ACCORDANCE WITH INTERNATIONAL

LAW OF THE UNILATERAL

DECLARATION OF INDEPENDENCE IN
RESPECT OF KOSOVO
ADVISORY OPINION OF 22 JULY 2010 of the International Court of
Justice
(State, the principle of self-determination of peoples, the value of the recognition of States as
subjects of the system – Modules 1 & 2) -> El temario que nuestro study case corresponde.

1. Introduction

Historical context

The Declaration of Independence of Kosovo was an act that took place on February 17,
2008 and was carried out unilaterally by the Kosovo regional parliament, which declared the
split of this Albanian-majority territory from the rest of Serbia, giving rise to the creation of the
Republic of Kosovo.

At the time of the Declaration of Independence on February 17, 2008, Kosovo was a Serbian
province, according to United Nations Security Council resolution 1244 → On July 22, 2010,
the ICJ communicated its non-binding conclusion that this declaration did not violate
international law or United Nations Security Council Resolution 1244.

Accordance with International Law of the Unilateral Declaration of Independence in

Respect of Kosovo, Advisory Opinion of 22 July 2010, I.C.J.

This Advisory Opinion is a significant legal document issued by the International Court of
Justice:

- It addresses the legality of Kosovo's Unilateral Declaration of Independence

from Serbia proclaimed on February 17, 2008, within the framework of international
law.
- It represents the ongoing debate over Kosovo's status and the principles of
self-determination, territorial integrity, and state sovereignty in international
relations.
Chronology of the Procedure

I. Jurisdiction and Discretion

II. Scope and Meaning of the Question

III. Factual Background

IV. The Question whether the Declaration of Independence is in accordance with

International Law

V. General Conclusion

2. What is the significance of the ICJ’s response to this request for an

advisory opinion?

Small reminder as introduction

➔ The ICJ can issue two different types of resolutions: a judgment or an advisory
opinion. The first one is a binding decision made by the Court on contentious cases
submitted to it by States. Meanwhile, an advisory opinion is non-binding legal
opinions given by the Court on legal questions referred to it by UN organs and
specialized agencies; they carry significant weight in international law. This study
case of Kosovo is based on an advisory opinion of the ICJ. -> the request was made
by the General Assembly, with the sole sponsor of the Republic of Serbia.

Controversy and tensions

As my colleague has explained, there were some conflicting opinions regarding Kosovo and
its statehood, more specifically, Serbia, the country from which Kosovo wanted to obtain
independence. Thus, Serbia, in disagreement of this act, chose the path of “unlawfulness”
of Kosovo’s declaration and wanted it to be proven by the ICJ.

Moreover, because it carries such significance weight in the international panorama, many
were seeking some clarity as to the situation of Kosovo; hoping that this advisory opinion
would shed some light on the situation and help them position themselves.

I believe this quote from The European Mediterranean Institute (2011) sums up pretty well
the general feeling of the international community regarding the ICJ’s resolution: “The ICJ’s
ruling failed to provide the clarity sought by many countries uneasy about recognising
Kosovo’s independence, particularly with respect to questions concerning the right to
self-determination or succession”.

https://www.iemed.org/publication/the-international-position-of-kosovo-after-the-advisory-opi
nion-of-the-international-court-of-justice/?lang=es

Results derived from this advisory opinion

So, after talking about the expectations of the document, we are going to discuss the
significance not only for the key players, as Kosovo, but for the whole world.

“Proponents of Kosovo’s independence have long insisted that it constitutes a sui generis
case, without precedent for other disputes of a similar nature … Nonetheless, these
repeated insistences have not stopped other secessionist movements from invoking the
Kosovo example as a means of motivating or legitimizing their own particulate claims.
Ethno-national groups have sought to assert the international precedent that they believe
Kosovo created. Indeed, many interpreted the ICJ’s opinion as a victory for their respective
cases. Secessionist movements within and beyond the EU’s borders continue to insist that
Kosovo is a model for their own respective causes.” – European Mediterranean Institute
(2011).

