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The Kosovo Advisory Opinion and UNSCR 1244 (1999): A Declaration of ‘Independence from International Law’?

Published online by Cambridge University Press:  11 February 2011

MARCELO G. KOHEN  and
KATHERINE DEL MAR
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Abstract

This article focuses on the reasoning employed by the International Court of Justice in its Advisory Opinion rendered on 22 July 2010 with respect to the most formidable legal impasse of the accordance with international law of the unilateral declaration of independence: the lex specialis that applied at the critical date, and which the Court affirmed continues to apply to Kosovo, as established by the United Nations Security Council in its Resolution 1244 (1999). The Court's analysis of the applicable lex specialis is questionable. Its analysis was coloured by the narrow approach it took to answering the question it was asked to address. It queried an unambiguous factual qualification made by the General Assembly, and it disregarded factual qualifications made by the Secretary-General, his Special Representative, and indeed all relevant actors. It failed to uphold the legally binding provisions of Security Council Resolution 1244, and it did not qualify as unlawful or invalid an act of a subsidiary body of the Security Council that was undertaken in excess of authority and contrary to the fundamental provisions of that Resolution. The resolute conclusion of the majority of the Court that the unilateral declaration of independence did not violate international law seems to read as a declaration of ‘independence from international law’.

Keywords

advisory opinionInternational Court of JusticeKosovolex specialisUnited Nations Security Council Resolution 1244 (1999)
Type
KOSOVO SYMPOSIUM
Information
Leiden Journal of International Law , Volume 24 , Issue 1 , March 2011 , pp. 109 - 126
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2011

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References

1 Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo (Kosovo AO), Advisory Opinion of 22 July 2010, [2010] ICJ Rep. , para. 123(3).

2 Kosovo AO, Verbatim Record, 10 December 2009, [2009] CR 2009/32, at 47, para. 5.

3 Ibid., para. 6.

4 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, [2004] ICJ Rep. 136.

5 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, [1996] ICJ Rep. 266, para. 105(2)(E).

6 As the Court affirmed: see Kosovo AO, supra note 1, para. 91.

7 Ibid., paras. 94 and 117.

8 To use the words of the Court: ibid., para. 51.

9 Request for an advisory opinion of the ICJ on whether the unilateral declaration of independence of Kosovo is in accordance with international law, UN Doc. A/Res/63/3 (2008).

10 Kosovo AO, supra note 1, para. 83.

11 This was notably the case for Singapore, Bangladesh, the Baltic States and Eritrea: J. Crawford, The Creation of States in International Law (2006), 392–5 and 402–3.

12 Kosovo AO, supra note 1, Written Statements of: Albania, para. 84; Argentina, para. 85; Cyprus, para. 136; Denmark, at 12; Estonia, at 4 ff.; France, para. 2.18; Germany, at 33; Ireland, para. 30; the Netherlands, para. 3.3; Romania, para. 131; Russian Federation, paras. 91 and 97; Slovakia, paras. 15–16; Serbia, para. 584; Switzerland, paras. 75 and 77.

13 Kosovo AO, supra note 1, para. 83.

14 Ibid., para. 56.

15 Ibid., para. 79.

16 Ibid., para. 101.

17 Ibid., para. 84.

18 Ibid., para. 80. See the contribution by Olivier Corten in this issue.

19 See the contribution by Ralph Wilde in this issue.

20 Sir John Sawers (UK) recounted the circumstances in which the UDI was issued: ‘in coordination with many of the countries most closely involved in stabilizing the Balkans, Kosovo's Assembly declared Kosovo independent on 17 February 2008’ (UN Doc. A/63/PV.22 (2008), at 3). As Argentina noted during the oral round of the advisory proceedings, this statement evidenced a co-ordinated effort on the part of some states to support a secessionist movement in Serbia, arguably in violation of the obligation not to interfere in the domestic affairs of another state (Kosovo AO, Verbatim Record, 2 December 2009, CR 2009/26 (Ruiz Cerutti), at 39).

21 Kosovo AO (Judge Bennouna), supra note 1, para. 38.

22 Kosovo AO, ibid., para. 114.

23 Ibid., para. 119.

24 Ibid., para. 51.

25 The situation in Namibia, UN Doc. S/RES/284 (1970).

26 Illegal Israeli actions in occupied East Jerusalem and the rest of the occupied Palestinian territory, UN Doc. A/RES/ES-10/14 (2003).

27 Kosovo AO, supra note 1, para. 51.

28 Request for an advisory opinion from the International Court of Justice on the legality of the threat or use of nuclear weapons, UN Doc. A/RES/49/75K (1994) (emphasis added).

29 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, [1996] ICJ Rep. 225, para. 20.

30 Kosovo AO (Vice-President Tomka), supra note 1, para. 1.

31 Ibid. (Judge Koroma), para. 3.

32 Ibid. (Judge Yusuf), para. 2.

33 Ibid. (Judge Simma), para. 3; ibid. (Judge Bennouna), paras. 27–35.

34 Ibid. (Judge Koroma), para. 3.

35 Statement by the Permanent Representative of the UK, UN Doc. S/PV.4011 (1999), at 18. See also Kosovo AO (Judge Bennouna), supra note 1, para. 63.

