INTERNATIONAL COURT OF JUSTICE REPORTS OF JUDGMENTS ADVISORY OPINIONS AND ORDERS ACCORDANCE WITH INTERNATIONAL LAW OF THE UNILATERAL DECLARATION OF INDEPENDENCE IN RESPECT OF KOSOVO ADVISORY OPINION OF 22 JULY 2010 2010 COUR INTERNATIONALE DE JUSTICE RECUEIL DES ARRE TS AVIS CONSULTATIFS ET ORDONNANCES CONFORMITE u AU DROIT INTERNATIONAL DE LA DE u CLARATION UNILATE u RALE D’INDE u PENDANCE RELATIVE AU KOSOVO AVIS CONSULTATIF DU 22 JUILLET 2010 Official citation Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo Advisory Opinion I C J Reports 2010 p 403 Mode officiel de citation Conformité au droit international de la déclaration unilatérale d’indépendance relative au Kosovo avis consultatif C I J Recueil 2010 p 403 ISSN 0074-4441 ISBN 978-92-1-071107-4 Sales number No de vente 997 22 JULY 2010 ADVISORY OPINION ACCORDANCE WITH INTERNATIONAL LAW OF THE UNILATERAL DECLARATION OF INDEPENDENCE IN RESPECT OF KOSOVO CONFORMITE u AU DROIT INTERNATIONAL DE LA DE u CLARATION UNILATE u RALE D’INDE u PENDANCE RELATIVE AU KOSOVO 22 JUILLET 2010 AVIS CONSULTATIF 403 TABLE OF CONTENTS Paragraphs CHRONOLOGY OF THE PROCEDURE 1-16 I JURISDICTION AND DISCRETION A Jurisdiction B Discretion II SCOPE AND MEANING OF THE QUESTION III FACTUAL BACKGROUND A Security Council resolution 1244 1999 and the relevant UNMIK regulations B The relevant events in the final status process prior to 17 February 2008 C The events of 17 February 2008 and thereafter 17-48 18-28 29-48 49-56 57-77 58-63 64-73 74-77 IV THE QUESTION WHETHER THE DECLARATION OF INDEPENDENCE IS IN ACCORDANCE WITH INTERNATIONAL LAW A General international law B Security Council resolution 1244 1999 and the UNMIK Constitutional Framework created thereunder 85-121 1 Interpretation of Security Council resolution 1244 1999 94-100 2 The question whether the declaration of independence is in accordance with Security Council resolution 1244 1999 and the measures adopted thereunder a The identity of the authors of the declaration of independence b The question whether the authors of the declaration of independence acted in violation of Security Council resolution 1244 1999 or the measures adopted thereunder V GENERAL CONCLUSION OPERATIVE CLAUSE 4 78-121 79-84 101-121 102-109 110-121 122 123 404 INTERNATIONAL COURT OF JUSTICE YEAR 2010 2010 22 July General List No 141 22 July 2010 ACCORDANCE WITH INTERNATIONAL LAW OF THE UNILATERAL DECLARATION OF INDEPENDENCE IN RESPECT OF KOSOVO Jurisdiction of the Court to give the advisory opinion requested Article 65 paragraph 1 of the Statute — Article 96 paragraph 1 of the Charter — Power of General Assembly to request advisory opinions — Articles 10 and 11 of the Charter — Contention that General Assembly acted outside its powers under the Charter — Article 12 paragraph 1 of the Charter — Authorization to request an advisory opinion not limited by Article 12 Requirement that the question on which the Court is requested to give its opinion is a “legal question” — Contention that the act of making a declaration of independence is governed by domestic constitutional law — The Court can respond to the question by reference to international law without the need to address domestic law — The fact that a question has political aspects does not deprive it of its character as a legal question — The Court is not concerned with the political motives behind a request or the political implications which its opinion may have The Court has jurisdiction to give the advisory opinion requested Discretion of the Court to decide whether it should give an opinion Integrity of the Court’s judicial function — Only “compelling reasons” should lead the Court to decline to exercise its judicial function — The motives of individual States which sponsor a resolution requesting an advisory opinion are not relevant to the Court’s exercise of its discretion — Requesting organ to assess purpose usefulness and political consequences of opinion Delimitation of the respective powers of the Security Council and the General 5 405 UNILATERAL DECLARATION OF INDEPENDENCE ADVISORY OPINION Assembly — Nature of the Security Council’s involvement in relation to Kosovo — Article 12 of the Charter does not bar action by the General Assembly in respect of threats to international peace and security which are before the Security Council — General Assembly has taken action with regard to the situation in Kosovo No compelling reasons for Court to use its discretion not to give an advisory opinion Scope and meaning of the question Text of the question in General Assembly resolution 63 3 — Power of the Court to clarify the question — No need to reformulate the question posed by the General Assembly — For the proper exercise of its judicial function the Court must establish the identity of the authors of the declaration of independence — No intention by the General Assembly to restrict the Court’s freedom to determine that issue — The Court’s task is to determine whether or not the declaration was adopted in violation of international law Factual background Framework for interim administration of Kosovo put in place by the Security Council — Security Council resolution 1244 1999 — Establishment of the United Nations Interim Administration Mission in Kosovo UNMIK — Role of Special Representative of the Secretary-General — “Four pillars” of the UNMIK régime — Constitutional Framework for Provisional Self-Government — Relations between the Provisional Institutions of Self-Government and the Special Representative of the Secretary-General Relevant events in the final status process — Appointment by SecretaryGeneral of Special Envoy for the future status process for Kosovo — Guiding Principles of the Contact Group — Failure of consultative process — Comprehensive Proposal for the Kosovo Status Settlement by Special Envoy — Failure of negotiations on the future status of Kosovo under the auspices of the Troika — Elections held for the Assembly of Kosovo on 17 November 2007 — Adoption of the declaration of independence on 17 February 2008 Whether the declaration of independence is in accordance with international law No prohibition of declarations of independence according to State practice — Contention that prohibition of unilateral declarations of independence is implicit in the principle of territorial integrity — Scope of the principle of territorial integrity is confined to the sphere of relations between States — No general prohibition may be inferred from the practice of the Security Council with regard to declarations of independence — Issues relating to the extent of the right of self- 6 406 UNILATERAL DECLARATION OF INDEPENDENCE ADVISORY OPINION determination and the existence of any right of “remedial secession” are beyond the scope of the question posed by the General Assembly General international law contains no applicable prohibition of declarations of independence — Declaration of independence of 17 February 2008 did not violate general international law Security Council resolution 1244 and the Constitutional Framework — Resolution 1244 1999 imposes international legal obligations and is part of the applicable international law — Constitutional Framework possesses international legal character — Constitutional Framework is part of specific legal order created pursuant to resolution 1244 1999 — Constitutional Framework regulates matters which are the subject of internal law — Supervisory powers of the Special Representative of the Secretary-General — Security Council resolution 1244 1999 and the Constitutional Framework were in force and applicable as at 17 February 2008 — Neither of them contains a clause providing for termination and neither has been repealed — The Special Representative of the Secretary-General continues to exercise his functions in Kosovo Security Council resolution 1244 1999 and the Constitutional Framework form part of the international law to be considered in replying to the question before the Court Interpretation of Security Council resolutions — Resolution 1244 1999 established an international civil and security presence in Kosovo — Temporary suspension of exercise of Serbia’s authority flowing from its continuing sovereignty over the territory of Kosovo — Resolution 1244 1999 created an interim régime — Object and purpose of resolution 1244 1999 Identity of the authors of the declaration of independence — Whether the declaration of independence was an act of the Assembly of Kosovo — Authors of the declaration did not seek to act within the framework of interim self-administration of Kosovo — Authors undertook to fulfil the international obligations of Kosovo — No reference in original Albanian text to the declaration being the work of the Assembly of Kosovo — Silence of the Special Representative of the Secretary-General — Authors of the declaration of independence acted together in their capacity as representatives of the people of Kosovo outside the framework of the interim administration Whether or not the authors of the declaration of independence acted in violation of Security Council resolution 1244 1999 — Resolution 1244 1999 addressed to United Nations Member States and organs of the United Nations — No specific obligations addressed to other actors — The resolution did not contain any provision dealing with the final status of Kosovo — Security Council did not reserve for itself the final determination of the situation in Kosovo — Security Council resolution 1244 1999 did not bar the authors of the declaration of 17 February 2008 from issuing a declaration of independence — Declaration of independence did not violate Security Council resolution 1244 1999 Declaration of independence was not issued by the Provisional Institutions of Self-Government — Declaration of independence did not violate the Constitutional Framework Adoption of the declaration of independence did not violate any applicable rule of international law 7 407 UNILATERAL DECLARATION OF INDEPENDENCE ADVISORY OPINION ADVISORY OPINION Present President OWADA Vice-President TOMKA Judges KOROMA AL-KHASAWNEH BUERGENTHAL SIMMA ABRAHAM KEITH SEPÚLVEDAAMOR BENNOUNA SKOTNIKOV CANÇADO TRINDADE YUSUF GREENWOOD Registrar COUVREUR On the accordance with international law of the unilateral declaration of independence in respect of Kosovo THE COURT composed as above gives the following Advisory Opinion 1 The question on which the advisory opinion of the Court has been requested is set forth in resolution 63 3 adopted by the General Assembly of the United Nations hereinafter the General Assembly on 8 October 2008 By a letter dated 9 October 2008 and received in the Registry by facsimile on 10 October 2008 the original of which was received in the Registry on 15 October 2008 the Secretary-General of the United Nations officially communicated to the Court the decision taken by the General Assembly to submit the question for an advisory opinion Certified true copies of the English and French versions of the resolution were enclosed with the letter The resolution reads as follows “The General Assembly Mindful of the purposes and principles of the United Nations Bearing in mind its functions and powers under the Charter of the United Nations Recalling that on 17 February 2008 the Provisional Institutions of SelfGovernment of Kosovo declared independence from Serbia Aware that this act has been received with varied reactions by the Members of the United Nations as to its compatibility with the existing international legal order Decides in accordance with Article 96 of the Charter of the United Nations to request the International Court of Justice pursuant to Article 65 of the Statute of the Court to render an advisory opinion on the following question ‘Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law ’” 2 By letters dated 10 October 2008 the Registrar pursuant to Article 66 paragraph 1 of the Statute gave notice of the request for an advisory opinion to all States entitled to appear before the Court 3 By an Order dated 17 October 2008 in accordance with Article 66 paragraph 2 of the Statute the Court decided that the United Nations and its Member States were likely to be able to furnish information on the question 8 408 UNILATERAL DECLARATION OF INDEPENDENCE ADVISORY OPINION By the same Order the Court fixed respectively 17 April 2009 as the time-limit within which written statements might be submitted to it on the question and 17 July 2009 as the time-limit within which States and organizations having presented written statements might submit written comments on the other written statements in accordance with Article 66 paragraph 4 of the Statute The Court also decided that taking account of the fact that the unilateral declaration of independence of 17 February 2008 is the subject of the question submitted to the Court for an advisory opinion the authors of the above declaration were considered likely to be able to furnish information on the question It therefore further decided to invite them to make written contributions to the Court within the same time-limits 4 By letters dated 20 October 2008 the Registrar informed the United Nations and its Member States of the Court’s decisions and transmitted to them a copy of the Order By letter of the same date the Registrar informed the authors of the above-mentioned declaration of independence of the Court’s decisions and transmitted to them a copy of the Order 5 Pursuant to Article 65 paragraph 2 of the Statute on 30 January 2009 the Secretary-General of the United Nations communicated to the Court a dossier of documents likely to throw light upon the question The dossier was subsequently placed on the Court’s website 6 Within the time-limit fixed by the Court for that purpose written statements were filed in order of their receipt by Czech Republic France Cyprus China Switzerland Romania Albania Austria Egypt Germany Slovakia Russian Federation Finland Poland Luxembourg Libyan Arab Jamahiriya United Kingdom United States of America Serbia Spain Islamic Republic of Iran Estonia Norway Netherlands Slovenia Latvia Japan Brazil Ireland Denmark Argentina Azerbaijan Maldives Sierra Leone and Bolivia The authors of the unilateral declaration of independence filed a written contribution On 21 April 2009 the Registrar communicated copies of the written statements and written contribution to all States having submitted a written statement as well as to the authors of the unilateral declaration of independence 7 On 29 April 2009 the Court decided to accept the written statement filed by the Bolivarian Republic of Venezuela submitted on 24 April 2009 after expiry of the relevant time-limit On 15 May 2009 the Registrar communicated copies of this written statement to all States having submitted a written statement as well as to the authors of the unilateral declaration of independence 8 By letters dated 8 June 2009 the Registrar informed the United Nations and its Member States that the Court had decided to hold hearings opening on 1 December 2009 at which they could present oral statements and comments regardless of whether or not they had submitted written statements and as the case may be written comments The United Nations and its Member States were invited to inform the Registry by 15 September 2009 if they intended to take part in the oral proceedings The letters further indicated that the authors of the unilateral declaration of independence could present an oral contribution By letter of the same date the Registrar informed the authors of the unilateral declaration of independence of the Court’s decision to hold hearings inviting them to indicate within the same time-limit whether they intended to take part in the oral proceedings 9 409 UNILATERAL DECLARATION OF INDEPENDENCE ADVISORY OPINION 9 Within the time-limit fixed by the Court for that purpose written comments were filed in order of their receipt by France Norway Cyprus Serbia Argentina Germany Netherlands Albania Slovenia Switzerland Bolivia United Kingdom United States of America and Spain The authors of the unilateral declaration of independence submitted a written contribution regarding the written statements 10 Upon receipt of the above-mentioned written comments and written contribution the Registrar on 24 July 2009 communicated copies thereof to all States having submitted written statements as well as to the authors of the unilateral declaration of independence 11 By letters dated 30 July 2009 the Registrar communicated to the United Nations and to all of its Member States that had not participated in the written proceedings copies of all written statements and written comments as well as the written contributions of the authors of the unilateral declaration of independence 12 By letters dated 29 September 2009 the Registry transmitted a detailed timetable of the hearings to