sentencia kosovo

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)

Catalan International View


2/21

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.

-


3/21

tus was to be backed by the Security

Council.



4/21

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,


5/21

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,


6/21

while referring to a democratic majority

and cultural values, the declaration

makes no mention of the right to selfdetermination.



7/21

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


8/21

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



9/21


10/21

Europe

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


11/21

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


12/21



13/21

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


14/21

(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


15/21

of the impossibility of reaching

an agreement in the course of repeated

attempts at negotiations, as the Security

Councils Special Envoy ascer-



16/21

Europe

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


17/21

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

-


18/21

-

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



19/21

Europe

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


20/21

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).



21/21

sentencia kosovo

Documents