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8/3/2019 Sentencia Kosovo
1/21
Europe
Kosovo and the blessings
of the International Court
of Justice
by August Gil-Matamala
On the 22nd of July 2010 the International Court of Justice (ICJ) in the Hague, consisting of twelve
judges and presided over by Judge Hisashi Owada ( Japan), adopted an advisory opinion, which is
to say, a
request was made in order to determine whether Kosovos unilateral declaration of independence,
on the 17th
of February 2008, was in accordance with international law.
we analyse the most relevant details ofawaited, not only by the parties directly the ICJs resolution in the Kosovo case,
involved in the debate (the Serbian Re-while highlighting its importance to
public and Kosovos institutions of self-international rights in that it represents
government) but also the entire inter-an advance (a limited one, but an adnational
community, as it could mean vance nevertheless) in the recognition
the taking of sides, at the highest level of the right of all peoples to decide,
in a legal sense, with respect to a crucial democratically and peacefully to form
and extremely controversial question in a new sovereign state.
terms of international law: how a peoples
right to self-determination can be Antecedents: from armed
exercised, including the right to seces-conflict to the declaration of
sion, in the European context in partic-independence
ular, in a non-colonial setting. It comes
as no surprise, therefore, that the ICJs ruling
on Kosovo has awoken such in-est in a long series of violent clashes
terest in countries (such as the Spanish arising out of the disintegration of the
state) that have pending demands for
self-government on behalf of minority commencement of military action by
national groups. In this article I suggest the UCK (Kosovo Liberation Army)
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in 1998 calling for the separation of
its territory from Serbia, followed by
the brutal response from Yugoslavian
forces, led to the internationalisation
of the conflict. NATOs military intervention
against Serbia in the war fromMarch to June 1999, while ignoring
the United Nations, ended with the
Security Council adopting Resolution
established a provisional political and
administrative framework for Kosovo,
without formally calling into question
Yugoslavian sovereignty, was to form
the established legal position until
Kosovos declaration of independence
in 2008. For this reason, it is a crucialprecedent which must be taken
into account in order to appreciate the
scope of the aforementioned declaration.
Security Council Resolution 1244
was proposed in order to deal with the
grave humanitarian situation that had
arisen and put an end to the armed
conflict. As a result it ordered Yugoslavia
to withdraw all its military, police
and paramilitary personnel from
-
nied on the other side, by the demilitarisation
of armed Albano-Kosovo
groups. It established the United Nations
provisional administration of the
territory, exercised by the United Nations
Interim Administration Missionin Kosovo (UNMIK), with the role of
promoting the establishment of substantial
autonomy and self-government
in Kosovo; to perform the basic
functions of the civil administration;
facilitate the political process leading
to the determination of its future status;
and, finally, transfer power from
the provisional institutions to those
established under a political agreement
negotiated between both parties.
-
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tus was to be backed by the Security
Council.
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Europe
Between February and September
2006 the Serbian and Kosovo delegations
held several rounds of negotiations,without reaching an agreement
on the majority of the points under
discussion. Faced with this stalemate
the Secretary General of the United
Nations named Martti Ahtisaari, the
former president of Finland, as the
Security Councils Special Envoy. His
brief was to outline a proposal acceptable
to both parties. A final round of
negotiations held in Vienna in March
2007 exposed the inability of bothsides to reach an agreed settlement to
the conflict. As a result, the Special
Envoy addressed the Security Council
via a letter sent on the 26th of March
2007, in which he expressed his conviction
that the negotiation process
had ended and that the time had come
to take a decision on Kosovos definitive
status. After taking into account
Kosovos recent history and the current
situation, Martti Ahtisaari finally
reached the conclusion that the only
viable alternative for Kosovo was independence,
and that it would have
to be supervised by the international
Special Envoy accompanied his conclusions
with a Proposed Resolution,
containing the following steps: the
creation of a Constitutional Commission
to formulate a constitution forKosovo, the approval of the constitution
by the Kosovo Assembly, with a
two-thirds majority in the following
120 days; the cessation of UNMIKs
mandate; and the holding of general
and local elections in the following
nine months.
United Nations gave total support to
Ahtisaaris proposal, but the Security
Council was incapable of agreeing ona decision. In July 2007 a project for a
resolution was presented to the Council,
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backed by Belgium, France, Ger
many, Italy, the United Kingdom and
the United States, which substantially
reiterated the Special Envoys proposal,
nevertheless it was withdrawn a fewweeks later when it was clear that it
was not going to be adopted, given opposition
from Russia and China. From
August to December 2007 negotiations
were restarted, under the auspices
of the so-called Troika (the European
Union, Russia and the United States).
Once more the intent ended in failure,
since neither of the parties involved
was prepared to give way on the question
of sovereignty.
