1

Between Law and Politics: The Challenge of Unilateral

Declarations.

Eva Kassoti

1. Introduction.

In his early 19th century treatise on jurisprudence Austin famously wrote

that what “is generally styled the law of nations or international law… consists of

opinions or sentiments current among nations generally. It therefore is not law

properly so called”. And while the status of international law as law proper is

indisputable today, the question of distinguishing between international law and

politics - or between international law and non-law more generally - still

perplexes international lawyers. Furthermore, the line between law and politics

has been blurred even further due to recent trends in international law including

the declining importance of form and formalities, the simplification of the treaty-

making process and the proliferation of instruments of dubious normative effect,

i.e. “soft-law” instruments. The question of the legal status of the 2008

declaration of independence of the Assembly of Kosovo is a recent example of

the inherent difficulties in the task of distinguishing between law and politics in

international relations. In the much-anticipated Advisory Opinion of the

International Court of Justice regarding the accordance with international law of

the unilateral declaration of independence in respect of Kosovo, the Court failed

to provide a definitive answer regarding the legal or political nature of the

declaration, thus drawing considerable criticism.

This paper aims to revisit the question of the distinction between law and

politics in the international legal order with a particular focus on unilateral

declarations. More particularly, the paper tackles two questions. At first, is it still

important to keep clear boundaries between law and non-law in international

relations? The paper argues that such boundaries are still relevant when it

comes to questions of State liability; while the breach of obligations of a legal

nature entails certain legal ramifications for the offending State, including the

obligation to make reparations, breach of obligations of a political nature do not

engage the responsibility of a State in the same way. Secondly, which are the

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international law criteria for distinguishing between legal and political

declarations? The paper critically reviews the relevant legal literature and shows

that there is currently no unified theory of international legal acts either of

bi/multilateral or unilateral origin. The few international lawyers who dealt with

the topic considered that the intention of the author State to create legal effects

is the sole criterion for distinguishing between law and non-law. The paper

continues by demonstrating the limitations of adopting a purely intention-based

approach. It is argued here that the recent proliferation of legal norms in every

field of international activity means that intention alone is not enough; on the

contrary, the effect of relevant rules of law is of equal importance.

Next the paper focuses on international jurisprudence in order to

establish the criteria that international judicial bodies employ in their practice to

distinguish between legal and political declarations. On the basis of a critical

analysis of a series of ICJ judgments spanning from the Nuclear Tests Cases to the

more recent Case concerning Armed Activities in the territory of Congo, the paper

argues that not only the intention of the author State but also the circumstances,

i.e. the legal context, surrounding the making of a declaration are vital in

establishing its juridical character. The paper continues by providing a list of

contextual factors that indicate the existence of a legal, rather than a political,

declaration. These include taking into account the effect of relevant rules of law;

whether the declaration was made in relation to an ongoing dispute; whether it

was made before an international judicial body; the extent of its publicity as well

as the authority that made the declaration on behalf of the State.

Finally, the paper concludes by applying the criteria of intention and

context to the unilateral declaration of independence made by Kosovo in 2008

with a view to establish its legal nature.

2. The distinction between law and non-law.

2.1 The distinction between “law” and “non-law” as a key feature of all legal

systems.

From the outset, it is worthwhile to assess briefly the importance of

drawing a clear line between “legal” and “non-legal”. In other words, as Bothe

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queried 1 , is it meaningful to distinguish between law and non-law in

international relations?

The distinction between “legal” and “non-legal” acts, or more generally

the distinction between “law” and “non-law”, has been a perennial problem in

international law since its early days2. Nevertheless, it would be wrong to

assume that this problem is endemic to the international legal order. On the

contrary, retaining a clear distinction between legal and non-legal, is central to

all legal systems irrespectively of the level, municipal or international, at which

they operate, since blurring this distinction would entail blurring the boundaries

between law and other disciplines. At this point, one may question whether such

boundaries exist and if so, which purpose they may serve. Answering such

questions involves, alongside traditional legal analysis, a brief, albeit necessary,

excursus to a domain frequently avoided by international lawyers; namely that

of sociology. However, as it is often the case, “if we are to understand the

significance of international law and how it works and evolves, it is essential to

look outside of the law itself3”.

From a sociological point of view, law is but one of the many choices

aimed at co-ordinating different, and often conflicting, interests including

politics, social science or even theology4. To put it more simply, law is just one of

the available tools within a given societal order for the solution of problems.

1 See generally M. Bothe, Legal and Non-Legal Norms- A Meaningful Distinction in International

Relations? 11 Neth.Yrbk. of Int’l L. 65 (1980). Although Bothe’s article is about the distinction

between legal and non-legal norms, the same questions are applicable mutatis mutandis to legal

and non-legal acts, or more generally to “law’ and “non-law’.

2 See generally H. Kelsen, Introduction to the Problems of Legal Theory, a translation of the first

edition of the Pure Theory of Law by B. Litschewski Paulson and S.L. Paulson, Clarendon Press,

Oxford, 1992; H. Lauterpacht, The Function of Law in the International Community, new ed.,

Oxford University Press, Oxford, 2011.

3 O. Schachter, International Law in Theory and Practice, M. Nijhoff Publishers, London, New York,

1991, p. 3

4 In this respect, see the famous dictum by M. Huber as arbitrator in the Island of Palmas Case:

“International law, like law in general, has the object of assuring the co-existence of different

interests whhich are worthy of legal protection”. Island of Palmas Case, 2 Rep. of Int’l. Arbitral

Awards 829 (1928), at p. 870. On the function of international law, see also P. Allott,The Concept

of International Law, 10 EJIL 31 (1999).

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However, it is often asserted that, in achieving its social function, the legal order

is fundamentally different to all other rival solutions5. In the words of the

International Court of Justice: “Law exists, it is said, to serve a social need; but

precisely for that reason it can do so only through and within the limits of its

own disciple. Otherwise, it is not a legal service that would be rendered6”.

Therefore, one may ask which unique qualities law has that differentiate it from

other available problem-solving candidates, and thus, make the distinction

between them meaningful.

Modern international legal scholars, like O. Schachter and M.

Koskenniemi, have convincingly argued that law, in comparison to all other

disciplines is an autonomous system which enjoys two unique features, i.e.

normativity and concreteness7. The claim that the legal order is “normative”

means that law is, at least in some degree, binding. Thus, while acknowledging

the role of power and politics in the formation of law, M. Koskenniemi and O.

Schachter argue that a legal system operates, or at least must operate in order to

be called “legal”, independently of politics and it restrains the action of its

subjects irrespectively of their wills8. In the words of O. Schachter, a legal system

“lacks the character of law if it is not in some degree ‘binding’, that is, it must be a

means of independent control that effectively limits the acts of entities subject to

it. To that degree, law must be independent of politics. Nor is it law if decisions

5 On the distinction between law and other disciplines see for example the comments made by

Judges Spender and Fitzmaurice in their Joint dissenting Opinion on the South West Africa Cases:

We are not unmindful of, nor are we insensible to, the various considerations of a non-juridical

character, social, humanitarian and other, which underlie this case; but these are matters for the

political rather for the legal arena. They cannot be allowed to deflect us from our duty of reaching

a conclusion on the basis of what we believe to be the correct legal view”. Joint Dissenting

Opinion of Sir Percy Spender and Sir Gerald Fitzmaurice to the South West Africa Cases, ICJ

Reports 1962, p. 465, at p. 466.

