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Peny6JiuKaCp6uja Republic of Serbia
Ml1Hl1CTAPCTBO CITOJbHHX MINISTRY OF FOREIGN
ITOCJIOBA AFFAIRS
KHe3aMm1orna24-26 Kneza Milosa 24-26
EEOfPA,;q BELGRADE
17 April 2009
Sir,
With reference to the request for an advisory opm10n submitted to the
International Court of Justice by the General Assembly of the United Nations on the
question of the Accordance with International Law of the Unilateral Declaration of
Independence by the Provisional Institutions of Self-Govemment of Kosovo and to
the Ortler of the Court dated October 2008, I have the honour to present to the
Court the Written Statement of the Govemment of the Republic of Serbia, in
accordance with Article6, paragraph 2, of the Statute of the Court.
With reference to your communication dated 20 October 2008 (No. 133310), I
have the honour to inform you that the Written Statement is being submitted to the
Court in 30 written copies in English, as one of the official languages of the Court, as
well as in one electronic copy. In case of any discrepancy between written and
electronic version, the electronic version of the Written Statement should be deemed
authoritative.
Mr. Philippe Couvreur
Registrar
International Court of Justice
The Hague Moreover, I have the honour to inform you that the Written Statement is
annexed with 83 relevant documents. When some of the documents are not in one of
the official languages of the Court, their relevant parts are accompanied by
translations into English. In accordance with Article 50, paragraph 1, and Article 51,
paragraph 3, of the Rules of Court, I now certify that all documents submitted to the
Court are the genuine copies of the original documents, as well as that all translations
from the original language into English are accurate.
Please accept, Sir, the assurances of my highest consideration.
Co+J
Sasa Obradovié,
Head of the Legal Team INTERNATIONAL COURT OF JUSTICE
ACCORDANCE WITH INTERNATIONAL LAW OF
THE UNILATERAL DECLARATION OF INDEPENDENCE BY THE
PROVISIONAL INSTITUTIONS OF SELF-GOVERNMENT OF
KOSOVO
(REQUEST FOR AN ADVISORY OPINION)
WRITTEN STATEMENT
OF THE GOVERNMENT OF THE REPUBLIC OF SERBIA
15 APRIL 2009 TABLE OF CONTENTS
Chapter 1: INTRODUCTION............................................................
...21....................
A. Origin of the Request ...........................................................21...........
.................
B. The Terms of the Present Request ................................................23...................
C. The Court's Order of 17 October 2008 ............................................24..............
D. Scope of the Present Request.....................................................26..........
.............
E. Continuity between the FRY/Serbia and Montenegro and Serbia................. 27
F. Structure of the Written Statement ..............................................29...................
Part I
QUESTIONS OF JURISDICTION AND PROPRIETY .......................................... 31
Chapter 2: THE COURTIS COMPETENT TO GIVE THE ADVISORY
OPINION REQUESTED .....................................................................31.
....................
A. The Request Was Made by a Duly Authorized Organ..................................32
B. The Requesting Organ Acted within Its Competence.................................32...
C. The Question Submitted 1sa Legal One ............................................36.............
D. Conclusion..............................................................
........38....................................
Chapter 3: THERE ARE NO COMPELLING REASONS PREVENTING THE
EXERCISE OF ADVISORY JURISDICTION IN THE PRESENT
PROCEEDINGS ........................................................................
..39...............................
A. The United Nations Bears Responsibility with regard to the Question ......... 40
B. The Consent of Serbia, the Interested State, Is Not Required and,
in Any Case, Serbia Has Given Its Consent ......................................41............
C. The Court Has Sufficient Information to Give the Advisory Opinion........... 43
D. The Advisory Opinion Will Help the United Nations and Member States
in Their Subsequent Actions .....................................................44.................
.....
E. Conclusion ......................................................................49
...................................
3 Part II
THE RELEVANT FACTUAL ELEMENTS ............................................................ 51
Chapter 4: THE GEOGRAPHICAL AND HISTORICAL SETTINGS ................ 51
A. Description of Serbia ...............................................................51.......
..................
B. Description of Kosovo ...............................................................52.......
................
I Geographic position of Kosovo ...................................................52...............
II Demographic data on Kosovo .......................................................52.............
C. Kosovo in Historie Perspective ......................................................56................
..
Chapter 5: THE KOSOVO CRISIS - LEGAL AND FACTUAL
BACKGROUND ........................................................................
....61.......................
A. Legal Status of Kosovo ..............................................................61........
...............
I The Kingdom of Serbia (1912-1918) .................................................61.........
II The Kingdom of Serbs, Croats and Slovenes/Yugoslavia (1918-1941) ...... 62
III Yugoslavia after World War II (1945-1991) .......................................63.....
(1) Decisions of the Anti-fascist Council of National Liberation of
Yugoslavia .......................................................................63................................
(2) Establishment of Kosovo as a territorial unit .............................64........
(3) The 1946 Constitution of Yugoslavia and the 1947 Constitution
of Serbia ........................................................................65..................................
(4) The 1963 Constitution of Yugoslavia, the 1963 Constitution of Serbia
and amendments thereto ...........................................................67.....................
(5) The 1974 constitutions and their amendments .................................72.......
IV The Federal Republic of Yugoslavia (Serbia and Montenegro)
(1992-1999) ·----------------------·------------------------------ 81
V Security Council resolution 1244 (1999-present) ...................................81..
VI The 2006 Constitution of Serbia ..................................................82..............
B. Standards of Minority Protection Applicable to Kosovo ...............................82
I Minority protection in the SFRY ...................................................82.............
(1) The 1974 constitutions .......................................................82...............
.......
(2) The 1990 Constitution of Serbia ..............................................84................
4 II Minority rights guarantees in the FRY (Serbia and Montenegro) ........... 85
(1) The FRY Constitution............................................................
85...................
(2) International human rights commitments undertaken by the FRY
(Serbia and Montenegro) .............................................................85.........
.........
(3) The 1990 Constitution of Serbia .................................................87.............
(4) Law on the Protection of Rights and Freedoms of National Minorities
2002 ........................................................................
.......87.................................
(5) Constitutional Charter of Serbia and Montenegro and the Charter on
Human and Minority Rights and Civil Liberties of Serbia and Montenegro
2004 ........................................................................
.......87................................
III Minority rights guarantees currently in force in the Republic
of Serbia ........................................................................
.....88................................
(1) The 2006 Constitution of Serbia .................................................88.............
(2) Serbia 's international commitments regarding human and minority
rights ........................................................................
.....89.................................
C. Kosovo and the Kosovo Albanians 1981-1991 ..............................................91
I 1981-1986 ........................................................................
91............................
II The 1989 amendments to the 1974 Serbian Constitution ........................ 95
III The 1990 escalation of the crisis and the proclamation of a "Republic
of Kosovo'' ........................................................................
....98.............................
IV Dissolution of the SFRY and the situation in Kosovo ............................... 102
D. Kosovo 1992-1997 ......................................................................103.....................
I Parallel institutions .............................................................103........
..............
II Elections ........................................................................
................................ 107
III International involvement in the Kosovo crisis and attempts at
dialogue (1992-1997) ..................................................................109...
...................
E. Conflict 1997/1999 ....................................................................113.
.....................
I ''Kosovo Liberation Army'' .........................................................113............
..
II Armed conflict: February-October 1998 ......................................114..........
III February-March 1999: Rambouillet conference and a new cycle
of violence·-----------------------·------------------------------ 124
IV NATO bombing of the FRY 1999 .......................................................128.....
V Results of the conflict .............................................................129........
............
5 F. Security Council Resolution 1244 (1999) - Present ..................................131..
I The position of Serbs and other non-Albanians in Kosovo since 1999 .. 131
II Standards for Kosovo ........................................................................
.......... 139
III The status negotiations and their aftermath ....................................142......
(1)Ahtisaari negotiations .......................................................142..............
........
(2) Security Council mission to the region in April 2007 ........................144.....
(3) The Troika negotiations .....................................................146................
.....
(4) The unilateral declaration of independence (UDI).............................146.....
Part III
GENERAL INTERNATIONAL LAW PROVIDES NO GROUND FOR THE
INDEPENDENCE OF KOSOVO ........................................................................
...... 147
Chapter 6: THE UNILATERAL DECLARATION OF INDEPENDENCE IS IN
CONTRADICTION WITH THE PRINCIPLE OF RESPECT FOR THE
TERRITORIAL INTEGRITY OF STATES...........................................................147
A. The Nature and Importance of the Principle of Territorial Integrity ........... 148
B. The United Nations Has Repeatedly Affirmed the Principle of
Territorial Integrity .................................................................154....
........................
I Generally ........................................................................
.................................. 154
II With regard to internai conflicts in particular .................................158........
(1) The conflicts in Bosnia and Herzegovina and Croatia .........................158..
(2) The situation in Somalia ....................................................161.................
....
(3) The situation in Georgia ....................................................163.................
....
(4) The situation in the Democratic Republic of the Congo .......................164..
(5) The situation in Sudan ......................................................166.......................
(6) Other situations.............................................................169...........................
C. Regional Treaty Law Has Also Consistently Upheld the Principle
of Territorial Integrity ........................................................................
.................. 170
D. Consequential Principles ...........................................................177..........
...........
E. The UDI Contradicts the Internationally Affirmed Territorial Integrity
6Chapter 7: SELF-DETERMINATION GIVES NO BASIS FOR A
UNILATERAL DECLARATION OF INDEPENDENCE ...........................189........
A. Self-Determination: The General Principle in International Law ................ 189
B. The Right to Self-Determination is Carefully Limited in Law....................... 192
I Mandate and trust territories, and non-self-governing territories .........193
II Occupation--------------------·------------------------------ 195
III Self-Determination as a human rights principle .................................196....
(1) General .....................................................................196
...............................
(2) Minority rights .............................................................198........
...................
(3) Rights of indigenous peoples ................................................201...................
C. Self-Determination Does Not Authorise Secession ....................................203..
D. Kosovo Does Not Constitute a Self-Determination Unit under International
Law Nor Do the Kosovo Albanians Constitute a "People" Entitled
to Self-Determination .................................................................208....
......................
E. The "Remedial Secession" Reading of the "Safeguard Clause" Contained in
General Assembly Resolution 2625 (XXV) Is Wrong and At Any Rate Does
Not Apply to Kosovo ...................................................................214..
......................
I Paragraph 7 of the principle of equal rights and self-determination of
peoples forms part of a well-established practice of guaranteeing the
preservation of the political unity and the territorial integrity of independent
II An a contrario reading of the "safeguard clause" in order to admit
a right to "remedial secession" is not supported by legal means
of interpretation ..................................................................219...
..........................
(1) A goodfaith interpretation of the "safeguard clause" does not admit
a right to "remedial secession" .................................................219...................
(2) The travaux preparatoires do not support an a contrario reading of the
" sa-eguar cause " t at a mlts a ng t to reme dialsecesswn " ................... 221
1
(3) Subsequent practice does not support an a contrario reading of the
"safeguard clause" that admits a right to "remedial secession" ..................224
III Resolution 2625 (XXV) does not transform a minority suffering from human
rights violations into a people having a right to self-determination ........ 230
7 IV There is no support for the "remedial secession" doctrine in national
case law or the findings of human rights commissions and courts ................233
V Even if read as providing a right to "remedial secession" (quod non), the
"safeguard clause" requirements would not be met in the present case. 235
VI No international body bas ever acknowledged the applicability of the
purported ''remedial secession'' of Kosovo ..................................239...........
F. Conclusions ....................................................................241.
.................................
Part IV
THE IMPACT OF SECURITY COUNCIL RESOLUTION 1244 (1999)
ON THE QUESTION PUT TO THE COURT .........................................................
Chapter 8: SECURITY COUNCIL RESOLUTION 1244 (1999) HAS
ESTABLISHED AN INTERNATIONAL LEGAL REGIME FOR KOSOVO ..... 243
A. Practice of the Security Council, in particular Resolution 1244 (1999),
Recognizes and Guarantees the Territorial Integrity of the FRY/Serbia ..........244
I Practice prior to the adoption of Security Council resolution 1244 (1999) 244
II The practice leading to the adoption of Security Council resolution 1244
(1999) ........................................................................
247.........................................
(1) The Statement by the chairman on the conclusion of the meeting of the
G-8foreign ministers at the Petersberg on 6 May 1999 ........................247......
(2) The Military Technical Agreement between the International Security
Force ("KFOR") and the Governments of the FRY and/the Republic
of Serbia of 9 June 1999 ....................................................247.................
..........
III Security Council resolution 1244 (1999) guarantees the territorial
integrity of the FRY and contradicts any right of the so-called "Republic
of Kosovo" to unilaterally declare independence ................................249.........
IV Subsequent practice of United Nations organs confirms the territorial
integrity of Serbia ............................................................254.........
.......................
8B. The Establishment of an International Civil Administration (UNMIK) ...... 256
C. The Establishment of a Security Presence (KFOR) ....................................261.
D. The Role of Serbia in Kosovo .......................................................261..............
....
E. The Notions of Substantial Autonomy and Self-Government in Security
Council Resolution 1244 (1999) ........................................................263.............
......
I The meaning of "autonomy" ........................................................263.............
.
II The Meaning of "Self-Government" ................................................264.........
F. The Political Process Designed to Determine the Future Status of Kosovo .. 268
I Procedural parameters laid down by Security Council resolution 1244
(1999) ---------------------------·------------------------------ 269
(1) Political process and negotiations ..........................................269...............
(2) Unilateral action is not permitted ..........................................270.................
(3) Obligations of the negotiating parties ......................................273..............
II The substantive parameters laid down by the Security Council
in resolution 1244 (1999) ..........................................................276...........
............
(1) Princip/es of sovereignty and territorial integrity of Serbia ...............276....
(2) Rambouillet Accords .........................................................277............
..........
(3) Thepractice of the Security Council in other cases confirms this
interpretation of Security Council resolution 1244 (1999) ......................278...
G. Only the Security Council May Terminate the International Legat Regime
Established by Security Council Resolution 1244 (1999) ................................281.
I Competence of the Security Council to establish an interim territorial
administration under Chapter VII of the UN Charter .................................281
II Continued validity of Security Council resolution 1244 (1999) ................ 282
(1) Text of the resolution 1244 (1999) and subsequent practice ..................282
(2) Views expressed in the context of the "Ahtisaari Plan" ......................286...
(3) Practice of United Nations organs subsequent to the Ahtisaari plan and
the UDJ ........................................................................
288.................................
(4) Statements ofmembers of the Security Council ................................295......
(5) Statements by other States...................................................296............
........
(6) Continued applicability of the Military-Technical Agreement of
9 June 1999 .....................................................................299
..............................
9 H. Conclusions ...................................................................300..
.................................
Chapter 9: THE UDI IS CONTRARY TO THE INTERNATIONAL LEGAL
REGIME ESTABLISHED BY SECURITY COUNCIL RESOLUTION 1244
(1999) ........................................................................
.....303.............................................
A. The Declaration is an Ultra Vires Act of the Provisional Institutions
of Self-Government ...............................................................303......
.........................
I The UDI ........................................................................
.................................. 303
II The scope of powers of the Provisional Institutions of Self-Government,
in particular the Assembly ....................................................305.................
.........
III The UDI is an ultra vires act in violation of international law ................. 308
B. The Declaration Contravenes the Paramount Administrative Authority
Set Up by Security Council Resolution 1244 (1999) ................................312..........
C. The UDI Challenges the Competences of the Security Council ................... 315
D. The UDI is an Attempt to Unilaterally Decide the Outcome of a Political
Process Provided for by Security Council Resolution 1244 (1999) ..................... 317
I The UDI violates procedural parameters laid down in Security Council
resolution 1244 (1999) ........................................................317.............
................
II The UDI violates the sovereignty and territorial integrity of Serbia ........ 321
E. Conclu~on ·----------------------·------------------------------ 323
Part V
NO OTHER JUSTIFICATION FOR THE UNILATERAL DECLARATION
OF INDEPENDENCE UNDER INTERNATIONAL LAW .................................... 325
Chapter 10: NEITHER A "RIGHT TO SECESSION" NOR "LEGAL
NEUTRALITY" AFFORDS SUPPORT TO THE LEGALITY OF THE
UNILATERAL DECLARATION OF INDEPENDENCE .........................325..........
A. None of the Exceptional Situations in Which a Right to Secession Might
Exist Are Present in the Case of Kosovo ..........................................326..................
I Domestic law did not and does not grant Kosovo a right to secession ..... 327
II Kosovo was not illegally integrated into Serbia ............................329..........
III The parent State has never accepted secession .............................331.........
10 B. Effectiveness Atone Is Not a Ground for Statehood ...................................333..
I The effective presence of the so-called constituent elements of the State
does not suffice in contemporary international law for the creation of a
new State ........................................................................
..333.................................
II In any event, there is no effective independent government in Kosovo .. 336
C. Recognition by Third States Atone Is Not Decisive....................................340.
I Recognition by third States as such does not grant retroactive legality
or purge illegality .................................................................340....
........................
(1) Recognition is not constitutive of statehood .................................340..........
(2) Recognition and unlawful assertions of statehood .............................343....
(3) Inability of recognition to legitimise illegality ............................343............
II Kosovo: a varied mix of recognition and refusai to recognise .................. 347
III Conclusion ......................................................................347.............................
D. Contemporary International Law Does Not Remain "Neutral" with
Regard to Illegal Secessionist Attempts ................................................348.............
I The "Lotus principle" ("principe de liberté") has no room in the case
of Kosovo ........................................................................
..350................................
II Ex injuriajus non oritur: a State cannot be created illegally ...................356
E. Conclusions ........................................................................
357............................
Chapter 11: CONCLUSIONS AND SUBMISSIONS ............................................... 359
A. Conclusions ........................................................................
359..............................
B. Submissions ........................................................................
362..............................
APPENDICES ........................................................................
.......363............................
APPENDIX 1: SERBIA .....................................................................365
....................
APPENDIX 2: SERBIA AND MONTENEGRO ..................................................... 366
APPENDIX 3: THE FORMER YUGOSLAVIA ..................................................... 367
APPENDIX 4: THE KINGDOM OF YUGOSLAVIA - 1930 ................................. 368
APPENDIX 5: THE KINGDOM OF THE SERBS, CROATS AND
SLOVENES - 1924 ........................................................................369........................
APPENDIX 6: THE BALKANS IN 1914 ........................................................370.....
APPENDIX 7: THE VILAYET OF KOSOVO, 1877-1912 ..................................... 371
1112 DOCUMENTARY ANNEXES TO THE WRITTEN STATEMENT OF THE
GOVERNMENT OF THE REPUBLIC OF SERBIA
A. BASIC DOCUMENTS
1. General Assembly resolution 63/3
2. The Unilateral Declaration of Independence adopted by the Assembly of Kosovo
on 17 February 2008
http://www.assembly-kosova.org/?cid=2, 128,1635
3. A Constitutional Framework for Provisional Self-Government m Kosovo,
UNMIK Regulation No. 2001/9 (15 May 2001), with amendments
4. Decision of the National Assembly of the Republic of Serbia on the endorsement
of the Decision of the Government of the Republic of Serbia on the annulment of
the illegal act of the provisional institutions of self-government in Kosovo and
Metohija regarding the unilateral declaration of independence, Official Gazette of
the Republic of Serbia, No. 19/2008 [original and translation]
5. Letter dated 17 February 2008 from Mr. Boris Tadic, President of the Republic of
Serbia, to the Secretary-General, UN Doc. A/62/703-S/2008/111, Annex (19
February 2008)
B. TREATIES AND OTHER INTERNATIONAL AGREEMENTS
6. Traité de Paix conclu à Londres le dix-sept (trente) mai mil neuf cent treize entre
la Turquie et les Alliés balkaniques;
7. Traité de Paix conclu et signé à Bucarest le 28 juillet 1913 entre la Serbie, la
Grèce, le Monténégro et la Roumanie d'une part et la Bulgarie d' autre part
8. Accord intervenu entre le Royaume de Serbie et le Royaume de Grèce concernant
la frontière serbo-grecque [3/16 August 1913]
9. Accord intervenu entre le Royaume de Serbie et le Royaume de Monténégro
concernant la frontière serbo- monténégrine [30 October 1913 (Julian calendar)]
10. Military Technical Agreement between the International Security Force
("KFOR") and the Governments of the Federal Republic of Yugoslavia and the
Republic of Serbia of 9 June 1999, UN Doc. S/1999/682 (15 June 1999)
11. Exchange of Letters between the Under-Secretary-General for Peace-Keeping
Operations and the Permanent Representative of Serbia and Montenegro to the
13 United Nations on the United Nations Office in Belgrade dated 23/24 December
2003
12. FRY-UNMIK Common Document (5 November 2001)
13. Agreed Minutes of the Bilateral Meeting in the Context of CEFTA Enlargement
Negotiations agreed upon by Serbia and UNMIK of 20 October 2006
C. SECURITY COUNCIL: RESOLUTIONS, PRESIDENTAL STATEMENTS
AND OTHER DOCUMENTS
14. Security Council resolution 1031 (1995)
15. Security Council resolution 1088 (1996)
16. Security Council resolution 1160 (1998)
17. Security Council resolution 1199 (1998)
18. Security Council resolution 1203 (1998)
19. Security Council resolution 1239 (1999)
20. Security Council resolution 1244 (1999)
21. Security Council resolution 1423 (2002)
22. Security Council resolution 1491 (2003)
23. Security Council resolution 1551 (2004)
24. Security Council resolution 1575 (2004)
25. Security Council resolution 1639 (2005)
26. Security Council resolution 1722 (2006)
27. Security Council resolution 1785 (2007)
28. Security Council resolution 1845 (2008)
29. Statement by the President of the Security Council, UN Doc. S/PRST/1998/25 (24
August 1998)
30. Statement by the President of the Security Council, UN Doc. S/PRST/1999/2 (19
January 1999)
1431. Statement by the President of the Security Council, UN Doc. S/PRST/1999/5 (29
January 1999)
32. Statement by the President of the Security Council, UN Doc. S/PRST/2001/34 (9
November 2001)
33. Statement by the President of the Security Council, UN Doc. S/PRST/2008/44 (26
November 2008)
34. UN Doc. S/PV. 4011 (10 June 1999)
35. Drafts of Security Council resolution 1244 adopted by the G8 on 7 and 8 June
1999
36. Draft resolution on Kosovo, 17July 2007
37. Statement issued on 20 July 2007 by Belgium, France, Germany, Italy, United
Kingdom and the United States of America, co-sponsors of the draft resolution on
Kosovo presented to the United Nations Security Council on 17July 2007
http://www.unosek.org/docref/2007-07 -20%20-
%20Statement%20issued%20by%20the%20co-
sponsors%20of%20the% 20draft%20resolution %20.doc
D. OPINIONS OF THE ARBITRATION COMMISSION OF THE
CONFERENCE ON YUGOSLAVIA
38. Opinion No. 1 of the Arbitration Commission of the Conference on Yugoslavia,
31 ILM 1494 (1992)
39. Opinion No. 2 of the Arbitration Commission of the Conference on Yugoslavia,
31 ILM 1497 (1992)
40. Opinion No. 3 of the Arbitration Commission of the Conference on Yugoslavia 31
ILM 1499 (1992)
41. Opinion No. 8 of the Arbitration Commission of the Conference on Yugoslavia,
31 ILM 1521 (1992)
E. CONSTITUTIONS, LEGISLATION AND OTHER DECISIONS RELATED
TO THE STATUS OF KOSOVO IN SERBIA AND YUGOSLAVIA
42. Decision of the Second Session of the Anti-fascist Council of National Liberation
of Yugoslavia on the Building of Yugoslavia on the federal principle, Anti-fascist
Council of National Liberation of Yugoslavia, Decision No. 3 of 29 November
1943 [original and translation]
1543. Law on Administrative Division of Serbia, Official Gazette of Serbia, No.
28/1945 [original and translation]
44. Law on the Establishment and Organizational Setup of the Autonomous Kosovo
and Metohija Region, Official Gazette of Serbia, No. 28/1945 [original and
translation]
45. Constitution of the Federal People's Republic of Yugoslavia, Official Gazette of
the Federal People's Republic of Yugoslavia, No. 10/1946, Articles 1, 2, 53, 54,
103-106 [original and translation]
46. Constitution of the People's Republic of Serbia, Official Gazette of the People's
Republic of Serbia, No. 3/1947, Articles 3, 13, 106-118, 152 [original and
translation]
47. Constitution of the Socialist Federal Republic of Yugoslavia, Official Gazette of
the SFRY, No. 14/1963, Preamble, Articles 1, 2, 108, 111, 112 [original and
translation]
48. Constitution of the Socialist Republic of Serbia, Official Gazette of the Socialist
Republic of Serbia, No. 14/1963, Articles 129, 135-139, 161 [original and
translation]
49. Constitutional Amendments, Official Gazette of the SFRY, No. 55/1968,
Amendments VII & XVIII [original and translation]
50. Constitutional Amendments, Official Gazette of the Socialist Republic of Serbia,
No. 5/1969, Amendment V [original and translation]
51. Constitutional Amendments XX to XLII, Official Gazette of the SFRY, No.
29/1971, Amendments XX, XXXII, XXXVIII, XL [original and translation]
52. Constitution of the Socialist Federal Republic of Yugoslavia, Official Gazette of
the SFRY, No. 9/1974, Articles 1, 2, 273, 281, 286, 291, 292, 321, 348, 370, 398-
402 [original and translation]
53. Constitution of the Socialist Republic of Serbia, Official Gazette of the Socialist
Republic of Serbia, No. 8/1974, Articles 226, 293-296, 300-301, 343, 427-431
[original and translation]
54. Constitution of the Socialist Autonomous Province of Kosovo, Official Gazette of
the Socialist Autonomous Province of Kosovo, No. 4/1974, Articles 283, 300,
339, 349, 372, 390 [original and translation]
55. Amendments IX to XLIX to the Constitution of the Socialist Republic of Serbia,
Official Gazette of the Socialist Republic of Serbia, No. 11/1989, Amendments
XXIX, XXXI, XLIII & XLVII [original and translation]
1656. Constitutional Court of Yugoslavia, Decision of 19 February 1991, II-U-broj
87/90, Official Gazette of the SFRY, No. 37/1991, p. 618 [original and
translation]
57. Constitution of the Republic of Serbia, Official Gazette of the Republic of Serbia,
No. 1/90, Articles 1-6, 108-113 [original and translation]
58. Constitutional Charter of Serbia and Montenegro, Official Gazette of Serbia and
Montenegro, No. 1/2003, Preamble and Article 60 [original and translation]
59. Constitution of the Republic of Serbia, Official Gazette of the Republic of Serbia,
No. 98/2006, Preamble and Article 182 [original and translation]
F. DOCUMENTS OF THE PRESIDENCY AND THE FEDERAL EXECUTIVE
COUNCIL OF THE SOCIALIST FEDERAL REPUBLIC OF YUGOSLAVIA
rd
60. Minutes and stenographic notes of the 253 SFRY Presidency session of 22
March 1989 [excerpts; original and translation]
th
61. Minutes of the 254 SFRY Presidency session of 24 March 1989 [excerpts;
original and translation]
62. Decision of the SFRY Presidency O. no. 51 of 12 July 1989 [original and
translation]
63. The Federal Executive Council position in relation to the temporary political
situation and security issues in the country, 29 January 1990 [excerpts; original
and translation]
64. Decision of the SFRY Presidency O. no. 1 of 31 January 1990 [original and
translation]
65. Decision of the SFRY Presidency O. no. 13 of 18 April 1990 [original and
translation]
66. Minutes of the 7ih SFRY Presidency session of 10 October 1990 [excerpts:
original and translation]
G. STATEMENTS BY STATES AND REGIONAL ORGANISATIONS
67. U.S. Office Supports "UNMIK-FRY Common Document", Press release of the
United States Office Pristina (6 November 2001)
http://pristina.usembassy.gov/press20011106a.html
1768. Statement of the Council of the European Union, C/02/210; 10945/02 (Presse 210)
(22 July 2002), p.10
http://europa.eu/rapid/pressReleasesAction.do ?reference=PRES/02/21 0&format=
HTML&aged=0&lg=hu&guiLanguage=en
69. European Union Presidency Statement of 30 July 2002
http://www.europa-eu-un.org/articles/es/article 1529 es.htm
70. Council Joint Action 2008/124/CFSP of 4 February 2008 on the European Union
Rule of Law Mission in Kosovo, EULEX KOSOVO, O.J. European Union L
42/92 (16 February 2008)
st
71. Council of the European Union, 2851 External Relations Press Release 6496/08
(18 February 2008), p. 7
http://www.consilium.europa.eu/uedocs/cms data/docs/pressdata/en/gena/98818.p
df
72. Bucharest Summit Declaration issued by the Heads of State and Government
participating in the meeting of the North Atlantic Council in Bucharest on 3 April
2008, Doc. NATO PR/CP(2008)049 (3 April 2008), para. 7
73. Joint Communiqué on the outcome of the Meeting of the Foreign Ministers of the
Russian Federation, the People's Republic of China and the Republic of India (15
May 2005) http://www.meaindia.nic.in/
74. Deutscher Bundestag Drucksache 16/9287 [German Parliament, Doc. 16/9287]
(27 May 2008) [original and translation]
H. OTHER DOCUMENTS
75. Constitutional Declaration on Kosovo as an autonomous and equal unit within the
federation (confederation) of Yugoslavia as an equal legal subject with other units
within the federation (confederation), Official Gazette of the Socialist
Autonomous Province of Kosovo, No. 21/1990 [original and translation]
76. Letter from Dr. Rugova to Lord Carrington, Peace Conference on Yugoslavia, 22
December 1991, reprinted in Marc Weller (ed.), Crisis in Kosovo 1989-1999
(1999), p. 81
77. Letter from Lord Carrington, Chairman, Conference on Yugoslavia, to Dr.
Rugova, 17 August 1992, reprinted in Marc Weller (ed.), Crisis in Kosovo 1989-
1999 (1999), p. 86
78. Letter from the Delegation of Kosovo to US Secretary of State Albright, 23
February 1999, reprinted in Marc Weller (ed.), Crisis in Kosovo 1989-1999
(1999), p. 471
1879. St. Egidi [St Egidio] Education Agreement, 1 September 1996, [original and
translation] and Agreed Measures for the Implementation of the Agreement on
Education, 23 March 1988, [English and Serbian originals]
80. UNMIK/PR/740 (23 May 2002)
81. Republic of Serbia Status Proposa!, 26 April 2007
82. "Kosovo again opposes EULEX plan; Albania airs doubts", Thomson Reuters
Foundation, 25 November 2008,
http://www.alertnet.org/thenews/newsdesk/LP68617 4.htm
83. Exchange of letters between H.E. Boris Tadic, President of the Republic of Serbia,
and H.E. Javier Solana, Secretary-General of the Council of the European Union
and High Representative for the Common and Foreign Policy, dated 28
November 2008
1920 Chapter 1
INTRODUCTION
1. This Written Statement is filed pursuant to the Court's Order of 17 October 2008
concerning the request for an advisory opinion made by the General Assembly of
the United Nations in its resolution 63/3 of 8 October 2008. 1
2. This introductory chapter will discuss the origin as well as the terms and scope of
the present request for an advisory opinion. It will also address certain issues of
procedure and terminology and outline the structure of the present written
statement.
A. Origin of the Request
3. The General Assembly's request concerns the legality, under international law, of
the unilateral declaration of independence adopted by the Assembly of Kosovo on
2
17 February 2008 (hereinafter "UDI").
4. Kosovo and Metohija (hereinafter "Kosovo") is an autonomous province of the
Republic of Serbia which is under international administration pursuant to
Security Council resolution 1244 (1999) and with the full consent and agreement
of the Republic of Serbia (hereinafter "Serbia"). 3
5. The Assembly of Kosovo is one of the provisional institutions of self-government
in Kosovo established under the Constitutional Framework for Provisional Self-
1
2See Annex 1in Documentary Annexes accompanying this Written Statement.
3See Annex 2 in Documentary Annexes accompanying this Written Statement.
See Security Council resolution 1244 (1999), Preamble, para. 9, Annex 20 in Documentary Annexes
accompanying this Written Statement.
21 Government in Kosovo (hereinafter "Constitutional Framework"), 4 which was
promulgated by the Special Representative of the Secretary-General, who heads
the international civil presence in Kosovo under Security Council resolution 1244
(1999).
6. The purported "declaration of independence" claimed "Kosovo to be an
5
independent and sovereign state". The position of Serbia has been, and continues
to be, that the UDI was an attempt at unilateral secession of Kosovo from Serbia,
and that it is null and void and without any legal effect both in Serbia and within
6
the international legal order.
7. The UDI, as well as the actions by the Provisional Institutions of Self
Government in Kosovo that have since followed, flagrantly violate Security
Council resolution 1244 (1999) and the international legal regime established by
it, as well as the sovereignty and territorial integrity of Serbia and other principles
of international law. Serbia has reacted to these violations with restraint and
responsibility, fully conscious of the need to maintain international peace and
stability in the region. As the President of Serbia stated in his address to the
General Assembly:
"[f]rom the very onset of this grave crisis, Serbia has ruled out the
use of force. And we have not exercised other unilateral options,
such as the imposition of economic sanctions against our
breakaway province. Instead, we have opted for a peaceful and
4
See Constitutional Framework for Self-Government in Kosovo, UNMIK Regulation No. 2001/9,
UNMIK/REG/2001/9 (15 May 2001), Annex 3 in Documentary Annexes accompanying this Written
Statement (hereinafter: "Constitutional Framework"). For a detailed discussion of the international civil
presence in Kosovo, see Chapter 8, Section
5UDI, Article 1.
6
See Letter dated 17 February 2008 from Mr. Boris Tadic, President of the Republic of Serbia, to the
Secretary-General, UN Doc. A/62/703-S/2008/111, Annex (19 February 2008), Annex 5 in Documentary
Annexes accompanying this Written Statement, and Odluka Narodne Skupstine Republike Srbije o
potvrdivanju odluke Vlade Republike Srbije o ponistavanju protivpravnih akata privremenih organa
samouprave na Kosovu i Metohiji o proglasenju jednostrane nezavisnosti [Decision of the National
Assembly of the Republic of Serbia on confirmation of the decision on the annulment of the illegal acts of
the provisional institutions of self-government in Kosovo and Metohija on their declaration of unilateral
independence],Sluzbeni glasnik Republike Srbije [Official Gazette of the Republic of Serbia], No. 19/2008,
Annex 4 in Documentary Annexes accompanying this Written Statement.
22 diplomatie approach, the result of which is that the vast majority of
States Members of the United Nations have refrained from
recognizing Kosovo's UDI.
(...)
7
We have chosen to use the law."
8. Consequently, Serbia proposed to the General Assembly that it seek an advisory
8
opinion of the Court on the legality, under international law, of the UDI. lt
explained that
" the most principled, sensible way to overcome the potentially
destabilizing consequences of Kosovo's unilateral declaration of
independence is to transfer the issue from the political to the
9
juridical arena."
nd rd
9. On 8 October 2008, at the 22 meeting of its 63 Session, the General Assembly
adopted resolution 63/3 requesting an advisory opinion of the Court with only six
States voting against the request. 10
B. The Terms of the Present Request
10. In resolution 63/3, the General Assembly decided, in accordance with Article 96
of the Charter of the United Nations, to request the Court, pursuant to Article 65
of the Statute of the International Court of Justice (hereinafter "Statute of the
Court"), to render an advisory opinion on the following question:
7
UN Doc. A/63/PV.5 (23 September 2008), p. 29.