those who within the time-limit fixed for that purpose by the Court had expressed their intention to take part in the aforementioned proceedings 13 Pursuant to Article 106 of the Rules of Court the Court decided to make the written statements and written comments submitted to the Court as well as the written contributions of the authors of the unilateral declaration of independence accessible to the public with effect from the opening of the oral proceedings 14 In the course of hearings held from 1 to 11 December 2009 the Court heard oral statements in the following order by for the Republic of Serbia H E Mr Dušan T Bataković Ph D in History University of Paris-Sorbonne Paris IV Ambassador of the Republic of Serbia to France Vice-Director of the Institute for Balkan Studies and Assistant Professor at the University of Belgrade Head of Delegation Mr Vladimir Djerić S J D Michigan Attorney at Law Mikijelj Janković Bogdanović Belgrade Counsel and Advocate Mr Andreas Zimmermann LL M Harvard Professor of International Law University of Potsdam Director of the Potsdam Center of Human Rights Member of the Permanent Court of Arbitration Counsel and Advocate Mr Malcolm N Shaw Q C Sir Robert Jennings Professor of International Law University of Leicester United Kingdom Counsel and Advocate Mr Marcelo G Kohen Professor of International Law Graduate Institute of International and Development Studies Geneva Associate Member of the Institut de droit international Counsel and Advocate Mr Saša Obradović Inspector General in the Ministry of Foreign Affairs Deputy Head of Delegation 10 410 UNILATERAL DECLARATION OF INDEPENDENCE ADVISORY OPINION for the authors of the unilateral declaration of independence Mr Skender Hyseni Head of Delegation Sir Michael Wood K C M G Member of the English Bar Member of the International Law Commission Counsel Mr Daniel Müller Researcher at the Centre de droit international de Nanterre CEDIN University of Paris Ouest Nanterre-La Défense Counsel Mr Sean D Murphy Patricia Roberts Harris Research Professor of Law George Washington University Counsel for the Republic of Albania H E Mr Gazmend Barbullushi Ambassador Extraordinary and Plenipotentiary of the Republic of Albania to the Kingdom of the Netherlands Legal Adviser Mr Jochen A Frowein M C L Director emeritus of the Max Planck Institute for International Law Professor emeritus of the University of Heidelberg Member of the Institute of International Law Legal Adviser Mr Terry D Gill Professor of Military Law at the University of Amsterdam and Associate Professor of Public International Law at Utrecht University Legal Adviser for the Federal Republic of Germany Ms Susanne Wasum-Rainer Legal Adviser Federal Foreign Office Berlin for the Kingdom of Saudi Arabia H E Mr Abdullah A Alshaghrood Ambassador of the Kingdom of Saudi Arabia to the Kingdom of the Netherlands Head of Delegation for the Argentine Republic H E Madam Susana Ruiz Cerutti Ambassador Legal Adviser to the Ministry of Foreign Affairs International Trade and Worship Head of Delegation for the Republic of Austria H E Mr Helmut Tichy Ambassador Deputy Legal Adviser Federal Ministry of European and International Affairs for the Republic of Azerbaijan H E Mr Agshin Mehdiyev Ambassador and Permanent Representative of Azerbaijan to the United Nations for the Republic of Belarus H E Madam Elena Gritsenko Ambassador of the Republic of Belarus to the Kingdom of the Netherlands Head of Delegation for the Plurinational State of Bolivia H E Mr Roberto Calzadilla Sarmiento Ambassador of the Plurinational State of Bolivia to the Kingdom of the Netherlands for the Federative Republic of Brazil H E Mr José Artur Denot Medeiros Ambassador of the Federative Republic of Brazil to the Kingdom of the Netherlands 11 411 UNILATERAL DECLARATION OF INDEPENDENCE ADVISORY OPINION for the Republic of Bulgaria for the Republic of Burundi for the People’s Republic of China for the Republic of Cyprus for the Republic of Croatia for the Kingdom of Denmark for the Kingdom of Spain for the United States of America for the Russian Federation for the Republic of Finland for the French Republic for the Hashemite Kingdom of Jordan 12 Mr Zlatko Dimitroff S J D Director of the International Law Department Ministry of Foreign Affairs Head of Delegation Mr Thomas Barankitse Legal Attaché Counsel Mr Jean d’Aspremont Associate Professor University of Amsterdam Chargé de cours invité Catholic University of Louvain Counsel H E Madam Xue Hanqin Ambassador to the Association of Southeast Asian Nations ASEAN Legal Counsel of the Ministry of Foreign Affairs Member of the International Law Commission Member of the Institut de droit international Head of Delegation H E Mr James Droushiotis Ambassador of the Republic of Cyprus to the Kingdom of the Netherlands Mr Vaughan Lowe Q C Member of the English Bar Chichele Professor of International Law University of Oxford Counsel and Advocate Mr Polyvios G Polyviou Counsel and Advocate H E Madam Andreja Metelko-Zgombić Ambassador Chief Legal Adviser in the Ministry of Foreign Affairs and European Integration H E Mr Thomas Winkler Ambassador UnderSecretary for Legal Affairs Ministry of Foreign Affairs Head of Delegation Ms Concepción Escobar Hernández Legal Adviser Head of the International Law Department Ministry of Foreign Affairs and Co-operation Head of Delegation and Advocate Mr Harold Hongju Koh Legal Adviser Department of State Head of Delegation and Advocate H E Mr Kirill Gevorgian Ambassador Head of the Legal Department Ministry of Foreign Affairs Head of Delegation Ms Päivi Kaukoranta Director General Legal Service Ministry of Foreign Affairs Mr Martti Koskenniemi Professor at the University of Helsinki Ms Edwige Belliard Director of Legal Affairs Ministry of Foreign and European Affairs Mr Mathias Forteau Professor at the University of Paris Ouest Nanterre-La Défense H R H Prince Zeid Raad Zeid Al Hussein Ambassador of the Hashemite Kingdom of Jordan to the United States of America Head of Delegation 412 UNILATERAL DECLARATION OF INDEPENDENCE ADVISORY OPINION for the Kingdom of Norway for the Kingdom of the Netherlands for Romania for the United Kingdom of Great Britain and Northern Ireland for the Bolivarian Republic of Venezuela for the Socialist Republic of Viet Nam Mr Rolf Einar Fife Director General Legal Affairs Department Ministry of Foreign Affairs Head of Delegation Ms Liesbeth Lijnzaad Legal Adviser Ministry of Foreign Affairs Mr Bogdan Aurescu Secretary of State Ministry of Foreign Affairs Mr Cosmin Dinescu Director-General for Legal Affairs Ministry of Foreign Affairs Mr Daniel Bethlehem Q C Legal Adviser to the Foreign and Commonwealth Office Representative of the United Kingdom of Great Britain and Northern Ireland Counsel and Advocate Mr James Crawford S C Whewell Professor of International Law University of Cambridge Member of the Institut de droit international Counsel and Advocate Mr Alejandro Fleming Deputy Minister for Europe of the Ministry of the People’s Power for Foreign Affairs H E Madam Nguyen Thi Hoang Anh Doctor of Law Director-General Department of International Law and Treaties Ministry of Foreign Affairs 15 Questions were put by Members of the Court to participants in the oral proceedings several of them replied in writing as requested within the prescribed time-limit 16 Judge Shi took part in the oral proceedings he subsequently resigned from the Court with effect from 28 May 2010 I JURISDICTION AND DISCRETION 17 When seised of a request for an advisory opinion the Court must first consider whether it has jurisdiction to give the opinion requested and whether should the answer be in the affirmative there is any reason why the Court in its discretion should decline to exercise any such jurisdiction in the case before it Legality of the Threat or Use of Nuclear Weapons Advisory Opinion I C J Reports 1996 I p 232 para 10 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Advisory Opinion I C J Reports 2004 I p 144 para 13 A Jurisdiction 18 The Court will thus first address the question whether it possesses 13 413 UNILATERAL DECLARATION OF INDEPENDENCE ADVISORY OPINION jurisdiction to give the advisory opinion requested by the General Assembly on 8 October 2008 The power of the Court to give an advisory opinion is based upon Article 65 paragraph 1 of its Statute which provides that “The Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request ” 19 In its application of this provision the Court has indicated that “It is a precondition of the Court’s competence that the advisory opinion be requested by an organ duly authorized to seek it under the Charter that it be requested on a legal question and that except in the case of the General Assembly or the Security Council that question should be one arising within the scope of the activities of the requesting organ ” Application for Review of Judgement No 273 of the United Nations Administrative Tribunal Advisory Opinion I C J Reports 1982 pp 333-334 para 21 20 It is for the Court to satisfy itself that the request for an advisory opinion comes from an organ of the United Nations or a specialized agency having competence to make it The General Assembly is authorized to request an advisory opinion by Article 96 of the Charter which provides that “1 The General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question 2 Other organs of the United Nations and specialized agencies which may at any time be so authorized by the General Assembly may also request advisory opinions of the Court on legal questions arising within the scope of their activities ” 21 While paragraph 1 of Article 96 confers on the General Assembly the competence to request an advisory opinion on “any legal question” the Court has sometimes in the past given certain indications as to the relationship between the question which is the subject of a request for an advisory opinion and the activities of the General Assembly Interpretation of Peace Treaties with Bulgaria Hungary and Romania First Phase Advisory Opinion I C J Reports 1950 p 70 Legality of the Threat or Use of Nuclear Weapons Advisory Opinion I C J Reports 1996 I pp 232-233 paras 11-12 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Advisory Opinion I C J Reports 2004 I p 145 paras 16-17 22 The Court observes that Article 10 of the Charter provides that “The General Assembly may discuss any questions or any matters within the scope of the present Charter or relating to the powers and 14 414 UNILATERAL DECLARATION OF INDEPENDENCE ADVISORY OPINION functions of any organs provided for in the present Charter and except as provided in Article 12 may make recommendations to the Members of the United Nations or to the Security Council or to both on any such questions or matters ” Moreover Article 11 paragraph 2 of the Charter has specifically provided the General Assembly with competence to discuss “any questions relating to the maintenance of international peace and security brought before it by any Member of the United Nations” and subject again to the limitation in Article 12 to make recommendations with respect thereto 23 Article 12 paragraph 1 of the Charter provides that “While the Security Council is exercising in respect of any dispute or situation the functions assigned to it in the present Charter the General Assembly shall not make any recommendation with regard to that dispute or situation unless the Security Council so requests ” 24 In the present proceedings it was suggested that since the Security Council was seised of the situation in Kosovo the effect of Article 12 paragraph 1 was that the General Assembly’s request for an advisory opinion was outside its powers under the Charter and thus did not fall within the authorization conferred by Article 96 paragraph 1 As the Court has stated on an earlier occasion however “ a request for an advisory opinion is not in itself a ‘recommendation’ by the General Assembly ‘with regard to a dispute or situation’” Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Advisory Opinion I C J Reports 2004 I p 148 para 25 Accordingly while Article 12 may limit the scope of the action which the General Assembly may take subsequent to its receipt of the Court’s opinion a matter on which it is unnecessary for the Court to decide in the present context it does not in itself limit the authorization to request an advisory opinion which is conferred upon the General Assembly by Article 96 paragraph 1 Whether the delimitation of the respective powers of the Security Council and the General Assembly — of which Article 12 is one aspect — should lead the Court in the circumstances of the present case to decline to exercise its jurisdiction to render an advisory opinion is another matter which the Court will consider in paragraphs 29 to 48 below 25 It is also for the Court to satisfy itself that the question on which it is requested to give its opinion is a “legal question” within the meaning of Article 96 of the Charter and Article 65 of the Statute In the present case the question put to the Court by the General Assembly asks whether the declaration of independence to which it refers is “in accordance with international law” A question which expressly asks the Court whether or not a particular action is compatible with international law 15 415 UNILATERAL DECLARATION OF INDEPENDENCE ADVISORY OPINION certainly appears to be a legal question as the Court has remarked on a previous occasion questions “framed in terms of law and rais ing problems of international law are by their very nature susceptible of a reply based on law” Western Sahara Advisory Opinion I C J Reports 1975 p 18 para 15 and therefore appear to be questions of a legal character for the purposes of Article 96 of the Charter and Article 65 of the Statute 26 Nevertheless some of the participants in the present proceedings have suggested that the question posed by the General Assembly is not in reality a legal question According to this submission international law does not regulate the act of making a declaration of independence which should be regarded as a political act only domestic constitutional law governs the act of making such a declaration while the Court’s jurisdiction to give an advisory opinion is confined to questions of international law In the present case however the Court has not been asked to give an opinion on whether the declaration of independence is in accordance with any rule of domestic law but only whether it is in accordance with international law The Court can respond to that question by reference to international law without the need to enquire into any system of domestic law 27 Moreover the Court has repeatedly stated that the fact that a question has political aspects does not suffice to deprive it of its character as a legal question Application for Review of Judgement No 158 of the United Nations Administrative Tribunal Advisory Opinion I C J Reports 1973 p 172 para 14 Whatever its political aspects the Court cannot refuse to respond to the legal elements of a question which invites it to discharge an essentially judicial task namely in the present case an assessment of an act by reference to international law The Court has also made clear that in determining the jurisdictional issue of whether it is confronted with a legal question it is not concerned with the political nature of the motives which may have inspired the request or the political implications which its opinion might have Conditions of Admission of a State to Membership in the United Nations Article 4 of the Charter Advisory Opinion 1948 I C J Reports 1947-1948 p 61 and Legality of the Threat or Use of Nuclear Weapons Advisory Opinion I C J Reports 1996 I p 234 para 13 28 The Court therefore considers that it has jurisdiction to give an advisory opinion in response to the request made by the General Assembly B Discretion 29 The fact that the Court has jurisdiction does not mean however that it is obliged to exercise it “The Court has recalled many times in the past that Article 65 paragraph 1 of its Statute which provides that ‘The Court may give an advisory opinion ’ emphasis added should be interpreted to 16 416 UNILATERAL DECLARATION OF INDEPENDENCE ADVISORY OPINION mean that the Court has a discretionary power to decline to give an advisory opinion even if the conditions of jurisdiction are met ” Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Advisory Opinion I C J Reports 2004 I p 156 para 44 The discretion whether or not to respond to a request for an advisory opinion exists so as to protect the integrity of the Court’s judicial function and its nature as the principal judicial organ of the United Nations Status of Eastern Carelia Advisory Opinion 1923 P C I J Series B No 5 p 29 Application for Review of Judgement No 158 of the United Nations Administrative