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 of awaited, 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

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 from March 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 crucial precedent 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 Mission in 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. -

tus was to be backed by the Security Council. Catalan International View

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 both sides 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 for Kosovo, 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 on a decision. In July 2007 a project for a resolution was presented to the Council,

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 few weeks 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 democraticallyelected 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 the Kosovo 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,

while referring to a democratic majority and cultural values, the declaration makes no mention of the right to selfdetermination. Catalan International View

In the following days, Serbia informed the Secretary General of the United Nations that it considered Kos ovos declaration of independence to be an 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 represented by diplomats or experts on international law, exercised the right, together

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 possible incompetence 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 Catalan International View

Europe whether it should act on those opinions in order to improve its operation. As for the allegation of usurping the competencies 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 situation in 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-determination under 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 alternatively whether the declaration had been adopted in violation of any existing

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 territorial integrity, 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 condemning declarations of independence, such as Resolutions 216 and 217

(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 parResolution 1244 does not contain any impediment 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

of the impossibility of reaching an agreement in the course of repeated attempts at negotiations, as the Security Councils Special Envoy ascerCatalan International View

Europe tained at the time. At the same time, the ICJ made some very interesting observations with respect to the authors of 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 Councils Special 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 the ICJ 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

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 universal recognition 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 declaration of 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 decision in 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 the twentieth century, since the publication -

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 Catalan International View

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 those circumstances 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 the principle 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 international legal order, as long as they are not affected by specific circumstances which

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 the right 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 independence and 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). Catalan International View