6 South West Africa Case, ICJ Reports 1966, p. 6, at p. 34, para. 49.

7 O. Schachter, The Nature and Process of Legal Development in International Society, in R.

MacDonald, D. Johnston (eds.), The Structure and Process of International Law: Essays in legal

philosophy, doctrine and theory, M. Nijhoff, Boston, The Hague, 1983, p. 745 at p. 747; M.

Koskenniemi, supra note 1 , pp. 17- 24.

8 O. Schachter, ibid.; M. Koskenniemi, ibid.

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are wholly arbitrary or capricious9”. Thus, normativity, as a feature of any given

legal order, relates to the fact that the subjects of such an order are not free to

ignore or disobey the rules imposed thereby in pursuit of their own interests.

While normativity provides the law with the necessary degree of

independence to fulfill its social function irrespective of the individual interests

and wills of its subjects, concreteness keeps it in touch with the ever-fluctuating

realities of the social environment in which law is called to operate. In other

words, the element of concreteness of legal rules means that the content of such

rules derives from and represents the actual pattern of behaviour of legal

subjects and not from an abstract theory or ideology of how this behaviour

should be. In this respect, M. Koskenniemi argues that, by way of contrast to

religion or morality, where a pre-determined set of rules is supposed to govern

the conduct of affairs between individuals or States without taking into

consideration their own wishes or the changing structure of the society, legal

rules are created and developed in accordance with the actual behaviour of the

subjects of law10.

2.2 The distinction between law and non-law in the international legal

system.

A. The special difficulties of distinguishing between law and non-law in the

international legal system.

This part of the paper focuses on the inherent difficulties of distinguishing

between “law” and “non-law” in the international legal system. These are

submitted to be twofold, namely the declining importance of form in

international law, as well as the recent proliferation of “soft law” instruments, i.e.

of instruments that embody non-binding obligations11.

At first, it needs to be noticed that in determining the legal character of a

given instrument, the international judge is in a far worse place than his national

counterpart. This is so, because in municipal legal systems, the form in which a

9 O. Schachter, ibid.

10 M. Koskenniemi, supra note1, p. 17.

11 A. Boyle, Some Reflectons on the Relationship of Treaties and Soft Law, 48 ICLQ 901 (1999), at

pp. 901-2.

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legal transaction is carried out is often prescribed by law and thus, it is essential

to the internal validity of the transaction in question. As the Court noted in the

Case concerning the Temple of Preah Vihear: “As regards the question of forms

and formalities, as distinct from intentions, the Court considers that, to cite

examples drawn from the field of private law, there are cases where, for the

protection of the interested parties, or for reasons of public policy, or on other

grounds, the law prescribes as mandatory certain formalities which, hence,

become essential for the validity of certain transactions, such as for instance

testamentary dispositions ; and another example, amongst many possible ones,

would be that of a marriage ceremony12”.

However, this is not the case with international law, where the form in

which a legal transaction is clothed does not affect its legal nature, but is rather

of evidential value13. As the Court added in its judgment in the abovementioned

case: “But the position in the cases just mentioned (wills, marriage, etc.) arises

because of the existence in those cases of mandatory requirements of law as to

forms and formalities. Where, on the other hand, as is generally the case in

international law, which places the principal emphasis on the intentions of the

parties, the law prescribes no particular form, parties are free to choose what

form they please provided their intention clearly results from it14”.

Secondly, recent changes in international relations have obscured the

distinction between law and non-law at the international level even further. In

recent years, international law has witnessed a growing tension between, on the

one hand, the need for flexibility, simplicity and speed in the conclusion of

agreements, and, on the other, the need for stability and predictability in

international relations. The abovementioned need for flexibility, simplicity and

speed in treaty-making has generated a large number of international

12 Case concerning the Temple of Preah Vihear, ICJ Reports 1961, p. 17 at p. 31.

13 See generally M. Lachs, Some Reflections on Substance and Form in International Law, in W.

Friedmann, L. Henkin, O. Lissitzyn (eds.), Transnational Law in a Changing Society: Essays in

honor of Philip C. Jessup, Columbia University Press, New York, 1972, pp. 99 et seq.

14 Case concerning the Temple of Preah Vihear, ICJ Reports 1961, supra note 23, p. 31.

7

instruments of dubious normative effect, i.e. of “soft-law instruments”15. Modern

State-practice is anything but unfamiliar with “Memoranda of Understanding”,

“Common positions” etc., terms which are employed in practice to denote

instruments that while embodying some sort of common understanding, fall

short of international agreements proper16. However, the widespread use of such

instruments entails that the distinction between legal and political acts has

become even more difficult to observe17.

B. The continuing importance of distinguishing between law and non-law in

the international legal system.

In the light of the abovementioned proliferation of soft-law instruments,

the question of the meaningfulness of distinguishing between “law” and “non-

law” at the international level becomes more relevant than ever. In other words,

does the widespread use of such instruments signify that there is now no point in

keeping clear boundaries between legal and political acts?

It is argued here that it is still meaningful to distinguish between “law”

and “non-law” on the international plane. The distinction between legal and

political acts is still pertinent when it comes to questions of State Responsibility.

According to the law of State Responsibility, the breach of obligations of a legal

nature entails certain consequences for the offending State18, such as the

obligation to make reparation19. However, the breach of obligations of a non-

legal nature may not engage the responsibility of a State in the same way.

3. The Concept of Juridical Acts in International Law.

15 There is literally a vast amount of literature on the topic of “soft- law instruments”. See

indicatively H. Hillgenberg, A Fresh Look at Soft Law, 10 EJIL 499 ( 1999); A. Boyle, Soft Law in

International Law-Making, in M Evans (ed.), International Law, 3rd ed., Oxford University Press,

Oxford, 2010, at p. 122; C. Chinkin, The Challenge Of Soft Law: Development and Change in

International Law, 38 ICLQ 850 (1989).

16 R. Baxter, International Law in “Her Infinite Variety”, 29 ICLQ 549 (1980).

17 J. Klabbers, Law-Making and Constitutionalism, in J. Klabbers, A. Peters, G. Ulfstein (eds), The

Constitutionalization of International Law, Oxford University Press, Oxford, 2009, p. 80 at p. 83.

18 Art. 12 of Draft Artciles on State Responsibility.

19 Art. 1 of Draft Articles on State Responsibility.

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3.1 Intention as the criterion for distinguishing between legal and non-legal

acts: A theoretical perspective.

In the light of the above exposition, the question of what differentiates

“law” from “non-law”, and, by the same token, legal acts from non-legal ones, is

still one worth reflecting upon. This part of the paper focuses on the attempts

made in theory to develop a doctrine of juridical acts in international law. It will

be argued here that the intention of the author State to create legal effects has

featured in theory as the primary criterion for distinguishing between legal and

political acts.

A. J. W. H. Verzijl.

Verzijl’s International Law in a Historical Perspective is one of the rare

works written in English in which the question of international juridical acts is

treated at length. More particularly, in the sixth volume of the aforementioned

treatise, Verzijl attempted to provide a systematic exposition of all legally

relevant facts, i.e. of all events or actions from which juridical relations may

originate20. In his view, all juridical relations, namely the totality of rights and

obligations between international legal persons, may be traced back to three

main legally relevant, or juridical, facts21. These include the simple fact of the co-

existence of States which entails compliance to and respect of certain

fundamental obligations and rights22; natural events which may give rise to new

international rights and obligations such as the emergence of an island in the

territorial sea23; and actions undertaken by subjects of international law.