Tribunal Advisory Opinion I C J Reports 1973 p 175 para 24 Application for Review of Judgement No 273 of the United Nations Administrative Tribunal Advisory Opinion I C J Reports 1982 p 334 para 22 and Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Advisory Opinion I C J Reports 2004 I pp 156-157 paras 44-45 30 The Court is nevertheless mindful of the fact that its answer to a request for an advisory opinion “represents its participation in the activities of the Organization and in principle should not be refused” Interpretation of Peace Treaties with Bulgaria Hungary and Romania First Phase Advisory Opinion I C J Reports 1950 p 71 Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights Advisory Opinion I C J Reports 1999 I pp 78-79 para 29 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Advisory Opinion I C J Reports 2004 I p 156 para 44 Accordingly the consistent jurisprudence of the Court has determined that only “compelling reasons” should lead the Court to refuse its opinion in response to a request falling within its jurisdiction Judgments of the Administrative Tribunal of the ILO upon Complaints Made against Unesco I C J Reports 1956 p 86 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Advisory Opinion I C J Reports 2004 I p 156 para 44 31 The Court must satisfy itself as to the propriety of the exercise of its judicial function in the present case It has therefore given careful consideration as to whether in the light of its previous jurisprudence there are compelling reasons for it to refuse to respond to the request from the General Assembly 32 One argument advanced by a number of participants in the present proceedings concerns the motives behind the request Those participants drew attention to a statement made by the sole sponsor of the resolution by which the General Assembly requested the Court’s opinion to the effect that “the Court’s advisory opinion would provide politically neutral yet judicially authoritative guidance to many countries still deliberating how to approach unilateral declarations of independence in line with international law 17 417 UNILATERAL DECLARATION OF INDEPENDENCE ADVISORY OPINION Supporting this draft resolution would also serve to reaffirm a fundamental principle the right of any Member State of the United Nations to pose a simple basic question on a matter it considers vitally important to the Court To vote against it would be in effect a vote to deny the right of any country to seek — now or in the future — judicial recourse through the United Nations system ” A 63 PV 22 p 1 According to those participants this statement demonstrated that the opinion of the Court was being sought not in order to assist the General Assembly but rather to serve the interests of one State and that the Court should therefore decline to respond 33 The advisory jurisdiction is not a form of judicial recourse for States but the means by which the General Assembly and the Security Council as well as other organs of the United Nations and bodies specifically empowered to do so by the General Assembly in accordance with Article 96 paragraph 2 of the Charter may obtain the Court’s opinion in order to assist them in their activities The Court’s opinion is given not to States but to the organ which has requested it Interpretation of Peace Treaties with Bulgaria Hungary and Romania First Phase Advisory Opinion I C J Reports 1950 p 71 Nevertheless precisely for that reason the motives of individual States which sponsor or vote in favour of a resolution requesting an advisory opinion are not relevant to the Court’s exercise of its discretion whether or not to respond As the Court put it in its Advisory Opinion on Legality of the Threat or Use of Nuclear Weapons “once the Assembly has asked by adopting a resolution for an advisory opinion on a legal question the Court in determining whether there are any compelling reasons for it to refuse to give such an opinion will not have regard to the origins or to the political history of the request or to the distribution of votes in respect of the adopted resolution” I C J Reports 1996 I p 237 para 16 34 It was also suggested by some of those participating in the proceedings that resolution 63 3 gave no indication of the purpose for which the General Assembly needed the Court’s opinion and that there was nothing to indicate that the opinion would have any useful legal effect This argument cannot be accepted The Court has consistently made clear that it is for the organ which requests the opinion and not for the Court to determine whether it needs the opinion for the proper performance of its functions In its Advisory Opinion on Legality of the Threat or Use of Nuclear Weapons the Court rejected an argument that it 18 418 UNILATERAL DECLARATION OF INDEPENDENCE ADVISORY OPINION should refuse to respond to the General Assembly’s request on the ground that the General Assembly had not explained to the Court the purposes for which it sought an opinion stating that “it is not for the Court itself to purport to decide whether or not an advisory opinion is needed by the Assembly for the performance of its functions The General Assembly has the right to decide for itself on the usefulness of an opinion in the light of its own needs ” I C J Reports 1996 I p 237 para 16 Similarly in the Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory the Court commented that “ t he Court cannot substitute its assessment of the usefulness of the opinion requested for that of the organ that seeks such opinion namely the General Assembly” I C J Reports 2004 I p 163 para 62 35 Nor does the Court consider that it should refuse to respond to the General Assembly’s request on the basis of suggestions advanced by some of those participating in the proceedings that its opinion might lead to adverse political consequences Just as the Court cannot substitute its own assessment for that of the requesting organ in respect of whether its opinion will be useful to that organ it cannot — in particular where there is no basis on which to make such an assessment — substitute its own view as to whether an opinion would be likely to have an adverse effect As the Court stated in its Advisory Opinion on Legality of the Threat or Use of Nuclear Weapons in response to a submission that a reply from the Court might adversely affect disarmament negotiations faced with contrary positions on this issue “there are no evident criteria by which it can prefer one assessment to another” Legality of the Threat or Use of Nuclear Weapons Advisory Opinion I C J Reports 1996 I p 237 para 17 see also Western Sahara Advisory Opinion I C J Reports 1975 p 37 para 73 and Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Advisory Opinion I C J Reports 2004 I pp 159-160 paras 51-54 36 An important issue which the Court must consider is whether in view of the respective roles of the Security Council and the General Assembly in relation to the situation in Kosovo the Court as the principal judicial organ of the United Nations should decline to answer the question which has been put to it on the ground that the request for the Court’s opinion has been made by the General Assembly rather than the Security Council 37 The situation in Kosovo had been the subject of action by the Security Council in the exercise of its responsibility for the maintenance of international peace and security for more than ten years prior to the present request for an advisory opinion The Council first took action specifically relating to the situation in Kosovo on 31 March 1998 when it 19 419 UNILATERAL DECLARATION OF INDEPENDENCE ADVISORY OPINION adopted resolution 1160 1998 That was followed by resolutions 1199 1998 1203 1998 and 1239 1999 On 10 June 1999 the Council adopted resolution 1244 1999 which authorized the creation of an international military presence subsequently known as “KFOR” and an international civil presence the United Nations Interim Administration Mission in Kosovo “UNMIK” and laid down a framework for the administration of Kosovo By resolution 1367 2001 the Security Council decided to terminate the prohibitions on the sale or supply of arms established by paragraph 8 of resolution 1160 1998 The Security Council has received periodic reports from the Secretary-General on the activities of UNMIK The dossier submitted to the Court by the SecretaryGeneral records that the Security Council met to consider the situation in Kosovo on 29 occasions between 2000 and the end of 2008 Although the declaration of independence which is the subject of the present request was discussed by the Security Council the Council took no action in respect of it Security Council provisional verbatim record 18 February 2008 3 p m S PV 5839 Security Council provisional verbatim record 11 March 2008 3 p m S PV 5850 38 The General Assembly has also adopted resolutions relating to the situation in Kosovo Prior to the adoption by the Security Council of resolution 1244 1999 the General Assembly adopted five resolutions on the situation of human rights in Kosovo resolutions 49 204 50 190 51 111 52 139 and 53 164 Following resolution 1244 1999 the General Assembly adopted one further resolution on the situation of human rights in Kosovo resolution 54 183 of 17 December 1999 and 15 resolutions concerning the financing of UNMIK resolutions 53 241 54 245A 54 245B 55 227A 55 227B 55 295 57 326 58 305 59 286A 59 286B 60 275 61 285 62 262 63 295 and 64 279 However the broader situation in Kosovo was not part of the agenda of the General Assembly at the time of the declaration of independence and it was therefore necessary in September 2008 to create a new agenda item for the consideration of the proposal to request an opinion from the Court 39 Against this background it has been suggested that given the respective powers of the Security Council and the General Assembly if the Court’s opinion were to be sought regarding whether the declaration of independence was in accordance with international law the request should rather have been made by the Security Council and that this fact constitutes a compelling reason for the Court not to respond to the request from the General Assembly That conclusion is said to follow both from the nature of the Security Council’s involvement and the fact that in order to answer the question posed the Court will necessarily have to interpret and apply Security Council resolution 1244 1999 in order to determine whether or not the declaration of independence is in accordance with international law 40 While the request put to the Court concerns one aspect of a situation which the Security Council has characterized as a threat to interna20 420 UNILATERAL DECLARATION OF INDEPENDENCE ADVISORY OPINION tional peace and security and which continues to feature on the agenda of the Council in that capacity that does not mean that the General Assembly has no legitimate interest in the question Articles 10 and 11 of the Charter to which the Court has already referred confer upon the General Assembly a very broad power to discuss matters within the scope of the activities of the United Nations including questions relating to international peace and security That power is not limited by the responsibility for the maintenance of international peace and security which is conferred upon the Security Council by Article 24 paragraph 1 As the Court has made clear in its Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory paragraph 26 “Article 24 refers to a primary but not necessarily exclusive competence” The fact that the situation in Kosovo is before the Security Council and the Council has exercised its Chapter VII powers in respect of that situation does not preclude the General Assembly from discussing any aspect of that situation including the declaration of independence The limit which the Charter places upon the General Assembly to protect the role of the Security Council is contained in Article 12 and restricts the power of the General Assembly to make recommendations following a discussion not its power to engage in such a discussion 41 Moreover Article 12 does not bar all action by the General Assembly in respect of threats to international peace and security which are before the Security Council The Court considered this question in some detail in paragraphs 26 to 27 of its Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory in which the Court noted that there has been an increasing tendency over time for the General Assembly and the Security Council to deal in parallel with the same matter concerning the maintenance of international peace and security and observed that it is often the case that while the Security Council has tended to focus on the aspects of such matters related to international peace and security the General Assembly has taken a broader view considering also their humanitarian social and economic aspects 42 The Court’s examination of this subject in its Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory was made in connection with an argument relating to whether or not the Court possessed the jurisdiction to give an advisory opinion rather than whether it should exercise its discretion not to give an opinion In the present case the Court has already held that Article 12 of the Charter does not deprive it of the jurisdiction conferred by Article 96 paragraph 1 paragraphs 23 to 24 above It considers however that the analysis contained in the 2004 Advisory Opinion is also pertinent to the issue of discretion in the present case That analysis demonstrates that the fact that a matter falls within the primary responsibility of the Security Council for situations which may affect the maintenance of international peace and security and that the Council has been exercising its powers in that respect does not preclude the General Assembly from 21 421 UNILATERAL DECLARATION OF INDEPENDENCE ADVISORY OPINION discussing that situation or within the limits set by Article 12 making recommendations with regard thereto In addition as the Court pointed out in its 2004 Advisory Opinion General Assembly resolution 377A V “Uniting for Peace” provides for the General Assembly to make recommendations for collective measures to restore international peace and security in any case where there appears to be a threat to the peace breach of the peace or act of aggression and the Security Council is unable to act because of lack of unanimity of the permanent members Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Advisory Opinion I C J Reports 2004 I p 150 para 30 These considerations are of relevance to the question whether the delimitation of powers between the Security Council and the General Assembly constitutes a compelling reason for the Court to decline to respond to the General Assembly’s request for an opinion in the present case 43 It is true of course that the facts of the present case are quite different from those of the Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory The situation in the occupied Palestinian territory had been under active consideration by the General Assembly for several decades prior to its decision to request an opinion from the Court and the General Assembly had discussed the precise subject on which the Court’s opinion was sought In the present case with regard to the situation in Kosovo it was the Security Council which had been actively seised of the matter In that context it discussed the future status of Kosovo and the declaration of independence see paragraph 37 above 44 However the purpose of the advisory jurisdiction is to enable organs of the United Nations and other authorized bodies to obtain opinions from the Court which will assist them in the future exercise of their functions The Court cannot determine what steps the General Assembly may wish to take after receiving the Court’s opinion or what effect that opinion may have in relation to those steps As the preceding paragraphs demonstrate the General Assembly is entitled to discuss the declaration of independence and within the limits considered in paragraph 42 above to make recommendations in respect of that or other aspects of the situation in Kosovo without trespassing on the powers of the Security Council That being the case the fact that hitherto the declaration of independence has been discussed only in the Security Council and that the Council has been the organ which has taken action with regard to the situation in Kosovo does not constitute a compelling reason for the Court to refuse to respond to the request from the General Assembly 45 Moreover while it is the scope for future discussion and action which is the determining factor in answering this objection to the Court rendering an opinion the Court also notes that the General Assembly has taken action with regard to the situation in