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The Legality of Unilateral Declaration of Independence in International Law: Analysis of the Kosovo Advisory Opinion of the ICJ
|Authors:||Edward Chin-Ta Wu|
International Court of Justice (ICJ),advisory opinion,unilateral declaration of independence,sovereignty and territorial integrity,the right of self-determination,the right of secession,Kosovo Advisory Opinion,
|Publication Year :||2019|
國際法院（International Court of Justice,ICJ）應聯合國大會之請，針對科索沃宣布獨立問題發表諮詢意見，是項諮詢意見於2010年7月22日宣布，結論認為「2008年2月17日科索沃獨立宣言並不違反國際法」。此諮詢意見一出，美國及歐洲二十二國聲援支持；俄羅斯、中國及歐洲五國反對，至今仍有正、反不同立場之爭。
Kosovo has an area of around 10,800 square kilometers and a population of only about 2 million. Since March 1991 the Kosovar Albanian issued a Declaration of Independence, the independence movement in Kosovo has been surging.
After the bloody genocide, the civil war and the interference of the United Nations, on February 17, 2008, Kosovar Prime Minister Hashim Thaçi presented a declaration of independence to the National Assembly. After the vote of the National Assembly, he declared that Kosovo is a sovereign and independent State. Kosovo soon has won the recognitions from 69 States. Serbia as the former “home State” of Kosovo expressed severe protests and finally brought it to the UN General Assembly.
The International Court of Justice (ICJ) issued an advisory opinion on Kosovo’s declaration of independence at the request of the UN General Assembly. The advisory opinion was announced on July 22, 2010, and concluded that the adoption of the declaration of independence of 17 February 2008 did not violate any applicable rule of international law. As soon as this advisory opinion came out, 22 states including the United States and European States declared their support to the advisory opinion; on the other hand, Russia, China and five States in Europe opposed it. There are still disputes between the two sides.
International law scholars have asserted that this is a victory for “the right of self-determination” and “democracy”. They believe that the decision of the ICJ to declare Kosovo’s independence does not violate international law will bring legal basis and power to the political organizations and groups which is pursuing independence.
After the ICJ has declared that Kosovo’s unilateral declaration of independence is in accordance with international law, does it mean that any political entity can declare independence in any situation without violating international law? Whether the Kosovo Advisory Opinion has clearly declared the right of political entities to pursue independence, and whether this advisory opinion has brought the non-state political entities a sufficient legal basis to pursue the desired national independence would be the questions that this thesis would like to find out.
Therefore, this thesis directly discusses the specific content of the advisory opinion, which is decided by the ICJ on Serbia’s accusation of the illegality of Kosovo’s declaration of independence and the violation of its sovereignty and territorial integrity. We try to analyze it in a comprehensive way, and discuss it from the perspective of international law. We hope to understand the explanation of the advisory opinion and the limitation of the scope of the case; and furthermore, to identify what the legal basis that the advisory opinion has brought to the legality of the unilateral declaration of independence in international law. We also try to predict the implications and consequences of the first-ever advisory opinion which discusses the unilateral declaration of independence, and what it would contribute to the true meanings of the rights of self-determination, secession, and independence movement of the people in international law.
|Appears in Collections:||科際整合法律學研究所|
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