8See UN Doc. A/63/195 (22 August 2008) and UN Doc. A/63/L.2 (23 September 2008).
9UN Doc. A/63/195 (22 August 2008), Annex, Enclosure - Explanatory Memorandum, at p. 3.
10
The vote was 77 in favor, 6 against, and 74 abstentions, see UN Doc. A/63/PV.22 (8 October 2008), at pp.
10-11.
23 "Is the unilateral declaration of independence by the Provisional
Institutions of Self-Government of Kosovo in accordance with
international law?"
11. In making this request, the General Assembly was "[m]indful of the purposes and
principles of the United Nations". 11The request was also made with the awareness
that the UDI had been received with "varied reactions by the Members of the
12
United Nations as toits compatibility with the existing legal order."
C. The Court's Ortler of 17 October 2008
12. The resolution was transmitted to the Court under cover of a letter from the
13
Secretary-General dated 9 October 2009. On 10 October 2008, the Registrar
gave notice of the request to all States entitled to appear before the Court. 14
13. By its Order of 17 October 2008, the Court decided that the United Nations and its
Member States are considered likely to be able to furnish information on the
question submitted to the Court, and fixed 17 April 2009 as the time-limit for the
submission of written statements and 17 July 2009 as the time-limit for the
submission of written comments on the other written statements. 15
14. Further, the Court decided that "the authors" of the UDI "are considered likely to
be able to furnish information on the question" and invited them to make "written
16
contributions" within the above time-limits.
11General Assembly resolution 63/3, Preamble, Annex 1 in Documentary Annexes accompanying this
Written Statement.
12
Ibid.
13Accordance with International Law of the Unilateral Declaration of Independence by the Provisional
Institutions of Self-Government in Kosovo (Request for Advisory Opinion), Order, 17 October 2008
14[hereinafter: Order of 17 October 2008]
Ibid.
15Ibid., paras. 1-3.
16
Ibid., para. 4.
2415. Prior to the Court's Order of 17 October 2008, Serbia conveyed its initial
observations on the conduct of procedure in the present case in a letter dated 14
October 2008. One of the issues raised was the possible participation of the so
called "Republic of Kosovo" in the proceedings before the Court. In this regard,
Serbia's unequivocal position has been that
" the so-called independent "Republic of Kosovo" cannot
participate in the proceedings before the Court under the relevant
prov1s1ons of the United Nations Charter and the Statute of the
Court."
16. Serbia notes that the Court' s Order of 17 October 2008 has not allowed
participation of the so-called "Republic of Kosovo" in the proceedings. The
Court has simply invited the "authors" of the UDI to make "written
contributions".
17. The "authors" of the UDI are members of the Assembly of Kosovo who adopted
the document on 17 February 2008. The Assembly, as one of the Provisional
Institutions of Self-Government in Kosovo, has only limited powers in the field of
foreign affairs, which must always be exercised in coordination with the Special
17
Representative of the Secretary-General. Moreover, the Special Representative
has reserved a broad power to conduct "[e]xternal relations, including with states
and international organisations, as may be necessary for the implementation of his
mandate." 18It should be noted that pursuant to Security Council resolution 1244
(1999), UNMIK has acted on behalf of Kosovo in international organizations and
conferences, 19 and before the International Criminal Tribunal for the Former
Yugoslavia, 20 both preceding and following the UDI.
17Constitutional Framework, Article 5.6, Annex 3 in Documentary Annexes accompanying this Written
18Statement.
Ibid., Article 8.1 (o).
19For example, UNMIK represented Kosovo at ILO meetings, see, e.g., International Labour Conference,
Supplement to the Provisional Record, 9?1hSess., 12 June 2008, "Final List of Delegations", at p. 106;
Provisional Record, 95 Sess., 6 sitting, 7 June 2006, pp. 38-39; Provisional record, 96 ihssitting,
12 June 2007, p. 16; available at http://www.ilo.org/global/lang--en/indeUNMIK also repretented
Kosovo before the Committee on Economie, Social and Cultural Rights, for example, at itss4session
held on 10 November 2008, see http://www2.ohchr.org/english/bodies/cescr/cescrs4l.htmUNMIK also
2518. Accordingly, it follows that information by the "authors" of the UDI should be
furnished to the Court under the auspices of UNMIK. The participation by the
"authors" of the UDI in the present proceedings constitutes a considerable
departure from the previous practice of the Court, and raises significant issues
under Article 93 of the Charter, as well as Articles 34, 35, and 66, paragraph 2, of
the Statute of the Court. Serbia reserves its rights in respect to any participation of
the "authors" of the UDI in a way which would be incompatible with Security
Council resolution 1244 (1999), general international law and the Statute of the
Court.
D. Scope of the Present Request
19. According to the terms of the present request, the Court is invited to give its
opinion on whether the UDI is "in accordance with international law". Thus, the
present request is confined to legal issues and concerns the legality of the UDI
under applicable rules of international law. ltis no more and no less than this.
20. As the Court has stated in a previous case,
" the Court must identify the existing principles and rules,
interpret them and apply them... thus offering a reply to the
21
question posed based on law."
represented Kosovo at regional meetings, such as in the establishment of the Regional Co-Operation
Council (RCC), see Joint Declaration on the Establishment of the Regional Co-operation Council (RCC),
27 February 2008, para. 1, available at http://www.stabilitypact.org/rt/RCC%20Joint%20Declaration%20-
%20Final.pdf.
2°For instance, it has been a consistent practice of the International Criminal Tribunal for the Former
Yugoslavia (hereinafter:ICTY") to request and receive guarantees for the provisional release of accused
originally from Kosovo solely from UNMIK, not from any of the institutions of provisional self
government. See, e.g.,Prosecutor v. Limaj et al, IT-03-66-A, Decision on Motion on Behalf of Haradin
Bala for Temporary Provisional Release, 14 February 2008, paras. 8-9;osecutor v. Haradinaj et al, IT-
04-84-T, Decision on Motion on Behalf of Ramush Haradinaj for Provisional Release, 14 December 2007,
para. 16 (stating that under resolution 1244MIK is entrusted with ensuring public safety and order in
Kosovo/Kosova, and therefore UNMIK is the proper authority to provide such guarantees"). See also
Prosecutor v. Haraqija and Marina, IT-04-84-R77.4-A, Decision on Motion of Bajrush Marina for
Provisional Release, 9 February 2009, paras. 6 & 12, all available at http://www.icty.org/action/cases/4.
21
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 234, para. 13,
hereinafter'Legality of the Threat or Use of Nuclear Weapons.'
2621. As will be seen in Parts III and IV of this Written Statement, the UDI in the
present case is subject to international legal norms which can be, at least
conceptually, separated into two categories. First, there are those norms that fall
within the ambit of general international law. Secondly, there is the legal regime
established by Security Council resolution 1244 (1999), which includes
regulations and decisions of the international civil administration in Kosovo. It is
against these two sets of principles and rules that the Court will have to assess the
legality of the UDI.
22. It should be noted that the present request does not directly relate to the question
of recognition of the so-called "Republic of Kosovo" by certain States, although
the Court's opinion as to the legality of the UDI will be of considerable relevance
to those States that have recognised this entity as a State.
23. Finally, it should also be noted that the present request is not primarily concerned
with facts relating to the situation in Kosovo and its history. Serbia has focused its
present Written Statement on the legal question before the Court. However, the
facts related to the Kosovo situation, as well as the legal status of Kosovo until the
present day, will be discussed only to the extent necessary to provide the Court
with the necessary background information. Serbia reserves its position in respect
of all questions and matters not specifically addressed in this Written Statement.
E. Continuity between the FRY/Serbia and Montenegro and Serbia
24. As is well known, Serbia continues the international legal personality of the
Federal Republic of Yugoslavia (hereinafter "FRY") which was proclaimed on 27
April 1992 and was renamed the State Union of Serbia and Montenegro in 2003.
25. The continuity under international law between the FRY/ State Union of Serbia
and Montenegro, on the one hand, and Serbia, on the other, was confirmed in
27 22
Article 60 of the Constitutional Charter of Serbia and Montenegro, which also
specifically confirmed that in the case of a separation of Montenegro from the
State Union of Serbia and Montenegro
"the international instruments pertaining to the Federal Republic of
Yugoslavia, particularly resolution 1244 of the United Nations
Security Council, would concern and apply in their entirety to
Serbia...".23
26. The Constitutional Charter of Serbia and Montenegro also confirmed in its
preamble that it was the state of Serbia, as one of the constituent entities forming
the State Union, that
" includes the Autonomous Province of Vojvodina and the
Autonomous Province of Kosovo and Metohija which is in
accordance with resolution 1244 of the United Nations Security
24
Council currently under international administration ..."
27. The continuity between the FRY/ State Union of Serbia and Montenegro, on the
one hand, and Serbia, on the other, was also accepted in the relevant United
Nations practice. It has not been challenged that after the separation of
Montenegro from the State Union of Serbia and Montenegro, Serbia continued to
exercise all membership rights and obligations the FRY / State Union of Serbia
and Montenegro had previously exercised.
28. Further, the Court in its 2007 judgment in the Case concerning Application of the
Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v. Serbia and Montenegro), took note of the fact that Serbia had
22 Ustavna povelja Drzavne zajednice Srbija i Crna Cora ["Constitutional Charter of Serbia and
Montenegro"], Sluzbeni list Srbije i Crne Gore [Official Gazette of Serbia and Montenegro"], No. 1/2003,
23Annex 58 in Documentary Annexes accompanying this Written Statement.
Ibid., Art. 60.
24Ibid., Preamble.
28 25
accepted such continuity, and for that reason also considered that Serbia had
26
remained the respondent in that case.
29. This v1ew was reaffirmed in its recent judgment in the Case concemmg
Application of the Convention of the Prevention and Punishment of the Crime of
27
Genocide (Croatia v. Serbia).
30. In light of this legal continuity, it follows that any reference to the territorial
integrity of the FRY (Serbia and Montenegro) / State Union of Serbia and
Montenegro in the practice of United Nations organs and of individual States must
be understood as referring to the territorial integrity of Serbia.
F. Structure of the Written Statement
31. This Written Statement is divided into five Parts.
32. Part I addresses the questions of jurisdiction and admissibility and demonstrates in
Chapter 2 that the Court is competent to give the advisory opinion requested by
the General Assembly in the present case, while Chapter 3 demonstrates that the
request is admissible.
33. Part II addresses the relevant factual elements. Chapter 4 deals with the
geographical and historical setting of Serbia and its autonomous province of
Kosovo. Chapter 5 examines the legal and factual background of the Kosovo
crisis. Sections A and B of Chapter 5 deal with legal status of Kosovo in Serbia
and Yugoslavia, and with standards of minority rights protection applicable to
Kosovo. This is followed by an examination of the development of the Kosovo
crisis from 1981 to the UDI in 2008.
25Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment of 26 February 2007, General
List No. 91, p. 31, para. 75.
26
Ibid., p. 32, para. 77.
27Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Croatia v. Serbia), Judgment of 18 November 2008, General List No. 118, para. 32.
2934. Part III examines the legality of the UDI from the point of general international
law. Itconsists of two chapters. The first chapter (Chapter 6) deals with the
principle of territorial integrity of States and its consequences on the legality of
the UDI, while the second chapter (Chapter 7) deals with the right to self
determination.
35. Part IV deals with the impact of Security Council resolution 1244 (1999) on the
question put to the Court. In particular, Chapter 8 examines in detail the
international legal regime for Kosovo established by Security Council resolution
1244 (1999), while Chapter 9 examines whether the UDI is in accordance with
this legal regime.
36. Part V which consists of Chapter 10 examines various possible justifications for
the UDI under international law and concludes that none of them applies in the
present case.
37. The Written Statement ends with Chapter 11 which contains conclusions and
submissions to the Court.
38. Attached to the Written Statement are 7 appendices containing maps.
39. Annexed to this Written Statement is a volume of 83 documentary annexes, which
are reproduced for the convenience of the Court.
40. As a final clarification, it should be noted that the present Written Statement will
address events that have taken place over a considerable period of time, and
during which some designations - such as, for example, "Yugoslavia" - have
frequently changed meaning. For the sake of clarity, the designations used in this
Written Statement should be understood in accordance with the historical context
in which they are discussed, unless otherwise indicated in the text.
30 Part I
QUESTIONS OF JURISDICTION AND PROPRIETY
Chapter 2
THE COURTIS COMPETENT TO GIVE THE ADVISORY OPINION
REQUESTED
41. The present chapter will show that the Court is competent to give an advisory
opinion in the present case.
42. According to Article 65, paragraph 1, of the Statute of the Court:
"The Court may give an advisory opinion on any legal question at
the request of whatever body may be authorized by or in
accordance with the Charter of the United Nations to make such a
request."
43. In this regard, the Court stated that
"[i]t is... a precondition of the Court's competence that the advisory
opinion be requested by an organ duly authorized to seek it under
the Charter, thatit be requested on a legal question, and that, except
in the case of the General Assembly or the Security Council, that
question should be one arising within the scope of the activities of
the requesting organ." 28
28Application for Review of Judgment No. 273 of the United Nations Administrative Tribunal, Advisory
Opinion, /.Cl. Reports 1982, pp. 333-334, para. 21; see also Legal Consequences of the Construction of a
Wall in the Occupied Palestinian Territory, Advisory Opinion, /Reports 2004, p. 144, para. 14,
hereinafterWall'; Legality of the Threat or Use of Nuclear Weapons,pp. 232-234, paras. 10-13.
3144. Thus, as a precondition of the Court's competence to exerc1se its advisory
jurisdiction in the present case, the request for an advisory opinion must be made
by (i) a duly authorized organ and (ii)the question posed to the Court must be a
legal one. The fulfilment of the first condition in the present case is discussed in
sections A and B, while the condition that the opinion is requested on a legal
question is discussed in section C.
A. The Request Was Made by a Duly Authorized Organ
45. With regard to the first condition - that the request for an advisory opinion has
been submitted by a duly authorized organ - the relevant provision in the present
proceedings is Article 96, paragraph 1, of the Charter of the United Nations which
provides:
"The General Assembly or the Security Council may request the
International Court of Justice to give an advisory opinion on any
legal question".
46. Accordingly, as the Charter expressly authorizes the General Assembly to request
an advisory opinion from the Court, it is clear that the General Assembly is, in the
words of the Court, "an organ duly authorized to seek [an advisory opinion] under
the Charter". 29 Consequently, the first precondition for the exercise of the
advisory jurisdiction under Article 65, paragraph 1,of the Statute of the Courtis
fulfilled.
B. The Requesting Organ Acted within Its Competence
47. According to Article 96, paragraph 1, of the Charter, the General Assembly and
the Security Council have a broad competence to request an advisory opinion
29Application for Review of Judgment No. 273 of the United Nations Administrative Tribunal, Advisory
Opinion, I.C.J. Reports 1982, p. 333, para. 21.
32 from the Court "on any legal question". In contrast, other organs of the United
Nations and specialized agencies are authorized to request an advisory opinion
only on "legal questions arising within the scope of their activities" (Article 96,
paragraph 2 of the Charter). In light of these provisions, it is submitted that the
General Assembly's competence to request an advisory opinion cannot be
doubted as long as the question put before the Court is a legal one.
48. The General Assembly also has broad powers under the Charter which clearly
allow it to discuss the question forming the request for an advisory opinion of the
Court. Under Article 10 of the Charter, the General Assembly has the authority to
" discuss any questions or any matters within the scope of the
present Charter or relating to the powers and fonctions of any
organs provided for in the present Charter ..."
49. As the Court noted, Article 10 of the Charter
"has conferred upon the General Assembly a competence relating to
30
'any questions or any matters' within the scope of the Charter. .."
50. In addition to its general powers under Article 10, the General Assembly also has
specific competences under the Charter, inter alia, (i) to consider the general
principles of cooperation in the maintenance of international peace and security
(Article 11, paragraph 1); (ii)to discuss any questions relating to the maintenance
of international peace and security (Article 11, paragraph 2); and to decide on the
admission of new Members (Article 4, paragraph 2).
51. The present request for an advisory opinion concerns a so-called "declaration of
independence" by provisional institutions of self-government in a territory which
is administered by the United Nations for the purpose of maintenance and
restoration of international peace and security under the authority of a binding
Security Council resolution. This so-called "declaration of independence" has
30
Wall, p. 145, para. 17,Legality of the Threat or Use of Nuclear Weapons, p. 233, para. 11.
33 directly affected the authority of the United Nations Organization in general, and
its administration in Kosovo, in particular. As stated by the Secretary-General,
"[t]he declaration of independence and subsequent events have
posed significant challenges to the ability of UNMIK to exercise its
administrative authority in Kosovo." 31
52. It is clear that the question of the legality of an act which "posed significant
challenges" to the authority of UNMIK and the United Nations in general is a
matter that squarely falls under the competence of the General Assembly and is a
matter of its direct concern. Similarly, the fact that the Security Council has not
been able to reach a decision on how to respond to this challenge is also a matter
of direct concern to the General Assembly and clearly within its competence
because inter alia it relates "to the powers and fonctions of any organs provided
for in the present Charter" (Article 10of the Charter).
53. Further, the UDI has raised questions concernmg respect for the Charter, in
particular its purposes and principles, respect for decisions of the United Nations
organs, as well as compliance with norms of general international law. All these
issues clearly fall under the competences of the General Assembly and it has had a
1ong-standmg mterest m t em. h 32
54. In particular, the General Assembly has for a long time dealt with the situation in
Kosovo, including in the context of the maintenance of international security in
the region of South-Eastern Europe. 33 In that context, the General Assembly has
repeatedly reaffirmed the need for full observance of the Charter, including the
principles of territorial integrity and sovereignty, and emphasized the importance
31Report of the Secretary-General on the United Nations Interim Administration in Kosovo, UN Doc.
S/2008/211 (28 March 2008), para. 30.
32
See, e.g., the 2005 World Summit Outcome Document, General Assembly resolution 60/1, paras. 2-6. 69-
80, 134, 149-151. See also, e.g., Question of East Timor, General Assembly resolution 37/30 and its
predecessor resolutions on the status of East Timor;Policies of apartheid of the Government of South
Africa - The so-called "independent" Transkei and other Bantustans,neral Assembly resolution 31/6 on
the invalidity of the independence of the so-called Bantustans in South Africa; Question of Cyprus, General
Assembly resolution 37/253 and its predecessor resolutions affirming the sovereignty of Cyprus and
33denying the validity of the independence of the so-called Turkish Republic of Northern Cyprus.
See, e.g., General Assembly resolutions 54/62; 55/27; 56/18; 57/52; 59/59, and 61/53 on the maintenance
of international security - good neighborliness, stability and development in South-Eastern Europe.
34 of full implementation of Security Council resolution 1244 (1999) and the role
34
and responsibility of UNMIK in that regard.
55. As a matter of principle, the General Assembly has a direct concern in all
situations in which violations of the Charter of the United Nations and general
international law, as well as challenges to the authority of the United Nations, are
at issue, because they constitute a serious and direct threat to the functioning of
the organization and of the international community as a whole. The so-called
"declaration of independence" is clearly one such case. It is submitted that the
General Assembly not only has a legitimate interest, but also a duty, to address it
and, in that context, to seek legal guidance from the Court as the principal judicial
organ of the United Nations.
56. Finally, by exercising its authority to request an advisory opinion from the Court
in the present case, the General Assembly is acting consistently with its own
position that the United Nations and its organs should make greater use of the
35
Court by seeking its guidance on legal questions.
57. In conclusion, the General Assembly clearly acted within its competence when it
adopted the present request for an advisory opinion. The fact that, at the same
time, the situation in Kosovo was dealt with by the Security Council did not affect
the power of the General Assembly in this regard. While Article 12 of the Charter
limits the authority of the General Assembly to make recommendations with
regard to a dispute or situation in respect of which the Security Council is
exercising the fonctions assigned toit by the Charter, it is well-established by the
Court's jurisprudence that this limitation in any case does not apply to requests for
36
advisory opinions.
34
See General Assembly resolution 54/62, preamble, para. 5, & operative para. 3; resolution 55/27,
preamble, para.7, & operative paras. 3-4; resolution 56/18, preamble, para. 5, & operative paras. 1-2;
resolution 57/52, preamble, para. 5, & operative paras. 1-2; resolution 59/59, preamble, para. 8, &
operative paras. 1-2 & 5; and resolution 61/53, preamble, paras. 1 & 9, & operative paras. 1-2.
35See General Assembly resolution 171 (II). See also the reports of the UN Secretary-General, An Agenda
for Peace, UN Doc. S/24111 (17 June 1992), para. 38; UN Doc. A/45/1 (16 September 1990), p. 7; and UN
Doc. A/46/1 (6 September 1991), p. 4.
36Wall, p. 150, para 28.
35 C. The Question Submitted 1sa Legal One
58. A further precondition for the competence of the Court to deal with a request for
an advisory opinion under Article 65 of the Statute of the Court is that the request
concerns a "legal question". Likewise, under Article 96, paragraph 1, of the
Charter, the General Assembly may request an advisory opinion only on legal
questions.
59. According to the Court, legal questions are those that
" have been framed m terms of law and ra1se problems of
international law..."
and which
"... by their very nature [are] susceptible of a reply based on law,
indeed, they are scarcely susceptible of a reply otherwise than on
the basis of law ... [and] appear ... to be questions of a legal
character" 37
60. The Court has also explained that
"[t]he question putto the Court by the General Assembly is indeed
a legal one, since the Court is asked to rule on the compatibility of
the threat or use of nuclear weapons with the relevant principles and
rules of international law. To do this, the Court must identify the
existing principles and rules, interpret them and apply them to the
threat or use of nuclear weapons, thus offering a reply to the
question posed based on law." 38
37Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 18, para. 15, hereinafter "Western Sahara".
38Legality of the Threat or Use of Nuclear Weapons, p. 234, para. 13.
3661. The question put to the Court in the present case is whether the UDI is "in
accordance with international law". This is clearly a legal question. First, it has
been "framed in terms of law" and "raises problems of international law". 39 In
order to answer it, the Court will have to perform an essentially judicial task - to
assess the compatibility of the UDI with relevant principles and rules of
international law. This entails the identification of the relevant principles and rules
40
of international law, their interpretation and, finally, their application to the UDI.
The result of such an exercise must be a "reply based on law". Indeed, the
question in the present case is, to use the words of the Court, "scarcely susceptible
41
of a reply otherwise than on the basis of law".
62. Therefore, the question which forms the subject-matter of the present advisory
proceedings is a question of a legal character. With respect to this question, the
General Assembly was competent to request an advisory opinion from the Court,
and the Court has jurisdiction to give an advisory opinion.
63. Like many other pertinent legal questions, this question does have strong political
aspects. This does not, however, deprive the question of its legal character and
42
does not deprive the Court of its advisory competence. As the Court stated on a
previous occasion, and which it has positively reaffirmed in its recent advisory
opm1ons
"[i]ndeed, m situations m which political considerations are
prominent it may be particularly necessary for an international
organization to obtain an advisory opinion from the Court as to the
legal principles applicable with respect to the matter under
debate..."43
39See Western Sahara, p. 18,para. 15.
40
41See Legality of the Threat or Use of Nuclear Weapons, p. 234, para. 13.
See Western Sahara, p. 18,para. 15.
42See Application for Review of Judgment No. 158 of the United Nations Administrative Tribunal. Advisory
Opinion, l.C.J. Reports 1973, pp. 171-172, para. 14.
43
Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, I.C.J. Reports 1980, p.
87, para. 33, see also, Wall, p. 155, para. 41; Legality of the Threat or Use of Nuclear Weapons, p. 234,
para. 13.
37 D. Conclusion
64. The request for an advisory opinion in the present case was made by the General
Assembly which is duly authorized to make such a request under Article 96,
paragraph 1, of the Charter. The request concems a legal question as required by
this same provision and Article 65 of the Statute of the Court. Consequently, the
Court has jurisdiction to give the advisory opinion requested.
38 Chapter 3
THERE ARE NO COMPELLING REASONS PREVENTING THE EXERCISE OF
ADVISORY JURISDICTION IN THE PRESENT PROCEEDINGS
65. When the Court, as in the present case, has jurisdiction to render an advisory
opinion, it still has a discretionary power under Article 65 of the Statute of the
44
Court to refuse to exercise its competence. The present chapter will demonstrate
that there are no reasons that would lead the Court to decline to provide an
advisory opinion in the present case on that basis.
66. As a matter of principle, the Court' s position has been that a request for an
advisory opinion,
"represents its participation m the activities of the Organization,
45
and, in principle, should not be refused."
67. Accordingly, the discretionary power to decline a request for an advisory opinion
should be used exceptionally, only when there are "compelling reasons" for doing
so.46 These "compelling reasons" are related to the propriety of the exercise of the
Court' judicial function. 47
68. As is well known, the present Court has never refused to entertain a request for an
advisory opinion on the basis of its discretion.
44Wall, p. 156, para. 44; Legality of the Threat or Use of Nuclear Weapons, p. 234, para. 14.
45Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion,
/.Cl. Reports 1950,p. 71; Dif.ferenceRelating to lmmunity from Legal Process of a Special Rapporteur of
the Commission of Human Rights, Advisory Opinion, l.CJ. Reports1999 (]), pp. 78-79, para. 29.
46Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion, /.Cl.
Reports 1962, p. 155; Dif.ferenceRelating to Immunity from Legal Process of a Special Rapporteur of the
Commission of Human Rights, Advisory Opinion, /.Cl. Reports 1999, pp. 78-79, para. 29.
47
See Wall, p. 157, para. 45.
3969. It is submitted that, in the present case, there are no compelling reasons that
should lead the Court to decline to entertain the request for an advisory opinion.
On the contrary, as the Court said in the Western Sahara opinion:
"By lending its assistance in the solution of a problem confronting
the General Assembly, the Court would discharge its fonctions as
48
the principal judicial organ of the United Nations."
70. Moreover, since the United Nations has a special responsibility with respect to the
situation in Kosovo, there are indeed compelling reasons for the Court, as "the
principal judicial organ of the United Nations" (Article 92 of the Charter), to share
the burden of this responsibility by providing, in the present case, legal guidance
to the General Assembly and the Organization as a whole.
A. The United Nations Bears Responsibility with regard to the Question
71. In the Wall case, the Court considered that
"[g]iven the powers and responsibilities of the United Nations in
questions relating to international peace and security, it is the
Court's view that the construction of the wall must be deemed to be
directly of concern to the United Nations." 49
72. Similarly, the question before the Court in the present case directly concerns the
United Nations "given the powers and responsibilities of the United Nations in
questions relating to international peace and security". Indeed, the present
advisory proceedings concern a matter which is clearly "of particularly acute
concern to the United Nations". 50
73. As stated by the Secretary-General of the United Nations, the UDI has presented a
significant challenge to the authority of the United Nations and its administration
48
Western Sahara, p. 21, para. 23.
49Wall, p. 159, para. 49.
50Ibid., p. 159, para. 50.
40 in Kosovo, 51 which was established by Security Council resolution 1244 (1999)
adopted under Chapter VII of the Charter.
74. The UDI also raises important issues in the context of the maintenance of
international peace and security in the whole region of South-Eastern Europe,
which has been the subject of the General Assembly's and the Security Council's
52
interest for a long time.
75. Itis clear that the question of the legality of the UDI has broad repercussions and
raises issues of direct and acute concern to the United Nations. The question is
also of general importance to the international system as a whole. Itis clear that it
is proper for the Court to exercise its advisory jurisdiction with respect to such a
question.
B. The Consent of Serbia, the Interested State, Is Not Required and, in Any Case,
Serbia Has Given Its Consent
76. The present Court held that its jurisdiction to give advisory opinions does not
depend on the consent of interested States. 53 The consent of an interested State
may solely be relevant "for the appreciation of the propriety of g1vmg an
opinion". 54 As the Court explained,
"An instance of this would be when the circumstances disclose that
to give a reply would have the effect of circumventing the principle
51
See Report of the Secretary-General on the United Nations Interim Administration in Kosovo, UN Doc.
S/2008/211 (28 March 2008), para. 30.
52For the General Assembly action see, e.g., resolutions 54/62; 55/27; 56/18; 57/52; 59/59; 61/53 on the
maintenance of international security - good neighborliness,stability and development in South-Eastern
Europe; for the Security Council action with respect to the various conflicts in the former Yugoslavia, see,
e.g., resolutions 713 (1991); 808 (1993); 827 (1993); as well as resolutions 1031 (1995); 1088 (1996); 1160
(1998); 1199 (1998); 1203 (1998); 1244 (1999); 1423 (2002); 1491 (2003); 1551 (2004); 1639 (2005); and
1845 (2008) reprinted in Annexes 14-18, 20-23, 25, and 28 in Documentary Annexes accompanying this
Written Statement.
53Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion,
54I.C.J. Reports 1950,. 71; see also Western Sahara, p. 24, para. 31.
Ibid., p. 25, para. 32.
41 that a State is not obliged to allow its disputes to be submitted to
judicial settlement without its consent." 55
77. The application of the foregoing principle, however, is narrow. As the Court said
in its most recent advisory opinion,
"The object of the request before the Court is to obtain from the
Court an opinion which the General Assembly deems of assistance
to it for the proper exercise of its fonctions. The opinion is
requested on a question which is of particularly acute concern to the
United Nations, and one which is located in a much broader frame
of reference than a bilateral dispute. In the circumstances, the Court
does not consider that to give an opinion would have the effect of
circumventing the principle of consent to judicial settlement, and
the Court accordingly cannot, in the exercise of its discretion,
decline to give an opinion on that ground." 56
78. Thus, the consent of an interested State loses its relevance for the propriety of
giving an advisory opinion if the question before the Court is also a matter "of
particularly acute concern" to the United Nations, such as in the present case.
Conversely, the consent is much more important if the matter arose
57
"independently in bilateral relations". Indeed, this was precisely the situation in
the Eastern Carelia case, where the object of the request for an advisory opinion
was exclusively a pending dispute between Finland and Russia, which was nota
matter of proper concern of the League of Nations in the absence of Russia's
consent. 58
55Ibid., p. 25, para. 33.
56
Wall, p. 159, para. 50.
57Western Sahara, p. 25, para. 34; see, also, Wall, pp. 158-159, para. 49.
58" •.Russia has, on several occasions, clearly declared that it accepts no intervention by the League of
Nations in the dispute with Finland. The refusais which Russia had already opposed to the steps suggested
by the Council have been renewed upon the receipt by it of the notification of the request for an advisory
opinion. The Court therefore finds it impossible to give its opinion on a dispute of this kind."s of
Eastern Carelia, Advisory Opinion, P.C.I.J., Series B, No. 5,, hereinafter "Eastern Carelia").
4279. In conclusion, the consent of an interested State is not required in the present
proceedings, because this case raises issues of direct and acute concern to the
United Nations and the international system as a whole.
80. While the issue of State consent does not anse m the present case, it is
nevertheless clear and should be noted that Serbia has a direct and compelling
interest in the present proceedings which concern an act of illegal secession of a
part of its territory. As such, Serbia is the interested State. Thus, if the consent of
the interested State were necessary for the exercise of the Court's advisory
fonction in the present case (quod non) this requirement would be fulfilled
because Serbia expressly consents to the present proceedings. Indeed, it was
Serbia that proposed to the General Assembly to adopt resolution 63/3 and request
59
an advisory opinion in the present case.
C. The Court Has Sufficient Information to Give the Advisory Opinion
81. One consideration in the exercise of the Court' s discretion to give an advisory
opinion may be the sufficiency of factual evidence before it. The question is
" whether the Court has before it sufficient information and
evidence to enable it to arrive at a judicial conclusion upon any
disputed questions of fact the determination of which is necessary
for it to give an opinion in conditions compatible with its judicial
character."60
82. The lack of information was one of the principal reasons for the refusai of the
Permanent Court of International Justice to give an advisory opinion in the
Eastern Carelia case. 61
59
See UN Doc. A/63/L.2 (23 September 2008).
60Western Sahara, pp. 28-29, para. 46.
61See Eastern Carelia, pp. 28-29.
4383. In contrast to the Eastern Carelia case, the present proceedings do not ra1se
significant issues of fact. It is forther submitted that, in any case, most of the
relevant facts are uncontroversial. Also, the situation in Kosovo has been the
subject of international attention for many years and all relevant events in, or
related to, the province, are well documented. This has been especially so after
June 1999 when Kosovo came under United Nations administration. It is
submitted that the available evidence is more than sufficient to enable the Court to
62
give an advisory opinion in the present case.
D. The Advisory Opinion Will Help the United Nations and Member States in
Their Subsequent Actions
84. The Court has described its advisory fonction in the following way:
"The fonction of the Courtis to give an opinion based on law, once
it has corne to the conclusion that the questions put to it are relevant
and have a practical and contemporary effect and, consequently, are
not devoid of object or purpose." 63
85. However, the Court has also clearly set the limits of inquiry as to the existence of
the object and purpose of the question put to it:
"... it is not for the Court itself to purport to decide whether or not
an advisory opinion is needed by the Assembly for the performance
of its fonctions. The General Assembly has the right to decide for
itself on the usefolness of an opinion in the light of its own
needs." 64
86. This was reiterated in the most recent advisory opinion of the Court:
62
See Wall, p. 161, para. 56.
63Western Sahara, p. 37, para. 73.
64Legality of the Threat or Use of Nuclear Weapons, p. 237, para. 16.
44 "The Court cannot substitute its assessment of the usefulness of the
opinion requested for that of the organ that seeks such opinion,
namely the General Assembly." 65
87. The relevance of the question put before the Court in the present case is clear from
the preceding discussion: the UDI has had a direct effect on the ground, in
Kosovo, as it presented a significant challenge to the authority of the United
66
Nations and its administration in Kosovo. Further, it has raised issues
concerning respect for the Charter of the United Nations, in particular its purposes
and principles, respect for decisions of the United Nations organs, as well as
compliance with norms of general international law.
88. The relevance of the question put before the Court is also seen from the fact that
the UDI, as noted by General Assembly resolution 63/3,
"... has been received with varied reactions by the Members of the
United Nations as toits compatibility with the existing international
legal order."
89. The question put before the Courtis not only painfully relevant but clearly has "a
practical and contemporary effect". What the Court said at an earlier occasion
applies equally in the present situation:
"The object of this request for an Opinion is to guide the United
Nations in respect of its own action." 67
90. Further, as the Court noted in the Wall case
65Wall, p. 163, para. 62.
66See Report of the Secretary-General on the United Nations lnterim Administration in Kosovo, UN Doc.
S/2008/211 (28 March 2008), para. 30
67
Reservations to ththConvention on the Prevention and Punishment of the Crime of Genocide, Advisory
Opinion of May 28 ,1951, I.C.J. Reports 1951, p. 19.
45 "The Court's task would be to determine in a comprehensive
manner the legal consequences of the construction of the wall,
while the General Assembly - and the Security Council - may then
68
draw conclusions from the Court's findings."
91. In the present case, the Court' s answer to the question posed by the General
Assembly will provide legal guidance to the United Nations, as well as to its
Member States, in their contemporary attitudes and actions with respect to the
situation in Kosovo - it will provide them with "enlightenment as to the course of
action [they] should take." 69 This is confirmed inter alia by the fact that some
States that have recognized the so-called "Republic of Kosovo" have still
supported the request for an advisory opinion. 70
92. The exercise by the General Assembly of its competences under the Charter will
be informed by the advisory opinion. As already discussed, the General Assembly
has a direct interest in the matter because it concerns a significant challenge to the
authority of the United Nations and its administration in Kosovo, as well as the
respect for the Charter, decisions of United Nations organs and international law
in general.
