Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo was a request in 2008 for an advisory opinion referred to the International Court of Justice by the United Nations General Assembly regarding the 2008 Kosovo declaration of independence. The territory of Kosovo is the subject of a dispute between Serbia and the Republic of Kosovo established by the declaration. This was the first case regarding a unilateral declaration of independence to be brought before the court.
The court delivered its advisory opinion on 2010; by a vote of 10 to 4, it declared that "the adoption of the declaration of independence of 17 February 2008 did not violate general international law because international law contains no 'prohibition on declarations of independence', nor did the adoption of the declaration of independence violate UN Security Council Resolution 1244, since this did not describe Kosovo's final status, nor had the Security Council reserved for itself the decision on final status." Reactions to the decision were mixed, with most countries which already recognised Kosovo hailing the decision and saying it was "unique" and does not set a precedent; while many countries which do not recognise Kosovo said they would not be doing so as such recognition could set a precedent of endorsing secession in other places.
Background
The 2008 Kosovo declaration of independence was adopted on 2008 in a meeting of the Assembly of Kosovo. It was the second declaration of independence by Kosovo's ethnic-Albanian political institutions, the first having been proclaimed on 1990.Howard Clark, Civil Resistance in Kosovo, p. 73. Pluto Press, 2000.
Serbia decided to seek international validation and support for its stance that the declaration of independence was illegal at the International Court of Justice.
Whether the declaration was in fact an official act of the Provisional Institutions of Self-Government was unclear; in the end, the Court determined it was issued by "representatives of the people of Kosovo" acting outside the normal Provisional Institutions of Self-Government. This was significant, since the Serbian argument was that the Kosovo Provisional Institutions of Self-Government had exceeded the authority given to them by the Constitutional Framework (promulgated by the United Nations Mission in Kosovo (UNMIK). In September 2012, international supervision ended, and Kosovo became responsible for its own governance.
United Nations request On 26 March 2008, the Government of Serbia announced its plan to call on the International Court of Justice to rule on the declaration of Kosovo's secession. Serbia sought to have the court's opinion on whether the declaration was in breach of international law. Also, an initiative seeking international support was undertaken at the United Nations General Assembly when it gathered again in New York in September 2008.
On 15 August 2008, Serbian Foreign Minister Vuk Jeremić officially filed a request at the United Nations seeking opinion of the International Court of Justice.
The resolution was worded as follows:
On 30 September 2008, in a trial vote, the Serbian initiative was backed by 120 member states. In the real vote, the United Nations General Assembly adopted this proposal as Resolution 63/3 on 2008 with 77 votes in favour, 6 votes against and 74 abstentions.
The 77 countries that voted for the initiative A/63/L.2 of Serbia were: Algeria, Angola, Antigua and Barbuda, Argentina, Azerbaijan, Belarus, Bolivia, Botswana, Brazil, Brunei, Cambodia, Chile, China, Costa Rica, Cuba, Cyprus, Democratic Republic of the Congo, Djibouti, Dominica, Dominican Republic, East Timor, Egypt, El Salvador, Equatorial Guinea, Eritrea, Fiji, Greece, Guatemala, Guinea, Guyana, Honduras, Iceland, India, Indonesia, Iran, Jamaica, Kazakhstan, Kenya, Kyrgyzstan, Lesotho, Liechtenstein, Madagascar, Mauritius, Mexico, Montenegro, Myanmar, Namibia, Nicaragua, Niger, Nigeria, North Korea, Norway, Panama, Papua New Guinea, Paraguay, Philippines, Republic of the Congo, Romania, Russia, Saint Vincent and the Grenadines, Serbia, Singapore, Slovakia, Solomon Islands, South Africa, Spain, Sri Lanka, Sudan, Suriname, Swaziland, Syria, Tanzania, Uruguay, Uzbekistan, Vietnam, Zambia and Zimbabwe.
The 6 countries that opposed the initiative were: Albania, Federated States of Micronesia, Marshall Islands, Nauru, Palau and United States.
The 74 countries that abstained from voting were: Afghanistan, Andorra, Armenia, Australia, Austria, Bahamas, Bahrain, Bangladesh, Barbados, Belgium, Belize, Benin, Bhutan, Bulgaria, Burkina Faso, Cameroon, Canada, Colombia, Croatia, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Ghana, Grenada, Haiti, Hungary, Ireland, Israel, Italy, Japan, Jordan, Latvia, Lebanon, Lithuania, Luxembourg, Macedonia, Malaysia, Malta, Moldova, Monaco, Mongolia, Morocco, Nepal, the Netherlands, New Zealand, Oman, Pakistan, Peru, Poland, Portugal, Qatar, Saint Lucia, Samoa, San Marino, Saudi Arabia, Senegal, Sierra[Leone, Slovenia, South Korea, Sweden, Switzerland, Thailand, Togo, Trinidad and Tobago, Uganda, Ukraine, United Arab Emirates, United Kingdom, Vanuatu, and Yemen.
Officially the following countries were absent: Bosnia and Herzegovina, Burundi, Cape Verde, Chad, Côte d'Ivoire, Ecuador, Ethiopia, Gabon, Gambia, Iraq,Kiribati, Kuwait, Laos, Libya, Malawi, Maldives, Mali, Mauritania, Mozambique, Rwanda, Saint Kitts and Nevis, Seychelles, Tonga, Tunisia, Turkey, Turkmenistan, Tuvalu and Venezuela.
