389

SEPARATE OPINION OF JUDGE ODA

1, Although I would agree with the Court in its conclusions regarding
the grounds of objection to the judgement of the United Nations Admin-
istrative Tribunal (UNAT), I regret to say that I cannot agree that the
Court, in the circumstances, ought to have complied with the request for an
advisory opinion.

PART |

2. The Court’s Opinion points out various irregularities regarding the
composition of the Administrative Tribunal, the procedures in the Com-
mittee on Applications for Review of Administrative Tribunal Judgements
(hereafter referred to as the Committee on Applications) and the appli-
cation of the United States to the Committee on Applications, as well as
the failure of the Committee on Applications to do all in its power to secure
equality between the applicant State and the staff member (paras. 33-44).
Yet, despite these difficulties, the Court still holds the view that it should
comply with the request in the present case in view of the Court’s juris-
prudence to the effect that only “compelling reasons” would justify a
refusal. In my view, however, the Court should have declined a reply, on
the particular ground that the actual question conveyed in the request for
advisory opinion is (i) not only extremely sparse and elliptical, or infelici-
tously expressed and vague, but (ii) also based on a misinterpretation of
the judgement of the Administrative Tribunal. The question in the Request
seeking an advisory opinion of the Court, identical to that referred to in the
application of the United States presented to the Committee on Applica-
tions on 15 June 1981, read as follows :

“Ts the judgement of the United Nations Administrative Tribunal in
Judgement No. 273, Mortished v. the Secretary-General, warranted in
determining that General Assembly resolution 34/165 of 17 Decem-
ber 1979 could not be given immediate effect in requiring, for the
payment of repatriation grants, evidence of relocation to a country
other than the country of the staff member’s last duty station ?”

3. The UNAT Statute specifies the grounds on which ajudgement of the

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Tribunal may be challenged through the medium of advisory jurisdiction.
Under Article 11, an application may be made to the Committee on
Applications for the purpose of obtaining the review of ajudgement on any
of the following grounds, namely that the Tribunal has :

(i) “exceeded its jurisdiction or competence” ;
(ii) “failed to exercise jurisdiction vested in it” ;
(iii) “erred on a question of law relating to the provisions of the Charter of
the United Nations” ; or
(iv) “committed a fundamental error in procedure which has occasioned
a failure of justice”.

If the Committee on Applications decides that a substantial basis for the
application exists, it shall request an advisory opinion of the International
Court of Justice (Art. 11, para. 2). However, the Request in this case,
though expressly stating that the Committee on Applications has decided
that there is a substantial basis within the meaning of Article 11 of the
Statute for the application of the United States, fails to specify any of these
four grounds. This makes this case quite different from the only previous
case to have come before the Court on the basis of the application of the
aforesaid Article 11, namely that concerning an Application for Review of
Judgement No. 158 of the United Nations Administrative Tribunal. Now,
whereas in that earlier case two grounds were specifically mentioned to
justify the application for review, scrutiny of the drafting of the present
Request raises doubt in my mind as to whether the Committee on Appli-
cations examined the matter sufficiently to convince itself that there was,
in this case, a substantial basis within the meaning of Article 11 of the
UNAT Statute.

4. The United States application of 15 June 1981, asking the Committee
on Applications to request an advisory opinion of the Court, not only
failed to comply with some of the procedural requirements, as pointed out
in the Opinion of the Court (paras. 39-41), but also overlooked the re-
quirement implicit under its Statute of indicating the ground or grounds
on which the United States objected to the judgement in question.
Although the United States representative stated in the Committee on
Applications that the

“issue of the Tribunal’s having exceeded its jurisdiction and erred ona
question of law relating to the Charter has been placed before this
Committee in the application” (A/AC.86/PV.1, p. 16),

this is not verily a fact. The importance of this failure on the part of the
United States when applying to the Committee on Applications will be
savoured if one considers that the applicant State is not necessarily a
member of the Committee on Applications, and that it thus might not have
had a chance in the Committee on Applications orally to make points not
apparent in the original application.

5. In the Committee on Applications it was not the representative of the
United States but the Chairman and delegates of other countries who were

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more concerned with the specific grounds on which review was called for.
After the Chairman pointed out the four grounds specified in the Statute
(A/AC.86/PV.1, p.21), the United Kingdom representative stated his
view on two grounds of the four :

“The first is that the Tribunal erred on a question of law relating to
the Charter. Article 101 lays down that the staff regulations shall be
established by the General Assembly, and the relevant paragraph of
resolution 34/165 was an exercise of that function. The second is that
the Tribunal exceeded its jurisdiction or competence in giving more
weight to the doctrine of acquired rights than General Assembly
resolution 34/165.” (Pp. 22-23.)

Only after these statements did the United States representative state :

“We are here to decide whether or not there is sufficient merit in the
concern that the Administrative Tribunal has or may have exceeded its
jurisdiction, or committed an error of law in relation to an interpre-
tation of a provision of the Charter, to require the advice of the
International Court of Justice.” (P. 29.)

The representative of France, on the other hand, clearly pointed out that
“in its application the United States [did] not explicitly invoke any of these
grounds” (pp. 38-40) and concluded that the only question which the
Committee was asked or empowered to consider or on which it was
empowered to give an answer, if possible, was : “is there serious reason to
believe that the Administrative Tribunal erred on a question of law relating
to the Charter of the United Nations ?” After repeating that “none of the
grounds mentioned in article 11 of the Statute of the Administrative Tri-
bunal [were] explicitly invoked by the United States”, the representative of
France further stated that :

“We find that, even if the United States had implicitly invoked an
error on a question of law concerning the provisions of the Charter,
this ground should be rejected as lacking a valid basis ; we find that the
Tribunal committed no error of interpretation of Article 101 of the
Charter since — on the contrary — it recognizes the competence of the
General Assembly ; and we find, moreover, that the United States
itself recognizes that the Tribunal has some competence to give rulings
on decisions of the General Assembly.” (A/AC.86/PV.1, p. 42.)

So far as the minutes of the Committee indicate, these were practically all
the discussions held in the Committee concerning the grounds which are
referred to in Article 11 of the Statute of the Tribunal and which, according
to Article II, paragraph 3 (c), of the Committee’s Provisional Rules of

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Procedure, ought to have been indicated in the application for review. It
was not even argued in the Committee how the grounds should be invoked
in applying for review in this case. If there was any explanation on this
subject, it was only that made by the representative of the United King-
dom, as quoted above, who stated :

(i) concerning excess of jurisdiction or competence :

“The Tribunal exceeded its jurisdiction or competence in giving
more weight to the doctrine of acquired rights than General Assembly
resolution 34/165” ; and

(ii) concerning error on a question of law relating to the provisions of the
Charter :

“Article 101 lays down that the staff regulations shall be established
by the General Assembly, and the relevant paragraph of resolution
34/165 was an exercise of that function.”

6. Without ascertaining how any of the four grounds could justifiably
have constituted a basis for a request for an advisory opinion of the Court,
the Chairman of the Committee on Applications, simply requesting the
Committee to indicate whether there was substantial basis for the appli-
cation within the meaning of Article 11 on the two grounds of the four,
proceeded to put these two points to the vote. The two issues and the results
of the voting were as follows :

(a) the ground that “the Tribunal has erred on a question of law relating to
the provisions of the Charter of the United Nations” : a vote of 14 to 2,
with 1 abstention ;

(b) the ground that “the Tribunal has exceeded its jurisdiction or compe-
tence” : a vote of 10 to 2, with 6 abstentions.

In spite of these decisions of the Committee on Applications, I would
suggest that these grounds had scarcely been discussed in the Commit-
tee.

7. While the question in the Request was not formulated so as to satisfy
the necessary conditions, the Court, relying upon the settled jurisprudence
whereby it may “seek to bring out what it conceives to be the real meaning
of the Committee’s request” (para. 47), holds the view that, in spite of the
incompleteness of the Request in this case,

“If [the legal questions really at issue in questions formulated in a
request], once ascertained, prove to be questions ‘which may properly
be considered as falling within the terms of one or more of’ the
grounds contemplated in Article 11 of the Statute of the Tribunal,
it is upon those questions that the Court can give its opinion.”
(Para. 48.)

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The Court takes up the question as to whether the Tribunal had erred ona
question of law relating to the provisions of the United Nations Charter. If,
despite the tortuous phraseology of the Request, one can suppose that the
judgement was opposed on the ground that the Tribunal had erred on a
question of law relating to the provisions of the Charter, as can be spe-
culated from the deliberations in the Committee on Applications (the
Court reformulates the question put in the Request in that sense), I still
would have some doubts whether the ground that the Tribunal had erred
on such a question would have applied in this case — in other words, if the
judgement of the Administrative Tribunal which was dealing with amend-
ments to Staff Rules — not Charter provisions — could prima facie have
been challenged on that ground.

8. It is pertinent here to investigate how this ground, as provided for in
Article 11 of the UNAT Statute, was brought in as a ground for the review
procedure therein contemplated. While the Statute of the ILO Adminis-
trative Tribunal, adopted on 9 October 1946, specified two grounds —
wrongful confirmation of jurisdiction, and fundamental fault in the pro-
cedure followed — as capable of founding a request for an advisory opinion
of the Court, the process of introducing the review system for UNAT
judgements, in 1955, resulted in the addition of two further grounds where
that Tribunal was concerned. Under one of these new grounds, cases
would be covered where the Tribunal had “erred on a question of law
relating to the provisions of the Charter of the United Nations”. As clearly
explained in the Opinion :

“the formulation of this clause was the result of a compromise be-
tween those who wanted a review system dealing with questions of
law more generally, and those who favoured the narrower range of
permissible objections that appears in the Statute of the International
Labour Organisation Administrative Tribunal” (para. 63).

