(Resolutions of Security Council as a source of international law)
(The General Assembly requested the International Court of Justice to give an advisory
opinion on the following question: ‘Is the unilateral declaration of independence by the
Provisional Institutions of Self-Government of Kosovo in accordance with international
law?’)
78. The Court now turns to the substance of the request submitted by the General
Assembly. The Court recalls that it has been asked by the General Assembly to assess the
accordance of the declaration of independence of 17 February 2008 with “international law”
(resolution 63/3 of the General Assembly, 8 October 2008). The Court will first turn its
attention to certain questions concerning the lawfulness of declarations of independence under
general international law, against the background of which the question posed falls to be
considered, and Security Council resolution 1244 (1999) is to be understood and applied.
Once this general framework has been determined, the Court will turn to the legal relevance
of Security Council resolution 1244 (1999), and determine whether the resolution creates
special rules, and ensuing obligations, under international law applicable to the issues raised
by the present request and having a bearing on the lawfulness of the declaration of
independence of 17 February 2008.
85. Within the legal framework of the United Nations Charter, notably on the basis of
Articles 24, 25 and Chapter VII thereof, the Security Council may adopt resolutions imposing
obligations under international law. The Court has had the occasion to interpret and apply
such Security Council resolutions on a number of occasions and has consistently treated them
as part of the framework of obligations under international law (Legal Consequences for
States of the Continued Presence of South Africa in Namibia (South West Africa)
notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports
1971, p. 16); Questions of Interpretation and Application of the 1971 Montreal Convention
arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom),
Provisional Measures, Order of 14 April 1992, I.C.J. Reports 1992, p. 15, paras. 39-41;
Questions of Interpretation and Application of the 1971 Montreal Convention arising from
the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America),
Provisional Measures, Order of 14 April 1992,I.C.J. Reports 1992, pp. 126-127, paras. 42-
44). Resolution 1244 (1999) was expressly adopted by the Security Council on the basis of
Chapter VII of the United Nations Charter, and therefore clearly imposes international legal
obligations. The Court notes that none of the participants has questioned the fact that
resolution 1244 (1999), which specifically deals with the situation in Kosovo, is part of the
law relevant in the present situation.
34
94. Before continuing further, the Court must recall several factors relevant in the
interpretation of resolutions of the Security Council. While the rules on treaty interpretation
embodied in Articles 31 and 32 of the Vienna Convention on the Law of Treaties may
provide guidance, differences between Security Council resolutions and treaties mean that the
interpretation of Security Council resolutions also require that other factors be taken into
account. Security Council resolutions are issued by a single, collective body and are drafted
through a very different process than that used for the conclusion of a treaty. Security Council
resolutions are the product of a voting process as provided for in Article 27 of the Charter,
and the final text of such resolutions represents the view of the Security Council as a body.
Moreover, Security Council resolutions can be binding on all Member States (Legal
Consequences for States of the Continued Presence of South Africa in Namibia (South West
Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J.
Reports 1971, p. 54, para. 116), irrespective of whether they played any part in their
formulation. The interpretation of Security Council resolutions may require the Court to
analyse statements by representatives of members of the Security Council made at the time of
their adoption, other resolutions of the Security Council on the same issue, as well as the
subsequent practice of relevant United Nations organs and of States affected by those given
resolutions.
113. The question whether resolution 1244 (1999) prohibits the authors of the declaration
of 17 February 2008 from declaring independence from the Republic of Serbia can only be
answered through a careful reading of this resolution (see paras. 94 et seq.).
114. First, the Court observes that Security Council resolution 1244 (1999) was
essentially designed to create an interim régime for Kosovo, with a view to channelling the
long-term political process to establish its final status. The resolution did not contain any
provision dealing with the final status of Kosovo or with the conditions for its achievement.
In this regard the Court notes that contemporaneous practice of the Security Council shows
that in situations where the Security Council has decided to establish restrictive conditions for
the permanent status of a territory, those conditions are specified in the relevant resolution.
For example, although the factual circumstances differed from the situation in Kosovo, only
19 days after the adoption of resolution 1244 (1999), the Security Council, in its resolution
1251 of 29 June 1999, reaffirmed its position that a “Cyprus settlement must be based on a
State of Cyprus with a single sovereignty and international personality and a single
citizenship, with its independence and territorial integrity safeguarded” (para. 11). The
Security Council thus set out the specific conditions relating to the permanent status of
Cyprus. By contrast, under the terms of resolution 1244 (1999) the Security Council did not
reserve for itself the final determination of the situation in Kosovo and remained silent on the
conditions for the final status of Kosovo. Resolution 1244 (1999) thus does not preclude the
issuance of the declaration of independence of 17 February 2008 because the two instruments
operate on a different level: unlike resolution 1244 (1999), the declaration of independence is
an attempt to determine finally the status of Kosovo.
