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THE COURT,
composed as above,
gives the following Advisory Opinion:
1. The question on which the advisory opinion of the Court has been
requested is set forth in resolution 63/3 adopted by the General Assembly of
the United Nations (hereinafter the General Assembly) on 8 October 2008. By
a letter dated 9 October 2008 and received in the Registry by facsimile on
10 October 2008, the original of which was received in the Registry on 15
October 2008, the Secretary-General of the United Nations officially
communicated to the Court the decision taken by the General Assembly to
submit the question for an advisory opinion. Certified true copies of the
English and French versions of the resolution were enclosed with the letter.
The resolution reads as follows:
“The General Assembly,
Mindful of the purposes and principles of the United Nations,
Bearing in mind its functions and powers under the Charter of the United
Nations,
Recalling that on 17 February 2008 the Provisional Institutions of
Self-Government of Kosovo declared independence from Serbia,
Aware that this act has been received with varied reactions by the Members
of the United Nations as to its compatibility with the existing
international legal order,
Decides, in accordance with Article 96 of the Charter of the United Nations
to request the International Court of Justice, pursuant to Article 65 of the
Statute of the Court, to render an advisory opinion on the following
question:
‘Is the unilateral declaration of independence by the Provisional
Institutions of Self-Government of Kosovo in accordance with international
law?’”
2. By letters dated 10 October 2008, the Registrar, pursuant to Article 66,
paragraph 1, of the Statute, gave notice of the request for an advisory
opinion to all States entitled to appear before the Court.
3. By an Order dated 17 October 2008, in accordance with Article 66,
paragraph 2, of the Statute, the Court decided that the United Nations and
its Member States were likely to be able to furnish information on the
question. By the same Order, the Court fixed, respectively, 17 April 2009 as
the time-limit within which written statements might be submitted to it on
the question, and 17 July 2009 as the time-limit within which States and
organizations having presented written statements might submit written
comments on the other written statements in accordance with Article 66,
paragraph 4, of the Statute. The Court also decided that, taking account of
the fact that the unilateral declaration of independence of 17 February 2008
is the subject of the question submitted to the Court for an advisory
opinion, the authors of the above declaration were considered likely to be
able to furnish information on the question. It therefore further decided to
invite them to make written contributions to the Court within the same
time-limits.
4. By letters dated 20 October 2008, the Registrar informed the United
Nations and its Member States of the Court’s decisions and transmitted to
them a copy of the Order. By letter of the same date, the Registrar informed
the authors of the above-mentioned declaration of independence of the
Court’s decisions, and transmitted to them a copy of the Order.
5. Pursuant to Article 65, paragraph 2, of the Statute, on 30 January 2009
the Secretary-General of the United Nations communicated to the Court a
dossier of documents likely to throw light upon the question. The dossier
was subsequently placed on the Court’s website.
6. Within the time-limit fixed by the Court for that purpose, written
statements were filed, in order of their receipt, by: Czech Republic,
France, Cyprus, China, Switzerland, Romania, Albania, Austria, Egypt,
Germany, Slovakia, Russian Federation, Finland, Poland, Luxembourg, Libyan
Arab Jamahiriya, United Kingdom, United States of America, Serbia, Spain,
Islamic Republic of Iran, Estonia, Norway, Netherlands, Slovenia, Latvia,
Japan, Brazil, Ireland, Denmark, Argentina, Azerbaijan, Maldives, Sierra
Leone and Bolivia. The authors of the unilateral declaration of independence
filed a written contribution. On 21 April 2009, the Registrar communicated
copies of the written statements and written contribution to all States
having submitted a written statement, as well as to the authors of the
unilateral declaration of independence.
7. On 29 April 2009, the Court decided to accept the written statement filed
by the Bolivarian Republic of Venezuela, submitted on 24 April 2009, after
expiry of the relevant time-limit. On 15 May 2009, the Registrar
communicated copies of this written statement to all States having submitted
a written statement, as well as to the authors of the unilateral declaration
of independence.
8. By letters dated 8 June 2009, the Registrar informed the United Nations
and its Member States that the Court had decided to hold hearings, opening
on 1 December 2009, at which they could present oral statements and
comments, regardless of whether or not they had submitted written statements
and, as the case may be, written comments. The United Nations and its Member
States were invited to inform the Registry, by 15 September 2009, if they
intended to take part in the oral proceedings. The letters further indicated
that the authors of the unilateral declaration of independence could present
an oral contribution. By letter of the same date, the Registrar informed the
authors of the unilateral declaration of independence of the Court’s
decision to hold hearings, inviting them to indicate, within the same
time-limit, whether they intended to take part in the oral proceedings.
9. Within the time-limit fixed by the Court for that purpose, written
comments were filed, in order of their receipt, by: France, Norway, Cyprus,
Serbia, Argentina, Germany, Netherlands, Albania, Slovenia, Switzerland,
Bolivia, United Kingdom, United States of America and Spain. The authors of
the unilateral declaration of independence submitted a written contribution
regarding the written statements.
10. Upon receipt of the above-mentioned written comments and written
contribution, the Registrar, on 24 July 2009, communicated copies thereof to
all States having submitted written statements, as well as to the authors of
the unilateral declaration of independence.
11. By letters dated 30 July 2009, the Registrar communicated to the United
Nations, and to all of its Member States that had not participated in the
written proceedings, copies of all written statements and written comments,
as well as the written contributions of the authors of the unilateral
declaration of independence.
12. By letters dated 29 September 2009, the Registry transmitted a detailed
timetable of the hearings to those who, within the time-limit fixed for that
purpose by the Court, had expressed their intention to take part in the
aforementioned proceedings.
13. Pursuant to Article 106 of the Rules of Court, the Court decided to make
the written statements and written comments submitted to the Court, as well
as the written contributions of the authors of the unilateral declaration of
independence, accessible to the public, with effect from the opening of the
oral proceedings.
14. In the course of hearings held from 1 to 11 December 2009, the Court
heard oral statements, in the following order, by:
For the Republic of Serbia:
H.E. Mr. Dušan T. Bataković, PhD in History, University of Paris-Sorbonne
(Paris IV), Ambassador of the
Republic of Serbia to France, Vice-Director of the Institute for Balkan
Studies and Assistant Professor at
the University of Belgrade, Head of Delegation,
Mr. Vladimir Djerić, S.J.D. (Michigan), Attorney at Law, Mikijelj, Janković
& Bogdanović, Belgrade, Counsel and Advocate,
Mr. Andreas Zimmermann, LL.M. (Harvard), Professor of International Law,
University of Potsdam, Director of the Potsdam Center of Human Rights,
Member of the Permanent Court of Arbitration, Counsel and Advocate,
Mr. Malcolm N. Shaw Q.C., Sir Robert Jennings Professor of International
Law, University of Leicester, United Kingdom, Counsel and Advocate,
Mr. Marcelo G. Kohen, Professor of International Law, Graduate Institute of
International and Development
Studies, Geneva, Associate Member of the Institut de droit international,
Counsel and Advocate,
Mr. Saša Obradović, Inspector General in the Ministry of Foreign Affairs,
Deputy Head of Delegation;
For the authors of the unilateral declaration of independence:
Mr. Skender Hyseni, Head of Delegation, Sir Michael Wood, K.C.M.G., member
of the English Bar,
Member of the International Law Commission, Counsel,
Mr. Daniel Müller, Researcher at the Centre de droit international de
Nanterre (CEDIN), University of
Paris Ouest, Nanterre-La Défense, Counsel,
Mr. Sean D. Murphy, Patricia Roberts Harris Research Professor of Law,
George Washington University,
Counsel;
For the Republic of Albania:
H.E. Mr. Gazmend Barbullushi, Ambassador Extraordinary and Plenipotentiary
of the Republic of Albania to the Kingdom of the Netherlands, Legal Adviser,
Mr. Jochen A. Frowein, M.C.L., Director emeritus of the Max Planck Institute
for International law, Professor emeritus of the University of Heidelberg,
Member of the Institute of International Law, Legal Adviser,
Mr. Terry D. Gill, Professor of Military Law at the University of Amsterdam
and Associate Professor of
Public International Law at Utrecht University, Legal Adviser;
For the Federal Republic of Germany:
Ms Susanne Wasum-Rainer, Legal Adviser, Federal Foreign Office (Berlin);
For the Kingdom of Saudi Arabia:
H.E. Mr. Abdullah A. Alshaghrood, Ambassador of the Kingdom of Saudi Arabia
to the Kingdom of the
Netherlands, Head of Delegation;
For the Argentine Republic:
H.E. Madam Susana Ruiz Cerutti, Ambassador, Legal Adviser to the Ministry of
Foreign Affairs, International Trade and Worship, Head of Delegation;
For the Republic of Austria: H.E. Mr. Helmut Tichy, Ambassador, Deputy Legal
Adviser, Federal Ministry of European and International Affairs;
For the Republic of Azerbaijan: H.E. Mr. Agshin Mehdiyev, Ambassador and
Permanent Representative of Azerbaijan to the United Nations;
For the Republic of Belarus:
H.E. Madam Elena Gritsenko, Ambassador of the Republic of Belarus to the
Kingdom of the Netherlands, Head of Delegation;
For the Plurinational State of Bolivia: H.E. Mr. Roberto Calzadilla
Sarmiento, Ambassador of the
Plurinational State of Bolivia to the Kingdom of the Netherlands;
For the Federative Republic of Brazil:
H.E. Mr. José Artur Denot Medeiros, Ambassador of the Federative Republic of
Brazil to the Kingdom of the Netherlands;
For the Republic of Bulgaria:
Mr. Zlatko Dimitroff, S.J.D., Director of the International Law Department,
Ministry of Foreign Affairs, Head of Delegation;
For the Republic of Burundi:
Mr. Thomas Barankitse, Legal Attaché, Counsel,
Mr. Jean d’Aspremont, Associate Professor, University of Amsterdam, Chargé
de cours invité, Catholic University of Louvain, Counsel;
For the People’s Republic of China:
H.E. Madam Xue Hanqin, Ambassador to the Association of Southeast Asian
Nations (ASEAN), Legal Counsel of the Ministry of Foreign Affairs, Member of
the International Law Commission, Member of the Institut de droit
international, Head of Delegation;
For the Republic of Cyprus:
H.E. Mr. James Droushiotis, Ambassador of the Republic of Cyprus to the
Kingdom of the Netherlands,
Mr. Vaughan Lowe Q.C., member of the English Bar, Chichele Professor of
International Law, University of
Oxford, Counsel and Advocate,
Mr. Polyvios G. Polyviou, Counsel and Advocate;
For the Republic of Croatia:
H.E. Madam Andreja Metelko-Zgombić, Ambassador, Chief Legal Adviser in the
Ministry of Foreign Affairs and European Integration;
For the Kingdom of Denmark:
H.E. Mr. Thomas Winkler, Ambassador, Under-Secretary for Legal Affairs,
Ministry of Foreign Affairs, Head of Delegation;
For the Kingdom of Spain:
Ms Concepción Escobar Hernández, Legal Adviser, Head of the International
Law Department, Ministry of
Foreign Affairs and Co-operation, Head of Delegation and Advocate;
For the United States of America:
Mr. Harold Hongju Koh, Legal Adviser, Department of State, Head of
Delegation and Advocate;
For the Russian Federation:
H.E. Mr. Kirill Gevorgian, Ambassador, Head of the Legal Department,
Ministry of Foreign Affairs, Head of
Delegation;
For the Republic of Finland:
Ms Päivi Kaukoranta, Director General, Legal Service, Ministry of Foreign
Affairs,
Mr. Martti Koskenniemi, Professor at the University of Helsinki;
For the French Republic:
Ms Edwige Belliard, Director of Legal Affairs, Ministry of Foreign and
European Affairs,
Mr. Mathias Forteau, Professor at the University of Paris Ouest, Nanterre-La
Défense;
For the Hashemite Kingdom of Jordan:
H.R.H. Prince Zeid Raad Zeid Al Hussein, Ambassador of the Hashemite Kingdom
of Jordan to the United States of America, Head of Delegation;
For the Kingdom of Norway:
Mr. Rolf Einar Fife, Director General, Legal Affairs Department, Ministry of
Foreign Affairs, Head of
Delegation;
For the Kingdom of the Netherlands:
Ms Liesbeth Lijnzaad, Legal Adviser, Ministry of Foreign Affairs;
For Romania:
Mr. Bogdan Aurescu, Secretary of State, Ministry of Foreign Affairs,
Mr. Cosmin Dinescu, Director-General for Legal Affairs, Ministry of Foreign
Affairs;
For the United Kingdom of Great Britain and Northern Ireland:
Mr. Daniel Bethlehem Q.C., Legal Adviser to the Foreign and Commonwealth
Office, Representative of the
United Kingdom of Great Britain and Northern Ireland, Counsel and Advocate,
Mr. James Crawford, S.C., Whewell Professor of International Law, University
of Cambridge, Member
of the Institut de droit international, Counsel and Advocate;
For the Bolivarian Republic of Venezuela:
Mr. Alejandro Fleming, Deputy Minister for Europe of the Ministry of the
People’s Power for Foreign Affairs;
For the Socialist Republic of Viet Nam:
H.E. Madam Nguyen Thi Hoang Anh, Doctor of Law, Director-General, Department
of International Law
and Treaties, Ministry of Foreign Affairs.
15. Questions were put by Members of the Court to participants in the oral
proceedings;
several of them replied in writing, as requested, within the prescribed
time-limit.
16. Judge Shi took part in the oral proceedings; he subsequently resigned
from the Court from effect from 28 May 2010.
I. JURISDICTION AND DISCRETION
17. When seised of a request for an advisory opinion, the Court must first
consider whether it has jurisdiction to give the opinion requested and
whether, should the answer be in the affirmative, there is any reason why
the Court, in its discretion, should decline to exercise any such
jurisdiction in the case before it (Legality of the Threat or Use of Nuclear
Weapons, Advisory Opinion, I.C.J. Reports 1996 (I), p. 232, para. 10; Legal
Consequences of the Construction of a Wall in the Occupied Palestinian
Territory, Advisory Opinion, I.C.J. Reports 2004 (I), p. 144, para. 13).
A. Jurisdiction
18. The Court will thus first address the question whether it possesses
jurisdiction to give the advisory opinion requested by the General Assembly
on 8 October 2008. The power of the Court to give an advisory opinion is
based upon Article 65, paragraph 1, of its Statute, which provides that:
“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.”
19. In its application of this provision, the Court has indicated that:
“It is . . . a precondition of the Court’s competence that the advisory
opinion be requested by an organ duly authorized to seek it under the
Charter, that it be requested on a legal question, and that, except in the
case of the General Assembly or the Security Council, that question should
be one arising within the scope of the activities of the requesting organ.”
(Application for Review of Judgement No. 273 of the United Nations
Administrative Tribunal, Advisory Opinion, I.C.J. Reports 1982, pp. 333-334,
para. 21.)
20. It is for the Court to satisfy itself that the request for an advisory
opinion comes from an organ of the United Nations or a specialized agency
having competence to make it. The General Assembly is authorized to request
an advisory opinion by Article 96 of the Charter, which provides that:
“1. The General Assembly or the Security Council may request the
International Court of Justice to give an advisory opinion on any legal
question.
2. Other organs of the United Nations and specialized agencies, which may at
any time be so authorized by the General Assembly, may also request advisory
opinions of the Court on legal questions arising within the scope of their
activities.”
21. While paragraph 1 of Article 96 confers on the General Assembly the
competence to request an advisory opinion on “any legal question”, 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 (Interpretation of Peace
Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion,
I.C.J. Reports 1950, p. 70; Legality of the Threat or Use of Nuclear
Weapons, Advisory Opinion, I.C.J. Reports 1996 (I), pp. 232-233, paras.
11-12; Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), p. 145,
paras. 16-17).
22. The Court observes that Article 10 of the Charter provides that:
“The General Assembly may discuss any questions or any matters within the
scope of the present Charter or relating to the powers and functions of any
organs provided for in the present Charter, and, except as provided in
Article 12, may make recommendations to the Members of the United Nations or
to the Security Council or to both on any such questions or matters.”
Moreover, Article 11, paragraph 2, of the Charter has specifically provided
the General Assembly with competence to discuss “any questions relating to
the maintenance of international peace and security brought before it by any
Member of the United Nations” and, subject again to the limitation in
Article 12, to make recommendations with respect thereto.
23. Article 12, paragraph 1, of the Charter provides that:
“While the Security Council is exercising in respect of any dispute or
situation the functions assigned to it in the present Charter, the General
Assembly shall not make any recommendation with regard to that dispute or
situation unless the Security Council so requests.”
24. In the present proceedings, it was suggested that, since the Security
Council was seised of the situation in Kosovo, the effect of Article 12,
paragraph 1, was that the General Assembly’s request for an advisory opinion
was outside its powers under the Charter and thus did not fall within the
authorization conferred by Article 96, paragraph 1. As the Court has stated
on an earlier occasion, however, “[a] request for an advisory opinion is not
in itself a ‘recommendation’ by the General Assembly ‘with regard to [a]
dispute or situation’” (Legal Consequences of the Construction of a Wall in
the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004
(I), p. 148, para. 25). Accordingly, while Article 12 may limit the scope of
the action which the General Assembly may take subsequent to its receipt of
the Court’s opinion (a matter on which it is unnecessary for the Court to
decide in the present context), it does not in itself limit the
authorization to request an advisory opinion which is conferred upon the
General Assembly by Article 96, paragraph 1. Whether the delimitation of the
respective powers of the Security Council and the General Assembly - of
which Article 12 is one aspect - should lead the Court, in the circumstances
of the present case, to decline to exercise its jurisdiction to render an
advisory opinion is another matter (which the Court will consider in
paragraphs 29 to 48 below).
25. It is also for the Court to satisfy itself that the question on which it
is requested to give its opinion is a “legal question” within the meaning of
Article 96 of the Charter and Article 65 of the Statute. In the present
case, the question put to the Court by the General Assembly asks whether the
declaration of independence to which it refers is “in accordance with
international law”. 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; as the Court has remarked on a previous occasion,
questions “framed in terms of law and rais[ing] problems of international
law . . . are by their very nature susceptible of a reply based on law”
(Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 18, para. 15) and
therefore appear to be questions of a legal character for the purposes of
Article 96 of the Charter and Article 65 of the Statute.
26. Nevertheless, some of the participants in the present proceedings have
suggested that the question posed by the General Assembly is not, in
reality, a legal question. According to this submission, international law
does not regulate the act of making a declaration of independence, which
should be regarded as a political act; only domestic constitutional law
governs the act of making such a declaration, while the Court’s jurisdiction
to give an advisory opinion is confined to questions of international law.
In the present case, however, the Court has not been asked to give an
opinion on whether the declaration of independence is in accordance with any
rule of domestic law but only whether it is in accordance with international
law. The Court can respond to that question by reference to international
law without the need to enquire into any system of domestic law.
27. Moreover, the Court has repeatedly stated that the fact that a question
has political aspects does not suffice to deprive it of its character as a
legal question (Application for Review of Judgement No. 158 of the United
Nations Administrative Tribunal, Advisory Opinion, Reports 1973, p. 172,
para. 14). Whatever its political aspects, the Court cannot refuse to
respond to the legal elements of a question which invites it to discharge an
essentially judicial task, namely, in the present case, an assessment of an
act by reference to international law. The Court has also made clear that,
in determining the jurisdictional issue of whether it is confronted with a
legal question, it is not concerned with the political nature of the motives
which may have inspired the request or the political implications which its
opinion might have (Conditions of Admission of a State in Membership of the
United Nations (Article 4 of the Charter), Advisory Opinion, 1948, Reports
1947-1948, p. 61, and Legality of the Threat or Use of Nuclear Weapons,
Advisory Opinion, I.C.J. Reports 1996 (I), p. 234, para. 13).
28. The Court therefore considers that it has jurisdiction to give an
advisory opinion in response to the request made by the General Assembly.
B. Discretion
29. The fact that the Court has jurisdiction does not mean, however, that it
is obliged to exercise it:
“The Court has recalled many times in the past that Article 65, paragraph 1,
of its Statute, which provides that ‘The Court may give an advisory opinion
. . .’ (emphasis added), should be interpreted to mean that the Court has a
discretionary power to decline to give an advisory opinion even if the
conditions of jurisdiction are met.” (Legal Consequences of the Construction
of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J.
Reports 2004 (I), p. 156, para. 44.)
The discretion whether or not to respond to a request for an advisory
opinion exists so as to protect the integrity of the Court’s judicial
function and its nature as the principal judicial organ of the United
Nations (Status of Eastern Carelia, Advisory Opinion, 1923, P.C.I.J., Series
B, No. 5, p. 29; Application for Review of Judgement No. 158 of the United
Nations Administrative Tribunal, Advisory Opinion, I.C.J. Reports 1973, p.
175, para. 24; Application for Review of Judgement No. 273 of the United
Nations Administrative Tribunal, Advisory Opinion, I.C.J. Reports 1982, p.
334, para. 22; and Legal Consequences of the Construction of a Wall in the
Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I),
pp. 156-157, paras. 44-45).
30. The Court is, nevertheless, mindful of the fact that its answer to a
request for an advisory opinion “represents its participation in the
activities of the Organization, and, in principle, should not be refused”
(Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First
Phase, Advisory Opinion, I.C.J. Reports 1950, p. 71; Difference Relating to
Immunity from Legal Process of a Special Rapporteur of the Commission on
Human Rights, Advisory Opinion, I.C.J. Reports 1999 (I), pp. 78-79, para.
29; Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), p. 156,
para. 44). Accordingly, the consistent jurisprudence of the Court has
determined that only “compelling reasons” should lead the Court to refuse
its opinion in response to a request falling within its jurisdiction
(Judgments of the Administrative Tribunal of the ILO upon complaints made
against the Unesco, I.C.J. Reports 1956, p. 86; Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory, Advisory
Opinion, I.C.J. Reports 2004 (I), p. 156, para. 44).
31. The Court must satisfy itself as to the propriety of the exercise of its
judicial function in the present case. It has therefore given careful
consideration as to whether, in the light of its previous jurisprudence,
there are compelling reasons for it to refuse to respond to the request from
the General Assembly.
32. One argument, advanced by a number of participants in the present
proceedings, concerns the motives behind the request. Those participants
drew attention to a statement made by the sole sponsor of the resolution by
which the General Assembly requested the Court’s opinion to the effect that
“the Court’s advisory opinion would provide politically neutral, yet
judicially authoritative, guidance to many countries still deliberating how
to approach unilateral declarations of independence in line with
international law.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . .
Supporting this draft resolution would also serve to reaffirm a fundamental
principle: the right of any Member State of the United Nations to pose a
simple, basic question on a matter it considers vitally important to the
Court. To vote against it would be in effect a vote to deny the right of any
country to seek - now or in the future - judicial recourse through the
United Nations system.” (A/63/PV.22, p. 1.)
According to those participants, this statement demonstrated that the
opinion of the Court was being sought not in order to assist the General
Assembly but rather to serve the interests of one State and that the Court
should, therefore, decline to respond.
33. The advisory jurisdiction is not a form of judicial recourse for States
but the means by which the General Assembly and the Security Council, as
well as other organs of the United Nations and bodies specifically empowered
to do so by the General Assembly in accordance with Article 96, paragraph 2,
of the Charter, may obtain the Court’s opinion in order to assist them in
their activities. The Court’s opinion is given not to States but to the
organ which has requested it (Interpretation of Peace Treaties with
Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, I.C.J. Reports
1950, p. 71). Nevertheless, 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. As the Court put it in its
Advisory Opinion on Legality of the Threat or Use of Nuclear Weapons,
“once the Assembly has asked, by adopting a resolution, for an advisory
opinion on a legal question, the Court, in determining whether there are any
compelling reasons for it to refuse to give such an opinion, will not have
regard to the origins or to the political history of the request, or to the
distribution of votes in respect of the adopted resolution” (I.C.J. Reports
1996 (I), p. 237, para. 16).
34. It was also suggested by some of those participating in the proceedings
that resolution 63/3 gave no indication of the purpose for which the General
Assembly needed the Court’s opinion and that there was nothing to indicate
that the opinion would have any useful legal effect. This argument cannot be
accepted. The Court has consistently made clear that 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. In its
Advisory Opinion on Legality of the Threat or Use of Nuclear Weapons, the
Court rejected an argument that it should refuse to respond to the General
Assembly’s request on the ground that the General Assembly had not explained
to the Court the purposes for which it sought an opinion, stating that
“it is not for the Court itself to purport to decide whether or not an
advisory opinion is needed by the Assembly for the performance of its
functions. The General Assembly has the right to decide for itself on the
usefulness of an opinion in the light of its own needs.” (I.C.J. Reports
1996 (I), p. 237, para. 16.)
Similarly, in the Advisory Opinion on Legal Consequences of the Construction
of a Wall in the Occupied Palestinian Territory, the Court commented that
“[t]he Court cannot substitute its assessment of the usefulness of the
opinion requested for that of the organ that seeks such opinion, namely the
General Assembly” (I.C.J. Reports 2004 (I), p. 163, para. 62).
35. Nor does the Court consider that it should refuse to respond to the
General Assembly’s request on the basis of suggestions, advanced by some of
those participating in the proceedings, that its opinion might lead to
adverse political consequences. Just as the Court cannot substitute its own
assessment for that of the requesting organ in respect of whether its
opinion will be useful to that organ, it cannot - in particular where there
is no basis on which to make such an assessment - substitute its own view as
to whether an opinion would be likely to have an adverse effect. As the
Court stated in its Advisory Opinion on Legality of the Threat or Use of
Nuclear Weapons, in response to a submission that a reply from the Court
might adversely affect disarmament negotiations, faced with contrary
positions on this issue “there are no evident criteria by which it can
prefer one assessment to another” (Legality of the Threat or Use of Nuclear
Weapons, Advisory Opinion, I.C.J. Reports 1996 (I), p. 237, para. 17; see
also Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 37, para. 73;
and Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), pp.
159-160, paras. 51-54).
36. An important issue which the Court must consider is whether, in view of
the respective roles of the Security Council and the General Assembly in
relation to the situation in Kosovo, the Court, as the principal judicial
organ of the United Nations, should decline to answer the question which has
been put to it on the ground that the request for the Court’s opinion has
been made by the General Assembly rather than the Security Council.
37. The situation in Kosovo had been the subject of action by the Security
Council, in the exercise of its responsibility for the maintenance of
international peace and security, for more than ten years prior to the
present request for an advisory opinion. The Council first took action
specifically relating to the situation in Kosovo on 31 March 1998, when it
adopted resolution 1160 (1998). That was followed by resolutions 1199
(1998), 1203 (1998) and 1239 (1999). On 10 June 1999, the Council adopted
resolution 1244 (1999), which authorized the creation of an international
military presence (subsequently known as “KFOR”) and an international civil
presence (the United Nations Interim Administration Mission in Kosovo,
“UNMIK”) and laid down a framework for the administration of Kosovo. By
resolution 1367 (2001), the Security Council decided to terminate the
prohibitions on the sale or supply of arms established by paragraph 8 of
resolution 1160 (1998). The Security Council has received periodic reports
from the Secretary-General on the activities of UNMIK. The dossier submitted
to the Court by the Secretary-General records that the Security Council met
to consider the situation in Kosovo on 29 occasions between 2000 and the end
of 2008. Although the declaration of independence which is the subject of
the present request was discussed by the Security Council, the Council took
no action in respect of it (Security Council, provisional verbatim record,
18 February 2008, 3 p.m. (S/PV.5839); Security Council, provisional verbatim
record, 11 March 2008, 3 p.m. (S/PV.5850)).
38. The General Assembly has also adopted resolutions relating to the
situation in Kosovo. Prior to the adoption by the Security Council of
resolution 1244 (1999), the General Assembly adopted five resolutions on the
situation of human rights in Kosovo (resolutions 49/204, 50/190, 51/111,
52/139 and 53/164). Following resolution 1244 (1999), the General Assembly
adopted one further resolution on the situation of human rights in Kosovo
(resolution 54/183 of 17 December 1999) and 15 resolutions concerning the
financing of UNMIK (resolutions 53/241, 54/245A, 54/245B, 55/227A, 55/227B,
55/295, 57/326, 58/305, 59/286A, 59/286B, 60/275, 61/285, 62/262, 63/295 and
64/279). However, the broader situation in Kosovo was not part of the agenda
of the General Assembly at the time of the declaration of independence and
it was therefore necessary in September 2008 to create a new agenda item for
the consideration of the proposal to request an opinion from the Court.
39. Against this background, it has been suggested that, given the
respective powers of the Security Council and the General Assembly, if the
Court’s opinion were to be sought regarding whether the declaration of
independence was in accordance with international law, the request should
rather have been made by the Security Council and that this fact constitutes
a compelling reason for the Court not to respond to the request from the
General Assembly. That conclusion is said to follow both from the nature of
the Security Council’s involvement and the fact that, in order to answer the
question posed, the Court will necessarily have to interpret and apply
Security Council resolution 1244 (1999) in order to determine whether or not
the declaration of independence is in accordance with international law.
40. While the request put to the Court concerns one aspect of a situation
which the Security Council has characterized as a threat to international
peace and security and which continues to feature on the agenda of the
Council in that capacity, that does not mean that the General Assembly has
no legitimate interest in the question. Articles 10 and 11 of the Charter,
to which the Court has already referred, confer upon the General Assembly a
very broad power to discuss matters within the scope of the activities of
the United Nations, including questions relating to international peace and
security. That power is not limited by the responsibility for the
maintenance of international peace and security which is conferred upon the
Security Council by Article 24, paragraph 1. As the Court has made clear in
its Advisory Opinion on Legal Consequences of the Construction of a Wall in
the Occupied Palestinian Territory, paragraph 26, “Article 24 refers to a
primary, but not necessarily exclusive, competence”. The fact that the
situation in Kosovo is before the Security Council and the Council has
exercised its Chapter VII powers in respect of that situation does not
preclude the General Assembly from discussing any aspect of that situation,
including the declaration of independence. The limit which the Charter
places upon the General Assembly to protect the role of the Security Council
is contained in Article 12 and restricts the power of the General Assembly
to make recommendations following a discussion, not its power to engage in
such a discussion.
41. Moreover, Article 12 does not bar all action by the General Assembly in
respect of threats to international peace and security which are before the
Security Council. The Court considered this question in some detail in
paragraphs 26 to 27 of its Advisory Opinion on Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory, in which the
Court noted that there has been an increasing tendency over time for the
General Assembly and the Security Council to deal in parallel with the same
matter concerning the maintenance of international peace and security and
observed that it is often the case that, while the Security Council has
tended to focus on the aspects of such matters related to international
peace and security, the General Assembly has taken a broader view,
considering also their humanitarian, social and economic aspects.
42. The Court’s examination of this subject in its Advisory Opinion on Legal
Consequences of the Construction of a Wall in the Occupied Palestinian
Territory was made in connection with an argument relating to whether or not
the Court possessed the jurisdiction to give an advisory opinion, rather
than whether it should exercise its discretion not to give an opinion. In
the present case, the Court has already held that Article 12 of the Charter
does not deprive it of the jurisdiction conferred by Article 96, paragraph 1
(paragraphs 23 to 24 above). It considers, however, that the analysis
contained in the 2004 Advisory Opinion is also pertinent to the issue of
discretion in the present case. That analysis demonstrates that 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. In addition, as the Court pointed out in its 2004
Advisory Opinion, General Assembly resolution 377A (V) (“Uniting for Peace”)
provides for the General Assembly to make recommendations for collective
measures to restore international peace and security in any case where there
appears to be a threat to the peace, breach of the peace or act of
aggression and the Security Council is unable to act because of lack of
unanimity of the permanent members (Legal Consequences of the Construction
of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J.
Reports 2004 (I), p. 150, para. 30). These considerations are of relevance
to the question whether the delimitation of powers between the Security
Council and the General Assembly constitutes a compelling reason for the
Court to decline to respond to the General Assembly’s request for an opinion
in the present case.
43. It is true, of course, that the facts of the present case are quite
different from those of the Advisory Opinion on Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory. The situation
in the occupied Palestinian territory had been under active consideration by
the General Assembly for several decades prior to its decision to request an
opinion from the Court and the General Assembly had discussed the precise
subject on which the Court’s opinion was sought. In the present case, with
regard to the situation in Kosovo, it was the Security Council which had
been actively seised of the matter. In that context, it discussed the future
status of Kosovo and the declaration of independence (see paragraph 37
above).
44. However, the purpose of the advisory jurisdiction is to enable organs of
the United Nations and other authorized bodies to obtain opinions from the
Court which will assist them in the future exercise of their functions. The
Court 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. As the preceding paragraphs demonstrate, the
General Assembly is entitled to discuss the declaration of independence and,
within the limits considered in paragraph 42, above, to make recommendations
in respect of that or other aspects of the situation in Kosovo without
trespassing on the powers of the Security Council. That being the case, the
fact that, hitherto, the declaration of independence has been discussed only
in the Security Council and that the Council has been the organ which has
taken action with regard to the situation in Kosovo does not constitute a
compelling reason for the Court to refuse to respond to the request from the
General Assembly.
45. Moreover, while it is the scope for future discussion and action which
is the determining factor in answering this objection to the Court rendering
an opinion, the Court also notes that the General Assembly has taken action
with regard to the situation in Kosovo in the past. As stated in paragraph
38 above, between 1995 and 1999, the General Assembly adopted six
resolutions addressing the human rights situation in Kosovo. The last of
these, resolution 54/183, was adopted on 17 December 1999, some six months
after the Security Council had adopted resolution 1244 (1999). While the
focus of this resolution was on human rights and humanitarian issues, it
also addressed (in para. 7) the General Assembly’s concern about a possible
“cantonization” of Kosovo. In addition, since 1999 the General Assembly has
each year approved, in accordance with Article 17, paragraph 1, of the
Charter, the budget of UNMIK (see paragraph 38 above). The Court observes
therefore that the General Assembly has exercised functions of its own in
the situation in Kosovo.
46. Further, in the view of the Court, the fact that it will necessarily
have to interpret and apply the provisions of Security Council resolution
1244 (1999) in the course of answering the question put by the General
Assembly does not constitute a compelling reason not to respond to that
question. While the interpretation and application of a decision of one of
the political organs of the United Nations is, in the first place, the
responsibility of the organ which took that decision, the Court, as the
principal judicial organ of the United Nations, has also frequently been
required to consider the interpretation and legal effects of such decisions.
It has done so both in the exercise of its advisory jurisdiction (see for
example, Certain Expenses of the United Nations, (Article 17, paragraph 2,
of the Charter), Advisory Opinion, I.C.J. Reports 1962, p. 175; and Legal
Consequences for States of the Continued Presence of South Africa in Namibia
(South West Africa) notwithstanding Security Council Resolution 276 (1970),
Advisory Opinion, I.C.J. Reports 1971, pp. 51-54, paras. 107-116), and in
the exercise of its contentious jurisdiction (see for example, Questions of
the 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, I.C.J. Reports 1992,
p. 15, paras. 39-41; Questions of Interpretation and Application of the 1971
Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan
Arab Jamahiriya v. United States of America), Provisional Measures, Order of
14 April 1992, I.C.J. Reports 1992, pp. 126-127, paras. 42-44).
47. There is, therefore, nothing incompatible with the integrity of the
judicial function in the Court undertaking such a task. The question is,
rather, whether it should decline to undertake that task unless it is the
organ which has taken the decision that asks the Court to do so. In its
Advisory Opinion on Certain Expenses of the United Nations, however, the
Court responded to the question posed by the General Assembly, even though
this necessarily required it to interpret a number of Security Council
resolutions (namely, resolutions 143, 145 and 146 of 1960 and 161 and 169 of
1961) (Certain Expenses of the United Nations (Article 17, paragraph 2, of
the Charter), Advisory Opinion, I.C.J. Reports 1962, pp. 175-177). The Court
also notes that, in its Advisory Opinion on Conditions of Admission of a
State in the United Nations (Article 4 of the Charter) (I.C.J. Reports
1947-1948, pp. 61-62), it responded to a request from the General Assembly
even though that request referred to statements made in a meeting of the
Security Council and it had been submitted that the Court should therefore
exercise its discretion to decline to reply (Conditions of Admission of a
State in the United Nations (Article 4 of the Charter), Pleadings, Oral
Arguments, Documents, p. 90). Where, as here, the General Assembly has a
legitimate interest in the answer to a question, the fact that that answer
may turn, in part, on a decision of the Security Council is not sufficient
to justify the Court in declining to give its opinion to the General
Assembly.
48. Accordingly, the Court considers that there are no compelling reasons
for it to decline to exercise its jurisdiction in respect of the present
request.
II. SCOPE AND MEANING OF THE QUESTION
49. The Court will now turn to the scope and meaning of the question on
which the General Assembly has requested that it give its opinion. The
General Assembly has formulated that question in the following terms:
“Is the unilateral declaration of independence by the Provisional
Institutions of Self-Government of Kosovo in accordance with international
law?”
50. The Court recalls that in some previous cases it has departed from the
language of the question put to it where the question was not adequately
formulated (see for example, in Interpretation of the Greco-Turkish
Agreement of 1 December 1926 (Final Protocol, Article IV), Advisory Opinion,
1928, P.C.I.J., Series B, No. 16) or where the Court determined, on the
basis of its examination of the background to the request, that the request
did not reflect the “legal questions really in issue” (Interpretation of the
Agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion,
I.C.J. Reports 1980, p. 89, para. 35). Similarly, where the question asked
was unclear or vague, the Court has clarified the question before giving its
opinion (Application for Review of Judgement No. 273 of the United Nations
Administrative Tribunal, Advisory Opinion, I.C.J. Reports 1982, p. 348,
para. 46).
51. In the present case, the question posed by the General Assembly is
clearly formulated. The question is narrow and specific; it asks for the
Court’s opinion on whether or not the declaration of independence is in
accordance with international law. It does not ask about the legal
consequences of that declaration. In particular, it does not ask whether or
not Kosovo has achieved statehood. Nor does it ask about the validity or
legal effects of the recognition of Kosovo by those States which have
recognized it as an independent State. The Court notes that, in past
requests for advisory opinions, the General Assembly and the Security
Council, when they have wanted the Court’s opinion on the legal consequences
of an action, have framed the question in such a way that this aspect is
expressly stated (see, for example, Legal Consequences for States of the
Continued Presence of South Africa in Namibia (South West Africa)
notwithstanding Security Council Resolution 276 (1970), Advisory Opinion,
I.C.J. Reports 1971, p. 16 and Legal Consequences of the Construction of a
Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports
2004 (I), p. 136). Accordingly, the Court does not consider that it is
necessary to address such issues as whether or not the declaration has led
to the creation of a State or the status of the acts of recognition in order
to answer the question put by the General Assembly. The Court accordingly
sees no reason to reformulate the scope of the question.
52. There are, however, two aspects of the question which require comment.
First, the question refers to “the unilateral declaration of independence by
the Provisional Institutions of Self-Government of Kosovo” (General Assembly
resolution 63/3 of 8 October 2008, single operative paragraph; emphasis
added). In addition, the third preambular paragraph of the General Assembly
resolution “[r]ecall[s] that on 17 February 2008 the Provisional
Institutions of Self-Government of Kosovo declared independence from
Serbia”. Whether it was indeed the Provisional Institutions of
Self-Government of Kosovo which promulgated the declaration of independence
was contested by a number of those participating in the present proceedings.
The identity of the authors of the declaration of independence, as is
demonstrated below (paragraphs 102 to 109), 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.
53. Nor does the Court consider that the General Assembly intended to
restrict the Court’s freedom to determine this issue for itself. The Court
notes that the agenda item under which what became resolution 63/3 was
discussed did not refer to the identity of the authors of the declaration
and was entitled simply “Request for an advisory opinion of the
International Court of Justice on whether the declaration of independence of
Kosovo is in accordance with international law” (General Assembly resolution
63/3 of 8 October 2008; emphasis added). The wording of this agenda item had
been proposed by the Republic of Serbia, the sole sponsor of resolution
63/3, when it requested the inclusion of a supplementary item on the agenda
of the 63rd session of the General Assembly (Letter of the Permanent
Representative of Serbia to the United Nations addressed to the
Secretary-General, 22 August 2008, A/63/195). That agenda item then became
the title of the draft resolution and, in turn, of resolution 63/3. The
common element in the agenda item and the title of the resolution itself is
whether the declaration of independence is in accordance with international
law. Moreover, there was no discussion of the identity of the authors of the
declaration, or of the difference in wording between the title of the
resolution and the question which it posed to the Court during the debate on
the draft resolution (A/63/PV.22).
54. As the Court has stated in a different context:
“It is not to be assumed that the General Assembly would . . . seek to
fetter or hamper the Court in the discharge of its judicial functions; the
Court must have full liberty to consider all relevant data available to it
in forming an opinion on a question posed to it for an advisory opinion.”
(Certain Expenses of the United Nations (Article 17, paragraph 2, of the
Charter), Advisory Opinion, I.C.J. Reports 1962, p. 157.)
This consideration is applicable in the present case. In assessing whether
or not the declaration of independence is in accordance with international
law, the Court must be free to examine the entire record and decide for
itself whether that declaration was promulgated by the Provisional
Institutions of Self-Government or some other entity.
55. While many of those participating in the present proceedings made
reference to the opinion of the Supreme Court of Canada in Reference by the
Governor-General concerning Certain Questions relating to the Secession of
Quebec from Canada ([1998] 2 S.C.R. 217; 161 D.L.R. (4th) 385; 115 Int. Law
Reps. 536), the Court observes that the question in the present case is
markedly different from that posed to the Supreme Court of Canada.
The relevant question in that case was
“Does international law give the National Assembly, legislature or
government of Quebec the right to effect the secession of Quebec from Canada
unilaterally? In this regard, is there a right to self-determination under
international law that would give the National Assembly, legislature or
government of Quebec the right to effect the secession of Quebec from Canada
unilaterally?”
56. The question put to the Supreme Court of Canada inquired whether there
was a right to “effect secession”, and whether there was a rule of
international law which conferred a positive entitlement on any of the
organs named. By contrast, the General Assembly has asked whether the
declaration of independence was “in accordance with” international law. The
answer to that question turns on whether or not the applicable international
law prohibited the declaration of independence. If the Court concludes that
it did, then it must answer the question put by saying that the declaration
of independence was not in accordance with international law. It follows
that the task which the Court is called upon to perform is to determine
whether or not the declaration of independence was adopted in violation of
international law. The Court is 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. 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.
The Court has been asked for an opinion on the first point, not the second.
III. FACTUAL BACKGROUND
57. The declaration of independence of 17 February 2008 must be considered
within the factual context which led to its adoption. The Court therefore
will briefly describe the relevant characteristics of the framework put in
place by the Security Council to ensure the interim administration of
Kosovo, namely, Security Council resolution 1244 (1999) and the regulations
promulgated thereunder by the United Nations Mission in Kosovo. The Court
will then proceed with a brief description of the developments relating to
the so-called “final status process” in the years preceding the adoption of
the declaration of independence, before turning to the events of 17 February
2008.
A. Security Council resolution 1244 (1999) and the relevant UNMIK
regulations
58. Resolution 1244 (1999) was adopted by the Security Council, acting under
Chapter VII of the United Nations Charter, on 10 June 1999. In this
resolution, the Security Council, “determined to resolve the grave
humanitarian situation” which it had identified (see the fourth preambular
paragraph) and to put an end to the armed conflict in Kosovo, authorized the
United Nations Secretary-General to establish an international civil
presence in Kosovo in order to provide “an interim administration for Kosovo
. . . which will provide transitional administration while establishing and
overseeing the development of provisional democratic self-governing
institutions” (para. 10).
Paragraph 3 demanded “in particular that the Federal Republic of Yugoslavia
put an immediate and verifiable end to violence and repression in Kosovo,
and begin and complete verifiable phased withdrawal from Kosovo of all
military, police and paramilitary forces according to a rapid timetable”.
Pursuant to paragraph 5 of the resolution, the Security Council decided on
the deployment in Kosovo, under the auspices of the United Nations, of
international civil and security presences and welcomed the agreement of the
Federal Republic of Yugoslavia to such presences. The powers and
responsibilities of the security presence were further clarified in
paragraphs 7 and 9. Paragraph 15 of resolution 1244 (1999) demanded that the
Kosovo Liberation Army (KLA) and other armed Kosovo Albanian groups end
immediately all offensive actions and comply with the requirements for
demilitarization. Immediately preceding the adoption of Security Council
resolution 1244 (1999), various implementing steps had already been taken
through a series of measures, including, inter alia, those stipulated in the
Military Technical Agreement of 9 June 1999, whose Article I.2 provided for
the deployment of KFOR, permitting these to “operate without hindrance
within Kosovo and with the authority to take all necessary action to
establish and maintain a secure environment for all citizens of Kosovo and
otherwise carry out its mission.” The Military Technical Agreement also
provided for the withdrawal of FRY ground and air forces, save for “an
agreed number of Yugoslav and Serb military and police personnel” as
foreseen in paragraph 4 of resolution 1244 (1999).
59. Paragraph 11 of the resolution described the principal responsibilities
of the international civil presence in Kosovo as follows:
“(a) Promoting the establishment, pending a final settlement, of substantial
autonomy and self-government in Kosovo, taking full account of annex 2 and
of the Rambouillet accords (S/1999/648);
(b) Performing basic civilian administrative functions where and as long as
required;
(c) Organizing and overseeing the development of provisional institutions
for democratic and autonomous self-government pending a political
settlement, including the holding of elections;
(d) Transferring, as these institutions are established, its administrative
responsibilities while overseeing and supporting the consolidation of
Kosovo’s local provisional institutions and other peace-building activities;
(e) Facilitating a political process designed to determine Kosovo’s future
status, taking into account the Rambouillet accords (S/1999/648);
(f) In a final stage, overseeing the transfer of authority from Kosovo’s
provisional institutions to institutions established under a political
settlement . . . ”
60. On 12 June 1999, the Secretary-General presented to the Security Council
“a preliminary operational concept for the overall organization of the civil
presence, which will be known as the United Nations Interim Administration
Mission in Kosovo (UNMIK)”, pursuant to paragraph 10 of resolution 1244
(1999), according to which UNMIK would be headed by a Special Representative
of the Secretary-General, to be appointed by the Secretary-General in
consultation with the Security Council (Report of the Secretary-General of
12 June 1999 (United Nations doc. S/1999/672, 12 June 1999)). The Report of
the Secretary-General provided that there would be four Deputy Special
Representatives working within UNMIK, each responsible for one of four major
components (the so-called “four pillars”) of the UNMIK régime (para. 5): (a)
interim civil administration (with a lead role assigned to the United
Nations); (b) humanitarian affairs (with a lead role assigned to the Office
of the United Nations High Commissioner for Refugees (UNHCR)); (c)
institution building (with a lead role assigned to the Organization for
Security and Co-operation in Europe (OSCE)); and (d) reconstruction (with a
lead role assigned to the European Union).
61. On 25 July 1999, the first Special Representative of the
Secretary-General promulgated UNMIK regulation 1999/1, which provided in its
Section 1.1 that “[a]ll legislative and executive authority with respect to
Kosovo, including the administration of the judiciary, is vested in UNMIK
and is exercised by the Special Representative of the Secretary-General”.
Under Section 3 of UNMIK regulation 1999/1, the laws applicable in the
territory of Kosovo prior to 24 March 1999 were to continue to apply, but
only to the extent that these did not conflict with internationally
recognized human rights standards and non-discrimination or the fulfilment
of the mandate given to UNMIK under resolution 1244 (1999). Section 3 was
repealed by UNMIK regulation 1999/25 promulgated by the Special
Representative of the Secretary-General on 12 December 1999, with
retroactive effect to 10 June 1999. Section 1.1 of UNMIK regulation 1999/24
of 12 December 1999 provides that “[t]he law applicable in Kosovo shall be:
(a) The regulations promulgated by the Special Representative of the
Secretary-General and subsidiary instruments issued thereunder; and (b) The
law in force in Kosovo on 22 March 1989”. Section 4, entitled “Transitional
Provision”, reads as follows: “All legal acts, including judicial decisions,
and the legal effects of events which occurred, during the period from 10
June 1999 up to the date of the present regulation, pursuant to the laws in
force during that period under section 3 of UNMIK Regulation No. 1999/1 of
25 July 1999, shall remain valid, insofar as they do not conflict with the
standards referred to in section 1 of the present regulation or any UNMIK
regulation in force at the time of such acts.”
62. The powers and responsibilities thus laid out in Security Council
resolution 1244 (1999) were set out in more detail in UNMIK regulation
2001/9 of 15 May 2001 on a Constitutional Framework for Provisional
Self-Government (hereinafter “Constitutional Framework”), which defined the
responsibilities relating to the administration of Kosovo between the
Special Representative of the Secretary-General and the Provisional
Institutions of Self-Government of Kosovo. With regard to the role entrusted
to the Special Representative of the Secretary-General under Chapter 12 of
the Constitutional Framework,
“[t]he exercise of the responsibilities of the Provisional Institutions of
Self-Government under this Constitutional Framework shall not affect or
diminish the authority of the SRSG to ensure full implementation of UNSCR
1244 (1999), including overseeing the Provisional Institutions of
Self-Government, its officials and its agencies, and taking appropriate
measures whenever their actions are inconsistent with UNSCR 1244 (1999) or
this Constitutional Framework”.
Moreover, pursuant to Chapter 2 (a), “[t]he Provisional Institutions of
Self-Government and their officials shall . . . [e]xercise their authorities
consistent with the provisions of UNSCR 1244 (1999) and the terms set forth
in this Constitutional Framework”. Similarly, according to the ninth
preambular paragraph of the Constitutional Framework, “the exercise of the
responsibilities of the Provisional Institutions of Self-Government in
Kosovo shall not in any way affect or diminish the ultimate authority of the
SRSG for the implementation of UNSCR 1244 (1999)”. In his periodical report
to the Security Council of 7 June 2001, the Secretary-General stated that
the Constitutional Framework contained
“broad authority for my Special Representative to intervene and correct any
actions of the provisional institutions of self-government that are
inconsistent with Security Council resolution 1244 (1999), including the
power to veto Assembly legislation, where necessary” (Report of the
Secretary-General on the United Nations Interim Administration Mission in
Kosovo, S/2001/565, 7 June 2001).
63. Having described the framework put in place by the Security Council to
ensure the interim administration of the territory of Kosovo, the Court now
turns to the relevant events in the final status process which preceded the
declaration of independence of 17 February 2008.
B. The relevant events in the final status process prior to 17 February 2008
64. In June 2005, the Secretary-General appointed Kai Eide, Permanent
Representative of Norway to the North Atlantic Treaty Organization, as his
Special Envoy to carry out a comprehensive review of Kosovo. In the wake of
the Comprehensive Review report he submitted to the Secretary-General
(attached to United Nations doc. S/2005/635 (7 October 2005)), there was
consensus within the Security Council that the final status process should
be commenced: “The Security Council agrees with Ambassador Eide’s overall
assessment that, notwithstanding the challenges still facing Kosovo and the
wider region, the time has come to move to the next phase of the political
process. The Council therefore supports the Secretary-General’s intention to
start a political process to determine Kosovo’s Future Status, as foreseen
in Security Council resolution 1244 (1999).” (Statement by the President of
the Security Council of 24 October 2005, S/PRST/2005/51.)
65. In November 2005, the Secretary-General appointed Mr. Martti Ahtisaari,
former President of Finland, as his Special Envoy for the future status
process for Kosovo. This appointment was endorsed by the Security Council
(see Letter dated 10 November 2005 from the President of the Security
Council addressed to the Secretary-General, S/2005/709). Mr. Ahtisaari’s
Letter of Appointment included, as an annex to it, a document entitled
“Terms of Reference” which stated that the Special Envoy “is expected to
revert to the Secretary-General at all stages of the process”. Furthermore,
“[t]he pace and duration of the future status process will be determined by
the Special Envoy on the basis of consultations with the Secretary-General,
taking into account the cooperation of the parties and the situation on the
ground” (Terms of Reference, dated 10 November 2005, as an Appendix to the
Letter of the Secretary-General to Mr. Martti Ahtisaari of 14 November 2005,
United Nations dossier No. 198).
66. The Security Council did not comment on these Terms of Reference.
Instead, the members of the Council attached to their approval of Mr.
Ahtisaari’s appointment the Guiding Principles of the Contact Group (an
informal grouping of States formed in 1994 to address the situation in the
Balkans and composed of France, Germany, Italy, the Russian Federation, the
United Kingdom and the United States). Members of the Security Council
further indicated that the Guiding Principles were meant for the
Secretary-General’s (and therefore also for the Special Envoy’s)
“reference”. These Principles stated, inter alia, that
“[t]he Contact Group . . . welcomes the intention of the Secretary-General
to appoint a Special Envoy to lead this process . . .
A negotiated solution should be an international priority. Once the process
has started, it cannot be blocked and must be brought to a conclusion. The
Contact Group calls on the parties to engage in good faith and
constructively, to refrain from unilateral steps and to reject any form of
violence.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . .
The Security Council will remain actively seized of the matter. The final
decision on the status of Kosovo should be endorsed by the Security
Council.” (Guiding principles of the Contact Group for a settlement of the
status of Kosovo, as annexed to the Letter dated 10 November 2005 from the
President of the Security Council addressed to the Secretary-General,
S/2005/709.)
67. Between 20 February 2006 and 8 September 2006, several rounds of
negotiations were held, at which delegations of Serbia and Kosovo addressed,
in particular, the decentralization of Kosovo’s governmental and
administrative functions, cultural heritage and religious sites, economic
issues, and community rights (Reports of the Secretary-General on the United
Nations Interim Administration Mission in Kosovo, S/2006/361, S/2006/707 and
S/2006/906). According to the reports of the Secretary-General, “the parties
remain[ed] far apart on most issues” (Reports of the Secretary-General on
the United Nations Interim Administration Mission in Kosovo, S/2006/707;
S/2006/906).
68. On 2 February 2007, the Special Envoy of the Secretary-General submitted
a draft comprehensive proposal for the Kosovo status settlement to the
parties and invited them to engage in a consultative process (recalled in
the Report of the Secretary-General on the United Nations Interim
Administration Mission in Kosovo, S/2007/134, 9 March 2007). On 10 March
2007, a final round of negotiations was held in Vienna to discuss the
settlement proposal. As reported by the Secretary-General, “the parties were
unable to make any additional progress” at those negotiations (Report of the
Secretary-General on the United Nations Interim Administration Mission in
Kosovo, S/2007/395, 29 June 2007, p. 1).
69. On 26 March 2007, the Secretary-General submitted the report of his
Special Envoy to the Security Council. The Special Envoy stated that “after
more than one year of direct talks, bilateral negotiations and expert
consultations, it [had] become clear to [him] that the parties [were] not
able to reach an agreement on Kosovo’s future status” (Letter dated 26 March
2007 from the Secretary-General addressed to the President of the Security
Council attaching the Report of the Special Envoy of the Secretary-General
on Kosovo’s future status, S/2007/168, 26 March 2007). After emphasizing
that his
“mandate explicitly provides that [he] determine the pace and duration of
the future status process on the basis of consultations with the
Secretary-General, taking into account the cooperation of the parties and
the situation on the ground” (ibid., para. 3),
the Special Envoy concluded:
“It is my firm view that the negotiations’ potential to produce any mutually
agreeable outcome on Kosovo’s status is exhausted. No amount of additional
talks, whatever the format, will overcome this impasse.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . .
The time has come to resolve Kosovo’s status. Upon careful consideration of
Kosovo’s recent history, the realities of Kosovo today and taking into
account the negotiations with the parties, I have come to the conclusion
that the only viable option for Kosovo is independence, to be supervised for
an initial period by the international community.” (Ibid., paras. 3 and 5.)
70. The Special Envoy’s conclusions were accompanied by his finalized
Comprehensive Proposal for the Kosovo Status Settlement (S/2007/168/Add. 1,
26 March 2007), which, in his words, set forth “international supervisory
structures, [and] provide[d] the foundations for a future independent
Kosovo” (S/2007/168, 26 March 2007, para. 5). The Comprehensive Proposal
called for the immediate convening of a Constitutional Commission to draft a
Constitution for Kosovo (S/2007/168/Add. 1, 26 March 2007, Art. 10.1),
established guidelines concerning the membership of that Commission (ibid.,
Art. 10.2), set numerous requirements concerning principles and provisions
to be contained in that Constitution (ibid., Art. 1.3 and Ann. I), and
required that the Assembly of Kosovo approve the Constitution by a
two-thirds vote within 120 days (ibid., Art. 10.4). Moreover, it called for
the expiry of the UNMIK mandate after a 120-day transition period, after
which “all legislative and executive authority vested in UNMIK shall be
transferred en bloc to the governing authorities of Kosovo, unless otherwise
provided for in this Settlement” (ibid., Art. 15.1). It mandated the holding
of general and municipal elections no later than nine months from the entry
into force of the Constitution (ibid., Art. 11.1). The Court further notes
that the Comprehensive Proposal for the Kosovo Status Settlement provided
for the appointment of an International Civilian Representative (ICR), who
would have the final authority in Kosovo regarding interpretation of the
Settlement (ibid., Art. 12). The Comprehensive Proposal also specified that
the mandate of the ICR would be reviewed “no later than two years after the
entry into force of [the] Settlement, with a view to gradually reducing the
scope of the powers of the ICR and the frequency of intervention” (ibid.,
Ann. IX, Art. 5.1) and that
“[t]he mandate of the ICR shall be terminated when the International
Steering Group [a body composed of France, Germany, Italy, the Russian
Federation, the United Kingdom, the United States, the European Union, the
European Commission and NATO] determine[d] that Kosovo ha[d] implemented the
terms of [the] Settlement” (ibid., Art. 5.2).
71. The Secretary-General “fully support[ed] both the recommendation made by
[his] Special Envoy in his report on Kosovo’s future status and the
Comprehensive Proposal for the Kosovo Status Settlement” (Letter dated 26
March 2007 from the Secretary-General addressed to the President of the
Security Council, S/2007/168). The Security Council, for its part, decided
to undertake a mission to Kosovo (see Report of the Security Council mission
on the Kosovo issue, S/2007/256, 4 May 2007), but was not able to reach a
decision regarding the final status of Kosovo. A draft resolution was
circulated among the Council’s members (see draft resolution sponsored by
Belgium, France, Germany, Italy, the United Kingdom and the United States,
S/2007/437 Prov., 17 July 2007) but was withdrawn after some weeks when it
had become clear that it would not be adopted by the Security Council.
72. Between 9 August and 3 December 2007, further negotiations on the future
status of Kosovo were held under the auspices of a Troika comprising
representatives of the European Union, the Russian Federation and the United
States. On 4 December 2007, the Troika submitted its report to the
Secretary-General, which came to the conclusion that, despite intensive
negotiations, “the parties were unable to reach an agreement on Kosovo’s
status” and “[n]either side was willing to yield on the basic question of
sovereignty” (Report of the European Union/United States/Russian Federation
Troika on Kosovo, 4 December 2007, annexed to S/2007/723).
73. On 17 November 2007, elections were held for the Assembly of Kosovo, 30
municipal assemblies and their respective mayors (Report of the
Secretary-General on the United Nations Interim Administration Mission in
Kosovo S/2007/768). The Assembly of Kosovo held its inaugural session on 4
and 9 January 2008 (Report of the Secretary-General on the United Nations
Interim Administration Mission in Kosovo, S/2008/211).
C. The events of 17 February 2008 and thereafter
74. It is against this background that the declaration of independence was
adopted on 17 February 2008. The Court observes that the original language
of the declaration is Albanian. For the purposes of the present Opinion,
when quoting from the text of the declaration, the Court has used the
translations into English and French included in the dossier submitted on
behalf of the Secretary-General.
In its relevant passages, the declaration of independence states that its
authors were “[c]onvened in an extraordinary meeting on February 17, 2008,
in Pristina, the capital of Kosovo” (first preambular paragraph); it
“[r]ecall[ed] the years of internationally-sponsored negotiations between
Belgrade and Pristina over the question of [Kosovo’s] future political
status” and “[r]egrett[ed] that no mutually-acceptable status outcome was
possible” (tenth and eleventh preambular paragraphs). It further declared
that the authors were “[d]etermin[ed] to see [Kosovo’s] status resolved in
order to give [its] people clarity about their future, move beyond the
conflicts of the past and realise the full democratic potential of [its]
society” (thirteenth preambular paragraph).
75. In its operative part, the declaration of independence of 17 February
2008 states:
“1. 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 UN Special Envoy Martti Ahtisaari and his Comprehensive Proposal for the
Kosovo Status Settlement.
2. We declare Kosovo to be a democratic, secular and multi-ethnic republic,
guided by the principles of non-discrimination and equal protection under
the law. We shall protect and promote the rights of all communities in
Kosovo and create the conditions necessary for their effective participation
in political and decision-making processes.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . .
5. We welcome the international community’s continued support of our
democratic development through international presences established in Kosovo
on the basis of UN Security Council resolution 1244 (1999). We invite and
welcome an international civilian presence to supervise our implementation
of the Ahtisaari Plan, and a European Union-led rule of law mission.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . .
9. We hereby undertake the international obligations of Kosovo, including
those concluded on our behalf by the United Nations Interim Administration
Mission in Kosovo (UNMIK), . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . .
