The Opinion of the International Court of Justice on Kosovo’s Unilateral Declaration of Independence: the Aspects of Legality

Lina Laurinavičiūtė

Abstract


On 22 July, 2010 the International Court of Justice delivered an advisory opinion in regard to the question of the accordance with the International Law of the unilateral declaration of Kosovo’s independence. The Court ruled in the advisory opinion that Kosovo’s Unilateral Declaration of Independence from Serbia on 17 February, 2008, did not violate any applicable rule of International Law. The adoption of the declaration did not violate general International Law, the Security Council Resolution 1244 (1999) and the Constitutional Framework for Provisional Self-Government. This article discusses the arguments of the Court regarding the aspects of Kosovo’s Unilateral Declaration of Independence. The author presents the critical analysis of some arguments of the Court.
At the outset, the author analyses the Court’s approach regarding the question posed to it by the General Assembly of the United Nations. The Court made a premise that the General Assembly’s request for an advisory opinion on the “Accordance with International Law of the Declaration of Independence” means “non-prohibition by international law.” This premise shaped the subsequent reasoning of the Court. The Court took the view that it needed to decide whether or not the Declaration of Independence was adopted in violation of International Law and is not required by the question to take the position on whether International Law conferred a positive entitlement on Kosovo to declare its independence or on whether International Law generally confers an entitlement on entities situated within a state unilaterally to break away from it.
Furthermore, the article presents the arguments of the Court related to the legality of the Declaration on Kosovo’s Independence. The author analyses the arguments and tries to reveal general rules applicable not only to Kosovo’s case.
According to the opinion, the principle of territorial integrity applies horizontally but not vertically and cannot be balanced with the principle of self-determination. Territorial integrity remains the law governing the relations between states. For the Court, territorial integrity is a rule, the meaning of which is precisely determined. In contrast, the Court left room for the development of the principle of self-determination in a non-colonial context.

Keywords


The International Court of Justice; advisory opinion; Kosovo; the right of self-determination; territorial integrity; seccesion; the unilateral declaration of independence

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"Societal studies" ISSN online 2029-2244 / ISSN print 2029-2236