The General Assembly resolution requesting the Kosovo opinion and the ultra vires issue Dr. Raphaël van Steenberghe This note analyses the conclusions that the International Court of Justice ( ICJ ) held on its jurisdiction in the Kosovo case and, especially, those concerning the ultra vires nature of the resolution by which the UN General Assembly ( UNGA ) requested the advisory opinion. It is submitted that, while endeavouring to cleanse the resolution of any procedural irregularities, the Court sought at the same time to maintain its jurisdiction as broad as possible. This issue is only briefly addressed here. More detailed reflections on that issue as well as on all the other issues raised by the Court s advisory opinion may be found in a paper which will be soon published. 1 It is firstly argued in this note that the Court s conclusions on the establishment of its jurisdiction confirm its previous jurisprudence according to which the Court cannot be seized by a UNGA resolution if this resolution has been adopted ultra vires, although the UN Charter does not formally imply such validity requirement. It is also noticed that, contrary to previous advisory opinions, the Court sensibly discussed the question of whether the UNGA resolution encroached upon the powers of the Security Council not in the frame of its jurisdiction but exclusively in relation to its discretionary power to give the advisory opinion. It is finally argued that the conclusions held by the Court in that respect have further reduced the gap between the respective powers of the General Assembly and the Security Council. It is well known that, under the ICJ Statute which refers to Article 96, 1 of the UN Charter, the General Assembly, like the Security Council, benefits from a broad authority to request an advisory opinion to the ICJ. The only limit to this authority is that the requested opinion must be concerned with a legal question. The legal nature of the question put before the Court was difficult to deny in this case. Yet some States contested this nature by arguing that Postdoctoral researcher, Belgian National Fund for Scientific Research (FNRS); lecturer in humanitarian law at the University of Louvain (Belgium); professor at the Royal Military School of Belgium; member of the International Law Centre at the University of Louvain [raphael.vansteenberghe@uclouvain.be]. 1 R. van STEENBERGHE, A. CLAEYS BOÚÚAERT, «L avis de la Cour internationale de Justice sur l indépendance du Kosovo. Audace et retenue de la Cour au sujet d une question controversée», Revue de droit international et de droit comparé, forthcoming 2011.
Dr. Raphaël van Steenberghe the act of making a declaration of independence was a political act and could only be regulated by domestic law (which must be considered as a fact in light of international law). 2 According to those States, the question on the legality of the declaration of independence of Kosovo was not therefore a question pertaining to international law which could be submitted to the Court. Some States also emphasized that the question regarding the independence of Kosovo had strong political aspects which dominated over the legal ones. The Court easily refuted those arguments by relying on its well-established jurisprudence. According to the Court, the question was formulated in such way as requiring a proper legal analysis on the basis of international law and the political dimensions of the question could not prevent the Court from ruling on its legal aspects. 3 The Court could have stopped its reasoning at this point and concluded that it had jurisdiction to give an advisory opinion on the question asked by the UNGA resolution. It went quite further, however. Without expressly mentioning that it also had to analyse whether this resolution had not been adopted ultra vires, the Court actually embarked upon such analysis. It firstly analysed whether the question could be linked to any competence of the General Assembly. By acting in such way, the Court indirectly applied to the General Assembly the requirement which limits the authority of other institutions to request an advisory opinion to the Court. Under article 96, 2 of the UN Charter, UN specialized agencies as well as UN organs other than the General Assembly and the Security Council are indeed authorized to ask a question to the Court provided that this question falls within their activities. By verifying the existence of a link between the competences of the General Assembly and the question asked to the Court, the latter implicitly interpreted Article 96 of the UN Charter, deleting the distinction provided under this Article between the different institutions authorized to request an opinion. It is true that the terms used by the Court in that regard are not absolutely clear. The Court did not expressly state that the question put before it had to fall within the GA competences for being validly asked to the Court. It indeed merely asserted that [w]hile paragraph 1 of Article 96 confers on the General Assembly the competence to request an advisory opinion on any legal question, [it] had sometimes in the past given certain indications as to the relationships between the question which is the subject of a request for an advisory opinion and the activities of the General Assembly. 4 Such an indication has nevertheless become usual in the jurisprudence of the Court. 5 Should one consider it as unfounded? It seems that an advisory opinion could not enjoy full legitimacy if the General Assembly, having requested the opinion, is proved to have acted ultra vires. In this sense, it seems reasonable for the Court to cleanse the GA resolution of any procedural irregularities before establishing its jurisdiction. Having said that, it must be acknowledged that the GA competences are both so extended and extendable that an irregularity based on 2 ICJ, Accordance with international law of the unilateral declaration of independence in respect of Kosovo, 22 July 2010, 26-27. 3 Ibid. 4 Ibid., 21. 5 See the advisory opinions mentioned by the Court, ibid. 2
