        INTERNATIONAL COURT OF JUSTICE

          REPORTS OF JUDGMENTS,
       ADVISORY OPINIONS AND ORDERS

CCORDANCE WITH INTERNATIONAL LAW
       OF THE UNILATERAL
  DECLARATION OF INDEPENDENCE
      IN RESPECT OF KOSOVO

      ADVISORY OPINION OF 22 JULY 2010

               2010
        COUR INTERNATIONALE DE JUSTICE

            RECUEIL DES ARRE| TS,
     AVIS CONSULTATIFS ET ORDONNANCES

CONFORMITEu AU DROIT INTERNATIONAL
        DE LA DE
               u CLARATION
   UNILATE
         u RALE D’INDEu PENDANCE
       RELATIVE AU KOSOVO

     AVIS CONSULTATIF DU 22 JUILLET 2010

                         Official citation :
 Accordance with International Law of the Unilateral Declaration
    of Independence in Respect of Kosovo, Advisory Opinion,
                   I.C.J. Reports 2010, p. 403

                   Mode officiel de citation :
  Conformité au droit international de la déclaration unilatérale
      d’indépendance relative au Kosovo, avis consultatif,
                  C.I.J. Recueil 2010, p. 403

                                           Sales number
SN 0074-4441
BN 978-92-1-071107-4
                                           No de vente :   997

                            22 JULY 2010

                        ADVISORY OPINION

ACCORDANCE WITH INTERNATIONAL LAW
        OF THE UNILATERAL
   DECLARATION OF INDEPENDENCE
       IN RESPECT OF KOSOVO

CONFORMITEu AU DROIT INTERNATIONAL
        DE LA DE
               u CLARATION
   UNILATE
         u RALE D’INDEu PENDANCE
       RELATIVE AU KOSOVO

                           22 JUILLET 2010

                         AVIS CONSULTATIF

                            TABLE OF CONTENTS
                                                                          Paragraphs

CHRONOLOGY OF THE PROCEDURE                                                    1-16
    I. JURISDICTION AND DISCRETION                                            17-48
       A. Jurisdiction                                                        18-28
       B. Discretion                                                          29-48
II. SCOPE AND MEANING OF THE QUESTION                                         49-56
II. FACTUAL BACKGROUND                                                        57-77
    A. Security Council resolution 1244 (1999) and the relevant
       UNMIK regulations                                                      58-63
    B. The relevant events in the final status process prior to
       17 February 2008                                                       64-73
    C. The events of 17 February 2008 and thereafter                          74-77
IV. THE QUESTION WHETHER THE DECLARATION OF INDEPENDENCE IS
    IN ACCORDANCE WITH INTERNATIONAL LAW                                     78-121
    A. General international law                                              79-84
    B. Security Council resolution 1244 (1999) and the UNMIK
       Constitutional Framework created thereunder                           85-121

         1. Interpretation of Security Council resolution 1244 (1999)        94-100

         2. The question whether the declaration of independence is
            in accordance with Security Council resolution 1244 (1999)
            and the measures adopted thereunder                             101-121
            (a) The identity of the authors of the declaration of inde-
                 pendence                                                   102-109
            (b) The question whether the authors of the declaration
                 of independence acted in violation of Security Council
                 resolution 1244 (1999) or the measures adopted there-
                 under                                                      110-121
V. GENERAL CONCLUSION                                                           122
OPERATIVE CLAUSE                                                                123

4

                INTERNATIONAL COURT OF JUSTICE

                                  YEAR 2010

                                  22 July 2010

ACCORDANCE WITH INTERNATIONAL LAW
        OF THE UNILATERAL
   DECLARATION OF INDEPENDENCE
       IN RESPECT OF KOSOVO

   Jurisdiction of the Court to give the advisory opinion requested.
   Article 65, paragraph 1, of the Statute — Article 96, paragraph 1, of the
Charter — Power of General Assembly to request advisory opinions — Arti-
cles 10 and 11 of the Charter — Contention that General Assembly acted out-
 ide its powers under the Charter — Article 12, paragraph 1, of the Charter —
Authorization to request an advisory opinion not limited by Article 12.

  Requirement that the question on which the Court is requested to give its
opinion is a “legal question” — Contention that the act of making a declaration
of independence is governed by domestic constitutional law — The Court can
 espond to the question by reference to international law without the need to
address domestic law — The fact that a question has political aspects does not
deprive it of its character as a legal question — The Court is not concerned with
 he political motives behind a request or the political implications which its
opinion may have.
  The Court has jurisdiction to give the advisory opinion requested.

                                      * *

   Discretion of the Court to decide whether it should give an opinion.
   Integrity of the Court’s judicial function — Only “compelling reasons” should
 ead the Court to decline to exercise its judicial function — The motives of indi-
vidual States which sponsor a resolution requesting an advisory opinion are not
 elevant to the Court’s exercise of its discretion — Requesting organ to assess
purpose, usefulness and political consequences of opinion.

    Delimitation of the respective powers of the Security Council and the General

5

Assembly — Nature of the Security Council’s involvement in relation to Kos-
ovo — Article 12 of the Charter does not bar action by the General Assembly in
 espect of threats to international peace and security which are before the Secu-
 ity Council — General Assembly has taken action with regard to the situation
 n Kosovo.
   No compelling reasons for Court to use its discretion not to give an advisory
opinion.

                                      * *

  Scope and meaning of the question.
  Text of the question in General Assembly resolution 63/3 — Power of the
Court to clarify the question — No need to reformulate the question posed by
 he General Assembly — For the proper exercise of its judicial function, the
Court must establish the identity of the authors of the declaration of independ-
ence — No intention by the General Assembly to restrict the Court’s freedom to
determine that issue — The Court’s task is to determine whether or not the decla-
 ation was adopted in violation of international law.

                                      * *

   Factual background.
   Framework for interim administration of Kosovo put in place by the Security
Council — Security Council resolution 1244 (1999) — Establishment of the
United Nations Interim Administration Mission in Kosovo (UNMIK) — Role
of Special Representative of the Secretary-General — “Four pillars” of the
UNMIK régime — Constitutional Framework for Provisional Self-Govern-
ment — Relations between the Provisional Institutions of Self-Government and
 he Special Representative of the Secretary-General.
   Relevant events in the final status process — Appointment by Secretary-
General of Special Envoy for the future status process for Kosovo — Guiding
Principles of the Contact Group — Failure of consultative process — Compre-
hensive Proposal for the Kosovo Status Settlement by Special Envoy — Failure
of negotiations on the future status of Kosovo under the auspices of the Troika —
Elections held for the Assembly of Kosovo on 17 November 2007 — Adoption of
 he declaration of independence on 17 February 2008.

                                      * *

   Whether the declaration of independence is in accordance with international
 aw.
   No prohibition of declarations of independence according to State practice —
Contention that prohibition of unilateral declarations of independence is implicit
 n the principle of territorial integrity — Scope of the principle of territorial
 ntegrity is confined to the sphere of relations between States — No general pro-
hibition may be inferred from the practice of the Security Council with regard to
declarations of independence — Issues relating to the extent of the right of self-

6

determination and the existence of any right of “remedial secession” are beyond
 he scope of the question posed by the General Assembly.

   General international law contains no applicable prohibition of declarations
of independence — Declaration of independence of 17 February 2008 did not
violate general international law.
   Security Council resolution 1244 and the Constitutional Framework — Reso-
 ution 1244 (1999) imposes international legal obligations and is part of the
applicable international law — Constitutional Framework possesses interna-
 ional legal character — Constitutional Framework is part of specific legal
order created pursuant to resolution 1244 (1999) — Constitutional Framework
 egulates matters which are the subject of internal law — Supervisory powers of
 he Special Representative of the Secretary-General — Security Council resolu-
 ion 1244 (1999) and the Constitutional Framework were in force and applica-
ble as at 17 February 2008 — Neither of them contains a clause providing for
 ermination and neither has been repealed — The Special Representative of the
Secretary-General continues to exercise his functions in Kosovo.
   Security Council resolution 1244 (1999) and the Constitutional Framework
 orm part of the international law to be considered in replying to the question
before the Court.
   Interpretation of Security Council resolutions — Resolution 1244 (1999)
established an international civil and security presence in Kosovo — Temporary
 uspension of exercise of Serbia’s authority flowing from its continuing sover-
eignty over the territory of Kosovo — Resolution 1244 (1999) created an
 nterim régime — Object and purpose of resolution 1244 (1999).

   Identity of the authors of the declaration of independence — Whether the dec-
 aration of independence was an act of the Assembly of Kosovo — Authors of
 he declaration did not seek to act within the framework of interim self-admin-
 stration of Kosovo — Authors undertook to fulfil the international obligations
of Kosovo — No reference in original Albanian text to the declaration being the
work of the Assembly of Kosovo — Silence of the Special Representative of the
Secretary-General — Authors of the declaration of independence acted together
 n their capacity as representatives of the people of Kosovo outside the frame-
work of the interim administration.

   Whether or not the authors of the declaration of independence acted in viola-
 ion of Security Council resolution 1244 (1999) — Resolution 1244 (1999)
addressed to United Nations Member States and organs of the United Nations —
No specific obligations addressed to other actors — The resolution did not con-
 ain any provision dealing with the final status of Kosovo — Security Council
did not reserve for itself the final determination of the situation in Kosovo —
Security Council resolution 1244 (1999) did not bar the authors of the declara-
 ion of 17 February 2008 from issuing a declaration of independence — Decla-
 ation of independence did not violate Security Council resolution 1244 (1999).

   Declaration of independence was not issued by the Provisional Institutions of
Self-Government — Declaration of independence did not violate the Constitu-
 ional Framework.
   Adoption of the declaration of independence did not violate any applicable
 ule of international law.

7

                           ADVISORY OPINION

Present : President OWADA ; Vice-President TOMKA ; Judges KOROMA,
          AL-KHASAWNEH, BUERGENTHAL, SIMMA, ABRAHAM, KEITH, SEPÚLVEDA-
          AMOR, BENNOUNA, SKOTNIKOV, CANÇADO TRINDADE, YUSUF, GREEN-
          WOOD ; Registrar COUVREUR.

 On the accordance with international law of the unilateral declaration of
ndependence in respect of Kosovo,
    THE COURT,
    composed as above,
    gives the following Advisory Opinion :
   1. The question on which the advisory opinion of the Court has been requested
 s set forth in resolution 63/3 adopted by the General Assembly of the United
Nations (hereinafter the General Assembly) on 8 October 2008. By a letter
dated 9 October 2008 and received in the Registry by facsimile on 10 Octo-
ber 2008, the original of which was received in the Registry on 15 Octo-
ber 2008, the Secretary-General of the United Nations officially communicated
 o the Court the decision taken by the General Assembly to submit the ques-
 ion for an advisory opinion. Certified true copies of the English and French
versions of the resolution were enclosed with the letter. The resolution reads as
 ollows :
       “The General Assembly,
       Mindful of the purposes and principles of the United Nations,
       Bearing in mind its functions and powers under the Charter of the
      United Nations,
       Recalling that on 17 February 2008 the Provisional Institutions of Self-
      Government of Kosovo declared independence from Serbia,

         Aware that this act has been received with varied reactions by the Mem-
      bers of the United Nations as to its compatibility with the existing inter-
      national legal order,
         Decides, in accordance with Article 96 of the Charter of the United
      Nations to request the International Court of Justice, pursuant to Arti-
      cle 65 of the Statute of the Court, to render an advisory opinion on the
      following question :
          ‘Is the unilateral declaration of independence by the Provisional Insti-
        tutions of Self-Government of Kosovo in accordance with international
        law ?’”
  2. By letters dated 10 October 2008, the Registrar, pursuant to Article 66,
paragraph 1, of the Statute, gave notice of the request for an advisory opinion
 o all States entitled to appear before the Court.
  3. By an Order dated 17 October 2008, in accordance with Article 66, para-
graph 2, of the Statute, the Court decided that the United Nations and its
Member States were likely to be able to furnish information on the question.

8

By the same Order, the Court fixed, respectively, 17 April 2009 as the time-limit
within which written statements might be submitted to it on the question, and
17 July 2009 as the time-limit within which States and organizations having
presented written statements might submit written comments on the other writ-
 en statements in accordance with Article 66, paragraph 4, of the Statute.

   The Court also decided that, taking account of the fact that the unilateral
declaration of independence of 17 February 2008 is the subject of the question
 ubmitted to the Court for an advisory opinion, the authors of the above dec-
 aration were considered likely to be able to furnish information on the ques-
 ion. It therefore further decided to invite them to make written contributions
 o the Court within the same time-limits.
   4. By letters dated 20 October 2008, the Registrar informed the United
Nations and its Member States of the Court’s decisions and transmitted to
 hem a copy of the Order. By letter of the same date, the Registrar informed the
authors of the above-mentioned declaration of independence of the Court’s
decisions, and transmitted to them a copy of the Order.
   5. Pursuant to Article 65, paragraph 2, of the Statute, on 30 January 2009
 he Secretary-General of the United Nations communicated to the Court a
dossier of documents likely to throw light upon the question. The dossier was
 ubsequently placed on the Court’s website.
   6. Within the time-limit fixed by the Court for that purpose, written state-
ments were filed, in order of their receipt, by : Czech Republic, France, Cyprus,
China, Switzerland, Romania, Albania, Austria, Egypt, Germany, Slovakia,
Russian Federation, Finland, Poland, Luxembourg, Libyan Arab Jamahiriya,
United Kingdom, United States of America, Serbia, Spain, Islamic Republic of
 ran, Estonia, Norway, Netherlands, Slovenia, Latvia, Japan, Brazil, Ireland,
Denmark, Argentina, Azerbaijan, Maldives, Sierra Leone and Bolivia.
The authors of the unilateral declaration of independence filed a written con-
 ribution. On 21 April 2009, the Registrar communicated copies of the written
 tatements and written contribution to all States having submitted a written
 tatement, as well as to the authors of the unilateral declaration of independ-
ence.
   7. On 29 April 2009, the Court decided to accept the written statement filed
by the Bolivarian Republic of Venezuela, submitted on 24 April 2009, after
expiry of the relevant time-limit. On 15 May 2009, the Registrar communicated
copies of this written statement to all States having submitted a written state-
ment, as well as to the authors of the unilateral declaration of independence.
   8. By letters dated 8 June 2009, the Registrar informed the United Nations
and its Member States that the Court had decided to hold hearings, opening on
1 December 2009, at which they could present oral statements and comments,
 egardless of whether or not they had submitted written statements and, as the
case may be, written comments. The United Nations and its Member States
were invited to inform the Registry, by 15 September 2009, if they intended to
 ake part in the oral proceedings. The letters further indicated that the authors
of the unilateral declaration of independence could present an oral contribution.

  By letter of the same date, the Registrar informed the authors of the uni-
ateral declaration of independence of the Court’s decision to hold hearings,
nviting them to indicate, within the same time-limit, whether they intended to
ake part in the oral proceedings.

