The Kosovo Advisory Opinion Scrutinized

2011 ◽  
Vol 24 (2) ◽  
pp. 355-383 ◽  
Author(s):  
JURE VIDMAR
Keyword(s):  
International Law ◽  
Self Determination ◽  
Added Value ◽  
Advisory Opinion ◽  
Legal Doctrine ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
Unilateral Declaration ◽  
The Right

AbstractIn the Kosovo Advisory Opinion, the International Court of Justice took the position that Kosovo's unilateral declaration of independence did not violate any applicable rules of international law. This article does not dispute the final finding, but rather critically examines the Court's somewhat controversial reasoning and considers the added value of the opinion for the clarification of legal doctrine in relation to unilateral declarations of independence. An argument is made that the Court's interpretation of the question and the identification of the authors of the declaration had significant implications for the Court's final finding. Yet, the Court cannot be criticized for not answering the question of whether or not Kosovo is a state, whether Kosovo Albanians are beneficiaries of the right of self-determination, or even whether the ‘right to remedial secession’ is applicable. However, the Court may well have implicitly answered that recognition of Kosovo is not illegal.

A Note on the ICJ Advisory Opinion on Kosovo

2010 ◽  
Vol 11 (7-8) ◽  
pp. 867-880 ◽  
Author(s):  
Robert Muharremi
Keyword(s):  
United Nations ◽  
International Law ◽  
General Assembly ◽  
Advisory Opinion ◽  
International Court Of Justice ◽  
Declaration Of Independence ◽  
Court Of Justice ◽  
International Court ◽  
Unilateral Declaration ◽  
The Icj

On 22 July 2010, the International Court of Justice (hereinafter the “ICJ”) delivered its advisory opinion on the accordance with international law of the unilateral declaration of independence in respect 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, UNSC resolution 1244 (1999) (hereinafter the “Resolution 1244”) and the Constitutional Framework for Provisional Self-Government in Kosovo (hereinafter the “Constitutional Framework”). The ICJ delivered the 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 the “General Assembly”), which asked if “the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo is in accordance with international law.”

I. INTERNATIONAL COURT OF JUSTICE, ACCORDANCE WITH INTERNATIONAL LAW OF THE UNILATERAL DECLARATION OF INDEPENDENCE IN RESPECT OF KOSOVO, ADVISORY OPINION OF 22 JULY 2010

2011 ◽  
Vol 60 (3) ◽  
pp. 799-810 ◽  
Author(s):  
Dov Jacobs
Keyword(s):  
United Nations ◽  
International Law ◽  
General Assembly ◽  
Advisory Opinion ◽  
International Court Of Justice ◽  
Declaration Of Independence ◽  
Court Of Justice ◽  
International Court ◽  
Unilateral Declaration ◽  
The Icj

‘Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?’ It is to answer this question that the General Assembly of the United Nations (‘UNGA’) requested an advisory opinion of the International Court of Justice (‘ICJ’). The request, adopted in October 20081 and initially sponsored by Serbia, was triggered by the declaration of independence of Kosovo issued on the 17 February 2008.2 Some two years later, on the 22 July 2010, the ICJ delivered its Advisory Opinion.3 By a 10–4 vote, the ICJ found that the declaration of independence of Kosovo did not violate international law.

The International Court of Justice and Peoples

2007 ◽  
Vol 9 (2) ◽  
pp. 157-180
Author(s):  
Timo Koivurova
Keyword(s):  
International Law ◽  
Indigenous Peoples ◽  
Self Determination ◽  
International Court Of Justice ◽  
Collective Rights ◽  
Court Of Justice ◽  
International Court ◽  
The Icj ◽  
The Right

AbstractThe article examines how the International Court of Justice (ICJ) has dealt with the concept of peoples and peoples' rights in its jurisprudence. Most prominent has been the Court's role with respect to the right of self-determination and it is this issue that forms the core of the article. A second important question dealt with is the role of indigenous peoples in ICJ case practice, as the struggle by those peoples to gain collective rights is a recent development in international law. Drawing on this analysis, the discussion proceeds to consider the role that the ICJ has played in the development of the rights of peoples in general and what its future role might be in this sphere of international law. The article also examines the way in which the Court has allowed peoples to participate in its proceedings and whether and how its treatment of peoples' rights has strengthened the general foundations of international law.