1. First, this advisory opinion was seen to have set a possible precedent (even though
Kosovo’s independence is regarded as a sui generis case) that could have
far-reaching implications for separatist movements around the world. Some
examples are:
➢ The Karabakhi region that celebrated the opinion as a precedent and signaled
a possibility of asking the ICJ for a similar opinion on the Nagorno-Karabakh
conflict, currently a part of Azerbaijan.
➢ The Republika Srpska as well, saying that at some point in the future it could
legally declare independence, and politicians from the Federation of Bosnia and
Herzegovina saying that the opinion should not harm the country's status.
➢ Another example of secessionist movements who seem to have taken this
legal case as their torch, according to the European Mediterranean Institute, is
the Moldovan province of Trans-Dniester that has called for international
recognition of its independence.
2. Secondly, regarding Kosovo, it was also read as being likely to lead to more
countries recognising its independence. -> Some notable state reactions are:
➢ Kosovo praised the verdict and said it can now move on with more
recognitions and possible memberships of the EU and the UN.
 ➢ Serbian reactions were negative to the verdict while policymakers met in an
emergency session to discuss Serbia's next steps to preserve its "territorial
integrity" while vowing never to recognise Kosovo as an independent state,
despite Kosovar calls to the contrary.
➢ Most EU countries recognised Kosovo and called for dialogue between
Kosovo and Serbia, and for other states to now recognise Kosovo; and some
EU countries have not recognised Kosovo arguing that the decision is a narrow
view only on the text of the declaration and they would not change their
positions. The five EU countries that don’t recognise Kosovo are listed here in
case you are curious (Spain, Slovakia, Cyprus, Romania, and Greece). As of
today, it is currently recognized by the EU as a potential candidate for
accession.
➢ Other states said nothing would change as a result.

Now I wanted to draw your attention towards another relevant point made by Professor
Andreas Zimmermann. As a quick summary of what happened in Kosovo prior to the
declaration of independence I must highlight the event of the presence of UN peacekeeping
missions in Kosovo in the nineties. Afterwards, a provisional governing body was established
by the UN in the region, and then the declaration of independence took place. Regarding this
chain of events, Professor Zimmermann cautioned:

“The Kosovo case could also have profound implications for UN peacekeeping missions
around the world. Andreas Zimmermann, a professor of public international law at the
University of Potsdam, speaking about countries whose agreement is required before the
UN can deploy, has cautioned that “it would be a dangerous precedent if these countries,
after the Kosovo experience, concluded that the arrival of peacekeeping forces represented
the first step in the secession of a crisis region which seeks independence.» Zimmermann’s
concerns are such that he described the proceedings currently before the ICJ as being of the
“utmost relevance for the functioning of the overall system of the United Nations and its
ability to maintain and restore international p1eace and security.” – European Mediterranean
Institute (2011).

3. Why has it given rise to different interpretations?

The right of self-determination has been the most debated issue in the practice and doctrine
of international law. It has been subject to various limitations. The problem remains a political
obstacle to peace and stability in the Balkans reaching even genocide. On the other hand,
legally, the parties have shaped their theses in the context of the right to self-determination.
Finally, Kosovo's unilateral declaration of independence in 2007 increased these debates
and was the subject of consultation of the International Court of Justice.

The Kosovo case gave rise to diverse interpretations for very particular reasons. It was not
clear for the Assembly whether the declaration of independence of Kosovo was in
accordance with international law, so it asked the Court as a legal question. The Court
declared that questions framed in terms of law and raising problems of international law are
by their nature susceptible of a reply based on law and appear to be questions of a legal
character for the purposes of Article 96 of the Charter and Article 65 of the Statute.

