Advisory opinion on Kosovo's declaration of independence


Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo was a request for an advisory opinion referred to the International Court of Justice by the United Nations General Assembly regarding the 2008 Kosovo declaration of independence. The territory of Kosovo is the subject of a dispute between Serbia and the Republic of Kosovo established by the declaration. This was the first case regarding a unilateral declaration of independence to be brought before the court.
The court delivered its advisory opinion on 2010; by a vote of 10 to 4, it declared that "the adoption of the declaration of independence of 17 February 2008 did not violate general international law because international law contains no 'prohibition on declarations of independence'": nor did the adoption of the declaration of independence violate UN Security Council Resolution 1244, since this did not describe Kosovo's final status, nor had the Security Council reserved for itself the decision on final status. There were many reactions to the decision, with most countries which already recognise Kosovo hailing the decision and saying it was "unique" and does not set a precedent; while many countries which do not recognise Kosovo said they would not be doing so as the ruling could set a precedent of endorsing secession in other places.

Background

The 2008 Kosovo declaration of independence was adopted on 2008 in a meeting of the Assembly of Kosovo. It was the second declaration of independence by Kosovo's ethnic-Albanian political institutions, the first having been proclaimed on 1990.
Serbia decided to seek international validation and support for its stance that the declaration of independence was illegal at the International Court of Justice.
Whether the declaration was in fact an official act of the Provisional Institutions of Self-Government was unclear; in the end, [|the Court determined] it was issued by "representatives of the people of Kosovo" acting outside the normal Provisional Institutions of Self-Government. This was significant, since the Serbian argument was that the Kosovo Provisional Institutions of Self-Government had exceeded the authority given to them by the Constitutional Framework. In September 2012, international supervision ended, and Kosovo became responsible for its own governance.

United Nations request

On 26 March 2008, the Government of Serbia announced its plan to call on the International Court of Justice to rule on the declaration of Kosovo's secession. Serbia sought to have the court's opinion on whether the declaration was in breach of international law. Also, an initiative seeking international support was undertaken at the United Nations General Assembly when it gathered again in New York in September 2008.
On 15 August 2008, Serbian Foreign Minister Vuk Jeremić officially filed a request at the United Nations seeking opinion of the International Court of Justice.
The resolution was worded as follows:
On 30 September 2008, in a trial vote, the Serbian initiative was backed by 120 member states. In the real vote, the United Nations General Assembly adopted this proposal as Resolution 63/3 on 2008 with 77 votes in favour, 6 votes against and 74 abstentions.
The 77 countries that voted for the initiative A/63/L.2 of Serbia were: Algeria, Angola, Antigua and Barbuda, Argentina, Azerbaijan, Belarus, Bolivia, Botswana, Brazil, Brunei, Cambodia, Chile, China, Costa Rica, Cuba, Cyprus, Democratic Republic of the Congo, Djibouti, Dominica, Dominican Republic, East Timor, Egypt, El Salvador, Equatorial Guinea, Eritrea, Fiji, Greece, Guatemala, Guinea, Guyana, Honduras, Iceland, India, Indonesia, Iran, Jamaica, Kazakhstan, Kenya, Kyrgyzstan, Lesotho, Liechtenstein, Madagascar, Mauritius, Mexico, Montenegro, Myanmar, Namibia, Nicaragua, Niger, Nigeria, North Korea, Norway, Panama, Papua New Guinea, Paraguay, Philippines, Republic of the Congo, Romania, Russia, Saint Vincent and the Grenadines, Serbia, Singapore, Slovakia, Solomon Islands, South Africa, Spain, Sri Lanka, Sudan, Suriname, Swaziland, Syria, Tanzania, Uruguay, Uzbekistan, Vietnam, Zambia and Zimbabwe.
The 6 countries that opposed the initiative were: Albania, Federated States of Micronesia, Marshall Islands, Nauru, Palau and United States.
The 74 countries that abstained from voting were: Afghanistan, Andorra, Armenia, Australia, Austria, Bahamas, Bahrain, Bangladesh, Barbados, Belgium, Belize, Benin, Bhutan, Bulgaria, Burkina Faso, Cameroon, Canada, Colombia, Croatia, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Ghana, Grenada, Haiti, Hungary, Ireland, Israel, Italy, Japan, Jordan, Latvia, Lebanon, Lithuania, Luxembourg, Macedonia, Malaysia, Malta, Moldova, Monaco, Mongolia, Morocco, Nepal, the Netherlands, New Zealand, Oman, Pakistan, Peru, Poland, Portugal, Qatar, Saint Lucia, Samoa, San Marino, Saudi Arabia, Senegal, Sierra Leone, Slovenia, South Korea, Sweden, Switzerland, Thailand, Togo, Trinidad and Tobago, Uganda, Ukraine, United Arab Emirates, United Kingdom, Vanuatu, and Yemen.
Officially the following countries were absent: Bosnia and Herzegovina, Burundi, Cape Verde, Chad, Côte d'Ivoire, Ecuador, Ethiopia, Gabon, Gambia, Iraq, Kiribati, Kuwait, Laos, Libya, Malawi, Maldives, Mali, Mauritania, Mozambique, Rwanda, Saint Kitts and Nevis, Seychelles, Tonga, Tunisia, Turkey, Turkmenistan, Tuvalu and Venezuela.
The following states were not allowed to vote due to the lack of payments to the UN: Central African Republic, Comoros, Guinea Bissau, Liberia, São Tomé and Príncipe, Somalia and Tajikistan.

