A. Introduction
‘Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?’ It is to answer this question that the General Assembly of the United Nations (‘UNGA’) requested an advisory opinion of the International Court of Justice (‘ICJ’). The request, adopted in October 2008Footnote 1 and initially sponsored by Serbia, was triggered by the declaration of independence of Kosovo issued on the 17 February 2008.Footnote 2 Some two years later, on the 22 July 2010, the ICJ delivered its Advisory Opinion.Footnote 3 By a 10–4 vote, the ICJ found that the declaration of independence of Kosovo did not violate international law.
The following commentary is an overview of the reasoning of the Court and will follow the structure of the advisory opinion, highlighting its salient features and possible inadequacies. Part B will look at how the Court found that it had jurisdiction and decided to exercise it. Part C will consider how the judges of the ICJ analysed the general international law applicable to the situation. Part D will do the same for the lex specialis. The final part will offer some brief concluding remarks.
B. The Jurisdiction of the Court and its Decision to Exercise That Jurisdiction
The first step of the proceedings for the ICJ was to determine whether it has jurisdiction, and whether it should use its discretion not to exercise it. In this preliminary phase, the Court also had to determine the scope and meaning of the question.
1. The jurisdiction of the Court
Establishing jurisdiction is quite a straightforward exercise for the Court. The ICJ Statute grants to the ICJ the power to give an advisory opinion ‘on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request’.Footnote 4 Moreover, the UNGA is a body authorized to request an advisory opinion, according to the UN Charter.Footnote 5 Having determined this, however, the Court felt compelled to consider the relationship between the UNGA and the UNSC and the distribution of competences between the two UN bodies, considering that this distribution of competences was not an obstacle to the establishment of jurisdiction.Footnote 6 It should be pointed out that this analysis found no legal basis in either the phrasing of the UN Charter or the Statute of the Court, and was justified, according to the judges, because ‘the Court has sometimes in the past given certain indications as to the relationship between the question which is the subject of a request for an advisory opinion and the activities of the General Assembly’.Footnote 7 The reference to occasional past practice of the Court hardly constitutes a solid foundation for legal analysis.
The Court also had to establish whether the question asked was a ‘legal’ question. At this stage, the evaluation by the judges was cursory, relying solely on the phrasing of the question. For them, ‘a question which expressly asks the Court whether or not a particular action is compatible with international law certainly appears to be a legal question’.Footnote 8 This is certainly in conformity with previous case-law of the Court. This approach can however been criticized as being too broad and capable of leading to absurd results. Indeed, relying on the law that is referred to (i.e., international law) would mean that the ICJ would have jurisdiction over any conduct of any individual, as long as the request mentions ‘international law’ in the question. For example, the ICJ could be competent to answer the following question: ‘is the crossing of the street by Mr X in conformity with international law?’ This is surely not what the drafters of the ICJ Statute had in mind, and it has been suggested that the legal nature of the question should be considered not only in relation to matters ratione materiae, but also to matters ratione personae, meaning that it should also, in making the required determination consider the extent to which the question relates to entities that primarily concern the ICJ, namely States and International Organisations.Footnote 9
2. The discretion not to exercise jurisdiction
In addition to establishing that it had jurisdiction, the Court considered whether it should use its discretion not to exercise that jurisdiction. Indeed, the phrase ‘the Court may give an advisory opinion’ in the ICJ StatuteFootnote 10 has been interpreted as granting the Court discretion to decline to give an advisory opinion even if the conditions of jurisdiction were to be met.Footnote 11 The ICJ considered several questions that might compel it not to exercise jurisdiction, which we will briefly present here. The objections put forward can be put into two distinct categories: the first one relating to extra-legal considerations; the second one to an evaluation of the internal distribution of competences within the United Nations.
