Page:ACCORDANCE WITH INTERNATIONAL LAW OF THE UNILATERAL DECLARATION OF INDEPENDENCE IN RESPECT OF KOSOVO Advisory opinion of 22 July 2010 179 e.pdf/19

 judicial conscience follow. The Vice-President considers that the Court should have exercised its discretion and declined answering the request in order to protect the integrity of its judicial function and its nature as a judicial organ.

The Vice-President first considers that the Security Council is the body empowered to make a determination whether an act adopted by the institutions of Kosovo, which has been put under a régime of international territorial administration, is or is not in conformity with the legal framework applicable to and governing that régime. However, the Security Council has made no such determination and its silence cannot be interpreted as implying the tacit approval of, or acquiescence with, the declaration of independence adopted on 17 February 2008. Yet, the General Assembly is the body which has addressed the request to the Court. The Vice-President considers that Article 12, paragraph 1, of the Charter prevents the General Assembly from making any recommendation with regard to the status of Kosovo, as he fails to see any "sufficient interest" for the Assembly in requesting the opinion from the Court. He considers that the majority's answer given to the question put by the General Assembly prejudices the determination, still to be made by the Security Council, on the conformity vel non of the declaration with resolution 1244 and the international régime of territorial administration established thereunder.

As regards the question itself, the Vice-President considers it clearly formulated and sufficiently narrow and specific so as not to warrant any adjustment. He explains that he considers the Court's conclusion, that the authors of the declaration of independence did not act as one of the Provisional Institutions of Self-Government, as lacking a sound basis in the facts relating to the adoption of the declaration. After enumerating a series of facts and declarations by various relevant parties in relation to the declaration of 17 February 2008, the Vice-President concludes that the Assembly of Kosovo, consisting of its members, the President of Kosovo and its Government, headed by the Prime Minister, constituted, on 17 February 2008, the Provisional Institutions of Self-Government of Kosovo, and they together issued the declaration. Thus, according to him, the question was correctly formulated in the request of the General Assembly and there was no reason to "adjust" it and subsequently to modify the title itself of the case.

As regards the applicable legal framework, the Vice-President first recalls that Security Council resolution 1244 did not displace the Federal Republic of Yugoslavia's title to the territory in question; and he states that, by establishing an international territorial administration over Kosovo, which remained legally part of the FRY, the United Nations assumed its responsibility for this territory. Reiterating the primary responsibilities falling upon the United Nations in the interim administration of Kosovo under resolution 1244 (1999), he considers that the Security Council has not abdicated on its overall responsibility for the situation in Kosovo, and that it has remained actively seised of the matter.

The Vice-President affirms that the notion of a "final settlement" cannot mean anything else than the resolution of the dispute between the parties concerned, either by an agreement reached between them or by a decision of an organ having competence to do so. He denies that the notion of a settlement may be reconciled with the unilateral