12. We hereby affirm, clearly, specifically, and irrevocably, that Kosovo
shall be legally bound to comply with the provisions contained in this
Declaration, including, especially, the obligations for it under the
Ahtisaari Plan . . . We declare publicly that all states are entitled to
rely upon this declaration . . .”
76. The declaration of independence was adopted at a meeting held on 17
February 2008 by 109 out of the 120 members of the Assembly of Kosovo,
including the Prime Minister of Kosovo and by the President of Kosovo (who
was not a member of the Assembly). The ten members of the Assembly
representing the Kosovo Serb community and one member representing the
Kosovo Gorani community decided not to attend this meeting. The declaration
was written down on two sheets of papyrus and read out, voted upon and then
signed by all representatives present. It was not transmitted to the Special
Representative of the Secretary-General and was not published in the
Official Gazette of the Provisional Institutions of Self-Government of
Kosovo.
77. After the declaration of independence was issued, the Republic of Serbia
informed the Secretary-General that it had adopted a decision stating that
that declaration represented a forceful and unilateral secession of a part
of the territory of Serbia, and did not produce legal effects either in
Serbia or in the international legal order (S/PV.5839; Report of the
Secretary-General on the United Nations Interim Administration Mission in
Kosovo, S/2008/211). Further to a request from Serbia, an emergency public
meeting of the Security Council took place on 18 February 2008, in which Mr.
Boris Tadić, the President of the Republic of Serbia, participated and
denounced the declaration of independence as an unlawful act which had been
declared null and void by the National Assembly of Serbia (S/PV.5839).
IV. THE QUESTION WHETHER THE DECLARATION OF INDEPENDENCE IS IN ACCORDANCE
WITH INTERNATIONAL LAW
78. The Court now turns to the substance of the request submitted by the
General Assembly. The Court recalls that it has been asked by the General
Assembly to assess the accordance of the declaration of independence of 17
February 2008 with “international law” (resolution 63/3 of the General
Assembly, 8 October 2008). The Court will first turn its attention to
certain questions concerning the lawfulness of declarations of independence
under general international law, against the background of which the
question posed falls to be considered, and Security Council resolution 1244
(1999) is to be understood and applied. Once this general framework has been
determined, the Court will turn to the legal relevance of Security Council
resolution 1244 (1999), and determine whether the resolution creates special
rules, and ensuing obligations, under international law applicable to the
issues raised by the present request and having a bearing on the lawfulness
of the declaration of independence of 17 February 2008.
A. General international law
79. During the eighteenth, nineteenth and early twentieth centuries, there
were numerous instances of declarations of independence, often strenuously
opposed by the State from which independence was being declared. Sometimes a
declaration resulted in the creation of a new State, at others it did not.
In no case, however, does the practice of States as a whole suggest that the
act of promulgating the declaration was regarded as contrary to
international law. On the contrary, State practice during this period points
clearly to the conclusion that international law contained no prohibition of
declarations of independence. During the second half of the twentieth
century, the international law of self-determination developed in such a way
as to create a right to independence for the peoples of non-self-governing
territories and peoples subject to alien subjugation, domination and
exploitation (cf. Legal Consequences for States of the Continued Presence of
South Africa in Namibia (South West Africa) notwithstanding Security Council
Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, pp. 31-32,
paras. 52-53; East Timor (Portugal v. Australia), Judgment, I.C.J. Reports
1995, p. 102, para. 29; Legal Consequences of the Construction of a Wall in
the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004
(I), pp. 171-172, para. 88). A great many new States have come into
existence as a result of the exercise of this right. There were, however,
also instances of declarations of independence outside this context. 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.
80. Several participants in the proceedings before the Court have contended
that a prohibition of unilateral declarations of independence is implicit in
the principle of territorial integrity.
The Court recalls that the principle of territorial integrity is an
important part of the international legal order and is enshrined in the
Charter of the United Nations, in particular in Article 2, paragraph 4,
which provides that:
“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.”
In General Assembly resolution 2625 (XXV), entitled “Declaration on
Principles of International Law concerning Friendly Relations and
Co-operation among States in Accordance with the Charter of the United
Nations”, which reflects customary international law (Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v. United States
of America), Merits, Judgment, I.C.J. Reports 1986, pp. 101-103, paras.
191-193), the General Assembly reiterated “[t]he principle that States shall
refrain in their international relations from the threat or use of force
against the territorial integrity or political independence of any State”.
This resolution then enumerated various obligations incumbent upon States to
refrain from violating the territorial integrity of other sovereign States.
In the same vein, the Final Act of the Helsinki Conference on Security and
Co-operation in Europe of 1 August 1975 (the Helsinki Conference) stipulated
that “[t]he participating States will respect the territorial integrity of
each of the participating States” (Art. IV). Thus, the scope of the
principle of territorial integrity is confined to the sphere of relations
between States.
81. Several participants have invoked resolutions of the Security Council
condemning particular declarations of independence: see, inter alia,
Security Council resolutions 216 (1965) and 217 (1965), concerning Southern
Rhodesia; Security Council resolution 541 (1983), concerning northern
Cyprus; and Security Council resolution 787 (1992), concerning the Republika
Srpska.
The Court notes, however, that in all of those instances the Security
Council was making a determination as regards the concrete situation
existing at the time that those declarations of independence were made; 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). In the context
of Kosovo, the Security Council has never taken this position. The
exceptional character of the resolutions enumerated above appears to the
Court to confirm that no general prohibition against unilateral declarations
of independence may be inferred from the practice of the Security Council.
82. A number of participants in the present proceedings have claimed,
although in almost every instance only as a secondary argument, that the
population of Kosovo has the right to create an independent State either as
a manifestation of a right to self-determination or pursuant to what they
described as a right of “remedial secession” in the face of the situation in
Kosovo. The Court has already noted (see paragraph 79 above) that one of the
major developments of international law during the second half of the
twentieth century has been the evolution of the right of self-determination.
Whether, outside the context of non-self-governing territories and peoples
subject to alien subjugation, domination and exploitation, the international
law of self-determination confers upon part of the population of an existing
State a right to separate from that State is, however, a subject on which
radically different views were expressed by those taking part in the
proceedings and expressing a position on the question. Similar differences
existed regarding whether international law provides for a right of
“remedial secession” and, if so, in what circumstances. There was also a
sharp difference of views as to whether the circumstances which some
participants maintained would give rise to a right of “remedial secession”
were actually present in Kosovo.
83. The Court considers that it is not necessary to resolve these questions
in the present case. The General Assembly has requested the Court’s opinion
only on whether or not the declaration of independence is in accordance with
international law. Debates regarding the extent of the right of
self-determination and the existence of any right of “remedial secession”,
however, concern the right to separate from a State. As the Court has
already noted (see paragraphs 49 to 56 above), and as almost all
participants agreed, that issue is beyond the scope of the question posed by
the General Assembly. To answer that question, the Court need only determine
whether the declaration of independence violated either general
international law or the lex specialis created by Security Council
resolution 1244 (1999).
84. For the reasons already given, the Court considers that general
international law contains no applicable prohibition of declarations of
independence. Accordingly, it concludes that the declaration of independence
of 17 February 2008 did not violate general international law. Having
arrived at that conclusion, the Court now turns to the legal relevance of
Security Council resolution 1244, adopted on 10 June 1999.
B. Security Council resolution 1244 (1999) and the UNMIK Constitutional
Framework created thereunder
85. Within the legal framework of the United Nations Charter, notably on the
basis of Articles 24, 25 and Chapter VII thereof, the Security Council may
adopt resolutions imposing obligations under international law. The Court
has had the occasion to interpret and apply such Security Council
resolutions on a number of occasions and has consistently treated them as
part of the framework of obligations under international law (Legal
Consequences for States of the Continued Presence of South Africa in Namibia
(South West Africa) notwithstanding Security Council Resolution 276 (1970),
Advisory Opinion, I.C.J. Reports 1971, p. 16); 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, I.C.J. Reports 1992, p. 15,
paras. 39-41; Questions of Interpretation and Application of the 1971
Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan
Arab Jamahiriya v. United States of America), Provisional Measures, Order of
14 April 1992, I.C.J. Reports 1992, pp. 126-127, paras. 42-44). Resolution
1244 (1999) was expressly adopted by the Security Council on the basis of
Chapter VII of the United Nations Charter, and therefore clearly imposes
international legal obligations. The Court notes that none of the
participants has questioned the fact that resolution 1244 (1999), which
specifically deals with the situation in Kosovo, is part of the law relevant
in the present situation.
86. 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. *
87. A certain number of participants have dealt with the question whether
regulations adopted on behalf of UNMIK by the Special Representative of the
Secretary-General, notably the Constitutional Framework (see paragraph 62
above), also form part of the applicable international law within the
meaning of the General Assembly’s request.
88. In particular, it has been argued before the Court that the
Constitutional Framework is an act of an internal law rather than an
international law character. According to that argument, the Constitutional
Framework would not be part of the international law applicable in the
present instance and the question of the compatibility of the declaration of
independence therewith would thus fall outside the scope of the General
Assembly’s request. The Court observes that UNMIK regulations, including
regulation 2001/9, which promulgated the Constitutional Framework, are
adopted by the Special Representative of the Secretary-General on the basis
of the authority derived from Security Council resolution 1244 (1999),
notably its paragraphs 6, 10, and 11, and thus ultimately from the United
Nations Charter. 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.
89. At the same time, the Court observes that 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. Regulation 2001/9 opens with the statement that the
Constitutional Framework was promulgated
“[f]or the purposes of developing meaningful self-government in Kosovo
pending a final settlement, and establishing provisional institutions of
self-government in the legislative, executive and judicial fields through
the participation of the people of Kosovo in free and fair elections”.
The Constitutional Framework therefore took effect as part of the body of
law adopted for the administration of Kosovo during the interim phase. The
institutions which it created were empowered by the Constitutional Framework
to take decisions which took effect within that body of law. In particular,
the Assembly of Kosovo was empowered to adopt legislation which would have
the force of law within that legal order, subject always to the overriding
authority of the Special Representative of the Secretary-General.
90. The Court notes that both Security Council resolution 1244 (1999) and
the Constitutional Framework entrust the Special Representative of the
Secretary-General with considerable supervisory powers with regard to the
Provisional Institutions of Self-Government established under the authority
of the United Nations Interim Administration Mission in Kosovo. As noted
above (see paragraph 58), Security Council resolution 1244 (1999) envisages
“an interim administration for Kosovo . . . which will provide transitional
administration while establishing and overseeing the development of
provisional democratic self-governing institutions” (para. 10). Resolution
1244 (1999) further states that “the main responsibilities of the
international civil presence will include . . . [o]rganizing and overseeing
the development of provisional institutions for democratic and autonomous
self-government pending a political settlement, including the holding of
elections” (paragraph 11 (c)). Similarly, as described above (see paragraph
62), under the Constitutional Framework, the Provisional Institutions of
Self-Government were to function in conjunction with and subject to the
direction of the Special Representative of the Secretary-General in the
implementation of Security Council resolution 1244 (1999).
91. The Court notes that Security Council resolution 1244 (1999) and the
Constitutional Framework were still in force and applicable as at 17
February 2008. Paragraph 19 of Security Council resolution 1244 (1999)
expressly provides that “the international civil and security presences are
established for an initial period of 12 months, to continue thereafter
unless the Security Council decides otherwise”. No decision amending
resolution 1244 (1999) was taken by the Security Council at its meeting held
on 18 February 2008, when the declaration of independence was discussed for
the first time, or at any subsequent meeting. The Presidential Statement of
26 November 2008 (S/PRST/2008/44) merely “welcom[ed] the cooperation between
the UN and other international actors, within the framework of Security
Council resolution 1244 (1999)” (emphasis added). In addition, pursuant to
paragraph 21 of Security Council resolution 1244 (1999), the Security
Council decided “to remain actively seized of the matter” and maintained the
item “Security Council resolutions 1160 (1998), 1199 (1998), 1203 (1998),
1239 (1999) and 1244 (1999)” on its agenda (see, most recently, Report of
the Security Council, 1 August 2008-31 July 2009, General Assembly, Official
Records, 64th session, Supplement No. 2, pp. 39 ff. and 132 ff.).
Furthermore, Chapter 14.3 of the Constitutional Framework sets forth that
“[t]he SRSG . . . may effect amendments to this Constitutional Framework”.
Minor amendments were effected by virtue of UNMIK regulations
UNMIK/REG/2002/9 of 3 May 2002, UNMIK/REG/2007/29 of 4 October 2007,
UNMIK/REG/2008/1 of 8 January 2008 and UNMIK/REG/2008/9 of 8 February 2008.
Finally, 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.
92. In addition, the Special Representative of the Secretary-General
continues to exercise his functions in Kosovo. Moreover, the
Secretary-General has continued to submit periodic reports to the Security
Council, as required by paragraph 20 of Security Council resolution 1244
(1999) (see the most recent quarterly Report of the Secretary-General on the
United Nations Interim Administration Mission in Kosovo, S/2010/169, 6 April
2010, as well as the preceding Reports S/2008/692 of 24 November 2008,
S/2009/149 of 17 March 2009, S/2009/300 of 10 June 2009, S/2009/497 of 30
September 2009 and S/2010/5 of 5 January 2010).
93. From the foregoing, the Court concludes that Security Council resolution
1244 (1999) and the Constitutional Framework form part of the international
law which is to be considered in replying to the question posed by the
General Assembly in its request for the advisory opinion.
1. Interpretation of Security Council resolution 1244 (1999)
94. Before continuing further, the Court must recall several factors
relevant in the interpretation of resolutions of the Security Council. While
the rules on treaty interpretation embodied in Articles 31 and 32 of the
Vienna Convention on the Law of Treaties may provide guidance, differences
between Security Council resolutions and treaties mean that the
interpretation of Security Council resolutions also require that other
factors be taken into account. Security Council resolutions are issued by a
single, collective body and are drafted through a very different process
than that used for the conclusion of a treaty. Security Council resolutions
are the product of a voting process as provided for in Article 27 of the
Charter, and the final text of such resolutions represents the view of the
Security Council as a body. Moreover, Security Council resolutions can be
binding on all Member States (Legal Consequences for States of the Continued
Presence of South Africa in Namibia (South West Africa) notwithstanding
Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports
1971, p. 54, para. 116), irrespective of whether they played any part in
their formulation. The interpretation of Security Council resolutions may
require the Court to analyse statements by representatives of members of the
Security Council made at the time of their adoption, other resolutions of
the Security Council on the same issue, as well as the subsequent practice
of relevant United Nations organs and of States affected by those given
resolutions.
95. The Court first notes that resolution 1244 (1999) must be read in
conjunction with the general principles set out in annexes 1 and 2 thereto,
since in the resolution itself, the Security Council: “1. Decide[d] that a
political solution to the Kosovo crisis shall be based on the general
principles in annex 1 and as further elaborated in the principles and other
required elements in annex 2.” Those general principles sought to defuse the
Kosovo crisis first by ensuring an end to the violence and repression in
Kosovo and by the establishment of an interim administration. A longer-term
solution was also envisaged, in that resolution 1244 (1999) was to initiate
“[a] political process towards the establishment of an interim political
framework agreement providing for a substantial self-government for Kosovo,
taking full account of the Rambouillet accords and the principles of
sovereignty and territorial integrity of the Federal Republic of Yugoslavia
and the other countries of the region, and the demilitarization of the KLA”
(Security Council resolution 1244 (1999) of 10 June 1999, Ann. 1, sixth
principle; ibid., Ann. 2, para. 8).
Further, it bears recalling that the tenth preambular paragraph of
resolution 1244 (1999) also recalled the sovereignty and the territorial
integrity of the Federal Republic of Yugoslavia.
96. Having earlier outlined the principal characteristics of Security
Council resolution 1244 (1999) (see paragraphs 58 to 59), the Court next
observes that three distinct features of that resolution are relevant for
discerning its object and purpose.
97. First, resolution 1244 (1999) establishes an international civil and
security presence in Kosovo with full civil and political authority and sole
responsibility for the governance of Kosovo. As described above (see
paragraph 60), on 12 June 1999, the Secretary-General presented to the
Security Council his preliminary operational concept for the overall
organization of the civil presence under UNMIK. On 25 July 1999, the Special
Representative of the Secretary-General promulgated UNMIK regulation 1999/1,
deemed to have entered into force as of 10 June 1999, the date of adoption
of Security Council resolution 1244 (1999). Under this regulation, “[a]ll
legislative and executive authority with respect to Kosovo, including the
administration of the judiciary”, was vested in UNMIK and exercised by the
Special Representative. Viewed together, resolution 1244 (1999) and UNMIK
regulation 1999/1 therefore had the effect of superseding the legal order in
force at that time in the territory of Kosovo and setting up an
international territorial administration. For this reason, the establishment
of civil and security presences in Kosovo deployed on the basis of
resolution 1244 (1999) must be understood as an exceptional measure relating
to civil, political and security aspects and aimed at addressing the crisis
existing in that territory in 1999.
98. Secondly, the solution embodied in resolution 1244 (1999), namely, the
implementation of an interim international territorial administration, was
designed for humanitarian purposes: to provide a means for the stabilization
of Kosovo and for the re-establishment of a basic public order in an area
beset by crisis. This becomes apparent in the text of resolution 1244 (1999)
itself which, in its second preambular paragraph, recalls Security Council
resolution 1239, adopted on 14 May 1999, in which the Security Council had
expressed “grave concern at the humanitarian crisis in and around Kosovo”.
The priorities which are identified in paragraph 11 of resolution 1244
(1999) were elaborated further in the so-called “four pillars” relating to
the governance of Kosovo described in the Report of the Secretary-General of
12 June 1999 (paragraph 60 above). By placing an emphasis on these “four
pillars”, namely, interim civil administration, humanitarian affairs,
institution building and reconstruction, and by assigning responsibility for
these core components to different international organizations and agencies,
resolution 1244 (1999) was clearly intended to bring about stabilization and
reconstruction. The interim administration in Kosovo was designed to suspend
temporarily Serbia’s exercise of its authority flowing from its continuing
sovereignty over the territory of Kosovo. The purpose of the legal régime
established under resolution 1244 (1999) was to establish, organize and
oversee the development of local institutions of self-government in Kosovo
under the aegis of the interim international presence.
99. Thirdly, resolution 1244 (1999) clearly establishes an interim régime;
it cannot be understood as putting in place a permanent institutional
framework in the territory of Kosovo. This resolution mandated UNMIK merely
to facilitate the desired negotiated solution for Kosovo’s future status,
without prejudging the outcome of the negotiating process.
100. The Court thus concludes that the object and purpose of resolution 1244
(1999) was to establish a temporary, exceptional legal régime which, save to
the extent that it expressly preserved it, superseded the Serbian legal
order and which aimed at the stabilization of Kosovo, and that it was
designed to do so on an interim basis.
2. The question whether the declaration of independence is in accordance
with Security Council resolution 1244 (1999) and the measures adopted
thereunder
101. The Court will now turn to the question whether Security Council
resolution 1244 (1999), or the measures adopted thereunder, introduces a
specific prohibition on issuing a declaration of independence, applicable to
those who adopted the declaration of independence of 17 February 2008. In
order to answer this question, it is first necessary, as explained in
paragraph 52 above, for the Court to determine precisely who issued that
declaration.
(a) The identity of the authors of the declaration of independence
102. The Court needs to determine whether the declaration of independence of
17 February 2008 was an act of the “Assembly of Kosovo”, one of the
Provisional Institutions of Self-Government, established under Chapter 9 of
the Constitutional Framework, or whether those who adopted the declaration
were acting in a different capacity.
103. The Court notes that different views have been expressed regarding this
question. On the one hand, it has been suggested in the proceedings before
the Court that the meeting in which the declaration was adopted was a
session of the Assembly of Kosovo, operating as a Provisional Institution of
Self-Government within the limits of the Constitutional Framework. Other
participants have observed that both the language of the document and the
circumstances under which it was adopted clearly indicate that the
declaration of 17 February 2008 was not the work of the Provisional
Institutions of Self-Government and did not take effect within the legal
framework created for the government of Kosovo during the interim phase.
104. The Court notes 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. The Court considers, however, that
the declaration of independence must be seen in its larger context, taking
into account the events preceding its adoption, notably relating to the
so-called “final status process” (see paragraphs 64 to 73). Security Council
resolution 1244 (1999) was mostly concerned with setting up an interim
framework of self-government for Kosovo (see paragraph 58 above). Although,
at the time of the adoption of the resolution, it was expected that the
final status of Kosovo would flow from, and be developed within, the
framework set up by the resolution, the specific contours, let alone the
outcome, of the final status process were left open by Security Council
resolution 1244 (1999). Accordingly, its paragraph 11, especially in its
subparagraphs (d), (e) and (f), deals with final status issues only in so
far as it is made part of UNMIK’s responsibilities to “[f]acilitat[e] a
political process designed to determine Kosovo’s future status, taking into
account the Rambouillet accords” and “[i]n a final stage, [to oversee] the
transfer of authority from Kosovo’s provisional institutions to institutions
established under a political settlement”.
105. The declaration of independence 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. The Preamble of the declaration
refers to the “years of internationally-sponsored negotiations between
Belgrade and Pristina over the question of our future political status” and
expressly puts the declaration in the context of the failure of the final
status negotiations, inasmuch as it states that “no mutually-acceptable
status outcome was possible” (tenth and eleventh preambular paragraphs).
Proceeding from there, the authors of the declaration of independence
emphasize their determination to “resolve” the status of Kosovo and to give
the people of Kosovo “clarity about their future” (thirteenth preambular
paragraph). This language indicates that the authors of the declaration did
not seek to act within the standard framework of interim self-administration
of Kosovo, but aimed at establishing Kosovo “as an independent and sovereign
state” (para. 1). 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 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.
106. This conclusion is reinforced by the fact that the authors of the
declaration undertook to fulfil the international obligations of Kosovo,
notably those created for Kosovo by UNMIK (declaration of independence,
para. 9), and expressly and solemnly declared Kosovo to be bound vis-à-vis
third States by the commitments made in the declaration (ibid., para. 12).
By contrast, under the régime of the Constitutional Framework, all matters
relating to the management of the external relations of Kosovo were the
exclusive prerogative of the Special Representative of the
Secretary-General:
“(m) concluding agreements with states and international organizations in
all matters within the scope of UNSCR 1244 (1999);
(n) overseeing the fulfilment of commitments in international agreements
entered into on behalf of UNMIK;
(o) external relations, including with states and international
organisations . . .” (Chap. 8.1 of the Constitutional Framework, “Powers and
Responsibilities Reserved to the SRSG”),
with the Special Representative of the Secretary-General only consulting and
co-operating with the Provisional Institutions of Self-Government in these
matters.
107. Certain features of the text of the declaration and the circumstances
of its adoption also point to the same conclusion. Nowhere in the original
Albanian text of the declaration (which is the sole authentic text) is any
reference made to the declaration being the work of the Assembly of Kosovo.
The words “Assembly of Kosovo” appear at the head of the declaration only in
the English and French translations contained in the dossier submitted on
behalf of the Secretary-General. The language used in the declaration
differs from that employed in acts of the Assembly of Kosovo in that the
first paragraph commences with the phrase “We, the democratically-elected
leaders of our people . . .”, whereas acts of the Assembly of Kosovo employ
the third person singular. Moreover, the procedure employed in relation to
the declaration differed from that employed by the Assembly of Kosovo for
the adoption of legislation. In particular, the declaration was signed by
all those present when it was adopted, including the President of Kosovo,
who (as noted in paragraph 76 above) was not a member of the Assembly of
Kosovo. In fact, the self-reference of the persons adopting the declaration
of independence as “the democratically-elected leaders of our people”
immediately precedes the actual declaration of independence within the text
(“hereby declare Kosovo to be an independent and sovereign state”; para. 1).
It is also noticeable that the declaration was not forwarded to the Special
Representative of the Secretary-General for publication in the Official
Gazette.
108. The reaction of the Special Representative of the Secretary-General to
the declaration of independence is also of some significance. The
Constitutional Framework gave the Special Representative power to oversee
and, in certain circumstances, annul the acts of the Provisional
Institutions of Self-Government. On previous occasions, in particular in the
period between 2002 and 2005, when the Assembly of Kosovo took initiatives
to promote the independence of Kosovo, the Special Representative had
qualified a number of acts as being incompatible with the Constitutional
Framework on the grounds that they were deemed to be “beyond the scope of
[the Assembly’s] competencies” (United Nations dossier No. 189, 7 February
2003) and therefore outside the powers of the Assembly of Kosovo.
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.
The Court accepts that the Report of the Secretary-General on the United
Nations Interim Administration Mission in Kosovo, submitted to the Security
Council on 28 March 2008, stated that “the Assembly of Kosovo held a session
during which it adopted a ‘declaration of independence’, declaring Kosovo an
independent and sovereign State” (United Nations doc. S/2008/211, para. 3).
This was the normal periodic report on UNMIK activities, the purpose of
which was to inform the Security Council 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.
109. The Court thus arrives at the conclusion that, taking all factors
together, 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.
(b) The question whether the authors of the declaration of independence
acted in violation of Security Council resolution 1244 (1999) or the
measures adopted thereunder
110. Having established the identity of the authors of the declaration of
independence, the Court turns to the question whether their act in
promulgating the declaration was contrary to any prohibition contained in
Security Council resolution 1244 (1999) or the Constitutional Framework
adopted thereunder.
111. The Court recalls that this question has been a matter of controversy
in the present proceedings. Some participants to the proceedings have
contended that the declaration of independence of 17 February 2008 was a
unilateral attempt to bring to an end the international presence established
by Security Council resolution 1244 (1999), a result which it is said could
only be effectuated by a decision of the Security Council itself. It has
also been argued that a permanent settlement for Kosovo could only be
achieved either by agreement of all parties involved (notably including the
consent of the Republic of Serbia) or by a specific Security Council
resolution endorsing a specific final status for Kosovo, as provided for in
the Guiding Principles of the Contact Group. According to this view, the
unilateral action on the part of the authors of the declaration of
independence cannot be reconciled with Security Council resolution 1244
(1999) and thus constitutes a violation of that resolution.
112. Other participants have submitted to the Court that Security Council
resolution 1244 (1999) did not prevent or exclude the possibility of
Kosovo’s independence. They argued that the resolution only regulates the
interim administration of Kosovo, but not its final or permanent status. In
particular, the argument was put forward that Security Council resolution
1244 (1999) does not create obligations under international law prohibiting
the issuance of a declaration of independence or making it invalid, and does
not make the authors of the declaration of independence its addressees.
According to this position, if the Security Council had wanted to preclude a
declaration of independence, it would have done so in clear and unequivocal
terms in the text of the resolution, as it did in resolution 787 (1992)
concerning the Republika Srpska. In addition, it was argued that the
references, in the annexes of Security Council resolution 1244 (1999), to
the Rambouillet accords and thus indirectly to the “will of the people” (see
Chapter 8.3 of the Rambouillet accords) of Kosovo, support the view that
Security Council resolution 1244 (1999) not only did not oppose the
declaration of independence, but indeed contemplated it. Other participants
contended that at least once the negotiating process had been exhausted,
Security Council resolution 1244 (1999) was no longer an obstacle to a
declaration of independence.
113. The question whether resolution 1244 (1999) prohibits the authors of
the declaration of 17 February 2008 from declaring independence from the
Republic of Serbia can only be answered through a careful reading of this
resolution (see paras. 94 et seq.).
114. First, the Court observes that Security Council resolution 1244 (1999)
was essentially designed to create an interim régime for Kosovo, with a view
to channelling 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.
In this regard the Court notes that contemporaneous practice of the Security
Council shows that in situations where the Security Council has decided to
establish restrictive conditions for the permanent status of a territory,
those conditions are specified in the relevant resolution. For example,
although the factual circumstances differed from the situation in Kosovo,
only 19 days after the adoption of resolution 1244 (1999), the Security
Council, in its resolution 1251 of 29 June 1999, reaffirmed its position
that a “Cyprus settlement must be based on a State of Cyprus with a single
sovereignty and international personality and a single citizenship, with its
independence and territorial integrity safeguarded” (para. 11). The Security
Council thus set out the specific conditions relating to the permanent
status of Cyprus.
By contrast, under the terms of resolution 1244 (1999) the Security Council
did not reserve for itself the final determination of the situation in
Kosovo and remained silent on the conditions for the final status of Kosovo.
Resolution 1244 (1999) thus does not preclude the issuance of the
declaration of independence of 17 February 2008 because the two instruments
operate on a different level: unlike resolution 1244 (1999), the declaration
of independence is an attempt to determine finally the status of Kosovo.
115. Secondly, turning to the question of the addressees of Security Council
resolution 1244 (1999), as described above (see paragraph 58), it sets out a
general framework for the “deployment in Kosovo, under United Nations
auspices, of international civil and security presences” (para. 5). It 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 (see notably paras. 3,
5, 6, 7, 9, 10 and 11 of Security Council resolution 1244 (1999)). The only
point at which resolution 1244 (1999) expressly mentions other actors
relates to the Security Council’s demand, on the one hand, “that the KLA and
other armed Kosovo Albanian groups end immediately all offensive actions and
comply with the requirements for demilitarization” (para. 15) and, on the
other hand, for the “full cooperation by all concerned, including the
international security presence, with the International Tribunal for the
Former Yugoslavia” (para. 14). There is no indication, in the text of
Security Council resolution 1244 (1999), that the Security Council intended
to impose, beyond that, a specific obligation to act or a prohibition from
acting, addressed to such other actors.
116. The Court recalls in this regard that it has not been uncommon for the
Security Council to make demands on actors other than United Nations Member
States and intergovernmental organizations. More specifically, a number of
Security Council resolutions adopted on the subject of Kosovo prior to
Security Council resolution 1244 (1999) contained demands addressed eo
nomine to the Kosovo Albanian leadership. For example, resolution 1160
(1998) “[c]all[ed] upon the authorities in Belgrade and the leadership of
the Kosovar Albanian community urgently to enter without preconditions into
a meaningful dialogue on political status issues” (resolution 1160 (1998),
para. 4; emphasis added). Resolution 1199 (1998) included four separate
demands on the Kosovo Albanian leadership, i.e., improving the humanitarian
situation, entering into a dialogue with the Federal Republic of Yugoslavia,
pursuing their goals by peaceful means only, and co-operating fully with the
Prosecutor of the International Criminal Tribunal for the Former Yugoslavia
(resolution 1199 (1998), paras. 2, 3, 6 and 13). Resolution 1203 (1998)
“[d]emand[ed] . . . that the Kosovo Albanian leadership and all other
elements of the Kosovo Albanian community comply fully and swiftly with
resolutions 1160 (1998) and 1199 (1998) and cooperate fully with the OSCE
Verification Mission in Kosovo” (resolution 1203 (1998), para. 4). The same
resolution also called upon the “Kosovo Albanian leadership to enter
immediately into a meaningful dialogue without preconditions and with
international involvement, and to a clear timetable, leading to an end of
the crisis and to a negotiated political solution to the issue of Kosovo”;
demanded that “the Kosovo Albanian leadership and all others concerned
respect the freedom of movement of the OSCE Verification Mission and other
international personnel”; “[i]nsist[ed] that the Kosovo Albanian leadership
condemn all terrorist actions”; and demanded that the Kosovo Albanian
leadership “cooperate with international efforts to improve the humanitarian
situation and to avert the impending humanitarian catastrophe” (resolution
1203 (1998), paras. 5, 6, 10 and 11).
117. Such reference to the Kosovo Albanian leadership or other actors,
notwithstanding the somewhat general reference to “all concerned” (para.
14), is missing from the text of Security Council resolution 1244 (1999).
When interpreting Security Council resolutions, the Court must establish, on
a case-by-case basis, considering all relevant circumstances, for whom the
Security Council intended to create binding legal obligations. The language
used by the resolution may serve as an important indicator in this regard.
The approach taken by the Court with regard to the binding effect of
Security Council resolutions in general is, mutatis mutandis, also relevant
here. In this context, the Court recalls its previous statement that:
“The language of a resolution of the Security Council should be carefully
analysed before a conclusion can be made as to its binding effect. In view
of the nature of the powers under Article 25, the question whether they have
been in fact exercised is to be determined in each case, having regard to
the terms of the resolution to be interpreted, the discussions leading to
it, the Charter provisions invoked and, in general, all circumstances that
might assist in determining the legal consequences of the resolution of the
Security Council.” (Legal Consequences for States of the Continued Presence
of South Africa in Namibia (South West Africa) notwithstanding Security
Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 53,
para. 114.)
118. Bearing this in mind, the Court cannot accept the argument that
Security Council resolution 1244 (1999) contains a prohibition, binding on
the authors of the declaration of independence, against declaring
independence; nor can such a prohibition be derived from the language of the
resolution understood in its context and considering its object and purpose.
The language of Security Council resolution 1244 (1999) is at best ambiguous
in this regard. The object and purpose of the resolution, as has been
explained in detail (see paragraphs 96 to 100), is the establishment of an
interim administration for Kosovo, without making any definitive
determination on final status issues. The text of the resolution explains
that the
“main responsibilities of the international civil presence will include . .
. [o]rganizing and overseeing the development of provisional institutions
for democratic and autonomous self-government pending a political
settlement” (para. 11 (c) of the resolution; emphasis added).
The phrase “political settlement”, often cited in the present proceedings,
does not modify this conclusion. First, that reference is made within the
context of enumerating the responsibilities of the international civil
presence, i.e., the Special Representative of the Secretary-General in
Kosovo and UNMIK, and not of other actors. Secondly, as the diverging views
presented to the Court on this matter illustrate, the term “political
settlement” is subject to various interpretations. The Court therefore
concludes that this part of Security Council resolution 1244 (1999) cannot
be construed to include a prohibition, addressed in particular to the
authors of the declaration of 17 February 2008, against declaring
independence.
119. The Court accordingly finds 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 declaration of independence did not violate Security Council resolution
1244 (1999).
120. The Court therefore turns to the question whether the declaration of
independence of 17 February 2008 has violated the Constitutional Framework
established under the auspices of UNMIK. Chapter 5 of the Constitutional
Framework determines the powers of the Provisional Institutions of
Self-Government of Kosovo. It was argued by a number of States which
participated in the proceedings before the Court that the promulgation of a
declaration of independence is an act outside the powers of the Provisional
Institutions of Self-Government as set out in the Constitutional Framework.
121. The Court has already held, however (see paragraphs 102 to 109 above),
that the declaration of independence of 17 February 2008 was not issued by
the Provisional Institutions of Self-Government, nor was it an act intended
to take effect, or actually taking effect, within the legal order in which
those Provisional Institutions operated. It follows 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 finds that the
declaration of independence did not violate the Constitutional Framework.
V. GENERAL CONCLUSION
122. The Court has concluded above that the adoption of the declaration of
independence of 17 February 2008 did not violate general international law,
Security Council resolution 1244 (1999) or the Constitutional Framework.
Consequently the adoption of that declaration did not violate any applicable
rule of international law.
123. For these reasons,
THE COURT,
(1) Unanimously,
(2) By nine votes to five,
Finds that it has jurisdiction to give the advisory opinion requested;
Decides to comply with the request for an advisory opinion;
IN FAVOUR: President Owada; Judges Al-Khasawneh, Buergenthal, Simma,
Abraham, Sepúlveda-Amor, Cançado Trindade, Yusuf, Greenwood;
AGAINST: Vice-President Tomka; Judges Koroma, Keith, Bennouna, Skotnikov;
(3) By ten votes to four,
Is of the opinion that the declaration of independence of Kosovo adopted on
17 February 2008 did not violate international law.
IN FAVOUR: President Owada; Judges Al-Khasawneh, Buergenthal, Simma,
Abraham, Keith, Sepúlveda-Amor, Cançado Trindade, Yusuf, Greenwood;
AGAINST: Vice-President Tomka; Judges Koroma, Bennouna, Skotnikov.
Done in English and in French, the English text being authoritative, at the
Peace Palace, The Hague, this twenty-second day of July, two thousand and
ten, in two copies, one of which will be placed in the archives of the Court
and the other transmitted to the Secretary-General of the United Nations.
(Signed) Hisashi OWADA,
President.
(Signed) Philippe COUVREUR,
Registrar.
Vice-President TOMKA appends a declaration to the Advisory Opinion of the
Court; Judge KOROMA appends a dissenting opinion to the Advisory Opinion of
the Court; Judge SIMMA appends a declaration to the Advisory Opinion of the
Court; Judges KEITH and SEPÚLVEDA-AMOR append separate opinions to the
Advisory Opinion of the Court; Judges BENNOUNA and SKOTNIKOV append
dissenting opinions to the Advisory Opinion of the Court; Judges CANÇADO
TRINDADE and YUSUF append separate opinions to the Advisory Opinion of the
Court.
(Initialled) H. O.
(Initialled) Ph. C.
Declaration of Judge Tomka, Vice
President
1. The majority of the Court has decided to reply to the request of the
General Assembly for the advisory opinion. It provided its answer albeit
only after having "adjusted" the question. That "adjustment" was of critical
importance to the answer given; in fact, it was outcome-determinative. As
those in the majority admit, "[t]he identity of the authors of the
declaration of independence . . . is a matter which is capable of affecting
the answer to the question whether [the] declaration was in accordance with
international law" (Advisory Opinion, paragraph 52). In my judicial
conscience, although being fully aware of the "realities on the
ground"[FN1], I am unable to join my colleagues in the majority in this
"adjustment" exercise.
---------------------------------------------------------------------------------------------------------------
[FN1] These realities are succinctly described in the Report of Mr.
Ahtisaari, the Special Envoy of the Secretary-General on Kosovo's future
status (doc. S/2007/168). They led him, once his effort to achieve a
negotiated settlement failed, to submit his recommendation: that Kosovo's
status be independence, supervised by the international community. Despite
his urging that the Security Council endorse his Settlement proposal, it
received no such endorsement by the Council.
---------------------------------------------------------------------------------------------------------------
Discretion and Propriety
2. This is a case in which the Court should have exercised its discretion as
to whether to reply to a question put to it. Article 65 of the Statute,
providing that "[t]he Court may give an advisory opinion" (in French it
reads: "La Cour peut donner un avis consultatif') leaves no doubt that the
Court is under no legal obligation to comply with a request. The Court
possesses such discretion in order to protect the integrity of its judicial
function and its nature as a judicial organ.
3. To answer the question put to the Court requires it not only to interpret
Security Council resolution 1244 but also to make a determination whether an
act adopted by the institutions of Kosovo, which has been put under a régime
of international territorial administration, is or is not in conformity with
the legal framework applicable to and governing that régime, i.e., Security
Council resolution 1244 and the measures adopted thereunder, in particular
the Constitutional Framework.
4. The Security Council, which remains actively seised of matters relating
to Kosovo, has made no such determination and its silence cannot be
interpreted as implying the tacit approval of, or acquiescence with, the act
adopted on 17 February 2008, in view of the disagreements on this issue
publicly voiced by its members, in particular, its permanent members[FN2].
These disagreements persist and have been reaffirmed in the course of this
advisory proceeding, both in the written and oral submissions.
---------------------------------------------------------------------------------------------------------------
[FN2] See statements by the Members of the Security Council at the meeting,
held on 18 February 2008, convened some 24 hours upon the issuance of the
declaration of independence (doc. S/PV.5839, passim).
---------------------------------------------------------------------------------------------------------------
5. The request for an advisory opinion was addressed to the Court by the
General Assembly. The Assembly did not deal with the situation in Kosovo
when a proposal to request an advisory opinion was made by Serbia. A new
item had to be included in the General Assembly's agenda. Now, when the
majority's opinion is delivered, the Assembly is free to discuss it, but
certainly as long as the Security Council remains actively seised of the
situation in Kosovo and exercises its function with respect to it, Article
12, paragraph 1, of the Charter prevents the General Assembly from making
any recommendation with regard to the status of Kosovo. I fail to see any
"sufficient interest" for the Assembly in requesting the opinion and agree
with the view of Judge Keith, expressed in his separate opinion, on this
point.
6. Through the question put to it by the General Assembly, the Court has
become immersed in the disagreements prevailing in the Security Council on
this issue, the Council having been still actively seised of the matter but
not requesting any advice from the Court. With the answer offered by the
majority, the Court takes sides while it would have been judicially proper
for it to refrain from doing so.
7. As the former President of this Court, the late Manfred Lachs, wisely
observed in the case relating to the situation in which the Security Council
had been actively exercising its powers, as in the present one,
"it is important for the purposes and principles of the United Nations that
the two main organs with specific powers of binding decision act in harmony
— though not, of course, in concert — and that each should perform its
functions with respect to a situation or dispute, different aspects of which
appear on the agenda of each, without prejudicing the exercise of the
other's powers" (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, I.C.J. Reports 1992, p. 27; emphasis added).
8. The majority's answer given to the question put by the General Assembly
prejudices the determination, still to be made by the Security Council, on
the conformity vel non of the declaration with resolution 1244 and the
international régime of territorial administration established thereunder.
9. Therefore, in my view, only if the Court were asked by the Security
Council to provide its legal advice, would it have been proper for the Court
to reply.
The Question
10. The question for the Court, approved by the General Assembly in its
resolution 63/3, reads as follows: "Is the unilateral declaration of
independence by the Provisional Institutions of Self-Government of Kosovo in
accordance with international law?" The question "is clearly formulated",
and "narrow and specific" (Advisory Opinion, paragraph 51). There was,
therefore, no need to "adjust" the question, if only for the outcome sought.
11. The majority, in its opinion, comes to the conclusion that
"taking all factors together, 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" (Advisory
Opinion, paragraph 109).
12. This conclusion has no sound basis in the facts relating to the adoption
of the declaration, and is nothing more than a post hoc intellectual
construct. The majority's conclusion implies that all relevant actors did
not know correctly who adopted the declaration on 17 February 2008 in
Pristina: Serbia, when it proposed the question; other States which were
present in the General Assembly when it adopted resolution 63/3; the
Secretary-General of the United Nations and his Special Representative; and,
most importantly, the Prime Minister of Kosovo when he introduced the text
of declaration at the special session of the Assembly of Kosovo!
13. The Foreign Minister of Serbia addressed a letter, dated 15 August 2008,
to the Secretary-General of the United Nations, requesting the inclusion in
the agenda of the Sixty-third Session of the General Assembly of a
supplementary item entitled "Request for an advisory opinion of the
International Court of Justice on whether the unilateral declaration of
independence of Kosovo is in accordance with international law". In the
explanatory memorandum, attached to his letter, he opens with the following
paragraph:
"The Provisional Institutions of Self-Government of Kosovo, a province of
the Republic of Serbia under United Nations administration, pursuant to
United Nations Security Council resolution 1244 (1999), unilaterally
declared independence on 17 February 2008." (A/63/195, Enclosure; emphasis
added.)
14. The letter was issued as an official document by the United Nations
Secretariat on 22 August 2008. The issue was considered and resolution 63/3
was adopted by the General Assembly on 8 October 2008. The Member States of
the United Nations thus had some seven weeks to consider the Serbian request
and its explanatory memorandum. None of the other 191 Member States took
issue with the Serbian identification of "the Provisional Institutions of
Self-Government of Kosovo" as those who adopted the declaration of
independence on 17 February 2008.
15. On 1 October 2008 the Permanent Representative of the United Kingdom,
which is well known for the highly competent and fine international legal
service in its Foreign Office, wrote a letter to the President of the
General Assembly (A/63/461). With reference to agenda item 71, "Request for
an advisory opinion", and to the draft resolution submitted by Serbia
(A/63/L.2), "[i]n order to assist in the consideration of this item, the
United Kingdom . . . submit[ted] a note of issues . . ., raising a number of
questions on which members of the General Assembly may wish to reflect".
Nowhere in that Note of Issues is a doubt expressed that the declaration was
adopted by the Provisional Institutions. Actually, the Note of Issues first
points out that
"[t]he agenda item proposed by Serbia requests an advisory opinion on the
question whether 'the unilateral declaration of independence of Kosovo is in
accordance with international law' and then contrasts it with the question
formulated in the draft Resolution, whether 'the unilateral declaration of
independence by the Provisional Institutions of Self-Government of Kosovo
[is] in accordance with international law'".
The Note expresses the view that
"[i]t would be useful to know whether Serbia is seeking to focus on a
narrower question about the competence of the Provisional Institutions of
Self-Government of Kosovo, and, if so, how that question relates to Kosovo's
status at the present time" (A/63/461, p. 4, para. 7; emphasis added).
There is thus no doubt that the Provisional Institutions of Self-Government
of Kosovo were, in October 2008, some eight months after the adoption of the
declaration, considered by the United Kingdom as those who adopted the
declaration. Otherwise there would have been no point in asking whether the
request concerns "a narrower question about the competence of the
Provisional Institutions".
16. The question to the Court was approved as contained in draft Resolution
(A/63/L.2), i.e., specifically mentioning the Provisional Institutions of
Self-Government. The draft was introduced in the General Assembly by the
Minister of Foreign Affairs of Serbia. He expressly mentioned that "the
provisional institutions of self-government . . . of Kosovo and Metohija
unilaterally declared independence" (A/63/PV.22, p. 1; emphasis added). No
delegation taking part in the debate contested that the declaration was
adopted by the Provisional Institutions of Self-Government. To the contrary,
the United Kingdom's Permanent Representative said that "Kosovo's Assembly
declared Kosovo independent" (ibid., p. 3; emphasis added). The United
States delegate referred to "the declaration of independence of Kosovo
Provisional Institutions of Self-Governance" (ibid., p. 5; emphasis added).
The Permanent Representative of France opened his statement with the
following sentence: "On 17 February 2008, the Assembly of Kosovo declared
the independence of the Republic of Kosovo." (Ibid, p. 8; emphasis added.)
Finally, the General Assembly itself, in the second preambular paragraph of
its resolution 63/3, recalls "that on 17 February 2008 the Provisional
Institutions of Self-Government of Kosovo declared independence from
Serbia".
17. The Secretary-General of the United Nations announced the following to
the Security Council, when it met on 18 February 2008 to consider the
situation in Kosovo in light of the issuance of the declaration of
independence a day earlier:
"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." (S/PV.5839, p. 2;
emphasis added.)
He stated the same in his very first report on UNMIK, submitted to the
Security Council after the declaration of independence was adopted,
informing the Council that "[o]n 17 February, the Assembly of Kosovo held a
session during which it adopted a 'declaration of independence', declaring
Kosovo as an independent and sovereign State" (S/2008/211; p. 1, para. 3;
emphasis added)[FN3].
----------------------------------------------------------------------------------------------------------------
[FN3] The majority had to "accept[]" this statement of the
Secretary-General, in his Report trying to minimize its relevance, stating
that it was just "the normal periodic report on UNMIK activities . . . not
intended as a legal analysis of the declaration or the capacity in which
those who adopted it had acted" (Advisory Opinion, paragraph 108).
----------------------------------------------------------------------------------------------------------------
18. Who could have better determined the capacity in which those who adopted
the declaration acted at that critical moment in Kosovo's history than its
Prime Minister, in his solemn statement introducing the text of the
declaration and reading it to those assembled? He said:
"Today, the President of Kosovo and myself, as the Prime Minister of Kosovo,
have officially requested the President of the Assembly, Mr. Krasniqi[,] to
call for a special session with two agenda items.
This invitation for a special session is extended in accordance with the
Kosovo Constitutional Framework, whereby we present two items on the agenda:
1. Declaration of Independence for Kosovo, and
2. Presentation of Kosovo State symbols."[FN4]
The President of the Kosovo Assembly was also of the view that he was
presiding over the Assembly meeting when he "invite[d] the Prime Minister of
Kosovo, Mr. Hashim Thaçi, to provide justification for the request for the
special and solemn Assembly session".
----------------------------------------------------------------------------------------------------------------
[FN4] Written contribution of the Republic of Kosovo, 17 April 2009, Ann. 2
— Extraordinary session of the Assembly of Kosovo held on 17 February 2008
(Transcript, p. 228; emphasis added).
[FN5] Ibid., p. 227; emphasis added.
----------------------------------------------------------------------------------------------------------------
19. The majority had, at the end of the day, to concede that the President
of the Kosovo Assembly and the Prime Minister of Kosovo "made reference to
the Assembly of Kosovo and the Constitutional Framework" (Advisory Opinion,
paragraph 104), while maintaining its intellectual construct that the
authors of the declaration "acted together in their capacity as
representatives of the people of Kosovo outside the framework of the interim
administration" (ibid., paragraph 109). The Members of the Assembly, are
they not "representatives of the people of Kosovo"? The President of Kosovo,
is he not the representative of the people of Kosovo? They met, as the Prime
Minister stated, "in accordance with the Kosovo Constitutional Framework";
they thus wished to act in accordance with that framework and not outside of
it, as the majority asserts.
20. Although the majority engaged itself in the search for "the identity of
the authors of the declaration of independence"[FN6], finally "having
established [their] identity" (Advisory Opinion, paragraph 110), no such
search was needed, as their "identity" is well known and documented in the
procès-verbal of the special plenary session of the Assembly of Kosovo[FN7].
Nor was there any need to search for "the capacity" in which those who
adopted the declaration acted (Advisory Opinion, paragraph 109). The
President of the Kosovo Assembly, who presided over its special session and
conducted the vote on the declaration, announced the result in the following
terms:
"I state that with all votes 'in favor' of the present members, Members of
the Assembly of Kosovo, today, on February 17, 2008 have expressed their
will and the will of the citizens of Kosovo, for Kosovo an independent,
sovereign and democratic state."[FN8]
Each of those who signed the declaration, in addition to the President of
Kosovo, its Prime Minister and the President of its Assembly, was "invite[d]"
to sign it in his/her capacity of either "the member of Kosovo Assembly" or
"the member of Chairmanship" of the Assembly[FN9]. They added their
signatures below the declaration as members of the Kosovo Assembly as verbis
expressis confirmed on the original papyrus version of the declaration, in
the Albanian language[FN10]. The assertion of the majority in the advisory
opinion that "[n]owhere in the original Albanian text of the declaration
(which is the sole authentic text) is any reference made to the declaration
being the work of the Assembly of Kosovo" (paragraph 107) is thus plainly
incorrect, not enhancing the credibility of the majority's intellectual
construct.
----------------------------------------------------------------------------------------------------------------
[FN6] See the title of Chap. IV, Sec. B. 2 (a) of the Advisory Opinion.
[FN7] See Transcript of the Special Plenary Session of the Assembly of
Kosovo on the Declaration of Independence held on 17 February 2008, in:
Written Contribution of the Republic of Kosovo, 17 April 2009, Ann. 2, pp.
238-245.
[FN8] Ibid., p. 238; emphasis added.
[FN9] Ibid., pp. 239-245.
[FN10] See ibid., pp. 207 and 209 (the text in Albanian indicates: "Deputetët
e Kuvendit të Kosovës", meaning "Deputies of the Kosovo Assembly".
----------------------------------------------------------------------------------------------------------------
21. The Assembly of Kosovo, consisting of its members, the President of
Kosovo and its Government, headed by the Prime Minister, constituted, on 17
February 2008, the Provisional Institutions of Self-Government[FN11] of
Kosovo, and they together issued the declaration. The question was therefore
correctly formulated in the request of the General Assembly and there was no
reason to "adjust" it and subsequently to modify the title itself of the
case.
----------------------------------------------------------------------------------------------------------------
[FN11] See Chap. 9 of the Constitutional Framework for Provisional
Self-Government. The Advisory Opinion confirms that the Constitutional
Framework was in force on 17 February 2008 (paragraph 91).
----------------------------------------------------------------------------------------------------------------
Legal framework Applicable to Kosovo at the moment of adoption of the
declaration
22. The international legal régime in Kosovo has been governed since 10 June
1999 by resolution 1244 (1999), adopted by the Security Council acting under
Chapter VII of the Charter of the United Nations, and by the Constitutional
Framework.
Under resolution 1244 Kosovo has been placed under an international
territorial administration. As a result, although the Federal Republic of
Yugoslavia remained the territorial sovereign, it ceased to exercise
effective control in that territory[FN12].
----------------------------------------------------------------------------------------------------------------
[FN12] The Permanent Representative of the United Kingdom, during the debate
of the Security Council on Kosovo, held on 18 February 2008, the day
following the adoption of the declaration of independence by Kosovo, said:
"At the heart of today's controversy is a resolution adopted at this table
in June 1999. In that resolution, the Council took an unprecedented step: it
effectively deprived Belgrade of the exercise of authority in Kosovo."
(S/PV.5839, p. 12; emphasis added.)
----------------------------------------------------------------------------------------------------------------
23. Security Council resolution 1244 did not displace the Federal Republic
of Yugoslavia's title to the territory in question. To the contrary, the
resolution expressly states, in paragraph 10 of its preamble, that the
Security Council reaffirms "the commitment of all Member States to the
sovereignty and territorial integrity of the Federal Republic of Yugoslavia
and the other States of the region, as set out in the Helsinki Final Act and
annex 2" of the said resolution. The preamble, an integral part of
resolution 1244, is central to ascertaining the context in which the
resolution was adopted and the intention of the Security Council when
adopting it. The preamble thus has to be taken into account when
interpreting the resolution.
24. By establishing an international territorial administration over Kosovo,
which remained legally part of the FRY, the United Nations assumed its
responsibility for this territory.
25. The Security Council, in its resolution 1244, decided that "a political
solution to the Kosovo crisis shall be based on the general principles in
annex 1 and as further elaborated in the principles and other required
elements in annex 2" (operative para. 1). Both annexes refer to the
principles of sovereignty and territorial integrity of the Federal Republic
of Yugoslavia.
26. When the Security Council authorized the Secretary-General to establish
an international civil presence in Kosovo in order to provide an interim
administration for Kosovo, under which the people of Kosovo can enjoy
substantial autonomy within the Federal Republic of Yugoslavia (operative
para. 10), it decided that the main responsibilities of this international
civil presence would include:
- promoting the establishment, pending a final settlement, of substantial
autonomy and self-government in Kosovo, taking full account of annex 2 and
of the Rambouillet accords (para. 11 (a));
- organizing and overseeing the development of provisional institutions for
democratic and autonomous self-government pending a political settlement,
including the holding of elections (para. 11 (c));
- facilitating a political process designed to determine Kosovo's future
status, taking into account the Rambouillet accords (para. 11(e));
- in a final stage, overseeing the transfer of authority from Kosovo's
provisional institutions to institutions established under a political
settlement (para. 11 (g)).
27. By deciding on the main responsibilities of the international civilian
presence, the Security Council has not abdicated on its overall
responsibility for the situation in Kosovo; it has remained actively seised
of the matter (para. 21 of resolution 1244). The role of the Security
Council in respect of the final settlement issue has been preserved. The
Guiding Principles of the Contact Group for a Settlement of the Status of
Kosovo, which supported the recommendation of the Secretary-General to the
Security Council to launch a process to determine the future status of
Kosovo in accordance with Security Council resolution 1244, are telling.
They confirm that "[t]he Security Council will remain actively seized of the
matter. The final decision on the status of Kosovo should be endorsed by the
Security Council"[FN13].
---------------------------------------------------------------------------------------------------------------
[FN13] In French, "Le Conseil de sécurité demeurera activement saisi de la
question et devra approuver la décision finale sur le statut du Kosovo"; see
letter of 10 November 2005 addressed to the Secretary-General by the
President of the Security Council, S/2005/709, annex; emphasis added.
---------------------------------------------------------------------------------------------------------------
27. The notion of a "final settlement" cannot mean anything else than the
resolution of the dispute between the parties (i.e., the Belgrade
authorities and the Pristina authorities), either by an agreement reached
between them or by a decision of an organ having competence to do so. But
the notion of a settlement is clearly incompatible with the unilateral
step-taking by one of the parties aiming at the resolution of the dispute
against the will of the other.
It suffices to mention a few statements made by several States —
particularly involved in Kosovo-related issues — in the Security Council.
The United Kingdom condemned
"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." (S/PV.4742, p. 16, United
Kingdom.)
A few months later, the same government stated in the Security Council that
"[u]nilateral statements on status by any side seem to the United Kingdom to
be totally unacceptable" (S/PV.5017, p. 21). The French government stated in
2003 that "[n]o progress can be achieved in Kosovo on the basis of
unilateral action that is contrary to resolution 1244 (1999) or that flouts
the authority of UNMIK and KFOR" (S/PV.4770, p. 5). The German Permanent
Representative was unequivocal when he stated in 2003:
"The question of Kosovo's final status will be addressed at the appropriate
time and through the appropriate process. Only the Security Council has the
power to assess the implementation of resolution 1244 (1999), and it has the
final word in settling the status issue. No unilateral move or arrangement
intended to predetermine Kosovo's status — either for the whole or for parts
of Kosovo — can be accepted." (S/PV.4770, pp. 13-14; emphasis added.)
A few weeks later, the same government expressed its view that "[c]oncerning
the future status of Kosovo, the parties have to understand that no
unilateral act can change the status of Kosovo as laid down in Security
Council resolution 1244 (1999)" (S/PV.4809).
28. The negotiations on determining Kosovo's future status, led by the
Special Envoy of the Secretary-General, produced no agreement. The Special
Envoy reported that "[t]hroughout the process and on numerous occasions,
both parties have reaffirmed their categorical, diametrically opposed
positions: Belgrade demands Kosovo's autonomy within Serbia, while Pristina
will accept nothing short of independence'"[FN14]. One may ask whether the
parties negotiated in good faith because, as this Court observed,
negotiating in good faith means that
"the parties are under an obligation to enter into negotiations with a view
to arriving at an agreement, and not merely to go through a formal process
of negotiation . . .; they are under an obligation so to conduct themselves
that the negotiations are meaningful, which will not be the case when either
of them insists upon its own position without contemplating any modification
of it" (North Sea Continental Shelf (Federal Republic of Germany/Denmark;
Federal Republic of Germany/Netherlands), Judgment, I.C.J. Reports 1969, p.
47, para. 85; recalled in Gabcikovo-Nagymaros Project (Hungary/Slovakia),
Judgment, I.C.J. Reports 1997, p. 78, para. 141, and in Pulp Mills on the
River Uruguay (Argentina v. Uruguay), Judgment of 20 April 2010, para. 146).
----------------------------------------------------------------------------------------------------------------
[FN14] Report of the Special Envoy of the Secretary-General on Kosovo's
future status, doc. S/2007/168, p. 2, para. 2; emphasis added.
----------------------------------------------------------------------------------------------------------------
29. The Special Envoy, being himself convinced that "reintegration into
Serbia is not a viable option" and that "continued international
administration is not sustainable", concluded that "independence with
international supervision is the only viable option"[FN15]. He therefore
submitted "[his] Settlement proposal" and "urge[d] the Security Council to
endorse" it[FN16].
---------------------------------------------------------------------------------------------------------------
[FN15] Doc. S/2007/168, pp. 3 and 4. It is to be noted why, in his view,
reintegration was not a viable option:
"For the past eight years, Kosovo and Serbia have been governed in complete
separation. The establishment of the United Nations Mission in Kosovo (UNMIK)
pursuant to resolution 1244 (1999), and its assumption of all legislative,
executive and judicial authority throughout Kosovo, has created a situation
in which Serbia has not exercised any governing authority over Kosovo. This
is a reality one cannot deny; it is irreversible. A return of Serbian rule
over Kosovo would not be acceptable to the overwhelming majority of the
people of Kosovo. Belgrade could not regain its authority without provoking
violent opposition. Autonomy of Kosovo within the borders of Serbia —
however notional such autonomy may be — is simply not tenable" (p. 3, para.
7). The Report mischaracterizes the adoption of resolution 1244 as unanimous
(para. 15).
[FN16] Ibid., p. 5, para. 16.
---------------------------------------------------------------------------------------------------------------
30. The Ahtisaari Settlement proposal was not endorsed by the Security
Council, the only United Nations organ competent to do it. Having been
divided on the Kosovo final status issue, the Security Council was
circumvented, again. The UK Permanent Representative openly stated in the
General Assembly that "in coordination with many of the countries most
closely involved in stabilizing the Balkans, Kosovo's Assembly declared
Kosovo independent on 17 February 2008" (United Nations doc. A/63/PV.22, p.
3; emphasis added). The Kosovo Declaration of Independence has been a way to
put, to the extent possible, into practice the unendorsed Ahtisaari
plan[FN17].
----------------------------------------------------------------------------------------------------------------
[FN17] As one author who "acted as adviser to Kosovo in many, if not most,
of the various peace processes and negotiations" wrote:
"The Declaration had been drafted in conjunction with, and checked by, key
governments. It was phrased in a way as to have important legal implications
for Kosovo. Employing the international legal notion of a 'unilateral
declaration', it created legal obligations erga omnes. These are legal
obligations that all other states are entitled to rely on and of which they
can demand performance. In this sense, an attempt was made to replace the
binding nature of a Chapter VII resolution of the Security Council imposing
the limitations on Kosovo's sovereignty foreseen in the Ahtisaari plan with
a self-imposed limitation of sovereignty." (Marc Weller, Contested
Statehood, Kosovo's Struggle for Independence, Oxford University Press,
2009, pp. viii and 231.)
