"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 SelfGovernment 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?’"
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.
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.
|for the Republic of Serbia :||H.E. Mr. Dusan T. Bataković, Ph.D. 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. Sasa Obradovic, 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||Mr. Zlatko Dimitroff, S.J.D., Director of the International|
|of Bulgaria :||Law Department, Ministry of Foreign Affairs, Head of Delegation ;|
|for the Republic||Mr. Thomas Barankitse, Legal Attaché, Counsel,|
|of Burundi:||Mr. Jean d’Aspremont, Associate Professor, University of Amsterdam, Chargé de cours invité, Catholic University of Louvain, Counsel ;|
|for the People’s||H.E. Madam Xue Hanqin, Ambassador to the Association|
|Republic of China:||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||H.E. Mr. James Droushiotis, Ambassador of the|
|of Cyprus:||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||H.E. Madam Andreja Metelko-Zgombic, Ambassador,|
|of Croatia :||Chief Legal Adviser in the Ministry of Foreign Affairs and European Integration ;|
|for the Kingdom||H.E. Mr. Thomas Winkler, Ambassador, Under-|
|of Denmark :||Secretary for Legal Affairs, Ministry of Foreign Affairs, Head of Delegation;|
|for the Kingdom||Ms Concepción Escobar Hernández, Legal Adviser,|
|of Spain:||Head of the International Law Department, Ministry of Foreign Affairs and Co-operation, Head of Delegation and Advocate;|
|for the United States||Mr. Harold Hongju Koh, Legal Adviser, Department|
|of America:||of State, Head of Delegation and Advocate;|
|for the Russian||H.E. Mr. Kirill Gevorgian, Ambassador, Head of the|
|Federation:||Legal Department, Ministry of Foreign Affairs, Head of Delegation ;|
|for the Republic||Ms Paivi Kaukoranta, Director General, Legal Serv-|
|of Finland:||ice, Ministry of Foreign Affairs, Mr. Martti Koskenniemi, Professor at the University of Helsinki;|
|for the French||Ms Edwige Belliard, Director of Legal Affairs, Minis-|
|Republic:||try of Foreign and European Affairs, Mr. Mathias Forteau, Professor at the University of Paris Ouest, Nanterre-La Défense;|
|for the Hashemite||H.R.H. Prince Zeid Raad Zeid Al Hussein, Ambassa-|
|Kingdom of||dor of the Hashemite Kingdom of Jordan to the|
|Jordan :||United States of America, Head of Delegation ;|
|for the Kingdom||Mr. Rolf Einar Fife, Director General, Legal Affairs|
|of Norway :||Department, Ministry of Foreign Affairs, Head of Delegation ;|
|for the Kingdom||Ms Liesbeth Lijnzaad, Legal Adviser, Ministry of For-|
|of the Netherlands:||eign 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||Mr. Daniel Bethlehem Q.C., Legal Adviser to the For-|
|Kingdom of Great||eign and Commonwealth Office, Representative of|
|Britain and North-||the United Kingdom of Great Britain and North-|
|ern Ireland :||ern Ireland, Counsel and Advocate, Mr. James Crawford, S.C., Whewell Professor of Inter-|
|national Law, University of Cambridge, Member of the Institut de droit international, Counsel and Advocate;|
|for the Bolivarian||Mr. Alejandro Fleming, Deputy Minister for Europe|
|Republic of||of the Ministry of the People’s Power for Foreign|
|for the Socialist||H.E. Madam Nguyen Thi Hoang Anh, Doctor of Law,|
|Republic of||Director-General, Department of International|
|Viet Nam:||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 pre-|
|16. Judge Shi took part in the oral proceedings ; he subsequently resigned from the Court with effect from 28 May 2010.|
"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."
"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.)
"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."
"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.
"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."
"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.
"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).
"Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law ?"
"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.
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 selfdetermination 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 ?"
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).
"(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... ".
"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."
"[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, United Nations doc. S/2001/ 565, 7 June 2001).
"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, United Nations doc. S/PRST/2005/51.)
"[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, United Nations doc. S/2005/ 709.)
"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 co-operation 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.)
"[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] deter-mine[d] that Kosovo ha[d] implemented the terms of [the] Settlement" (ibid., Art. 5.2).
In its relevant passages, the declaration of independence states that its authors were "[c]onvened in an extraordinary meeting on 17 February 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).
"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 multiethnic 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 decisionmaking 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..."
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.
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.
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.
"[a] political process towards the establishment of an interim political framework agreement providing for a substantial selfgovernment 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.
"(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 organizations..." (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.
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.
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.
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.
"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.)
"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.
Finds that it has jurisdiction to give the advisory opinion requested ;
(2) By nine votes to five,
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.
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