9. In the Special Committee on Review of Administrative Tribunal
Judgements, convened on 4 April 1955, the discussions which took place
between 11 and 14 April to consider various draft proposals brought to
light a wide divergence of views. In an effort to achieve a broader basis of
agreement, a new joint draft amendment was introduced on 20 April by
the representative of the United Kingdom on behalf of China, Iraq, Paki-
stan, the United Kingdom and the United States (A/AC.78/L.14 and
Corr.l) ; this suggested that the judgement might be objected to

“on the ground that the Tribunal has exceeded its jurisdiction or
competence, or has erred on a question of law relating to the provi-
sions of the Charter, or has committed a fundamental error in pro-
cedure ...”

The representative of the United Kingdom, after having stated that the
element of an error on a question of law “represented the highest common
factor of agreement”, remarked, on behalf of the co-sponsoring States,
that

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“[This] ground, while attempting to meet half-way those represen-
tatives who favoured inclusion of any substantial question of law as a
ground for review, provided a safeguard against the danger that review
might become a matter of course in all cases. It attempted to define
with maximum precision what questions of law could be grounds for
review. The words ‘relating to the provisions of the Charter’ covered
not only interpretations of the provisions of the Charter but also the
interpretation or application of staff regulations deriving from Chap-
ter XV of the Charter.” (A/AC.78/SR.10, p. 3.)

On the other hand, the representative of the United States specified certain
concrete cases to be covered under the ground mentioned above. He said
that his Government

“understood the ... ground ... to include (a) a question under Ar-
ticle 101 of the Charter whether the Secretary-Generai’s judgement
should be upheld with regard to the conduct of a staff member under
United Nations standards of efficiency, competence and integrity ; (b)
a question under Article 97 whether the Secretary-General’s action in
giving directions to or taking disciplinary action against a staff mem-
ber should be sustained ; (c) a question under Article 100 involving a
staff member’s duty to refrain from any action which might reflect on
his position as an international civil servant responsible only to the
Organization” (ibid. p. 6).

Paragraph 1 of this joint proposal, which contained the relevant ground,
was adopted by 9 votes to 5, with 3 abstentions, and the joint proposal, as a
whole, was finally adopted by a roll-call vote of 9 to 4, with 4 abstentions.
Thus the Special Committee recommended to the consideration of the
General Assembly the draft amendments to the Statute of the Adminis-
trative Tribunal which contained the paragraph as quoted above from the
five nations’ joint draft proposal.

10. The report of the Special Committee was on the agenda as item 49 of
the tenth session of the General Assembly in 1955 and was referred to the
deliberations of the Fifth Committee. The Fifth Committee started delib-
eration on this agenda on 17 October 1955. By that time the draft recom-
mended by the Special Committee, as well as a joint draft resolution
submitted by Argentina, Canada, China, Cuba, Iraq, Pakistan, the United
Kingdom and the United States (A/C.5/L.335 and Add.1), had been made
available. The eight powers’ joint proposal contained a provision exactly
identical to that recommended by the Special Committee, and thus also
identical to the original five-nation proposal presented in the Special
Committee, as quoted in paragraph 9 of this opinion.

11. It was apparent at the outset that the staff of the Secretariat, as well

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as the United Nations Secretary-General, held a somewhat negative atti-
tude towards the suggested review system. A letter of 10 October 1955 from
the Chairman of the Staff Committee to the Secretary-General, which was
made available to the Fifth Committee, read as follows :

“VI, 15. The proposed procedure is certainly a complex one ; it
would undoubtedly be lengthy ; it might well be uneconomical for all
concerned. But more important than these practical weaknesses is the
fact that it would not accord with the principles inherent in the
concept of judicial review. The Staff Council fears that the proposed
procedure might be so used in practice as to frustrate the declared
purpose for which it was created.” (A/C.5/634.)

Opening the Fifth Committee discussion on this subject, the Secretary-
General made some observations along the following lines :

“at no time have I felt the need for a review procedure with respect to
the normal cases coming before the Administrative Tribunal. For its
part the Staff Council has stated that it does not consider it necessary a
procedure for reviewing judgements of the Administrative Tribunal.
Even though there has, quite naturally, not been full agreement with
every judgment, there has been no feeling that a new step in the
judicial procedure is necessary.” “I consider basic for any review
procedure which may be adopted [the principle (one of four) that] the
review should serve only as an outlet in exceptional cases and should
not be for regular use.” (A/C.5/635.)

The discussions on these points were summarized in the report of the Fifth
Committee (A/3016) as follows :

“12. Discussion in the Fifth Committee centred primarily on the
proposed new article 11. In favour of this article, it was argued that
experience had shown a need for some method of review of the
Administrative Tribunal judgements in certain cases. By having a
procedure of judicial review available in the event of crisis, the dis-
cussion of cases in the General Assembly could be avoided ...

13. It was pointed out that the recommendations of the Special
Committee represented a compromise which its supporters believed
contained the essential conditions of a satisfactory review procedure.
Alternative proposals had been thoroughly considered in the Special
Committee and the texts recommended were those on which there was
the broadest basis of agreement. Those members of the Fifth Com-
mittee supporting the revised joint draft resolution, therefore, did not

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APPLICATION FOR REVIEW (SEP. OP. ODA)

consider it desirable to reopen matters which had been settled in the
Special Committee.

14. It was pointed out that the text of the proposed article 11
followed the precedent of article XH of the Statute of the Adminis-
trative Tribunal of the International Labour Organisation ...

15. The co-sponsors of the revised joint draft resolution explained
that the new draft article 11 was intended to limit review to excep-
tional cases. Two of the grounds for review were those provided in the
Statute of the ILO Administrative Tribunal, Le., questions of compe-
tence and of fundamental error in procedure. One additional ground
was provided, i.e., errors on ‘a question of law relating to the provi-
sions of the Charter’. The co-sponsors of the revised draft resolution
referred to the statements which they had made concerning the inter-
pretation of this phrase which was contained in the report of the
Special Committee (A/2909). The opinion was expressed in the debate
that the grounds provided for review were of a fundamental nature
and that as such they could not be ignored, if and when they arose, in
the interest of justice.”

12. The addition of a third ground, reading that the Tribunal “has erred
on a question of law relating to the provisions of the Charter of the United
Nations”, was explained by the representatives of both the United King-
dom and the United States in the same way as in the Special Committee, as
quoted in paragraph 9 of this opinion. The statements of these two dele-
gates are worth quoting in order properly to understand the real sense of
the third ground. The representative of the United Kingdom stated :

“It has been felt that the third ground was adequate to cover cases
where the Tribunal, in interpreting and applying some of the Staff
Regulations, did so in a manner which might be considered inconsis-
tent with the provisions of the Charter, especially of Chapter XV.”
(A/C.5/SR.493, para. 9.)

According to the representative of the United States :

75

“(this category] would include such questions as [i] whether the Sec-
retary-General’s judgment should be upheld in regard to the conduct
of a staff member and the United Nations standards of efficiency,
competence, and integrity as prescribed in accordance with Arti-
cle 101 of the Charter, or, [ii] whether the Secretary-General’s action
should be sustained in giving directions to a staff member, or taking
disciplinary action against him, in view of the Secretary-General’s
position as Chief Administrative Officer of the Organization under
Article 97 of the Charter ; or [iii] a question involving the staff mem-
ber’s duty to refrain from any action which might reflect on his
position as an international official responsible only to the Organi-
zation, as laid down in Article 100 (1)” (A/C.5/SR.494, para. 20).
397 APPLICATION FOR REVIEW (SEP. OP. ODA)

13. After the Indian proposal (to an effect not relevant to the particular
problem we are now concerned with) had been accepted by the co-sponsors
of the joint draft resolution, the relevant parts of the revised joint draft
resolution, with the Indian amendments, were adopted by a vote of 28 to
19, with 11 abstentions. The whole revised joint resolution, including the
amendments, was approved by a vote of 27 to 18, with 12 abstentions, in
the Fifth Committee, giving us the present Article 11 of the Statute as
adopted under General Assembly resolution 957 (X) of 8 November
1955.

14. The three examples which the representative of the United States, as
a sponsor of the third ground, suggested in 1955 — both in the Special
Committee and in the Fifth Committee — could admittedly not be con-
sidered as exhaustive ; as illustrations, however, they may be regarded as
particularly telling for the present case, as the question before the Tribunal
in case No. 257 involved none of them. Thus, quite apart from the fact that
no persuasive discussion took place in the Committee on Applications in
1981 on how the Administrative Tribunal could have erred on a question of
law relating to the provisions of the Charter in this case, it is far from clear
why this specific ground for objection to the Administrative Tribunal
judgement could have been applicable in this particular instance, in the
light of the drafting process of Article 11 of the UNAT Statute in the
Special Committee and the Fifth Committee of the General Assembly in
1955.

x O®

15. As properly pointed out in the Court’s Opinion (para. 55), the
question in the Request seems to be based on misinterpretation of the
judgement of the Administrative Tribunal. Though it was drafted in such a
way as to imply that the Administrative Tribunal was deemed to have
determined that

“General Assembly resolution 34/165 of 17 December 1979 could
not be given immediate effect in requiring, for the payment of repa-
triation grants, evidence of relocation to a country other than the
country of the staff member’s last duty station”,

“the Tribunal did not so determine”, as pointed out in the Court’s Opinion
(para. 55). The judgement of the Administrative Tribunal, in fact, nowhere
challenges the effect of General Assembly resolution 34/165 and, as again
the Court’s Opinion rightly says (ibid. ), “in no way seeks to call in question
the legal validity of ... resolution 34/165”. Combined with the failure to
specify grounds, such a misconception inherent in the question posed
could, in my view, have by itself justified a refusal to comply with the
request — a fortiori, after the committing of procedural irregularities. Yet,
having decided nevertheless to give an opinion, the Court should in my
view have exposed this misconception with greater clarity. This implies a
somewhat closer analysis of the Tribunal’s task.

