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Waiting for Godot: An Analysis of the Advisory Opinion on Kosovo

Published online by Cambridge University Press:  06 May 2011

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Abstract

The Kosovo Advisory Opinion gave rise to responses that suggest that the Court went too far, or not far enough, depending on one's perspective. In this article, the authors argue that the Court should either have done nothing or gone all the way. By accepting an inadequately drafted question, the Court was necessarily going to give an inadequate answer. This article adopts a strict approach to the legal nature of the question and considers that the ICJ should have declined its competence, not as an exercise of its discretion, but as a preservation of its core judicial function, which does not include primarily the conduct of non-state entities. Going further, the authors suggest that the Court could have rephrased the question and sought to establish the international responsibility of the United Nations, and, ultimately, of Kosovo, which, it is argued, is in fact implicitly recognized by the Court, both politically and legally.

Keywords

attributiondiscretionInternational Court of Justiceinternational responsibilityKosovo
Type
HAGUE INTERNATIONAL TRIBUNALS: International Court of Justice: Kosovo Symposium
Information
Leiden Journal of International Law , Volume 24 , Issue 2 , June 2011 , pp. 331 - 353
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2011

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References

1 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion of 22 July 2010, [2010] ICJ Rep., not yet published (hereafter Kosovo Advisory Opinion).

2 Charter of the United Nations, 24 October 1945, 1 UNTS XVI (hereafter UN Charter), Art. 96(1).

3 Statute of the International Court of Justice, 24 October 1945, Art. 65(1) (emphasis added).

4 UN Charter, Art. 96(1).

5 UN Charter, Art. 96(2).

6 Kosovo Advisory Opinion, supra note 1, para. 21 (emphasis added).

7 Ibid., para. 22.

8 Ibid., para. 24.

9 Ibid., para. 25.

10 Ibid., para. 27.

11 Ibid., para. 33.

12 P. Daillier, ‘Article 96’, in J.-P. Cot and A. Pellet (eds.), La Charte des Nations Unies: Commentaire article par article (2005), 2003, at 2007.

13 Kosovo Advisory Opinion, supra note 1, para. 34.

14 Ibid., para. 35.

15 M. Pomerance, ‘The Advisory Role of the International Court of Justice and Its “Judicial” Character’, in A. S. Muller et al. (eds.), The International Court of Justice (1997), 271, at 318.

16 See sub-subsection 2.2.3.2 infra.

17 Kosovo Advisory Opinion, supra note 1, paras. 40 and 42.

18 Ibid., para. 41.

19 Ibid., para. 44.

20 Ibid., para. 46.

21 Ibid., para. 47.

22 See, e.g., S. Rosenne, The Law and Practice of the International Court of Justice (1985), 660: ‘[N]o organ, including the General Assembly and the Security Council, can decide to request an advisory opinion except within the scope of its activities.’

23 On this point, see R. Van Steenberghe, ‘The General Assembly Resolution Requestioning the Kosovo Opinion and the Ultra Vires Issue’, The Hague Justice Portal, 15 October 2010, at 5, available at www.haguejusticeportal.net/Docs/Commentaries%20PDF/Hague%20Justice%20Prize/van%20Steenberghe_Kosovo_EN.pdf.

24 Kosovo Advisory Opinion, supra note 1, para. 30.

25 Ibid., para. 29.

26 G. Abi Saab, ‘On Discretion: Reflections on the Nature of the Consultative Function of the International Court of Justice’, in L. Boisson de Chazournes and P. Sands (eds.), International Law, the International Court of Justice and Nuclear Weapons (1999), 36, at 45.

27 Kosovo Advisory Opinion, supra note 1, para. 26 (Judge Cançado Trindade, Separate Opinion).

28 Ibid., para. 28.

29 A similar, if more circumscribed, position can be found in Judge Sepulveda-Amor's separate opinion, who considers that ‘the Court, by virtue of its responsibilities in the maintenance of international peace and security under the United Nations Charter, has a duty to exercise its advisory function in respect to legal questions which, like the present one, relate to Chapter VII situations’; see Kosovo Advisory Opinion, supra note 1, para. 2 (Judge Sepulveda-Amor, Separate Opinion). In support of this position, see A. Pellet, ‘Le glaive et la balance: Remarques sur le rôle de la CIJ en matière de maintien de la paix et de la sécurité internationales’, in Y. Dinstein (ed.), International Law at a Time of Perplexity (1989), 539.