9

   9. Within the time-limit fixed by the Court for that purpose, written com-
ments were filed, in order of their receipt, by : France, Norway, Cyprus, Serbia,
Argentina, Germany, Netherlands, Albania, Slovenia, Switzerland, Bolivia,
United Kingdom, United States of America and Spain. The authors of the uni-
 ateral declaration of independence submitted a written contribution regarding
 he written statements.
   10. Upon receipt of the above-mentioned written comments and written
contribution, the Registrar, on 24 July 2009, communicated copies thereof to
all States having submitted written statements, as well as to the authors of the
unilateral declaration of independence.
   11. By letters dated 30 July 2009, the Registrar communicated to the United
Nations, and to all of its Member States that had not participated in the writ-
 en proceedings, copies of all written statements and written comments, as well
as the written contributions of the authors of the unilateral declaration of inde-
pendence.
   12. By letters dated 29 September 2009, the Registry transmitted a detailed
 imetable of the hearings to those who, within the time-limit fixed for that pur-
pose by the Court, had expressed their intention to take part in the aforemen-
 ioned proceedings.
   13. Pursuant to Article 106 of the Rules of Court, the Court decided to make
 he written statements and written comments submitted to the Court, as well as
 he written contributions of the authors of the unilateral declaration of
 ndependence, accessible to the public, with effect from the opening of the oral
proceedings.
   14. In the course of hearings held from 1 to 11 December 2009, the Court
heard oral statements, in the following order, by :

or the Republic          H.E. Mr. Dušan T. Bataković, Ph.D. in History, Uni-
 of Serbia :               versity of Paris-Sorbonne (Paris IV), Ambassador of
                           the Republic of Serbia to France, Vice-Director of
                           the Institute for Balkan Studies and Assistant Pro-
                           fessor at the University of Belgrade, Head of Del-
                           egation,
                         Mr. Vladimir Djerić, S.J.D. (Michigan), Attorney at
                           Law, Mikijelj, Janković & Bogdanović, Belgrade,
                           Counsel and Advocate,
                         Mr. Andreas Zimmermann, LL.M. (Harvard), Profes-
                           sor of International Law, University of Potsdam,
                           Director of the Potsdam Center of Human Rights,
                           Member of the Permanent Court of Arbitration,
                           Counsel and Advocate,
                         Mr. Malcolm N. Shaw Q.C., Sir Robert Jennings Pro-
                           fessor of International Law, University of Leicester,
                           United Kingdom, Counsel and Advocate,

                         Mr. Marcelo G. Kohen, Professor of International
                          Law, Graduate Institute of International and Devel-
                          opment Studies, Geneva, Associate Member of the
                          Institut de droit international, Counsel and Advo-
                          cate,
                         Mr. Saša Obradović, Inspector General in the Ministry
                          of Foreign Affairs, Deputy Head of Delegation ;

10

or the authors          Mr. Skender Hyseni, Head of Delegation,
 of the unilateral      Sir Michael Wood, K.C.M.G., Member of the English
 declaration of           Bar Member of the International Law Commission,
 independence :           Counsel,
                        Mr. Daniel Müller, Researcher at the Centre de droit
                          international de Nanterre (CEDIN), University of
                          Paris Ouest, Nanterre-La Défense, Counsel,
                        Mr. Sean D. Murphy, Patricia Roberts Harris Research
                          Professor of Law, George Washington University,
                          Counsel ;
or the Republic         H.E. Mr. Gazmend Barbullushi, Ambassador Extraor-
 of Albania :             dinary and Plenipotentiary of the Republic of Alba-
                          nia to the Kingdom of the Netherlands, Legal
                          Adviser,
                        Mr. Jochen A. Frowein, M.C.L., Director emeritus of
                          the Max Planck Institute for International Law, Pro-
                          fessor emeritus of the University of Heidelberg,
                          Member of the Institute of International Law, Legal
                          Adviser,
                        Mr. Terry D. Gill, Professor of Military Law at the
                          University of Amsterdam and Associate Professor of
                          Public International Law at Utrecht University,
                          Legal Adviser ;
or the Federal          Ms Susanne Wasum-Rainer, Legal Adviser, Federal
 Republic of             Foreign Office (Berlin) ;
 Germany :
or the Kingdom of       H.E. Mr. Abdullah A. Alshaghrood, Ambassador of
 Saudi Arabia :           the Kingdom of Saudi Arabia to the Kingdom of the
                          Netherlands, Head of Delegation ;
or the Argentine        H.E. Madam Susana Ruiz Cerutti, Ambassador, Legal
 Republic :               Adviser to the Ministry of Foreign Affairs, Interna-
                          tional Trade and Worship, Head of Delegation ;

or the Republic         H.E. Mr. Helmut Tichy, Ambassador, Deputy Legal
 of Austria :             Adviser, Federal Ministry of European and Interna-
                          tional Affairs ;
or the Republic         H.E. Mr. Agshin Mehdiyev, Ambassador and Perma-
 of Azerbaijan :          nent Representative of Azerbaijan to the United
                          Nations ;
or the Republic         H.E. Madam Elena Gritsenko, Ambassador of the
 of Belarus :             Republic of Belarus to the Kingdom of the Nether-
                          lands, Head of Delegation ;
or the Plurinational    H.E. Mr. Roberto Calzadilla Sarmiento, Ambassador
 State of Bolivia :       of the Plurinational State of Bolivia to the Kingdom
                          of the Netherlands ;
or the Federative       H.E. Mr. José Artur Denot Medeiros, Ambassador of
 Republic of Brazil :     the Federative Republic of Brazil to the Kingdom of
                          the Netherlands ;

11

or the Republic        Mr. Zlatko Dimitroff, S.J.D., Director of the Interna-
 of Bulgaria :           tional Law Department, Ministry of Foreign Affairs,
                         Head of Delegation ;
or the Republic        Mr. Thomas Barankitse, Legal Attaché, Counsel,
 of Burundi :          Mr. Jean d’Aspremont, Associate Professor, Univer-
                         sity of Amsterdam, Chargé de cours invité, Catholic
                         University of Louvain, Counsel ;
or the People’s        H.E. Madam Xue Hanqin, Ambassador to the Asso-
 Republic of China :     ciation of Southeast Asian Nations (ASEAN), Legal
                         Counsel of the Ministry of Foreign Affairs, Member
                         of the International Law Commission, Member of
                         the Institut de droit international, Head of Delega-
                         tion ;
or the Republic        H.E. Mr. James Droushiotis, Ambassador of the
 of Cyprus :             Republic of Cyprus to the Kingdom of the Nether-
                         lands,
                       Mr. Vaughan Lowe Q.C., Member of the English Bar,
                         Chichele Professor of International Law, University
                         of Oxford, Counsel and Advocate,

                       Mr. Polyvios G. Polyviou, Counsel and Advocate ;
or the Republic        H.E. Madam Andreja Metelko-Zgombić, Ambassador,
 of Croatia :            Chief Legal Adviser in the Ministry of Foreign
                         Affairs and European Integration ;
or the Kingdom         H.E. Mr. Thomas Winkler, Ambassador, Under-
 of Denmark :            Secretary for Legal Affairs, Ministry of Foreign
                         Affairs, Head of Delegation ;
or the Kingdom         Ms Concepción Escobar Hernández, Legal Adviser,
 of Spain :              Head of the International Law Department, Minis-
                         try of Foreign Affairs and Co-operation, Head of
                         Delegation and Advocate ;
or the United States   Mr. Harold Hongju Koh, Legal Adviser, Department
 of America :            of State, Head of Delegation and Advocate ;
or the Russian         H.E. Mr. Kirill Gevorgian, Ambassador, Head of the
 Federation :            Legal Department, Ministry of Foreign Affairs,
                         Head of Delegation ;
or the Republic        Ms Päivi Kaukoranta, Director General, Legal Serv-
 of Finland :            ice, Ministry of Foreign Affairs,

                       Mr. Martti Koskenniemi, Professor at the University
                         of Helsinki ;
or the French          Ms Edwige Belliard, Director of Legal Affairs, Minis-
 Republic :              try of Foreign and European Affairs,
                       Mr. Mathias Forteau, Professor at the University of
                         Paris Ouest, Nanterre-La Défense ;
or the Hashemite       H.R.H. Prince Zeid Raad Zeid Al Hussein, Ambassa-
 Kingdom of              dor of the Hashemite Kingdom of Jordan to the
 Jordan :                United States of America, Head of Delegation ;

12

or the Kingdom          Mr. Rolf Einar Fife, Director General, Legal Affairs
 of Norway :             Department, Ministry of Foreign Affairs, Head of
                         Delegation ;
or the Kingdom          Ms Liesbeth Lijnzaad, Legal Adviser, Ministry of For-
 of the Nether-          eign Affairs ;
 lands :
or Romania :            Mr. Bogdan Aurescu, Secretary of State, Ministry of
                          Foreign Affairs,
                        Mr. Cosmin Dinescu, Director-General for Legal
                          Affairs, Ministry of Foreign Affairs ;
or the United           Mr. Daniel Bethlehem Q.C., Legal Adviser to the For-
 Kingdom of Great         eign and Commonwealth Office, Representative of
 Britain and North-       the United Kingdom of Great Britain and North-
 ern Ireland :            ern Ireland, Counsel and Advocate,
                        Mr. James Crawford, S.C., Whewell Professor of Inter-
                          national Law, University of Cambridge, Member of
                          the Institut de droit international, Counsel and
                          Advocate ;
or the Bolivarian       Mr. Alejandro Fleming, Deputy Minister for Europe
 Republic of              of the Ministry of the People’s Power for Foreign
 Venezuela :              Affairs ;
or the Socialist        H.E. Madam Nguyen Thi Hoang Anh, Doctor of Law,
 Republic of              Director-General, Department of International
 Viet Nam :               Law and Treaties, Ministry of Foreign Affairs.

   15. Questions were put by Members of the Court to participants in the oral
proceedings ; several of them replied in writing, as requested, within the pre-
 cribed time-limit.
   16. Judge Shi took part in the oral proceedings ; he subsequently resigned
 rom the Court with effect from 28 May 2010.

                                    * * *

                      I. JURISDICTION AND DISCRETION

   17. When seised of a request for an advisory opinion, the Court must
first consider whether it has jurisdiction to give the opinion requested and
whether, should the answer be in the affirmative, there is any reason why
 he Court, in its discretion, should decline to exercise any such jurisdic-
 ion in the case before it (Legality of the Threat or Use of Nuclear Weap-
ons, Advisory Opinion, I.C.J. Reports 1996 (I), p. 232, para. 10 ; Legal
Consequences of the Construction of a Wall in the Occupied Palestinian
Territory, Advisory Opinion, I.C.J. Reports 2004 (I), p. 144, para. 13).

                               A. Jurisdiction
  18. The Court will thus first address the question whether it possesses

13

 urisdiction to give the advisory opinion requested by the General Assem-
bly on 8 October 2008. The power of the Court to give an advisory
opinion is based upon Article 65, paragraph 1, of its Statute, which pro-
vides that :
       “The Court may give an advisory opinion on any legal question at
     the request of whatever body may be authorized by or in accordance
     with the Charter of the United Nations to make such a request.”

  19. In its application of this provision, the Court has indicated that :
       “It is . . . a precondition of the Court’s competence that the advi-
     sory opinion be requested by an organ duly authorized to seek it
     under the Charter, that it be requested on a legal question, and that,
     except in the case of the General Assembly or the Security Council,
     that question should be one arising within the scope of the activities
     of the requesting organ.” (Application for Review of Judgement
     No. 273 of the United Nations Administrative Tribunal, Advisory
     Opinion, I.C.J. Reports 1982, pp. 333-334, para. 21.)
   20. It is for the Court to satisfy itself that the request for an advisory
opinion comes from an organ of the United Nations or a specialized
agency having competence to make it. The General Assembly is author-
 zed to request an advisory opinion by Article 96 of the Charter, which
provides that :
        “1. The General Assembly or the Security Council may request
     the International Court of Justice to give an advisory opinion on any
     legal question.
        2. Other organs of the United Nations and specialized agencies,
     which may at any time be so authorized by the General Assembly,
     may also request advisory opinions of the Court on legal questions
     arising within the scope of their activities.”

   21. While paragraph 1 of Article 96 confers on the General Assembly
 he competence to request an advisory opinion on “any legal question”,
 he Court has sometimes in the past given certain indications as to the
relationship between the question which is the subject of a request for an
advisory opinion and the activities of the General Assembly (Interpreta-
 ion of Peace Treaties with Bulgaria, Hungary and Romania, First Phase,
Advisory Opinion, I.C.J. Reports 1950, p. 70 ; Legality of the Threat or
Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I),
pp. 232-233, paras. 11-12 ; Legal Consequences of the Construction of a
Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J.
Reports 2004 (I), p. 145, paras. 16-17).
   22. The Court observes that Article 10 of the Charter provides that :
       “The General Assembly may discuss any questions or any matters
     within the scope of the present Charter or relating to the powers and

14

     functions of any organs provided for in the present Charter, and,
     except as provided in Article 12, may make recommendations to the
     Members of the United Nations or to the Security Council or to
     both on any such questions or matters.”

Moreover, Article 11, paragraph 2, of the Charter has specifically pro-
vided the General Assembly with competence to discuss “any questions
relating to the maintenance of international peace and security brought
before it by any Member of the United Nations” and, subject again to
 he limitation in Article 12, to make recommendations with respect
 hereto.
   23. Article 12, paragraph 1, of the Charter provides that :
       “While the Security Council is exercising in respect of any dispute
     or situation the functions assigned to it in the present Charter, the
     General Assembly shall not make any recommendation with regard
     to that dispute or situation unless the Security Council so requests.”

