코소보의 일방적 독립 선언의 국제법상 허용 가능성에 관한 ICJ 권고적 의견에 대한 검토
A Review on the ICJ Advisory Opinion on the Legality of Unilateral Declaration of Independence of Kosovo under International Law
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This paper reviews the Advisory Opinion rendered by the ICJ on 22 July 2010 . The Opinion was on "Accordance with International Law of the Unilateral Declaration of Independence in respect of Kosovo". The ICJ, firstly, considered whether the request for the advisory opinion of the General Assembly was within the ambit of the competence of the General Assembly. On the first question,the ICJ answered affirmatively. Secondly, the ICJ considered whether, in consideration of its judicial function, it is appropriate for the ICJ to give the advisory opinion requested. The ICJ pronounced that it should not be refused to give an advisory opinion except when there were compelling reasons not to do so. After the ICJ dealt with the jurisdictional issues, then it moved on to the substantial issues. In dealing with the substantial issues, the ICJ applied the general international law in order to determine whether the unilateral declaration of independence of the Provisional Institutions of the Self-Government of Kosovo was in accordance with international law. In that consideration, the ICJ followed the jurisprudence of the Lotus case. The ICJ delivered that, since there is no rule prohibiting the unilateral declaration of independence, the unilateral declaration is not unlawful under international law. But, the decision of the ICJ on this point is too technical and escapes the focal point of the case. Actually this case is involved with the question of the right of self-determination, in a sense that Kosovo is an entity to declare independence by way of the exercise of external right of self-determination or remedial secession. Although the ICJ had an opportunity to decide on the concept and the requirements to exercise the right of self-determination, it lost the chance deliberatively. On deciding the substantial issues, the ICJ, then applied the Security Council Resolution 1244 and other rules derived from it as lex specialis. In respect of Resolution 1244, the ICJ technically avoided the question of applicability of that Resolution. The ICJ simply decided that since Resolution 1244 is intended to be applicable in the interim stage of Kosovo, it is not applicable to the unilateral declaration which is the final stage of Kosovo. And also, with respect to the UNMIK regulations including the Constitutional Framework, the ICJ technically denied the applicability of them because the declaration of independence was issued by an entity which was not the addressee of the regulations.
Abstract
This paper reviews the Advisory Opinion rendered by the ICJ on 22 July 2010 . The Opinion was on "Accordance with International Law of the Unilateral Declaration of Independence in respect of Kosovo". The ICJ, firstly, considered whether the request for the advisory opinion of the General Assembly was within the ambit of the competence of the General Assembly. On the first question,the ICJ answered affirmatively. Secondly, the ICJ considered whether, in consideration of its judicial function, it is appropriate for the ICJ to give the advisory opinion requested. The ICJ pronounced that it should not be refused to give an advisory opinion except when there were compelling reasons not to do so. After the ICJ dealt with the jurisdictional issues, then it moved on to the substantial issues. In dealing with the substantial issues, the ICJ applied the general international law in order to determine whether the unilateral declaration of independence of the Provisional Institutions of the Self-Government of Kosovo was in accordance with international law. In that consideration, the ICJ followed the jurisprudence of the Lotus case. The ICJ delivered that, since there is no rule prohibiting the unilateral declaration of independence, the unilateral declaration is not unlawful under international law. But, the decision of the ICJ on this point is too technical and escapes the focal point of the case. Actually this case is involved with the question of the right of self-determination, in a sense that Kosovo is an entity to declare independence by way of the exercise of external right of self-determination or remedial secession. Although the ICJ had an opportunity to decide on the concept and the requirements to exercise the right of self-determination, it lost the chance deliberatively. On deciding the substantial issues, the ICJ, then applied the Security Council Resolution 1244 and other rules derived from it as lex specialis. In respect of Resolution 1244, the ICJ technically avoided the question of applicability of that Resolution. The ICJ simply decided that since Resolution 1244 is intended to be applicable in the interim stage of Kosovo, it is not applicable to the unilateral declaration which is the final stage of Kosovo. And also, with respect to the UNMIK regulations including the Constitutional Framework, the ICJ technically denied the applicability of them because the declaration of independence was issued by an entity which was not the addressee of the regulations.
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