Page:ACCORDANCE WITH INTERNATIONAL LAW OF THE UNILATERAL DECLARATION OF INDEPENDENCE IN RESPECT OF KOSOVO Advisory opinion of 22 July 2010 179 e.pdf/21

 Judge Koroma concludes that this is what the Court has done in this case by, without explicitly reformulating the question, concluding that the authors of the declaration of independence were distinct from the Provisional Institutions of Self-Government of Kosovo and that the answer to the question should therefore be developed on this presumption.

Turning to the Court's answer to the question, Judge Koroma begins by emphasizing that the Court's conclusion that the declaration of independence of 17 February 2008 was made by a body other than the Provisional Institutions of SelfGovernment of Kosovo and thus did not violate international law is legally untenable, because it is based on the Court's perceived intent of those authors. Judge Koroma stresses that positive international law does not recognize or enshrine the right of ethnic, linguistic or religious groups to break away from the State of which they form part without its consent merely by expressing their wish to do so, especially in the present case where Security Council resolution 1244 (1999) is applicable. He cautions that to accept otherwise and to allow any ethnic, linguistic or religious group to declare independence and break away from the State of which it forms part without the existing State's consent, and outside the context of decolonization, would create a very dangerous precedent, amounting to nothing less than announcing to any and all dissident groups around the world that they are free to circumvent international law simply by acting in a certain way and crafting a unilateral declaration of independence in certain terms. In the view of Judge Koroma, rather than reaching a conclusion on the identity of the authors of the unilateral declaration of independence based on their subjective intent, the Court should have looked to the intent of States and, in particular in this case, the intent of the Security Council in resolution 1244 (1999).

Judge Koroma establishes that Security Council resolution 1244 (1999) constitutes the legal basis for the creation of the Provisional Institutions of Self-Government of Kosovo, and therefore the Court has first and foremost to apply resolution 1244 (1999), as the lex specialis, to the matter before it. Applying resolution 1244 (1999), Judge Koroma concludes that the declaration of independence contravenes that resolution for several reasons. First, that resolution calls for a negotiated settlement, meaning the agreement of all the parties concerned with regard to the final status of Kosovo, which the authors of the declaration of independence have circumvented. Secondly, the declaration of independence violates the provision of that resolution calling for a political solution based on respect for the territorial integrity of the Federal Republic of Yugoslavia and the autonomy of Kosovo. Additionally, the unilateral declaration of independence is an attempt to bring to an end the international presence in Kosovo established by Security Council resolution 1244 (1999), a result which could only be effected by the Security Council itself. In this analysis, Judge Koroma draws on the text of resolution 1244 (1999) – in particular its preamble and operative paragraphs 1, 2, 10 and 11 – as well as other instruments it references, including its Annexes 1 and 2, the Helsinki Final Act and the Rambouillet accords. He also reviews the positions taken by various States with regard to resolution 1244 (1999).

Judge Koroma notes that the unilateral declaration of independence has also violated certain derivative law promulgated pursuant to resolution 1244 (1999), notably