The Kosovo General Assembly resolution requesting the opinion and the ultra vires issue the absence of a link between such a competence and the question asked to the Court is largely improbable. In this case, the Court easily identified the GA competence on which the question fell, namely the maintenance of international peace and security. 6 This conclusion led the Court to discuss the second legal basis that the GA resolution had to respect in order to have been validly adopted. The Court indeed analysed whether the resolution violated Article 12, 1 of the UN Charter, according to which the General Assembly cannot make any recommendation with regard to a dispute or situation concerning the maintenance of international peace and security as long as the Security Council is effectively exercising its responsibility with respect to that dispute or situation. This question was particularly relevant since the situation relating to Kosovo was still on the agenda of the Security Council while the General Assembly, requesting the opinion, had not substantially treated this situation since 1999. In other words, the Court considered whether the GA resolution had not been adopted ultra vires because it was in violation of the rule establishing the respective powers of the General Assembly and the Security Council. It had actually already done so in its opinion in the Wall case. In this opinion, the requirement that the UNGA resolution be in accordance with the Article 12, 1 of the UN Charter was clearly formulated as a condition for a valid seizure of the Court by the General Assembly. 7 Although it is less clearly apparent in this case, it nonetheless remains that the respect for the rule pertaining to the balance of powers between the General Assembly and the Security Council seems - even more than the respect for the rule defining the GA competences - particularly important in order to give full legitimacy to the Court s opinion. The Court quickly settled this question. As already stated in the Wall case, the Court asserted that Article 12, 1 was not applicable since the request for an advisory opinion could not be considered as a recommendation. 8 In other words, according to the Court, the General Assembly could never encroach upon the powers of the Security Council when requesting an advisory opinion to the Court. Quite sensibly, the Court stopped its reasoning here, contrary to what it did in the Wall case. In the latter case, after having refused to equate a request for an advisory opinion to a recommendation, the Court nonetheless went further and analysed whether the adoption of the GA resolution did not violate Article 12, 1 of the UN Charter, curiously suggesting that this resolution could nevertheless be considered as a recommendation. 9 The Court then developed a long analysis regarding the evolution of the respective powers of the General Assembly and the Security Council. The Court did not follow this reasoning in the current case. It explicitly asserted that this question had to be discussed exclusively within the 6 Ibid., 22. 7 ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Rep. 2004, 25. See, for a similar observation, J.A. FROWEIN, K. OELLERS-FRAHAM, Article 65, in A. ZIMMERMANN, C. TOMUSCHAT, K. OELLERS-FRAHM (ed.), The Statute of the International Court of Justice. A Commentary, OUP, 2006, at 1407. 8 ICJ, Accordance with international law of the unilateral declaration of independence in respect of Kosovo, 22 July 2010, 24. 9 ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Rep. 2004, 25. 3
Dr. Raphaël van Steenberghe framework of its discretionary power regarding the exercise of its jurisdiction and, more particularly, in relation to the issue of whether the advisory opinion had been requested by the appropriate organ. 10 It is worth mentioning in this respect that, when addressing this question, the Court concluded that no compelling reason to decline to exercise its jurisdiction could be inferred from the fact that the opinion had been requested by the General Assembly although the situation relating to Kosovo had been mainly dealt with by the Security Council and was still on its agenda. 11 The Court mainly founded this conclusion upon its considerations held on Article 12, 1 of the UN Charter in the Wall case. Yet, in this case, the General Assembly requested an advisory opinion on the wall while the Security Council could not effectively exercise its responsibility because one permanent member vetoed a draft resolution concerning the wall. Moreover, the General Assembly had been constantly seized of the Middle East situation, long before requesting this opinion, on economic as well as other general aspects of this situation. In light of these circumstances, Article 12, 1 could still be interpreted as authorizing the General Assembly to make recommendations when the Security Council is clearly paralysed or when the recommendations do not directly concern the question dealt by the Security Council. It is difficult to maintain such an interpretation in the current case. Indeed, when the General Assembly requested an opinion on the declaration of independence of Kosovo, the Security Council was exercising its responsibility on the situation relating to Kosovo or at least was not formally paralysed. In the aftermath of the declaration, no draft resolution had been proposed to the SC members and therefore vetoed. In addition, as already mentioned above, the General Assembly was not dealing with substantial aspects of this situation since 1999. Moreover, the Court expressly asserted in its opinion that the General Assembly was entitled to make recommendations on a situation even when the Security Council was effectively exercising its responsibility regarding this situation, 12 and more particularly, on the question of the declaration of independence of Kosovo 13 although this question was directly concerned with the maintenance of international peace and security. It is therefore difficult to identify the remaining content of Article 12, 1 of the UN Charter. One may argue that this content at least implies, in light of the ratio legis of this provision, 14 that the General Assembly can only act if its action is not (likely) to be contrary to any (possible) SC action on the same issue. In this case, it seems that the request for an advisory opinion on the declaration of independence of Kosovo could not have been contrary to any SC resolution since there was no possible agreement between the member states on requesting an opinion to the Court. Assuming that the GA request for the advisory opinion 10 ICJ, Accordance with international law of the unilateral declaration of independence in respect of Kosovo, 22 July 2010, 24. 11 Ibid., 36-47. 12 Ibid., 42. 13 Ibid., 44. 14 See K. HAILBRONNER, E. KLEIN, Article 12, in B. SIMMA (ed.), The Charter of the United Nations. A Commentary, OUP, 2 nd ed., 2002, at 288 and 295. 4
The Kosovo General Assembly resolution requesting the opinion and the ultra vires issue was a recommendation, this request would not therefore be incompatible with (the ratio legis of) Article 12, 1 of the UN Charter. As shown above, the Court freely interpreted some fundamental UN provisions, especially those regulating the validity of UNGA resolutions requesting an advisory opinion. As expected, the result of those interpretations evidence that, while endeavouring to establish the validity of its seizure, the Court sought to keep its advisory jurisdiction as wide as possible in order to be able to answer to any legal question asked by the General Assembly. 5