To the contrary, a good argument may be made that states should not recognize a new state
if such recognition would perpetuate a breach of international law. Russia and Serbia argue
that, since Serbia did not consent to an alteration of its territory and borders, there can be no
legal recognition. But, absent any qualification, that argument cannot be legally correct.
Changing the boundaries of a sovereign state (Serbia) in and of itself would not make
Kosovar independence illegal because the international community has come to accept the
legality of secession under certain circumstances.

Nevertheless, some of the participants in the proceedings suggested that the question posed
by the General Assembly was not a legal question. According to them, 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, the Court was not asked to give an opinion on whether the declaration
of independence was in accordance with any rule of domestic law but only whether it was in
accordance with international law. The Court could respond to that question by reference to
international law without the need to enquire into any system of domestic law.

Furthermore, the self-determination analysis is very fact specific, such that absolute
arguments of illegality become difficult. There is no resolution of illegality here, but rather a
growing momentum to accept Kosovo's declaration. This does not make Kosovo's secession
legal. But it does show that, in cases of secession, law and politics are especially tightly
intertwined.
 4. What are the key lines of the main dissenting opinions?

Consequently, if we look into the key lines of the main dissenting opinions of the case, there
are a few directions or aspects to examine. To begin with, the first and most explicit opinion
regards the motivation behind the request to seek the Court's outlook. As revealed by many
participants' concerns, this request could have been raised by the different interests of a
specific state and not solely to assist the General Assembly. This is incredibly harmful, if it
were to be true, as it questions the role of the ICJ and not only that, but the integrity and
credibility of the international legal system as well. It reflects a truly deceitful motivation that
can affect many other legal processes and the importance of underlying the real motive
behind each decision, and based on this premise, the response should be declined. The
Court must maintain its impartiality and independence and should not favour one State over
another. Nonetheless, the Court should not serve the agenda of any State or group of
States, it should seek the broader purpose of its cases. To illustrate this, the case stated the
following: “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.“

Another opinion raised in the case states that the question posed by the General Assembly
is not really a legal question. These participants argue that the Court should assess whether
the declaration aligns with international law alone, not delving into the domestic law systems,
as international law considers declarations of independence as political actions and does not
regulate them.

Some participants highlighted that, in order to assess if the declaration follows the
international law, it is essential to understand who was responsible for it. As claimed, the
declaration did not violate the Constitutional Framework as the individuals who made it were
not officially part of the Provisional Institutions of Self-Government.

Furthermore and according to the perspective of these participants, Kosovo's declaration of

independence in 2008 was completely one-sided with the purpose of ending international
presence mandated by the 1244 resolution. Therefore, only the Security Council itself or all
involved parties, which notably includes Serbia, could decide on the status of Kosovo. Thus,
they viewed the declaration as a violation of the resolution, which should have included all
parties.
Evidently, the Security Council resolution 1244 (1999) left a final status completely open for
determination. This results in not excluding independence as a possibility, which as some
participants state, should have been made clear in the resolution. Just as it was done in
resolution 787 (1992) concerning the Republika Srpska, this clarification should have been
done explicitly. The resolution simply doesn't contain any rules that forbid such declaration or
even any obligations that make it invalid. These participants also support the idea that the
resolution mainly focused on the administration and overall management of Kosovo, but not
its status.

5. Which structural principles of contemporary PIL are involved?

ART. 38 of STATUTE OF THE ICJ (https://www.icj-cij.org/statute#CHAPTER_III)

Art. 38, which is universally applicable, is the point of reference when acknowledging the
value of IL. It lists primary sources and auxiliary means of PIL, which is considered indeed
dynamic and under constant evolution and progress with the adoption of new treaties or
conventions by the UN and its specialized agencies. We should note nevertheless that
there’s no hierarchical ranking between sources, they all have the same weight and value
whatsoever.

For this part, we’ll carefully focus on section c), General Principles. They are postulates,
assumptions, basis universally found within the international community, some of which are
common to both domestic and international law, others of which just specific to either
domestic or international law. In effect, they are quite abstract in nature, because they are
derived from common legal practices of nations, and because their content is not written
down on a precise list.