----------------------------------------------------------------------------------------------------------------
31. The declaration of independence was adopted by the Provisional
Institutions of Self-Government, "in coordination with many of the countries
most closely involved in stabilizing the Balkans"[FN18] at the moment when
the Constitutional Framework was applicable, as confirmed by the Advisory
Opinion (paragraph 91). Under the Constitutional Framework, external
relations were the exclusive prerogative of the Special Representative
(Advisory Opinion, paragraph 106).
On previous occasions the Special Representative has not hesitated, in the
exercise of his supervisory role, to declare null and void a measure of one
of the Provisional Institutions which he considered to be beyond that
Institution's powers (ultra vires). Thus, on 23 May 2002, the Special
Representative of the Secretary-General declared "null and void" a
resolution adopted by the Assembly of Kosovo seeking to challenge the border
agreement signed in February 2001 between the FRY and the former Yugoslav
Republic of Macedonia. On 7 November 2002, the Assembly of Kosovo adopted a
resolution in reaction to a draft Constitutional Charter of Serbia and
Montenegro (United Nations dossier No. 186). On the same day, the Special
Representative of the Secretary-General declared this resolution to have "no
legal effect" (United Nations dossier No. 187). Moreover, in February 2003,
the Assembly of Kosovo was preparing a "Declaration on Kosova — A Sovereign
and Independent State" which, inter alia, would have stated that "Kosova is
declared a democratic, independent and sovereign state" (United Nations
dossier No. 188, 3 February 2003, para. 1). The Principal Deputy Special
Representative of the Secretary-General, on behalf of the Special
Representative of the Secretary-General, informed the President of the
Assembly of Kosovo that the formal consideration of that matter by the
Assembly "would be contrary to United Nations Security Council resolution
1244 (1999), the Constitutional Framework for Provisional Self-Government in
Kosovo and to the Provisional Rules of Procedure of the Assembly". He
further suggested that it would constitute "[a]ction . . . [of the Assembly
of Kosovo] beyond the scope of its competencies" (United Nations dossier No.
189, 7 February 2003). In a similar vein, in November 2005, the Assembly of
Kosovo contemplated a declaration of independence, but the Special
Representative of the Secretary-General indicated that such a declaration
"would be in contravention to the UN Security Council resolution [1244] . .
. and it therefore will not be with any legal effect" (United Nations
Interim Administration of Kosovo, Press Briefing Notes, 16 November 2005,
pp. 4 and 5).
----------------------------------------------------------------------------------------------------------------
[FN18] That co-ordination, acknowledged by the United Kingdom Permanent
Representative (A/63/PV.22, p. 3), is demonstrated by the (almost) immediate
recognition of Kosovo's independence by those States.
----------------------------------------------------------------------------------------------------------------
32. The above facts demonstrate that the Special Representative of the
Secretary-General, entrusted by the United Nations with the interim
administration of Kosovo, qualified a number of acts of the Assembly of
Kosovo between 2002 and 2005 as being incompatible with the Constitutional
Framework and, consequently, with Security Council resolution 1244. These
acts, whether they sought directly to declare the independence of Kosovo or
whether they fell short of it, were deemed to be "beyond the scope of its
[i.e., the Assembly's] competencies" (United Nations dossier No. 189, 7
February 2003), in other words ultra vires.
33. The majority briefly mentions the above acts which were beyond the
competencies of the Provisional Institutions of Self-Government under the
Constitutional Framework (Advisory Opinion, paragraph 108). It attaches
"some significance" to "[t]he silence of the Special Representative of the
Secretary-General in the face of the declaration of independence on 17
February 2008" when it takes the view that this silence "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" (ibid.).
34. But the Advisory Opinion provides no explanation why acts which were
considered as going beyond the competencies of the Provisional Institutions
in the period 2002-2005, would no longer have any such character in 2008,
despite the fact that provisions of the Constitutional Framework on the
competencies of these institutions have not been amended and remained the
same in February 2008 as they were in 2005.
One is left with the impression that the Special Representative remained
silent this time as he knew well the effort to implement, to the extent
possible, the unendorsed Ahtisaari plan through the declaration adopted by
Kosovo Assembly "in coordination with many of the countries most closely
involved in stabilizing the Balkans".
35. The Court, as the principal judicial organ of the United Nations
(Article 92 of the Charter), is supposed to uphold the respect for the rules
and mechanisms set in the Charter and the decisions adopted thereunder. The
legal régime governing the international territorial administration of
Kosovo by the United Nations remained, on 17 February 2008, unchanged. What
certainly evolved were the political situation and realities in Kosovo. The
majority deemed preferable to take into account these political developments
and realities[FN19], rather than the strict requirement of respect for such
rules, thus trespassing the limits of judicial restraint.
---------------------------------------------------------------------------------------------------------------
[FN19] "The declaration of independence of 17 February 2008 must be
considered within the factual context which led to its adoption" (Advisory
Opinion, see paragraph 57; emphasis added), as if this factual context was
determinative in drawing legal conclusions. Similarly, the majority states
that "the declaration of independence must be seen in its larger context,
taking into account the events preceding its adoption, notably relating to
the so-called 'final status process' (Advisory Opinion, paragraph 104;
emphasis added), as if such context transformed the Assembly as one of the
Provisional Institutions into something else.
---------------------------------------------------------------------------------------------------------------
(Signed) Peter TOMKA.
Dissenting opinion of Judge Koroma
1. I have voted in favour of the decision to accede to the request for an
Advisory Opinion, but I unfortunately cannot concur in the finding that the
"declaration of independence of Kosovo adopted on 17 February 2008 did not
violate international law", in view of the following.
2. The unilateral declaration of independence of 17 February 2008 was not
intended to be without effect. It was unlawful and invalid. It failed to
comply with laid down rules. It was the beginning of a process aimed at
separating Kosovo from the State to which it belongs and creating a new
State. Taking into account the factual circumstances surrounding the
question put to the Court by the General Assembly, such an action violates
Security Council resolution 1244 (1999) and general international law.
3. Although the Court in exercising its advisory jurisdiction is entitled to
reformulate or interpret a question put to it, it is not free to replace the
question asked of it with its own question and then proceed to answer that
question, which is what the Court has done in this case, even though it
states that it sees no reason to reformulate the question. As the Court
states in paragraph 50 of the Advisory Opinion, its power to reformulate a
request for an advisory opinion has been limited to three areas. First, the
Court notes that in Interpretation of the Greco-Turkish Agreement of 1
December 1926 (Final Protocol, Article IV), Advisory Opinion, its
predecessor, the Permanent Court of International Justice, departed from the
language of the question put to it because the wording did not adequately
state what the Court believed to be the intended question (Advisory Opinion,
paragraph 50, citing 1928, P.C.I.J., Series B, No. 16). Second, the Court
points out that in Interpretation of the Agreement of 25 March 1951 between
the WHO and Egypt, Advisory Opinion, the request was reformulated because it
did not reflect the "legal questions really in issue" (ibid., citing I.C.J.
Reports 1980, p. 89, para. 35). This involved only slightly broadening the
question but not changing the meaning from what had been intended. Finally,
the Court observes that in Application for Review of Judgement No. 273 of
the United Nations Administrative Tribunal, Advisory Opinion, it clarified a
question considered unclear or vague (ibid., citing I.C.J. Reports 1982, p.
348, para. 46). In all of these cases, the Court reformulated the question
in an effort to make that question more closely correspond to the intent of
the institution requesting the advisory opinion. Never before has it
reformulated a question to such an extent that a completely new question
results, one clearly distinct from the original question posed and which,
indeed, goes against the intent of the body asking it. This is what the
Court has done in this case by, without explicitly reformulating the
question, concluding that the authors of the declaration of independence
were distinct from the Provisional Institutions of Self-Government of Kosovo
and that the answer to the question should therefore be developed on this
presumption. The purpose of the question posed by the General Assembly is to
enlighten the Assembly as to how to proceed in the light of the unilateral
declaration of independence, and 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. The Court does
not have the power to reformulate the question — implicitly or explicitly —
to such an extent that it answers a question about an entity other than the
Provisional Institutions of Self-Government of Kosovo.
4. Moreover, the Court's conclusion that the declaration of independence of
17 February 2008 was made by a body other than the Provisional Institutions
of Self-Government of Kosovo and thus did not violate international law is
legally untenable, because it is based on the Court's perceived intent of
those authors. International law does not confer a right on ethnic,
linguistic or religious groups to break away from the territory of a State
of which they form part, without that State's consent, merely by expressing
their wish to do so. To accept otherwise, to allow any ethnic, linguistic or
religious group to declare independence and break away from the territory of
the State of which it forms part, outside the context of decolonization,
creates a very dangerous precedent. Indeed, it amounts to nothing less than
announcing to any and all dissident groups around the world that they are
free to circumvent international law simply by acting in a certain way and
crafting a unilateral declaration of independence, using certain terms. The
Court's Opinion will serve as a guide and instruction manual for
secessionist groups the world over, and the stability of international law
will be severely undermined.
5. It is also question-begging to identify the authors of the unilateral
declaration of independence on the basis of their perceived intent, for it
predetermines the very answer the Court is trying to develop: there can be
no question that the authors wish to be perceived as the legitimate,
democratically elected leaders of the newly-independent Kosovo, but their
subjective intent does not make it so. Relying on such intent leads to
absurd results, as any given group — secessionists, insurgents — could
circumvent international norms specifically targeting them by claiming to
have reorganized themselves under another name. Under an intent-oriented
approach, such groups merely have to show that they intended to be someone
else when carrying out a given act, and that act would no longer be subject
to international law specifically developed to prevent it.
6. In the case before the Court, it should be recalled that the Special
Representative of the Secretary-General had previously described such acts
as being incompatible with the Constitutional Framework, on the grounds that
they were deemed to be "beyond the scope of the Assembly's competence" and
therefore outside its powers, in particular when that body took initiatives
to promote the independence of Kosovo (United Nations dossier No. 189, 7
February 2003). In the face of this previous invalidation, the authors of
the unilateral declaration of independence have claimed to have made their
declaration of independence outside the framework of the Provisional
Institutions of Self-Government.
7. As the Court has recognized in paragraph 97 of its Advisory Opinion,
resolution 1244 (1999) and UNMIK regulation 1999/1 constitute the legal
order in force at that time in the territory of Kosovo. Kosovo was not a
legal vacuum. Any act, such as the unilateral declaration of independence of
17 February 2008, adopted in violation of resolution 1244 (1999) and UNMIK
regulation 1999/1, will therefore not be in accordance with international
law.
8. International law is not created by non-State entities acting on their
own. It is created with the assent of States. Rather than reaching a
conclusion on the identity of the authors of the unilateral declaration of
independence based on their subjective intent, the Court should have looked
to the intent of States and, in particular in this case, the intent of the
Security Council in resolution 1244 (1999), which upholds the territorial
integrity of the Federal Republic of Yugoslavia (Serbia).
9. In so far as the Advisory Opinion has not responded to the question posed
by the General Assembly, I will now give my views on the question from the
perspective of international law. Principally, my view is that resolution
1244 (1999), together with general international law, in particular the
principle of the territorial integrity of States, does not allow for the
unilateral declaration of independence by the Provisional Institutions of
Self-Government of Kosovo, and that that declaration of independence is
therefore not in accordance with international law.
10. In the question that it has submitted to the Court, the General Assembly
recognizes that resolution 1244 (1999) constitutes the legal basis for the
creation of the Provisional Institutions of Self-Government of Kosovo. It is
therefore obvious that the question before the Court is accordingly
predicated on resolution 1244 (1999). That resolution was adopted by the
Security Council pursuant to Chapter VII of the Charter of the United
Nations and is thus binding pursuant to Article 25 of the Charter. It
remains the legal basis of the régime governing Kosovo. Thus, when asked to
determine the legal validity of the unilateral declaration of independence
of 17 February 2008, this Court has, first and foremost, to interpret and to
apply resolution 1244 (1999), both as international law and as the lex
specialis, to the matter before it. Only after this must the Court consider
the other mandatory rules of international law, in particular, the principle
of the sovereignty and territorial integrity of a State, in this case the
Federal Republic of Yugoslavia (Serbia).
11. Therefore, what is primarily at stake in this case is the proper
interpretation and application of Security Council resolution 1244 (1999).
As explained in detail below, the declaration of independence is unlawful
under Security Council resolution 1244 (1999) for several reasons. First,
according to the material before the Court, the declaration of independence
was adopted by the Assembly of Kosovo as part of the Provisional
Institutions of Self-Government. It was endorsed as such by the President
and Prime Minister of Kosovo. Accordingly, it is subject to resolution 1244
(1999). Secondly, that resolution calls for a negotiated settlement, meaning
the agreement of all the parties concerned with regard to the final status
of Kosovo, which the authors of the declaration of independence have
circumvented. Thirdly, the declaration of independence violates the
provision of that resolution calling for a political solution based on
respect for the territorial integrity of the Federal Republic of Yugoslavia
and the autonomy of Kosovo. Additionally, the unilateral declaration of
independence is an attempt to bring to an end the international presence in
Kosovo established by Security Council resolution 1244 (1999), a result
which could only be effected by the Security Council itself.
12. In order to apply Security Council resolution 1244 (1999) to the facts
at issue in the question put by the General Assembly, the Court must
interpret that resolution. In paragraph 117 of the Advisory Opinion, the
Court recalled its statement in Legal Consequences for States of the
Continued Presence of South Africa in Namibia (South West Africa)
notwithstanding Security Council Resolution 276 (1970) that when
interpreting Security Council resolutions,
"The language of a resolution . . . should be carefully analysed before a
conclusion can be made as to its binding effect. In view of the nature of
the powers under Article 25, the question whether they have been in fact
exercised is to be determined in each case, having regard to the terms of
the resolution to be interpreted, the discussions leading to it, the Charter
provisions invoked and, in general, all circumstances that might assist in
determining the legal consequences of the resolution of the Security
Council." (Ibid., Advisory Opinion, I.C.J. Reports 1971, p. 53, para. 114.)
13. In this regard, resolution 1244 (1999) reaffirms "the sovereignty and
territorial integrity of the Federal Republic of Yugoslavia and the other
States of the region, as set out in the Helsinki Final Act and annex 2"
(United Nations, Official Records of the Security Council, 4011th meeting,
S/RES/1244 (1999), p. 2). It further provides in operative paragraph 1 that
"a political solution to the Kosovo crisis shall be based on the general
principles in annex 1 and . . . 2" (ibid.). Both of these annexes provide
that the political process must take "full account" (ibid., p. 5) of the
"principles of sovereignty and territorial integrity of the Federal Republic
of Yugoslavia and the other countries of the region" (ibid.). Moreover, in
operative paragraphs 11 (a) and (e) of resolution 1244 (1999), reference is
made to the Rambouillet accords. These accords also affirm the sovereignty
and territorial integrity of the Federal Republic of Yugoslavia. In the
Preamble of the accords, the commitment to the Helsinki Final Act is
reaffirmed, as is the commitment to "the sovereignty and territorial
integrity of the Federal Republic of Yugoslavia" (United Nations, Official
Records of the Security Council, doc. S/1999/648, p. 3). Chapter 1 of the
accords states that institutions of democratic self-government in Kosovo
should be "grounded in respect for the territorial integrity and sovereignty
of the Federal Republic of Yugoslavia" (ibid., p. 9). Whether these
provisions are considered separately or together, it is self-evident that
resolution 1244 (1999) does not provide for the unilateral secession of
Kosovo from the Federal Republic of Yugoslavia without the latter's consent.
On the contrary, the resolution reaffirms the sovereignty and territorial
integrity of the Federal Republic of Yugoslavia, of which Kosovo is a
component part. Moreover, the resolution provides for "substantial autonomy
[for the people of Kosovo] within the Federal Republic of Yugoslavia"
(United Nations, Official Records of the Security Council, 4011th meeting,
S/RES/1244 (1999), para. 10; emphasis added). In other words, it was
intended that Kosovo enjoy substantial autonomy and self-government during
the international civil presence but that it remain an integral part of the
Federal Republic of Yugoslavia.
14. The international civil presence called for in paragraph 11 of
resolution 1244 (1999) was established in Kosovo with the "agreement" of the
Federal Republic of Yugoslavia (Serbia) as sovereign over its entire
territory, including Kosovo. This position is reflected in both the Preamble
and the operative paragraphs of the resolution. In the Preamble, the
Security Council:
"Welcom[ed] the general principles on a political solution to the Kosovo
crisis adopted on 6 May 1999 (S/1999/516, annex 1 to this resolution) and
welcom[ed] also the acceptance by the Federal Republic of Yugoslavia of the
principles set forth in points 1 to 9 of the paper presented in Belgrade on
2 June 1999 (S/1999/649, annex 2 to this resolution), and the Federal
Republic of Yugoslavia's agreement to that paper." (Emphasis added.)
In operative paragraph 1, the Security Council decided: "that a political
solution to the Kosovo crisis shall be based on the general principles in
annex 1 and as further elaborated in the principles and other required
elements in annex 2". And in operative paragraph 2, the Security Council: "[w]elcome[d]
the acceptance by the Federal Republic of Yugoslavia of the principles and
other required elements referred to in paragraph 1" (emphasis added). Thus,
according to resolution 1244 (1999), the Security Council acknowledges and
recognizes Kosovo to be part of the territory of the Federal Republic of
Yugoslavia and confirms that the establishment of the international civil
presence there was with the agreement of the Federal Republic of Yugoslavia.
Kosovo cannot be declared independent by a unilateral declaration while the
international civil presence continues to exist and operate in the province.
The resolution does not grant the international civil presence the right to
alter or terminate the Federal Republic of Yugoslavia's sovereignty over its
territory of Kosovo, nor does it envisage the transfer of that sovereignty
to any of the Provisional Institutions of Self-Government of Kosovo created
by the international presence. To state this obvious fact in very clear
terms, UNMIK and the Provisional Institutions of Self-Government of Kosovo
were created by resolution 1244 (1999) with the express agreement of the
Government of the Federal Republic of Yugoslavia. As subsidiary bodies of
the Security Council, they possess limited authority derived from and
circumscribed by resolution 1244 (1999). No power is vested in any of those
bodies to determine the final status of Kosovo, nor do any of them have the
power to create other bodies which would have such a power. Accordingly,
when the Assembly of the Provisional Institutions of Self-Government of
Kosovo purported to declare independence on 17 February 2008, they attempted
to carry out an act which exceeded their competence. As such, the
declaration is a nullity, an unlawful act that violates express provisions
of Security Council resolution 1244 (1999). It is ex injuria non oritur jus.
15. That the unilateral declaration of independence by one of the entities
of the Provisional Institutions of Self-Government of Kosovo contravenes
both the text and spirit of resolution 1244 (1999) is also evident from
operative paragraph 10 of the resolution, providing for the establishment of
"an interim administration for Kosovo under which the people of Kosovo can
enjoy substantial autonomy within the Federal Republic of Yugoslavia"
(emphasis added). The use of the word "within" is a further recognition of
the sovereignty of the Federal Republic of Yugoslavia over its territory of
Kosovo and does not allow for the alteration of the territorial extent of
the Federal Republic of Yugoslavia (Serbia).
16. Nor is the unilateral declaration of independence consistent with
operative paragraph 11 of resolution 1244 (1999), which stipulates, inter
alia, that the Security Council:
"Decides that the main responsibilities of the international civil presence
will include:
(a) promoting the establishment, pending a final settlement, of substantial
autonomy and self-government in Kosovo, taking full account of annex 2 and
of the Rambouillet accords (S/1999/648)".
The reference to a future "settlement" of the conflict, in my view, excludes
the making of the unilateral declaration of independence. By definition,
"settlement" in this context contemplates a resolution brought about by
negotiation. This interpretation of resolution 1244 (1999) is supported by
the positions taken by various States. For instance, France observed in the
Security Council that:
"the Assembly in particular must renounce those initiatives that are
contrary to resolution 1244 (1999) or the Constitutional Framework . . . No
progress can be achieved in Kosovo on the basis of unilateral action that is
contrary to resolution 1244 (1999)." (United Nations, Official Records of
the Security Council, Fifty-eighth year, 4770th Meeting, doc. S/PV.4770, p.
5; emphasis added.)
The Italian Government, on behalf of the European Union, stated that
resolution 1244 (1999) was the "cornerstone of the international community's
commitment to Kosovo" and it "urge[d] all concerned in Kosovo and in the
region to cooperate in a constructive manner . . . on fully implementing
resolution 1244 (1999) while refraining from unilateral acts and statements
. . ." (United Nations, Official Records of the Security Council,
Fifty-eighth year, 4823rd Meeting, doc. S/PV.4823, p. 15; emphasis added).
The Contact Group, made up of the European Union, the Russian Federation and
the United States, produced Guiding principles for a settlement of the
status of Kosovo according to which "Any solution that is unilateral . . .
would be unacceptable. There will be no changes in the current territory of
Kosovo . . . The territorial integrity and internal stability of regional
neighbours will be fully respected." (United Nations, Official Records of
the Security Council, doc. S/2005/709, p. 3; emphasis added.)
17. Finally, it should be recalled that in paragraph 91 of the Opinion, the
Court holds that resolution 1244 (1999) is still in force and the Security
Council has taken no steps whatsoever to rescind it. The status of that
resolution cannot be changed unilaterally.
18. In the light of the foregoing, the conclusion is therefore inescapable
that resolution 1244 (1999) does not allow for a unilateral declaration of
independence or for the secession of Kosovo from the Federal Republic of
Yugoslavia (Serbia) without the latter's consent.
19. In addition to resolution 1244 (1999), the Court has considered whether
the unilateral declaration of independence has violated certain derivative
law promulgated pursuant to it, notably the Constitutional Framework and
other UNMIK regulations. It concludes that the declaration of independence
did not violate the Constitutional Framework because its authors were not
the Provisional Institutions of Self-Government of Kosovo and thus not bound
by that Framework. The jurisprudence of the Court is clear that if an organ
which has been attributed a limited number of competences transgresses those
competences, its acts would be ultra vires (Legality of the Use by a State
of Nuclear Weapons in Armed Conflict, Advisory Opinion, I.C.J. Reports 1996
(I), p. 82; Phosphates in Morocco, Judgment, 1938, P.C.I.J., Series A/B, No.
74, p. 14). However, the majority opinion avoids this result by a kind of
judicial sleight-of-hand, reaching a hasty conclusion that the "authors" of
the unilateral declaration of independence were not acting as the
Provisional Institutions of Self-Government of Kosovo but rather as the
direct representatives of the Kosovo people and were thus not subject to the
Constitutional Framework and UNMIK regulations. That conclusion simply
cannot be correct, since the unilateral declaration of independence was
adopted in the context of resolution 1244 (1999) and the Court has
acknowledged that the question posed by the General Assembly is a legal
question and that resolution 1244 (1999) is the lex specialis and applicable
in this case.
20. In addition to examining resolution 1244 (1999) and the law promulgated
pursuant to it, the Court, in considering the question put before it by the
General Assembly, had to apply the rules and principles of general
international law. In this regard, it must first be emphasized that it is a
misconception to say, as the majority opinion does, that international law
does not authorize or prohibit the unilateral declaration of independence.
That statement only makes sense when made in the abstract about declarations
of independence in general (see, e.g., the Advisory Opinion of the Supreme
Court of Canada, reaching such a conclusion in the abstract with respect to
secession in international law, Reference by the Governor-General concerning
Certain Questions relating to the Secession of Quebec from Canada, 1998,
S.C.R., Vol. 2, p. 217, para. 112), not with regard to a specific unilateral
declaration of independence which took place in a specific factual and legal
context against which its accordance with international law can be judged.
The question put before the Court is specific and well defined. It is not a
hypothetical question. It is a legal question requiring a legal response.
Since the Court, according to its Statute, is under an obligation to apply
the rules and principles of international law even when rendering advisory
opinions, it should have applied them in this case. Had it done so — instead
of avoiding the question by reference to a general statement that
international law does not authorize or prohibit declarations of
independence, which does not answer the question posed by the General
Assembly — it would have had to conclude, as discussed below, that the
unilateral declaration of independence by the Provisional Institutions of
Self-Government of Kosovo amounted to secession and was not in accordance
with international law. A unilateral secession of a territory from an
existing State without its consent, as in this case under consideration, is
a matter of international law.
21. The truth is that international law upholds the territorial integrity of
a State. One of the fundamental principles of contemporary international law
is that of respect for the sovereignty and territorial integrity of States.
This principle entails an obligation to respect the definition, delineation
and territorial integrity of an existing State. According to the principle,
a State exercises sovereignty within and over its territorial domain. The
principle of respect for territorial integrity is enshrined in the Charter
of the United Nations and other international instruments. Article 2,
paragraph 4, of the Charter of the United Nations provides:
"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."
The unilateral declaration of independence involves a claim to a territory
which is part of the Federal Republic of Yugoslavia (Serbia). Attempting to
dismember or amputate part of the territory of a State, in this case the
Federal Republic of Yugoslavia (Serbia), by dint of the unilateral
declaration of independence of 17 February 2008, is neither in conformity
with international law nor with the principles of the Charter of the United
Nations, nor with resolution 1244 (1999).
The principle of respect for territorial integrity is also reflected in the
Declaration on Principles of International Law concerning Friendly Relations
and Co-operation among States in accordance with the Charter of the United
Nations, according to which:
"any attempt aimed at the partial or total disruption of the national unity
and territorial integrity of a State or country or at its political
independence is incompatible with the purposes and principles of the
Charter" (United Nations, Official Records of the General Assembly,
Twenty-fifth Session, resolution 2625 (XXV) of 24 October 1970; emphasis
added).
The Declaration further stipulates that "[t]he territorial integrity and
political independence of the State are inviolable".
22. Not even the principles of equal rights and self-determination of
peoples as precepts of international law allow for the dismemberment of an
existing State without its consent. According to the above-mentioned
Declaration, "[e]very State shall refrain from any action aimed at the
partial or total disruption of the national unity and territorial integrity
of any other State or country". The Declaration further emphasizes that
"Nothing in the foregoing paragraphs shall be construed as authorizing or
encouraging any action which would dismember or impair, totally or in part,
the territorial integrity or political unity of sovereign and independent
States." (Emphasis added.)
The Declaration thus leaves no doubt that the principles of the sovereignty
and territorial integrity of States prevail over the principle of
self-determination.
23. According to the finding made by the Supreme Court of Canada, which has
already considered a matter similar to the one before the Court,
"international law does not specifically grant component parts of sovereign
states the legal right to secede unilaterally from their 'parent' state"
(Reference by the Governor-General concerning Certain Questions relating to
the Secession of Quebec from Canada, 1998, S.C.R., Vol. 2, p. 217, para.
111; emphasis added). This, in my view, correctly reflects the present state
of the law with respect to the question the Supreme Court of Canada was
asked, namely,
"Does international law give the National Assembly, Legislature or
Government of Quebec the right to effect the secession of Quebec from Canada
unilaterally?. In this regard, is there a right to self-determination under
international law that would give the National Assembly, Legislature or
Government of Quebec the right to effect the secession of Quebec from Canada
unilaterally?" (Ibid., para. 2.)
The question now before the Court, on the other hand, asks not about the
existence of a "right" to declare independence but about the "accordance" of
a declaration of independence with international law. This provides an
opportunity to complete the picture partially drawn by the Supreme Court of
Canada. That court, in response to the specific question asked, made clear
that international law does not grant a right to secede. This Court, in
response to the specific question asked by the General Assembly, should have
made clear that the applicable international law in the case before the
Court contains rules and principles explicitly preventing the declaration of
independence and secession. The unilateral declaration of independence of 17
February 2008 was tantamount to an attempt to secede from Serbia and
proclaim Kosovo a sovereign independent State created out of the latter's
territory. The applicable international law in this case, together with
resolution 1244 (1999), prohibits such a proclamation and cannot recognize
its validity.
24. At the time resolution 1244 (1999) was adopted, the Federal Republic of
Yugoslavia was, and it still is, an independent State exercising full and
complete sovereignty over Kosovo. Neither the Security Council nor the
Provisional Institutions of Self-Government of Kosovo, which are creations
of the Council, are entitled to dismember the Federal Republic of Yugoslavia
(Serbia) or impair totally or in part its territorial integrity or political
unity without its consent.
25. It is for these reasons that the Court should have found that the
unilateral declaration of independence of 17 February 2008 by the
Provisional Institutions of Self-Government of Kosovo is not in accordance
with international law.
(Signed) Abdul G. KOROMA.
Declaration of Judge Simma
1. Although I concur with the Court on the great majority of its reasoning
and on the ultimate reply it has given to the General Assembly, I have
concerns about its unnecessarily limited — and potentially misguiding —
analysis. Specifically, in paragraph 56 the Advisory Opinion interprets the
General Assembly's request to ask only for an assessment of whether the
Kosovar declaration of independence was adopted in violation of
international law, and it does so in a way that I find highly problematic as
to the methodology used. In my view, this interpretation not only goes
against the plain wording of the request itself, the neutral drafting of
which asks whether the declaration of independence was "in accordance with
international law" (see Advisory Opinion, paragraph 1); it also excludes
from the Court's analysis any consideration of the important question
whether international law may specifically permit or even foresee an
entitlement to declare independence when certain conditions are met.
2. I find this approach disquieting in the light of the Court's general
conclusion, in paragraph 3 of the operative clause (Advisory Opinion,
paragraph 123), that the declaration of independence "did not violate
international law". The underlying rationale of the Court's approach
reflects an old, tired view of international law, which takes the adage,
famously expressed in the "Lotus" Judgment, according to which restrictions
on the independence of States cannot be presumed because of the consensual
nature of the international legal order ("Lotus", Judgment No. 9, 1927,
P.C.I.J., Series A, No. 10, p. 18). As the Permanent Court did in that case
(ibid., pp. 19-21), the Court has concluded in the present Opinion that, in
relation to a specific act, it is not necessary to demonstrate a permissive
rule so long as there is no prohibition.
3. In this respect, in a contemporary international legal order which is
strongly influenced by ideas of public law, the Court's reasoning on this
point is obsolete. By way of explanation, I wish to address two points in
the present declaration. First, by unduly limiting the scope of its
analysis, the Court has not answered the question put before it in a
satisfactory manner. To do so would require a fuller treatment of both
prohibitive and permissive rules of international law as regards
declarations of independence and attempted acts of secession than what was
essayed in the Court's Opinion. Secondly, by upholding the Lotus principle,
the Court fails to seize a chance to move beyond this anachronistic,
extremely consensualist vision of international law. The Court could have
considered the scope of the question from an approach which does not, in a
formalistic fashion, equate the absence of a prohibition with the existence
of a permissive rule; it could also have considered the possibility that
international law can be neutral or deliberately silent on the international
lawfulness of certain acts.
4. With regard to my first point, I wish to recall the wording of the
General Assembly's request, which asked whether Kosovo's declaration of
independence was "in accordance with international law" (Advisory Opinion,
paragraph 1). The Opinion considers that in order to answer this request,
all the Court needs to do is to assess whether there exists, under
international law, a prohibitive rule, thus satisfied that the lack of a
violation of international law entails being in accordance therewith
(Advisory Opinion, paragraph 56). This interpretation, however, does not sit
easily with the actual wording of the request, which deliberately does not
ask for the existence of either a prohibitive or permissive rule under
international law. Had the General Assembly wished to limit its request in
such a manner, it could easily have chosen a clear formulation to that
effect. The term "in accordance with" is broad by definition.
5. It is true that the request is not phrased in the same way as the
question posed to the Supreme Court of Canada (asking for a "right to effect
secession": see Advisory Opinion, paragraph 55). However, this difference
does not justify the Court's determination that the term "in accordance
with" is to be understood as asking exclusively whether there is a
prohibitive rule; according to the Court, if there is none, the declaration
of independence is ipso facto in accordance with international law.
6. In addition, many of the participants, including the authors of the
declaration of independence, invoked arguments relating the right to
self-determination and the issue of "remedial secession" in their pleadings
(see Advisory Opinion, paragraph 82). The Court could have addressed these
arguments on their merits; instead, its restrictive understanding of the
scope of the question forecloses consideration of these arguments
altogether. The relevance of self-determination and/or remedial secession
remains an important question in terms of resolving the broader dispute in
Kosovo and in comprehensively addressing all aspects of the accordance with
international law of the declaration of independence. None other than the
authors of the declaration of independence make reference to the "will of
[their] people" in operative paragraph 1 thereof, which is a fairly clear
reference to their purported exercise of self-determination (see paragraph
75 of the Opinion, where the declaration of independence is quoted in full).
Moreover, consideration of these points would very well have been within the
scope of the question as understood by the Kosovars themselves, amongst
several Participants, who make reference to a right of external
self-determination grounded in self-determination and "remedial secession"
as a people. The treatment — or rather, non-treatment — of these submissions
by the Court, in my opinion, does not seem to be judicially sound, given the
fact that the Court has not refused to give the opinion requested from it to
the General Assembly.
7. In this light, I believe that the General Assembly's request deserves a
more comprehensive answer, assessing both permissive and prohibitive rules
of international law. This would have included a deeper analysis of whether
the principle of self-determination or any other rule (perhaps expressly
mentioning remedial secession) permit or even warrant independence (via
secession) of certain peoples/territories. Having said this, I do not
consider it an appropriate exercise of my judicial role to examine these
arguments in extenso; therefore, on this point, I shall content myself
simply with declaring that the Court could have delivered a more
intellectually satisfying Opinion, and one with greater relevance as regards
the international legal order as it has evolved into its present form, had
it not interpreted the scope of the question so restrictively. To treat
these questions more extensively would have demonstrated the Court's
awareness of the present architecture of international law.
8. Secondly, apart from these concerns as regards the specific question
before the Court, there is also a wider conceptual problem with the Court's
approach. The Court's reading of the General Assembly's question and its
reasoning, leaping as it does straight from the lack of a prohibition to
permissibility, is a straightforward application of the so-called Lotus
principle. By reverting to it, the Court answers the question in a manner
redolent of nineteenth-century positivism, with its excessively deferential
approach to State consent. Under this approach, everything which is not
expressly prohibited carries with it the same colour of legality; it ignores
the possible degrees of non-prohibition, ranging from "tolerated" to
"permissible" to "desirable". Under these circumstances, even a clearly
recognized positive entitlement to declare independence, if it existed,
would not have changed the Court's answer in the slightest.
9. By reading the General Assembly's question as it did, the Court denied
itself the possibility to enquire into the precise status under
international law of a declaration of independence. By contrast, by moving
away from "Lotus", the Court could have explored whether international law
can be deliberately neutral or silent on a certain issue, and whether it
allows for the concept of toleration, something which breaks from the binary
understanding of permission/prohibition and which allows for a range of
non-prohibited options. That an act might be "tolerated" would not
necessarily mean that it is "legal", but rather that it is "not illegal". In
this sense, I am concerned that the narrowness of the Court's approach might
constitute a weakness, going forward, in its ability to deal with the great
shades of nuance that permeate international law. Furthermore, that the
international legal order might be consciously silent or neutral on a
specific fact or act has nothing to do with non liquet, which concerns a
judicial institution being unable to pronounce itself on a point of law
because it concludes that the law is not clear. The neutrality of
international law on a certain point simply suggests that there are areas
where international law has not yet come to regulate, or indeed, will never
come to regulate. There would be no wider conceptual problem relating to the
coherence of the international legal order.
10. For these reasons, the Court should have considered the question from a
slightly broader perspective, and not limited itself merely to an exercise
in mechanical jurisprudence. As posed by the General Assembly, the question
already confines the Court to a relatively narrow aspect of the wider
dispute as regards the final status of Kosovo. For the Court consciously to
have chosen further to narrow the scope of the question has brought with it
a method of judicial reasoning which has ignored some of the most important
questions relating to the final status of Kosovo. To not even enquire into
whether a declaration of independence might be "tolerated" or even expressly
permitted under international law does not do justice to the General
Assembly's request and, in my eyes, significantly reduces the advisory
quality of this Opinion.
(Signed) Bruno SIMMA.
Separate opinion of Judge Keith
Separate opinion of Judge Keith
1. The Court, in my view, should have exercised its discretion to refuse to
answer the question which the General Assembly submitted to it on 8 October
2008 in resolution 63/3. In this opinion I give my reasons for that
conclusion.
2. While the terms of the French text of Article 14 of the Covenant of the
League of Nations may have been read as denying the Permanent Court of
International Justice a discretion to refuse (the Court "donnera aussi des
avis consultatifs" on matters submitted to it by the Council or Assembly)
and the English text may have been read as an enabling rather than a
discretionary provision ("The Court may also give an advisory opinion . .
."), the Court made it clear, very early in its life, that it had a
discretion to refuse a request. In 1923, in the Status of Eastern Carelia,
Advisory Opinion, 1923, P. C.I. J., Series B, No. 5, the Court, having
decided that it was "impossible" for it to give the opinion on the dispute
before it, continued "that there are other cogent reasons which render it
very inexpedient that [it] should attempt to deal with the present question"
(p. 28). Those reasons related to the availability of evidence about a
factual issue at the heart of the dispute. It was very doubtful, said the
Court, that there would be available to the Court materials sufficient to
enable it to arrive at any judicial conclusion upon the question of fact:
what did the parties agree to? While that particular reason for refusing to
give an opinion does not arise in this case, what is significant, in
addition to the Court's recognition that it had a discretion to refuse a
request, is its broader statement of principle: "The Court, being a Court of
Justice, cannot, even in giving advisory opinions, depart from the essential
rules guiding [its] activity as a Court." (P. 29.)
3. At that early stage the Court was taking care to underline that, in its
advisory jurisdiction, it was not simply an adviser to the political organs
of the League and, as such, obliged to respond at their beck and call. It
was a court and had to maintain its judicial integrity in the exercise of
that jurisdiction just as in its contentious jurisdiction. It continued to
underline that essential character in its practice and rules relating to its
advisory jurisdiction. Those rules were moved in 1936 to the Statute of the
Permanent Court and were in turn included in the Statute of this Court.
Notable among them is Article 68: "In the exercise of its advisory functions
the Court shall further be guided by the provisions of the present Statute
which apply in contentious cases to the extent to which it recognizes them
to be applicable." Article 65 (1), in the only addition to the Chapter on
Advisory Opinions included in the Statute of this Court, expressly
recognizes that the Court has a discretion whether to reply to a request:
"The Court may give an advisory opinion on any legal question . . ."
4. That discretion exists for good reason. The Court, in exercising it,
considers both its character as a principal organ of the United Nations and
its character as a judicial body. In terms of the former, the Court early
declared that its exercise of its advisory jurisdiction represents its
participation in the activities of the Organization and, in principle,
should not be refused (Interpretation of Peace Treaties with Bulgaria,
Hungary and Romania, First Phase, Advisory Opinion, I.C.J. Reports 1950, pp.
71-72). That indication of a strong inclination to reply is also reflected
in the Court's later statement that "compelling reasons" would be required
to justify a refusal (Judgments of the Administrative Tribunal of the ILO
upon Complaints Made against Unesco, Advisory Opinion, I.C.J. Reports 1956,
p. 86). While maintaining its integrity as a judicial body has so far been
the reason for refusal which the Court has emphasized, it has not ever
identified it as the only factor which might lead it to refuse. So too may
other considerations, including the interest of the requesting organ and the
relative interests of other United Nations organs, discussed later.
5. That discussion of the law highlights the link between the interest of
the requesting organ and the strong inclination or the duty, as it is
sometimes put, of the Court to reply. Accordingly, I consider in some detail
the facts relating to this particular request and the relative interests of
the General Assembly and Security Council. The exercise of the discretion,
recognized by Article 65 (1) of the Statute, should not, in a case such as
this, be unduly hampered by a label such as "compelling reasons".
6. The issue which for me is decisive is whether the request in this case
should have come from the Security Council rather than from the General
Assembly and whether for that reason the Court should refuse to answer the
question. That statement of the issue raises the question whether the Court
may properly raise such a contention in terms of its participation as a
principal organ of the United Nations within the wider United Nations system
or for the purpose of protecting the integrity of its judicial function. To
make my position clear, I add that I would have been able to see no possible
reason for the Court refusing to answer the question in this case had it
been put by the Security Council. My concern relates only to the propriety
of the Court replying to the General Assembly in the circumstances of this
case. I consider that the Court should address that issue of the
appropriateness of an organ requesting an opinion if the request is
essentially concerned with the actual exercise of special powers by another
organ under the Charter, in relation to the matter which is the subject of
the request. As will appear, this exact issue has not arisen in respect of
any earlier request for an advisory opinion.
7. While my focus is primarily on Security Council resolution 1244 adopted
on 10 June 1999 and on the actions taken after that date by the Security
Council and the General Assembly, some earlier actions are also relevant to
an assessment of their relative roles since that date and in particular in
late 2008 when the Assembly made its request to the Court. In the 1990s both
bodies had substantial roles in respect of the developing crises and armed
conflicts in the territory of the Socialist Federal Republic of Yugoslavia
and the new States formed from it. The Security Council's concern was
primarily with the issues of international peace and security arising there
and, in that context, with the introduction of sanctions, the establishment
and functioning of peacekeeping forces, and the setting up of the
International Criminal Tribunal for the Former Yugoslavia. Between 31 March
1998 and 14 May 1999 the Council also adopted four resolutions relating
specifically to Kosovo. All were adopted under Chapter VII of the Charter
and, as the "crisis" developed into a "humanitarian catastrophe", made
various calls and demands on the Federal Republic of Yugoslavia, the Kosovo
Albanian leadership and others. (See also resolution 1367 (2001) ending the
prohibition on the sale and supply of arms imposed in the first of those
resolutions.
8. The General Assembly's involvement in that earlier period was principally
with the situation of human rights, at first in the territory of the former
Yugoslavia in general (e.g., General Assembly resolution 48/153 (1993), para.
17 of which is concerned with Kosovo), and, from 1995, in Kosovo
specifically. The last resolution in that annual series (General Assembly
resolution 54/183) was adopted on 17 December 1999. In it, the Assembly
gives major place to resolution 1244 and the role of the newly established
United Nations Mission in Kosovo (operative paragraphs 1, 2, 3 and 5). While
between 2000 and 2006 the Assembly adopted resolutions relating to the
"Maintenance of international security — good neighbourliness, stability and
development in South-Eastern Europe", its references to Kosovo were
essentially limited to resolution 1244 and the processes under it (e.g.,
General Assembly resolution 61/53). Since 1999, the only resolutions adopted
by the Assembly relating particularly to Kosovo have been those, adopted
under Article 17 (1) of the Charter, approving the budget of UNMIK for the
following year, and, of course, the resolution requesting the opinion in
this case, a request which, uniquely in the practice of the Assembly and the
Council, did not arise from a more general agenda item.
9. Two features of those budget resolutions are significant. The first is
that the sums approved year by year for the Mission until 2008 were between
US$200 and US$400 million, with between 5,000 and 10,000 personnel; but for
the years since they have been substantially reduced to about US$50 million,
with 500 personnel. That reduction reflects the major role exercised since
December 2008 by EULEX, with a budget of over US$300 million and over 2000
staff, with a target of 3000. The second feature of the resolutions is that
the Assembly's consideration of them does not involve it or its Fifth
Committee in any substantive consideration of the situation in Kosovo,
including political developments there; rather, the Secretary-General and
the ACABQ submit relevant reports and proposals to the Fifth Committee and
the resulting resolutions focus on the financing of the Mission, including
the obligations of States to pay their assessed contributions and those
which are outstanding. To the extent that the resolutions go beyond the
funding of the Mission, they are concerned with the financing of
peacekeeping operations elsewhere in the world and with the safety and
security of the members of the Mission (e.g., paras. 4-7 and 24 of General
Assembly resolution 63/295). The limited role of the Assembly in respect of
this budget matter is not unusual. For one thing, some parts of the budget
adopted by the General Assembly are included to meet existing financial
obligations of the United Nations, which cannot be denied, as the Court made
clear in its Opinion relating to the Effect of Awards of Compensation Made
by the United Nations Administrative Tribunal, Advisory Opinion, I.C.J.
Reports 1954, pp. 47 ff.).
10. The introduction of EULEX along with the related scaling down of the
role of UNMIK and the reduction of its budget were the subject of
discussions in the Security Council in November 2008 and in the Fifth
Committee and the General Assembly in June 2009. The first resulted in a
Presidential Statement which welcomed the intentions of Belgrade and
Pristina to co-operate with the international community (see para. 13
below). When on 3 June 2009 the much reduced UNMIK budget for the following
year was being considered in the Fifth Committee the Serbian representative
expressed concern and stated that the reduction contravened resolution 1244
as it went beyond what had been welcomed by the Security Council and was
unacceptably based on the unilateral declaration of independence, "thereby
contradicting the status-neutral position of UNMIK" (A/C.5/63/SR 51, para.
16). The Serbian proposal for the creation of three professional posts in
the Office of the Special Representative for co-ordination and co-operation
between UNMIK and EULEX was included in the budget, with the Serbian
representative in the plenary expressing his country's satisfaction at that
development "as part of the status-neutral framework of the Council's
resolution 1244 (1999)" (A/63/PV.93, p. 6).
11. Against that background of a very limited General Assembly involvement
with the situation in Kosovo since 1999, I turn to the sharply contrasting
role of the Security Council and UNMIK established under resolution 1244.
The Council, in that resolution, "acting for [the purposes set out in the
preamble] under Chapter VII of the Charter of the United Nations",
authorizes certain actions, makes a number of decisions and associated
requests, and makes certain demands. The Council authorizes both an
international security presence and an international civil presence. In
respect of the first, it authorizes Member States and relevant international
organizations to establish the international security presence in Kosovo
with all necessary means to fulfil its responsibilities which are set out in
some detail in a non-exhaustive list which includes in paragraph 9:
"(c) Establishing a secure environment in which refugees and displaced
persons can return home in safety, the international civil presence can
operate, a transitional administration can be established, and humanitarian
aid can be delivered;
(d) Ensuring public safety and order until the international civil presence
can take responsibility for this task;
(f) Supporting, as appropriate, and coordinating closely with the work of
the international civil presence".
In the second, the Council authorizes the Secretary-General,
"with the assistance of relevant international organizations, to establish
an international civil presence in Kosovo in order to provide an interim
administration for Kosovo under which the people of Kosovo can enjoy
substantial autonomy within the Federal Republic of Yugoslavia, and which
will provide transitional administration while establishing and overseeing
the development of provisional democratic self-governing institutions to
ensure conditions for a peaceful and normal life for all inhabitants of
Kosovo".
Among the main responsibilities of the international civil presence, stated
in paragraph 11, are:
"(a) Promoting the establishment, pending a final settlement, of substantial
autonomy and self-government in Kosovo . . .;
(b) Performing basic civilian administrative functions where and as long as
required;
(c) Organizing and overseeing the development of provisional institutions
for democratic and autonomous self-government pending a political
settlement, including the holding of elections;
(d) Transferring, as these institutions are established, its administrative
responsibilities while overseeing and supporting the consolidation of
Kosovo's local provisional institutions and other peace-building activities;
(i) Maintaining civil law and order, including establishing local police
forces and meanwhile through the deployment of international police
personnel to serve in Kosovo;
(j) Protecting and promoting human rights;
(k) Assuring the safe and unimpeded return of all refugees and displaced
persons to their homes in Kosovo".
Those two international presences (one civil, one security) were established
for an initial period of 12 months and were to continue thereafter unless
the Security Council should decide otherwise. The Council requested the
Secretary-General, in consultation with it, to appoint a Special
Representative to control the implementation of the international civil
presence and to ensure that both international presences operated towards
the same goals and in a mutually supportive manner.
12. While the Council "[r]eaffirm[ed] the commitment of all Member States to
the sovereignty and territorial integrity of the Federal Republic of
Yugoslavia", the effect of the resolution, as long as it remained in effect,
was to displace the administrative and related functions of the Federal
Republic of Yugoslavia which it would otherwise have exercised through its
institutions as the sovereign over the territory of Kosovo. The plenary
character of the authority of UNMIK and of the Special Representative over
the territory of Kosovo was manifested at the outset in the first UNMIK
regulation adopted by the Special Representative. Under it "[a]ll
legislative and executive authority with respect to Kosovo, including the
administration of the judiciary, is vested in UNMIK and is exercised by the
Special Representative".
13. Resolution 1244 requested the Secretary-General to report to the Council
at regular intervals on the implementation of the resolution including
reports from the leaderships of both presences. Those reports, submitted on
average every three months, are the subject of debate in which the members
of the Council and other participants address developments as they see them.
Because of the political divisions within the Council (which explain its
lack of comment on the Assembly request in this case) it has only once been
able, since it adopted the resolution, to formulate an agreed position
relating to the situation in Kosovo. It did that in the Presidential
Statement of 26 November 2008 (S/PRST/2008/44) in which it welcomed the
intentions of Belgrade and Pristina to co-operate with the international
community and continued as follows:
"The Security Council welcomes the cooperation between the UN and other
international actors, within the framework of Security Council Resolution
1244 (1999), and also welcomes the continuing efforts of the European Union
to advance the European perspective of the whole of the Western Balkans,
thereby making a decisive contribution to regional stability and
prosperity."
It follows, as indeed is generally accepted including by the authorities in
Kosovo, that the resolution continues to be in effect along with the
presences established under it.
14. What is to be concluded from the above account, in terms of the relative
and absolute interests of the General Assembly and the Security Council in
the matter submitted to the Court by the Assembly? Resolution 1244 adopted
by the Security Council, the Council's role under it and the role of its
subsidiary organ, UNMIK, are the very subject of the inquiry into the
conformity of the declaration of independence with the lex specialis in this
case — the resolution and the actions taken under it. The resolution,
adopted under Chapter VII of the Charter and having binding force,
established an interim international territorial administration with full
internal powers which superseded for the time being the authority of the
Federal Republic of Yugoslavia which remained sovereign. By contrast, the
Assembly's only dispositive role since June 1999 and the introduction of
that régime has been to approve the budget of the Mission.
15. I return to the case law of the Court and in particular to the critical
reason for its recognition that, as a principal organ of the United Nations,
it should in principle respond to requests for opinions. The Court regularly
couples that recognition with an indication of the interest which the
requesting organ has in seeking an opinion from the Court: Interpretation of
Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory
Opinion, I.C.J. Reports 1950, pp. 65, 70, 71, 72; Reservations to the
Convention on the Prevention and Punishment of the Crime of Genocide,
Advisory Opinion, I.C.J. Reports 1951, pp. 15, 19-20; Certain Expenses of
the United Nations (Article 17, paragraph 2, of the Charter), Advisory
Opinion, I.C.J. Reports 1962, pp. 151, 155, 156; Legal Consequences for
States of the Continued Presence of South Africa in Namibia (South West
Africa) notwithstanding Security Council Resolution 276 (1970), Advisory
Opinion, I.C.J. Reports 1971, p. 16, para. 32; Western Sahara, Advisory
Opinion, I.C.J. Reports 1975, p. 12, paras. 20 and 72; Legality of the
Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I),
p. 226, paras. 11, 12; and Legal Consequences of the Construction of a Wall
in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004
(I), p. 145, paras. 16-17 and pp. 162-163, para. 60. Further, in the case of
every one of the other requests made by the General Assembly or the Security
Council, their interest has been manifest and did not need to be expressly
stated in the request or discussed by participants in the proceedings or by
the Court. In the Wall Opinion, referring to several of the cases mentioned
above, the Court stated this proposition:
"As is clear from the Court's jurisprudence, advisory opinions have the
purpose of furnishing to the requesting organ the elements of law necessary
for them in their action." (Para. 60; emphasis added.)
While the Court has made it clear that it will not evaluate the motives of
the requesting organ (Conditions of Admission of a State to Membership in
the United Nations (Article 4 of the Charter), Advisory Opinion, 1948, I.C.J.
Reports 1947-1948, p. 61; and the Wall Opinion, para. 62), it does in
practice determine, if the issue arises, whether the requesting organ has or
claims to have a sufficient interest in the subject-matter of the request.
16. In the absence of such an interest, the purpose of furnishing to the
requesting organ the elements of law necessary for it in its action is not
present. Consequently, the reason for the Court to co-operate does not exist
and what is sometimes referred to as its duty to answer disappears.
17. In this case the Court, in my opinion, has no basis on which to reach
the conclusion that the General Assembly, which has not itself made such a
claim, has the necessary interest. Also very significant for me is the
almost exclusive role of the Security Council on this matter. Given the
centrality of that role for the substantive question asked (as appears from
Part IV B of the Court's Opinion) and the apparent lack of an Assembly
interest, I conclude that the Court should exercise its discretion and
refuse to answer the question put to it by the General Assembly.
18. I add that I do not see the Admissions, Certain Expenses, Namibia and
Wall Opinions, on which the Court relies in this context, as affecting this
conclusion. In all of those cases, both the General Assembly and the
Security Council had a real interest. In the one case in which a Security
Council resolution was expressly at the centre of the request, Namibia, it
was the Council that made the request. In the Admissions case in which the
General Assembly in its request had referred to the exchange of views which
had taken place in meetings of the Security Council the Court determined
that the abstract form in which the question was stated precluded the
interpretation that it should say whether the views referred to were well
founded or not (I.C.J. Reports 1947-1948, p. 61). While, in the Certain
Expenses case, the Court, in replying to a request from the General
Assembly, did consider a sequence of Security Council resolutions, one
building on the other, it did not face issues of interpretation of those
resolutions of the kind involved in this case (I.C.J. Reports 1962, pp.
175-177). Further, none of those cases involved anything comparable to the
régime of international territorial administration introduced by Security
Council resolution 1244.
19. As is indicated by my vote, I agree with the substantive ruling made by
the Court, essentially for the reasons it gives.
(Signed) Kenneth KEITH.
Separate opinion of Judge Sepúlveda-Amor
I. The Court's discretionary powers
1. I have voted in favour of the Court's decision to comply with the General
Assembly's request for an advisory opinion, persuaded as I am that "there
are no compelling reasons for it to decline to exercise its jurisdiction in
respect of the present request" (Advisory Opinion, paragraph 48).
2. Not only do I fully subscribe to the reasoning espoused by the majority
of the Members of the Court in upholding the propriety of rendering an
advisory opinion in the instant case; I am also of the opinion that the
Court, by virtue of its responsibilities in the maintenance of international
peace and security under the United Nations Charter, has a duty to exercise
its advisory function in respect of legal questions which, like the present
one, relate to Chapter VII situations.
3. In other words, the fact that in relation to the Kosovo question, the
Security Council, which remains actively seised of the matter, has acted
under Chapter VII of the United Nations Charter and determined, in
resolution 1244 (1999), that "the situation in the region continues to
constitute a threat to international peace and security", is, in and of
itself, a "compelling reason" for the Court to comply with the General
Assembly's request.
4. Notwithstanding the fundamentally discretionary nature of the Court's
advisory function under Article 65, paragraph 1, of its Statute, this Court
has never declined to respond to a request for an advisory opinion, provided
the conditions of jurisdiction have been met (Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory, Advisory
Opinion, I.C.J. Reports 2004 (I), p. 156, para. 44). To follow the same path
in the present case will enhance legal certainty and ensure predictability
and consistency in the Court's jurisprudence.
5. The Court has repeatedly acknowledged that the discharge of its advisory
function "represents its participation in the activities of the
Organization, and, in principle, should not be refused" (Interpretation of
Peace Treaties, Advisory Opinion, I.C.J. Reports 1950, p. 71; Difference
Relating to Immunity from Legal Process of a Special Rapporteur of the
Commission on Human Rights, Advisory Opinion, I.C.J. Reports 1999, pp.
78-79, para. 29; Legal Consequences of the Construction of a Wall in the
Occupied Palestinian Territory, Advisory Opinion, I.C.J Reports 2004 (I), p.
156, para. 44).
6. According to well-established jurisprudence, "only 'compelling reasons'
should lead the Court to refuse its opinion in response to a request falling
within its jurisdiction" (Judgments of the Administrative Tribunal of the
ILO upon Complaints Made against Unesco, Advisory Opinion, I.C.J. Reports
1956, p. 86; Legal Consequences of the Construction of a Wall in the
Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I),
p. 156, para. 44).
7. As indicated by the Court in paragraph 29 of its Advisory Opinion, "[t]he
discretion whether or not to respond to a request for an advisory opinion
exists so as to protect the integrity of the Court's judicial function".
8. In assessing the propriety of rendering an advisory opinion in any given
case, consideration must be given to the particular responsibilities
accorded to the Court within the architecture of the United Nations Charter.
In this regard, the proposition that the Court's judicial functions are
inextricably linked to the maintenance of international peace and security
is, in my view, indisputable. It could hardly be otherwise, if one considers
that the Court is the principal judicial organ of a world organization whose
very raison d'être was the preservation of peace amongst its members.
9. The Court acknowledged as much in its Order on provisional measures in
the case concerning the Legality of the Use of Force (Yugoslavia v.
Belgium). After expressing profound concern at the use of force in
Yugoslavia, the Court declared itself to be "mindful of the purposes and
principles of the United Nations Charter and of its own responsibilities in
the maintenance of [international] peace and security under the Charter and
the Statute of the Court' (Legality of Use of Force (Yugoslavia v. Belgium),
Provisional Measures, Order of 2 June 1999 (I), I.C.J. Reports 1999, p. 132,
para. 18; emphasis added).
10. The Court's role in the maintenance of international peace and security
through the exercise of its contentious and advisory jurisdiction, finds
support in the United Nations Charter, the Court's Statute and the
subsequent practice of the main United Nations organs, including the Court's
own jurisprudence.
11. Pursuant to Article 36, paragraph 1, of its Statute, the Court's
jurisdiction "comprises all . . . matters specially provided for in the
Charter of the United Nations . . .". Those matters surely include the
purposes and principles of the Organization, foremost amongst which is "[t]o
maintain international peace and security, and to that end: . . . to bring
about by peaceful means, and in conformity with the principles of justice
and international law, adjustment or settlement of international disputes or
situations which might lead to a breach of the peace" (Article 1, paragraph
1, of the United Nations Charter).
12. For its part, Article 36, paragraph 3, of the Charter provides that, in
making recommendations for the peaceful settlement of disputes under Chapter
VI, the Security Council "should also take into consideration that legal
disputes should as a general rule be referred by the parties to the
International Court of Justice in accordance with the provisions of the
Statute of the Court".
13. With regard to the Court's jurisprudence, it is important to note that
the Court "has never shied away from a case brought before it merely because
it had political implications" (Military and Paramilitary Activities in and
against Nicaragua (Nicaragua v. United States of America), Jurisdiction and
Admissibility, Judgment, I.C.J. Reports 1984, p. 435, para. 96) or declined
a request for an advisory opinion merely because of its allegedly adverse
political consequences.
14. In the Nuclear Weapons case, the Court explained that
"The fact that this question also has political aspects, as, in the nature
of things, is the case with so many questions which arise in international
life, does not suffice to deprive it of its character as a 'legal question'
and to 'deprive the Court of a competence expressly conferred on it by its
Statute'. . . . Whatever its political aspects, the Court cannot refuse to
admit the legal character of a question which invites it to discharge an
essentially judicial task, namely, an assessment of the legality of the
possible conduct of States with regard to the obligations imposed upon them
by international law." (Legality of the Threat or Use of Nuclear Weapons,
Advisory Opinion, I.C.J. Reports 1996 (I), p. 234, para. 13.)
As the Court stated in 1980, "in situations in which political
considerations are prominent it may be particularly necessary for an
international organization to obtain an advisory opinion from the Court as
to the legal principles applicable with respect to the matter under debate"
(Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt,
Advisory Opinion, I.C.J. Reports 1980, p. 87, para. 33).
15. The Security Council's primary responsibility for the maintenance of
international peace and security, pursuant to Article 24 of the United
Nations Charter, has not been an obstacle to the Court affirming the General
Assembly's as well as its own complementary responsibilities in this field,
within their respective spheres of competence.
16. Thus, the Court has consistently underscored that, whilst primary, the
Security Council's responsibilities under Article 24 of the Charter are by
no means exclusive (Certain Expenses of the United Nations (Article 17,
paragraph 2, of the Charter), Advisory Opinion, I.C.J. Reports 1962, p. 163;
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.
United States of America), Jurisdiction and Admissibility, Judgment, I.C.J.
Reports 1984, p. 434, para. 95; Legal Consequences of the Construction of a
Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports
2004 (I), pp. 148-149, paras. 26-27).
17. In Nicaragua (Jurisdiction and Admissibility), the Court advanced the
view that "the fact that a matter is before the Security Council should not
prevent it being dealt with by the Court and that both proceedings could be
pursued pari passu" (Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States of America), Jurisdiction and
Admissibility, Judgment, I.C.J. Reports 1984, p. 433, para. 93).
18. Prior to that, in the United States Diplomatic and Consular Staff in
Tehran case, the Court took the opportunity to emphasize the different
demarcation of competences operated by the United Nations Charter between,
on the one hand, the Security Council and the General Assembly, and, on the
other, the Security Council and the Court itself:
"Whereas Article 12 of the Charter expressly forbids the General Assembly to
make any recommendation with regard to a dispute or situation while the
Security Council is exercising its functions in respect of that dispute or
situation, no such restriction is placed on the functioning of the Court by
any provision of either the Charter or the Statute of the Court. The reasons
are clear. It is for the Court, the principal judicial organ of the United
Nations, to resolve any legal questions that may be in issue between parties
to a dispute; and the resolution of such legal questions by the Court may be
an important, and sometimes decisive, factor in promoting the peaceful
settlement of the dispute. This is indeed recognized by Article 36 of the
Charter . . ." (United States Diplomatic and Consular Staff in Tehran,
Judgment, I.C.J. Reports 1980, p. 22, para. 40.)
