23 Jul 2010

Kosovo legally declared independence: ICJ

In its opinion rendered yesterday, the International Court of Justice by a majority of 10 - 4 has declared that the declaration of independence by Kosovo on 17 February 2008  from Serbia did not violate international law. The declaration of independence was fiercely contested and the same is also evident from the list of international law experts who addressed the Court (page 7 to 10). The ICJ declared that it had jurisdiction over the matter and it would not decline to exercise its jurisdiction on the ground that "its opinion might lead to adverse political consequences" or that the request for opinion was made by the General Assembly instead of the Security Council.

On the main merits, the ICJ discussed the law relating to territorial integrity and declaration of independence as under Public International Law to observe that "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" to hold that "that general international law contains no applicable prohibition of declarations of independence. Accordingly, it concludes that the declaration of independence of 17 February 2008 did not violate general international law".

The ICJ also noted that Security Council resolution 1244 (1999), which operated in the territories declared independent also did not come in the way of legality of the declaration by Kosovo as the said resolution was only "to establish a temporary, exceptional legal régime which, save to the extent that it expressly preserved it, superseded the Serbian legal order and which aimed at the stabilization of Kosovo, and that it was designed to do so on an interim basis" and since the declaration of independence "was not intended by those who adopted it to take effect within the legal order created for the interim phase, nor was it capable of doing so", "but, rather, set out to adopt a measure the significance and effects of which would lie outside that order". The ICJ thus ruled that "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 Court went on to observe that "It follows that the authors of the declaration of independence were not bound by the framework of powers and responsibilities established to govern the conduct of the Provisional Institutions of Self-Government. Accordingly, the Court finds that the declaration of independence did not violate the Constitutional Framework."
The opinion was rendered in view of the reference by the General Assembly  of the United Nations submitting the question for an advisory opinion to the ICJ on the issue, the precise question being "Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?”

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