What are structural principles?

Structural principles, as the name itself suggests, are those ideas specifically stated under
the pillars of our international order, which guides international relations. Indeed, although
IUS CONGENS is not mentioned under Art. 38 of the Statute of the ICJ, is derived from the
structural principles of law. (IUS CONGENS defined under Art. 53 of 1969 VCLT: “Norm
accepted and recognized by the international community of States as a whole as a norm
from which no derogation is permitted and which can be modified only by a subsequent
norm of general international law having the same character”).
In other words, to understand structural principles we ought to carefully consider Chapter I
(Purposes and Principles) of the SAN FRANCISCO CHARTER
(https://legal.un.org/repertory/art1.shtml), which is tightly linked to the 1970’s UNGA
“Declaration on Principles of International Law concerning Friendly Relations and
Co-operation among States in accordance with the Charter of the United Nations”, also
known as the RESOLUTION 2625.

(https://documents.un.org/doc/resolution/gen/nr0/348/90/pdf/nr034890.pdf?token=l11hePJKa
mt0vRpsFT&fe=true)

We have come to recognize that the structural principles of contemporary IL stated under the
different articles and paragraphs of the aforementioned conventions are: the defense of the
territorial integrity or political independence of any State, stressing the importance of
advocating for the prohibition of the threat or use of force; the protection of international
peace, justice, and security, which explains the defense of peaceful settlement of disputes;
equal rights and self-determination; sovereign equality among states; good faith; etc. It’s
essential to mention that they are all tightly intertwined.

So, to truly understand their importance, it is convenient to start by briefly explaining the
RIGHT TO SELF-DETERMINATION, which will help to highlight other key principles present
throughout the advisory opinion.

The concept of self-determination emerged in the 19th century, but it really came to the
forefront of modern international relations following the end of the First World War. The idea
was in fact championed by the US President Woodrow Wilson in his famous 14 points.
Speaking to Congress in February 1918, he stated: "Peoples are not to be handed about
from one sovereignty to another by an international conference or an understanding between
rivals and antagonists. National aspirations must be respected. Peoples may now be
dominated and governed only by their own consent. "Self-determination" is not a mere
phrase. It is an imperative principle of actions which statesmen will henceforth ignore at their
own peril."
(https://www.cambridge.org/core/books/abs/internal-selfdetermination-in-international-law/his
tory-of-internal-selfdetermination/DB4D6F374946DFB04F49C9458A927309).

The next phase in the story comes with the end of the Second World War, in 1945. Even to
this day, the principle has been proven hard to put into practice due to major problems of
applicability and implementation. What’s more, contemporary PIL manifests contradictions.
The Charter of the newly founded United Nations enshrines the principles of self
determination in Art. 1.2 ("to develop friendly relations among nations based on respect for
the principles of equal rights and self-determination of peoples.”) but equally defends States’
territorial integrity in Art. 2.4 (“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.”). To square the
circle, UNGA’S Resolution 1514, commonly known as “Magna Carta for Decolonisation”
likewise notes that “all peoples have the right to self-determination” (Art.2), yet Art. 6 defends
the Charter and the principle of territorial integrity.

This is possible because the international community has taken a very restrictive view of the
rights of territories. In effect, two distinct forms of self-determination now emerged: external
self-determination, which leads to independence in cases of alien subjugation; and internal
self-determination, which only grants autonomy within States. R2P, however, opens the
debate whether the right of independence should be extended beyond cases of colonization
and military occupation (remedial secession).

In relation to SELF-DETERMINATION, the court understood that Serbia had engaged in

crimes against humanity. In relation to TERRITORIAL INTEGRITY, the court found that the
scope of this rule “is confined to the sphere of relations between States”. This didn't stop
Kosovo from declaring independence.