93. The Security Council will also receive authoritative legal guidance and would,
perhaps, be able to forge the political will to take a position with respect to this
matter. Presently, the Secretary-General was forced, in the absence of guidance
from the Security Council with respect to the purported "declaration of
independence" and ensuing events, to reconfigure the international civil presence
71
in Kosovo in order, inter alia, "to ensure international peace and security".
94. It is clear that the Secretary-General, as well as his Special Representative in
Kosovo, who has a direct interface with the Provisional Institutions of Self-
68Wall, p. 163, para. 62.
69Interpretation of Peace Treaties, p. 71.
70
71This is the case with Norway and Costa Rica, see UN Doc. A/63/PV.22 (8 October 2008), pp. 10 & 14.
Report of the Secretary-General on the United Nations Interim Administration in Kosovo, UN Doc.
S/2008/3 54 (12 June 2008), para. 18.
46 Government in Kosovo, will benefit from the legal guidance supplied by the
Court in the present case.
95. Further, as noted in the explanatory memorandum accompanymg the draft
resolution 63/3 requesting an advisory opinion in the present case,
"[m]any Member States would benefit from the legal guidance an
advisory opinion of the International Court of Justice would confer.
ltwould enable them to make a more thorough judgement on the
issue."72
96. Moreover,
" an advisory opm1on of the International Court of Justice,
rendered in a non-contestable, non-adversarial manner, would go a
long way towards calming tensions created by Kosovo's unilateral
declaration of independence, avoiding further negative
developments in the region and beyond and facilitating efforts at
73
reconciliation among all parties involved."
97. In other words, the Court' s opinion will have beneficial diplomatie and political
effect not only for those involved, but also for the wider region of South-Eastern
Europe which is still fraught with political tensions and fresh memories of recent
wars.
98. However, there have been views that the Court' s advisory opinion in the present
case would serve no useful purpose. For example, according to the Permanent
Representative of the United Kingdom to the United Nations
"The United Kingdom has recognized Kosovo's independence and
considers that the pragmatic reality of the circumstances warrant
72UN Doc. A/63/195 (22 August 2008), Annex.
73Ibid.
47 wider recognition of this status. If a question is referred to the Court
for an advisory opinion, the United Kingdom would engage
constructively in the proceedings, as it has done in previous
advisory opinions. The United Kingdom is not, however, currently
persuaded of the utility of the proposa! or that some of the issues of
74
detail that it considers to be important have been fully addressed."
99. In this context, it should be noted that the "Republic of Kosovo" is far from
exercising independent governmental authority. It is a territory governed by an
international administration which retains ultimate power in the province.
100. The international security presence, KFOR, was established under Security
75
Council resolution 1244 (1999). As described by the European Court of Human
Rights, KFOR has the mandate "to exercise complete military control in
Kosovo". 76Even following the UDI, KFOR"continues to stand ready to deal with
unrest or violence, regardless of where it cornes from." 77 In other words, KFOR
remains the ultimate military and security authority in the province.
101. The international civil presence in Kosovo retains the authority to annul all acts of
Kosovo' s Provisional Institutions of Self-Government which are not in
accordance with Security Council resolution 1244 (1999) and the Constitutional
Framework for Kosovo promulgated by the Special Representative of the
78
Secretary-General of the United Nations.
102. Further, the mandate of the European Union mission in Kosovo, EULEX, also
illustrates the extent to which the powers of Kosovo institutions are limited.
EULEX shall "monitor, mentor and advise the competent Kosovo institutions on
74
Letter dated 1 October 2008 from the Permanent Representative of the United Kingdom of Great Britain
and Northern Ireland to the United Nations addressed to the President of the General Assembly, UN
Doc.A/63/461 (2 Oct. 2008), Annex, para. 10 (emphasis added).
75For a more detailed discussion of the international security presence in Kosovo, see Chapter 8, Section C.
76
European Court of Human Rights, Behrami v. France and Saramati v. France, Germany and Norway,
Decision on admissibility of 2 May 2007, para. 70.
77Monthly Report to the United Nations on the Operations of the Kosovo Force, UN Doc. S/2008/638,
Annex (8 October 2008), para. 28.
78
See Constitutional Framework, Chapter 12, Annex 3 in Documentary Annexes accompanying this Written
Statement. For a more detailed discussion of powers of the international civil presence in Kosovo, see
Chapter 8, Section.
48 all areas related to the wider rule of law", 79 and has the power to reverse or annul
decisions of the Kosovo authorities "in consultation with the relevant international
civilian authorities in Kosovo". 80 ltshould be noted that EULEX operates
" under the overall authority of the United Nations, under a
United Nations umbrella headed by [Secretary-General's] Special
81
Representative, and in accordance with resolution 1244 (1999)..."
This arrangement was endorsed by the Security Council. 82
103. lt is therefore clear that Kosovo constitutes part of Serbian territory under
international administration and this international administration has both the
legal authority and instruments of effective control to act fully in accordance with
legal opinion of the Court.
E. Conclusion
104. In conclusion, the Court is competent to give the advisory opinion requested by
the General Assembly resolution 63/3 and there are no compelling reasons that
should lead the Court to decline to provide an advisory opinion in the present
case. Indeed, its advisory opinion will provide authoritative and vital legal
guidance to the United Nations and its Member States with respect to a relevant
and contemporary legal question of great practical importance.
79Council Joint Action 2008/124/CFSP of 4 February 2008 on the European Union Rule of Law Mission in
Kosovo, EULEX KOSOVO, O.J. L 42/92 (16 February 2008), Article 3, para. l(a), Annex 70 in
80Documentary Annexes accompanying this Written Statement.
Ibid., Article 3, para. 1(b).
81Report of the Secretary-General on the United Nations lnterim Administration in Kosovo, UN Doc.
S/2008/692 (24 November 2008), para. 23; see, also, para. 50.
82
See Statement by the President of the Security Council, UN Doc. S/PRST/2008/44 (26 November 2008),
Annex 33 in Documentary Annexes accompanying this Written Statement.
4950 Part II
THE RELEVANT FACTUAL ELEMENTS
Chapter4
THE GEOGRAPHICAL AND HISTORICAL SETTINGS
A. Description of Serbia
105. Serbia is a continental country situated in South-East Europe. Located in the
central part of the Balkan Peninsula, Serbia extends into the southern part of the
Pannonian Plain. Serbia borders Hungary in the North, Romania and Bulgaria in
the East, Macedonia and Albania in the South, and Croatia, Bosnia and
Herzegovina, and Montenegro in the West.
106. Serbia has two autonomous provinces: Vojvodina, situated in Northern Serbia,
and Kosovo, situated in the Southern part of the country. The capital of Serbia is
Belgrade. The administrative centres of the autonomous provinces are Novi Sad
and Pristina, respectively. Serbia covers an area of approximately 88,500 km 2:the
region of central Serbia measures some 56,000 km 2,while Vojvodina covers an
area of 21,500 km 2 and Kosovo 11,000 km 2.3
107. The population of Serbia is roughly 9,400,000, including approximately 6,350,000
Serbs, 1,700,000 Albanians, 300,000 Hungarians, 160,000 Bosniacs, 140,000
Romas and numerous other ethnie groups. While Serbs represent a majority of the
population in the regions of central Serbia and Vojvodina, Albanians are a
majority in Kosovo. These figures are estimates. Due to the Kosovo Albanian
83
For a map of Serbia, see Appendix 1.
51 boycott of the 1991 and 2002 official censuses, precise figures exist only for
84
Vojvodina and central Serbia.
B. Description of Kosovo
I Geographic position of Kosovo
108. Kosovo is situated in the Southern part of the Republic of Serbia, and borders
Montenegro in the North-West, Albania in the West and Macedonia in the South.
It covers an area of approximately 11,000 km 2• The administrative centre is
Pristina and other major urban centres are Pec, Prizren, Kosovska Mitrovica, and
Gnjilane.
109. Metohija is a reg10n encompassmg the southern and western part of the
Autonomous Province of Kosovo and Metohija. The name Metohija derives from
Greek word "metokhia", meaning "monastic estates" - a reference to the large
estates in that region owned by the Serbian Orthodox monasteries since the
Middle Ages.
II Demographic data on Kosovo
110. A complete census has not been conducted in Kosovo since 1981 due to a boycott
of public institutions organized by Kosovo Albanians. According to an UNMIK
assessment from 2003, between 1,700,000 to 1,900,000 people reside in Kosovo,
88% of which are ethnie Albanians, 6% ethnie Serb, 3% Muslim Slavs (Bosnjak,
85
Gorani), 2% Roma, and 1% Turk. Since 1999, more than 200,000 Serbs and
other non-Albanians fled from Kosovo and are still living in central Serbia where
86
they are internally displaced persons.
84Official census in Serbia 2002,p.2 available at: http://webrzs.statserb.sr.gov.yu/axd/Zip/eSn31.pdf
85UNMIK fact sheet 2003 available at: http://www.unmikonline.org/eu/index~fs.pdf
UNMIK fact sheet 2003 available at: http://www.unmikonline.org/eu/index~fs.pdf
86UNHCR source 1July 2008 available at: http://www.unhcr.org.yu/utils/File.aspx?id=321
52111. Over the centuries, the demographic composition of the territory which comprises
Kosovo today has changed significantly.
112. According to several sources, Serbs predominantly inhabited the territory of
present-day Kosovo in the 14 thand 15 centuries. 87
113. Around the 17th century, there is evidence of an increasingly noticeable Albanian
population, which was initially concentrated in Metohija. The war of 1683-1699, in
which the principal combatants were the Ottomans and Austria, led a substantial part
of Kosovo's Serbian population to flee to the Austrian-held southern Hungary
(Vojvodina) and the Military Frontier. Subsequently, there was an influx of Muslim
Albanians from the highlands (Malesia) in the area. This process continued into the
18thcentury, when the "Second Migration of Serbs" took place in 1737. 88
114. A study conducted in 1871 by an Austrian colonel for the internai use of the
Austro-Hungarian army showed that the mutesarifluk of Prizren (an area that
largely corresponds to present-day Kosovo) had roughly 500,000 inhabitants, of
which: 318,000 were Serbs (64%), 161,000 Albanians (32%), 10,000 Roma and
89
Circassians, and 2,000 Turks.
115. In the fighting which precipitated the Berlin Congress in 1878, ethnie violence
took place in both the territory of present-day Kosovo, which remained part of the
Ottoman Empire, and in the regions of Nis and Vranje, which were ceded to
Serbia as part of the Berlin settlements. This violence led to forced migration of
both the Albanians from the Nis and Vranje region and the Serbs from Kosovo.
"Before and after the [Serbian] army's withdrawal, the new
Ottoman Sultan, Abduh Hamid II,unleashed Kosovar Albanian
auxiliaries on the remaining Serbs. Depredations on both sides
87
See Esref Kovacevié et. al.,Oblast Brankoviéa- Opsirni katastarski papis iz 1455 (1972).
88See Gustav Weigand, Ethnographie von Makedonien (1924); see also Dusan Batakovic, "Kosovo and
Metohija~ Identity, Religions & Ideologies", in Kosovo and Metoh~jLiving in the Enclave (2007), pp.
26-28.
89
See Peter Kukolj, Das Fürstenthum Serbien und Türkisch-Serbien, eine militarisch-geographische Skizze
(1871).
53 forced perhaps 30,000 Serbs from the four Kosovo villayets and an
equal number of Albanians from the Nis triangle." 90
116. Immediatelyafter the Balkan Wars of 1912-1913and the incorporationof the territory
of present-dayKosovo into Serbia,anotherround of ethnieviolencetookplace, forcing
thousandsof Albaniansto leave Kosovo, whileduringWorld War I thousandsof Serbs
were forced to leave Kosovo. Between 1918 and 1929,the period of the Kingdom of
Serbs,Croatsand Slovenes,the Serbianpopulationin Kosovoincreased.
"In the same way that the Ottoman authorities up to 1912 had
encouraged the colonization of Kosovo by Albanian Muslims from
elsewhere in the Balkans, the Yugoslav regime during the 1920s
sponsored the migration of Serbs and Montenegrins." 91
117. According to the 1931 Kingdom of Yugoslavia population census, there was at
that time 552,064 inhabitants in the territory that now comprises Kosovo. The
1931 census recorded the religious affiliation and the mother tongue of the
Kingdom's population. The breakdown for the region is as follows. In relation to
the native language of the population, 60.1% (331,549) declared their mother
tongue to be Albanian, 32.6% (180,170) Serb, Croat, Slovene, and 7% (38,907)
declared other languages to be their mother tongue. With respect to religion,
members of the Muslim faith (Albanians and Slavs) comprised 68.8% (379,981)
of the population, members of the Serbian Orthodox Church 27.3% (150,745),
and members of the Roman Catholic Church 3.7% (20,568). 92
118. During World War II thousands of Serbs were forced out of Kosovo by armed
ethnie Albanian groups. 93 Administrative measures adopted after World War II by
90 See John R. Lampe, Yugoslavia as History: Twice There Was a Country (2000), p. 55.
91
See Leonard J. Cohen. Serpent in the Bosom: The Rise and Fall of Slobodan Milosevic (2001), p. 11.
92See Milan Vuckovic and Goran Nikolic, Stanovnistvo Kosova u razdoblju 1918-1991.godine (1996), pp.
80-82; see also Julie Mertus, Kosovo, How Myths and Truths Started a War (1999), pp. 315-316.
93See Noe! Malcolm, Kosovo A short history (2002), pp. 293-294. According to one estimate, between
70,000 and 100,000 of Serbs were forced out of Kosovo during World War II, while around 11,000 died as
an immediate result of harassment and atrocities, see M. Bjelajac, "Migrations of Ethnie Albanians in
Kosovo", 38 Balcanica 219,227 (2007).
54 the Communist authorities significantly hampered the return of displaced
persons. 94
119. According to the 1961 Yugoslav population census, Kosovo had a total population
of 963,988, of which 646,805 were Albanians (67,2%), 227,016 Serbs (23,6%),
95
and 37.588 (3,9%) Montenegrins.
96
120. In the period from 1960 to 1990, another 70,000 Serbs left Kosovo. According
to the 1981 Yugoslav population census, Kosovo had a total population of
1,584,558: 1,226,736 Albanians (77.4%), 209,498 Serbs (13.2%), and 27,028
Montenegrins (1.7%). 97
121. By 1991, Albanians comprised the great majority of the population in the
Southern and Western parts of Kosovo. In the central and Eastern parts of
Kosovo, Albanians constituted the majority of the population, although in these
regions a significant Serbian population was also present. In the Northern part of
Kosovo, which borders central Serbia, Serbs represented a majority.
122. Kosovo Albanians boycotted the Yugoslav census organized in 1991. The Federal
Bureau of Statistics made corrections and projections based on the previous
census results (1948-1981), and estimated the total population of Kosovo to
constitute 1,956,196 citizens: 1,596,072 Albanians (81.6%), 194,190 Serbs
(9.9%), 66,189 Muslims (3.4%), 45,760 Romas (2.34%), 20,365 Montenegrins
(1%), 10,445 Turks (0.5%), 8,062 Croats (Janjevci) (0.4%), 3,457 Yugoslavs
98
(0.2%), and 11,656 others (0.6%). However, these figures are only estimates.
94
See Batakovic, op. cit., pp. 58-59.
95See Momcilo Pavlovic, Kosovo Under Autonomy 1974-1990, p. 10, available at:
http://www.cla.purdue.edu/ academic/history /facstaff/Ingrao/si/Team IReporte.pdf
96
Ibid. p. 26, see, also, Hivzi Islami, Conflict or dialogue (1994), author estimates that around 52,000 Serbs
left Kosovo between 1966 and 1981 and that after 1981 another 20,000 Serbs left Kosovo.
97See "Popis stanovnistva, domaéinstava i stanova u 1981. godini", Statisticki bilten SFRJ br. 1295, pp. 16-
17;Some authors claim that Kosovo Albanians drastically overestimated their own numbers, see Pavlovic,
op.cit., p. 10.
98
"Procena za Kosovo i Metohiju - podaci po naseljima i opstinama", Papis stanovnistva, domacinstava i
stanova ipoljoprivrednih gazdinstava 1991. godine, vol. 17 (1997), pp. 68-69..
55123. Since June 1999, more than 200,000 Serbs and other non-Albanians have fled
their homes in Kosovo. Most went to central Serbia, while some re-located to a
few Serbian enclaves within different parts of Kosovo, particularly in the
Northem part of Kosovo.
C. Kosovo in Historie Perspective
124. Slavs came to the territories that form today's Kosovo in the seventh-century. The
largest influx of migrants occurred during the decade beginning 630 AD. Serbs
were Christianized in several waves during the course of the seventh to ninth
centuries, with the last wave taking place during the second part of the 9 th century.
In the second half of the 9 thcentury, the North-Western part of Kosovo became
part of the Serbian Principality of Rascia, nominally as a Byzantine fiefdom,
while the South - also populated largely by Slavs - remained part of the Byzantine
Emp1reproper. 99
125. In the late 830s and 840s, the territory of present-day Kosovo was seized by the
Bulgarian Empire. After almost 250 years of conflict between the Bulgarian and
Byzantine Empires, Byzantine forces re-established control over the territory of
th 100
present-day Kosovo in the second half of the 11 century.
126. After a series of conflicts between Racsia and the Byzantine Empire that took
th th
place from the 11 to 13 centuries, Kosovo became part of the Serbian State. In
th
1217 Serbia was recognized as a kingdom. In the 13 century, Kosovo became the
centre of Serbian political and religious life.
127. In 1389, during the Ottoman advance through the Balkans, the Ottomans invaded
Serbia and met the Serbian Army in Kosovo, at Kosovo Polje near Pristina.
Leaders of both armies died in the battle, and the battle itself ended without a
decisive victor. After another great battle between the Hungarian and Ottoman
99
See Vladimir Corovic, Istorija Srba (2000), pp. 85-88.
100Ibid., pp. 96-100.
56 troops in 1448, Kosovo was directly incorporated into the Ottoman Empire after a
decisive defeat of Serbia in 1459.
128. The Ottoman rule over Kosovo lasted almost five hundreds years. During this
period, the Ottoman Empire represented the greatest political and commercial
power in the Balkans, although this position declined considerably since the 19 th
century.
129. Through the centuries of Ottoman rule, different administrative arrangements
existed. During the first centuries of Ottoman rule, several administrative districts,
known as "sanjaks", govemed the territory of present-day Kosovo.
130. In the second half of the 19 th century, a new administrative division of the
Ottoman Empire was introduced, with vilayets as new administrative districts.
From that period until 1912, the vilayet of Kosovo was a territorial entity within
the Ottoman Empire. However, the Kosovo vilayet covered an area which was
much larger than today's Kosovo and which was also known as Old Serbia ("Alt
Serbien"). Thus, the territory of the Kosovo vilayet also incorporated parts of
what is today North-Western Macedonia, including the vilayet capital city Skopje
(then Üsküb), parts of the present-day Sanjak (Sandzak) region cutting into
present-day central Serbia and Montenegro (formerly Sanjak of Novi Bazar),
along with the Kukes municipality and the surrounding region in present-day
101
Northem Albania.
131. The vilayet boundaries shifted as the Ottoman Empire lost territory to
neighbouring States in the Treaty of Berlin of 1878, while parts were also
intemally transferred to Monastir vilayet and from Salonica vilayet. In 1878, the
Sanjak of Novi Bazar, a subdivision of the Kosovo vilayet, fell under Austro
Hungarian military administration, as stipulated by the Treaty of Berlin.
132. In 1912, during the First Balkan War, in which Serbia, Montenegro, Greece and
Bulgaria fought against the Ottoman Empire, the latter lost most of its European
10For a map of the Kosovo Vilayet, see Appendix 7.
57 territories. Most of the territory of present-day Kosovo was incorporated into the
Kingdom of Serbia, while the region of Metohija was incorporated into
Montenegro. The new borders of Serbia and of Montenegro were determined in a
series of treaties, starting with the Treaty of London of 17/30 May 1913, the
Treaty of Bucharest of 28 July/10 August 1913, and border agreements between
Greece and Serbia as well as Montenegro and Serbia. 102Under Article 3 of the
Treaty of London, the frontiers of Albania, including those between Serbia and
Albania, were to be determined by the Great Powers and this was done after
World War I.103 It follows that the integration of the territory of present-day
Kosovo to Serbia was internationally recognized and guaranteed by the
aforementioned international treaties and decisions.
133. In the aftermath of World War I, in 1918, Montenegro joined Serbia, which was
then continued by the Kingdom of the Serbs, Croats and Slovenes. The latter was
104
renamed the Kingdom of Yugoslavia in 1929.
134. During World War II,the occupation and partition of Yugoslavia by the Axis
Powers from 1941 until 1945 led to the annexation of most of Kosovo's present
territory to the Italian-occupied Albania. A smaller part of northern Kosovo,
including Mitrovica, remained with Serbia (under German occupation), while the
western part of Kosovo, including Kacanik, was occupied by Bulgaria.
135. Following the end of World War II, Yugoslavia's occupation ended and a new
government led by Communist guerrilla leader Josip Broz (Tito) was formed. A
Constitution adopted in 1946 established the Federal People's Republic of
Yugoslavia, which was subsequently renamed the Socialist Federal Republic of
102See Traité de Paix concluà Londres le dix-sept (trente) mai mil neuf cent treize entre la Turquie et les
Alliés balkaniques; Traité de Paix conclu et signécarest le 28 juillet 1913 entre la Serbie, la Grèce, le
Monténégro et la Roumanie d'une part et la Bulgarie d' autre part; Accord intervenu entre le Royaume de
Serbie et le Royaume de Grèce concernant la frontière serbo-grecque [3/16 August 1913]; Accord
intervenu entre le Royaume de Serbie et le Royaume de Monténégro concernant la frontière serbo
monténégrine [30 October 1913 (Julian calendar)]; ail reprinted in Annexes 6-9 in Documentary Annexes
accompanying this Written Statement. For a map of Serbia and the Balkans in 1914, see Appendix 6.
103See Question of the Monastery of Saint-Naoum (A/banian Frontier), Advisory Opinion of 4 September
1924, P.C.l.J., Series B, No. 9, especially pp. 9-15.
104
See Zakon o nazivu i podeli Kraljevine na upravna podrucja [Law on the Name and Division of the
Kingdom into Administrative Regions,], Sluzbene novine Kraljevine Jugoslavije [Official Gazette of the
Kingdom of Yugoslavia ], no. 233/1929,§ 2-3.
58 Yugoslavia (hereinafter: "SFRY" or "the former Yugoslavia"). Kosovo became an
105
autonomous province (region) of Serbia.
136. After the dissolution of the SFRY, Serbia and Montenegro formed the Federal
Republic of Yugoslavia (FRY) on 27 April 1992. Kosovo continued to be an
autonomous province of Serbia. After two years of the conflict between Serbian
govemment forces and the Kosovo Albanian rebels and 78 days of NATO
bombing of Serbia, the UN Security Council passed UN Security Council
Resolution 1244 on 10 June 1999, which placed Kosovo under UN
administration.106
105
See infra Chapter 5, Section A.
10See supra Chapter 8, para. 705 ff.
5960 Chapter 5
THE KOSOVO CRISIS - LEGAL AND FACTUAL BACKGROUND
A. Legal Status of Kosovo
I The Kingdom of Serbia (1912-1918)
137. The territory of present-day Kosovo was ruled by the Ottoman Empire until 1912.
During this time it formed part of the Kosovo vilayet, an administrative unit of the
Ottoman Empire, which was much larger than the territory of present-day Kosovo
because it included other parts of what is now Serbia, as well as parts of what are
now States of Montenegro, Macedonia and Albania. 107
138. As already noted, following the Balkan wars of 1912-1913, the Kingdom of
Serbia assumed control over, inter alia, most of the present territory of Kosovo,
with the Kingdom of Montenegro assuming control over the rest of it. At the time,
Serbia was a State divided into districts ("okrug"); districts were divided into
108
counties ("srez"), which were, in tum, divided into municipalities ("opstina").
Municipalities and districts were units of local self-government. 109 In addition to
self-governing competences, they performed State competences that were
assigned to them. 110After integration into Serbia, the present territory of Kosovo
111
was also divided into districts, counties and municipalities. However, the
constitutional provisions and laws of Serbia were gradually introduced to the
107
For a map of the Kosovo Vilayet, see Appendix 7
108Ustav Kraljevine Srbije [Constitution of the Kingdom of Serbia], Srpske novine [Serbian Gazett(7, No.
June 1903), Article 5.
109
110Ibid., Articles 160-161.
Ibid., Article 164.
111Uredba o ureâenju osloboâenih oblasti [Decree on Organization of Liberated Regions], Srpske novine
[Serbian Gazette], No. 181/1913 (21 August 1913); Administrativna podela oslobodjenih krajeva
[Administrative division of liberated areas], Srpske novine [Serbian Gazette], No. 186/1913 (27 August
1913).
61 territory and the guarantees of local self-government were not applied until after
World War 1,i.e. 1919. 112
II The Kingdom of Serbs, Croats and Slovenes/Yugoslavia (1918-1941)
139. After World War 1,the Kingdom of Serbia was continued by the Kingdom of the
Serbs, Croats and Slovenes. Its 1921 Constitution divided the State into
administrative units - municipalities ("opstine"), counties ("srez"), districts
113
("okrug") and, finally, regions ("oblasti"). It also established elected local self
government for municipalities, counties and regions and endowed them with
114
certain self-governing competences. Acts of local self-government authorities
were subject to control of legality by the regional prefect ("zupan") and a high
administrative court (State Council). 115
140. The territory of present-day Kosovo was divided into three different reg1ons
(Ras a reg10n, osovo reg10n,an d V ranJe reg1on . 116
141. In 1929, the Kingdom of the Serbs, Croats and Slovenes changed its name to
Yugoslavia and was divided into 9 provinces ("banovina"), which were in turn
divided into administrative units called counties ("srez") and municipalities
117
("opstina"). Administrative lines between the provinces were intentionally
drawn to avoid borders established along ethnie lines or pre-World War I borders.
The territory of present-day Kosovo was divided between the Zeta province in the
East, the Vardar province in the South-East, and the Morava province in the
North-East.
112
113See Dragoslav Jankovié and Mirko Mirkovié,Drzavnopravna istorija Jugoslavije (1997), pp. 157-158.
Ustav Kraljevine Srba, Hrvata i Slovenaca [Constitution of the Kingdom of the Serbs, Croats and
Slovenes], Sluzbene novine Kraljevine Srba, Hrvata i Slovenaca [Official Gazette of the Kingdom of the
Serbs, Croats and Slovenes], No.142 a/1921, Article 95. For a map of the Kingdom of the Serbs, Croats
and Slovenes, see Appendix 5.
114
115Ibid., Article 96.
Ibid., Articles 99 and 101.
116See Uredba o podeli zemlje na oblasti [Decree on the division of the country into regions], Sluzbene
novine Kraljevine Srba, Hrvata i Slovenaca [Official Gazette of the Kingdom of the Serbs, Croats and
Slovenes], No. 92/1922.
117
Zakon o nazivu i podeli Kraljevine na upravna podrucja [Law on the Name and Division of the Kingdom
into Administrative Regions,], Sluzbene novine Kraljevine Jugoslavije [Official Gazette of the Kingdom
of Yugoslavia], No. 233/1929, §§ 2-3. For a map of the Kingdom of Yugoslavia, see Appendix 4.
62142. The administrative division of the Kingdom of Yugoslavia was reflected in the
new Yugoslav constitution of 1931 with slight changes of the administrative
118
lines. The 1931 constitution also provided for self-government in provinces and
municipalities, but the legality of their acts was subject to control by provincial
119
prefects ("ban") and the high administrative court (State Council). Institutions
of provincial self-government comprised directly elected chambers with the power
to adopt decrees with the force of law, and a council which was an executive body
elected by the chamber. 120
143. In April 1941, Yugoslavia was occupied by the Axis powers.
III. Yugoslavia after World War II (1945-1991)
(1) Decisions of the Anti-fascist Council of National Liberation of Yugoslavia
144. The constitutional order of post-World War II Yugoslavia 121 originated in
decisions of the Anti-fascist Council of National Liberation of Yugoslavia
("Antifasisticko veée narodnog oslobodenja Jugoslavije" - AVNOJ) that were
adopted during World War II. According to its decision on "the building of
Yugoslavia on the federal principle" adopted on 29 November 1943,
"... in order to effect the principle of sovereignty of the nations of
Yugoslavia ... Yugoslavia is built and will be built on the federal
principle, which shall ensure full equality of Serbs, Croats,
Slovenes, Macedonians and Montenegrins, that is the nations of
Serbia, Croatia, Slovenia, Macedonia, Montenegro and Bosnia and
· "122
Herzegovma.
118Ustav Kraljevine Jugoslavije [Constitution of the Kingdom of Yugoslavia], Sluzbene novine Kraljevine
Jugoslavije [Official Gazette of the Kingdom ofYugoslavia], No. 207/1931, Articles 82-83.
119
120Ibid., Articles 9 and 93.
Ibid., Article 89, paras. 1-2, and Article 90,1.ara.
121For a map of the former Yugoslavia, see Appendix 3.
122Deklaracija drugog zasedanja Antifasistickog veéa narodnog oslobodenja Jugoslavije o izgradnji Jugosla
vije na federativnom principu [Decision of the Second Session of the Anti-fascist Council of National
Liberation of Yugoslavia on the building of Yugoslavia on the federal principle},i-fascist Council of
63145. Further, this decision also provided that "[n]ational minorities in Yugoslavia shall
123
be guaranteed all national rights."
146. Thus, the new constitutional order was to be established by the five "nations"
("narodi") of Yugoslavia (Serbs, Croats, Slovenes, Macedonians and
Montenegrins) on the federal principle with six federal units (Serbia, Croatia,
Slovenia, Macedonia, Montenegro, and Bosnia and Herzegovina). The national
minorities on the territory of Yugoslavia, including Kosovo Albanians, were to be
accorded all rights, but were not regarded as constituent components of the
Yugoslav federation.
(2) Establishment of Kosovo as a territorial unit
147. The territory of present-day Kosovo was for the first time established as a single
territorial unit in 1945 by two laws adopted by the Presidency of the National
Assembly of Serbia. First, according to the Law on the Administrative Division
124
of Serbia, Serbia consisted of administrative districts, as well as of the
Autonomous Province of Vojvodina and the Autonomous Kosovo-Metohija
Region (Article 1). Second, the Law on the Establishment and Organizational
Set Up of the Autonomous Kosovo-Metohija Region 125 determined the territory
of this region by specifying administrative districts that belonged to it (Article
1).It also set out the structure and competences of regional organs (Articles 3 &
5-9), as well as providing the principle of equality of all nationalities
("narodnosti") 126and citizens and the right to education in their own language
(Article 4-5).
National Liberation of Yugoslavia, Decision No. 329 November 1943, Annex 42 in Documentary
Annexes accompanying this Written Statement.
123Ibid., para. 4.
124
Zakon o administrativnoj podeli Srbije [Law on the Administrative Division of Serbia], Sluzbeni glasnik
Srbije [Official Gazette of Serbia]. No. 28/1945, Annex 43 in Documentary Annexes accompanying this
Written Statement.
125Zakon o ustanovljenju i ustrojstvu Autonomne kosovsko-metohijske oblasti [Law on the Establishment and
Organizational Set Up of the Autonomous Kosovo-Metohija Region], Sluzbeni glasnik Srbije [Official
126azette of Serbia], No. 28/145, Annex 44 in Documentary Annexes accompanying this Written Statement.
For the meaning of the term "nationality" ("narodnost") in the constitutional practice of the former
Yugoslavia, see infra para. 157.
64 (3) The 1946 Constitution of Yugoslavia and the 1947 Constitution of Serbia
The 1946 Constitution of Yugoslavia
148. A federal constitution adopted in 1946 127defined the Federal People's Republic of
Yugoslavia as a federal and the peoples' republic and as a community of equal
nations which, on the basis of their right to self-determination, including the right
to secession, had expressed their will to live together in a federal state (Article 1).
The nations of Yugoslavia were Serbs, Croats, Slovenes, Macedonians and
Montenegrins, as noted in the decisions of the Anti-fascist Council of National
Liberation of Yugoslavia of 29 November 1943. Later on, ethnie Muslims
(Bosniacs) were also to be recognized as a nation in Yugoslavia.
149. The Federal People's Republic of Yugoslavia consisted of six republics: Serbia,
Croatia, Slovenia, Macedonia, Montenegro, and Bosnia and Herzegovina (Article
2, paragraph 1).
150. The 1946 Federal Constitution confirmed that Serbia included the Autonomous
Province of Vojvodina and the Autonomous Kosovo-Metohija Region (Article 2,
paragraph 2). It should be noted that, in contrast to Vojvodina which was an
autonomous province, Kosovo-Metohija was an autonomous region which was a
status of lesser autonomy than an autonomous province. The 1946 Federal
Constitution further provided that the scope of the autonomy of these two
territories was to be determined by the republican constitution (Article 103). The
highest legal act adopted in an autonomous province or region was a statute,
which had to be in accordance with the federal and republican constitutions, and
was subject to the approval of the republican parliament (Article 104). The federal
National Assembly consisted of two chambers: the Federal Chamber elected on
the basis of equal vote of all citizens; and the Chamber of Peoples in which
127Ustav Federativne Narodne Republike Jugoslavije [Constitution of the Federal People's Republic of
Yugoslavia],Sluzbeni list Federativne Narodne Republike Jugoslavije [Official Gazette of the Federal
People's Republic of Yugoslavia], No. 10/1946, Annex 45 in Documentary Annexes accompanying this
Written Statement [hereinafter: "1946 Federal Constitution].
65 citizens of each republic, autonomous province, and autonomous region elected
30, 20, and 15representatives, respectively (Articles 53-54).
The 1947 Constitution of Serbia
151. In 1947, Serbia adopted its constitution. The 1947 Constitution of Serbia defined
its territory to include, inter alia, the Autonomous Kosovo-Metohija Region
128
(Article 3). Itguaranteed rights of autonomy to both Kosovo-Metohija and
Vojvodina, which were granted the right to adopt their own statutes subject to
approval of the National Assembly of Serbia (Article 13).
152. The 1947 Constitution of Serbia also regulated the administrative structure and
autonomous competences of Vojvodina (Articles 90-105) and Kosovo-Metohija
(Articles 106-118). The competences of Kosovo-Metohija related to the
management of economic and cultural development of the region, securing respect
for law and rights of citizens; protection of equality and cultural rights of
nationalities in the region; management of social protection and health services, as
well as management of elementary and high schools within the framework of the
Serbian educational plan (Article 106).
153. According to the 1947 Constitution of Serbia, Kosovo-Metohija had a
representative body which, inter alia, adopted its statute, its budget and decisions
as binding regulations (Article 107). It also elected an executive and
administrative body (Article 116). Decisions adopted by provincial organs had to
be in accordance with the constitutions and laws of Yugoslavia and Serbia, as well
as in accordance with decisions of the presidiums of the federal and Serbian
parliaments, failing which they could be reversed or annulled by the central
authorities (Article 152). Kosovo, unlike Vojvodina, did not have its own courts.
128Ustav Narodne Republike Srbije [Constitution of the People' s Republic of Serbia], Sluzbeni glasnik
Narodne Republike Srbije [Official Gazette of the People's Republic of Serbia], No. 3/1947, Annex 46 in
Documentary Annexes accompanying this Written Statement.