The first extra-legal consideration related to the motives behind the request, namely to serve the interests of Serbia as the sole sponsor of the Resolution. The ICJ, however, considered that ‘the opinion is not given to States but to the organ which has requested it’ and that ‘precisely for that reason, the motives of individual States which sponsor, or vote in favour of, a resolution requesting an advisory opinion are not relevant to the Court's exercise of its discretion whether or not to respond’.Footnote 12 Linked to the previous aspect, the Court also rejected the contention that it should decline to exercise jurisdiction because the UNGA has not indicated the purpose of its request. According to the majority opinion, ‘it is for the organ which requests the opinion, and not for the Court, to determine whether it needs the opinion for the proper performance of its functions’.Footnote 13 Finally, the third extra-legal consideration was that of possible adverse political consequences of rendering the opinion. The ICJ found this argument equally unpersuasive, considering that it is not for the Court to assess whether the opinion might have adverse effects. The Court also pointed out that the argument can usually be made both ways, and that there are no evident criteria by which it could favour one outcome over another.Footnote 14 This rejection of political considerations is once again in line with previous case law where the Court has systematically maintained its capacity to exercise jurisdiction despite possible political aspects or consequences of the request.
As for the issue of internal distribution of competences within the United Nations, it was argued that the situation in Kosovo has been primarily dealt with by the UNSC in the past in its function to maintain international peace and security and that, accordingly, the UNSC should have been the requesting organ, rather than the UNGA. In a nutshell, the ICJ found that the Charter only confers primary, rather than exclusive, competence to the UNSC in matters of international peace and securityFootnote 15 and that the UNGA is not barred from dealing with other aspects of a situation, such as its humanitarian, social and economical ones.Footnote 16 In addition, the Court recalled that, in any case, it ‘cannot determine what steps the General Assembly may wish to take after receiving the Court's opinion or what effect that opinion may have in relation to those steps’.Footnote 17
The discussion on the issue of discretion, while being in line with past practice of the Court, occupies what could appear as a disproportionate space in the advisory opinion (nearly 20 paragraphs out of 123). This is all the more surprising, given that the rule being the exercise of jurisdiction, it would only be if the Court was going to exercise its discretion not to answer the request that such a lengthy explanation would be logically and legally required. Moreover, the Court did not explain why it considers that the above-mentioned factors would be relevant for not exercising jurisdiction. This can however be justified by the necessity of increasing the political legitimacy of the Court in the eyes of the beneficiaries of the opinion, namely states and, beyond that, public opinion. These beneficiaries would not understand why the Court did not explain why it deemed it necessary to answer the request. The pedagogy of such an exercise is however lost by the way in which the Court interpreted the question, as will now be considered.
3. The scope and meaning of the request
The last preliminary consideration dealt with by the Court was the scope and meaning of the question. The Opinion recalled that, in the past, the ICJ has departed from the phrasing of a request.Footnote 18 In the present situation, however, the Court found that it did not need to rephrase the question. According to the judges, the question clearly required an answer to the accordance of the declaration of independence with international law, rather than the legal consequences of such a declaration, such as whether Kosovo has achieved statehood or whether recognition of Kosovo by third States is legal.Footnote 19 Neither was the Court meant to determine whether there exists a positive right of secession. Indeed, ‘it is entirely possible for a particular act—such as a unilateral declaration of independence—not to be in violation of international law without necessarily constituting the exercise of a right conferred by it’.Footnote 20
While respecting the general scope of the question, the Court did however consider that it should be free to determine for itself who were the authors of the declaration, and not assume that they were indeed the ‘Provisional Institutions of Self-Government’ (hereafter, PISG) as mentioned in the request.Footnote 21 For the Court, ‘The identity of the authors of the declaration of independence […] is a matter which is capable of affecting the answer to the question whether that declaration was in accordance with international law. 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 22 The judges found additional support for this in the fact that the identity of the authors was not actually discussed in the debates surrounding the adoption of the request, thus suggesting that the matter was not settled.Footnote 23
As will be seen when analyzing the reasoning of the Court in relation to the applicable law, this narrow approach of the question strongly limited the consideration by the Court of a certain number of international law questions. What can be pointed out at this stage is the ambiguity in the deference accorded to the UNGA. On the one hand, the UNGA knew what it was doing when phrasing the question, but on the other it did not know what it was doing when identifying the authors of the declaration. This ‘selective trust’Footnote 24 in the requesting organ is unconvincing as a legal criteria. One could consider that the whole advisory opinion mechanism is premised on the idea that the requesting body is not sufficiently knowledgeable in law. Why should it be trusted at all on the legal phrasing of the question?Footnote 25 By its own admission, the Court has already in the past rephrased a question when it did not reflect the legal questions really at issue.Footnote 26 This is irrespective of whether the question is clearly formulated or not. In light of the limited import of the answer given to the request in its narrow interpretation, one could certainly argue that this was a situation when the question should indeed have been reformulated to include more relevant issues of international law.Footnote 27
C. The Accordance of the Declaration of Independence with General International Law
In a surprisingly short section of the opinion (5 paragraphs out of 123), the Court delved into whether there exist in international law any rules prohibiting declarations of independence, in a fashion that has been deemed too narrow.