Provision of documents by the United Nations

On 9 October 2008, the UN Secretariat informed the ICJ that it had begun the preparation of a dossier containing all documents relevant to the legal question before the Court, representing the body of international law on the question.
Aside from introductory notes, the dossier contained a copy of UN Security Council Resolution 1244, deliberations of the Security Council, official reports on the activities of the United Nations Mission in Kosovo, reports on the NATO-led security force KFOR, regulations and international agreements entered into by UNMIK, reports on the activities of the Provisional Institutions of Self-Government and on the Kosovo Status Process. Also included were 'general international law instruments – universal and regional', such as copies of the UN Charter, Helsinki Final Act, and various agreements on civil and human rights, as well as other legal documents from the wider Balkans.

Court proceedings

Written statements

On 21 April 2009, the ICJ announced that 35 member states of the United Nations had filed written statements within the time-limit fixed by the court on the question of the legality of Kosovo's UDI. Kosovo also filed a written contribution. Written statements were submitted by the following states : the Czech Republic, France, Cyprus, People's Republic of China, Switzerland, Romania, Albania, Austria, Egypt, Germany, Slovakia, Russia, Finland, Poland, Luxembourg, Libya, the United Kingdom, the United States of America, Serbia, Spain, Iran, Estonia, Norway, the Netherlands, Slovenia, Latvia, Japan, Brazil, Ireland, Denmark, Argentina, Azerbaijan, Maldives, Sierra Leone, and Bolivia. This was the first time that China had officially submitted an opinion in a case in front of the ICJ. States and organisations which had presented written statements were allowed to submit written comments on the other statements by 2009. Venezuela was also allowed to submit documents, even though it failed to meet the deadline. The most extensive written statement was supplied by Serbia, followed by the United States, the United Kingdom, Germany, Cyprus, Albania, Argentina, France, Spain and Russia, while Libya submitted one of the shortest statements. Cyprus supplied a list of Europe's regions that can be expected to follow suit and announce similar separatist moves. Russia and Slovenia argued whether the case of Kosovo is unique or not.
The ICJ also invited the UN Secretary-General Ban Ki-moon to send his statement. His document contains three parts, with the first reminding of the process that led to the ICJ case. The second explains the establishment of the UN mission in Kosovo and cites "two relevant dates": March 1998 as the beginning of UN engagement in Kosovo, and February 2008, which is mentioned as the "closing date", i.e., the date when the proclamation was made. Ban writes about provisions of international law relevant to the case in the third part of his written statement, without expressing his position in favour of or against the province's independence.
Fourteen States which presented written statements also submitted written comments on the other written statements. These States are : France, Norway, Cyprus, Serbia, Argentina, Germany, Netherlands, Albania, Slovenia, Switzerland, Bolivia, United Kingdom, United States of America, and Spain. The authors of the unilateral declaration of independence submitted a written contribution containing their comments on the written statements.