   24. In the present proceedings, it was suggested that, since the Security
Council was seised of the situation in Kosovo, the effect of Article 12,
paragraph 1, was that the General Assembly’s request for an advisory
opinion was outside its powers under the Charter and thus did not fall
within the authorization conferred by Article 96, paragraph 1. As the
Court has stated on an earlier occasion, however, “[a] request for an
advisory opinion is not in itself a ‘recommendation’ by the General
Assembly ‘with regard to [a] dispute or situation’” (Legal Consequences
of the Construction of a Wall in the Occupied Palestinian Territory, Advi-
sory Opinion, I.C.J. Reports 2004 (I), p. 148, para. 25). Accordingly,
while Article 12 may limit the scope of the action which the General
Assembly may take subsequent to its receipt of the Court’s opinion (a
matter on which it is unnecessary for the Court to decide in the present
context), it does not in itself limit the authorization to request an advi-
sory opinion which is conferred upon the General Assembly by Arti-
cle 96, paragraph 1. Whether the delimitation of the respective powers of
 he Security Council and the General Assembly — of which Article 12 is
one aspect — should lead the Court, in the circumstances of the present
case, to decline to exercise its jurisdiction to render an advisory opinion is
another matter (which the Court will consider in paragraphs 29 to 48
below).
   25. It is also for the Court to satisfy itself that the question on which
 t is requested to give its opinion is a “legal question” within the meaning
of Article 96 of the Charter and Article 65 of the Statute. In the present
case, the question put to the Court by the General Assembly asks
whether the declaration of independence to which it refers is “in accord-
ance with international law”. A question which expressly asks the Court
whether or not a particular action is compatible with international law

15

certainly appears to be a legal question ; as the Court has remarked on a
previous occasion, questions “framed in terms of law and rais[ing] prob-
 ems of international law . . . are by their very nature susceptible of a
reply based on law” (Western Sahara, Advisory Opinion, I.C.J. Reports
1975, p. 18, para. 15) and therefore appear to be questions of a legal
character for the purposes of Article 96 of the Charter and Article 65 of
 he Statute.
   26. Nevertheless, some of the participants in the present proceedings
have suggested that the question posed by the General Assembly is not,
 n reality, a legal question. According to this submission, international
 aw does not regulate the act of making a declaration of independence,
which should be regarded as a political act ; only domestic constitutional
 aw governs the act of making such a declaration, while the Court’s juris-
diction to give an advisory opinion is confined to questions of interna-
 ional law. In the present case, however, the Court has not been asked to
give an opinion on whether the declaration of independence is in accord-
ance with any rule of domestic law but only whether it is in accordance
with international law. The Court can respond to that question by refer-
ence to international law without the need to enquire into any system of
domestic law.
   27. Moreover, the Court has repeatedly stated that the fact that a
question has political aspects does not suffice to deprive it of its character
as a legal question (Application for Review of Judgement No. 158 of the
United Nations Administrative Tribunal, Advisory Opinion, I.C.J. Reports
1973, p. 172, para. 14). Whatever its political aspects, the Court cannot
refuse to respond to the legal elements of a question which invites it to
discharge an essentially judicial task, namely, in the present case, an
assessment of an act by reference to international law. The Court has also
made clear that, in determining the jurisdictional issue of whether it is
confronted with a legal question, it is not concerned with the political
nature of the motives which may have inspired the request or the political
 mplications which its opinion might have (Conditions of Admission of a
State to Membership in the United Nations (Article 4 of the Charter),
Advisory Opinion, 1948, I.C.J. Reports 1947-1948, p. 61, and Legality of
 he Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports
1996 (I), p. 234, para. 13).
   28. The Court therefore considers that it has jurisdiction to give an
advisory opinion in response to the request made by the General Assem-
bly.

                               B. Discretion
 29. The fact that the Court has jurisdiction does not mean, however,
hat it is obliged to exercise it :
       “The Court has recalled many times in the past that Article 65,
     paragraph 1, of its Statute, which provides that ‘The Court may give
     an advisory opinion . . .’ (emphasis added), should be interpreted to

16

     mean that the Court has a discretionary power to decline to give an
     advisory opinion even if the conditions of jurisdiction are met.”
     (Legal Consequences of the Construction of a Wall in the Occupied
     Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I),
     p. 156, para. 44.)
The discretion whether or not to respond to a request for an advisory
opinion exists so as to protect the integrity of the Court’s judicial func-
 ion and its nature as the principal judicial organ of the United Nations
 Status of Eastern Carelia, Advisory Opinion, 1923, P.C.I.J., Series B,
No. 5, p. 29 ; Application for Review of Judgement No. 158 of the United
Nations Administrative Tribunal, Advisory Opinion, I.C.J. Reports 1973,
p. 175, para. 24 ; Application for Review of Judgement No. 273 of the
United Nations Administrative Tribunal, Advisory Opinion, I.C.J. Reports
1982, p. 334, para. 22 ; and Legal Consequences of the Construction of a
Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J.
Reports 2004 (I), pp. 156-157, paras. 44-45).
   30. The Court is, nevertheless, mindful of the fact that its answer to
a request for an advisory opinion “represents its participation in the
activities of the Organization, and, in principle, should not be refused”
 Interpretation of Peace Treaties with Bulgaria, Hungary and Romania,
First Phase, Advisory Opinion, I.C.J. Reports 1950, p. 71 ; Difference Relat-
 ng to Immunity from Legal Process of a Special Rapporteur of the Commis-
sion on Human Rights, Advisory Opinion, I.C.J. Reports 1999 (I),
pp. 78-79, para. 29 ; Legal Consequences of the Construction of a Wall in
 he Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports
2004 (I), p. 156, para. 44). Accordingly, the consistent jurisprudence
of the Court has determined that only “compelling reasons” should lead
 he Court to refuse its opinion in response to a request falling within its
 urisdiction (Judgments of the Administrative Tribunal of the ILO upon
Complaints Made against Unesco, I.C.J. Reports 1956, p. 86 ; Legal Conse-
quences of the Construction of a Wall in the Occupied Palestinian
Territory, Advisory Opinion, I.C.J. Reports 2004 (I), p. 156, para. 44).
   31. The Court must satisfy itself as to the propriety of the exercise of
 ts judicial function in the present case. It has therefore given careful con-
sideration as to whether, in the light of its previous jurisprudence, there
are compelling reasons for it to refuse to respond to the request from the
General Assembly.
   32. One argument, advanced by a number of participants in the present
proceedings, concerns the motives behind the request. Those participants
drew attention to a statement made by the sole sponsor of the resolution
by which the General Assembly requested the Court’s opinion to the
effect that
     “the Court’s advisory opinion would provide politically neutral, yet
     judicially authoritative, guidance to many countries still deliberating
     how to approach unilateral declarations of independence in line with
     international law.

17

     . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
        Supporting this draft resolution would also serve to reaffirm a
     fundamental principle : the right of any Member State of the United
     Nations to pose a simple, basic question on a matter it considers
     vitally important to the Court. To vote against it would be in effect
     a vote to deny the right of any country to seek — now or in the
     future — judicial recourse through the United Nations system.”
     (A/63/PV.22, p. 1.)

According to those participants, this statement demonstrated that the
opinion of the Court was being sought not in order to assist the General
Assembly but rather to serve the interests of one State and that the Court
should, therefore, decline to respond.
   33. The advisory jurisdiction is not a form of judicial recourse for
States but the means by which the General Assembly and the Security
Council, as well as other organs of the United Nations and bodies spe-
cifically empowered to do so by the General Assembly in accordance with
Article 96, paragraph 2, of the Charter, may obtain the Court’s opinion
 n order to assist them in their activities. The Court’s opinion is given not
 o States but to the organ which has requested it (Interpretation of Peace
Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory
Opinion, I.C.J. Reports 1950, p. 71). Nevertheless, precisely for that rea-
son, the motives of individual States which sponsor, or vote in favour of,
a resolution requesting an advisory opinion are not relevant to the
Court’s exercise of its discretion whether or not to respond. As the Court
put it in its Advisory Opinion on Legality of the Threat or Use of
Nuclear Weapons,

     “once the Assembly has asked, by adopting a resolution, for an advi-
     sory opinion on a legal question, the Court, in determining whether
     there are any compelling reasons for it to refuse to give such an
     opinion, will not have regard to the origins or to the political history
     of the request, or to the distribution of votes in respect of the
     adopted resolution” (I.C.J. Reports 1996 (I), p. 237, para. 16).

   34. It was also suggested by some of those participating in the pro-
ceedings that resolution 63/3 gave no indication of the purpose for which
 he General Assembly needed the Court’s opinion and that there was
nothing to indicate that the opinion would have any useful legal effect.
This argument cannot be accepted. The Court has consistently made
clear that it is for the organ which requests the opinion, and not for the
Court, to determine whether it needs the opinion for the proper perform-
ance of its functions. In its Advisory Opinion on Legality of the Threat
or Use of Nuclear Weapons, the Court rejected an argument that it

18

should refuse to respond to the General Assembly’s request on the
ground that the General Assembly had not explained to the Court the
purposes for which it sought an opinion, stating that
     “it is not for the Court itself to purport to decide whether or not an
     advisory opinion is needed by the Assembly for the performance of
     its functions. The General Assembly has the right to decide for itself
     on the usefulness of an opinion in the light of its own needs.” (I.C.J.
     Reports 1996 (I), p. 237, para. 16.)
Similarly, in the Advisory Opinion on Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory, the Court
commented that “[t]he Court cannot substitute its assessment of the
usefulness of the opinion requested for that of the organ that seeks
such opinion, namely the General Assembly” (I.C.J. Reports 2004 (I),
p. 163, para. 62).
   35. Nor does the Court consider that it should refuse to respond to the
General Assembly’s request on the basis of suggestions, advanced by
some of those participating in the proceedings, that its opinion might
 ead to adverse political consequences. Just as the Court cannot substi-
 ute its own assessment for that of the requesting organ in respect of
whether its opinion will be useful to that organ, it cannot — in particular
where there is no basis on which to make such an assessment — substi-
 ute its own view as to whether an opinion would be likely to have an
adverse effect. As the Court stated in its Advisory Opinion on Legality of
 he Threat or Use of Nuclear Weapons, in response to a submission that
a reply from the Court might adversely affect disarmament negotiations,
 aced with contrary positions on this issue “there are no evident criteria
by which it can prefer one assessment to another” (Legality of the Threat
or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I),
p. 237, para. 17 ; see also Western Sahara, Advisory Opinion, I.C.J. Rep-
orts 1975, p. 37, para. 73 ; and Legal Consequences of the Construc-
 ion of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
I.C.J. Reports 2004 (I), pp. 159-160, paras. 51-54).

   36. An important issue which the Court must consider is whether, in
view of the respective roles of the Security Council and the General
Assembly in relation to the situation in Kosovo, the Court, as the
principal judicial organ of the United Nations, should decline to answer
 he question which has been put to it on the ground that the request for
 he Court’s opinion has been made by the General Assembly rather than the
Security Council.
   37. The situation in Kosovo had been the subject of action by the
Security Council, in the exercise of its responsibility for the maintenance
of international peace and security, for more than ten years prior to the
present request for an advisory opinion. The Council first took action
specifically relating to the situation in Kosovo on 31 March 1998, when it

19

adopted resolution 1160 (1998). That was followed by resolutions
1199 (1998), 1203 (1998) and 1239 (1999). On 10 June 1999, the Council
adopted resolution 1244 (1999), which authorized the creation of an
 nternational military presence (subsequently known as “KFOR”) and an
 nternational civil presence (the United Nations Interim Administration
Mission in Kosovo, “UNMIK”) and laid down a framework for the
administration of Kosovo. By resolution 1367 (2001), the Security Council
decided to terminate the prohibitions on the sale or supply of arms est-
ablished by paragraph 8 of resolution 1160 (1998). The Security Council
has received periodic reports from the Secretary-General on the activities
of UNMIK. The dossier submitted to the Court by the Secretary-
General records that the Security Council met to consider the situation in
Kosovo on 29 occasions between 2000 and the end of 2008. Although the
declaration of independence which is the subject of the present request
was discussed by the Security Council, the Council took no action in
respect of it (Security Council, provisional verbatim record, 18 Febru-
ary 2008, 3 p.m. (S/PV.5839) ; Security Council, provisional verbatim
record, 11 March 2008, 3 p.m. (S/PV.5850)).

   38. The General Assembly has also adopted resolutions relating to the
situation in Kosovo. Prior to the adoption by the Security Council of
resolution 1244 (1999), the General Assembly adopted five resolutions on
 he situation of human rights in Kosovo (resolutions 49/204, 50/190,
51/111, 52/139 and 53/164). Following resolution 1244 (1999), the Gen-
eral Assembly adopted one further resolution on the situation of human
rights in Kosovo (resolution 54/183 of 17 December 1999) and 15 reso-
 utions concerning the financing of UNMIK (resolutions 53/241, 54/245A,
54/245B, 55/227A, 55/227B, 55/295, 57/326, 58/305, 59/286A, 59/286B,
60/275, 61/285, 62/262, 63/295 and 64/279). However, the broader situa-
 ion in Kosovo was not part of the agenda of the General Assembly at
 he time of the declaration of independence and it was therefore neces-
sary in September 2008 to create a new agenda item for the consideration
of the proposal to request an opinion from the Court.
   39. Against this background, it has been suggested that, given the
respective powers of the Security Council and the General Assembly, if
 he Court’s opinion were to be sought regarding whether the declaration
of independence was in accordance with international law, the request
should rather have been made by the Security Council and that this fact
constitutes a compelling reason for the Court not to respond to the
request from the General Assembly. That conclusion is said to follow
both from the nature of the Security Council’s involvement and the fact
 hat, in order to answer the question posed, the Court will necessarily
have to interpret and apply Security Council resolution 1244 (1999) in
order to determine whether or not the declaration of independence is in
accordance with international law.
   40. While the request put to the Court concerns one aspect of a situa-
 ion which the Security Council has characterized as a threat to interna-

20

 ional peace and security and which continues to feature on the agenda of
 he Council in that capacity, that does not mean that the General Assem-
bly has no legitimate interest in the question. Articles 10 and 11 of the
Charter, to which the Court has already referred, confer upon the
General Assembly a very broad power to discuss matters within the scope
of the activities of the United Nations, including questions relating to
 nternational peace and security. That power is not limited by the res-
ponsibility for the maintenance of international peace and security which
 s conferred upon the Security Council by Article 24, paragraph 1. As the
Court has made clear in its Advisory Opinion on Legal Consequences of
 he Construction of a Wall in the Occupied Palestinian Territory, para-
graph 26, “Article 24 refers to a primary, but not necessarily exclusive,
competence”. The fact that the situation in Kosovo is before the Security
Council and the Council has exercised its Chapter VII powers in respect
of that situation does not preclude the General Assembly from discussing
any aspect of that situation, including the declaration of independence.
The limit which the Charter places upon the General Assembly to protect
 he role of the Security Council is contained in Article 12 and restricts the
power of the General Assembly to make recommendations following a
discussion, not its power to engage in such a discussion.
   41. Moreover, Article 12 does not bar all action by the General
Assembly in respect of threats to international peace and security which
are before the Security Council. The Court considered this question in
some detail in paragraphs 26 to 27 of its Advisory Opinion on Legal
Consequences of the Construction of a Wall in the Occupied Palestinian
Territory, in which the Court noted that there has been an increasing ten-
dency over time for the General Assembly and the Security Council to
deal in parallel with the same matter concerning the maintenance of
 nternational peace and security and observed that it is often the case
 hat, 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.
   42. The Court’s examination of this subject in its Advisory Opinion on
Legal Consequences of the Construction of a Wall in the Occupied Pal-
estinian Territory was made in connection with an argument relating to
whether or not the Court possessed the jurisdiction to give an advisory
opinion, rather than whether it should exercise its discretion not to give
an opinion. In the present case, the Court has already held that Article 12
of the Charter does not deprive it of the jurisdiction conferred by Arti-
cle 96, paragraph 1 (paragraphs 23 to 24 above). It considers, however,
 hat the analysis contained in the 2004 Advisory Opinion is also pertinent
 o the issue of discretion in the present case. That analysis demonstrates
 hat the fact that a matter falls within the primary responsibility of the
Security Council for situations which may affect the maintenance of
 nternational peace and security and that the Council has been exercising
 ts powers in that respect does not preclude the General Assembly from