1. The non-existence of a general rule prohibiting unilateral declarations of independence
According to the Court, there is no compelling evidence from the practice of States that there is a rule under international law prohibiting declarations of independence. In the past, some declarations have led to the creation of new States, while others have not.Footnote 28 Moreover, the development of an international law of self-determination and the number of declarations of independence even outside this context, shows that ‘the practice of States in these latter cases does not point to the emergence in international law of a new rule prohibiting the making of a declaration of independence in such cases’.Footnote 29
The fact that some declarations of independence have in the past been condemned by the UNSCFootnote 30 is deemed to be unpersuasive by the Court. According to the judges, these resolutions were case-specific and ‘the illegality attached to the declarations of independence thus 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)’.Footnote 31
Some participants before the Court argued that ‘a prohibition of unilateral declarations of independence is implicit in the principle of territorial integrity’.Footnote 32 The Court, however, dismissed the argument, considering that the ‘principle of territorial integrity is confined to the sphere of relations between States’.Footnote 33 In support of this affirmation, the judges referred to a certain number of international instruments, such as the UNGA Declaration on Friendly RelationsFootnote 34 and the Final Act of the 1975 of the Helsinki Conference.
The last point that was considered by the Court in relation to general international law was that of ‘remedial secession’. Acknowledging the debate on whether the right to self-determination had developed beyond situations of ‘alien subjugation’,Footnote 35 the Court however found that it was beyond the scope of the UNGA request to answer this question. The issue of ‘remedial secession’ concerns the right to separate from a State, not strictly speaking the accordance of the declaration with international law.Footnote 36
2. Some elements of analysis
The reasoning of the Court has been deemed to be too restrictive, irrespective of the desired solution. For the proponents of the illegality of the declaration, the Court should definitely have considered the relationship with the question of territorial integrity, both in relation to the authors of the declaration and the States that recognized Kosovo.Footnote 37 The proponents of the legality of the declaration considered that the Court should have examined more explicitly whether, in the circumstances of Kosovo, there existed circumstances that justified the exercise of the right to self-determination or remedial secession.Footnote 38
What both sides share is a criticism of the way in which the Court considered that the declaration is ‘in accordance with’ international law, as long as there is no specific prohibition of the conduct. For Judge Simma, the Court anachronistically applied the Lotus principle of international law according to which what is not prohibited is allowed.Footnote 39 This is not, however, entirely true. For one, as has been pointed out, the Lotus principle was meant as a safeguard to state sovereignty, rather than as a general rule of international law. It would therefore be ‘extremely weird to apply this principle against sovereign states, insinuating that if secession is not prohibited, that means that entities situated within those state ‘have a right’ to declare independence'.Footnote 40 In any case, that is not what the Court did. Indeed, by clearly rejecting considerations of remedial secession, the Opinion shied away from saying that there exists a positive right to declare independence.
It can also be considered that the criticism is unfounded once one accepts the scope of the question as it was defined by the Court. Indeed, the ICJ has essentially considered the legality of the declaration as a speech act, decoupled from any possible material consequences. In this sense, one could even argue that the Court has said too much on general international law, rather than too little. Indeed, whether some declarations of independence in the past have resulted in the creation of States is irrelevant in this perspective. In the same way, the issue of territorial integrity should have been rejected, not because it only applies to States, but because a declaration of independence, as a series of words, cannot per se affect the territorial integrity of a state. Equally, the Court had already rejected the issue of secession when interpreting the question,Footnote 41 so it is unclear why it mentioned it again at this stage of the reasoning.
