this organ.Footnote 80
It is evident that a neutral position, like the one adopted by the Secretary-General and his Special Representative, cannot be read as either favouring or condemning the UDI. In a letter to the president of Serbia on 12 June 2008, the Secretary-General stated that ‘[t]he position of the United Nations on the question of the status of Kosovo has been one of strict status neutrality’.Footnote 81 The Special Representative of the Secretary-General reiterated this position in a statement to the UNSC, soon after the rendering of the Kosovo AO by the Court.Footnote 82 The Special Representative thus neither condoned nor condemned the issuance of the UDI. He simply remained silent, not because he considered that an entity other than the PISG had issued the UDI or that they acted in another capacity, nor because he considered that the UDI was not an ultra vires act, but because of the status-neutral policy adopted by the Secretary-General.
The inference drawn by the Court concerning the reasons for the Special Representative's ‘silence’ also evidences a presumption held by the Court that the Special Representative's acts and omissions (his ‘sounds’ and his ‘silences’) are always in conformity with his mandate. To turn the Court's reasoning on its head, it is equally plausible to question whether the Special Representative was in breach of his mandate for having failed to act, because he did not take the action he was mandated to take with regard to the UDI issued by the PISG, which constituted an act in excess of authority.
The fact is that there was incontrovertible, explicit evidence that the Special Representative and the Secretary-General did indeed consider that the UDI had been issued by the PISG. During a meeting of the UNSC, the day immediately after the UDI was issued, the Secretary-General relayed to the UNSC the qualification made by his Special Representative that the UDI was issued by the PISG: ‘Yesterday, my Special Representative for Kosovo informed me that the Assembly of Kosovo's Provisional Institutions of Self-Government held a session during which it adopted a declaration of independence, which declares Kosovo an independent and sovereign State.’Footnote 83
The majority of the Court did not address this statement by the Secretary-General. The majority, instead, referred to a Report of the Secretary-General submitted to the UNSC in March 2008, in which the Secretary-General stated that ‘[o]n 17 February, the Assembly of Kosovo held a session during which it adopted a “declaration of independence”, declaring Kosovo an independent and sovereign State’.Footnote 84 This statement by the Secretary-General lends further support to the fact that according to the United Nations, it was the PISG who issued the UDI. However, the Court did not attribute any legal weight to this statement. The Court considered that the Report merely constituted ‘the normal periodic report on the UNMIK activities, the purpose of which was to inform the UNSC 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’.Footnote 85
In light of the irrefutable evidence outlined above that the United Nations considered the PISG to be the authors of the UDI, there was no basis for the Court to infer that the ‘silence’ of the Special Representative of the Secretary-General ‘suggested’ that he considered the UDI not to constitute an act of the PISG, or that this act was not ultra vires. The Special Representative and the Secretary-General were not ‘silent’ in making clear in publicly available official documents of the United Nations that the position of the United Nations was that the UDI was issued by the PISG. The result is very disquieting: when there is silence, the Court can quite clearly hear the sound of a factual qualification being made, and when a factual qualification is made, the Court is hard of hearing.
3. The Court's interpretation of UNSC Resolution 1244
An important contribution to general international law made by the Kosovo AO is the guidance that the Court provided on the interpretation of UNSC resolutions,Footnote 86 which for considerable time have been subsumed under the rules of interpretation of treaties as contained in customary international law and consecrated in the 1969 Vienna Convention on the Law of Treaties.Footnote 87 The Court also recalled the guidance for interpreting the legally binding force of UNSC resolutions, set out by the Court in the Namibia AO.Footnote 88 However, in the concrete task of interpreting UNSCR 1244, the interpretative approach adopted by the Court does not conform to its own guidance. This is most apparent with regard to the absence of any analysis of the principle of territorial integrity vis-à-vis UNSCR 1244.
This resolution contained important guarantees of respect for the territorial integrity of the state in question: the Federal Republic of Yugoslavia (FRY) and, later, Serbia. Guarantees of respect for the territorial integrity of Serbia were clearly set out in (i) preambular paragraph 2 of UNSCR 1244, which recalls previous UNSC resolutions confirming the territorial integrity of the FRY; (ii) preambular paragraph 4 of UNSCR 1244, which refers to ‘Kosovo, Federal Republic of Yugoslavia’; (iii) preambular paragraph 10 of UNSCR 1244, in which the Council referred to the Helsinki Final Act, and Annex 2; (iv) Annex 1 to UNSCR 1244; and (v) operative paragraph 1 of UNSCR 1244, which refers to Annexes 1 and 2. Thus, a straightforward textual interpretation of UNSCR 1244 required an analysis of the guarantees of territorial integrity contained therein. Furthermore, according to the Court's own interpretative guidance, the Court should have interpreted UNSCR 1244 in light of ‘statements by representatives of members of the Security Council made at the time of their adoption’.Footnote 89 The guarantees of respect of the territorial integrity of Serbia were expressly mentioned by members of the UNSC, both immediately preceding and following the adoption of UNSCR 1244.Footnote 90 Indeed, a guarantee of the respect for the territorial integrity of Serbia was a conditio sine qua non for China to allow UNSCR 1244 to be adopted by abstaining during the voting process.Footnote 91
However, the Court did not address the guarantees of Serbia's territorial integrity contained in UNSCR 1244 when interpreting this resolutionFootnote 92 – an approach that led it to consider that the issuance of the UDI did not violate UNSCR 1244. The Court only addressed the principle of territorial integrity in very general terms in the part of its Kosovo AO that dealt with general international law.Footnote 93 Consequently, the Court's interpretation of UNSCR 1244 is unconvincing. Furthermore, by not addressing the very legal guarantee on which the presence of the UN interim administration in Kosovo is premised, the Court has set an alarming precedent. States in the future may express unwillingness to consent to a UN presence on their respective territories, for fear that such a situation could lead to a loss of part of their territory, regardless of whether or not there are ‘guarantees’ of respect for their territorial integrity in place. Instead of encouraging co-operation with the United Nations, the Court unwittingly is placing the UN collective security framework in jeopardy.