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115. Secondly, turning to the question of the addressees of Security Council resolution
1244 (1999), it sets out a general framework for the “deployment in Kosovo, under United
Nations auspices, of international civil and security presences” (para. 5). It is mostly
concerned with creating obligations and authorizations for United Nations Member States as
well as for organs of the United Nations such as the Secretary-General and his Special
Representative (see notably paras. 3, 5, 6, 7, 9, 10 and 11 of Security Council resolution 1244
(1999)). The only point at which resolution 1244 (1999) expressly mentions other actors
relates to the Security Council’s demand, on the one hand, “that the KLA and other armed
Kosovo Albanian groups end immediately all offensive actions and comply with the
requirements for demilitarization” (para. 15) and, on the other hand, for the “full cooperation
by all concerned, including the international security presence, with the International Tribunal
for the Former Yugoslavia” (para. 14). There is no indication, in the text of Security Council
resolution 1244 (1999), that the Security Council intended to impose, beyond that, a specific
obligation to act or a prohibition from acting, addressed to such other actors.
116. The Court recalls in this regard that it has not been uncommon for the Security
Council to make demands on actors other than United Nations Member States and
intergovernmental organizations. More specifically, a number of Security Council resolutions
adopted on the subject of Kosovo prior to Security Council resolution 1244 (1999) contained
demands addressed eo nomine to the Kosovo Albanian leadership. For example, resolution
1160 (1998) “[c]all[ed] upon the authorities in Belgrade and the leadership of the Kosovar
Albanian community urgently to enter without preconditions into a meaningful dialogue on
political status issues” (resolution 1160 (1998), para. 4; emphasis added). Resolution 1199
(1998) included four separate demands on the Kosovo Albanian leadership, i.e., improving
the humanitarian situation, entering into a dialogue with the Federal Republic of Yugoslavia,
pursuing their goals by peaceful means only, and co-operating fully with the Prosecutor of the
International Criminal Tribunal for the Former Yugoslavia (resolution 1199 (1998), paras. 2,
3, 6 and 13). Resolution 1203 (1998) “[d]emand[ed] . . . that the Kosovo Albanian leadership
and all other elements of the Kosovo Albanian community comply fully and swiftly with
resolutions 1160 (1998) and 1199 (1998) and cooperate fully with the OSCE Verification
Mission in Kosovo” (resolution 1203 (1998), para. 4). The same resolution also called upon
the “Kosovo Albanian leadership to enter immediately into a meaningful dialogue without
preconditions and with international involvement, and to a clear timetable, leading to an end
of the crisis and to a negotiated political solution to the issue of Kosovo”; demanded that “the
Kosovo Albanian leadership and all others concerned respect the freedom of movement of the
OSCE Verification Mission and other international personnel”; “[i]nsist[ed] that the Kosovo
Albanian leadership condemn all terrorist actions”; and demanded that the Kosovo Albanian
leadership “cooperate with international efforts to improve the humanitarian situation and to
avert the impending humanitarian catastrophe” (resolution 1203 (1998), paras. 5, 6, 10 and
11).
117. Such reference to the Kosovo Albanian leadership or other actors, notwithstanding
the somewhat general reference to “all concerned” (para. 14), is missing from the text of
Security Council resolution 1244 (1999). When interpreting Security Council resolutions, the
36
Court must establish, on a case-by-case basis, considering all relevant circumstances, for
whom the Security Council intended to create binding legal obligations. The language used
by the resolution may serve as an important indicator in this regard. The approach taken by
the Court with regard to the binding effect of Security Council resolutions in general is,
mutatis mutandis, also relevant here. In this context, the Court recalls its previous statement
that:
“The language of a resolution of the Security Council should be carefully
analysed before a conclusion can be made as to its binding effect. In view of the
nature of the powers under Article 25, the question whether they have been in fact
exercised is to be determined in each case, having regard to the terms of the
resolution to be interpreted, the discussions leading to it, the Charter provisions
invoked and, in general, all circumstances that might assist in determining the legal
consequences of the resolution of the Security Council.” (Legal Consequences for
States of the Continued Presence of South Africa in Namibia (South West Africa)
notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J.
Reports 1971, p. 53, para. 114.)
118. Bearing this in mind, the Court cannot accept the argument that Security Council
resolution 1244 (1999) contains a prohibition, binding on the authors of the declaration of
independence, against declaring independence; nor can such a prohibition be derived from the
language of the resolution understood in its context and considering its object and purpose.
The language of Security Council resolution 1244 (1999) is at best ambiguous in this regard.
The object and purpose of the resolution, is the establishment of an interim administration for
Kosovo, without making any definitive determination on final status issues. The text of the
resolution explains that the “main responsibilities of the international civil presence will
include . . . [o]rganizing and overseeing the development of provisional institutions for
democratic and autonomous self-government pending a political settlement” (para. 11 (c) of
the resolution; emphasis added). The phrase “political settlement”, often cited in the present
proceedings, does not modify this conclusion. First, that reference is made within the context
of enumerating the responsibilities of the international civil presence, i.e., the Special
Representative of the Secretary-General in Kosovo and UNMIK, and not of other actors.
Secondly, as the diverging views presented to the Court on this matter illustrate, the term
“political settlement” is subject to various interpretations. The Court therefore concludes that
this part of Security Council resolution 1244 (1999) cannot be construed to include a
prohibition, addressed in particular to the authors of the declaration of 17 February 2008,
against declaring independence.
119. The Court accordingly finds that Security Council resolution 1244 (1999) did not bar the
authors of the declaration of 17 February 2008 from issuing a declaration of independence
from the Republic of Serbia. Hence, the declaration of independence did not violate Security
Council resolution 1244 (1999).