Elections for the Kosovo Assembly
were held on the 17th of November
2007, with the inaugural meeting being
held in Pristina on the 4th of January
th of February,
the Assembly passed the declaration of
independence, with 109 votes in favour
out of a possible 120, with the absence
of the 10 members of the Serbian minority.
In the first paragraph of its verdict
the declaration proclaims: we the democratically-
elected leaders of our people
hereby declare Kosovo to be an independ
reflects the will of our people and it is in
full accordance with the proposal for theKosovo status settlement of United Nations
Special Envoy Martti Ahtisaari.
we declare
Kosovo to be a democratic, secular and
multi-ethnic republic, guided by the principles
of non-discrimination and equal
protection under the law. Later on, the
declaration solemnly agrees to assume
Kosovos international obligations, including
those carried out by UNMIK.It ends by calling on all nations to
recognise the new state. Surprisingly,
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while referring to a democratic majority
and cultural values, the declaration
makes no mention of the right to selfdetermination.
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In the following days, Serbia informed
the Secretary General of the
United Nations that it considered Kos
ovos declaration of independence to bean act of aggression that signified the
unilateral secession of a part of its territory
and therefore, it had no legal basis,
either internally or internationally. On
the 18th of February 2008 an urgent
meeting of the Security Council was
called, before which the Serbian president,
Boris Tadi, appeared to denounce
the declaration of independence as an
act which violated international law.
International Court of Justice
On the 8th of October 2008, the
General Assembly of the United Nations
adopted Resolution 63/3, which
referred the Kosovo conflict to the International
Court of Justice. According
to article 96 of the United Nations
Charter, the Assembly called on the
ICJ to issue an advisory opinion on
the question it outlined in the following
terms: Is the unilateral declaration of
independence by the Provisional Institutions
of Self-Government of Kosovo in
accordance with international law?
-
ten allegations on the question until
the 17th of July 2009, to which all
member states of the United Nations,the Secretary General and the Kosovo
institutions were invited to participate.
Proof of the interest which the debate
raised in the international arena is the
fact that no fewer than 37 states reported
allegations at this stage. Finally,
all member states, whether they had
reported allegations or not, were asked
to participate in oral proceedings in order
to formulate definitive conclusions.
Fourteen countries, largely representedby diplomats or experts on international
law, exercised the right, together
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Europe
with Serbian and Kosovo delegates in
proceedings held between the 1st and
11th of December 2009.
On the 22nd of July 2010, the International
Court of Justice delivered
its advisory opinion on the question it
had been asked to consider by the Gen
by considering an earlier question put
forward by some of the participants in
the proceedings, referring to the possibleincompetence of the ICJ to deal
with the case in question. Supporters of
this objection argued that the question
before the ICJ was not a legal one, but
rather strictly political; and that in any
case the opinion would not have any
practical legal force and that, on the
contrary, it could have negative political
consequences. Another argument
put forward was that the General Assemblys
request exceeded their remit
in terms of peacekeeping and international
peacekeeping granted by the
Security Council in Article 24 of the
United Nations Charter.
The International ICJs ruling on Kosovo has
sparked an interest in countries such as the
Spanish state that have demands for
self-government pending
resolution unanimously overturns the
earlier objections. It considers that
the fact the question has political aspects
does not change its relevance to
international law, which forms part of
the ICJs remit. Moreover, it is not up
to the ICJ to evaluate the utility or effects
of its opinions. Instead it is solely
the responsibility of the body that has
formulated the request, in this case
the General Assembly, to decide as to
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whether it should act on those opinions
in order to improve its operation.
As for the allegation of usurping thecompetencies of the Security Council,
the ICJ notes that Articles 10 and 11
of the United Nations Charter grant
the General Assembly more than sufficient
powers to debate all manner of
issues, including those related to peace
Assembly is, therefore, qualified to debate
the declaration of independence,
as well as making recommendations on
this and other aspects of the situationin Kosovo, without interfering in the
competencies of the Security Council.
To conclude, the ICJ can find nothing
to prevent it from ruling on the question
referred to it.
Before dealing with the issue at
hand, however, the ICJ considered it
necessary to precisely outline the contents
of the question presented by
the General Assembly. To this end, it
highlighted the substantial di#erence
between this consultation and the one
brought before the Supreme ICJ of
Canada in 1998, on the possible secession
of Quebec. In that case the question
was: Does international law give the
National Assembly, Legislature or Government
of Quebec the right to e#ect the
secession of Quebec from Canada unilaterally?