Kosovo in the past As stated in paragraph 38 above between 1995 and 1999 the General 22 422 UNILATERAL DECLARATION OF INDEPENDENCE ADVISORY OPINION Assembly adopted six resolutions addressing the human rights situation in Kosovo The last of these resolution 54 183 was adopted on 17 December 1999 some six months after the Security Council had adopted resolution 1244 1999 While the focus of this resolution was on human rights and humanitarian issues it also addressed in para 7 the General Assembly’s concern about a possible “cantonization” of Kosovo In addition since 1999 the General Assembly has each year approved in accordance with Article 17 paragraph 1 of the Charter the budget of UNMIK see paragraph 38 above The Court observes therefore that the General Assembly has exercised functions of its own in the situation in Kosovo 46 Further in the view of the Court the fact that it will necessarily have to interpret and apply the provisions of Security Council resolution 1244 1999 in the course of answering the question put by the General Assembly does not constitute a compelling reason not to respond to that question While the interpretation and application of a decision of one of the political organs of the United Nations is in the first place the responsibility of the organ which took that decision the Court as the principal judicial organ of the United Nations has also frequently been required to consider the interpretation and legal effects of such decisions It has done so both in the exercise of its advisory jurisdiction see for example Certain Expenses of the United Nations Article 17 paragraph 2 of the Charter Advisory Opinion I C J Reports 1962 p 175 and Legal Consequences for States of the Continued Presence of South Africa in Namibia South West Africa notwithstanding Security Council Resolution 276 1970 Advisory Opinion I C J Reports 1971 pp 51-54 paras 107-116 and in the exercise of its contentious jurisdiction see for example Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie Libyan Arab Jamahiriya v United Kingdom Provisional Measures Order of 14 April 1992 I C J Reports 1992 p 15 paras 39-41 Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie Libyan Arab Jamahiriya v United States of America Provisional Measures Order of 14 April 1992 I C J Reports 1992 pp 126-127 paras 42-44 47 There is therefore nothing incompatible with the integrity of the judicial function in the Court undertaking such a task The question is rather whether it should decline to undertake that task unless it is the organ which has taken the decision that asks the Court to do so In its Advisory Opinion on Certain Expenses of the United Nations however the Court responded to the question posed by the General Assembly even though this necessarily required it to interpret a number of Security Council resolutions namely resolutions 143 145 and 146 of 1960 and 161 and 169 of 1961 Certain Expenses of the United Nations Article 17 paragraph 2 of the Charter Advisory Opinion I C J Reports 1962 pp 175-177 The Court also notes that in its Advisory Opinion on 23 423 UNILATERAL DECLARATION OF INDEPENDENCE ADVISORY OPINION Conditions of Admission of a State to Membership in the United Nations Article 4 of the Charter I C J Reports 1947-1948 pp 61-62 it responded to a request from the General Assembly even though that request referred to statements made in a meeting of the Security Council and it had been submitted that the Court should therefore exercise its discretion to decline to reply I C J Pleadings Conditions of Admission of a State to Membership in the United Nations Article 4 of the Charter p 90 Where as here the General Assembly has a legitimate interest in the answer to a question the fact that that answer may turn in part on a decision of the Security Council is not sufficient to justify the Court in declining to give its opinion to the General Assembly 48 Accordingly the Court considers that there are no compelling reasons for it to decline to exercise its jurisdiction in respect of the present request II SCOPE AND MEANING OF THE QUESTION 49 The Court will now turn to the scope and meaning of the question on which the General Assembly has requested that it give its opinion The General Assembly has formulated that question in the following terms “Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law ” 50 The Court recalls that in some previous cases it has departed from the language of the question put to it where the question was not adequately formulated see for example in Interpretation of the GrecoTurkish Agreement of 1 December 1926 Final Protocol Article IV Advisory Opinion 1928 P C I J Series B No 16 or where the Court determined on the basis of its examination of the background to the request that the request did not reflect the “legal questions really in issue” Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt Advisory Opinion I C J Reports 1980 p 89 para 35 Similarly where the question asked was unclear or vague the Court has clarified the question before giving its opinion Application for Review of Judgement No 273 of the United Nations Administrative Tribunal Advisory Opinion I C J Reports 1982 p 348 para 46 51 In the present case the question posed by the General Assembly is clearly formulated The question is narrow and specific it asks for the Court’s opinion on whether or not the declaration of independence is in accordance with international law It does not ask about the legal consequences of that declaration In particular it does not ask whether or not Kosovo has achieved statehood Nor does it ask about the validity or legal effects of the recognition of Kosovo by those States which have recognized it as an independent State The Court notes that in past requests 24 424 UNILATERAL DECLARATION OF INDEPENDENCE ADVISORY OPINION for advisory opinions the General Assembly and the Security Council when they have wanted the Court’s opinion on the legal consequences of an action have framed the question in such a way that this aspect is expressly stated see for example Legal Consequences for States of the Continued Presence of South Africa in Namibia South West Africa notwithstanding Security Council Resolution 276 1970 Advisory Opinion I C J Reports 1971 p 16 and Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Advisory Opinion I C J Reports 2004 I p 136 Accordingly the Court does not consider that it is necessary to address such issues as whether or not the declaration has led to the creation of a State or the status of the acts of recognition in order to answer the question put by the General Assembly The Court accordingly sees no reason to reformulate the scope of the question 52 There are however two aspects of the question which require comment First the question refers to “the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo” General Assembly resolution 63 3 of 8 October 2008 single operative paragraph emphasis added In addition the third preambular paragraph of the General Assembly resolution “ r ecall s that on 17 February 2008 the Provisional Institutions of Self-Government of Kosovo declared independence from Serbia” Whether it was indeed the Provisional Institutions of Self-Government of Kosovo which promulgated the declaration of independence was contested by a number of those participating in the present proceedings The identity of the authors of the declaration of independence as is demonstrated below paragraphs 102 to 109 is a matter which is capable of affecting the answer to the question whether that declaration was in accordance with international law It would be incompatible with the proper exercise of the judicial function for the Court to treat that matter as having been determined by the General Assembly 53 Nor does the Court consider that the General Assembly intended to restrict the Court’s freedom to determine this issue for itself The Court notes that the agenda item under which what became resolution 63 3 was discussed did not refer to the identity of the authors of the declaration and was entitled simply “Request for an advisory opinion of the International Court of Justice on whether the declaration of independence of Kosovo is in accordance with international law” General Assembly resolution 63 3 of 8 October 2008 emphasis added The wording of this agenda item had been proposed by the Republic of Serbia the sole sponsor of resolution 63 3 when it requested the inclusion of a supplementary item on the agenda of the 63rd session of the General Assembly Letter of the Permanent Representative of Serbia to the United Nations addressed to the Secretary-General 22 August 2008 A 63 195 That agenda item then became the title of the draft resolution and in turn of resolution 63 3 The common element in the agenda item and the 25 425 UNILATERAL DECLARATION OF INDEPENDENCE ADVISORY OPINION title of the resolution itself is whether the declaration of independence is in accordance with international law Moreover there was no discussion of the identity of the authors of the declaration or of the difference in wording between the title of the resolution and the question which it posed to the Court during the debate on the draft resolution A 63 PV 22 54 As the Court has stated in a different context “It is not to be assumed that the General Assembly would seek to fetter or hamper the Court in the discharge of its judicial functions the Court must have full liberty to consider all relevant data available to it in forming an opinion on a question posed to it for an advisory opinion ” Certain Expenses of the United Nations Article 17 paragraph 2 of the Charter Advisory Opinion I C J Reports 1962 p 157 This consideration is applicable in the present case In assessing whether or not the declaration of independence is in accordance with international law the Court must be free to examine the entire record and decide for itself whether that declaration was promulgated by the Provisional Institutions of Self-Government or some other entity 55 While many of those participating in the present proceedings made reference to the opinion of the Supreme Court of Canada in Reference by the Governor in Council concerning Certain Questions relating to the Secession of Quebec from Canada 1998 2 Supreme Court Reporter SCR 217 161 Dominion Law Reports DLR 4th 385 115 International Law Reports ILR 536 the Court observes that the question in the present case is markedly different from that posed to the Supreme Court of Canada The relevant question in that case was “Does international law give the National Assembly legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally In this regard is there a right to selfdetermination under international law that would give the National Assembly legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally ” 56 The question put to the Supreme Court of Canada inquired whether there was a right to “effect secession” and whether there was a rule of international law which conferred a positive entitlement on any of the organs named By contrast the General Assembly has asked whether the declaration of independence was “in accordance with” international law The answer to that question turns on whether or not the applicable international law prohibited the declaration of independence If the Court concludes that it did then it must answer the question put by saying that the declaration of independence was not in accordance with international law It follows that the task which the Court is called upon to perform is 26 426 UNILATERAL DECLARATION OF INDEPENDENCE ADVISORY OPINION to determine whether or not the declaration of independence was adopted in violation of international law The Court is not required by the question it has been asked to take a position on whether international law conferred a positive entitlement on Kosovo unilaterally to declare its independence or a fortiori on whether international law generally confers an entitlement on entities situated within a State unilaterally to break away from it Indeed it is entirely possible for a particular act — such as a unilateral declaration of independence — not to be in violation of international law without necessarily constituting the exercise of a right conferred by it The Court has been asked for an opinion on the first point not the second III FACTUAL BACKGROUND 57 The declaration of independence of 17 February 2008 must be considered within the factual context which led to its adoption The Court therefore will briefly describe the relevant characteristics of the framework put in place by the Security Council to ensure the interim administration of Kosovo namely Security Council resolution 1244 1999 and the regulations promulgated thereunder by the United Nations Mission in Kosovo The Court will then proceed with a brief description of the developments relating to the so-called “final status process” in the years preceding the adoption of the declaration of independence before turning to the events of 17 February 2008 A Security Council Resolution 1244 1999 and the Relevant UNMIK Regulations 58 Resolution 1244 1999 was adopted by the Security Council acting under Chapter VII of the United Nations Charter on 10 June 1999 In this resolution the Security Council “determined to resolve the grave humanitarian situation” which it had identified see the fourth preambular paragraph and to put an end to the armed conflict in Kosovo authorized the United Nations Secretary-General to establish an international civil presence in Kosovo in order to provide “an interim administration for Kosovo which will provide transitional administration while establishing and overseeing the development of provisional democratic self-governing institutions” para 10 Paragraph 3 demanded “in particular that the Federal Republic of Yugoslavia put an immediate and verifiable end to violence and repression in Kosovo and begin and complete verifiable phased withdrawal from Kosovo of all military police and paramilitary forces according to a rapid timetable” Pursuant to paragraph 5 of the resolution the Security Council decided 27 427 UNILATERAL DECLARATION OF INDEPENDENCE ADVISORY OPINION on the deployment in Kosovo under the auspices of the United Nations of international civil and security presences and welcomed the agreement of the Federal Republic of Yugoslavia to such presences The powers and responsibilities of the security presence were further clarified in paragraphs 7 and 9 Paragraph 15 of resolution 1244 1999 demanded that the Kosovo Liberation Army KLA and other armed Kosovo Albanian groups end immediately all offensive actions and comply with the requirements for demilitarization Immediately preceding the adoption of Security Council resolution 1244 1999 various implementing steps had already been taken through a series of measures including inter alia those stipulated in the Military Technical Agreement of 9 June 1999 whose Article I 2 provided for the deployment of KFOR permitting these to “operate without hindrance within Kosovo and with the authority to take all necessary action to establish and maintain a secure environment for all citizens of Kosovo and otherwise carry out its mission” The Military Technical Agreement also provided for the withdrawal of FRY ground and air forces save for “an agreed number of Yugoslav and Serb military and police personnel” as foreseen in paragraph 4 of resolution 1244 1999 59 Paragraph 11 of the resolution described the principal responsibilities of the international civil presence in Kosovo as follows “ 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 b Performing basic civilian administrative functions where and as long as required c Organizing and overseeing the development of provisional institutions for democratic and autonomous self-government pending a political settlement including the holding of elections d Transferring as these institutions are established its administrative responsibilities while overseeing and supporting the consolidation of Kosovo’s local provisional institutions and other peace-building activities e Facilitating a political process designed to determine Kosovo’s future status taking into account the Rambouillet accords S 1999 648 28 428 UNILATERAL DECLARATION OF INDEPENDENCE ADVISORY OPINION f In a final stage overseeing the transfer of authority from Kosovo’s provisional institutions to institutions established under a political settlement ” 60 On 12 June 1999 the Secretary-General presented to the Security Council “a preliminary operational concept for the overall organization of the civil presence which will be known as the United Nations Interim Administration Mission in Kosovo UNMIK ” pursuant to paragraph 10 of resolution 1244 1999 according to which UNMIK would be headed by a Special Representative of the Secretary-General to be appointed by