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Advisory Opinion: Accordance with International Law of the Unilateral Declaration of Independence In Respect of Kosovo (Islamic Republic of Iran, Ireland, Kosovo, Serbia) Advisory Opinion: Accordance with International Law of the Unilateral Declaration of Independence In Respect of Kosovo (Islamic Republic of Iran, Ireland, Kosovo, Serbia)

This is a historical case. In accordance with AMUN rules and procedures, please note that the historical timeline for this case will stop on 1 July 2010. Any and all updates to this case after that date will not be relevant to the AMUN simulation nor considered in hearing the case.

On 15 August 2008, the Permanent Representative of Serbia to the United Nations requested that the sixty-third General Assembly address the Republic of Serbia’s request for an advisory opinion from the International Court of Justice regarding whether Kosovo’s unilateral declaration of independence is in accordance with international law. The General Assembly addressed Serbia’s request and adopted resolution A/RES/63/3 in October 2008, which requested the International Court of Justice issue an advisory opinion. The question at hand was “Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?” as submitted by Serbia.

Kosovo has had a tumultuous political past. In 1945, Kosovo was labeled as the Autonomous Region of Kosovo and Metohija, within the People’s Republic of Serbia, within Socialist Yugoslavia. In 1968, the region became the Socialist Autonomous Province of Kosovo. Six years later, the new Yugoslav constitution granted the Province of Kosovo increased administrative independence. However, by 1989, Serbian President Slobodan Milošević revoked Kosovo’s privileges due, in part, to rising ethnic tensions. In response, the Kosovo Assembly declared itself an independent state on 2 July 1990; Albania was the only state that recognized an independent Kosovo. Albanians are the largest ethnic group in Kosovo.

In 1996, the Kosovo Liberation Army began attacking federal Yugoslav security forces, claiming that the security forces had been involved in the attempted ethnic cleansing of Albanians. Violence escalated and the region seemed on the brink of war. After a massacre of 45 Albanian civilians was reported in January 1999, the North Atlantic Treaty Organization (NATO) used the breakdown of the negotiated Interim Agreement for Peace and Self-Government in Kosovo (Rambouillet Accords) as a justification for military intervention in early 1999. When the Federal Republic of Yugoslavia did not comply with demands to allow peacekeepers, NATO carried out an extensive coercive bombing campaign to urge Milosevic to capitulate (this military action was unsanctioned by the United Nations, where NATO faced opposition from both Russia and China). A combination of coercive, targeted bombing and political pressure ended the war between Serbia and Kosovo, and Serbia agreed to allow peacekeepers in Kosovo.

After the war, the NATO-led Kosovo force entered into Kosovo to provide security for the United Nations Mission in Kosovo (UNMIK), as was established in Security Council Resolution 1244. The resolution permit an international civil and military presence in Kosovo, established the framework for UNMIK, mandated withdrawal of Serbian security forces in Kosovo and instituted a political process facilitated by the United Nations to resolve the final status of Kosovo. This process to resolve the final status of Kosovo was initiated officially in 2006, with negotiations being led by the UNMIK between Kosovo and Serbia.

In February 2007, Martti Ahtisaari, the United Nations special envoy for Kosovo, provided a draft settlement proposal to leaders of both Serbia and Kosovo. The Comprehensive Proposal for the Kosovo Status Settlement (CSP) laid out a comprehensive proposal for the status of Kosovo; while it did not explicitly mention independence, most observers concluded that statehood would be the eventual result of enacting the proposal. However, despite discussions working to address concerns from all sides, the settlement talks stalled in late 2007. This resulted in the Assembly of Kosovo’s second unilateral declaration of independence from Serbia on 17 February 2008.

The question presented by the sixty-third General Assembly to the International Court of Justice involves a variety of issues of international law and sovereignty. Security Council resolution 1244 provides the baseline for the relationship between the regions and for the resolution of Kosovo’s final status. Although the question presented assumes that the declaration was an act of the Provisional Institutions of Self-Government, this is not a forgone conclusion; the Court’s opinion should consider this question. The advisory opinion must also address the issues of sovereignty and territorial integrity, the protection of civil and humanitarian rights, and the effect of the decision on the relationship between Kosovo and Serbia as well as the international community as a whole. Territorial integrity—the principle under international law that nation-states should not attempt to promote secessionist movements or border changes in other nation-states—is widely accepted as an international norm and should be taken into consideration, particularly in cases of secession.

