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

 the Constitutional Framework and other UNMIK regulations. He observes that the majority opinion avoids this result by a kind of judicial sleight-of-hand, reaching a hasty conclusion that the authors of the unilateral declaration of independence were not acting as the Provisional Institutions of Self-Government of Kosovo but rather as the direct representatives of the Kosovo people and were thus not subject to the Constitutional Framework and UNMIK regulations.

Judge Koroma then proceeds to an examination of the accordance of the unilateral declaration of independence with general international law, concluding that it violated the principle of respect for the sovereignty and territorial integrity of States, which entails an obligation to respect the definition, delineation and territorial integrity of an existing State. In his analysis, Judge Koroma cites Article 2, paragraph 4, of the Charter of the United Nations, and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations.

Finally, Judge Koroma refers to the finding made by the Supreme Court of Canada that "international law does not specifically grant component parts of sovereign States the legal right to secede unilaterally from their `parent' State". While Judge Koroma takes the view that that Court correctly answered the question posed to it, he emphasizes that the question now before this Court is different and provides an opportunity to complete the picture partially drawn by the Supreme Court of Canada. In particular, this Court should have made clear that the applicable law in this case contains explicit and implicit rules against the unilateral declaration of independence.

Judge Koroma thus concludes that the Court should have found that the unilateral declaration of independence of 17 February 2008 by the Provisional Institutions of Self Government of Kosovo is not in accordance with international law.

Judge Simma concurs with the Court on the great majority of its reasoning, but questions what he considers to be its unnecessarily limited analysis. Judge Simma considers that, as the Advisory Opinion interprets the General Assembly's request to require only an assessment of whether or not the Kosovar declaration of independence was adopted in violation of international law, the Opinion not only ignores the plain wording of the request itself, which asks whether the declaration of independence was "in accordance with international law", but that it also excludes any consideration of whether international law may specifically permit or even foresee an entitlement to declare independence when certain conditions are met. Judge Simma finds this approach disquieting in the light of the Court's general conclusion that the declaration of independence "did not violate international law".

In Judge Simma's view, the underlying rationale of the Court's approach, that, in relation to a specific act, it is not necessary to demonstrate a permissive rule so long as there is no prohibition, is obsolete. He justifies this position for two reasons. First, by unduly limiting the scope of its analysis, the Court has not answered the question put