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

Beatrice Onica Jarka

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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).