As far as the latter category is concerned, Verzijl attempted to classify all

the manifestations of a State’s action at the international level under two

headings, namely lawful acts, or international juridical acts, and unlawful acts, or

international delicts24. According to Verzijl, to the category of juridical acts or

20 Verzijl, supra note 10, note that the sixth volume is entitled juridical facts as sources of

international rights and obligations.

21 Ibid., p. 2.

22 Ibid., p. 4 et seq.

23 Ibid.

24 Ibid.

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“acts in law” belong State acts which are “intended to produce specific legal

effects on the inter-state level and in fact producing them under normal

circumstances25”. Regarding the typology of acts that make up the category of

juridical acts, Verzijl argued that the main distinction to be found in practice is

between unilateral and plurilateral acts26. Thus, Verzijl put forward a concept of

international juridical acts in which the element of the intention to create legal

effects was central. In his view, such acts, which may be of either unilateral or

plurilateral origin, produce legal effects because they evidence the intention of

their author State, or States, to produce such effects on the international plane.

Therefore, according to Verzijl’s definition of international juridical acts, the

intention to create legal effects is the key criterion for determining the legal

status of an international act. Finally, it is worthwhile noticing in this context

that apart from providing a definition, Verzijl also focused on the question of

nullity of international juridical acts elaborating a number of rules that,

according to him, are common to all acts of a juridical nature27.

B. H. Lauterpacht.

The same view regarding the role of intention in conferring legal

character to unilateral acts has also been shared by Hersch Lauterpacht28. As G.

25 Ibid., p. 48.

26 Ibid.

27 Ibid., pp. 50 et seq.

28 Note however that Lauterpacht, as a Special Rapporteur of the International Law Commission,

was more reluctant to pronounce upon the binding nature of unilateral acts as such. More

specifically, in discussing the creation of obligations by means of unilateral declarations,

Lauterpacht supported that unilateral declarations following the pattern of offer and acceptance,

such as unilateral declarations accepting an offer or accepting the terms of an already existing

instrument, as well as unilateral declarations that have been accepted by the State to which they

are addressed, constitute in essence treaty undertakings. Although not addressing the question

directly, Lauterpacht admitted the possibility of binding unilateral acts which do not follow the

abovementioned pattern of offer and acceptance. As an example thereof, he cited the Free Zones

Case, in which a declaration made by the Swiss Agent was held to be binding, although no

international agreement was concluded. ( See the Case of the Free Zones of Upper Savoy and the

District of Gex, PCIJ Series A/B 46, p. 96 at p. 170). While Lauterpacht admitted the limitations of

adopting a contractual perspective towards all unilateral acts, he did not go as far as accepting

10

Fitzmaurice observed in his commentary on Lauterpacht’s judicial

pronouncements, although the latter did not develop a theory on international

juridical acts as such, he emphasized the role of intention in establishing the

juridical nature of instruments of either unilateral or treaty character29. One of

the many examples offered by Fitzmaurice is Lauterpacht’s Separate Opinion in

the Norwegian Loans Case30, in which the latter noted that “whether it is a treaty

or a unilateral declaration, it is -if it is to be treated as a legal text…- a

manifestation of intention to create reciprocal rights and obligations 31 ”.

Furthermore, Lauterpacht argued that, since both treaties and unilateral

undertakings constitute legal acts, in the sense that both kinds of acts manifest

the intention of States to create legal effects, the same rules of interpretation and

invalidity applicable to treaties are also applicable mutatis mutandis to unilateral

undertakings.

More specifically, in his Separate Opinion in the aforementioned case,

Judge Lauterpacht examined the effects of the then French Declaration made

under Art. 36 para. 2 of the ICJ Statute that contained a reservation excluding

issues of national jurisdiction, as understood by the French Government, from

the compulsory jurisdiction of the Court32. In Lauterpacht’s opinion, instruments

purporting to create obligations but which, at the same time, contain an

“automatic” reservation, i.e. a reservation to the effect that the extent of the

obligation contained therein shall be reserved for the exclusive determination of

the author State, are not legal instruments at all33. In support of his argument,

unilateral acts as a separate genus of juridiacal acts. However, as it will be shown bellow, by 1957

Lauterpacht seems to have accepted the view that purely unilateral acts, in the sense of acts that

by no stretch of interpretation may be brought within a contractual frame, are binding as such.

See H. Lauterpacht, Report on the Law of treaties, Yrbk of the ILC 1953, Vol. II, p. 101.

29 G. Fitzmaurice, The Law and Procedure of the International Court of Justice, Vol.II, Grotius,

Cambridge, 1986, pp. 822-829.

30 Certain Norwegian Loans Case, ICJ Reports 1957, p. 9.

31 Separate Opinion of Judge Sir Hersch Lauterpacht in the Certain Norwegian Loans Case, ibid., p.

34 at p. 49.

32Certain Norwegian Loans Case, supra note 41, at p. 21.

33 Separate Opinion of Judge Sir Hersch Lauterpacht in the Certain Norwegian Loans Case, supra

note 41, p. 39.

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the Judge adduced evidence to the effect that the rule regarding the invalidity of

such instruments is common to all major legal systems and thus, constitutes a

general principle of law34. Most importantly for present purposes, Lauterpacht

argued that this rule is applicable not only to treaties, but also to instruments of

unilateral character35. This point, namely that both treaties and unilateral acts, in

which a reservation of the “automatic” type has been inserted, should be

considered invalid was later reiterated in Lauterpacht’s Dissenting Opinion in

the Interhandel Case36. More particularly, in the latter case, Lauterpacht repeated

his opinion in the Norwegian Loans Case and added: “…it is not therefore

necessary to repeat here the views there expressed, in particular those derived

from general principles of law applicable to all legal instruments, whether

bilateral or unilateral, intended to create legal rights and obligations37”. ( Emph.

Added)

In the light of the above, it becomes evident that the concept of

international juridical acts is far from adequately developed in theory. J. W. H.

Verzijl and H. Lauterpacht are two of the few international lawyers who have

touched upon this issue. According to them, the criterion for establishing that

acts of either unilateral, or bi/multilateral, origin are to be considered as

juridical acts, in contrast to mere political pledges, is the intention of their author

State or States to create legal effects in international law. The next part of this

paper purports to test the criterion of intention suggested by H. Lauterpacht and

J. W. H. Verzijl against the bulk of State-practice.

3.2 Intention as the criterion for distinguishing between legal and non-legal

acts: Intention in the context of the Law of Treaties.

As seen above, with few exceptions, general legal literature is of limited

assistance to the question of juridical acts in international law. Nevertheless, in

spite of the lack of interest in theory, the problem of distinguishing between legal

34 Ibid.

35 Ibid.

36 Dissenting Opinion of Judge Sir Hersch Lauterpacht in the Interhandel Case, ICJ Reports 1959, p.

6 at p. 95.

37 Ibid., p. 106.

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and non-legal acts has lost none of its importance for practitioners. From the

viewpoint of the latter, an area in which the task of delimiting the concept of

legal acts leaves the academic sphere and becomes a practical necessity is

undoubtedly that of the law of treaties. Therefore, the paper continues the

exploration of the concept of juridical acts by focusing on how the distinction

between legal and political acts has been observed in the field of international

treaty-law. On the basis of the analysis of the definition of international

agreements contained in the 1969 Vienna Convention on the Law of Treaties, as

well as of the relevant international jurisprudence, it will be argued here that the

intention of the parties to create legal effects on the international plane is the

criterion for distinguishing between treaty-like instruments and international

agreements proper.