scholarly journals Humanity Bounded and Unbounded: The Regulation of External Self-determination under International Law

2013 ◽  
Vol 7 (2) ◽  
pp. 155-184 ◽  
Author(s):  
Robert Howse ◽  
Ruti Teitel
Keyword(s):  
United Nations ◽  
International Law ◽  
Self Determination ◽  
General Assembly ◽  
Legal Doctrine ◽  
International Court Of Justice ◽  
Legal Norms ◽  
Court Of Justice ◽  
International Court ◽  
Recent Developments

Abstract One of the most complex and uncertain areas of international legal doctrine concerns how to deal with the aspiration of a people to achieve self-determination through the establishment of a new state and the related claim to a specific territory over which statehood is to be exercised. Recently, when the General Assembly of the United Nations referred to the International Court of Justice the question of the legality of the declaration of independence by Kosovar Albanians, the Court was given an opportunity to clarify and develop the law on external self-determination. Instead, the Court answered extremely narrowly, confining its analysis to the legality of the act of declaration without determining any consideration of international legal norms applicable to the act of secession that was being proposed. This article intends to fill the gap left by the ICJ’s decision: first by critiquing the inadequacy and tensions visible in the existing doctrine and second by examining how recent developments in international law may allow for a more normatively coherent approach to the problem.

The Kosovo Advisory Opinion and UNSCR 1244 (1999): A Declaration of ‘Independence from International Law’?

2011 ◽  
Vol 24 (1) ◽  
pp. 109-126 ◽  
Author(s):  
MARCELO G. KOHEN ◽  
KATHERINE DEL MAR
Keyword(s):  
International Law ◽  
Security Council ◽  
United Nations Security Council ◽  
General Assembly ◽  
Advisory Opinion ◽  
International Court Of Justice ◽  
Declaration Of Independence ◽  
Court Of Justice ◽  
International Court ◽  
Unilateral Declaration

AbstractThis article focuses on the reasoning employed by the International Court of Justice in its Advisory Opinion rendered on 22 July 2010 with respect to the most formidable legal impasse of the accordance with international law of the unilateral declaration of independence: the lex specialis that applied at the critical date, and which the Court affirmed continues to apply to Kosovo, as established by the United Nations Security Council in its Resolution 1244 (1999). The Court's analysis of the applicable lex specialis is questionable. Its analysis was coloured by the narrow approach it took to answering the question it was asked to address. It queried an unambiguous factual qualification made by the General Assembly, and it disregarded factual qualifications made by the Secretary-General, his Special Representative, and indeed all relevant actors. It failed to uphold the legally binding provisions of Security Council Resolution 1244, and it did not qualify as unlawful or invalid an act of a subsidiary body of the Security Council that was undertaken in excess of authority and contrary to the fundamental provisions of that Resolution. The resolute conclusion of the majority of the Court that the unilateral declaration of independence did not violate international law seems to read as a declaration of ‘independence from international law’.

scholarly journals SELF-DETERMINATION, THE CHAGOS ADVISORY OPINION AND THE CHAGOSSIANS

2019 ◽  
Vol 69 (1) ◽  
pp. 203-220
Author(s):  
Stephen Allen
Keyword(s):  
International Law ◽  
Self Determination ◽  
European Convention ◽  
Advisory Opinion ◽  
International Court Of Justice ◽  
Customary International Law ◽  
International Court ◽  
The Uk ◽  
The Right ◽  
Chagos Archipelago

AbstractIn its Chagos Advisory Opinion, the International Court of Justice (ICJ) ruled that the UK's detachment of the Chagos Archipelago from the colony of Mauritius on the eve of independence constituted a violation of customary international law (CIL). This article analyses the Court's approach to establishing the emergence and content of the right to self-determination in this frustrated case of decolonisation. It goes on to examine the argument that self-determination's peremptory character has decisive consequences in this specific context—a contention which found favour with several judges in their Separate Opinions. The article explores the extent to which the claims and counterclaims, made during the advisory proceedings, turned on countervailing readings of not only the key sources of custom but also of the principle of inter-temporal law. The final sections consider the significance of the Chagos Opinion for the Chagossians, both in relation to the Archipelago's resettlement and for their outstanding appeal in the UK courts (where the European Convention on Human Rights performs a pivotal role).

