Kosovo’s Declaration of Independence and the Creation of a New Legal Order: Can a Revolution Against International Law Be Legal?

Abstract

This paper discusses the recent Advisory Opinion of the ICJ regarding the accordance with international law of the Unilateral Declaration of Independence in respect of Kosovo. Addressing the Declaration as an attempt to introduce in Kosovo a legal order different from the one that was established for this territory by UNSCR 1244, this paper argues that the Declaration infringes UNSCR 1244 and thus international law. This argument is based on a conceptualization of UNSCR 1244, and the legal acts adopted by the Special Representative of the Secretary-General on its basis, as having a dual legal nature. On the one hand, they derive their validity directly from the UN Charter. On the other hand, they also function as the foundations of Kosovo's interim constitutional order. Against this background, the Declaration is here addressed as an attempt to overturn this international law-based constitutional order and to establish a new one in its place. Such an attempt cannot be normatively indifferent to the old constitutional regime, as the Advisory Opinion seems to imply. The ICJ, being an organ of the international law-based order, should rather address as illegal any effort to overturn the territorial administration that the Security Council established in Kosovo. In short, the ICJ has here a role comparable to that of a constitutional court, called to uphold the validity of an international law-based territorial legal order against any attempt to overturn it (revolution in the legal, Kelsenian sense).