4. Concluding remarks
This article should not be read as simply advancing a ‘formalist’ approach that disregards human rights. If human rights were at the core of the question, then coherence also demands an examination of the conduct of all sides with regard to human rights and the protection of minorities after 1999 until today, both in Kosovo and in the rest of Serbia. This is an exercise that those advocating for ‘remedial secession’ obstinately refuse to make. What this article has attempted to show is that the Court's decision not to examine the issuance of the UDI as a legal act raises concerns about fundamental aspects of international law and, in particular, the law of the United Nations. Consequently, the Court has not fulfilled its role as ‘the guardian of legality for the international community as a whole, both within and without the United Nations’.Footnote 94 By striving to ground its legal analysis on the ‘realities on the ground’,Footnote 95 the Court has inscribed itself in the rather long list of UN acts of resignation with regard to Kosovo. The Kosovo AO reduces the role played by law in international relations.
The Kosovo AO marks the first time that an organ of the United Nations has lent tacit support to a secessionist attempt carried out on the territory of a member state. There has thus been a noticeable shift in the position of the United Nations from the stance taken by Secretary-General U Thant, who considered that
‘[a]s far as the question of secession of a particular section of a State is concerned, the United Nations attitude is unequivocable [sic]. As an international organization, the United Nations has never accepted and does not accept and I do believe will ever accept the principle of secession of a part of its Member State’.Footnote 96
The Court did not pronounce upon whether a right to unilaterally secede territory exists.Footnote 97 However, its refusal to examine this question, and to treat the UDI as a mere sheet of paper, as an ‘attempt to determine finally the status of Kosovo’,Footnote 98 has left the Peace Palace's walls resonating with its silence.
The legal situation has not been clarified since the Kosovo AO was rendered on 22 July 2010. The Court whittled down the scope of the question it was asked to address to a question of ‘illegality’ and a search for express prohibitions of declarations of independence, and thus it failed to answer the most pressing legal issues raised in the UNGA's question. The Court did not pronounce upon the statehood of Kosovo, nor did the Court articulate any legal criteria for the creation of states under international law outside self-determination when applicable to non-self-governing territories and peoples subject to alien subjugation, domination, and exploitation.Footnote 99 The political situation remains at an impasse. The positions adopted by states after the Kosovo AO was rendered are a split mirror image of the positions they held prior to the advisory proceedings, as evidenced by recent debates within the UNSC and UNGA.Footnote 100 With no political consensus within the UNSC, and no legal guidance provided by the Court, it is unclear how the question of Kosovo will progress from here. This is the outcome of a deliberate policy adopted by some states that resorted to force in 1999 and decided to impose what they considered to be the best solution for Kosovo, bypassing a UNSC resolution, and irrespective of the position taken by the territorial state concerned. As a result, this group of states has divided the international community and created a situation in which the United Nations Mission of Interim Administration in Kosovo still fulfils its mandate in accordance with UNSCR 1244 and the PISG act as though they were organs of a sovereign state.
What the Court did make clear is that the lex specialis governing Kosovo, established by UNSCR 1244, remains in force. It can only be changed by the subsequent adoption of another UNSC resolution.Footnote 101 This is even recognized by Mr Skender Hyseni, who requested the UNSC ‘to replace resolution 1244 (1999) with a new resolution’.Footnote 102 That the lex specialis established by the UNSC continues to apply to Kosovo means that the ultimate conclusion to be drawn from the Kosovo AO is that the attempt to determine finally the status of Kosovo by the authors of the UDI and its supporters on 17 February 2008 has not succeeded. The Kosovo AO can be read as a contribution by the Court to the legal imbroglio created by the claim of the existence of a parallel framework of governance emanating from the UDI that operates ‘at a different level’ from the international legal rules established by the UNSC. The difficult task now falls to creative and patient minds to find a stable, peaceful solution on the ground in line with the lex specialis created by UNSCR 1244. Promoters of Kosovo's secession are confident of their strength and influence. For them, it will simply be a matter of time until a fait accompli is imposed on the international community of states. It remains to be seen whether this will in fact occur. In the meantime, the very foundations of international law, including the collective security system set out in the Charter of the United Nations, have suffered. And the world today is less certain than the one that existed before the rendering of the Kosovo AO by the Court.