The Legal Effects of United Nations Resolutions in the Kosovo Advisory Opinion

2011 ◽  
Vol 105 (1) ◽  
pp. 81-90 ◽  
Author(s):  
Marko Divac Öberg
Keyword(s):  
United Nations ◽  
International Law ◽  
International Community ◽  
Advisory Opinion ◽  
International Court Of Justice ◽  
Declaration Of Independence ◽  
Court Of Justice ◽  
International Court ◽  
Unilateral Declaration

As the international community waited for the International Court of Justice (the Court) to deliver its advisory opinion of July 22, 2010, commentators wondered whether the Court would skirt difficult issues by adopting a narrow reading of the question put to it. While the Court's ruling in Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo did turn out to be limited, the opinion contributes significantly to the Court's jurisprudence on the legal effects of United Nations resolutions.

TERRITORIAL INTEGRITY AND CONSENT IN THE CHAGOS ADVISORY OPINION

2020 ◽  
Vol 69 (1) ◽  
pp. 221-238
Author(s):  
Robert McCorquodale ◽  
Jennifer Robinson ◽  
Nicola Peart
Keyword(s):  
International Law ◽  
Self Determination ◽  
Special Focus ◽  
Advisory Opinion ◽  
International Court Of Justice ◽  
Territorial Integrity ◽  
Customary International Law ◽  
The People ◽  
International Court ◽  
The Right

AbstractA key element of the right to self-determination is territorial integrity. This has usually been considered solely in relation to the territorial integrity of an existing State seeking to resist claims by peoples for the right to self-determination. Yet the Chagos Opinion by the International Court of Justice examines a different type of territorial integrity—that of the colonial territory itself. This article explores the consequence of the Court's view that the territorial integrity of the colonial territory is a matter of customary international law, and that any division, integration or other disruption of that colonial territory after December 1960 is unlawful, without the free and genuine consent of the people of the colonial territory. In particular this article seeks to explore what the Chagos Opinion means in terms of the territorial integrity of a colonial territory. It also examines the required conditions for ascertaining a free and genuine consent of the people of that territory, and the legal effects of not complying with them. There is also consideration of the implications for other situations from the clarification of customary international law in the Chagos Opinion, with a special focus on West Papua.

The ICJ Advisory Opinion on theAccordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovoand the International Protection of Minorities

2010 ◽  
Vol 11 (7-8) ◽  
pp. 847-865 ◽  
Author(s):  
Björn Arp
Keyword(s):  
International Law ◽  
Media Coverage ◽  
Advisory Opinion ◽  
International Court Of Justice ◽  
International Protection ◽  
Declaration Of Independence ◽  
Court Of Justice ◽  
International Court ◽  
Unilateral Declaration ◽  
The Icj

Very seldom has a judgment or advisory opinion of the International Court of Justice (ICJ) received so much media coverage as the recent Advisory Opinion on theAccordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovorendered on 22 July 2010 in response to a question posed by the General Assembly. The question had been forwarded on behalf of a request by Serbia and was phrased in the following way: “Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?”

Kosovo: The Post-advisory Opinion Stage

2015 ◽  
Vol 22 (4) ◽  
pp. 486-510
Author(s):  
Alexander Orakhelashvili
Keyword(s):  
European Union ◽  
International Law ◽  
Advisory Opinion ◽  
The European Union ◽  
International Court Of Justice ◽  
Declaration Of Independence ◽  
Court Of Justice ◽  
International Court ◽  
Unilateral Declaration ◽  
Legal Position

The Unilateral Declaration of Independence by Kosovar authorities in Pristina in 2008 has generated heavy legal and political controversies. The delivery by the International Court of Justice of its advisory opinion on Kosovo unilateral declaration of independence in 2010 has not led to the elimination of unilateralist positions as to Kosovo’s status. Such unilateralist approach, favouring Kosovo’s independence either in principle or in practice, has since been adopted by the local Kosovar authorities, a number of governments and by the European Union. This contribution addresses the merit of such unilateralist positions and examines whether these positions could adversely affect the legal position as to Kosovo’s status under general international law as well as un Security Council resolution 1244 (1999).

Sign in / Sign up

Export Citation Format

Share Document