Independence In Respect Of Kosovo Research Articles

'Ne Bis In Idem' Principle in Criminal Proceedings – Comparative Analysis with International Instruments and Kosovo Legislation

Criminal procedure law consists of legal principles, such as a fair and impartial trial and within a reasonable time, presumption of innocence, the principle "in dubio pro reo," independence of the court, equality of parties, the principle "ne bis in idem"etc. Among the main principles recognised by International Conventions, the Constitutions of States, and Criminal Procedure Laws is the principle, “The right not to be tried twice for the same offence," or as it is also known, "ne bis in idem." The principle “in bis in idem” is used in Kosovo’s criminal proceedings, and recognition of this principle by international convention, including its recognition by the Law of the European Union, is analysed in this paper. The legislation of Kosovo was established with the influence and assistance of the international community, which had an administration mandate until 17 February 2008, the date on which Kosovo declared its independence and, hence, separated from the former Yugoslavia. The new state is not a member of the UN but is officially recognised by more than 100 countries. In 2010, the International Court of Justice issued the Advisory Opinion which concluded, “The declaration of independence in respect of Kosovo on 17 February 2008 had not violated general international law.” The purpose of this paper is to emphasise the importance of this principle when dealing with criminal cases before regular courts, the legal security that this principle provides to society, and the implementation of international legal instruments in the national law. Methods: The paper uses methods of analysis and synthesis, the descriptive method, as well as the method of doctrinal interpretation of legal norms of criminal proceedings. Results and conclusions: This principle has been accepted by international instruments and by Kosovo’s constitutional and legal system. The application of this principle in the criminal justice system in Kosovo forms legal certainty for citizens and constitutes protection of the rights and legitimate interests of persons involved in criminal proceedings. Kosovo has applied international standards in the implementation of criminal legislation and has directly incorporated international human rights instruments into its constitutional system (International Covenant on Civil and Political Rights adopted by the UN in 1966, ensued by the European Convention for the Protection of Human Rights and Fundamental Freedoms).

A Look at the Evolution of the Right to Self -determination in International Law

Abstract The article takes stock of the historical development of the notion of the right of a people to self-determination in international law. It provides a coherent review of the main international treaties, customary rules, and legal rulings that shaped the evolution of the term over the course of the twentieth century. In doing so, it focuses on the main historical and political events, which had an impact on that process as well as the preconditions that have to be met in order for a people to have the legal capacity to execute the right to self-determination. Three main processes, which it focuses on are: decolonization, the establishment of a number of new countries following the dissolution of the Soviet Union, and the recent developments following ICJ’s Advisory Opinion on Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo. It also delineates the subject of the legal definition of a “people” as opposed to a “minority”, describes the legal tension between the right to self--determination and the principle of territorial continuity in international law, and discusses potential further development of the term.

Republic of Crimea: a Two-Day State

The Crimean situation has put self-determination, secession and accession back at the top of the international law agenda. The article deals with questions of the procedure of Crimea’s self-determination and accession to the Russian Federation from the point of view of international law. Special attention is paid to the analysis of the ICJ Advisory Opinion on the question of the accordance with international law of the unilateral declaration of independence in respect of Kosovo in its interrelation with the Crimea case. The text also includes an unofficial translation of an accession treaty between Russia and the Republic of Crimea. With the Crimean Republic’s declaration of independence, it is the most important document for the legal analysis of the situation.

Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo

1International Court of Justice — Advisory jurisdiction — Extent of jurisdiction — Discretion to decline to give opinion — Requirement of compelling reasons for Court to decline to give opinion — Requesting organ — General Assembly — Court asked by General Assembly to give opinion on matter within powers of Security Council — Question posed — Whether Court empowered to reformulate question — Whether matter already determined by General AssemblyInternational organizations — United Nations — Organs — Powers — Security Council — Decisions under Chapter VII of the United Nations Charter — Transitional administration of territory — Whether imposing obligations on non-State actors — Resolution 1244 (1999) — Transitional administration of Kosovo — Character — Final status negotiations — General Assembly — Whether possessing role — Whether proper for General Assembly to seek advisory opinion from International Court of JusticeState — Independence — Territorial integrity — Declarations of independence — Whether declaration of independence in accordance with international law — General international law regarding declarations of independence — Whether declaration of independence prohibited — Whether groups within a State have a right to independence — Right of self-determination — Specific legal regime applicable to territory under international administration — KosovoHuman rights — Self-determination — Extent of right of self-determination — Relationship with right of territorial integrity — Remedial self-determination — Kosovo

The International Court of Justice's Advisory Opinion on the Unilateral Declaration of Independence in Respect of Kosovo and its Ramifications

In examining the implications of the advisory opinion, this article structures its arguments around four issues: firstly, the jurisdiction of the International Court of Justice; secondly, the functions of the General Assembly and the Security Council; thirdly, the content of general and specific international law; and last but not least, the scope of the right of self determination. The article then proceeds to evaluate the weaknesses of the advisory opinion issued by the International Court of Justice and attempts to reach a better understanding of it. The article finally concludes by recommending that the significance of the advisory opinion be confined in light of the flaws in its reasoning.

Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo

International Court of Justice advisory opinion on the consistency of Kosovo�s declaration of independence with principles of self-determination and international administration

Self-Determination, Secession, and Dispute Settlement after the Kosovo Advisory Opinion

AbstractThis piece provides critical analysis of some of the broader consequences of what is potentially suggested by certain findings in the 2010 Advisory Opinion of the International Court of Justice on ‘Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo’. The focus is on consequences for disputes generally, and disputes relating to self-determination and secession in particular, in either case including disputes that have been made subject to a Security Council-imposed settlement process. In the first place, the piece considers the relatively specific suggestion that sub-state groups are free to unilaterally terminate a Security Council-imposed process aimed at enabling the resolution of a dispute concerning their aspirations to external self-determination, without this termination having to comply with the principles of justice and international law. In the second place, the piece considers the relatively broad suggestion that the act of any sub-state group of declaring independence and seceding from the state within which it is located, without the consent of that state or any other international legal sanction, is likewise not regulated by international law.

The International Court of Justice’sKosovoCase: Assessing the Current State of International Legal Opinion on Remedial Secession

SummaryIn light of the global prevalence of secessionist movements, some have proposed “remedial secession” as a last resort solution where a “people” is either denied internal self-determination or is faced with massive human rights violations by a repressive regime. While lack of state practice largely confined this concept to academic circles through the 1990s and much of the 2000s, remedial secession received renewed international legal attention in the proceedings concerning the International Court of Justice’s (ICJ) 2008 advisory opinion in the caseAccordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo(Kosovocase).In light of support for remedial secession expressed in the submissions of eleven states, as well as its apparent endorsement in the separate opinions of two ICJ judges, advocates of remedial secession may plausibly argue that the soft law status of the concept has been strengthened and perhaps even that it is in the process of emerging as a regional customary norm for those states that supported it. However, the impact of theKosovocase on solidifying the legal status of remedial secession should not be overstated, as opponents of the concept may point to a number of contrary indicators that also emerged from the formal discourse surrounding the case.

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

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 the UNSCR 1244, this paper argues that the Declaration infringes UNSCR 1244 and thus international law. This argument is based on an understanding 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 are international law, because they derive their validity directly from the UN Charter, and on the other hand they 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 legal order and to establish a new one in its place. Such an attempt cannot be, however, normatively be 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 regard as illegal any effort to overturn it. In short, the ICJ has here a role comparable to that of a constitutional court (here acting on behalf of Kosovo's international administration) being under the legal duty to uphold the validity of the legal order of which it is an organ against an attempt to overturn it (revolution in the legal, Kelsenian sense).

THE ICJ'S ADVISORY OPINION ON KOSOVO'S DECLARATION OF INDEPENDENCE: A MISSED OPPORTUNITY?: International Court of Justice, Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion of 22 July 2010

THE ICJ'S ADVISORY OPINION ON KOSOVO'S DECLARATION OF INDEPENDENCE: A MISSED OPPORTUNITY?: International Court of Justice, Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion of 22 July 2010

The Cowardice of the Restrictive Advisory Opinion Approach: A Failure of the Court to Exercise its Judicial Prerogative in the Application of General Principles of International Law in Fulfillment of International Peace and Security (An Assessment of the Kosovo Advisory Opinion)

This paper examines the ICJ Advisory Opinion 'Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo' (22 July 2010), hypothesizing that the ICJ has erroneously adopted a 'restrictive' approach in their determination and scope of advisory opinion requests. The court justifies the limitation of its approach to the question presented by relying upon a restrictive reading of the question and coupling this with an approach of restrictive application of its jurisdiction. It legitimizes this limited reading by noting that 'in past requests for advisory opinions, [the G.A.], when they have wanted the Court’s opinion on the legal consequences of an action, have framed the question in such a way that this aspect is expressly stated (see SouthWest Africa Advisory Opinion, Construction of Wall Advisory Opinion) (para. 51).' The court has two options as this point. It can adopt the restrictive approach as seen in the current opinion, answering the question on its face. Or, it can exercise its judicial prerogative to resolve the underlying legal question directly associated with the declaration. This alternative approach can be called the 'general principles approach.'

The ICJ Advisory Opinion on theAccordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovoand the International Protection of Minorities

Very seldom has a judgment or advisory opinion of the International Court of Justice (ICJ) received so much media coverage as the recent Advisory Opinion on theAccordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovorendered on 22 July 2010 in response to a question posed by the General Assembly. The question had been forwarded on behalf of a request by Serbia and was phrased in the following way: “Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?”