A. Intention and the 1969 Vienna Convention on the Law of Treaties.

Although it does not cover the whole spectrum of agreements under

international law38, it is customary to make a reference to the 1969 Vienna

Convention on the Law of Treaties39 as a starting point in every discussion

relating to international agreements. According to the definition inserted in the

Vienna Convention, an international treaty is “an international agreement

concluded between States in written form and governed by international law,

whether embodied in a single instrument or in two or more related instruments

and whatever its particular designation40”. However, from this definition, little

may be inferred regarding the question whether a particular instrument is a

binding agreement or not41.

Nevertheless, as it will be shown below, the requirement that a treaty is

“governed by international law” has been long interpreted as encompassing the

element of the intention to create legal effects rather than non-binding

38 See Article 3 of the Vienna Convention on the Law of Treaties, adopted on the 23rd of May 1969,

available at http://untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf .

39 Ibid.

40 Art. 2.1 (a) of the Vienna Convention on the Law of Treaties.

41 See R. Jennings, A. Watts, (eds.), Oppenheim’s International Law, 9th ed., Vol. I, Londgman,

London, New York, 1992, pp. 1201-2.

13

commitments. The fact that no express reference to the element of intention was

made in the text of the Vienna Convention does not mean that the issue was

considered as self-evident, or unimportant. On the contrary, the question of

distinguishing between legal and non-legal agreements drew considerable

attention during the drafting stages of the Convention. More particularly, an

examination of the reports produced by the successive Special Rapporteurs of

the International Law Commission on the Law of Treaties shows that the

intention to create legal effects was cited as the key criterion for determining the

legal nature of an international agreement.

Thus, in his First Report on the Law of Treaties, Hersch Lauterpacht

defined international treaties as agreements concluded “between States,

including organisations of States, intended to create legal rights and obligations

of the parties42”. In the commentary following the above definition, Lauterpacht

highlighted the problem of distinguishing between instruments of a legal

character and mere declarations of policy in the field of international law. As

examples of the latter category, he cited, inter alia, the 1941 Atlantic Charter and

the Universal Declaration of Human Rights adopted by the General Assembly in

194843. The difference between such non-binding instruments and international

agreements properly so called lied, in his opinion, in the fact that the latter

instruments evidence the intention of their author States to create rights and

obligations on the international plane. Thus, Lauterpacht concluded that “ in the

event of a dispute on the subject it must properly be a question for judicial

determination whether an instrument, whatever its description, is in fact

intended to create legal rights and obligations between the parties and as such

coming within the category of treaties44”.

In a similar vein, Lauterpacht’s successor, Gerald Fitzmaurice inserted in

his definition of international treaties the requirement of the intention to create

rights, obligations or, more generally, to establish relationships in international

law. The relevant part of his 1956 Report on the Law of Treaties reads: “For the

purposes of the application of the present Code, a treaty is an international

42 H. Lauterpacht, Report on the Law of Treaties, supra note 39, p. 93.

43 Ibid., pp. 96-97.

44 H. Lauterpacht, Report on the Law of Treaties, supra note 39, p. 98.

14

agreement embodied in a single formal instrument ( whatever its name, title or

designation) made between entities both or all of which are subjects of

international law possessed of international personality and treaty-making

capacity, and intended to create rights and obligations, or to establish

relationships, governed by international law45”.

Despite the persistent references to intention by both Lauterpacht and

Fitzmaurice, the International Law Commission later decided to omit any

express reference to the intention of the author States from the definition of an

international treaty. However, this decision did not imply any disagreement with

the Special Rapporteurs’ position. On the contrary, in its 1959 Report to the UN

General Assembly, the members of the International Law Commission,

acknowledged the paramount importance of the element of intention in

conferring legal character upon a treaty instrument. More specifically, it was

pointed out that: “However informal or unusual in character an instrument

might be, and even if not expressed in normal treaty language, it would

nevertheless rank as a treaty or international agreement if it was intended to

create legal effects46”. Having said that, the ILC considered that the element of

intention was already encompassed within the phrase “governed by

international law”, thus rendering any special reference thereto unnecessary47.

Against this background, H. Waldock in succeeding Fitzmaurice as the

fourth special Rapporteur of the ILC on the Law of Treaties omitted a direct

reference to intention in his definition of an international treaty48. However, a

number of States, including Australia, Luxembourg and the United Kingdom,

expressed some reservations about the lack of any reference to the element of

intention in the proposed definition of an international treaty 49 . More

specifically, it was feared that “without any reference to intent, the definition

would embrace a great quantity of informal understandings reached by exchange

45 G. Fitzmaurice, Report on the Law of Treaties, ILC Yrbk. 1956, Vol. II, p. 105, at p. 107.

46 Report of the International Law Commission to the General Assembly covering the work of its

eleventh session, 20 April-26 June 1959, ILC Yrbk. 1959, Vol. II, p. 87, at p. 96.

47 Ibid., pp. 96-97.

48 Waldock H., Report on the Law of Treaties, ILC Yrbk. 1962, Vol. II, p. 27. 49 1965 ILC Yrbk. Vol. II, pp. 10-11.

15

of notes which are not intended to give rise to legal rights…50”. However, it was

finally decided that no specific reference was needed since it was concluded that

the phrase “governed by international law” embraced the element of the

intention to create legal effects51.

At the Vienna Conference, the question of clarifying the circumstances

under which an international agreement should be considered as having legal

effects was raised again. More specifically, several States feared that the

definition of an international agreement, as it was stipulated at the time, was

unclear and it could lead to confusion. Thus, for example, the representative of

the Chilean Government, Mr. Rodriguez, proposed an amendment to expressly

include the element of intention to create legal effects into the Convention’s

definition. Mr. Rodriguez stated that “it often happened that declarations made

on the international plane represented, like treaties, a concurrence of wills, but

did not produce legal effects. Such declarations were often the preliminaries to a

real agreement, which was concluded later when circumstances permitted. It

would be dangerous to confuse them with treaties and make both of them

subject to the rules of the convention, thereby gravely restricting freedom of

expression in international affairs52”. Nevertheless, such an amendment was not

finally accepted, since, once again, the phrase “governed by international law”

was regarded as covering the element of intention53. Thus, although no direct

reference to the element of intention is made in the current text of the Vienna

Convention, the preparatory work leading to its adoption shows that intention is

the criterion for distinguishing between legal and non-legal instruments within

the ambit of the Convention.

The above discussion of the definition of an international agreement

under Art.2 para.1 of the Vienna Convention on the Law of Treaties shows that

establishing the legal character of an international instrument is not an easy task.

The reservations expressed at the Vienna Conference regarding the non-

50 Ibid.

51 Ibid.

52 Ibid.

53 See for example the statement made by Mr. Yassen, Chairman of the Drafting Commitee

16

inclusion of the element of intention in the formal definition of international

agreements show that States were anxious to preserve a clear line between legal

and non-legal agreements which would guarantee both stability and flexibility in

international relations.

