Summaries of Judgments, Advisory Opinions and Orders of the International Court of Justice
whereas the Security Council, which is primarily responsible for pronouncing on the option of independence, has not done so.
Judge Bennouna believes that the Court cannot substitute itself for the Security Council in exercising its responsibilities, nor can it stand legal guarantor for a policy of fait accompli based simply on who can gain the upper hand. The Court's duty is to preserve its role, which is to state the law, clearly and independently. That is how it will safeguard its credibility in performing its functions, for the benefit of the international community.
2. The scope and meaning of the question posed
Judge Bennouna regrets that the Court has deemed itself authorized to modify the scope and meaning of the question posed, considering that it was free "to decide for itself whether that declaration was promulgated by the Provisional Institutions of SelfGovernment or some other entity" (Advisory Opinion, paragraph 54).
The question put to the Court does not need to be interpreted in any way. The General Assembly did not request the Court to give its opinion on just any declaration of independence, but on the one adopted on 17 February 2008 by the Provisional Institutions of Self-Government of Kosovo, which were established with specific competences by the United Nations. At that point in time, the only institution recognized by the United Nations as representing the people of Kosovo was the elected Assembly of the Provisional Institutions of Self-Government.
The judge notes that never before in its jurisprudence has the Court amended the question posed in a manner contrary to its object and purpose.
3. Accordance with international law of the unilateral declaration of independence
In Judge Bennouna's opinion, the Court should first look into the applicable lex specialis (that is to say, the law of the United Nations) before considering whether the declaration is in accordance with general international law. The Court has chosen instead to examine "the lawfulness of declarations of independence under general international law" (Advisory Opinion, paragraph 78). The General Assembly did not however ask the Court to opine in the abstract on declarations of independence generally, but rather on a specific declaration adopted in a particular context – that of a territory which the Council has placed under United Nations administration – and this at a time when Security Council resolution 1244 was in force, as it still is.
In the judge's view, the Court's reasoning, aimed at dispelling any inkling of the declaration's illegality under the law of the United Nations, consisted of severing it from the institution (the Assembly) that was created within this framework: "the authors of the declaration of independence of 17 February 2008 did not act as one of the Provisional Institutions of Self-Government … but rather as persons who acted together in their capacity as representatives of the people of Kosovo outside the framework of the interim administration" (Advisory Opinion, paragraph 109). To reach this conclusion, the Court
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