The ICJ Rules on Kosovo’s Declaration of Independence, Not the Legal Consequences
Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law? The International Court of Justice (ICJ), in a 10-4 decision, answered this question in the affirmative in an advisory opinion to the General Assembly of the United Nations (UN), titled Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo, Advisory Opinion, I.C.J. Rep. (pdf). Dissenting opinions can be found here.
It is important to note that the question presented to the ICJ solicited its assessment on the declaration’s accordance with international law and not its “legal consequences.” In other words, the ICJ did not consider whether Kosovo could now assume statehood under international law but instead whether it made the declaration of independence in accordance with international law.
A Brief History of the Relationship between Kosovo and the UN
In June of 1999, the UN Security Council (SC) passed Resolution 1244, On the Situation Relating Kosovo, S RES 1244, UN SCOR, 1999, in an attempt to begin to resolve the humanitarian crisis related to the armed conflict in Kosovo. The resolution provided for a civilian and security presence in Kosovo with the goal of developing democratic self-governing institutions. It also included a call for the Federal Republic of Yugoslavia (now Serbia) to withdraw its forces and for the Kosovo Liberation Army (KLA) to demilitarize. In addition, a constitutional framework was instituted under which the UN and Kosovo shared legislative and governing authority.
From 2005 to 2007, during which the UN conducted a thorough review of the situation, and following unsuccessful negotiations with Serbia and Kosovo, it was concluded that the “only viable option for Kosovo is independence…” Following that, elections were held for the Assembly of Kosovo (the national governing body) and municipalities. The Assembly met in an official capacity for the first time in January of 2008. On February 17, 2008, it adopted a declaration of independence. In part, it stated:
We, the democratically-elected leaders of our people, hereby declare Kosovo to be an independent and sovereign state. This declaration reflects the will of our people and it is in full accordance with the recommendations of [the] UN…
Serbia claimed that the declaration was legally ineffective and represented a “unilateral secession of a part” of its territory. The National Assembly of Serbia declared it null and void.
A request for an advisory opinion on the declaration of independence was submitted by the General Assembly of the UN. The ICJ accepted written and oral submissions by 35 member states (including Iran, the United Kingdom, the United States and Slovakia) regarding their opinion on the issue.
The ICJ Rules in Favour of Jurisdiction
The first issue considered by the ICJ was whether it had the jurisdiction to provide the advisory opinion. Article 65, paragraph 1 of the Statute of the International Court of Justice states:
The Court may 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…
To find that it possessed the jurisdiction to provide an advisory opinion, the ICJ had to satisfy the criteria set out in Application for Review of Judgement No. 273 of the United Nations Administrative Tribunal, Advisory Opinion,  I.C.J. Rep. 333 (pdf). Accordingly, if the advisory opinion was requested by an organ of the UN and regarded a legal question “arising within the scope of the activities of the requesting organ” it was within the jurisdiction of the ICJ. (The UN has six principle organs including, among others, the SC and the ICJ).
It was argued by detractors that pursuant to Article 12, paragraph 1 of the Charter of the United Nations, Can. T.S. 1945 No. 7. (“UN Charter”), the General Assembly “shall not make any recommendation with regard…” to “any dispute or situation” currently under consideration by the SC. Thus, since the SC had been the primary UN organ handling the Kosovo conflict, a related advisory opinion was beyond the scope of the ICJ. The ICJ quickly and reasonably disposed of this counter-argument by noting that an advisory opinion is not a “recommendation.”
Concerning the competence of the organ to make the request, the ICJ referred to Article 96 of the UN Charter which authorizes the General Assembly to make requests for advisory opinions. Moreover, Article 10 refers to the scope of the matters to come before the General Assembly, which include the circumstances at issue in the present case, and Article 11 states that the General Assembly has the competence to consider “any questions relating to the maintenance of international peace and security brought before it by a Member of the United Nations…”
Finally, the ICJ ruled that questioning whether a declaration is in accordance with international law is clearly legal in scope. It was countered that a declaration of independence is a political act governed by domestic law and that the ICJ only dealt with issues of international law. This argument was rejected by the ICJ. While the declaration possessed both legal and political aspects, one did not deprive it of the other. Of course, if accepted, the proceedings would have stopped at this stage and the issue of Kosovo’s independence would have implicitly become a domestic matter.
According to the ICJ, “the Court has a discretionary power to decline to give an advisory opinion even if the conditions of jurisdiction are met…” Only “compelling reasons” would require that the court decline to provide an advisory opinion. This determination does not care about the “motives behind the request”, whether the “opinion might lead to adverse political consequences”, or that the request came from the General Assembly despite the SC’s lengthy involvement with the Kosovo issue. On the last point, the ICJ stated:
the fact that a matter falls within the primary responsibility of the Security Council for situations which may affect the maintenance of international peace and security and that the Council has been exercising its powers in that respect does not preclude the General Assembly from discussing that situation or, within the limits set by Article 12, making recommendations with regard thereto.
Excluding the General Assembly from discussing or making recommendations on matters being considered by the SC, and thereby requiring the ICJ to deny the request for an advisory opinion, may have had the effect of further concentrating power in the SC. The veto power available to members of the SC already furnishes them with substantial authority relative to the remaining states. To hold that matters already under consideration by the SC could not be discussed by the General Assembly would further distort the imbalance.
In the end, The ICJ reasonably rejected the argument that there were compelling reasons not to provide an advisory opinion. Kosovo has been under UN auspices for a decade or more. It would be illogical that the UN central judicial organ could not provide an advisory opinion on the very situation the UN cultivated through its intervention in the conflict.
The Unilateral Declaration of Independence is in Accordance with International Law
Freed of concerns surrounding jurisdiction and discretion, the ICJ then considered whether the declaration was in accordance with international law but not whether Kosovo had achieved statehood under international law. The ICJ noted the difference by referring to the SCC decision in Reference by the Governor-General concerning Certain Questions relating to the Secession of Quebec from Canada,  2 S.C.R. 217, where the question, in part, asked if international law provided the right for Quebec to secede from Canada unilaterally, and accordingly, whether Quebec had “a right to self-determination under international law” so that it could secede unilaterally.
According to the ICJ, the international law of self-determination developed in the second half of the twentieth century created “a right to independence for the peoples of non-self-governing territories and peoples subject to alien subjugation, domination and exploitation…” It cannot reasonably be argued that the citizens of Quebec have been subjugated, dominated or exploited. This was the crucial difference.
Several member states argued that the principle of territorial integrity set out in Article 2, paragraph 4 of the UN Charter protected the territorial integrity of Serbia. The relevant Article states:
All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations.
But, as noted by the ICJ, this article explicitly applies to relations between “States.” Kosovo is not a state. Because Kosovo had been subjugated, dominated and exploited its right to self-determination was evident. Therefore, the declaration of independence was ruled to be in accordance with international law.
Finally, in a dissenting opinion by Judge Koroma (pdf), it was argued, in part, that the declaration is contrary to international law and the agreed upon constitutional framework provided under Resolution 1244, and also a violation of the principles of territorial integrity and state sovereignty. Yet, it is curious as to why Judge Koroma did not reference the unique circumstances of the Kosovo situation in terms of the armed conflict. His arguments may stand without this consideration. But, as the majority ruled, it is in those special circumstances that international law supports the right to self-determination.