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398 APPLICATION FOR REVIEW (SEP. OP. ODA)

16. The Administrative Tribunal was requested to adjudge and declare,
among, other things, for Mr. Mortished, who was separated from United
Nations service on 30 April 1980 —

“that the scheme and detailed conditions and definitions established
by the Secretary-General pursuant to Staff Regulation 9.4 and
Annex IV to the Staff Regulations for the payment of repatriation
grants entitled the Applicant to the payment of such a grant without
the necessity for the production of evidence of relocation”.

It was bound, in reaching its findings, to apply any applicable laws in
existence, that is, in this case, those which were valid as of 30 April 1980.
The specific laws that the Tribunal would have had to apply to the question
of repatriation grants were Staff Regulation 9.4 and Staff Rule 109.5. Staff
Regulation 9.4 has undergone barely any substantial change since the Staff
Regulations were adopted by General Assembly resolution 590 (VI) of
2 February 1952. The relevant provisions in force in 1980 read as fol-
lows :

“Regulation 9.4 : The Secretary-General shall establish a scheme for
the payment of repatriation grants within the maximum rates and
under the conditions specified in annex IV to the present Regula-
tions.”

Annex IV
REPATRIATION GRANT

In principle, the repatriation grant shall be payable to staff mem-
bers whom the Organization is obligated to repatriate ... Detailed
conditions and definitions is relating t to eligibility shall be determined by
the Secretary-General .

Staff Rule 109.5, on the other hand, has been extensively amended over the
past several years. It will be pertinent here to take a brief look at the history
of these amendments.

17. Staff Rule 109.5, as amended on 1 June 1976 (ST/SGB/ Staff Rules/
1/Rev.3) and then on 1 January 1977 (ST/SGB/Staff Rules/1/Rev.4),
read in part:

“Rule 109.5

REPATRIATION GRANT

Payment of repatriation grants under regulation 9.4 and annex IV
to the Staff Regulations shall be subject to the following conditions
and definitions :

(a) ‘Obligation to repatriate’, as used in annex IV to the Staff
Regulations, shall mean the obligation to return a staff member and
his or her spouse and dependent children, upon separation, at the

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399 APPLICATION FOR REVIEW (SEP. OP. ODA)

expense of the United Nations, to a place outside the country of his or
her duty station...”

The part quoted above remained unchanged until the critical date in 1980,
but new paragraphs (d)-(g) were introduced by the amendment of the Staff
Rules on 22 August 1979 (ST/SGB/Staff Rules/1/Rev.5), relettering the
then-existing paragraphs (e)-(j) as new paragraphs (h)-(m).

“(d) Payment of the repatriation grant shall be subject to the pro-
vision by the former staff member of evidence of relocation away from
the country of the last duty station. Evidence of relocation shall be
constituted by documentary evidence that the former staff member
has established residence in a country other than that of the last duty
station.

(e) Entitlement to repatriation grant shall cease if no claim for
payment of the grant has been submitted within two years after the
effective date of separation.

(f) Notwithstanding paragraph (d) above, staff members already in
service before 1 July 1979 shall retain the entitlement to repatriation
grant proportionate to the years and months of service qualifying for
the grant which they already had accrued at that date without the
necessity of production of evidence of relocation with respect to such
qualifying service.

(zg) Payment of the repatriation grant shall be calculated on the
basis of the staff member’s pensionable remuneration, the amount of
which, exclusive of non-resident’s allowance or language allowance, if
any, shall be subject to staff assessment according to the applicable
schedule of rates set forth in staff regulation 3.3 (b).”

Staff Rule 109.5 was further amended on 15 July 1980 (ST/SGB/Staff
Rules/1/Rev.5/Amend.1), with effect from 1 January 1980, to implement
the decision adopted by the General Assembly in its resolution 34/165, so
that paragraph (f) was simply cancelled. (In this amendment of 15 July
1980 paragraph (e) was expanded, but this is not relevant to the present
case.) Staff Rule 109.5 (d), which had already been in force since 22
August 1979, categorically required the presentation of evidence of relo-
cation by a former staff member. The Administrative Tribunal, in 1981,
could not have ignored this rule, and in fact did not ignore it.

18. The Administrative Tribunal, in applying Staff Rule 109.5 (d),
which was in force at the critical date, would also have had to take into
account Staff Rule 112.2 (a), closely linked with Staff Regulation 12.1,
which is intended to ensure due regard for the acquired rights of staff
members. The provisions read as follows :

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400 APPLICATION FOR REVIEW (SEP. OP. ODA)

“Regulation 12.1: These Regulations may be supplemented or
amended by the General Assembly, without prejudice to the acquired
rights of staff members.”

“Rule 112.2

(a) These rules may be amended by the Secretary-General in a
manner consistent with the Staff Regulations.”

The rights of the Secretariat staff are certainly protected under these
provisions.

19. The provisions on the acquired rights of staff members could have
been applied in different ways. On the one hand, the Administrative
Tribunal could have decided that, already at the date of its entry into force,
namely 22 August 1979, Staff Rule 109.5 (d) had deprived the staff of the
United Nations Secretariat of the alleged acquired right to receive repa-
triation grant without any evidence of relocation, a right implied to exist in
view of the shifting of the concept of repatriation grant or the practices
followed over the previous few decades (cf. Judgement No. 273, para. VII).
On the other hand, the Tribunal could simultaneously have stressed the
importance of Staff Rule 109.5 (f) — in force from 22 August 1979 to 31
December 1979 — so that the applicant suffered injury by being deprived
of the entitlement he enjoyed under this specific clause. This also seems to
be an interpretation given by the Judgement (para. XIII). I have some
doubts, as I will later explain in Part II of this opinion, about the process
whereby this particular provision, Staff Rule 109.5 (f), was set up in 1979.
Yet it cannot be denied that it remained in force for several months in late
1979. It was simply cancelled in the new Staff Rules of 1980, which
implemented General Assembly resolution 34/165. Whether the simple
cancellation of Staff Rule 109.5 (f) in the 1980 Staff Rules had prejudiced
the right which the applicant might have acquired under this specific
provision of the 1979 Staff Rules in the light of Staff Regulation 12.1 and
Staff Rule 112.2 (a) was also a matter for the Administrative Tribunal to
judge.

20. If a violation of acquired rights under Staff Regulation 12.1 and
Staff Rule 112.2 (a) has been ascertained, the Administrative Tribunal
cannot amend the Staff Regulations or Staff Rules, but can only adjudge
that the applicant has sustained an injury as a result of disregard of a Staff
Regulation or a Staff Rule and is thus entitled to compensation. And,
indeed, that is what the Tribunal did ; it delivered a judgement saying that
compensation for injury should be paid to Mr. Mortished without raising
any questions as to the validity of General Assembly resolution 34/165. It
is difficult to see in what way, by such a pronouncement, the Tribunal
could have exceeded its competence.

* +

21. To sum up : first, quite apart from the lack of any explicit reference
in the Request to any of the four possible grounds (as required under

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401 APPLICATION FOR REVIEW (SEP. OP. ODA)

Art. II, para. 3 (c), of its Provisional Rules of Procedure), the deliberations
of the Committee on Applications do not convincingly indicate any rea-
sonable grounds on which the Judgement of the Administrative Tribunal
could have been objected to and, in addition, it would seem that the ground
for objection on the basis of error on a question of law relating to the
provisions of the United Nations Charter was not applicable from the
outset ; secondly, the Request is drafted on the basis of an entirely erro-
neous premise. I myself wonder whether these fundamental errors of
procedure and understanding ought not to have been regarded as “com-
pelling reasons” for the Court not to have responded to the Request for an
advisory opinion in the present case.

PART II

22. While voting against on the first point in the operative paragraph for
the reasons I have stated above, I voted in favour on the second and third
points, since I can share the views expressed in the Court’s Opinion, being
fully convinced that the Administrative Tribunal did not err on a question
of law relating to the provisions of the Charter of the United Nations and
that it did not commit any excess of Jurisdiction or competence vested in it.
Yet I cannot but suggest that some errors seem to have been committed in
the preparation of the provisions on repatriation grant in the 1979 Staff
Rules (ST/SGB/ Staff Rules/1/Rev.5).

23. As this may have affected the nature of the case before the Tribunal,
it seems pertinent to look in a more detailed manner than does the Court’s
Opinion at the way in which the 1979 amendments affecting Rule 109.5 on
repatriation grant came to be drafted. The second annual report of the
International Civil Service Commission (A/31/30) was put on the agenda >
(item 103) of the thirty-first session of the General Assembly. The Inter-
national Civil Service Commission had been established “in principle, as of
1 January 1974” “as a new organ for the regulation and co-ordination of
the conditions of service of the United Nations common system” under
General Assembly resolution 3042 (XXVII) of 19 December 1972 and,
according to its Statute drafted by General Assembly resolution 3357
(XXIX) of 18 December 1974, the Commission is, under Article 10, to
“make recommendations to the General Assembly” on, among other
things, “(a) the broad principles for the determination of the conditions of
service of the staff” and “(c) allowances and benefits of staff which are
determined by the General Assembly”, including the repatriation grant.
On the other hand, the Commission could, under Article 11, “establish”,
among other things, “rates of allowances and benefits, other than pen-
sions and those referred to in Article 10 (c), the conditions of entitlement
thereto...”

24. In 1976 the newly-created International Civil Service Commission

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examined, among many other things, the repatriation grant scheme and,
pending a further study, recommended in its second annual report, as
mentioned above, some changes to the scale of benefits. During the dis-
cussions on item 103 in the Fifth Committee of the General Assembly at its
thirty-first session some doubts were expressed as to the handling of the
repatriation grant, and

“The view was ... expressed that the Commission should consider
whether staff members who did not return to their country of origin on
retirement should be entitled to the grant.” (Report of the Fifth
Committee (A/31/449), para. 28.)