30 Western Sahara, Advisory Opinion of 16 October 1975, [1975] ICJ Rep. 12, at 18.

31 Alternatively, it could have reformulated the question so as to consider the issue of the responsibility of the United Nations or Kosovo, as shall be developed in section 4infra.

32 Kosovo Advisory Opinion, supra note 1, para. 51.

33 Ibid., para. 54.

34 In the language of the Court itself; ibid., paras. 83–84.

35 Ibid., para. 85.

36 Ibid., para. 88.

37 UNMIK Reg. 2001/9, 15 May 2001.

38 Kosovo Advisory Opinion, supra note 1, para. 88.

39 Ibid.

40 Ibid., para. 89 (emphasis added).

41 Ibid., para. 91.

42 Ibid., para. 93.

43 Ibid., para. 89 (emphasis added).

44 Kosovo Advisory Opinion, supra note 1, para. 18 (Judge Yussuf, Separate Opinion).

45 Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory, Advisory Opinion of 4 February 1932, (1932) PCIJ Series A/B No. 44, at 4.

46 Treaty of Versailles, 1919, Part III, Section XI, Art. 102.

47 Ibid., Art. 103.

48 Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory, Advisory Opinion of 4 February 1932, (1932) PCIJ Series A/B No. 44, at 21.

49 Ibid.

50 Ibid., at 24.

51 Kosovo Advisory Opinion, supra note 1, para. 89.

52 See J. d'Aspremont, ‘The Creation of States before the International Court of Justice: Which (Il)Legality?’, The Hague Justice Portal, 1 October 2010, at 5, available at www.haguejusticeportal.net/Docs/Commentaries%20PDF/DAspremont_Kosovo_EN.pdf.

53 While these two issues may intellectually be distinguished, they remain connected from a procedural standpoint.

54 See Art. 4 of the International Law Commission Draft Articles on the Responsibility of International Organizations, 2009 ILC Draft Articles on the Responsibility of International Organizations, at 20 (not yet published), available at http://untreaty.un.org/ilc/reports/2009/2009report.htm (hereafter ILC Draft Articles on IO Responsibility).

55 See ILC Draft Articles on IO Responsibility, Art. 2, ‘Use of Terms’.

56 Commentary of Art. 2 of the ILC Draft Articles on IO Responsibility, at 49–50.

57 ILC Draft Articles on IO Responsibility, ibid., Art. 5(1): ‘The conduct of an organ or agent of an international organization in the performance of functions of that organ or agent shall be considered as an act of that organization under international law whatever position the organ or agent holds in respect of the organization. 2. Rules of the organization shall apply to the determination of the functions of its organs and agents.’

58 Commentary of Art. 5 of the ILC Draft Articles on IO Responsibility, at 60.

59 Under the terms of Res. 1244 (1999), para. 11, the UNSC ‘[d]ecides that the main responsibilities of the international civil presence will include: (a) Promoting the establishment, pending a final settlement, of substantial autonomy and self-government in Kosovo’.

60 In relation to this issue, the ILC Special Rapporteur on IO Responsibility, commenting on the definition of ‘rules of the organization’, highlights the weight of the practice in reference to the ICJ Advisory Opinion on Reparation for Injuries Suffered in the Service of the United Nations: ‘One important feature of the definition of “rules of the organization” in subparagraph (b) is that it gives considerable weight to practice. The definition appears to provide a balance between the rules enshrined in the constituent instruments and formally accepted by the members of the organization, on the one hand, and the need for the organization to develop as an institution, on the other hand. As the International Court of Justice said in its Advisory Opinion on Reparation for Injuries Suffered in the Service of the United Nations: ‘Whereas a State possesses the totality of international rights and duties recognized by international law, the rights and duties of an entity such as the Organization must depend upon its purposes and functions as specified or implied in its constituent documents and developed in practice’; Commentary of Article 5 of the ILC Draft Articles on IO Responsibility, supra note 54, at 51; Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion of 11 April 1949, [1949] ICJ Rep. 174, at 180.

61 D'Aspremont, supra note 52, at 6: ‘It is an uncontested principle of attribution in international law (and rules about attribution happened to be codified within the framework of the rules on responsibility) that being the organ of a given international legal subject is not sufficient for that subject to incur responsibility for violations of its obligations by that organ. That organ must also be acting in that capacity.’

