INTERNATIONAL COURT OF JUSTICE REPORTS OF JUDGMENTS, ADVISORY OPINIONS AND ORDERS

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INTERNATIONAL COURT OF JUSTICE REPORTS OF JUDGMENTS, ADVISORY OPINIONS AND ORDERS Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in

1 INTERNATIONAL COURT OF JUSTICE REPORTS OF JUDGMENTS, ADVISORY OPINIONS AND ORDERS Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law? ADVISORY OPINION OF 2 MAY 2009 Article 96, paragraph 2 of the Charter and article 65, paragraph 2 of the statute of the Statute - Power of the General Assembly to give advisory opinion- Activities of General Assembly - Events leading to the request of advisory provision, adoption by the General Assembly of the Resolution 63/3 of 8 October 2008 Discretionary power of' Court to decide whether it should give an opinion.article 65, paragraph 1, of Statute 1

2 *** Applicable Law United Nations Charter - United Nations Security Council Resolution 1244/99 - Helsinki Final Act International Covenant on Economic, Social and Cultural Rights, Charter of Paris for a New Europe, General Assembly resolution 1514 (XV) of 14 December General Assembly resolution 2625 (XXV) of 24 October 1970, Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations - General Assembly resolution 217 (III) of 10 December 1948, Universal Declaration of Human Rights *** The Court: 1. The question raised on 8 October 2008 by the General Assembly, at its sixty-third session, resolution 63/3 by a recorded vote of 77 in favour to 6 against with 74 abstentions. The full text of the resolution containing the request reads: The General Assembly, Mindful of the purposes and principles of the United Nations, Bearing in mind its functions and powers under the Charter of the United Nations, Recalling that on 17 February 2008 the Provisional Institutions of Self-Government of Kosovo declared independence from Serbia, Aware that this act has been received with varied reactions by the Members of the United Nations as to its compatibility with the existing international legal order, Decides, in accordance with Article 96 of the Charter of the United Nations to request the International Court of Justice, pursuant to Article 65 of the Statute of the Court to render an advisory opinion on the following question: Is the unilateral declaration of independence by the Provisional Institutions of Self- Government of Kosovo in accordance with international law? 2. Pursuant to Article 65, paragraph 2, of the Statute, the Secretary-General of the United Nations communicated to the Court a dossier of documents likely to throw light upon the question. 2

3 3. Written statements were filed by the following actors: Republic of Serbia, Kosovo, Albania, Bosnia and Herzegovina, People s Republic of China, The Repubic of France, Russian Federation, Kingdom of Spain, United Kingdom, United States of America, European Union, N.A.T.O, O.S.CE and the United Nations *** 1. The Court must first consider whether it has the jurisdiction to give a reply to the request of the General Assembly for an advisory opinion and whether, should the answer be affirmative, there is any reason it should decline to exercise any such jurisdiction. 2. The Court draws its competence in respect of advisory opinions from Article 65, paragraph 1, of its Statute. Under this Article, 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". 3. The question put to the Court by the General Assembly is indeed a legal one, since the Court is asked to rule on the compatibility of the unilateral declaration by Kosovo with the relevant principles and rules of international law. To do so, the Court must identify the existing principles and rules, interpret them and apply them to the unilateral declaration of independence, thus offering a reply to the question posed based on international law. Furthermore, recalling the advisory opinion of the Court on the Legality of the Threat or use of Nuclear Weapons (ICJ Reports 1996, p.234, para 2). The fact that this question also has political aspects, as, in the nature of things, it is the case with so many questions which arise in international affairs, does not suffice to deprive it of its character as a "legal question" and to "deprive the Court of a competence expressly conferred on it by its Statute" (Application for Review of Judgement No. 158 of the United Nations Administrative Tribunal, Advisory Opinion, 1. C. J. Reports 1973, p. 172, para. 14). At the outset, it is thus necessary for the body requesting the opinion to be "authorized by or in accordance with the Charter of the United Nations to make such a request". The Charter provides in Article 96, paragraph 1, that: "The General Assembly or the Security Council 3

