On 17 February 2008 representatives of the Albanian population of Kosovo, after roughly ten years of UN post-conflict administration, unilaterally declared Kosovo an independent republic. The independence of Kosovo has subsequently been recognized by more than one third of UN Members States, among them 22 EU Member States. Serbia, pointing to its inviolable borders, and its allies, first and foremost the Russian Federation, continues to contest any legal effect of the unilateral declaration of independence and claims Serbia's sovereignty over Kosovo. In an attempt to bring clarity to the question the UN General Assembly, upon a resolution sponsored by Serbia, requested an advisory opinion of the International Court of Justice in October 2008. The question referred to the primary judicial organ of the UN was: "is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?"

Awaited with great anticipation the Court delivered its opinion on 22 July 2010. The Court pronounced 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.

Considerable speculation has taken place in the international community prior to the publication of the advisory opinion as to whether the Court will adopt a narrow reading of the question posed to it or go beyond its literal meaning and touch upon the general legality of secession or possibly even the potential statehood of Kosovo.

At the outset of its assessment the Court clarified that

"[t]he 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. 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."

Following this line of thinking, the Court confined itself to analyzing whether general international law or a rule under lex specialis created by Security Council resolution 1244(1999) or the Constitutional Framework created thereunder, introduce a specific prohibition on issuing a declaration of independence.
The Court quickly ruled out a general prohibition under international law and concentrated on resolution 1244 (1999). The Court has defined the purpose of resolution 1244 (1999) as 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".

To determine whether resolution 1244 (1999) conferred obligations on the authors of the unilateral declaration of independence, the identity of the authors had to be clarified. In fact, the ambiguous identity of the authors turned out to be the crux of the case. The Court set out to assess whether it was the Assembly of Kosovo, one of the official UN-installed Provisional Institutions of Self-Government, or some other entity that promulgated the unilateral declaration of independence. Only the former is bound by resolution 1244 (1999). The Court found that the authors did not seek to act within the framework of the interim self-administration of Kosovo, i.e. did not represent the Assembly of Kosovo, but were acting in their capacity as representatives of the people of Kosovo outside the framework of the interim administration. It then arrived at the conclusion 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. The Constitutional Framework was enacted under resolution 1244 (1999) and consequently it did neither restrict the authors of the declaration in any way.

Now, that the unilateral declaration of independence is legal, i.e. not illegal, does not mean that it has any legal effect. This is exactly what the Court refused to pronounce upon, not without saying that "[i]ndeed, it is entirely possible for a particular act - such as a unilateral declaration of independence - not to be a violation of international law without necessarily constituting the exercise of a right conferred by it." When independence was declared in 2008 the authors of the declaration could not be considered an entity governed by any provision prohibiting the issuing of declaration of independence under international law. That much has been clarified. Nevertheless, this entity possessed sufficient power to create a situation of de facto statehood.

Whether Kosovo possesses de jure statehood is a question that remains contested. And this indeed relates to an objection made all along. It had been argued that the advisory opinion would not have any useful legal effect. Clearly, the question of Kosovo's statehood remains unsolved but the advisory opinion of the ICJ will nevertheless be used by both Kosovo and Serbia to argue for and against statehood.

The Kosovo precedent was followed by secessions in Georgia while claims for self-determination and independence are upheld within many territories in Europe and beyond. The political context of the Kosovo question should thus not be underestimated. Thus, considering the immense political impact which the Kosovo question has thus far had, the Court might have acted wisely in adopting a narrow reading of the question. The complexity of the issue and of the response by the Court is accentuated by the number of declarations and separate and dissenting opinions made by more than half of the judges participating in the Opinion.

An unofficial extensive summary of the Advisory Opinion, as well as the entire set of documents, are available on the website of the International Court of Justice: http://www.icj-cij.org/docket/files/141/16010.pdf

Sarah Stephan, LL.M., researcher and project manager

at the Åland Islands Peace Institute