62 Kosovo Advisory Opinion, supra note 1, para. 52: ‘The identity of the authors of the declaration of independence, as is demonstrated below . . ., is a matter which is capable of affecting the answer to the question whether that declaration was in accordance with international law.’

63 It is so because the Court does not address the question of the legality of the declaration under the spectrum of responsibility.

64 Kosovo Advisory Opinion, supra note 1, para. 109. The Court considers that ‘The silence of the Special Representative of the Secretary-General in the face of the declaration of independence of 17 February 2008 suggests that he did not consider that the declaration was an act of the Provisional Institutions of Self-Government designed to take effect within the legal order for the supervision of which he was responsible. As the practice shows, he would have been under a duty to take action with regard to acts of the Assembly of Kosovo which he considered to be ultra vires’, ibid., para. 108. As suggested by the Court, considering its obligation of supervision under Res. 1244 (1999), one could rather argue that the omission of the special representative, agent of the United Nations, is in breach of the resolution, omission of which entails the responsibility of the United Nations.

65 Ibid., para. 105: ‘[T]he Court considers that the authors of that declaration did not act, or intend to act, in the capacity of an institution created by and empowered to act within that legal order [the legal order created for the interim phase].’

66 As noted by Vice-President Tomka: ‘The majority had, at the end of the day, to concede that the President of the Kosovo Assembly and the Prime Minister of Kosovo “made reference to the Assembly of Kosovo and the Constitutional Framework” (Advisory Opinion, paragraph 104), while maintaining its intellectual construct that the authors of the declaration “acted together in their capacity as representatives of the people of Kosovo outside the framework of the interim administration” (ibid., paragraph 109). The Members of the Assembly, are they not “representatives of the people of Kosovo”? The President of Kosovo, is he not the representative of the people of Kosovo? They met, as the Prime Minister stated, “in accordance with the Kosovo Constitutional Framework”; they thus wished to act in accordance with that framework and not outside of it, as the majority asserts. Although the majority engaged itself in the search for “the identity of the authors of the declaration of independence”, finally “having established [their] identity” (Advisory Opinion, paragraph 110), no such search was needed, as their “identity” is well known and documented in the procès-verbal of the special plenary session of the Assembly of Kosovo. Nor was there any need to search for “the capacity” in which those who adopted the declaration acted (Advisory Opinion, paragraph 109)’, Kosovo Advisory Opinion, supra note 1, paras. 19–20 (Vice-President Tomka, Declaration, references in original).

67 In that sense, Judge Koroma contends that ‘Relying on such intent leads to absurd results, as any given group, secessionists, insurgents, could circumvent international norms specifically targeting them by claiming to have reorganized themselves under another name. Under an intent-oriented approach, such groups merely have to show that they intended to be someone else when carrying out a given act, and that act would no longer be subject to international law specifically developed to prevent it’, Kosovo Advisory Opinion, supra note 1 (Judge Koroma, Dissenting Opinion).

68 Kosovo Advisory Opinion, supra note 1, para. 44 (Judge Benounna, Dissenting Opinion).

69 Ibid., para. 12 (Vice-President Tomka, Declaration).

70 See Art. 7 of the ILC Draft on IO Responsibility, ‘Excess of Authority or Contravention of Instructions’: ‘The conduct of an organ or an agent of an international organization shall be considered an act of that organization under international law if the organ or agent acts in that capacity, even though the conduct exceeds the authority of that organ or agent or contravenes instructions’, ILC Draft Articles on IO Responsibility, supra note 54, at 60.

71 As far as Res. 1244 (1999) is concerned, a preliminary requirement would be to determine whether the UNSC can violate its own resolution and, beyond, whether the UNSC is bound by its resolutions. While one can answer that it is not, one could suggest that, under the principle of équivalences des procédures, a UNSC resolution can only be modified by an equivalent UNSC resolution.

72 The guarantee of territorial integrity is incorporated through Arts. 2(1) and 2(4) of the UN Charter. Under Art. 2(1), ‘The Organization is based on the principle of the sovereign equality of all its Members’. Art. 2(4) states that ‘All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations’, UN Charter, supra note 2.