4 may request the International Court of Justice to give an advisory opinion on any legal question." Historical Background Between 1989 and 1997, then-president of former Yugoslavia Slobodan Milosevic clamped down in Kosovo with heavy security forces and revoked the province s autonomy. Under emergency measures, Albanians responded by self-declaring a Kosovo republic, electing a president (Ibrahim Rugova) and organising a parallel education system. In the Badinter Arbitration Committee appointed by the European Union (EU) to decide its state recognition guidelines in the former Yugoslavia ruled that republics should have the right of self-determination: Kosovo and Vojvodina, the two autonomous federal units suppressed by Belgrade, did not make the grade. Kosovo was also bypassed in the 1995 Dayton talks, which decreed a settlement in Bosnia-Herzegovina; thus, depriving the Kosovo Albanian peaceful resistance of any realistic hope of outside help. By the late 1990s, Serbs and Montenegrins had dropped to 15 per cent of Kosovo s population. In 1998, attacks in rural areas by Kosovo Liberation Army (KLA) formed by Kosovo Albanian rebel forces provoked heavy retaliation by Serbian security forces and fighting mushroomed across the Kosovo countryside through 1998, leaving 300,000 Albanians homeless by October, when a ceasefire was agreed and an international OSCE monitoring mission inserted. In 1999, as fighting resumed in February, the six-nation Contact Group (United States, United Kingdom, France, Germany, Italy and Russia) summoned both sides to talks in Rambouillet, France, and proposed the signing of an Interim Agreement for Peace and Self- Government in Kosovo which foresaw Kosovo s autonomy with NATO s Kosovo Force (KFOR) deployed in the province and Serbian forces (except for some border guards) withdrawn or demilitarised. The draft accord provided for an international meeting after three years to determine a mechanism for a Kosovo final settlement, on the basis of the will of the people, opinions of relevant authorities, each Party s efforts regarding the implementation of this Agreement, and the Helsinki Final Act. The Albanians signed on the understanding this meant they could hold a referendum on independence after three years, what Belgrade declined. 4

5 With Serbia continuing hostilities against the Kosovo Albanians, NATO launched a bombing campaign over Kosovo and rump Yugoslavia in March 1999, without a specific authorisation from the United Nations Security Council. After 78 days Milosevic capitulated, agreeing to admit the stationing of KFOR in Kosovo and to withdraw his forces. Prior to this, from March to June, Serbia drove more than 800,000 Kosovo Albanian refugees into neighbouring Albania, Macedonia and Montenegro nearly half of Kosovo s Albanian population and displaced hundreds of thousands more from their homes inside Kosovo. Serbian forces destroyed tens of thousands of homes and many mosques, embarked upon mass looting and rape, and murdered several thousand Kosovo Albanians. In June the UNSC passed Resolution 1244, mandating KFOR s presence and a UN interim administration (UNMIK) to establish and oversee Kosovo s provisional democratic institutions of self-government within a framework of Yugoslav sovereignty, pending a final settlement which was to take full account of the Rambouillet accords. Tens of thousands of Serbs fled Kosovo in mid-1999, fearing reprisals as Albanians returned. A wave of murders, kidnappings and other crimes were perpetrated against Serbs by Albanians through early 2000 as KFOR and UN police failed to enforce authority adequately. In 2001, UNMIK promulgated a Constitutional Framework, enabling parliamentary elections, the appointment of a president and a provisional government (PISG). It demarcated the spheres of UNMIK s fundamental reserved powers from those that could be transferred to the PISG. During 2002, with a provisional government formed, UNMIK head Michael Steiner created the Standards before Status policy as a stopgap local mission response to Kosovo Albanian demands for clarity on the status of Kosovo as the notional Rambouillet three-year deadline passed. The next year, the Contact Group revived after several years of inaction, agreeing in November to make Standards before Status operational with a range of benchmarks to be achieved; if the provisional government s progress warranted it, there would be a review of final status in mid

6 In March 2004, insecure conditions exploded into two days of Kosovo-wide mob attacks on Serb communities and UNMIK. UNMIK finally got its Standards before Status policy operational two weeks later, its spirit already utterly violated by the riots. The risk of renewed violent collapse and the concept of earned independence have driven the status process in uneasy tandem in the three years since. The Contact Group gave Kosovo a crucial reassuring signal in September; it would not return to the situation prevailing there before March 1999, i.e. no return to Serbian rule. In November, UNMIK allowed the provisional government three more ministries. In April 2005, the Contact Group excluded the partition of Kosovo or its union with any other country (i.e. Albania) in its status resolution. Kosovo s implementation of the Standards was judged sufficient for the status review to proceed. UN envoy Kai Eide reported in October that the rule of law was insufficiently entrenched, foundations for a multi-ethnic society had not been created, and Serbia had undermined Standards implementation by marshalling a partial Serb boycott of the provisional institutions. He proposed that Serb-majority municipalities have additional powers and links to Belgrade as a partial remedy and concluded that there was nothing to gain in further delaying a process to settle Kosovo s status. In October, the UN Secretary General appointed former Finnish president Martti Ahtisaari to lead this process. In November, the European Commission in effect separated its annual progress reports on Serbia, Montenegro and Kosovo, signalling their separate accession tracks. In December it decided to absorb the UN Standards into a European Partnership with Kosovo. The EU Council and Commission began planning post-status mission presences in Kosovo and stipulated that the status settlement should grant Kosovo treaty-making powers. In December UNMIK created the shells of future provisional government interior and justice ministries. In January 2006, the Contact Group ministers further elaborated their joint position, specifying that all possible efforts should be made to achieve a negotiated settlement in the course of 2006 and that it must be acceptable to the people of Kosovo. They emphasised the value of decentralisation to ensure minority communities future and as an impetus to the return of displaced persons who should be able to choose where they live in Kosovo (few of the tens of thousands Serbs who fled Kosovo have returned, despite this being one of the Standards benchmarks). 6

