## Facts

- Following conflict in Kosovo in the late 1990s, the U.N. Security Council adopted Resolution 1244 (1999), establishing an international civil presence (UNMIK) and security presence, and creating an interim framework providing “substantial autonomy” for Kosovo while reaffirming Yugoslavia’s (later Serbia’s) territorial integrity.
- UNMIK established Provisional Institutions of Self-Government (PISG) under a constitutional framework and regulations governing Kosovo’s interim administration.
- On February 17, 2008, a declaration of independence was adopted in Kosovo within this post-1244 context.
- The U.N. General Assembly, by Resolution 63/3 (Oct. 8, 2008), requested an advisory opinion asking whether the unilateral declaration of independence by Kosovo’s provisional institutions was “in accordance with international law.”
- Numerous states and the “authors of the unilateral declaration of independence” participated through written statements and oral proceedings.
- The ICJ issued an advisory opinion on July 22, 2010, concluding by a 10–4 vote that the declaration did not violate international law.

## Issues

1. Whether the ICJ had jurisdiction to render the requested advisory opinion and, if so, whether it should decline to answer in its discretion.
2. How to identify the author(s) of the declaration and define the scope of the General Assembly’s question.
3. Whether general international law prohibits a unilateral declaration of independence, including through the principle of territorial integrity.
4. Whether the declaration violated the special legal regime applicable to Kosovo under U.N. Security Council Resolution 1244 (1999) and the UNMIK constitutional framework.

## Decision

- The Court held it had advisory jurisdiction under Article 65 of the ICJ Statute and Article 96 of the U.N. Charter and found no compelling reason to decline to respond.
- The Court interpreted the question narrowly as asking whether any rule of international law prohibited the issuance of the declaration, not whether Kosovo had a right to secede or had achieved statehood.
- The Court determined the declaration was issued by “Representatives of the People of Kosovo,” not by the PISG acting as institutions created under UNMIK’s constitutional framework.
- The Court concluded the February 17, 2008 declaration of independence did not violate general international law, including the principle of territorial integrity.
- The Court concluded the declaration did not violate Security Council Resolution 1244 (1999) or the UNMIK constitutional framework.

## Legal Principles

- An advisory request from an authorized U.N. organ that poses a “legal question” falls within the Court’s advisory competence; the Court may answer absent compelling discretionary reasons to abstain.
- The scope of an advisory opinion is governed by the question asked; the Court may confine its analysis to whether a prohibition exists rather than whether a positive entitlement to secede exists.
- Under general international law, there is no general prohibition on declarations of independence as such.
- The principle of territorial integrity is addressed to relations between states and does not, by itself, constitute a general rule prohibiting non-state actors from declaring independence.
- Past Security Council condemnations of particular declarations of independence do not establish a general ban where those condemnations were tied to unlawful force or other serious violations of peremptory norms.
- A Security Council resolution and an associated constitutional framework may operate as lex specialis for an administered territory, but constraints aimed at interim institutions do not necessarily bind actors who are not operating as those institutions; absent an express or implied prohibition in the applicable special regime, a declaration is not unlawful on that basis.

## Conclusion

The ICJ advised that Kosovo’s 2008 declaration of independence was not prohibited by general international law and was not barred by the special U.N.-created regime under Security Council Resolution 1244 and the UNMIK constitutional framework, while expressly declining to decide questions of statehood, recognition, or any general right of secession.


Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, 2010 I.C.J. 403 (July 22)