In view of the foregoing, the Court concluded in Nicaragua (Jurisdiction and
Admissibility) that
"The Charter accordingly does not confer exclusive responsibility upon the
Security Council for the purpose. While in Article 12 there is a provision
for a clear demarcation of functions between the General Assembly and the
Security Council, in respect of any dispute or situation, that the former
should not make any recommendation with regard to that dispute or situation
unless the Security Council so requires, there is no similar provision
anywhere in the Charter with respect to the Security Council and the Court.
The Council has functions of a political nature assigned to it, whereas the
Court exercises purely judicial functions. Both organs can therefore perform
their separate but complementary functions with respect to the same events."
(Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.
United States of America), Jurisdiction and Admissibility, Judgment, I.C.J.
Reports 1984, pp. 434-435, para. 95.)
19. In my view, although formulated in the context of contentious
proceedings, the rationale behind the Court's role in the maintenance of
international peace is equally relevant to the Court's advisory function.
This is underscored by Article 96 of the Charter, which must be interpreted
as implicitly acknowledging the Court's contribution to the work of the
United Nations' main political organs through the exercise of its advisory
jurisdiction in respect of any "legal questions".
20. In light of the above, one cannot presume that, due to the discretionary
nature of the Court's advisory function pursuant to Article 65 of the
Statute, the Court is in any way predisposed to decline requests for
advisory opinions whenever a legal question may have implications for the
maintenance of international peace and security.
21. The question that forms the object of the request submitted by the
General Assembly in the instant case is one that certainly has such
implications. Not only has the Security Council branded the situation in
Kosovo a threat to international peace and security (resolution 1203 (1998),
of 24 October 1998, and resolution 1244 (1999), of 10 June 1999), but, more
importantly, it has gone as far as to institute an unprecedented
international régime of civil administration under Chapter VII of the United
Nations Charter.
22. A Chapter VII situation requires a positive response from the principal
judicial organ of the United Nations as one not only entitled but, first and
foremost, required to participate in and contribute to the attainment of
peace. The Court fulfils its legal duties when requested to do so, by
providing assistance and guidance which may help in preventing an
aggravation of a conflict. On the Kosovo question, one important
contribution of the Court is to interpret Security Council resolution 1244,
including a determination that it remains in force and that only the
Security Council has the authority to determine that it is no longer in
effect.
II. Resolution 1244 (1999), the Constitutional Framework and the authors of
the declaration of independence
23. Whilst fully concurring with the Court's finding that, in relation to
the identity of the authors of the declaration of independence (hereinafter
the "DoI"), the Court is not bound by the terms of General Assembly
resolution 63/3 of 8 October 2008 and, therefore, that it is for the Court
to decide whether the DoI was promulgated by Kosovo's Provisional
Institutions of Self-Government or by some other entity (Advisory Opinion,
paragraph 54), I fail to agree with the reasoning followed by the Court to
the effect 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" (Advisory Opinion, paragraph 109).
24. In my view, the arguments advanced by the Court in support of its
conclusion are not persuasive, resting as they do upon intentions attributed
to the authors of the DoI, inferences drawn from the language of the DoI and
the procedural particularities that accompanied its adoption.
25. It may well be that the DoI presented a number of peculiarities that
differentiated it from other acts adopted by the Assembly of Kosovo as a
Provisional Institution of Self-Government acting within the Constitutional
Framework. However, the overriding issue is whether the DoI is in accordance
with Security Council resolution 1244 (1999), UNMIK regulations and Kosovo's
Constitutional Framework, which together constitute the paramount legal
order applicable to the situation in Kosovo at the time of the DoI.
26. The Court notes, in support of its argument, the declaration's failure
to expressly state that it was the work of the Assembly of Kosovo, and the
fact that the first paragraph of the DoI commences with the phrase 'We, the
democratically-elected leaders of our people . . .", in contrast to what
appeared to be the common practice of the Assembly of Kosovo, which used the
third person singular (as opposed to the first person plural) in the text of
adopted acts (Advisory Opinion, paragraph 107).
27. The procedure followed in the adoption of the DoI may also have differed
from the regular procedure generally followed by the Provisional
Institutions of Self-Government in that it was signed by the President of
Kosovo (who was not a member of the Assembly) and was not forwarded to the
Special Representative of the Secretary-General for publication in the
Official Gazette.
28. Whereas the aforementioned particularities are a matter of fact, it is
questionable whether, as a matter of law, these circumstances, either taken
together or viewed in isolation, logically and ineluctably lead to the
conclusion espoused in the present Advisory Opinion, namely, that the
authors of the DoI were persons other than the representatives of the people
of Kosovo acting in their capacity as members of the Assembly of Kosovo as
one of Kosovo's Provisional Institutions of Self-Government.
29. Thus, one wonders how the declaration's failure to expressly refer to
the Assembly of Kosovo as the organ of adoption could possibly alter the
fact that it was indeed the Assembly which adopted it, or how to explain
that the Assembly was made up of the same representatives, yet acting in a
different capacity. One also wonders how it is that the DoI "was not
intended by those who adopted it to take effect within the legal order
created for the interim phase" (Advisory Opinion, paragraph 105) and that
its authors "were not bound by the framework of powers and responsibilities
established to govern the conduct of the Provisional Institutions of
Self-Government" (Advisory Opinion, paragraph 121). It is clear that the
purpose of the authors of the DoI was to establish Kosovo "as an independent
and sovereign State". The question is whether the measure was in accordance
with the legal order in force in Kosovo in 2008.
30. Had the Assembly of Kosovo adopted a decision falling squarely within
its powers and attributions under the Constitutional Framework, the question
of authorship would not have arisen, irrespective of whether or not that
decision expressly stated that it had been adopted by the Assembly. Taking
all factors into account, it is difficult to conclude that the authors of
the DoI were "persons who acted together in their capacity as
representatives of the people of Kosovo outside the framework of the interim
administration" (Advisory Opinion, paragraph 109; emphasis added) and, as a
consequence, outside resolution 1244 and outside the Constitutional
Framework.
31. Similar considerations apply to the inferences drawn in the present
Advisory Opinion from the formulation contained in the first paragraph of
the DoI ("We, the democratically-elected leaders of our people . . ."). It
is difficult to see how the difference in conjugation (first person plural,
as opposed to the third person singular commonly used by the Assembly of
Kosovo) may reasonably lead to the conclusion that an organ or entity other
than the Assembly of Kosovo adopted the declaration of independence. After
all, were not the representatives of the Assembly "democratically-elected
leaders" of Kosovo?
32. According to what is, in my view, a more plausible reading of the
record, the Court should have concluded that, linguistic and procedural
peculiarities aside, the Assembly of Kosovo did indeed adopt the DoI of 17
February 2008 in the name of the people of Kosovo. As a result, the Court
should have proceeded to assess the legality of that declaration by
reference to Security Council resolution 1244 (1999) and the Constitutional
Framework.
III. Concluding remarks
33. The Court, in its Advisory Opinion, could have taken a broader
perspective in order to provide a more comprehensive response to the request
by the General Assembly. A number of important legal issues should not have
been ignored. As Spain indicated during the oral proceedings,
"the Court will not be able to respond appropriately to the question put by
the General Assembly without taking two elements into consideration: first,
the fact that the objective to be achieved through the Unilateral
Declaration of Independence is the creation of a new State separate from
Serbia; and, second, the fact that the Declaration was adopted to the
detriment of an international régime for Kosovo established by the Security
Council and governed by the norms and principles of international law, as
well as by the Charter of the United Nations" (CR 2009/30, p. 11, para. 17).
34. It is true that the Court, in the present request, is not being asked to
decide on the consequences produced by the DoI, but only to determine
whether it is in accordance with international law. However, the Court is
entitled to address a wider range of issues underlying the General
Assembly's request. The Court has faced similar dilemmas in the past and has
chosen to adopt a broader approach. In a previous Advisory Opinion, it
stated that
"if [the Court] is to remain faithful to the requirements of its judicial
character in the exercise of its advisory jurisdiction, it must ascertain
what are the legal questions really in issue in questions formulated in a
request" (Interpretation of the Agreement of 25March 1951 between the WHO
and Egypt, Advisory Opinion, I.C.J. Reports 1980, p. 88, para. 35; emphasis
added).
The Court then indicated that
"a reply to questions of the kind posed in the present request may, if
incomplete, be not only ineffectual but actually misleading as to the legal
rules applicable to the matter under consideration by the requesting
Organization" (ibid., p. 89, para. 35).
35. Many of the legal issues involved in the present case require the
guidance of the Court. The Security Council and the Secretary-General of the
United Nations, and not just the General Assembly, would indeed benefit from
authoritative statements of law in order to dispel many of the uncertainties
that still affect the Kosovo conflict. The scope of the right to
self-determination, the question of "remedial secession", the extent of the
powers of the Security Council in relation to the principle of territorial
integrity, the continuation or derogation of an international civil and
military administration established under Chapter VII of the Charter, the
relationship between UNMIK and the Provisional Institutions of
Self-Government and the progressive diminution of UNMIK's authority and
responsibilities and, finally, the effect of the recognition or
non-recognition of a State in the present case are all matters which should
have been considered by the Court, providing an opinion in the exercise of
its advisory functions.
(Signed) Bernardo Sepulveda-Amor.
Dissenting opinion of Judge Bennouna
1. Before turning to the reasons which have prevented me from concurring
with the Opinion of the Court, I should first like to consider the propriety
of the Court embarking on an exercise that is so hazardous for it, as the
principal judicial organ of the United Nations, by responding to the request
for an advisory opinion submitted to it by the General Assembly in
resolution 63/3 of 8 October 2008.
2. That resolution was adopted in circumstances that are without precedent
in the history of the United Nations. It is the first time that the General
Assembly has sought an advisory opinion on a question which was not, as
such, on its agenda and which it had until then dealt with essentially in
terms of authorizing the expenditure of the United Nations Mission in Kosovo
(UNMIK). It is recognized that, in substance, the whole of this question had
fallen under the exclusive jurisdiction of the Security Council for at least
ten years or so, in particular since the latter decided to place the
territory of Kosovo under international administration (resolution 1244 of
10 June 1999) – with the exception, however, of General Assembly resolution
54/183 on the Situation of Human Rights in Kosovo, of 17 December 1999
(Advisory Opinion, paragraph 38).
3. I believe that if it had declined to respond to this request, the Court
could have put a stop to any "frivolous" requests which political organs
might be tempted to submit to it in future, and indeed thereby protected the
integrity of its judicial function. What is at issue above all in this case
is protecting the Court itself against any attempts to exploit it in a
political debate, rather than protecting the balance between the principal
political organs of the United Nations (the General Assembly and Security
Council), a matter which the Court discusses at some length (Advisory
Opinion, paragraphs 37-48), or indeed the question of the self-determination
and independence of Kosovo, which has rightly been disregarded as lying
beyond the scope of the request for an opinion (Advisory Opinion, paragraph
83).
1. The propriety of the Court giving an advisory opinion
4. It should be recalled that, when the Court receives a request for an
advisory opinion, pursuant to Article 65 of its Statute, it is not obliged
to comply with the request if it considers that giving a reply to the
question posed would be "incompatible with the Court's judicial character"
(Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 25, para. 33).
5. It is true that the Court has recalled on several occasions in its
jurisprudence that it has discretion to consider the propriety of giving an
advisory opinion (since the case concerning Interpretation of Peace Treaties
with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, I.C.J.
Reports 1950), but it has hitherto never exercised that authority, to the
extent that scholarly opinion has begun to cast doubt on whether it actually
exists. The Court is reaching the point of making the propriety of giving
its opinion dependent on the requesting organ itself, thereby depriving
itself of its own discretionary power (Robert Kolb, "De la prétendue
discrétion de la Cour internationale de Justice de refuser de donner un avis
consultative", The international legal system in quest of equity and
universality). The Court has shown itself to be very reluctant to decline to
participate in United Nations action when asked to do so by one of the
organs of the United Nations. It has thus strictly circumscribed its
discretion, stipulating as a condition for exercising it the existence of
"compelling reasons" for not giving an opinion, yet without making clear
what it means by that.
6. However, the question of the compatibility of a request for an opinion
with the functions of the Court and its judicial character still stands,
even if no case of incompatibility has yet been recorded.
7. In the Kosovo case, the Court has been confronted with a situation that
has never occurred before, since it has ultimately been asked to set itself
up as a political decision-maker, in the place of the Security Council. In
other words, an attempt has been made, through this request for an advisory
opinion, to have it take on the functions of a political organ of the United
Nations, the Security Council, which the latter has not been able to carry
out.
8. The Court has been asked to give its opinion on whether the unilateral
declaration of independence (UDI) of 17 February 2008 by the Provisional
Institutions of Self-Government of Kosovo is in accordance with
international law; however, the reply to this question cannot be restricted
to an analysis of the declaration as a formal act – it is necessary for the
Court to consider its content and scope, as well as the circumstances in
which it was adopted. In this respect, the Court may not confine itself to
general reflections according to which it cannot substitute its own
assessment for that of the requesting organ or is unable to form a view as
to whether its opinion would be likely to have an adverse effect (Advisory
Opinion, paragraph 35).
9. As will be seen below, the declaration was adopted by the Provisional
Institutions of Self-Government of Kosovo established by resolution 1244 of
the Security Council. It follows the mission which the Secretary-General of
the United Nations, Mr. Kofi Annan, gave to his Special Envoy, Mr. Martti
Ahtisaari, in November 2005, which was to lead the political process aimed
at determining the future status of Kosovo, in the context of resolution
1244, by means of a negotiated settlement.
10. Mr. Martti Ahtisaari was thus called upon to act as a mediator between
Serbia and the representatives of the institutions of Kosovo (the Assembly)
so that they reach an agreement on the future status of the territory; such
an agreement would then have to be endorsed by the Security Council.
11. In his final report of 26 March 2007 on Kosovo's future status,
transmitted to the Security Council by Secretary-General Ban Ki-moon and
with his support, Mr. Ahtisaari took the view that "[independence is the
only option for a politically stable and economically viable Kosovo", and
proposed that such independence should be supervised and supported for an
initial period by international civilian and military presences. Mr.
Ahtisaari concluded by urging the Security Council to endorse his proposal
(Report transmitted to the President of the Security Council by letter from
the Secretary-General, 26 March 2007, S/2007/168).
12. In the end, it was the Assembly of Kosovo that did so, thereby
substituting itself for the Security Council. Serbia then asked the Court,
through the General Assembly of the United Nations, to pronounce on the
declaration of independence of 17 February 2008, whereby that substitution
occurred, in order to establish whether it is in accordance with
international law. It is therefore clear that, by giving the advisory
opinion which has been requested of it, the Court is assessing, albeit
indirectly, the validity of the conclusions of the Ahtisaari report, a role
which belongs solely to the Security Council, a political organ on which the
United Nations Charter confers primary responsibility for the maintenance of
international peace and security. That organ, by adopting resolution 1244 on
the basis of Chapter VII of the Charter, established an interim
administration in Kosovo and has initiated, after some ten years, a process
for bringing it to an end, at the same time determining the final status of
the territory.
13. How, in these circumstances, can the Court pronounce on the accordance
with international law of Kosovo's declaration of independence, when such an
assessment is a matter for the Security Council alone and that organ has not
sought its opinion on the question?
14. That is why the Court, in this case, should have exercised its
discretionary power and declined to give its opinion on a question which is
incompatible with its status as a judicial organ. Beyond the question of the
accordance with international law of the declaration of independence, what
is at issue here is the exercise of the powers of a political organ of the
United Nations, the Security Council. As for the Ahtisaari report, as long
as the Security Council makes no finding in this respect, it commits only
its author.
15. It is essential for the Court to ensure, in performing its advisory
function, that it is not exploited in favour of one specifically political
strategy or another, and, in this case in particular, not enlisted either in
the campaign to gather as many recognitions as possible of Kosovo's
independence by other States, or in the one to keep these to a minimum;
whereas the Security Council, which is primarily responsible for pronouncing
on the option of independence, has not done so.
16. I am aware of the fact that the Court has a duty to contribute to United
Nations action in legal terms, but here, the decision on the future status
of Kosovo is not a matter for the General Assembly, which has submitted the
request for an opinion to the Court, but for the Security Council. In this
case, the Court cannot pronounce on the legality of the declaration of
independence without interfering in the political process of maintaining
peace established by the Security Council some ten years ago, which that
organ has been unable to bring to a conclusion.
17. A response from the Court would have been conceivable if the substantive
debate on Kosovo had moved from the Security Council to the General
Assembly, for example through the convening of an emergency special session
of the General Assembly under the terms of resolution 377 (V) A, entitled
"Uniting for peace", as was the case with the request for an advisory
opinion by the General Assembly concerning the Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory (Advisory
Opinion, I.C.J. Reports 2004 (I), pp. 145-146, paras. 18-19). In that case,
however, the General Assembly had been continuously involved in the debate
on the issue of the Middle East and the Palestinian question since the
partition plan of 1947, and these were included year after year on its
agenda. In contrast, the Kosovo case has been solely the responsibility of
the Security Council since the armed intervention by NATO forces in Serbia
in 1999.
18. Consequently, while Serbia initiated the inclusion on the General
Assembly's agenda of a request for an advisory opinion of the Court, that
was not in order to allow the Court to pronounce on certain legal aspects of
the debate which the General Assembly had started on the Kosovo case, but
because it saw in this the only opportunity still available to it to
challenge the unilateral declaration of independence of 17 February 2008.
What is involved here is not the "motives of individual States which sponsor
. . . a resolution requesting an advisory opinion", which "are not relevant
to the Court's exercise of its discretion" (Advisory Opinion, paragraph 33),
but rather an assessment of the situation in Kosovo and of the handling of
it, by the United Nations, at the point when the General Assembly adopted
the request for an opinion on 8 October 2008.
19. Moreover, there was no real debate on the question of the status of
Kosovo when the General Assembly adopted resolution 63/3 requesting an
advisory opinion of the Court (General Assembly, Sixty-third session,
A/63/PV.22, 8 October 2008).
20. It may be questioned, therefore, whether the request for an advisory
opinion adopted by the General Assembly (by 77 votes to six, with 74
abstentions) is compatible with the Court's functions as a judicial organ,
as defined by the Charter of the United Nations and by the Statute of the
Court.
21. Furthermore, whatever the Court's response to the question put by the
General Assembly, it will not in any way assist that political organ, which
cannot, in the light of the opinion, either modify Security Council
resolution 1244 or interpret it accordingly, since that task falls to the
organ which adopted it. It is not enough to say that only the Assembly can
appreciate the reasons which have led it to request an advisory opinion
(Advisory Opinion, paragraph 34), since that would mean the Court abandoning
outright the exercise of its discretion as to the propriety of giving such
an opinion. All the protagonists in the Kosovo case have stated in advance,
in particular before the Court, that the opinion, whatever it may be, will
have no impact on their position in relation to the declaration of
independence. Therefore, the advisory opinion can only be used as an
argument in the political debate taking place between the supporters of
recognizing Kosovo's independence and those who are against it.
22. By becoming enlisted in this way, the Court has everything to lose in
this political contest, without contributing in any real way either to
reducing the tensions caused by the unilateral declaration of independence
or to clarifying the functions and responsibility of the United Nations in
respect of a territory placed under its administration.
23. In addition, since the declaration of independence of 17 February 2008,
the fait accompli of the creation of Kosovo as an independent entity has
been reflected on the ground, with the increasing de facto marginalization
of the United Nations presence and its administration. Such a situation
makes the propriety of responding to the question posed by the General
Assembly yet more dubious and problematic, while the United Nations has
given the impression of adapting to the new state of affairs (though how
could it do otherwise?).
12. The Court itself has to make sure the integrity of its judicial function
is respected, in contentious as well as in advisory matters, as it made very
clear in its Judgment of 2 December 1963 in the case concerning Northern
Cameroons (Cameroon v. United Kingdom), Preliminary Objections:
"both the Permanent Court of International Justice and this Court have
emphasized the fact that the Court's authority to give advisory opinions
must be exercised as a judicial function. Both Courts have had occasion to
make pronouncements concerning requests for advisory opinions, which are
equally applicable to the proper role of the Court in disposing of contested
cases; in both situations, the Court is exercising a judicial function. That
function is circumscribed by inherent limitations which are none the less
imperative because they may be difficult to catalogue, and may not
frequently present themselves as a conclusive bar to adjudication in a
concrete case. Nevertheless, it is always a matter for the determination of
the Court whether its judicial functions are involved. This Court, like the
Permanent Court of International Justice, has always been guided by the
principle which the latter stated in the case concerning the Status of
Eastern Carelia on 23 July 1923:
'The Court, being a Court of Justice, cannot, even in giving advisory
opinions, depart from the essential rules guiding their activity as a
Court.' (P.C.I.J., Series B, No. 5, p. 29.)" (Northern Cameroons (Cameroon
v. United Kingdom), Preliminary Objections, Judgment, I.C.J. Reports 1963,
p. 30.)
24. While the Court cannot substitute itself for the Security Council in
exercising its responsibilities, nor can it stand legal guarantor for a
policy of fait accompli based simply on who can gain the upper hand. Its
duty is to preserve its role, which is to state the law, clearly and
independently. That is how it will safeguard its credibility in performing
its functions, for the benefit of the international community.
12. Those are the reasons which led me to vote against the Court's decision
to give an advisory opinion in this case. Having said that, the Court's
response to the request of the General Assembly did not strike me as
convincing, and I shall now explain why.
2. The scope and meaning of the question posed
25. This second aspect of the opinion is of course linked with the first.
Whereas the Court declines to consider either the motivation of the General
Assembly or the aims it was pursuing by means of its request for an opinion,
it has nonetheless deemed itself authorized to modify the wording of the
request, to the point of completely altering its meaning and scope.
28. The Court relies on the fact that neither the agenda item under which
resolution 63/3 was debated, nor the title of the resolution specified the
identity of the authors of the unilateral declaration of independence, and
that the question of their identity was not raised during the debate on the
draft resolution. The Court then concludes that it is "free to . . . decide
for itself whether that declaration was promulgated by the Provisional
Institutions of Self-Government or some other entity" (Advisory Opinion,
paragraph 54).
29. However, the General Assembly's question could not be more clear, and
there is nothing in the debate which preceded the adoption of resolution
63/3 of 8 October 2008 to suggest that the General Assembly's only concern
was the accordance with international law of the declaration of
independence, regardless of who the authors were. Does the fact that the
participants in the debate on the draft resolution (A/63/PV.22) did not
raise the question of the identity of the authors of the declaration imply
that it is not a relevant consideration for the requesting organ, or is it
rather precisely because the question is such an obvious one for all the
United Nations Member States that they consequently did not consider it
necessary to discuss or contest it? As for the difference noted by the Court
between the title of the agenda item, the title of the resolution, and the
question submitted to the Court, it is hard to see any significance in this
since what matters for the Court is the content of the question put by the
General Assembly.
30. This question therefore does not need to be interpreted in any way. And
the Court acknowledges this: "the question posed by the General Assembly is
clearly formulated. The question is narrow and specific." (Advisory Opinion,
paragraph 51.) The General Assembly did not request the Court to give its
opinion on just any declaration of independence, but on the one adopted on
17 February 2008 by the Provisional Institutions of Self-Government of
Kosovo, which were established with specific competences by the United
Nations. On 2 October 2008, however, before the adoption of resolution 63/3,
the representative of the United Kingdom addressed a note of issues to the
President of the General Assembly in which he indicated that:
"It would be useful to know whether Serbia is seeking to focus on a narrower
question about the competence of the Provisional Institutions of
Self-Government of Kosovo, and, if so, precisely how that question relates
to Kosovo's status at the present time." (A/63/461 of 2 October 2008.)
31. The answer to that question has been given by Serbia and by the General
Assembly. It is indeed a matter of assessing an act adopted by the
Provisional Institutions of Self-Government of Kosovo, and not just any act
emanating from a hundred or so persons who supposedly declared themselves to
be representing the people.
32. At that point in time, the only institution recognized by the United
Nations as representing the people of Kosovo was the elected Assembly of the
Provisional Institutions of Self-Government. Even supposing that the Court
comes to the conclusion that the declaration of independence was not adopted
by the Assembly of the Provisional Institutions of Self-Government of
Kosovo, acting as such, contrary to the assertion of the General Assembly of
the United Nations, should it not then exercise its discretionary power and
decline to respond to a question that would no longer have any content or
scope? Ultimately, the General Assembly does not expect the Court to provide
its legal opinion on a question which it has not put to it, i.e., a
declaration issued by a hundred or so persons, unconnected with the United
Nations.
33. The Court has in the past extended the question posed in order to reply
to it as fully as possible (Interpretation of the Agreement of 25 March 1951
between the WHO and Egypt, Advisory Opinion, I.C.J. Reports 1980, pp. 88-89,
para. 35). It took the same approach in the Advisory Opinion on Certain
Expenses of the United Nations (Article 17, paragraph 2, of the Charter) (I.C.J.
Reports 1962, pp. 156-157), in which it set out to "examine Article 17 in
itself and in its relation to the rest of the Charter"; likewise, the Court
was obliged to clarify the question posed when this appeared to be
"infelicitously expressed and vague" (Application for Review of Judgement
No. 273 of the United Nations Administrative Tribunal, Advisory Opinion,
I.C.J. Reports 1982, p. 348, para. 46). In these instances, however, the
Court remained within the bounds of its judicial functions in taking account
of all the applicable law or interpreting a confused or imprecise text.
34. Never, though, 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, as indicated by the United Kingdom representative
in his above-mentioned note of 2 October 2008 to the President of the
General Assembly.
35. If the Court were able to employ discretion to such an extent, by
replying in the end to a question which it has itself adjusted beforehand in
order to make it fit a certain mould, then it would seriously prejudice the
sense of judicial security that ought to prevail among the States and organs
of the United Nations applying to the Court.
3. Accordance with international law of the unilateral declaration of
independence
36. The General Assembly made a point of characterizing the declaration of
independence as unilateral to make it clear that it issued from only one of
the Parties (the Assembly of the Provisional Institutions of Self-Government
of Kosovo) involved in the political process, based on Security Council
resolution 1244 of 10 June 1999, for the determination of Kosovo's final
status.
37. The Court was requested by the General Assembly to give its opinion on
the accordance of the declaration with international law. In rendering its
opinion, the Court should first of all have ascertained the international
law applicable in this area.
38. But, while the Court does describe the legal régime established by the
Security Council through resolution 1244 and regulations adopted by the
Secretary-General's Special Representative and UNMIK (Advisory Opinion,
paragraphs 58-63), it fails first to identify the applicable rules of
general international law and to explain how it will go about determining
whether the unilateral declaration is in accordance with these two sets of
standards. Ordinarily, the Court should first look into the applicable lex
specialis (that is to say the law of the United Nations) before considering
whether the declaration is in accordance with general international law. As
observed by the Chairman of the International Law Commission's Study Group
on the Fragmentation of International Law: "[P]reference was often given to
a special standard because it not only best reflects the requirements of the
context, but because it best reflected the intent of those who were to be
bound by it." (Report of the International Law Commission, 2004, A/59/10, p.
286.)
39. The Court has chosen instead to examine "the lawfulness of declarations
of independence under general international law" (Advisory Opinion,
paragraph 78). The General Assembly did not however ask the Court to opine
in the abstract on declarations of independence generally but rather on a
specific declaration adopted in a particular context – that of a territory
which the Council has placed under United Nations administration – and this
at a time when Security Council resolution 1244 was in force, and it still
is. It would moreover make no sense to assess the accordance with
international law of a declaration of independence without regard to who the
author(s) are or to the background against which it was adopted. Likewise,
the Court's conclusion in this respect is itself meaningless:
"the Court considers that general international law contains no applicable
prohibition of declarations of independence. Accordingly, it concludes that
the declaration of independence of 17 February 2008 did not violate general
international law."
(Advisory Opinion, paragraph 84.)
40. This is at best a sophism, in other words reasoning that is logical in
appearance alone, because it proceeds from the proposition that what is
valid for the whole is valid for the part. Since the principles of general
international law, i.e., territorial integrity and self-determination, call
here for analysis in the context of a territory under United Nations
administration, the Court could not announce its conclusion before examining
the law governing the territory as it relates to the declaration of
independence.
41. It is only in a second stage that the Court reaches the conclusion that:
"Security Council resolution 1244 (1999) and the Constitutional Framework
form part of the international law which is to be considered in replying to
the question posed by the General Assembly in its request for the advisory
opinion" (Advisory Opinion, paragraph 93).
42. While resolution 1244 was indeed concerned with setting up an interim
framework of self-government for Kosovo, as the Court notes, I do not see
anything to justify the assertion the Court then makes: "at the time of the
adoption of the resolution, it was expected that the final status of Kosovo
would flow from, and be developed within, the framework set up by the
resolution" (Advisory Opinion, paragraph 104).
43. It was simply a matter of UNMIK facilitating a political process
designed to determine Kosovo's future status, taking into account the
Rambouillet accords. That political process is what the Special Envoy, Mr.
Ahtisaari, was asked by the Security Council to lead through negotiations
between Serbia and the elected representatives of Kosovo (the Assembly); as
the two Parties were unable to reach agreement, Mr. Ahtisaari proposed a
settlement plan to the Council, but the Council never approved it.
44. The facts that the authors of the Declaration, members of the Assembly
of the Provisional Institutions of Self-Government of Kosovo, cited the
breakdown of negotiations and that they did not intend to act within the
framework of the interim régime of self-government (Advisory Opinion,
paragraph 105) do not by themselves change the legal nature of an act
adopted by the Assembly of the Provisional Institutions of Self-Government
of Kosovo. 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.
45. Similarly, it is not because the Assembly trespassed on the powers of
the Special Representative (Advisory Opinion, paragraph 106) by involving
itself in matters of Kosovo's external relations that it must be considered
as acting in a different capacity or as an entity no longer related to the
Provisional Institutions of Self-Government of Kosovo. Here as well, the
Assembly simply committed an act which is illegal under international law.
46. The Court's reasoning, aimed at dispelling any inkling of the
declaration's illegality under the law of the United Nations, consisted of
severing it from the institution (the Assembly) that was created within this
framework: "the authors of the declaration of independence of 17 February
2008 did not act as one of the Provisional Institutions of Self-Government .
. . but rather as persons who acted together in their capacity as
representatives of the people of Kosovo outside the framework of the interim
administration" (Advisory Opinion, paragraph 109). To reach this conclusion,
the Court relies upon the language used and the procedure employed (Advisory
Opinion, paragraph 107). Thus it was enough for the authors of the
declaration to change the appearance of the text, and to hold themselves out
as "the democratically-elected leaders of [the] people" in order for them to
cease to be bound by the Constitutional Framework for Kosovo, which states
that "[t]he Provisional Institutions of Self-Government and their officials
shall . . . [e]xercise their authorities consistent with the provisions of
UNSCR 1244 (1999) and the terms set forth in this Constitutional Framework".
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.
47. With a view to shedding light on this aspect of the question, during the
oral proceedings I asked participants generally, and the authors of the
declaration of independence specifically (CR 2009/33, p. 24), whether the
question of adopting such a declaration had been raised in any form during
the campaign for election to the Assembly of the Provisional Institutions in
November 2007. A response in the negative was received both from the authors
of the declaration of independence and from Serbia (replies by the authors
of the declaration of independence and by the Republic of Serbia, dated 22
December 2009). If the members of the Assembly, who had been elected on 17
November 2007, had wished to express the "will of [their] people" in a
declaration made on 17 February 2008, they should at least have told their
electors so.
48. It is very significant that when he reported to the Security Council at
the meeting held on 18 February 2008 (S/PV.5839), the day after the adoption
of the declaration of independence of Kosovo dated 17 February 2008, the
Secretary-General of the United Nations did so as follows: "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."
49. On the other hand, in his report of 28 March 2008 to the Security
Council on the United Nations Interim Administration Mission in Kosovo
(S/2008/211) the Secretary-General added, after noting that the electoral
process in Kosovo had concluded on 19 December 2007 and that the members of
the Assembly of Kosovo had taken their oath on 4 January 2008: "On 17
February, the Assembly of Kosovo held a session during which it adopted a
'declaration of independence', declaring Kosovo an independent and sovereign
State". I would infer that the Secretary-General as well as his special
representative were also relying on the address by the Prime Minister of
Kosovo on 17 February 2008, when he spoke before the extraordinary meeting
of the Assembly of Kosovo:
"Today, the President of Kosovo and myself, as the Prime Minister of Kosovo,
have officially requested from the President of the Assembly, Mr. Krasniqi;
to call for a special session with two agenda items,
This invitation for a special session is extended in accordance with the
Kosovo Constitutional framework, whereby we present two items on the agenda:
1. Declaration of independence for Kosovo, and
2. Presentation of Kosovo State symbols." (Written Contribution of the
authors of the Unilateral Declaration of Independence, 17 April 2009, Ann.
2.)
50. Thus, there was no doubt in the minds of the Secretary-General and his
Special Representative in Kosovo that the declaration was in fact the work
of the recently elected Assembly of the Provisional Institutions of
Self-Government of Kosovo.
51. Of course, the serious problem the declaration raised in respect of the
United Nations Mission and the mandate it had been given by the Security
Council did not escape the Secretary-General:
"I immediately drew this development to the attention of the Security
Council, so that it could consider the matter. In doing so, I reaffirmed
that, pending guidance from the Security Council, the United Nations would
continue to operate on the understanding that resolution 1244 (1999) remains
in force and constitutes the legal framework for the mandate of UNMIK, and
that UNMIK would continue to implement its mandate in the light of the
evolving circumstances." (Report of the Secretary-General on the United
Nations Interim Administration Mission in Kosovo, S/2008/211 of 28 March
2008.)
52. It must also be kept in mind that when, in its resolution on 7 November
2002, the Assembly of Kosovo had previously asserted the right to determine
Kosovo's future status, the Special Representative of the United Nations
Secretary-General stated on the same day:
"Kosovo is under the authority of UN Security Council Resolution 1244
(1999). Neither Belgrade nor Pristina can prejudge the future status of
Kosovo. Its future status is open and will be decided by the UN Security
Council. Any unilateral statement in whatever form which is not endorsed by
the Security Council has no legal effect on the future status of Kosovo."
53. Accordingly, no unilateral declaration affecting Kosovo's future status,
whatever the form of the declaration or the intentions of its authors, has
any legal validity until it has been endorsed by the Security Council.
Contrary to what the Court implies, it is not enough for the authors simply
to step beyond the bounds of the law to cease being subject to it.
54. The Court believes the inaction of the Security Council, the
Secretary-General and his Special Representative, in response to the
declaration of independence, to be confirmation that the declaration was not
the work of the Assembly of Kosovo, and it contrasts this inertia with the
actions taken between 2002 and 2005, when "the Special Representative had
qualified a number of acts as being incompatible with the Constitutional
Framework on the ground that they were deemed to be 'beyond the scope of
[the Assembly's] competencies' (United Nations dossier No. 189, 7 February
2003) and therefore outside the powers of the Assembly of Kosovo" (Advisory
Opinion, paragraph 108).
55. However, the Security Council was prevented, by a lack of agreement
among its permanent members, from taking a decision on the Kosovo question
after receiving the Ahtisaari report in March 2007. And, as is often the
case within the United Nations, this deadlock in the Council had a
reverberating effect on the Secretary-General, charged with implementing its
decisions, and his Special Representative.
56. A stalemate in the Security Council does not release either the parties
to a dispute from their obligations or by consequence the members of the
Assembly of Kosovo from their duty to respect the Constitutional Framework
and resolution 1244. Were that the case, the credibility of the collective
security system established by the United Nations Charter would be
undermined. This would, in fact, leave the parties to a dispute to face off
against each other, with each being free to implement its own position
unilaterally. And in theory 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.
57. In my view, stalemate within the Security Council at a particular point
cannot justify unilateral acts performed, or faits accomplis created, by
either Party, or be deemed tacit approval of them. A failure by the Council
to take a decision on account of the veto power of one of its permanent
members is contemplated in the Charter. Its legal effect ends there;
inaction is itself a political act.
58. On the other hand, although unable to reach a decision on the Ahtisaari
report, referred to it in March 2007, the Council nevertheless encouraged
attempts at mediation between the Parties, in particular when it decided to
send a mission, made up of members of the Council and led by Johan C.
Verbeke, representative of Belgium, to Belgrade and Pristina, in April 2007
(S/2007/220 of 20 April 2007), and when it supported the attempts by the
troika (made up of the European Union, United States and Russia) created by
the Contact Group to reconcile the two Parties (from July to December 2007).
59. This being the case, I cannot endorse the Court's interpretation of the
"silence" of the Special Representative of the Secretary-General, which
supposedly confirms that the declaration of independence was not the work of
the Assembly of the Provisional Institutions of Self-Government of Kosovo.
60. We know just how delicate it can be to interpret an actor's "silence" in
international law. In all events, silence must be interpreted by reference
to the entirety of the direct context and its background. Here, the deadlock
in the United Nations bodies during the process to determine Kosovo's future
status does not justify the conclusion that a unilateral declaration of
independence hitherto not in accordance with international law is suddenly
deserving of an imprimatur of compliance. In fact, the reason why the
Special Representative of the Secretary-General took no action was not that
he considered the declaration to be in accordance with international law,
but simply that the political body to which he was answerable was unable to
reach a decision on advancing in the process under way to determine the
future status of Kosovo.
61. The Court then reflects on resolution 1244 and arrives at the conclusion
that the resolution does not contain a prohibition binding on the authors of
the declaration of independence (Advisory Opinion, paragraph 118). And for
good reason, since the Provisional Institutions had yet to be created and
the authors in question could not yet be identified. In reality, the issue
at this juncture is not establishing whether resolution 1244 was aimed at
prohibiting action by the authors of the declaration of independence, but
simply recalling the mandatory force of this text, which is binding on the
institutions to be created "to provide an interim administration . . . under
which the people of Kosovo can enjoy substantial autonomy within the Federal
Republic of Yugoslavia" (paragraph 10 of resolution 1244 (1999) of the
Security Council).
62. UNMIK thus adopted the Constitutional Framework and set up the interim
administration on the basis of the mandate it had received from the Security
Council in resolution 1244. A violation of the Constitutional Framework
therefore entails a simultaneous violation of the Security Council
resolution, which is binding on all States and non-State actors in Kosovo as
a result of the territory having been placed under United Nations
administration. This being the case, it is difficult to see how the Court
could find 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" (Advisory Opinion, paragraph 119).
In my view, it does establish such a bar, on at least two counts: because
the declaration is not within the Constitutional Framework established
pursuant to the mandate given to UNMIK in the resolution; and because the
declaration is unilateral, whereas Kosovo's final status must be approved by
the Security Council.
63. Finally, even if it is assumed that the declaration of 17 February 2008
was issued by a hundred or so individuals having proclaimed themselves
representatives of the people of Kosovo, how is it possible for them to have
been able to violate the legal order established by UNMIK under the
Constitutional Framework, which all inhabitants of Kosovo are supposed to
respect?
64. The Court responds merely by asserting that, when adopting the
declaration of independence, the authors were not bound by the
Constitutional framework and that the declaration was not an act intended to
take effect within the legal order put in place by the United Nations
(Advisory Opinion, paragraph 121). But then what legal order governed the
authors and the declaration itself? It was not, in any case, the legal order
of Serbia nor that of a new sovereign State. And not being part of the
interim institutions does not exempt the authors from the legal order
established by UNMIK regulation 1999/1, providing that "[a]ll legislative
and executive authority with respect to Kosovo, including the administration
of the judiciary, is vested in UNMIK and is exercised by the Special
Representative of the Secretary-General". This simply means that all those
living in Kosovo are subject to such authority and must comply with the
régime of self-government established by the United Nations. Hence, in my
opinion, it does not matter whether or not the authors of the declaration of
independence are considered to be members of the Assembly of Kosovo; under
no circumstances were they entitled to adopt a declaration that contravenes
the Constitutional Framework and Security Council resolution 1244 by running
counter to the legal régime for the administration of Kosovo established by
the United Nations.
65. That said, the Court has minimized the purport and scope of its Opinion,
since it has limited it to the declaration as such, severed from its legal
effects. It may therefore be asked: how can this Opinion, wherein it is
concluded that a declaration adopted by some one hundred individuals,
self-proclaimed representatives of the people, does not violate
international law, guide the requesting organ, the General Assembly, in
respect of its own action?
66. This remains a complete mystery, even if the Opinion will be exploited
for political ends.
67. Expressing my personal view, I would be tempted to say that the result
is that the Court's assistance to the General Assembly has emerged
trivialized, and this is yet another reason why the Court should have
exercised its discretion by refraining from acceding to the request for an
opinion.
68. Finally, the Court in this case has not identified the rules, general or
special, of international law governing the declaration of independence of
17 February 2008; according to the Opinion, general international law is
inoperative in this area and United Nations law does not cover the situation
the Court has chosen to consider: that of a declaration arising in an
indeterminate legal order. Accordingly, there is apparently nothing in the
law to prevent the United Nations from pursuing its efforts at mediation in
respect of Kosovo in co-operation with the regional organizations concerned.
69. Such declarations are no more than foam on the tide of time; they cannot
allow the past to be forgotten nor a future to be built on fragments of the
present.
(Signed) Mohamed BENNOUNA.
Dissenting opinion of Judge
Skotnikov
1. The Court, in my view, should have used its discretion to refrain from
exercising its advisory jurisdiction in the rather peculiar circumstances of
the present case. Never before has the Court been confronted with a question
posed by one organ of the United Nations, to which an answer is entirely
dependent on the interpretation of a decision taken by another United
Nations organ. What makes this case even more anomalous is the fact that the
latter is the Security Council, acting under Chapter VII of the United
Nations Charter. Indeed, in order to give an answer to the General Assembly,
the Court has to make a determination as to whether or not the Unilateral
Declaration of Independence (UDI) is in breach of the régime established for
Kosovo by the Security Council in its resolution 1244 (1999).
2. In the past, the Court has deemed it important to emphasize that it was
giving its legal advice in respect of decisions adopted by the requesting
organ, in order that the latter could benefit from this advice. In the
Namibia Advisory Opinion the Court pointed out that:
"The request is put forward by a United Nations organ [the Security Council]
with reference to its own decisions and it seeks legal advice from the Court
on the consequences and implications of these decisions. This objective is
stressed by the preamble to the resolution requesting the opinion, in which
the Security Council has stated 'that an advisory opinion from the
International Court of Justice would be useful for the Security Council in
its further consideration of the question of Namibia and in furtherance of
the objectives the Council is seeking'." (Legal Consequences for States of
the Continued Presence of South Africa in Namibia (South West Africa)
notwithstanding Security Council Resolution 276 (1970), Advisory Opinion,
I.C.J. Reports 1971, p. 24, para. 32; emphasis added.)
Clearly, the present case is starkly different.
3. In its Advisory Opinion on Legal Consequences of the Construction of a
Wall, the Court reaffirmed that "advisory opinions have the purpose of
furnishing to the requesting organs the elements of law necessary for them
in their action" (Legal Consequences of the Construction of a Wall in the
Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I),
p. 162, para. 60). In the present case, the General Assembly is not an organ
which can usefully benefit from "the elements of law" to be furnished by the
Court. The Assembly, when it receives the present Advisory Opinion, will be
precluded, by virtue of Article 12 of the United Nations Charter, from
making any recommendation with regard to the subject-matter of the present
request, unless the Security Council so requests.
4. The Security Council itself has refrained from making a determination as
to whether the UDI is in accordance with its resolution 1244, although it
could have done so by adopting a new resolution or by authorizing a
statement from the President of the Council. Nor has the Council sought
advice from the Court as to whether the issuance of the UDI was compatible
with the terms of its resolution 1244. That is the position currently taken
by the Council on the issue, which is the subject-matter of the General
Assembly's request for an Advisory Opinion from the Court.
5. The Members of the United Nations have conferred distinct
responsibilities upon the General Assembly, the Security Council and the
International Court of Justice and have put limits on the competence of each
of these principal organs. The Court — both as a principal organ of the
United Nations and as a judicial body — must exercise great care in order
not to disturb the balance between these three principal organs, as has been
established by the Charter and the Statute. By not adequately addressing the
issue of the propriety of giving an answer to the present request, the Court
has failed in this duty.
6. The majority, in an attempt to justify its position, refers to "an
increasing tendency over time for the General Assembly and the Security
Council to deal in parallel with the same matter concerning the maintenance
of international peace and security" (Advisory Opinion, paragraph 41), a
tendency which was noted by the Court in its Advisory Opinion on Legal
Consequences of the Construction of a Wall. However, the present case simply
does not form part of this tendency. It is true that the General Assembly
has also adopted resolutions relating to the situation in Kosovo (Advisory
Opinion, paragraph 38). However, as is evident from the Advisory Opinion,
none of these resolutions is relevant either to the régime established by
resolution 1244 or to an answer to the question posed by the General
Assembly. The truth is that everything hinges on the interpretation of
Security Council resolution 1244.
The majority also cites the Namibia Advisory Opinion, as well as the
Advisory Opinion on Certain Expenses of the United Nations and Conditions of
Admission of a State to Membership in the United Nations (see paragraphs 46
and 47 of the Advisory Opinion). None of these cases, however, is remotely
similar to the present one. In the Namibia case, the requesting organ was
the Security Council (see para. 2 above). In the Certain Expenses Opinion,
the Court merely quotes from a number of Security Council resolutions, in
order to note the clear existence of "a record of reiterated consideration,
confirmation, approval and ratification by the Security Council and by the
General Assembly of the actions of the Secretary-General" (Certain Expenses
of the United Nations (Article 17, paragraph 2, of the Charter), Advisory
Opinion, I.C.J. Reports 1962, p. 176). In the Conditions of Admission
Opinion, the Court does not deal with any Security Council resolutions. In
both the Certain Expenses and Conditions of Admission cases, the Court's
task was to interpret the United Nations Charter and in both cases the
General Assembly, the requesting organ, could have made use of "the elements
of law" furnished by the Court. The majority, in addition, refers to the
contentious cases of Questions of Interpretation and Application of the 1971
Montreal Convention arising from the Aerial Incident at Lockerbie. However,
in these cases, the Court does not interpret any Security Council
resolutions. It only states that Libya, the United States and the United
Kingdom, as Members of the United Nations, are obliged to accept and carry
out the decisions of the Security Council in accordance with Article 25 of
the United Nations Charter (see Questions of Interpretation and Application
of the 1971 Montreal Convention arising from the Aerial Incident at
Lockerbie (Libyan Arab Jamahiriya v. United States of America), Provisional
Measures, Order of 14April 1992, I.C.J. Reports 1992, p. 126, para. 42; and
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, I.C.J.
Reports 1992, p. 15, para. 39).
The majority's inability to find jurisprudence of any relevance is quite
understandable since the present case, as explained in paragraph 1, is
unprecedented.
7. The Court's failure to exercise its discretion to refrain from giving an
answer to the question posed by the General Assembly unfortunately entails
serious negative implications for the integrity of the Court's judicial
function and its role as a principal organ of the United Nations.
8. In particular, any interpretation of Security Council resolution 1244
which the Court might have given, would have been less than authoritative
under the circumstances of the present case.
Indeed, one may recall a dictum by the Permanent Court of International
Justice to the effect that "it is an established principle that the right to
giving an authoritative interpretation of a legal rule belongs solely to the
person or body who has power to modify or suppress it" (Jaworzina, Advisory
Opinion, 1923, P.C.I.J., Series B, No. 8, p. 37). This, of course, leads to
the conclusion that:
"Only the Security Council, or some body authorized to do so by the Council,
may give an authentic interpretation [of a Security Council resolution] in
the true sense." (Michael C. Wood, "The interpretation of Security Council
Resolutions",
Max Planck Yearbook of United Nations Law, Vol. 2, 1998, p. 82.)
It is equally obvious that:
"The I.C.J. and other international tribunals (including those on Yugoslavia
and Rwanda) may have to interpret SCRs [Security Council resolutions] for
the purpose of giving effect to what the Council has decided." (Ibid., p.
85.)
In the present case, however, the Court is not interpreting resolution 1244
for the purpose of giving effect to what the Council has decided. The
Council has not decided anything on the subject of the UDI. The Council has
not even acknowledged the issuance of the UDI. The terms of resolution 1244
have remained unaltered since the UDI was adopted (see paragraphs 91 and 92
of the Advisory Opinion).
9. It must be borne in mind that Security Council resolutions are political
decisions. Therefore, determining the accordance of a certain development,
such as the issuance of the UDI in the present case, with a Security Council
resolution is largely political. This means that even if a determination
made by the Court were correct in the purely legal sense (which it is not in
the present case), it may still not be the right determination from the
political perspective of the Security Council. When the Court makes a
determination as to the compatibility of the UDI with resolution 1244 — a
determination central to the régime established for Kosovo by the Security
Council — without a request from the Council, it substitutes itself for the
Security Council.
10. In some ways, the situation faced by the Court in the present case is
similar to that which confronted it in respect of the Federal Republic of
Yugoslavia's (FRY) membership in the United Nations, prior to its admission
in 2000. The Court, when considering, in 1993 and 1996, the Bosnia and
Herzegovina v. Yugoslavia case in incidental proceedings, refrained from
interpreting the relevant resolutions of the General Assembly and the
Security Council in order to make a determination as to whether or not the
FRY was a Member of the United Nations and ipso facto party to the Statute
of the Court. It confined itself to the observation that the solution
adopted in the United Nations on the question of the continuation of the
membership of the Socialist Federal Republic of Yugoslavia (SFRY) was "not
free from legal difficulties" (Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina
v. Yugoslavia), Provisional Measures, Order of 8 April 1993, I.C.J. Reports
1993, p. 14, para. 18). The Court did not address this question in its 1996
Judgment on the preliminary objections (Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina
v. Yugoslavia), Preliminary Objections, Judgment, I.C.J. Reports 1996 (II)).
The Court was clearly not authorized to make a determination on the issue of
the membership of the FRY in the United Nations and it did not do so,
although this was a question of jus standi. Only after the Security Council
and the General Assembly brought clarity to the situation by admitting the
FRY to the United Nations as a new Member did the Court, in the Legality of
Use of Force cases in 2004, come to the conclusion that the FRY was not a
Member of the United Nations or party to the Statute prior to its admission
to the United Nations in 2000. The Court observed that
"the significance of this new development in 2000 is that it has clarified
the thus far amorphous legal situation concerning the status of the Federal
Republic of Yugoslavia vis-à-vis the United Nations. It is in that sense
that the situation that the Court now faces in relation to Serbia and
Montenegro is manifestly different from that which it faced in 1999. If, at
that time, the Court had had to determine definitively the status of the
Applicant vis-à-vis the United Nations, its task of giving such a
determination would have been complicated by the legal situation, which was
shrouded in uncertainties relating to that status. However, from the vantage
point from which the Court now looks at the legal situation, and in light of
the legal consequences of the new development since 1 November 2000, the
Court is led to the conclusion that Serbia and Montenegro was not a Member
of the United Nations, and in that capacity a State party to the Statute of
the International Court of Justice, at the time of filing its Application to
institute the present proceedings before the Court on 29 April 1999."
(Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary
Objections, Judgment, I.C.J. Reports 2004 (I), pp. 310-311, para. 79.)
11. Had the Court made this determination in 1993, 1996 or 1999, when it
considered the request for the indication of provisional measures in the
Legality of Use of Force cases, it would have both jeopardized the integrity
of its judicial function and compromised its role as a principal organ of
the United Nations.
This is precisely what is at stake in the present case. Therefore, the
Court's decision to answer the question is as erroneous as it is
regrettable.
12. Now, however reluctantly, I will have to address the majority's attempt
to interpret Security Council resolution 1244 with respect to the UDI.
Unfortunately, in the process of doing so, the majority has drawn some
conclusions, which simply cannot be right.
13. One of these is finding that resolution 1244, which had the overarching
goal of bringing about "a political solution to the Kosovo crisis"
(resolution 1244, operative paragraph 1), did not establish binding
obligations for the Kosovo Albanian leadership (see Advisory Opinion,
paragraphs 117 and 118). The Security Council cannot be accused of such an
omission, which would have rendered the entire process initiated by
resolution 1244 unworkable. The Permanent Representative of the United
Kingdom stated the obvious at the time of the adoption of resolution 1244:
"This resolution applies also in full to the Kosovo Albanians, requiring
them to play their full part in the restoration of normal life to Kosovo and
in the creation of democratic, self-governing institutions. The Kosovo
Albanian people and its leadership must rise to the challenge of peace by
accepting the obligations of the resolution, in particular to demilitarize
the Kosovo Liberation Army (KLA) and other armed groups." (Statement by the
Permanent Representative of the United Kingdom; United Nations doc.
S/PV.4011, 10 June 1999, p. 18; emphasis added.)
14. No less striking is the Court's finding to the effect that "a political
process designed to determine Kosovo's future status, taking into account
the Rambouillet accords" envisaged in resolution 1244 (resolution 1244,
operative paragraph 11 (e)), can be terminated by a unilateral action by the
Kosovo Albanian leadership (see Advisory Opinion, paragraphs 117 and 118).
In other words, the Security Council, in the view of the majority, has
created a giant loophole in the régime it established under resolution 1244
by allowing for a unilateral "political settlement" of the final status
issue. Such an approach, had it indeed been taken by the Council, would have
rendered any negotiation on the final status meaningless. Obviously, that
was not what the Security Council intended when adopting and implementing
resolution 1244. It is useful to recall that operative paragraph 11 (e) of
resolution 1244 refers to the Rambouillet accords which provide that:
"Three years after the entry into force of this Agreement, an international
meeting shall be convened to determine a mechanism for a final settlement
for Kosovo, on the basis of the will of the people, opinions of relevant
authorities, each Party's [Belgrade and Prishtina] efforts regarding the
implementation of this Agreement, and the Helsinki Final Act . . ." (United
Nations doc. S/1999/648, 7 June 1999, p. 85.)
By no stretch of imagination can a "unilateral settlement" be read into this
clear policy statement endorsed by the Security Council in its resolution
1244.
The subsequent practice of the Security Council in respect of resolution
1244 is equally clear. When the process for determining Kosovo's final
status was initiated in 2005, the Members of the Security Council attached
to the letter from its President to the Secretary-General, "for [his]
reference", the Guiding principles for a Settlement of the Status of Kosovo
agreed by the Contact Group (composed of France, Germany, Italy, Russia, the
United Kingdom and the United States). The Guiding Principles stated in no
ambiguous terms that "[a]ny solution that is unilateral or results from the
use of force would be unacceptable " and that "[t]he final decision of the
status of Kosovo should be endorsed by the Security Council" (Guiding
Principles, annexed to the letter dated 10 November 2005 from the President
of the Security Council addressed to the Secretary-General, United Nations
doc. S/2005/709; emphasis added).
15. Finally, the authors of the UDI are being allowed by the majority to
circumvent the Constitutional Framework created pursuant to resolution 1244,
simply on the basis of a claim that they acted outside this Framework:
"the Court considers that 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 [established for the interim phase] but, rather,
set out to adopt a measure [the UDI] the significance and effects of which
would lie outside that order" (Advisory Opinion, paragraph 105).
The majority, unfortunately, does not explain the difference between acting
outside the legal order and violating it.
16. The majority's version of resolution 1244 is untenable. Moreover, the
Court's treatment of a Security Council decision adopted under Chapter VII
of the United Nations Charter shows that it has failed "its own
responsibilities in the maintenance of [international] peace and security
under the Charter and the Statute of the Court" (Legality of Use of Force
(Yugoslavia v. Belgium), Provisional Measures, Order of 2 June 1999, I.C.J.
Reports 1999 (I), p. 132, para. 18).
17. There is also a problem with the Court's interpretation of general
international law. According to the Advisory Opinion, "general international
law contains no applicable prohibition of declarations of independence"
(paragraph 84). This is a misleading statement which, unfortunately, may
have an inflammatory effect. General international law simply does not
address the issuance of declarations of independence, because
"declarations of independence do not 'create' or constitute States under
international law. It is not the issuance of such declarations that
satisfies the factual requirements, under international law, for statehood
or recognition. Under international law, such declarations do not constitute
the legal basis for statehood or recognition." (CR 2009/31, p. 46 (Fife,
Norway).)
Declarations of independence may become relevant in terms of general
international law only when considered together with the underlying claim
for statehood and independence. However, the question posed by the General
Assembly "is narrow and specific" (Advisory Opinion, paragraph 51). "In
particular, it does not ask whether or not Kosovo has achieved statehood."
(Ibid.) Therefore, the question as to the legality of the UDI simply cannot
be answered from the point of view of general international law. The only
law applicable for the purpose of answering the question posed by the
General Assembly is the lex specialis created by Security Council resolution
1244.
18. In conclusion, it should be said that the purport and scope of the
Advisory Opinion is as narrow and specific as the question it answers. The
Opinion does not deal with the legal consequences of the UDI. It does not
pronounce on the final status of Kosovo. The Court makes it clear that it
"does not consider that it is necessary to address such issues as whether or
not the declaration has led to the creation of a State or the status of the
acts of recognition in order to answer the question put by the General
Assembly" (Advisory Opinion, paragraph 51).
The Court also notes that
"[d]ebates regarding the extent of the right of self-determination and the
existence of any right of 'remedial secession' . . . concern the right to
separate from a State . . . and that issue is beyond the scope of the
question posed by the General Assembly" (Advisory Opinion, paragraph 83).
In no way does the Advisory Opinion question the fact that resolution 1244
remains in force in its entirety (see paragraphs 91 and 92 of the Advisory
Opinion). This means that "a political process designed to determine
Kosovo's future status" envisaged in this resolution (para. 11 (e)) has not
run its course and that a final status settlement is yet to be endorsed by
the Security Council.
(Signed) Leonid SKOTNIKOV.
Separate opinion of Judge Cançado
Trindade
s
I. Prolegomena
1. My vote is in favour of the adoption of the present Advisory Opinion of
the International Court of Justice (ICJ) on Accordance with International
Law of Kosovo's Declaration of Independence, for having concurred with the
conclusions the Court has reached, set forth in the dispositif As I have
arrived at the same conclusions on the basis of a reasoning distinct from
that of the Court, I feel obliged to lay on the records the foundations of
my own personal position on the matter at issue. To that end, I begin by
addressing the preliminary questions of jurisdiction and judicial propriety,
with attention turned to the preponderant humanitarian aspects of the
question put to the Court, and to its duty to exercise its advisory
function, without attributing to so-called judicial "discretion" a dimension
which it does not have. Next, I draw attention to the need to proceed to a
most careful examination of the factual background and context of the
question put to the Court by the U.N. General Assembly.
2. My following line of reflections is directed to the advent of
international organizations and the recurring and growing attention
dispensed to the needs and aspirations of the "people" or the "population"
(in the mandates system under the League of Nations, in the trusteeship
system under the United Nations, and in contemporary U.N. experiments of
international territorial administration). My next set of considerations (in
parts V and VI of the present Separate Opinion) propounds an essentially
humanist outlook of the treatment of peoples under the law of nations, from
a historical as well as a deontological perspectives. I then proceed to an
examination (in part VII) - eluded by the Court in the present Advisory
Opinion — of the grave concern expressed by the United Nations as a whole
with the humanitarian tragedy in Kosovo.
3. After recalling the principle ex injuria jus non oritur, I move on to an
examination (in part IX) of the important aspect of the conditions of living
of the population in Kosovo (as from 1989), on the basis of the submissions
adduced by participants in the present advisory proceedings before the
Court, in their written and oral phases. I also recall the judicial
recognition, and further evidence, of the atrocities perpetrated in Kosovo
(in the decade 1989-1999), and ascribe a central position to the sufferings
of the people, pursuant to the people-centered outlook in contemporary
international law. I then turn to the consideration of territorial integrity
in the framework of the humane ends of the State, to the overcoming of the
inter-State paradigm in contemporary international law, to the overriding
importance of the fundamental principles of humanity, and of equality and
non-discrimination, and to a comprehensive conception of the incidence of
jus cogens. The way will then be paved for the presentation of my final
considerations.
II. Considerations on Preliminary Questions of Jurisdiction and Judicial
Propriety
1. The Court's Jurisdiction, with Attention on the Preponderant Humanitarian
Aspects
4. First of all, the Court's jurisdiction to deliver the present Advisory
Opinion is, in my view, established beyond any doubt, on the basis of
Article 65(1) of its Statute, whereby 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". Such conditions have been acknowledged in the case-law
of the Court[FN1]. It is for the ICJ, as master of its own jurisdiction, to
satisfy itself that the request for an Advisory Opinion comes from an organ
endowed with competence to make it; in the case of the General Assembly, it
is so authorized by Article 96(1) of the U.N. Charter, to request an
Advisory Opinion of the ICJ on "any legal question". In its case-law, the
Court has at times given indications as to the relationship between the
object of the requests at issue and the activities of the General
Assembly[FN2].