Is there a right to self-determinationunder international law that would give
the right to e#ect the secession?, while in
Kosovos case, the General Assembly
limited itself to asking whether the
declaration of independence was in
accordance with international law, and
therefore the ICJs answer had to limit
itself exclusively to determining whether
international legislation prohibits
all forms of unilateral declarations of
independence in general, or alternativelywhether the declaration had been
adopted in violation of any existing
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say that at no time had it been adopted
decide whether international legislation
conferred a legitimate right on Kosovo
to declare its unilateral independence,
nor a fortiori whether international law,in a general sense grants entities within
a state the right to unilaterally separate,
since it is perfectly possible for a particular
act not to violate any international
law without, however, necessarily
constituting the exercise of a specifically
recognised right.
Kosovos declaration of
independence does not violate
international law
ten votes in favour and four against that
Kosovos declaration of independence
did not violate any existing international
law. To arrive at this conclusion,
the ICJ developed a lengthy legal argument,
which we can summarise as follows.
It begins with a historical examination
of the numerous declarations
of independence made throughout the
eighteenth and nineteenth centuries
and the start of the twentieth, often
accompanied by the violent opposition
of pre-existing states: some of the
declarations e#ectively led to the creation
of a new state while others failed.
Nevertheless, none of the declarations
were considered to have violated international
law, either in theory or in
to self-determination in the second
half of the twentieth century, contained
in international declarations of rights,
and interpreted in practice in the sense
of granting the right to independence
to peoples subject to a colonial regime
or subject to foreign domination and
exploitation, allowed for the possibility
of the creation of a large number of
new states.
the declarations formulated by various
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states participating in the proceedings
who argued that Kosovos declaration
of independence was incompatible
with international law. Many of these
allegations were based on the principle
of the respect for a states territorialintegrity, outlined in Article 2.4 of the
Europe
law. Furthermore, the exceptional nature
of the earlier resolutions served to
confirm that it was not possible to infer
a general prohibition against unilateral
declarations of independence from the
practice of the Security Council.
they argued, implicitly prohibits unilateral
declarations of independence on
behalf of part of an existing state. In
reply to this objection the ICJ referred
them to the General Assemblys Resolution
2625 of 1986 (Nicaragua versus
the USA), which stated, the 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, and
also referred them to the Final Act of
the Helsinki Conference on Security
and Cooperation in Europe, of the 1st
of July 1975, which stipulated that the
signatory states, will respect the territorial
integrity of each of the participating
States
application of the principle of territorial
integrity should be confined to relations
between states and has no application
to a states internal conflicts
brought about by the secession of a part
of its territory.
-
tions which referred to various Security
Council resolutions specifically condemningdeclarations of independence,
such as Resolutions 216 and 217
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(1965) on South Rhodesia; Resolution
541 (1983) on Northern Cyprus; and
Resolution 787 (1992) on the Srp
these resolutions were not applicable
to the current case. In the above cases,the illegality of the declarations of independence
was a given, not because of
their unilateral nature, but due to the
fact that they were connected to the illegitimate
use of force or the violation
of other general norms of international
The Kosovo case represents a very important
contribution to the debate on the right to
self-determination
Finally, the ICJ went on to consider
the possible contradiction between Kosovos
declaration of independence and
Security Council Resolution 1244 and
the Constitutional Framework under
the auspices of UNMIK, mentioned
-
tion 1244, which implemented a provisional
international administration over
the territory as a substitute for Serbian
legal order, was an exceptional measure,
intended for humanitarian ends, in order
to stabilise Kosovo and re-establish
public order, but without any desire to
create a permanent institutional framework,
leaving the territorys definitive
status totally open, as was seen to be the
result of an agreement between the par-
Resolution 1244 does not contain anyimpediment or makes any exclusion of
the independence option: if the Security
Council had intended to do so it
would have expressed itself clearly and
in unequivocal terms, as it did in relation
to the Srpska Republic. At no time
did the Security Council reserve the
right to determine the definitive regime
in Kosovo, which was to be the result
of negotiations between the concerned
declaration of independence on behalf
of the Kosovo Assembly was the consequence
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of the impossibility of reaching
an agreement in the course of repeated
attempts at negotiations, as the Security
Councils Special Envoy ascer-
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tained at the time. At the same time,
the ICJ made some very interesting observations
with respect to the authorsof the declaration of independence.
-
tives of the people of Kosovo did not
act, nor were they able to, within the
legal framework established by Resolution
1244. Nor were they obliged by the
same ruling to reach a political agreement
with Serbia, since the responsibility
for obtaining an agreement lay
expressly with the Security CouncilsSpecial Envoy and UNMIK, but could
not oblige other political agents to act.
In the Assemblys act of proclaiming
Kosovo to be an independent sovereign
state, it did not act as a self-governing
institution of the provisional administration
and within the limits of that
legality. On the contrary, it was situated
on the margins and outside the reach of
the same, operating exclusively in virtue
of the powers conferred upon it by
democratic representation by popular
-
pendence did not attempt to produce
its e#ect within the existing provisional
legal order, but rather to create a new
legality, operating on another level: in
contrast to Resolution 1244, this declaration
finally established Kosovos
definitive status. In its conclusion theICJ stated that since multiple Security
Council resolutions did not forbid independence
and once the negotiation
process had formally ended, there was
no barrier to the declaration of independence.