21

discussing that situation or, within the limits set by Article 12, making
recommendations with regard thereto. In addition, as the Court pointed
out in its 2004 Advisory Opinion, General Assembly resolution 377A (V)
 “Uniting for Peace”) provides for the General Assembly to make rec-
ommendations for collective measures to restore international peace and
security in any case where there appears to be a threat to the peace,
breach of the peace or act of aggression and the Security Council is
unable to act because of lack of unanimity of the permanent members
 Legal Consequences of the Construction of a Wall in the Occupied Pal-
estinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), p. 150,
para. 30). These considerations are of relevance to the question whether
 he delimitation of powers between the Security Council and the General
Assembly constitutes a compelling reason for the Court to decline to
respond to the General Assembly’s request for an opinion in the present
case.
   43. It is true, of course, that the facts of the present case are quite
different from those of the Advisory Opinion on Legal Consequences of
 he Construction of a Wall in the Occupied Palestinian Territory. The
situation in the occupied Palestinian territory had been under active con-
sideration by the General Assembly for several decades prior to its deci-
sion to request an opinion from the Court and the General Assembly had
discussed the precise subject on which the Court’s opinion was sought. In
 he present case, with regard to the situation in Kosovo, it was the Secu-
rity Council which had been actively seised of the matter. In that context,
 t discussed the future status of Kosovo and the declaration of independ-
ence (see paragraph 37 above).
   44. However, the purpose of the advisory jurisdiction is to enable
organs of the United Nations and other authorized bodies to obtain
opinions from the Court which will assist them in the future exercise of
 heir functions. The Court cannot determine what steps the General
Assembly may wish to take after receiving the Court’s opinion or what
effect that opinion may have in relation to those steps. As the preceding
paragraphs demonstrate, the General Assembly is entitled to discuss the
declaration of independence and, within the limits considered in para-
graph 42, above, to make recommendations in respect of that or other
aspects of the situation in Kosovo without trespassing on the powers of
 he Security Council. That being the case, the fact that, hitherto, the decla-
ration of independence has been discussed only in the Security Council
and that the Council has been the organ which has taken action with
regard to the situation in Kosovo does not constitute a compelling reason
 or the Court to refuse to respond to the request from the General
Assembly.
   45. Moreover, while it is the scope for future discussion and action
which is the determining factor in answering this objection to the Court
rendering an opinion, the Court also notes that the General Assembly
has taken action with regard to the situation in Kosovo in the past. As
stated in paragraph 38 above, between 1995 and 1999, the General

22

Assembly adopted six resolutions addressing the human rights situation
 n Kosovo. The last of these, resolution 54/183, was adopted on 17 Decem-
ber 1999, some six months after the Security Council had adopted resolu-
 ion 1244 (1999). While the focus of this resolution was on human rights
and humanitarian issues, it also addressed (in para. 7) the General
Assembly’s concern about a possible “cantonization” of Kosovo. In
addition, since 1999 the General Assembly has each year approved, in
accordance with Article 17, paragraph 1, of the Charter, the budget of
UNMIK (see paragraph 38 above). The Court observes therefore that
 he General Assembly has exercised functions of its own in the situation
 n Kosovo.

   46. Further, in the view of the Court, the fact that it will necessarily
have to interpret and apply the provisions of Security Council resolu-
 ion 1244 (1999) in the course of answering the question put by the Gen-
eral Assembly does not constitute a compelling reason not to respond to
 hat question. While the interpretation and application of a decision of
one of the political organs of the United Nations is, in the first place, the
responsibility of the organ which took that decision, the Court, as the
principal judicial organ of the United Nations, has also frequently been
required to consider the interpretation and legal effects of such decisions.
It has done so both in the exercise of its advisory jurisdiction (see for
example, Certain Expenses of the United Nations (Article 17, para-
graph 2, of the Charter), Advisory Opinion, I.C.J. Reports 1962, p. 175 ;
and Legal Consequences for States of the Continued Presence of South
Africa in Namibia (South West Africa) notwithstanding Security Council
Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, pp. 51-54,
paras. 107-116), and in the exercise of its contentious jurisdiction (see for
example, Questions of Interpretation and Application of the 1971 Mon-
 real Convention arising from the Aerial Incident at Lockerbie (Libyan
Arab Jamahiriya v. United Kingdom), Provisional Measures, Order of
14 April 1992, I.C.J. Reports 1992, p. 15, paras. 39-41 ; Questions of
Interpretation and Application of the 1971 Montreal Convention arising
 rom the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United
States of America), Provisional Measures, Order of 14 April 1992, I.C.J.
Reports 1992, pp. 126-127, paras. 42-44).
   47. There is, therefore, nothing incompatible with the integrity of the
 udicial function in the Court undertaking such a task. The question is,
rather, whether it should decline to undertake that task unless it is the
organ which has taken the decision that asks the Court to do so. In its
Advisory Opinion on Certain Expenses of the United Nations, however,
 he Court responded to the question posed by the General Assembly,
even though this necessarily required it to interpret a number of Security
Council resolutions (namely, resolutions 143, 145 and 146 of 1960 and
161 and 169 of 1961) (Certain Expenses of the United Nations (Arti-
cle 17, paragraph 2, of the Charter), Advisory Opinion, I.C.J. Reports
1962, pp. 175-177). The Court also notes that, in its Advisory Opinion on

23

Conditions of Admission of a State to Membership in the United Nations
(Article 4 of the Charter) (I.C.J. Reports 1947-1948, pp. 61-62), it
responded to a request from the General Assembly even though that
request referred to statements made in a meeting of the Security Council
and it had been submitted that the Court should therefore exercise its dis-
cretion to decline to reply (I.C.J. Pleadings, Conditions of Admission of
a State to Membership in the United Nations (Article 4 of the Charter),
p. 90). Where, as here, the General Assembly has a legitimate interest in
 he answer to a question, the fact that that answer may turn, in part, on
a decision of the Security Council is not sufficient to justify the Court in
declining to give its opinion to the General Assembly.
   48. Accordingly, the Court considers that there are no compelling rea-
sons for it to decline to exercise its jurisdiction in respect of the present
request.

                II. SCOPE AND MEANING OF THE QUESTION

   49. The Court will now turn to the scope and meaning of the question
on which the General Assembly has requested that it give its opinion.
The General Assembly has formulated that question in the following
 erms :
       “Is the unilateral declaration of independence by the Provisional
     Institutions of Self-Government of Kosovo in accordance with inter-
     national law ?”
   50. The Court recalls that in some previous cases it has departed from
 he language of the question put to it where the question was not
adequately formulated (see for example, in Interpretation of the Greco-
Turkish Agreement of 1 December 1926 (Final Protocol, Article IV),
Advisory Opinion, 1928, P.C.I.J., Series B, No. 16) or where the Court
determined, on the basis of its examination of the background to the
request, that the request did not reflect the “legal questions really in
 ssue” (Interpretation of the Agreement of 25 March 1951 between the
WHO and Egypt, Advisory Opinion, I.C.J. Reports 1980, p. 89, para. 35).
Similarly, where the question asked was unclear or vague, the Court has
clarified the question before giving its opinion (Application for Review of
Judgement No. 273 of the United Nations Administrative Tribunal, Advi-
sory Opinion, I.C.J. Reports 1982, p. 348, para. 46).
   51. In the present case, the question posed by the General Assembly is
clearly formulated. The question is narrow and specific ; it asks for the
Court’s opinion on whether or not the declaration of independence is in
accordance with international law. It does not ask about the legal conse-
quences of that declaration. In particular, it does not ask whether or not
Kosovo has achieved statehood. Nor does it ask about the validity or
 egal effects of the recognition of Kosovo by those States which have rec-
ognized it as an independent State. The Court notes that, in past requests

24

 or advisory opinions, the General Assembly and the Security Council,
when they have wanted the Court’s opinion on the legal consequences of
an action, have framed the question in such a way that this aspect is
expressly stated (see, for example, Legal Consequences for States of the
Continued Presence of South Africa in Namibia (South West Africa)
notwithstanding Security Council Resolution 276 (1970), Advisory
Opinion, I.C.J. Reports 1971, p. 16 and Legal Consequences of the Con-
struction of a Wall in the Occupied Palestinian Territory, Advisory
Opinion, I.C.J. Reports 2004 (I), p. 136). Accordingly, the Court does
not consider that it is necessary to address such issues as whether or not
 he declaration has led to the creation of a State or the status of the
acts of recognition in order to answer the question put by the General Assem-
bly. The Court accordingly sees no reason to reformulate the scope of the
question.
   52. There are, however, two aspects of the question which require
comment. First, the question refers to “the unilateral declaration of inde-
pendence by the Provisional Institutions of Self-Government of Kosovo”
 General Assembly resolution 63/3 of 8 October 2008, single operative
paragraph ; emphasis added). In addition, the third preambular para-
graph of the General Assembly resolution “[r]ecall[s] that on
17 February 2008 the Provisional Institutions of Self-Government of
Kosovo declared independence from Serbia”. Whether it was indeed the
Provisional Institutions of Self-Government of Kosovo which promulgated
 he declaration of independence was contested by a number of those
participating in the present proceedings. The identity of the authors of
 he declaration of independence, as is demonstrated below (paragraphs 102
 o 109), is a matter which is capable of affecting the answer to the question
whether that declaration was in accordance with international law. It
would be incompatible with the proper exercise of the judicial function
 or the Court to treat that matter as having been determined by the Gen-
eral Assembly.

   53. Nor does the Court consider that the General Assembly intended
 o restrict the Court’s freedom to determine this issue for itself. The
Court notes that the agenda item under which what became resolu-
 ion 63/3 was discussed did not refer to the identity of the authors of the
declaration and was entitled simply “Request for an advisory opinion of
 he International Court of Justice on whether the declaration of inde-
pendence of Kosovo is in accordance with international law” (General
Assembly resolution 63/3 of 8 October 2008 ; emphasis added). The word-
 ng of this agenda item had been proposed by the Republic of Serbia, the
sole sponsor of resolution 63/3, when it requested the inclusion of a sup-
plementary item on the agenda of the 63rd session of the General Assem-
bly (Letter of the Permanent Representative of Serbia to the United
Nations addressed to the Secretary-General, 22 August 2008, A/63/195).
That agenda item then became the title of the draft resolution and, in
 urn, of resolution 63/3. The common element in the agenda item and the

25

 itle of the resolution itself is whether the declaration of independence is
n accordance with international law. Moreover, there was no discussion
of the identity of the authors of the declaration, or of the difference in
wording between the title of the resolution and the question which it
posed to the Court during the debate on the draft resolution (A/63/
PV.22).
   54. As the Court has stated in a different context :
        “It is not to be assumed that the General Assembly would . . . seek
     to fetter or hamper the Court in the discharge of its judicial func-
     tions ; the Court must have full liberty to consider all relevant data
     available to it in forming an opinion on a question posed to it for an
     advisory opinion.” (Certain Expenses of the United Nations (Arti-
     cle 17, paragraph 2, of the Charter), Advisory Opinion, I.C.J. Rep-
     orts 1962, p. 157.)
This consideration is applicable in the present case. In assessing whether
or not the declaration of independence is in accordance with interna-
 ional law, the Court must be free to examine the entire record and decide
 or itself whether that declaration was promulgated by the Provisional
Institutions of Self-Government or some other entity.
   55. While many of those participating in the present proceedings made
reference to the opinion of the Supreme Court of Canada in Reference by
 he Governor in Council concerning Certain Questions relating to the
Secession of Quebec from Canada ([1998] 2 Supreme Court Reporter
(SCR) 217 ; 161 Dominion Law Reports (DLR) (4th) 385 ; 115 Interna-
 ional Law Reports (ILR) 536), the Court observes that the question in
 he present case is markedly different from that posed to the Supreme
Court of Canada.
   The relevant question in that case was :
        “Does international law give the National Assembly, legislature or
     government of Quebec the right to effect the secession of Quebec
     from Canada unilaterally? In this regard, is there a right to self-
     determination under international law that would give the National
     Assembly, legislature or government of Quebec the right to effect the
     secession of Quebec from Canada unilaterally ?”

   56. The question put to the Supreme Court of Canada inquired whether
 here was a right to “effect secession”, and whether there was a rule of
 nternational law which conferred a positive entitlement on any of the
organs named. By contrast, the General Assembly has asked whether the
declaration of independence was “in accordance with” international law.
The answer to that question turns on whether or not the applicable inter-
national law prohibited the declaration of independence. If the Court
concludes that it did, then it must answer the question put by saying that
 he declaration of independence was not in accordance with international
 aw. It follows that the task which the Court is called upon to perform is

26

 o determine whether or not the declaration of independence was adopted
 n violation of international law. The Court is not required by the ques-
 ion it has been asked to take a position on whether international law
conferred a positive entitlement on Kosovo unilaterally to declare its
 ndependence or, a fortiori, on whether international law generally con-
 ers an entitlement on entities situated within a State unilaterally to break
away from it. Indeed, it is entirely possible for a particular act — such as
a unilateral declaration of independence — not to be in violation of inter-
national law without necessarily constituting the exercise of a right con-
 erred by it. The Court has been asked for an opinion on the first point,
not the second.

                       III. FACTUAL BACKGROUND
   57. The declaration of independence of 17 February 2008 must be con-
sidered within the factual context which led to its adoption. The Court
 herefore will briefly describe the relevant characteristics of the frame-
work put in place by the Security Council to ensure the interim admin-
 stration of Kosovo, namely, Security Council resolution 1244 (1999) and
 he regulations promulgated thereunder by the United Nations Mission
 n Kosovo. The Court will then proceed with a brief description of the
developments relating to the so-called “final status process” in the years
preceding the adoption of the declaration of independence, before turn-
 ng to the events of 17 February 2008.

     A. Security Council Resolution 1244 (1999) and the Relevant
                         UNMIK Regulations
   58. Resolution 1244 (1999) was adopted by the Security Council,
acting under Chapter VII of the United Nations Charter, on 10 June
1999. In this resolution, the Security Council, “determined to resolve the
grave humanitarian situation” which it had identified (see the fourth pre-
ambular paragraph) and to put an end to the armed conflict in
Kosovo, authorized the United Nations Secretary-General to establish an
 nternational civil presence in Kosovo in order to provide “an interim
administration for Kosovo . . . which will provide transitional admini-
stration while establishing and overseeing the development of provisional
democratic self-governing institutions” (para. 10).
   Paragraph 3 demanded
     “in particular that the Federal Republic of Yugoslavia put an imme-
     diate and verifiable end to violence and repression in Kosovo, and
     begin and complete verifiable phased withdrawal from Kosovo of all
     military, police and paramilitary forces according to a rapid timeta-
     ble”.
Pursuant to paragraph 5 of the resolution, the Security Council decided

27

on the deployment in Kosovo, under the auspices of the United Nations,
of international civil and security presences and welcomed the agreement
of the Federal Republic of Yugoslavia to such presences. The powers and
responsibilities of the security presence were further clarified in para-
graphs 7 and 9. Paragraph 15 of resolution 1244 (1999) demanded that
 he Kosovo Liberation Army (KLA) and other armed Kosovo Albanian
groups end immediately all offensive actions and comply with the require-
ments for demilitarization. Immediately preceding the adoption of Secu-
rity Council resolution 1244 (1999), various implementing steps had
already been taken through a series of measures, including, inter alia,
 hose stipulated in the Military Technical Agreement of 9 June 1999,
whose Article I.2 provided for the deployment of KFOR, permitting
 hese to
     “operate without hindrance within Kosovo and with the authority to
     take all necessary action to establish and maintain a secure environ-
     ment for all citizens of Kosovo and otherwise carry out its mission”.