The following states were not allowed to vote due to the lack of payments to the UN: Central African Republic, Comoros, Guinea Bissau, Liberia, São Tomé and Príncipe, Somalia and Tajikistan.
Provision of documents by the United Nations
On 9 October 2008, the UN Secretariat informed the ICJ that it had begun the preparation of a dossier containing all documents relevant to the legal question before the Court, representing the body of international law on the question.
Aside from introductory notes, the dossier contained a copy of UN Security Council Resolution 1244 (1999), deliberations of the Security Council, official reports on the activities of UNMIK, reports on the NATO-led security force KFOR, regulations and international agreements entered into by UNMIK, reports on the activities of the Provisional Institutions of Self-Government and on the Kosovo Status Process. Also included were 'general international law instruments – universal and regional', such as copies of the UN Charter, Helsinki Final Act, and various agreements on civil and human rights, as well as other legal documents from the wider Balkans (such as the rulings of the Badinter Commission).
Court proceedings
Written statements
On 21 April 2009, the ICJ announced that 35 member states of the United Nations had filed written statements within the time-limit fixed by the court ( 2009) on the question of the legality of Kosovo's UDI. Kosovo also filed a written contribution. Written statements were submitted by the following states (in order of receipt): the Czech Republic, France, Cyprus, People's Republic of China, Switzerland, Romania, Albania, Austria, Egypt, Germany, Slovakia, Russia, Finland, Poland, Luxembourg, Libya, the United Kingdom, the United States of America, Serbia, Spain, Iran, Estonia, Norway, the Netherlands, Slovenia, Latvia, Japan, Brazil, Ireland, Denmark, Argentina, Azerbaijan, Maldives, Sierra Leone, and Bolivia. This was the first time that China had officially submitted an opinion in a case in front of the ICJ. States and organisations which had presented written statements were allowed to submit written comments on the other statements by 2009. Venezuela was also allowed to submit documents, even though it failed to meet the deadline. The most extensive written statement was supplied by Serbia, followed by the United States, the United Kingdom, Germany, Cyprus, Albania, Argentina, France, Spain and Russia, while Libya submitted one of the shortest statements. Cyprus supplied a list of Europe's regions that can be expected to follow suit and announce similar separatist moves. Russia and Slovenia argued whether the case of Kosovo is unique or not.
The ICJ also invited the UN Secretary-General Ban Ki-moon to send his statement. His document contains three parts, with the first reminding of the process that led to the ICJ case. The second explains the establishment of the UN mission in Kosovo and cites "two relevant dates": March 1998 as the beginning of UN engagement in Kosovo, and February 2008, which is mentioned as the "closing date", i.e., the date when the proclamation was made. Ban writes about provisions of international law relevant to the case in the third part of his written statement, without expressing his position in favour of or against the province's independence.
Fourteen States which presented written statements also submitted written comments on the other written statements. These States are (in order of receipt): France, Norway, Cyprus, Serbia, Argentina, Germany, Netherlands, Albania, Slovenia, Switzerland, Bolivia, United Kingdom, United States of America, and Spain. The authors of the unilateral declaration of independence submitted a written contribution containing their comments on the written statements.
Public hearings
The public hearings opened on 1 December 2009. During these hearings, statements and comments were presented orally by some of the United Nations Member States (whether or not they had filed written statements or comments), and by representatives from Kosovo (under the title "Authors of the unilateral declaration of independence").
Serbia and Kosovo were given three hours to present their case on 2009. 27 other states were given 45 minutes each, being heard in French alphabetical order. The proceedings lasted until 2009.
{| class="wikitable" ! Country ! Date case presented ! Head of delegation ! Points raised |- valign="top" | Serbia | 1 December 2009 | Dušan Bataković, Ambassador of Serbia to France | Kosovo's unilateral declaration of independence violates the foundations of international law. It is a challenge to the authority of the United Nations, and a challenge to international legal order based on the principles of sovereignty and territorial integrity. The declaration represents an attempt to abolish the UN administration in Kosovo, to annul Serbia's sovereignty over its southern province and to impose independence as a unilateral solution for Kosovo. Kosovo was "the historical cradle of Serbia and constitutes one of the essential pillars of its identity". The independence proclamation was made by the temporary Kosovo government and was in violation of UN Resolution 1244, which guarantees the Federal Republic of Yugoslavia's (and now Serbia's) territorial integrity. All Serbian proposals offering broad autonomy to ethnic Albanians had been rejected. Serbs and other non-Albanians in Kosovo are having their basic human rights threatened, and they are being pressured to move out from the region. All big towns in Kosovo, with the exception of Kosovska Mitrovica, have been ethnically cleansed. The Serb churches and monasteries in Kosovo are "the only cultural monuments in Europe that are guarded by international armed forces because they are faced with the realistic threat of being demolished". It would be a dangerous precedent if other countries with UN administration concluded that the arrival of peacekeeping forces represented the first step in the secession of a region. |- valign="top" | Kosovo | 1 December 2009 | Skënder Hyseni, Foreign Minister of Kosovo | Kosovo's independence is irreversible. This will remain the case, not only for Kosovo, but also for the sake of regional peace and security. After violating the human rights of Kosovo's Albanians Serbia had lost its rights to the country.