In any case, as it stands, and despite its limitations, the opinion is not without consequences for international law. First of all, the reaffirmation of territorial integrity in the ‘classical inter-State paradigm of International law’Footnote 42 means that it can no longer be an issue in questions of secession by a non-state actor because you cannot oppose a right to a group which has no obligation to respect it.Footnote 43 A second consequence stems from the fact that the Court explicitly said that the declaration of independence did not take place in circumstances of violations of jus cogens as opposed to other declarations that have been declared illegal in the past.Footnote 44 This could be construed as not triggering the obligation of non-recognition of illegal situations, and therefore, if indirectly, mean that recognition of Kosovo by third states is not illegal.Footnote 45
D. Accordance of the Declaration with the Lex Specialis
Having determined that the declaration of independence was in conformity with international law, in the sense that it did not violate any rule prohibiting it, the Court, in the remainder of the opinion, considered whether the declaration of independence was in accordance with the lex specialis applicable to the situation. It first had to identify what this lex specialis was before applying it to the authors of the declaration, which, it felt, needed to be more clearly identified.
1. What is the Lex Specialis applicable to the situation?
The Court found no difficulty in considering that UNSC Resolution 1244(1999), which set-up the interim administration in Kosovo, was relevant international law in relation to the situation. Indeed, the ICJ recalled that the UNSC has the power, under Chapter VII of the UN Charter, to adopt resolutions that impose obligations under international law and that it had done so in the present case. Moreover, past practice of the Court shows that it has often interpreted and applied such Resolutions and has ‘consistently treated them as part of the framework of obligations under international law’.Footnote 46
In relation to other possible UNSC Resolutions, ‘The Court notes that there are a number of other Security Council resolutions adopted on the question of Kosovo, notably Security Council resolutions 1160 (1998), 1199 (1998), 1203 (1998) and 1239 (1999); however, the Court sees no need to pronounce specifically on resolutions of the Security Council adopted prior to resolution 1244 (1999), which are, in any case, recalled in the second preambular paragraph of the latter’.Footnote 47
The judges spent time considering the issue of the Constitutional Framework. Some participants had argued that it constituted an act of internal law and was not therefore relevant international law.Footnote 48 In order to challenge that assertion, the ICJ started by recalling that the Framework was adopted by a regulation of the United Nations Interim Administration Mission in Kosovo (UNMIK) in 2001.Footnote 49 UNMIK Regulations, as pointed out by the ICJ,Footnote 50 are executive decisions adopted by the Special Representative of the Secretary-General, who draws his authority from Resolution 1244 (1999). This led the Court to the following conclusion: ‘The Constitutional Framework derives its binding force from the binding character of Resolution 1244 (1999) and thus from international law. In that sense it therefore possesses an international legal character’.Footnote 51 Finally, the Court noted that ‘neither Security Council Resolution 1244 (1999) nor the Constitutional Framework contains a clause providing for its termination and neither has been repealed; they therefore constituted the international law applicable to the situation prevailing in Kosovo on 17 February 2008’.Footnote 52 From the preceding steps of the reasoning, the Court finally concluded that the Constitutional Framework formed ‘part of the international law which is to be considered in replying to the question posed by the General Assembly in its request for an advisory opinion’.Footnote 53
The consequence of the finding of the Court on the Constitutional Framework is that the ICJ accepted de facto that it was itself the Constitutional Court of the Kosovo legal order. Even more, because if the Constitutional Framework is relevant international law, then all UNMIK regulations are equally of this nature, the ICJ could have jurisdiction to determine the accordance of the conduct of any individualFootnote 54 with regulations relating to criminal law or civil law, thus becoming a de facto criminal or civil court of the Kosovo legal order.