---------------------------------------------------------------------------------------------------------------
[FN1] Cf., e.g., ICJ, Advisory Opinion on the Application for Review of
Judgement n. 273 of the U.N. Administrative Tribunal, 1982, para. 21.
[FN2] ICJ, Advisory Opinion on Interpretation of Peace Treaties with
Bulgaria, Hungary and Romania (1950) p. 70; ICJ, Advisory Opinion on the
Threat or Use of Nuclear Weapons, 1996, paras. 11-12; ICJ, Advisory Opinion,
on Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, 2004, paras. 16 and 25.
---------------------------------------------------------------------------------------------------------------
5. Article 10 of the U.N. Charter confers upon the General Assembly
competence to deal with "any questions or any matters" within the scope of
the Charter, and Article 11(2) specifically endows it with competence
discuss "questions relating to the maintenance of international peace and
security brought before it". The question put to the Court by General
Assembly resolution 63/3, adopted on 08 October 2008, pertains to the scope
of activities of the General Assembly, which, like the Security Council, has
been dealing with the situation in Kosovo for over a decade (cf.
infra)[FN3]. The main point that may be raised here pertains to Article
12(1) of the U.N. Charter, which states that "[w]hile the Security Council
is exercising in respect of any dispute or situation the functions assigned
to it in the present Charter, the General Assembly shall not make any
recommendation with regard to that dispute or situation unless the Security
Council so requests".
---------------------------------------------------------------------------------------------------------------
[FN3] In respect of the situation in Kosovo, in addition to the main course
of action taken up by the Security Council, the role of the General Assembly
includes taking decisions - with the advice of its Vth Committee - on the
budget of UNMIK. And the responsibilities of the Secretary-General include
the support of the mandate of UNMIK.
---------------------------------------------------------------------------------------------------------------
6. In any case, a request for an Advisory Opinion is not in itself a
"recommendation" by the General Assembly with regard to a "dispute or
situation". Under Article 24 of the Charter, the Security Council has
"primary responsibility for the maintenance of international peace and
security"[FN4]. Yet, Article 24 refers to a primary, but not necessarily
exclusive, competence. The General Assembly does have the power, inter alia,
under Article 14 of the U.N. Charter, to "recommend measures for the
peaceful adjustment" of various situations. The ICJ itself has lately
pointed out[FN5], as to the interpretation of Article 12 of the U.N.
Charter, that in recent years there has been an "increasing tendency" for
the General Assembly and the Security Council to deal "in parallel" with the
same matter concerning the maintenance of international peace and security:
while the Security Council has tended to focus on the aspects of such
matters related to international peace and security, the General Assembly
has taken a broader view, considering also their humanitarian, social and
economic aspects.
----------------------------------------------------------------------------------------------------------------
[FN4] It can thus, in that regard, impose on States an "explicit obligation
of compliance" if, for example, it issues "an order or command" under
Chapter VII, and it can, to that end, "require enforcement by coercive
action"; cf. ICJ, Advisory Opinion on Certain Expenses of the United
Nations, 1962, p. 163.
[FN5] Cf. ICJ, Advisory Opinion on Legal Consequences of the Construction of
a Wall in the Palestinian Occupied Territories, 2004, paras. 27-28.
----------------------------------------------------------------------------------------------------------------
7. The General Assembly has developed the practice of making recommendations
on issues which the Security Council has also been dealing with; U.N. member
States have not objected to such practice[FN6], nor has the Security Council
opposed it. This has been the "accepted practice" of the General Assembly,
as it has lately evolved, being consistent with Article 12(1) of the U.N.
Charter. By adopting, on 08 October 2008, resolution 63/3, seeking an
Advisory Opinion from the ICJ relating to the declaration of independence by
the authorities of Kosovo, the General Assembly has not acted ultra vires in
respect of Article 12(1) of the U.N. Charter: it was fully entitled to do
so, in the faithful exercise of its functions[FN7] under the U.N. Charter.
-----------------------------------------------------------------------------------------------------------------
[FN6] Cf. United Nations Juridical Yearbook (1964), pp. 228 and 237.
[FN7] On this particular point, the ICJ has already indicated that questions
"framed in terms of law" and raising "problems of international law" are "by
their very nature susceptible of a reply based on law" and appear to be
"questions of a legal charactef'; ICJ, Advisory Opinion on Western Sahara,
1975, para. 15; ICJ, Advisory Opinion on the Threat or Use of Nuclear
Weapons, 1996, para. 11.
-----------------------------------------------------------------------------------------------------------------
8. The remaining aspect concerning the Court's jurisdiction is whether the
General Assembly's request relates to a "legal question" within the meaning
of the U.N. Charter and the ICJ Statute. On this particular point, the ICJ
has already indicated that questions "framed in terms of law" and raising
"problems of international law" are "by their very nature susceptible of a
reply based on law" and appear to be "questions of a legal character"[FN8].
It is immaterial if the legal question put to the Court, for the exercise of
its advisory function, discloses also political aspects. It could hardly be
doubted that the question submitted by the General Assembly to the ICJ for
an Advisory Opinion is a legal one, relating as it is to the accordance with
international law of the declaration of independence by the authorities of
Kosovo. In its jurisprudence constante, the ICJ has clarified that a legal
question may also reveal political aspects, "as, in the nature of things, is
the case with so many questions which arise in international life"; this
"does not suffice to deprive it of its character as a 'legal question' and
'to deprive the Court of a competence expressly conferred on it by its
Statute'"[FN9].
-----------------------------------------------------------------------------------------------------------------
[FN8] ICJ, Advisory Opinion on Western Sahara, 1975, para. 15; ICJ, Advisory
Opinion on the Threat or Use of Nuclear Weapons, 1996, para. 11.
[FN9] ICJ, Advisory Opinion on Application for Review of Judgement n. 158 of
the U.N. Administrative Tribunal, 1973, para. 14; ICJ, Advisory Opinion on
Threat or Use of Nuclear Weapons, 1996, para. 13.
-----------------------------------------------------------------------------------------------------------------
9. The ICJ has made it clear that it cannot attribute a political character
to a request for an Advisory Opinion which invites it to undertake an
"essentially judicial task"[FN10] concerning the scope of obligations
imposed by international law[FN11], namely, an assessment of "the legality
of the possible conduct of States" in respect of obligations imposed upon
them by international law[FN12]. Since the earlier years of the ICJ, it has
been clarified that the old distinction between so-called "legal" and
"political" questions does not stand, as there are no questions which, by
their "intrinsic nature", may be termed as essentially "legal" or
"political"; such qualifications pertain rather to the means of resolution
of the questions at issue[FN13], whether "legal" (judicial), or otherwise.
It is thus somewhat surprising to see this point being persistently raised
before the ICJ along the years without consistency.
-----------------------------------------------------------------------------------------------------------------
[FN10] ICJ, Advisory Opinion on Certain Expenses of the United Nations,
1962, p. 155.
[FN11] Cf. ICJ, Advisory Opinion on Legal Consequences of the Construction
of a Wall in the Occupied Palestinian Territory, 2004, para. 41.
[FN12] Cf. ICJ, Advisory Opinion on Conditions of Admission of a State to
Membership in the United Nations, 1948, pp. 61-62; ICJ, Advisory Opinion on
Competence of the General Assembly for the Admission of a State to the
United Nations, 1950, pp. 6-7; ICJ, Advisory Opinion on Certain Expenses of
the United Nations, 1962, p. 155. And cf. also ICJ, Advisory Opinion on
Threat or Use of Nuclear Weapons, 1996, para. 13; ICJ, Advisory Opinion on
the Interpretation of the Agreement of 25 March 1951 between the WHO and
Egypt, 1980, para. 33.
[FN13] Cf. M. Vaucher, Le problème de la justiciabilité et de la non-justiciabilité
en droit international des différends dits "politiques" ou "non-juridiques"
et les notions de compétence exclusive et de compétence nationale, Paris,
Pédone, 1951, pp. 3-243.
-----------------------------------------------------------------------------------------------------------------
10. In the light of the aforementioned, it can be concluded that the present
request by the General Assembly, by means of its resolution 63/3 of
08.10.2008, for an Advisory Opinion by the ICJ, fulfils the requirements of
Article 96(1) of the U.N. Charter and of Article 65 of the Statute of the
Court, in respect of both the competence of the requesting organ (the
General Assembly) and of the substance of the request, and discloses the
nature of a legal question. This suffices to determine the issue of the
Court's jurisdiction. Furthermore, there is no element raised in the course
of the present advisory proceedings that could lead the Court to conclude
otherwise.
11. Accordingly, I concur with the Court's view that it has jurisdiction to
deliver the requested Advisory Opinion. This latter should be attentive to
the broader view of the consideration of issues pursued by the General
Assembly (cf. supra), focusing on the preponderant humanitarian aspects
surrounding the conformity or otherwise with international law of the
declaration of independence at issue. This requires a careful consideration
by the Court of the factual complex of the request lodged with it (cf.
infra), so as to avoid an aseptic reasoning in the Advisory Opinion.
12. This is an aspect in respect of which my reasoning differs from that of
the Court. The consideration of the factual complex is of considerable
importance, as declarations of independence are not proclaimed in a social
vacuum, and require addressing at least its immediate causes. This is a
point of far greater importance than the usual arguments concerning
so-called judicial "discretion", dealt at length by the Court in the present
Advisory Opinion. This argument has been repeatedly raised before this
Court, in its practice as to the exercise of its advisory jurisdiction. This
point deserved no more than a brief review of the Court's jurisprudence
constante on it, so as to concentrate attention on other points that are of
far greater relevance, such as the factual background of the question but to
the Court by the General Assembly.
2. Alleged Judicial "Discretion" and the Court's Duty to Exercise its
Advisory Function
13. The second line of considerations at this preliminary stage, pertaining
to judicial "discretion" (rather than propriety), has been brought to the
fore by certain arguments adduced by some participants, in the course of the
present proceedings. Such arguments tried to persuade the Court that it
should nevertheless decline, in the exercise of its discretionary power, to
render the Advisory Opinion requested by the General Assembly, either
because the request concerns "matters essentially within the domestic
jurisdiction of a State" (under Article 2(7) of the U.N. Charter); or
because the procedure was allegedly being used primarily to further the
interests of individual States rather than that of the requesting organ; or
because the Court's Advisory Opinion would lack any useful purpose; or
because the Court's Opinion would arguably have adverse effects on peace and
security in the region; or because that there is no consent of Kosovo to the
jurisdiction of the Court; or else because it would be allegedly politically
inappropriate for the Court to deliver the Advisory Opinion. I find all
these arguments wholly unconvincing.
14. To start with, the ICJ itself observed, in an Advisory Opinion delivered
six decades ago, that Article 65 of its Statute gives it "the power to
examine whether the circumstances of the case are of such a character as
should lead it to decline to answer the request"[FN14]; it further warned
that "the reply of the Court, itself an 'organ of the United Nations',
represents its participation in the activities of the Organization, and, in
principle, should not be refused"[FN15]. In accordance with its own
jurisprudence constante, only "compelling reasons" could lead the ICJ to
such refusal[FN16].
-----------------------------------------------------------------------------------------------------------------
[FN14] ICJ, Advisory Opinion on the Interpretation of Peace Treaties with
Bulgaria, Hungary and Romania, 1950, p. 72.
[FN15] Ibid., p. 71.
[FN16] ICJ, Advisory Opinion on Judgments of the Administrative Tribunal of
the ILO upon Complaints Made against UNESCO, 1956, p. 86; ICJ, Advisory
Opinion on Certain Expenses of the United Nations, 1962, p. 155; 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), 1971, p. 27; ICJ, Advisory Opinion on the Application
for Review of Judgment n. 158 of the U.N. Administrative Tribunal, 1973, p.
183; ICJ, Advisory Opinion on Western Sahara, 1975, p. 21; ICJ, Advisory
Opinion on the Applicability of Article VI, Section 22, of the Convention on
the Privileges and Immunities of the United Nations, 1989, p. 191; ICJ,
Advisory Opinion on Threat or Use of Nuclear Weapons, 1996, p. 235.
-----------------------------------------------------------------------------------------------------------------
15. As to the argument of domestic jurisdiction (supra), already in the case
of the Nationality Decrees in Tunis and Morocco (1923), the former Permanent
Court of International Justice (PCIJ) pondered that "[t]he question whether
a certain matter is or is not solely within the jurisdiction of a State is
an essentially relative question; it depends on the development of
international relations" (pp. 23-24). Ever since, in their constant
practice, in the line of this obiter dictum of the PCIJ, both the U.N. main
organs and U.N. member States have themselves acknowledged the gradual
erosion of the plea of domestic jurisdiction under the U.N. Charter.
16. This has also been reckoned in international legal writing on this
particular point. Thus, it was pondered, 35 years ago, that the fact that a
State raising an objection on the ground of domestic jurisdiction could not
impede the inclusion of the matter into the agenda of the international
organ seized of it and its discussion at international level, afforded
evidence for the view that the reserved domain of States was already
undergoing a continuing process of reduction. Domestic jurisdiction in this
context becomes a residuum of discretionary authority left by international
law within the reserved domain of States[FN17]. Two decades later, it was
reasserted that Article 2(7) of the U.N. Charter was inapplicable in so far
as the principle of self-determination was concerned, linked to the
consideration of human rights issues, thus removed from the domain of
domestic jurisdiction[FN18].
-----------------------------------------------------------------------------------------------------------------
[FN17] A.A. Cançado Trindade, "The Domestic Jurisdiction of States in the
Practice of the United Nations and Regional Organisations", 25 International
and Comparative Law Quarterly (1976) pp. 713-765.
[FN18] A. Cassese, Self-Determination of Peoples - A Legal Reappraisal,
Cambridge, University Press, 1995, pp. 174 et seq.
-----------------------------------------------------------------------------------------------------------------
17. In fact, the ICJ itself has stated that "[t]he purpose of the Court's
advisory opinion is not to settle - at least directly - disputes between
States, but to offer legal advice to the organs and institutions requesting
the opinion"[FN19]. The U.N. practice with regard to Kosovo's humanitarian
crisis illustrates the widespread agreement that the powers of the main U.N.
organs (in particular the Security Council and the General Assembly) to
initiate and undertake measures in order to secure the maintenance of
international peace and security, are rather broad, - and cannot be
restrained by pleas of domestic jurisdiction of individual States. This
being so, the ICJ, as "the principal judicial organ of the United Nations"
(Article 92 of the U.N. Charter), cannot accept the plea of domestic
jurisdiction as a reason to decline to exercise its advisory function, and
this applies to the present request for an Advisory Opinion on Accordance
with International Law of Kosovo's Declaration ofIndependence.
-----------------------------------------------------------------------------------------------------------------
[FN19] ICJ, Advisory Opinion on the Threat or Use of Nuclear Weapons, 1996,
para. 15; ICJ, Advisory Opinion on the Interpretation of Peace Treaties with
Bulgaria, Hungary and Romania, First Phase, 1950, p. 71.
-----------------------------------------------------------------------------------------------------------------
18. Another argument has been raised, by some participants in the present
advisory proceedings, whereby the advisory procedure is allegedly being used
primarily to further the
interests of individual States rather than the concerns of the General
Assembly as the requesting U.N. organ. A handful of participants further
argued that, given the close voting in the adoption of resolution 63/3 of
the General Assembly, the ICJ would have to be extremely careful in
delivering the Advisory Opinion, if at all; in their view, extreme restraint
was required from the ICJ. In my perception, these arguments beg the
question.
19. All these considerations were to have been born in mind in the course of
the discussion of the draft resolution of the General Assembly[FN20], when
all U.N. member States had an opportunity to express their views in support
or against the adoption of such draft resolution. The proposal for inclusion
of the item in the agenda of the General Assembly was originally advanced by
Serbia, and all U.N. member States had a chance to make their views known in
the consideration of this agenda item. The circumstances of the approval of
the draft resolution in a rather close or divided voting are, in my view,
immaterial.
-----------------------------------------------------------------------------------------------------------------
[FN20] U.N. doc. A/63/L.2.
-----------------------------------------------------------------------------------------------------------------
20. Resolution 63/3 was adopted on behalf of the U.N. General Assembly, and
not of only those States which voted in favour of it. This ensues from the
international legal personality of the United Nations, which is endowed with
a volonté of its own, surely distinct from the sum of volontés of its member
States, or of some of them (those which vote in favour of a resolution of
one of its main organs). In the cas d'espèce, U.N. member States considered
the matter in the General Assembly, and this latter, as one the main organs
of the United Nations, decided to make of the issue of Kosovo's declaration
of independence one of "United Nations concern".
21. The ICJ should thus proceed with care, - as it of course did, - but
without feeling inhibited to deliver the present Advisory Opinion. It is not
for the Court to dwell upon the circumstances of the political debate prior
to the adoption of General Assembly resolution 63/3(2008). The ICJ itself
has warned that "the opinion of the Court is given not to States, but to the
organ which is entitled to request it"[FN21]. The international community
expects that the Court acts at the height of the responsibilities incumbent
upon it, without succumbing to apprehensions or fears, in face of apparent
sensitivities of some States. It is incumbent upon the Court to say what the
Law is (juris dictio)[FN22].
-----------------------------------------------------------------------------------------------------------------
[FN21] ICJ, Advisory Opinion on the Interpretation of Peace Treaties with
Bulgaria, Hungary and Romania, 1950,
p. 71.
[FN22] The ICJ has, on various occasions, pointed out that it "may give an
advisory opinion on any legal question, abstract or otherwise". ICJ,
Advisory Opinion on Conditions of Admission of a State to Membership in the
United Nations, 1948, p. 61; ICJ, Advisory Opinion on Effect of Awards of
Compensation Made by the U.N. Administrative Tribunal, 1954, p. 51; ICJ,
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), 1971, para. 40; ICJ, Advisory Opinion on the
Threat or Use of Nuclear Weapons, 1996, para. 14; ICJ, Advisory Opinion on
Legal Consequences of the Construction of a Wall in Occupied Palestinian
Territory, 2004, para. 40.
-----------------------------------------------------------------------------------------------------------------
22. In any case, it is for the Court itself to assess the consequences of
its decision to deliver an Advisory Opinion, bearing in mind that it cannot
at all abstain itself from the exercise of its advisory function of saying
what the Law is (juris dictio). After all, the ICJ itself pointed out, six
decades ago, that, to provide a proper answer to a request for an Advisory
Opinion "represents its participation in the activities of the Organization,
and, in principle, should not be refused"[FN23].
-----------------------------------------------------------------------------------------------------------------
[FN23] ICJ, Advisory Opinion on the Interpretation of Peace Treaties with
Bulgaria, Hungary and Romania - First Phase, 1950, p. 71.
-----------------------------------------------------------------------------------------------------------------
23. Accordingly, the argument of a couple of participants in the present
advisory proceedings to the effect that the Court's Advisory Opinion would
lack a useful purpose, appears to me wholly unfounded. The same applies to
the alleged lack of "practical effect" of the Court's Opinion: this
allegation simply begs the question. The Court's jurisprudence constante on
the point at issue could be recalled in this connection[FN24]. In the cas
d'espèce, it is the task of the Court to provide an Opinion on the question
of the accordance with international law of Kosovo's declaration of
independence; and it is for the General Assembly to draw its own
conclusions, from the Court's Opinion, and to apply them to its further
treatment of the situation in Kosovo. In proceeding in this way, the ICJ is
contributing to the rule of law at international level, which, ever since
the 2005 U.N World Summit has been attracting increasing interest and
attention, and since 2006 has become an important agenda item ("The Rule of
Law at the National and International Levels") of the U.N. General
Assembly[FN25].
-----------------------------------------------------------------------------------------------------------------
[FN24] Thus, in its Advisory Opinion on the Western Sahara (1975), the ICJ
pondered that nothing in the U.N. Charter, or in its Statute, limited the
competence of the General Assembly to request an Advisory Opinion, or that
of its own to give an Opinion, on legal questions relating to existing
rights or obligations (para. 18). The Opinion would provide the General
Assembly with "elements of a legal character relevant to its further
treatment" of the subject-matter at issue (para. 32). Earlier on, in its
Advisory Opinion on Reservations to the Convention on the Prevention and
Punishment of the Crime of Genocide (1951), the ICJ observed that the object
of that request for an Opinion was "to guide the United Nations in respect
of its own action" (p. 19). And half a decade ago, the ICJ stressed, as it
clearly ensued from its jurisprudence constante, that "Advisory Opinions
have the purpose of furnishing to the requesting organs the elements of law
necessary for them in their action"; ICJ, Advisory Opinion on Legal
Consequences of the Construction of a Wall in the Occupied Palestinian
Territory, 2004, para. 59.
[FN25] Cf. U.N. General Assembly resolution 61/39, of 18.12.2006; U.N.
General Assembly resolution 62/70, of 06.12.2007; U.N. General Assembly
resolution 63/128, of 11.12.2008; U.N. General Assembly resolution 64/116,
of 16.12.2009.
-----------------------------------------------------------------------------------------------------------------
24. The next argument, with an apparent bearing on judicial "discretion" or
propriety, whereby the Court's Opinion would arguably have "adverse effects
on peace and security" in the region, likewise begs the question. There is
nothing new under the sun, and the Court itself has already answered
arguments of the kind in previous Advisory Opinions. For instance, in its
Advisory Opinion on the Threat or Use of Nuclear Weapons (1996), the ICJ
stated:
"It has (...) been submitted that a reply from the Court in this case might
adversely affect disarmament negotiations and would therefore, be contrary
to the interest of the United Nations. The Court is aware that, no matter
what might be its conclusions in any Opinion it might give, they would have
relevance for the continuing debate on the matter in the General Assembly
and would present an additional element in the negotiations on the matter.
Beyond that, the effect of the Opinion is a matter of appreciation" (para.
17)[FN26].
-----------------------------------------------------------------------------------------------------------------
[FN26] Cf. also ICJ, Advisory Opinion on the Western Sahara, 1975, para. 73.
-----------------------------------------------------------------------------------------------------------------
25. It is not the Court's business to speculate on eventual effects of its
Advisory Opinions; in my view, it is rather for the Court to contribute, in
the faithful exercise of its advisory function, to the prevalence of the
rule of law in the conduction of international relations. This may well
assist in reducing the tension and the political controversy in the region
at issue. In the more distant past, there was a trend of opinion that
favoured wide discretion on the part of the Hague Court to deliver an
Advisory Opinion or not; it was followed by another trend of opinion which
accepted that discretion, but only exceptionally and in face of "compelling
reasons" (raisons décisives). A more enlightened trend of opinion discards
discretion, accepting only inadmissibility to protect judicial
integrity[FN27].
-----------------------------------------------------------------------------------------------------------------
[FN27] Cf. R. Kolb, "De la prétendue discrétion de la Court Internationale
de Justice de refuser de donner un avis consultatif", in The International
Legal System in Quest of Equity and Universality - Liber Amicorum G. Abi-Saab
(eds. L. Boisson de Chazournes and V. Gowlland-Debbas), The Hague, Nijhoff,
2001, pp. 614-618, and cf. pp. 619-627.
-----------------------------------------------------------------------------------------------------------------
26. The Court seems to have indulged into an unnecessary confusion in
paragraph 29 of the present Advisory Opinion on Accordance with
International Law of Kosovo's Declaration of Independence, in regrettably
admitting to self-limit its advisory function, and in ascribing to so-called
"discretion" a dimension that it does not have. It has confused discretion
with judicial propriety, and it has failed to stress the proactive posture
that it has rightly adopted in the United Nations era, in the exercise of
its advisory function, as the principal judicial organ of the United Nations
(Article 92 of the U.N. Charter), and as the ultimate guardian of the
prevalence of the rule of law in the conduction of international
relations[FN28]. By the same token, it is somewhat disquieting to find, in
the unfortunate language of paragraph 29, that the ghost of Eastern Carelia
seems, like phoenix, to have arisen from the ashes...
-----------------------------------------------------------------------------------------------------------------
[FN28] In its Advisory Opinion on Legal Consequences of the Construction of
a Wall in the Occupied Palestinian Territory (2004), the ICJ recalled that
"[t]he present Court has never, in the exercise of this discretionary power,
declined to respond to a request for an advisory opinion. (...) On only one
occasion did the Court's predecessor, the Permanent Court of International
Justice, take the view that it should not reply to a question put to it
(Status of Eastern Carelia, Advisory Opinion, 1923)" (para. 44).
-----------------------------------------------------------------------------------------------------------------
27. The Court's advisory function is not a simple faculty, that it may
utilize at its free discretion: it is a function, of the utmost importance
ultimately for the international community as a whole, of the principal
judicial organ of the United Nations. Discretion is for a political organ,
like the General Assembly or the Security Council, to exercise, also when
deciding to request an Advisory Opinion to the ICJ. This latter, when seized
of a matter, - either a request for an Advisory Opinion, or a contentious
case, - has a duty to perform faithfully its judicial functions, either in
advisory matters or in respect of contentious cases. It is not for the Court
to indulge in an appreciation of the opportunity of an Advisory Opinion, and
it is surprising to me that the Court should dispense so much attention to
this issue in the present Advisory Opinion (paragraphs 29-48), to the point
of singling out technicalities (in paragraphs 36 and 39, as to the
respective roles and faculties of the Security Council and the General
Assembly) and of eluding a careful consideration of the factual background
(cf. infra) of the grave humanitarian crisis in Kosovo, brought to its
attention by several participants in the course of the written and oral
phases of the present advisory proceedings.
28. After all, ours is the age of the reassuring multiplication of
international tribunals, bearing witness of the acknowledgement of the
primacy of Law over force. Ours is the age of the "jurisdictionalisation" of
international law and relations, bearing witness of the improvements in the
modalities of peaceful settlement of disputes. Ours is the age of the
expansion of international jurisdiction, bearing witness of the advances of
the idea of an objective justice. Ours is the age of an ever-increasing
attention to the advances of the rule of law at both national and
international levels, a cause which the United Nations as a whole is now
committed with, particularly from 2006 onwards (cf. supra). To invoke and to
insist on "discretion", - rather discretionally, - seems to me to overlook,
if not to try to obstruct, the course of evolution of the judicial function
in contemporary international law. The awareness of the contemporary and
reassuring phenomenon of jurisdictionalisation has fortunately prevailed at
the end over undue politicization, underlining certain arguments examined by
the Court, which should have been promptly discarded by it.
29. Turning to another related aspect, it seems furthermore clear to me that
the ICJ is fully entitled, if it so deems fit, to reformulate the question
put to it by the request for an Advisory Opinion, so as to give it more
clarity. Thus, the alleged lack of clarity or certainty in the drafting of a
question cannot be invoked so as to deprive the Court of its jurisdiction.
Quite on the contrary, any uncertainty may require clarification or
rephrasing by the Court itself. In fact, along the decades, both the PCIJ
and the ICJ have repeatedly observed that the wording of a request for an
Advisory Opinion did not accurately state the question on which the Court's
Opinion was being sought[FN29], or else did not correspond to the "true
legal question" under consideration[FN30]. In one particular instance, the
ICJ noted that the question put to it was, "on the face of it, at once
infelicitously expressed and vague"[FN31].
-----------------------------------------------------------------------------------------------------------------
[FN29] Cf., e.g., PCIJ, Advisory Opinion on the Interpretation of the
Greco-Turkish Agreement of 01.12.1926, 1928, pp. 14-16.
[FN30] ICJ, Advisory Opinion on the Interpretation of the Agreement of
25.03.1951 between the WHO and Egypt, 1980, paras. 34-36.
[FN31] ICJ, Advisory Opinion on the Application for Review of Judgment n.
273 of the U.N. Administrative Tribunal, 1982, para. 46.
-----------------------------------------------------------------------------------------------------------------
30. Consequently, the Court has often been required to broaden, interpret
and even reformulate the questions put[FN32]; and it has accordingly deemed
it fit to "identify the existing principles and rules", to interpret them
and to apply them, thus offering a reply to "the question posed based on
law"[FN33]. This disposes of the wholly unconvincing - if not inappropriate
- argument that it would allegedly be "politically inappropriate" for the
ICJ to deliver the present Advisory Opinion. Such an argument should simply
not be raised before "the principal judicial organ of the United Nations"
(Article 92 of the U.N. Charter), which cannot attribute a political
character to a request which is supposed to invite it to undertake an
essentially judicial task[FN34]. The ICJ itself has pondered, in this
respect, that
"In institutions in which political considerations are prominent, it may be
particularly necessary for an international organization to obtain an
advisory opinion from the Court as to the legal principles applicable with
respect to the matter under debate"[FN35].
-----------------------------------------------------------------------------------------------------------------
[FN32] Cf., in addition to the aforementioned three Advisory Opinions, also
the ICJ's Advisory Opinion on the Admissibility of Hearings of Petitioners
by the Committee on South West Africa, 1956, p. 25; and the ICJ's Advisory
Opinion on Certain Expenses of the United Nations, 1962, pp. 157-162.
[FN33] ICJ, Advisory Opinion on the Threat or Use of Nuclear Weapons, 1996,
para. 13; ICJ, Advisory Opinion on Legal Consequences of the Construction of
a Wall in the Occupied Palestinian Territory, 2004, para. 38.
[FN34] ICJ, Advisory Opinion on Certain Expenses of the United Nations,
1962, p. 155.
[FN35] ICJ, Advisory Opinion on the Interpretation of the Agreement of
25.03.1951 between the WHO and Egypt, 1980, p. 87, para. 33.
-----------------------------------------------------------------------------------------------------------------
31. Yet, another argument of the kind has been raised in the course of the
present advisory proceedings, namely, the lack of consent of Kosovo to the
jurisdiction of the Court, allegedly affecting this latter as a matter of
judicial propriety: the allegation was that the ICJ should refrain from
exercising its jurisdiction in the cas d'espèce, because the General
Assembly request concerns arguably a bilateral dispute between Kosovo and
Serbia in respect of which Kosovo has not consented to the exercise of that
jurisdiction. This argument also appears, in my view, unpersuasive and
groundless.
32. As widely known, consent is a precondition for the exercise of the
Court's contentious, not advisory, function. And it could not be otherwise,
as Advisory Opinions are intended for the orientation or guidance of the
United Nations and its organs. The ICJ itself has clarified this aspect, six
decades ago, it its celebrated Advisory Opinion on the Interpretation of
Peace Treaties with Bulgaria, Hungary and Romania (First Phase, 1950); in
its own words,
"The consent of States, parties to a dispute, is the basis of the Court's
jurisdiction in contentious cases. The situation is different in regard to
advisory proceedings even where the request for an Opinion relates to a
legal question actually pending between States. The Court's reply is only of
an advisory character: as such, it has no binding force. It follows that no
State, whether a Member of the United Nations or not, can prevent the giving
of an Advisory Opinion which the United Nations considers to be desirable in
order to obtain enlightenment as to the course of action it should take. The
Court's Opinion is given not to the States, but to the organ which is
entitled to request it; the reply of the Court (...), in principle, should
not be refused" (p. 71)[FN36].
In the present instance, the object of the request for an Advisory Opinion
of the ICJ is to enlighten the General Assembly as to the accordance, or
otherwise, with international law, of the declaration of independence of
Kosovo by its authorities.
-----------------------------------------------------------------------------------------------------------------
[FN36] The ICJ followed this same reasoning, half a decade ago, in its
previous Advisory Opinion on Legal Consequences of the Construction of a
Wall in the Occupied Palestinian Territory (2004). The Court, after
examining "the opposition of certain interested States to the request by the
General Assembly" for an Advisory Opinion on the subject-matter at issue,
"in the context of issues of judicial propriety", pondered that
"The object of the request before the Court is to obtain from the Court an
Opinion which the General Assembly deems of assistance to it for the proper
exercise of its functions. The Opinion is requested on a question which is
of particularly acute concern to the United Nations, and one which is
located in a much broader frame of reference than a bilateral dispute" (par.
50).
-----------------------------------------------------------------------------------------------------------------
33. It should, furthermore, be kept in mind that, whilst the prior consent
of States has always been a hurdle to the exercise of the ICJ's function in
settling contentious cases, the opposite occurs in the exercise of its
advisory function: it is not at all conditioned by the prior consent of
States. Here, the ICJ has a means not only to clarify the questions
submitted to it for Advisory Opinions, but also to contribute thereby to the
progressive development of International Law. Three remarkable examples to
this effect lie in its ground-breaking Advisory Opinions on Reparation for
Injuries Suffered in the Service of the United Nations, of 1949; on
Reservations to the Convention against Genocide, of 1951; and on Legal
Consequences for States of the Continued Presence of South Africa in Namibia
(South West Africa) notwithstanding Security Council Resolution 276 (1970),
of 1971.
In sum and conclusion on the preliminary question under consideration, none
of the arguments raised in the course of the present advisory proceedings,
to try to persuade the ICJ to inhibit itself and to refrain from performing
its advisory function in relation to the declaration of independence of
Kosovo by its authorities, resists a closer examination. The Court's
jurisdiction is fully established in the present matter (cf. supra), and
there is no "compelling reason" for the Court not to exercise it. There is
not much else to be clarified in this respect. My conclusion on this point
is that it is not at all for the Court to act "discretionally"; the Court
has to perform its advisory function, and ought to deliver, as it has just
done, the requested Advisory Opinion, thus fulfilling faithfully its duties
as the principal judicial organ of the United Nations. In turn, the Court
should have, in my understanding, devoted much more attention than it has
done, in the present Advisory Opinion, to the factual context - in
particular the factual background - of the matter at issue.
III. The Factual Background and Context of the Question Put to the Court
34. In the present Advisory Opinion on Accordance with International Law of
Kosovo's Declaration of Independence, the Court pursued a minimalist
approach to the factual background of the question put to it by the General
Assembly, concentrating its attention on Kosovo's declaration of
independence of 17.02.2008, and making abstraction of its causes, lying in
the tragic succession of facts of the prolonged and grave humanitarian
crisis of Kosovo, which culminated in the adoption of Security Council
resolution 1244(1999). As a Member of the Court, I feel obliged to examine
that factual background in the present Separate Opinion, given the fact that
the Court appears not to have found it necessary to do, namely, to consider
carefully Kosovo's grave humanitarian crisis. This issue, to which I attach
great relevance, was, after all, brought repeatedly to the attention of the
Court, in the course of the present advisory proceedings, by several
participants, in both the written and oral phases. Perhaps the Court, like
human kind, "cannot bear very much reality"[FN37].
-----------------------------------------------------------------------------------------------------------------
[FN37] To paraphrase Thomas Becket's soliloquy in Canterbury, his
premonition in face of the imminence of his sacrifice; cf. T.S. Eliot,
"Murder in the Cathedral" (of 1935), in The Complete Poems and Plays
1909-1950, N.Y./London, Harcourt Brace & Co., 1980 [reprint], pp. 208-209.
-----------------------------------------------------------------------------------------------------------------
35. In addressing, accordingly, the factual background and the context of
the issue submitted by the General Assembly's request to the Court for the
present Advisory Opinion, may I draw attention to the fact that, on previous
occasions, somewhat distinctly, the ICJ deemed it fit to dwell carefully on
the whole range of facts which led to the issues brought to its cognizance
for the purpose of the requested Advisory Opinions. Thus, in its célèbre
Advisory Opinion of 1971 on the Legal Consequences for States of the
Continued Presence of South Africa in Namibia (South West Africa)
notwithstanding Security Council Resolution 276 (1970), the ICJ stated that
"It is undisputed, and is amply supported by documents annexed to South
Africa's written statement in these proceedings, that the official
governmental policy pursued by South Africa in Namibia is to achieve a
complete physical separation of races and ethnic groups in separate areas
within he territory. The application of this policy has required, as has
been conceded by South Africa, restrictive measures of control officially
adopted and enforced in the Territory by the coercive power of the former
Mandatory. These measures establish limitations, exclusions or restrictions
for the members of the indigenous population groups in respect of their
participation in certain types of activities, fields of study or of
training, labour or employment and also submit them to restrictions or
exclusions of residence and movement in large parts of the Territory.
Under the Charter of the United Nations, the former Mandatory has pledged
itself to observe and respect, in a territory having an international
status, human rights and fundamental freedoms for all without distinction as
to race. To establish instead, and to enforce, distinctions, exclusions,
restrictions and limitations exclusively based on grounds of race, colour,
descent or national or ethnic origin which constitute a denial of
fundamental human rights is a flagrant violation of the purposes and
principles of the Charter" (paras. 130-131).
36. Likewise, in its Advisory Opinion of 1975 on the Western Sahara, the ICJ
examined the matter submitted to its cognizance "in the context of such a
territory and such a social and political organization of the population" (para.
89), which led it to a detailed factual examination (paras. 90-107). And,
once again, in its Advisory Opinion of 2004 on the Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory, before
determining the principles and rules of international law which of relevance
to assess the legality of the measures taken by Israel, the Court described
extensively the works that Israel constructed or was planning to construct,
basing itself on the report of the Secretary General. The Advisory Opinion
gave ample detail of the effect of those works for the Palestinians (paras.
79-85). And the ICJ added that, for "developments subsequent to the
publication" of the report of the Secretary General, it would refer to
complementary information contained in the Written Statement of the United
Nations, which was intended by the Secretary-General to supplement his
report (para. 79).
37. On another occasion, in its Judgment of 19.12.2005 in the case
concerning Armed Activities in the Territory of the Congo (D.R. Congo versus
Uganda), the ICJ, after a careful analysis of the factual background of the
case and the evidence produced before it, considered that
"it has credible evidence sufficient to conclude that the UPDF troops
committed acts of killing, torture and other forms of inhumane treatment of
the civilian population, destroyed villages and civilian buildings, failed
to distinguish between civilian and military targets and to protect the
civilian population in fighting with other combatants, incited ethnic
conflict and took no steps to put an end to such conflicts, was involved in
the training of child soldiers, and did not take measures to ensure respect
for human rights and international humanitarian law in the occupied
territories" (para. 211).
In the same 2005 Judgment in the case opposing the D.R. Congo to Uganda, the
Court added that "the actions of the various parties in the complex conflict
in the DRC have contributed to the immense suffering faced by the Congolese
population. The Court is painfully aware that many atrocities have been
committed in the course of the conflict" (para. 221).
38. On yet another occasion, in its Order of 10.07.2002 in the case
concerning Armed Activities in the Territory of the Congo (New Application:
2002, D.R. Congo versus Rwanda), the ICJ, taking account of the factual
context, declared itself "deeply concerned by the deplorable human tragedy,
loss of life, and enormous suffering in the east Democratic Republic of the
Congo resulting from the continued fighting there" (para. 54). Likewise, in
its Order on Provisional Measures of 02.06.1999 in the cases concerning the
Legality of Use of Force, the ICJ noted that it was
"deeply concerned with the human tragedy, the loss of life, and the enormous
suffering in Kosovo which form the background of the present dispute, and
with the continuing loss of life and human suffering in all parts of
Yugoslavia"[FN38]. On all the aforementioned occasions, as one could well
expect, the ICJ did not hesitate to dwell upon the factual background of the
cases and matters brought into its cognizance, before pronouncing on them.
-----------------------------------------------------------------------------------------------------------------
[FN38] ICJ, case concerning Legality of Use of Force (Yugoslavia versus
Belgium), Request for the Indication of Interim Measures, ICJ Reports (1999)
p. 131, para. 16, and corresponding obiter dicta in the other Legality of
Use of Force cases (1999).
-----------------------------------------------------------------------------------------------------------------
39. It looks thus rather odd to me that, in the present Advisory Opinion on
Accordance with International Law of Kosovo's Declaration of Independence,
the ICJ, after having dedicated - as already pointed out - so much attention
to the usual points raised before it, in its practice, on so-called judicial
"discretion", - as if apparently attempting to justify the delivery of the
present Advisory Opinion, - has given only a brief and cursory attention to
the factual background of the question put to it by the General Assembly for
the purpose of the present Advisory Opinion. Yet, it is precisely the
humanitarian catastrophe in Kosovo that led to the adoption of Security
Council resolution 1244(1999), and the subsequent events, that culminated in
the declaration of independence of 17 February 2008 by Kosovo's authorities.
40. I thus consider Kosovo's humanitarian catastrophe as deserving of
careful attention on the part of the Court, for the purpose of the present
Advisory Opinion. The Court should, in my view, have given explicit
attention to the factual background and general context of the request of
its Opinion. After all, the grave humanitarian crisis in Kosovo remained,
along the decade 1989-1999, not only a continuing threat to international
peace and security, - till the adoption of Security Council resolution
1244(1999) bringing about the U.N.'s international administration of
territory, - but also a human tragedy marked by the massive infliction of
death, serious injuries of all sorts, and dreadful suffering of the
population. The Court should not, in my view, have limited itself, as it did
in the present Advisory Opinion, to select only the few reported and
instantaneous facts of the circumstances surrounding the declaration of
independence by Kosovo's authorities on 17.02.2008 and shortly afterwards,
making abstraction of the factual background which led to the adoption of
Security Council resolution 1244(1999) and, one decade later, of that
declaration of independence.
41. In effect, that factual background was to a great extent eluded by the
ICJ. In the present Advisory Opinion, it appeared satisfied to concentrate
on the events of 2008-2009[FN39], and, as to the grave humanitarian crisis
which preceded and accounted for them, it has only briefly and elliptically
referred to that crisis in Kosovo, and to the "end to violence and
repression"[FN40] in Kosovo, without any further concrete references to the
facts which constituted that prolonged humanitarian crisis. The Court did
so, notwithstanding the fact that such factual background was brought to its
attention, in detail, by several participants (cf. infra), in the course of
the present advisory proceedings, during both the written and oral phases.
-----------------------------------------------------------------------------------------------------------------
[FN39] Sections III-IV of the present Advisory Opinion.
[FN40] Cf. paragraph 58 of the present Advisory Opinion.
-----------------------------------------------------------------------------------------------------------------
42. Moreover, in my view, neither Security Council resolution 1244(1999),
nor Kosovo's declaration of independence of 17.02.2008, can be properly
considered making abstraction of their factual background and context. As to
their factual background, it may be recalled that, prior to the irruption
and aggravation of the crisis of Kosovo (in the late eighties and early
nineties), the constitutional structure of the Socialist Federal Republic of
Yugoslavia (SFRY) encompassed six Republics (the Socialist Republics of
Bosnia and Herzegovina, Croatia, Macedonia, Montenegro, Serbia, and
Slovenia) and two Autonomous Provinces (Kosovo, and Vojvodina, within the
Socialist Republic of Serbia). Under the 1974 Constitution of the Socialist
Federal Republic of Yugoslavia, the Socialist Autonomous Province of Kosovo
had a "very high degree of autonomy"; in fact, the "broad powers" granted by
the 1974 Constitution of the SFRY resulted in a "de facto equality" between
the aforementioned Republics and Autonomous Provinces[FN41].
-----------------------------------------------------------------------------------------------------------------
[FN41] Cf., inter alia , R. Muharremi, "Kosovo's Declaration of
Independence: Self-Determination and Sovereignty Revisited", 33 Review of
Central and East European Law (2008) pp. 406-407.
-----------------------------------------------------------------------------------------------------------------
43. In 1989, as a result of changes introduced into the Constitution of the
Republic of Serbia, Kosovo's status of Autonomous Province was revoked, what
led to much tension and Kosovo's prompt reaction[FN42], seeking
independence. The humanitarian crisis broke up, and the period following
1990 was marked by systematic discriminatory measures, and successive and
serious violations of human rights, perpetrated in the earlier years by
Serbian authorities against a large segment of the Kosovo Albanian
population. In the late nineties the crisis aggravated, with the heinous
practice of ethnic cleansing[FN43] and grave violations of human rights and
of international humanitarian law.
-----------------------------------------------------------------------------------------------------------------
[FN42] In declaring itself, by its Assembly, in July 1990, an independent
Republic within Yugoslavia.
[FN43] Cf. M. Grmek, M. Gjidara and N. Simac (eds.), Le nettoyage ethnique
(Documents historiques sur une idéologie serbe), Paris, Fayard/Ed. Seuil,
2002, pp. 43-353.
-----------------------------------------------------------------------------------------------------------------
44. In the course of the present advisory proceedings (written and oral
phases) before this Court, several participants were concerned at
characterizing the situation of Kosovo as sui generis, or otherwise.
Underlying this concern is the underlying preoccupation with the creation of
a precedent, whatever its outcome might be. One can hardly escape from the
acknowledgement that each case is a case, engulfed as it is in its own
history. Some cases may partake the same historical features (such as the
decolonization cases of the late sixties, seventies and early eighties),
thus conforming a pattern, in the historical development of the Law of the
United Nations. Others may appear rather unique, also in the framework of
the Law of the United Nations.
45. Thus, the history of each case is to be kept carefully in mind. And each
case has a dynamics of its own. Accordingly, Kosovo's declaration of
independence of 2008 cannot, in my view, be examined in abstracto, or in
isolation, but rather in relation to its factual background and its
historical context, which explain it. In the same line, the 2008 declaration
of independence should be considered as a whole. The humanitarian crisis of
Kosovo along the decade of 1989-1999 appeared related to the historical
process of the dissolution of former Yugoslavia. Its social facts resisted
successive attempts of peaceful settlement, did not abide by
time-limits[FN44], nor were restrained by deadlines. The history of each
case is not limited to the successive attempts of its peaceful settlement:
it also comprises its causes and epiphenomena, which have likewise to be
taken carefully into account.
-----------------------------------------------------------------------------------------------------------------
[FN44] Unlike what the Badinter Commission would have liked to make one
believe (having attempted in vain to do so). Cf., on this particular point,
P. Radan, The Break-up of Yugoslavia and International Law, London/N.Y.,
Routledge, 2002, pp. 247-253.
-----------------------------------------------------------------------------------------------------------------
46. Secondly, the grave humanitarian crisis, as it developed in Kosovo along
the nineties, was marked by a prolonged pattern of successive crimes against
civilians, by grave violations of International Humanitarian Law and of
International Human Rights Law, and by the emergence of one of the most
horrible crimes of our times, that of ethnic cleansing. This latter entered
the vocabulary of contemporary International Law through the prompt reaction
of the former U.N. Commission on Human Rights, which, as from August 1992,
began to utilize the expression in relation specifically to the tragic
conflicts that began to plague the former Yugoslavia. From late 1992
onwards, the expression "ethnic cleansing" was to appear systematically in
other U.N. documents, including resolutions of the General Assembly and the
Security Council.
47. I well remember the prompt repercussions that the news of those crimes
had, a couple of hundreds of kilometres away, in Vienna, in the course of
the II World Conference on Human Rights in Vienna, where I was working (in
June 1993), in its Drafting Committee. The decision that the World
Conference had taken not to single out any situation, was promptly
abandoned, and reversed, given the horrible news that were arriving from the
former Yugoslavia: it became the general feeling that, a U.N. World
Conference on Human Rights that would make abstraction of that general
situation, would simply lose its raison d'être. This explains the adoption
of, - besides the 1993 Vienna Declaration and Programme of Action, and the
Final Report of the Conference, - of two resolutions, on Bosnia and
Herzegovina and on Angola, respectively, both then plagued by armed
conflicts.
48. Thirdly, another element characteristic of the humanitarian crisis of
Kosovo was the decision taken by the U.N. Security Council 1244 (1999),
adopted on 10 June 1999, to place Kosovo under a U.N. transitional
international administration - while recognizing Serbia's territorial
integrity, - pending a final determination of its future status. Ever since,
Kosovo was withdrawn from Serbia's "domestic jurisdiction", having become a
matter of legitimate international concern. The Law of the United Nations
was the one that became applicable to its status, for the purposes of its
international administration. The unique character of the situation of
Kosovo was pointed out also by the Special Envoy (Mr. M. Ahtisaari,
appointed on 14.11.2005) of the U.N. Secretary General, in its Report on
Kosovo's Future Status: - "Kosovo is a unique case that demands a unique
solution. It does not create a precedent for other unresolved conflicts" (para.
15)[FN45].
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[FN45] Likewise, the Council of the European Union reiterated, on
18.02.2008, its view that the situation of Kosovo constituted a sui generis
case. Along those years, the general picture in the whole region changed
remarkably.
-----------------------------------------------------------------------------------------------------------------
49. Looking back to the causes and epiphenomena of Kosovo's humanitarian
crisis (which the present Advisory Opinion of the Court just briefly refers
to, while avoiding any examination whatsoever of the relevant facts which
led to it), the deprivation of Kosovo's autonomy (previously secured by the
Constitution of 1974) in 1989, paved the way for the cycle of systematic
discrimination, utmost violence and atrocities which victimized large
segments of the population of Kosovo, along one decade (1989-1999), leading
to the adoption of a series of resolutions by the main political organs of
the United Nations, and culminating in the adoption of Security Council
resolution 1244(1999).
50. For the examination of a humanitarian crisis such as that of Kosovo,
endeavours of its friendly settlement are surely relevant[FN46], but, in
order to move from Security Council resolution 1244(1999) to address
Kosovo's declaration of independence of 17.02.2008, one needs to keep in
mind the causes of the preceding conflict, which lie in the planified,
long-standing and brutal repression of large segments of the population of
Kosovo (infra). Friendly settlement efforts, in my view, cannot thus be
approached in a "technical", isolated way, detached from the causes of the
conflict. It is thus important, as already pointed out, to have clearly in
mind the whole context and factual background of the question put to the ICJ
by the General Assembly for the present Advisory Opinion (cf. infra).
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[FN46] Efforts and initiatives taken, at distinct stages of the crisis of
Kosovo, to arrive at a peace settlement, are of course to be taken into
account by the ICJ, together with the causes of the conflict. One may
recall, in this connection, as to the endeavours of peace settlement, among
others, the negotiations engaged into by the Contact Group (1998-1999), the
Accords resulting from the Rambouillet Conference (1999), Security Council
resolution 1244 (1999) itself, the Constitutional Framework for Provisional
Self-Government of Kosovo (promulgated by the Special Representative of the
U.N. Secretary General in May 2001 and with implementation completed by the
end of 2003), the Troika talks (2007) the Report on Kosovo's Future of the
Special Envoy of U.N. Secretary General (2007). For recent accounts of the
successive endeavours of peaceful settlement, cf., e.g., H.H. Perritt Jr.,
The Road to Independence for Kosovo - A Chronicle of the Ahtisaari Plan,
Cambridge, University Press, 2010, pp. 1-278; J. Ker-Lindsay, Kosovo: The
Path to Contested Statehood in the Balkans, London/N.Y., I.B. Tauris, 2009,
pp. 1-126.
-----------------------------------------------------------------------------------------------------------------
51. Before proceeding to an examination of that series of resolutions
altogether (which the ICJ has likewise avoided doing, concentrating
specifically on Security Council resolution 1244(1999)), I deem it necessary
to insert the matter into the larger framework of the Law of the United
Nations. To that end, I shall start by recalling pertinent antecedents
linked to the advent of international organizations, - which cannot pass
unnoticed here, - in their growing attention to the needs and aspirations of
the "people" or the "population".
IV. The Advent of international Organizations and the Growing Attention to
the Needs and Aspirations of the "People" or the "Population"
52. The advent of international organizations not only heralded the growing
expansion of international legal personality (no longer a monopoly of
States), but also shifted attention to the importance of fulfilling the
needs and aspirations of people. In this sense, international organizations
have contributed to a return to the droit des gens, in the framework of the
new times, and to a revival of its humanist vision, faithful to the
teachings of the "founding fathers" of the law of nations (cf. infra). That
vision marked its presence in past experiments of the mandates system, under
the League of Nations, and of the trusteeship system, under the United
Nations, as it does today in the U.N. initiatives of international
administration of territory.
1. League of Nations: The Mandates System
53. The mandates system emerged of human conscience, as a reaction to abuses
of the past, and in order to put an end to them: the annexation of colonies,
the policy of acquisition of territory (as an emanation and assertion of
State sovereignty) practiced by the great powers of the epoch, the
acquisition and exploitation of natural resources. All such abusive
practices used to occur in flagrant and gross disregard to the already
adverse conditions of living, and defencelessness, of the native peoples.
The reaction to such abuses found expression in Article 22 of the Covenant
of the League of Nations, which shifted attention to the peoples to be
assisted and protected.
54. Article 22(1) and (2) of the Covenant left it clear that, under the
emerging mandates system, the mandatory powers were entrusted with the
"well-being and development", and the "tutelage", of the peoples placed
thereunder. State sovereignty was alien to the mandates system: it had no
incidence on, or application in, its realm. State sovereignty was clearly
dissociated from the mandatories duties and responsibilities towards the
mandated peoples, as a "sacred trust of civilization", to promote the
well-being and development of those peoples.
55. A new relationship was thus created in international law, replacing, in
the framework of the mandates system, the old and traditional conception of
State sovereignty by the governance of peoples, pursuing their own
interests, and training them towards autonomy and self-government. In the
thoughtful words of Norman Bentwich in 1930 (then Attorney-General of
Palestine, one of the mandated territories),
"The mandatory is a protector with a conscience and - what is more - with a
keeper of his conscience, required to carry on the government according to
definite principles, to check the strong and protect the weak, to make no
profit and to secure no privilege"[FN47].
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[FN47] N. Bentwich, The Mandates System, London, Longmans, 1930, p. 5.
-----------------------------------------------------------------------------------------------------------------
56. In securing the well-being and development of the peoples concerned,
mandatory powers were required to assure their freedom of conscience and the
free exercise of all religions and forms of worship. The dual nature of
mandatory powers became evident, ensuing from Article 22 of the Covenant
itself: first, and foremost, they had duties vis-à-vis the peoples under
guardianship (a personal relationship); and, secondly, they had duties
towards the international society (of the epoch) at large, to the League of
Nations as supervisor of the mandates system[FN48], and, ultimately, to
humankind as a whole.
-----------------------------------------------------------------------------------------------------------------
[FN48] Cf. ibid, pp. 7-9 and 16-20.
-----------------------------------------------------------------------------------------------------------------
57. Yet, like all juridical instruments, mechanisms and institutions, the
mandates system was a product of its time. We all live within time. It made
clear that it was necessary, from them onwards, furthermore, to avoid
stigmas of the past, - source of much debate in those days and thereafter, -
such as the use of certain terms (like "tutelage", or even "guardianship"
itself), and the attempted classification of degrees of civilization (as in
the list of mandates A, B and C). In the following experiment of
international organizations, already in the League of Nations era, - that of
the trusteeship system, - attention became focused on self-determination of
peoples.
2. United Nations: The Trusteeship System
58. In the U.N. international trusteeship system, under chapters XII and
XIII of the Charters, attention remained focused on the peoples concerned.
There was, in addition, chapter XI, on non-self-governing territories:
thereunder, Article 73 reiterated the notion of "sacred trust", in the
protection of the peoples concerned "against abuses", and in the progressive
development of their "self-government" pursuant to their "aspirations". As
to the trusteeship system itself (chapter XII), Article 76 listed its basic
objectives, namely:
"(a) to further international peace and security;
(b) to promote the political, economic, social, and educational advancement
of the inhabitants of the trust territories, and their progressive
development towards self-government or independence as may be appropriate to
the particular circumstances of each territory and its peoples and the
freely expressed wishes of the peoples concerned, and as may be provided by
the terms of each trusteeship agreement;
(c) to encourage respect for human rights and for fundamental freedoms for
all without distinction as to race, sex, language, or religion, and to
encourage recognition of the independence of the peoples of the world; and
(d) to ensure equal treatment in social, economic, and commercial matters
for all Members of the United Nations and their nationals, and also equal
treatment for the latter in the administration ofjustice (...)".
59. It ensues from those objectives, from the letter and spirit of their
formulation in Article 76 of the U.N. Charter, that the U.N. trusteeship
system was devised and put into practice, in line with natural law thinking,
in order to secure the welfare of the inhabitants of trust territories, and
to move towards their self-government or independence[FN49]. In fostering
the social development of the inhabitants of trust territories, the
trusteeship system stimulated the consciousness of their rights;
furthermore, it kept in mind the common interests - of present and future
generations - of the populations of those territories[FN50]. Furthermore, it
aimed at enabling such populations to achieving the capacity to become
independent, in fulfilment of their own aspirations, so as to secure the
equality of treatment to everyone[FN51].
-----------------------------------------------------------------------------------------------------------------
[FN49] Cf., to this effect, e.g., C.E. Toussaint, The Trusteeship System of
the United Nations, London, Stevens, 1956, pp. 5, 21, 29, 248, 251 and 253.
[FN50] Cf., to this effect, C.V. Lakshmi-Narayan, Analysis of the Principles
and System of International Trusteeship in the Charter (thesis), Genève,
Université de Genève/IUHEI, 1951, pp. 131, 133, 139-140, 145 and 153.
[FN51] Cf., to this effect, Jean Beauté, Le droit de pétition dans les
territoires sous tutelle, Paris, LGDJ, 1962, pp. 14-15, and cf. pp. 12-13.
-----------------------------------------------------------------------------------------------------------------
60. This outlook has projected itself into the contemporary U.N. experiments
of international administration of territory. The humanist legacy of past
experiments of international organizations to present-day U.N. initiatives
of international administration of territory (cf. infra) cannot pass
unnoticed here. Former experiments of the League of Nations (the mandates
system) and of the United Nations (the trusteeship system, in addition to
the regime of non-self-governing territories), were devised, and put into
operation, as human conscience awakened as to the need to do so, in order to
put an end to abuses against human beings, and to prevent the recurrence of
abuses of the past.
3. International Administration of Territory
61. Territorial administration exercised by international organizations
(rather than foreign States) has also historical antecedents: for example,
in the League of Nations era, the Free City of Danzig (1920-1939), and the
Saar (German Saar Basin, 1920-1935), followed, in the United Nations era, by
the U.N. Council for Namibia (established in 1967), and the U.N.-performed
administrative functions in Cambodia (1991-1992). Three decades after the
creation of the U.N. Council for Namibia, contemporary experiments of U.N.
international administration of territory began to pursue likewise a
people-centered outlook, in a rather proactive way, to put an end to abuses
and to correct mistakes that affected the population[FN52].
-----------------------------------------------------------------------------------------------------------------
[FN52] R. Wilde, "From Danzig to East Timor and Beyond: The Role of
International Territorial Administration", 95 American Journal of
International Law (2001) pp. 586, 592-593, 599-600 and 605.
-----------------------------------------------------------------------------------------------------------------
62. The cases of Kosovo and East Timor serve as pertinent illustrations: the
roles of UNMIK and UNTAET have been unique, turned as they have been to the
aftermath of intra-State, rather than inter-State conflicts[FN53]. As from
the nineties, as well-known, U.N. peace operations began to engage
themselves in post-conflict reconstruction[FN54] and peaceful
State-building, as from a people-centered perspective, attentive to the
creation and preservation of public participation. This applies even more
forcefully in cases (like that of Kosovo) where the population was subjected
to successive brutalities, for a prolonged period of time, on the part of
the former "sovereign" authorities.
-----------------------------------------------------------------------------------------------------------------
[FN53] M. Bothe and T. Marauhn, "U.N. Administration of Kosovo and East
Timor: Concept, Legality and Limitations of Security Council-Mandated
Trusteeship Administration", in Kosovo and the International Community - A
Legal Assessment (ed. C. Tomuschat), The Hague, Kluwer, 2002, pp. 223, 233,
236 and 239, and cf. p. 242.
[FN54] Cf. B. Boutros-Ghali, An Agenda for Peace (With the New Supplement),
2nd. ed., N.Y., U.N. 1995, pp. 61-64.
-----------------------------------------------------------------------------------------------------------------
63. Prolonged oppression stresses the pressing need of safeguarding the
rights of the inhabitants, and this again brings to the fore the notion of
trusteeship, this time related to the contemporary experiments of
international administration of territory[FN55]. In the U.N. World Summit of
September 2005, the former U.N. Trusteeship Council came indeed to the end
of its days, replaced as it was by the U.N. Peacebuilding Commission, but
the basic idea of trusteeship seems to have survived in the new
context[FN56]. It is thus not surprising to find that, out of a context of
utmost violence such as that of Kosovo in the decade of 1989-1999, Security
Council resolution 1244(1999) emerged, followed by the goals of
self-government and U.N.-supervised independence pursued by the victimized
population.
-----------------------------------------------------------------------------------------------------------------
[FN55] T.B. Knudsen, "From UNMIK to Self-Determination? The Puzzle of
Kosovo's Future Status", in Kosovo between War and Peace - Nationalism,
Peacebuilding and International Trusteeship (eds. T.B. Knudsen and C.B.
Laustsen), London, Routledge, 2006, pp. 158-159 and 163-165, and cf. p. 156;
and cf. T.B. Knudsen and C.B. Laustsen, "The Politics of International
Trusteeship", in ibid., pp. 10 and 16.
[FN56] Cf., to this effect, R. Wilde, International Territorial
Administration - How Trusteeship and the Civilizing Mission Never Went Away,
Oxford, University Press, 2008, pp. 321-323, 325, 344-346, 349, 379-380,
382, 384, 386, 399, 415-416, 444 and 459; and cf. also G. Serra, "The
International Civil Administration in Kosovo: A Commentary on Some Major
Legal Issues", 18 Italian Yearbook of International Law (2008) p. 63.
