Page:ACCORDANCE WITH INTERNATIONAL LAW OF THE UNILATERAL DECLARATION OF INDEPENDENCE IN RESPECT OF KOSOVO Advisory opinion of 22 July 2010 179 e.pdf/25

 Judge Keith then turns to the case law of the Court and in particular to the critical reason for its recognition that, as a principal organ of the United Nations, it should in principle respond to requests for opinions. The Court in cases decided over the last 50 years has regularly coupled that recognition with an indication of the interest which the requesting organ has in seeking an opinion from the Court. In the case of every one of the other requests made by the General Assembly or the Security Council, their interest has been manifest and did not need to be expressly stated in the request or discussed by participants in the proceedings or by the Court. In its most recent Advisory Opinion in 2004, the Court stated this proposition: "As is clear from the Court's jurisprudence, advisory opinions have the purpose of furnishing to the requesting organ the elements of law necessary for them in their action." (Emphasis added.) While the Court has made it clear that it will not evaluate the motives of the requesting organ it does in practice determine, if the issue arises, whether the requesting organ has or claims to have a sufficient interest in the subject-matter of the request.

In the absence of such an interest, the purpose of furnishing to the requesting organ the elements of law necessary for it in its action is not present. Consequently, the reason for the Court to co-operate does not exist and what is sometimes referred to as its duty to answer disappears.

In this case the Court, in Judge Keith's opinion, has no basis on which to reach the conclusion that the General Assembly, which has not itself made such a claim, has the necessary interest. Also very significant is the almost exclusive role of the Security Council on this matter. Given the centrality of that role for the substantive question asked (as appears from the Court's Opinion) and the apparent lack of an Assembly interest, Judge Keith concludes that the Court should exercise its discretion and refuse to answer the question put to it by the General Assembly.

Cases on which the Court relies in this context were not seen as affecting this conclusion. In all of them, both the General Assembly and the Security Council had a real interest, and none involved anything comparable to the régime of international territorial administration introduced by Security Council resolution 1244.

As is indicated by his vote, Judge Keith states that he agrees with the substantive ruling made by the Court, essentially for the reasons it gives.

Separate opinion of Judge Sepúlveda-Amor'

In his separate opinion, Judge Sepúlveda-Amor asserts that there are no compelling reasons for the Court to decline to exercise jurisdiction in respect of the General Assembly's request. Moreover, in his view, the Court has a duty, by virtue of its responsibilities in the maintenance of international peace and security under the United Nations Charter, to exercise its advisory function in respect of legal questions relating to Chapter VII situations.

Judge Sepúlveda-Amor is unable to agree with the Court's findings on the authors of the declaration of independence. In his opinion, the declaration was indeed adopted by