The General Assembly, in its resolution 31/141 of 17 December 1976,
entitled “Report of the International Civil Service Commission’, re-
quested the Commission

“to re-examine, in the light of the views expressed in the Fifth
Committee at the current session, . . . (a) The conditions for the pro-
vision of terminal payments (for example, repatriation grant, . . .)”’ (B,
II, para. 3).

In 1978, the International Civil Service Commission studied the conditions
for payment of the repatriation grant, and its examination centred on, as
one of two questions, “the appropriateness of paying the grant to a staff
member who, upon separation, does not return to his home country”
(A/33/30, para. 181). However, the Commission in its report (A/33/30),
being of the view that

“Strictly speaking, it was clear that [paying repatriation grant to a
staff member who did not in fact return to his home country upon
separation from the organization] would be inconsistent with the
stated purpose of the grant” (para. 183),

acknowledged the practical difficulties of keeping track of the movements
of a former staff member after he had left the service, and had no desire to
see an international information network set up to do so. Believing that to
pay repatriation grant to a person who remained permanently in the
country of his last duty station was incompatible with the purpose of the
grant, it considered the possibility that the grant be paid only to a staff
member who supplied evidence that he had settled elsewhere. It recom-
mended that

“payment of the repatriation grant should be made conditional upon
signature by the staff member of a declaration that he does not intend
to remain permanently in the country of his last duty station”
(para. 186).

25. At the thirty-third session of the General Assembly in 1978, the
Fifth Committee considered the report of the International Civil Service

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Commission (agenda item 111). The Chairman of the Commission stated,
along the lines mentioned above, that

“it believed that the repatriation grant should not be paid when the
staff member, at the end of his service, remained in the place of his last
duty station ... The Commission considered that the most practical
solution would be to require, as a condition for payment of the grant,
that the staff member should sign a declaration to the effect that he did
not intend to continue to reside permanently in the country of his last
duty station.” (A/C.5/33/SR.32, para. 41.)

Thus the intent of the Commission was at that time crystal-clear. The
discussions in the Fifth Committee on eligibility for the repatriation grant
or the means of proof were very limited, and several delegates considered
that the proposed condition for payment of the grant did not constitute a
sufficient guarantee against abuse. The Chairman of the Commission
made a statement that

“greater measures of control should be applied only if there were
proven cases of abuse. In its study, the Commission has found that ina
few cases repatriation grants had been paid to expatriate staff mem-
bers who had not moved from the country of their last duty station,
and the proposal was intended to eliminate what was considered to be
an unjustifiable and anomalous payment in such cases.” (A/C.5/
33/SR.42, para. 69.)

26. In the Fifth Committee a draft resolution on the report of the
International Civil Service Commission read to the effect that

“The General Assembly ... decides that payment of the repatria-
tion grant to entitled staff members shall be made conditional upon
the presentation by the staff member of evidence of actual relocation,
subject to the terms to be established by the Commission.” (A/C.5/
33/L.33/Rev.1, IV, para. 4.)

It seems certain, in the light of the competence of the Commission as
provided for in its Statute, that the phrase “to be established by the
Commission” could not have been meant as corresponding to the word
“establish” in Article 11 of the Statute. The representative who introduced
a draft resolution on behalf of 17 countries had explained that this para-
graph had made it clear that evidence of actual relocation would be
required in addition to a signed declaration by the staff member (A/
C.5/SR.56, para. 29), and that the phrase “subject to the terms to be
established by the Commission” in no way “diluted the thrust” of the
decision for the whole paragraph but merely provided for its administra-

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tive implementation (para. 51). It seems that the intention of the sponsor-
ing countries, as pointed out by many delegates at the Fifth Committee one
year later, was not to leave any doubt at all regarding the problem of
repatriation grants. General Assembly resolution 33/119, entitled “Report
of the International Civil Service Commission”, as adopted on 19 Decem-
ber 1978, read the same as a text proposed at the Fifth Committee. No
amendment in respect of repatriation grant was made in the Staff Regu-
lations and annexed, as usual, to the General Assembly resolution. It is
quite clear that, while amendments to the Staff Regulations and “such
consequential changes as are necessary in the Staff Rules” to be made by
the Secretary-General were referred to in this General Assembly resolution
(IV, para. 11), they did not have any relevance to the repatriation grant. It
has, however, to be noted that the Under-Secretary-General for Admini-
stration and Management expressed some concern regarding the require-
ment of evidence of relocation and stated that, since acquired rights were
involved, the matter could create problems unless the Commission could
find some means of resolving the difficulty (A/C.5/33/SR.56, para. 32).
This statement seems to be the first sign of acquired rights rearing their
head.

27. The following facts are known from the Report of the International
Civil Service Commission (A/34/30) : early in 1979 the International Civil
Service Commission considered, on the one hand, what should be admitted
as constituting evidence of relocation and the provision of documentary
evidence that the former member had taken up residence in another
country. On the other hand, it was informed that the legal advisers of
several organizations had studied the question and come to the conclusion
that any entitlement already earned by a staff member could not be
affected retroactively by changing the rules, though the exercise of further
entitlements accruing after the date of the change would be subject to
compliance with the new condition. It then sought an opinion of the Office
of Legal Affairs of the United Nations Secretariat, which indicated that, in
so far as the United Nations Organization itself was concerned, there was
no express or implied provision that only those who actually made use of
the travel entitlement should receive the repatriation grant. Seemingly
affected by the opinion of the Secretariat of the United Nations and other
specialized agencies, the Commission appears to have completely changed
its position of one year before and surrendered to the idea that all existing
staff members had acquired the right to repatriation grant irrespective of
their future location upon separation. The International Civil Service
Commission adopted and “promulgated” on 6 April 1979 the following
text (CIRC/GEN/39) :

“The following modifications to the terms of entitlement to the
repatriation grant are established by the International Civil Service

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Commission in pursuance of paragraph 4 of section IV of General
Assembly resolution 33/119:

(a) With effect from 1 July 1979 payment of the repatriation grant
shall be subject to the provision by the former staff member of evidence of
relocation away from the country of the last duty station ;

(b) Evidence of relocation shall be constituted by documentary
evidence that the former staff member has established residence in a
country other than that of the last duty station, such as a declaration
by the immigration, police, tax or other authorities of the country, by
the senior United Nations official in the country or by the former staff
member’s new employer ;

(c) Payment of the grant may be claimed by the former staff mem-
ber within two years of the effective date of separation ;

(d) Notwithstanding paragraph (a) above, staff members already in
service before 1 July 1979 shall retain the entitlement to repatriation
grant proportionate to the years and months of service qualifying for the
grant which they already had accrued at that date without the necessity of
production of evidence of relocation ; the exercise of any additional
entitlement accrued after that date shall, however, be subject to the
conditions set out in paragraphs (a) to (c} above.” (Emphasis
added.)

28. Now, admittedly, Article 25, paragraph 1, of the Commission’s Sta-
tute provides that “decisions of the Commission shall be promulgated” but
the “decisions” which are to be “promulgated” are clearly those falling
within the terms of Article 11. However, matters dealt with under Arti-
cle 10 of that Statute (which include repatriation grant) are to be the
subject of recommendations to the General Assembly, and there is no
question of promulgating these : they may simply be communicated by the
Secretary-General of the United Nations to the executive heads of the
other organizations under Article 24, paragraph 1, and are not the object
of promulgation by the Commission itself. I wonder therefore if the
Commission, in promulgating the text concerning the repatriation grant,
did not exceed the mandate entrusted to it under Article 10 of its Statute ?
At any rate, it was clear to several delegates who took part in the discus-
sions in the Fifth Committee at the thirty-fourth session of the General
Assembly several months later that such a decision by the Commission was
not quite in conformity with the terms of its mandate under General
Assembly resolution 33/119. In particular, the representative of the
United States pointed out :

“As a sponsor of that resolution [33/119], the United States believed
that all Member States had understood that the phrase ‘subject to the

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terms to be established by the Commission’ meant solely establishing
the documentation which a former staff member must submit in order
to qualify for a repatriation grant.” (A/C.5/34/SR.46, para. 66.)

It is possible, I suggest, that some misunderstanding had arisen owing to
the resolution’s use of the word “establish”, which is featured in Article 11
of the Commission’s Statute and may be associated with “decisions” that
are to be “promulgated” under Article 25. Though I do not think that the
Commission would have been justified in taking the use of this word
as automatically strengthening its powers in relation to an aspect of re-
patriation grant, I can see how some confusion might have arisen in
this respect.

29. At all events, the very rapid response of the Secretary-General to the
action taken by the International Civil Service Commission seemed to
assume that the Commission had indeed been given a major delegation of
powers. An Administrative Instruction was issued on 23 April 1979 under
the name of the Assistant Secretary-General for Personnel Services (ST/
AI/262) :

“2. Pursuant to that decision [Section IV, paragraph 4, of the
General Assembly resolution 33/119], the [International Civil Ser-
vice] Commission has established the following modifications to the
terms of entitlement to the repatriation grant :

{quotation from CIRC/GEN/39, as given above]

3. Effective 1 July 1979, the above-cited provisions shall govern the
conditions for payment of repatriation grant to United Nations staff
members under Annex IV to the Staff Regulations. Suitable amend-
ments to the Staff Rules will be made in due course.”

Some revisions to the then-existing Staff Rules were introduced by the
Secretary-General’s Bulletin of 22 August 1979 (ST/SGB/Staff Rules/
1/Rev.5). The Bulletin stated that Rule 109.5 was amended with effect
from 1 January 1979

“as a consequence of the changes to... the repatriation grant...
adopted by the General Assembly in its resolution 33/119,” “to make
the payment of the grant conditional upon presentation of actual
evidence of relocation with respect to periods of eligibility arising after
1 July 1979”.

