Page:ACCORDANCE WITH INTERNATIONAL LAW OF THE UNILATERAL DECLARATION OF INDEPENDENCE IN RESPECT OF KOSOVO Advisory opinion of 22 July 2010 179 e.pdf/10

 obligations incumbent upon States to refrain from violating the territorial integrity of other sovereign States. In the same vein, the Final Act of the Helsinki Conference on Security and Co-operation in Europe of 1 August 1975 (the Helsinki Conference) stipulated that "[t]he participating States will respect the territorial integrity of each of the participating States" (Art. IV). Thus, the Court notes, "the scope of the principle of territorial integrity is confined to the sphere of relations between States".

The Court observes, however, that while the Security Council has condemned particular declarations of independence, in all of those instances it was making a determination as regards the concrete situation existing at the time that those declarations of independence were made; it states that "the illegality attached to the declarations of independence thus stemmed not from the unilateral character of these declarations as such, but from the fact that they were, or would have been, connected with the unlawful use of force or other egregious violations of norms of general international law, in particular those of a peremptory character (jus cogens)". The Court notes that "[i]n the context of Kosovo, the Security Council has never taken this position". The exceptional character of the resolutions enumerated above appears to the Court to confirm that no general prohibition against unilateral declarations of independence may be inferred from the practice of the Security Council.

The Court considers that it is not necessary, in the present case, to resolve the question whether, outside the context of non-self-governing territories and peoples subject to alien subjugation, domination and exploitation, the international law of selfdetermination confers upon part of the population of an existing State a right to separate from that State, or whether international law provides for a right of "remedial secession" and, if so, in what circumstances. It recalls that the General Assembly has requested the Court's opinion only on whether or not the declaration of independence is in accordance with international law. The Court notes that debates regarding the extent of the right of self-determination and the existence of any right of "remedial secession", however, concern the right to separate from a State. That issue is beyond the scope of the question posed by the General Assembly. To answer that question, the Court need only determine whether the declaration of independence violated either general international law or the lex specialis created by Security Council resolution 1244 (1999).

For the reasons already given, the Court considers that general international law contains no applicable prohibition of declarations of independence. Accordingly, it concludes that the declaration of independence of 17 February 2008 did not violate general international law.

B. Security Council resolution 1244 (1999) and the UNMIK Constitutional Framework created thereunder (paras. 85-121)

The Court then examines the legal relevance of Security Council resolution 1244, adopted on 10 June 1999. It notes that within the legal framework of the United Nations Charter, notably on the basis of Articles 24, 25 and Chapter VII thereof, the Security Council may adopt resolutions imposing obligations under international law. It recalls that resolution 1244 (1999) was expressly adopted by the Security Council on the basis of