the Secretary-General in consultation with the Security Council Report of the Secretary-General of 12 June 1999 United Nations doc S 1999 672 12 June 1999 The Report of the Secretary-General provided that there would be four Deputy Special Representatives working within UNMIK each responsible for one of four major components the socalled “four pillars” of the UNMIK régime para 5 a interim civil administration with a lead role assigned to the United Nations b humanitarian affairs with a lead role assigned to the Office of the United Nations High Commissioner for Refugees UNHCR c institution building with a lead role assigned to the Organization for Security and Co-operation in Europe OSCE and d reconstruction with a lead role assigned to the European Union 61 On 25 July 1999 the first Special Representative of the SecretaryGeneral promulgated UNMIK regulation 1999 1 which provided in its Section 1 1 that “ a ll legislative and executive authority with respect to Kosovo including the administration of the judiciary is vested in UNMIK and is exercised by the Special Representative of the SecretaryGeneral” Under Section 3 of UNMIK regulation 1999 1 the laws applicable in the territory of Kosovo prior to 24 March 1999 were to continue to apply but only to the extent that these did not conflict with internationally recognized human rights standards and non-discrimination or the fulfilment of the mandate given to UNMIK under resolution 1244 1999 Section 3 was repealed by UNMIK regulation 1999 25 promulgated by the Special Representative of the Secretary-General on 12 December 1999 with retroactive effect to 10 June 1999 Section 1 1 of UNMIK regulation 1999 24 of 12 December 1999 provides that “ t he law applicable in Kosovo shall be a the regulations promulgated by the Special Representative of the Secretary-General and subsidiary instruments issued thereunder and b the law in force in Kosovo on 22 March 1989” Section 4 entitled “Transitional Provision” reads as follows “All legal acts including judicial decisions and the legal effects of events which occurred during the period from 10 June 1999 up to the date of the present regulation pursuant to the laws in force during that period under section 3 of UNMIK Regulation No 1999 1 of 25 July 1999 shall remain valid insofar as they do not conflict 29 429 UNILATERAL DECLARATION OF INDEPENDENCE ADVISORY OPINION with the standards referred to in section 1 of the present regulation or any UNMIK regulation in force at the time of such acts ” 62 The powers and responsibilities thus laid out in Security Council resolution 1244 1999 were set out in more detail in UNMIK regulation 2001 9 of 15 May 2001 on a Constitutional Framework for Provisional Self-Government hereinafter “Constitutional Framework” which defined the responsibilities relating to the administration of Kosovo between the Special Representative of the Secretary-General and the Provisional Institutions of Self-Government of Kosovo With regard to the role entrusted to the Special Representative of the Secretary-General under Chapter 12 of the Constitutional Framework “ t he exercise of the responsibilities of the Provisional Institutions of Self-Government under this Constitutional Framework shall not affect or diminish the authority of the SRSG to ensure full implementation of UNSCR 1244 1999 including overseeing the Provisional Institutions of Self-Government its officials and its agencies and taking appropriate measures whenever their actions are inconsistent with UNSCR 1244 1999 or this Constitutional Framework” Moreover pursuant to Chapter 2 a “ t he Provisional Institutions of Self-Government and their officials shall e xercise their authorities consistent with the provisions of UNSCR 1244 1999 and the terms set forth in this Constitutional Framework” Similarly according to the ninth preambular paragraph of the Constitutional Framework “the exercise of the responsibilities of the Provisional Institutions of Self-Government in Kosovo shall not in any way affect or diminish the ultimate authority of the SRSG for the implementation of UNSCR 1244 1999 ” In his periodical report to the Security Council of 7 June 2001 the Secretary-General stated that the Constitutional Framework contained “broad authority for my Special Representative to intervene and correct any actions of the provisional institutions of self-government that are inconsistent with Security Council resolution 1244 1999 including the power to veto Assembly legislation where necessary” Report of the Secretary-General on the United Nations Interim 30 430 UNILATERAL DECLARATION OF INDEPENDENCE ADVISORY OPINION Administration Mission in Kosovo United Nations doc S 2001 565 7 June 2001 63 Having described the framework put in place by the Security Council to ensure the interim administration of the territory of Kosovo the Court now turns to the relevant events in the final status process which preceded the declaration of independence of 17 February 2008 B The Relevant Events in the Final Status Process Prior to 17 February 2008 64 In June 2005 the Secretary-General appointed Kai Eide Permanent Representative of Norway to the North Atlantic Treaty Organization as his Special Envoy to carry out a comprehensive review of Kosovo In the wake of the Comprehensive Review report he submitted to the Secretary-General attached to United Nations doc S 2005 635 7 October 2005 there was consensus within the Security Council that the final status process should be commenced “The Security Council agrees with Ambassador Eide’s overall assessment that notwithstanding the challenges still facing Kosovo and the wider region the time has come to move to the next phase of the political process The Council therefore supports the SecretaryGeneral’s intention to start a political process to determine Kosovo’s Future Status as foreseen in Security Council resolution 1244 1999 ” Statement by the President of the Security Council of 24 October 2005 United Nations doc S PRST 2005 51 65 In November 2005 the Secretary-General appointed Mr Martti Ahtisaari former President of Finland as his Special Envoy for the future status process for Kosovo This appointment was endorsed by the Security Council see Letter dated 10 November 2005 from the President of the Security Council addressed to the Secretary-General United Nations doc S 2005 709 Mr Ahtisaari’s Letter of Appointment included as an annex to it a document entitled “Terms of Reference” which stated that the Special Envoy “is expected to revert to the Secretary-General at all stages of the process” Furthermore “ t he pace and duration of the future status process will be determined by the Special Envoy on the basis of consultations with the Secretary-General taking into account the co-operation of the parties and the situation on the ground” Terms of Reference dated 10 November 2005 as an appendix to the Letter of the Secretary-General to Mr Martti Ahtisaari of 14 November 2005 United Nations dossier No 198 66 The Security Council did not comment on these Terms of Reference Instead the members of the Council attached to their approval of 31 431 UNILATERAL DECLARATION OF INDEPENDENCE ADVISORY OPINION Mr Ahtisaari’s appointment the Guiding Principles of the Contact Group an informal grouping of States formed in 1994 to address the situation in the Balkans and composed of France Germany Italy the Russian Federation the United Kingdom and the United States Members of the Security Council further indicated that the Guiding Principles were meant for the Secretary-General’s and therefore also for the Special Envoy’s “reference” These Principles stated inter alia that “ t he Contact Group welcomes the intention of the SecretaryGeneral to appoint a Special Envoy to lead this process A negotiated solution should be an international priority Once the process has started it cannot be blocked and must be brought to a conclusion The Contact Group calls on the parties to engage in good faith and constructively to refrain from unilateral steps and to reject any form of violence The Security Council will remain actively seized of the matter The final decision on the status of Kosovo should be endorsed by the Security Council ” Guiding Principles of the Contact Group for a Settlement of the Status of Kosovo as Annexed to the Letter Dated 10 November 2005 from the President of the Security Council addressed to the Secretary-General United Nations doc S 2005 709 67 Between 20 February and 8 September 2006 several rounds of negotiations were held at which delegations of Serbia and Kosovo addressed in particular the decentralization of Kosovo’s governmental and administrative functions cultural heritage and religious sites economic issues and community rights Reports of the Secretary-General on the United Nations Interim Administration Mission in Kosovo United Nations docs S 2006 361 S 2006 707 and S 2006 906 According to the Reports of the Secretary-General “the parties remain ed far apart on most issues” Reports of the Secretary-General on the United Nations Interim Administration Mission in Kosovo S 2006 707 S 2006 906 68 On 2 February 2007 the Special Envoy of the Secretary-General submitted a draft comprehensive proposal for the Kosovo status settlement to the parties and invited them to engage in a consultative process recalled in the Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo United Nations doc S 2007 134 9 March 2007 On 10 March 2007 a final round of negotiations was held in Vienna to discuss the settlement proposal As reported by the Secretary-General “the parties were unable to make any additional progress” at those negotiations Report of the Secretary-General on the United 32 432 UNILATERAL DECLARATION OF INDEPENDENCE ADVISORY OPINION Nations Interim Administration Mission in Kosovo United Nations doc S 2007 395 29 June 2007 p 1 69 On 26 March 2007 the Secretary-General submitted the report of his Special Envoy to the Security Council The Special Envoy stated that “after more than one year of direct talks bilateral negotiations and expert consultations it had become clear to him that the parties were not able to reach an agreement on Kosovo’s future status” Letter dated 26 March 2007 from the Secretary-General addressed to the President of the Security Council attaching the Report of the Special Envoy of the Secretary-General on Kosovo’s future status United Nations doc S 2007 168 26 March 2007 After emphasizing that his “mandate explicitly provides that he determine the pace and duration of the future status process on the basis of consultations with the Secretary-General taking into account the co-operation of the parties and the situation on the ground” ibid para 3 the Special Envoy concluded “It is my firm view that the negotiations’ potential to produce any mutually agreeable outcome on Kosovo’s status is exhausted No amount of additional talks whatever the format will overcome this impasse The time has come to resolve Kosovo’s status Upon careful consideration of Kosovo’s recent history the realities of Kosovo today and taking into account the negotiations with the parties I have come to the conclusion that the only viable option for Kosovo is independence to be supervised for an initial period by the international community ” Ibid paras 3 and 5 70 The Special Envoy’s conclusions were accompanied by his finalized Comprehensive Proposal for the Kosovo Status Settlement United Nations doc S 2007 168 Add 1 26 March 2007 which in his words set forth “international supervisory structures and provide d the foundations for a future independent Kosovo” United Nations doc S 2007 168 para 5 The Comprehensive Proposal called for the immediate convening of a Constitutional Commission to draft a Constitution for Kosovo ibid Add 1 26 March 2007 Art 10 1 established guidelines concerning the membership of that Commission ibid Art 10 2 set numerous requirements concerning principles and provisions to be contained in that Constitution ibid Art 1 3 and Ann I and required that the Assembly of Kosovo approve the Constitution by a two-thirds vote within 120 days ibid Art 10 4 Moreover it called for the expiry of the UNMIK mandate after a 120-day transition period after which “all legislative and executive authority vested in UNMIK shall be transferred en bloc to the governing authorities of Kosovo unless otherwise provided for in this Settlement” ibid Art 15 1 It mandated the holding of general and municipal elections no later than nine months from the entry into force 33 433 UNILATERAL DECLARATION OF INDEPENDENCE ADVISORY OPINION of the Constitution UN doc S 2007 168 Add 1 26 March 2007 Art 11 1 The Court further notes that the Comprehensive Proposal for the Kosovo Status Settlement provided for the appointment of an International Civilian Representative ICR who would have the final authority in Kosovo regarding interpretation of the Settlement ibid Art 12 The Comprehensive Proposal also specified that the mandate of the ICR would be reviewed “no later than two years after the entry into force of the Settlement with a view to gradually reducing the scope of the powers of the ICR and the frequency of intervention” ibid Ann IX Art 5 1 and that “ t he mandate of the ICR shall be terminated when the International Steering Group a body composed of France Germany Italy the Russian Federation the United Kingdom the United States the European Union the European Commission and NATO determine d that Kosovo ha d implemented the terms of the Settlement” ibid Art 5 2 71 The Secretary-General “fully support ed both the recommendation made by his Special Envoy in his report on Kosovo’s future status and the Comprehensive Proposal for the Kosovo Status Settlement” letter dated 26 March 2007 from the Secretary-General addressed to the President of the Security Council United Nations doc S 2007 168 The Security Council for its part decided to undertake a mission to Kosovo see Report of the Security Council mission on the Kosovo issue United Nations doc S 2007 256 4 May 2007 but was not able to reach a decision regarding the final status of Kosovo A draft resolution was circulated among the Council’s members see draft resolution sponsored by Belgium France Germany Italy the United Kingdom and the United States United Nations doc S 2007 437 Prov 17 July 2007 but was withdrawn after some weeks when it had become clear that it would not be adopted by the Security Council 72 Between 9 August and 3 December 2007 further negotiations on the future status of Kosovo were held under the auspices of a Troika comprising representatives of the European Union the Russian Federation and the United States On 4 December 2007 the Troika submitted its report to the Secretary-General which came to the conclusion that despite intensive negotiations “the parties were unable to reach an agreement on Kosovo’s status” and “ n either side was willing to yield on the basic question of sovereignty” Report of the European Union United States Russian Federation Troika on Kosovo 4 December 2007 annexed to S 2007 723 73 On 17 November 2007 elections were held for the Assembly of Kosovo 30 municipal assemblies and their respective mayors Report of 34 434 UNILATERAL DECLARATION OF INDEPENDENCE ADVISORY OPINION the Secretary-General on the United Nations Interim Administration Mission in Kosovo United Nations doc S 2007 768 The Assembly of Kosovo held its inaugural session on 4 and 9 January 2008 Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo United Nations doc S 2008 211 C The Events of 17 February 2008 and Thereafter 74 It is against this background that the declaration of independence was adopted on 17 February 2008 The Court observes that the original language of the declaration is Albanian For the purposes of the present Opinion when quoting from the text of the declaration the Court has used the translations into English and French included in the dossier submitted on behalf of the Secretary-General In its relevant passages the declaration of independence states that its authors were “ c onvened in an extraordinary meeting on 17 February 2008 in Pristina the capital of Kosovo” first preambular paragraph it “ r ecall ed the years of internationally-sponsored negotiations between Belgrade and Pristina over the question of Kosovo’s future political status” and “ r egrett ed that no mutually-acceptable status outcome was possible” tenth and eleventh preambular paragraphs It further declared that the authors were “ d etermin ed to see Kosovo’s status resolved in order to give its people clarity about their future move beyond the conflicts of the past and realise the full democratic potential of its society” thirteenth preambular paragraph 75 In its operative part the declaration of independence of 17 February 2008 states “1 We the democratically-elected leaders of our people