The new text of Rule 109.5 has already been quoted in paragraph 17 of this
opinion.

30. Pursuant to Staff Regulation 12.2, requiring the Secretary-General
to report annually to the General Assembly any amendments to the Staff
Rules, the Secretary-General made a report to the General Assembly dated

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13 September 1979 on “Personnel questions : Other personnel questions :
Amendments to the Staff Rules” (A/C.5/34/7) :

“Those changes [such consequential changes as were necessary in
the Staff Rules] as well as other amendments to the Staff Rules, which
were mostly based on the decisions taken by the International Civil
Service Commission under Article I] of its Statute, are incorporated in
the revised editions of the two series of Staff Rules that have been
approved by the Secretary-General for publication . ..

2. ... (e) Pursuant to General Assembly resolution 33/119, rule
109.5, Repatriation grant, was amended to make the payment of the
grant conditional upon presentation of actual evidence of relocation
with respect to periods of eligibility arising after 1 July 1979...” (Em-
phasis added.)

It has already been pointed out that reference to Article 11 of the Statute of
the International Civil Service Commission would be improper in connec-
tion with the implementation of resolution 33/119 by the Commission.
One must therefore assume that the Secretary-General did not intend the
“mostly” to apply to the modifications of Rule 109.5, but the impression
conveyed is otherwise.

31. When the report of the International Civil Service Commission to
the General Assembly (A/34/30) was discussed in the Fifth Committee of
the General Assembly at its thirty-fourth session, the significance and
implication of that decision of the Commission, as well as the revision of
the Staff Rules on 22 August 1979, gradually drew attention. Strong
criticisms of the decision were heard from various delegates and few
favourable views were expressed. Yet the Acting Chairman of the Com-
mission stated that the General Assembly had clearly mandated the Com-
mission to establish the terms under which the grant would be paid and,
noting that the question of repatriation grant had called for no action by
the General Assembly, he further stated :

“The Commission, which did not claim to be a legal committee, had
taken a pragmatic decision in the interests of economy, judging that it
would be unreasonable to impose upon organizations a measure which
would certainly be appealed by staff members... The General
Assembly was, of course, free to overrule the Commission, but it
should be noted that the governing bodies of the majority of the other
organizations in the common system had, since July 1979, approved
the incorporation of the measures announced by the Commission into
their organizations’ staff regulations.” (A/C.5/34/SR.55, para. 41.)

In so saying, he noted that “the practice of paying the grant to staff
members who did not leave their duty station had been established”, and

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408 APPLICATION FOR REVIEW (SEP. OP. ODA)

he admitted that the majority of the members of the Commission had felt
that the practice was in conformity with the provisions of the Staff Rules
and Regulations (ibid., para. 40).

32. In such a situation, the idea that effective 1 January 1980 no staff
member should be entitled to any part of the repatriation grant unless he
provided evidence of relocation away from the country of the last duty
station was introduced by several delegates as a part of a draft resolution,
but on the other hand some of them were aware that it might create a
number of problems, particularly from the point of view of other organi-
zations in the common system. The Under-Secretary-General for Admin-
istration, Finance and Management was concerned about such an idea
because it would have the effect of revoking a decision which was in
process of implementation by the agencies in the common system (A/
C.5/34/SR.60, para. 59). It is quite clear, in the light of his suggestion that
transitional arrangements regarding the requirement of evidence of relo-
cation as a condition for payment of the repatriation grant be accepted,
that he held the view that Rule 109.5 (/), with the effect of not applying the
new obligation concerning the evidence of relocation to any period of
service prior to 1 July 1979, would simply be revoked. That this point
reflected the interpretation of the United Nations Secretariat was also
clear from the statement made later by the Assistant Secretary-General for
Personnel Services to the effect that —

“The net result of the new decision would be to nullify the notion of
such service credit and make all payments of the repatriation grant
subject to the uniform requirement of evidence of relocation.” (A/
C.5/34/SR.79, para. 111.)

His appeal for a period of transition in the form of a grace period of one
month during which all staff members (ibid. para. 112) would have been in
a position to assess its impact on their terminal benefits also affords further
proof that the proposed imposing of a deadline would, in his view, simply
revoke the right of the personnel to receive repatriation grant without
provision of evidence of relocation. Further evidence in the same sense was
furnished by his Information Circular of 14 December 1979 (ST/IC/
79/84).

33. On 17 December 1979 the General Assembly adopted resolution
34/165 entitled “Report of the International Civil Service Commission”,
which contained the following provision :

“The General Assembly . . . decides that effective 1 January 1980 no
staff member shall be entitled to any part of the repatriation grant
unless evidence of relocation away from the country of the last duty
station is provided.” (IE, para. 3.)

On 21 December 1979 an Administrative Instruction was issued from

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the Assistant Secretary-General for Personnel Services (ST/AI/269) :

“2. ... the terms of entitlement to the repatriation grant set out in
administrative instruction ST/AI/262 of 23 April 1979 are amended
by the substitution of a new subparagraph (d) and, as so amended with
effect from 1 January 1980, are as follows :

{d) No staff member shall be entitled to any part of the repatriation
grant unless evidence of relocation of residence away from the country
of the last duty station is provided.”

Some new amendments to the Staff Rules (ST/SGB/ Staff Rules/1/Rev.5/
Amend.1) were introduced by the Secretary-General in his Bulletin of 25
July 1980. The Bulletin stated that —

“Rule 109.5. Repatriation grant, is amended with effect from 1 Jan-
uary 1980 to implement the decision concerning repatriation grant
adopted by the General Assembly in its resolution 34/165 by can-
celling the transitional arrangement which had been established with
regard to staff members already in service before 1 July 1979”

and the new Rule 109.5 read in part as follows :

“Rule 109.5
REPATRIATION GRANT

(f) (Cancelled).”
34. The International Civil Service Commission presented to the thirty-
fifth session of the General Assembly, in 1980, a report (A/35/30) in which
it commented upon the effect of General Assembly resolution 34/165 on

the harmonization of personnel practices of the organizations within the
United Nations common system. It stated :

“The Commission was concerned that the General Assembly, hav-
ing at its thirty-third session given an express mandate to the Com-
mission to establish terms under which repatriation grant would be
payable to the staff, should, at its thirty-fourth session, have reversed
the decision taken by the Commission. It wished to draw to the
attention of the General Assembly the implication of such action for
the harmonization of personnel practices in the common system, as
well as for the credibility and the effectiveness of the Commission
which the General Assembly had itself set up and to which it had

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assigned certain responsibilities. The Commission, therefore, would
have preferred that the General Assembly refer this question back to
the Commission for reconsideration of its decision as allowed for
under the Statute approved by the Assembly.” (Para. 14.)

As I see it, this criticism of the General Assembly by the International Civil
Service Commission was perhaps somewhat over-hasty in view of the
doubts about the Commission’s own interpretation of resolution 33/
119.

35. To sum up, I would suggest that if in 1979 the Staff Rules had been
revised in a more cautious and proper manner, so as to meet the wishes of
the member States of the United Nations, such confusion as has con-
fronted the Court could well have been avoided. More particularly, if the
amendment of Staff Rule 109.5 in 1979 had been carried out in conformity
with the spirit of the General Assembly resolution of the previous year, the
situation of the repatriation grant system might have been totally different
and the Administrative Tribunal might have delivered a different judge-
ment on any case therefrom arising.

(Signed) Shigeru ODA

89


           DECLARATION OF VICE-PRESIDENT TOMKA

  The Court should have exercised its discretion and declined to respond to the
General Assembly’s request — The Security Council’s silence cannot be inter-
preted as implying any tacit approval of the declaration — The General Assem-
bly does not have “sufficient interest” in requesting this opinion — The Advisory
Opinion is prejudicial to the exercise of the Security Council’s powers —
The conclusion of the Court has no basis in the facts relating to the adoption
of the declaration of independence — Important Kosovo actors and United
Nations officials equally considered that the Assembly of Kosovo authored the
declaration of independence — The legal framework applicable in Kosovo —
Final settlement to be determined by the agreement between the parties or by
 he Security Council, but not merely by one party.

  1. The majority of the Court has decided to reply to the request of
 he General Assembly for the advisory opinion. It provided its answer
albeit only after having “adjusted” the question. That “adjustment”
was of critical importance to the answer given ; in fact, it was outcome-
determinative. As those in the majority admit, “[t]he identity of the
authors of the declaration of independence . . . is a matter which is capable
of affecting the answer to the question whether [the] declaration was
 n accordance with international law” (Advisory Opinion, para. 52). In
my judicial conscience, although being fully aware of the “realities on the
ground” 1, I am unable to join my colleagues in the majority in this
“adjustment” exercise.

                            DISCRETION AND PROPRIETY

  2. This is a case in which the Court should have exercised its discretion
as to whether to reply to a question put to it. Article 65 of the Statute,
providing that “[t]he Court may give an advisory opinion” (in French it
reads : “La Cour peut donner un avis consultatif”) leaves no doubt that
 he Court is under no legal obligation to comply with a request. The

   1 These realities are succinctly described in the Report of Mr. Ahtisaari, the Special

Envoy of the Secretary-General on Kosovo’s future status (UN doc. S/2007/168). They
ed him, once his effort to achieve a negotiated settlement failed, to submit his recommen-
dation : that Kosovo’s status be independence, supervised by the international commu-
nity. Despite his urging that the Security Council endorse his settlement proposal, it
 eceived no such endorsement by the Council.

55

Court possesses such discretion in order to protect the integrity of its
udicial function and its nature as a judicial organ.

