Reconstructing Sovereignty by Antonia M. Waltermann

Author:Antonia M. Waltermann
Language: eng
Format: epub
ISBN: 9783030300043
Publisher: Springer International Publishing

4.1.3 International Constituted Sovereignty and National Constitutive Sovereignty

In the advisory opinion of the International Court of Justice on the unilateral declaration of independence of Kosovo, the question was raised whether international law contains a prohibition of such a unilateral declaration of independence. Considering that a declaration of independence by the representatives of a people can be considered an exercise of national constitutive sovereignty, this advisory opinion in essence asks whether there is a prohibition under international law against this particular form of constitutive sovereignty geared toward constituting a new national legal system.7

One consideration in the case is the question if the principle of territorial integrity—which is an important element of state sovereignty, read international constituted sovereignty—implicitly prohibits the unilateral declaration of independence.8 The Court held that no general prohibition of unilateral declarations of independence can be inferred from the practice of the Security Council.9 Indeed, the Court concluded that general international law contains no such prohibition. While the Court then continued by examining specific documents—namely Security Council resolution 1244 (1999) and the Constitutional Framework—also form part of international law and must be taken into account in answering the question posed,10 what is more interesting for the study of the concept of sovereignty is the statement by the Court that

The court arrives at the conclusion that […] the authors of the declaration of independence of 17 February 2008 did not act as one of the Provisional Institutions of Self-Government within the Constitutional Framework, but rather as persons who acted together in their capacity as representatives of the people of Kosovo outside of the framework of their interim administration.11

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