1

Between Law and Politics: The Challenge of Unilateral

Declarations.
Eva Kassoti

1. Introduction.
In his early 19
th
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
2
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
3
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 days
2
. 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 itself
3
.
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 theology
4
. 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 Intl L. 65 (1980). Although Bothes 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 Intl. 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).
4
However, it is often asserted that, in achieving its social function, the legal order
is fundamentally different to all other rival solutions
5
. 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 rendered
6
.
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 concreteness
7
. 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 wills
8
. 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.
5
are wholly arbitrary or capricious
9
. 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 law
10
.

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 obligations
11
.
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.
6
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 ceremony
12
.
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 value
13
. 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 it
14
.
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 proper
16
. However, the widespread use of such
instruments entails that the distinction between legal and political acts has
become even more difficult to observe
17
.

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 State
18
, such as the
obligation to make reparation
19
. 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, 3
rd
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.
8
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.
Verzijls 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
originate
20
. 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, facts
21
. These include the simple fact of the co-
existence of States which entails compliance to and respect of certain
fundamental obligations and rights
22
; natural events which may give rise to new
international rights and obligations such as the emergence of an island in the
territorial sea
23
; 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 States action at the international level under two
headings, namely lawful acts, or international juridical acts, and unlawful acts, or
international delicts
24
. 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.
9
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
circumstances
25
. 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 acts
26
. 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 Verzijls 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 nature
27
.

B. H. Lauterpacht.
The same view regarding the role of intention in conferring legal
character to unilateral acts has also been shared by Hersch Lauterpacht
28
. 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 Lauterpachts 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 character
29
. One of
the many examples offered by Fitzmaurice is Lauterpachts Separate Opinion in
the Norwegian Loans Case
30
, 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 Court
32
. In Lauterpachts 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 all
33
. 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.
32
Certain 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.
11
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 law
34
. Most importantly for present purposes, Lauterpacht
argued that this rule is applicable not only to treaties, but also to instruments of
unilateral character
35
. 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 Lauterpachts Dissenting Opinion in
the Interhandel Case
36
. 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 obligations
37
. ( 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.
12
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 law
38
, it is customary to make a reference to the 1969 Vienna
Convention on the Law of Treaties
39
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 designation
40
. However, from this definition, little
may be inferred regarding the question whether a particular instrument is a
binding agreement or not
41
.
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 23
rd
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.), Oppenheims International Law, 9
th
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 parties
42
. 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
1948
43
. 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 treaties
44
.
In a similar vein, Lauterpachts 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 law
45
.
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 effects
46
. 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 unnecessary
47
.
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 treaty
48
. 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 effects
51
.
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 Conventions
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 affairs
52
. Nevertheless, such an amendment was not
finally accepted, since, once again, the phrase governed by international law
was regarded as covering the element of intention
53
. 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 Case
54
. 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 Communiqu, a
communiqu issued jointly by Greece and Turkey on the 31
st
of May 1974. The
Communiqu 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 space
55
.

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 Communiqu 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 Communiqu 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
Communiqu 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
undertaking
56
. According to the Court, the nature of the Brussels Communiqu as
an international agreement falling within the terms of Art.36.1 depends on the
nature of the act or transaction to which the Communiqu gives expression
57
.
Having regard to the terms of the Communiqu 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 Court
58
.

ii) The Maritime delimitation and territorial questions between Qatar and
Bahrain Case
59
.
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.
57
Ibid.
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 1990
60
. 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 agreement
61
. 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 agreement
62
.
However, the Court did not accept Bahrains 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 agreement
63
.

iii) The Separate Opinion of Judge Read in the International Status of South
West Africa Advisory Opinion
64
:
According to the Separate Opinion of Judge Read in the International
Courts 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 obligation
65
.
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 States 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 declaration
67
. 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 act
68
.
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 declaration
69
. Secondly, the Court made it clear that, in
cases of unilateral acts whereby states limit their freedom of action, a restrictive
interpretation is called for
70
. 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 will
71
.

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 Case
72
:
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 Case
73
, the US claimed that a resolution of the
Nicaraguan Junta expressing its intentions of holding democratic elections was
legally binding upon the latter
74
. The Court refused to share this approach;
instead, it declared itself unable to find anything in the documents and
communications transmitting the Juntas 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 elections
75
.




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 Case
76
.
Similarly, in the Frontier Dispute Case
77
the element of intention was
central to the Courts 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 made
78
. However, it emphasized
that the intention of the declarant State is crucial in conferring on the declaration
the character of a legal undertaking
79
. 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 Commissions Guiding Principles
applicable to unilateral declarations of States capable of creating legal
obligations
80
.
Intention also features in the International Law Commissions 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 obligations
81
.

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 58
th
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 intention
82
. 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 bound
83
. 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 Frances 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 effective
84
.
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 Commissions Guiding Principles on Unilateral
Declarations as the main indicator of the intention of the author to assume
obligations of a legal nature
85
.
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 Case
86
and the Certain German Interests in Polish
Upper Silesia Case
87
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 Courts 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 58
th
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
Palestine
88
. 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 interests
89
.
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 it
90
. 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.
Mavrommatis
91
. 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 future
92
.
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 expropriated
93
. 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 question
94
. 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 declarations
95
.
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. Kosovos 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 17
th
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
2010
96
. According to GA Resolution 63/33, which was sponsored by Serbia
97
, 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
not
99
. Having thus delimited the scope and meaning of the General Assemblys
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 law
100
. The narrow interpretation of the question by the
majority has been vociferously criticized not only by academics
101
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 it
102
.
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, 22
nd
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 communitys 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 law
104
.
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 Kosovos 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 argued
105
.
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 convincing
106
. At first, if it is accepted
that Kosovos 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: Kosovos 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 Convention
107
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
community
108
.
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 Cyprus
109
, 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 States
110
.
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, 7
th
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 EU
111
. 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 Independence
112
. 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, 2
nd
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/ .