For this time around, I take the chance to analyse a case that remains on trend: self-determination of a nation. I have studied this particular topic for the course of International Law, that I am studying in the masters programme I am pursuing in Denmark.
It is an observation and analysis of some aspects of the Advisory Opinion of the International Court of Justice on the Unilateral Declaration of Indepence of Kosovo.
Brief summary of the case
International Court of Justice, located in The Hague, Netherlands. Credits of the photography to Google Images
On 22 July 2010, the International Court of Justice (hereinafter ICJ) delivered its advisory opinion in response to a question set out in resolution 63/3 dated 8 October 2008 of the General Assembly of the United Nations Organization (hereinafter General Assembly) on the accordance with international law of the unilateral declaration of independence of Kosovo. The ICJ concluded that the declaration of independence dated 17 February 2008 did not violate any applicable rule of international law consisting of general international law, United Nations Security Council Resolution 1244 (1999) (hereinafter resolution 1244) and the Constitutional Framework for Provisional Self-Government.
Resolution 1244 of the Security Council and the Constitutional Framework.
The ICJ refers to this particular mandate by recognizing that resolution 1244 was expressly adopted under Chapter VII of the Charter of the United Nations (UN), so it imposes international legal obligations. It adds that the resolution, which deals specifically with the situation in Kosovo, is part of the applicable law in this case, which was not questioned by any of the States participating in the process[1].
Next, the ICJ examines if the Constitutional Framework also corresponds to the applicable international law or whether, as several participants noted, is an act of domestic law. If deemed domestic law, the question of the compatibility of the declaration of independence would be outside the scope of the question posed by the General Assembly.
Briefly reasoning and certainly not without its critics, the ICJ notes that the regulations from UN Mission in Kosovo (MIK), within which is included the Constitutional Framework, are published by the Special Representative of the Secretary General (hereinafter SRSG) of the UN under the authority conferred by Resolution 1244 and, ultimately, by the Charter of the UN. Thus, the ICJ considers that the binding force of the Constitutional Framework derives from the binding nature of Resolution 1244, that is, International Law, covering, then international legal character itself[2].
Next, the ICJ notes that the Constitutional Framework is part of a special law applicable only in Kosovo and aims to regulate only during the interim phase, issues that usually would be subject to domestic law, not international law[3]. The Court enhances that both Resolution 1244 and the Constitutional Framework were still in force and be applicable on 17 February 2008[4], giving considerable supervisory power to the SRSG on the work of the Provisional Institutions of Self-Government of Kosovo (PISG)[5] and constituting international law applicable to the situation at that time, which must be considered to answer the question posed by the General Assembly in its request for an advisory opinion[6].
Interpretation of the Resolution 1244 of the Security Council
The ICJ must remember various aspects concerning the interpretation of the resolutions of the Security Council of the United Nations, which is considered one of the great contributions of advisory opinion.
In this regard, the ICJ notes that, although relevant appeal to the rules of interpretation of treaties set forth in the Vienna Convention on the Law of Treaties, the differences between Security Council resolutions and treaties require that other factors be taken into account when interpreting the first ones[7].
The resolutions, the ICJ added, are approved by a single collegial body, are drafted following a very different voting procedure that of used for the conclusion of a treaty, in which the opinion of the Security Council is presented as a body and the resolutions can be binding on all Members, regardless of whether or not states have participated in its formulation.
Therefore, the ICJ indicates that the interpretation of the resolutions may require to analyze, among others, statements formulated by the representatives of the members of the Security Council at the time of approval and other resolutions that deal with the same question and the subsequent practice of relevant UN bodies and States affected by those decisions[8].
With regard to Resolution 1244, the ICJ states that it must be interpreted in light of the general principles set out in Annexes 1 and 2, principles that were trying to resolve the crisis in Kosovo ending firstly the violence and repression, in order to establish an interim administration which aimed to long-term implementation of a political process that would finally establish an agreement on an interim political framework providing for a substantial self-government for Kosovo, taking into account the Rambouillet accords and the principles of sovereignty and territorial integrity of the Federal Republic of Yugoslavia (hereinafter FRY)[9].
Republic of Kosovo. Credit of the photography to wikipedia.org
Keeping this in mind, the ICJ recognized a number of features of the Resolution 1244.
First, it notes that the resolution provides an international civil and security presence in Kosovo with full civil and political authority and exclusively responsible for the governance of Kosovo. Thus, estimates that Resolution 1244 and the Constitutional Framework were designed to replace the Serbian legal system and establish an international administration of the territory, so that the deployment of both presences should be understood as an exceptional measure on civil, political and security aspects designed to respond to the crisis that existed in that territory in 1999 [10].
Second, the ICJ indicates that the solution contained in Resolution 1244, namely the establishment of an interim international administration of the territory, was to suspend temporarily the exercise of authority derived from Serbian sovereignty that was still in force over the territory of Kosovo. Furthermore, the purpose of the legal regime established by resolution was to settle, organize and supervise the development of the PISG in Kosovo under the auspices of the Temporary International Presence[11].
Third, the ICJ noted that Resolution 1244 is establishing a provisional regime and cannot be interpreted as settling a permanent institutional framework in Kosovo. UNMIK should only facilitate the desired negotiated solution to the future status of Kosovo, without prejudging the outcome of the bargaining process[12].