36 The situation in Kosovo, UN Doc. S/RES/1244 (1999).

37 Ibid.

38 UNMIK Reg. 2001/9, 15 May 2001 (Constitutional Framework for Provisional Self-Government).

39 The situation in Kosovo, UN Doc. S/RES/1244 (1999); Report of the Secretary-General pursuant to para. 10 of UNSCR 1244 (1999), UN Doc. S/1999/672 (1999); UNMIK Reg. 1999/1, 25 July 1999; UNMIK Reg. 2001/9, 15 May 2001 (Constitutional Framework for Provisional Self-Government); Report of the Secretary-General on the UN Interim Administration Mission in Kosovo, UN Doc. S/2001/565 (2001). See also Kosovo AO, supra note 1, para. 90.

40 Kosovo AO, supra note 1, para. 105.

41 Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, [1996] ICJ Rep. 66, para. 21.

42 Request for an advisory opinion of the ICJ on whether the unilateral declaration of independence of Kosovo is in accordance with international law, UN Doc. A/RES/63/3 (2008) (emphasis added).

43 Kosovo AO, supra note 1, para. 52.

44 Ibid., para. 50; Greco-Turkish Agreement of 1 December 1926 (Final Protocol, Article IV), Advisory Opinion, PCIJ, Rep. Series B No. 16.

45 Kosovo AO, supra note 1, para. 50; Interpretation of the Agreement of 25 March 1951 between WHO and Egypt, Advisory Opinion, [1980] ICJ Rep. 73, para. 35.

46 Kosovo AO, supra note 1, para. 50; Application for Review of Judgment No. 273 of the United Nations Administrative Tribunal, Advisory Opinion, [1982] ICJ Rep. 325, para. 46.

47 Kosovo AO (Judge Koroma), supra note 1, para. 3.

48 Ibid. (Judge Bennouna), para. 34.

49 Sir John Sawers (UK), UNGA, sixty-third session, 22nd plenary meeting, UN Doc. A/63/PV.22 (2008), at 3.

50 Mr Ripert (France), ibid., at 8.

51 Ms DiCarlo (USA), ibid., at 5.

52 See, e.g., letter dated 18 February 2008 from the President of France, Mr Nicolas Sarkozy, addressed to Mr Fatmir Sejdiu, President of Kosovo, available on the website of the French Government at www.diplomatie.gouv.fr/fr/pays-zones-geo_833/balkans_1056/kosovo_650/france-kosovo_4601/proclamation-independance-du-kosovo-18.02.08_59650.html; Statement of 18 February 2008 by the Prime Minister of Albania, Mr Sali Berisha, on the Recognition of Independence of Kosovo, available on the website of the Albanian Government at www.keshilliministrave.al/index.php?fq=brenda&m=news&lid=7323&gj=gj2; press release from the Republic of Estonia, 21 February 2008, available on the website of the Estonian Ministry of Foreign Affairs at www.vm.ee/?q=en/node/682; Media release, ‘Statement by the President of the Swiss Confederation, Pascal Couchepin’, 27 February 2008, available on the website of the Swiss Federal Department of Foreign Affairs at www.eda.admin.ch/eda/en/home/recent/media/single.html?id=17497; press release, ‘Minister of Foreign Affairs Dermot Adhern TD Announces Ireland's Recognition of the Republic of Kosovo’, 29 February 2008, available on the website of the Department of Foreign Affairs of Ireland at www.foreignaffairs.gov.ie/home/index.aspx?id=42938; press release, ‘Sweden Recognises the Republic of Kosovo’, 4 March 2008, available on the website of the Government Offices of Sweden at www.sweden.gov.se/sb/d/10358/a/99714.

53 The following states argued for the first time in their Written Statements submitted during the advisory proceedings that it was not the PISG that had issued the UDI: Austria, para. 16; Estonia, at 3; Germany, at 6; Luxembourg, para. 13; Norway, para. 13; and the United Kingdom, para. 1.12. This was also the position taken by the authors of the UDI in their Written Contribution (para. 6.01). Other states claimed in their Written Statements that the UDI simply had been issued by the elected representatives of ‘Kosovo’: Albania, paras. 40 and 43; Slovenia, at 1; and the United States, at 32. It is to be noted that even states having recognized Kosovo as an independent state acknowledged in their Written Statements that the authors were the PISG: Czech Republic, at 2 and 6; France, paras. 10 and 2.64; Switzerland, para. 8; Finland, para. 17; and Poland, para. 3.40.

54 Judge Hersch Lauterpacht remarked that UN member states are bound to give due consideration to UNGA resolutions in good faith: South-West African Voting Procedure, Advisory Opinion of June 7th, [1955] ICJ Rep. (Judge Lauterpacht), at 119.