   3. To answer the question put to the Court requires it not only to
 nterpret Security Council resolution 1244 but also to make a determina-
 ion whether an act adopted by the institutions of Kosovo, which has
been put under a régime of international territorial administration, is or
 s not in conformity with the legal framework applicable to and govern-
 ng that régime, i.e., Security Council resolution 1244 and the measures
adopted thereunder, in particular the Constitutional Framework.
   4. The Security Council, which remains actively seised of matters relat-
 ng to Kosovo, has made no such determination and its silence cannot be
 nterpreted as implying the tacit approval of, or acquiescence with, the
act adopted on 17 February 2008, in view of the disagreements on this
 ssue publicly voiced by its members, in particular, its permanent mem-
bers 2. These disagreements persist and have been reaffirmed in the course
of this advisory proceeding, both in the written and oral submissions.

   5. The request for an advisory opinion was addressed to the Court by
 he General Assembly. The Assembly did not deal with the situation in
Kosovo when a proposal to request an advisory opinion was made by
Serbia. A new item had to be included in the General Assembly’s agenda.
Now, when the majority’s opinion is delivered, the Assembly is free to
discuss it, but certainly as long as the Security Council remains actively
seised of the situation in Kosovo and exercises its function with respect to
 t, Article 12, paragraph 1, of the Charter prevents the General Assembly
 rom making any recommendation with regard to the status of Kosovo. I
 ail to see any “sufficient interest” for the Assembly in requesting the
opinion and agree with the view of Judge Keith, expressed in his separate
opinion, on this point.

  6. Through the question put to it by the General Assembly, the Court
has become immersed in the disagreements prevailing in the Security
Council on this issue, the Council having been still actively seised of the
matter but not requesting any advice from the Court. With the answer
offered by the majority, the Court takes sides while it would have been
udicially proper for it to refrain from doing so.
  7. As the former President of this Court, the late Manfred Lachs,
wisely observed in the case relating to the situation in which the Security
Council had been actively exercising its powers, as in the present one,

     “it is important for the purposes and principles of the United Nations

  2 See statements by the Members of the Security Council at the meeting, held on

18 February 2008, convened some 24 hours upon the issuance of the declaration of inde-
pendence (UN doc. S/PV.5839, passim).

56

     that the two main organs with specific powers of binding decision
     act in harmony — though not, of course, in concert — and that each
     should perform its functions with respect to a situation or dispute,
     different aspects of which appear on the agenda of each, without
     prejudicing the exercise of the other’s powers” (Questions of Inter-
     pretation and Application of the 1971 Montreal 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. 27 ; emphasis added).

  8. The majority’s answer given to the question put by the General
Assembly prejudices the determination, still to be made by the Security
Council, on the conformity vel non of the declaration with resolution 1244
and the international régime of territorial administration established
 hereunder.
  9. Therefore, in my view, only if the Court were asked by the Security
Council to provide its legal advice, would it have been proper for the
Court to reply.

                               THE QUESTION

   10. The question for the Court, approved by the General Assembly in
 ts resolution 63/3, reads as follows : “Is the unilateral declaration of inde-
pendence by the Provisional Institutions of Self-Government of Kosovo
 n accordance with international law ?” The question “is clearly formu-
 ated”, and “narrow and specific” (Advisory Opinion, para. 51). There
was, therefore, no need to “adjust” the question, if only for the outcome
sought.
   11. The majority, in its opinion, comes to the conclusion that
     “taking all factors together, the authors of the declaration of inde-
     pendence of 17 February 2008 did not act as one of the Provisional
     Institutions of Self-Government within the Constitutional Frame-
     work, but rather as persons who acted together in their capacity as
     representatives of the people of Kosovo outside the framework of
     the interim administration” (ibid., para. 109).
   12. This conclusion has no sound basis in the facts relating to the
adoption of the declaration, and is nothing more than a post hoc intel-
 ectual construct. The majority’s conclusion implies that all relevant
actors did not know correctly who adopted the declaration on 17 Febru-
ary 2008 in Pristina : Serbia, when it proposed the question ; other States
which were present in the General Assembly when it adopted resolu-
 ion 63/3 ; the Secretary-General of the United Nations and his Special
Representative ; and, most importantly, the Prime Minister of Kosovo

57

when he introduced the text of declaration at the special session of the
Assembly of Kosovo !
  13. The Foreign Minister of Serbia addressed a letter, dated 15 August
2008, to the Secretary-General of the United Nations, requesting the
 nclusion in the agenda of the Sixty-third Session of the General Assem-
bly of a supplementary item entitled “Request for an advisory opinion of
 he International Court of Justice on whether the unilateral declaration
of independence of Kosovo is in accordance with international law”. In
 he explanatory memorandum, attached to his letter, he opens with the
 ollowing paragraph :
        “The Provisional Institutions of Self-Government of Kosovo, a
     province of the Republic of Serbia under United Nations adminis-
     tration, pursuant to United Nations Security Council resolution 1244
     (1999), unilaterally declared independence on 17 February 2008.”
     (A/63/195, Enclosure ; emphasis added.)

   14. The letter was issued as an official document by the United Nations
Secretariat on 22 August 2008. The issue was considered and resolu-
 ion 63/3 was adopted by the General Assembly on 8 October 2008. The
Member States of the United Nations thus had some seven weeks to con-
sider the Serbian request and its explanatory memorandum. None of the
other 191 Member States took issue with the Serbian identification of
“the Provisional Institutions of Self-Government of Kosovo” as those
who adopted the declaration of independence on 17 February 2008.

   15. On 1 October 2008 the Permanent Representative of the United
Kingdom, which is well known for the highly competent and fine inter-
national legal service in its Foreign Office, wrote a letter to the President
of the General Assembly (A/63/461). With reference to agenda item 71,
“Request for an advisory opinion”, and to the draft resolution submitted
by Serbia (A/63/L.2), “[i]n order to assist in the consideration of this
 tem, the United Kingdom . . . submit[ted] a note of issues . . ., raising a
number of questions on which members of the General Assembly may
wish to reflect”. Nowhere in that Note of Issues is a doubt expressed that
 he declaration was adopted by the Provisional Institutions. Actually, the
Note of Issues first points out that

     “[t]he agenda item proposed by Serbia requests an advisory opinion
     on the question whether ‘the unilateral declaration of independence
     of Kosovo is in accordance with international law’ and then con-
     trasts it with the question formulated in the draft resolution, whether
     ‘the unilateral declaration of independence by the Provisional Insti-
     tutions of Self-Government of Kosovo [is] in accordance with inter-
     national law’”.
The Note expresses the view that

58

     “[i]t would be useful to know whether Serbia is seeking to focus on a
     narrower question about the competence of the Provisional Institu-
     tions of Self-Government of Kosovo, and, if so, how that question
     relates to Kosovo’s status at the present time” (A/63/461, p. 4,
     para. 7 ; emphasis added).
   There is thus no doubt that the Provisional Institutions of Self-
Government of Kosovo were, in October 2008, some eight months after
 he adoption of the declaration, considered by the United Kingdom as
 hose who adopted the declaration. Otherwise there would have been no
point in asking whether the request concerns “a narrower question about
 he competence of the Provisional Institutions”.
   16. The question to the Court was approved as contained in draft
resolution (A/63/L.2), i.e., specifically mentioning the Provisional Institu-
 ions of Self-Government. The draft was introduced in the General
Assembly by the Minister of Foreign Affairs of Serbia. He expressly men-
 ioned that “the provisional institutions of self-government . . . of Kosovo
and Metohija unilaterally declared independence” (A/63/PV.22, p. 1 ;
emphasis added). No delegation taking part in the debate contested that
 he declaration was adopted by the Provisional Institutions of Self-
Government. To the contrary, the United Kingdom’s Permanent Repre-
sentative said that “Kosovo’s Assembly declared Kosovo independent”
 ibid., p. 3 ; emphasis added). The United States delegate referred to
“the declaration of independence of Kosovo Provisional Institutions of
Self-Governance” (ibid., p. 5 ; emphasis added). The Permanent Repre-
sentative of France opened his statement with the following sentence :
“On 17 February 2008, the Assembly of Kosovo declared the inde-
pendence of the Republic of Kosovo.” (Ibid., p. 8 ; emphasis added.)
Finally, the General Assembly itself, in the second preambular paragraph
of its resolution 63/3, recalls “that on 17 February 2008 the Provisional
Institutions of Self-Government of Kosovo declared independence from
Serbia”.

  17. The Secretary-General of the United Nations announced the
 ollowing to the Security Council, when it met on 18 February 2008 to
consider the situation in Kosovo in light of the issuance of the declaration
of independence a day earlier :
       “Yesterday, my Special Representative for Kosovo informed
     me that the Assembly of Kosovo’s Provisional Institutions of Self-
     Government held a session during which it adopted a declaration of
     independence, which declares Kosovo an independent and sovereign
     State.” (S/PV.5839, p. 2 ; emphasis added.)
He stated the same in his very first report on UNMIK, submitted to the
Security Council after the declaration of independence was adopted,
nforming the Council that “[o]n 17 February, the Assembly of Kosovo

59

held a session during which it adopted a ‘declaration of independence’,
declaring Kosovo as an independent and sovereign State” (S/2008/211 ;
p. 1, para. 3 ; emphasis added) 3.
   18. Who could have better determined the capacity in which those
who adopted the declaration acted at that critical moment in Kosovo’s
history than its Prime Minister, in his solemn statement introducing the
 ext of the declaration and reading it to those assembled ? He said :

        “Today, the President of Kosovo and myself, as the Prime Min-
     ister of Kosovo, have officially requested [] the President of the
     Assembly, Mr. Krasniqi[,] to call for a special session with two
     agenda items.

