Page:ACCORDANCE WITH INTERNATIONAL LAW OF THE UNILATERAL DECLARATION OF INDEPENDENCE IN RESPECT OF KOSOVO Advisory opinion of 22 July 2010 179 e.pdf/31



The Court also notes that

1. In his separate opinion, composed of 15 parts, Judge Cançado Trindade explains how he has concurred with the conclusions that the Court has reached, on the basis of a reasoning distinct from that of the Court. He begins by laying the foundations of his own personal position on the matter at issue, by addressing, at first, the preliminary questions of jurisdiction and judicial propriety, with attention turned to the preponderant humanitarian aspects of the question put to the Court by the General Assembly, and to the Court's duty to exercise its advisory function, without attributing to so-called judicial "discretion" a dimension which it does not have. In his view, the Court's jurisdiction to deliver the present Advisory Opinion is established beyond doubt, on the basis of Article 65 (1) of its Statute; it is for the Court, as master of its own jurisdiction, to satisfy itself that the request for an Advisory Opinion comes from an organ endowed with competence to make it. The General Assembly is so authorized by Article 96 (1) of the United Nations Charter, to request an Advisory Opinion of the ICJ on "any legal question".

2. Moreover, the ICJ itself has lately pointed out (as to the interpretation of Article 12 of the United Nations Charter) that in recent years there has been an "increasing tendency" for the General Assembly and the Security Council to deal "in parallel" with the same matter concerning the maintenance of international peace and security: while the Security Council has tended to focus on the aspects of such matters related to international peace and security, the General Assembly has taken a broader view, considering also their humanitarian, social and economic aspects. Furthermore, in its jurisprudence constante, the ICJ has made it clear that it cannot attribute a political character to a request for an Advisory Opinion which invites it to undertake an "essentially judicial task" concerning the scope of obligations imposed by international law, namely, an assessment of "the legality of the possible conduct of States" in respect of obligations imposed upon them by international law. By adopting, on 8 October 2008, resolution 63/3, seeking an Advisory Opinion from the ICJ relating to the declaration of