ON 17 February 2008, the elected representatives of Kosovo declared it to be a sovereign State independent from Serbia, to mixed responses from the international community. On 8 October 2008, the General Assembly of the United Nations adopted resolution 63/3 (drafted and sponsored by Serbia), requesting an advisory opinion from the International Court of Justice on the following question: “Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?”. After inviting and receiving submissions from States and from the authors of the declaration, on 22 July 2010 the Court issued an opinion on the Accordance with international law of the unilateral declaration of independence in respect of Kosovo. While academic response to the opinion has largely focused on its narrowness and lack of engagement with the issue of self-determination, it nevertheless contains a number of notable features.

The contentious issues begin with the fact that an opinion was given at all. The ICJ has a well-recognised (although never exercised) discretion to refuse to give an advisory opinion, and Vice-President Tomka and Judges Keith, Bennouna, and Skotnikov argued that it should have done so on this occasion, particularly given the fact that the Security Council was seised of the matter. The Court concluded, however, that this did not preclude the General Assembly discussing or (subject to Article 12 of the UN Charter) making future recommendations on the matter, activities in which an advisory opinion might assist. Curiously, the judgment records that Judge Koroma voted against issuing an opinion, but his Dissenting Opinion actually states that he “voted in favour of the decision to accede to the request”.

The Court next turned to the “scope and meaning of the question”, although presumably this must also have been considered, at least provisionally, prior to the decision to issue the opinion. The Court described (at [51]) the question as “clearly formulated” and “narrow and specific”, concerned only with “whether or not the declaration of independence was in accordance with international law”, and not with the “legal consequences” of the declaration, or with “whether or not Kosovo has achieved statehood”. The narrowness of this formulation of the question disappointed Judges Simma, Sepúlveda-Amor, Cançado Trindade, and Yusuf, who argued in Separate Opinions that the Court should have dealt with the broader debate concerning remedial self-determination in international law, on which some States had made important and lengthy submissions to the Court. One can, however, be sympathetic with the plurality's wish to remain silent on such matters, given the potential harm that could have been done through any encouragement a misplaced word might have given either to separatist movements or to those who would oppress them. The plurality itself, on the other hand, also noted (at [35]) that the Court should not generally form “its own view as to whether an opinion would be likely to have an adverse effect”.

The Court then identified three possible “sources” of international law which the declaration of independence might have violated, and examined each of them in turn. First, was the declaration contrary to general international law? Here, the Court noted (at [79]) that State practice since the eighteenth century, particularly in the context of post-colonial self-determination, showed numerous examples of successful declarations of independence, providing little support for the idea that such declarations are prohibited under international law. Where particular declarations of independence have been viewed as illegal (concerning, for example, Southern Rhodesia or northern Cyprus), the Court concluded (at [81]) that the illegality “stemmed not from the unilateral character of these declarations as such, but from the fact that they were, or would have been, connected with the unlawful use of force or other egregious violations of norms of general international law, in particular those of a peremptory character (jus cogens)” – an important affirmation of principle, but one inapplicable to Kosovo. In response to arguments that the “principle of territorial integrity” prohibited declarations of independence within a State, the Court held (at [80]) that “the scope of the principle … is confined to the sphere of relations between States”, and was thus again not applicable.

Second, the Court considered whether the declaration of independence was contrary to Security Council resolution 1244 (1999), which established the United Nations Interim Administration Mission in Kosovo (“UNMIK”) and also decided “that a political solution to the Kosovo crisis shall be based on the general principles in annex 1” to the resolution, which included “the principles of sovereignty and territorial integrity”. On this issue, the Court determined (at [114]) that the declaration of independence was not inconsistent with resolution 1244, because “the two instruments operate on a different level”. Resolution 1244 “remained silent on the conditions for the final status of Kosovo”, the Court concluded, while “the declaration of independence is an attempt to determine finally the status of Kosovo”. The Court's analysis here is less than completely compelling. While it is self-evident that resolution 1244 did not determine the final status of Kosovo, it is less obvious that it did not establish an exclusive process through which that status was to be determined – a process which did not envisage unilateral actions by any party. The Court concluded, however, that resolution 1244 did not impose any prohibition on the authors of the declaration of independence. In reaching its conclusion on this point, the Court incidentally offered (at [94]) some general guidance on the rules of interpretation applicable to Security Council resolutions, arguably much-needed in light of the infamous controversy over the interpretation of resolution 1441 relating to Iraq.

Third, the Court considered the status and effect of the Constitutional Framework for Kosovo adopted on behalf of UNMIK. The Court determined (at [88]) that “the Constitutional Framework derives its binding force from the binding character of resolution 1244 (1999) and thus from international law”, giving it “an international legal character”, and on this basis the Court treated the Constitutional Framework as part of international law. However, the Court went on to conclude (at [105]) that the declaration of independence could not be contrary to the Constitutional Framework because “the authors of that declaration did not act, or intend to act, in the capacity of an institution created by and empowered to act within that legal order but, rather, set out to adopt a measure the significance and effects of which would lie outside that order”. Rejecting the implicit determination of fact made by the General Assembly in its request for the advisory opinion, the Court held (at [109]) 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”.

The Court's conclusions on both these points are troubling. The first seems to establish that any rule which “derives its binding force” from international law is part of international law, conflating two questions – the source of the authority of a rule, and the characterisation of the rule itself. All the domestic laws of a State may derive their authority from its constitution, but that does not mean all such laws are “constitutional”. The failure to make such a distinction in this context suggests, absurdly, that a speeding ticket in Kosovo is a breach of international criminal law. Making such a distinction might also have allowed the Court to avoid its problematic conclusion (much criticised in the Dissenting or Separate Opinions of Vice-President Tomka and Judges Koroma, Sepúlveda-Amor, Bennouna, Skotnikov, and Yusuf) that the authors of the declaration were somehow able to transcend the limits of their powers under the Constitutional Framework through “intending” to act outside that framework, as democratically elected representatives. There is a more fundamental difficulty here, which the Court's analysis skates over – the fact that the authors of the declaration possess (or possessed) two independent sources of sovereign authority, one flowing down from the UN, and the other flowing up democratically from the people who elected them. There are lessons to be learned here of dangers inherent in any UN territorial administration.

Although important in many ways, the Kosovo opinion may ultimately be remembered more for what it did not say than for what it did – the narrowness of the request, as formulated by the General Assembly and interpreted by the Court, which allowed the Court to avoid engaging with the highly contentious question of remedial self-determination in international law. Yet perhaps the most significant feature of the opinion is that it was given at all. As interpreted by the Court, the request was not concerned with the activities of any State, or with the statehood of Kosovo, but only the (non-criminal) actions of a group of individuals entirely within a single territory. Although ultimately no applicable prohibition was found, it is indicative of the remarkable development of international law beyond its State-centric traditions that the International Court of Justice unblinkingly held this to be a proper question for its consideration.