6. Can we relate it to other UDI (Unilateral Declaration of Independence)

cases?

Obviously, there has been throughout history a series of unilateral declaration of

independence who were supported by the principle of self-determination of nations, but
confronted the territorial integrity of other countries. Here we are going to see the relations of
these other UDI’S with the Kosovo one. The main successful ones was the United States,
who were separated from the United Kingdom in 1776 after a war, and most recently in
1965 when Rhodesia who was governed by the United Kingdom declared themselves as
sovereign without an agreement with the UK, and changed to be Zimbabwe. This happened
as 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.
In relation with other UDI’S the truth is that Kosovo has always suffered from a serious
humanitarian crisis, in fact the General Assembly adopted five resolutions on the situation of
human rights in Kosovo crisis after Yugoslav forces began a massive campaign of
repression and expulsion of Kosovar Albanians, being as an example Račak massacre.
Therefore, their right of determination was protected to the fact that the Yugoslavians had
not complied to ius congens throughout their history with Kosovo, which is highly important
especially regarding the importance in Contemporary Law it is given to the protection of the
rights of people and the illegal use of force.

However, it is true that in comparison with Northern Cyprus which was invaded before the
declaration, the United Nations never acknowledged their situation as they did with Kosovo,
taking into account the domination part could also be applied here. In fact, the United
Nations signed a resolution in which it does not accept the declaration of independence from
Northern Cyprus, considering that the attempt to create a "Turkish Republic of Northern
Cyprus" is invalid and will contribute to aggravating the situation in Cyprus.

In relation with the majority of UDI’s and especially Yugoslavia UDI, their will of
independence originated from the desire to create their own State, not feeling represented
by those who govern due to the different ethnic background in Yugoslavia.

This desire dates centuries ago in the case of all these countries presented here, like
Northern Cyprus and the Republic that wanted their nation to be considered a State.
However, all the UDI’s either start or finish with a war, Kosovo’s first attempt of
independence unleashed a war in order to accomplish its objective like Slovenia and
Croatia, but it was a consequence of the attack of Yugoslavia, as they knew Yugoslavia
would attack after threatening their territorial integrity. Even though, according to the Court of
Justice Kosovo did not violate this principle of international law because there was not use of
force as well as Slovenia and Croatia. It is somewhat obviously contrary and controversial
that Yugoslavians did not complied with Article 2, chapter 14, as there are not preserving
security and peace through agreements as it is posed on the Helsinki Act but doing it
through these means. This means that Yugoslavia never tried to reach to them through an
agreement after the declaration as Serbia has mostly cutten ties with Kosovo after their
declaration.

It is true that a key difference of these declarations is the role that the United Nations has
played. Kosovo had the opportunity before the declaration to reach an agreement towards
their territory, but the most important difference is that they gave them their own
self-governing institutions supervised by the organization. Therefore, they had the possibility
to know how well would their territory be managed by themselves as they had built a
self-structure that could work.
However, the United Nations knew beforehand the desire of self-determination for Northern
Cyprus and the Republik but they did not acknowledge the situation nor had the chance to
speak up and help them to achieve an agreement.

7. Conclusion

Importantly, Kosovo has undergone a process of institutional development since its

independence in 2008 and has received international assistance and supervision to
strengthen its legal and judicial system.

Despite these efforts, challenges persist in terms of corruption, lack of resources, and equal
access to justice, which require continued attention from the Kosovar authorities and the
international community.

The situation in Kosovo is a reminder of the complexities inherent in state-building and

consolid action in regions marked by ethnic and political conflicts. Despite efforts to establish
itself as an independent state, Kosovo continues to deal with ethnic divisions, territorial
tensions with Serbia, and internal challenges such as corruption and unemployment.

This case highlights the need for sophisticated political and diplomatic approaches that
recognize and address deep ethnic and political divisions, while promoting peaceful
coexistence and socioeconomic development to all citizens, regardless of their origin.