In conclusion, the ICJ finds that the object and purpose of Resolution 1244 was to establish a temporary exceptional legal regime, which replaced the Serbian legal system except in certain exceptional cases, which aimed to stabilize Kosovo and to be applied provisionally[13].
The opinions of the judges, can be found in the following link.
Christopher J. Borgen[14] assesses that the Resolution 1244 neither promotes nor prevents Kosovo’s secession. Although operative paragraph 1 of the Resolution 1244 states that a political solution shall be based on the principles of Annexes 1 and 2, those annexes are silent as to the governmental form of the final status.
The annexes only state that an «interim political framework» shall afford substantial self-governance for Kosovo and take into account the territorial integrity of Federal Republic of Yugoslavia. Paragraph 11(a), states that the international civil presence will promote «the establishment, pending a final settlement, of substantial autonomy and self-government in Kosovo…». The substantial autonomy language is thus addressed to the interim status of Kosovo. Moreover, Borgen notes, 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.
Borgen continues that in addition to the Resolution 1244, Kosovo’s independence can be assessed under the international law of secession. While international law does not foreclose on the possibility of secession, it does provide a framework within which certain secessions are favored or disfavored, depending on the facts. The key is to assess whether or not Kosovo meets the criteria for the legal privilege of secession.[15]
My opinion about the case
For the ICJ, the Resolution 1244, which sets international obligations, aims to regulate and impose a transitional period of international administration for Kosovo, a territory in which the control by Serbia is temporarily suspended, in order to achieve the establishment, pending its final status, of a system of substantial autonomy for Kosovo within the framework of a respected territorial integrity and sovereignty of Yugoslavia (Serbia). The Resolution 1244, the ICJ insists, does not regulate or deals with the final status of Kosovo.
With the data already presented, the ICJ argued that the UDI (2008) does not violate the Resolution 1244, because the UDI does not address the transitional arrangements but the final status of Kosovo (paragraphs 114 – 115 of the ICJ Advisory Opinion) and also because the UDI has not been the work of the PISG of Kosovo but of «persons who acted together in their capacity as representatives of peoples of Kosovo outside the framework of the interim administration» (paragraphs 105, 109 of the ICJ Advisory Opinion).
The second statement is debatable, as the opinions of judges Tomka (statement, ¶11-12), Sepúlveda-Amor and Yusuf (individual opinions, para. 30 and 20, respectively) or Bennouna (dissenting opinion, para. 44 ff.) show and, in any case, the student wonders even if the UDI was not originated formally in the PISG of Kosovo, but the same individuals in a different capacity, whether this is an argument that can be acceptable in order to legally justify the act in question. As the Judge Bennouna points out in para. 46 of his dissenting opinion, “si on suivait jusqu’au bout un tel raisonnement, il suffirait, en vuelque sorte, de se mettre hors la loi pour ne plus avoir à respecter la loi«).
The first argument of the ICJ deserves a separate reflection. Isn’t it referred in the Resolution 1244 the final status of Kosovo? A review of the para. 11 of the resolution, in which the powers of the international administration of the territory are listed, shows two letters that are of interest, (a) and (e):
(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);
(e) Facilitating a political process designed to determine Kosovo’s future status, taking into account the Rambouillet accords (S/1999/648).
Letter (a) is concerned about the transitional international regime that will operate trying to increase the autonomy for Kosovo but taking full account of annex 2 and of the Rambouillet accords, and in these, it is considered that in the former Yugoslavia remains intact the territorial integrity and sovereignty.
The letter (e) makes it clear that the future status of Kosovo must take into account the Rambouillet accords, which logically cannot be interpreted otherwise than understanding that the future status must respect the territorial sovereignty of Yugoslavia (Serbia today).
Even accepting, under the ICJ’s argument that the Resolution 1244 was only referring to the provisional administration and not the final status, the reasoning leading to the ICJ decision that the UDI does not violate the Resolution 1244 omits in this particular part of its opinion the big question: Can the people who formally remain part of an independent and sovereign State unilaterally declare secession thereof?; for Judge Yusuf , the IJC ought to respond to it (individual opinion, paragraph 6).
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References:
[1] ICJ Advisory Opinion, ¶ 85.
[2] Ibid, ¶ 88.
[3] bid, ¶ 89.
[4] Ibid, ¶ 91.
[5] Ibid, ¶ 90.
[6] Ibid, ¶ 93.
[7] Ibid, ¶ 94.
[8] Ibid.
[9] Ibid, ¶ 95.
[10] Ibid, ¶ 97.
[11] Ibid, ¶ 98.
[12] Ibid, ¶ 99.
[13] Ibid, ¶ 100.
[14]Christopher J. Borgen. Kosovo’s Declaration of Independence: Self-Determination, Secession and Recognition. Volume: 12. Issue: 2. February 29, 2008. Asil.org.
[15] Ibid. Asil.org.
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Sources of Information:
United Nations Security Council Resolution 1244 (1999)
International Criminal Court Advisory Opion – about the accordance with international law of the unilateral declaration of independence in respect of Kosovo. Summary of the Advisory Opinion.
American Society of International Law:
- Christopher J. Borgen. Kosovo’s Declaration of Independence: Self-Determination, Secession and Recognition. Volume: 12. Issue: 2. February 29, 2008.
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