B. The criterion of intention in the jurisprudence of international courts.

In addition to the definition of international agreements under Art.2

para.1 of the Vienna Convention on the Law of Treaties, the intention to create

legal effects on the international plane also features in the judgments of

international judicial bodies as the main criterion for differentiating between

international agreements and political undertakings. This part of the paper

examines some of these judgments.

i) The Aegean Sea Continental Shelf Case.

One of the cases in which the International Court of Justice dealt with the

question of what amounts to an international treaty was the Aegean Sea

Continental Shelf Case54. The case concerned a dispute between Turkey and

Greece over the issue of delimitation of the continental shelf of the Aegean Sea.

More particularly, one of the questions put forward to the International Court of

Justice concerned the legal status of the so-called Brussels Communiqué, a

communiqué issued jointly by Greece and Turkey on the 31st of May 1974. The

Communiqué stated: “In the course of their meeting, the two Prime Ministers had

an opportunity to give consideration to the problems which led to the existing

situation as regards relations between their countries. They decided [ ont

decide] that those problems should be resolved [ doivent etre resolus] peacefully

by means of negotiations and as regards the continental shelf of the Aegean Sea

by the International Court at the Hague. They defined the general lines on the

basis of which the forthcoming meetings of the representatives of the two

Governments would take place. In that connection they decided to bring forward

the date of the meeting of experts concerning the question of the continental

shelf of the Aegean Seas and that of the experts on the question of air space55”.

54 Aegean Sea Continental Shelf Case, ICJ Reports 1978, p. 3.

55 Ibid., pp. 39-40.

17

The Greek Government, in an attempt to find a basis of jurisdiction,

argued that the Brussels Communiqué constituted in fact an international

agreement, under which both States accepted the submission of the dispute to

the International Court of Justice according to Art.36.1 of its Statute. On the other

hand, the Turkish Government considered that the Communiqué was not a treaty

and thus, submitted that the Court entertained no jurisdiction to address the

dispute. Thus, it fell upon the Court to explore the legal status of the Brussels

Communiqué for the purpose of ascertaining whether it constituted a legal

undertaking or not.

At first, the International Court of Justice stated that questions of form

have no importance in determining whether an instrument amounts to a legal

undertaking56. According to the Court, the nature of the Brussels Communiqué as

an international agreement falling within the terms of Art.36.1 “depends on the

nature of the act or transaction to which the Communiqué gives expression57”.

Having regard to the terms of the Communiqué as well as to the context in which

it was issued, the Court concluded that it did not amount to a legal undertaking

since “it was not intended to, and did not, constitute an immediate commitment

by the Greek and the Turkish Prime Ministers, on behalf of their respective

governments, to accept unconditionally the unilateral submission of the present

dispute to the Court58”.

ii) The Maritime delimitation and territorial questions between Qatar and

Bahrain Case59.

The case concerned a dispute regarding the maritime and territorial

delimitation between Qatar and Bahrain. In this case, the International Court of

Justice was faced with the question of the legal status of the agreed minutes of a

discussion between the Foreign Ministers of Qatar and Bahrain that took place in

56 Ibid.

57Ibid.

58 Ibid., p. 44; For a commentary of the judgment see H. Thirlway, The Law and Procedure of the

International Court of Justice 1960-1989, part III, 62 BYIL 1 (1991), at pp. 14-5.

59 Maritime delimitation and territorial questions between Qatar and Bahrain Case, ICJ Reps. 1994,

p. 112.

18

Doha in December 199060. According to Qatar, the 1990 Minutes amounted to an

international agreement that enabled the International Court of Justice to

exercise jurisdiction to adjudicate upon the dispute. Bahrain disagreed and

argued that the Minutes were a simple record of negotiations and did not rank as

an international agreement61. In order to substantiate its argument, Qatar cited a

statement made by its Minister for Foreign Affairs in 1992, in which he stated

that: “At no time did I consider that in signing the Minutes I was committing

Bahrain to a legally binding agreement62”.

However, the Court did not accept Bahrain’s contention. The Court argued

instead that by signing the 1990 Minutes both States expressed their intention to

become bound by the obligations contained therein and that this intention

conferred upon the Minutes the character of a legal act. In the words of the Court,

the 1990 Minutes “do not merely give an account of discussions and summarize

points of agreement and disagreement. They enumerate the commitments to

which the Parties have consented. They thus create rights and obligations in

international law for the parties. They constitute an international agreement63”.

iii) The Separate Opinion of Judge Read in the International Status of South

West Africa Advisory Opinion64:

According to the Separate Opinion of Judge Read in the International

Court’s Advisory Opinion on the International Status of South West Africa, the

intention to create legal effects is one of the essentials of the juridical nature of

international agreements. In his own words: “It is unnecessary to discuss the

juridical nature of an international agreement. It is sufficient, for present

purposes, to state that an “arrangement agreed between” between the United

60 Ibid., pp. 118-9. The agreed minutes concluded between the disputing parties will be

henceforth referred to as “the Doha Minutes” or as the “1990 Minutes”.

61 Ibid., p. 120.

62 Ibid., p. 121.

63 Ibid.

64 Separate Opinion of Judge Read in the International Status of South West Africa Advisory

Opinion, ICJ Reports 1950, p 128 at p. 164.

19

Nations and the Union necessarily included two elements: a meeting of minds;

and an intention to constitute a legal obligation65”.

To sum up, the foregoing section attempted to shed some light on the

concept of juridical acts in international law with a view to establish the

international law criterion for distinguishing between legal and non-legal acts. It

was argued here that, although the doctrine of juridical acts remains largely

underdeveloped in literature, the intention of the author State to create legal

effects on the international plane features as the main criterion for

differentiating between legal and political acts.

4. Unilateral Acts as Juridical Acts.

4.1 Unilateral Juridical Acts as manifestations of a State’s intention to create

legal effects.

Having ascertained that the difference between acts of a legal character

and acts of no legal significance is that through the former an intention to create

legal relations on the international plane is manifested, the discussion next turns

to unilateral acts. In the light of the above exposition of the current state of

international law in relation to juridical acts, this part of the paper questions

whether unilateral acts, or at least some of them, may be considered as juridical

acts. On the basis of the relevant case-law of the International Court of Justice

and of the work of the International Law Commission on the topic, this part

argues that the intention to create legal effects on the international plane may

also be manifested through unilateral acts and that this very element

differentiates such acts from political commitments of a unilateral origin.

A. Intention as the Criterion for distinguishing between Unilateral Juridical

Acts and Unilateral Non-Legal Acts: The case-law of the International

Court of Justice.

i) The Nuclear Tests Case:66

In the Nuclear Tests Case, the ICJ emphasized the importance of the

element of intention to create legal effects for the attribution of legal character to

65 Ibid, p. 170.

66 Nuclear Tests Case, supra note 3.

20

such acts. In the words of the Court: “When it is the intention of the State making

the declaration that it should become bound according to its terms, that

intention confers on the declaration the character of a legal undertaking, the

State being thenceforth legally required to follow a course of conduct consistent

with the declaration67”. Apart from clarifying the conditions under which a

unilateral act becomes binding, the Court also stipulated a number of limitations

to the inference of the existence of a binding unilateral act, in order to safeguard

that the freedom of action of States would not be unduly limited. Two main

guarantees were given. First, it was pointed out that “not all unilateral acts imply

obligation; but a State may choose to take up a certain position in relation to a

particular matter with the intention of being bound- the intention is to be

ascertained by interpretation of the act68”.

