Chapter 2 Another Frozen Conflict: Kosovo’s Unilateral Declaration of Independence and International Law

2011 ◽  
pp. 53-85
2010 ◽  
Vol 11 (7-8) ◽  
pp. 867-880 ◽  
Author(s):  
Robert Muharremi

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.”


2011 ◽  
Vol 60 (3) ◽  
pp. 799-810 ◽  
Author(s):  
Dov Jacobs

‘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.


2010 ◽  
Vol 11 (7-8) ◽  
pp. 895-912 ◽  
Author(s):  
Elena Cirkovic

The International Court of Justice (ICJ) ruled in an advisory opinion on 22 July 2010 that Kosovo's 17 February 2008 unilateral declaration of independence from Serbia did not violate international law. The Kosovo Parliament's declaration of independence stated that Kosovo would continue to be bound by the United Nations Security Council Resolution 1244 (1999) (hereinafter “SC Resolution 1244 (1999)”), as well as the Ahtisaari plan. UN Special Envoy for Kosovo Martti Ahtisaari's proposal, produced in February 2007, defined Kosovo's internal settlement, minority-protection mechanisms, and allowed for independence under international supervision. The proposal increased the powers devolved to Kosovar institutions but without providing for the complete removal of international oversight and authority.


Author(s):  
Ellina E. Khashchina

The legal regulation of secession – the unilateral withdrawal of a part of territory from the parent state, is carried out at the junction of two branches of law – international and constitutional. Due to the absence in most of written constitutions of norms directly related to secession, and the laconic nature of relevant principles of international law, allowing for the possibility of ambiguous interpretation, decisions of international and domestic judicial authorities on the admissibility of secession play a special role in the legal mechanisms for its prevention, which determines the relevance of the chosen themes. Based on the analysis of the Advisory Opinion of the International Court of Justice of the United Nations of July 22, 2010 “On compliance with international law of the unilateral declaration of independence of Kosovo”, we formulate a conclusion about the absence of uniform international legal criteria to determine the admissibility of secession. In our opinion, the Inter-national Court of Justice has not resolved the legal issue underlying the pro-tracted political conflict, has not created a new norm of customary interna-tional law, but has not provided the supporters of the unilateral declaration of independence with the necessary and sufficient arguments for the legal justification of their position. This allows us to speak about the importance of this decision in the international legal mechanisms for the prevention of secession, which, however, are at the stage of formation. Their development should take place synchronously with the constitutional and legal intrastate mechanisms, which in modern conditions should be aimed at finding a bal-ance between the interests of the center and regional communities, establish-ing a dialogue with supporters of independence and protecting the national and cultural identity of population.


2011 ◽  
Vol 24 (1) ◽  
pp. 109-126 ◽  
Author(s):  
MARCELO G. KOHEN ◽  
KATHERINE DEL MAR

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’.


2011 ◽  
Vol 105 (1) ◽  
pp. 81-90 ◽  
Author(s):  
Marko Divac Öberg

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.


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