66154. After the federal constitution amendments of 1953, the statutes of the
Autonomous Province of Vojvodina and the Autonomous Kosovo-Metohija
Region were no longer subject to the approval of the Serbian parliament. 129
(4) The 1963 Constitution of Yugoslavia, the 1963 Constitution of Serbia and amendments
thereto
The 1963 Constitution of Yugoslavia
155. The new federal Constitution of Yugoslavia was adopted in 1963 and it changed
the name of the federation to the Socialist Federal Republic of Yugoslavia
130
(hereinafter SFRY).
156. In its preamble, the 1963 Federal Constitution reaffirmed that the nations of
Yugoslavia, on the basis of their right to self-determination, including the right to
secession, had united in "a federal republic of free and equal nations and
nationalities ["narodnosti"] and created a socialist federal community of the
working people - the Socialist Federal Republic of Yugoslavia." (Preamble, I).
157. In addition to the "nations" of Yugoslavia, there were thus also "nationalities".
The term "nationality" ("narodnosti") needs to be explained in more detail, as it is
relevant for the further discussion of the constitutional system of Yugoslavia. The
term is difficult to translate into foreign languages. Its original meaning is "the
fact of belonging to a people", but in the law and political language of the SFRY
it was used as a term for national minorities. 131 In the present submission, the
terms "nationality" and "national minority" will be used interchangeably.
129Ustavni zakon o osnovama drustvenog ipolitickog ureâenja Federativne Narodne Republike Jugoslavije i
saveznim organima vlasti [Constitutional Law on the Basis of Social and Political Order of the Federal
People's Republic of Yugoslavia and Federal Organs of Power], Sluzbeni list Federativne Narodne
Republike Jugoslavije [Official Gazette of the Federal People's Republic of Yugoslavia], No. 3/1953,
Article 114.
130Ustav Socijalisticke Federativne Republike Jugoslavije [Constitution of the Socialist Federal Republic of
Yugoslavia], Sluzbeni list Socijalisticke Federativne Republike Jugoslavije [Official Gazette of the
SFRY], No. 14/1963, Annex 47 in Documentary Annexes accompanying this Written Statement
[hereinafter:963 Federal Constitution"].
131
See Vojin Dimitrijevié, "Nationalities and Minorities in the Yugoslav Federation", in Yoram Dinstein &
Mala Tabory (eds.), The Protection of Minorities and Human Rights (1992), pp. 423-424.
67158. Article 1 of the 1963 Federal Constitution defined the SFRY as a "federal state of
voluntarily united and equal nations" and "a social democratic community based
on the power of the working people and self-management". As before, the SFRY
was composed of Bosnia and Herzegovina, Macedonia, Slovenia, Serbia, Croatia
and Montenegro (Article 2, paragraph 1). These republics were defined as a "state
socialist democratic community ["drzavna demokratska socijalisticka zajednica"]"
(Article 108, para. 1).
159. The 1963 Federal Constitution envisaged a general possibility of establishing
autonomous provinces within republics, and determined that Vojvodina, and
Kosovo and Metohija were two autonomous provinces existing within Serbia
(Article 111). Autonomous provmces were defined as "socio-political
communities within a republic" ("u sastavu republike", Article 112, para. 1). Like
the 1946 Federal Constitution, the 1963 Federal Constitution provided that the
competences of autonomous provinces and the organization of their organs were
to be determined by republican constitutions (Art. 112, para. 2).
The 1963 Constitution of Serbia
160. The new Constitution of Serbia, adopted in 1963, defined the competences of the
autonomous provinces to include: regulating matters of general interest for the
province in the fields of economy, education, culture, health and social protection;
execution of federal and republican legislation when so authorized; and the
maintenance of public order and peace (Article 129). 132
161. Autonomous provinces had an assembly as a representative body and an executive
council (Articles 136-138). A province could also create its own agencies in the
fields of provincial competence (Article 135). The provincial assembly had the
competence to adopt a provincial statute, as well as to issue decisions as
regulations of general application (Articles 129 & 139). These had to be m
accordance with the constitution and laws of Serbia (Article 161).
132Ustav Socijalisticke Republike Srbije [Constitution of the Socialist Republic of Serbia], Sluzbeni glasnik
Socijalisticke Republike Srbijeicial Gazette of the Socialist Republic of Serbia], No. 14/1963, Annex
48 in Documentary Annexes accompanying this Written Statement.
68The 1968 amendments to the 1963 Constitution of Yugoslavia
133
162. The 1963 Federal Constitution was amended in 1968. One of the amendments
provided that Article 2, paragraph 1, of the 1963 federal constitution should be
changed and instead of the word "Serbia", it should contain the following clause:
"Socialist Republic of Serbia with the Socialist Autonomous
Region of Vojvodina and the Socialist Autonomous Region of
Kosovo which are its parts" ("u njenom sastavu"). 134
163. The 1968 federal constitutional amendments expanded the rights of autonomous
provinces. Most importantly, they were granted the right to adopta constitutional
law that would define their competences (Amendment XVIII, para. 2(1)). This
provincial constitutional law had to be in accordance with the principles of the
Constitution of Yugoslavia, as well as in accordance with the republican
constitution (ibid.,para. 2(2)).
164. Autonomous provinces were also granted the right to establish their own judiciary
headed by a supreme court (ibid.,para. 4).
The 1969 amendments to the 1963 Constitution of Serbia
165. As a consequence of these changes, the 1963 Constitution of Serbia was amended
135
to implement the federal amendments. The principle on which the legislative
competence was exercised was also changed so that the provinces gained a
general competence to legislate in all areas, while the laws applicable to the whole
territory of Serbia could be adopted by Serbian parliament only in the areas
133Ustavni amandmani [Constitutional Amendments], Sluzbeni list Socijalisticke Federativne Republike
Jugoslavije [Official Gazette of the SFRY], No. 55/1968, Annex 49 in Documentary Annexes
accompanying this Written Statement.
134
135Ibid., Amendment VII.
Ustavni amandmani [Constitutional Amendments], Sluzbeni glasnik Socijalistù5ke Republike Srbije
[Official Gazette of the Socialist Republic of Serbia], No. 5/1969, Annex 50 in Documentary Annexes
accompanying this Written Statement.
69 enumerated by the Constitution itself. 136The same principle applied to executive
authorities. 137
166. In 1969, the Kosovo assembly adopted a constitutional law in which it further
138
specified the competences of the province.
The 1971 amendments of the 1963 Constitution of Yugoslavia
167. Subsequent amendments to the 1963 Federal Constitution were adopted m
1971. 139The SFRY was defined as:
"a federal state having the form of a state community of voluntarily
united nations and their socialist republics, and of the socialist
autonomous provinces of Vojvodina and Kosovo which are parts of
the Socialist Republic of Serbia..." (Amendment XX, para. 2)
The republics were defined as
"state[s] based on the sovereignty of the people and the power of
and self-management by the working class and all working people,
and socialist self-managing democratic communit[ies] of working
people and citizens, and of nations and nationalities having equal
rights" (ibid., Amendment XX, para. 3)
The autonomous provinces were defined as
"autonomous socialist self-managing democratic socio-political
communities in which working people, nations, and nationalities
136Ibid., Amendment V, para. 4.
137
138Ibid., Amendment V, para. 10.
Ustavni zakon Socialistù5ke Autonomne Pokrajine Kosova [Constitutional Law of the Socialist Autono
mous Province of Kosovo], Sluzbeni list Socijalistù5keAutonomne Pokrajine Kosova [Official Gazette of
the Socialist Autonomous Province of Kosovo], No. 6/1969.
139Ustavni Amandmani XX do XLII [Constitutional Amendments XX to XLII], Sluzbeni list Socijalisticke Fe
derativne Republike Jugoslavije [Official Gazette of the SFRY], No. 29/1971, Annex 51 in Documentary
Annexes accompanying this Written Statement.
70 realize their sovere1gn rights, and when so specified by the
Constitution of the Socialist Republic of Serbia in the common
interests of the working people, nations and nationalities of the
republic as a whole - they do so, also within the republic." (ibid.,
Amendment XX, para. 4)
168. A comparison of these definitions shows that republics and autonomous provinces
differed so whereas the former were "states" and "based on the sovereignty of the
people", the latter were not. Thus, an autonomous province was neither a "state"
nor "based on the sovereignty of the people", but rather an "autonomous ...
communit[y]" in which "the working people, nations and nationalities realize their
sovereign rights".
169. By virtue of the 1971 amendments, the autonomous provinces were granted the
right to have representatives in federal organs in addition to the federal
parliament, namely the presidency, the govemment (federal executive council),
and the federal constitutional court (ibid.,Amendments XXXVI, para. 1;
XXXVIII, para. 1; and XL). Further, the federal constitution could not be
amended without consent of all republics and autonomous provinces (ibid.,
Amendment XXXII).
IV Subsequent amendments to the Constitution of Serbia and the Constitution of
Kosovo
170. Subsequent to federal constitutional amendments, Serbia adopted amendments to
140
its constitution in1972. These amendments, inter alia, enumerated areas which
could be regulated by laws applicable to the whole territory of the republic and
allowed for a possibility to adopt such laws in other areas as well, on the basis of
agreement with the autonomous provinces (Amendment IX, paras. 1 & 2).
140Ustavni amandmani IX do XVI [Constitutional Amendments IX to XVI], Sluzbeni list Socijalistù5ke
Republike Srbije [Official Gazette of the Republic of Serbia], No. 8/1972.
71171. The provmce of Kosovo also amended its Constitutional Law in 1972. 141 The
amendments inter alia further specified the competences of the province and its
organs, and created the National Bank of Kosovo as an "institution of the unified
monetary system of Yugoslavia", as well as the Constitutional Court of Kosovo
(Amendment IV, para. 1, & Amendment X).
(5) The 1974 constitutions and their amendments
142
172. A new constitution of the SFRY was adopted in 1974, and this was shortly
followed by the adoption of new constitutions of the republics, including
Serbia, 143and of the autonomous provinces, including Kosovo. 144
The 1974 Federal Constitution
173. The 1974 Federal Constitution retained the definition of the federation introduced
by the 1971 amendments (1974 Federal Constitution, Article 1, and supra para.
167). As before, the two autonomous provinces of Vojvodina and Kosovo were
145
mentioned as being an integral part of Serbia ("u njenom sastavu").
174. The Preamble to the 1974 Federal Constitution repeated what was contained in the
previous Yugoslav constitutions after the Second World War- that "the nations of
141
Amandmani /-X na Ustavni zakon SAP Kosova [Amendments I-X to the Constitutional Law of SAP
Kosovo], Sluzbeni list Socijalisticke Autonomne Pokrajine Kosova [Official Gazette of the Socialist
Autonomous Province of Kosovo], No. 4/1972.
142
Ustav Socijalisticke Federativne Republike Jugoslavije [Constitution of the Socialist Federal Republic of
Yugoslavia], Sluzbeni list Socijalisticke Federativne Republike Jugoslavije [Official Gazette of the
SFRY], No. 9/1974, (hereinafter: 1974 Federal Constitution), Annex 52 in Documentary Annexes
accompanying this Written Statement [hereinafter: "1974 Federal Constitution'].
143
Ustav Socijalisticke Republike Srbije [Constitution of the Socialist Republic of Serbia], Sluzbeni glasnik
Socijalisticke Republike Srbije[Official Gazette of the Socialist Republic of Serbia], No. 8/1974,
(hereinafter: 1974 Serbian Constitution), Annex 53 in Documentary Annexes accompanying this Written
Statement.
144
Ustav Socijalisticke Autonomne Pokrajine Kosova [Constitution of the Socialist Autonomous Province of
Kosovo], Sluzbeni list Socijalisticke Autonomne Pokrajine Kosova [Official Gazette of the Socialist
Autonomous Province of Kosovo], No. 4/1974, (hereinafter: 1974 Kosovo Constitution), Annex 54 in
Documentary Annexes accompanying this Written Statement.
145
1974 Federal Constitution, Article 2.
72 Yugoslavia" had the right to self-determination, including secession. 146 As
discussed above, the nations of Yugoslavia were the Serbs, Croats, Slovenes,
Macedonians and Montenegrins, as noted in the decisions of the Anti-fascist
Council of National Liberation of Yugoslavia of 29 November 1943. 147 In
addition, ethnie Muslims (Bosniacs) were subsequently also recognized as a
nation of Yugoslavia and one of the three constituent nations in Bosnia and
148
Herzegovina, together with Croats and Serbs.
175. The 1974 Federal Constitution specified areas of federal legislative competence
(Article 281). In certain cases, most of which concemed the economic sphere,
federal laws were adopted with consent of the republics and provinces (Article
286). Federal legislation was in principle enforced by republican and provincial
authorities, unless the 1974 Federal Constitution provided otherwise (Article 273,
para. 1).
176. Amendments to the 1974 Federal Constitution were to be adopted following a
complicated procedure. Decisions were taken by the Federal Chamber of the
SFRY parliament, with the consent of the assemblies of all republics and
149
autonomous provinces. The consent of the republics and autonomous provinces
was required at two stages: first, for the decision to initiate the amending
procedure and, second, for the decision to adopt an amendment, which was taken
by a two-thirds majority of members of the federal chamber of the SFRY
parliament (Articles 400-402).
177. Federal bodies were composed on the basis of equal participation of the republics.
As for the provinces, their participation was in principle less than that of the
republics. For example, each republic had thirty delegates and each province had
146Basic Principle I of the 1974 Federal Constitution starts with the following words: "[t]he nations of
Yugoslavia proceedings from the right of every nation to self-determination, including the right to
147ecession..."
See supra paras. 144-146.
148See Article I of the Constitution of Bosnia and Herzegovina, Sluzbeni list Bosne i Hercegovine [Official
Gazette of Bosnia and Herzegovina], No. 4/1974.
149
If the changes concerned relations between republics or between republics and federation, they required
only consent of assemblies of the republics and not of provinces, see the 1974 Federal Constitution.,
Article 398.
73 twenty delegates in the federal chamber of the SFRY Assembly (1974 Federal
Constitution, Article 291, para. 1). The Chamber of Republics and Provinces in
the SFRY Assembly was composed of 12 delegates from each republican
assembly and 8 delegates from each provincial assembly (Article 292, para. 1).
The Federal Executive Council (federal govemment) and the Federal Court were
composed on the basis of equal participation of the republics and the appropriate
("odgovarajuée") representation of the provinces (Art. 348, para. 1, & Art. 370,
para. 2). The Constitutional Court of Yugoslavia was composed of two members
from each republic and one member from each autonomous province. The SFRY
Presidency had one member from each republic and province (Article 321).
178. Despite their participation in the federal bodies and their role in the Yugoslav
federation, the autonomous provinces were not federal units. Definitions of
republic and autonomous province in the 1974 federal Constitution remained
150
almost identical to those introduced by the 1971 amendments. As discussed
above, the main difference between republics and autonomous provinces (in the
1971 amendments and consequently in the 1974 federal Constitution) was that
republics were defined as "states" "based on sovereignty of people" while
autonomous provinces were not (see supra para. 168), and were expressly
described as part of Serbia.
179. The Constitutional Court of Yugoslavia confirmed that the autonomous provinces
were not federal units of the Yugoslav federation when it held that
"... under the SFRY Constitution, the SAP [Socialist Autonomous
Province] of Vojvodina and the SAP of Kosovo are not federal
units like the republics, but that they are autonomous socio-political
communities within the SR [Socialist Republic] of Serbia." 151
150Except that an autonomous region was also said to be "based on power and self-management of the
151orking class and ail working peoples" (ibid., Articles 3-4 and supra para. 167).
"To znaci da, po ustavu SFRJ, SAP Vojvodina i SAP Kosovo nisu federalne jedinice, kao sto su
republike, veé su to autonomne drustveno-politicke zajednice u sastavu SR Srbije." Constitutional Court
of Yugoslavia, Decision of 19 February 1991, II-U-broj 87/90, [Odluka o ocenjivanju ustavnosti Ustavne
deklaracije o Kosovu kao samostalnoj i ravnopravnoj jedinici u okviru federac(konfederacije)
Jugoslavije kao ravnopravnog subjekta sa ostalim jedinicama u federac(konfederaciji)], Official
74180. In conclusion, while the autonomous provinces of Kosovo and Vojvodina were an
important part of the SFRY, they were not federal units. At the same time, they
were consistently, and from the very beginning of the federal Yugoslavia,
expressly referred to as constituting part of Serbia.
The 1974 Constitution of Serbia
181. The 1974 Constitution of Serbia defined autonomous provinces in the same way
as the 1974 Federal Constitution.
182. It also adopted the principle that legislative powers were to be exercised at the
152
provincial level unless expressly provided otherwise by the Constitution itself.
Areas in which the Serbian Assembly could adopt laws applicable to the whole
territory of Serbia, including the autonomous provinces, were expressly
enumerated (ibid.,Article 300). Other areas could also be regulated by law
applicable to the whole territory of Serbia on the basis of agreement with
(ibid.,Article 301). In other cases, laws were adopted for
autonomous provinces
the territory of Serbia excluding the territory of autonomous provinces (ibid.,
Article 343).
183. The 1974 Constitution of Serbia provided that enforcement and application of
laws on the territory of an autonomous province was in principle the competence
of provincial authorities (ibid.,Article 294, para. 1)
184. The 1974 Constitution of Serbia could be amended by the Serbian Assembly.
Consent of assemblies of the autonomous provinces was required both for the
initiation of the amendment procedure and for the adoption of an amendment, if it
concemed Serbia as a whole (ibid.,Articles 427-428 and 430). The amendments
had to be adopted by two-thirds of the Serbian Assembly members (ibid.,430,
para. 2).
Gazette of the SFRY, No. 37/1991, p. 618 (emphasis added), Annex 56 in Documentary Annexes
accompanying this Written Statement.
1521974 Constitution of Serbia, Article 293, para. 1, see Annex 53 in Documentary Annexes accompanying
this Written Statement.
75The 1974 Kosovo Constitution
185. The 1974 Kosovo Constitution regulated the autonomous system of govemment
153
in the province.lt defined the competences of the province. As noted above, the
1947 Federal Constitution and 1974 Constitution of Serbia enumerated
competences of the federation and of the republic, respectively. The principle was
that everything that was not assigned to the federation and the republic belonged
to the provincial domain.
186. Under the 1974 Kosovo Constitution, the provincial organs comprised the
assembly, the presidency, and the govemment (executive council) (ibid., Chapters
X, XI & XIII). There was also a constitutional court and judiciary (ibid., Chapters
XV & XVI).
187. Constitutional changes were enacted by a two-thirds majority of all deputies in the
provincial assembly, who also had to give their consent to the changes of the
SFRY and Serbian constitutions (ibid., Article 397, para. 2, & Article 399; cf.
supra paras. 176& 184).
Constitutional amendments of 1988-1989
188. Constitutional amendments to the 1974 Federal Constitution were adopted in
1988, with the consent of all republics and autonomous provinces. 154 They
primarily dealt with economic issues, as well as strengthening federal powers to
some extent.
189. Following these 1988 federal constitutional amendments, the 1974 Constitution of
Serbia was amended in 1989, 155its amendments having been duly adopted with
1531974 Kosovo Constitution, Article 283, see Annex 54 in Documentary Annexes accompanying this
Written Statement.
154
Amandmani na Ustav Socijalisticke Federativne Republike Jugoslavije [Amendments to the Constitution
of the Socialist Federal Republic of Yugoslavia], Sluzbeni list Socijalisticke Federativne Republike
Jugoslavije [Official Gazette of the SFRY], No. 70/1988.
155Amandmani IX do XLIX na Ustav Socijalisticke Republike Srbije [Amendments IX to XLIX to the
Constitution of the Socialist Republic of Serbia], Sluzbeni glasnik Socijalisticke Republike Srbije [Official
76 the consent of the assemblies of the autonomous provmces of Kosovo and
156
Vojvodina.
190. The 1989 Serbian constitutional amendments made important changes to the
relationship between the institutions of the Republic of Serbia and those of the
autonomous provinces. These changes were a result of dissatisfaction with the
original 1974 constitutional arrangement in Serbia which may be described as one
in which the institutions of the Republic of Serbia (which included representatives
of the autonomous provinces) were responsible only for the affairs in Serbia
proper, while the autonomous provinces were ruled almost exclusively by their
157
own institutions. Even in the limited areas in which the Republic could adopt
the laws applicable to the whole of its territory, it could not ensure their
implementation and enforcement on the territory of the autonomous provinces if
the latter was uncooperative in this respect (cf. Articles 294-296 of the 1974
Constitution of Serbia). Moreover, if provincial constitutions were contrary to the
1974 Constitution of Serbia, in violation of its Article 226, there was no legal
158
mechanism in place that would ensure the latter' s primacy.
191. With respect to the relationship between the Republic of Serbia and its
autonomous provinces, the 1989 Serbian constitutional amendments introduced,
inter alia, the following changes:
the Serbian Assembly could decide, on the basis of an opm1on of the
Constitutional Court of Serbia, whether a certain provision of a provincial
constitution was contrary to the Constitution of Serbia; if the provincial
assembly concerned did not change the unconstitutional provision within
one year, it would cease to be applied (Amendment XXIX);
the role of the republican administrative organs with respect to enforcement
of the republican laws applicable on the whole territory of Serbia was
Gazette of the Socialist Republic of Serbia], No. 11/1989, (hereinafter: 1989 Serbian constitutional
Amendments), Annex 55 in Documentary Annexes accompanying this Written Statement.
156Odluka o proglasenju amandmana IX do XLIX na Ustav Socijalisticke Republike Srbije [Decision on
promulgation of amendments IX to XLIX to the Constitution of the Socialist Republic of Serbia], Sluzbeni
glasnik Socijalisticke Republike Srbije [Official Gazette of the Socialist Republic of Serbia], No. 11/1989;
157
158See Dimitrijeviéop. cit., p. 425.
See, e.g., Pavle Nikolié, "Prilog pitanju odnosa Ustava SR Srbije i ustava pokrajina", Anali Pravnog
Fakulteta u Beogradu, 4/1998, pp. 459-461.
77 expanded, including their power to enforce such laws on the territory of an
autonomous province if the latter failed to do so (Amendment XXXI,
especially para. 7);
the Presidency of Serbia could decide that republican authorities directly
organize or execute measures for the protection of the constitutional order
on the territory of Serbia or part thereof, if this was required by the special
interests of security of the Republic in order to put an end to activities
aimed at undermining or destroying the constitutional order (Amendment
XLIII, para. 3). This meant that the republican authorities could directly
exercise powers on the territory of an autonomous province in such
emergency situations, which was not previously the case.
the consent of the provincial assemblies was no longer required for
amending the Constitution of Serbia; rather, they had the right to issue their
opm1ons on constitutional amendments, and if such opinions were not
accepted by the Serbian Assembly, to request that constitutional
amendments be adopted in a Serbian referendum (Amendment XLVII).
192. The 1989 Serbian constitutional amendments could only partially modify the
relationship between the Republic of Serbia and its autonomous provinces,
because the autonomy of the provinces was also guaranteed at the level of the
SFRY, by the 1974 Federal Constitution.
193. The 1989 Serbian constitutional amendments (as well as constitutional
amendments in other republics of the SFRY) were assessed by the (federal)
Constitutional Court of Yugoslavia which examined their compatibility with the
1974 Federal Constitution (as amended in 1988). While the Constitutional Court
of Yugoslavia found that some of the amendments were contrary to the federal
constitution, this was not the case with the amendments that concerned the status
and competences of the autonomous provinces, discussed in the preceding
159
paragraph.
159Constitutional Court of Yugoslavia, Opinion of 18 January 1990, IU-broj 105/1-89, Sluzbeni list
Socijalisticke Federativne Republike Jugoslavije [Official Gazette of the SFRY], No. 10/1990.
78"The Constitutional Declaration on Kosovo"
194. The following year, on 3 July 1990, 111 members of the Kosovo Provincial
Assembly issued a "Constitutional Declaration on Kosovo as an autonomous
("samostalnoj") and equal unit within the federation (confederation) of
Yugoslavia as an equal legal subject with other units within the federation
160
(confederation)". The authors of the "declaration" did not include any Serb
members of the Kosovo Provincial Assembly. The "declaration" inter alia
proclaimed Kosovo to be "an equal unit within Yugoslavia" and expressed an
expectation that this would be confirmed in the constitution of Yugoslavia (para.
2).It also stated that Albanians should be considered a nation and not a nationality
161
(national minority) in Yugoslavia (para. 3). Further, the "declaration" stated
that "until final legal implementation of this constitutional declaration", the
Assembly and other authorities in Kosovo should work on the basis of the federal
constitution and not on the 1989 Serbian constitutional amendments (para. 4).
Finally, the declaration purported to "annul" the Kosovo Assembly's previous
consent to these amendments (para. 4).
195. This "declaration" was subsequently annulled in its entirety by the Constitutional
162
Court of Yugoslavia, as contrary to the federal constitution. The court inter alia
stated that Kosovo was not a federal unit and that its constitutional status could
163
not be changed without an amendment to the federal and Serbian constitutions.
In the opinion of the court, if Kosovo were to become a self-standing and equal
unit with other republics in the SFRY, this would constitute a change of the
160Ustavna deklaracija o Kosovu kao samostalnoj i ravnopravnoj jedinici u okvirufederacije (konfederacije)
Jugoslavije kao ravnopravnog subjekta sa ostalim jedinicama ufederaciji (konfederaciji)[,titutional
Declaration on Kosovo as an autonomous ("samostalnoj") and equal unit within the federation
(confederation) of Yugoslavia as an equal legal subject with other units within the federation
(confederation)]luzbeni list Socijalisticke Autonomne Pokrajine Kosova [Official Gazette of the Socialist
Autonomous Province of Kosovo], No. 21/1990, Annex 75 in Documentary Annexes accompanying this
Written Statement.
161
For the term "nationality" see supra para. 157
162Constitutional Court of Yugoslavia, Decision of 19 February 1991, II-U-broj 87/90, [Odluka o ocenjivanju
ustavnosti Ustavne deklaracije o Kosovu kao samostalnoj i ravnopravnoj jedinici u okviru federacije
(konfederacije) Jugoslavije kao ravnopravnog subjekta sa ostalim jedinicama ufederaciji (konfederaciji)],
Official Gazette of the SFRY, No. 37/1991, p. 618, Annex 56 in Documentary Annexes accompanying
163this Written Statement.
Ibid.
79 territory and borders of Serbia, which was contrary to the SFRY constitution. 164
Finally, the court stated that Albanians in Kosovo were a nationality (national
minority) and, as such, could not use the right to self-determination and proclaim
Kosovo to be a federal unit because the right to self-determination belonged
165
exclusively to the nations of Yugoslavia and not to nationalities.
The 1990 Constitution of Serbia
196. A new constitution of Serbia was adopted in 1990 166after it had been approved in
a referendum by 75.76 % of the entire Serbian electorate, including voters in the
autonomous provinces Kosovo and Vojvodina. 167
197. According to the 1990 Constitution of Serbia, the Autonomous Province of
Kosovo and Metohija and the Autonomous Province of Vojvodina were territorial
autonomies (Article 6). The autonomous provinces had inter alia the competence
to regulate matters of interest to their citizens in the fields of education, culture,
official use of minority languages, public information, health and social
protection, child care, environment and urbanism (Article 109, para. 1(3). Other
matters could also be brought within the provincial competence by law (ibid.,
para. 3). Provincial authorities had the power to enforce provincial regulations,
and could also enforce Serbian legislation if this authority was delegated to them
by the central authorities (Article 109, para. 1(4)).
198. The highest legal act of a province was a statute, which established provincial
competences and the organization of the provincial organs (Article 110).
Provincial organs comprised an assembly, directly elected by secret vote, a
govemment (executive council) and an administration (Article 111).
164Ibid., p. 619.
165
Ibid.
166 Ustav Republike Srbije [Constitution of the Republic of Serbia], Sluzbeni glasnik Republike Srbije
[Official Gazette of the Republic of Serbia], No. 1/90. English translation available at:
http://unpanl.un.org/intradoc/groups/public/documents/UNTC/UNPANOI 9071.pdf see, also, Annex 57 in
167Documentary Annexes accompanying this Written Statement.
See Sluzbeni glasnik Republike Srbije [Official Gazette of the Republic of Serbia], No. 35/1990.
80 IV The Federal Republic of Yugoslavia (Serbia and Montenegro) (1992-1999)
199. During the process of the dissolution of the SFRY, the constituent republics of
Serbia and Montenegro created the Federal Republic of Yugoslavia (FRY) on 27
April 1992. 168Its constitution169did not refer to autonomous provinces, but only
to the two constituent republics of the FRY. However, throughout the existence of
the FRY/Serbia and Montenegro, the 1990 Constitution of Serbia and its
provisions dealing with autonomous provinces continued to apply.
170
200. In 2003, the FRY was renamed the State Union of Serbia and Montenegro. At
the time, Kosovo was already administered by the United Nations pursuant to
Security Council resolution 1244 (1999). The Constitutional Charter of the State
Union specifically stated that Serbia included the autonomous provinces of
Vojvodina and Kosovo, but noted that the latter was under international
171
administration. It also provided that if Montenegro were to leave the State
Union, international documents pertaining to the FRY, in particular Security
Council resolution 1244 (1999), would continue to apply to Serbia (Article 60,
para. 4).
V Security Council resolution 1244 (1999-present)
201. In June 1999, Kosovo was placed under international administration pursuant to
Security Council resolution 1244 (1999). This international regime is discussed in
detail in Chapter 8.
168
For a map of the FRY (Serbia and Montenegro ), see Appendix 2.
169Ustav Savezne Republike Jugoslavije, [the Constitution of the Federal Republic of Yugoslavia], Sluzbeni
list Savezne Republike Jugoslavije [Official Gazette of the FRY], No. 1/1992 (hereinafter: FRY
Constitution).
170
See Chapter I, Section E.
171Preamble, reproduced in Annex 58 in Documentary Annexes accompanying this Written Statement.
81 VI The 2006 Constitution of Serbia
172
202. In 2006, Serbia adopted a new constitution in a referendum. It was not possible
to organize a referendum vote for this constitution in the entire territory of
Kosovo. The 2006 Constitution of Serbia reaffirms that Kosovo is part of Serbia,
and has a status of substantial autonomy (Preamble). Further, it determines that
Kosovo and Vojvodina constitute autonomous provinces, and leaves open the
possibility to create new autonomous provinces (Article 182).
203. The 2006 Constitution of Serbia regulates the status and competences of
Vojvodina, but not of Kosovo (Articles 182-187). The latter's status is defined as
one of "substantial autonomy", the precise content of which will be regulated by a
special constitutional law (Article 182, para. 2). Since the 2006 Constitution of
Serbia was adopted at the time of negotiations on the status of Kosovo, the precise
content of "substantial autonomy" is to be determined as a part of a negotiated
settlement for Kosovo.
B. Standards of Minority Protection Applicable to Kosovo
I. Minority protection in the SFRY
(1) The 1974 constitutions
204. The 1974 Federal Constitution contained a list of fondamental human rights
(Chapter III), as well as specific guarantees of the rights of persans belonging to
nationalities (national minorities) which appeared to be above the international
standards of minority protection applicable at the time. 173The minority rights in the
172
Ustav Republike Srbije [Constitution of the Republic of Serbia], Sluzbeni glasnik Republike Srbije
[Official Gazette of the Republic of Serbia], No. 98/2006 (hereinafter: 2006 Serbian Constitution). English
translation available at http://www.parlament.sr.gov.yu/content/eng/akta/ustav/ustav _1.asp, Annex 59 in
Documentary Annexes accompanying this Written Statement.
173See Dimitrijevié,op. cit., pp. 427.
82 institutional field were also at a very high level. According to Vojin Dimitrijevié,
who was Vice-Chairman of the UN Human Rights Committee at the time,
"In the institutional field, nationalities have real possibilities of
securing the preservation of their language and culture. There are
television and radio stations that operate only in Albanian
(Pristina), Hungarian (Novi Sad) and Italian (Koper-Capodistria).
Other nationalities have guaranteed time on television and radio
stations for news and other broadcasts. Education in the languages
of nationalities is guaranteed in ordinary and secondary schools
financed by the States. In Pristina, there is one of the largest
universities in Yugoslavia which is also the largest Albanian
university in existence. In the Pristina and Novi Sad universities,
lectures are offered simultaneously and separately in Serbo-Croat,
Albanian and Hungarian, even though the vast majority of students
in Pristina are Albanian. Both autonomous provinces have their
own academies of arts and sciences, with the majority of members
174
of the Kosovo Academy being Albanian. "
205. The SFRY was a party to most of the major human rights treaties concluded under
UN auspices, including the Convention on the Prevention and Punishment of the
Crime of Genocide, the International Convention on the Elimination of All Forms
of Racial Discrimination (CERD), the International Covenant on Civil and
Political Rights (ICCPR), the International Covenant on Economie, Social and
Cultural Rights (ICESCR), the Convention on the Elimination of All Forms of
Discrimination against Women (CEDAW), the International Convention on the
Suppression and Punishment of the Crime of Apartheid, the Convention against
Torture (CAT) and the Convention on the Rights of the Child (CRC). 175
174
175Ibid., p. 430.
The status of ratifications of each of these treaties, including references to the specific instruments of
ratification deposited by the former Yugoslavia, is available in thed Nations Treaty Collection,
Chapter IV: Human Rights, at: http://treaties.un.org/Pages/Treaties.aspx?id=4&subid=A&lang=en.
83206. Despite these extensive guarantees, however, there were numerous violations of
individual human rights in practice, even in the late 1980s which were marked by
the rise of political pluralism in theY. According to Vojin Dimitrijevié:
"The conclusion can be drawn that the general human rights
situation in Yugoslavia has been unsatisfactory, and that this has
affected all citizens in Yugoslavia, not only members of national
minorities. For example, most "dissidents" who have been
persecuted because of their public or private utterances in violation
of the laws pertaining to freedom of opinion and expression have
belonged to Yugoslav nations, but because of the large numbers of
their members this was not perceived as a measure directed against
any particular nation. When the victim was an Albanian, a
connotation of discrimination became inevitable.
The course of events in Kosovo has unfortunately created an
impression of discrimination at home and abroad, and this is why
most reasonable people in Yugoslavia believe that the first step
toward the solution of the Kosovo problem (which affects both
Albanians and non-Albanians) should begin with the securing,
strengthening, and the observation of human rights of all
. d' 'd 1 . y 1 . " 176
m 1v1ua s m ugos avrn.
(2) The 1990 Constitution of Serbia
207. The 1990 Constitution of Serbia set out a list of generally applicable human rights
and civil liberties in Articles 11 to 50. Additionally, Article 8(2) of the
Constitution provided for the official use of the languages of national minorities,
in the parts of Serbia where national minorities live. Article 32(4) protected the
right of national minorities to education in their own language, while Article 49
guaranteed the right of every citizen to express his or her national affiliation and
culture, and the freedom to use his or her language and alphabet.
176
See Dimitrijevié, op. cit., p. 433.
84 II Minority rights guarantees in the FRY (Serbia and Montenegro)
(1) The FRY Constitution
208. A significant portion of the 1992 FRY Constitution was dedicated to the
protection of human rights generally, and of minority rights specifically. Article
10 of the Constitution provided that the FRY 'recognize[d] and guarantee[d] the
freedoms and rights of man and citizen that were recognized by international law.'