The Military Technical Agreement also provided for the withdrawal of
FRY ground and air forces, save for “an agreed number of Yugoslav and
Serb military and police personnel” as foreseen in paragraph 4 of resolu-
 ion 1244 (1999).
   59. Paragraph 11 of the resolution described the principal responsibili-
 ies of the international civil presence in Kosovo as follows :

     “(a) Promoting the establishment, pending a final settlement, of
          substantial autonomy and self-government in Kosovo, taking
          full account of annex 2 and of the Rambouillet accords (S/1999/
          648) ;
      (b) Performing basic civilian administrative functions where and
          as long as required ;
      (c) Organizing and overseeing the development of provisional
          institutions for democratic and autonomous self-government
          pending a political settlement, including the holding of elec-
          tions ;
      (d) Transferring, as these institutions are established, its adminis-
          trative responsibilities while overseeing and supporting the
          consolidation of Kosovo’s local provisional institutions and
          other peace-building activities ;

      (e) Facilitating a political process designed to determine Kosovo’s
          future status, taking into account the Rambouillet accords
          (S/1999/648) ;

28

      (f) In a final stage, overseeing the transfer of authority from Kos-
          ovo’s provisional institutions to institutions established under
          a political settlement . . . ” .
   60. On 12 June 1999, the Secretary-General presented to the Security
Council “a preliminary operational concept for the overall organization
of the civil presence, which will be known as the United Nations Interim
Administration Mission in Kosovo (UNMIK)”, pursuant to paragraph 10
of resolution 1244 (1999), according to which UNMIK would be headed
by a Special Representative of the Secretary-General, to be appointed by
 he Secretary-General in consultation with the Security Council (Report
of the Secretary-General of 12 June 1999 (United Nations doc. S/1999/
672, 12 June 1999)). The Report of the Secretary-General provided that
 here would be four Deputy Special Representatives working within
UNMIK, each responsible for one of four major components (the so-
called “four pillars”) of the UNMIK régime (para. 5) : (a) interim civil
administration (with a lead role assigned to the United Nations) ;
(b) humanitarian affairs (with a lead role assigned to the Office of the
United Nations High Commissioner for Refugees (UNHCR)) ; (c) insti-
 ution building (with a lead role assigned to the Organization for Security
and Co-operation in Europe (OSCE)) ; and (d) reconstruction (with a
 ead role assigned to the European Union).

   61. On 25 July 1999, the first Special Representative of the Secretary-
General promulgated UNMIK regulation 1999/1, which provided in its
Section 1.1 that “[a]ll legislative and executive authority with respect to
Kosovo, including the administration of the judiciary, is vested in
UNMIK and is exercised by the Special Representative of the Secretary-
General”. Under Section 3 of UNMIK regulation 1999/1, the laws appli-
cable in the territory of Kosovo prior to 24 March 1999 were to continue
 o apply, but only to the extent that these did not conflict with interna-
 ionally recognized human rights standards and non-discrimination or
 he fulfilment of the mandate given to UNMIK under resolu-
 ion 1244 (1999). Section 3 was repealed by UNMIK regulation 1999/25
promulgated by the Special Representative of the Secretary-General on
12 December 1999, with retroactive effect to 10 June 1999. Section 1.1 of
UNMIK regulation 1999/24 of 12 December 1999 provides that “[t]he
 aw applicable in Kosovo shall be : (a) the regulations promulgated by
 he Special Representative of the Secretary-General and subsidiary instru-
ments issued thereunder ; and (b) the law in force in Kosovo on 22 March
1989”. Section 4, entitled “Transitional Provision”, reads as follows :

       “All legal acts, including judicial decisions, and the legal effects of
     events which occurred, during the period from 10 June 1999 up to
     the date of the present regulation, pursuant to the laws in force dur-
     ing that period under section 3 of UNMIK Regulation No. 1999/1
     of 25 July 1999, shall remain valid, insofar as they do not conflict

29

     with the standards referred to in section 1 of the present regulation
     or any UNMIK regulation in force at the time of such acts.”

   62. The powers and responsibilities thus laid out in Security Council
resolution 1244 (1999) were set out in more detail in UNMIK regulation
2001/9 of 15 May 2001 on a Constitutional Framework for Provisional
Self-Government (hereinafter “Constitutional Framework”), which
defined the responsibilities relating to the administration of Kosovo
between the Special Representative of the Secretary-General and the Pro-
visional Institutions of Self-Government of Kosovo. With regard to the
role entrusted to the Special Representative of the Secretary-General
under Chapter 12 of the Constitutional Framework,

     “[t]he exercise of the responsibilities of the Provisional Institutions
     of Self-Government under this Constitutional Framework shall not
     affect or diminish the authority of the SRSG to ensure full imple-
     mentation of UNSCR 1244 (1999), including overseeing the Provi-
     sional Institutions of Self-Government, its officials and its agencies,
     and taking appropriate measures whenever their actions are incon-
     sistent with UNSCR 1244 (1999) or this Constitutional Framework”.

Moreover, pursuant to Chapter 2 (a), “[t]he Provisional Institutions of
Self-Government and their officials shall . . . [e]xercise their authorities
consistent with the provisions of UNSCR 1244 (1999) and the terms set
 orth in this Constitutional Framework”. Similarly, according to the
ninth preambular paragraph of the Constitutional Framework,

     “the exercise of the responsibilities of the Provisional Institutions of
     Self-Government in Kosovo shall not in any way affect or diminish
     the ultimate authority of the SRSG for the implementation of
     UNSCR 1244 (1999)”.

In his periodical report to the Security Council of 7 June 2001, the
Secretary-General stated that the Constitutional Framework contained

     “broad authority for my Special Representative to intervene and
     correct any actions of the provisional institutions of self-government
     that are inconsistent with Security Council resolution 1244 (1999),
     including the power to veto Assembly legislation, where necessary”
     (Report of the Secretary-General on the United Nations Interim

30

     Administration Mission in Kosovo, United Nations doc. S/2001/
     565, 7 June 2001).
  63. Having described the framework put in place by the Security
Council to ensure the interim administration of the territory of Kosovo,
he Court now turns to the relevant events in the final status process
which preceded the declaration of independence of 17 February 2008.

      B. The Relevant Events in the Final Status Process Prior to
                         17 February 2008
   64. In June 2005, the Secretary-General appointed Kai Eide, Perma-
nent Representative of Norway to the North Atlantic Treaty Organiza-
 ion, as his Special Envoy to carry out a comprehensive review of
Kosovo. In the wake of the Comprehensive Review report he submitted
 o the Secretary-General (attached to United Nations doc. S/2005/635
 7 October 2005)), there was consensus within the Security Council that
 he final status process should be commenced :

        “The Security Council agrees with Ambassador Eide’s overall
     assessment that, notwithstanding the challenges still facing Kosovo
     and the wider region, the time has come to move to the next phase of
     the political process. The Council therefore supports the Secretary-
     General’s intention to start a political process to determine Kosovo’s
     Future Status, as foreseen in Security Council resolu-
     tion 1244 (1999).” (Statement by the President of the Security Coun-
     cil of 24 October 2005, United Nations doc. S/PRST/2005/51.)

   65. In November 2005, the Secretary-General appointed Mr. Martti
Ahtisaari, former President of Finland, as his Special Envoy for the
 uture status process for Kosovo. This appointment was endorsed by the
Security Council (see Letter dated 10 November 2005 from the President
of the Security Council addressed to the Secretary-General, United
Nations doc. S/2005/709). Mr. Ahtisaari’s Letter of Appointment
 ncluded, as an annex to it, a document entitled “Terms of Reference”
which stated that the Special Envoy “is expected to revert to the Secre-
 ary-General at all stages of the process”. Furthermore, “[t]he pace and
duration of the future status process will be determined by the Special
Envoy on the basis of consultations with the Secretary-General, taking
 nto account the co-operation of the parties and the situation on the
ground” (Terms of Reference, dated 10 November 2005, as an appendix
 o the Letter of the Secretary-General to Mr. Martti Ahtisaari of
14 November 2005, United Nations dossier No. 198).

  66. The Security Council did not comment on these Terms of Refer-
ence. Instead, the members of the Council attached to their approval of

31

Mr. Ahtisaari’s appointment the Guiding Principles of the Contact Group
 an informal grouping of States formed in 1994 to address the situation
 n the Balkans and composed of France, Germany, Italy, the Russian
Federation, the United Kingdom and the United States). Members of the
Security Council further indicated that the Guiding Principles were meant
 or the Secretary-General’s (and therefore also for the Special Envoy’s)
“reference”. These Principles stated, inter alia, that

     “[t]he Contact Group . . . welcomes the intention of the Secretary-
     General to appoint a Special Envoy to lead this process . . .
        A negotiated solution should be an international priority. Once
     the process has started, it cannot be blocked and must be brought to
     a conclusion. The Contact Group calls on the parties to engage in
     good faith and constructively, to refrain from unilateral steps and to
     reject any form of violence.

     . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
        The Security Council will remain actively seized of the matter. The
     final decision on the status of Kosovo should be endorsed by the
     Security Council.” (Guiding Principles of the Contact Group for a
     Settlement of the Status of Kosovo, as Annexed to the Letter Dated
     10 November 2005 from the President of the Security Council
     addressed to the Secretary-General, United Nations doc. S/2005/
     709.)
  67. Between 20 February and 8 September 2006, several rounds of
negotiations were held, at which delegations of Serbia and Kosovo
addressed, in particular, the decentralization of Kosovo’s governmental
and administrative functions, cultural heritage and religious sites, eco-
nomic issues, and community rights (Reports of the Secretary-General on
 he United Nations Interim Administration Mission in Kosovo, United
Nations docs. S/2006/361, S/2006/707 and S/2006/906). According to the
Reports of the Secretary-General, “the parties remain[ed] far apart on
most issues” (Reports of the Secretary-General on the United Nations
Interim Administration Mission in Kosovo, S/2006/707 ; S/2006/906).

   68. On 2 February 2007, the Special Envoy of the Secretary-General
submitted a draft comprehensive proposal for the Kosovo status settle-
ment to the parties and invited them to engage in a consultative process
 recalled in the Report of the Secretary-General on the United Nations
Interim Administration Mission in Kosovo, United Nations doc. S/2007/
134, 9 March 2007). On 10 March 2007, a final round of negotiations was
held in Vienna to discuss the settlement proposal. As reported by the Sec-
retary-General, “the parties were unable to make any additional progress”
at those negotiations (Report of the Secretary-General on the United

32

Nations Interim Administration Mission in Kosovo, United Nations doc. S/
2007/395, 29 June 2007, p. 1).
  69. On 26 March 2007, the Secretary-General submitted the report of
his Special Envoy to the Security Council. The Special Envoy stated that
“after more than one year of direct talks, bilateral negotiations and
expert consultations, it [had] become clear to [him] that the parties [were]
not able to reach an agreement on Kosovo’s future status” (Letter dated
26 March 2007 from the Secretary-General addressed to the President of
 he Security Council attaching the Report of the Special Envoy of the
Secretary-General on Kosovo’s future status, United Nations doc. S/2007/
168, 26 March 2007). After emphasizing that his
     “mandate explicitly provides that [he] determine the pace and dura-
     tion of the future status process on the basis of consultations with
     the Secretary-General, taking into account the co-operation of the
     parties and the situation on the ground” (ibid., para. 3),
he Special Envoy concluded :
        “It is my firm view that the negotiations’ potential to produce any
     mutually agreeable outcome on Kosovo’s status is exhausted. No
     amount of additional talks, whatever the format, will overcome this
     impasse.
     . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
        The time has come to resolve Kosovo’s status. Upon careful con-
     sideration of Kosovo’s recent history, the realities of Kosovo today
     and taking into account the negotiations with the parties, I have
     come to the conclusion that the only viable option for Kosovo is
     independence, to be supervised for an initial period by the interna-
     tional community.” (Ibid., paras. 3 and 5.)
   70. The Special Envoy’s conclusions were accompanied by his final-
 zed Comprehensive Proposal for the Kosovo Status Settlement (United
Nations doc. S/2007/168/Add. 1, 26 March 2007), which, in his words, set
 orth “international supervisory structures, [and] provide[d] the founda-
 ions for a future independent Kosovo” (United Nations doc. S/2007/168,
para. 5). The Comprehensive Proposal called for the immediate conven-
 ng of a Constitutional Commission to draft a Constitution for Kosovo
 ibid., Add. 1, 26 March 2007, Art. 10.1), established guidelines concern-
 ng the membership of that Commission (ibid., Art. 10.2), set numerous
requirements concerning principles and provisions to be contained in that
Constitution (ibid., Art. 1.3 and Ann. I), and required that the Assembly
of Kosovo approve the Constitution by a two-thirds vote within 120 days
 ibid., Art. 10.4). Moreover, it called for the expiry of the UNMIK man-
date after a 120-day transition period, after which “all legislative and
executive authority vested in UNMIK shall be transferred en bloc to the
governing authorities of Kosovo, unless otherwise provided for in this
Settlement” (ibid., Art. 15.1). It mandated the holding of general and
municipal elections no later than nine months from the entry into force

33

of the Constitution (UN doc. S/2007/168/Add. 1, 26 March 2007,
Art. 11.1). The Court further notes that the Comprehensive Proposal for
 he Kosovo Status Settlement provided for the appointment of an Inter-
national Civilian Representative (ICR), who would have the final author-
 ty in Kosovo regarding interpretation of the Settlement (ibid., Art. 12).
The Comprehensive Proposal also specified that the mandate of the ICR
would be reviewed “no later than two years after the entry into force of
 the] Settlement, with a view to gradually reducing the scope of the pow-
ers of the ICR and the frequency of intervention” (ibid., Ann. IX,
Art. 5.1) and that

     “[t]he mandate of the ICR shall be terminated when the Interna-
     tional Steering Group [a body composed of France, Germany, Italy,
     the Russian Federation, the United Kingdom, the United States, the
     European Union, the European Commission and NATO] deter-
     mine[d] that Kosovo ha[d] implemented the terms of [the] Settle-
     ment” (ibid., Art. 5.2).
   71. The Secretary-General “fully support[ed] both the recommen-
dation made by [his] Special Envoy in his report on Kosovo’s future
status and the Comprehensive Proposal for the Kosovo Status Settlement”
 letter dated 26 March 2007 from the Secretary-General addressed to the
President of the Security Council, United Nations doc. S/2007/168). The
Security Council, for its part, decided to undertake a mission to Kosovo
 see Report of the Security Council mission on the Kosovo issue, United
Nations doc. S/2007/256, 4 May 2007), but was not able to reach a deci-
sion regarding the final status of Kosovo. A draft resolution was circu-
 ated among the Council’s members (see draft resolution sponsored by
Belgium, France, Germany, Italy, the United Kingdom and the United
States, United Nations doc. S/2007/437 Prov., 17 July 2007) but was
withdrawn after some weeks when it had become clear that it would not
be adopted by the Security Council.

   72. Between 9 August and 3 December 2007, further negotiations on
 he future status of Kosovo were held under the auspices of a Troika
comprising representatives of the European Union, the Russian Federa-
 ion and the United States. On 4 December 2007, the Troika submitted
 ts report to the Secretary-General, which came to the conclusion that,
despite intensive negotiations, “the parties were unable to reach an agree-
ment on Kosovo’s status” and “[n]either side was willing to yield on the
basic question of sovereignty” (Report of the European Union/United
States/Russian Federation Troika on Kosovo, 4 December 2007, annexed
 o S/2007/723).