-----------------------------------------------------------------------------------------------------------------
4. The Recurring Concern with the "People" or the "Population"
64. It is not surprising that, in the times of the experiments of
territories under mandate or in that of trust territories, considerable
attention was dispensed to "territory". Yet, the considerable development of
international law in our times, assists us, in current-day rethinking of
those juridical institutions, to identify an element, in my view, of greater
transcendence in those juridical institutions: that of the care with the
conditions of living of the "people" or the "population". People and
territory, - regarded as two of the constitutive elements of statehood
(added to the normative system), - go together; yet, when placed on balance,
to paraphrase a Judge of the Hague Court of the past, "it is for the people
to determine the destiny of the territory and not the territory the destiny
of the people"[FN57].
-----------------------------------------------------------------------------------------------------------------
[FN57] ICJ, Advisory Opinion on the Western Sahara, ICJ Reports (1975),
Separate Opinion of Judge Dillard, p. 122.
-----------------------------------------------------------------------------------------------------------------
65. This leads us to consider a key aspect which was insufficiently singled
out in the past, despite its great relevance, and which remains, in my view,
of considerable importance in the present, namely, the aforementioned
conditions of living of the population. People and territory go together,
but the emphasis is shifted from the status of territory to the needs and
aspirations of people. It is this element which, in my perception, provides
the common denominator, in an inter-temporal dimension, of the experiments
of mandates, trust territories and contemporary international administration
of territories. Those juridical institutions, - each one a product of its
time, - were conceived and established, ultimately, to address, and respond
to, the needs (including of protection) and aspirations of peoples, of human
beings.
V. Basic Considerations of Humanity in the Treatment of Peoples under the
Law of Nations
66. Along the last decades, attempts have thus been made to characterize the
role of international organizations in the aforementioned experiments turned
to the treatment of the "people" or the "population" (the mandates and
trusteeship systems, and the international administration of territory). If
a common denominator of such characterization in relation to distinct
experiments can be detected, it lies in the basic considerations of humanity
which permeates them all. Such considerations go well beyond the classical
focus on private law analogies.
1. Private Law Analogies
67. In assessing the growing experience of international organizations with
experiments of the kind of the mandates system (in the League of Nations
era), and the trusteeship system (in the United Nations era), followed by
that of the contemporary international administration of territories, there
has been an effort, on the part of expert writing, to situate them in the
conceptual universe of Law and identify therein their origins. To this end,
there was a tendency, especially in studies by authors of common law
formation, to resort to private law analogies, in particular with regard to
the mandates and trusteeship systems.
68. In addressing them, most legal scholars appeared satisfied to identify
such private law analogies, without feeling the need to go deeper into the
international legal doctrine of a more distant past[FN58]. Thus, "mandate"
was identified as deriving from the mandatum, a consensual contract in Roman
law; the beneficiary was a third party. "Trust" and "tutelage" had roots in
the tutela of Roman law, a sort of guardianship of infants; this disclosed
much uniformity in legal systems, as disclosed by the English trust, to some
extent a descendant of the fideicomissa of Roman law (in "fiduciary"
relations). In any case, a new relationship was thereby created, in the
mandates and trusteeship systems, on the basis of confidence (the "sacred
trust", infra) and, ultimately, human conscience.
-----------------------------------------------------------------------------------------------------------------
[FN58] For a notable exception, going back to the thinking of the Spanish
theologians of the of the XVIth century (F. de Vitoria and B. de Las Casas),
cf. R.N. Chowdhuri, International Mandates and Trusteeship Systems - A
Comparative Study, The Hague, Nijhoff, 1955, pp. 13, 16-18 and 20-22.
-----------------------------------------------------------------------------------------------------------------
69. What ultimately began to matter was the well-being and human development
of the population, of the inhabitants of mandated and trust territories. In
the infancy of those experiments under international organizations, it was
clearly pointed out by Quincy Wright, for example, that mandates - under the
League of Nations' mandates system - were thus intended to evade the notion
of absolute territorial sovereignty, which became "unsuited" to the
international society of the time, and were further intended to give "legal
protection" to newly-arisen needs, namely, those of "the mandated peoples",
by application of those private law analogies (supra); the mandatory, tutor
or trustee had "duties rather than rights"[FN59].
-----------------------------------------------------------------------------------------------------------------
[FN59] Quincy Wright, Mandates under the League of Nations, Chicago,
University of Chicago Press, 1930, pp. 389-390, and cf. pp. 375-378, 382-386
and 387.
-----------------------------------------------------------------------------------------------------------------
2. The Central Position of Peoples in the Origins of the Law of Nations (Droit
des Gens)
70. Yet, however clarifying an analysis of the kind may be (no one would
deny it), it would remain incomplete if not accompanied by an examination of
the teachings of the so-called "founding fathers" of the law of nations (le
droit des gens). This latter is remarkable by its essentially humanist
outlook, - which is the one I have always espoused. Human conscience soon
awakened, and reacted at the news of atrocities perpetrated at international
level, in the epoch of formation of the jus gentium (already detached from
its origins in Roman law), the droit des gens (derecho de gentes). The
attention was turned to the victims, the people victimized by the violence
and cruelty of power-holders of the time. Peoples assumed a central position
in the early days of the emergence of the droit des gens.
71. Thus, as early as in the mid-XVIth century, in his memorable account of
the cruel destruction of the Indias (1552), Bartolomé de Las Casas, invoking
the recta ratio and natural law, boldly denounced the massacres and the
destruction of the villages, of the inhabitants of the Indias, perpetrated
with impunity by the colonizers[FN60]. Despite the fact that the victims
were totally innocent[FN61], not even women and children and elderly persons
were spared by the cruelty and violence of those who wanted to dominate
them, at the end killing them all; in some regions the whole population was
exterminated[FN62]. The violence was characterized by its inhumanity and
extreme cruelty; notwithstanding, injustice prevailed[FN63]. But the
reaction of the droit des gens emerged therefrom.
-----------------------------------------------------------------------------------------------------------------
[FN60] Fray Bartolomé de Las Casas, Brevisima Relaciôn de la Destrucciôn de
las Indias (1552), Barcelona, Ediciones 29, 2004 [reprint], pp. 7, 9, 17,
41, 50 and 72.
[FN61] Ibid., pp. 7-14.
[FN62] Ibid., pp. 23, 27 and 45. According to his account, some of the
victims were burned alive, and those who survived were enslaved; ibid., pp.
31, 45, 73, 87 and 89.
[FN63] Ibid., pp. 89-90. Bartolomé de Las Casas asserted that those mass
killings and that devastation did harm to the Spanish crown itself, to the
Kings of Castilla themselves, and were in breach of all rights; ibid., pp.
41-42.
-----------------------------------------------------------------------------------------------------------------
3. The Civitas Maxima Gentium in the Vision of the Founding Fathers' of the
Law of Nations
72. The ideal of the civitas maxima gentium was soon to be cultivated and
propounded in the writings of the so-called "founding fathers" of
international law, namely, the célèbres Relecciones Teologicas (1538-1539),
above all the De Indis - Relectio Prior, of Francisco de Vitoria; the
treatise De Legibus ac Deo Legislatore (1612), of Francisco Suârez; the De
Jure Belli ac Pacis (1625), of Hugo Grotius; the De Jure Belli (1598), of
Alberico Gentili; the De Jure Naturae et Gentium (1672), of Samuel Pufendorf;
and the Jus Gentium Methodo Scientifica Pertractatum (1749), of Christian
Wolff. At the time of the elaboration and dissemination of the classic works
of F. Vitoria and F. Suârez (supra), the jus gentium had already freed
itself from private law origins (of Roman law) to apply itself universally
to all human beings[FN64].
-----------------------------------------------------------------------------------------------------------------
[FN64] A.A. Cançado Trindade, A Humanizaçâo do Direito Internacional, Belo
Horizonte/Brazil, Edit. Del Rey, 2006, pp. 318-319.
-----------------------------------------------------------------------------------------------------------------
73. As recently recalled, in the conception of the "founding fathers" of the
jus gentium inspired by the principle of humanity lato sensu (which seems
somewhat forgotten in our days), the legal order binds everyone (the ones
ruled as well as the rulers); the droit des gens regulates an international
community constituted by human beings socially organized in States and
co-extensive with humankind (F. Vitoria); thus conceived, it is solely Law
which regulates the relations among members of the universal societas
gentium (A. Gentili). This latter (totus orbis) prevails over the individual
will of each State (F. Vitoria). There is thus a necessary law of nations,
and the droit des gens reveals the unity and universality of humankind (F.
Suârez). The raison d'État has limits, and the State is not an end in
itself, but a means to secure the social order pursuant to the right reason,
so as to perfect the societas gentium which comprises the whole of humankind
(H. Grotius). The legislator is subject to the natural law of human reason
(S. Pufendorf), and individuals, in their association in the State, ought to
promote together the common good (C. Wolff)[FN65].
-----------------------------------------------------------------------------------------------------------------
[FN65] Cf. ibid, pp. 9-14, and cf. pp. 172, 393 and 408.
-----------------------------------------------------------------------------------------------------------------
I. The Contemporaneity of the 'Droit des Gens': the Humanist Vision of the
International Legal Order
74. Since the times of those writings, the world of course has entirely
changed, but human aspirations have remained the same. The advent, along the
XXth century, of international organizations (as we came to know them
nowadays), has much contributed, in a highly positive way, to put an end to
abuses against human beings, and gross violations of human rights and
international humanitarian law. The United Nations, in our times, has sought
the prevalence of the dictates of the universal juridical conscience,
particularly when aiming to secure dignified conditions of living to all
peoples, in particular those subjected to oppression.
75. International organizations have contributed to foster an essentially
humanist outlook of the earlier experiments of mandates and trusteeship
under their supervision, - an outlook which is line with the natural law
thinking of the totus orbis, or the civitas maxima gentium. In that
thinking, be it the old polis, be it the State, or any other forms of
socio-political organization, they were all conceived, and came to exist,
for the human person, and not vice-versa. International organizations,
created by States, have acquired a life of their own, and been faithful to
the observance of the principle of humanity lato sensu, bringing this latter
well beyond the old and strict inter-State dimension. The early experiments
of the mandates and trusteeship systems provide clear historical evidence to
that effect.
76. Yet, international legal doctrine, obsessed, along the XXth century,
with the ideas of State sovereignty and territorial integrity (which are not
here in question) to the exclusion of others, was oblivious of the most
precious constitutive element of statehood: human beings, the "population"
or the "people". The study of statehood per se, centered on the State itself
without further attention to the people, was carried to extremes by the
legal profession. In successive decades, attention was focused, in
institutions of learning (mainly Faculties of Law in numerous countries), on
the so-called "general theory of the State" (théorie générale de l'État /
teorîa general del Estado / teoria geral do Estado / Allgemeine Staatslehre
/ teoria generale dello Stato), repeating mechanically and ad nauseam
certain concepts advanced by authors of times past who had distinct concerns
in mind. This uncritical attitude led many to believe that the State was the
permanent and final repository of human aspirations and human freedom.
1. The Early Judicial Recognition of Rights of Human Beings and of Peoples
77. The consequences of that indifference to the human factor[FN66] were
devastating. As abuses and atrocities became recurrent, the need began to be
felt to turn attention to the conditions of living of the population or the
people, to the fulfillment of their needs and aspirations. International
juridical conscience took a long time to awake to that. Yet, already in the
inter-war period the minorities and mandates systems under the League of
Nations were attentive to that. The old Permanent Court of International
Justice (PCIJ) gave its own contribution to the rescue of the "population"
or the "people". Some of its relevant obiter dicta cannot pass unnoticed
here, as, eight decades later, they seem to remain endowed with
contemporaneity.
-----------------------------------------------------------------------------------------------------------------
[FN66] To paraphrase the title of Graham Greene's insightful novel.
-----------------------------------------------------------------------------------------------------------------
78. Thus, in its Advisory Opinion on the Greco-Bulgarian Communities (1930),
the PCIJ took the occasion to state that a community is
"(...) a group of persons living in a given country or locality, having a
race, religion, language and traditions of their own and united by this
identity of race, religion, language and traditions in a sentiment of
solidarity, with a view to preserving their traditions, maintaining their
form of worship, ensuring the instruction and upbringing of their children
in accordance with the spirit and traditions of their race and rendering
mutual assistance to each other" (p. 21).
79. Half a decade later, the PCIJ, in its Advisory Opinion on Minority
Schools in Albania (1935), warned that "the idea underlying the treaties for
the protection of minorities" was to secure "living peaceably" alongside
with the population. To that end, "two things were regarded as particularly
necessary", namely:
"The first is to ensure that nationals belonging to racial, religious or
linguistic minorities shall be placed in every respect on a footing of
perfect equality with the other nationals of the State.
The second is to ensure for the minority elements for the preservation of
their racial peculiarities, their traditions and their national
characteristics.
80. These two requirements are indeed closely interlocked, for their would
be no true equality between a majority and a minority if the latter were
deprived of its own institutions, and were consequently compelled to
renounce that which constitutes the very essence of its being as a minority"
(p. 17).
81. The minorities treaty at issue, - the PCIJ added, - aimed at "preventing
differences of race, language or religion from becoming a ground of
inferiority in law or an obstacle in fact to the exercise of the rights in
question" (p. 18). The PCIJ further recalled that, twelve years earlier, in
its other Advisory Opinion on German Settlers in Poland (1923), it had
stated that
"There must be equality in fact as well as ostensible legal equality in the
sense of discrimination in the words of the law" (cit. in p. 19).
82. The "principle of identical treatment in law and in fact" was reiterated
by the PCIJ in the aforementioned Advisory Opinion on Minority Schools in
Albania (1935), in the following terms:
"Equality in law precludes discrimination of any kind; whereas equality in
fact may involve the necessity of different treatment in order to attain a
result which establishes an equilibrium between different situations.
It is easy to imagine cases in which equality of treatment of the majority
and of the minority, whose situation and requirements are different, would
result in inequality in fact (...). The equality between members of the
majority and of the minority must be an effective, genuine equality (...)"
(p. 19)[FN67].
-----------------------------------------------------------------------------------------------------------------
[FN67] The PCIJ added that "the idea embodied in the expression 'equal
right' is that the right thus conferred on the members of the minority
cannot in any case be inferior to the corresponding right of other Albanian
nationals" (p. 20).
-----------------------------------------------------------------------------------------------------------------
83. It is thus significant that, even well before the 1948 Universal
Declaration of Human Rights, the fundamental principle of equality and
non-discrimination had found judicial recognition. The Universal Declaration
placed the principle in a wider dimension, by taking the individual qua
individual, qua human being, irrespective of being a member of a minority,
or an inhabitant of a territory under the mandates system (or, later on,
under the trusteeship system). Yet, the formulation of the principle in
relation to those pioneering experiments under the League of Nations (the
minorities and mandates systems, this latter followed by the trusteeship
system under the United Nations), contributed to giving universal expression
to equality and non-discrimination. Yet, the principle of equality and
non-discrimination was already engraved in human conscience.
84. The Universal Declaration of Human Rights proclaimed it in emphatic
terms. Its preamble began by stating that "recognition of the inherent
dignity and of the equal and inalienable rights of all members of the human
family is the foundation of freedom, justice and peace in the world" (para.
1). It then recalled that "disregard and contempt for human rights have
resulted in barbarous acts which have outraged the conscience of mankind" (para.
2). And it further warned, still in its preamble, that "it is essential, if
man is not to be compelled to have recourse, as a last resort, to rebellion
against tyranny and oppression, that human rights should be protected by the
rule of law" (para. 3). The Universal Declaration then proclaimed, in its
Article 1, that
"All human beings are born free and equal in dignity and rights. They are
endowed with reason and conscience and should act towards one another in a
spirit of brotherhood".
85. Already in the early years of the United Nations era, the International
Court of Justice (ICJ), in its Advisory Opinion on the International Status
of South-West Africa (1950), saw it fit to ponder that Article 80(1) of the
U.N. Charter purported
"to safeguard, not only the rights of States, but also the rights of the
peoples of mandated territories until trusteeship agreements are concluded.
The purpose must have been to provide a real protection for those rights;
but no such rights of the peoples could be effectively safeguarded without
international supervision and a duty to render reports to a supervisory
organ" (pp. 136-137). Thus, as acknowledged by the ICJ, "the necessity for
supervision continues to exist despite the disappearance of the supervisory
organ under the mandates system" (p. 136). The "international function of
administration" (of mandated territories) aimed at "promoting the well-being
and development of the inhabitants"[FN68].
-----------------------------------------------------------------------------------------------------------------
[FN68] This being the "sacred trust of civilization" referred to in Article
22 of the Covenant of the League of Nations (p. 133).
-----------------------------------------------------------------------------------------------------------------
86. The ICJ saw it fit to recall that the mandates system had been created
"in the interest of the inhabitants of the territory, and of humanity in
general, as an international institution with an international object - a
sacred trust of civilization. It is therefore not possible to draw any
conclusion by analogy from the notions of mandate in national law or from
any other legal conception of that law" (p. 132). Furthermore, in the view
of the ICJ, the rights of States and peoples did not lapse automatically on
the dissolution of the League of Nations; on the contrary, they were
safeguarded "under all circumstances and in all respects, until each
territory should be placed under the trusteeship system" (p. 134).
87. The ICJ stressed "the general obligation to promote to the utmost the
material and moral well-being and the social progress of the inhabitants",
and this assumed "particular obligations" in relation to abuses of the
past[FN69]. The ICJ sought to secure the continuity of those obligations.
Thus, in the same Advisory Opinion on the International Status of South-West
Africa (1950), it recalled that the Assembly of the League of Nations, in
its Resolution of 18.04.1946, reckoned that chapters XI, XII and XIII of the
Charter of the United Nations embodied principles corresponding to those
declared in Article 22 of the Covenant, in a clear indication that "the
supervisory functions exercised by the League would be taken over by the
United Nations". The competence of the U.N. General Assembly to exercise
such supervision derived from Article 10 of the Charter, which authorized it
"to discuss any questions or any matters within the scope of the Charter and
to make recommendations on these questions or matters to the members of the
United Nations" (p. 137). The U.N. General Assembly, early in its life,
began to exercise that competence, and the ICJ found, in that Advisory
Opinion of 1950, that the General Assembly was "legally qualified" to do so
(p. 137).
-----------------------------------------------------------------------------------------------------------------
[FN69] Such as "slave trade, forced labour, traffic in arms and ammunition,
intoxicating spirits and beverages, military training and establishments, as
well as obligations relating to freedom of conscience and free exercise of
worship"; such obligations represented "the very essence of the sacred trust
of civilization" (p. 133).
-----------------------------------------------------------------------------------------------------------------
2. The Humanist Legacy of Past Experiments to U.N. International
Administration
of Territory
88. Each juridical institution is the product of its time. Social facts tend
to come before the norms, and these latter emerge from legal principles, in
order to regulate new forms of inter-individual and social relations.
Juridical institutions constitute responses to social needs of their times,
including protection. The institutions of mandates (under the League of
Nations), of trusteeship (under the United Nations until 2005) and of
international administration of territory (by the United Nations, of the
kind of the ones evolved in the nineties), are no exception to that.
89. Although the experiences of the mandates and the trusteeship systems
belong to the past, are now part of history, this does not mean that lessons
cannot be extracted therefrom, for the consideration of new juridical
institutions, operating nowadays also in response to social needs, including
protection. This amounts to rethinking the juridical institutions of the
past, to identify their legacy, of relevance for new social needs. In my own
perception, in at least one particular aspect the experiments of the
mandates and the trusteeship systems were ahead of their times: that of the
access of the inhabitants concerned (of mandated and trust territories) to
justice at international level.
90. As attention gradually began to turn into the "population" or the
"people" (with the awakening to the human conscience as to their needs of
protection), pioneering experiments were devised and placed in operation: in
the era of the League of Nations, the minorities and mandates systems,
placed under its supervision, and, later on, in the era of the United
Nations, the trusteeship system. There can hardly be any doubt that the
experiments of mandates (in addition to the minorities system), and of trust
territories, aimed at the fulfillment of the needs, and at the empowerment,
of the inhabitants of the territories at issue, so as to put an end to
abuses of the past. The inhabitants of mandate and trust territories were,
furthermore, endowed with the right of international individual
petition[FN70] (to the Permanent Mandates Commission, to the Minorities
Committees, and to the Trusteeship Council, respectively), - heralding the
advent of the access of individuals to international instances in order to
vindicate their own rights, emanated directly from the droit des gens, from
the law of nations itself.
-----------------------------------------------------------------------------------------------------------------
[FN70] Just like the members of minorities, in the minorities system under
the League of Nations. The procedures varied from one system to the other;
on the right of international individual petition in those pioneering
experiments, cf., e.g., C.A. Norgaard, The Position of the Individual in
International Law, Copenhagen, Munksgaard, 1962, pp. 109-138; A.A. Cançado
Trindade, "Exhaustion of Local Remedies in International Law Experiments
Granting Procedural Status to Individuals in the First Half of the Twentieth
Century", 24 Netherlands International Law Review (1977) pp.
-----------------------------------------------------------------------------------------------------------------
91. If we go through the bulk of expert writing on the mandates and the
trusteeship systems, especially those who were familiar with the operation
of those systems, we detect: (a) analogies of private law wherefrom
inspiration was drawn for the establishment of those juridical institutions;
(b) devising of mechanisms of supervision (of territories and mandates and
in the trusteeship system), also at international level (recourse to the
former Permanent Mandates Commission and the former Trusteeship Council);
(c) interactions between the domestic and international legal orders; (d)
classification of units (mandates and trust territories); (e) modus operandi
of the respective systems.
92. A rethinking of those experiments of mandates and trust territories does
not need to go over such aspects, overworked in the past; it is here rather
intended to focus on the lessons left for the present and the future. This
implies consideration of their causes, of what originated those
institutions, as well as of their purposes, of which goals they purported to
attain. Much of the energy - not all of it - spent in devising them was
conditioned, perhaps ineluctably, by prevailing notions of their times. Yet,
they left a precious lesson for succeeding generations, that cannot be
overlooked nowadays.
93. The juridical institutions of mandates, trusteeship and international
administration of territories emerged, in succession, from the juridical
conscience, to extend protection to those "peoples" or "populations" who
stood - and stand - in need of it, in modern and contemporary history. The
respective "territorial" arrangements were the means devised in order to
achieve that end, of protection of "populations" or "peoples". It was not
mandates for mandates' sake, it was not trusteeship for trusteeship's sake,
and it is not international administration of territory for administration's
sake.
94. If we turn to the causes, as we ought to, we identify their common
purpose: to safeguard the "peoples" or "populations" concerned (irrespective
of race, ethnic origin, religious affiliation, or any other trait) from
exploitation, abuses and cruelty, and to enable them to be masters of their
own destiny in a temporal dimension. In such domain of protection, Law is
ineluctably finaliste. Those experiments were inspired by the fundamental
principle of humanity (cf. paras. 196-211, infra), and purported to
safeguard the dignity of the human person. This, Article 22 of the Covenant
of the League of Nations, on the mandates system, enunciated "the principle
that the well-being and development" of the "peoples" at issue, under
"tutelage", formed "a sacred trust of civilization"[FN71]. The mandates
system, - it added, - was to ensure "freedom of conscience and religion",
and to establish the prohibition of abuses of the past[FN72].
-----------------------------------------------------------------------------------------------------------------
[FN71] It added - in a categorization that did not pass without criticism -
that "the character of the mandate" (i.e., mandates A, B or C) "must differ
according to the stage of development of the people, the geographical
situation of the territory, its economic conditions and other similar
circumstances".
[FN72] Such as, e.g., "the slave trade, the arms traffic and the liquor
traffic".
-----------------------------------------------------------------------------------------------------------------
95. On its part, Article 73 of the United Nations Charter, concerning
non-self-governing territories, determined that
"Members of the United Nations which have or assume responsibilities for the
administration of territories whose peoples have not yet attained a full
measure of self-government recognize the principle that the interests of the
inhabitants of these territories are paramount, and accept as a sacred trust
the obligation to promote to the utmost, within the system of international
peace and security established by the present Charter, the well-being of the
inhabitants of these territories, and, to this end:
(a) to ensure, with due respect for the culture of the peoples concerned,
their political, economic, social, and educational advancement, their just
treatment, and their protection against abuses;
(b) to develop self-government, to take due account of the political
aspirations of the peoples, and to assist them in the progressive
development of their free political institutions, according to the
particular circumstances of each territory and its peoples and their varying
stages of advancement;
(c) to further international peace and security;
(d) to promote constructive measures of development, to encourage research,
and to co-operate with one another and, when and where appropriate, with
specialized international bodies with a view to the practical achievement of
the social, economic, and scientific purposes set forth in this Article; and
(e) to transmit regularly to the Secretary-General for information purposes,
subject to such limitations as security and constitutional considerations
may require, statistical and other information of a technical nature
relating to economic, social, and educational conditions in the territories
for which they are respectively responsible other than those territories to
which Chapters XII and XIII apply".
96. The lessons accumulated, by those who witnessed or survived the
successive massacres and atrocities of the last hundred years, and those who
study and think seriously about them today, cannot but lead to this humanist
acknowledgement: in the roots of those juridical institutions (mandates,
trusteeship, international administration of territories) we detect the
belated consciousness of the duty of care for the human kind. This is, after
all, in my own perception, their most invaluable common denominator.
VII. The Concern of the United Nations Organization as a Whole with the
Humanitarian Tragedy in Kosovo
96. In the light of the previous considerations, we may now turn to the
expressions of the United Nations Organization as a whole with the
humanitarian tragedy in Kosovo which victimized its population for one
decade (1989-1999). Not only the Security Council, but also the General
Assembly, ECOSOC and the Secretary General expressed, on successive
occasions, their grave concern with that humanitarian crisis. It had become,
in fact, a matter of legitimate concern of the international community as a
whole, in the framework of the United Nations Charter, as we shall see now.
1. The Security Council's Reiterated Expressions of Grave Concern with the
Humanitarian
Tragedy in Kosovo
97. By the turn of the century, in the period extending from March 1998 to
September 2001, the Security Council expressed its concern with the grave
humanitarian crisis in Kosovo. In its Resolution 1160 (of 31.03.1998), the
Security Council condemned both "the use of excessive force by Serbian
police forces against civilians and peaceful demonstrators in Kosovo" and
"all acts of terrorism by the Kosovo Liberation Army"[FN73]. A few months
later, in Resolution 1199 (of 23.09.1998), the Security Council expressed
its grave concern at the "rapid deterioration" of the "humanitarian
situation in Kosovo"[FN74], with the "increasing violation of human rights
and of international humanitarian law"[FN75]. In particular, Resolution 1199
expressed its grave concern at
"the recent intense fighting in Kosovo and in particular the excessive and
indiscriminate use of force by Serbian security forces and the Yugoslav Army
which have resulted in numerous civilian casualties and, according to the
estimate of the Secretary-General, the displacement of over 230,000 persons
from their homes"[FN76].
-----------------------------------------------------------------------------------------------------------------
[FN73] Preamble, para. 3.
[FN74] Preamble, paras. 10 and 14.
[FN75] Preamble, para. 11.
[FN76] Preamble, para. 6.
-----------------------------------------------------------------------------------------------------------------
98. In the same Resolution 1199, the Security Council expressed its deep
concern with the "flow of refugees" and the "increasing numbers of displaced
persons", up to "50,000 of whom (...) without shelter and other basic
necessities"[FN77]. It then warned against the "impending humanitarian
catastrophe"[FN78] in Kosovo, and asserted
"the right of all refugees and displaced persons to return to their homes in
safety, and (. ) the responsibility of the Federal Republic of Yugoslavia
for creating the conditions which allow them to do so"[FN79]. The Security
Council then demanded, still in Resolution 1199, the unimpeded and safe
return of refugees and displaced persons to their homes, and "humanitarian
assistance to them"[FN80], so as "to improve the humanitarian situation and
to avert the impending humanitarian catastrophe"[FN81] ; it also
acknowledged the need "to bring to justice those members of the security
forces who have been involved in the mistreatment of civilians"[FN82],
through full cooperation with the Prosecutor of the International Tribunal
for the Former Yugoslavia "in the investigation of possible violations"
within its jurisdiction[FN83]. Resolution 1199 further asserted the support
for a peaceful resolution of the Kosovo crisis, including "an enhanced
status for Kosovo, a substantially greater degree of autonomy, and
meaningful self-administration"[FN84].
-----------------------------------------------------------------------------------------------------------------
[FN77] Preamble, para. 7.
[FN78] Preamble, para. 10, and operative part, para. 1.
[FN79] Preamble, para. 8.
[FN80] Operative part, paras. 5(c) and (e), and 12.
[FN81] Operative part, para. 2.
[FN82] Operative part, para. 14.
[FN83] Operative part, para. 13.
[FN84] Preamble, para. 12.
-----------------------------------------------------------------------------------------------------------------
99. One month later, the Security Council adopted Resolution 1203 (of
24.10.1998), whereby it reiterated this last objective in the same
terms[FN85], as well as its deep "alarm" and concern with the continuation
of the "grave humanitarian situation throughout Kosovo" and the pressing
need to prevent "the impending humanitarian catastrophe"[FN86], which
constituted "a continuing threat to peace and security in the region"[FN87].
Resolution 1203 further reiterated its demand to the authorities of the
Federal Republic of Yugoslavia to secure the safe return to their homes of
all refugees and displaced persons, in the exercise of their own right of
freedom of movement[FN88], - so as "to avert the impending humanitarian
catastrophe"[FN89]. Resolution 1203 called at last for "prompt and complete
investigation" of "all atrocities committed against civilians", in "full
cooperation with the International Tribunal for the Former
Yugoslavia"[FN90].
-----------------------------------------------------------------------------------------------------------------
[FN85] Preamble, para. 8.
[FN86] Preamble, para. 11.
[FN87] Preamble, para. 15.
[FN88] Operative part, paras. 12 and 9, and cf. para. 13.
[FN89] Operative part, para. 11.
[FN90] Operative part, para. 14.
-----------------------------------------------------------------------------------------------------------------
100. Seven months later, the Security Council adopted Resolution 1239 (of
14.05.1999), reiterating its "grave concern" at the humanitarian catastrophe
in and around Kosovo", given the "enormous influx of Kosovo refugees" and
the "increasing numbers of displaced persons within Kosovo"[FN91], calling
for the effective coordination of "international humanitarian relief'[FN92].
After reaffirming "the right of all refugees and displaced persons to return
to their homes in safety and in dignity"[FN93], Resolution 1239 warned with
emphasis that "the humanitarian situation will continue to deteriorate" in
the absence of a proper "political solution" to the crisis[FN94].
-----------------------------------------------------------------------------------------------------------------
[FN91] Preamble, paras. 3-4.
[FN92] Preamble, para. 5, and operative part, paras. 1-2.
[FN93] Operative part, para. 4.
[FN94] Operative part, para. 5.
-----------------------------------------------------------------------------------------------------------------
101. The next step taken by the Security Council, shortly afterwards, was
the adoption of its significant Resolution 1244 (of 10.06.1999), commented
supra/infra. Subsequently, the Security Council adopted Resolution 1367
(2001), wherein it took note, in relation to Kosovo, of the situation
concerning security in the borders, and stressed the "continuing authority"
of the U.N. Secretary-General's Special Representative "to restrict and
strictly control the flow of arms into, within and out of Kosovo, pursuant
to resolution 1244(1999)"[FN95].
-----------------------------------------------------------------------------------------------------------------
[FN95] Preamble, para. 4.
-----------------------------------------------------------------------------------------------------------------
The General Assembly's Reiterated Expressions of Grave Concern with the
Humanitarian Tragedy in Kosovo
102. Earlier than the Security Council, as from 1994, the General Assembly
began to express its concern with the grave humanitarian crisis in Kosovo.
In its Resolution 49/204 (of 23.12.1994), — the first of a series on the
"Situation of Human Rights in Kosovo", - the General Assembly acknowledged
the "continuing deterioration" of the human rights situation in Kosovo, with
"various discriminatory measures taken in the legislative, administrative
and judicial areas, acts of violence and arbitrary arrests perpetrated
against ethnic Albanians in Kosovo", including:
"(a) police brutality against ethnic Albanians, the killing of ethnic
Albanians resulting from such violence, arbitrary searches, seizures and
arrests, forced evictions, torture and ill-treatment of detainees and
discrimination in the administration of justice;
(b) discriminatory and arbitrary dismissals of ethnic Albanian civil
servants, notably from the ranks of the police and the judiciary, mass
dismissals of ethnic Albanians, confiscation and expropriation of their
properties, discrimination against Albanian pupils and teachers, the closing
of Albanian-language secondary schools and university, as well as the
closing of all Albanian cultural and scientific institutions;
(c) the harassment and persecution political parties and associations of
ethnic Albanians and their leaders and activities, maltreating and
imprisoning them;
(d) the intimidation and imprisonment of ethnic Albanian journalists and the
systematic harassment and disruption of the news media in the Albanian
language;
(e) the dismissal from clinics and hospitals of doctors and members of other
categories of the medial profession of Albanian origin;
f) the elimination in practice of the Albanian language, particularly in
public administration and services;
(g) the serious and massive occurrence of discriminatory and repressive
practices aimed at Albanians in Kosovo, as a whole, resulting in widespread
involuntary
migration"[FN96].
-----------------------------------------------------------------------------------------------------------------
[FN96] Preamble, para. 4.
-----------------------------------------------------------------------------------------------------------------
103. The General Assembly then strongly condemned, in the same Resolution
49/204, these "measures and practices of discrimination" and "large-scale
repression" of the "defenceless ethnic Albanian population", and the
discrimination against ethnic Albanians "in the administrative and judiciary
branches of government, education, health care and employment, aimed at
forcing ethnic Albanians to leave[FN97]. It then demanded from the
authorities of the Former Republic of Yugoslavia (Serbia and Montenegro) to
bring to an "immediate end" all those human rights violations (including
torture and other cruel, inhuman or degrading treatment; arbitrary searches
and detention; denial of a fair trial; among others)[FN98]. It further
encouraged the U.N. Secretary-General to pursue his "humanitarian efforts"
in the region, in liaison with, inter alia, the UNHCR and UNICEF, "with a
view to taking urgent practical steps to tackle the critical needs of the
people in Kosovo, especially of the most vulnerable groups affected by the
conflict, and to assist in the voluntary return of displaced persons to
their homes"[FN99].
-----------------------------------------------------------------------------------------------------------------
[FN97] Operative part, paras. 1-2.
[FN98] Operative part, para. 3.
[FN99] Operative part, para. 5.
-----------------------------------------------------------------------------------------------------------------
104. One year later, the General Assembly adopted Resolution 50/190 (of
22.12.1995), acknowledging the same acts of discrimination and
violence[FN100], and reiterated - in a longer text - its concerns with the
human rights violations in Kosovo[FN101]. It "urgently" demanded that the
authorities of the Federal Republic of Yugoslavia (Serbia and Montenegro):
"(a) take all necessary measures to bring to an immediate end all human
rights violations against ethnic Albanians in Kosovo, including, in
particular, the discriminatory measures and practices, arbitrary searches
and detention, the violation of the right to a fair trial and the practice
of torture and other cruel, inhuman or degrading treatment, and to revoke
all discriminatory legislation, in particular that which has entered into
force since 1989;
(b) release all political prisoners and cease the persecution of political
leaders and members of local human rights organizations;
(c) allow the establishment of genuine democratic institutions in Kosovo,
including the parliament and the judiciary, and respect the will of its
inhabitants as the best means of preventing the escalation of the conflict
there;
(d) abrogate the official settlement policy as far as it is conducive to the
heightening of ethnic tensions in Kosovo;
(e) reopen the cultural and scientific institutions of the ethnic Albanians;
(f) pursue dialogue with the representatives of ethnic Albanians in Kosovo,
including under the auspices of the International Conference on the Former
Yugoslavia"[FN102].
And, once again, the General Assembly encouraged the U.N. Secretary-General
to pursue his "humanitarian efforts" in the region, together with, inter
alia, the UNHCR and UNICEF, "to tackle the critical needs of the people in
Kosovo, especially of the most vulnerable groups affected by the conflict",
as well as "to assist in the voluntary return of displaced persons to their
homes"[FN103].
-----------------------------------------------------------------------------------------------------------------
[FN100] Preamble, para. 5.
[FN101] Preamble, paras. 6 and 8, and operative part, paras. 1-2.
[FN102] Operative part, para. 3.
[FN103] Operative part, para. 5.
-----------------------------------------------------------------------------------------------------------------
105. The "continuing grave human rights situation in Kosovo" was again
object of concern by the General Assembly, in its Resolution 51/111 (of
12.12.1996)[FN104], whereby the Assembly condemned "all violations of human
rights in Kosovo, in particular repression of the ethnic Albanian population
and discrimination against them, as well as all acts of violence in
Kosovo"[FN105]. It reiterated the aforementioned demands to the authorities
of the Federal Republic of Yugoslavia (Serbia and Montenegro)[FN106], and it
again (para. 6-7) encouraged the U.N. Secretary-General to pursue his
humanitarian endeavours with the appropriate humanitarian entities (such as
UNHCR and UNICEF)
"to tackle the critical needs of the people of Kosovo, especially of the
most vulnerable groups affected by the conflict, and to assist in the
voluntary return of displaced persons to their homes in conditions of safety
and dignity"[FN107]. Moreover, Resolution 51/111 called for compliance with
the "principles of non-discrimination, equal protection before the law and
the reduction and avoidance of statelessness"[FN108].
-----------------------------------------------------------------------------------------------------------------
[FN104] Preamble, para. 2.
[FN105] Operative part, para. 1.
[FN106] Operative part, para. 2.
[FN107] Operative part, para. 6.
[FN108] Operative part, para. 7
-----------------------------------------------------------------------------------------------------------------
106. One year afterwards, the General Assembly, in Resolution 52/139 (of
12.12.1997), noted with concern "the use of force by Serbian police against
peaceful Albanian student protesters of Kosovo on 1 October 1997"[FN109],
and further expressed "deep concern" about "all violations of human rights
and fundamental freedoms in Kosovo, in particular the repression of the
ethnic Albanian population and discrimination against it, as well as acts of
violence in Kosovo"[FN110]. Accordingly, the General Assembly called upon
the authorities of the Federal Republic of Yugoslavia:
"(a) to take all necessary measures to bring an immediate end to all human
rights violations against ethnic Albanians in Kosovo, including, in
particular, discriminatory measures and practices, arbitrary searches and
detention, the violation of the right to a fair trial and the practice of
torture and other cruel, inhuman or degrading treatment, and to revoke all
discriminatory legislation, in particular that which has entered into force
since 1989;
(b) to release all political prisoners and to cease the persecution of
political leaders and members of local human rights organizations;
(c) to allow the return in safety and dignity of Albanian refugees from
Kosovo to their homes;
(d) to allow the establishment of genuine democratic institutions in Kosovo,
including the parliament and the judiciary, and to respect the will of its
inhabitants as the best means of preventing the escalation of the conflict
there;
(e) to allow the reopening of the educational, cultural and scientific
institutions of the ethnic Albanians"[FN111].
Resolution 52/139 at last reiterated the same encouragement words to the
U.N. Secretary-General[FN112] as previously done in earlier resolutions of
the General Assembly on the situation of human rights in Kosovo (cf. supra).
-----------------------------------------------------------------------------------------------------------------
[FN109] Preamble, para. 4.
[FN110] Operative part, para. 1.
[FN111] Operative part, para. 2.
[FN112] Operative part, para. 7.
-----------------------------------------------------------------------------------------------------------------
107. In the following year, the General Assembly adopted an extensive
resolution on the situation of human rights in Kosovo: by means of
Resolution 53/164 (of 09.12.1998), the General Assembly focused on "the
regional dimensions of the crisis in Kosovo", and its "persistent and grave
violations and abuse of human rights and humanitarian law in Kosovo"[FN113].
The General Assembly expressed its "grave" concern with
"the systematic terrorization of ethnic Albanians, as demonstrated in the
many reports, inter alia, of torture of ethnic Albanians, through
indiscriminate and widespread shelling, mass forced displacement of
civilians, summary executions and illegal detention of ethnic Albanian
citizens (...) by the police and military"[FN114]. The General Assembly
expressed further its concern with "reports of violence committed by armed
ethnic Albanian groups against non-combatants and the illegal detention of
individuals, primarily ethnic Serbs, by those groups"[FN115].
-----------------------------------------------------------------------------------------------------------------
[FN113] Preamble, paras. 3-4.
[FN114] Preamble, para. 5.
[FN115] Preamble, para. 6.
-----------------------------------------------------------------------------------------------------------------
108. In its call for respect for human rights and international humanitarian
law[FN116], Resolution 53/164 condemned "the acts of violence, including
kidnappings, by armed ethnic Albanian groups, in particular against
non-combatants"[FN117]. Furthermore, it "strongly" condemned
"the overwhelming number of human rights violations committed by the
authorities of the Federal Republic of Yugoslavia (Serbia and Montenegro),
the police and military authorities in Kosovo, including summary executions,
indiscriminate and widespread attacks on civilians, indiscriminate and
widespread destruction of property, mass forced displacement of civilians,
the taking of civilian hostages, torture and other cruel, inhuman or
degrading treatment (...)"[FN118].
-----------------------------------------------------------------------------------------------------------------
[FN116] Operative part, para. 6, and cf. also operative part, paras. 14(e),
17, and 18 (a) and (b).
[FN117] Operative part, para. 9.
[FN118] Operative part, para. 8.
-----------------------------------------------------------------------------------------------------------------
109. Next, the General Assembly, by means of Resolution 53/241 (of
28.07.1999), turned its attention to the financing of the United Nations
Interim Administration Mission in Kosovo (UNMIK). The following resolution
of the General Assembly on the matter, — Resolution 54/183 (of 17.12.1999),
— again shifted attention to the situation of human rights in Kosovo. It
began by recalling "the background of years of repression, intolerance and
violence in Kosovo", and the persisting challenge to build therein "a
multi-ethnic society on the basis of substantial autonomy", as well as the
"continuing problems", the "human rights and humanitarian situation", and
the "regional dimensions of the crisis in Kosovo"[FN119].
-----------------------------------------------------------------------------------------------------------------
[FN119] Preamble, paras. 3-4.
-----------------------------------------------------------------------------------------------------------------
110. It then expressed its concern with, and condemned, the persistent and
"grave violations of human rights" and of international humanitarian law in
Kosovo, affecting ethnic Albanians[FN120]. There had been many reported
cases, - Resolution 54/183 added, - of "torture, indiscriminate and
widespread shelling, mass forced displacement of civilians, summary
executions and illegal detention of ethnic Albanians in Kosovo by the
Yugoslav police and military, [as well as] frequent instances of harassment,
periodic kidnapping and murder of ethnic Serb, Roma and other minorities of
Kosovo by ethnic Albanian extremists"[FN121].
-----------------------------------------------------------------------------------------------------------------
[FN120] Preamble, paras. 5-6.
[FN121] Preamble, paras. 7-8.
-----------------------------------------------------------------------------------------------------------------
111. As a consequence, - Resolution 54/183 went on, - "the entire population
of Kosovo has been affected by the conflict"[FN122]. It then warned that all
national minorities must benefit from "their full and equal rights"[FN123],
and further stressed "the urgent need to implement effective measures to
stop trafficking in women and children"[FN124]. In its operative part,
Resolution 54/183 called for a solution to the Kosovo crisis on the basis of
"general principles"[FN125], putting an end to actions leading de facto or
de jure to "ethnic cantonization"[FN126]. Moreover, it called upon all
actors "to refrain from all acts of violence"[FN127], and
"to facilitate the free and unhindered return to their homes, in safety and
with dignity, of all displaced persons and refugees, of whichever ethnic
background"[FN128].
-----------------------------------------------------------------------------------------------------------------
[FN122] Preamble, para. 9.
[FN123] Preamble, para. 9.
[FN124] Preamble, para. 12.
[FN125] Operative part, paras. 1-2.
[FN126] Operative par, para. 7.
[FN127] Operative par, para. 6.
[FN128] Operative part, para. 11.
-----------------------------------------------------------------------------------------------------------------
112. In addition, Resolution 54/183 requested humanitarian entities, and the
UNHCR and the Office of the U.N. High-Commissioner for Human Rights to
continue to take practical steps
"to meet the critical needs of the people in Kosovo and to assist in the
voluntary return of displaced persons to their homes in conditions of safety
and dignity"[FN129]. It further urged all parties involved in the Kosovo
crisis to support the efforts of UNICEF
"to ensure that all children in Kosovo return to school as soon as possible
and to contribute to the rebuilding and repair of schools destroyed or
damaged during the conflict in Kosovo"[FN130].
-----------------------------------------------------------------------------------------------------------------
[FN129] Operative part, para. 14.
[FN130] Operative part, para. 21.
-----------------------------------------------------------------------------------------------------------------
113. The General Assembly continued to occupy itself of the humanitarian
crisis of Kosovo. In the years preceding its request (by means of Resolution
63/3, of 08.10.2008) for an Advisory Opinion of this Court, it adopted a
series of fourteen resolutions on the financing of UNMIK[FN131]. And months
after its request for an Advisory Opinion of the ICJ, the General Assembly
adopted a new Resolution[FN132], again on the financing of UNMIK. The U.N.
General Assembly has, thus, just like the Security Council, been constantly
attentive to the evolving situation of Kosovo in recent years.
-----------------------------------------------------------------------------------------------------------------
[FN131] Namely, Resolution 54/245A of 23.12.1999; Resolution 54/245B of
15.06.2000; Resolution 55/227A of 23.12.2000; Resolution, 55/227B of
14.06.2001; Resolution 56/295 of 27.06.2002; Resolution 57/326 of
18.06.2003; Resolution 58/305 of 18.06.2004; Resolution 59/286A of
13.04.2005; Resolution 59/286B of 22.06.2005; Resolution 60/275 of
30.06.2006; Resolution 61/285 of 29.05.2007; and Resolution 62/262 of
20.06.2008; Resolution 63/295 of 30.06.2009; and Resolution 64/827 (general
distribution of 18.06.2010, and cf. doc. A/C.5/64/L.47, of 28.05.2010).
[FN132] Resolution 63/295, of 30.06.2009.
-----------------------------------------------------------------------------------------------------------------
3. The Economic and Social Council's Reiterated Expressions of Grave Concern
with the
Humanitarian Tragedy in Kosovo
114. Not only the Security Council and the General Assembly, but also the
Economic and Social Council (ECOSOC), likewise occupied itself with the
situation of human rights in Kosovo, in its more troubling moments. By means
of its Resolution 1998/272 (of 30.07.1998), ECOSOC approved the requests of
the old U.N. Commission on Human Rights that the special rapporteur on the
situation of human rights in Former Yugoslavia carry out missions in the
Federal Republic of Yugoslavia, including in Kosovo[FN133]. One year later,
in its Resolution 1999/232 (of 27.07.1999) ECOSOC again approved a request
of the former U.N. Commission on Human Rights that the aforementioned
special rapporteur conduct missions inter alia in Kosovo[FN134];
furthermore, ECOSOC endorsed the decision of the Commission on Human Rights
to request the special rapporteur "to make interim reports as appropriate
about his work in support of the Kosovo initiative of the United Nations
High Commissioner for Human Rights"[FN135].
-----------------------------------------------------------------------------------------------------------------
[FN133] Item (c) (iii), para. 21.
[FN134] Item (b) (iii).
[FN135] Item (c) (i).
-----------------------------------------------------------------------------------------------------------------
115. The former U.N. Commission on Human Rights, which used to report to
ECOSOC and the Secretary-General, issued two resolutions in 1994 expressing
its grave concern with the humanitarian tragedy in Kosovo. In its Resolution
1994/72 (of 09.03.1994), the Commission, "gravely" concerned at the
deteriorating human rights situation in Kosovo[FN136], strongly condemned in
particular
"the measures and practices of discrimination against and the violation of
the human rights of the ethnic Albanians of Kosovo, as well as the large
scale repression committed by the Serbian authorities"[FN137]. The
Commission demanded that these authorities "respect the human rights" of
ethnic Albanians in Kosovo, and further declared that "the best means to
prevent the possible escalation of the conflict"
was "to safeguard human rights, restore the autonomy of Kosovo and to
establish democratic institutions in Kosovo"[FN138].
-----------------------------------------------------------------------------------------------------------------
[FN136] Operative part, para. 25.
[FN137] Operative part, para. 26.
[FN138] Operative part, para. 27.
-----------------------------------------------------------------------------------------------------------------
116. Shortly afterwards, the Commission, recalling an ECOSOC
document[FN139], Resolution 1994/76 (also of 09.03.1994) again condemned
strongly the "discriminatory measures and practices as well as the
violations of human rights, committed by Serbian authorities against ethnic
Albanians in Kosovo[FN140], and urgently demanded that those authorities
"(a) Cease all human rights violations, discriminatory measures and
practices against ethnic Albanians in Kosovo, in particular arbitrary
detention and violation of the right to a fair trial and the practice of
torture and other cruel, inhuman and degrading treatment;
(b) Release all political prisoners and cease all persecution of political
leaders and members of local human rights organizations;
(c) Establish democratic institutions in Kosovo and respect the will of its
inhabitants as the best means of preventing the escalation of the conflict
there (.. .)"[FN141].
-----------------------------------------------------------------------------------------------------------------
[FN139] Doc. E/CN.4/1994/110, referring to the report of the Special
Rapporteur on the Situation of Human Rights in the Former Yugoslavia
(describing the "continuing deterioration" of that situation in Kosovo).
[FN140] Operative part, para. 1.
[FN141] Operative part, para. 2.
-----------------------------------------------------------------------------------------------------------------
117. The Commission, again recalling an ECOSOC document[FN142], in its
Resolution 1995/89 (of 08.03.1995) saw it fit to reiterate its deep concern
with the ongoing human rights situation in Kosovo, and to repeat its "strong
condemnation of "discriminatory measures and practices"[FN143] and its
urgent demands (supra) to the Serbian authorities to put an end to them and
to human rights violations, and to "respect the will of the inhabitants of
Kosovo"[FN144]. Next, in its Resolution 1996/71 (of 23.04.1996), the
Commission once again strongly urged the Serbian authorities "to revoke all
discriminatory legislation and to apply all other legislation without
discrimination, release all political detainees", and "allow the free return
of ethnic Albanian refugees to Kosovo"[FN145]. Furthermore, it urgently
demanded Serbian authorities to
"take immediate action to put an end to the repression of and prevent
violence against non-Serb populations in Kosovo, including acts of
harassment, beatings, torture, warrantless searches, arbitrary detention,
unfair trials, arbitrary unjustified evictions and dismissals (...)"[FN146].
-----------------------------------------------------------------------------------------------------------------
[FN142] U.N. doc. E/CN.4/1995/57, referring to the report of the special
rapporteur on the situation of human rights in the former Yugoslavia
(describing the brutalities and discriminatory measures perpetrated in
Kosovo).
[FN143] Such as mass dismissals of civil servants, discrimination against
ethnic Albanians in primary and secondary schools and University, dismissal
of doctors and other members of the medical profession from clinics and
hospitals, - generating forced migration.
[FN144] Operative part, paras. 29-31.
[FN145] Operative part, para. 25.
[FN146] Operative part, para. 26.
-----------------------------------------------------------------------------------------------------------------
4. The Secretary General's Reiterated Expressions of Grave Concern with the
Humanitarian Tragedy in Kosovo
118. Like other main organs of the United Nations (General Assembly,
Security Council, ECOSOC - supra), the Secretary General of the United
Nations also expressed on distinct occasions his grave concern with the
humanitarian tragedy in Kosovo. Thus, in his Report of 12.07.1999 on
UNMIK[FN147], he warned that
"The humanitarian consequences of the conflict on the people of Kosovo have
been profound. Out of a population estimated in 1998 to number 1.7 million,
almost half (800,000) have sought refuge in neighbouring Albania, the former
Yugoslav Republic of Macedonia and Montenegro during the past year. While
estimates vary, up to 500,000 persons may have been internally displaced.
Many internally displaced persons (IDPs) are in worse health than the
refugees, having spent weeks in hiding without food or shelter. Many
refugees and IDPs bear the scars of psychological trauma as well as physical
abuse.
As of 8 July 1999, more than 650,000 refugees had returned to Kosovo through
a combination of spontaneous and Office of the United Nations High
Commissioner for Refugees (UNHCR)-assisted movement. This leaves an
estimated 150,000 persons in neighbouring regions and countries, 90,000
evacuees in third countries and an unknown number of asylum-seekers. Those
who have not returned home will continue to require a high level of
assistance in their country of asylum and upon eventual return. Within
Kosovo, a still unknown number of individuals remain outside their homes.
(...)" (paras. 8-9).
-----------------------------------------------------------------------------------------------------------------
[FN147] UN doc. S/1999/779, of 12.07.1999, pp. 1-25.
-----------------------------------------------------------------------------------------------------------------
119. In the same Report, the U.N. Secretary General deemed it fit to add,
inter alia, that
"The adoption of Security Council resolution 1244 (1999) and the deployment
of KFOR and UNMIK has marked the end of a tragic chapter in the history of
the people of Kosovo. The task before the international community is to help
the people of Kosovo to rebuild their lives and heal the wounds of conflict.
Reconciliation will be a long and slow process. Patience and persistence
will be needed to carry it through" (para. 117).
120. In his following Report of 16.09.1999[FN148] on UNMIK, the Secretary
General pointed out that "[t]he level and nature of violence in Kosovo,
especially against vulnerable minorities, remains a major concern. Measures
taken to address this problem are having a positive effect, but continued
vigilance is necessary" (para. 4). The Report addressed some of the most
pressing measures to be taken:
"Housing surveys have been conducted in more than 90 per cent of the
war-affected villages. An estimated 50 thousand houses are beyond repair and
another 50 thousand have sustained damage of up to 50 per cent, but are
repairable. One of the most urgent tasks to be completed before winter is
the temporary rehabilitation of the 50 thousand repairable houses" (para.
11).
-----------------------------------------------------------------------------------------------------------------
[FN148] UN doc. S/1999/987, of 16.09.1999, pp. 1-12.
-----------------------------------------------------------------------------------------------------------------
121. To that end, UNMIK counted on the assistance of the UNHCR's emergency
rehabilitation program (para. 11). Another prioprity are, - the Secretary
General's Report added, - was "targeted assistance for women and children";
to that end, UNMIK counted on the assistance of UNHCR, UNICEF, and
international local non-governmental organizations, which were "implementing
a series of projects under a 'Kosovo Women's Initiative'" (para. 13).
Parallel to those two Reports, early in the same year of 1999, the Secretary
General also saw it fit to issue a statement, on 16.01.1999 (the day
following the massacre of Raçak), expressing his grave concern as follows:
"I am shocked to learn today of the alleged massacre of some 40 individuals,
apparently civilians, in Kosovo. (. ) I am gravely concerned at this latest
development and call for a full investigation by the competent authorities.
I appeal once again to all sides in Kosovo to refrain from any action that
would further escalate the tragic situation":
122. From 1999 onwards, the U.N. Secretary-General issued periodical and
numerous Reports on the evolving work of UNMIK. Early in this decade
(2002-2004), his Reports pursued the supervision of the agreed policy of
"standards before status"[FN149]. In the following period (2006-2008),
before the declaration of independence, the Secretary General drew the
attention of all concerned to the importance of putting an end to violence
for the future of Kosovo. Thus, in his Report of 05.06.2006[FN150], he
pondered that
"(...) Implementation of the standards is a measure of the commitment of the
political leaders and Provisional Institutions of Kosovo to realizing a
society where all people can live in dignity and without fear. (...) Real
progress in this regard remains an essential factor in determining progress
in the political process to determine Kosovo's future status. (...)
Reconciliation remains essential for the future of a multi-ethnic Kosovo as
well as stability in the region. Although all communities have a role in
improving the conditions under which all can live and work together in
harmony, the principal responsibility rests with the majority. (...)
(...) Violence will affect the future status process, and must not be
tolerated by any part of the society in Kosovo. (.. .)"[FN151].
-----------------------------------------------------------------------------------------------------------------
[FN149] Cf. SG, Report of 09.10.2002 (UN doc. S/2002/1126), para. 2; SG,
Report of 29.01.2003 (UN doc. S/2003/113), paras. 12 and 61; SG, Report of
16.01.2004 (UN doc. S/2004/71), para. 2.
[FN150] UN doc. S/2006/361, of 05.06.2006, pp. 1-9.
[FN151] Ibid., paras. 24 and 26-27, p. 8.
-----------------------------------------------------------------------------------------------------------------
123. In his following Reports on UNMIK, attention was increasingly turned to
the setting up of provisional institutions for democratic and autonomous
self-government, i.e., of public institution-building, so as to foster the
consolidation of the rule of law in a democratic society[FN152]. In one of
those Reports (that of 09.03.2007), the Secretary General stated:
"After almost eight years of United Nations interim administration, Kosovo
and its people need clarity on their future. (...) Moving towars a timely
conclusion of the Kosovo future status political process and a sustainable
solution to the future status of Kosovo should be a priority for the
international community as a whole.
Such a solution must entail a Kosovo that is stable and in which all
communities can coexist in peace. The use of violence by extremist groups in
Kosovo to achieve political objectives cannot be tolerated and should be
strongly condemned"[FN153].
-----------------------------------------------------------------------------------------------------------------
[FN152] Cf. Report of 01.09.2006 (UN doc. S/2006/707); Report of 20.11.2006
(UN doc. S/2006/906); Report of 09.03.2007 (UN doc. S/2007/134); Report of
29.06.2007 (UN doc. S/2007/395); Report of 28.09.2007 (UN doc. S/2007/582);
Report of 03.01.2008 (UN doc. S/2007/768).
[FN153] UN doc. S/2007/134, of 09.03.2007, paras. 24-25, p. 7.
-----------------------------------------------------------------------------------------------------------------
124. In the following Report (of 29.06.2007), the Secretary General took
note of the report presented to him by his Special Envoy, containing "his
recommendation of independence for Kosovo supervised initially by the
international community, and his settlement proposal"[FN154]. In another
Report (that of 20.11.2006), the Secretary General had already called upon
"the leaders and people of Kosovo" to remain engaged in the political
settlement, and added that "[i]t remains important for the Kosovo
authorities to take the progress achieved still further, and not to lose
sight of all the standards that are important to developing more stable and
effective institutions and to improving the delivery of services to all
people in Kosovo"[FN155].
-----------------------------------------------------------------------------------------------------------------
[FN154] UN doc. S/2007/395, of 29.06.2007, para. 2, p. 1, and docs. referred
to therein.
[FN155] UN doc. S/2006/906, of 20.11.2006, para. 24, p. 7.
-----------------------------------------------------------------------------------------------------------------
125. There is, at last, a series of Reports of the Secretary General,
covering developments pertaining to UNMIK since Kosovo's declaration of
independence of 17 February 2008[FN156]. Shortly after the adoption of the
declaration of independence by the Assembly of Kosovo on 17.02.2008, the
U.N. Secretary General, in his Report of 28.03.2008, took note of the
declaration (para. 3) and added that UNMIK continued "to operate on the
understanding that resolution 1244 (1999) remains in force" (para. 29), but
at the same time conceded that
"Kosovo's declaration of independence has had a profound impact on the
situation in Kosovo. The declaration of independence and subsequent events
in Kosovo have posed significant challenges to the ability of UNMIK to
exercise its administrative authority in Kosovo" (para. 30).
-----------------------------------------------------------------------------------------------------------------
[FN156] Cf. SG, Report of 28.03.2008 (UN doc. S/2008/211); SG, Report of
12.06.2008 (UN doc. S/2008/354); SG, Report of 15.07.2008 (UN doc.
S/2008/458); SG, Report of 24.11.2008 (UN doc. S/2008/692); SG, Report of
17.03.2009 (UN doc. S/2009/149); SG, Report of 10.06.2009 (UN doc.
S/2009/300); SG, Report of 30.09.2009 (UN doc. S/2009/497); and SG, Report
of 05.01.2010 (UN doc. S/2010/5).
-----------------------------------------------------------------------------------------------------------------
126. In his subsequent Report on UNMIK (of 12.06.2008), the Secretary
General took note of the Constitution adopted by the Assembly of Kosovo
09.04.2008, to enter into force on 15.06.2008 (para. 7). This posed, in his
view, "significant challenges" and "operational implications" for UNMIK to
exercise its "administrative authority" (paras. 10, 14 and 17). In the
following Report (of 15.07.2008), he added that "the authorities in Pristina
have taken a number of steps to assert their authority in Kosovo" (para. 4),
and UNMIK has been "confronted with a substantially changed situation in
Kosovo" (para. 29).
127. The next Report (of 24.11.2008) of the Secretary General acknowledged
the difficulty to reconcile Security Council resolution 1244 (1999) and the
Kosovo Constitution (para. 21). At last, in a following Report (of
10.06.2009), the Secretary General added that, although, to the Kosovo
authorities, Security Council resolution 1244 (1999) no longer appeared
relevant (para. 2), the United Nations would "continue to adopt a position
of strict neutrality on the question of Kosovo's status" (para. 40).
128. Thus, it clearly ensues from these and the previous Reports that, to
start with, the main concern of the U.N. Secretary General and UNMIK was
with the safety and the conditions of living of the population. It then
turned to public institution-building. International administration of
territory does not appear as an end in itself, - not international
administration of territory for territorial administration's sake, - but
rather as a means to an end, namely, to secure the well-being of the
"people" or the "population", and the inhabitants' living under the rule of
law in a democratic society. As for the more recent Reports, issued by the
time of Kosovo's declaration of independence, and shortly afterwards, it is
difficult to escape the impression that, by then, Kosovo was already being
envisaged as a State in statu nascendi.
