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141- Accordance with international law of the unilateral declaration of independence in respect of Kosovo

On October 8th, 2008, the General Assembly of the UN, adopting Resolution 63/3, decided to ask the International Court of Justice (ICJ) to give 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 ?”

In its advisory opinion rendered on July 22nd, 2010, the ICJ first ensured that it had jurisdiction to give such opinion. Responding in the affirmative, it then weighted the opportunity to comment on such matter and concluded that there were “no compelling reasons for it to decline to exercise its jurisdiction”. It defined that the scope of the question was to find out if there were a rule in international law prohibiting Kosovo from making a declaration of independence.

The Court conducted a two-step examination by considering:

  1. Rules of general international law: as a principle, there is no rule prohibiting or forbidding a declaration of independence, as demonstrated by States’ practices since the XIXth century. All the declaration of independence that had been condemned by the UN Security Council followed an unlawful use of force or a violation of a jus cogens norm.  Therefore, by making a declaration of independence, Kosovo had not violated any rule of general international law;
  2. Security Council Resolution 1244 of June 10th, 1999, the purpose of which was to establish “a temporary, exceptional legal régime which . . . superseded the Serbian legal order . . . on an interim basis”. The Court ruled that Kosovo’s declaration of independence did not violate Resolution 1244 for two main reasons:
  • Said Resolution did not address the issue of the final status of Kosovo, which is precisely what the declaration of independence sought to do;
  • Resolution 1244 only imposed only very limited obligations on non-State actors, none of which entailed any prohibition of a declaration of independence.

Therefore, the Court logically concluded that “the declaration of independence of Kosovo adopted on 17 February 2008 did not violate international law”.

Advisory Opinion of 22-07-2010.pdf

This summary is provided for informational purposes only, does not involve the responsibility of Dome and should in no way be used as a substitute for a careful reading of the judgment and order of the case.