Public hearings

The public hearings opened on 1 December 2009. During these hearings, statements and comments were presented orally by some of the United Nations Member States, and by representatives from Kosovo.
Serbia and Kosovo were given three hours to present their case on 2009. 27 other states were given 45 minutes each, being heard in French alphabetical order. The proceedings lasted until 2009.
At the end of public hearings, judges Abdul Koroma, Mohamed Bennouna and Antônio Augusto Cançado Trindade gave all parties until 2009, to answer questions related to claims that international law does not prohibit secession, regarding promises by participants of the parliamentary elections in Kosovo in 2007 to declare independence and the provisions of the Rambouillet accords from 1999.

Legal arguments

Against the declaration

The legal arguments against the unilateral declaration of independence provided by the various states focus on the protection for the territorial integrity of FRY in various significant international documents, including in the UN Charter and in UN Security Council Resolution 1244:
The arguments presented are not in general arguments against the moral right of Kosovo Albanians to self-determination, but focus on the legality or otherwise of the unilateral action of the Provisional Institutions of Self-Government. As UNSCR 1244 vested all authority in Kosovo in the Special Representative of the Secretary-General, the argument is that the Provisional Institutions had no power to declare independence.

In support of the declaration

The arguments presented in support of the unilateral declaration of independence cover five main aspects. The first is the presumption in international law that civil and human rights, including of minorities, should be protected, with the aim of demonstrating that these rights were abused by the then-governing Milošević administration. The second is the stress given in the appendices of documents such as UNSCR 1244 to a political process to determine final status, with the aim of demonstrating that such a process had been successfully concluded with the Kosovo Status Process. The third is that the references to the territorial integrity of Serbia are only in the preambular language and not in the operational language. The document is therefore silent as to what form the final status of Kosovo takes. The fourth is that the principle of territorial integrity constrains only other states, not domestic actors. The fifth is that the right of self-determination, which the ICJ found to be jus cogens in the East Timor case, is a right of all peoples, not only of those in a colonial context.
Another key argument is one of consistency – in the last legitimate Yugoslav Constitution, Kosovo had the same legal right to self-determination that was the basis for independence of five of the six Yugoslav Republics: Croatia, Slovenia, Montenegro, Macedonia and Bosnia and Herzegovina. Namely, in a series of constitutional amendments between 1963 and 1974, Yugoslavia had elevated the two autonomous regions, Kosovo and Vojvodina, to essentially the same legal status as the republics, with their own administration, assembly and judiciary, and equal participation in all the Federal bodies of Yugoslavia. Crucially, they held the same power of veto in the Federal Parliament, and were equally responsible for implementing, enforcing and amending the Yugoslav Constitution, as well as the ratification of agreements and the formulation of Yugoslav foreign policy. In the 1980s, the Milošević administration disbanded the institutions of Kosovo and unilaterally changed the constitution to strip the autonomous regions of these powers. This argument was invoked by Croatia in the ICJ process.

Implications for international law

The declaration of independence triggered an international debate over whether the case has set a precedent that could apply to other separatist movements or is a special case. The recognition of Kosovo's independence by out of 193 UN states, according to many sources, has given fresh impetus to other separatist movements. Months afterwards, Russia recognised Abkhazia and South Ossetia citing Kosovo's independence, which it did not recognise, as a precedent. It ultimately also led to increased tensions in Bosnia-Herzegovina, where Republika Srpska vetoed the Kosovo recognition on the ground that it would then secede in order to make up for the loss to Serbia.
The advisory opinion by the court was seen to have set a possible precedent that could have far-reaching implications for separatist movements around the world, and even for Serbia's EU membership talks. It was also read as being likely to lead to more countries recognising Kosovo's independence.
The ICJ itself limited the scope of its decision by stating that it "is not required by the question it has been asked to take a position on whether international law conferred a positive entitlement on Kosovo unilaterally to declare its independence or, a fortiori, on whether international law generally confers an entitlement on entities situated within a State unilaterally to break away from it"