In addition to substantive questions, there is also a jurisdictional argument. Some opponents point out that while the General Assembly may have referred this case to the Court, the Security Council should be responsible for requesting the advisory opinion given its passage of Resolution 1244 and role in the existing peacekeeping operation. As the Security Council has not asked for an advisory opinion, the Court should use discretion and not answer the General Assembly’s request. Resolution 1244 indicates that any final settlement between Serbia and Kosovo must be the result of a negotiated agreement between the parties or of a Security Council decision. According to those who argue the ICJ does not have jurisdiction, the Resolution excludes a unilateral act as a possibility for a final settlement.

Proponents advance a number of arguments for the Court to find the unilateral declaration of Kosovo to be in accordance with international law. Foremost is that Kosovo’s action is justified by the fundamental human rights abuses and the lack of representation Kosovar people suffered while a part of Serbia. Proponents argue that, while all citizens of the world possess the right to self-determination within the framework of the existing State, the principle of carence de souverainete (lack of sovereignty) encourages secession when a territory is so heavily misgoverned that self-determination within an existing State is not possible. The placement of UNMIK as a governing body was viewed as recognition of existing misgovernment by Serbia.
Proponents further assert that the long history of enmity and distrust between Albanians in Kosovo and Serbia continues to exert a poisoning influence on efforts toward integration.

Opponents of Kosovar independence argue that Kosovo is not in accordance with international law. These proponents highlight the inviolability of the principle of territorial integrity. Within international law, the principle of territorial integrity is seen as being of the utmost importance—a cornerstone to the Charter of the United Nations. According to the Vienna Convention of 1969, the international community should treat territorial integrity  as a “norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted.” Furthermore, the principle of territorial integrity as an internationally recognized norm not only applies between States but also within them. Proponents of a single Serbian state point to the large difference between the rights of the minority group and the right to secession. While all human beings, minority or not, have the right to self-determination, it is an internal right; secession is fundamentally external.

The Court will first need to consider its own right to jurisdiction in this case. While the General Assembly may submit issues to the ICJ for an Advisory Opinion, this is traditionally done in reference to the need for legal clarification on some matter before the General Assembly. Since a part of its jurisdictional argument is based in the implications of a Security Council resolution, jurisdiction may or may not be an issue. If jurisdiction is warranted, the Court must also then take into consideration the two competing fundamental issues of international law represented here: the inviolability of the principle of territorial integrity and the rights of peoples to self-determination. Various treaties and human rights documents speak to these issues. In addition, competing claims of human rights violations may be important in this case.

Questions to Consider Questions to Consider

  • Given that the General Assembly has asked the Court to provide an Advisory Opinion on an issue regarding which the UN Security Council has passed a Resolution, where does this Court find jurisdiction to consider the merits of this Advisory Opinion?
  • How do competing claims of self-determination and territorial integrity/sovereignty apply in this case?
  • Given the existence of a Security Council resolution as one source of law, do the provisions of Resolution 1244 affect the ability of Kosovo to declare independence when combined with other relevant sources of law on self-determination?
  • Do human rights issues on either or both sides provide a legal impetus or impediment to a declaration of independence, either alone or in combination with the other legal issues defined here?
  • Under what circumstances does international law permit unilateral declarations of independence?

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Application of the International Convention on the Elimination of All Forms of Racial Discrimination – Georgia v Russia Application of the International Convention on the Elimination of All Forms of Racial Discrimination – Georgia v Russia

This is a historical case. In accordance with AMUN rules and procedures, please note that the historical timeline for this case will stop on 1 May 2010. Any and all updates to this case after that date will not be relevant to the AMUN simulation nor considered in hearing the case.

On 12 August 2008, the Republic of Georgia instituted proceedings at the International Court of Justice against the Russian Federation. The application that asserts Russia violated Articles 2 through 6 of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) “through its State organs, State agents, and other persons and entities exercising governmental authority, and through the South Ossetia and Abkhazia separatist forces and other agents acting on the instructions of, and under the direction and control of the Russian Federation.” South Ossetia and Abkhazia are regions that have declared their independence from Georgia and share borders with Russia and Georgia. South Ossetia declared its independence the same year Georgia declared its independence from Russia (1991) and Abkhazia followed the next year (1992). Georgia considers South Ossetia and Abkhazia to be part of its sovereign territory.