More generally, the reasoning of the Court can however be challenged because it relied solely on the international origin of the norm to establish whether it was relevant international law for the situation under consideration. One could argue that the key element should alternatively be the legal order in which it was meant to take effect. If one adopts this criteria, it certainly challenges the Court's finding on the Constitutional Framework. Indeed, as the ICJ itself acknowledges, ‘the Constitutional Framework functions as part of a specific legal order, created pursuant to resolution 1244 (1999), which is applicable only in Kosovo and the purpose of which is to regulate, during the interim phase established by Resolution 1244 (1999), matters which would ordinarily be the subject of internal, rather than international, law’.Footnote 55 It was therefore not meant to create obligations in the international legal order and could therefore justify a finding that it was not relevant international law for the purposes of the situation.Footnote 56
This could, mutatis mutandis, be applicable to Resolution 1244 (1999). Indeed, this Resolution has a dual nature because it was both meant to take effect in the international legal order and in the legal order it created on the territory of Kosovo. What nature should be privileged ultimately depends on the circumstances. In the present situation, because the ICJ was considering the conduct of the authors of the declaration within the legal order of Kosovo, it could very well have decided that Resolution 1244 (1999) was not in fact relevant international law.Footnote 57
2. Who are the authors of the declaration?
As exposed previously in relation to the scope of the question asked,Footnote 58 the judges felt compelled to exercise their discretion and not necessarily follow the qualification of the authors of the declaration as the ‘Provisional Institutions of Self-Government’ because the exact nature of the authors might affect the answer given.Footnote 59 While this is not necessarily the most notable part of the opinion in terms of its legal import, it has turned out to be one of the most contested aspects of the Court's legal reasoning.
Indeed, the ICJ essentially relied on the intention of the authors of the declaration not to act as the PISG to find that they were not acting in that capacity. According to the judges, the language of the declaration ‘indicates that the authors of the declaration did not seek to act within the standard framework of interim self-administration of Kosovo. […] The declaration of independence, therefore was not intended by those who adopted it to take effect within the legal order created for the interim phase, nor was it capable of doing so. On the contrary, the Court considers 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 that legal order but, rather, set out to adopt a measure the significance and effects of which would lie outside that order’.Footnote 60
The Court found support for this statement in two arguments. First of all, it showed how the procedure followed was not the same as for ‘regular’ acts of the Assembly of Kosovo.Footnote 61 Moreover, the silence of the Special Representative of the Secretary-General, who had general powers to oversee the work of the PISG and annul acts, was construed as suggesting that ‘he did not consider that the declaration was an act of the Provisional Institutions of Self-Government’.Footnote 62
This approach has been strongly criticized. First of all, the Court's reading of the facts of the case are debatable. The reality is, at best, far more ambiguous. For one, the ‘intent’ of the authors is not as clear as the judges make it out to be. Just by reading the declaration itself,Footnote 63 the authors of the declaration met in an ‘extraordinary meeting’ of the Assembly of Kosovo, within the physical confines of the assembly and the declaration was signed by Jakup Krasniqi, as ‘President of the Assembly of Kosova’, rather than in his personal capacity.Footnote 64 Second of all, the judges' ‘interpretation’ of the silence of the Special Representative is equally puzzling. Indeed, it has been argued that this silence was due to the ‘neutral-status’ policy adopted by the UN, and in no way reflected any opinion on the authors of the declaration.Footnote 65 Moreover, it can be questioned whether the Special Representative in fact acted legally by not taking action against the declaration, therefore violating his own mandate.Footnote 66
More fundamentally, relying in this way on the intention of the authors renders obsolete the distinction between capacity and ultra vires. Indeed, if not respecting the procedures for the adoption of an act shows an intent not to be bound by the procedures, when is there ever any room to declare an act as being adopted ultra vires? As expressed by Judge Bennouna in his dissenting opinion: ‘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 67
This reasoning, based on the intention of the authors, could lead to absurd results, as illustrated by Judge Koroma in his own dissenting opinion: ‘any given group […] could circumvent international norms specifically targeting them by claiming to have reorganized themselves under another name’.Footnote 68 Even more, ‘if such reasoning is followed to its end, it would be enough to become an outlaw, as it were, in order to escape having to comply with the law’.Footnote 69
3. Is the declaration in conformity with the Lex Specialis?
Having identified the applicable lex specialis and the authors of the declaration, the Advisory Opinion concluded its reasoning by considering whether the declaration of independence was in accordance with UNSC Resolution 1244 (1999) and the Constitutional Framework. The Court found that the declaration of independence did not violate UNSC Resolution 1244 (1999). In support of this finding, the judges put forward two arguments.