73 Kosovo Advisory Opinion, supra note 1, para. 24 (Judge Koroma, Dissenting Opinion). From a similar perspective, Stahn argues that ‘Unlike Article 2(7), this guarantee [territorial integrity] is not expressly subject to “the application of enforcement measures under Chapter VII”. This implies that it serves as a limit on UN action in the field of peace and security . . . [I]nternational administrators do not hold the powers of a legitimate sovereign, and therefore precluded from making unilateral determinations concerning the permanent status of the administered territories. They may not cede the whole or part of the administered territory against the will of the territorial sovereign or the official representatives of the administered territory; nor are they entitled to determine the final political status of the administered entity . . . . The only international organ which might, under exceptional circumstances, be authorised to certain acts affecting the territorial integrity of a state is the Security Council . . . [I]t is beyond the authority of the Council to decree permanent territorial changes or losses of territory as part of a peace settlement’, C. Stahn, The Law and Practice of International Territorial Administration – Versailles to Iraq and Beyond (2008), 464–5.

74 Legal Consequences for States of the Continued Presence of South Africa in Namibia notwithstanding Security Council Resolution 276 (1970), Advisory Opinion of 21 June 1971, [1971] ICJ Rep. 16, at 294, para. 115 (Judge Fitzmaurice, Dissenting Opinion).

75 This expression is borrowed from Pellet. See A. Pellet ‘“Human Rightism” and International Law’, (2000) X Italian Yearbook of International Law, 3.

76 Kosovo Advisory Opinion, supra note 1, paras. 217 and 239–240 (Judge Cançado Trindade, Separate Opinion).

77 See subsection 3.1supra.

78 Kosovo Advisory Opinion, supra note 1, para. 100: ‘The Court thus concludes that the object and purpose of resolution 1244 (1999) was to establish a temporary, exceptional legal régime which, save to the extent that it expressly preserved it, superseded the Serbian legal order and which aimed at the stabilization of Kosovo, and that it was designed to do so on an interim basis.’

79 Ibid., para. 105 (emphasis added).

80 Ibid., para. 109 (emphasis added).

81 Ibid., para. 121 (emphasis added).

82 In this respect, see the Dissenting Opinion of Judge Benounna: ‘A cela, la Cour se contente d'affirmer que, lors de l'adoption de la déclaration d'indépendance, ses auteurs n’étaient pas liés par le cadre constitutionnel et que cette déclaration n’était pas un acte destiné à prendre effet dans l'ordre juridique mis en place par les Nations Unies (avis, paragraphe 121). Mais alors de quel ordre juridique relevaient les auteurs et la déclaration elle-même? Ce n'est en tout cas ni l'ordre juridique serbe ni celui d'un nouvel état souverain’, Kosovo Advisory Opinion, supra note 1, para. 64 (Judge Benounna, Dissenting Opinion).

83 Ibid., para. 105.

84 See Art. 2 of the International Law Commission Draft Articles on Responsibility of States for Internationally Wrongful Acts (hereafter ILC Draft Articles on State Responsibility), 2001 YILC, Vol. II (Part Two), at 26.

85 See Art. 4 of the ILC Draft Articles on State Responsibility, ibid.

86 See Art. 10, ‘Conduct of an Insurrectional or Other Movement’, ILC Draft Articles on State Responsibility.

87 ILC Draft Articles on IO Responsibility, supra note 54, at 57.

88 Ibid.

89 ILC Draft Articles on State Responsibility, supra note 84, at 51.

90 It would only be binding if one considered, de lege ferenda, the erga omnes dimension of the UNSC resolution adopted under Chapter VII.

91 ‘With independence comes the duty of responsible membership in the international community. We accept fully this duty and shall abide by the principles of the United Nations Charter, the Helsinki Final Act, other acts of the Organization on Security and Cooperation in Europe, and the international legal obligations and principles of international comity that mark the relations among states’, Kosovo declaration of independence adopted 2 February 2007, para. 8, available at www.assembly-kosova.org.

92 Ibid., para. 9: ‘We hereby undertake the international obligations of Kosovo, including those concluded on our behalf by the United Nations Interim Administration Mission in Kosovo (UNMIK) and treaty and other obligations of the former Socialist Federal Republic of Yugoslavia to which we are bound as a former constituent part, including the Vienna Conventions on diplomatic and consular relations.’

93 See sub-subsection 4.1.2supra.

94 ‘Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour’, Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations, GA Res. 2625 (XXV), 24 October 1970.

95 E. Bronner, ‘Palestinians Shift Focus in Strategy for Statehood’, New York Times, 20 October 2010, available at www.nytimes.com/2010/10/21/world/middleeast/21mideast.html.