Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo

Flag of KosovoOn 8 October 2008 the Member States of the United Nations General Assembly voted in favour of referring the legality of Kosovo’s declaration of independence on 17 February 2008 to the International Court of Justice (ICJ) in The Hague. In its vote, the General Assembly of the United Nations adopted a resolution in which, referring to Article 65 of the Statute of the Court, it requested the International Court of Justice 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?”

The resolution recalls the Provisional Institutions of Self-Government of Kosovo’s declaration of independence from Serbia that took place on 17 February 2008 and underlines the fact 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,

On receiving a request for an advisory opinion, the Court itself draws up a list of those States and organizations that may be able to furnish relevant information.

By an Order of 17 October 2008, the Court decided that “the United Nations and its Member States were considered likely to be able to furnish information on the question submitted to the Court for an advisory opinion”. It fixed 17 April 2009 as the time-limit within which written statements on the question could be presented to the Court and 17 July 2009 as the time-limit within which States and organizations that had presented written statements could submit written comments on the other written statements. In total, thirty-seven Member States of the United Nations filed written statements within the time-limit fixed by the Court.

The Court held oral hearings from 1 December to 11 December 2009. The ICJ delivered its Advisory Opinion on 22 July 2010.

Advisory procedures

The advisory procedure is open to five United Nations organs and 16 agencies of the United Nations system. It enables them to request opinions from the Court on legal questions.
Unlike judgments handed down in contentious proceedings between States, the Court’s advisory opinions have no binding effect as such. However, the authority of the Court as the principal judicial organ of the United Nations attaches to them.

Since 1946 the Court has given 25 Advisory Opinions, concerning inter alia the conditions of admission of a State to membership in the United Nations, reparation for injuries suffered in the service of the United Nations, the international status of South West Africa (Namibia), certain expenses of the United Nations, certain judgments rendered by the United Nations administrative tribunal, Western Sahara, the applicability of the obligation to arbitrate under Section 21 of the United Nations Headquarters Agreement, questions relating to the privileges and immunities of human rights rapporteurs, the legality of the threat or use of nuclear weapons and the legal consequences of the construction of a wall in the occupied Palestinian territory.

In its Advisory Opinion the ICJ has ruled that Kosovo's unilateral declaration of independence from Serbia in 2008 does not violate international law or the 1999 United Nations resolution that placed Kosovo under interim UN administration. The Court considered that general international law does not contain a prohibition on declarations of independence.
 

Research/ miscellaneous (Research Document)
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