First of all, they interpreted the Resolution as designed ‘to create an interim regime for Kosovo, with a view to channeling the long-term political process to establish its final status. The resolution did not contain any provision dealing with the final status of Kosovo or with the conditions for its achievement’.Footnote 70A contrario, the majority opinion provides the example of Cyprus, where the UNSC explicitly provided for the exact final status of the country.Footnote 71 Moreover, the presence of the expression ‘political settlement’ in the Resolution, given the ambiguity of its meaning, cannot be construed as prohibiting a declaration of independence.Footnote 72 Secondly, the Court considered that, in any case, the authors of the declaration were not addressees of the Resolution. Indeed, according to the judges, the Resolution ‘is mostly concerned with creating obligations and authorizations for United Nations Member States as well as for organs of the United Nations such as the Secretary-General and his Special Representative’.Footnote 73 Here too, the Court reasoned a contrario, mentioning other UNSC Resolutions that are explicitly aimed at the ‘Kosovo Albanian leadership’, whereas Resolution 1244 (1999) contained no such language.Footnote 74
In relation to the Constitutional Framework, in light of finding that the authors of the declaration were not acting as the PISG, the Court unsurprisingly concluded that the ‘authors of the declaration of independence were not bound by the framework of powers and responsibilities established to govern the conduct of the Provisional Institutions of Self-Government. Accordingly, the Court found that the declaration of independence did not violate the Constitutional Framework’.Footnote 75
Here, as with general international law, the answer given is circumscribed by the narrow interpretation of the request. The legal reasoning of the Court is, however, puzzling. Indeed, one can wonder why it delved into a lengthy interpretation on the content of the obligations contained in Resolution 1244 (1999) when, in any case it found that the authors of the declaration where not addressees of said Resolution. This analysis of the content of the Resolution appears additionally unnecessary given the Court's approach to the declaration as a mere speech act, which cannot, per se, violate any substantial obligations. Even more puzzling is the finding that the list of addressees of the Resolution did not include the PISG, thus raising the question as to why the Court in fact felt the need to consider that the authors of the declaration were not acting in their capacity as the PISG. Indeed, even if they had been, they would not be bound by the Resolution, according to its interpretation by the Court. In this part of the Opinion, as in the part of general international law, one could therefore argue, that the Court could have said less, rather than more, as argued by its critics.
E. Conclusion
What becomes apparent from this commentary on the Advisory Opinion, is that the legal reasoning of the Court is sometimes unconvincing and hard to follow. However, taken as a whole, it appears that if one accepts the interpretation of the request by the majority of the ICJ, the conclusion, is, in fact, quite uncontroversial: international law has nothing to say about a speech act made by a random group of individuals acting in their personal capacity. Ultimately, whatever the criticism leveled at the Court, responsibility for such an anti-climatic answer rests with the body that phrased the question, namely the UNGA, and, beyond it, Serbia. In fact, ‘it remains a mystery why Serbia drafted this question in such a poor manner and in a way that was detrimental to its interests’.Footnote 76
The answer still begs the question of why the Court accepted to answer the request in the first place. By considering the conduct of non-state entities, the Court allowed itself to be dragged outside its jurisdictional comfort zone, the core of which is the conduct of states and international organizations, and into a sort of ‘twilight zone’ of international law,Footnote 77 where, for example, the ICJ accepts, if unwittingly, to be the constitutional court or even criminal court of a given legal order.Footnote 78 Ultimately, what the Court should have done is look further than the authors of the declaration to the entities to which their acts could be attributed under international law, namely the UN or even a newly created Kosovar State.Footnote 79 Only then would it have truly fulfilled its function as the main judicial organ of the United Nations and beyond that, as a legitimate world court for the international community.