Article 11 further provided that the FRY
"shall recognize and guarantee the rights of national minorities to
preserve, foster and express their ethnie, cultural, linguistic and
other peculiarities, as well as to use their national symbols, in
accordance with international law."
209. Articles 19 to 68 of the Constitution enumerated and protected a wide variety of
civil, political and socio-economic rights. Four of these Articles were expressly
dedicated to the rights of national or ethnie minorities. Article 45 protected the
freedom of expression of national sentiments and culture, and the use of a
minority' s mother tongue and script. Article 46 guaranteed members of national
minorities the right to education, as well as the right to have information media in
their own language. Article 47 gave members of national minorities the right to
establish educational and cultural organizations or associations. Finally, Article
48 guaranteed the right of members of national minorities to establish and foster
unhindered relations with co-nationals within the FRY and outside its borders
with co-nationals in other states, and to take part in international non
govemmental organizations.
(2) International human rights commitments undertaken by the FRY (Serbia and
Montenegro)
210. As is well known, the FRY had initially claimed continuity with the SFRY, and
thus considered itself bound by the SFRY's treaties. After it renounced its claim
85 to continuity, in 2001 the FRY filed notifications of succession and accession to
177
all of the human rights treaties to which the SFRY was a party. It also assumed
additional obligations. It became a party to the Second Optional Protocol to the
178
ICCPR abolishing the death penalty. It recognized the jurisdiction of all
competent United Nations treaty bodies to examine individual petitions, including
the Human Rights Committee (by accepting the First Optional Protocol to the
ICCPR), 179 the Committee against Torture (by accepting both the Committee's
jurisdiction under the Convention Against Torture, and by ratifying the Optional
180
Protocol to it), the Committee on the Elimination of Discrimination against
Women, 181and the Committee on the Elimination of Racial Discrimination. 182
183
211. In 2003, Serbia and Montenegro became a member of the Council of Europe,
and in 2004 a party to the European Convention for the Protection of Human
Rights and Fundamental Freedoms (ECHR), together with its additional
protocols. 184 Since 2001, it was a party to the Framework Convention for the
Protection of the Rights and Freedoms of National Minorities and the European
185
Charter for Regional or Minority Languages. The FRY also signed bilateral
177
The FRY lodged notifications of succession or accession to the multilateral treaties deposited with the UN
Secretary-General on 12 March 2001. See, e.g., the Secretary-General's communication regarding the
ICCPR, C.N.233.2001.TREATIES-4, 23 March 2001, available at:
http://treaties.un.org/doc/Treaties/1976/03/19760323%2006-
17%20AM/Related%20Documents/CN.233.2001-Eng.pdf and the same communication regarding the
ICESCR, C.N.175.2001.TREATIES-1, 16 March 2001, available at:
http://treaties.un.org/doc/Treaties/2002/01/20020103 %2009-
57%20PM/Related %20Documents/CN.175 .2001-Eng.pdf.
178
The FRY acceded to the Protocol on 6 September of 2001. Status of ratifications available at:
http://treaties.un.org/Pages/ViewDetails.aspx ?src=TREATY&id=137&chapter=4&lang=en.
179 Status of ratifications available at:
http://treaties.un.org/Pages/V iewDetails.aspx?src=TREATY&id=323&chapter=4&lang=en.
180Serbia acceded to the Optional Protocol to the CAT on 26 September 2006. Status of ratifications
available at: http://treaties.un.org/Pages/ViewDetails.aspx?src=TREAT&id=l 31&chapter=4&lang=en.
181
Serbia and Montenegro acceded to the Optional Protocol to the CEDAWon 31 July 2003. Status of
ratifications available at:
http://treaties.un.org/Pages/ViewDetails.aspx ?src=TREATY&id=128&chapter=4&Iang=en.
182
The FRY accepted the competence of the CERD Committee upon succession. Status of ratifications
available at: http://treaties.un.org/Pages/ViewDetaiis.aspx?src=TREAT&id=319&chapter=….
183Serbia and Montenegro acceded to the Statute of the Council of Europe on 3 April 2003. Status of
ratifications available at:
http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=001&CM=8&DF=2
/20/2009&CL=ENG.
184Serbia and Montenegro ratified the ECHR on 3 March 2004. Status of ratifications available at:
http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=005&CM=8&DF=2
/20/2009&CL=ENG.
185
The FRY acceded to the Framework Convention for the Protection of the Rights and Freedoms of Nations
Minorities on 11 May 2001 and ratified the European Charter for Regional or Minority Languages on 5
September 2001, see http://conventions.coe.int/Treaty/EN/v3MenuTraites.asp.
86 agreements on minority protection with four neighbouring countries, Romania,
186
Hungary, Croatia and Macedonia. As a participating state of the Organization
for Security and Co-operation in Europe (hereinafter: "OSCE"), the FRY
undertook to comply with the OSCE' s standards on minority rights.
(3) The 1990 Constitution of Serbia
212. The 1990 Constitution of Serbia continued to be in force during the FRY/Serbia
and Montenegro. The minority rights provisions of the 1990 Constitution of
Serbia are described in paragraph 207 above.
(4) Law on the Protection of Rights and Freedoms of National Minorities 2002
213. The Law on the Protection of Rights and Freedoms of National Minorities 187was
adopted at the federal level of the FRY, and provided a framework for the
protection of national minorities even after the FRY' s transformation into Serbia
and Montenegro. lt elaborated in detail the constitutional safeguards outlined
above. lts most significant institutional mechanism was the establishment of a
Federal Council for minorities, as well as national councils for each national
minority. The adoption of the Law was welcomed inter alia by the UN Human
. h C . 188
R1g ts omm1ttee.
(5) Constitutional Charter of Serbia and Montenegro and the Charter on Human and
Minority Rights and Civil Liberties of Serbia and Montenegro 2004
214. The Constitutional Charter transformed the FRY into the State Union of Serbia
and Montenegro. The Charter on Human and Minority Rights and Civil Liberties
was an integral part of the Constitutional Charter of the State Union. Besides a
considerable catalogue of generally applicable human rights and freedoms, it
186See Sluzbeni list Srbije i Crne Gore [Official Gazette of Serbia and Montenegro], Nos. 14/2004, 3/2005 &
No. 6/2005.
187
Zakon o zastiti prava i sloboda nacionalnih manjina [Law on the Protection of Rights and Freedoms of
National Minorities],luzbeni list Savezne Republike Jugoslavije [Official Gazette of the FRY], No.
11/2002. English translation available at: http://www.osce.org/documents/fry/2002/03/124_en.pdf.
188U.N. Doc. CCPR/CO/81/SEMO (12 August 2004), para. 5.
87 guaranteed numerous individual and collective rights and freedoms of national
189
minorities.
215. International human rights treaties to which Serbia and Montenegro was a party
were directly applicable in domestic law (Article 7), while courts were obliged to
interpret the Charter in accordance with international human rights jurisprudence
(Article 10).
216. The Charter was highly commended by international institutions. For example, its
190
adoption was particularly welcomed by the UN Human Rights Committee,
while the European Commission for Democracy through Law (Venice
191
Commission) deemed it "excellent", and paid "tribute toits high quality."
III Minority rights guarantees currently in force in the Republic of Serbia
(1) The 2006 Constitution of Serbia
217. The 2006 Constitution of Serbia, which is currently in force, has adopted most of
the provisions of the Charter on Human and Minority Rights of Serbia and
Montenegro contained in its catalogue of human rights and civil liberties in
Articles 18 to 81. Article 75 of the Constitution contains a general clause on the
protection of individual and collective rights of national minorities, and prescribes
the creation of a national council elected by members of each minority, through
which they may exercise their right to self-governance in the fields of culture,
education, media and the official use of their spoken and script. Articles 76 to 81
of the Constitution in particular prohibit discrimination against and the forcible
assimilation of national minorities, and protect their identity rights, their right to
freely associate with other individuals belonging to the same group, and enshrine
189
Povelja o ljudskiimanjinskim pravima igradjanskim slobodama, [The Charter on Human and Minority
Rights and Civil Liberties], Sluzbeni list Srbije i Crne Gore, [Official Gazette of Serbia and Montenegro],
No. 1/2003, Arts. 48-56.
190U.N. Doc. CCPR/CO/81/SEMO (12 August 2004), para. 4.
191
Venice Commission, Comments on the Draft Charter on Human and Minority Rights and Civil Liberties
of Serbia and Montenegro, Opinion No. 234/2003, CDL (2003) 10 fin, 2 April 2003, available at:
http://www.venice.coe.int/docs/2003/CDL(2003)010fin-e.asparas. 2 and 3.
88 the duty of the State to promote a spirit of tolerance. The Venice Commission has
again commended the guarantees of human rights in the 2006 Constitution of
192
Serbia.
(2) Serbia 's international commitments regarding human and minority rights
218. As the continuator State of the State Union of Serbia and Montenegro, Serbia
remains a party to all treaties on human and minority rights to which the State
193
Union of Serbia and Montenegro was a party. When it cornes to minority rights
in particular, it is a party to the two major Council of Europe treaties on the
matter, the Framework Convention for the Protection of the Rights and Freedoms
of National Minorities and the European Charter for Regional or Minority
Languages. 194Serbia has bilateral agreements on minority protection with four
195
neighbouring countries: Romania, Hungary, Croatia and Macedonia. As a
participating State of the Organization for Security and Co-operation in Europe
(OSCE), Serbia has undertaken to comply with the OSCE' s standards on minority
rights.
219. The progress that Serbia has made since 2001 in improving its compliance with
international standards for the protection of human and minority rights has
196
generally been evaluated positively by international monitoring bodies. In
regard to minority rights in particular, Serbia was commended for taking "decisive
197
steps to protect national minorities." The principal issues of concern raised by
international bodies were mainly in relation to some of the practical difficulties in
implementing binding legal standards, especially in relation to the economic and
192Venice Commission, Comments on the Constitution of Serbia, Opinion No. 405/2006, CDL-AD (2007)
004, 19 March 2007, available at: http://www.venice.coe.int/docs/2007/CDL-AD(2007)004-e.asp, para.
105.
193
See supra paras. 210-211. On the continuity between Serbia and the FRY/ Serbia and Montenegro, see
Chapter 1, Section E.
194See supra note 185.
195
196See supra para. 211.
See UN Doc. CCPR/CO/81/SEMO (12 August 2004); UN Doc. E/C.12/1/Add.108 (23 June 2005); UN
Doc. CRC/C/SRB/CO/1 (20 June 2008).
197Advisory Committee on the Framework Convention for the Protection of National Minorities, Opinion on
Serbia and Montenegro, ACFC/INF/OP/I (2004) 002 (2004), p. 3.
89 social plight of the Roma minority, a problem that is not only confined to Serbia,
but is endemic to the whole of Eastern Europe. 198
220. The human and minority rights situation in Serbia outside of the province of
Kosovo during the past eight years compares favourably to that in Kosovo
administered by UNMIK and the Provisional Institutions of Self-Govemment.
Thus, for example, in 2006 the Human Rights Committee
"note[d] with concem that members of minority communities have
only limited access to the conduct of public affairs [in Kosovo], as
well as to public service, and that discrimination against minorities,
including the Roma, is widespread in Kosovo." 199
The Advisory Committee on the Framework Convention for the Protection of
National Minorities likewise noted that
"[t]he implementation of practically all principles of the Framework
Convention is made extremely difficult by the fact that inter-ethnie
violence has seriously eroded trust between communities"
and that
"Serbs outside their compact areas of settlement see their basic
rights, including freedom of movement and freedom of expression,
threatened, and discrimination and intolerance towards persons
200
belonging to minority communities continue."
198
See, e.g., European Court of Human Rights, D.H. and others v. the Czech Republic, App. No. 57325/00,
Judgment, 13 November 2007; UN Doc. CERD/C/CZE/CO/7 (11 April 2007), UN Doc.
CERD/C/65/CO/7 (10 December 2004), UN Doc. CERD/C/60/CO/4 (20 March 2002).
199U.N. Doc. CCPR/C/UNK/CO/1 (14 August 2006), para. 21.
200
Advisory Committee on the Framework Convention for the Protection of National Minorities, Opinion on
Serbia and Montenegro, ACFC/INF/OP/I (2004) 002 (2004).
90 C. Kosovo and the Kosovo Albanians 1981-1991
I 1981-1986
221. The constitutional changes enacted in 1974, described above in Section A,
provided Kosovo with a broad autonomy. 201 However, the situation in practice
was described to be as follows:
"The new constitution emphasized equalities and equal rights and
duties. These included the right to the development and free
expression of the national language, culture and history, and its
recognition precipitated two trends: a spate of translation, normally
from Serbo-Croat, and demand by employers for knowledge of both
Albanian and Serbo-Croat in workplaces, even when this was not
actually required. The matter was aggravated when this trend
received official sanction from the League of Communists of
Kosovo and the educational and cultural authorities including
Pristina University. The new policy placed the Serb and
Montenegro nationality group as a whole at a great disadvantage,
since only a few from this group spoke both Serbo Croat and
Albanian. Many members of the Serb-Montenegrin nationality
group began sending their children to schools outside the province
because of alleged nationalistic pressure and the schools' new
language equality rules. 1974 constitution caused "positive
discrimination" in favour of the Albanians in Kosovo: bilingualism
became a condition for employment in public services, four fifths of
available posts were reserved for the Albanians on a parity bases
and national quotas were strictly applied when nomination were
made for public fonctions. Thus began the virtual Albanisation of
202
public life in Kosovo"
201See supra paras. 173-187
202See Vickers, op. cit., pp. 179-180.
91222. This further aggravated the situation of many Serbs leaving Kosovo that had been
occurring since 1960. The situation was described as follows:
"At least 50,000 Serbs left during the 1970s. A similar number of
Albanians returned from other parts of Yugoslavia for the longer
period of 1966-1986. These goings and comings, plus the high
Albanian birth rate, pushed the officially recorded Kosovar majority
in the province to 74 percent and 78 percent by 1978. By then, the
Kosovar share of employment in social enterprises was even
203
higher."
223. The situation in Kosovo deteriorated with the Albanian uprising in 1981. The
uprising began as a student riot and continued with rallies in which the main
demands included calls for a "Kosovo Republic" and "state unity with Albania."
The scope and intensity of the protests led to the proclamation of a state of
emergency by the SFRY Presidency. The clashes between demonstrators and
police led to 11 people being killed, including 2 police officers, and 57 people
204
being seriously injured.
224. This crisis led to a further exodus of Serbs and Montenegrins from Kosovo:
"The intensification of ethnie tension between Slavs and Albanians
as a result of the 1981 demonstrations led to a new exodus of Serbs
and Montenegrins from Kosovo. ltwas estimated, for example, that
between March and October approximately 10,000 people left the
province, and although the authorities condemned the trend and its
cause, reports of continued Serbian and Montenegrin emigration
persisted throughout the 1980s." 205
225. The political crisis went hand in hand with ethnically motivated violence against
Serbs:
203
See Lampe, op.cit., pp. 303-304.
204See Tim Judah, War and Revenge (2002), p. 40.
205See Lenard J Cohen, Serpent in the Bosom: The Rise and Fall of Slobodan Milosevic (2000), p. 31.
92 "Itwas true that Serbs were leaving Kosovo and that especially
after 1981, there were frequent expression of hostility towards
them. Sorne Serbian churches and graveyards were vandalized and
206
many Serbs did indeed feel pressure to leave."
226. Warren Zimmermann, the last US Ambassador before the dissolution of the
SFRY, wrote in his book:
"I had been wamed by American joumalists not to believe anything
I heard in Kosovo, so I decided to give Rugova a truth test.
Referring to the Serbian abuses against Albanians, no aspect of
which was ever conceded by Serbian officials, I asked him how
Albanians had treated Serbs when they held the upper hand before
the Milosevic period. "Unfortunately", he answered without
207
hesitation, "there were many crimes committed against Serbs"
227. There were many official reactions and attempts to find a solution to the
escalating Kosovo crisis in the early 1980s.
228. The 13th Congress of the League of Communist of Yugoslavia held in 1986
addressed the issue. Itis obvious from the Congress documents that the situation
in Kosovo had been deteriorating prior to 1986. The official Congress statement
concluded that:
"The fleeing of Serbs and Montenegrins from Kosovo under the
pressure is directed to the gradua! achievement of the enemy
strategic objectives articulated in the requests for the 'ethnical clean
Kosovo', 'Kosovo Republic' and 'the Great Albania'. It is
necessary to analyze why previously taken measures and activities
for neutralization of the reasons for the eviction did not accomplish
the desired results ... That is, why the Communist Party must
206See Judah, op. cit., p. 43.
207See Warren Zimmermann, Origins of a Catastrophe: Yugoslavia and Its Destroye~sAmerica's Last
Ambassador Tells What Happened and Why (1996), p. 80.
93 mobilize all social forces in Kosovo, Serbia and in entire state to
208
prevent any eviction under pressure".
229. In August 1988 the SFRY Assembly adopted its "Conclusions" on the security
conditions in Kosovo, which stated that:
"The political and security situation in Kosovo is very complex and
difficult. Serbs and Montenegrins are still leaving Kosovo, and one
of the main reasons for that is the pressure made by Albanian
separatists". 209
230. Since the situation had not improved substantially smce the 1981 upnsmg,
between 1988 and 1990 the SFRY Assembly adopted various measures to prevent
the exodus of Serbs and Montenegrins from Kosovo and for the retum of those
who had left. 210 The representatives of the Kosovo Albanians took part in the
adoption of these measures.
20813. Kongres SKI - Dokumenti (25-28.jun 1986), (Izdavacki centar Komunist, Beograd 1986), p. 191 [XIII
Congress of the Yugoslav Communist Party - Documents (June 25-June 28, 1986), Publishing Center
209Communist, 1986, p.191].
Zakljucci Savezne Skupstine, [Federal Assembly's Conclusions], Sluzbeni glasnik SFRJ, [SFRY Official
Gazette], No. 46/88, Chairman of the Federal Assembly's Chamber of Republics and Provinces (Vece
Republika I Pokrajina) at the time was Abaz Kabazi an ethnie Albanian from Kosovo.
210
Jugoslovenski program mera i aktivnosti za zaustavljanje iseljavanja Srba i Crnogoraca s Kosova, brzi
povratak onih koji su ga napustilidolazak svih koji zele da zive i rade na Kosovu [Yugoslav Program of
measures and activities for stopping Serbs and Montenegrins to leave Kosovo, faster Return of those who
left Kosovo and seulement of all who are willing to live and work in Kosovo], Sluzbeni list SFRJ [Official
Gazette of the SFRY], No. 2/1988; Zakon o programu pribavljanja stanova za potrebe kadrova ipovratak
iseljenih lica u SAP Kosovo u periodu od 1989. do 1993. godine [The Law on Program of securing
ammount needed for the premises for returnees in Kosovo in the period from 1989 to 1993], Sluzbeni list
SFRJ, [SFRY Official Gazette], No. 83/89; Zakon o programu pribavljanja stanova za potrebe kadrova i
povratak iseljenih lica u SAP Kosovo u periodu od 1989. do 1993.godine [The Law on securing the
premises for the needs of the human resources and returnees to Kosovo in the period from 1989 to 1993],
Sluzbeni list SFRJ, [SFRY Official Gazette], No. 9/90; Program pribavljanja stanovaa potrebe kadrova
i povretak iseljenih lica u SAP Kosovo u periodu od 1989. do 1990.godine [The Program on securing the
premises for the needs of the human resources and returnees to Kosovo in the period from 1989 to 1993],
Sluzbeni list SFRJ, [SFRY Official Gazette], No. 9/90.
94231. The SFRY Assembly's acts were followed by similar acts of the Serbian
Assembly, which adopted "Program for realization of Peace, Freedom, Equality,
Democracy and Prosperity of SAP Kosovo" in March 1990. 211
II The 1989 amendments to the 1974 Serbian Constitution
232. The late 1980s were marked by the rise of nationalism throughout the SFRY.
These years also marked a period when all republics increasingly perceived
themselves as sovereign entities and signs of dissolution of the SFRY started to be
visible.
233. In Serbia, Slobodan Milosevic became the new leader of the League of
Communist of Serbia in 1987 and immediately embarked on establishing his full
control over Serbia's State institutions, including in the autonomous provinces.
212
234. As discussed above, the SFRY constitution was amended in 1988. These
amendments were followed by amendments to the constitutions of the republics.
235. In early 1989, the process of amending the Constitution of Serbia also began. On
24 February 1989, the Serbian Assembly unanimously adopted a proposa! for
amendments to the 1974 Serbian Constitution, with no representatives from
Kosovo voting against the proposal. 213According to the procedure, the proposa!
had to then be accepted by the assemblies of autonomous provinces, following
which it would be submitted for adoption before the Serbian Assembly.
236. The sitting of the Kosovo Assembly during which the proposed amendments to
the Constitution of Serbia were to be discussed was scheduled for March 1989.
The period preceding this sitting was marked by widespread protests against the
214
constitutional amendments in Kosovo.
211Program za ostvarivanje mira, slobode, ravnopravnosti, demokratije i prosperiteta SAP Kosova [Program
for Realization of Peace, Freedom, Equality, Democracy and Prosperity of SAP Kosovo], Sluzbeni glasnik
Rebublike Srbije, [Official Gazette of the Republic of Serbia], No. 15/90.
212
213Supra para. 188
Marc Weller, Crisis in Kosovo 1989-1999 (1999), p. 47.
214See Judah, op. cit., pp. 55-56.
95237. On 27 February 1989, the SFRY Presidency, the collective head of state of the
215
SFRY, proclaimed astate of emergency in Kosovo. This decision was followed
by imposition of the mandatory working duties in some industry branches m
216
Kosovo. These measures were supported by the SFRY Assembly.
238. On 22 March 1989, a meeting of the SFRY Presidency took place in Belgrade,
with all its members present: The President of the SFRY Presidency, Mr. Raif
Dizdarevic (Bosnia and Herzegovina), Mr. Nikola Ljubicic (Serbia), Mr. Radovan
Vlajkovic (Vojvodina), Mr. Lazar Mojsov (Macedonija), Mr. Josip Vrhovec
(Croatia), Mr. Stane Dolanc (Slovenia), Mr. Sinan Hasani (Kosovo), Mr. Branko
Kostic (Montenegro), and Mr. Stipe Suvar (the representative of the League of
Communists of Yugoslavia). Other high federal officials were present as well,
including the federal prime minister, Mr. Ante Markovic, and federal ministers of
the interior, defence and the foreign affairs. The Presidency concluded:
"[The] SFRY Presidency assessed that all the necessary political
conditions were being created so that the Assembly of the Socialist
Autonomous Province of Kosovo could decide, on 23 March, under
the normal conditions and within the regular procedure, on giving
its consent to the proposed amendments to the Constitution of SR
Serbia. In that context, the Presidency underlined the need to have
the competent state organs take all the necessary measures to
provide the conditions, also in the security area, conducive to the
normal work of the Assembly of the SAP of Kosovo. During the
discussion it was assessed that reactions to the decision of the
Assembly of the SAP Kosovo could be expected irrespective of the
nature of that decision, which therefore required all the organs to be
217
fully alert."
215See Vickers, op. cit., p. 236; Batakovic, op. cit., p. 73.
216Zakljucci Savezne Skupstine SFRJ 3. mart 1989.godine, [SFRY Assembly, Conclusions of 3 March 1989],
217luzbeni glasnik SFRJ, [SFRY Official Gazette], No.13/89, p. 321.
Zapisnik sa 253. sednice Predsednistva SFRJ odrzane 22.marta 1989, [Minutes of the 253rd SFRY
Presidency session of 22 March 1989], pp. 2-3, Annex 60 in Documentary Annexes accompanying this
Written Statement.
96239. During the discussion, the member of the Presidency representing Kosovo, Mr.
Sinan Hasani, an ethnie Albanian, stated that constitutional changes would be
accepted in the Kosovo Assembly since:
"all structures of the province have voted for those changes, as well
as all social, political and state structures, while the identical
standing is within the municipalities." 218
240. On the same day that the SFRY Presidency session was held, the Kosovo
govemment (executive council) approved the constitutional amendments. On 23
March 1989, the Kosovo Provincial Assembly accepted the constitutional changes
219
with 177 votes in favour and 10 votes against.
241. That same day, riots broke out in Kosovo, and 22 protesters and 2 police officers
220
were killed. It should be noted that the two murdered policemen were an
Albanian and a Serb.
242. At the meeting of the SFRY Presidency held on 24 March 1989, a further
"Conclusion" on the situation in Kosovo was adopted:
"[The] SFRY Presidency noted that the events from 23 March 1989
- demonstrations in Urosevac and among students in Pristina, with
violent behaviour and brutal disruption of public peace and order,
and assaults against the security authorities - were an attempt at
direct countering the legitimate decision by the Assembly of the
218
Stenografçke beleske sa 253. sednice od 22.marta 1989, [Stenographic notes of the 253rd SFRY
Presidency session of 22 March 1989], p. 35, reprinted in Annex 60 in Documentary Annexes
accompanying this Written Statement.
219 Odluka o proglasenju Amandmana IX do XLIX na Ustav Socijalisticke Republike Srbije, [Decision on
the promulgation of Amendments IX-XLIX], Sluzbeni glasnik Srbije, [Official Gazette], No. 11/89, and
Weller, op. cit., p. 47.
220See Judah, op. cit., p. 55.
97 SAP of Kosovo, and were detrimental to the situation m the
Province and its status". 221
243. On March 28 1989, the Serbian Assembly proclaimed amendments to the Serbian
222
Constitution.
244. In July 1989, after tensions in Kosovo subsided, the SFRY Presidency adopted a
Decision that terminated the Decision of February 1989 on the establishment of
the emergency management of certain industry branches in Kosovo. 223
III The 1990 escalation of the crisis and the proclamation of a
"Republic of Kosovo"
245. Violent demonstrations resumed in Kosovo in early 1990. Demonstrators
demanded that Kosovo be granted the status of a republic. The Federal Executive
Council (Savezno izvrsno vece), headed by Mr. Ante Markovic from Croatia,
January 1990 that:
declared on 29
"The latest developments in the SAP of Kosovo - continuation of
separatist activity evidenced in the trend of separation of the SAP of
Kosovo from the SR of Serbia and the Socialist Federal Republic of
Yugoslavia - in the opinion of the Federal Executive Council, pose
the most direct threat to the integrity of the country, freedom and
the rights of citizens, as well as to the implementation of the
224
Programme of reform."
221Zapisnik sa 245. sednice Predsednistva SFRJ odrzane 24.marta 1989, [Minutes of the 245 thSFRY
Presidency session of 24 March 1989], p. 2, Annex 61 in Documentary Annexes accompanying this
222Written Statement.
Amandmani IX do XLIX na Ustav Socijalisticke Republike Srbije [Amendments IX to XLIX to the
Constitution of the Socialist Republic of Serbia],eni glasnik Socijalisticke Republike Srbije [Official
Gazette of the Socialist Republic of Serbia], No. 11/1989, Annex 55 in Documentary Annexes
accompanying this Written Statement.
223
Odluka Predsednistva SFRJ O. br. 51 od 12.jula 1989. godine [Decision of the SFRY Presidency O. No.
51 of 12 July 1989]. The Decision was signed by the President of the Presidency and member from
Slovenia, Mr. Janez Drnovsek], Annex 62 in Documentary Annexes accompanying this Written
Statement.
224
Ocene SIV-a o aktuelnoj politicko-bezbednosnoj situaciji u zemlji od 29. januara 1990. godine [The
Federal Executive Council evaluations in relation to the temporary political situation and security issues in
98 The Federal Executive Council further demanded that all rallies and strikes,
violence and other threats to persona! security of citizens should be terminated
immediately. This would, in the opinion of the Federal Executive Council, create
conditions for political discussions.
246. During the session of the SFRY Presidency held on 29 January 1990, with all
members present, the discussion of the political and security situation in Kosovo
revealed a broad consensus on the seriousness of the outbreak of violence. The
Presidency decided that the territorial integrity and borders of Kosovo, as well as
SFRY's constitutional order, were under threat and had to be protected by all
means. On 31 January, the SFRY Presidency adopted the decision on the use of
armed forces in Kosovo. 225 The Decision was signed by the President of the
SFRY Presidency Dr Janez Dmovsek, who was a member of the Presidency
representing Slovenia.
247. After the decline of tensions in March, the SFRY Presidency terminated the state
226
of emergency on 18April 1990.
248. This decrease of tensions lasted only until May 1990, when all ethnie Albanians
resigned from the Kosovo provincial govemment in protest at what they called
Serbian interference. 227
249. The Serbian Assembly, on 26 June 1990, adopted the Law on the Actions of the
228
Republic Agencies in the Special Circumstances and on the same occasion, the
the country, 29 January 1990], p. 111, Annex 63 in Documentary Annexes accompanying this Written
225Statement.
Odluka Predsednistva SFRJ O. br. 1 od 31. januara 1990. godine [Decision of the SFRY Presidency O.
No. 1of 31 January 1990], Annex 64 in Documentary Annexes accompanying this Written Statement.
226Odluka Predsednistva SFRJ br. 13 od 18. aprila 1990. godine [Decision of the SFRY Presidency O. No.
22713 of 18 April 1990], Annex 65 in Documentary Annexes accompanying this Written Statement.
See Alan Day, Eastern Europe and the Commonwealth of lndependent States (1999), p. 946; see, also,
International Crisis Group, Kosovo Spring Report (1998), p. 10 available at:
http://www.crisisgroup.org/home/index.cfm?id= 1601&!=1.
228Zakon o postupanju republickih organa u posebnim okolnostima [Law on the Actions of the Republic
Agencies in the Special Circumstances], Sluzbeni glasnik Republike Srbije [Official Gazette of the
Republic of Serbia], No. 30/90.
99 Decision about the existence of Special Circumstances on the Territory of
Kosovo. 229
250. On 3 July 1990, 111 members of the Kosovo Provincial Assembly (all of them
Kosovo Albanians), issued a "Constitutional Declaration on Kosovo as a self
standing and equal federal unit within the federation (confederation) Yugoslavia
as an equal subject with other units in the federation (confederation)". This
"declaration" was subsequently annulled in its entirety by the Constitutional Court
of Yugoslavia, as being contrary to the federal constitution. 230
251. In response to this unconstitutional assumption of powers that the provincial
bodies in Kosovo did not possess, the Serbian Assembly adopted the Law on
Termination of the Kosovo Provincial Assembly activities and the activities of the
231
Executive Council of Kosovo on 5 July 1990.
252. Following these events and the general situation of unrest in Kosovo, that
endangered the security and economy of the region, the Serbian Assembly
adopted the Law on Labour Relations under Special Circumstances on 26 July
1990. 232
253. These measures led to the replacement of the leadership in State institutions and
State-owned companies, including the dismissal of many Albanians. Human
Rights Watch described the situation as follows:
"Since the Serbian govemment took direct control of Kosovo's
administration in 1990, thousands of ethnie Albanian workers in
govemment and public enterprises have been dismissed from their
229Odluka o postojanju posebnih okolnosti na teritoriji Kosova i Metohije [The Decision about the existence
of Special Circumstances on the Territory of the SAP Kosovo and Metohija], Sluzbeni glasnik Republike
Srbije [Official Gazette of the Republic of Serbia], No. 30/90.
230
See supra paras. 194-195.
231Zakon o prestanku rada Skupstine SAP Kosova i pokrajinskog /zvrsnog veca [The Law on Termination of
the SAP Kosovo Assembly activities and the activities of the Executive Council of Kosovo], Sluzbeni
glasnik Republike Srbije [Official Gazette of the Republic of Serbia], No. 33/1990.
232
Zakon o radnim odnosima u posebnim okolnostima [Law on Labour Relations under Special
Circumstances], Sluzbeni glasnik Republike Srbije [Official Gazette of the Republic of Serbia], No. 40/90.
100 jobs because their loyalty to the Serbian government or their
professional competence was questioned by the Serbian authorities.
Others have been dismissed because they refused to recognize
Belgrade's authority or to accept the imposition of 'special
measures' in Kosovo. Other ethnie Albanians have been dismissed
due to an alleged 'surplus of labour' in a given establishment or
because an employee made an unfavourable comment to the press.
Many Albanians dismissed from their jobs were replaced by Serbs
or Montenegrins.
"On September 3, 1990, ethnie Albanians participated in a general
strike to protest the imposition of 'special measures' in Kosovo.
Many participants were fired from their jobs. Those private
proprietors who closed their shops in support of the strike were
fined and some were not allowed to re-open their business for one
year. Other workers faced disciplinary measures for having taken
part in the demonstration (e.g., a temporary eut in pay)."233
254. Subsequently, former Albanian delegates from the Kosovo Provincial Assembly,
at a secret meeting held in the village of Kacanik on 7 September 1990, adopted a
"Constitution" for the so-called "Republic of Kosovo". At the time, they were
advocating for Kosovo to be the seventh Yugoslav republic, and not an
independent State.
255. On 28 September 1990, the Serbian Assembly promulgated a new Constitution of
Serbia.234
256. In October 1990, the SFRY Presidency discussed again the political and security
situation in Kosovo, and concluded that it was difficult and complex. It was
emphasised that the Presidency was determined to fight against those who
233Human Rights Watch , Human Rights Abuses in Kosovo 1990-1992 (October 1992), p. 21, available
at: http://www.hrw.org/legacy/reports/1992/yugoslavia/
234For more see supra paras. 196-198.
101 proclaimed a "Republic of Kosovo", since this proclamation was contrary to the
235
SFRY Constitution and the vital interests of the Albanian nationality.
IV Dissolution of the SFRY and the situation in Kosovo
257. In June 1991, Slovenia and Croatia declared independence from the SFRY. After
a brief armed conflict in Slovenia in June 1991 and the retreat of the Federal
Army from Slovenia, a much more extensive conflict broke out in Croatia in July
1991. By the Brioni agreement of 7 July 1991, decisions by both Croatia and
Slovenia on independence were postponed for three months.
258. During this period, Kosovo Albanians began a broad campa1gn of boycotting
public institutions and began to establish parallel institutions of governance,
education and social protection.
259. On 22 September 1991 Albanian former members of the Kosovo Provincial
236 which was supported by an
Assembly adopted a "resolution on independence"
unofficial vote organized among Kosovo Albanians. According to one observer,
the programme of the Kosovo Albanian leadership was
"[n]o 'special status', no third republic, but only independence! has
been the official programme of the LDK [Democratic League of
Kosovo - the leading Kosovo Albanian party at the time] since the
referendum of 1991 and is by now the sole interpretation of
237
'Kosova Republika. "'
260. This "resolution of independence" was not recognized by any government, except
Albania's. In addition, it was not accepted by any of the international conferences or
diplomatie initiatives organized to resolve the conflicts on the territory of the SFRY.
235Zapisnik sa 77. sednice Predsednistva SFRY odrzane JO. oktobra 1990. godine [Minutes of the 77th
SFRY Presidency session of 10 October 1990], p. 2, Annex 66 in Documentary Annexes accompanying
this Written Statement.
236
237Kosovo Assembly, Resolution on Independence(7September 1999), reprinted in Weller, op. cit., p. 72.
See Stefan Troebst, Conflict in Kosovo: Failure ofprevention (1998), pp. 23-24, available at:
http://ecmi.de/download/working_paper_.pdf.