7 The ministers emphasised that the specificity of the Kosovo problem shaped by the disintegration of Yugoslavia and consequent conflicts, ethnic cleansing and the events of 1999, and the extended period of international administration under UNSCR 1244, must be taken into account in settling Kosovo s status. From February through September Ahtisaari s office (UNOSEK) engaged the negotiating teams of Kosovo and Serbia in several rounds of direct talks in Vienna and mounted a number of expert missions to both capitals. With possibilities for the sides to agree exhausted, Ahtisaari readied his proposal for release in November but agreed to delay it until after Serbia s elections, announced for 21 January In 2007, after the UN Security Council was unable to agree on a resolution backing supervised independence, the six-nation Contact Group s Troika the EU, U.S. and Russia started a new round of negotiations between Pristina and Belgrade. Talks ended on 10 December without a compromise status settlement; at a summit on 14 December, EU leaders discussed preparations to proceed towards supervised independence based on the Ahtisaari plan and the deployment of a 1,800-strong EU security and rule of law mission. On 17 February 2008, Kosovo declared independence, confirming its acceptance of the Ahtisaari plan, its approval for the EU to deploy new missions and for NATO to keep its force there. In Serbia, independence was met with street violence and government disunity its coalition government fell on 10 March. South of the River Ibar, Serbs have protested peacefully. In north Mitrovica and the compactly Serb-settled territory above it, reactions have been more militant. By now, the members of the Quint - France, Germany, Italy, the UK and the US - as well as many other EU states and countries further afield are in the process of recognising Kosovo s independence amid continued Serbian and Russian objection. In October 2008, the United Nations General Assembly (UNGA) passed a resolution which posed the question on the legality of Kosovo Independence to Court. *** Legal background of the issues examined 7

8 Among the different issues debated during the sessions, special attention was paid to the specificities of the UNSC Resolution 1244 (1999). The debate focused on the questions whether the measures agreed by the Council regarding the obligations imposed to the different parts were still binding after 10 years; what the Status of the territory was at the time and whether it had suffered any modification; how the duties of the international civil administration - namely, the transfer of authority to the institutions created by final settlement and the promotion of autonomy and self-government, although expressly conditioned to a final settlement - have to be interpreted, and how these duties had been transferred to the Government of the Republic of Kosovo, in case they had ever been. Moreover, other questions debated were what legal value the Rambouillet Accords guidelines still held; what the customary validity of the Helsinki Final Acts of 1975 was, and - if proven - to which articles it applied. However, the most heated debate was centred on the question of whether there exists a legal right to secession deriving from the right to self-determination, and, if it exists, what the effects of human rights violations were on a right to unilaterally declare independence. One of the aspects coming out from the forementioned debate turned out to be especially relevant: the question whether the international law framework established for the decolonisation should be extended to cases such as Kosovo. The Court, pursuant Art. 38 of its Statue, focused on the treaty law recognized by the parties and the principles of International law found in Resolution 2625 (XXV) of the UNGA. Although the agents before the Court did not share a common position which could allow them to reach a consensus in their advice before the Court - some advocating for a stricto sensu interpretation and others proposing that a new interpretation of the concept of colonialism should be adopted in adaptation of nowadays reality - the Court found that no direct established link between the era of decolonisation and the case of Kosovo existed. Finally, the debate came to analyse the effects of unilateral declarations of States, such as the recognition of a State and the declaration of independence, and how those effects are influenced by events such as war and the international administration of a territory. Considering all the above, THE COURT DECIDES 8

9 ****** A. Unanimously, There is neither in customary nor in conventional international law any specific authorization of the unilateral declaration of independence B. Unanimously, There is neither in customary nor in conventional international law any comprehensive and universal prohibition of the unilateral declaration of independence as such; C. Unanimously, Only a threat of use or a use of force with the purpose of taking control over a given territory is contrary to Article 2, paragraph 4, of the United Nations Charter and so this article does not entail any legal effects in the present case. D. Unanimously, The Court reaffirms the principles of both territorial sovereignty and self-determination. However, in view of the current state of international law and of the elements of fact at its disposal, the Court cannot conclude definitively whether a unilateral declaration, such as the one examined by the Court, can have a legal value in terms of international law. 9

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