hereby declare Kosovo to be an independent and sovereign state This declaration reflects the will of our people and it is in full accordance with the recommendations of UN Special Envoy Martti Ahtisaari and his Comprehensive Proposal for the Kosovo Status Settlement 2 We declare Kosovo to be a democratic secular and multiethnic republic guided by the principles of non-discrimination and equal protection under the law We shall protect and promote the rights of all communities in Kosovo and create the conditions necessary for their effective participation in political and decisionmaking processes 5 We welcome the international community’s continued support 35 435 UNILATERAL DECLARATION OF INDEPENDENCE ADVISORY OPINION of our democratic development through international presences established in Kosovo on the basis of UN Security Council resolution 1244 1999 We invite and welcome an international civilian presence to supervise our implementation of the Ahtisaari Plan and a European Union-led rule of law mission 9 We hereby undertake the international obligations of Kosovo including those concluded on our behalf by the United Nations Interim Administration Mission in Kosovo UNMIK 12 We hereby affirm clearly specifically and irrevocably that Kosovo shall be legally bound to comply with the provisions contained in this Declaration including especially the obligations for it under the Ahtisaari Plan We declare publicly that all States are entitled to rely upon this declaration ” 76 The declaration of independence was adopted at a meeting held on 17 February 2008 by 109 out of the 120 members of the Assembly of Kosovo including the Prime Minister of Kosovo and by the President of Kosovo who was not a member of the Assembly The ten members of the Assembly representing the Kosovo Serb community and one member representing the Kosovo Gorani community decided not to attend this meeting The declaration was written down on two sheets of papyrus and read out voted upon and then signed by all representatives present It was not transmitted to the Special Representative of the SecretaryGeneral and was not published in the Official Gazette of the Provisional Institutions of Self-Government of Kosovo 77 After the declaration of independence was issued the Republic of Serbia informed the Secretary-General that it had adopted a decision stating that that declaration represented a forceful and unilateral secession of a part of the territory of Serbia and did not produce legal effects either in Serbia or in the international legal order United Nations doc S PV 5839 Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo United Nations doc S 2008 211 Further to a request from Serbia an emergency public meeting of the Security Council took place on 18 February 2008 in which Mr Boris Tadić the President of the Republic of Serbia participated and denounced the declaration of independence as an unlawful act which had been declared null and void by the National Assembly of Serbia United Nations doc S PV 5839 36 436 UNILATERAL DECLARATION OF INDEPENDENCE ADVISORY OPINION IV THE QUESTION WHETHER THE DECLARATION OF INDEPENDENCE IS IN ACCORDANCE WITH INTERNATIONAL LAW 78 The Court now turns to the substance of the request submitted by the General Assembly The Court recalls that it has been asked by the General Assembly to assess the accordance of the declaration of independence of 17 February 2008 with “international law” resolution 63 3 of the General Assembly 8 October 2008 The Court will first turn its attention to certain questions concerning the lawfulness of declarations of independence under general international law against the background of which the question posed falls to be considered and Security Council resolution 1244 1999 is to be understood and applied Once this general framework has been determined the Court will turn to the legal relevance of Security Council resolution 1244 1999 and determine whether the resolution creates special rules and ensuing obligations under international law applicable to the issues raised by the present request and having a bearing on the lawfulness of the declaration of independence of 17 February 2008 A General International Law 79 During the eighteenth nineteenth and early twentieth centuries there were numerous instances of declarations of independence often strenuously opposed by the State from which independence was being declared Sometimes a declaration resulted in the creation of a new State at others it did not In no case however does the practice of States as a whole suggest that the act of promulgating the declaration was regarded as contrary to international law On the contrary State practice during this period points clearly to the conclusion that international law contained no prohibition of declarations of independence During the second half of the twentieth century the international law of self-determination developed in such a way as to create a right to independence for the peoples of non-self-governing territories and peoples subject to alien subjugation domination and exploitation cf Legal Consequences for States of the Continued Presence of South Africa in Namibia South West Africa notwithstanding Security Council Resolution 276 1970 Advisory Opinion I C J Reports 1971 pp 31-32 paras 52-53 East Timor Portugal v Australia Judgment I C J Reports 1995 p 102 para 29 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Advisory Opinion I C J Reports 2004 I pp 171-172 para 88 A great many new States have come into existence as a result of the exercise of this right There were however also instances of declarations of independence outside this context The practice of States in these latter cases does not point to the emergence in international law of a new rule prohibiting the making of a declaration of independence in such cases 37 437 UNILATERAL DECLARATION OF INDEPENDENCE ADVISORY OPINION 80 Several participants in the proceedings before the Court have contended that a prohibition of unilateral declarations of independence is implicit in the principle of territorial integrity The Court recalls that the principle of territorial integrity is an important part of the international legal order and is enshrined in the Charter of the United Nations in particular in Article 2 paragraph 4 which provides that “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State or in any other manner inconsistent with the Purposes of the United Nations ” In General Assembly resolution 2625 XXV entitled “Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations” which reflects customary international law Military and Paramilitary Activities in and against Nicaragua Nicaragua v United States of America Merits Judgment I C J Reports 1986 pp 101-103 paras 191-193 the General Assembly reiterated “ t he principle that States shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State” This resolution then enumerated various obligations incumbent upon States to refrain from violating the territorial integrity of other sovereign States In the same vein the Final Act of the Helsinki Conference on Security and Co-operation in Europe of 1 August 1975 the Helsinki Conference stipulated that “ t he participating States will respect the territorial integrity of each of the participating States” Art IV Thus the scope of the principle of territorial integrity is confined to the sphere of relations between States 81 Several participants have invoked resolutions of the Security Council condemning particular declarations of independence see inter alia Security Council resolutions 216 1965 and 217 1965 concerning Southern Rhodesia Security Council resolution 541 1983 concerning northern Cyprus and Security Council resolution 787 1992 concerning the Republika Srpska The Court notes however that in all of those instances the Security Council was making a determination as regards the concrete situation existing at the time that those declarations of independence were made the illegality attached to the declarations of independence thus stemmed not from the unilateral character of these declarations as such but from the fact that they were or would have been connected with the unlawful use of force or other egregious violations of norms of general international law in particular those of a peremptory character jus cogens In the context of Kosovo the Security Council has never taken this position The exceptional character of the resolutions enumerated above 38 438 UNILATERAL DECLARATION OF INDEPENDENCE ADVISORY OPINION appears to the Court to confirm that no general prohibition against unilateral declarations of independence may be inferred from the practice of the Security Council 82 A number of participants in the present proceedings have claimed although in almost every instance only as a secondary argument that the population of Kosovo has the right to create an independent State either as a manifestation of a right to self-determination or pursuant to what they described as a right of “remedial secession” in the face of the situation in Kosovo The Court has already noted see paragraph 79 above 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 Whether outside the context of non-self-governing territories and peoples subject to alien subjugation domination and exploitation the international law of self-determination confers upon part of the population of an existing State a right to separate from that State is however a subject on which radically different views were expressed by those taking part in the proceedings and expressing a position on the question Similar differences existed regarding whether international law provides for a right of “remedial secession” and if so in what circumstances There was also a sharp difference of views as to whether the circumstances which some participants maintained would give rise to a right of “remedial secession” were actually present in Kosovo 83 The Court considers that it is not necessary to resolve these questions in the present case The General Assembly has requested the Court’s opinion only on whether or not the declaration of independence is in accordance with international law Debates regarding the extent of the right of self-determination and the existence of any right of “remedial secession” however concern the right to separate from a State As the Court has already noted see paragraphs 49 to 56 above and as almost all participants agreed that issue is beyond the scope of the question posed by the General Assembly To answer that question the Court need only determine whether the declaration of independence violated either general international law or the lex specialis created by Security Council resolution 1244 1999 84 For the reasons already given the Court considers 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 39 439 UNILATERAL DECLARATION OF INDEPENDENCE ADVISORY OPINION law Having arrived at that conclusion the Court now turns to the legal relevance of Security Council resolution 1244 adopted on 10 June 1999 B Security Council Resolution 1244 1999 and the UNMIK Constitutional Framework Created Thereunder 85 Within the legal framework of the United Nations Charter notably on the basis of Articles 24 25 and Chapter VII thereof the Security Council may adopt resolutions imposing obligations under international law The Court has had the occasion to interpret and apply such Security Council resolutions on a number of occasions and has consistently treated them as part of the framework of obligations under international law Legal Consequences for States of the Continued Presence of South Africa in Namibia South West Africa notwithstanding Security Council Resolution 276 1970 Advisory Opinion I C J Reports 1971 p 16 Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie Libyan Arab Jamahiriya v United Kingdom Provisional Measures Order of 14 April 1992 I C J Reports 1992 p 15 paras 39-41 Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie Libyan Arab Jamahiriya v United States of America Provisional Measures Order of 14 April 1992 I C J Reports 1992 pp 126-127 paras 42-44 Resolution 1244 1999 was expressly adopted by the Security Council on the basis of Chapter VII of the United Nations Charter and therefore clearly imposes international legal obligations The Court notes that none of the participants has questioned the fact that resolution 1244 1999 which specifically deals with the situation in Kosovo is part of the law relevant in the present situation 86 The Court notes that there are a number of other Security Council resolutions adopted on the question of Kosovo notably Security Council resolutions 1160 1998 1199 1998 1203 1998 and 1239 1999 however the Court sees no need to pronounce specifically on resolutions of the Security Council adopted prior to resolution 1244 1999 which are in any case recalled in the second preambular paragraph of the latter 87 A certain number of participants have dealt with the question whether regulations adopted on behalf of UNMIK by the Special Representative of the Secretary-General notably the Constitutional Framework see paragraph 62 above also form part of the applicable international law within the meaning of the General Assembly’s request 88 In particular it has been argued before the Court that the Constitutional Framework is an act of an internal law rather than an interna40 440 UNILATERAL DECLARATION OF INDEPENDENCE ADVISORY OPINION tional law character According to that argument the Constitutional Framework would not be part of the international law applicable in the present instance and the question of the compatibility of the declaration of independence therewith would thus fall outside the scope of the General Assembly’s request The Court observes that UNMIK regulations including regulation 2001 9 which promulgated the Constitutional Framework are adopted by the Special Representative of the Secretary-General on the basis of the authority derived from Security Council resolution 1244 1999 notably its paragraphs 6 10 and 11 and thus ultimately from the United Nations Charter The Constitutional Framework derives its binding force from the binding character of resolution 1244 1999 and thus from international law In that sense it therefore possesses an international legal character 89 At the same time the Court observes that the Constitutional Framework functions as part of a specific legal order created pursuant to resolution 1244 1999 which is applicable only in Kosovo and the purpose of which is to regulate during the interim phase established by resolution 1244 1999 matters which would ordinarily be the subject of internal rather than international law Regulation 2001 9 opens with the statement that the Constitutional Framework was promulgated “ f or the purposes of developing meaningful self-government in Kosovo pending a final settlement and establishing provisional institutions of self-government in the legislative executive and judicial fields through the participation of the people of Kosovo in free and fair elections” The Constitutional Framework therefore took effect as part of the body of law adopted for the administration of Kosovo during the interim phase The institutions which it created were empowered by the Constitutional Framework to take decisions which took effect within that body of law In particular the Assembly of Kosovo was empowered to adopt legislation which would have the force of law within that legal order subject always to the overriding authority of the Special Representative of the Secretary-General 90 The Court notes that both Security Council resolution 1244 1999 and the Constitutional Framework entrust the Special Representative of the Secretary-General with considerable supervisory powers with regard to the Provisional Institutions of Self-Government established under the authority of the United Nations Interim Administration Mission in Kosovo As noted above see paragraph 58 Security Council resolution 1244 1999 envisages “an interim administration for Kosovo which will provide transitional administration while establishing and overseeing the development of provisional democratic self-governing institutions” para 10 Resolution 1244 1999 further states that “the main responsibilities of the international civil presence will include o rganizing and overseeing the development of provisional institutions for demo41 441 UNILATERAL DECLARATION OF INDEPENDENCE ADVISORY OPINION cratic and autonomous self-government pending a political settlement including the holding of elections” paragraph 11 c Similarly as described above see paragraph 62 under the Constitutional Framework the Provisional Institutions of Self-Government were to function in conjunction with and subject to the direction of the Special Representative of the Secretary-General in the implementation of