55 Kosovo AO, supra note 1, para. 109.

56 Ibid., para. 105.

57 As Judge Bennouna noted, ‘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’; ibid. (Judge Bennouna), para. 46.

58 Ibid., para. 105.

59 Ibid.

60 Ibid. (Judge Bennouna), para. 44. Judge Skotnikov noted that ‘[t]he majority [of the Court], unfortunately, does not explain the difference between acting outside the legal order and violating it’; ibid. (Judge Skotnikov), para. 15.

61 Unilateral Declaration of Independence of Kosovo, available on the website of the so-called ‘Republic of Kosovo’ at www.assembly-kosova.org/?cid=2,128,1635.

62 Kosovo AO, supra note 1, para. 74.

63 Ibid., para. 76.

64 Ibid., para. 104.

65 Ibid.

66 Ibid., para. 105.

67 Report of the Special Envoy of the Secretary-General on Kosovo's future status, annexed to letter dated 26 March 2007 from the Secretary-General addressed to the President of the UNSC, 26 March 2007, UN Doc. S/2007/168 (2007).

68 Draft Res. S/2007/437 (2007) was withdrawn after it became clear that it would not be adopted by the UNSC.

69 Report of the European Union/US/Russian Federation Troika on Kosovo, 4 December 2007, annexed to letter dated 10 December 2007 from the Secretary-General to the President of the UNSC, 10 December 2007, UN Doc. S/2007/723 (2007).

70 Kosovo AO (Judge Bennouna), supra note 1, para. 56.

71 ‘The United Kingdom condemns unilateral statements on Kosovo's final status from either side. We will not recognize any move to establish political arrangements for the whole or part of Kosovo, either unilaterally or in any arrangement that does not have the backing of the international community’; Mr Harrison (UK), UN Doc. S/PV.4742 (2003), at 16.

72 Kosovo AO (Judge Bennouna), supra note 1, para. 56.

73 Ibid., para. 109.

74 Ibid., para. 107; see also para. 76.

75 Ibid.

76 ILC, Report of the International Law Commission on the work of its fifty-third session, 46, para. (7). Quotation from: Petrolane, Inc. v. The Government of the Islamic Republic of Iran, Iran–U.S. CTR, Vol. 27 (1991), at 92.

77 Report of the International Law Commission, 61st Session, A/61/40, 2009, at 21 (emphasis added).

78 Kosovo AO, supra note 1, para. 108 (emphasis added).

79 A. C. Doyle, Memoirs of Sherlock Holmes (1930), 345.

80 UNSC, sixty-third year, 5839th meeting, 18 February 2008, UN Doc. S/PV.5839 (2008), at 3.

81 Letter dated 12 June 2008 from the Secretary-General to His Excellency Mr Boris Tadić, UN Doc. S/2008/354 (2008).

82 ‘The United Nations Preliminary Assessment Is that the [Kosovo AO] Does Not Affect the Status of UNMIK or a Status-Neutral Policy’, UNSC, 6367th meeting, 3 August 2010, UN Doc. S/PV.6367 (2010), at 3.

83 Ibid., at 2. See also Kosovo AO (Judge Bennouna), supra note 1, para. 48.

84 Report of the Secretary-General on the UN Interim Administration Mission in Kosovo, UN Doc. S/2008/211 (2008), para. 3.

85 Kosovo AO, supra note 1, para. 108.

86 Ibid., para. 94.

87 Vienna Convention on the Law of Treaties, 23 May 1969, entered into force on 27 January 1980, 1155 UNTS 331.

88 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, [1971] ICJ Rep. 16, para. 114.

89 Kosovo AO, supra note 1, para. 94.

90 UN extracts from the debates of the UNSC concerning UNSCR 1244, UN Doc. S/PV.4011 (1999): Mr Lavrov (Russian Federation), at 7; Mr Shen Guofang (China), at 8; Mr Petrella (Argentina), at 19.

91 Ibid., at 9.

92 Kosovo AO, supra note 1, paras. 110–119.

93 Ibid., para. 80; see the contribution by Olivier Corten in this issue.

94 Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Provisional Measures, Order of 14 April 1992, ICJ Rep. 1992 (Judge Lachs), at 26; (Libyan Jamahiriya v. United States of America), Provisional Measures, Order of 14 April 1992, ICJ Rep. 1992 (Judge Lachs), at 138.

95 See Kosovo AO (Vice-President Tomka), supra note 1, para. 1.

96 Transcript of press conference held by UN Secretary-General U Thant, Dakar, Senegal, 4 January 1970, reproduced in (1970) UN Monthly Chronicle 7, at 36.

97 Kosovo AO, supra note 1, para. 56.

98 Ibid., para. 114 (emphasis added).

99 Kosovo AO, supra note 1, para. 82.

100 UNSC, 6367th meeting, 3 August 2010, UN Doc. S/PV.6367 (2010); UNGA, 120th meeting, 9 September 2010, UN Doc. A/64/PV.120.

101 The situation in Kosovo, UN Doc. S/RES/1244 (1999).

102 Ibid.