Page:ACCORDANCE WITH INTERNATIONAL LAW OF THE UNILATERAL DECLARATION OF INDEPENDENCE IN RESPECT OF KOSOVO Advisory opinion of 22 July 2010 179 e.pdf/26

 the Assembly of Kosovo as one of Kosovo's Provisional Institutions of Self-Government, and not by "persons who acted together in their capacity as representatives of the people of Kosovo outside the framework of the interim administration". Accordingly, the Court should have examined the legality of the declaration by reference to Security Council resolution 1244 (1999) and the Constitutional Framework.

Finally, Judge Sepúlveda-Amor observes that the Court could have taken a broader approach so as to elucidate a number of important legal issues not addressed in the Advisory Opinion. These include, inter alia, the scope of the right of self-determination, the powers of the Security Council in relation to the principle of territorial integrity, the question of "remedial secession", and State recognition.

Dissenting opinion of Judge Bennouna

1. The propriety of the Court giving an advisory opinion

Judge Bennouna could not subscribe to the conclusions reached by the Court in its Advisory Opinion, nor to its reasoning. The judge considers, firstly, that the Court should have exercised its discretionary powers and declined to respond to the question put by the General Assembly. It is the first time that the General Assembly has sought an advisory opinion on a question which was not, as such, on its agenda, and that had fallen under the exclusive jurisdiction of the Security Council for at least ten years or so, in particular since the latter decided to place the territory of Kosovo under international administration (resolution 1244 of 10 June 1999).

In the judge's view, if the Court had declined to respond to this request, it could have put a stop to any "frivolous" requests which political organs might be tempted to submit to it in future, and indeed thereby protected the integrity of its judicial function. The question of the compatibility of a request for an opinion with the functions of the Court and its judicial character still stands, even if no case of incompatibility has yet been recorded. In the Kosovo case, the Court has been confronted with a situation that has never occurred before, since it has ultimately been asked to set itself up as a political decision-maker, in the place of the Security Council. In other words, an attempt has been made, through this request for an advisory opinion, to have it take on the functions of a political organ of the United Nations, the Security Council, which the latter has not been able to carry out.

While pointing out that the Special Envoy of the Secretary-General, Mr. Martti Ahtisaari, advocated the independence of Kosovo in his report of 26 March 2007 on Kosovo's future status, and that the Security Council has made no finding in this respect, Judge Bennouna emphasizes that the Court cannot substitute itself for the Security Council in assessing the lawfulness of the unilateral declaration of independence. It is essential for the Court to ensure, in performing its advisory function, that it is not exploited in favour of one specifically political strategy or another, and, in this case in particular, not enlisted either in the campaign to gather as many recognitions as possible of Kosovo's independence by other States, or in the one to keep these to a minimum;