Security Council resolution 1244 1999 91 The Court notes that Security Council resolution 1244 1999 and the Constitutional Framework were still in force and applicable as at 17 February 2008 Paragraph 19 of Security Council resolution 1244 1999 expressly provides that “the international civil and security presences are established for an initial period of 12 months to continue thereafter unless the Security Council decides otherwise” No decision amending resolution 1244 1999 was taken by the Security Council at its meeting held on 18 February 2008 when the declaration of independence was discussed for the first time or at any subsequent meeting The Presidential Statement of 26 November 2008 S PRST 2008 44 merely “welcom ed the co-operation between the UN and other international actors within the framework of Security Council resolution 1244 1999 ” emphasis added In addition pursuant to paragraph 21 of Security Council resolution 1244 1999 the Security Council decided “to remain actively seized of the matter” and maintained the item “Security Council resolutions 1160 1998 1199 1998 1203 1998 1239 1999 and 1244 1999 ” on its agenda see most recently Report of the Security Council 1 August 2008-31 July 2009 General Assembly Official Records 64th session Supplement No 2 pp 39 ff and 132 ff Furthermore Chapter 14 3 of the Constitutional Framework sets forth that “ t he SRSG may effect amendments to this Constitutional Framework” Minor amendments were effected by virtue of UNMIK regulations UNMIK REG 2002 9 of 3 May 2002 UNMIK REG 2007 29 of 4 October 2007 UNMIK REG 2008 1 of 8 January 2008 and UNMIK REG 2008 9 of 8 February 2008 Finally neither Security Council resolution 1244 1999 nor the Constitutional Framework contains a clause providing for its termination and neither has been repealed they therefore constituted the international law applicable to the situation prevailing in Kosovo on 17 February 2008 92 In addition the Special Representative of the Secretary-General continues to exercise his functions in Kosovo Moreover the SecretaryGeneral has continued to submit periodic reports to the Security Council as required by paragraph 20 of Security Council resolution 1244 1999 see the most recent quarterly Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo S 2010 169 6 April 2010 as well as the preceding Reports S 2008 692 of 24 Novem42 442 UNILATERAL DECLARATION OF INDEPENDENCE ADVISORY OPINION ber 2008 S 2009 149 of 17 March 2009 S 2009 300 of 10 June 2009 S 2009 497 of 30 September 2009 and S 2010 5 of 5 January 2010 93 From the foregoing the Court concludes that Security Council resolution 1244 1999 and the Constitutional Framework form part of the international law which is to be considered in replying to the question posed by the General Assembly in its request for the advisory opinion 1 Interpretation of Security Council resolution 1244 1999 94 Before continuing further the Court must recall several factors relevant in the interpretation of resolutions of the Security Council While the rules on treaty interpretation embodied in Articles 31 and 32 of the Vienna Convention on the Law of Treaties may provide guidance differences between Security Council resolutions and treaties mean that the interpretation of Security Council resolutions also require that other factors be taken into account Security Council resolutions are issued by a single collective body and are drafted through a very different process than that used for the conclusion of a treaty Security Council resolutions are the product of a voting process as provided for in Article 27 of the Charter and the final text of such resolutions represents the view of the Security Council as a body Moreover Security Council resolutions can be binding on all Member States Legal Consequences for States of the Continued Presence of South Africa in Namibia South West Africa notwithstanding Security Council Resolution 276 1970 Advisory Opinion I C J Reports 1971 p 54 para 116 irrespective of whether they played any part in their formulation The interpretation of Security Council resolutions may require the Court to analyse statements by representatives of members of the Security Council made at the time of their adoption other resolutions of the Security Council on the same issue as well as the subsequent practice of relevant United Nations organs and of States affected by those given resolutions 95 The Court first notes that resolution 1244 1999 must be read in conjunction with the general principles set out in annexes 1 and 2 thereto since in the resolution itself the Security Council “1 Decide d that a political solution to the Kosovo crisis shall be based on the general principles in annex 1 and as further elaborated in the principles and other required elements in annex 2 ” Those general principles sought to defuse the Kosovo crisis first by ensuring an end to the violence and repression in Kosovo and by the establishment of an interim administration A 43 443 UNILATERAL DECLARATION OF INDEPENDENCE ADVISORY OPINION longer-term solution was also envisaged in that resolution 1244 1999 was to initiate “ a political process towards the establishment of an interim political framework agreement providing for a substantial selfgovernment for Kosovo taking full account of the Rambouillet accords and the principles of sovereignty and territorial integrity of the Federal Republic of Yugoslavia and the other countries of the region and the demilitarization of the KLA” Security Council resolution 1244 1999 of 10 June 1999 Ann 1 sixth principle ibid Ann 2 para 8 Further it bears recalling that the tenth preambular paragraph of resolution 1244 1999 also recalled the sovereignty and the territorial integrity of the Federal Republic of Yugoslavia 96 Having earlier outlined the principal characteristics of Security Council resolution 1244 1999 see paragraphs 58 to 59 the Court next observes that three distinct features of that resolution are relevant for discerning its object and purpose 97 First resolution 1244 1999 establishes an international civil and security presence in Kosovo with full civil and political authority and sole responsibility for the governance of Kosovo As described above see paragraph 60 on 12 June 1999 the Secretary-General presented to the Security Council his preliminary operational concept for the overall organization of the civil presence under UNMIK On 25 July 1999 the Special Representative of the Secretary-General promulgated UNMIK regulation 1999 1 deemed to have entered into force as of 10 June 1999 the date of adoption of Security Council resolution 1244 1999 Under this regulation “ a ll legislative and executive authority with respect to Kosovo including the administration of the judiciary” was vested in UNMIK and exercised by the Special Representative Viewed together resolution 1244 1999 and UNMIK regulation 1999 1 therefore had the effect of superseding the legal order in force at that time in the territory of Kosovo and setting up an international territorial administration For this reason the establishment of civil and security presences in Kosovo deployed on the basis of resolution 1244 1999 must be understood as an exceptional measure relating to civil political and security aspects and aimed at addressing the crisis existing in that territory in 1999 98 Secondly the solution embodied in resolution 1244 1999 namely the implementation of an interim international territorial administration was designed for humanitarian purposes to provide a means for the stabilization of Kosovo and for the re-establishment of a basic public order in an area beset by crisis This becomes apparent in the text of resolution 1244 1999 itself which in its second preambular paragraph recalls Security Council resolution 1239 adopted on 14 May 1999 in which the Security Council had expressed “grave concern at the humanitarian crisis 44 444 UNILATERAL DECLARATION OF INDEPENDENCE ADVISORY OPINION in and around Kosovo” The priorities which are identified in paragraph 11 of resolution 1244 1999 were elaborated further in the so-called “four pillars” relating to the governance of Kosovo described in the Report of the Secretary-General of 12 June 1999 paragraph 60 above By placing an emphasis on these “four pillars” namely interim civil administration humanitarian affairs institution building and reconstruction and by assigning responsibility for these core components to different international organizations and agencies resolution 1244 1999 was clearly intended to bring about stabilization and reconstruction The interim administration in Kosovo was designed to suspend temporarily Serbia’s exercise of its authority flowing from its continuing sovereignty over the territory of Kosovo The purpose of the legal régime established under resolution 1244 1999 was to establish organize and oversee the development of local institutions of self-government in Kosovo under the aegis of the interim international presence 99 Thirdly resolution 1244 1999 clearly establishes an interim régime it cannot be understood as putting in place a permanent institutional framework in the territory of Kosovo This resolution mandated UNMIK merely to facilitate the desired negotiated solution for Kosovo’s future status without prejudging the outcome of the negotiating process 100 The Court thus concludes that the object and purpose of resolution 1244 1999 was 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 2 The question whether the declaration of independence is in accordance with Security Council resolution 1244 1999 and the measures adopted thereunder 101 The Court will now turn to the question whether Security Council resolution 1244 1999 or the measures adopted thereunder introduces a specific prohibition on issuing a declaration of independence applicable to those who adopted the declaration of independence of 17 February 2008 In order to answer this question it is first necessary as explained in paragraph 52 above for the Court to determine precisely who issued that declaration a The identity of the authors of the declaration of independence 102 The Court needs to determine whether the declaration of independence of 17 February 2008 was an act of the “Assembly of Kosovo” one of the Provisional Institutions of Self-Government established under 45 445 UNILATERAL DECLARATION OF INDEPENDENCE ADVISORY OPINION Chapter 9 of the Constitutional Framework or whether those who adopted the declaration were acting in a different capacity 103 The Court notes that different views have been expressed regarding this question On the one hand it has been suggested in the proceedings before the Court that the meeting in which the declaration was adopted was a session of the Assembly of Kosovo operating as a Provisional Institution of Self-Government within the limits of the Constitutional Framework Other participants have observed that both the language of the document and the circumstances under which it was adopted clearly indicate that the declaration of 17 February 2008 was not the work of the Provisional Institutions of Self-Government and did not take effect within the legal framework created for the Government of Kosovo during the interim phase 104 The Court notes that when opening the meeting of 17 February 2008 at which the declaration of independence was adopted the President of the Assembly and the Prime Minister of Kosovo made reference to the Assembly of Kosovo and the Constitutional Framework The Court considers however that the declaration of independence must be seen in its larger context taking into account the events preceding its adoption notably relating to the so-called “final status process” see paragraphs 64 to 73 Security Council resolution 1244 1999 was mostly concerned with setting up an interim framework of self-government for Kosovo see paragraph 58 above Although at the time of the adoption of the resolution it was expected that the final status of Kosovo would flow from and be developed within the framework set up by the resolution the specific contours let alone the outcome of the final status process were left open by Security Council resolution 1244 1999 Accordingly its paragraph 11 especially in its subparagraphs d e and f deals with final status issues only in so far as it is made part of UNMIK’s responsibilities to “ f acilitat e a political process designed to determine Kosovo’s future status taking into account the Rambouillet accords” and “ i n a final stage to oversee the transfer of authority from Kosovo’s provisional institutions to institutions established under a political settlement” 105 The declaration of independence reflects the awareness of its authors that the final status negotiations had failed and that a critical moment for the future of Kosovo had been reached The preamble of the declaration refers to the “years of internationally-sponsored negotiations between Belgrade and Pristina over the question of our future political status” and expressly puts the declaration in the context of the failure of the final status negotiations inasmuch as it states that “no mutuallyacceptable status outcome was possible” tenth and eleventh preambular paragraphs Proceeding from there the authors of the declaration of independence emphasize their determination to “resolve” the status of Kosovo and to give the people of Kosovo “clarity about their future” 46 446 UNILATERAL DECLARATION OF INDEPENDENCE ADVISORY OPINION thirteenth preambular paragraph This language indicates that the authors of the declaration did not seek to act within the standard framework of interim self-administration of Kosovo but aimed at establishing Kosovo “as an independent and sovereign State” para 1 The declaration of independence therefore 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 On the contrary the Court considers that the authors of that declaration did not act or intend to act in the capacity of an institution created by and empowered to act within that legal order but rather set out to adopt a measure the significance and effects of which would lie outside that order 106 This conclusion is reinforced by the fact that the authors of the declaration undertook to fulfil the international obligations of Kosovo notably those created for Kosovo by UNMIK para 9 and expressly and solemnly declared Kosovo to be bound vis-à-vis third States by the commitments made in the declaration para 12 By contrast under the régime of the Constitutional Framework all matters relating to the management of the external relations of Kosovo were the exclusive prerogative of the Special Representative of the Secretary-General “ m concluding agreements with states and international organizations in all matters within the scope of UNSCR 1244 1999 n overseeing the fulfilment of commitments in international agreements entered into on behalf of UNMIK o external relations including with States and international organizations ” Chap 8 1 of the Constitutional Framework “Powers and Responsibilities Reserved to the SRSG” with the Special Representative of the Secretary-General only consulting and co-operating with the Provisional Institutions of Self-Government in these matters 107 Certain features of the text of the declaration and the circumstances of its adoption also point to the same conclusion Nowhere in the original Albanian text of the declaration which is the sole authentic text is any reference made to the declaration being the work of the Assembly of Kosovo The words “Assembly of Kosovo” appear at the head of the declaration only in the English and French translations contained in the dossier submitted on behalf of the Secretary-General The language used in the declaration differs from that employed in acts of the Assembly of Kosovo in that the first paragraph commences with the phrase “We the democratically-elected leaders of our people ” whereas acts of the Assembly of Kosovo employ the third person singular 47 447 UNILATERAL DECLARATION OF INDEPENDENCE ADVISORY OPINION Moreover the procedure employed in relation to the declaration differed from that employed by the Assembly of Kosovo for the adoption of legislation In particular the declaration was signed by all those present when it was adopted including the President of Kosovo who as noted in paragraph 76 above was not a member of the Assembly of Kosovo In fact the self-reference of the persons adopting the declaration of independence as “the democratically-elected leaders of our people” immediately precedes the actual declaration of independence within the text “hereby declare Kosovo to be an independent and sovereign State” para 1 It is also noticeable that the declaration was not forwarded to the Special Representative of the Secretary-General for publication in the Official Gazette 108 The reaction of the Special Representative