A Note on the ICJ Advisory Opinion on Kosovo

On 22 July 2010, the International Court of Justice (hereinafter the “ICJ”) delivered its advisory opinion on the accordance with international law of the unilateral declaration of independence in respect of Kosovo. The ICJ concluded that the declaration of independence dated 17 February 2008 did not violate any applicable rule of international law consisting of general international law, UNSC resolution 1244 (1999) (hereinafter the “Resolution 1244”) and the Constitutional Framework for Provisional Self-Government in Kosovo (hereinafter the “Constitutional Framework”). The ICJ delivered the advisory opinion in response to a question set out in resolution 63/3 dated 8 October 2008 of the General Assembly of the United Nations Organization (hereinafter the “General Assembly”), which asked if “the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo is in accordance with international law.”

1. International Court of Justice (ICJ)

In 2010, the ICJ rendered judgments in three contentious cases, including the Pulp Mills on the River Uruguay case in which the environment was a central issue, and issued one advisory opinion. In addition, at least four of the sixteen cases pending before the court at the end of the year include environmental components. The court delivered its first decision of the year, Pulp Mills on the River Uruguay (Argentina v Uruguay), on 20 April, which regards the contested planning, construction, and commissioning of two pulp mills on the River Uruguay. This judgment is examined in detail in this report. The second case concluded in 2010, Certain Questions Concerning Diplomatic Relations (Honduras v Brazil), was removed from the court’s list by order dated 12 May at the request of Honduras. The court issued its advisory opinion on the question of the Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo on 22 July, responding that the declaration of independence of Kosovo adopted on 17 February 2008 did not violate international law. Finally, the court delivered its judgment in the case of Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo) on 30 November, dismissing a number of Guinea’s claims but, ultimately, holding that the Democratic Republic of Congo (DRC) had violated Mr. Diallo’s fundamental human rights in carrying out his arrest, detention, and expulsion in 1995-96 and that the DRC was under obligation to make appropriate reparation in the form of compensation. The case remains on the court’s pending docket because the court held that, failing agreement between the parties on the issue of compensation within six months of the judgment, the question would be settled by the court and, therefore, reserved the subsequent procedure for that purpose.

Ancient Lotus Fruits

Previous articleNext article FreeCurrent LiteratureAncient Lotus FruitsJ. M. C.J. M. C. Search for more articles by this author PDFPDF PLUS Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinkedInRedditEmail SectionsMoreDetailsFiguresReferencesCited by Volume 83, Number 1Mar., 1927 Article DOIhttps://doi.org/10.1086/333707 Views: 1Total views on this site Citations: 9Citations are reported from Crossref Journal History This article was published in the Botanical Gazette (1876-1991), which is continued by International Journal of Plant Sciences (1992-present). PDF download Crossref reports the following articles citing this article:Annalisa Savaresi, Jacques Hartmann, Ioana Cismas The Impacts of Climate Change and Human Rights: Some Early Reflections on the Carbon Majors Inquiry, SSRN Electronic Journal (Jan 2018).https://doi.org/10.2139/ssrn.3277568Suzanne Zhou Challenging the Use of the US Special 301 Procedures against Developing Country Access to Medicines Policies - Indian Pharmaceutical Patents and the WTO, SSRN Electronic Journal (Jan 2015).https://doi.org/10.2139/ssrn.2675990Lisa Waddington, Carly TOEPKE Moving Towards Inclusive Education as a Human Right: An Analysis of International Legal Obligations to Implement Inclusive Education in Law and Policy, SSRN Electronic Journal (Jan 2014).https://doi.org/10.2139/ssrn.2535198Vladislav Golubev Inter-State Disputes in International Trade: Normative and Jurisdictional Conflicts Between the World Trade Organization and Regional Trade Agreements, SSRN Electronic Journal (Jan 2014).https://doi.org/10.2139/ssrn.2713063Roger O'Keefe Domestic Courts As Agents of Development of the International Law of Jurisdiction, SSRN Electronic Journal (Jan 2013).https://doi.org/10.2139/ssrn.3496738Hong Thao Nguyen Vietnam's Position on the Sovereignty over the Paracels & the Spratlys: Its Maritime Claim, SSRN Electronic Journal (Jan 2012).https://doi.org/10.2139/ssrn.2123861Hui Yun Corinne Tan The International Court of Justice's Advisory Opinion on the Unilateral Declaration of Independence in Respect of Kosovo and its Ramifications, SSRN Electronic Journal (Jan 2010).https://doi.org/10.2139/ssrn.1931970Dimitrios Delibasis Cyberspace Warfare Attacks within Current Norms of Self-Defense, SSRN Electronic Journal (Jan 2009).https://doi.org/10.2139/ssrn.1540618Peter Duus The Cambridge History of Japan, (Mar 2008).https://doi.org/10.1017/CHOL9780521223577