       This invitation for a special session is extended in accordance with
     the Kosovo Constitutional Framework, whereby we present two items
     on the agenda :

     1. Declaration of Independence for Kosovo, and
     2. Presentation of Kosovo State symbols.” 4

   The President of the Kosovo Assembly was also of the view that he
was presiding over the Assembly meeting when he “invite[d] the Prime
Minister of Kosovo, Mr. Hashim Thaçi, to provide justification for the
request for the special and solemn Assembly session” 5.
   19. The majority had, at the end of the day, to concede that the Presi-
dent of the Kosovo Assembly and the Prime Minister of Kosovo “made
reference to the Assembly of Kosovo and the Constitutional Frame-
work” (Advisory Opinion, para. 104), while maintaining its intellectual
construct that the authors of the declaration “acted together in their
capacity as representatives of the people of Kosovo outside the frame-
work of the interim administration” (ibid., para. 109). The Members of
 he Assembly, are they not “representatives of the people of Kosovo” ?
The President of Kosovo, is he not the representative of the people of
Kosovo ? They met, as the Prime Minister stated, “in accordance with the
Kosovo Constitutional Framework” ; they thus wished to act in accord-
ance with that framework and not outside of it, as the majority asserts.

  3 The majority had to “accept” this statement of the Secretary-General, in his Report

rying to minimize its relevance, stating that it was just “the normal periodic report on
UNMIK activities . . . not intended as a legal analysis of the declaration or the capacity in
which those who adopted it had acted” (Advisory Opinion, para. 108).
  4 Written contribution of the Republic of Kosovo, 17 April 2009, Ann. 2 — Extra-

ordinary session of the Assembly of Kosovo held on 17 February 2008 (Transcript, p. 228 ;
 mphasis added).
  5 Ibid., p. 227 ; emphasis added.

60

   20. Although the majority engaged itself in the search for “the identity
of the authors of the declaration of independence” 6, finally “having
established [their] identity” (Advisory Opinion, para. 110), no such search
was needed, as their “identity” is well known and documented in the
procès-verbal of the special plenary session of the Assembly of Kosovo 7.
Nor was there any need to search for “the capacity” in which those who
adopted the declaration acted (ibid., para. 109). The President of the
Kosovo Assembly, who presided over its special session and conducted
 he vote on the declaration, announced the result in the following terms :

        “I state that with all votes ‘in favour’ of the present members,
      Members of the Assembly of Kosovo, today, on February 17, 2008
      have expressed their will and the will of the citizens of Kosovo, for
      Kosovo an independent, sovereign and democratic state.” 8

   Each of those who signed the declaration, in addition to the President
of Kosovo, its Prime Minister and the President of its Assembly, was
“invite[d]” to sign it in his/her capacity of either “the member of Kosovo
Assembly” or “the member of Chairmanship” of the Assembly 9. They
added their signatures below the declaration as members of the Kosovo
Assembly as verbis expressis confirmed on the original papyrus version
of the declaration, in the Albanian language 10. The assertion of
 he majority in the Advisory Opinion that “[n]owhere in the original
Albanian text of the declaration (which is the sole authentic text) is any
reference made to the declaration being the work of the Assembly of
Kosovo” (ibid., para. 107) is thus plainly incorrect, not enhancing the
credibility of the majority’s intellectual construct.
   21. The Assembly of Kosovo, consisting of its members, the President
of Kosovo and its Government, headed by the Prime Minister, consti-
 uted, on 17 February 2008, the Provisional Institutions of Self-Govern-
ment 11 of Kosovo, and they together issued the declaration. The question
was therefore correctly formulated in the request of the General Assem-
bly and there was no reason to “adjust” it and subsequently to modify
 he title itself of the case.

  6 See the title of Chapter IV, Sec. B. 2 (a) of the Advisory Opinion.
  7 See Transcript of the Special Plenary Session of the Assembly of Kosovo on the Decla-
 ation of Independence held on 17 February 2008, in : Written Contribution of the
Republic of Kosovo, 17 April 2009, Ann. 2, pp. 238-245.
  8 Ibid., p. 238 ; emphasis added.
  9 Ibid., pp. 239-245.
  10 See ibid., pp. 207 and 209 (the text in Albanian indicates : “Deputetët e Kuvendit të

Kosovës”, meaning “Deputies of the Kosovo Assembly”.
  11 See Chapter 9 of the Constitutional Framework for Provisional Self-Government.

The Advisory Opinion confirms that the Constitutional Framework was in force on
17 February 2008 (para. 91).

61

     LEGAL FRAMEWORK APPLICABLE TO KOSOVO AT THE MOMENT OF
                 ADOPTION OF THE DECLARATION
   22. The international legal régime in Kosovo has been governed since
10 June 1999 by resolution 1244 (1999), adopted by the Security Council
acting under Chapter VII of the Charter of the United Nations, and by
 he Constitutional Framework.
   Under resolution 1244 Kosovo has been placed under an international
 erritorial administration. As a result, although the Federal Republic of
Yugoslavia remained the territorial sovereign, it ceased to exercise effec-
 ive control in that territory 12.
   23. Security Council resolution 1244 did not displace the Federal
Republic of Yugoslavia’s title to the territory in question. To the con-
 rary, the resolution expressly states, in paragraph 10 of its preamble,
 hat the Security Council reaffirms “the commitment of all Member
States to the sovereignty and territorial integrity of the Federal Republic
of Yugoslavia and the other States of the region, as set out in the Hel-
sinki Final Act and annex 2” of the said resolution. The preamble, an
 ntegral part of resolution 1244, is central to ascertaining the context in
which the resolution was adopted and the intention of the Security Coun-
cil when adopting it. The preamble thus has to be taken into account
when interpreting the resolution.

   24. By establishing an international territorial administration over
Kosovo, which remained legally part of the FRY, the United Nations
assumed its responsibility for this territory.
   25. The Security Council, in its resolution 1244, decided that “a politi-
cal solution to the Kosovo crisis shall be based on the general principles
 n annex 1 and as further elaborated in the principles and other required
elements in annex 2” (operative para. 1). Both annexes refer to the prin-
ciples of sovereignty and territorial integrity of the Federal Republic of
Yugoslavia.
   26. When the Security Council authorized the Secretary-General to
establish an international civil presence in Kosovo in order to provide an
 nterim administration for Kosovo, under which the people of Kosovo
can enjoy substantial autonomy within the Federal Republic of Yugosla-
via (operative para. 10), it decided that the main responsibilities of this
 nternational civil presence would include :

— promoting the establishment, pending a final settlement, of substan-

  12 The Permanent Representative of the United Kingdom, during the debate of the

Security Council on Kosovo, held on 18 February 2008, the day following the adoption of
 he declaration of independence by Kosovo, said : “At the heart of today’s controversy is
a resolution adopted at this table in June 1999. In that resolution, the Council took an
unprecedented step : it effectively deprived Belgrade of the exercise of authority in Kos-
ovo.” (S/PV.5839, p. 12 ; emphasis added.)

62

     tial autonomy and self-government in Kosovo, taking full account of
     annex 2 and of the Rambouillet accords (para. 11 (a)) ;

— organizing and overseeing the development of provisional institutions
  for democratic and autonomous self-government pending a political
  settlement, including the holding of elections (para. 11 (c)) ;
— facilitating a political process designed to determine Kosovo’s future
  status, taking into account the Rambouillet accords (para. 11(e)) ;
— in a final stage, overseeing the transfer of authority from Kosovo’s
  provisional institutions to institutions established under a political
  settlement (para. 11 (f)).
   27. By deciding on the main responsibilities of the international civil-
 an presence, the Security Council has not abdicated on its overall respon-
sibility for the situation in Kosovo ; it has remained actively seised of the
matter (paragraph 21 of resolution 1244). The role of the Security Coun-
cil in respect of the final settlement issue has been preserved. The
Guiding Principles of the Contact Group for a Settlement of the Status
of Kosovo, which supported the recommendation of the Secretary-
General to the Security Council to launch a process to determine the future
status of Kosovo in accordance with Security Council resolution 1244,
are telling. They confirm that “[t]he Security Council will remain actively
seized of the matter. The final decision on the status of Kosovo should be
endorsed by the Security Council” 13.
   28. The notion of a “final settlement” cannot mean anything else than
 he resolution of the dispute between the parties (i.e., the Belgrade
authorities and the Pristina authorities), either by an agreement reached
between them or by a decision of an organ having competence to do so.
But the notion of a settlement is clearly incompatible with the unilateral
step-taking by one of the parties aiming at the resolution of the dispute
against the will of the other.
   It suffices to mention a few statements made by several States — par-
 icularly involved in Kosovo-related issues — in the Security Council.

  The United Kingdom condemned
     “unilateral statements on Kosovo’s final status from either side. We
     will not recognize any move to establish political arrangements for
     the whole or part of Kosovo, either unilaterally or in any arrange-
     ment that does not have the backing of the international commu-
     nity.” (S/PV.4742, p. 16, United Kingdom.)

  13 In French, “Le Conseil de sécurité demeurera activement saisi de la question et devra

approuver la décision finale sur le statut du Kosovo” ; see letter of 10 November 2005
addressed to the Secretary-General by the President of the Security Council, S/2005/709,
annex ; emphasis added.

63

   A few months later, the same government stated in the Security Coun-
cil that “[u]nilateral statements on status by any side seem to the United
Kingdom to be totally unacceptable” (S/PV.5017, p. 21). The French
Government stated in 2003 that “[n]o progress can be achieved in Kos-
ovo on the basis of unilateral action that is contrary to resolution 1244
 1999) or that flouts the authority of UNMIK and KFOR” (S/PV.4770,
p. 5). The German Permanent Representative was unequivocal when he
stated in 2003 :

        “The question of Kosovo’s final status will be addressed at the
     appropriate time and through the appropriate process. Only the
     Security Council has the power to assess the implementation of reso-
     lution 1244 (1999), and it has the final word in settling the status
     issue. No unilateral move or arrangement intended to predetermine
     Kosovo’s status — either for the whole or for parts of Kosovo —
     can be accepted.” (S/PV.4770, pp. 13-14 ; emphasis added.)