Tensions between Georgia and both South Ossetia and Abkhazia have flared several times into armed conflict. While Georgia and Abkhazia negotiated a ceasefire in 1994, political and military tension between the two parties has increased. During 1998 and 2001 the tension translated into short armed conflicts. While the conflicts were resolved with further ceasefire agreements, the military situation continued to escalate. The peace agreement correlating with these ceasefires permitted Russian peacekeepers to remain in the contested territories. On 21 April 2008, Georgia accused Russia of downing of an unmanned drone over Abkhazia. Eight days later, Russia accused Georgia of amassing troops to attack Abkhazia and increased their peacekeeper troops in response. Tensions increased when additional unarmed Russian troops were sent to Abkhazia on 30 May, for necessary railway repairs; Georgia accused Russia of planning an invasion.

In August 2008, South Ossetian separatists attacked Georgian peacekeepers. The conflict resulted in Russian tanks and soldiers moving through South Ossetia into Georgia on 10 August 2008. Two days later, Russia halted its incursions into Georgia after agreeing to a six point plan to defuse tensions in the region. The plan allowed for cessation of hostilities and the withdrawal of troops from region. At the end of August 2008, Russia formally recognized the independence of South Ossetia and Abkhazia. The government of Georgia considers South Ossetia and Abkhazia to be independently administered territories, and it remains concerned about the rights of ethnic Georgians living in these territories.

The International Convention on the Elimination of All Forms of Racial Discrimination was adopted by the General Assembly on 21 December 1965, and entered into force 4 January 1969. It is a core international instrument in prevention of discrimination. The Convention defines racial discrimination as “any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.”

Georgia alleges that Russia’s actions throughout the 1990s, and especially in the war of 2008, violated the Convention, including, inter alia, through dislocation of ethnic Georgians from their homes, killing of civilians and refusal to allow ethnic Georgian refugees to return to their homes. Georgia claims that these acts evidence a consistent and protracted pattern by the Russian government of the ethnic cleansing of these territories in violation of the Convention. Russia’s actions are specifically alleged to have violated Articles 2 and 5 of the Convention. Both Georgia and Russia are parties to CERD without reservation (Russia is a party by succession, as the USSR was a party to the treaty, and Russia assumed the USSR’s treaty obligations).

Article 22 of the Convention allows States Parties to refer disputes arising under the Convention to the Court, under certain circumstances. Georgia claims jurisdiction under Article 22, outlining numerous previous attempts to resolve the dispute through other means.  It petitioned the Court to act with haste to protect Georgians from further discrimination.

Russia argues that Article 22 requires Georgia to pursue a negotiated settlement to disputes before appealing to the Court. Russia notes that Article 22 is a last resort, utilized only after all other measures provided for under the Convention have been exhausted, including referral to the Committee on the Elimination of Racial Discrimination and negotiation between the parties. They claim that Georgia has not made any previous claims of and that, as a result, the Court does not have jurisdiction.

Russia argues that the principle of self-determination, embodied in the UN Charter and various international conventions, permits the separatists in South Ossetia and Abkhazia—both majorities—to secede from the state of Georgia. Russia also claims that the
obligations of Articles 2 and 5 of the Convention do not apply extraterritorially but are instead obligations only required of a state within its own sovereign territory. Russia claims that its intervention in the first and second phases of the conflict had been with the express consent of Georgia and in the nature of a peacekeeping operation at the behest of the Commonwealth of Independent States. Russia argues that, beyond the question of jurisdiction, this case is not an issue of racial discrimination. Additionally, Russia claims that the 2008 wars began as a result of Georgian aggression in the contested territories and that characterizing Russia as the aggressor in the war is a political response related to Georgia’s expressed intentions to join the North Atlantic Treaty Organization (NATO).

Russia claims that the responsibility for the violations of the obligations under the Convention rest primarily with the authorities in Abkhazia and South Ossetia. This responsibility, it maintains, can not under any circumstances be attributed to Russia, since these authorities are not its de facto organs and were not acting under its direction and control. Referring specifically to the request for provisional measures, Russia maintained that the dispute in both form and substance fell outside the scope of the Convention.

Over the objection of Russian Federation, the Court issued an interim ruling following the public hearings. The Court reserved judgment on its final determination of whether Article 22 allows jurisdiction but did find sufficient jurisdiction to issue an interim ruling. This ruling ordered all parties to refrain from any and all violations of the Convention and to allow for humanitarian aid in the region. The Court must now determine whether it has jurisdiction over the matter and, if so, whether a violation of the Convention has occurred.