 73. On 17 November 2007, elections were held for the Assembly of
Kosovo, 30 municipal assemblies and their respective mayors (Report of

34

 he Secretary-General on the United Nations Interim Administration
Mission in Kosovo, United Nations doc. S/2007/768). The Assembly of
Kosovo held its inaugural session on 4 and 9 January 2008 (Report of the
Secretary-General on the United Nations Interim Administration Mis-
sion in Kosovo, United Nations doc. S/2008/211).

          C. The Events of 17 February 2008 and Thereafter

   74. It is against this background that the declaration of independence
was adopted on 17 February 2008. The Court observes that the original
 anguage of the declaration is Albanian. For the purposes of the present
Opinion, when quoting from the text of the declaration, the Court has
used the translations into English and French included in the dossier sub-
mitted on behalf of the Secretary-General.
   In its relevant passages, the declaration of independence states that its
authors were “[c]onvened in an extraordinary meeting on 17 February
2008, in Pristina, the capital of Kosovo” (first preambular paragraph) ; it
“[r]ecall[ed] the years of internationally-sponsored negotiations between
Belgrade and Pristina over the question of [Kosovo’s] future political
status” and “[r]egrett[ed] that no mutually-acceptable status outcome
was possible” (tenth and eleventh preambular paragraphs). It further
declared that the authors were “[d]etermin[ed] to see [Kosovo’s] status
resolved in order to give [its] people clarity about their future, move
beyond the conflicts of the past and realise the full democratic potential
of [its] society” (thirteenth preambular paragraph).

  75. In its operative part, the declaration of independence of 17 Febru-
ary 2008 states :

        “1. We, the democratically-elected leaders of our people, hereby
     declare Kosovo to be an independent and sovereign state. This dec-
     laration reflects the will of our people and it is in full accordance
     with the recommendations of UN Special Envoy Martti Ahtisaari
     and his Comprehensive Proposal for the Kosovo Status Settlement.

       2. We declare Kosovo to be a democratic, secular and multi-
     ethnic republic, guided by the principles of non-discrimination
     and equal protection under the law. We shall protect and promote
     the rights of all communities in Kosovo and create the conditions
     necessary for their effective participation in political and decision-
     making processes.
     . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
       5. We welcome the international community’s continued support

35

     of our democratic development through international presences
     established in Kosovo on the basis of UN Security Council resolu-
     tion 1244 (1999). We invite and welcome an international civilian
     presence to supervise our implementation of the Ahtisaari Plan, and
     a European Union-led rule of law mission.

     . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
       9. We hereby undertake the international obligations of Kosovo,
     including those concluded on our behalf by the United Nations
     Interim Administration Mission in Kosovo (UNMIK) . . .

     . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
        12. We hereby affirm, clearly, specifically, and irrevocably, that
     Kosovo shall be legally bound to comply with the provisions con-
     tained in this Declaration, including, especially, the obligations for it
     under the Ahtisaari Plan . . . We declare publicly that all States are
     entitled to rely upon this declaration . . .”

   76. The declaration of independence was adopted at a meeting held on
17 February 2008 by 109 out of the 120 members of the Assembly of
Kosovo, including the Prime Minister of Kosovo and by the President of
Kosovo (who was not a member of the Assembly). The ten members of
 he Assembly representing the Kosovo Serb community and one member
representing the Kosovo Gorani community decided not to attend this
meeting. The declaration was written down on two sheets of papyrus and
read out, voted upon and then signed by all representatives present. It
was not transmitted to the Special Representative of the Secretary-
General and was not published in the Official Gazette of the Provi-
sional Institutions of Self-Government of Kosovo.

   77. After the declaration of independence was issued, the Republic of
Serbia informed the Secretary-General that it had adopted a decision
stating that that declaration represented a forceful and unilateral seces-
sion of a part of the territory of Serbia, and did not produce legal effects
either in Serbia or in the international legal order (United Nations doc.
S/PV.5839 ; Report of the Secretary-General on the United Nations
Interim Administration Mission in Kosovo, United Nations doc. S/2008/
211). Further to a request from Serbia, an emergency public meeting of
 he Security Council took place on 18 February 2008, in which Mr. Boris
Tadić, the President of the Republic of Serbia, participated and
denounced the declaration of independence as an unlawful act which had
been declared null and void by the National Assembly of Serbia (United
Nations doc. S/PV.5839).

36

     IV. THE QUESTION WHETHER THE DECLARATION OF INDEPENDENCE
              IS IN ACCORDANCE WITH INTERNATIONAL LAW

   78. The Court now turns to the substance of the request submitted
by the General Assembly. The Court recalls that it has been asked by
 he General Assembly to assess the accordance of the declaration of
 ndependence of 17 February 2008 with “international law” (resolution
63/3 of the General Assembly, 8 October 2008). The Court will first turn
 ts attention to certain questions concerning the lawfulness of decla-
rations of independence under general international law, against the back-
ground of which the question posed falls to be considered, and Security
Council resolution 1244 (1999) is to be understood and applied. Once this
general framework has been determined, the Court will turn to the
 egal relevance of Security Council resolution 1244 (1999), and determine
whether the resolution creates special rules, and ensuing obligations, under
 nternational law applicable to the issues raised by the present request and
having a bearing on the lawfulness of the declaration of independence of
17 February 2008.

                      A. General International Law
   79. During the eighteenth, nineteenth and early twentieth centuries,
 here were numerous instances of declarations of independence, often
strenuously opposed by the State from which independence was being
declared. Sometimes a declaration resulted in the creation of a new State,
at others it did not. In no case, however, does the practice of States as a
whole suggest that the act of promulgating the declaration was regarded
as contrary to international law. On the contrary, State practice during
 his period points clearly to the conclusion that international law con-
 ained no prohibition of declarations of independence. During the second
half of the twentieth century, the international law of self-determination
developed in such a way as to create a right to independence for
 he peoples of non-self-governing territories and peoples subject to alien
subjugation, domination and exploitation (cf. Legal Consequences for
States of the Continued Presence of South Africa in Namibia (South
West Africa) notwithstanding Security Council Resolution 276 (1970),
Advisory Opinion, I.C.J. Reports 1971, pp. 31-32, paras. 52-53 ; East
Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 102,
para. 29 ; Legal Consequences of the Construction of a Wall in the Occu-
pied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I),
pp. 171-172, para. 88). A great many new States have come into existence as
a result of the exercise of this right. There were, however, also instances of
declarations of independence outside this context. The practice of States
 n these latter cases does not point to the emergence in international law
of a new rule prohibiting the making of a declaration of independence in
such cases.

37

  80. Several participants in the proceedings before the Court have con-
 ended that a prohibition of unilateral declarations of independence is
 mplicit in the principle of territorial integrity.
  The Court recalls that the principle of territorial integrity is an impor-
 ant part of the international legal order and is enshrined in the Charter
of the United Nations, in particular in Article 2, paragraph 4, which pro-
vides that :
       “All Members shall refrain in their international relations from
     the threat or use of force against the territorial integrity or political
     independence of any State, or in any other manner inconsistent with
     the Purposes of the United Nations.”

   In General Assembly resolution 2625 (XXV), entitled “Declaration on
Principles of International Law concerning Friendly Relations and
Co-operation among States in Accordance with the Charter of the
United Nations”, which reflects customary international law (Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v. United States
of America), Merits, Judgment, I.C.J. Reports 1986, pp. 101-103,
paras. 191-193), the General Assembly reiterated “[t]he principle that
States shall refrain in their international relations from the threat or use
of force against the territorial integrity or political independence of any
State”. This resolution then enumerated various obligations incumbent
upon States to refrain from violating the territorial integrity of other sov-
ereign States. In the same vein, the Final Act of the Helsinki Conference
on Security and Co-operation in Europe of 1 August 1975 (the Helsinki
Conference) stipulated that “[t]he participating States will respect the ter-
ritorial integrity of each of the participating States” (Art. IV). Thus, the
scope of the principle of territorial integrity is confined to the sphere of
relations between States.

   81. Several participants have invoked resolutions of the Security
Council condemning particular declarations of independence : see, inter
alia, Security Council resolutions 216 (1965) and 217 (1965), concerning
Southern Rhodesia ; Security Council resolution 541 (1983), concerning
northern Cyprus ; and Security Council resolution 787 (1992), concerning
 he Republika Srpska.
   The Court notes, however, that in all of those instances the Security
Council was making a determination as regards the concrete situation
existing at the time that those declarations of independence were made ;
 he illegality attached to the declarations of independence thus stemmed
not from the unilateral character of these declarations as such, but from
 he fact that they were, or would have been, connected with the unlawful
use of force or other egregious violations of norms of general interna-
 ional law, in particular those of a peremptory character (jus cogens).
In the context of Kosovo, the Security Council has never taken this
position. The exceptional character of the resolutions enumerated above

38

appears to the Court to confirm that no general prohibition against uni-
 ateral declarations of independence may be inferred from the practice of the
Security Council.

                                     *
   82. A number of participants in the present proceedings have claimed,
although in almost every instance only as a secondary argument, that the
population of Kosovo has the right to create an independent State either
as a manifestation of a right to self-determination or pursuant to what
 hey described as a right of “remedial secession” in the face of the situa-
 ion in Kosovo.
   The Court has already noted (see paragraph 79 above) that one of the
major developments of international law during the second half of the
 wentieth century has been the evolution of the right of self-determina-
 ion. Whether, outside the context of non-self-governing territories and
peoples subject to alien subjugation, domination and exploitation, the
 nternational law of self-determination confers upon part of the popula-
 ion of an existing State a right to separate from that State is, however, a
subject on which radically different views were expressed by those taking
part in the proceedings and expressing a position on the question. Similar
differences existed regarding whether international law provides for a
right of “remedial secession” and, if so, in what circumstances. There was
also a sharp difference of views as to whether the circumstances which
some participants maintained would give rise to a right of “remedial
secession” were actually present in Kosovo.

   83. The Court considers that it is not necessary to resolve these ques-
 ions in the present case. The General Assembly has requested the Court’s
opinion only on whether or not the declaration of independence is in
accordance with international law. Debates regarding the extent of the
right of self-determination and the existence of any right of “remedial
secession”, however, concern the right to separate from a State. As the
Court has already noted (see paragraphs 49 to 56 above), and as almost
all participants agreed, that issue is beyond the scope of the question
posed by the General Assembly. To answer that question, the Court need
only determine whether the declaration of independence violated either
general international law or the lex specialis created by Security Council
resolution 1244 (1999).

                                     *
  84. For the reasons already given, the Court considers that general
nternational law contains no applicable prohibition of declarations
of independence. Accordingly, it concludes that the declaration of
ndependence of 17 February 2008 did not violate general international

39

 aw. Having arrived at that conclusion, the Court now turns to the legal
relevance of Security Council resolution 1244, adopted on 10 June 1999.

     B. Security Council Resolution 1244 (1999) and the UNMIK
            Constitutional Framework Created Thereunder
   85. Within the legal framework of the United Nations Charter, nota-
bly on the basis of Articles 24, 25 and Chapter VII thereof, the Security
Council may adopt resolutions imposing obligations under international
 aw. The Court has had the occasion to interpret and apply such Security
Council resolutions on a number of occasions and has consistently treated
 hem as part of the framework of obligations under international law
 Legal Consequences for States of the Continued Presence of South
Africa in Namibia (South West Africa) notwithstanding Security Council
Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 16 ;
Questions of Interpretation and Application of the 1971 Montreal Con-
vention arising from the Aerial Incident at Lockerbie (Libyan Arab
Jamahiriya v. United Kingdom), Provisional Measures, Order of 14 April
1992, I.C.J. Reports 1992, p. 15, paras. 39-41 ; Questions of Interpreta-
 ion and Application of the 1971 Montreal Convention arising from the
Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States
of America), Provisional Measures, Order of 14 April 1992, I.C.J. Reports
1992, pp. 126-127, paras. 42-44). Resolution 1244 (1999) was expressly
adopted by the Security Council on the basis of Chapter VII of the
United Nations Charter, and therefore clearly imposes international legal
obligations. The Court notes that none of the participants has questioned
 he fact that resolution 1244 (1999), which specifically deals with the situ-
ation in Kosovo, is part of the law relevant in the present situation.

   86. The Court notes that there are a number of other Security Council
resolutions adopted on the question of Kosovo, notably Security Council
resolutions 1160 (1998), 1199 (1998), 1203 (1998) and 1239 (1999) ; how-
ever, the Court sees no need to pronounce specifically on resolutions of
 he Security Council adopted prior to resolution 1244 (1999), which are,
 n any case, recalled in the second preambular paragraph of the latter.

                                     *
   87. A certain number of participants have dealt with the question
whether regulations adopted on behalf of UNMIK by the Special Rep-
resentative of the Secretary-General, notably the Constitutional Frame-
work (see paragraph 62 above), also form part of the applicable interna-
 ional law within the meaning of the General Assembly’s request.
   88. In particular, it has been argued before the Court that the Consti-
 utional Framework is an act of an internal law rather than an interna-

40

 ional law character. According to that argument, the Constitutional
Framework would not be part of the international law applicable in the
present instance and the question of the compatibility of the declaration
of independence therewith would thus fall outside the scope of the Gen-
eral Assembly’s request.
   The Court observes that UNMIK regulations, including regula-
 ion 2001/9, which promulgated the Constitutional Framework, are
adopted by the Special Representative of the Secretary-General on the
basis of the authority derived from Security Council resolution 1244
 1999), notably its paragraphs 6, 10, and 11, and thus ultimately from the
United Nations Charter. The Constitutional Framework derives its bind-
 ng force from the binding character of resolution 1244 (1999) and thus
 rom international law. In that sense it therefore possesses an interna-
 ional legal character.
   89. At the same time, the Court observes that the Constitutional
Framework functions as part of a specific legal order, created pursuant to
resolution 1244 (1999), which is applicable only in Kosovo and the pur-
pose of which is to regulate, during the interim phase established by reso-
 ution 1244 (1999), matters which would ordinarily be the subject of
 nternal, rather than international, law. Regulation 2001/9 opens with the
statement that the Constitutional Framework was promulgated
     “[f]or the purposes of developing meaningful self-government in
     Kosovo pending a final settlement, and establishing provisional
     institutions of self-government in the legislative, executive and judi-
     cial fields through the participation of the people of Kosovo in free
     and fair elections”.
   The Constitutional Framework therefore took effect as part of the
body of law adopted for the administration of Kosovo during the interim
phase. The institutions which it created were empowered by the Consti-
 utional Framework to take decisions which took effect within that body
of law. In particular, the Assembly of Kosovo was empowered to adopt
 egislation which would have the force of law within that legal order, sub-
 ect always to the overriding authority of the Special Representative of
 he Secretary-General.
   90. The Court notes that both Security Council resolution 1244 (1999)
and the Constitutional Framework entrust the Special Representative of
 he Secretary-General with considerable supervisory powers with regard
 o the Provisional Institutions of Self-Government established under the
authority of the United Nations Interim Administration Mission in Kos-
ovo. As noted above (see paragraph 58), Security Council resolution 1244
 1999) envisages “an interim administration for Kosovo . . . which will
provide transitional administration while establishing and overseeing the
development of provisional democratic self-governing institutions”
 para. 10). Resolution 1244 (1999) further states that “the main respon-
sibilities of the international civil presence will include . . . [o]rganizing
and overseeing the development of provisional institutions for demo-

41

cratic and autonomous self-government pending a political settlement,
 ncluding the holding of elections” (paragraph 11 (c)). Similarly, as
described above (see paragraph 62), under the Constitutional Frame-
work, the Provisional Institutions of Self-Government were to function
 n conjunction with and subject to the direction of the Special Repre-
sentative of the Secretary-General in the implementation of Security
Council resolution 1244 (1999).