   A few weeks later, the same government expressed its view that “[c]on-
cerning the future status of Kosovo, the parties have to understand that
no unilateral act can change the status of Kosovo as laid down in Secu-
rity Council resolution 1244 (1999)” (S/PV.4809).

  29. The negotiations on determining Kosovo’s future status, led by the
Special Envoy of the Secretary-General, produced no agreement. The
Special Envoy reported that “[t]hroughout the process and on numerous
occasions, both parties have reaffirmed their categorical, diametrically
opposed positions : Belgrade demands Kosovo’s autonomy within Serbia,
while Pristina will accept nothing short of independence” 14. One may ask
whether the parties negotiated in good faith because, as this Court
observed, negotiating in good faith means that

     “the parties are under an obligation to enter into negotiations with a
     view to arriving at an agreement, and not merely to go through a
     formal process of negotiation . . . ; they are under an obligation so to
     conduct themselves that the negotiations are meaningful, which will
     not be the case when either of them insists upon its own position
     without contemplating any modification of it” (North Sea Continen-
     tal Shelf (Federal Republic of Germany/Denmark ; Federal Republic
     of Germany/Netherlands), Judgment, I.C.J. Reports 1969, p. 47,
     para. 85 ; recalled in Gabčíkovo-Nagymaros Project (Hungary/Slo-
     vakia), Judgment, I.C.J. Reports 1997, p. 78, para. 141, and in Pulp
     Mills on the River Uruguay (Argentina v. Uruguay), Judgment,
     I.C.J. Reports 2010 (I), p. 67, para. 146).

  14 Report of the Special Envoy of the Secretary-General on Kosovo’s future status,

S/2007/168, p. 2, para. 2 ; emphasis added.
64

   30. The Special Envoy, being himself convinced that “re-integration
 nto Serbia is not a viable option” and that “continued international
administration is not sustainable”, concluded that “independence with
 nternational supervision is the only viable option” 15. He therefore sub-
mitted “[his] Settlement proposal” and “urge[d] the Security Council to
endorse” it 16.
   31. The Ahtisaari settlement proposal was not endorsed by the Secu-
rity Council, the only United Nations organ competent to do it. Having
been divided on the Kosovo final status issue, the Security Council was
circumvented, again. The UK Permanent Representative openly stated in
 he General Assembly that “in co-ordination with many of the countries
most closely involved in stabilizing the Balkans, Kosovo’s Assembly
declared Kosovo independent on 17 February 2008” (United Nations
doc. A/63/PV.22, p. 3 ; emphasis added). The Kosovo declaration of
 ndependence has been a way to put, to the extent possible, into practice
 he unendorsed Ahtisaari plan 17.

   32. The declaration of independence was adopted by the Provi-
sional Institutions of Self-Government, “in co-ordination with
many of the countries most closely involved in stabilizing the Bal-

  15 United Nations doc. S/2007/168, pp. 3 and 4. It is to be noted why, in his view,

e-integration was not a viable option :
        “For the past eight years, Kosovo and Serbia have been governed in complete
     separation. The establishment of the United Nations Mission in Kosovo (UNMIK)
     pursuant to resolution 1244 (1999), and its assumption of all legislative, executive and
     judicial authority throughout Kosovo, has created a situation in which Serbia has not
     exercised any governing authority over Kosovo. This is a reality one cannot deny ; it
     is irreversible. A return of Serbian rule over Kosovo would not be acceptable to the
     overwhelming majority of the people of Kosovo. Belgrade could not regain its
     authority without provoking violent opposition. Autonomy of Kosovo within the
     borders of Serbia — however notional such autonomy may be — is simply not ten-
     able.” (P. 3, para. 7.)
The report mischaracterizes the adoption of resolution 1244 as unanimous (para. 15).
  16 Ibid., p. 5, para. 16.
  17 As one author who “acted as adviser to Kosovo in many, if not most, of the various

peace processes and negotiations” wrote :

       “The Declaration had been drafted in conjunction with, and checked by, key
     governments. It was phrased in a way as to have important legal implications for
     Kosovo. Employing the international legal notion of a ‘unilateral declaration’, it
     created legal obligations erga omnes. These are legal obligations that all other States are
     entitled to rely on and of which they can demand performance. In this sense, an attempt
     was made to replace the binding nature of a Chapter VII resolution of the Security
     Council imposing the limitations on Kosovo’s sovereignty foreseen in the Ahtisaari
     plan with a self-imposed limitation of sovereignty.” (Marc Weller, Contested State-
     hood, Kosovo’s Struggle for Independence, Oxford University Press, 2009, pp. viii
     and 231.)

65

kans” 18 at the moment when the Constitutional Framework was
applicable, as confirmed by the Advisory Opinion (para. 91). Under
 he Constitutional Framework, external relations were the exclusive
prerogative of the Special Representative (para. 106).
   On previous occasions the Special Representative has not hesitated, in
 he exercise of his supervisory role, to declare null and void a measure of
one of the Provisional Institutions which he considered to be beyond that
 nstitution’s powers (ultra vires). Thus, on 23 May 2002, the Special Rep-
 esentative of the Secretary-General declared “null and void” a resolution
adopted by the Assembly of Kosovo seeking to challenge the border agree-
ment signed in February 2001 between the FRY and the former Yugoslav
Republic of Macedonia. On 7 November 2002, the Assembly of Kosovo
adopted a resolution in reaction to a draft Constitutional Charter of Serbia
and Montenegro (United Nations dossier No. 186). On the same day, the
Special Representative of the Secretary-General declared this resolution to
have “no legal effect” (United Nations dossier No. 187). Moreover, in
February 2003, the Assembly of Kosovo was preparing a “Declaration on
Kosova — A Sovereign and Independent State” which, inter alia, would
have stated that “Kosova is declared a democratic, independent and sov-
ereign state” (United Nations dossier No. 188, 3 February 2003, para. 1).
The Principal Deputy Special Representative of the Secretary-General, on
behalf of the Special Representative of the Secretary-General, informed the
President of the Assembly of Kosovo that the formal consideration of that
matter by the Assembly “would be contrary to United Nations Security
Council resolution 1244 (1999), the Constitutional Framework for Provi-
 ional Self-Government in Kosovo and to the Provisional Rules of Pro-
cedure of the Assembly”. He further suggested that it would con-
 titute “[a]ction . . . [of the Assembly of Kosovo] beyond the scope of its
competencies” (United Nations dossier No. 189, 7 February 2003). In a
 imilar vein, in November 2005, the Assembly of Kosovo contemplated a
declaration of independence, but the Special Representative of the Secretary-
General indicated that such a declaration “would be in contravention to
 he UN Security Council resolution [1244] . . . and it therefore will not be
with any legal effect” (United Nations Interim Administration of Kos-
ovo, Press Briefing Notes, 16 November 2005, pp. 4 and 5).

   33. The above facts demonstrate that the Special Representative of the
Secretary-General, entrusted by the United Nations with the interim
administration of Kosovo, qualified a number of acts of the Assembly of
Kosovo between 2002 and 2005 as being incompatible with the Consti-
 utional Framework and, consequently, with Security Council resolu-
 ion 1244. These acts, whether they sought directly to declare the inde-

   18 That co-ordination, acknowledged by the United Kingdom Permanent Representa-

 ive (A/63/PV.22, p. 3), is demonstrated by the (almost) immediate recognition of Kos-
ovo’s independence by those States.

66

pendence of Kosovo or whether they fell short of it, were deemed to be
“beyond the scope of its [i.e., the Assembly’s] competencies” (United
Nations dossier No. 189, 7 February 2003), in other words ultra vires.

   34. The majority briefly mentions the above acts which were beyond
 he competencies of the Provisional Institutions of Self-Government under
 he Constitutional Framework (Advisory Opinion, para. 108). It attaches
“some significance” to “[t]he silence of the Special Representative of the
Secretary-General in the face of the declaration of independence on
17 February 2008” when it takes the view that this silence “suggests that
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” (ibid.).
   But the Advisory Opinion provides no explanation why acts which
were considered as going beyond the competencies of the Provisional
Institutions in the period 2002-2005, would no longer have any such
character in 2008, despite the fact that provisions of the Constitutional
Framework on the competencies of these institutions have not been
amended and remained the same in February 2008 as they were in 2005.
   One is left with the impression that the Special Representative remained
silent this time as he knew well the effort to implement, to the extent pos-
sible, the unendorsed Ahtisaari plan through the declaration adopted by
Kosovo Assembly “in co-ordination with many of the countries most
closely involved in stabilizing the Balkans”.

   35. The Court, as the principal judicial organ of the United Nations
 Article 92 of the Charter), is supposed to uphold the respect for the rules
and mechanisms set in the Charter and the decisions adopted thereunder.
The legal régime governing the international territorial administration of
Kosovo by the United Nations remained, on 17 February 2008,
unchanged. What certainly evolved were the political situation and reali-
 ies in Kosovo. The majority deemed preferable to take into account these
political developments and realities 19, rather than the strict requirement
of respect for such rules, thus trespassing the limits of judicial restraint.

                                                             (Signed) Peter TOMKA.

   19 “The declaration of independence of 17 February 2008 must be considered within the

 actual context which led to its adoption” (Advisory Opinion, see para. 57 ; emphasis
added), as if this factual context was determinative in drawing legal conclusions. Simi-
 arly, the majority states that “the declaration of independence must be seen in its larger
 ontext, taking into account the events preceding its adoption, notably relating to the
 o-called ‘final status process’” (ibid., para. 104 ; emphasis added), as if such context trans-
 ormed the Assembly as one of the Provisional Institutions into something else.

67