5. General Assessment
129. From the review above, it is clear that the United Nations Organization
as a whole was and has been concerned with the humanitarian tragedy in
Kosovo. Each of its main organs (General Assembly, Security Council, ECOSOC
and General Secretariat) expressed on distinct occasions its grave concern
with it, and each of them was and has been engaged in the solution of the
crisis, within their respective spheres of competence. Such domains of
competence are not competing, but rather complementary, so as to fulfill the
purposes of the United Nations Charter, in the light of the principles
proclaimed therein (Articles 1-2). The crisis concerned the international
community as a whole, and the United Nations Organization as a whole thus
rightly faced it.
130. The International Court of Justice, the principal judicial organ of the
United Nations (Article 92 of the U.N. Charter), has now been called upon to
pronounce on one specific aspect, namely, that of the conformity, or
otherwise, with international law, of the declaration of independence of
Kosovo. In the exercise of its advisory function, and bearing in mind its
high responsibility as the World Court, it has rightly refused to indulge
into a false and fabricated problem of delimitation of competences between
the main organs of the United Nations. It has kept in mind the principles
and purposes of the U.N. Charter, together with general international law.
It has acted as it should.
VIII. Ex Injuria Jus Non Oritur
131. According to a well-established general principle of international law,
a wrongful act cannot become a source of advantages, benefits or else rights
for the wrongdoer[FN157]: ex injuria jus non oritur. In the period extending
from the revocation of Kosovo's autonomy in 1989 until the adoption of the
U.N. Security Council's resolution 1244(1999), successive grave breaches of
international law were committed by all concerned. These grave breaches,
from all sides, seriously victimized a large segment of the population of
Kosovo. They comprised grave violations of human rights and of international
humanitarian law from virtually all those who intervened in Kosovo's crisis.
-----------------------------------------------------------------------------------------------------------------
[FN157] P. Guggenheim, "La validité et la nullité des actes juridiques
internationaux", 74 Recueil des Cours de l'Académie de Droit International
de La Haye (1949) pp. 226-227, 230-231 and 256; H. Lauterpacht, Recognition
in International Law, Cambridge, University Press, 1947, pp. 420-421.
-----------------------------------------------------------------------------------------------------------------
133. In the course of the advisory proceedings before the Court, a couple of
participants invoked the principle ex injuria jus non oritur, each one
referring to one of the successive wrongful acts, in the course of the
decade 1989-1999, and up to Kosovo's declaration of independence of 17
February 2008. None of them referred to the successive injuriae as a whole,
- including three unwarranted NATO bombings of Kosovo in 1999, outside the
framework of the U.N. Charter, and also generating "casualties" among
hundreds of innocent civilians. There occurred, in fact, injuriae committed
everywhere in the region as a whole, coming from a variety of sources (State
and non-State alike).
134. The principle ex injuria jus non oritur applies to all those grave
breaches, to the atrocities perpetrated against the population, as well as
to the unwarranted use of force in the bombings of Kosovo (likewise causing
numerous innocent victims in the civilian population), outside the framework
of the U.N. Charter. U.N. Security Council resolution 1244(1999) cannot thus
be read as endorsing wrongful acts of any origin or kind, nor as taking
advantage of them. Quite on the contrary: Security Council resolution
1244(1999) reinserted the handling of Kosovo's humanitarian crisis within
the framework of the U.N. Charter, in one of the great challenges to the
U.N. as a whole (not only its Security Council) in our days. It can hardly
be doubted that the Security Council, proceeding on the basis of chapter VII
of the United Nations Charter, by means of its resolution 1244(1999), acted
in a decisive way for the restoration and preservation of peace in Kosovo
and the whole region.
135. In establishing UNMIK by that resolution, the Security Council has been
careful not to anticipate or prejudge the outcome of the interim
administration of Kosovo. Its balanced position is transparent in the terms
of its resolution 1244(1999) as a whole: nowhere it professed an obsession -
proper of traditional international law of the past – with territory to the
detriment of the people, of the local population. It likewise took people
into account. It had the principle ex injuria jus non oritur in mind.
136. This general principle, well-established as it is, has at times been
counterbalanced by the maxim ex factis jus oritur[FN158]. This does not mean
that Law can emerge out of grave violations of international humanitarian
law, but rather as a response or reaction to these latter. In the conceptual
universe of international law, as of Law in general, one is in the domain of
Sollen, not of Sein, or at least in that of the tension between Sollen and
Sein. In is inconceivable that States' rights can arise, or be preserved, by
means of a consistent pattern of grave violations of human rights and of
international humanitarian law.
-----------------------------------------------------------------------------------------------------------------
[FN158] H. Lauterpacht, "Règles générales du droit de la paix", 62 Recueil
des Cours de l'Académie de Droit International de La Haye (1937) pp.
287-288; P. Guggenheim, "La validité et la nullité.", op. cit. supra n.
(105), p. 231.
-----------------------------------------------------------------------------------------------------------------
137. Thus, the maxim ex factis jus oritur does not amount to a carte
blanche, as Law plays its role also in the emergence of rights out of the
tension between Sollen and Sein. In the present stage of evolution of the
law of nations (le droit des gens), it is unsustainable that a people should
be forced to live under oppression, or that control of territory could be
used as a means for conducting State-planned and perpetrated oppression.
That would amount to a gross and flagrant reversal of the ends of the State,
as a promoter of the common good.
IX. Conditions of Living of the Population in Kosovo (since 1989): The
Submissions Adduced in the Present Advisory Proceedings before the Court
138. In respect of the present request by the General Assembly for an
Advisory Opinion of the ICJ, it seems to me wholly warranted, and indeed
necessary, to turn attention to the conditions of living - or rather, of
surviving, - of the population in Kosovo, ever since this latter was
deprived of its autonomy in 1989 and until the U.N. international
administration of the territory was established in 1999 by means of the
adoption of the aforementioned resolution 1244(1999) of the Security
Council. This crucial aspect was in fact object of attention, and was
submitted to the cognizance of the Court, in the course of the present
advisory proceedings, in both their written and oral phases.
1. Submissions during the Written Phase of Proceedings
139. In the course of the written phase, some of the participants in the
proceedings sought to provide - apart from a descriptive account of the
facts - an evaluation of the events which took place in that decade
(1989-1999), irrespective of their conclusions on the central question at
issue. Thus, in its Written Statement, Germany, for example, adduced that
the Yugoslav Government had created "a climate of absolute lawlessness in
the region" and that
"the responsible authorities not only failed to protect the life and
physical integrity of their citizens of Albanian ethnicity, but that these
citizens had become objects of constant prosecution, subjected to the most
complete arbitrariness. . . . It was clearly conveyed to all ethnic
Albanians that their presence was undesirable in Kosovo and that they would
do better to leave the region for good" (pp. 16-17). Germany then concluded
that "[the] facts (...) speak for themselves", fully confirming that "at the
beginning of 1999 there indeed existed, as observed and documented by
knowledgeable and impartial third-party institutions, a humanitarian
emergency, caused by serious crimes deliberately and purposefully committed
by the security and military forces of the FRY, and that the criminal
strategy gained unprecedented momentum when the KVM Observer Mission was
withdrawn" (p. 19).
140. Likewise, in its Written Comment, the United Kingdom stressed that
those events of great violence (between 1989 and 1999) were "horrific,
well-documented and proven abuses of human rights, abuses that have been
described and condemned by the U.N. General Assembly, the Security Council,
by various U.N. treaty organs (such as the Committee on the Elimination of
Racial Discrimination [CERD], and the Committee against Torture [CAT]), the
former U.N. Commission on Human Rights, U.N. special rapporteurs (from 1992
to 1997), and by the International Committee of the Red Cross" (para. 14).
The United Kingdom also referred to these sources in its Written Statement (paras.
2.25-2.40).
141. The Netherlands, on its part, recalling, in its Written Statement, the
findings by the ad hoc International Criminal Tribunal for the Former
Yugoslavia (ICTFY) Milutinovic et al. case (2009 - cf. infra), pointed out
that there had been "campaigns of terror and violence" which resulted in
"the denial of fundamental human rights in Kosovo", amounting to a pattern
of breaches which
"was serious because it was systematic, the joint criminal enterprise, in
particular, evidencing that the breach was carried out in an organized and
deliberate way. The breach was also serious in that it was gross: the number
of expelled Kosovo Albanians and the nature and extent of the violence
directed against them constituted evidence of the flagrant nature of the
breach, amounting to a direct and outright assault on the values protected"
(para. 3.12).
142. Norway, in turn, in its Written Statement, informed the ICJ that, in
its letter of recognition of Kosovo (by the Royal Decree of 28.03.2008), it
referred to the comprehensive assessment of evidence carried out by the
ICTFY in the Milutinovic et al. case (2009). And, in its Written Comment,
Norway further recalled that the Rambouillet Accords (of 1999) provided that
Kosovo's final status should be determined on the basis of the "will of the
people".
143. In its Written Statement, in the same line of concern, Albania referred
to the report published by the International Commission of Experts to
indicate that "through a widespread and systematic campaign of terror and
violence, the Kosovo Albanian population was to be forcibly displaced both
within and without Kosovo"; the purpose of such a campaign would have been
to "displace a number of [Kosovo Albanians] sufficient to tip the
demographic balance more toward ethnic equality and in order to cow the
Kosovo Albanians into submission" (para. 29).
144. Albania referred to systematic repression, daily human rights
violations and discriminatory State policies (between 1990 and 1995 - para.
11); it further invoked the reports of the U.N. Special Rapporteur on Human
Rights in the Former Yugoslavia, and of Human Rights Watch (1997-1998, -
paras. 18 and 20). Moreover, it also invoked the former U.N. Commission on
Human Rights' resolution 1998/79, calling upon the Serbian authorities to
put an end to torture and ill-treatment of persons under detention (para.
18). Albania at last added that "the intention to reduce the Albanian
population in Kosovo to about 600,000 by killing members of the group or
forcefully expelling them", was "known to foreign officials, and reportedly
have been publicly uttered by Serbian officials" (para. 29). This concern
was retaken by a handful of participants in the course of the oral phase of
the present proceedings (cf. infra).
145. But still in the written phase of the proceedings, in its Written
Statement Austria referred to various documentary sources, including the
2009 findings of the ICTFY in the Milutinovic et al. case, confirming the
massive violations of human rights of international humanitarian law in
Kosovo, as from the revocation of its autonomy in 1989 onwards, until the
perpetration of crimes against humanity in 1999 (paras. 5-9). In its Written
Statement, Estonia likewise observed that the long-lasting refusal of
internal self-determination suffered by the Kosovar people was accompanied
by grave violations of human rights and ethnic cleansing, as disclosed in
various documentary U.N. sources (paras. 6-9).
146. Poland, likewise, drew attention, in its Written Statement, to the
systematic and large-scale violations of human rights and international
humanitarian law in Kosovo along the nineties, marked by the spreading of
ethnic cleansing, forced displacement of people, arbitrary detentions and
extra-legal executions, forced disappearances of persons, and other
outbreaks of violence directed against Kosovo's civilian population (as
established by the ICTFY, Trial Chamber, in its 2009 Judgement in the
Milutinovic et al. case), rendering the situation of Kosovo unique and sui
generis. To Poland, all this humanitarian tragedy should be taken into
account in considering Kosovo's declaration of independence of 17 February
2008 (paras. 4.5.1 and 5.2.2.1).
147. Further references to the grave and systematic violations of human
rights in Kosovo were made by Switzerland, in its Written Statement, which
also referred to General Assembly resolutions and the ICTFY findings in the
Milutinovic et al. case (supra - paras. 81-85). The United States, likewise,
recalling a variety of U.N. documentary sources (General Assembly and
Security Council, the former U.N. Commission on Human Rights, the U.N. High
Commissioner for Human Rights, the ICTFY), observed in its Written Statement
that the whole factual background of the massive violence and repression
along the nineties was relevant for considering Kosovo's declaration of
independence of 17.02.2008 (II-III, paras. 8-19).
148. Slovenia also, in its Written Statement, mentioned the systematic
repression of Kosovo Albanians, as one of the factors that led to its
recognition of Kosovo on 05.03.2008 (para. 5). Luxembourg, in its Written
Statement, also took into account the factual background of the acute
humanitarian crisis in Kosovo in the nineties, especially the late nineties,
which called for a response of the international community (para. 6 n. 1).
And Finland, also recalling the findings of the ICTFY in the Milutinovic et
al. case (supra), pondered in its Written Statement that the factual
background of the situation in Kosovo during the period 1989-2007 was to be
taken into account for the consideration of its declaration of independence
of 17.02.2008. In Finland's view, that factual situation was inserted into
the violent break-up of Yugoslavia, within which the deliberate policy of
repression and persecution of Kosovo Albanians along the decade 1989-1999
(seeking to render them defenceless) took place, culminating, in the spring
of 1999, in massive displacement of people in and from Kosovo (paras.
10-11).
2. Submissions during the Oral Phase of Proceedings
149. The factual background of the grave humanitarian crisis in Kosovo was
also brought to the ICJ's attention in the oral phase of the present
advisory proceedings. The matter was retaken by participants, - irrespective
of their conclusions on Kosovo's declaration of independence of 17.02.2008,
- in the public sittings of the ICJ of the first half of December 2009.
Thus, in its oral arguments, (present-day) Serbia, much to its credit,
regretted the tragedies and pain provoked by the conflicts of 1998-1999; it
conceded that there was ethnic cleansing in the city of Pristina, and all
this - the generalized violence of State and non-State actors - led to the
establishment in 1999 of the international administration of territory, and
to the purported criminal sanction of individuals responsible for the grave
breaches of human rights and International Humanitarian Law[FN159].
150. On their part, Kosovo's authorities, after recalling persecutions in
the twenties, the fifties and the sixties, added that the forcible removal,
by intimidation, of Kosovo's autonomy in 1989 by S. Milosevic led to the
"humanitarian catastrophe" of 1998-1999, when there were large scale
discrimination, grave human rights violations, war crimes, crimes against
humanity, ethnic cleansing, massive refugee flows, loss of life and great
suffering, - all rendering impossible for the people of Kosovo to
contemplate a future within Serbia[FN160]. Albania, likewise, referred to
the illegal deprivation of Kosovo's autonomy which led to those systematic
and widespread violations of human rights, also including, in addition to
ethnic cleansing, summary executions, torture and rape, forced disappearance
of persons, forceful displacement of persons, in the hands of Serbian forces
and paramilitaries[FN161]. Albania stated that over 1,5 million Kosovar
Albanians were forcibly expelled from their homes, and argued that the
denial of internal self-determination of Kosovo points to its
independence[FN162].
-----------------------------------------------------------------------------------------------------------------
[FN159] ICJ, doc. CR 2009/24, of 01.12.2009, pp. 33-34.
[FN160] ICJ, doc. CR 2009/25, of 02.12.2009, pp. 15-19.
[FN161] ICJ, doc. CR 2009/26, of 02.12.2009, pp. 8-9.
[FN162] Ibid., pp. 9 and 31.
-----------------------------------------------------------------------------------------------------------------
151. Denmark also singled out the tragic events of the nineties; it
contended that those gross human rights violations, led to the adoption of
resolution 1244 (1999) of the Security Council, so as to address the real
and daily needs of the "people" of Kosovo[FN163]. Brazil identified, in the
adoption of Security Council resolution 1244(1999), a "clear rejection", by
the U.N. "collective security system", of "the use of the veil of
sovereignty by any State to perpetrate heinous crimes against its own
population"[FN164]. In the view of Spain, the grave situation of violations
of human rights, of International Humanitarian Law, and of the rights of
minorities in Kosovo, was "settled" in 1999, with the adoption of Security
Council resolution 1244 (1999)[FN165]. Russia, in its turn, stated that
resolution 1244 (1999) of the Security Council was the result of the tragedy
which fell upon Kosovo, of the conflict which victimized its "community",
and of the acts of terrorism of the Kosovo Liberation Army (KLA)[FN166].
-----------------------------------------------------------------------------------------------------------------
[FN163] ICJ, doc. CR 2009/29, of 07.12.2009, pp. 66 and 74-75.
[FN164] ICJ, doc. CR 2009/28, of 04.12.2009, p. 17.
[FN165] ICJ, doc. CR 2009/30, of 08.12.2009, p. 18.
[FN166] ICJ, doc. CR 2009/30, of 08.12.2009, p. 45.
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152. The United States, on its part, argued that Kosovo, having suffered a
tragedy, marked by oppression and massive and systematic abuses of human
rights, became detached from Serbia[FN167]. In turn, Croatia stressed that
the illegal removal of the autonomy of Kosovo was followed by the systematic
repression and grave violations of the human rights of its population,
which, in turn, were followed by the U.N. international administration of
Kosovo and the development, thereunder, of its self-administration[FN168];
in Croatia's view, Kosovo has now elements of statehood, and all this
development should be taken into account by the ICJ[FN169].
-----------------------------------------------------------------------------------------------------------------
[FN167] ICJ, doc. CR 2009/30, of 08.12.2009, pp. 31 and 33.
[FN168] ICJ, doc. CR 2009/29, of 07.12.2009, p. 57.
[FN169] Ibid., p. 61.
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153. Jordan recalled the well-documented history in Kosovo of
discrimination, police brutality, arbitrary imprisonment, torture, ethnic
cleansing, war crimes and crimes against humanity, victimizing the "people"
of Kosovo, as from the denial of its autonomy in 1989; it further recalled
that Kosovo's declaration of independence of 17.02.2008 provided for its
international supervision and human rights guarantees[FN170]; Jordan further
contended that, in these circumstances, the "people" of Kosovo are entitled
to independence, emerged within the context of the disintegration of the
SFRY in 1991[FN171] ' The Netherlands, likewise, warned that there was an
atmosphere of terror in Kosovo, with the killings, sexual assaults and
forcible displacements; those grave breaches by Serbia, - it added, -
generated the lawful exercise by the "people" of Kosovo of external
self-determination, and the recognition of such right by the ICJ would in
its view contribute to peace and stability in the region[FN172].
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[FN170] ICJ, doc. CR 2009/31, of 09.12.2009, pp. 28-31.
[FN171] Ibid., pp. 30-32, 36-37, 39 and 41.
[FN172] ICJ, doc. CR 2009/32, of 10.12.2009, pp. 8, 11, 13 and 16.
-----------------------------------------------------------------------------------------------------------------
154. In the view of Finland, the atrocities perpetrated in Kosovo render it
necessary to create the conditions wherein Kosovo's "communities" can live
in peace and justice; hence, with the impossibility of returning to the
statu quo ante, the emergence of the State of Kosovo, with its declaration
of independence of 17.02.2008[FN173]. The United Kingdom, on its part, after
recalling the "human rights catastrophe" which followed the revocation of
Kosovo's autonomy in 1989, argued that secession is not regulated by
international law, territorial integrity applies only to international
relations, Article 1 of the two U.N. Covenants on Human Rights is not
limited to decolonization cases only, and the stability which prevails in
the region today flows, in its view, from Kosovo's independence[FN174].
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[FN173] ICJ, doc. CR 2009/30, of 08.12.2009, pp. 52-53, 61 and 64.
[FN174] ICJ, doc. CR 2009/32, of 10.12.2009, pp. 42, 50 and 54.
-----------------------------------------------------------------------------------------------------------------
155. All the aforementioned participants, as just seen, saw it fit to lay
particular emphasis on the conditions of living - actually, of surviving, -
of the population of Kosovo in the period concerned, namely, as from the
revocation by Serbia of Kosovo's autonomy (constitutionally ensured since
1974) in 1989, that led to the great suffering imposed upon the population
throughout a whole decade, until 1999. I feel obliged to leave on the
records this aspect of the substantial advisory proceedings before this
Court (written and oral phases), as, for reasons which escape my
comprehension, they are not even referred to in the present Advisory Opinion
of the Court. Significantly, that suffering of the population of Kosovo has
now found judicial recognition, to which I shall turn next.
X. Judicial Recognition of the Atrocities in Kosovo
156. As already indicated, the recent decision of the ICTFY (Trial Chamber)
in the Milutinovic et al. case (2009), was in fact referred to, in the
course of the written and oral phases of the present proceedings before the
ICJ, by several participants (cf. supra). A careful reading of the judgment
of the ICTFY (Trial Chamber) of 26 February 2009 discloses facts, determined
by it, which appear to me of relevance to the ICJ for the purposes of the
requested Advisory Opinion. The Trial Chamber of the ICTFY was very
attentive to the atrocities perpetrated in Kosovo along the nineties. In my
view, the ICJ, in the same line of thinking, cannot make abstraction of
them.
157. In its judgment of 26 February 2009 in the Milutinovic et al. case, the
Trial Chamber of the ICTFY found that there had been in Kosovo, in the
period concerned, a "joint criminal enterprise", with the intent to commit
crimes or to cover them up (paras. 95-96). The targeted groups - the victims
- were civilians (para. 145). By means of the suppression of Kosovo's
autonomy and of that "joint criminal enterprise", Kosovo was placed firmly
under the control of Serbian authorities, and the Kosovo Albanian population
became object of repressive and discriminatory practices, which led to the
emergence of the KLA (paras. 211-213 and 222). In 1990, Kosovo had already
become a "police State", with detentions and restrictions on the freedom of
information; in 1991 professors and officials of the University of Pristina
were removed and replaced by non-Albanians (paras. 224-225). By then, a
system of discrimination against Kosovo Albanian workers was already
imposed, and maintained throughout the nineties (paras. 226-228).
158. State-sanctioned discrimination took place even in the workplace, in
labour relations; it was reported in the United Nations in 1992 the
"dismissal of thousands of Kosovo Albanian workers, and the effect of the
Law on Labour Relations under Special Circumstances'", as well as "the
measures taken by the Serbian authorities in Kosovo" (paras. 229-230). As
from 1989, "laws, policies and practices were instituted that discriminated
against the Albanians, feeding into local resentment and feelings of
persecution" (para. 237). Those fears increased in 1996, with the emergence
of the KLA, and its actions thereafter (para. 237).
159. Furthermore, impunity prevailed, as the local judicial system was not
effective "in investigating, prosecuting, and punishing those responsible
for committing serious crimes against the civilian population" (para. 569).
As a result of all this, and particularly of the "excessive and
indiscriminate force used by the forces of the FRY and Serbia in 1998",
massive forced displacement took place: the United Nations (its High
Commissioner for Human Rights) estimated that 285,500 people had been
internally displaced towards the end of 1998 (paras. 913 and 918-919). In
its resolution 1199 (1998), of 23.09.1998, the Security Council expressed
its "grave concern" about "the excessive and indiscriminate use of force by
Serbian security forces and the Yugoslav army" (para. 916). The Trial
Chamber of the ICTFY established the occurrence of an armed conflict on the
territory of Kosovo in 1998-1999 (para. 1217).
160. Last but not least, the Trial Chamber of the ICTFFY saw it fit to refer
also to the efforts undertaken to reach a peaceful settlement of the
humanitarian crisis of Kosovo. It recalled, in this connection, that, at the
Conference of Rambouillet (1999), Kosovo Albanians - unlike S. Milosevic for
Serbia - signed the agreement only after the inclusion of chapter 8,
foreseeing the taking into account, for the determination of the status of
Kosovo, first and foremost, "the will of the people in Kosovo" (para. 401).
XI. Further Evidence of the Atrocities in Kosovo: the Centrality of the
Sufferings of the People
161. The substantial evidence obtained by the ICTFY in its judgment of 26
February 2009 in the Milutinovic et al. case (2009), is by no means the only
one. A detailed account of the systematic and gross violations of the rights
of workers in Kosovo (as from 1990), in flagrant breach of the fundamental
principle of equality and non-discrimination, and in further "violation of
the principles of the rule of law", is provided in the detailed Written
Comments (of 17.07.2009) of Slovenia, lodged with this Court. Other sources
could be referred to[FN175].
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[FN175] For example, Amnesty International opened its Report on Kosovo of
24.07.2006 with the warning that "respect for the human rights of all,
without discrimination, should lie at the heart of the talks process. This
should be a central and unifying consideration in all decisions and
agreements made about the future of Kosovo" (para. 1). Almost one year
later, in its subsequent Report on Kosovo of May 2007, Amnesty
International, dwelling upon the ongoing forced displacement of persons,
further warned that "[i]n addition to ongoing ethnically motivated attacks,
impunity for past inter-ethnic violence - including war crimes, and in
particular impunity for 'disappearances' and abductions, and continued
impunity for perpetrators of the ethnic violence of March 2004, - continues
to provide a massive barrier to minority return" (par. 3.2). - On its part,
the 1999 Report of the OSCE Kosovo Verification Mission, provided an account
of its findings in the period ranging from October 1998 to June 1999. In its
foreword, Justice Louise Arbour warned that "the violence in Kosovo was
horrific, and again proved devastating for the many ordinary people who
became its victims" (p. 1). The atrocities comprised arbitrary arrest and
detention, denial of fair trial, torture, rape and other forms of sexual
violence (sometimes applied as a weapon of war), killings, targeting of
children, forced expulsion on a massive scale, destruction of property and
looting, - all "highly organized and systematic". Acts of utmost violence
perpetrated in, e.g., Rogovo, Rakovina, Kacanik, Raçak, Pristina. According
to the OSCE Report, by June 1999 over 90 per cent of the Kosovo Albanian
population (over 1.45 million people) had been displaced by the conflict. In
its summary (p. 2), the same Report stressed that "[o]n the part of the
Yugoslav and Serbian forces, their intent to apply mass killing as an
instrument of terror, coercion or punishment against Kosovo Albanians was
already in evidence in 1998, and was shockingly demonstrated by incidents in
January 1999 (including the Raçak mass killing and beyond)". - In its turn,
the Report of Human Rights Watch Humanitarian Law Violations in Kosovo,
covering the period February-September 1998, gave a detailed account of
grave breaches of International Humanitarian Law which took place (forced
disappearances, killings, destruction of villages, arbitrary arrests,
looting of homes by the police, burning of crops, taking of hostages and
extrajudicial executions), victimizing mainly civilians, including
"indiscriminate attacks on women and children"176. Special police forces
acted in a planned, quick and well-organized manner, and "autopsies were not
performed on any of the victims"176. There was a sustained pattern of
serious crimes (duly reported) committed by the Serbian special police, in
distinct localities of Kosovo176. Summing up, the Report attributed the
majority of those acts of brutality to the government forces of the Serbian
special police (MUP) and the Yugoslav Army (VJ), under the command of
Yugoslav President Slobodan Milosevic; it attributed violence also, on a
"lesser scale", to the Kosovo Albanian insurgency, the Kosovo Liberation
Army (KLA), and added: - "The primary responsibility for gross government
abuses lies with Slobodan Milosevic, who rode to power in the late eighties
by inciting Serbian nationalist chauvinism around the Kosovo issue"; Human
Rights Watch, Humanitarian Law Violations in Kosovo, London/N.Y., HRW, 1998,
pp. 3-22 and pp. 26-65.
-----------------------------------------------------------------------------------------------------------------
162. The argument that, since the utmost violence of 1998-1999 one decade
has passed and the "conflict is over", somehow "buried" into oblivion, and
that there is peace today in Kosovo and the aforementioned repression
belongs to the past, is in my view superficial, if not unsustainable. It
leads precisely to approach the matter from a "technical" point of view,
making abstraction of the human sufferings of the recent past. The effects
of oppression are still present, and account for Kosovo's declaration of
independence on 17 February 2008. One cannot erase the massive violations of
human rights and of International Humanitarian Law of the recent past, by
invoking the passing of time. In this respect, in its Written Comment
submitted to this Court, France has aptly pondered that
"[w]hatever the political changes seen in Serbia since the fall of the
Milosevic régime, the trauma and scars of the past were (and still are) far
from healed. The brutal repression - and international crimes accompanying
it - to which the Kosovar population was subjected in 1998-1999 could but
prevent it from contemplating a future within the Serbian State, so deep the
psychological wounds go (and still do) and so well entrenched in minds was
(and still is) the memory of the atrocities committed. There are crimes
which cannot fade from the individual and collective memory" (para. 18).
163. To attempt to make abstraction of the suffering of the people or
population of Kosovo in the years of repression is an illusory exercise. The
scars of the bloodshed will take a long time to heal, they will take
generations to heal. The experience, in this connection, of the recent
adjudication by international human rights tribunals such as the
Inter-American and the European Courts of Human Rights, of cases of
massacres lodged with them, contains invaluable lessons, worthy of attention
and deserving of being rescued in this respect. One of such lessons lies in
the enhanced centrality of the position of those victimized by human
cruelty, and of their suffering.
164. To recall but one example of the recent cycle of cases of massacres
brought before, and adjudicated by, international human rights tribunals (a
noticeable advance of the old ideal of the realization of international
justice), - in the case of the Moiwana Community versus Suriname, the
massacre of the members of that Community (by State-organized, trained and
armed perpetrators) had taken place in late 1986, but only two decades
later, their case, lodged with the Inter-American Court of Human Rights, was
adjudicated by this latter (Judgment on the merits, of 15.06.2005). In my
Separate Opinion in the Moiwana Community case, I deemed it fit to ponder:
"The circumstances of the present case of the Moiwana Community versus
Suriname invite one to a brief reflection, going beyond its confines. Well
before, as well as after, the attainment of statehood by Suriname, the
existence of the Maroon peoples (like the Saramakas in the Aloeboetoe case
and the N'djukas in the present Moiwana Community case, before this Court)
has been marked by suffering, in their constant struggle against distinct
forms of domination.
The projection of human suffering in time (its temporal dimension) is
properly acknowledged, e.g., in the final document of the U.N. World
Conference against Racism, Racial Discrimination, Xenophobia and Related
Intolerance (Dunbar, 2001), its adopted Declaration and Programme of Action.
In this respect, it began by stating that
'We are conscious of the fact that the history of humanity is replete with
major atrocities as a result of gross violations of human rights and believe
that lessons can be learned through remembering history to avert future
tragedies' (para. 57).
It then stressed the 'importance and necessity of teaching about the facts
and truth of the history of humankind', with a view to 'achieving a
comprehensive and objective cognizance of the tragedies of the past' (par.
98). In this line of thinking, the Durban final document acknowledged and
profoundly regretted the 'massive human suffering' and the 'tragic plight'
of millions of human beings caused by the atrocities of the past; it then
called upon States concerned 'to honour the memory of the victims of past
tragedies', and affirmed that, wherever and whenever these occurred, 'they
must be condemned and their recurrence prevented' (par. 99).
The Durban Conference final document attributed particular importance to
remembering the crimes and abuses of the past, in emphatic terms:
'We emphasize that remembering the crimes or wrongs of the past, wherever
and whenever they occurred, unequivocally condemning its racist tragedies
and telling the truth about history, are essential elements for
international reconciliation and the creation of societies based on justice,
equality and solidarity' (para. 106). (...)
In the present case of the Moiwana Community, the handicap of, or harm
suffered by, the survivors of the massacre and close relatives of the direct
victims, of the massacre perpetrated on 29 November 1986 in the N'djuka
Maroon village of Moiwana, is a spiritual one. Under their culture, they
remain still tormented by the circumstances of the violent deaths of their
beloved ones, and the fact that the deceased did not have a proper burial.
This privation, generating spiritual suffering, has lasted for almost twenty
years, from the moment of the perpetration of the 1986 massacre engaging the
responsibility of the State until now. The N'djukas have not forgotten their
dead. (...) Nor could they. (...)
For the first time in almost two decades, since the massacre at Moiwana
village in 1986, the survivors found redress, with the present Judgment of
the Inter-American Court. In the meantime, the N'djukas did not, and could
not, forget their innocent and defenceless beloved relatives, murdered in
cold blood. And they will never forget them, but their suffering - theirs
together with their dead - has now been at least judicially recognized.
Their long-standing longing for justice may now be fulfilled, so that they
can rest in peace with their beloved deceased.
(...) The usual blindness of power-holders as to human values has not
succeeded - and will never succeed - in avoiding human thinking to dwell
upon the conception of human mortality, to reflect on the enigmas of
existence and death. (...)
Human thinking on mortality has, in fact, accompanied humankind in all ages
and cultures. In the old Paleolithic times, there was a cult to the memory,
and in ancient Egypt the living and their dead remained close
together[FN176]. In ancient Greece, a new sensitivity towards post mortem
destiny arose[FN177]. It need only be recalled, as two examples among many,
namely, Plato's contribution, in securing the continuity of human experience
through the immortality and transmigration of the soul, as well as Budha's
contribution of detaching human suffering from in his view what originates
it, the desires[FN178]. The myth of the 'eternal return' (or repetition), so
widespread in ancient societies (as in Greece), conferring upon time a
cyclic structure, purported to annul (or even abolish) the irreversibility
of the passing of time, to contain or withhold its virulence, and to foster
regeneration[FN179].
In modern times, however, human beings became ineluctably integrated into
history and to the idea of 'progress', implying the 'definitive abandonment
of the paradise of the archetypes and of the repetition'[FN180], proper of
ancient cultures and religions. In the Western world, there came to prevail,
in the XXth century, an attitude of clearly avoiding to refer to death;
there came to prevail a 'great silence'
about death[FN181]. Contemporary Western societies came to 'prohibit' the
consideration of death at the same time that they fostered hedonism and
material well-being[FN182].
While ancient cultures were very respectful of the elderly, 'modern'
societies try rather to put them aside[FN183]. Ancient cultures ascribe
great importance to the relationships between the living and the dead, and
to death itself as part of life. Modern societies try in vain to minimize or
ignore death, rather pathetically. Nowadays there is stimulus simply to
forget (.. .)"[FN184].
-----------------------------------------------------------------------------------------------------------------
[FN176] J.L. de Leôn Azcarate, La Muerte y Su Imaginario en la Historia de
las Religiones, Bilbao, Universidad de Deusto, 2000, pp. 24-25, 37, 50-51
and 75.
[FN177] Ibid., pp. 123 and 130.
[FN178] J.P. Carse, Muerte y Existencia - Una Historia Conceptual de la
Mortalidad Humana, Mexico, Fondo de Cultura Econômica, 1987, pp. 85 and 167.
[FN179] M. Eliade, El Mito del Eterno Retorno, Madrid/Buenos Aires, Alianza
Ed./Emecé Ed., 2004, pp. 90-91.
[FN180] Ibid., p. 156.
[FN181] Ph. Ariès, Morir en Occidente desde la Edad Media hasta Nuestros
Dias, Buenos Aires, A. Hidalgo Ed., 2000 (reed.), pp. 196-199, and cf. pp.
213 and 238.
[FN182] Ibid., p. 251.
[FN183] Cf. [Various authors,] Dialogue among Civilizations - The Round
Table on the Eve of the United Nations Millennium Summit, Paris, UNESCO,
2001, p. 84 (intervention by E. Morin).
[FN184] IACtHR, case of the Moiwana Community versus Suriname, Judgment
(merits) of 15.06.2005, Series C, n. 124, Separate Opinion of Judge A.A.
Cançado Trindade, paras. 24-27, 29-30, 33 and 35-38.
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165. In the present Advisory Opinion, the ICJ should not have eluded, as it
did, the consideration of the facts - the atrocities undergone by the people
in Kosovo in the decade 1989-1999 - which led to the adoption by the U.N.
Security Council of its resolution 1244(1999). This factual background was
taken note of in several preceding resolutions of the Security Council
itself, as well as of the General Assembly and ECOSOC, and in reports of the
U.N. Secretary General. One cannot avoid the sunlight with a blindfold. That
factual background has been duly captured by human conscience, by the United
Nations as a whole, - whether the ICJ evades it or not. It is of great
importance to keep the grave humanitarian tragedy of Kosovo in mind, so as
to avoid the repetition in the future of the crimes against humanity therein
committed in the course of a decade.
166. At this stage of my Separate Opinion in the present Advisory Opinion of
the ICJ, may I summarize the factual background and context of the present
request for an Advisory Opinion of the ICJ. As pointed out by several
participants in their Written Statements and Comments, as well as in the
course of their oral arguments in the public hearings before this Court, the
forcible removal, in 1989, by the Serbian authorities, of Kosovo's autonomy,
led to the humanitarian catastrophe, which reached the point of highest
tension in 1998-1999. During this catastrophe, grave and successive
violations of human rights and of international humanitarian law occurred,
including mass killings, war crimes, crimes against humanity, ethnic
cleansing, massive refugee flows, massive forcible displacement of large
segments of the population. Over 1,5 million Kosovar Albanians were forcibly
expelled from their homes.
167. There were systematic and widespread violations of human rights,
including torture and rape, forced disappearance of persons, abductions,
indiscriminate attacks on women, targeting of children, taking of hostages,
arbitrary arrests, summary and extrajudicial executions, in the hands of
Serbian forces and paramilitaries. There also occurred destruction of
property, looting of homes by the police, burning of crops, - all highly
organized and systematic.
168. State-sanctioned discrimination took place in the workplace, in labour
relations, in public health, and in education. The basic needs of the
population were no longer met with, as a result of State-sanctioned
discrimination. The judicial system failed to work, and total impunity
prevailed. Systematic and gross violations of the rights of workers in
Kosovo occurred (as from 1990) in flagrant violation of the fundamental
principle of equality and non-discrimination, and in further breach of the
rule of law. As violence breeds violence, as from the mid-nineties KLA
violence was added to the context of social disruption in Kosovo. The
State-planned widespread oppression created an atmosphere of terror, and led
to the adoption of resolution 1244 (1999) of the Security Council, so as to
address the pressing daily needs of the "people" or "population" of Kosovo.
XII. The People-Centered Outlook in Contemporary international law
1. "People" or "Population" and Statehood Revisited
169. In the past, expert writing on statehood seemed obsessed with one of
the constitutive elements of statehood, namely, territory. The obsessions of
the past with territory became reflected, in the legal profession, in the
proliferation of writings on the matter, in particular on the acquisition of
territory. Those past obsessions led to the perpetration of the abuses of
colonialism, and other forms of dominance or oppression. All this happened
at a time when international law was approached from the strict and
reductionist outlook of inter-State relations, overlooking – or appearing
even oblivious of - the needs and legitimate aspirations of the subjugated
peoples.
170. The preconditions for statehood in International Law remain those of an
objective international law, irrespective of the "will" of individual
States. As to the classic prerequisites of statehood, gradually greater
emphasis has shifted from the element of territory to that of the normative
system[FN185]. In more recent times, it has turned to that of the
population, - pursuant to what I would term as the people-centered outlook
in contemporary international law, - reflecting the current process of its
humanization, as I have been sustaining for many years. In fact, the law of
nations has never lost sight of this constitutive element - the most
precious one - of statehood: the "population" or the "people", irrespective
of the difficulties of international legal thinking[FN186] to arrive at a
universally-accepted definition of what a "people" means.
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[FN185] Cf., e.g., K. Marek, Identity and Continuity of States in Public
International Law, 2nd. ed., Geneva, Droz, 1968, pp. 1-619.
[FN186] The endeavours of conceptualization of "people", in connection with
the exercise of self-determination in international law, have given rise to
much discussion in recent decades, which have, however, remained
inconclusive to date. Cf., on this particular point, e.g., J. Summers,
Peoples and International Law, Leiden, Nijhoff, 2007, pp. XXXIII, 26, 73,
164, 174-175, 244-245, 269-270, 306, 314 and 404.
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171. Even some exercises of the past, - which have proven to be long-lasting
and still valuable, - disclosed concern with the conditions of living of the
"people" or the "population", in an endeavour which at their time was
perhaps not grasped with sufficient clarity. Thus, the célèbre 1933
Montevideo Convention on the Rights and Duties of States was adopted at the
VII International Conference of American States, as the most significant
achievement of a Latin American initiative prompted by a regional resentment
against interventionist and certain commercial) policies. The Proceedings (Actas)
of the Montevideo Conference reveal that the travaux préparatoires of the
aforementioned 1933 Convention were marked by reliance on principles of
international law, so as to protect "small or weak nations"[FN187].
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[FN187] [Actas de la] VII Conferencia Internacional Americana (1933) - II
Comisiôn: interventions of Haiti (pp. 12-13), Nicaragua (pp. 15 and 60-61),
Ecuador (p. 34), Argentina (pp. 38 and 40-41), El Salvador (p. 52) and Cuba
(p. 60) [original document deposited in the Columbus Memorial Library - OAS,
Washington D.C.; copy of the document on file with me].
-----------------------------------------------------------------------------------------------------------------
172. Those principles emanated from the "juridical conscience" of the
continent[FN188]. In the course of that Conference's debates on the Draft
Convention, there were in fact reiterated expressions of concern with the
conditions of living of the peoples (pueblos) of the continent[FN189]. It
comes, thus, as no surprise, that the 1933 Montevideo Convention, adopted on
26.12.1933 (having entered into force on 26.12.1934), in dwelling upon the
prerequisites of statehood, already at that time referred first to the
population, and then to the other elements. In the wording of its Article I,
"The State as a person of international law should possess the following
qualifications: (a) a permanent population; (b) a defined territory; (c)
government;
and (d) capacity to enter into relations with the other States".
-----------------------------------------------------------------------------------------------------------------
[FN188] Ibid., interventions of Colombia (pp. 43-45 and 57-59), Brazil (p.
55), Nicaragua (pp. 62-63 and 72) and Uruguay (pp. 65-67).
[FN189] Ibid., interventions of Mexico (pp. 20-21), Ecuador (p. 34), Chile
(p. 48) and Nicaragua (pp. 62-63).
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2. The Principle of Self-Determination of Peoples under Prolonged Adversity
or Systematic Oppression
173. In our age of the advent of international organizations, the former
experiments of the mandates system (in the League of Nations era), and of
the trusteeship system (under the United Nations), to which the contemporary
(and distinct) U.N. experiments of international administration of territory
(such as Kosovo and East Timor) can be added, display one common
denominator: the concern with the conditions of living, the well-being and
the human development of the peoples at issue, so as to free them from the
abuses of the past, and to empower them to become masters of their own
destiny (cf. supra).
174. The historical process of emancipation of peoples in the recent past
(mid-XXth century onwards) came to be identified as emanating from the
principle of self-determination, more precisely external self-determination.
It confronted and overcame the oppression of peoples as widely-known at that
time. It became widespread in the historical process of decolonization.
Later on, with the recurrence of oppression as manifested in other forms,
and within independent States, the emancipation of peoples came to be
inspired by the principle of self-determination, more precisely internal
self-determination, so as to oppose tyranny.
175. Human nature being what it is, systematic oppression has again
occurred, in distinct contexts; hence the recurring need, and right, of
people to be freed from it. The principle of self-determination has survived
decolonization, in order to face nowadays new and violent manifestations of
systematic oppression of peoples. International administration of territory
has thus emerged in U.N. practice (in distinct contexts under the U.N.
Charter, as, e.g., in East Timor and in Kosovo). It is immaterial whether,
in the framework of these new experiments, self-determination is given the
qualification of "remedial", or another qualification. The fact remains that
people cannot be targeted for atrocities, cannot live under systematic
oppression. The principle of self-determination applies in new situations of
systematic oppression, subjugation and tyranny.
176. No State can invoke territorial integrity in order to commit atrocities
(such as the practices of torture, and ethnic cleansing, and massive forced
displacement of the population), nor perpetrate them on the assumption of
State sovereignty, nor commit atrocities and then rely on a claim of
territorial integrity notwithstanding the sentiments and ineluctable
resentments of the "people" or "population" victimized. What has happened in
Kosovo is that the victimized "people" or "population" has sought
independence, in reaction against systematic and long-lasting terror and
oppression, perpetrated in flagrant breach of the fundamental principle of
equality and non-discrimination (cf. infra). The basic lesson is clear: no
State can use territory to destroy the population. Such atrocities amount to
an absurd reversal of the ends of the State, which was created and exists
for human beings, and not vice-versa.
XIII. Principles of International Law, the Law of the United Nations and the
Humane Ends of the State
1. Territorial Integrity in the Framework of Those Humane Ends
177. Along the last four decades, growing attention has been turned to the
treatment dispensed by States to the populations concerned. This has become
a matter of concern in contemporary international law. The debate on human
security has echoed in the U.N. General Assembly along the last decade,
reminding States that theirs is the duty to protect and to empower their
inhabitants. They cannot engage in criminal activities against their
population. Human conscience has again awakened to respond to the pressing
need to secure that abuses of the past and the present are no longer
committed in the future, to the detriment of the population. Two
illustrations may be recalled in this connection.
178. The celebrated resolution 2625(XXV) of 1970 of the U.N. General
Assembly, containing the Declaration on Principles of International Law
concerning Friendly Relations and Cooperation among States in accordance
with the Charter of the United Nations[FN190], states in paragraph 5(7)
that:
- "Nothing in the foregoing paragraphs shall be construed as authorizing or
encouraging any action which would dismember or impair, totally or in part,
the territorial integrity or political unity of sovereign and independent
States conducting themselves in compliance with the principle of equal
rights and self-determination of peoples as described above and thus
possessed of a government representing the whole people belonging to the
territory without distinction as to race, creed or colour" [emphasis added].
179. The Court could, and should, have given close attention to this
particular paragraph of the U.N. Declaration of Principles, when it recalled
another passage of the 1970 Declaration in paragraph 80 of the present
Advisory Opinion on Accordance with International Law of Kosovo's
Declaration of Independence. After all, this paragraph of the U.N.
Declaration of Principles has a direct bearing on the question put to the
Court by the General Assembly, and should at least have been considered
together with the paragraph that the Court saw it fit to refer to. The
relevance of compliance with the principle of equal rights and
self-determination of peoples, in relation to the States' territorial
integrity, as set forth in paragraph 5(7) of the 1970 Declaration, has not
passed unnoticed along the years in expert writing on this particular
subject[FN191].
-----------------------------------------------------------------------------------------------------------------
[FN190] Hereinafter referred to as the "1970 U.N. Declaration of
Principles".
[FN191] Cf., e.g., Milan Sahovic, "Codification des principes du Droit
international des relations amicales et de la coopération entre les États",
137 Recueil des Cours de l'Académie de Droit International de La Haye (1972)
pp. 295 and 298; O. Sukovic, "Principle of Equal Rights and
Self-Determination of Peoples", in Principles of International Law
concerning Friendly Relations and Cooperation (ed. M. Sahovic), Belgrade,
Institute of International Politics and Economics/Oceana, 1972, pp. 338-341,
346-347 and 369-373; G. Arangio-Ruiz, The U.N. Declaration on Friendly
Relations and the System of the Sources of International Law, Alphen aan den
Rijn, Sijthoff/Noordhoff, 1979, pp. 135-136 and 140-141; P. Thornberry, "The
Principle of Self-Determination", in The United Nations and the Principles
of International Law - Essays in Memory of M. Akehurst (eds. V. Lowe and C.
Warbrick), London/N.Y., Routledge, 1994, pp. 176 and 192-195.
-----------------------------------------------------------------------------------------------------------------
180. Thus, in the line of the previous considerations, the government of a
State which incurs into grave and systematic violations of human rights
ceases to represent the people or population victimized. This understanding
has been reiterated, in even stronger terms, at the outcome of the II World
Conference on Human Rights held in Vienna, by the 1993 Vienna Declaration
and Programme of Action (paragraph 2), which restates:
- "(...) The World Conference on Human Rights considers the denial of the
right of self-determination as a violation of human rights and underlines
the importance of the effective realization of this right.
In accordance with the Declaration on Principles of International Law
concerning Friendly Relations and Cooperation among States in accordance
with the Charter of the United Nations, this shall not be construed as
authorizing or encouraging any action which would dismember or impair,
totally or in part, the territorial integrity or political unity of
sovereign and independent States conducting themselves in compliance with
the principle of equal rights and self-determination of peoples and thus
possessed of a government representing the whole people belonging to the
territory without distinction of any kind' [emphasis added].
181. The final document of a memorable United Nations World Conference, -
the II World Conference on Human Rights of 1993, - went further than the
1970 Declaration of Principles, in proscribing discrimination "of any kind'.
The massive violations of human rights and international humanitarian law to
which the Kosovar Albanians were subjected in the nineties met the basic
criterion set forth in the 1970 U.N. Declaration of Principles, and enlarged
in scope in the 1993 final document of the U.N.'s II World Conference on
Human Rights. The entitlement to self-determination of the victimized
population emerged, as the claim to territorial integrity could no longer be
relied upon by the willing victimizers.
2. The Overcoming of the Inter-State Paradigm in International Law
182. Principles of international law, as formulated in the U.N. Charter
(Article 2) and restated in the 1970 U.N. Declaration of Principles, besides
retaining their full validity in our days, have had significant projections
in time, accompanying pari passu, and guiding, the evolution of
international law itself. This applies to the seven restated
principles[FN192] in the 1970 Declaration of Principles (to which the ICJ
has been attentive in its case-law)[FN193], including the principle of
equality of rights and self-determination of peoples, pointing towards the
overcoming of the traditional inter-State dimension of International Law.
-----------------------------------------------------------------------------------------------------------------
[FN192] Namely: 1) the principle of the prohibition of the threat or use of
force in international relations; 2) the principle of peaceful settlement of
disputes; 3) the principle of non-intervention in the internal affairs of
States; 4) the States' duty of international cooperation in accordance with
the U.N. Charter; 5) the principle of equality of rights and
self-determination of peoples; 6) the principle of sovereign equality of
States; and 7) the principle of good faith in the fulfillment of obligations
in accordance with the U.N. Charter.
[FN193] As, for example, and as well-known, in its Advisory Opinion on
Western Sahara of 1975, and in its Judgments in the Nicaragua versus United
States case of 1986, and in the East Timor case of 1995.
-----------------------------------------------------------------------------------------------------------------
183. In the restatement of the principle of equality of rights and
self-determination of peoples by the 1970 U.N. Declaration of Principles of
International Law, it was explained that even a non-self-governing territory
(under chapter XI of the U.N. Charter) has a separate and distinct status
from the territory of the State which administers it, so that the people
living therein can exert their right of self-determination in accordance
with the principles and purposes of the U.N. Charter[FN194].
-----------------------------------------------------------------------------------------------------------------
[FN194] The international legal status of that territory (under chapter XI
of the U.N. Charter) generates likewise obligations of respect for the right
of self-determination of the people living in it, as well as for the
safeguard of the human rights of its inhabitants; cf., in this respect,
e.g., I. Brownlie, "The Rights of Peoples in Modern International Law", in
The Rights of Peoples (ed. J. Crawford), Oxford, Clarendon Press, 1988, pp.
1-16; [Various authors,] Les résolutions dans la formation du droit
international du développement (Colloque de 1970), Genève, IUHEI, 1971, pp.
63-67.
-----------------------------------------------------------------------------------------------------------------
184. Recent developments in contemporary international law were to disclose
the dimensions both external and internal of the right of self-determination
of peoples: the former meant the right of every people to be free from any
form of foreign domination, and the latter referred to the right of every
people to choose their destiny in accordance with their own will, if
necessary - in case of systematic oppression and subjugation - against their
own government. This distinction[FN195] challenges the purely inter-State
paradigm of classic international law. In the current evolution of
international law, international practice (of States and of international
organizations) provides support for the exercise of self-determination by
peoples[FN196] under permanent adversity or systematic repression, beyond
the traditional confines of the historical process of decolonization.
Contemporary international law is no longer insensitive to patterns of
systematic oppression and subjugation.
-----------------------------------------------------------------------------------------------------------------
[FN195] Endorsed in expert writing; cf., e.g., A. Cassese,
Self-Determination of Peoples - A Legal Reappraisal, Cambridge, University
Press, 1995, pp. 1-365; P. Thornberry, "The Principle of
Self-Determination", in The United Nations and the Principles of
International Law., op. cit. supra n. (192), pp. 175-203; Ch. Tomuschat,
"Self-Determination in a Post-Colonial World", in Modern Law of
Self-Determination (ed. Ch. Tomuschat), Dordrecht, Nijhoff, 1993, pp. 1-20;
A. Rosas, "Internal Self-Determination", in ibid., pp. 225-251; J. Salmon,
"Internal Aspects of the Right to Self-Determination: Towards a Democratic
Legitimacy Principle?", in ibid., pp. 253-282.
[FN196] Cf., on the matter, e.g., United Nations, Compilation of General
Comments and General Recommendations Adopted by Human Rights Treaty Bodies,
U.N. doc. HRI/GEN/1/Rev.3, of 15.08.1997, p. 13, paras. 1-2 and 6.
-----------------------------------------------------------------------------------------------------------------
185. The emergence and evolution of the International Law of Human Rights
came to concentrate further attention in the treatment dispensed by the
State to all human beings under its jurisdiction, in the conditions of
living of the population, in sum, in the function of the State as promoter
of the common good. If the legacy of the II World Conference on Human Rights
(1993) convened by the United Nations is to be summed up, it surely lies in
the recognition of the legitimacy of the concern of the international
community as a whole with the conditions of living of the population
everywhere and at any time19S, with special attention to those in situation
of greater vulnerability and standing thus in greater need of protection.
Further than that, this is the common denominator of the recent U.N. cycle
of World Conferences along the nineties, which sought to conform the U.N.
agenda for the dawn of the XXIst century. Ironically, while the
international community was engaged in this exercise, at the same time
discriminatory practices and grave violations of human rights and
international humanitarian law kept on being perpetrated in Kosovo, and the
news of those practices and violations promptly echoed in the United
Nations.
186. Both the Security Council and the General Assembly, as well as other
organs of the United Nations, promptly responded to the aggravation of the
humanitarian crisis in Kosovo, by means of a series of resolutions they
adopted (cf. supra). Security Council resolution 1244(1999) itself, adopted
on 10 June 1999, established UNMIK, drawing attention to the "grave
humanitarian situation in Kosovo"[FN197], amounting to a "humanitarian
tragedy"[FN198]. It condemned all acts of violence against, and repression
of, the population in Kosovo[FN199]. It called for, and insisted on, the
voluntary and safe return of all refugees and (internally) displaced persons
to their homes[FN200].
-----------------------------------------------------------------------------------------------------------------
[FN197] Preamble, para. 4.
[FN198] Preamble, para. 6.
[FN199] Preamble, para. 5; operative part, para. 3; Annex 1; and Annex 2,
para. 1.
[FN200] Preamble, para. 7; operative part, para. 9(c), 11(k) and 13; Annex
1; Annex 2(4) and (7).
-----------------------------------------------------------------------------------------------------------------
187. Its major concern was with the population in Kosovo; it thus decided to
facilitate a "political process designed to determine Kosovo's future
status"[FN201]. To that end, and "pending a final settlement", it further
decided to promote "substantial autonomy and self-government in
Kosovo"[FN202]. Accordingly, two years after the adoption of Security
Council resolution 1244(1999), the Head of UNMIK, Special Representative of
the U.N. Secretary-General (Mr. H. Haekkerup), promulgated, on 15 May 2001,
the newly-created "Constitutional Framework for Provisional Self-Government
in Kosovo"[FN203]. The adoption of this document resulted from a concerted
dialogue involving UNMIK itself, Kosovo's authorities and members of its
distinct communities; significantly, the Constitutional Framework was not
"conceptually linked" to any State, and rather addressed an
"internationalized territory"[FN204].
-----------------------------------------------------------------------------------------------------------------
[FN201] Operative part, para. 11(e).
[FN202] Operative part, para. 11(a).
[FN203] U.N. doc. UNMIK Regulation 2001/9.
[FN204] Carsten Stahn, "Constitution without a State? Kosovo under the
United Nations Constitutional Framework for Self-Government", 14 Leiden
Journal of International Law (2001) pp. 542 and 544.
-----------------------------------------------------------------------------------------------------------------
188. It went beyond the strict inter-State paradigm in international law.
The aforementioned Constitutional Framework favoured the emergence of a
"multi-ethnic civil society", guided by the principles of protection to the
national communities and of supervision by the Special Representative of the
U.N. Secretary-General. In this understanding, it delegated to local
institutions in Kosovo parts of the responsibility that UNMIK itself had
undertaken since mid-1999, thus taking a relevant step towards the
attainment of self-government in Kosovo[FN205]. In Kosovo's evolving
domestic legal order in its new era, a key role was reserved to the
fundamental principles of equality and non-discrimination, and of humanity
(in the framework of the Law of the United Nations), to which I shall now
turn.
-----------------------------------------------------------------------------------------------------------------
[FN205] Ibid., pp. 531-532, 557-558 and 561.
-----------------------------------------------------------------------------------------------------------------
3. The Fundamental Principle of Equality and Non-Discrimination
189. I have already referred to the fact that the "principle of identical
treatment in law and in fact" found judicial recognition, by the PCIJ,
before the 1948 Universal Declaration of Human Rights (cf. paras. 70-71,
supra). And even before that, it was deeply-engraved in human conscience.
More recently, the ICJ, in its célèbre Advisory Opinion on Namibia of 1971,
pointed out that "the injured entity" was a "people", which had to "look to
the international community for assistance (para. 127). In their Separate
Opinions, Judge Ammoun stressed the relevance of "the principles of
equality, liberty and peace" embodied in the U.N. Charter and the 1948
Universal Declaration (pp. 72 and 76-77), and Judge Padilla Nervo stressed
the U.N. Charter's call (Articles 1(3) and 76(c)) for the promotion of
respect for human rights "for all, without distinction as to race (...)"
(pp. 111 and 126).
190. The fundamental principle of equality and non-discrimination is indeed
of the utmost importance in the framework of the Law of the United Nations.
When the United Nations engaged itself in the protection of the inhabitants
of trust territories (chapter XII of the U.N. Charter), or else of
non-self-governing territories (chapter XI), its humanitarian initiatives
intended to bring about changes in the international legal order itself, as
part of the historical process of its humanization. In its outlook,
sovereignty "resided with the people, was at their service; such "people-centred
vision of sovereignty" was remindful of the preamble of the United Nations
Charter, evoking "We, the peoples of the United Nations"; this outlook is
further illustrated by some rather novel conceptions, such as States'
automatic succession into human rights treaties, or extra-territorial
application of human rights[FN206].
-----------------------------------------------------------------------------------------------------------------
[FN206] As timely recalled by Carsten Stahn, The Law and Practice of
International Territorial Administration - Versailles to Iraq and Beyond,
Cambridge, University Press, 2008, pp. 112 and 755-756; and cf. pp. 753 and
759, for the U.N. proactive State-building practice developed as from the
nineties.
-----------------------------------------------------------------------------------------------------------------
191. International law, freed from the strictness and reductionism of the
inter-State paradigm of the past, is nowadays conceived with due account of
the fundamental principle of equality and non-discrimination. The U.N. Human
Rights Committee itself, supervisory organ under the U.N. Covenant on Civil
and Political Rights, has pronounced on States' automatic succession into
human rights treaties (general comment n. 26, of 1997, on "continuity of
obligations", para. 4) and on extra-territorial application of human rights
(general comment n. 31, of 2004, on "the nature of the general legal
obligation imposed on States Parties", para. 10)[FN207].
-----------------------------------------------------------------------------------------------------------------
[FN207] Cf. text in: U.N., International Human Rights Instruments -
Compilation of General Comments and General Recommendations Adopted by Human
Rights Treaty Bodies, vol. I, doc. HRI/GEN/1/Rev.9 (vol. I), of 27.05.2008,
pp. 223 and 245. - As to State succession, may it be recalled that, a
resolution of the Institut de Droit International (of 26.08.2001), though
covering State succession in matters of property and debts rather than
treaties, nevertheless acknowledged the need "to clarify and improve the
situation of individuals" (Article 5(2)), and affirmed, in the preamble,
that "all situations leading to a succession of States should take place in
full conformity with public international law, and in particular with
humanitarian law and human rights". Cf. 69 Annuaire de l'Institut de Droit
International - Session de Vancouver (2000-2001) pp. 715 and 717. And, in
relation to State succession as well as extra-territorial application of
human rights, cf. further, inter alia, comments in: F. Pocar, "Patto
Internazionale sui Diritti Civili e Politici ed Estradizione", in Diritti
dell'Uomo, Estradizione ed Espulsione (Atti del Convegno di Ferrara di 1999
per Salutare G. Battaglini, ed. F. Salerno), Padova/Milano, Cedam, 2003, pp.
89-90.
-----------------------------------------------------------------------------------------------------------------
192. There is nowadays a considerable number of international instruments
informed by, and conformed on the basis of, the fundamental principle of
equality and non-discrimination. It is the case, inter alia, of 1965 U.N.
Convention on the Elimination of All Forms of Racial Discrimination, of the
1973 U.N. Convention on the Suppression and Punishment of the Crime of
Apartheid, of the 1979 U.N. Convention on the Elimination of All Forms of
Discrimination against Women, of the 1985 Convention against Apartheid in
Sports, of the 1990 U.N. Convention on the Protection of the Rights of All
Migrant Workers and Members of Their Families, of the 1981 Declaration on
the Elimination of All Forms of Intolerance and of Discrimination Based on
Religion or Belief, of the 1992 U.N. Declaration on the Rights of Persons
Belonging to National or Ethnic, Religious and Linguistic Minorities, the
1958 I.L.O. Convention (n. 111) Concerning Discrimination in Respect of
Employment and Occupation, the 1960 UNESCO Convention against Discrimination
in Education, to name a few.