   91. The Court notes that Security Council resolution 1244 (1999) and
 he Constitutional Framework were still in force and applicable as at
17 February 2008. Paragraph 19 of Security Council resolution 1244
 1999) expressly provides that “the international civil and security
presences are established for an initial period of 12 months, to continue
 hereafter unless the Security Council decides otherwise”. No decision
amending resolution 1244 (1999) was taken by the Security Council
at its meeting held on 18 February 2008, when the declaration of independ-
ence was discussed for the first time, or at any subsequent meeting. The
Presidential Statement of 26 November 2008 (S/PRST/2008/44) merely
“welcom[ed] the co-operation between the UN and other international actors,
within the framework of Security Council resolution 1244 (1999)” (empha-
sis added). In addition, pursuant to paragraph 21 of Security Council
resolution 1244 (1999), the Security Council decided “to remain actively
seized of the matter” and maintained the item “Security Council resolu-
 ions 1160 (1998), 1199 (1998), 1203 (1998), 1239 (1999) and 1244 (1999)”
on its agenda (see, most recently, Report of the Security Council, 1 August
2008-31 July 2009, General Assembly, Official Records, 64th session,
Supplement No. 2, pp. 39 ff. and 132 ff.). Furthermore, Chapter 14.3 of
 he Constitutional Framework sets forth that “[t]he SRSG . . . may effect
amendments to this Constitutional Framework”. Minor amendments
were effected by virtue of UNMIK regulations UNMIK/REG/2002/9 of
3 May 2002, UNMIK/REG/2007/29 of 4 October 2007, UNMIK/REG/
2008/1 of 8 January 2008 and UNMIK/REG/2008/9 of 8 February 2008.
Finally, neither Security Council resolution 1244 (1999) nor the Consti-
 utional Framework contains a clause providing for its termination and
neither has been repealed ; they therefore constituted the international
 aw applicable to the situation prevailing in Kosovo on 17 February
2008.

   92. In addition, the Special Representative of the Secretary-General
continues to exercise his functions in Kosovo. Moreover, the Secretary-
General has continued to submit periodic reports to the Security Council,
as required by paragraph 20 of Security Council resolution 1244 (1999)
 see the most recent quarterly Report of the Secretary-General on the
United Nations Interim Administration Mission in Kosovo, S/2010/169,
6 April 2010, as well as the preceding Reports S/2008/692 of 24 Novem-

42

ber 2008, S/2009/149 of 17 March 2009, S/2009/300 of 10 June 2009,
S/2009/497 of 30 September 2009 and S/2010/5 of 5 January 2010).

  93. From the foregoing, the Court concludes that Security Council
resolution 1244 (1999) and the Constitutional Framework form part of
 he international law which is to be considered in replying to the question
posed by the General Assembly in its request for the advisory opinion.

1. Interpretation of Security Council resolution 1244 (1999)

   94. Before continuing further, the Court must recall several factors rel-
evant in the interpretation of resolutions of the Security Council. While
 he rules on treaty interpretation embodied in Articles 31 and 32 of the
Vienna Convention on the Law of Treaties may provide guidance, differ-
ences between Security Council resolutions and treaties mean that the
 nterpretation of Security Council resolutions also require that other fac-
 ors be taken into account. Security Council resolutions are issued by a
single, collective body and are drafted through a very different process
 han that used for the conclusion of a treaty. Security Council resolutions
are the product of a voting process as provided for in Article 27 of the
Charter, and the final text of such resolutions represents the view of the
Security Council as a body. Moreover, Security Council resolutions can
be binding on all Member States (Legal Consequences for States of the
Continued Presence of South Africa in Namibia (South West Africa)
notwithstanding Security Council Resolution 276 (1970), Advisory Opin-
 on, I.C.J. Reports 1971, p. 54, para. 116), irrespective of whether they
played any part in their formulation. The interpretation of Security
Council resolutions may require the Court to analyse statements by rep-
resentatives of members of the Security Council made at the time of their
adoption, other resolutions of the Security Council on the same issue, as
well as the subsequent practice of relevant United Nations organs and of
States affected by those given resolutions.

                                     *

   95. The Court first notes that resolution 1244 (1999) must be read in
conjunction with the general principles set out in annexes 1 and 2 thereto,
since in the resolution itself, the Security Council : “1. Decide[d] that a
political solution to the Kosovo crisis shall be based on the general prin-
ciples in annex 1 and as further elaborated in the principles and other
required elements in annex 2.” Those general principles sought to defuse
 he Kosovo crisis first by ensuring an end to the violence and repression
 n Kosovo and by the establishment of an interim administration. A

43

onger-term solution was also envisaged, in that resolution 1244 (1999)
was to initiate
     “[a] political process towards the establishment of an interim
     political framework agreement providing for a substantial self-
     government for Kosovo, taking full account of the Rambouillet
     accords and the principles of sovereignty and territorial integrity of
     the Federal Republic of Yugoslavia and the other countries of the
     region, and the demilitarization of the KLA” (Security Council
     resolution 1244 (1999) of 10 June 1999, Ann. 1, sixth principle ;
     ibid., Ann. 2, para. 8).
Further, it bears recalling that the tenth preambular paragraph of resolu-
 ion 1244 (1999) also recalled the sovereignty and the territorial integrity
of the Federal Republic of Yugoslavia.
   96. Having earlier outlined the principal characteristics of Security
Council resolution 1244 (1999) (see paragraphs 58 to 59), the Court next
observes that three distinct features of that resolution are relevant for dis-
cerning its object and purpose.
   97. First, resolution 1244 (1999) establishes an international civil and
security presence in Kosovo with full civil and political authority and sole
responsibility for the governance of Kosovo. As described above (see
paragraph 60), on 12 June 1999, the Secretary-General presented to the
Security Council his preliminary operational concept for the overall
organization of the civil presence under UNMIK. On 25 July 1999, the
Special Representative of the Secretary-General promulgated UNMIK
regulation 1999/1, deemed to have entered into force as of 10 June 1999,
 he date of adoption of Security Council resolution 1244 (1999). Under
 his regulation, “[a]ll legislative and executive authority with respect to
Kosovo, including the administration of the judiciary”, was vested in
UNMIK and exercised by the Special Representative. Viewed together,
resolution 1244 (1999) and UNMIK regulation 1999/1 therefore had the
effect of superseding the legal order in force at that time in the territory
of Kosovo and setting up an international territorial administration. For
 his reason, the establishment of civil and security presences in Kosovo
deployed on the basis of resolution 1244 (1999) must be understood as an
exceptional measure relating to civil, political and security aspects and
aimed at addressing the crisis existing in that territory in 1999.

   98. Secondly, the solution embodied in resolution 1244 (1999), namely,
 he implementation of an interim international territorial administration,
was designed for humanitarian purposes ; to provide a means for the
stabilization of Kosovo and for the re-establishment of a basic public
order in an area beset by crisis. This becomes apparent in the text of reso-
 ution 1244 (1999) itself which, in its second preambular paragraph, recalls
Security Council resolution 1239, adopted on 14 May 1999, in which the
Security Council had expressed “grave concern at the humanitarian crisis

44

 n and around Kosovo”. The priorities which are identified in
paragraph 11 of resolution 1244 (1999) were elaborated further in the
so-called “four pillars” relating to the governance of Kosovo described
 n the Report of the Secretary-General of 12 June 1999 (paragraph 60
above). By placing an emphasis on these “four pillars”, namely, interim
civil administration, humanitarian affairs, institution building and recon-
struction, and by assigning responsibility for these core components to
different international organizations and agencies, resolution 1244 (1999)
was clearly intended to bring about stabilization and reconstruction. The
 nterim administration in Kosovo was designed to suspend temporarily
Serbia’s exercise of its authority flowing from its continuing sovereignty
over the territory of Kosovo. The purpose of the legal régime established
under resolution 1244 (1999) was to establish, organize and oversee the
development of local institutions of self-government in Kosovo under the
aegis of the interim international presence.

   99. Thirdly, resolution 1244 (1999) clearly establishes an interim
régime ; it cannot be understood as putting in place a permanent insti-
 utional framework in the territory of Kosovo. This resolution man-
dated UNMIK merely to facilitate the desired negotiated solution for
Kosovo’s future status, without prejudging the outcome of the negotiat-
 ng process.
   100. The Court thus concludes that the object and purpose of resolu-
 ion 1244 (1999) was to establish a temporary, exceptional legal régime
which, save to the extent that it expressly preserved it, superseded the
Serbian legal order and which aimed at the stabilization of Kosovo, and
 hat it was designed to do so on an interim basis.

2. The question whether the declaration of independence is in accordance
   with Security Council resolution 1244 (1999) and the measures adopted
   thereunder

  101. The Court will now turn to the question whether Security Council
resolution 1244 (1999), or the measures adopted thereunder, introduces a
specific prohibition on issuing a declaration of independence, applicable
 o those who adopted the declaration of independence of 17 February
2008. In order to answer this question, it is first necessary, as explained in
paragraph 52 above, for the Court to determine precisely who issued that
declaration.

  (a) The identity of the authors of the declaration of independence

  102. The Court needs to determine whether the declaration of inde-
pendence of 17 February 2008 was an act of the “Assembly of Kosovo”,
one of the Provisional Institutions of Self-Government, established under

45

Chapter 9 of the Constitutional Framework, or whether those who
adopted the declaration were acting in a different capacity.
   103. The Court notes that different views have been expressed regard-
 ng this question. On the one hand, it has been suggested in the proceed-
 ngs before the Court that the meeting in which the declaration
was adopted was a session of the Assembly of Kosovo, operating as a
Provisional Institution of Self-Government within the limits of the
Constitutional Framework. Other participants have observed that both
 he language of the document and the circumstances under which it was
adopted clearly indicate that the declaration of 17 February 2008 was
not the work of the Provisional Institutions of Self-Government and did
not take effect within the legal framework created for the Government of
Kosovo during the interim phase.
   104. The Court notes that, when opening the meeting of 17 February
2008 at which the declaration of independence was adopted, the Presi-
dent of the Assembly and the Prime Minister of Kosovo made reference
 o the Assembly of Kosovo and the Constitutional Framework. The
Court considers, however, that the declaration of independence must be
seen in its larger context, taking into account the events preceding its
adoption, notably relating to the so-called “final status process” (see
paragraphs 64 to 73). Security Council resolution 1244 (1999) was mostly
concerned with setting up an interim framework of self-government
 or Kosovo (see paragraph 58 above). Although, at the time of the adop-
 ion of the resolution, it was expected that the final status of Kosovo
would flow from, and be developed within, the framework set up by the
resolution, the specific contours, let alone the outcome, of the final status
process were left open by Security Council resolution 1244 (1999).
Accordingly, its paragraph 11, especially in its subparagraphs (d), (e) and (f),
deals with final status issues only in so far as it is made part of UNMIK’s
responsibilities to “[f]acilitat[e] a political process designed to determine
Kosovo’s future status, taking into account the Rambouillet accords”
and “[i]n a final stage, [to oversee] the transfer of authority from Kos-
ovo’s provisional institutions to institutions established under a political
settlement”.

   105. The declaration of independence reflects the awareness of its
authors that the final status negotiations had failed and that a critical
moment for the future of Kosovo had been reached. The preamble of the
declaration refers to the “years of internationally-sponsored negotiations
between Belgrade and Pristina over the question of our future political
status” and expressly puts the declaration in the context of the failure of
 he final status negotiations, inasmuch as it states that “no mutually-
acceptable status outcome was possible” (tenth and eleventh preambular
paragraphs). Proceeding from there, the authors of the declaration of
 ndependence emphasize their determination to “resolve” the status of
Kosovo and to give the people of Kosovo “clarity about their future”

46

 thirteenth preambular paragraph). This language indicates that the
authors of the declaration did not seek to act within the standard frame-
work of interim self-administration of Kosovo, but aimed at establishing
Kosovo “as an independent and sovereign State” (para. 1). The declara-
 ion of independence, therefore, was not intended by those who adopted
 t to take effect within the legal order created for the interim phase, nor
was it capable of doing so. On the contrary, the Court considers that the
authors of that declaration did not act, or intend to act, in the capacity of
an institution created by and empowered to act within that legal order
but, rather, set out to adopt a measure the significance and effects of
which would lie outside that order.

   106. This conclusion is reinforced by the fact that the authors of the
declaration undertook to fulfil the international obligations of Kosovo,
notably those created for Kosovo by UNMIK (para. 9), and expressly
and solemnly declared Kosovo to be bound vis-à-vis third States by the
commitments made in the declaration (para. 12). By contrast, under the
régime of the Constitutional Framework, all matters relating to the man-
agement of the external relations of Kosovo were the exclusive preroga-
 ive of the Special Representative of the Secretary-General :

     “(m) concluding agreements with states and international organi-
          zations in all matters within the scope of UNSCR 1244 (1999) ;

      (n) overseeing the fulfilment of commitments in international
          agreements entered into on behalf of UNMIK ;
      (o) external relations, including with States and international
          organizations . . .” (Chap. 8.1 of the Constitutional Frame-
          work, “Powers and Responsibilities Reserved to the SRSG”),

with the Special Representative of the Secretary-General only consulting
and co-operating with the Provisional Institutions of Self-Government in
 hese matters.
   107. Certain features of the text of the declaration and the circum-
stances of its adoption also point to the same conclusion. Nowhere in the
original Albanian text of the declaration (which is the sole authentic text)
 s any reference made to the declaration being the work of the Assembly
of Kosovo. The words “Assembly of Kosovo” appear at the head of the
declaration only in the English and French translations contained in the
dossier submitted on behalf of the Secretary-General. The language used
 n the declaration differs from that employed in acts of the Assembly of
Kosovo in that the first paragraph commences with the phrase “We, the
democratically-elected leaders of our people . . .”, whereas acts of the
Assembly of Kosovo employ the third person singular.

47

   Moreover, the procedure employed in relation to the declaration dif-
 ered from that employed by the Assembly of Kosovo for the adoption of
 egislation. In particular, the declaration was signed by all those present
when it was adopted, including the President of Kosovo, who (as noted
 n paragraph 76 above) was not a member of the Assembly of Kosovo. In
 act, the self-reference of the persons adopting the declaration of inde-
pendence as “the democratically-elected leaders of our people” immedi-
ately precedes the actual declaration of independence within the text
 “hereby declare Kosovo to be an independent and sovereign State” ;
para. 1). It is also noticeable that the declaration was not forwarded to
 he Special Representative of the Secretary-General for publication in the
Official Gazette.