102261. In order to deal with the conflicts on the territory of the SFRY, the European
Community (EC) and its member States convened a peace conference on
Yugoslavia, which also included an Arbitration Commission, also known as the
"Badinter Commission" after its president. 238
262. On 16 December 1991, EC first issued Guidelines on the Recognition of New
States in Eastern Europe and in the Soviet Union, and in another declaration,
published on same day, the EC invited all former Yugoslav republics to state if
they wished to be recognized as independent States. 239 Slovenia, Croatia, Bosnia
and Herzegovina and Macedonia submitted their requests. The Kosovo Albanians
240
attempted to submit their request for recognition, but only republics of the
SFRY were addressees of the EC invitation for recognition.
263. The requests for recognition submitted by the SFRY republics were assessed by
the Arbitration Commission. The request submitted by the Kosovo Albanians was
not even considered.
D Kosovo 1992-1997
I Parallel institutions
264. In addition to the policy of boycotting public institutions in the Republic of
Serbia, by 1992 the Kosovo Albanians tried to establish parallel institutions of
govemance, including an office of the so-called "Kosovo president", a "Kosovo
assembly", a "Kosovo govemment", and parallel educational and health care
institutions, as well as a separate system of tax collection.
238
European Community Declaration, adopted at EPC extraordinary Ministerial Meeting, Brussels, 27
August 1991 (EPC Press Release P.82/91), reprinted in Snezana Trifunovska, Yugoslavia through
documentsfrom its creation toits dissolution (1994), pp. 333-334.
239European Community Declaration on Yugoslavia, 16 December 1991, UN Doc. S/23293 (17 December
1991), Annex 1; EC Declaration on the "Guidelines on the Recognition of New States in Eastern Europe
and in the Soviet Union", 16 December 1991, 16 December 1991, UN Doc. S/23293 (17 December 1991),
240nnex 2.
Letter from Dr. Rugova to Lord Carrington, 22 December 1991, Annex 76 in Documentary Annexes
accompanying this Written Statement.
103265. This was tolerated by the Serbian govemment. According to one observer,
"The authorities at Belgrade tolerated most of the parallel structures
built up by the Kosovo Albanians. Neither did they enforce the
collection of taxes nor insist on the recruitment of Albanians for the
army. This far-reaching separation of Serbian and Albanian
societies and "states" contributed to the low degree of political
friction. Sensitive issues, however, remained - the issuing of birth
certificates, passports, or drivers' licenses and other legal matter
like selling, buying and inheriting of landed property and real
estate."241
266. It should be noted, however, that in many spheres of social and public life in
Kosovo functional relationships between "parallel structures" and public
institutions continued to exist. The Kosovo Albanian boycott did not fully extend
to the State health care system, nor to other parts of the public sector, such as
publicly-owned companies where Kosovo Albanians continued to work
throughout the whole period discussed in this section. The Kosovo Albanians, in
242
short, did accepta number of Serbia's state institutions, even if grudgingly.
267. In the field of education, the boycott ensued after the Serbian Assembly adopted
uniform curricula for primary and secondary education throughout Serbia in
August 1990. Prior to the adoption of these new curricula, in June 1990, all
national minorities had been invited to propose their own teaching programs.
Whilst representatives of other ethnie groups made proposals, Kosovo Albanians
243
did not. The 1990 curriculum reform precipitated the Kosovo Albanians
boycott of public education. Kosovo Albanian educators chose to resign from
their posts and to establish a parallel educational system.
268. State authorities attempted to find a solution to the problem of education in
Kosovo throughout the period covering 1992 to 1998. For example, both Prime
Minister Panic, in 1992, and President Milosevic, in 1996, attempted to find a
241See Stefan Troebst, op. cit., pp. 19-20, available at: http://ecmi.de/download/working~papecl.pdf.
242International Crisis Group, Kosovo Spring Report (1998), p. 12.
243UN Doc. E/CN.4/1994/47 (17 November 1993), p. 30, para. 202.
104 244
solution with the assistance of international mediators. Due to an absence of a
settlement, tertiary and some secondary education of Kosovo Albanians was
organized and funded solely by the so-called "Kosovo govemment". However,
primary and much of secondary education of Kosovo Albanian pupils was
substantially funded by the State authorities. Specifically, public State funds
covered expenses associated with keeping primary and secondary schools open
and running, including employing support staff, paying for operational costs such
as electricity etc. Those teachers who refused to follow the new curricula received
salaries from the so-called "Kosovo govemment."
269. As with the boycott of the public education system, the boycott of the public
health system by Kosovo Albanians requires further explanation. Itis clear that
Kosovo Albanian leaders invested considerable resources towards creating and
maintaining parallel health institutions, yet at the same time the Kosovo Albanian
community continued to use the State public health system throughout the period
in question. Similar to education, the State authorities did not simply stop
financing the health system in the territory of Kosovo in response to the boycott.
Indeed, the number of staff members who were receiving salaries from medical
institutions, all of whom were public employees, remained stable between 1989
and 1999 and en masse resignations of Kosovo Albanian health care providers did
not occur.245
270. During the period under consideration (1992-1997), the human rights situation in
Kosovo was very serious. There were numerous reports of police harassment, ill
treatment and torture. There were trials against Kosovo Albanians that did not
meet fair trial standards. It should be noted, however, that the human rights
situation was not much better in the rest of Serbia and the FRY at the relevant
time. According to Amnesty Intemational's country report of 1994:
244
For more on the 1992 negotiations, see, e.g., CSCE Mission to Kosovo, Sandjak and Vojvodina Interim
Report, 17 November 1992, reprinted in Weller,p.cit.; for more on the negotiations between 1996 and
1998, see International Crisis Group,vo Spring Report (1998), pp. 22-24.
245See, generally, International Crisis Group, op. cit., pp. 25-26. See, also, CSCE Mission Kosovo,
Substantial Deduction of Djakovica Hospital, reprinted in Weller, op. cit., p. 114.
105 "[T]here were numerous reports of police ill-treatment and torture.
The majority of victims were ethnie Albanians in Kosovo province
but they also included Serbian and Montenegrin political opponents
of the govemment. At least three people died following ill
treatment in detention by police. Sorne 30, and probably more,
ethnie Albanians sentenced to prison terms of up to 60 days for
non-violent political activity were prisoners of conscience. Over 90
other ethnie Albanians were detained on charges of seeking the
secession of Kosovo by violence." 246
271. In accordance with their policy of boycotting Serbian State institutions, the
Kosovo Albanians refused to try to protect their rights through the procedures
already in place. According to a report of the mission of the Conference on
Security and Cooperation in Europe (hereinafter "CSCE") in November 1992,
"Our experience confirms that Albanians are reluctant to employ
proper grass root tactics with the authorities, often in the mistaken
belief that a formai, documented approach would constitute some
form of acknowledgement of the legitimacy of the regime." 247
272. This consequence of the boycott of public institutions merits close attention. Other
minorities residing in Serbia, including the Hungarians in Vojvodina, Muslims in
Sandzak, and Turks in Kosovo, chose to participate in public institutions and in so
doing achieved some success in addressing their demands. These experiences
offer evidence that a policy of engagement with public institutions provided an
opportunity for improvements in these communities. By choosing to boycott
institutions, and thus employ a policy of disengagement, the Kosovo Albanian
leadership effectively abandoned means with which to improve the human rights
situation.
246
Amnesty International Report 1994 Yugoslavia, AI Doc. EUR 01/02/95, available at:
http://www.unhcr.org/refworld/country,,AMNESTY,,SRB,,3ae6aa0d4,0.html; See also Amnesty
International Report 1995 Yugoslavia, AI Doc. EUR 01/01/96, available at:
http://www.unhcr.org/refworld/country ,,AMNESTY,,SRB,,3ae6aa 1263,0.html.
247
CSCE Missions to Kosovo, Sandjak and Vojvodina lnterim Report, 17 November 1992, reprinted in
Weller,op.cit.pp. 108-110.
106 II Elections
273. Kosovo Albanians persistently boycotted official elections, beginning with the
elections held in 1990. This boycott was respected by Kosovo Albanians with
respect to elections for all levels of government (federal, republic and local).
274. The Kosovo Albanians held their own elections on 24 May 1991, which the
248
Federal and Republic authorities deemed illegal.
275. Despite the attitude of the Kosovo Albanians, State institutions continued to
organize elections in Kosovo in 1989 (elections for the Provincial and Republican
Assemblies), in 1990 (Republican Assembly), in 1992 (Federal and Republic
Assemblies elections, Presidential elections, and local elections), in 1993
(Republic Assembly election), in 1996 (elections for the Federal Assembly and
local elections), and in 1997 (Republican Assembly election and Presidential
election).
276. Kosovo Albanians and their political parties could participate at all these elections
under the same conditions as all other citizens and political parties in Serbia, but
refused to do so. According to the CSCE Mission to Kosovo:
"The Albanians seem more than ever entrenched in their position to
stay apart from the political system now in force in Kosovo.
Illustrative hereof is their negative approach to the coming Federal
and Republic elections (1992)." 249
277. Even when the Serbian democratic leaders opposing Milosevic in the elections,
invited the Kosovo Albanians to participate, they refused. According to 1992
CSCE Mission report:
248
CSCE Report of the Exploratory Mission to Kosovo, Vojvodina and Sandjak, 2-8 August 1992, para. (I)
(2), reprinted in Weller, op. cit., pp. 104-106.
249CSCE Missions to Kosovo, Sandjak and Vojvodina Interim Report, 17 November 1992, reprinted in
Weller, op.cit.pp. 108-110.
107 "Although crediting some members of the federal government with
good intentions, they think little of any government' s power to
enforce changes in Kosovo. Certain Albanian leaders, one must
suspect, would view the elections as being important only to the
extent that they move Serbia closer to chaos through a victory for
the present Serbian regime and its supporters." 250
278. Similarly, in relation to participation m the electoral process, the following
observation highlights several relevant points:
"Those Kosovars who advocated Albanian participation in the rump
Yugoslav elections were dismissed as traitors by the LDK, which
excused their non-participation in the December (1992) elections:
'The result of the elections in Serbia and Montenegro has
confirmed our predictions that Milosevic and Seselj would
win and that the Albanian vote would have no influence on
the final result since Milosevic would manufacture the votes
he needed in the same way as his regime printed as much
money as it needed.'
In reality, however, the million Albanian votes could undoubtedly
have ousted Milosevic, but as the Kosovar leadership admitted at
the time, they did not want him to go. Unless Serbia continued to be
labelled as profoundly evil - and they themselves, by virtue of
being anti-Serb, as the good guys - they were unlikely to achieve
their goals. lt would had been a disaster for them if a peace monger
like Panic [the FRY prime minister at the time and Milosevic's
opponent at the elections] had restored human rights, since this
would have left them with nothing but a bare political agenda to
251
change borders".
250Ibid.
251See Vickers, op. cit., pp. 267-268.
108 III International involvement in the Kosovo crisis and attempts at dialogue
(1992-1997)
279. As mentioned above, the Kosovo Albanian insistence for recognition of the
province of Kosovo as an independent State was not even discussed at the peace
conference on Yugoslavia convened by the EC in 1991. However they have
continued to repeat this same request from the beginning of 1992 onwards. In
May 1992, an CSCE fact-finding mission visited the FRY and concluded that:
"The main problem is the relationship between the overwhelming
Albanian population and the existing Serbian administration. The
aim of ethnie Albanians, who are refusing any direct contact with
the Serbian authorities, is an independent Kosovo. The Federal and
Serbian authorities insist that Kosovo must remain an integral part
of the Serbian state."52
280. In August 1992, there was a new diplomatie attempt to find a solution for the
cns1s m the former Yugoslavia, known as the London Conference.
Representatives of the Kosovo Albanians were not invited to attend.
281. The leaders of the Kosovo Albanians presented a memorandum to the London
253
Conference in which they argued for their participation, but to no avail. In the
memorandum, they also reiterated that they were not interested in any kind of
autonomy or self-government within Serbia or FRY, but only in full
independence:
"Any measures going beyond the interim protection for the people
of Kosovo which might be imposed upon them, such as an enforced
252CSCE, Report on Conflict Prevention Centre Fact-finding mission to Kosovo, 5 June 1992, reprinted in
Weller,op. cit., p. 102..
253Kosovo Albanians Memorandum to the International Conference on Former Yugoslavia, 26 August 1992,
reprinted in Weller, cit., pp. 86-88.
109 merger with the new "Yugoslav" entity on the basis of so-called
254
autonomy, is bound to be rejected by them ..."
282. In contrast to the Kosovo Albanians' unconditional request for independence, the
conclusions of the London Conference reiterated the basic principles of negotiated
settlement for the problems present in the region of the former Yugoslavia. Two
principles were of crucial importance for such a solution to the tensions in the
region. The first was that a negotiated settlement was needed. The second
principle reiterated fondamental mies of international law that were applicable:
"(viii) the fondamental obligation to respect the independence,
sovereignty and territorial integrity of all states in the region; and to
respect the inviolability of all frontiers in accordance with the UN
Charter, the CSCE Final Act and the Charter of Paris. Rejection of
255
all efforts to acquire territory and change borders by force;"
283. At the end of the London Conference, on 27 August 1992, it was decided that the
International Conference on Former Yugoslavia would remain active until a final
settlement of the problems in the former Yugoslavia was reached, and that the
activities of the Conference would be continued by six Working groups. The
Kosovo issue was discussed by a Special Group within one of these six Working
groups that addressed ethnie and national communities and minorities. 256
284. The representatives of the Kosovo Albanians accepted to participate m the
Working group on ethnie and national communities and minorities, the Special
Group for Kosovo. However in so doing, they nonetheless stuck to their previous
257
position that the Kosovo Albanians were not a national minority.
254Ibid., p. 88.
255Statement of Principles, 26 August 1992, reprinted in B.G. Ramcharan (ed.), The International
Conference on Former Yugoslavia(1997), pp. 33-34.
256
See Working program of the Conference, 26 August 1992, reprinted in ibid., pp. 34-37..
257Kosovo Albanians letter to Geneva Conference, undated, reprinted in Weller, op. cit., p. 90.
110285. The work of the Special Group on Kosovo started in September 1992, in Geneva,
and subsequent talks took place in Pristina and Belgrade. Due to the fact that the
representatives of the Kosovo Albanians remained fixed to their position neither
to recognize Serbian State institutions nor the authority of the Govemment of
Serbia in Kosovo, the Special Group tried to focus on areas where progress could
be achieved. For those reasons, efforts focused on the fields of education and
health care. Unfortunately, even in these fields the representatives of the Kosovo
Albanians remained entrenched in their position, and the negotiations quickly
reached an impasse. 258
286. Following a fact-finding mission in August 1992, the CSCE established a Mission
of long duration in Kosovo, Vojvodina, and Sanjak in September 1992. 259The
basic objectives of the CSCE mission were to promote dialogue among ethnie
communities, to collect information on the infringement of human rights, and to
protect minority rights. 260The CSCE mission established offices in Kosovo and
facilitated dialogue between State institutions and the Kosovo Albanians. The
work of the Mission ended in July 1993, due to the refusa! of the FRY
Govemment to prolong the residence permits of the Mission members. One of the
reasons for this decision was, inter alia, the fact that after July 1992 the FRY was
261
suspended from participation in the CSCE.
287. The final report of the head of the CSCE mission dated 29 June 1993 explains the
position of Kosovo Albanians:
"Albanian leaders have not been greatly concemed about the CSCE
efforts to promote dialogue with Serbia. In the drawn-out
educational talks and more recently in the negotiation to retain an
independent press, they have been less flexible than their Serbian
counterparts. The latter have offered significant concessions but
258See Ramcharan, op. cit., pp. 1602-1614..
259UN.Doc. A/47/392-S/24461 (14 August 1992), Annexes I,II,III.
260
261Ibid., Annex III.
CSCE, Committee of Senior Officiais, Decision of 8 July 1992, reprinted in Rev. of Int'l Aff. (Belgrade)
Nos. 1005-1006 (1992), p. 22.
111 asked in return for some form of acknowledgment of Serbian law
and order. The former reject all conditions that in the narrow and at
times inconsistent perception of their people could be interpreted as
acceptance of Serbian sovereignty over Kosovo." 262
288. From mid-1993 until the end of 1995, the focus of the international community
was on the armed conflicts in Bosnia and Herzegovina and Croatia, and not on
Kosovo. In November 1995, the General Framework Agreement for Peace in
63
Bosnia and Herzegovina (also known as "Paris-Dayton Agreement")2 was
signed, ending the conflict in Bosnia and Herzegovina. Subsequently, the Peace
264
Implementation Council (PIC) was established. It focused on the
implementation of the Paris-Dayton Agreement in Bosnia and Herzegovina and
thus paid very little attention to other regions of the former Yugoslavia. It should
be noted that the PIC also undertook fonctions of the International Conference on
the Former Yugoslavia.
289. After the signing of the Paris-Dayton Agreement, another attempt at negotiations
concerning educational issues was made. In September 1996, an agreement was
signed between Mr. Ibrahim Rugova and Mr. Slobodan Milosevic, who was the
president of Serbia at the time, on the normalization of education in Kosovo.
According to this agreement, a group consisting of three individuals of Serbian
nationality, three individuals of Albanian nationality and three mediators was
265
formed in order to monitor the implementation of the agreement (plan 3+3).
However, armed rebellion in Kosovo started before the agreement could be fully
1mpemente . d 266
262
Special Report: Kosovo- Problems and Prospects, by Tore Bogh, the Head of Mission (29 June 1993),
reprinted in Weller, op. cit,, pp. 117-120.
263UN Doc. S/1995/999 (30 November 1995).
264Conclusion of the Peace Implementation Conference, London, 9 December 1995 reprinted in Trifunovska,
Yugoslavia through documents from its creation to its dissolution (l 994) pp. 531-541, para. 21.
265
St. Egidi [St Egidio] Education Agreement, 1 September 1996, and Agreed Measures for the
Implementation of the Agreement on Education, 23 March 1988, Annex 79 in Documentary Annexes
accompanying this Written Statement.
266During the first half of 1998, in accordance with the above mentioned agreement, the authorities handed
over buildings belonging to the Faculties of the University of Pristina to Kosovo Albanian teaching staff
and students, see Report of the Secretary-General, UN Doc. S/1008/470 (4 June 1998), para. 44: However,
due the outbreak of armed rebellion, 1998/99 academic year was postponed and never started, and at that
point Kosovo Albanian's demands extended far beyond the sphere of education.
112 E. Conflict 1997/1999
I "Kosovo Liberation Army"
290. Before discussing the events that occurred between the second half of 1997 and
the beginning of 1998, it is necessary to first introduce a new element that
emerged in the Kosovo crisis during this period: the so-called "Kosovo Liberation
267
Army" (hereinafter "KLA").
291. In several of its statements, the KLA declared that it considered itself to be a
military organization of the Kosovo Albanians, and that its ultimate goals were
Kosovo's independence, and its reunion with what it saw as the Albanian
homeland. Accordingly, the KLA was based in Kosovo, but it also conducted
operations in Macedonia and Montenegro, with the goal of creating a "Greater
268
Albania".
292. It should be noted that the emergence of the KLA was a direct challenge to the
policy of a peaceful boycott pursued by the Kosovo Albanian political parties at
the time.
293. One of the first public announcements made by the KLA was a statement in which
it claimed responsibility for carrying out a terrorist action against refugee camps
in February 1996. These camps were inhabited by Serbian refugees, part of some
200,000 people who were expelled from Croatia in August 1995 as part of the so
called "Operation Storm" of the Croatian army. Fewer than 10,000 of these
refugees had settled in Kosovo, but they almost immediately became the target of
Albanian extremist groups.
294. In its public announcements, the KLA also invited other countries, especially the
United States of America, to recognize the independence of Kosovo. The
267In Albanian: "Ushtria Çlirimtare e Kosovës" or "UÇK"; in Serbian: "Oslobodilacka vKosova" or
"OVK". For more on the creation of the KLA, see, e.g., ICTY, Prosecutor v. Fatmir Lima} et al., Case No.
IT-03-66, Judgment, 30 November 2005, paras. 43-44.
268Der Spiegel, 6 July 1998, "Reality is war", interview with Jakup Krasnici, spokesmen for the Kosovo
Liberation Army, pp. 122-123.
113 alternative, claimed the KLA, was the unavoidable outbreak of armed conflict in
Kosovo. The KLA also made death threats against Kosovo Albanian leaders who
would sign any agreement with Serbia conceming Kosovo's autonomy. 269
295. This shows that the aim of the KLA was not only to conduct operations against
the Serbian population living in Kosovo, but also to conduct operations against
those Albanians who "collaborated" in any way with Serbian State institutions. By
undertaking attacks against Albanians who were perceived to "cooperate" with
Serbia, and the statement that any Albanian who signed any agreement on
autonomy would be considered a traitor, the KLA did not leave any room for
negotiations on anything else but independence.
296. Attacks on "collaborators" continued throughout the entire period of the armed
conflict and was clearly intended to dissuade Kosovo Albanians from engaging in
any way with either Serbian inhabitants of Kosovo or with the Govemment of
Serbia.
297. According to the official sources, by February 1998 the KLA murdered 10
policemen and 24 civilians 270 The United States Balkan Envoy, Mr. Robert
Gelbard, characterized the KLA as a terrorist organization during his visit to
Kosovo on 23 February 1998. 271
II Armed conflict: February-October 1998
298. Four police officers were killed in a KLA ambush in the village Likosane (central
Kosovo) on 28 February 1998. In police operations that followed from 28
February to 5 March, 2 police officers and more than 80 Kosovo Albanians were
272
killed in the villages Likosane, Cirez and Prekaz.
269
See Judah, op. cit., p. 131.
270lt conducted 31 terrorist attacks in 1996, 55 in 1997, and 66 in January and February of 1998 alone, see,
generally,RY Ministry of Foreign Affairs, White book- Terrorism on Kosovo and Metohija and Albania,
(1998); See also International Crisis Group, Kosovo Spring Report (1998), p. 30.
271
Agency France press, 23 February 1998.
272See Judah, op. cit., pp. 138-140.
114299. Almost immediately after these hostilities, on 5 March 1998, NATO stated that it
had:
"legitimate interest in developments in Kosovo, inter alia, because
of their impact on the stability of the whole region which is of
273
concern of the Alliance".
300. During March, both the Kosovo Serbs and Kosovo Albanians organized massive
demonstrations throughout Kosovo. At the same time, in the central and Western
part of Kosovo armed clashes between police forces and KLA occurred, while
KLA continued targeting both Serb and Albanian "collaborators" through a series
of terrorist actions.274
301. On 9 March 1998, the Contact Group, comprising France, Germany, Italy, Russia,
the United Kingdom and the United States, issued a statement on the Kosovo
crisis. The Contact group reaffirmed its commitment to uphold human rights
values, and their condemnation of both violent repression of non-violent
expression of political views, including peaceful demonstrations, as well as
terrorist action, including those of the so- called Kosovo Liberation Army. 275
302. On 10 March 1998, the Government of the Republic of Serbia invited
representatives of the Kosovo Albanians to negotiations and appointed its
negotiators for:
"Unconditional talks about all issues relating to Kosmet [Kosovo
276
and Metohija], whenever and wherever in the territory of Serbia".
273
NATO Statement, 5 March 1998, NATO Press Release (98)29, available at:
http://www.nato.int/docu/pr/1998/p98-029e.htm.
274Foreign & Commonwealth Office, Kosovo chronology: 1997 to the end of the conflict (1999), available at:
http://www.fco.gov.uk/resources/en/pdf/pdf5/fco_pdCkosovochronolgy.
275
276UN Doc. S/1998/223 (9 March 1998).
FRY Government Statements 13 and 14 March 1998 reprinted in Weller, op. cit., p. 351.
115303. The Kosovo Albanian representatives discarded this invitation and failed to
appear at the meeting scheduled for 12 March 1998. Mr. Ibrahim Rugova
articulated, once again, the position of Kosovo Albanians:
"Former Yugoslavia has ceased to exist. Kosovo has its own
borders and we have not asked for a change of borders. Perhaps
Serbia does not think that way but an independent Kosovo is a good
277
thing for Serbia".
304. Despite the failure of direct negotiations in March 1998, some constructive steps
were made in the field of education. Serbian and Albanian commissions tasked
with the implementing of the plan "3+3" signed an agreement to open Albanian
institutions and faculties on 23 March 1998. Following the agreement, the
278
Institute of Albanology was reopened in Pristina on 31 March.
305. On 22 March 1998, the so-called Kosovo Albanian "parliamentary" and
"presidential" elections were organized in Kosovo. The Serbian State authorities
did not take any forceful measures to prevent the elections, but equally they did
not recognize their results. The Kosovo Albanians again elected Mr. Ibrahim
Rugova as "president".
306. On 31 March 1998, the Security Council adopted resolution 1160 (1998), which
addressed the deteriorating situation in Kosovo. In the preamble, the Security
Council
"Condemn[ed] the use of excessive force by Serbian police forces
against civilians and peaceful demonstrators in Kosovo, as well as
all acts of terrorism by the Kosovo Liberation Army or any other
277
Reuters News Agency, 12 March 1998; See also International Crisis Group, Kosovo Spring Report, 1998,
p. 11, available at: http://www.crisisgroup.org/home/index.cfm?id=l601&1=1.
278Report of the Secretary-General pursuant to Security Council resolution 1160, UN Doc. S/1998/470 (4
June 1998), para. 44.
116 group or individual and all external support for terrorist activity in
279
Kosovo including finance, arms and training".
Security Council resolution 1160 (1998) also affirmed the commitment of
all member States of the United Nations to "the sovereignty and territorial
integrity of the Federal Republic of Yugoslavia", and expressed support for
an "enhanced status for Kosovo which would include a substantially
280
greater degree of autonomy and meaningful self-administration".
In resolution 1160 the Security Council also
"Call[ed] upon the Federal Republic of Yugoslavia immediately to
take the further necessary steps to achieve a political solution to the
281
issue of Kosovo through dialogue ...
and
Call[ed] upon the Kosovar Albanians leadership to condemn all
terrorist action, and emphasizes that all elements in the Kosovo
Albanian community should pursue their goals by peacefully means
only_,,2s2
307. Operative paragraph 8 of the same resolution imposed an arms embargo on the
FRY, including Kosovo. The decision on whether or not the embargo would be
lifted was contingent on the following substantive requirements: substantive
dialogue with an international presence, withdrawal of special police units and
cessation of their action affecting civilians, humanitarian and human rights
monitoring access, and the introduction of a new OSCE presence.
308. Meanwhile, the situation on the ground deteriorated due to clashes between
Government forces and the KLA. According to the UN Human Rights Field
Operation in the Former Yugoslavia Report of 30 April 1998, the UNHCR
279
See Security Council resolution 1160 (1998), Preamble, para. 3, Annex 16 in Documentary Annexes
accompanying this Written Statement.
280Ibid., Preamble, para. 6, and operative para. 5.
281Ibid., par1.
282Ibid., para. 2.
117 estimated that around 17,500 people were displaced inside Kosovo and that
between 5,000 and 6,000 had fled to Montenegro and Albania. 283
309. Following intensive diplomatie efforts by the international community, especially
the United States Special Representative Robert Gelbard, on 15 May 1998 a
meeting between Mr. Slobodan Milosevic and Mr. Ibrahim Rugova was held and
284
an agreement on the commencement of negotiations was reached. On the same
day and according to the "3+3" plan, the Serbian authorities handed over three
faculties of the University of Pristina to the Kosovo Albanian staff. 285
31O. The first meeting between the Serbian govemment and the Kosovo Albanians
negotiation teams was held on 22 May 1998. After this meeting, both sides issued
. . h f f h . . 286
positive statements ont e uture o t e negotiat10ns.
311. However, the Kosovo Albanian delegation did not appear at the next meeting,
which had been scheduled for 5 June 1998, effectively bringing negotiations to a
halt once again. The official explanation from the Albanian delegation was that
they refused to participate in further negotiations due to the military and police
operations that had commenced in the territory of South-West Kosovo in late May
and b egmnmg o f June.287
312. Previously, during the run-up to the negotiations and notably following the
meeting held between Mr. Milosevic and Mr. Rugova on 15 May 1998, the KLA
had publicly declared their disapproval of the meeting and any form of
negotiation. The KLA representatives strongly reiterated their objective, namely
288
the independence of Kosovo.
283
UN High Commissioner for Human Rights, Field Operation in Former Yugoslavia, 30 April 1998, para.
52, available at: http://www.unhchr.ch/html/menu2/5/ex_yug/yug_pr12.htm.
284Statement on the talk of the FRY President Slobodan Milosevic with Dr Ibrahim Rugova and his
Delegation, 15 May 1998 reprinted in Weller, op. cit., p. 353.
285
Report of the Secretary-General pursuant to Security Council resolution 1160, UN Doc. S/1998/470 (4
June 1998), para. 44.
286FRY on talks in Pristina including statement by Kosovo Albanian side, 22 May 1998, reprinted in Weller,
op. cit., p. 353.
287
288UN Doc. S/1998/608 (2 July 1998), para. 3, Annex V.
See Judah, op. cit., pp. 154-156.
118313. During the spring of 1998 the KLA started to blockade the main transportation
routes through Kosovo, and attacked positions held by the police forces (MUP)
and Federal Army units (VJ). These KLA operations resulted in some serious
casualties. In response to these attacks, Govemment forces started an offensive in
the central-Western region of Kosovo, including the municipalities of Decani,
Orahovac, Djakovica, Klina, and Glogovac. 289
314. After direct negotiations between the Serbian State and Kosovo Albanian
negotiating teams in May and June 1998 had failed, the next step towards
mediated negotiations was made at the Bonn meeting of the Contact Group, held
on 8 July 1998, initiating what was to be called the Hill negotiation process (after
United States envoy Mr. Christopher Hill). 290
315. Mr. Hill conducted shuttle diplomacy between State and Kosovo Albanian
representatives, eventually achieving an outline agreement, which envisaged a
three year stabilization and normalization period to allow the re-establishment of
291
democratic institutions.
316. In the meantime, towards the end of May and beginning of June, the situation on
the ground further deteriorated. The KLA controlled an area of 3,000 square
kilometres (roughly 30% of Kosovo's territory), including some 250 villages, and
a population of 700,000 to 800,000 individuals, most of whom were located in the
· · 292
Dremca reg10n.
317. From the second half of June 1998 onwards, the KLA modified its tactics and
tried to take control of some strategic industrial facilities:
"On or about 23 June 1998 KLA took control of a coal mine and
the village of Bardhi-i-Madh/Veliki Belacevac, 10 km west of
289ICTY, Prosecutor v. Fatmir Limaj et al. (IT-03-66), Judgment, 30 November 2005, paras. 144-158.
2° Contact Group Statement, Bonn, 8 July 1998, reprinted in Weller, op. cit., p. 238.
291
292UN Doc. S/1998/912 ( 3 October 1998), para. 4, Annex.
Information on the situation in Kosovo and on measures taken by the Organization for Security and
Cooperation in Europe, UN Doc. S/1998/608, Annex (2 July 1998), para. 3.
119 Prishtina/Pristina. Shooting could be heard in the area for the entire
day and Kosovo Albanian residents were reported to have fled to
Prishtina/Pristina... About a week later the Serbian forces
293
attempted to retake the mine."
318. One month latter from 18 to 22 July, the KLA attacked and seized for the first
time, over a period of a few days, a larger urban centre in Kosovo called
Orahovac:
"On 19 July 1998 the KLA offensive was launched in
Rahovec/Orahovac, an operation described as KLA's first major
attack on a larger city... The KLA captured approximately 85 ethnie
294
Serbs. Reports indicated that 40 of them were never seen again."
319. These KLA actions provoked a fierce reaction from Government forces (both
from the Ministry of Interior of the Republic of Serbia (MUP), and the Federal
Army (VJ)), which launched an offensive that lasted throughout the months of
August and into September 1998. The affected area was the central, Western, and
Southern parts of Kosovo, encompassing around 40 to 50 percent of the
province's territory.
320. A senous surge m the number of refugees and internally displaced persans
occurred after the KLA' s seizure of Orahovac and the commencement of the
Government forces' counter-offensive in late July 1998. According to the United
Nations report from 29 July 1998, around 150,000 people fled their homes,
100,000 of whom were displaced within Kosovo, while 35,000 to 40,000 were
displaced in central Serbia, Montenegro or Albania. 295
321. During the period from June to September 1998, the State Government and its
negotiating team issued several more invitations to the Kosovo Albanian
293
ICTY, Prosecutor v. Fatmir Limaj et al. (IT-03-66), Judgment, 30 November 2005, para. 159.
294Ibid., para. 162.
295UN Inter Agency Update on Kosovo, Situation Report 48, 29 July 1998, reprinted in Weller op. cit., p.
264, available at:
http://www.reliefweb.int/rw/rwb.nsf/0/75b905c83c260125c 125665100338975?0penDocument&Click;.
120 negotiation team for the continuation of the negotiations. None of these invitations
296
were accepted.
322. Govemment forces had largely completed their major offensive activities by the
end of September 1998. According to some estimates, the hostilities that took
place between March and September 1998 led to more than 600 civilian deaths on
both sides. 297 Another consequence of this cycle of fighting was the significant
mcrease of the number of refugees and intemally displaced persons, which
affected both sides of the conflict. According to the United Nations, at the
beginning of October 1998, the total number of refugees and intemally displaced
persons stood at some 280,000, of which 200,000 were intemally displaced
persons within Kosovo, and 80,000 were located in central Serbia or neighbouring
298
countries.
323. Due to the events in Kosovo between August and September, on 24 September
1998 the United Nations Security Council adopted resolution 1199 (1998) which
reaffirmed once again its demand for all parties to immediately cease hostilities.
The resolution requested that the authorities of the FRY and Kosovo Albanian
leadership take immediate steps to improve the humanitarian situation and to enter
into a meaningful dialogue without preconditions. In its closing paragraphs, the
resolution again requested the FRY authorities to cease all action by its security
forces affecting the civilian population, to facilitate effective international
monitoring missions such are European Community Monitoring Mission,
UNCHR and ICRC, and to make rapid progress in its dialogue with Kosovo
299
Albanians.
296
Press release of the Ministry oflnterior of the Republic of Serbia, 5 June 1998 reprinted in Weller, op. cit.,
p. 354; See also Kosovo chronology: 1997 to the end of the conflict (1999)
297Report of the Secretary-General pursuant to Security Council resolution 1160, UN Doc. S/1998/834 (4
September 1998), para. 7.
298
299Report of the Secretary-General, UN Doc. S/1998/912 (3 October 1998), para. 11.
See Security Council resolution 1199 (1998), Annex 17 in Documentary Annexes accompanying this
Written Statement.
121324. Only one day after this Security Council resolution was adopted, NATO
threatened military action against the FRY and raised its level of military
300
preparedness for that purpose.
325. In early October 1998, the United States Special Envoy, Mr. Richard Holbrooke,
travelled to Belgrade in order to find a diplomatie solution to the crisis. On 13
October 1998, NATO issued an activation order for both limited air-strikes and a
phased air campaign to commence after the expiry of a period of 96 hours.
326. Following the negotiations between the Special Envoy and the Government, the
OSCE and the FRY signed an agreement on the OSCE Kosovo Verification
Mission on 16 October 1998. 301 On the same day, an agreement was reached
regarding NATO air surveillance over Kosovo. 302 The United Nations Security
303
Council resolution 1203 of 24 October 1998 welcomed these agreements.
327. In the meantime, the Hill negotiation process moved further along. The parties
received the first formal proposa! on 1 October 1998. The proposa! suggested an
intricate system of public authorities in Kosovo, according to which Kosovo
would have the highest possible level of self-governance but not independence.
Importantly, the concluding provision stipulated that the agreement could be
304
changed only through mutual agreement on both sides.
