Several reflections on the significance of the icjadvisory opinion on accordance with internationallaw of the unilateral declaration of independencein respect of Kosovo

Author:Beatrice Onica Jarka
Position:Lecturer, Ph.D., Law Faculty, 'Nicolae Titulescu' University, Bucharest
Pages:49-58
SUMMARY

The paper shall focus on the presentation of the reasoning stated in the ICJ Advisory Opinion on the accordance with international law of the unilateral declaration of independence in respect of Kosovo and the significance of the said reasoning in the actual context of international law in respect of new statehood. The paper shall try to point out the existence of an intent of the ICJ by its... (see full summary)

 
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Beatrice Onica Jarka
49
LESIJ NO. XVII, VOL. 2/2010
SEVERAL REFLECTIONS ON THE SIGNIFICANCE OF THE ICJ
ADVISORY OPINION ON ACCORDANCE WITH INTERNATIONAL
LAW OF THE UNILATERAL DECLARATION OF INDEPENDENCE IN
RESPECT OF KOSOVO
Beatrice ONICA JARKA
Abstract
The paper shall focus on the presentation of the reasoning stated in the ICJ Advisory
Opinion on the accordance with international law of the unilateral declaration of independence
in respect of Kosovo and the significance of the said reasoning in the actual context of
international law in respect of new statehood. The paper shall try to point out the existence of
an intent of the ICJ by its Advisory Opinion to state a new understanding of the statehood
considering that the context of the unilateral independence statement and the capacity in which
its authors acted is of sufficient importance to rule on the legality of such statement. By avoiding
to rule on the coexistence of the right to territorial integrity and the right of self determination as
rights connected with the unilateral statement of independence, the Court lost the opportunity to
settle the relation between the two rights in the context of the remedial secession solution in
favor of a multiethnic group which was subject to gross human rights violation in the past.
Assuming the jurisdiction on the Advisory Opinion, the Court proved itself willing to show that
issues which were till now considered purely political and subject to decision of the political
organs of the UN may become, even in a narrow approach, points of law.
Keywords: ICJ, Kosovo, independence, jurisprudence, secession
Introduction
On July 22, 2010, the ICJ has delivered its Advisory Opinion on accordance with
international law of the unilateral declaration of independence in respect of Kosovo, by deciding
among others by ten votes to four that the declaration of independence of Kosovo adopted on 17
February 2008 did not violate international law.
The said Advisory Opinion was granted as a response to the United Nations General
Assembly question: “Is the unilateral declaration of independence by the Provisional Institutions
of Self-Government of Kosovo in accordance with international law?” While the Court in its
Advisory Opinion apparently approached the matter in a narrow formal manner, willfully ignoring
the right of Kosovo to secede from Serbia, the significance of the Advisory Opinion is crucial in
the actual international context in which Republic of Kosovo has been recognized already by 70
states and states as Romania, Cyprus, Spain or Russia continues to oppose to such recognition.
This paper shall focus on the significance of the ICJ Advisory Opinion, examining both its
legal and political dimension and the lost opportunity for the Court to open a reinterpretation of the
right to self determination and its exercise by minority groups easily able to declare their
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Lecturer, Ph.D., Law Faculty, “Nicolae Titulescu” University, Bucharest (e-mail:
beatrice.onicajarka@cunescu.ro).

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