   108. The reaction of the Special Representative of the Secretary-
General to the declaration of independence is also of some significance.
The Constitutional Framework gave the Special Representative power
 o oversee and, in certain circumstances, annul the acts of the Provisional
Institutions of Self-Government. On previous occasions, in particular in
 he period between 2002 and 2005, when the Assembly of Kosovo took
 nitiatives to promote the independence of Kosovo, the Special Repre-
sentative had qualified a number of acts as being incompatible with the
Constitutional Framework on the grounds that they were deemed to be
“beyond the scope of [the Assembly’s] competencies” (United Nations
dossier No. 189, 7 February 2003) and therefore outside the powers of
 he Assembly of Kosovo.
   The silence of the Special Representative of the Secretary-General in
 he face of the declaration of independence of 17 February 2008 suggests
 hat he did not consider that the declaration was an act of the Provisional
Institutions of Self-Government designed to take effect within the legal
order for the supervision of which he was responsible. As the practice
shows, he would have been under a duty to take action with regard to
acts of the Assembly of Kosovo which he considered to be ultra vires.

  The Court accepts that the Report of the Secretary-General on the
United Nations Interim Administration Mission in Kosovo, submitted to
 he Security Council on 28 March 2008, stated that “the Assembly of
Kosovo held a session during which it adopted a ‘declaration of inde-
pendence’, declaring Kosovo an independent and sovereign State”
 United Nations doc. S/2008/211, para. 3). This was the normal periodic
report on UNMIK activities, the purpose of which was to inform the
Security Council about developments in Kosovo ; it was not intended as
a legal analysis of the declaration or the capacity in which those who
adopted it had acted.
  109. The Court thus arrives at the conclusion that, taking all factors
 ogether, the authors of the declaration of independence of 17 February
2008 did not act as one of the Provisional Institutions of Self-Govern-
ment within the Constitutional Framework, but rather as persons who

48

acted together in their capacity as representatives of the people of Kos-
ovo outside the framework of the interim administration.

     (b) The question whether the authors of the declaration of indepen-
         dence acted in violation of Security Council resolution 1244 (1999)
         or the measures adopted thereunder

   110. Having established the identity of the authors of the declaration
of independence, the Court turns to the question whether their act in
promulgating the declaration was contrary to any prohibition contained
 n Security Council resolution 1244 (1999) or the Constitutional Frame-
work adopted thereunder.
   111. The Court recalls that this question has been a matter of contro-
versy in the present proceedings. Some participants to the proceedings
have contended that the declaration of independence of 17 February
2008 was a unilateral attempt to bring to an end the international pres-
ence established by Security Council resolution 1244 (1999), a result
which it is said could only be effectuated by a decision of the Security
Council itself. It has also been argued that a permanent settlement for
Kosovo could only be achieved either by agreement of all parties involved
 notably including the consent of the Republic of Serbia) or by a specific
Security Council resolution endorsing a specific final status for Kosovo,
as provided for in the Guiding Principles of the Contact Group. Accord-
 ng to this view, the unilateral action on the part of the authors of the
declaration of independence cannot be reconciled with Security Council
resolution 1244 (1999) and thus constitutes a violation of that resolution.

   112. Other participants have submitted to the Court that Security
Council resolution 1244 (1999) did not prevent or exclude the possibility
of Kosovo’s independence. They argued that the resolution only regu-
 ates the interim administration of Kosovo, but not its final or permanent
status. In particular, the argument was put forward that Security Council
resolution 1244 (1999) does not create obligations under international
 aw prohibiting the issuance of a declaration of independence or making
 t invalid, and does not make the authors of the declaration of independ-
ence its addressees. According to this position, if the Security Council
had wanted to preclude a declaration of independence, it would have
done so in clear and unequivocal terms in the text of the resolution, as it
did in resolution 787 (1992) concerning the Republika Srpska. In addi-
 ion, it was argued that the references, in the annexes of Security Council
resolution 1244 (1999), to the Rambouillet accords and thus indirectly to
 he “will of the people” (see Chapter 8.3 of the Rambouillet accords) of
Kosovo, support the view that Security Council resolution 1244 (1999)
not only did not oppose the declaration of independence, but indeed con-
 emplated it. Other participants contended that at least once the negoti-

49

ating process had been exhausted, Security Council resolution 1244 (1999)
was no longer an obstacle to a declaration of independence.

                                     *
   113. The question whether resolution 1244 (1999) prohibits the authors
of the declaration of 17 February 2008 from declaring independence from
 he Republic of Serbia can only be answered through a careful reading of
 his resolution (see paras. 94 et seq.).
   114. First, the Court observes that Security Council resolution 1244
 1999) was essentially designed to create an interim régime for Kosovo,
with a view to channelling the long-term political process to establish its
final status. The resolution did not contain any provision dealing with the
final status of Kosovo or with the conditions for its achievement.

   In this regard the Court notes that contemporaneous practice of the
Security Council shows that in situations where the Security Council has
decided to establish restrictive conditions for the permanent status of a
 erritory, those conditions are specified in the relevant resolution. For
example, although the factual circumstances differed from the situation
 n Kosovo, only 19 days after the adoption of resolution 1244 (1999), the
Security Council, in its resolution 1251 of 29 June 1999, reaffirmed its
position that a “Cyprus settlement must be based on a State of Cyprus
with a single sovereignty and international personality and a single citi-
zenship, with its independence and territorial integrity safeguarded”
 para. 11). The Security Council thus set out the specific conditions relat-
 ng to the permanent status of Cyprus.

   By contrast, under the terms of resolution 1244 (1999) the Security
Council did not reserve for itself the final determination of the situation
 n Kosovo and remained silent on the conditions for the final status of
Kosovo.
   Resolution 1244 (1999) thus does not preclude the issuance of the dec-
 aration of independence of 17 February 2008 because the two instru-
ments operate on a different level : unlike resolution 1244 (1999), the
declaration of independence is an attempt to determine finally the status
of Kosovo.
   115. Secondly, turning to the question of the addressees of Security
Council resolution 1244 (1999), as described above (see paragraph 58), it
sets out a general framework for the “deployment in Kosovo, under
United Nations auspices, of international civil and security presences”
 para. 5). It is mostly concerned with creating obligations and authoriza-
 ions for United Nations Member States as well as for organs of the
United Nations such as the Secretary-General and his Special Repre-
sentative (see notably paras. 3, 5, 6, 7, 9, 10 and 11 of Security Council
resolution 1244 (1999)). The only point at which resolution 1244 (1999)

50

expressly mentions other actors relates to the Security Council’s demand,
on the one hand, “that the KLA and other armed Kosovo Albanian
groups end immediately all offensive actions and comply with the require-
ments for demilitarization” (para. 15) and, on the other hand, for the
“full co-operation by all concerned, including the international security
presence, with the International Tribunal for the former Yugoslavia”
 para. 14). There is no indication, in the text of Security Council resolu-
 ion 1244 (1999), that the Security Council intended to impose, beyond
 hat, a specific obligation to act or a prohibition from acting, addressed
 o such other actors.
   116. The Court recalls in this regard that it has not been uncommon
 or the Security Council to make demands on actors other than United
Nations Member States and inter-governmental organizations. More spe-
cifically, a number of Security Council resolutions adopted on the subject
of Kosovo prior to Security Council resolution 1244 (1999) contained
demands addressed eo nomine to the Kosovo Albanian leadership. For
example, resolution 1160 (1998) “[c]all[ed] upon the authorities in Bel-
grade and the leadership of the Kosovar Albanian community urgently to
enter without preconditions into a meaningful dialogue on political status
 ssues” (resolution 1160 (1998), para. 4 ; emphasis added). Resolution 1199
 1998) included four separate demands on the Kosovo Albanian leader-
ship, i.e., improving the humanitarian situation, entering into a dialogue
with the Federal Republic of Yugoslavia, pursuing their goals by peaceful
means only, and co-operating fully with the Prosecutor of the Interna-
 ional Criminal Tribunal for the former Yugoslavia (resolution
1199 (1998), paras. 2, 3, 6 and 13). Resolution 1203 (1998) “[d]em-
and[ed] . . . that the Kosovo Albanian leadership and all other elements
of the Kosovo Albanian community comply fully and swiftly with reso-
 utions 1160 (1998) and 1199 (1998) and co-operate fully with the OSCE
Verification Mission in Kosovo” (resolution 1203 (1998), para. 4).
The same resolution also called upon the “Kosovo Albanian leadership
 o enter immediately into a meaningful dialogue without preconditions
and with international involvement, and to a clear timetable, leading to
an end of the crisis and to a negotiated political solution to the issue of
Kosovo” ; demanded that “the Kosovo Albanian leadership and all
others concerned respect the freedom of movement of the OSCE Verification
Mission and other international personnel” ; “[i]nsist[ed] that the Kosovo
Albanian leadership condemn all terrorist actions” ; and demanded that
 he Kosovo Albanian leadership “co-operate with international efforts to
 mprove the humanitarian situation and to avert the impending humani-
 arian catastrophe” (resolution 1203 (1998), paras. 5, 6, 10 and 11).

  117. Such reference to the Kosovo Albanian leadership or other actors,
notwithstanding the somewhat general reference to “all concerned”

51

 para. 14), is missing from the text of Security Council resolution 1244
 1999). When interpreting Security Council resolutions, the Court must
establish, on a case-by-case basis, considering all relevant circumstances,
 or whom the Security Council intended to create binding legal obliga-
 ions. The language used by the resolution may serve as an important
 ndicator in this regard. The approach taken by the Court with regard to
 he binding effect of Security Council resolutions in general is, mutatis
mutandis, also relevant here. In this context, the Court recalls its previous
statement that :

        “The language of a resolution of the Security Council should be
     carefully analysed before a conclusion can be made as to its binding
     effect. In view of the nature of the powers under Article 25, the ques-
     tion whether they have been in fact exercised is to be determined in
     each case, having regard to the terms of the resolution to be inter-
     preted, the discussions leading to it, the Charter provisions invoked
     and, in general, all circumstances that might assist in determining
     the legal consequences of the resolution of the Security Council.”
     (Legal Consequences for States of the Continued Presence of South
     Africa in Namibia (South West Africa) notwithstanding Security
     Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports
     1971, p. 53, para. 114.)
  118. Bearing this in mind, the Court cannot accept the argument that
Security Council resolution 1244 (1999) contains a prohibition, binding
on the authors of the declaration of independence, against declaring inde-
pendence ; nor can such a prohibition be derived from the language of the
resolution understood in its context and considering its object and pur-
pose. The language of Security Council resolution 1244 (1999) is at best
ambiguous in this regard. The object and purpose of the resolution, as
has been explained in detail (see paragraphs 96 to 100), is the establish-
ment of an interim administration for Kosovo, without making any
definitive determination on final status issues. The text of the resolution
explains that the
     “main responsibilities of the international civil presence will
     include . . . [o]rganizing and overseeing the development of provi-
     sional institutions for democratic and autonomous self-government
     pending a political settlement” (para. 11 (c) of the resolution ;
     emphasis added).
The phrase “political settlement”, often cited in the present proceedings,
does not modify this conclusion. First, that reference is made within the
context of enumerating the responsibilities of the international civil pres-
ence, i.e., the Special Representative of the Secretary-General in Kosovo
and UNMIK, and not of other actors. Secondly, as the diverging views
presented to the Court on this matter illustrate, the term “political settle-
ment” is subject to various interpretations. The Court therefore con-

52

cludes that this part of Security Council resolution 1244 (1999) cannot be
construed to include a prohibition, addressed in particular to the authors
of the declaration of 17 February 2008, against declaring independence.

   119. The Court accordingly finds that Security Council resolu-
 ion 1244 (1999) did not bar the authors of the declaration of 17 Febru-
ary 2008 from issuing a declaration of independence from the Republic
of Serbia. Hence, the declaration of independence did not violate Security
Council resolution 1244 (1999).

                                    *
   120. The Court therefore turns to the question whether the declaration
of independence of 17 February 2008 has violated the Constitutional
Framework established under the auspices of UNMIK. Chapter 5 of the
Constitutional Framework determines the powers of the Provisional
Institutions of Self-Government of Kosovo. It was argued by a number
of States which participated in the proceedings before the Court that the
promulgation of a declaration of independence is an act outside the
powers of the Provisional Institutions of Self-Government as set out in
 he Constitutional Framework.
   121. The Court has already held, however (see paragraphs 102 to 109
above), that the declaration of independence of 17 February 2008 was
not issued by the Provisional Institutions of Self-Government, nor was it
an act intended to take effect, or actually taking effect, within the legal
order in which those Provisional Institutions operated. It follows that the
authors of the declaration of independence were not bound by the frame-
work of powers and responsibilities established to govern the conduct of
 he Provisional Institutions of Self-Government. Accordingly, the Court
finds that the declaration of independence did not violate the Constitu-
 ional Framework.

                                  * * *

                        V. GENERAL CONCLUSION
   122. The Court has concluded above that the adoption of the decla-
ration of independence of 17 February 2008 did not violate general
 nternational law, Security Council resolution 1244 (1999) or the Constitu-
 ional Framework. Consequently the adoption of that declaration did
not violate any applicable rule of international law.

                                  * * *
  123. For these reasons,
  THE COURT,
  (1) Unanimously,

53

  Finds that it has jurisdiction to give the advisory opinion requested ;
  (2) By nine votes to five,
  Decides to comply with the request for an advisory opinion ;
  IN FAVOUR : President Owada ; Judges Al-Khasawneh, Buergenthal, Simma,
     Abraham, Sepúlveda-Amor, Cançado Trindade, Yusuf, Greenwood ;
  AGAINST : Vice-President Tomka ; Judges Koroma, Keith, Bennouna, Skot-
     nikov ;
3) By ten votes to four,
  Is of the opinion that the declaration of independence of Kosovo
adopted on 17 February 2008 did not violate international law.
  IN FAVOUR : President Owada ; Judges Al-Khasawneh, Buergenthal, Simma,
    Abraham, Keith, Sepúlveda-Amor, Cançado Trindade, Yusuf, Green-
    wood ;
  AGAINST : Vice-President Tomka ; Judges Koroma, Bennouna, Skotnikov.

  Done in English and in French, the English text being authoritative, at
 he Peace Palace, The Hague, this twenty-second day of July, two thou-
sand and ten, in two copies, one of which will be placed in the archives of
 he Court and the other transmitted to the Secretary-General of the
United Nations.

(Signed) President.                        (Signed) Hisashi OWADA,
                                                       President.
                                         (Signed) Philippe COUVREUR,
                                                       Registrar.

  Vice-President TOMKA appends a declaration to the Advisory Opinion
of the Court ; Judge KOROMA appends a dissenting opinion to the Advi-
sory Opinion of the Court ; Judge SIMMA appends a declaration to the
Advisory Opinion of the Court ; Judges KEITH and SEPÚLVEDA-AMOR
append separate opinions to the Advisory Opinion of the Court ;
Judges BENNOUNA and SKOTNIKOV append dissenting opinions to the
Advisory Opinion of the Court ; Judges CANÇADO TRINDADE and YUSUF
append separate opinions to the Advisory Opinion of the Court.

                                                     (Initialled) H.O.
                                                     (Initialled) Ph.C.

54