328. During November and December 1998, Special Envoy Hill presented two new
drafts, while the government of Serbia presented its own suggestions for
modifying the plan. 305
300
Statement by the NATO Secretary General following the ACTWARN decision, 24 September 1998,
available at: http://www.nato.int/docu/pr/1998/p980924e.htm.
301OSCE/FRY Agreement, 16 October 1998, UN Doc. S/1998/978 (16 October 1998).
302
303NATO/FRY Agreement, 16 October 1998, UN Doc. S/1998/991 (23 October 1998)
See Security Council resolution 1203 (1998), Annex 18 in Documentary Annexes accompanying this
Written Statement.
304First Draft proposai for the Seulement of the Crisis in Kosovo, 1 October 1998, reprinted in Weller, op.
cit., pp. 359-362.
305Second Draft proposai for the Seulement of the Crisis in Kosovo, 2 November 1998, reprinted in Weller,
op. cit., pp. 362-369; Third Draft proposai for the Seulement of the Crisis in Kosovo, 2 December 1998,
reprinted in Weller,p. cit., pp. 376-382; Joint proposai of Political Framework of Self-governance of
Kosovo, 20 November 1998, reprinted in Weller,op. cit., pp. 372-375.
122329. The position of the Kosovo Albanians to the Hill proposals is best illustrated by
the statements of their representatives. In its statement of 3 November 1998, the
so-called "Govemment of the Republic of Kosova" requested recognition of the
right to self-determination and full independence that would be facilitated through
306
an interim agreement.
330. Mr. Fehmi Agani, the head of the Kosovo Albanian negotiation team reaffirmed
307
on 1December 1998 that the issue of independence was non-negotiable.
331. Representatives of the KLA were even more resolute than the Kosovo Albanian
negotiators. The KLA statement of 5 December 1998 proclaimed that KLA was
not ready to accept even temporary coexistence with Serbia before full
308
independence of Kosovo could be achieved.
332. Regardless of these statements, the Hill team continued its work and produced one
309
more draft on 27 January 1999, two days before the Contact Group decided to
summon parties to talks in Rambouillet, France.
333. The period covenng October 1998 to January 1999 was characterized by an
increasing number of retumees to Kosovo, a reduction in the number of
Govemment forces on the ground, coupled with the readiness of KLA units to re
establish control over an even greater part of the territory from which the
Govemment forces had withdrawn according to the agreement. In the territory
under its control, the KLA established its own authority, as well as its own check
. . 1 . 310
pomts m numerous ocatlons.
306Kosovo Statement on Fundamental Principles for Settlement, 3 November 1998, reprinted in Weller, op.
cit., p. 369.
307Kosova Press Release, 1December 1998 reprinted in Weller, op. cit., p. 375.
308
Kosova Press Release, 5 December 1998 reprinted in Weller, op. cit., p. 382.
309Final Draft proposal for the Seulement of the Crisis in Kosovo, 27 January 1999, reprinted in Weller, op.
cit., pp. 383-393.
310Report of the Secretary-General, UN Doc. S/1998/1068 (12 November 1998), paras. 11-17; Report of the
Secretary-General, UN Doc. S/1998/1147 (4 December 1998), paras. 7-12; Report of the Secretary
General, UN Doc. S/1998/1221 (24 December 1998), paras. 5-16.
123334. Special Envoy Holbrooke confirmed that throughout this period the KLA took
311
very provocative steps in an effort to draw NATO into the crisis.
335. The UN's Inter Agency Update of 11 January 1999 reported fighting between
Government forces and the KLA in the area of Podujevo, in North-Eastern
Kosovo. This area had previously been outside the main area of conflict. The
report also contained information about a great number of incidents and violence
in urban centres throughout Kosovo.
III February-March 1999: Rambouillet conference and a new cycle of violence
336. On 29 January 1999, the Contact Group issued a statement in which it condemned
the escalation of violence for which both Belgrade security forces and the KLA
were responsible. It also decided to
"summon representatives from the Federal Yugoslav and Serbian
Governments and representatives of the Kosovo Albanians to
Rambouillet by February, under the co-chairmanship of Hubert
Vedrine and Robin Cook, to begin negotiations with the direct
312
involvement of the Contact Group."
337. On 30 January 1998, NATO declared that it was "ready to take whatever
measures are necessary in the light of both parties' compliance with international
313
commitments and requirements". The NATO Secretary-General was authorized
314
to use air strikes against the FRY.
338. The Rambouillet negotiations commenced on 6 February 1999 and lasted until 23
February 1998. During the negotiations, three Drafts of Interim Agreements for
Peace and Self-Governance on Kosovo were proposed by three Contact Group
negotiators: Ambassador Hill (USA), Mr. Petritsch (European Union) and Mr.
311SeeJudah,op.cit.,p.191.
312See UN Doc. S/1999/96 (29 January 1999), para. 3 (d).
313
See UN Doc. S/1999/107 (2 February 1999), p. 4.
314Ibid.
124 315
Mayorski (Russia). Apart from numerous disagreements in relation to various
minor issues (i.e. use of the term "constitution"), there were fondamental
disagreements over the presence of NATO forces throughout the territory of the
FRY and over the process by which a final settlement would be reached.
339. In relation to the issue of a final settlement, the position of the Kosovo Albanian
delegation was very clear from the very beginning of the negotiations and
remained unchanged until their end: the final settlement was to be established by a
referendum in Kosovo. Taking into account the ethnie composition of the
province, it was clear that such referendum could lead to only one result, namely
the secession of Kosovo from the FRY and Serbia.
340. The draft Rambouillet Accords in Chapter 8, Article I, paragraph 3 provided that
an international conference would be convened
"... to determine a mechanism for a final settlement for Kosovo, on
the basis of the will of the people, opinions of relevant authorities,
each Party's efforts regarding the implementation of this
316
Agreement, and the Helsinki Final Act...".
This provision is the only place where the text of the Rambouillet Accords uses
the term 'people'. Itotherwise only refers to the 'Kosovo population' . 317 Itfollows
that the drafters deliberately did not equate the 'Kosovo population' with the term
'people'.
341. Further, no understanding was reached during the Rambouillet negotiations on the
issue of whether the 'will of the people' was tantamount to that of the sole
population of Kosovo. Itshould be noted that the delegation of Kosovo had during
the negotiations unilaterally stated that it was their understanding that the 'will of
315Drafts of lnterim Agreements for Peace and Self-Governance on Kosovo: 6 February, 18 February, 23
316February 1999, reprinted in Weller, op. cit., pp. 421,434,453.
See UN Doc. S/1999/648 (7June 1999).
317Ibid., Framework, Art. II, No. 6; Chapter I, Art. II, No. 1, b (i) and (ii), No. 3; Chapter II, Art. VI, No. 1, a
(ii).
125 the people' in the aforementioned clause referred to "the will of the people in
Kosova" 318
342. However, this understanding was not shared by either the FRY, the territorial
sovereign, or other States involved in the negotiations. Indeed, there was only one
third party participating in the negotiation process which
"may have indicated a willingness to g1ve certain bilateral
assurances to the effect that this formulation [i.e. the one referring
to the will of the people] did indeed refer to a right of the people of
Kosovo to make manifest their will in relation to the future status of
· ,,319
the terr1tory.
343. After the deadline for the completion of the negotiations at Rambouillet had
expired, neither side was ready to sign the agreement; both postponed their
decision until 15 March 1999. Subsequently, the FRY delegation sent a new
320
revised draft agreement while the Kosovo Albanians accepted the plan.
344. The letter of acceptance of the agreement signed by the Kosovo Albanian
delegation once more stressed their (unilateral) understanding of the agreement:
"The Delegation of Kosova confirms again that at the termination
of interim period of three years the people of Kosova will exercise
their will through a referendum ... " 321
345. Events on the ground during the Rambouillet negotiations followed the pattern
seen in the preceding period. While the level of military conflict between the KLA
and the govemment forces remained low, the main target of the conflict were
318Letter from the Delegation of Kosovo to US Secretary of State Albright of 23 February 1999, , Annex 78
319in Documentary Annexes accompanying this Written Statement.
Marc Weller, The Rambouillet Conference on Kosovo, International Affairs (1999), pp. 211, 232
(emphasis added).
3° FRY Revised Draft Agreement, March 15 1999, reprinted in Weller, Crisis in Kosovo 1989-1999 (1999),
p. 480; Kosovo Albanian Delegation Statement of Formal Signing of lnterim Agreement, March 18 1999,
321reprinted in Weller, op. cit., pp. 490-491.
Declaration of Kosovo Albanian delegation, 18 March 1999, reprinted in Weller, op. cit., p. 490.
126 civilians. According to the United Nations Secretary-General Report of 31
January 1999, violence spread to the areas of Kosovo that had previously been
relatively calm - such as Podujevo and Stimlje - leading an additional 20,000
322
people to flee their homes. The same cycle of violence with the KLA
provocations followed by Govemment forces responses is described in the United
Nations Secretary-General's Report of 17March 1999. 323
346. The OSCE Chairman in Office in his 20 March 1999 letter to the Secretary
General stated that
"Non-attributable murders continued and most victims of these
were Albanians. The recent abduction of Albanian civilian
employed by the Prizren police revealed that centrally controlled
KLS (KLA security forces) carried the act... This year, in the west
of the Province in the area from Pec to Prizren, several
eyewitnesses have given similar description of a KLA unit slaying
Albanian loyal to the Serbs. Previous daims that the perpetrators of
these murders were rogue KLA elements are now less plausible
than the conclusion that some "punishment shooting" are being
324
indicated at the highest level of KLA Command."
347. Further, this OSCE report contains information on the events in Kosovo only a
few days before the NATO intervention. According to this report:
"Unprovoked attacks by the KLA against the police continued and
the number of casualties sustained by security forces has increased.
Indiscriminate urban terrorist attacks targeting civilians
325
continued ... "
322Report of the Secretary-General, UN Doc. S/1999/99 (30 January 1999), paras. 8-10 and 25-28.
323
324Report of the Secretary-General, UN Doc. S/1999/293 (17 March 1999), paras. 4-15.
See UN Doc. S/1999/315 (20 March 1999), p. 5.
325Ibid., p. 4.
127348. The OSCE report also contains the UNHCR estimate that in March 1999 - before
the NATO bombing of the FRY started - there were at least 230,000 people
displaced within Kosovo, while a further 170,000 people had left the province.
The UNHCR also reported that over 90 villages with Serbian and Albanian
populations in Kosovo had been emptied of their Serbian inhabitants The
Yugoslav Red Cross estimated that there was more than 30,000 non-Albanians
326
displaced and in need of assistance in Kosovo, most of them Serbs.
IV NATO bombing of the FRY 1999
349. Following the end of the Paris Conference on 18 March, as well as a final - and
unsuccessful - attempt by Mr. Richard Holbrooke to convince Mr. Milosevic to
accept the Agreement, NATO Secretary-General, Mr. Javier Solana, ordered the
initiation of offensive aerial operations on the territory of the FRY on 23 March
1999. The NATO aerial bombing of the FRY lasted from the evening of 24 March
1999 to 10June 1999.
350. The NATO aerial bombing of the FRY constituted an unlawful use of force and
327
involved numerous other violations of international law.
351. During the NATO intervention, unrestrained armed conflict broke out in Kosovo.
The beginning of the NATO bombing, and intensified clashes between
Government forces and the KLA led to massive displacement of Kosovo's
population, including more than 800,000 refugees by June 1999, many of whom
were forcibly displaced from their homes. 328 Both Government forces and
paramilitaries committed serious crimes against Kosovo Albanians. 329
326Report of the Secretary-General, UN Doc. S/1999/293 (17 March 1999), para. 26; See also UN Doc.
S/1999/315 (20 March 1999), p. 6.
327
See generally Cases Concerning Legality of Use of Force (Yugoslavia v. United States of America Serbia
and Montenegro v. United Kingdom, Yugoslavia v. Spain, Serbia and Montenegro v. Portugal, Serbia and
Montenegro v. Netherlands, Serbia and Montenegro v. Italy, Serbia and Montenegro v. Germany, Serbia
and Montenegro v. France, Serbia and Montenegro v. Canada, Serbia and Montenegro v. Belgium),
Memorial of the Federal Republic of Yugoslavia, 5 January 2000.
328UNHCR, Kosovo Refugee Crisis, February 2000, available at:
329ttp://www.unhcr.org/cgi-bin/texis/vtx/home/opendoc.pdf?tbl=RESEARCH&id=
3ba0bbeb4.
See OSCE, Kosovo/Kosova As seen as told, and Vol. I October 1998/June 1999.
128352. The Foreign Ministers of the G-8 met on 6 May 1999 at Petersberg, Germany, and
adopted general principles on the political solution to the Kosovo crisis and terms
330
for a cessation of hostilities.
353. On 3 June 1999, the National Assembly of the Republic of Serbia approved a
peace plan that formally put the United Nations in charge of Kosovo. 331
354. On 9 June 1999, the International Security Force (KFOR), on the one side, and the
FRY and the Republic of Serbia, on the other, signed a Military-Technical
Agreement, 332 which regulated the withdrawal of Yugoslav forces and the entry of
KFOR in Kosovo.
355. On 10 June 1999, the Security Council passed resolution 1244, which placed
Kosovo under international administration (UNMIK).
356. The same day, NATO air bombing of the FRY ended following 78 days of
bombing, while the withdrawal of the Yugoslav armed forces from Kosovo began,
and was completed by 20 June 1999.
357. Shortly after the NATO intervention came to an end, the Kosovo Albanian
refugees and internally displaced persons returned to their homes. At the same
time, and particularly from June to November 1999, more than 200,000 Serbs and
333
other non-Albanians fled Kosovo.
V Results of the Conflict
358. The conflict in Kosovo 1998-1999 resulted in thousands of deaths, an even greater
number of injured and in enormous destruction. The democratic Government of
3° Conclusion of the meeting of the G8 at the Petersberg of 6 May 1999, Security Council resolution 1244
(1999), Annex 1.
331Serbian Assembly Resolution of 3 June 1999, Sluzbeni glasnik Republike Srbije, [Official Gazette of the
Republic of Serbia], No. 25/99.
332
See UN Doc. S/1999/682 (15 June 1999), Annex 10 in Documentary Annexes accompanying this Written
Statement.
333See infra paras 365-387.
129 Serbia sincerely regrets all tragedies and pain that were inflicted by the persons
acting in the name of the FRY during the conflict. What is particularly important
at this time is that those responsible for the misdeeds inflicted be brought to
justice in international and domestic criminal proceedings.
359. The International Criminal Tribunal for the former Yugoslavia (ICTY) Prosecutor
indicted Mr. Slobodan Milosevic (President of the FRY at the time), Mr. Milan
Milutinovic (President of Serbia at the time), Mr. Nikola Sainovié (Deputy Prime
Minister of the FRY at the time), Yugoslav Army Generals Mr. Dragoljub
Ojdanic, Mr. Nebojsa Pavkovic and Mr. Vladimir Lazarevic, as well as Mr. Sreten
Lukic (high official of the Ministry of the Interior of Serbia), for the death of at
least 1,000 Kosovo Albanians and for the crimes of deportation, forcible transfer,
and persecution in thirteen municipalities in Kosovo, in the period from 23 March
to 10 June 1999. Mr. Slobodan Milosevic <lied during his trial. 334 In separate
proceedings, Mr. Milan Milutinovic was acquitted of all counts, while other
accused were sentenced to imprisonment between 15 to 22 years. 335 This
judgment is not final pending appeal.
360. The ICTY Prosecutor indicted the KLA members Mr. Fatmir Limaj, Mr. Haradin
Bala, and Mr. Isak Musliu for crimes against humanity. The accused were indicted
as KLA commanders and KLA prison guards in the Lapusnik area in 1998. Mr.
Haradin Bala was sentenced to 13 years imprisonment while Mr. Fatmir Limaj
336
and Mr. Isak Musliu were acquitted.
361. The ICTY Prosecutor also indicted Mr. Ramush Haradinaj, Mr. Idriz Balaj and Mr.
Lahmi Brahimaj for war crimes against the Serbs. Mr. Ramush Haradinaj was the
prime minister of Kosovo at the time of his indictment. He was acquitted, along
with Mr. Idriz Balaj, while Mr. Lahi Brahimaj received a six-year prison
337
sentence. As of this writing, the appeal procedures are still pending. ltshould be
noted that in this case the ICTY emphasized that it encountered serious obstacles in
334ICTY, Prosecutor v. Slobodan Milosevic (IT-02-54), Order Terminating the Proceedings, 14 March 2006.
335
336ICTY, Prosecutor v. Milan Milutinovic et al. (IT-05-87) Judgment, 26 February 2009.
ICTY, Prosecutor v. Fatmir Limaj et al. (IT-03-66), Judgment, 30 November 2005.
337ICTY, Prosecutor v. Ramush Haradinaj et al. (IT-04-84), Judgment, 3 April 2008.
130 338
securing witnesses for the trial. Two individuals were found guilty of contempt of
339
the ICTY for intimidating a protected witness in the Haradinaj case.
362. NATO's conduct during the bombing of the FRY was also considered by the
ICTY but, regrettably, the Prosecutor decided not to conduct an investigation. A
committee established by the ICTY Prosecution on 14 May 1999 concluded that
in all cases it examined, "either the law is not sufficiently clear or investigations
are unlikely to result in the acquisition of sufficient evidence to substantiate
charges against high level accused or against lower accused for particularly
heinous offences" and recommended that no investigation be conducted by the
ICTY Prosecutor. 340
363. Further, as the result of the conflict numerous trials against persans accused of
committing ethnically-motivated crimes are pending before domestic courts in
Serbia.
F. Security Council Resolution 1244 (1999) - Present
364. Security Council resolution 1244 (1999) created an international legal regime for
Kosovo, which is described in detail in Chapter 8. The present chapter will deal
with the human rights situation in Kosovo since it has been placed under
international administration, as well as with negotiations that preceded the
adoption of the UDI in 2008.
I The position of Serbs and other non-Albanians in Kosovo since 1999
365. After 10 June 1999, more than 200,000 non-Albanians (the majority of them
Serbs) fled Kosovo. In addition, since that time non-Albanians in Kosovo have
338Ibid., para. 6.
339ICTY, Prosecutor v. Astrit Haraqija & Bajrush Marina (IT-04-84-R77.4), Judgment, 17 December 2008
34 (appeal pending).
° Final report to the ICTY Prosecutor by the Committee established to review the NATO bombing
campaign against the Federal Republic of Yugoslavia, [undated], paras. 90-91, available at:
http://www.un.org/icty/pressreal/nato06 l300.htm
131 faced attacks and other security problems, restrictions on their freedom of
movement, and the absence of the protection of their property rights and many
other serious human rights violations. Although some minor improvements were
made between 1999 and 2008, even today, nearly ten years after the conflict, there
is still no rule of law or full freedom of movement for Serbs in the province of
Kosovo. A number of towns in Kosovo, including the provincial capital Pristina,
are ethnically cleansed from Serbs.
366. Statistics from the Republic of Serbia Ministry of Interior show that 662 non-
Albanians were murdered, and 1,091 disappeared in Kosovo between 10 June
1999 and the end of 2006.
367. In parallel with the persecution of the non-Albanian population, numerous Serbian
Orthodox churches have become the target of attacks. In 1999 alone more than 70
341
churches and monasteries were plundered, desecrated or completely destroyed.
Even today the most important medieval monasteries, such as Patriarchate of Pec,
Visoki Decani and Gracanica depend upon continuous KFORprotection.
368. As early as July 1999, the UNHCR and OSCE reported the following:
"The weeks following the withdrawal of Yugoslav forces and the
arrivai of KFOR have seen an exodus of the ethnie minority
population, particularly the Serbs from Kosovo. The security
situation for those who stayed remains very tense and extremely
volatile with significant numbers facing arson attacks, threats and in
extreme cases murder". 342
369. In November 1999, the OSCE and UNHCR reported that:
341
Fr. Sava Janjic, Crusified Kosovo: Destroyed and Desecrated Serbian Ortodox Chruches in Kosovo and
Metohija (1999), available at: http://kosovo.net/sk/crucified/default.htm.
342UNHCR/OSCE, Preliminary Assessment of the Situation of Ethnie Minorities in Kosovo, 10 July 1999, p.
1,para. 1, available at: http://www.osce.org/documents/html/pdftohtml/1119 _en.pdf.html.
132 "The overall situation of ethnie minorities m Kosovo remams
precarious" (...) "that there is a climate of violence and impunity, as
well as widespread discrimination, harassment and intimidation
343
directed against non-Albanians".
370. The OSCE and UNHCR, in their February 2000 Report stated that the situation
had not improved since their November report, and noted that conditions had in
many instances in fact deteriorated:
"Minorities remain vulnerable to attack and they do not enjoy the
same quality of life experienced by the majority". 344
371. The following events were recounted in the February 2000 Report:
"Horrifie incidents such as the one on Albanian Flag Day, 28
November 1999, when an elderly Kosovo Serb man was dragged
from his car in central Pristina/Prishtina and killed by a mob while
his wife and mother-in-law were severely assaulted; the killing of a
family of four Muslim Slavs (Torbesh) in their home in Prizren on
12 J anuary; the triple murder of three Kosovo Serbs near
Pasjane/Pasjan (in Gnjilane/Gjilan municipality) on 16 January;
and, the double murder of two Roma in Djakovica/Gjakove on 15
January as they attempted to protect Roma owned property from
unwarranted attack, are a chilling reminder of the dangers faced by
minorities in Kosovo. There are numerous and regular other non
fatal attacks and incidents of harassment and intimidation of
varying degrees recorded daily. Against this hostile backdrop the
345
minorities of Kosovo struggle to carry on their daily lives."
343UNHCR/OSCE, Overview of the Situation of Ethnie Minorities in Kosovo, 3 November 1999, p. 1, para.
2, available at: http://www.osee.org/doeuments/html/pdftohtml/1117 _en.pdf.html.
344
UNHCR/OSCE, Assessment of the Situation of Ethnie Minorities in Kosovo, 11 February 2000, p. 1,
345vailable at: http://www.osce.org/doeuments/html/pdftohtml/1116_en.pdf.html.
UNHCR/OSCE, Assessment of the Situation of Ethnie Minorities in Kosovo, 11 February 2000, p. 2,
available at: http://www.osce.org/doeuments/html/pdftohtml/1116_en.pdf.html.
133372. The situation of the Serb minority in Kosovo remained unchanged during 2000:
"Lack of security and freedom of movement remam the
fondamental problems affecting minority communities in Kosovo...
Serbs, who are the hardest hit, were identified as the victims in 105
incidents of arson, 49 incidents of aggravated assault, and 26
incidents of murder reported throughout Kosovo between 30
January and 27 May 2000." 346
373. In 2002, minority communities in Kosovo continued to face varying degrees of
harassment, intimidation and provocation, as well as limited freedom of
movement. 347
374. The UNHCR reported that 12 Kosovo Serbs were murdered between January and
November 2003. 348 In mid-2004, UNHCR assessed the situation as follows:
"Kosovo Serbs remained the pnmary targets of inter-ethnie
violence, not only in terms of the number of incidents or victims,
but also in terms of the severity and cruelty of the crime. Serbs were
victims of shootings and killings or even murders m
Prishtine/Pristina, Peje/Pec and Gjilan/Gnjilane reg1ons, and
349
grenade and bomb attacks in Gjilan/Gnjilane region."
375. In March 2004, the situation drastically deteriorated for Kosovo Serbs who
experienced an increase in violence against them:
346
UNHCR/OSCE Update on the Situation of Ethnie Minorities in Kosovo, 31 May 2000, p.1, para. 2,
347vailable at: http://www.osce.org/doeuments/html/pdftol l53n.pdf.html.
See UNHCR/OSCE, Tenth Assessment of the Situation of Ethnie Minorities In Kosovo (Period eovering
May 2002 to December 2002), Mareh 2003, p., available at:
http://www.osce.org/doeuments/html/pdftohtml/903_en.pdf.html
348"Kosovo minorities still need international protection, says UNHCR", 24 August 2004, available at:
349ttp://www.unher.org/ egi-bin/texis/vtx/home/ opendoe.htm ?tb1=NEWS&id=412 b5f904&page=news.
UNHCR Kosovo, Update on the Kosovo Roma, Ashkaelia, Egyptian, Serb, Bosniae, Gorani and Albanian
eommunities in a minority situation of June 2004, p. 5, available at:
http://www.unher.org/egi-bin/texis/vtx/home/openpdf?tbl=SUBSITES&id=4 l2b0b674.
134 "On 16-18 March 2004, Kosovo witnessed an eruption of ethnie
violence against the non-Albanian communities and UNMIK." 350
"The widespread and systematic nature of the violence took
Kosovo's civil and military authorities by surprise. As a result,
during the first waves of attack, KFOR, UNMIK Police and KPS
struggled to maintain control. In many locations they failed to
protect minorities, their property and municipal infrastructure, and
were unable to prevent the large scale displacement of minority
351
communities fearful for their lives."
"The campaign of ethnie violence lasted for three days and left 19
dead, 954 injured, 4100 displaced, 550 houses and 27 Orthodox
churches and monasteries burnt and an additional 182 houses and
two churches/monasteries damaged". 352
376. Sorne leading Kosovo Albanian politicians publicly supported the violence or
failed to condemn it. According to Human Right Watch, Mr. Nexhat Daci, the
speaker of the Kosovo Assembly, "speaking on behalf of parliament," described
the injured and killed Albanians from ethnie violence directed against non
Albanians on March 17 as "people [who] died fighting for democracy and
353
freedom"
377. Mr. Hasim Thaci, the current "prime minister" of the so-called "Republic of
Kosova" stated that:
3° CoE, Venice Commission, Opinion on Human Rights in Kosovo, October 2004, p. 8, para. 28, available
at: http://www.venice.coe.int/docs/2004/CDL-AD(2004 )033-e.asp.
351
UNHCR Kosovo, Update on the Kosovo Roma, Ashkaelia, Egyptian, Serb, Bosniac, Gorani and Albanian
communities in a minority situation, June 2004, p. 32, available at:
http://www.unhcr.org/cgi-bin/texis/vtx/home/opendoc. pdf?tbl=SUBSITES&id=412b0b67 4.
352OSCE, Human Rights Challenges - following the March riots, 25 May 2004, p. 4, available at:
http://www.osce.org/ documents/html/pdftohtml/293 9_en.pdf.html.
353
HRW, The Response of the Kosovar Leadership to the Violence, p. 1, available at:
http://199 .173.149.140/reports/2004/kosovo0704/8 .htm.
135 "Serbs are m1susmg the Albanians' goodwill to create an equal
society for all. They don't want to integrate in Kosovar society.
Proof of this is yesterday's [children's drowning] and today's
[Mitrovica violence] events. Their will has remained in the previous
five years only for violence against Albanians. This can no longer
354
be tolerated."
378. The judiciary failed to respond adequately to the violence. According to OSCE
Mission in Kosovo, the perpetrators who were brought to trial before the local
courts were released or sentenced with inappropriately low sentences. 355
379. In 2004 the Venice Commission of the Council of Europe reported that:
"the security of the non-Albanian communities in Kosovo (Serbs,
Roma, Ashkali, Egyptian, Bosniac and Gorani communities) has
been and is seriously and continuously threatened. Numerous
356
incidents, including fatal ones, have occurred since 1999".
The Venice Commission also reported on the lack of freedom of movement for
members of non-Albanian communities in Kosovo, the insufficient protection of
their property rights, the lack of investigation into abductions and serious crimes,
the climate of impunity in Kosovo, the lack of faimess of judicial proceedings,
357
corruption and human trafficking.
380. In 2006, the situation had not improved to any great extent in comparison with the
previous period:
354Ibid.
355
See OSCE Mission in Kosovo, Four Years Later Follow up of March 2004 Riots, Cases before the Kosovo
Criminal Justice System. (2008), pp. 14-16, available at:
http://www.osce.org/documents/html/pdftohtml/32022_en.pdf.html
356CoE, Venice Commission, Opinion on Human Rights in Kosovo, October 2004, No.280/2004, CDL-AD
(2004) 033, p. 8, para. 27.
357
CoE, Venice Commission, Opinion on Human Rights in Kosovo, October 2004, Opinion No.280/2004,
CDL-AD (2004) 033, paras. 24-50.
136 "While the number of reported serious ethnically-motivated crimes
has decreased, the Serb community continues to be affected by a
considerable number of incidents. Members of ethnie minorities
continue to suffer also from "low scale" ethnically motivated
security incidents such as physical and verbal assaults/threats,
arson, stoning, intimidation, harassment, looting, and "high-scale"
incidents such as shootings and murders. Many of these incidents
remain unreported, as the victims fear reprisais from the
perpetrators of t he maJonty commumty. · ,,358
381. The UNHCR estimated in 2006 that:
"Serbia (excluding Kosovo) is currently hosting some 225,000 IDPs
[Internally Displaced Persons] from Kosovo and some 115,000
refugees, in a context where the overall difficult socio-economic
situation is characterized by high unemployment and a severely
359
strained social welfare system".
382. In 2007, OSCE reported that:
"the fact that returns remain a priority eight years after the conflict
reflects the reality that all mechanisms and strategies developed
were not successful in providing adequate protection of the rights of
returnees". 360
383. In 2008, OSCE reported that there were no significant returns to Kosovo, although
361
Kosovo authorities officially encouraged them and concluded that
358UNHCR' s Position on the Continued International Protection Needs of Individuals from Kosovo, June
2006, p. 3, paras. 9-10, available at:
http://www.unhcr.org/cgi-bin/texis/vtx/home/opendoc.pdf?tbl=SUBSITES&id=
4492bdaa2
359Ibid., p. 9, para. 33.
360OSCE Eight years after - Minority returns and housing and property restitution in Kosovo, June 2007, p.
6, available at: http://www.osce.org/documents/html/pdftohtml/25813_en.pdf.html.
361
OSCE Mission in Kosovo, Human Rights, Ethnie Relations and Democracy in Kosovo (Summer 2007 -
Summer 2008), September 2008, p. 12, para. 39, available at:
http://www.osce.org/ documents/html/pdftohtml/3 2879n.pdf.html.
137 "[t]he return process is mainly hampered by a general feeling of
insecurity among displaced persans, their difficult access to
property, and blocked or delayed property restitution proceedings."
and
"[t]he legal and institutional framework regulating and protecting
property rights in Kosovo remains weak. All communities,
particularly the Kosovo Serb community, are affected by these
weaknesses since many remain displaced from their homes or await
362
restitution of residential, agricultural or commercial property."
384. Serbs in Kosovo overwhelmingly live in so-called enclaves, where they remain
the ethnie majority in these pockets. Major enclaves are located in Northern
Kosovo (in the municipalities of Leposavic, Zubin Potok and Zvecan), and
363
smaller enclaves are located in central Kosovo such as Gracanica and Strpce.
Serbs from Northern Kosovo do not accept the Kosovo authorities and the new
structure of the so-called "Republic of Kosova". They however recognize UNMIK
and maintain close connections with Belgrade:
"In northern Kosovo, with its majority Kosovo Serb population,
separation has actually advanced through the extension of parallel
administrative institutions into the political field. In the rest of
Kosovo, the outcome of efforts to integrate the Kosovo Serb
community remains unclear. Here, despite some efforts by the
Kosovo government to encourage the Kosovo Serbs to participate
in the administrative and political structures, there is a widespread
perception among the Kosovo Serb community of insecurity and
mistrust which prevents interaction outside enclaves. A large
number of unresolved property daims affect above all the Kosovo
362
Ibid., p. 13.
363See 2005 Ethnie Map of Kosovo in -OSCE Mission in Kosovo, Background Report Human Rights, Ethnie
Relations and Democracy in Kosovo (Summer 2007 - Summer 2008), Annex I, p. 32, available at:
http://www.osce.org/ documen ts/html/pdftohtml/3 2879_en.pdf.html.
138 Serbs. The two separated educational systems - the Kosovo schools
and the parallel Kosovo Serb schools - do not offer instruction in
the other community' s language and thus drive the two
commumtles urt er apart. ,,364
385. In conclusion, after June 1999 the great majority of members of the Serb and
other non-Albanian communities in Kosovo were displaced or expelled from the
province of Kosovo. According to UNHCR data there are currently more than
200,000 internally displaced persans from Kosovo registered elsewhere in Serbia.
386. After June 1999 more than 600 Serbs and other non-Albanians were murdered
while more than 1,000 Serbs and other non-Albanians disappeared. Most of these
ethnically motivated crimes were not properly investigated and consequently the
perpetrators were never brought to justice.
387. In Kosovo, Serbs live only in the North or in several enclaves. Living conditions
in the enclaves are such that even nowadays, almost 10 years after the arrivai of
international peacekeepers, the inhabitants continue to receive humanitarian
assistance and armed protection from KFOR, while their freedom of movement
and right to life is not guaranteed.
II Standards for Kosovo
388. The Special Representative of the Secretary-General in Kosovo mentioned so
called benchmarks, which later became standards, for the first time at the Security
Council meeting on 24 April 2002:
"These benchmarks should be achieved before launching a
discussion on status, in accordance with resolution 1244. The
benchmarks are: existence of effective, representative, and
functioning institution; enforcement of the rule of law; freedom of
movement for all; respect for the right of all Kosovar to remain and
364
Ibid.
139 to return; development of a sound basis for a market economy;
clarity of property title; normalized dialogue with Belgrade;
reduction and transformation of the Kosovo Protection Corps in line
with its mandate". 365
389. On 10 December 2003, a document entitled "Standards for Kosovo" was
published which set out the following standards that Kosovo was supposed to
achieve: functioning democratic institutions; rule of law; freedom of movement;
sustainable returns and rights of communities; economy; property rights;
dialogue; Kosovo protection force. 366
390. The Security Council endorsed the "Standards for Kosovo" in a statement by the
President of the Security Council on 12December 2003:
"The Security Council supports "The Standards for Kosovo"
367
presented on 10December 2003."
391. The 2003 standards for Kosovo have been elaborated in a number of different
documents such as Kosovo Standards Implementation Plan (KSIP) of 31 March
2004, Action plan and Outreach program of June 2005, the 46 point Action plan
of December 2005 and the 3-months Action plan of January 2006. 368
392. In June 2005, the Secretary-General decided to appoint a Special Envoy, Mr. Kai
Eide, whose task was to assess the current situation in Kosovo regarding the
369
standards and conditions for the possible next steps in the process.
393. During the preparation of his report, Mr. Eide held consultations with political
leaders in Belgrade and Pristina, leaders of all communities in Kosovo, as well as
365UN Doc. S/PV. 4518 (24 April 2002), p. 4.
366Document "Standards for Kosovo", 10 December 2003, available at:
367http://www.unmikonline.org/standards/docs/leaflet_stand_eng.pdf.
UN Doc. S/PV.4880 (12 December 2003).
368Kosovo Standards Implementation Plan (KSIP), 31 March 2004, available at:
http://www.unmikonline.org/pub/misc/ksip_eng.pdfsee also Kosovo Standard Process 2003-2007,
369UNMIK Report, available at: http://www.unmikonline.org/standards/docs/KSP2003-20.pdf.
UN Doc. S/2005/364 (3 June 2005).