Questions to Consider Questions to Consider

  • What jurisdiction does the Court have in this case? Are parties obligated to exhaust other measures to resolve the conflict under Article 22 of the Convention before seeking a judgment from the Court?
  • What is the scope of a State’s obligations under the CERD? Do the alleged actions constitute racial discrimination under the Convention?
  • How should the Court resolve the conflict between self determination and territorial integrity?

Bibliography Bibliography

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Fisheries Jurisdiction – Spain v Canada Fisheries Jurisdiction – Spain v Canada

This is a historical case. In accordance with AMUN rules and procedures, please note that the historical timeline for this case will stop on 1 March 1996. Any and all updates to this case after that date will not be relevant to the AMUN simulation nor considered in hearing the case.

On 9 March 1995, Canadian authorities seized a Spanish fishing vessel, the Estai, and arrested the crew approximately 250 miles off the coast of the Canadian island province of Newfoundland, just outside of Canada’s Exclusive Economic Zone (EEZ) established under the United Nations Convention on the Law of the Sea. Canada charged the ship’s captain with fishing a species of halibut that is protected under the Canadian Coastal Fisheries Protection Act as well as under a mandate issued by the North-West Atlantic Fisheries Organization. The crew’s catch was confiscated. In response, Spain deployed a warship to the area, remaining just outside of Canada’s EEZ. This action prompted Canada to do the same. The ensuing standoff culminated in Spain providing a gunboat escort for ships sailing under the Spanish flag. During this diplomatic incident, the Spanish government filed its grievance with the International Court of Justice, demanding reparations and the return of the confiscated ship.

Spain contested the Canadian arrest in its application to the International Court of Justice (ICJ), citing that the arrest took place outside of the 200-mile EEZ established under the United Nations Convention on the Law of the Sea (UNCLOS), to which both Spain and Canada are States Parties. Spain also argued that Canadian authorities unjustly used force to respond to a alleged violation of international law. Spain asserted that the ICJ had jurisdiction; both Canada and Spain have made declarations accepting compulsory jurisdiction by the Court over disputes under Article 36(2) of the ICJ Statute (known as the Optional Clause).

In the court proceedings, Canada argued the legality of the seizure and arrest were rooted in the second, third and fourth provisions of the Canadian Coastal Fisheries Protection Act, which states that “No foreign fishing vessel shall enter Canadian fisheries waters for any purpose unless authorized by this Act or the regulations, any other law of Canada or a treaty.” The crux of the argument lay in its challenge of the court’s jurisdiction. Canada claimed that areas regulated under the Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries (the NAFO Convention) were excluded from the Court’s jurisdiction. In that argument, Canada also cited the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (The Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks).

Spain’s rebuttal was multifaceted. Spain argued that the NAFO regulatory area exclusion, under a reasonable interpretation, only applied to vessels that were not explicitly associated with a recognized sovereign state. Likewise, Spain argued that its grievance was not with any claimed conservation effort—but with that of the arrest itself—which would not allow it to be grounds for exemption under the Optional Clause. Spain further argued that the force used by Canada to seize the Estai and arrest the crew violated the principles of general international law, including the use of corporal punishment in an international case that involved regulations and treaties.

The Court’s decision in this case depends on two key questions. Does the Court have Jurisdiction in this matter? If the Court does have Jurisdiction, how does the Court interpret the actions of the Canadian government in light of the overlapping treaties obligations and general principles of international law? It is important to note that in deciding matters of jurisdiction, the state’s use of its authoritative force, legal or otherwise, is not necessarily the primary concern.

Questions to Consider Questions to Consider

  • Does the Court have jurisdiction in this case?
  • How do national laws apply to foreign vessels in international waters?
  • How do the Convention on the Law of the Sea, agreements of the North Atlantic Fisheries Organization, and other relevant treaties apply and interact with national law in this case?
  • Was boarding the Estai a violation of international law to board the Estai?
  • Does a reasonable interpretation of the treaty exemption only apply to “vessels” that are not explicitly associated with a recognized sovereign state, or should the treaty be interpreted more broadly?
  • Should the scope of the dispute between the Parties be limited to the pursuit and arrest of the Estai and the consequences or is it a broader issue for the Court to hear?

Bibliography Bibliography

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