193. It goes beyond the scope of the present Separate Opinion to proceed to
an examination of these instruments. At this stage, I limit myself to add
that, parallel to this impressive law-making work on the basis of the
fundamental principle of equality and non-discrimination, this latter has
generated in recent decades much doctrinal writing (on pertinent provisions
of human rights treaties in force)[FN208] and an equally impressive
jurisprudential construction on the principle at issue. As a result of all
that, contemporary international law does not lose sight at all of the
fundamental principle of equality and non-discrimination, keeps it in mind
all the time and in distinct circumstances, with all the implications of
this new posture.
-----------------------------------------------------------------------------------------------------------------
[FN208] Cf., inter alia, e.g., J. Symonides (ed.), The Struggle against
Discrimination, Paris, UNESCO, 1996, pp. 3-43; T. Opsahl, Law and Equality -
Selected Articles on Human Rights, Oslo, Ad Notam Gyldendal, 1996, pp.
165-206; M. Bossuyt, L'interdiction de la driscrimination dans le Droit
international des droits de l'homme, Bruxelles, Bruylant, 1976, pp. 1-240;
N. Lerner, Group Rights and Discrimination in International Law, 2nd. ed.,
The Hague, Nijhoff, 2003, pp. 1-187.
-----------------------------------------------------------------------------------------------------------------
194. Attention has thereby been rightly shifted from unaccountable
"sovereign" prerogatives of the past onto people-centered rights and
accountability of territorial authorities. And it was about time that human
conscience awakened to the imperative of doing so, so as to avoid the
repetition of the atrocities of the recent past. The fundamental principle
of equality and non-discrimination provides the foundation of an impressive
series of human rights treaties (supra) which integrate the corpus juris
gentium of contemporary international law. It is, however, by no means only
a contemporary phenomenon, as the secular principle of equality of treatment
in the relations among individuals as well as among peoples is deeply-rooted
in the droit des gens (jus gentium)[FN209].
-----------------------------------------------------------------------------------------------------------------
[FN209] Cf. Association Internationale Vitoria-Suarez, Vitoria et Suarez:
Contribution des théologiens au Droit international moderne, Paris, Pédone,
1939, pp. 38-39.
-----------------------------------------------------------------------------------------------------------------
195. Last but not least, on this particular point, I have had the occasion
to dwell upon the incidence of the fundamental principle of equality and
non-discrimination in a recent decision of this Court. In my Dissenting
Opinion in the Court's Order of 06.07.2010 in the case concerning
Jurisdictional Immunities of the State (original claim and counter-claim,
Germany versus Italy), I have deemed it fit to observe that
"(...) As proclaimed, in the aftermath of the II World War, by the 1948
Universal Declaration of Human Rights, [a]ll human beings are born free and
equal in dignity and rights' (Article 1). This prohibition derives from the
fundamental principle of equality and non-discrimination. This fundamental
principle, according to the Advisory Opinion n. 18 of the Inter-American
Court of Human Rights (IACtHR) on the Juridical Condition and Rights of
Undocumented Migrants (of 17 September 2003), belongs to the domain of jus
cogens.
In that transcendental Advisory Opinion of 2003, the IACtHR, in line with
the humanist teachings of the 'founding fathers' of the droit des gens (jus
gentium), pointed out that, under that fundamental principle, the element of
equality can hardly be separated from non-discrimination, and equality is to
be guaranteed without discrimination of any kind. This is closely linked to
the essential dignity of the human person, ensuing from the unity of the
human kind. The basic principle of equality before the law and
non-discrimination permeates the whole operation of the State power, having
nowadays entered the domain of jus cogens[FN210]. In a Concurring Opinion,
it was stressed that the fundamental principle of equality and
non-discrimination permeates the whole corpus juris of the International Law
of Human Rights, has an impact in Public International Law, and projects
itself onto general or customary international law itself, and integrates
nowadays the expanding material content of jus cogens[FN211] " (paras.
134-135).
-----------------------------------------------------------------------------------------------------------------
[FN210] IACtHR, Advisory Opinion n. 18 (of 17.09.2003), on the Juridical
Condition and Rights of Undocumented Migrants, Series A, n. 18, paras. 83,
97-99 and 100-101.
[FN211] Ibid., Concurring Opinion of Judge A.A. Cançado Trindade, paras.
59-64 and 65-73. - In recent years, the IACtHR, together with the ad hoc
International Criminal Tribunal for the Former Yugoslavia, have been the
contemporary international tribunals which have most contributed, in their
case-law, to the conceptual evolution of jus cogens (well beyond the law of
treaties), and to the gradual expansion of its material content; cf. A.A.
Cançado Trindade, "Jus Cogens: The Determination and the Gradual Expansion
of Its Material Content in Contemporary International Case-Law", in XXXV
Curso de Derecho International Organizado por el Comité Juridico
Interamericano - OAS (2008) pp. 3-29.
-----------------------------------------------------------------------------------------------------------------
4. The Fundamental Principle of Humanity in the Framework of the Law of the
United Nations
196. In the present Separate Opinion, I have already pointed out that the
experiments of international organizations of mandates, minorities
protection, trust territories, and, nowadays, international administration
of territory, have not only turned closer attention to the "people" or the
"population", to the fulfillment of the needs, and the empowerment, of the
inhabitants, but have also fostered - each one in its own way - their access
to justice at international level (para. 90, supra). Such access to justice
is understood lato sensu, i.e., as encompassing the realization of justice.
Those experiments of international organizations (rendered possible by the
contemporary expansion of the international legal personality, no longer a
monopoly of States) have contributed to the vindication by individuals of
their own rights, emanated directly from the droit des gens, from the law of
nations itself.
197. In my perception, this is one of the basic features of the new jus
gentium of our times. After all, every human being is an end in himself or
herself, and, individually or collectively, is entitled to enjoy freedom of
belief and "freedom from fear and want", as proclaimed in the preamble of
the Universal Declaration of Human Rights (para. 2). Every human person has
the right to respect for his or her dignity, as part of the human kind. The
recognition of this fundamental principle of humanity is one of the great
and irreversible achievements of the jus gentium of our times. At the end of
this first decade of the XXIst century, the time has come to derive the
consequences of the manifest non-compliance with this fundamental principle
of humanity.
198. Rights inherent to the human person are endowed with universality (the
unity of the human kind) and timelessness, in the sense that, rather than
being "conceded" by the public power, they truly precede the formation of
the society and of the State. Those rights are independent of any forms of
socio-political organization, including the State created by society. The
rights inherent to the human person precede, and are superior to, the State.
All human beings are to enjoy the rights inherent to them, for belonging to
humankind. As a corollary of this, the safeguarding of such rights is not
exhausted - it cannot be exhausted - in the action of States. By the same
token, States are not to avail themselves of their entitlement to
territorial integrity to violate systematically the personal integrity of
human beings subject to their respective jurisdictions.
199. States, created by human beings gathered in their social milieu, are
bound to protect, and not at all to oppress, all those who are under their
respective jurisdictions. This corresponds to the minimum ethical,
universally reckoned by the international community of our times. States are
bound to safeguard the integrity of the human person from systematic
violence, from discriminatory and arbitrary treatment. The conception of
fundamental and inalienable human rights is deeply-engraved in the universal
juridical conscience; in spite of variations in their enunciation or
formulation, their conception marks presence in all cultures, and in the
history of human thinking of all peoples[FN212].
-----------------------------------------------------------------------------------------------------------------
[FN212] Cf., e.g., [Various Authors,] Universality of Human Rights in a
Pluralistic World (Proceedings of the 1989 Strasbourg Colloquy), Strasbourg/Kehl,
N.P. Engel Verlag, 1990, pp. 45, 57, 103, 138, 143 and 155.
-----------------------------------------------------------------------------------------------------------------
200. This was captured in one of the rare moments, - if not glimpses, - of
lucidity in the XXth century (marked by successive atrocities victimizing
millions of human beings), namely, that of the proclamation, by the U.N.
General Assembly, of the Universal Declaration of Human Rights, on 10
December 1948. In the present Advisory Opinion on Accordance with
International Law of the Unilateral Declaration of Independence in Respect
of Kosovo, the ICJ did not even mention, - not even once, - the Universal
Declaration of Human Rights; as one of the Members of the Court, I feel,
however, obliged to dwell upon it, given the considerable importance that I
attribute to the Universal Declaration, in interaction with the United
Nations Charter, for the consideration of a subject-matter like the one
raised before the Court for the present Advisory Opinion.
201. I feel not only obliged, but likewise entirely free to do so, since,
unlike the Advisory Opinion of the Court, in the present Separate Opinion I
made a point of filling a void, by not eluding the cause of the grave
humanitarian crisis in Kosovo, underlying not only the adoption of Security
Council resolution 1244(1999), but also the following declaration of
independence of Kosovo, one decade later, of 17.02.2008. In fact, it should
be kept in mind that the acknowledgement of the principle of respect for
human dignity was introduced by the 1948 Universal Declaration, and is at
the core of its basic outlook. It firmly asserts: - "All human beings are
born free and equal in dignity and rights" (Article 1). And it recalls that
"disregard and contempt for human rights have resulted in barbarous acts
which have outraged the conscience of mankind" (preamble, para. 2). The
Universal Declaration warns that
"it is essential, if man is not compelled to have recourse, as a last
resort, to rebellion against tyranny and oppression, that human rights
should be protected by the rule of law" (preamble, para. 3); and it further
acknowledges that
"recognition of the inherent dignity and of the equal and inalienable rights
of all members of the human family is the foundation of freedom, justice and
peace in the world" (preamble, para. 1).
202. Since the adoption of the Universal Declaration in 1948, one could
hardly anticipate that a historical process of generalization of the
international protection of human rights was being launched, on a truly
universal scale. Throughout more than six decades, of remarkable historical
projection, the Declaration has gradually acquired an authority which its
draftsmen could not have foreseen. This happened mainly because successive
generations of human beings, from distinct cultures and all over the world,
recognized in it a "common standard of achievement" (as originally
proclaimed), which corresponded to their deepest and most legitimate
aspirations[FN213].
-----------------------------------------------------------------------------------------------------------------
[FN213] Already throughout the travaux préparatoires of the Universal
Declaration (particularly in the thirteen months between May 1947 and June
1948), the holistic view of all rights to be proclaimed promptly prevailed.
Such outlook was espoused in the official preparatory work of the
Declaration, i.e., the debates and drafting in the former U.N. Commission on
Human Rights (rapporteur, René Cassin) and subsequently in the Third
Committee of the General Assembly. In addition, in 1947, in a contribution
to the work then in course in the U.N. Commission on Human Rights, UNESCO
undertook an examination of the main theoretical problems raised by the
elaboration of the Universal Declaration; it circulated, to some of the most
influential thinkers of the time around the world, a questionnaire on the
relations between rights of individuals and groups in societies of different
kinds and in distinct historical circumstances, as well as the relations
between individual freedoms and social or collective responsibilities. For
the answers provided, cf. Los Derechos del Hombre - Estudios y Comentarios
en torno a la Nueva Declaraciôn Universal Reunidos por la UNESCO,
Mexico/Buenos Aires, Fondo de Cultura Econômica, 1949, pp. 97-98 (Teilhard
de Chardin), 181-185 (Aldous Huxley), 14-22 and 69-74 (Jacques Maritain),
24-27 (E.H. Carr), 129-136 (Quincy Wright), 160-164 (Levi Carneiro), 90-96
(J. Haesaert), 75-87 (H. Laski), 143-159 (B. Tchechko), 169-172 (Chung-Shu
Lo), 23 (M.K. Gandhi), 177-180 (S.V. Puntambekar), and 173-176 (H. Kabir).
The two U.N. World Conferences on Human Rights (Teheran, 1968; and Vienna,
1993) have given concrete expression to the interdependence of all human
rights and to their universality, enriched by cultural diversity.
-----------------------------------------------------------------------------------------------------------------
203. The Universal Declaration is widely recognized as having inspired, and
paved the way for, the adoption of more than 70 human rights
treaties[FN214], and as having served as a model for the enactment of
numerous human rights norms in national constitutions and legislations, and
helped to ground decisions of national and international courts. The
Declaration has been incorporated into the domain of customary international
law, much contributing to render human rights the common language of
humankind.
-----------------------------------------------------------------------------------------------------------------
[FN214] Applied today on a permanent basis at global (U.N.) and regional
levels, and all containing references to it in their preambles.
-----------------------------------------------------------------------------------------------------------------
204. The Universal Declaration, moreover, is today widely recognized as an
authoritative interpretation of human rights provisions of the Charter of
the United Nations itself, heralding the transformation of the social and
international order to secure the enjoyment of the proclaimed rights. In the
preamble of the United Nations Charter, "the peoples of the United Nations"
express their determination "to save succeeding generations from the scourge
of war" (para. 1), and "to reaffirm faith in fundamental human rights, in
the dignity and worth of the human person" (para. 2). This last assertion is
repeated in the 1948 Universal Declaration (para. 5). The U.N. Charter,
furthermore, repeatedly calls for universal respect for all, without
distinction as to race, sex, language, or religion (Articles 1(3), 13(1)(b),
55(c), and 76(c)).
205. Grave breaches of fundamental human rights (such as mass killings, the
practice of torture, forced disappearance of persons, ethnic cleansing,
systematic discrimination) are in breach of the corpus juris gentium, as set
forth in the U.N. Charter and the Universal Declaration (which stand above
the resolutions of the U.N.'s political organs), and are condemned by the
universal juridical conscience. Any State which systematically perpetrates
those grave breaches acts criminally, and loses its legitimacy, ceases to be
a State for the victimized population, as it thereby incurs into a gross and
flagrant reversal of the humane ends of the State.
206. Under contemporary jus gentium, no State can revoke the
constitutionally-guaranteed autonomy of a "people" or a "population" to
start then discriminating, torturing and killing innocent persons, or
expelling them from their homes and practicing ethnic cleansing, - without
bearing the consequences of its criminal actions or omissions. No State can,
after perpetrating such heinous crimes, then invoke or pretend to avail
itself of territorial integrity; the fact is that any State that acts this
way ceases to behave like a State vis-à-vis the victimized population.
207. An international organization of universal vocation and scope of action
like the United Nations, created on behalf of the peoples of the world
(supra), is fully entitled to place under its protection a population that
was being systematically discriminated against, and victimized by grave
breaches of human rights and international humanitarian law, by war crimes
and crimes against humanity. It is fully entitled, in my understanding, to
assist that population to become master of its own destiny, and is thereby
acting in pursuance of its Charter and the dictates of the universal
juridical conscience.
208. In a historical context such as the one under review, the claim to
territorial integrity, applicable in inter-State relations, is not absolute
as some try to make one believe. If one turns to intra-State relations,
territorial integrity and human integrity go together, with State authority
being exercised harmoniously with the condition of the population, aiming to
fulfill their needs and aspirations. Territorial integrity, in its
intra-State dimension, is an entitlement of States which act truly like
States, and not like machines of destruction of human beings, of their lives
and of their spirit[FN215]. By the same token, self-determination is an
entitlement of "peoples" or "populations" subjugated in distinct contexts
(not only that of decolonization), systematically subjected to
discrimination and humiliation, to tyranny and oppression. Such condition of
inhumane subjugation goes against the Universal Declaration and the United
Nations Charter altogether. It is in breach of the Law of the United
Nations.
-----------------------------------------------------------------------------------------------------------------
[FN215] Already the ancient Greeks were aware of the devastating effects of
the indiscriminate use of force and of war over both winners and losers,
revealing the great evil of the substitution of the ends by the means: since
the times of the Illiad of Homer until today, - as so perspicatiously
pondered by Simone Weil, one of the great thinkers of the XXth century, -
all "belligerents" are transformed in means, in things, in the senseless
struggle for power, incapable even to "subject their actions to their
thoughts". The terms "oppressors and oppressed" almost lose meaning, in face
of the impotence of everyone in front of the machine of war, converted into
a machine of destruction of the spirit and of fabrication of the "inconscience";
S. Weil, Reflexiones sobre las Causas de la Libertad y de la Opresiôn
Social, Barcelona, Ed. Paidôs/Universidad Autônoma de Barcelona, 1995, pp.
81-82, 84 and 130-131. As in the Illiad of Homer, there are no winners and
losers, all are taken by force, possessed by war, degraded by brutalities
and massacres; S. Weil, "L'Iliade ou le Poème de la Guerre (1940-1941)" in
Oeuvres, Paris, Quarto Gallimard, 1999, pp. 527-552. Homer's perennial
message, - as to "the butchery of men" and the "wretched lives" of all those
involved in endless fighting (cf. Homer, The Iliad, N.Y./London, Penguin
Books, 1991 [reed.], pp. 222 and 543-544, verses 275-281 and 83-89), - is as
valid and poignant in his times in ancient Greece as in our days. Along the
centuries, the "butchery of men" has continued occurring endlessly (cf.,
e.g., Bartolomé de Las Casas, Tratados, vol. I, Mexico, Fondo de Cultura
Econômica, 1997 [reprint], pp. 14-199, and cf. pp. 219, 319 and 419), and
lessons do not yet seem to have been sufficiently learned, - in particular
the pressing need and duty to secure the primacy of Law over brute force.
Thus, already in ancient Rome, M.T. Cicero pondered, in his De Legibus (On
the Laws, book II, circa 51-43 b.C.), that there was "nothing more
destructive for States, nothing more contrary to right and law, nothing less
civil and humane, than the use of violence in public affairs" (M.T. Cicero,
On the Commonwealth and On the Laws (ed. J.E.G. Zetzel), Cambridge,
University Press, 2003 [reed.], book III, ibid., p. 172). And in his De
Republica (circa late 50s-46 b.C.), Cicero added that nothing was "more
damaging to a State" and "so contrary to justice and law" than recourse "to
force through a measure of violence", where a country had "a settled and
established constitution"; M.T. Cicero, The Republic - The Laws, Oxford,
University Press, 1998, p. 166 (book III, par. 42). All those warnings
sound, centuries later, in our days, quite contemporary...
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209. Last but not least, the fundamental principle of humanity has been
asserted also in the case-law of contemporary international tribunals. In
the case of the Massacre of Plan de Sànchez (Judgment of 29.04.2004),
concerning Guatemala, for example, at a certain stage of the proceedings
before the IACtHR, the respondent State accepted its international
responsibility for violations of rights guaranteed under the American
Convention on Human Rights, and, in particular, for "not guaranteeing the
right of the relatives of the (...) victims and members of the community to
express their religious, spiritual and cultural beliefs" (para. 36). In my
Separate Opinion in that case, I pondered that the primacy of the principle
of humanity is identified with the very end or ultimate goal of the Law, of
the whole legal order, both domestic and international, in recognizing the
inalienability of all rights inherent to the human person (para. 17).
210. That principle marks presence - I added - not only in the International
Law of Human Rights, but also in International Humanitarian Law, being
applied in all circumstances. Whether it is regarded as underlying the
prohibition of inhuman treatment (established by Article 3 common to the
four Geneva Conventions on International Humanitarian Law of 1949), or else
as by reference to humankind as a whole, or still to qualify a given quality
of human behaviour (humaneness), the principle of humanity is always and
ineluctably present (paras. 18-20). The ad hoc International Criminal
Tribunal for the Former Yugoslavia (ICTFY - Trial Chamber) likewise devoted
attention to that principle in its Judgments in, e.g., the cases ofMucic et
alii (of 20.02.2001) and of Celebici (of 16.11.1998). It may further be
recalled that the Martens clause, which permeates the corpus juris of
International Humanitarian Law from the times of the I Hague Peace
Conference (1899) to our days, invokes and sustains the continued
applicability of the principles of the law of nations, the "principles of
humanity" and the "dictates of the public conscience"[FN216].
-----------------------------------------------------------------------------------------------------------------
[FN216] Cf. ICJ, case concerning Jurisdictional Immunities of the State
(Order of 06.07.2010, original claim and counter-claim, Germany versus
Italy), Dissenting Opinion of Judge Cançado Trindade, paras. 126 and
136-139.
-----------------------------------------------------------------------------------------------------------------
211. The same principle of humanity, - I concluded in the aforementioned
Separate Opinion in the case of the Massacre of Plan de Sànchez, - also has
incidence in the domain of International Refugee Law, as disclosed by the
facts of the cas d'espèce, involving massacres and the State-policy of
tierra arrasada, i.e., the destruction and burning of homes, which generated
a massive forced displacement of persons (para. 23). Cruelties of the kind
occur in different latitudes, in Europe as in the Americas, and in the other
regions of the world, - human nature being what it is. The point I wish to
make here is that the principle of humanity operates, in my view, in a way
to foster the convergences among the three trends of the international
protection of the rights inherent to the human person (International Law of
Human Rights, International Humanitarian Law and International Refugee Law).
XIV. Towards a Comprehensive Conception of the Incidence of Jus Cogens
212. May I now refer back to my brief reflections on the principle ex
injuria jus non oritur (cf. supra, paras. 132-137), in order to address
another point touched upon by the present Advisory Opinion of the ICJ on
Accordance with International Law of Kosovo's Declaration of Independence.
As I pointed out therein, in the years preceding the adoption of Security
Council resolution 1244(1999) - in the decade 1989-1999 - the United Nations
as a whole was deeply concerned with all sorts of injuriae perpetrated
against the population of Kosovo; there were successive grave breaches of
human rights and of international humanitarian law, committed by all
concerned and coming from all sides, seriously victimizing that population,
and aggravating Kosovo's humanitarian crisis.
213. Yet, the invocation of the principle ex injuria jus non oritur by a
couple of participants during the advisory proceedings before the Court
referred only, in an atomized way, to one or another of the successive grave
breaches committed in that period, and none of them referred to the
successive injuriae as a whole (cf. supra). In paragraph 81 of the present
Advisory Opinion, the ICJ has expressed concern with, and has drawn
attention to, unlawful use of force, or other egregious violations of
international law, in particular of peremptory norms of international law. I
fully endorse the Court's concern with violations of jus cogens, and I go
further than the Court in this respect.
214. The Court's obiter dictum appears (in para. 81) at the end of its
reasoning addressing specifically one aspect, namely, that of the
territorial integrity of States, a basic principle applicable at inter-State
level. The Court, given the classic features of its own Statute and of its
Rules (interna corporis), is used to reasoning in the straightjacket of the
inter-State dimension. Yet, the incidence of jus cogens transcends that
dimension. Egregious violations of international law, in particular of
peremptory norms of general international law, have most regrettably taken
place both at inter-State level (e.g., unlawful use of force, such as the
1999 bombings of Kosovo outside the framework of the U.N. Charter,
generating many victims), and at intra-State level (e.g., the grave
violations of human rights and of international humanitarian law perpetrated
in Kosovo along the decade of 1989-1999, victimizing its population).
215. As to these latter, in contemporary international law it is clear that
the prohibitions of torture, of ethnic cleansing, of summary or extra-legal
executions, of forced disappearance of persons, are absolute prohibitions,
in any circumstances whatsoever: they are prohibitions of jus cogens.
Breaches (at intra-State level) of those prohibitions, such as those which
occurred in Kosovo during its grave humanitarian crisis, are violations of
peremptory norms of general international law (i.e., of jus cogens),
promptly engaging the responsibility of their perpetrators (States and
individuals), with all the juridical consequences ensuing therefrom (which
have not yet been sufficiently elaborated by international case-law and
legal doctrine to date).
216. By bearing in mind only the inter-State dimension, the Court's
aforementioned obiter dictum has pursued also an unsatisfactory atomized
outlook. The truth is that jus cogens has an incidence at both inter-State
and intra-State levels, in the relations between States inter se, as well as
in the relations between States and all human beings under their respective
jurisdictions. We may here behold a horizontal (inter-State) and a vertical
(intra-State) dimensions. This is the comprehensive conception of the
incidence of jus cogens that, in my understanding, the Court should from now
on espouse.
217. In this latter (vertical) dimension, in our times, the State's
territorial integrity goes hand in hand with the State's respect of, and
guarantee of respect for, the human integrity of all those human beings
under its jurisdiction. A State's territory cannot be used by its
authorities for the pursuance of criminal policies, in breach of jus cogens
prohibitions (such as the ones aforementioned). A State's territorial
borders cannot be used by its authorities, responsible for grave breaches of
human rights or of international humanitarian law, as a shelter or shield to
escape from the reach of the law and to enjoy impunity, after having
committed atrocities which shocked the conscience of humankind. After all,
hominum causa omne jus constitutum est (all law is created, ultimately, for
the benefit of human beings); this maxim, originated in Roman law, is
nowadays common to both the national and the international legal orders (the
jus gentium of our times).
XV. Final Considerations: Kosovo's independence with U.N. Supervision
218. In view of the Court's reasoning almost entirely on the basis of
Security Council resolution 1244(1999), I feel obliged to make a couple of
further points in the present Separate Opinion. First, no one would deny the
central position here of Security Council resolution 1244(1999), but the
fact is that resolution 1244(1999) is the outcome of a political
compromise[FN217], and, above it and above all resolutions of the Security
Council (and of other political organs of the U.N.), lies the United Nations
Charter. It is the U.N. Charter that is ultimately to guide any reasoning.
Secondly, the Court's argument that it "sees no need to pronounce" on other
Security Council resolutions adopted "on the question of Kosovo" (as stated
in paragraph 86) prior to resolution 1244(1999) (and anyway "recalled" in
the preamble of this latter) is, in my view, not well-founded: it simply
begs the question.
-----------------------------------------------------------------------------------------------------------------
[FN217] After its adoption, the debate persisted between, on the one hand,
those States which laid emphasis on the reference the "territorial
integrity" of the F.R. Yugoslavia, found in a preambular paragraph (and
Annex 2, para. 8) of resolution 1244(1999), and those States which stressed
that that preambular paragraph of the resolution at issue did not create
binding obligations and applied only to Kosovo's interim phase, and not to
its final status, which was not determined by resolution 1244(1999); cf. A.
Tancredi, "Neither Authorized nor Prohibited? Secession and International
Law after Kosovo, South Ossetia and Abkhazia", 18 Italian Yearbook of
International Law (2008) pp. 55-56. In effect, operative paragraph 11(a) of
that resolution expressly referred to the promotion of "the establishment,
pending a final settlement, of substantial autonomy and self-government in
Kosovo".
-----------------------------------------------------------------------------------------------------------------
219. It simply enables the Court to proceed to a "technical" and aseptic
examination of Kosovo's declaration of independence of 17.02.2008, making
abstraction of the complex and tragic factual background of the grave
humanitarian crisis of Kosovo, which culminated in the adoption by Security
Council of its resolution 1244(1999). While not "pronouncing" on other
resolutions of the Security Council (and certainly not of the General
Assembly, the importance of which it clearly appears unduly to minimize in
paragraph 38), the Court appears at pains when it reckons the need at least
to take into account other Security Council resolutions (without
"pronouncing" on them), prior to resolution 1244(1999), just to illustrate
one aspect of the crisis (in paragraph 116), in an incomplete way[FN218].
-----------------------------------------------------------------------------------------------------------------
[FN218] Further brief references to those other resolutions of the Security
Council are found in paragraphs 91 and 98.
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220. The result is that the Court has found it sufficient just to refer
briefly and in passim to the Kosovo crisis[FN219], without explaining
anywhere in the Advisory Opinion what caused that crisis, and what it
consisted of; this is exactly what has been addressed in detail by the
Security Council resolutions prior to resolution 1244(1999), and by General
Assembly resolutions, and by manifestations of other organs of the United
Nations. As I do not accompany nor endorse the Court's reasoning, I have
felt obliged, as a Member of the Court, to lay down in the present Separate
Opinion my own reasoning, which includes a consideration of the reiterated
expressions of grave concern with the humanitarian tragedy in Kosovo on the
part of the Security Council, of the General Assembly, of ECOSOC, of the
Secretary General (cf. supra), in sum, of the United Nations as a whole.
-----------------------------------------------------------------------------------------------------------------
[FN219] E.g., paragraphs 95, 97, 98 and 116.
-----------------------------------------------------------------------------------------------------------------
221. To me, the whole factual background should have been treated by the
Court with the same zeal and attention to details which prompted it to
consider the factual circumstances that surrounded the act of adoption by
the Assembly of Kosovo of the declaration of independence. I have concluded,
like the Court, that the ICJ has jurisdiction to deliver the Advisory
Opinion requested by the General Assembly, that it ought to comply with the
General Assembly's request for the Advisory Opinion, and that Kosovo's
declaration of independence of 17 February 2008 did not violate
international law; but I have so concluded on the basis of my own reasoning,
developed in the present Separate Opinion, which is clearly distinct from
the Court's reasoning.
222. Another aspect which cannot pass unnoticed here pertains to the recent
practice of the Security Council, as reflected in some of its resolutions,
of addressing not only States but also non-State entities, and thus going
beyond the strict inter-State dimension. The Court briefly refers to it
(paragraph 115-117), as well as to the growing need of securing a proper
interpretation of resolutions of the Security Council (paragraph 94). Yet,
the Court touches on these two points without further elaboration. Without
intending to go deeper into this matter, I shall, however, refer here to one
additional point, not touched upon by the Court, which in this connection
cannot be overlooked.
223. The Security Council's increasing engagement, from the early nineties
onwards, in operations not only of peacekeeping, but also of conflict
prevention, peacemaking and peacebuilding, has enlarged its horizon as to
the exercise of its functions. This is a well-known contemporary phenomenon
within the Law of the United Nations[FN220]. In this context, the fact that
the Security Council has lately started making demands on, besides States,
also non-State entities (including groups of individuals), is not so
surprising, after all. What, however, needs to be added - as the Court seems
to have missed this point - is that the Security Council also has its
"constitutional framework": the United Nations Charter. However broad its
powers might be, or might have become nowadays, they remain limited by the
United Nations Charter itself.
-----------------------------------------------------------------------------------------------------------------
[FN220] Cf., inter alia, e.g., K. Manusama, The United Nations Security
Council in the Post-Cold War Era - Applying the Principle of Legality,
Leiden, Nijhoff, 2006, pp. 1-320; B.G. Ramcharan, The Security Council and
the Protection of Human Rights, The Hague, Nijhoff, 2002, pp. 1-213.
-----------------------------------------------------------------------------------------------------------------
224. The Security Council is not the legislator of the world, but rather one
of the main political organs of the United Nations, and the central organ
entrusted with the maintenance of international peace and security under the
U.N. Charter. For the consideration of the question put to the Court by the
General Assembly for the present Advisory Opinion, the Grundnorm is not
Security Council resolution 1244(1999), but rather the United Nations
Charter. And the Charter has placed limits on the action of all its organs,
including the Security Council. In the case of Kosovo, the Security Council
has acted within those limits, and, by means of its resolution 1244(1999),
has placed the grave humanitarian crisis of Kosovo within the framework of
the Law of the United Nations. This latter, in turn, has been particularly
attentive to the conditions of living of the population, in Kosovo as in
distinct parts of the world, so as to preserve international peace and
security.
225. There is still a remaining line of considerations that I deem proper to
add hereto. At the close of the oral proceedings before this Court relating
to the present Advisory Opinion on Accordance with International Law of
Kosovo's Declaration of Independence, in the public sitting of 11 December
2009, I put to the participants the following question:
"- United Nations Security Council resolution 1244 (1999) refers, in its
paragraph 11(a), to 'substantial autonomy and self-government in Kosovo',
taking full account of the Rambouillet Accords. In your understanding, what
is the meaning of this renvoi to the Rambouillet Accords? Does it have a
bearing on the issues of self-determination and/or secession? If so, what
would be the prerequisites of a people's eligibility into statehood, in the
framework of the legal regime set up by Security Council resolution 1244
(1999)? And what are the factual preconditions for the configurations of a
'people', and of its eligibility into statehood, under general international
law?"
226. Fifteen participants cared to provide their answers to my question:
Kosovo[FN221], Serbia[FN222], Albania[FN223], Argentina[FN224],
Austria[FN225], Burundi[FN226], Cyprus[FN227], Finland[FN228],
France[FN229], The Netherlands[FN230], Romania[FN231], Spain[FN232], United
Kingdom[FN233], United States[FN234], and Venezuela[FN235]. After a careful
reading of those 15 answers, I am led to extract and select a couple of
points, made therein, to which I attach particular importance.
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[FN221] ICJ doc. 2009/115.
[FN222] ICJ doc. 2009/111.
[FN223] ICJ doc. 2009/106.
[FN224] ICJ doc. 2009/110.
[FN225] ICJ doc. 2009/116.
[FN226] ICJ doc. 2009/117.
[FN227] ICJ doc. 2009/109.
[FN228] ICJ doc. 2009/107.
[FN229] ICJ doc. 2009/118.
[FN230] ICJ doc. 2009/108.
[FN231] ICJ doc. 2009/112.
[FN232] ICJ doc. 2009/114.
[FN233] ICJ doc. 2009/119.
[FN234] ICJ doc. 2009/113.
[FN235] ICJ doc. 2009/120.
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227. The renvoi of Security Council resolution 1244 (1999) to the
Rambouillet Accords was meant to create the conditions for substantial
autonomy and an extensive form of self-governance in Kosovo , in view of the
"unique circumstances of Kosovo" (cf. supra). In the course of the following
decade (1999-2009), the population of Kosovo was able, thanks to resolution
1244 (1999) of the Security Council, to develop its capacity for substantial
self-governance, as its declaration of independence by the Kosovar Assembly
on 17 February 2008 shows. Declarations of the kind are neither authorized
nor prohibited by international law, but their consequences and implications
bring international law into the picture.
228. Furthermore, it would not be necessary to indulge into semantics of
what constitutes a "people" either. This is a point which has admittedly
been defying international legal doctrine to date. In the context of the
present subject-matter, it has been pointed out, for example, that terms
such as "Kosovo population", "people of Kosovo", "all people in Kosovo",
"all inhabitants in Kosovo", appear indistinctly in Security Council
resolution 1244 (1999) itself[FN236]. There is in fact no terminological
precision as to what constitutes a "people" in international law[FN237],
despite the large experience on the matter. What is clear to me is that, for
its configuration, there is conjugation of factors, of an objective as well
as subjective character, such as traditions and culture, ethnicity,
historical ties and heritage, language, religion, sense of identity or
kinship, the will to constitute a people[FN238]; these are all factual, not
legal, elements, which usually overlap each other[FN239].
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[FN236] In preamble para. 5, operative para. 10, and Annex 2 para. 5; in
Annex 2 para. 4, operative para. 10; in Annex 1 principle 4; and in Annex 2
para. 5, respectively; Answer by Spain (para. 20).
[FN237] It has been argued, for example, that, for a human collectivity or a
group to constitute a "people" for eligibility to statehood, it would need:
a) sharing of common background of ethnicity, language, religion, history
and cultural heritage; b) territorial integrity of the area claimed; c) the
subjective element of the group's self-conscious perception as a distinct
"people", able to form a viable political entity; for the view that the
Kosovars meet these requirements and constitute a "people", and, moreover,
their right to internal self-determination was not respected by
Milosevic-led Serbia, cf., e.g., M. Sterio, "The Kosovar Declaration of
Independence: 'Botching the Balkans' or Respecting International Law?", 37
Georgia Journal of International and Comparative Law (2008-2009) pp. 277 and
287.
[FN238] Answers by The Netherlands (para. 16), and Albania (paras. 20-21).
[FN239] Answer by Finland (p. 3).
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229. It may be recalled that the UNMIK Constitutional Framework for Kosovo
(2001) itself (cf. supra), clarifying the U.N. approach to matter at issue,
pointed out that Kosovo is "an entity" which, "with its people, has unique
historical, legal, cultural and linguistic attributes" (para. 1.1)[FN240].
To these elements I would add yet another one, - and a significant one, -
namely, that of common suffering: common suffering creates a strong sense of
identity. Many centuries ago, Aeschylus (525-circa 456 b.C.) had an
intuition to that, in his penetrating Oresteian Trilogy: he made clear, - in
the third choral Ode in Agamemnon, and in the culmination of the final
procession in The Eumenides, - that human beings learn by suffering, and
they ultimately learn not simply how to avoid suffering, but how to do right
and to achieve justice. Nowadays, in 2010, so many centuries later, I wonder
whether Aeschylus was being, perhaps, a bit too confident, but, in any case,
I greatly sympathize with his brave message, which I regard as a most
valuable and a timeless or perennial one.
-----------------------------------------------------------------------------------------------------------------
[FN240] Cit. in Answer by Austria (p. 2).
-----------------------------------------------------------------------------------------------------------------
230. It is true that U.N. Security Council resolution 1244 (1999) did not
determine Kosovo's end-status, nor did it prevent or impede the declaration
of independence of 17 February 2008 by Kosovo's Assembly to take place. The
U.N. Security Council has not passed any judgment whatsoever on the chain of
events that has taken place so far. There remains the U.N. presence in
Kosovo, under the umbrella of Security Council resolution 1244 (1999). It
has operated in favour of Kosovo's "substantial autonomy" and
self-government, and, in the view of some, also of its independence[FN241].
-----------------------------------------------------------------------------------------------------------------
[FN241] Cf, to this effect, e.g., G. Serra, "The International Civil
Administration in Kosovo (...)", op. cit. supra n. (56), pp. 77-78, 81-82
and 87.
-----------------------------------------------------------------------------------------------------------------
231. This is not, after all, so surprising, if one keeps in mind the special
attention of the contemporary U.N. experiments of international
administration of territory to the conditions of living of the population
(in the line of the similar concern of the prior experiments of the mandates
system under the League of Nations, and of the U.N.'s trusteeship systems -
cf. supra), disclosing a humanizing perspective. The permanence of U.N.
presence in Kosovo, also from now on, appears necessary, for the sake of
human security, and the preservation of international peace and security in
the region.
232. In the other contemporary example of U.N. international administration
of territory, that of East Timor, even a few years after the completion of
the task of UNTAET and the proclamation of independence of East Timor, the
U.N. has been keeping a residual presence in the new State of East Timor
until now (mid-2010)[FN242]. Would anyone dare to suggest it should be
removed? Hardly so. With all the more reason, in the case of Kosovo, given
its factual background, the U.N. presence therein seems to remain quite
necessary. Kosovo, as a State in statu nascendi, badly needs "supervised
independence", as recommended in the Report on Kosovo's future (2007)
presented by the Special Envoy of the U.N. Secretary General (Mr. M.
Ahtisaari).
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[FN242] By means of its resolution 1704(2006), of 25.08.2006, the Security
Council established the new U.N. Integrated Mission in East Timor (UNMIT),
whose mandate has ever since been renewed (Security Council resolutions
1802(2008) of 25.02.2008, and 1867(2009) of 26.02.2009); recently, by its
resolution 1912 2010) of 26.02.2010, the Security Council has again renewed
UNMIT's mandate for one year.
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233. That Report, accompanied by the Special Envoy's Comprehensive Proposal
for the Kosovo Status Settlement, presented in mid-March 2007[FN243],
contains proposals of detailed measures aiming at: (a) ensuring the
promotion and protection of the rights of communities and their members; (b)
the effective decentralization of government and public administration (so
as to encourage public participation); (c) the preservavion and protection
of cultural and religious heritage. The ultimate goal is the formation and
consolidation of a multi-ethnic democratic society. To that end, Kosovo will
have no "official" religion, will promote the voluntary and safe return of
refugees and internally displaced persons, will secure direct applicability
in domestic law of provisions of human rights treaties and international
instruments, will secure representation of non-majority communities in its
Assembly, will have Albanian and Serbian as official languages, will secure
the formation and establishment of an independent Judiciary based upon the
rule of law.
234. Furthermore, Kosovo will secure the prevalence of the fundamental
principle of equality and non-discrimination, the exercise of the right of
participation in public life, and of the right of equal access to justice by
everyone. In the framework of all these proposed measures, the safeguard of
the rights of the members of the Serb community (as a minority) assumes
special importance[FN244], as well as the promotion of the preservation of
the cultural and religious heritage[FN245] of all communities as an integral
part of the heritage of Kosovo.
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[FN243] Cf. U.N. docs. S/2007/168 and S/2007/168/Add.1.
[FN244] As the riots of 2004 indicate.
[FN245] With the continuous and undisturbed existence and operation of the
Serbian Orthodox Church in Kosovo.
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235. In its declaration of independence of 17 February 2008, Kosovo's
Assembly expressly accepts the recommendations of the U.N. Special Envoy's
Comprehensive Proposal for the Kosovo Status Settlement[FN246], and adds
that
"We declare Kosovo to be a democratic, secular and multi-ethnic Republic,
guided by the principles of non-discrimination and equal protection under
the law. We shall protect and promote the rights of all communities in
Kosovo (.. .)"[FN247]. In the declaration of independence, Kosovo's
Assembly, furthermore, accepts the continued presence of the U.N. in Kosovo,
on the basis of Security Council resolution 1244(1999)[FN248], and expresses
its commitment to "act consistent with principles of international law and
resolutions of the Security Council", including resolution
1244(1999)[FN249].
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[FN246] Preamble, para. 12; operative part, paras. 1, 3, 4, 5 and 12.
[FN247] Operative part, para. 2.
[FN248] Operative part, para. 5.
[FN249] Operative part, para. 12.
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236. The Special Representative of the U.N. Secretary-General continues, in
effect, to exercise its functions in Kosovo to date, as the Court recalls in
paragraph 92 of the present Advisory Opinion on Accordance with
International Law of Kosovo's Declaration of Independence; but, contrary to
what may be inferred from the Court's brief reference (without any analysis)
to the Reports of the Secretary-General on the United Nations Interim
Administration Mission in Kosovo, issued after the declaration of
independence by Kosovo's Assembly (period 2008-2010)[FN250], the situation
in Kosovo today is not the same as at the time of its declaration of
independence. An examination of the aforementioned Reports indicates that
Kosovo's situation has undergone changes in the period 2008-2010.
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[FN250] Ever since Kosovo's declaration of independence, six Reports of the
Secretary-General on the United Nations Interim Administration Mission in
Kosovo have been issued, and reproduced in the following documents: U.N.
doc. S/2008/692, of 24.11.2008, pp. 1-23; U.N. doc. S/2009/149, of
17.03.2009, pp. 1-18; U.N. doc. S/2009/300, of 10.06.2009, pp. 1-17; U.N.
doc. S/2009/497, of 30.09.2009, 1-19; U.N. doc. S/2010/169, of 06.04.2010,
pp. 1-19; and U.N. doc. S/2010/5, of 05.01.2010, pp. 1-18, respectively.
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237. Thus, the Report of the Secretary-General of 24.11.2008, for example,
commented that Kosovo's declaration of independence and its new Constitution
posed difficulties and challenges to UNMIK's ability to exercise its
administrative authority, but it has never stated that the evolving
circumstances represented a violation of resolution 1244(1999) of the
Security Council; it has never attempted to "annul" that declaration of
independence (para. 21). The Secretary-General admitted making adjustments
in UNMIK in the light of the evolving circumstances, rather than opposing
these latter, and he added that this would be done by means of a
"reconfiguration process" of the international presence in Kosovo (paras.
22-25). He insisted on such UNMIK "reconfiguration" in his Reports of
17.03.2009 (paras. 12-14 and 16-17), and of 10.06.2009 (paras. 18-20).
238. In his following Report, of 30.09.2009, the Secretary General informed
that the "gradual adjustment" and "reconfiguration" of UNMIK had been
"successfully concluded" (para. 2), and its role was now that of promotion
of security and stability in Kosovo and in the Balkans (para. 3), defusing
tensions and facilitating practical cooperation with all communities in
Kosovo "as well as between the authorities in Pristina and Belgrade" (paras.
3 and 46-47). The same outlook has been pursued in the two most recent
Reports of the Secretary General (of 2010), which indicate, as areas of
priority, those of elections and decentralization, security, rule of law,
returns, cultural and religious heritage, community issues, human rights,
and Kosovo's representation and engagement in international and regional
forums (Reports of 05.01.2010, paras. 15-46, and of 06.04.2010, paras.
16-38). In sum, there has been an apparent acceptance by UNMIK of the new
situation, after Kosovo's declaration of independence, in view of its
successive endeavours to adjust itself to the circumstances on the ground,
so as to benefit the population concerned.
239. In conclusion, States exist for human beings and not vice-versa.
Contemporary international law is no longer indifferent to the fate of the
population, the most precious constitutive element of statehood. The advent
of international organizations, transcending the old inter-State dimension,
has helped to put an end to the reversal of the ends of the State. This
distortion led States to regard themselves as final repositories of human
freedom, and to treat individuals as means rather than as ends in
themselves, with all the disastrous consequences which ensued therefrom. The
expansion of international legal personality entailed the expansion of
international accountability.
240. States transformed into machines of oppression and destruction ceased
to be States in the eyes of their victimized population. Thrown into
lawlessness, their victims sought refuge and survival elsewhere, in the jus
gentium, in the law of nations, and, in our times, in the Law of the United
Nations. I dare to nourish the hope that the conclusion of the present
Advisory Opinion of the International Court of Justice may conform the
closing chapter of yet another long episode of the timeless saga of the
human kind in search of emancipation from tyranny and systematic oppression.
(Signed) Antônio Augusto CANÇADO TRINDADE.
Separate opinion of Judge Yusuf
I. Introduction
1. Although I am in general agreement with the Court's Opinion and have
voted in favour of all the paragraphs of the Operative Clause, I have
serious reservations with regard to the Court's reasoning on certain
important aspects of the Opinion.
2. First, in interpreting the question put to it by the United Nations
General Assembly, the Court states that "[t]he answer to that question turns
on whether or not the applicable international law prohibited the
declaration of independence" (paragraph 56). This constitutes, in my view,
an overly restrictive and narrow reading of the question of the General
Assembly. The declaration of independence of Kosovo is the expression of a
claim to separate statehood and part of a process to create a new State. The
question put to the Court by the General Assembly concerns the accordance
with international law of the action undertaken by the representatives of
the people of Kosovo with the aim of establishing such a new State without
the consent of the parent State. In other words, the Court was asked to
assess whether or not the process by which the people of Kosovo were seeking
to establish their own State involved a violation of international law, or
whether that process could be considered consistent with international law
in view of the possible existence of a positive right of the people of
Kosovo in the specific circumstances which prevailed in that territory.
Thus, the restriction of the scope of the question to whether international
law prohibited the declaration of independence as such voids it of much of
its substance. I will elaborate on these issues in Section II below.
3. My second reservation relates to the inclusion by the Court of the
Constitutional Framework established under the auspices of the United
Nations Interim
Administration Mission in Kosovo (UNMIK) in the category of the applicable
international legal instruments under which the legality of the declaration
of independence of Kosovo of 17 February 2008 is to be assessed. It is my
view that the Constitutional Framework for the Interim Administration of
Kosovo is not part of international law. In enacting legislation for the
provisional administration of Kosovo, the Special Representative of the
Secretary-General (SRSG) may have derived his authority from resolution 1244
of the United Nations Security Council, but he was primarily acting as a
surrogate territorial administrator laying down regulations that concerned
exclusively the territory of Kosovo and produced legal effects at the
domestic level. I will examine these issues further in Section III below.
II. The Scope and Meaning of the Question put to the Court
4. The Court has interpreted the question posed by the General Assembly as
not requiring it
"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"
(Advisory Opinion, paragraph 56).
Surely, the Court was not asked to pronounce itself on the second point,
which is of a general character; but it is regrettable, for the reasons
indicated below, that the Court decided not to address the first point,
particularly in the sense of assessing the possible existence of a right to
self-determination in the specific situation of Kosovo.
5. Firstly, since a declaration of independence is not per se regulated by
international law, there is no point assessing its legality, as such, under
international law. It is what the declaration of independence implies and
the claim it expresses to establish a new State which is of relevance to the
law. If such claim meets the conditions prescribed by international law,
particularly in situations of decolonization or of peoples subject to alien
subjugation, domination and exploitation, the law may encourage it; but if
it violates international law, the latter can discourage it or even declare
it illegal, as was the case in Southern Rhodesia and Katanga in the 1960s.
Secondly, an assessment by the Court of the existence of an entitlement
could have brought clarity to the scope and legal content of the right of
self-determination, in its post-colonial conception, and its applicability
to the specific case of Kosovo. The Court has in the past contributed to a
better understanding of the field of application of the right of
self-determination with respect to situations of decolonization or alien
subjugation and foreign occupation. It could have likewise used this
opportunity to define the scope and normative content of the post-colonial
right of self- determination, thereby contributing, inter alia, to the
prevention of the misuse of this important right by groups promoting ethnic
and tribal divisions within existing States.
6. Thirdly, claims to separate statehood by ethnic groups or other entities
within a State can create situations of armed conflict and may pose a threat
not only to regional stability but also to international peace and security.
The fact that the Court decided to restrict its opinion to whether the
declaration of independence, as such, is prohibited by international law,
without assessing the underlying claim to external self-determination, may
be misinterpreted as legitimizing such declarations under international law,
by all kinds of separatist groups or entities that have either made or are
planning to make declarations of independence. Fourthly, the Court itself
admits that "the declaration of independence is an attempt to determine
finally the status of Kosovo" (paragraph 114), but fails to examine whether
such a unilateral determination of the final status of Kosovo and its
separation from the parent State is in accordance with international law, as
clearly implied in the question put to it by the General Assembly.
7. Turning now to the issue of self-determination itself, it should be
observed at the outset that international law disfavours the fragmentation
of existing States and seeks to protect their boundaries from foreign
aggression and intervention. It also promotes stability within the borders
of States, although, in view of its growing emphasis on human rights and the
welfare of peoples within State borders, it pays close attention to acts
involving atrocities, persecution, discrimination and crimes against
humanity committed inside a State. To this end, it pierces the veil of
sovereignty and confers certain internationally protected rights to peoples,
groups and individuals who may be subjected to such acts, and imposes
obligations on their own State as well as other States. The right of
self-determination, particularly in its post-colonial conception, is one of
those rights.
8. It is worth recalling, in this context, that the right of
self-determination has neither become a legal notion of mere historical
interest nor has it exhausted its role in international law following the
end of colonialism. It has indeed acquired renewed significance following
its consecration in the two covenants on human rights of 1966, the 1970
Declaration on Friendly Relations (Declaration on Principles of
International Law Concerning Friendly Relations and Co-operation among
States in accordance with the Charter of the United Nations, General
Assembly resolution 2625, Annex, 25 United Nations GAOR, Supp. (No. 28),
United Nations doc. A/5217 at 121 (1970)), the OSCE Helsinki Final Act (the
Final Act of the Conference on Security and Co-operation in Europe, 1 August
1975, 14 I.L.M. 1292 (Helsinki Declaration), the African Charter on Human
and Peoples' Rights and the Vienna Declaration and Programme of Action
adopted by the World Conference on Human Rights (Vienna Declaration, World
Conference on Human Rights, Vienna, 14-25 June 1993, United Nations doc.
A/CONF.157/24 (Part I) at 20 (1993)). It is a right which is exercisable
continuously, particularly within the framework of a relationship between
peoples and their own State.
9. In this post-colonial conception, the right of self-determination chiefly
operates inside the boundaries of existing States in various forms and
guises, particularly as a right of the entire population of the State to
determine its own political, economic and social destiny and to choose a
representative government; and, equally, as a right of a defined part of the
population, which has distinctive characteristics on the basis of race or
ethnicity, to participate in the political life of the State, to be
represented in its government and not to be discriminated against. These
rights are to be exercised within the State in which the population or the
ethnic group live, and thus constitute internal rights of
self-determination. They offer a variety of entitlements to the concerned
peoples within the borders of the State without threatening its sovereignty.
10. In contrast, claims to external self-determination by such ethnically or
racially distinct groups pose a challenge to international law as well as to
their own State, and most often to the wider community of States. Surely,
there is no general positive right under international law which entitles
all ethnically or racially distinct groups within existing States to claim
separate statehood, as opposed to the specific right of external
self-determination which is recognized by international law in favour of the
peoples of non-self-governing territories and peoples under alien
subjugation, domination and exploitation. Thus, a racially or ethnically
distinct group within a State, even if it qualifies as a people for the
purposes of self-determination, does not have the right to unilateral
secession simply because it wishes to create its own separate State, though
this might be the wish of the entire group. The availability of such a
general right in international law would reduce to naught the territorial
sovereignty and integrity of States and would lead to interminable conflicts
and chaos in international relations.
11. This does not, however, mean that international law turns a blind eye to
the plight of such groups, particularly in those cases where the State not
only denies them the exercise of their internal right of self-determination
(as described above), but also subjects them to discrimination, persecution
and egregious violations of human rights or humanitarian law. Under such
exceptional circumstances, the right of peoples to self-determination may
support a claim to separate statehood provided it meets the conditions
prescribed by international law, in a specific situation, taking into
account the historical context. Such conditions may be gleaned from various
instruments, including the Declaration on Principles of International Law
Concerning Friendly Relations and Co-operation Among States in Accordance
with the Charter of the United Nations, which, as stated by the Court in
paragraph 80 of the Advisory Opinion, reflects customary international law.
The Declaration contains, under the principle of equal rights and
self-determination of peoples, the following saving clause:
"Nothing in the foregoing paragraphs shall be construed as authorizing or
encouraging any action which would dismember or impair, totally or in part,
the territorial integrity or political unity of sovereign and independent
States conducting themselves in compliance with the principle of equal
rights and self-determination of peoples as described above and thus
possessed of a government representing the whole people belonging to the
territory without distinction as to race, creed or colour."
12. This provision makes it clear that so long as a sovereign and
independent State complies with the principle of equal rights and
self-determination of peoples, its territorial integrity and national unity
should neither be impaired nor infringed upon. It therefore primarily
protects, and gives priority to, the territorial preservation of States and
seeks to avoid their fragmentation or disintegration due to separatist
forces. However, the saving clause in its latter part implies that if a
State fails to comport itself in accordance with the principle of equal
rights and self-determination of peoples, an exceptional situation may arise
whereby the ethnically or racially distinct group denied internal
self-determination may claim a right of external self-determination or
separation from the State which could effectively put into question the
State's territorial unity and sovereignty.
13. Admittedly, the Kosovo situation is special in many ways. It is in the
context of its distinctive character and history that the question posed by
the General Assembly should have been analysed. The violent break-up of
Yugoslavia, the removal of the autonomy of Kosovo by the Serbian
authorities, the history of ethnic cleansing and crimes against humanity in
Kosovo described in the Milutinovic judgment of the ICTY (Prosecutor v.
Milan Milutinovic et al., Judgement of 26 February 2009), and the extended
period of United Nations administration of Kosovo which de facto separated
it from Serbia to protect its population and provide it with institutions of
self-government, are specific features that may not be found elsewhere. The
Court itself had occasion, in June 1999, to refer to the "human tragedy, the
loss of life, and the enormous suffering in Kosovo . . ." (Legality of Use
of Force (Yugoslavia v. Belgium), Provisional Measures, Order of 2 June
1999, I.C.J. Reports 1999 (I), p. 131, para. 16). Given this specific
context there was, in my view, sufficient material before the Court to allow
it to assess whether the situation in Kosovo reflected the type of
exceptional circumstances that may transform an entitlement to internal
self-determination into a right to claim separate statehood from the parent
State.
14. This question has been considered in other fora. For example, the
absence of such exceptional circumstances in the case of Katanga (DRC) was
described by the African Commission of Human and Peoples' Rights as follows
in the Katangese Peoples' Congress v. Zaire:
"In the absence of concrete evidence of violations of human rights to the
point that the territorial integrity of Zaire should be called to question
and in the absence of evidence that the people of Katanga are denied the
right to participate in government as guaranteed by Article 13 (1) of the
African Charter, the Commission holds the view that Katanga is obliged to
exercise a variant of self-determination that is compatible with the
sovereignty and territorial integrity of Zaire." (Case 75/92, Katangese
Peoples' Congress v. Zaire, p. 1.)
In other words, the Commission held that the Katangese people should
exercise their right to self-determination internally unless it could be
clearly demonstrated that their human rights were egregiously violated by
the Government of Zaire and that they were denied the right to participate
in government.
15. Similarly, the Canadian Supreme Court in the Reference re. Secession of
Quebec, while admitting that there may be a right to external
self-determination where a people is denied any meaningful exercise of its
right to self-determination internally, concluded as follows:
"A State whose government represents the whole of the people or peoples
resident within its territory, on a basis of equality and without
discrimination, and respects the principles of self-determination in its
internal arrangements, is entitled to maintain its territorial integrity
recognized by other States. Quebec does not meet the threshold of a colonial
people or an oppressed people, nor can it be suggested that Quebecers have
been denied meaningful access to government to pursue their political,
economic, cultural and social development." (Reference by the
Governor-General concerning Certain Questions relating to the Secession of
Quebec from Canada, ([1998] 2 S.C.R. 217; 161 D.L.R. (4th) 385; 115 Int. Law
Reps. 536), para. 154).
16. To determine whether a specific situation constitutes an exceptional
case which may legitimize a claim to external self-determination, certain
criteria have to be considered, such as the existence of discrimination
against a people, its persecution due to its racial or ethnic
characteristics, and the denial of autonomous political structures and
access to government. A decision by the Security Council to intervene could
also be an additional criterion for assessing the exceptional circumstances
which might confer legitimacy on demands for external self-determination by
a people denied the exercise of its right to internal self-determination.
Nevertheless, even where such exceptional circumstances exist, it does not
necessarily follow that the concerned people has an automatic right to
separate statehood. All possible remedies for the realization of internal
self-determination must be exhausted before the issue is removed from the
domestic jurisdiction of the State which had hitherto exercised sovereignty
over the territory inhabited by the people making the claim. In this
context, the role of the international community, and in particular of the
Security Council and the General Assembly, is of paramount importance.
17. In the specific case of Kosovo, the General Assembly has sought the
advisory opinion of the Court to shed light on the accordance of the
declaration of independence with international law which implied, in my
view, the need for an assessment of whether the special situation of this
territory, in view of its history and of the recent events that led to the
United Nations interim administration and to its declaration of
independence, could possibly entitle its people to a claim for separate
statehood without the consent of its parent State. The Court had a unique
opportunity to assess, in a specific and concrete situation, the legal
conditions to be met for such a right of self-determination to materialize
and give legitimacy to a claim of separation. It has unfortunately failed to
seize this opportunity, which would have allowed it to clarify the scope and
normative content of the right to external self-determination, in its
post-colonial conception, and thus to contribute, inter alia, to the
prevention of unjustified claims to independence which may lead to
instability and conflict in various parts of the world.
III. The Legal Nature of UNMIK Regulations
18. In paragraph 88 of the Advisory Opinion, the Court observes that: "[t]he
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". This
statement confuses the source of the authority for the promulgation of the
Kosovo regulations and the nature of the regulations themselves.
International administrations have to act in a dual capacity when exercising
regulatory authority. Although they act under the authority of international
institutions such as the United Nations, the regulations they adopt belong
to the domestic legal order of the territory under international
administration. The legislative powers vested in the SRSG in Kosovo under
resolution 1244 are not for the enactment of international legal rules and
principles, but to legislate for Kosovo and establish laws and regulations
which are exclusively applicable at the domestic level. The fact that the
exercise of legislative functions by the SRSG may be subject to the control
of international law, or that they may have been derived from the authority
conferred upon him by a resolution of the Security Council does not qualify
these regulations as rules of international law for the purposes of the
question put to the Court by the General Assembly.
19. The Constitutional Framework enacted by the SRSG operated as the
Constitution of the Provisional Institutions of Self-Government of Kosovo (PISG)
and was part of the internal laws of Kosovo which, as specifically provided
in UNMIK regulation 1999/24, consisted of: "(a) the regulations promulgated
by the Special Representative of the Secretary-General and subsidiary
instruments thereunder; and (b) the law in force in Kosovo on 22 March
1989". There are no differences in the legal effects or binding force of the
laws existing in Kosovo, irrespective of whether they were issued by UNMIK
or by Yugoslavia/Serbia before 1989. The Constitutional Framework as well as
all other regulations enacted by the SRSG are part of a domestic legal
system established on the basis of authority derived from an international
legal source. The existence of this authority does not however qualify them
as part of international law. Rather, they belong to the legal system which
governs Kosovo during the interim period and beyond. They are part of a
territorially-based legislation which was enacted solely and exclusively for
the administration of that territory. This is made clear by the interface
with pre-existing Yugoslav/Serbian legislation enacted before 1989 which is
also still in force in Kosovo.
20. The question put to the Court by the General Assembly concerns the
accordance of the declaration of independence of Kosovo with international
law. The Constitutional Framework enacted by the SRSG is not part of
international law. Even if the declaration of independence was adopted by
the PISG in violation of the Constitutional Framework, such action could
only be considered as ultra vires in respect of the domestic law of Kosovo,
and would have to be dealt with by the SRSG, in his quality as administrator
of the territory, or by the Supreme Court of Kosovo. Thus, there was no need
for the Court to state 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 (paragraph 109).
It is also a very unpersuasive argument.
21. The question on which the General Assembly requested the Advisory
Opinion explicitly referred to the "Declaration of Independence by the
Provisional Institutions of Self-Government of Kosovo". Moreover, the Court
was not requested to give an advisory opinion on the compatibility of the
declaration of independence with the Constitutional Framework which, in my
view, is not part of international law, and should not have therefore been
taken into account in assessing the accordance of the declaration of
independence of Kosovo with international law.
(Signed) Abdulqawi A. YUSUF. |
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