Expectations

The day before the verdict, then President of Serbia Boris Tadić said that Serbia was ready for any decision, but believed the ICJ would fulfill its mission. Prior to the verdict the Belgian ambassador to Serbia, Denise de Hauwere, said Belgium hoped Belgrade would act wisely after the ICJ opinion was given saying "good relations with Kosovo are vital for Europe and that Belgium wants Serbia in the European Union, but that Serbia's fate is in its own hands. We expect that the reaction of all sides that are involved will be constructive." The Belgian Foreign Minister Steven Vanackere also reiterated his call in that he "hopes that all the parties concerned will react responsibly and will take on board the opinion of the International Court of Justice".
The Prime Minister of Republika Srpska, Milorad Dodik, said that regardless of the ruling " will not destabilise anything. We will continue to pursue our recognizable policy ... respecting the territorial integrity of Bosnia-Herzegovina. However, if some other opinions are made, nobody can expect those who read the opinion not to interpret it as a message for the future."
Prior to the judgment, US Vice President Joe Biden said that the U.S. would not contemplate a retreat from Kosovo's independent status, while he also sought to reassure the Kosovar Prime Minister of the U.S.'s support. While State Department legal adviser Harold Koh said "Serbia seeks an opinion by this court that would turn back time ... undermine the progress and stability that Kosovo's declaration has brought to the region."

Verdict

Ruling

On 22 July 2010, the court ruled that the declaration of independence was not in violation of international law. The President of the ICJ Justice Hisashi Owada said that international law contains no "prohibition on declarations of independence." The court also said while the declaration may not have been illegal, the issue of recognition was a political one.
The question put to the Court concerned the legality of a declaration of independence made by the Provisional Institutions of Self-Government, institutions whose powers were limited to those conferred under the framework of a United Nations Security Council Resolution. None of the participants in the proceedings had argued that those institutions had not made the declaration. Nonetheless, the Court determined that the declaration of independence was not issued by the Assembly of Kosovo or otherwise by Provisional Institutions of Self-Government or any other official body. Once this crucial determination was made, the question the Court had to answer no longer concerned any action of the Provisional Institutions of Self-Government, as the Court had determined that those institutions had not made the declaration of independence.
In finding this, the Court referred to the fact that the declaration did not follow the legislative procedure; and was not properly published. The Court held that the words Assembly of Kosovo in the English and French variants were due to an incorrect translation and were not present in the original Albanian text, thus the authors, who named themselves "representatives of the people of Kosovo" were not bound by the Constitutional Framework created by the UNMIK which reserved the international affairs of Kosovo solely to the competency of the UN representative.
The judgment also stated that the Court did not "feel that it is necessary" to address "whether or not Kosovo has achieved statehood" or "whether international law conferred a positive entitlement on Kosovo unilaterally to declare its independence."

Voting breakdown

The concluding paragraph of the advisory opinion, which is the operative part of the ruling contains three vote tallies: it proclaims that the Court unanimously found that it had jurisdiction to reply to the General Assembly's request for an advisory opinion; given that the case law of the Court recognises that it has the discretion to comply with such requests, the Court decided by nine votes to five to comply with this particular advisory opinion request. And, on the merits of the case, by ten votes to four, the Court decided that the declaration of independence was not in violation of international law.

Reactions

Reactions to the verdict came from states, international organisations and non-state actors. Kosovo praised the verdict and said it can now move on with more recognitions and possible memberships of the EU and the UN. Serbian reactions were negative to the verdict while policymakers met in an emergency session to discuss Serbia's next steps to preserve its "territorial integrity" while vowing never to recognise Kosovo as an independent state, despite Kosovar calls to the contrary. The EU countries that recognised Kosovo praised the verdict and call for dialogue between Kosovo and Serbia, they also called for other states to now recognise Kosovo; all five EU states that have not recognised Kosovo stated that the decision is a narrow view only on the text of the declaration and they would not change their positions. Other states said nothing would change as a result. All supranational bodies supported the verdict in at least some part; while non-state actors hailed the precedent this opinion allows for. The majority opinion was subject to legal criticism by some commentators.
Karabakhi and Bosnian reactions were the most notable. The former celebrated the opinion as a precedent set and signalled a possibility of asking the ICJ for a similar opinion on the Nagorno-Karabakh conflict; while the latter was heavily split with politicians from the Republika Srpska saying that at some point in the future it could legally declare independence, and politicians from the Federation of Bosnia and Herzegovina saying that the opinion should not harm the country's status. Other notable reactions were Russia's opposition to the verdict, while Abkhazia and South Ossetia hailed it.