Page:ACCORDANCE WITH INTERNATIONAL LAW OF THE UNILATERAL DECLARATION OF INDEPENDENCE IN RESPECT OF KOSOVO Advisory opinion of 22 July 2010 179 e.pdf/20

 step-taking by one of the parties aiming at the resolution of the dispute against the will of the other. Turning then to the negotiations on determining Kosovo's future status, which led to no agreement, he questions whether the parties negotiated in good faith because, as the Court observed in several earlier cases, negotiating in good faith means that the parties are under an obligation to enter into negotiations with a view to arriving at an agreement, and not merely to go through a formal process of negotiation; and that they are under an obligation so to conduct themselves that the negotiations are meaningful, which will not be the case when either of them insists upon its own position without contemplating any modification of it. Observing that the proposal for supervised independence by Special Envoy Martti Ahtisaari was not endorsed by the Security Council, to his mind the only United Nations organ competent to do so, he considers that the Kosovo Declaration of Independence has been a way to put, to the extent possible, into practice the unendorsed Ahtisaari plan.

Finally, the Vice-President recalls that on previous occasions in 2002, 2003 and 2005, the Special Representative of the Secretary-General, entrusted by the United Nations with the interim administration of Kosovo, has not hesitated, in the exercise of that supervisory role, to declare null and void a measure of one of the Provisional Institutions which he considered to be beyond that Institution's powers (ultra vires). He considers that the Advisory Opinion provides no explanation why acts which were considered as going beyond the competencies of the Provisional Institutions in the period 2002-2005, would not have such character any more in 2008, despite the fact that provisions of the Constitutional Framework on the competencies of these institutions have not been amended and remained the same in February 2008 as they were in 2005.

The Vice-President concludes with the observation that the Court, as the principal judicial organ of the United Nations, is supposed to uphold the respect for the rules and mechanisms contained in the Charter and the decisions adopted thereunder. In his view, the majority has given preference to recent political developments and current realities in Kosovo, rather than to the strict requirement of respect for such rules, thus trespassing the limits of judicial restraint.

In his dissenting opinion, Judge Koroma concludes that he cannot concur in the finding of the Court that the "declaration of independence of Kosovo adopted on 17 February 2008 did not violate international law".

In the view of Judge Koroma, the Court, in exercising its advisory jurisdiction, is entitled to reformulate or interpret a question put to it, but is not free to replace the question asked of it with its own question and then proceed to answer that question, which is what the Court has done in this case. Judge Koroma explains that the Court, as well as its predecessor, the Permanent Court of International Justice, has previously reformulated the question put in a request for an advisory opinion in an effort to make that question more closely correspond to the intent of the institution requesting the advisory opinion, but has never reformulated a question to such an extent that a completely new question results, one clearly distinct from the original question posed.