As a consequence, the ICJ established
in the outline of its verdict, that
Kosovos declaration of independence,
adopted on the 17th of February 2008,did not violate any international law
of general application, nor Security
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Council Resolution 1244 or the Constitutional
Framework established by
UNMIK, or any other norm of international
law.
A step forward, limited but
important, in the universalrecognition of a peoples right
to self-determination
We can ask ourselves what significance
the ruling on the Kosovo case
has in international political practice,
as well as in legal doctrine. In spite of
the fact the ruling was not legally binding,
it is clear that the decision by the
United Nations highest judicial institution,
establishing that the declarationof independence does not go against
international law, is bound to produce
relevant practical e#ects in terms of the
State of Kosovos recognition and full
integration into the international com
-
diate change in Serbias attitude, which
has now shown its willingness to negotiate
with the new state a resolution
to the pending questions arising out of
the secession.
From the point of view of the general
application of international rights,
the advisory opinion on the Kosovo
case represents a very important contribution
to the debate on the right to
self-determination. It is worth highlighting
in any case that the ICJs decisionin the Hague did not deal in depth
with the general extent of the law beyond
cases of decolonisation, peoples
right to self-determination, recognised
in Articles 1 and 55 of the United Nations
Charter, the International Pacts
of 1976 and numerous United Nations
to this debate, which has occupied a
central place in international political
doctrine since the last decade of thetwentieth century, since the publication
-
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-
visory opinion gathers the allegations
made by those who supported (in the
legal process) the right of the Kosovo
population to set up an independent
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state, either in the exercise of the right
to self-determination (understood as a
universal human right) or as a right to
remedial secession, applicable in thosecircumstances that threaten the survival
of an endangered national minority.
-
bate, however. It considered that now
is not the time to resolve these issues
in the current case since the extent of
the right to self-determination or the
legitimacy of the right to secession are
topics which fall outside of the General
Assemblys request.
Certainly, the ICJs reluctance to
implicate itself at this crucial stage
limits the judicial e#ciency of the advisory
opinion in doctrinal terms, in
that it fails to give a definitive reply to
the problem of the generalisation of
the right to self-determination. Nevertheless,
I understand that the ICJs
decision brings significant elements
of clarification which are in favour of
a postcolonial interpretation of this
right in international law. In the first
instance it soundly removes the main
objection that, in a systematic manner,
the majority doctrine and political
practice of states have used in their
opposition to any calls for secession.
incompatibility with international law,
and in particular with respect to theprinciple of states territorial integrity,
of the unilateral declarations of independence
in a non-colonial situation.
expressly and unequivocally declared
that there was no international law of
a general application that forbids unilateral
declarations of independence,
which means these must be considered
as in accordance with internationallegal order, as long as they are not affected
by specific circumstances which
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represent some other violation of said
order. Once we have ruled out the generic
prohibition of unilateral secession,
in my opinion, the decision on the
Kosovo case opens up the possibility of
developing, doctrinally and in positive
international law, the concept of theright to self-determination as a universal
right and to determining the conditions,
requisites and the extent of its
application.
that is especially significant which I
wish to highlight is the implicit recognition
of the legitimacy of the Kosovo
Assembly, as an expression of the democratically
expressed will of the people
of the territory,to declare independenceand to establish a new legality, above
the still-existent Serbian sovereignty
and aside from the legal order issuing
from the Security Council resolutions.
In this sense, the decision on the Kosovo
case provides considerable legal
arguments to those such as myself, who
consider that all national communities
have the unalienable right to decide
their own future, whether it lies within
the state of which they form a part or
by separating and forming a new sovereign
state, according to the will of the
majority, democratically and peacefully
decided by its citizens.
*August Gil-Matamala
Has been a practising lawyer since 1960, specialising in the fields of criminal and labour law.
He has taken part in numerous cases in defence of people on trial for their demands in favour
of peoples rights, as well as hearings before the European Court of Human Rights in Strasbourg.Gil-Matamala fought the first successful case against the Spanish state for the violation
of basic rights. He is a founder member of the Commission for the Defence of Individual
Rights of the Collegi dAdvocats de Barcelona (the Barcelona Bar Association) and the Catalan
Association
for the Defence of Human Rights, which he presided over from its foundation in 1985
to 2001. Gil Matamala has also been president of both the Fundaci Catalunya and the European
Democratic Lawyers organisation. In 2007, coinciding with his retirement, he received the Creu
de Sant Jordi (St. Georges Cross, the highest honour awarded by the Catalan government).
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