Thus, the Court highlighted that the intention of a State to assume

obligations by means of a unilateral act is not to be lightly presumed. On the

contrary, the ascertainment of the requisite level of intention is based upon the

interpretation of the act, a task which, as the Court explained later, is dictated by

the actual terms of the declaration69. Secondly, the Court made it clear that, in

cases of unilateral acts whereby states limit their freedom of action, “a restrictive

interpretation is called for70”. By opting for a restrictive interpretation of

unilateral acts, the Court provided a further guarantee that obligations going

beyond those intended by the declarant would not be opposable against it,

thereby echoing a well-established principle of international law to the effect

that States may not be bound against their will71.

67 Ibid.

68 Ibid., para. 44.

69 Ibid., para. 51.

70 Ibid., para. 44.

71 In the Lotus Case, the Permanent Court of International Justice stated that: “International law

governs relations between independent States. The rules of law binding upon States therefore

emanate from their own free will as expressed in conventions or by usages generally accepted as

expressing principles of law and established in order to regulate the relations between these co-

existing independent communities or with a view to the achievement of common aims.

Restrictions upon the independence of States cannot therefore be presumed”. ( Emph. Added).

The Case of the SS Lotus, PCIJ Series A, No.10, (1927), p. 4, at p. 18.

21

To sum up, the International Court in the Nuclear Tests Case upheld the

binding force of unilateral declarations if uttered publicly and with the intent to

be bound. According to the judgment, the bindingness of unilateral acts is based

upon the intention of the author State to create legal effects by means of such

acts, as well as on the principle of good faith. The Court also clarified the notion

of “unilateralism” by stating that, in these circumstances, no reciprocity is

required for such acts to have effects in international law. Finally, the Court gave

some guarantees against the unfettered inference of binding unilateral acts.

Thus, it provided that, in cases where the freedom of action of States is restricted

by means of a unilateral act, a restrictive interpretation of the requisite element

of intention is called for.

ii) The Nicaragua Case72:

In more recent case-law the element of intention has continued to play a

major part in drawing the line between legal undertakings and mere political

statements. In the Nicaragua Case73, the US claimed that a resolution of the

Nicaraguan Junta expressing its intentions of holding democratic elections was

legally binding upon the latter74. The Court refused to share this approach;

instead, it declared itself unable to find anything in the documents and

communications transmitting the Junta’s declaration from which it could be

inferred that any legal undertaking was intended to exist. Thus, the Court

concluded that “it could not find an instrument with legal force, whether

unilateral or synallagmatic, whereby Nicaragua has committed itself in respect of

the principle or the method of holding elections75”.

72 Case concerning Military and Paramilitary Activities in and against Nicaragua, Merits, ICJ

Reports 1986, p. 14

73 Ibid., para. 257.

74 Ibid.

75 Ibid., para. 261.

22

iii) The Frontier Dispute Case76.

Similarly, in the Frontier Dispute Case77 the element of intention was

central to the Court’s decision. Here the act in question was a statement made by

the Head of State of Mali accepting in advance a report to be drawn by the

Mediation Committee concerning the territorial dispute between Mali and

Burkina Faso. The Court having cited both the Nuclear Tests and Nicaragua cases

asserted that such unilateral declarations may have the effect of creating legal

effects for the State on whose behalf they are made78. However, it emphasized

that the intention of the declarant State is crucial in conferring on the declaration

the character of a legal undertaking79. Having considered the declaration of the

Head of State of Mali, the Court concluded that there are not any grounds to

interpret it as a unilateral act with any legal implications.

B. Intention in the International Law Commission’s Guiding Principles

applicable to unilateral declarations of States capable of creating legal

obligations80.

Intention also features in the International Law Commission’s Guiding

Principles on unilateral declarations as the main condition for attributing legal

effects to such declarations. According to Guiding Principle 1: “Declarations

publicly made and manifesting the will to be bound may have the effect of

creating legal obligations81”.

4.2 Some problems relating to intention.

In the previous section, it was demonstrated that intention is the

determinant factor in attributing legal effects to a unilateral act. However,

intention in international law is a rather dangerous concept. For one, it is hard to

76 Case concerning the Frontier Dispute, ICJ Reports 1986, p. 554

77 Ibid.

78 Ibid., para. 39

79 Ibid.

80 Guiding Principles applicable to unilateral declarations of States capable of creating legal

obligations adopted by the ILC at its 58th session in 2006, available at

http://untreaty.un.org/ilc/guide/gfra.htm .

81 Ibid.

23

establish the “intentions” of abstract entities, such as States. Indeed, if intention

is perceived as a psychological element referring to the “state of mind” of a State

at the time of the making of a unilateral act, then establishing what the State

willed at that particular moment seems almost impossible. Such considerations

have prompted a number of commentators, such as M. Koskenniemi to deny any

legal effects to unilateral acts on the ground of the inherent subjectivity of the

element of intention82. How is one to determine whether a particular unilateral

act expresses the intention of its author to become bound according to its terms?

The next section of this chapter aims to answer these questions.

4.3 Qualification of the Concept of Intention and the relevance of the context

surrounding the making of the Act in determining the juridical nature of a

Unilateral Juridical act.

It is submitted here that, under international law, the element of

“intention” of legal subjects refers to their intentions as they manifest

themselves to the international community. Thus, the task of establishing the

intention of a State, far from involving any investigation into the motives and

reasons, in other words into the “real will”, of that particular State, is essentially

one of establishing the “manifest” or “declared” will of the State. This

interpretation is supported by the Nuclear Tests judgment, in which the Court

made it clear that a unilateral declaration is binding on two conditions: “if given

publicly and with an intent to be bound83”. The introduction of the requirement

of publicity shows that, in the opinion of the Court, what mattered in

determining the existence of a legal obligation was not the real intention of

France at the time of making of the declarations, but its “manifest will”, i.e. what

a reasonable person would perceive to be France’s intention on the basis of the

declaration. This is a point that the Court emphasized later in the judgment: “In

announcing that the 1974 series of atmospheric tests would be the last, the

French Government conveyed to the world at large, including the Applicant, its

82 M. Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument,

Cambridge, New York, re-issued with Epilogue by Cambridge University Press, 2005, pp. 345 et

seq.

83 Nuclear Tests Case, supra note 3, para. 43.

24

intention effectively to terminate these tests. It was bound to assume that other

States might take note of these statements and rely on their being effective84”.

As far as the question of interpretation of the element of intention is

concerned, a contextual approach will be adopted. It is argued here that on the

basis of the case-law of the International Court of Justice and its predecessor a

number of indicators of the manifest intention of the author State may be

deduced. These include the degree of publicity of the act and the forum in which

the act was made.

At first, as seen in the abovementioned dictum, publicity was one of the

contextual factors that played a prominent role in the determination of the legal

effects of the French statements in the Nuclear Tests Case. Publicity also features

in the International Law Commission’s Guiding Principles on Unilateral

Declarations as the main indicator of the intention of the author to assume

obligations of a legal nature85.

Next, the focus turns to the forum in which the act is made as an indicator

of the manifest intention of the author to become bound thereby. Two judgments

decided by the Permanent Court of International Justice, i.e. the Mavrommatis

Palestine Jerusalem Concessions Case86 and the Certain German Interests in Polish

Upper Silesia Case87 are relevant here. A common feature of these cases is that

they all concerned unilateral acts in the form of declarations made in the course

of the Court’s proceedings; in both cases the Court invariably held the binding

character of such declarations.

