Che materia stai cercando?

Anteprima

ESTRATTO DOCUMENTO

- 17 -

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

in which the

Consequences of the Construction of a Wall in the Occupied Palestinian Territory,

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

was made in connection with

of the Construction of a Wall in the Occupied Palestinian Territory

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

p. 150, para. 30). These

Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I),

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

The situation in the occupied Palestinian territory had been under active

Palestinian Territory.

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

- 18 -

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,

p. 175; and

paragraph 2, of the Charter), Advisory Opinion, I.C.J. Reports 1962, 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

v.

Aerial Incident at Lockerbie (Libyan Arab Jamahiriya United Kingdom), Provisional Measures,

p. 15, paras. 39-41;

Order of 14 April 1992, I.C.J. Reports 1992, Questions of Interpretation and

Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan

v.

Arab Jamahiriya United States of America), Provisional Measures, Order of 14 April 1992,

pp. 126-127, paras. 42-44).

I.C.J. Reports 1992,

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 however, the Court responded to the question

Certain Expenses of the United Nations,

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

- 19 -

1961) (Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory

pp. 175-177). The Court also notes that, in its Advisory Opinion on

Opinion, I.C.J. Reports 1962,

Conditions of Admission of a State in the United Nations (Article 4 of the Charter)

pp. 61-62), it responded to a request from the General Assembly even

(I.C.J. Reports 1947-1948,

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,

p. 90). Where, as here, the General Assembly has a legitimate

Oral Arguments, Documents,

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. S COPE 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),

or where the Court determined, on the basis of

Advisory Opinion, 1928, P.C.I.J., Series B, No. 16)

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,

p. 89, para. 35). Similarly, where the question asked was

Advisory Opinion, I.C.J. Reports 1980,

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,

p. 348, para. 46).

I.C.J. Reports 1982,

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

p. 16 and

Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, Legal

Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory

p. 136). Accordingly, the Court does not consider that it is

Opinion, I.C.J. Reports 2004 (I), - 20 -

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

(General Assembly resolution 63/3 of 8 October 2008, single

Self-Government of Kosovo”

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 is in accordance with international law”

of Kosovo

(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.

- 21 -

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

([1998] 2 217;

Certain Questions relating to the Secession of Quebec from Canada S.C.R.

161 (4th) 385; 115 536), the Court observes that the question in the present

D.L.R. Int. Law Reps.

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, on whether

a fortiori,

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. F

III. ACTUAL 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

- 22 -

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, those stipulated in the Military Technical Agreement of

inter alia,

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);

Performing basic civilian administrative functions where and as long as required;

(b) Organizing and overseeing the development of provisional institutions for

(c) democratic and autonomous self-government pending a political settlement,

including the holding of elections;

Transferring, as these institutions are established, its administrative responsibilities

(d) while overseeing and supporting the consolidation of Kosovo’s local provisional

institutions and other peace-building activities;

Facilitating a political process designed to determine Kosovo’s future status,

(e) taking into account the Rambouillet accords (S/1999/648);

In a final stage, overseeing the transfer of authority from Kosovo’s provisional

(f) institutions to institutions established under a political settlement . . . ”

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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): interim civil

(a)

administration (with a lead role assigned to the United Nations); humanitarian affairs (with a

(b)

lead role assigned to the Office of the United Nations High Commissioner for Refugees

(UNHCR)); institution building (with a lead role assigned to the Organization for Security and

(c)

Co-operation in Europe (OSCE)); and reconstruction (with a lead role assigned to the European

(d)

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: The regulations

(a)

promulgated by the Special Representative of the Secretary-General and subsidiary instruments

issued thereunder; and The law in force in Kosovo on 22 March 1989”. Section 4, entitled

(b)

“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,

- 24 -

“[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 “[t]he Provisional Institutions of Self-Government and their

(a),

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.) - 25 -

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, that

inter alia,

“[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). - 26 -

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

- 27 -

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

to the governing authorities of Kosovo, unless otherwise provided for in this Settlement”

bloc

(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).

- 28 -

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

( tenth and eleventh

“[r]egrett[ed] that no mutually-acceptable status outcome was possible”

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), . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

- 29 -

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).

T

IV. HE 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,

- 30 -

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),

pp. 31-32, paras. 52-53; v.

Advisory Opinion, I.C.J. Reports 1971, East Timor (Portugal

p. 102, para. 29;

Australia), Judgment, I.C.J. Reports 1995, Legal Consequences of the

Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J.

pp. 171-172, para. 88). A great many new States have come into existence as a

Reports 2004 (I),

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

v.

Paramilitary Activities in and against Nicaragua (Nicaragua United States of America), Merits,

pp. 101-103, paras. 191-193), the General Assembly reiterated

Judgment, I.C.J. Reports 1986,

“[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, Security Council resolutions 216 (1965)

inter alia,

and 217 (1965), concerning Southern Rhodesia; Security Council resolution 541 (1983),

concerning northern Cyprus; and Security Council resolution 787 (1992), concerning the

Republika Srpska. - 31 -

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 In the

(jus cogens).

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 created by

lex specialis

Security Council resolution 1244 (1999). *

- 32 -

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

p. 16);

Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, Questions of

Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at

v.

Lockerbie (Libyan Arab Jamahiriya United Kingdom), Provisional Measures, Order of

p. 15, paras. 39-41;

14 April 1992, I.C.J. Reports 1992, Questions of Interpretation and

Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan

v.

Arab Jamahiriya United States of America), Provisional Measures, Order of 14 April 1992,

pp. 126-127, paras. 42-44). Resolution 1244 (1999) was expressly adopted by

I.C.J. Reports 1992,

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.

- 33 -

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 Similarly, as described above (see paragraph 62), under

(c)).

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

- 34 -

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, the framework of Security Council

within

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

p. 54, para. 116), irrespective of

Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971,

whether they played any part in their formulation. The interpretation of Security Council

- 35 -

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. that a political solution to the Kosovo crisis shall be based on the general

Decide[d]

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; Ann. 2, para. 8).

ibid.,

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. - 36 -

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.


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DESCRIZIONE DISPENSA

Questa dispensa si riferisce alle lezioni di Diritto Internazionale della Prof. ssa Antonietta Di Blase, tenute nell'anno accademico 2011.
Questo documento riporta il parere consultivo della Corte di Giustizia dell'Aja reso il 17 febbraio 2008 riguardo l'indipendenza del Kosovo.
La Corte dichiara la dichiarazione di indipendenza di questo Stato conforme al diritto internazionale generale, alla risoluzione ONU 1244 e al quadro costituzionale.


DETTAGLI
Corso di laurea: Corso di laurea magistrale in giurisprudenza
SSD:
A.A.: 2011-2012

I contenuti di questa pagina costituiscono rielaborazioni personali del Publisher Atreyu di informazioni apprese con la frequenza delle lezioni di Diritto Internazionale e studio autonomo di eventuali libri di riferimento in preparazione dell'esame finale o della tesi. Non devono intendersi come materiale ufficiale dell'università Roma Tre - Uniroma3 o del prof Di Blase Antonietta.

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