of the SecretaryGeneral to the declaration of independence is also of some significance The Constitutional Framework gave the Special Representative power to oversee and in certain circumstances annul the acts of the Provisional Institutions of Self-Government On previous occasions in particular in the period between 2002 and 2005 when the Assembly of Kosovo took initiatives to promote the independence of Kosovo the Special Representative had qualified a number of acts as being incompatible with the Constitutional Framework on the grounds that they were deemed to be “beyond the scope of the Assembly’s competencies” United Nations dossier No 189 7 February 2003 and therefore outside the powers of the Assembly of Kosovo The silence of the Special Representative of the Secretary-General in the face of the declaration of independence of 17 February 2008 suggests that he did not consider that the declaration was an act of the Provisional Institutions of Self-Government designed to take effect within the legal order for the supervision of which he was responsible As the practice shows he would have been under a duty to take action with regard to acts of the Assembly of Kosovo which he considered to be ultra vires The Court accepts that the Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo submitted to the Security Council on 28 March 2008 stated that “the Assembly of Kosovo held a session during which it adopted a ‘declaration of independence’ declaring Kosovo an independent and sovereign State” United Nations doc S 2008 211 para 3 This was the normal periodic report on UNMIK activities the purpose of which was to inform the Security Council about developments in Kosovo it was not intended as a legal analysis of the declaration or the capacity in which those who adopted it had acted 109 The Court thus arrives at the conclusion that taking all factors together the authors of the declaration of independence of 17 February 2008 did not act as one of the Provisional Institutions of Self-Government within the Constitutional Framework but rather as persons who 48 448 UNILATERAL DECLARATION OF INDEPENDENCE ADVISORY OPINION acted together in their capacity as representatives of the people of Kosovo outside the framework of the interim administration b The question whether the authors of the declaration of independence acted in violation of Security Council resolution 1244 1999 or the measures adopted thereunder 110 Having established the identity of the authors of the declaration of independence the Court turns to the question whether their act in promulgating the declaration was contrary to any prohibition contained in Security Council resolution 1244 1999 or the Constitutional Framework adopted thereunder 111 The Court recalls that this question has been a matter of controversy in the present proceedings Some participants to the proceedings have contended that the declaration of independence of 17 February 2008 was a unilateral attempt to bring to an end the international presence established by Security Council resolution 1244 1999 a result which it is said could only be effectuated by a decision of the Security Council itself It has also been argued that a permanent settlement for Kosovo could only be achieved either by agreement of all parties involved notably including the consent of the Republic of Serbia or by a specific Security Council resolution endorsing a specific final status for Kosovo as provided for in the Guiding Principles of the Contact Group According to this view the unilateral action on the part of the authors of the declaration of independence cannot be reconciled with Security Council resolution 1244 1999 and thus constitutes a violation of that resolution 112 Other participants have submitted to the Court that Security Council resolution 1244 1999 did not prevent or exclude the possibility of Kosovo’s independence They argued that the resolution only regulates the interim administration of Kosovo but not its final or permanent status In particular the argument was put forward that Security Council resolution 1244 1999 does not create obligations under international law prohibiting the issuance of a declaration of independence or making it invalid and does not make the authors of the declaration of independence its addressees According to this position if the Security Council had wanted to preclude a declaration of independence it would have done so in clear and unequivocal terms in the text of the resolution as it did in resolution 787 1992 concerning the Republika Srpska In addition it was argued that the references in the annexes of Security Council resolution 1244 1999 to the Rambouillet accords and thus indirectly to the “will of the people” see Chapter 8 3 of the Rambouillet accords of Kosovo support the view that Security Council resolution 1244 1999 not only did not oppose the declaration of independence but indeed contemplated it Other participants contended that at least once the negoti49 449 UNILATERAL DECLARATION OF INDEPENDENCE ADVISORY OPINION ating process had been exhausted Security Council resolution 1244 1999 was no longer an obstacle to a declaration of independence 113 The question whether resolution 1244 1999 prohibits the authors of the declaration of 17 February 2008 from declaring independence from the Republic of Serbia can only be answered through a careful reading of this resolution see paras 94 et seq 114 First the Court observes that Security Council resolution 1244 1999 was essentially designed to create an interim régime for Kosovo with a view to channelling the long-term political process to establish its final status The resolution did not contain any provision dealing with the final status of Kosovo or with the conditions for its achievement In this regard the Court notes that contemporaneous practice of the Security Council shows that in situations where the Security Council has decided to establish restrictive conditions for the permanent status of a territory those conditions are specified in the relevant resolution For example although the factual circumstances differed from the situation in Kosovo only 19 days after the adoption of resolution 1244 1999 the Security Council in its resolution 1251 of 29 June 1999 reaffirmed its position that a “Cyprus settlement must be based on a State of Cyprus with a single sovereignty and international personality and a single citizenship with its independence and territorial integrity safeguarded” para 11 The Security Council thus set out the specific conditions relating to the permanent status of Cyprus By contrast under the terms of resolution 1244 1999 the Security Council did not reserve for itself the final determination of the situation in Kosovo and remained silent on the conditions for the final status of Kosovo 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 115 Secondly turning to the question of the addressees of Security Council resolution 1244 1999 as described above see paragraph 58 it sets out a general framework for the “deployment in Kosovo under United Nations auspices of international civil and security presences” para 5 It is mostly concerned with creating obligations and authorizations for United Nations Member States as well as for organs of the United Nations such as the Secretary-General and his Special Representative see notably paras 3 5 6 7 9 10 and 11 of Security Council resolution 1244 1999 The only point at which resolution 1244 1999 50 450 UNILATERAL DECLARATION OF INDEPENDENCE ADVISORY OPINION expressly mentions other actors relates to the Security Council’s demand on the one hand “that the KLA and other armed Kosovo Albanian groups end immediately all offensive actions and comply with the requirements for demilitarization” para 15 and on the other hand for the “full co-operation by all concerned including the international security presence with the International Tribunal for the former Yugoslavia” para 14 There is no indication in the text of Security Council resolution 1244 1999 that the Security Council intended to impose beyond that a specific obligation to act or a prohibition from acting addressed to such other actors 116 The Court recalls in this regard that it has not been uncommon for the Security Council to make demands on actors other than United Nations Member States and inter-governmental organizations More specifically a number of Security Council resolutions adopted on the subject of Kosovo prior to Security Council resolution 1244 1999 contained demands addressed eo nomine to the Kosovo Albanian leadership For example resolution 1160 1998 “ c all ed upon the authorities in Belgrade and the leadership of the Kosovar Albanian community urgently to enter without preconditions into a meaningful dialogue on political status issues” resolution 1160 1998 para 4 emphasis added Resolution 1199 1998 included four separate demands on the Kosovo Albanian leadership i e improving the humanitarian situation entering into a dialogue with the Federal Republic of Yugoslavia pursuing their goals by peaceful means only and co-operating fully with the Prosecutor of the International Criminal Tribunal for the former Yugoslavia resolution 1199 1998 paras 2 3 6 and 13 Resolution 1203 1998 “ d emand ed that the Kosovo Albanian leadership and all other elements of the Kosovo Albanian community comply fully and swiftly with resolutions 1160 1998 and 1199 1998 and co-operate fully with the OSCE Verification Mission in Kosovo” resolution 1203 1998 para 4 The same resolution also called upon the “Kosovo Albanian leadership to enter immediately into a meaningful dialogue without preconditions and with international involvement and to a clear timetable leading to an end of the crisis and to a negotiated political solution to the issue of Kosovo” demanded that “the Kosovo Albanian leadership and all others concerned respect the freedom of movement of the OSCE Verification Mission and other international personnel” “ i nsist ed that the Kosovo Albanian leadership condemn all terrorist actions” and demanded that the Kosovo Albanian leadership “co-operate with international efforts to improve the humanitarian situation and to avert the impending humanitarian catastrophe” resolution 1203 1998 paras 5 6 10 and 11 117 Such reference to the Kosovo Albanian leadership or other actors notwithstanding the somewhat general reference to “all concerned” 51 451 UNILATERAL DECLARATION OF INDEPENDENCE ADVISORY OPINION para 14 is missing from the text of Security Council resolution 1244 1999 When interpreting Security Council resolutions the Court must establish on a case-by-case basis considering all relevant circumstances for whom the Security Council intended to create binding legal obligations The language used by the resolution may serve as an important indicator in this regard The approach taken by the Court with regard to the binding effect of Security Council resolutions in general is mutatis mutandis also relevant here In this context the Court recalls its previous statement that “The language of a resolution of the Security Council should be carefully analysed before a conclusion can be made as to its binding effect In view of the nature of the powers under Article 25 the question whether they have been in fact exercised is to be determined in each case having regard to the terms of the resolution to be interpreted the discussions leading to it the Charter provisions invoked and in general all circumstances that might assist in determining the legal consequences of the resolution of the Security Council ” Legal Consequences for States of the Continued Presence of South Africa in Namibia South West Africa notwithstanding Security Council Resolution 276 1970 Advisory Opinion I C J Reports 1971 p 53 para 114 118 Bearing this in mind the Court cannot accept the argument that Security Council resolution 1244 1999 contains a prohibition binding on the authors of the declaration of independence against declaring independence nor can such a prohibition be derived from the language of the resolution understood in its context and considering its object and purpose The language of Security Council resolution 1244 1999 is at best ambiguous in this regard The object and purpose of the resolution as has been explained in detail see paragraphs 96 to 100 is the establishment of an interim administration for Kosovo without making any definitive determination on final status issues The text of the resolution explains that the “main responsibilities of the international civil presence will include o rganizing and overseeing the development of provisional institutions for democratic and autonomous self-government pending a political settlement” para 11 c of the resolution emphasis added The phrase “political settlement” often cited in the present proceedings does not modify this conclusion First that reference is made within the context of enumerating the responsibilities of the international civil presence i e the Special Representative of the Secretary-General in Kosovo and UNMIK and not of other actors Secondly as the diverging views presented to the Court on this matter illustrate the term “political settlement” is subject to various interpretations The Court therefore con52 452 UNILATERAL DECLARATION OF INDEPENDENCE ADVISORY OPINION cludes that this part of Security Council resolution 1244 1999 cannot be construed to include a prohibition addressed in particular to the authors of the declaration of 17 February 2008 against declaring independence 119 The Court accordingly finds that Security Council resolution 1244 1999 did not bar the authors of the declaration of 17 February 2008 from issuing a declaration of independence from the Republic of Serbia Hence the declaration of independence did not violate Security Council resolution 1244 1999 120 The Court therefore turns to the question whether the declaration of independence of 17 February 2008 has violated the Constitutional Framework established under the auspices of UNMIK Chapter 5 of the Constitutional Framework determines the powers of the Provisional Institutions of Self-Government of Kosovo It was argued by a number of States which participated in the proceedings before the Court that the promulgation of a declaration of independence is an act outside the powers of the Provisional Institutions of Self-Government as set out in the Constitutional Framework 121 The Court has already held however see paragraphs 102 to 109 above that the declaration of independence of 17 February 2008 was not issued by the Provisional Institutions of Self-Government nor was it an act intended to take effect or actually taking effect within the legal order in which those Provisional Institutions operated 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 V GENERAL CONCLUSION 122 The Court has concluded above that the adoption of the declaration of independence of 17 February 2008 did not violate general international law Security Council resolution 1244 1999 or the Constitutional Framework Consequently the adoption of that declaration did not violate any applicable rule of international law 123 For these reasons THE COURT 1 Unanimously 53 453 UNILATERAL DECLARATION OF INDEPENDENCE ADVISORY OPINION Finds that it has jurisdiction to give the advisory opinion requested 2 By nine votes to five Decides to comply with the request for an advisory opinion IN FAVOUR President Owada Judges Al-Khasawneh Buergenthal Simma Abraham Sepúlveda-Amor Cançado Trindade Yusuf Greenwood AGAINST Vice-President Tomka Judges Koroma Keith Bennouna Skotnikov 3 By ten votes to four Is of the opinion that the declaration of independence of Kosovo adopted on 17 February 2008 did not violate international law IN FAVOUR President Owada Judges Al-Khasawneh Buergenthal Simma Abraham Keith Sepúlveda-Amor Cançado Trindade Yusuf Greenwood AGAINST Vice-President Tomka Judges Koroma Bennouna Skotnikov Done in English and in French the English text being authoritative at the Peace Palace The Hague this twenty-second day of July two thousand and ten in two copies one of which will be placed in the archives of the Court and the other transmitted to the Secretary-General of the United Nations Signed President Signed Hisashi OWADA President Signed Philippe COUVREUR Registrar Vice-President TOMKA appends a declaration to the Advisory Opinion of the Court Judge KOROMA appends a dissenting opinion to the Advisory Opinion of the Court Judge SIMMA appends a declaration to the Advisory Opinion of the Court Judges KEITH and SEPÚLVEDA-AMOR append separate opinions to the Advisory Opinion of the Court Judges BENNOUNA and SKOTNIKOV append dissenting opinions to the Advisory Opinion of the Court Judges CANÇADO TRINDADE and YUSUF append separate opinions to the Advisory Opinion of the Court Initialled H O Initialled Ph C 54