The Mavrommatis Palestine Concessions Case involved a dispute between

the United Kingdom and Greece, which at the time was exercising diplomatic

action on behalf of one of its citizens, Mr. Mavrommatis. The facts of the case

originated from a series of pre-war concessions granted to M. Mavrommatis by

the City of Jerusalem. After the end of World War I, the administration of

Jerusalem was given to Great Britain on the basis of the terms of the Mandate for

84 Ibid., para. 51.

85 See Guiding Principle 1 of the Guiding Principles applicable to unilateral declarations of States

capable of creating legal obligations adopted by the ILC at its 58th session in 2006, supra note 91.

86 Mavrommatis Jerusalem Concessions Case, P.C.I.J. Series A 1924, No. 2, p. 6.

87 Rights of Minorities in Upper Silesia (Minority Schools) Case, P.C.I.J. Series A 1928, No.15, p. 4

25

Palestine88. Subsequently, the UK proceeded to grant a number of concessions,

which partly overlapped with the ones granted to Mavrommatis, to another

constructor, Mr. Rutenberg, in defiance of the pre-existing contracts. According

to the Greek Government, this amounted to violation of the international

obligations accepted by the UK as the mandatory of the said territory and

ultimately, to damage to Mavrommatis’ interests89.

An issue closely related to the aforementioned question of damages

concerned a clause in the contract between the UK and Mr. Rutenberg, according

to which the latter had the right to request the expropriation of M. Mavrommatis’

concessions. During the proceedings, the British agent made a declaration before

the Court to the effect that even if a request of expropriation was received, the

British Government would not comply with it90. More particularly, the British

representative stated before the Court: “That explicit declaration I, as such

authorized representative of H.M. Government, and a member of it, here repeat

that we intend to carry out whatever obligations, if any, the Court says are

imposed upon us by the terms of the Lausanne Protocol. That being so, there can

be no question of our acting upon any request to expropriate M.

Mavrommatis91”. On the basis of this statement, which the Court considered as

binding beyond any doubt, it was concluded that no question of expropriation of

Mavrommatis’ concessions could arise in the future92.

Another case similar to the Mavrommatis Case, in the sense of involving a

unilateral act in the form of a statement made during the proceedings of the

Court, was the Case concerning certain German Interests in Polish Upper Silesia. In

that case, the Permanent Court was called upon to adjudicate on the

compatibility with international law of a Polish national decree, under which the

properties of certain German nationals in Poland were to be expropriated93. At

the beginning of the oral proceedings, the Polish representative declared before

88 See the Mavrommatis Case, supra note 97, pp. 11 et seq. 89 Ibid., pp. 26-28. 90 In essence, the declaration made by the the representative of the British Government endorsed a previous declaration by Mr. Rutenberg, according to which the latter renounced the right to ask for the expropriation of M. Mavrommatis and would not oppose his being allowed to proceed with his concessions. See ibid., pp. 36-37. 91 Ibid., p. 37.

92 Ibid.

93 Rights of Minorities Case, supra note 98, p. 12.

26

the Court the intention of his Government not to expropriate certain parts of the

properties in question94. The Permanent Court, in a similar vein to the

Mavrommatis Case, noted that it could be “in no doubt as to the binding character

of all these declarations95”.

Finally, apart from the indicators of the manifest intention of the State

that may be identified in the factual context surrounding a unilateral act,

mention must also be made to the legal context surrounding the act. On the basis

of the above exposition, it became apparent that the element of intention is

crucial in establishing the legal status of a given unilateral act. However, it would

be wrong to assume that by establishing the manifest intention of a State to

create certain legal effects by means of a unilateral act, we have automatically

established the validity of the act in question. In other words, the fact that a

given unilateral acts enjoys the requisite degree of intention does not mean that

its purported legal effects have actually arisen. Unilateral acts are not made in a

legal vacuum; rather the effect of relevant rules of law is of great importance in

assessing their validity. Thus, for example a national decree delimiting the breath

of the territorial sea of a State in defiance of relevant rules of international law

will not be a valid unilateral juridical act irrespective of the intention of its

author.

5. Kosovo’s Declaration of Independence.

5.1 Introduction.

In the previous section it was argued that the element of intention as well

as the factual and legal background surrounding the making of a unilateral act

are of paramount importance in establishing the legal nature of the act in

question. This part of the paper addresses the question of the legal status of the

unilateral declaration of independence adopted by the Assembly of Kosovo on

the 17th of February 2008. The Kosovar declaration of independence was the

subject of an Advisory Opinion delivered by the International Court of Justice in

94 Ibid., p. 13. 95 Ibid..

27

201096. According to GA Resolution 63/33, which was sponsored by Serbia97, the

Court was asked to give its opinion on the question whether “the unilateral

declaration of independence by the Provisional Institutions of Self-Government

of Kosovo is in accordance with international law”98. Perhaps overly conscious of

the political ramifications of its Opinion, the Court interpreted the question very

narrowly. According to the majority, the question posed by the General Assembly

did not necessitate consideration of the legal consequences of the declaration

and more specifically it did not require answering whether Kosovo had actually

achieved Statehood or whether subsequent acts of recognition were valid or

not99. Having thus delimited the scope and meaning of the General Assembly’s

question the Court concluded that the declaration of independence was in

accordance with international law to the extent that it did not violate any

applicable rules of law100. The narrow interpretation of the question by the

majority has been vociferously criticized not only by academics101 but also by

judges sitting in the case, such as Judge Simma, Judge Sepulvedo-Amor and Judge

Yusuf. It was thought that by focusing solely on the existence of rules prohibiting

declarations of independence and by refusing to examine the existence of any

permissive rules, such as the right to “remedial secession”, the Court, in essence,

did not answer the question put before it102.

The Kosovo ruling was highly anticipated, since any pronouncement

coming with the authoritative stamp of the International Court would have

major implications for any State threatened by separatist movements. In this

light, it is perhaps understandable that scholarly commentaries on the Advisory

Opinion were focused almost exclusively on the law of self-determination, rather

than on the declaration of independence itself. Thus, the aim of this section is to

96

International Court of Justice Advisory Opinion on the Accordance with International Law of the

Unilateral Declaration of Independence in respect of Kosovo, 22nd

of July 2010, available at

http://www.icj-cij.org/docket/index.php?p1=3&p2=4&k=21&case=141&code=kos&p3=4 . 97

See the relevant press release http://www.un.org/News/Press/docs/2008/ga10764.doc.htm . 98

See UN General Assembly Resolution A/RES/63/33 adopted on 08/10/2008, available at

http://www.undemocracy.com/A-RES-63-3 . 99

Para. 51 of the Advisory Opinion. 100

More particularly, the Court opined that the declaration violated neither the special legal regime

created by the UN Sec. Council Resolution 1244 (1999) nor any rule of general international law. See

paras. 79 et seq. of the Advisory Opinion. 101

See for example, R. Howse, R. Teitel, Delphic Dictum: How has the ICJ contributed to the global

rule of law by its ruling in Kosovo?, 11 German L.J. 841 ( 2010). 102

See paras. 3, 6 of the Declaration of Judge B. Simma and paras. 33-35 of the Separate Opinion of

Judge Sepulvedo-Amor.

28

examine whether the declaration of independence is a political act and, as such,

lies outside the ambit of international law, or whether it is a unilateral juridical

act in the sense described above, i.e. an act with legal effects on the international

plane.

5.2 The declaration of Independence and the Opinion of the Court.

This part of the paper examines whether the Opinion of the Court may

serve as guidance as to the legal or political status of the Declaration. Before

turning to the Opinion of the Court, it is necessary, however to provide here the

text of the Declaration itself. The declaration of 17 February 2008 reads: “1. We,

the democratically-elected leaders of our people, hereby declare Kosovo to be an

independent and sovereign state. This declaration reflects the will of our people

and it is in full accordance with the recommendations of UN Special Envoy Martti

Ahtisaari and his Comprehensive Proposal for the Kosovo Status Settlement. 2.

We declare Kosovo to be a democratic, secular and multi-ethnic republic, guided

by the principles of non-discrimination and equal protection under the law. We

shall protect and promote the rights of all communities in Kosovo and create the

conditions necessary for their effective participation in political and decision-

making processes. We welcome the international community’s continued

support of our democratic development through international presences

established in Kosovo on the basis of UN Security Council resolution 1244

(1999). We invite and welcome an international civilian presence to supervise

our implementation of the Ahtisaari Plan, and a European Union-led rule of law

mission. We hereby undertake the international obligations of Kosovo, including

those concluded on our behalf by the United Nations Interim Administration

Mission in Kosovo (UNMIK), … We hereby affirm, clearly, specifically and

irrevocably, that Kosovo shall be legally bound to comply with the provisions

contained in this Declaration, including especially, the obligations under the

Ahtisaari Plan… We declare publicly that all states are entitled to rely upon this

declaration… 103”.

As mentioned above, the Court, instead of examining whether

international law confers a right upon the people of Kosovo to declare

independence, simply attempted to ascertain whether an applicable rule of law

103

See para. 75 of the Advisory Opinion.

29

existed that would prohibit the declaration. Having examined the applicable

rules of law, the Court concluded that “the adoption of that declaration did not

violate any applicable rule of law104”.

The conclusion reached by the Court did not shed any light on the legal or

political status of the declaration. The Court simply said that the unilateral

declaration is not against international law. This does not automatically mean

that the declaration is a legal act. Strictly speaking, political pronouncements are

not against international law. More specifically, they are neither in conformity,

nor in breach of international law; they simply fall outside the ambit of

international law. Thus, the answer provided by the Court is not helpful in

establishing the nature of Kosovo’s declaration.

5.3 Was the Declaration of Independence a Unilateral Legal Act?

The Declaration of the Kosovar authorities seems to be the perfect

candidate for the title of “unilateral juridical act”. On its face, it seems that it

expresses an intention to create legal effects and the question whether its

purported legal effects have come about would depend upon the legal context in

which the act occurred, i.e. the existence of a rule permitting “remedial

secession”. In this vein, if it is accepted that a right to “remedial secession” exists

in international law, then the declaration of independence may be considered as

a unilateral juridical act, as some international lawyers have argued105.

However, upon closer inspection, this conclusion does not seem to be

correct. On the contrary, the opinion expressed by the UK and a number of other

countries during the proceedings, namely that declarations of independence are

not legal acts in international law is more convincing106. At first, if it is accepted

that Kosovo’s declaration of independence, or indeed any declaration of

independence, constitutes a unilateral legal act, then it would mean that the

effects of the declaration, i.e. the creation of a State, would come about solely by

means of the declaration. However, Statehood, in international law, is a fact;

either an entity satisfies the effectiveness-based criteria for Statehood stipulated

104

Ibid., para. 122. 105

See for example M. Weller, Contested Statehood: Kosovo’s Struggle for Independence, OUP,

Oxford, 2009, p. 231. 106

See the comments made by J. Crawford as representative of the UK in the Oral St

30

in the Montevideo Convention107 at the time that the Declaration is made or it

does not. A declaration of independence may not confer the status of a State to an

entity that was not a State before the declaration. As Professor Crawford noted in

the proceedings before the Court: “A declaration issued by persons within a State

is a collection of words writ in water; it is the sound of one hand clapping. What

matters is what is done subsequently, especially the reaction of the international

community108”.

The aforementioned proposition to the effect that unilateral declarations,

far from being juridical acts, are not regulated by international law and thus,

constitute mere political pronouncements is also supported by State practice.

Although it is true that the Security Council has condemned specific declarations

of independence, such as the declarations made by Southern Rhodesia and by the

Turkish Republic of Northern Cyprus109, since they were conjoined with

violations of peremptory norms, such as the prohibition of use of force and the

prohibition against apartheid, those declarations were never characterized as

unlawful per se. Rather than treating these declarations as internationally

wrongful acts, as it would have been the case if declarations of independence

were regulated by international law, the Security Council merely imposed an

obligation of non-recognition of the entities in question upon other States110.

An overview of modern declarations of independence yields the same

results. The numerous proclamations of independence made in the early 1990s

by entities that wished to secede from the then Socialist Federal Republic of

Yugoslavia are further examples of the political, rather than legal, nature of

unilateral declarations of independence. The claims of Statehood made by

Slovenia, Croatia, Bosnia and Herzegovina etc. at the time were the object of

107

See the 1933 Convention on the Rights and Duties of States, signed at Montevideo on December 26,

1933, available at http://avalon.law.yale.edu/20th_century/intam03.asp 108

See the comments made by J. Crawford on behalf of the UK, Advisory Opinion on the Accordance

with International Law of the Unilateral Declaration of Independence in respect of Kosovo, Oral

Statements made during the public sitting held on Friday 11 December 2009 at the Peace Palace, CR

2009/33, p. 47, available at http://www.icj-

cij.org/docket/index.php?p1=3&p2=4&k=21&case=141&code=kos&p3=2 . 109

See D.J. Harris, Cases and Materials on International Law, 7th

ed., Sweet and Maxwell, London,

2010, pp. 101-3. 110

For the Turkish Republic of Northern Cyprus, see UN Sec. Council Res. 541 (1983) para. 7,

available at http://www.cyprusun.org/?cat=52 . For Southern Rhodesia see UN Sec. Council Res. 202

(1965), para. 3, available at http://www.un.org/documents/sc/res/1965/scres65.htm . See also Articles

40 and 41 of the ILC Draft Articles on State Responsibility, adopted in 2001, available at

http://untreaty.un.org/ilc/texts/9_6.htm .

31

close scrutiny both by the United Nations and the EU111. However, these claims

were never discussed in terms of “lawful” and “unlawful”. The Arbitration

Commission of the Conference on Yugoslavia, widely known as the Badinter

Commission, which was set up by the EU Council in 1991 to provide legal advice

to the Conference on Yugoslavia delivered a number of opinions regarding the

requests for recognition by entities in the territory of the SFRY. However, the

Badinter Commission never discussed or even raised the question of the

lawfulness or unlawfulness of the relevant declarations of Independence112. In

the light of the above, it becomes apparent that the view according to which

unilateral declarations of independence are unilateral juridical acts in

international law is unsubstantiated both in theory and in practice.

111

J. Crawford, The Creation of States in International Law, 2nd

ed., Clarendon Press, Oxford, 2006,

pp. 395-401. 112

The Opinions issued by the Badinter Commission are available at

http://www.oup.com/uk/orc/bin/9780199259397/resources/04documents/ch04/ .