140 with representatives of Security Council members, vanous United Nations
member States and regional organizations (EU, OSCE, NATO and the Council of
Europe). 370
394. In his report, Mr. Eide focused on two main issues. The first one was the situation
with respect to the standards for Kosovo. According to Mr. Eide:
"The record of implementation so far is uneven ... Kosovo Serbs
have chosen to stay outside the central political institutions and
maintain parallel structures for health and educational services. The
Kosovo Serbs fear that they will become a decoration to any
central-level political institution, with the little ability to yield
tangible results. The Kosovo Albanians have done little to dispel
this fear... The unemployment rate is still high and poverty is
widespread ... Today, the rule of law is hampered by a lack of ability
and readiness to enforce legislation at all levels... The Kosovo
police and judiciary are fragile institutions. Further transfer of
competences in these areas should be considered with great
caution ... With regard to the foundation for a multi-ethnic society,
the situation is grim... The overall return process has virtually corne
to a halt. .. There are frequently unreported case of low-level, inter
ethnie violence and incidents. This affects freedom of movement in
a negative way... At present, property rights are neither respected
nor ensured... This represents a serious obstacle to returns and
371
sustainable livelihoods. "
395. In the second part of his report, Mr. Eide focused on the question of the status of
Kosovo:
"There will not be any good moment for addressing Kosovo's
future status.It will continue to be a highly sensitive political issue.
370See UN Doc. S/2005/635 (7 October 2005), para. 2.
371Ibid., p. 2.
141 Nevertheless, an overall assessment lead to the conclusion that the
372
time has corne to commence this process ..."
396. On 7 October 2005, the United Nations Secretary-General submitted Mr. Eide's
report to the Security Council. In the letter that accompanied the report, the
Secretary-General summarized Mr. Eide' s report and outlined his own future
steps:
"Based on the assessment provided in the report and further
consultations I have undertaken, in particular with my Special
Representative, Mr. Soren Jessen-Petersen, I accept Mr. Eide's
conclusion. I therefore intend to initiate preparations for the
possible appointment of the special envoy to lead the future status
373
process."
397. On 24 October 2005, the Security Council President issued a statement in which
374
he endorsed Mr. Eide's report.
III The status negotiations and their aftermath
(1)Ahtisaari negotiations
398. On November 10 2005, United Nations Secretary-General appointed former
Finnish President, Mr. Martti Ahtisaari, as his Special Envoy for the Future Status
375
Process for Kosovo. Before negotiations started, the Contact Group issued
guiding principles, which, inter alia, stated:
"6. The settlement of Kosovo's status should strengthen regional
security and stability. Thus, it will ensure that Kosovo does not
return to the pre-March 1999 situation. Any solution that is
372Ibid., pp. 3-4.
373Ibid.
374
UN Doc. S/PRST/2005/51 (24 October 2005).
375UN Doc. S/2005/708 (10 November 2005).
142 unilateral or results from the use of force would be unacceptable.
There will be no changes in the current territory of Kosovo, i.e. no
partition of Kosovo and no union of Kosovo with any country or
part of any country. The territorial integrity and interna! stability of
regional neighbours will be fully respected." 376
399. Mr. Ahtisaari organized negotiations through a series of meetings-negotiations on
different issues, starting with less problematic issues, such as decentralization and
the protection of cultural heritage, then moving to more contentious matters, such
as economic issues, and the issue of the final status of Kosovo.
400. The direct negotiations on the status issue occurred on 24 July 2006. Both Serbia
and Kosovo sent delegations of the highest level. After a full day of negotiations
Mr. Ahtisaari concluded:
"lt is evident that the positions of the parties remam far apart:
Belgrade would agree to almost anything but independence,
377
whereas Pristina would accept nothing but full independence."
401. On 2 February 2007 Mr. Ahtisaari presented his Comprehensive Proposa!, and
378
suggested that both parties work together on this proposa!.
402. The final round of negotiations was conducted in Vienna, Austria, from 21
February until 10 March 2007. During this meeting, the Serbian delegation
submitted Amendments to the Comprehensive Proposa! which envisaged both
sovereignty of Serbia and the broadest possible autonomy of Kosovo. 379 These
Amendments were not accepted, except for some technical details in relation to
376
377UN Doc. S/2005/709 (10 November 2005).
United Nations Office of the Special Envoy of the Secretary-General for the Future Status Process for
Kosovo, Press Release of 24 July 2006, UNOSEK PR/11.
378UNOSEK PR/16 (2 February 2007).
379
Amendments to Comprehensive proposai for the Kosovo Status Settlement by the Negotiating Team of the
Republic of Serbia, 2 March 2007, available at:
http://www.media.srbija.sr.gov.yu/medeng/documents/amendments_eng.pdf.
143 the issue of cultural heritage and municipality borders. It should be noted,
however, that most of the Comprehensive Proposa! was not discussed.
403. On 26 March 2007 Mr. Ahtisaari presented his Comprehensive Proposa! to the
United Nations Secretary-General. His cover letter stated:
"Recommendation: Kosovo Status should be independence,
supervised by the international community.:"
404. Serbia has never accepted Mr. Ahtisaari's Comprehensive Proposa!. The Serbian
Parliament adopted a resolution in which it determined that the Comprehensive
Proposa! violated fondamental principles of international law, since it did not take
into account the sovereignty and territorial integrity of Serbia. At the same time,
Serbia has advocated a compromise, consensual solution to the future status of
Kosovo. 380
(2) Security Council mission to the region in April 2007
405. After the Secretary-General presented the Comprehensive Proposa! to the Security
Council, the Security Council sent a mission to Belgrade and Kosovo to obtain
first-hand information on progress made in Kosovo since the adoption of Security
Council resolution 1244 (1999). The head of the mission, Ambassador Verbeke,
together with 15 diplomats visited the region from 25 to 28 April, and submitted a
381
report to the Security Council on 4 May 2007. During their stay in Belgrade,
the delegation of the Serbian government presented the mission with a proposa!
382
for further negotiations and its proposed solution to the status issue.
380See Rezalucija Narodne skupstine Republike Srbije povodom "Predloga za sveobuhvatno resenje statusa
Kosova" Specijalnog izaslanika generalnog sekretara UN Martija Ahtisarija nastavka pregovora o
buducem statusu Kosovai Metohije, Sluzbeni glasnik RS [Official Gazette of the Republic of Serbia], No.
18/2007; English translation available at http://www.srbija.gov.rs/kosovo-metohija/index.php?id=31735
381
382UN Doc. S/2007/220 (20 April 2007).
Republic of Serbia Status Proposai, 26 April 2007, Annex 81 in Documentary Annexes accompanying
this Written Statement.
144 383
406. The mission submitted its report to the Security Council on May 4 2007. The
report concluded:
"The position of the sides on the Kosovo settlement proposa!
remains far apart. The Belgrade authorities and the Kosovo Serb
interlocutors ... called for a solution based on genuine compromise,
to be reached through further negotiations between the sides...
Kosovo Albanian representatives and representatives of non-Serb
communities, on the other hand, expressed clear and unambiguous
support for the Kosovo settlement proposa! and recommendation on
Kosovo's future status. Expectations among the majority Kosovo
Albanian population for an early resolution of Kosovo's future
status were very high. The representatives looked to the Security
Council to move rapidly towards a solution, without any further
need for negotiations between the sides."
407. From May to June 2007 different drafts of a resolution relating to the
Comprehensive Proposa! were discussed, but finally on 17 July 2007
Belgium, France, Germany, Italy, United Kingdom and the United States
submitted their draft resolution to the Security Council. 384However, they
failed to attain the necessary support within the Security Council for a vote in
favour of their draft resolution. On 20 July 2007, the co-sponsors of the draft
resolution issued a statement in which they stated that it had been impossible
to secure a Security Council resolution which would support the
Comprehensi ve Propos al. 385
383UN Doc. S/2007/256 (4 May 2007), para. 59.
384UN Doc. S/2007/437 (17 July 2007), Annex 36 in Documentary Annexes accompanying this Written
Statement.
385
Statement issued on 20 July 2007 by Belgium, France, Germany, Italy, United Kingdom and the United
States of America, co-sponsors of the draft resolution on Kosovo presented to the UNSC on 17 July,
available at: http://www.unosek.org/docref/2007-07-20%20-
%20Statement%20issued%20by%20the%20co-sponsors%20of%20the%20draft%20reso
lution%20.doc,
Annex 37 in Documentary Annexes accompanying this Written Statement.
145 (3) The Troika negotiations
408. On 1 August 2007, the President of the Security Council received information
from the Contact Group that a new initiative for negotiations on Kosovo had been
established and he gave his full support to this initiative. A Tripartite negotiation
team composed of representatives from the EU, the Russian Federation, and the
United States of America was established. The Troïka negotiations were
386
conducted through series of meetings and ended in early December 2007.
409. On 10 December 2007 Troïka submitted its report to the United Nations
Secretary-General. The conclusion of this report was as follows:
" The parties were unable to reach an agreement on the final
status of Kosovo. Neither party was willing to cede its position on
the fondamental question of sovereignty over Kosovo. This is
regrettable, as a negotiated settlement is in the best interests of both
parties."
(4) The unilateral declaration of independence (UDI)
410. On 17 February 2008, the Kosovo Assembly adopted the UDI. The deputies
representing the Serbian national minority in Kosovo boycotted the session of the
Kosovo Assembly at which the UDI was adopted. 387 Subsequently, a so-called
"constitution of Kosovo" was adopted on 8 April 2008.
411. By 1 April 2009, from a total of 192 United Nations member States, the so-called
"Republic of Kosovo" had only been recognized by 56 States.
386UN Doc. S/2007/723 (10 December 2007).
387See statement of the Secretary-General at Security Council meeting on Kosovo held on 18 February 2008,
UN Doc. S/PV.5839 (18 February 2008), p. 2.
146 Part III
GENERAL INTERNATIONAL LAW PROVIDES NO GROUND FOR THE
INDEPENDENCE OF KOSOVO
Chapter 6
THE UNILATERAL DECLARATION OF INDEPENDENCE IS IN
CONTRADICTION WITH THE PRINCIPLE OF RESPECT FOR THE
TERRITORIAL INTEGRITY OF STATES
412. The principle of respect for the territorial integrity of States constitutes a
foundational principle of international law. It is one of the key constituent
principles of the overarching concept of the sovereignty of States and from it
flows a series of consequential norms. For the international community to accept a
rule of international law positing a non-consensual right of secession from
sovereign States would be tantamount to breaking the previously entrenched
international consensus concerning the territorial integrity of States in a way that
would have quite dramatic consequences. Such would be the inevitable result of
accepting the UDI by the provisional institutions of self-government of Kosovo.
413. In this section, it is submitted that:
(i) The principle of territorial integrity of States is one of the key elements of
international law;
(ii) Itguarantees the spatial definition of States in a way that is binding on all
members of the international community;
(iii) The principle is reflected in extensive international and regional practice;
(iv) All States are bound to respect the territorial integrity of other States;
(v) The obligation to respect territorial integrity extends beyond States and
binds non-state actors in situations of non-consensual attempts at breaching
the territorial integrity of independent States;
147 (vi) The fact that non-state actors may be bound by the principle of territorial
integrity is illustrated by reference to a number of Security Council
resolutions;
(vii) In addition, the range of Security Council resolutions dealing generally with
the former Yugoslavia and specifically with the Kosovo problem
demonstrates clearly the intention that the Kosovo Albanian leadership and
community be bound by the principle of the territorial integrity of Serbia.
A. The Nature and Importance of the Principle of Territorial Integrity
414. International law is founded upon the centrality of the independence, sovereignty
and equality of States. The doctrine of State sovereignty has at its centre the
concept of sovereign equality, which has been authoritatively defined in terms of
the following propositions:
"(a) States are judicially equal;
(b) Each State enjoys the rights inherent in full sovereignty;
(c) Each Sate has the duty to respect the personality of other States;
(d) The territorial integrity and political independence of the State
are inviolable;
(e) Each State has the right freely to choose and develop its
political, social, economic and cultural systems;
(f)Each State has the duty to comply fully and in good faith with its
international obligations and to live in peace with other States".388
415. States are the prime subjects of international law and the sovereignty of States
reflects both the interna! supremacy of the State within its own territory and the
external protection of the existence and territorial limits of the State with regard to
other States and other actors in the international political and legal system.
Oppenheim, for example, has noted that, "[t]he exclusive dominion of a State
388General Assembly resolution 26(XXV).
148 within its territory 1s basic to the international system". 389 This exclusive
dominion exists and is recognised as constituting the basis of international law.
Without it, international law would not be the State-based system that it is and has
been since classical times. ltwould be a very different system indeed and one far
from current perceptions and realities.
416. The requirements of statehood focus upon the criteria of population, territory and
390
governance. But however one defines the requirements of statehood and
however one weighs the relative balance between the relevant requirements, the
criterion of territory is indispensable. As Oppenheim has noted, "a State without a
territory is not possible". 391 Territory is the essential framework for the exercise of
State sovereignty. lt is the spatial context for the very existence of the State and
thus at the very heart of international law.
417. In any system of international law founded upon sovereign and independent
States, the principle of the protection of the integrity of the territorial expression of
such States is bound to assume major importance. Oppenheim has confirmed that,
"the importance of State territory is that it is the space within which the State
exercises its supreme, and normally exclusive, authority". 392Bowett regarded this
principle as fondamental in international law and an essential foundation of the
legal relations between States. 393
418. Together with the consequential principles of domestic jurisdiction, non-intervention
and the prohibition of the use of force, the foundational norm of respect for the
territorial integrity of States is crucial with regard to the evolution of the principles
389R.Y. Jennings and A.D. Watts (eds.), Oppenheim's International Law (1992), p. 564. See generally M.G.
Kohen, Posession Contestée et Souveraineté Territoriale(1997); J. Castellino and S. Allen, Title to
Territory in International Law: A Temporal Analysis (2002); G. Distefano, L'Ordre International entre
Légalité et Effectivité: Le Titre Juridique dans le Contentieux Territorial(2002);R. Y. Jennings, The
Acquisition of Territory in International Law(1963); M. N. Shaw, "Territory in International Law", 13
Netherlands YIL(l982), p. 61; N. Hill, Claims to Territory in International Law and Relations (1945); J.
Gottman, The Significance of Territory (1973); and S. P. Sharma, Territorial Acquisition, Disputes and
390International Law (1997). nd
See J. Crawford, The Creation of States in International Law (2ed., 2006).
391Op.cit., p. 563.
392
393Op.cit., p. 564.
D. W. Bowett, Self-Defence in International Law (1958), p. 29.
149 associatedwiththemaintenance of international peace and security. It also underlines
the decentralized State-orientated character of the international political system
and both reflects and manifests the sovereign equality of States as a legal principle.
Territorial integrity and State sovereignty are thus inextricably linked concepts in
international law.
419. It was emphasised in the Island of Palmas case, the starting-point of any analysis
of this branch of international law, that:
"Territorial sovereignty ... involves the exclusive right to display
394
the activities of a State",
while:
"Sovereignty m the relations between States signifies
independence. Independence in relation to a portion of the globe is
the right to exercise therein, to the exclusion of any other State, the
fonctions of a State. The development of the national organisation
of States during the last few centuries, and as a corollary, the
development of international law, have established this principle of
the exclusive competence of the State in regard to its own territory
in such a way as to make it the point of departure in settling most
questions that concern international relations." 395
420. Accordingly, the concept of State sovereignty can only be exercised through
exclusive territorial control so that such control becomes the cornerstone of
international law, while the exclusivity of control means that no other State may
exercise competence within the territory of another State without the express
consent of the latter. To put it another way, the development of international law
upon the basis of the exclusive authority of the State within an accepted territorial
framework meant that territory became "perhaps the fondamental concept of
394Island of Palmas case (NetherlandsUSA), 1 RIAA 829, 839 (1928).
395Ibid., p. 838.
150 international law". 396 This principle is two-sided. It establishes both the
supervenmg competence of the State over its territory and the absence of
competence of other States over that same territory. Recognition of a State's
sovereignty over its territory imports also recognition of the sovereignty of other
States over their territory. The International Court clearly underlined in the Corfu
Channel case, that, "[b]etween independent States, respect for territorial
sovereignty is an essential foundation of international relations". 397
421. These principles have been further discussed by the world court. The Permanent
Court of International Justice, for example, emphasised in the Lotus case that:
"... the first and foremost restriction imposed by international law
upon a State is that - failing the existence of a permissive rule to
the contrary - it may not exercise its power in any form in the
398
territory of another State",
while the International Court underlined in the Corfu Channel case, "every State's
obligation not to allow knowingly its territoryto be used for acts contraryto the rights of
other States" 399 and noted in the Asylum case that, "derogation from territorial
sovereignty cannot be recognised unless its legal basis is established in each
. 1 ,,400
part1cuar case .
422. The juridical requirement, therefore, placed upon States is to respect the territorial
integrity of other States, something that the Court emphasised in the Nicaragua
case, in reaffirming "the duty of every State to respect the territorial sovereignty of
others". 401It is an obligation flowing from the sovereignty of States and from the
396D. P. O'Connell, International Law (2nded., 1970), vol. I, p. 403.
397The Corfu Channel Case (United Kingdom of Great Britain and Northern Ireland v. Albania), Judgment
th
398of April 9 1949, I.C.J. Reports 1949, p. 35.
The Case of the S.S. "Lotus" ( France v. Turkey), Judgment of7 September 1927, PCIJ, Series A, No. 10,
p. 18.
399The Corfu Channel Case (United Kingdom of Great Britain and Northern Ireland v. Albania), Judgment
th
400of April 9 1949, I.C.J. Reports 1949, p. 22.
Asylum case (Colombia v. Peru), Judgment of 20 November 1950, I.C.J. Reports 1950, p. 275.
401Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Merits, Judgment of 26 June /986, I.C.J. Reports 1986, p. 111, para. 213, and p. 128, paras. 251-252
(hereinafter:Nicaragua Case").
151 equality of States. This has been reflected in academic writing. Vattel emphasised
that, "Non seulement one ne doit point usurper le territoire d'autrui, il faut encore le
402
respecter et s'abstenir de tout acte contraire aux droits du souverain". One writer
has noted that, "For States, respect for their territorial integrity is paramount ...
403
This rule plays a fondamental role in international relations". It has also been
stated that, "Few principles in present-day international law are so firmly
established as that of the territorial integrity of States".404
423. It is, of course, important to note that this obligation is not simply to protect
territory as such or the right to exercise jurisdiction over territory or even
territorial sovereignty, the norm of respect for the territorial integrity of States
imports an additional requirement and this is to sustain the territorial wholeness or
definition or delineation of particular States. It is a duty placed on all States and
relevant non-state actors to recognise that the very territorial structure and
configuration of a State must be respected. While the principle of territorial
sovereignty focuses upon the nature of the relationship between the State and its
territory and defines its essential legal character, the principle of territorial
integrity takes the matter a step further in affirming that this relationship is one
that must be protected internationally, as a matter of international law and within a
defined spatial context.
424. To put it another way, the obligation upon all States is not simply to avoid
trespassing across international borders, but to acknowledge and positively protect
the territorial composition of other States. It is the positive side to the negative
requirement of non-intervention. This obligation, as will be seen below, also falls
upon relevant non-state actors.
402E. de Vattel, Le Droit des Gens, reprint of 1758 edition (Washington, 1916), volume I, Book II, p. 323,
para. 93.
403
404M.G. Kohen, "Introduction" in M.G. Kohen (ed.), Secession: International Law Perspectives (2006), p. 6.
See the Opinion on the Territorial Integrity of Quebec in the Event of the Attainment of Sovereignty by
Professors Franck, Higgins, Pellet, Shaw and Tomuschat on 8 May 1992, para. 2.16, available at
http://www.uni.ca/library/5experts.html
152425. An important corollary of the principle of territorial integrity is the strong
presumption against dismemberment, 405 as reflected, for example, in the concept
of the stability of boundaries. 406 This concept has received considerable judicial
support. The International Court, for example, referred particularly to "the
permanence and stability of the land frontier" in the Tunisia/Libya Continental
407
Shelf case and to the need for "stability and finality" in the Temple of Preah
408
Vihear case.
426. In the Libya/Chad case, the Court underlined that the "fixing of a frontier depends
on the will of the sovereign States directly concerned" 409 and further noted that:
"Once agreed, the boundary stands, for any other approach would
vitiate the fondamental principle of the stability of boundaries, the
importance of which has been repeatedly emphasized by the
410
Court".
427. The importance of this concept in current circumstances 1s that it serves to
underline the principle that territorial change must be brought about by consent.
Accordingly, were the international community to acceptas proposed the UDI by
the provisional institutions of self-government of Kosovo a radical re-orientation
of international law would in effect be proposed which would significantly
undermine the principle of the stability of boundaries. It would, in the Court's
words, render "precarious" established boundary lines on the basis of a
"continuously available process", viz. an international right of secession from
sovereign States extending to non-consensual secession.
405Crawford, The Creation of States, op.cit., p. 415.
406
M.N. Shaw, "The Heritage of States: The Principle of Uti Possidetis Juris Today", 67 British Year Book
of International Law (1996), pp. 75, 81, see also K.H. Kaikobad, "Sorne Observations on the Doctrine of
Continuity and Finality of Boundaries", 54ritish Year Book of International Law (1983), p. 119 and S.
Lalande,Determining Boundaries in a Conflicted World (2002), chapter 5.
407Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment of 24 February 1982, /.Cl. Reports 1982,
408p. 66, para. 84. See also the Grisbadarna case, Scott, Hague Court Reports, 1916, pp. 122, 130.
Case concerning the Temple of Preah Vihear (Cambodia v. Thailand), Merits, Judgment of 15 June 1962,
I.e J. Reports 1962, p. 34.
409Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment of 3 February 1994, /.Cl. Reports 1994,
410p. 23, para. 45.
Ibid., p. 37, para. 72.
153428. Thus, the importance of the principle of respect for the territorial integrity of
States has been repeatedly affirmed by judicial authority and confirmed in
academic writing.
B. The United Nations Has Repeatedly Affirmed the Principle of
Territorial Integrity
I Generaily
429. The international community, through international and regional organizations,
has emphasised the importance of the principle of territorial integrity. For
example, Article 10 of the Covenant of the League of Nations provided that the
Members of the League
"undertake to respect and preserve as against external aggression
the territorial integrity and existing political independence of all
411
Members of the League".
430. In the Charter of the United Nations, the following provisions are particularly
relevant. Article 2, paragraph 1, provides that the Organisation itself is based on
"the principle of the sovereign equality of all its Members", while Article 2,
paragraph 4, declares that
"All Members shall refrain in their international relations from the
threat or use of force against the territorial integrity or political
independence of any State..."
The latter principle is, of course, one of the core principles of the United Nations.
411See also the last of President Woodrow Wilson's Fourteen Points delivered to Congress on 8 January 1918
referring to the need to establish a general association of nations under specific covenants for the purpose
of "affording mutual guarantees of political independence and territorial integrity to great and small States
alike", available at: http://wwi.lib.byu.edu/index.php/PresidenCs_Fourteen_Points.
154431. While the norm calling for respect for territorial integrity applies to independent
States, it is not so limited. The international community has both sought to
preserve the particular territorial configuration of colonial territories as the
movement to decolonisation gathered pace and has made increasing reference to
non-state actors within the context of respect for territorial integrity. Point 4 of
General Assembly resolution 1514 (XV) (the Declaration on the Granting of
Independence to Colonial Countries and Peoples) adopted on 14 December 1960
specifically called for an end to armed action against dependent peoples and
412
emphasized that the "integrity of their national territory shall be respected".
432. The United Nations, while underlining the presumption of territorial integrity with
regard to colonial territories in the move to independence, was equally clear with
regard to the need for respect for the territorial integrity of States. According to
point 6 of the Declaration on the Granting of Independence to Colonial Countries
and Peoples
"Any attempt aimed at the partial or total disruption of the national
unity and the territorial integrity of a country is incompatible with
the purposes and principles of the Charter of the United Nations"
433. General Assembly resolution 2625 (XXV) adopted on 24 October 1970
(Declaration on Principles of International Law) stressed the importance of the
respect for territorial integrity, first, in paragraph 7 of the principle of equal rights
and self-determination of peoples, referred to as the "safeguard clause", 413and
secondly, in the following provision
"Every State shall refrain from any action aimed at the partial or
total disruption of the national unity and territorial integrity of any
other State or country".
412
General Assembly resolution 1514 (XV); see also, General Assembly resolution 2625(XXV), "The
principle of equal rights and self-determination of peoples", para. 6.
413See further, below, Chapter 7, para. 589 and following.
155434. The Declaration on the Right to Development adopted by the General Assembly
on 4 December 1986 in resolution 41/128 called in Article 5 for States to take
resolute action to eliminate "threats against national sovereignty, national unity
and territorial integrity". General Assembly resolution 48/182, dated 19 December
1991, adopting a text on Guiding Principles on Humanitarian Assistance, provides
in paragraph 3 that,
"The sovereignty, territorial integrity and national unity of States
must be fully respected in accordance with the Charter of the
United Nations. In this context, humanitarian assistance should be
provided with the consent of the affected country and in principle
on the basis of an appeal by the affected country".
435. Further, resolution 52/112 concemmg the use of mercenaries as a means of
violating human rights and impeding the exercise of the rights of peoples to self
determination, adopted by the General Assembly on 12 December 1997, explicitly
reaffirmed "the purposes and principles enshrined in the Charter of the United
Nations conceming the strict observance of the principles of sovereign equality,
political independence, territorial integrity of States ... "
436. The United Nations Millennium Declaration, adopted by the General Assembly
414
on 8 September 2000, noted the rededication of the heads of State and of
govemment gathered at the United Nations to supporting inter alia "all efforts to
uphold the sovereign equality of all States, [and] respect for their territorial
integrity and political independence". This Declaration was reaffirmed in the
World Summit Outcome 2005, in which world leaders agreed to "to support all
efforts to uphold the sovereign equality of all States, [and] respect their territorial
415
integrity and political independence". In its tum, this provision in the World
414General Assembly resolution 55/2.
415General Assembly resolution 60/1, para. 5.
156 Summit Outcome was explicitly reaffirmed by the United Nations Global
416
Counter-Terrorism Strategy 2006.
437. This approach whereby the recognition of particular rights in international law of
non-State persons is accompanied by a reaffirmation of the principle of territorial
integrity finds recent expression in the United Nations Declaration on the Rights
417
of Indigenous Peoples, adopted on 7 September 2007. Article 46 of the
Declaration provides that:
"Nothing in this Declaration may be interpreted as implying for any
State, people, group or person any right to engage in any activity or
to perform any act contrary to the Charter of the United Nations or
construed as authorizing or encouraging any action which would
dismember or impair, totally or in part, the territorial integrity or
political unity of sovereign and independent States".
438. Itwill be noticed that this provision expressly refers to "any State, people, group
or person" with regard to the prohibition of conduct adversely affecting inter alia
the territorial integrity of States.Itdemonstrates, therefore, both that obligation to
obey the norm of territorial integrity is not exclusive to States and the range of
non-state actors that may be subject to the norm.
439. Accordingly, it is beyond contention that the United Nations has in terms of the
elucidation of the fondamental principles of international law repeatedly
confirmed that respect for the territorial integrity of States forms a part of that
body of law.
416General Assembly resolution 60/288. See also General Assembly resolutions 57/337 on the Prevention of
Armed Conflict which reaffirmed the Assembly's commitment to the principles of the political
independence, the sovereign equality and the territorial integrity of States; 59/195 on Human Rights and
Terrorism, paragraph I of which refers to the territorial integrity of States; and resolution 53/243, the
Declaration and Programme of Action on a Culture of Peace, paragraph 15 (h) of which calls on states to
refrain from any form of coercion aimed against the political independence and territorial integrity of
States.
417General Assembly Resolution 61/295.
157 II With regard to internai conflicts in particular
440. The United Nations has, however, moved beyond the confirmation of the right of
respect for the territorial integrity of States. It has also specifically emphasised
that the principle of territorial integrity applies to non-state actors in civil
war/secessionist situations.
441. The norm of territorial integrity has also been referred to, and reaffirmed, in a
large number of United Nations resolutions adopted with regard to particular
situations, virtually all of them concerning internai conflicts. 418 An indicative
survey only needs to be made in order to demonstrate how critical the
international community deems the principle of territorial integrity to be and how
the principle is deemed to apply not only to third States but also to internai
groups.
(1) The conflicts in Bosnia and Herzegovina and Croatia
442. In the case of Bosnia and Herzegovina, a series of Security Council resolutions
combined a reaffirmation of the territorial integrity of the State with calls upon all
parties to resolve the dispute. For example, operative paragraph 1 of resolution
752 (1992):
"Demands that all parties and others concerned in Bosnia
Herzegovina stop the fighting immediately, respect immediately
and fully the cease-fire signed on 12April 1992, and cooperate with
the efforts of the European Community to bring about urgently a
negotiated political solution respecting the principle that any change
of borders by force is not acceptable".
418Situations concerning external aggression by one State against another will not be examined in this
section, see, e.g., Security Council resolution 687 (1991) on the Iraqi invasion and purported annexation of
Iraq and General Assembly resolutions 3212IX) and 37/253 with regard to Cyprus; nor will colonial
situations, see e.g. Security Council resolution 389 (1976) calling upon ail States to respect the territorial
integrity of East Timor.
158443. Resolution 770 (1992) also reaffirmed both the territorial integrity of Bosnia and
Herzegovina and its demand that "all parties and others concerned in Bosnia and
Herzegovina stop the fighting immediately".
444. In resolution 787 (1992), the Council expressed its deep concern at "the threats to
the territorial integrity of the Republic of Bosnia and Herzegovina". In particular,
operative paragraph 3:
"Strongly reaffirms its call on all parties and others concerned to
respect strictly the territorial integrity of the Republic of Bosnia
and Herzegovina, and affirms that any entities unilaterally declared
or arrangements imposed in contravention thereof will not be
accepted". (emphasis added)
445. This powerful call on all parties, clearly including interna! groups, to strictly
respect the territorial integrity of Bosnia and Herzegovina is of particular
importance in the current proceedings.
446. In resolution 836 (1993), the Council reaffirmed the "sovereignty, territorial
integrity and political independence of the Republic of Bosnia and Herzegovina
and the responsibility of the Security Council in this regard" and condemned
"military attacks, and actions that do not respect the sovereignty, territorial
integrity and political independence of the Republic of Bosnia and Herzegovina",
while in resolution 847 (1993), the Council strongly condemned "continuing
military attacks within the territory of the Republics of Croatia and of Bosnia and
Herzegovina, and reaffirm[ed] its commitment to ensure respect for the
sovereignty and territorial integrity of the Republic of Croatia and of the other
Member States where UNPROFOR is deployed". In resolution 859 (1993), the
Council, in operative paragraph 6, affirmed that "a solution to the conflict in the
Republic of Bosnia and Herzegovina must be in conformity with the Charter of
the United Nations and the principles of international law; and, further affirms the
continuing relevance in this context of: (a) the sovereignty, territorial integrity and
political independence of the Republic of Bosnia and Herzegovina".
159447. In resolution 942 (1994), the Security Council affirmed its "commitment to a
negotiated settlement of the conflict in the former Yugoslavia, preserving the
territorial integrity of all the States there within their intemationally recognized
borders" and strongly condemning "the Bosnian Serb party for their refusa! to
accept the proposed territorial settlement, and demands that that party accept this
settlement unconditionally and in full", proceeded to impose sanctions upon it.
448. In resolution 982 (1995), the Council further affirmed "its commitment to the
search for an overall negotiated settlement of the conflicts in the former
Yugoslavia, ensuring the sovereignty and territorial integrity of all the States there
within their intemationally recognized borders, and stressing the importance it
attaches to the mutual recognition thereof', reaffirmed in particular "its
commitment to the independence, sovereignty and territorial integrity of the
419
Republic of Bosnia and Herzegovina." and called on
"all parties and others concemed to comply fully with all Security
Council resolutions regarding the situation in the former
Yugoslavia to create the conditions that would facilitate the full
implementation of UNPROFOR's mandate".
449. Similar approaches were taken with regard to the question of Croatia and the
Serb-populated Krajina region in the south of that country. Security Council
resolution 981 (1995), for example, affirmed generally "its commitment to the
search for an overall negotiated settlement of the conflicts in the former
Yugoslavia ensuring the sovereignty and territorial integrity of all the States there
within their intemationally recognized borders, and stressing the importance it
attaches to the mutual recognition thereof' and specifically "its commitment to the
independence, sovereignty and territorial integrity of the Republic of Croatia". In
this context, the Council called upon "the Govemment of the Republic of Croatia
and the local Serb authorities to refrain from the threat or use of force and to
420
reaffirm their commitment to a peaceful resolution of their differences".
419See also similar terminology used with regard to Croatia in Security Council resolution 1009 (1995).
420See also Security Council resolutions 990 (1995), 994 (1995) and 1009 (1995).
160450. The Security Council, in its resolutions 1088 (1996), 1423 (2002), 1491 (2003),
1551 (2004), 1575 (2004), 1639 (2005), 1722 (2006), 1785 (2007) and 1845
21
(2008)4 supported the General Framework Agreement for Peace in Bosnia and
22
Herzegovina (also known as "Paris-Dayton Agreement")4 and the Dayton
Agreement on implementing the Federation of Bosnia and Herzegovina of 10
423
November 1995. This support was manifested in the first operative paragraph
of the resolution, appearing immediately after the reference to the Council acting
under Chapter VII of the Charter. The parties to these agreements were further
called upon to comply strictly with their obligations under these agreements, such
obligations, of course, including that of respecting the territorial integrity of
Bosnia and Herzegovina. Indeed, the very purpose of these agreements was
securing the territorial integrity and sovereignty of Bosnia and Herzegovina.
451. The parties to the General Framework Agreement were Bosnia and Herzegovina,
Croatia and the Federal Republic of Yugoslavia, while the obligations in its
annexes were also undertaken by the central govemment and entities of Bosnia
and Herzegovina. The parties to the Dayton agreement on implementing the
Federation of Bosnia and Herzegovina were the central authorities of Bosnia and
Herzegovina and the authorities of one of its entities, the Federation of Bosnia and
Herzegovina, while the annex to the agreement was signed by two mayors of the
city of Mostar and its EU administrator.
452. The parties - including the entities of Bosnia and Herzegovina - must, therefore,
be regarded as doubly bound to respect existing frontiers, both by virtue of the
peace agreements and as a consequence of the binding Security Council
resolutions.
(2) The situation in Somalia
453. One constant of the international community's concem with the continuing civil
war in Somalia, extending essentially since 1991, has been the focus upon the
421
See Annex 15 and Annexes 21 to 28 in Documentary Annexes accompanying this Written Statement.
422UN Doc. S/1995/999, Annex (30 November 1995).
423UN Doc. S/1995/1021, Annex (8 December 1995).
161 territorial integrity of that State, despite secessionist pressures from, for example,
"Somaliland" and "Puntland", and continuing interna! armed conflict leading to
the absence of an intemationally recognised govemment with effective control
over the territory of the State. For example, Security Council resolution 1766
(2007) reaffirmed "the importance of the sovereignty, territorial integrity, political
independence and unity of Somalia", while extending the mandate of the
Monitoring Group referred to in paragraph 3 of resolution 1558 (2004) conceming
an arms embargo and stressing the need for the Transitional Federal Institutions to
continue "working towards establishing effective national govemance in
424
Somalia" .
454. Security Council resolution 1772 (2007) repeated the reaffirmation of "its respect
for the sovereignty, territorial integrity, political independence and unity of
Somalia", sought to encourage the national reconciliation process and authorized
Member States of the African Union to maintain a mission in Somalia for an
additional six months. The Security Council reaffirmed its strong support for the
African Union mission in Somalia (AMISOM) in a Presidential Statement of 19
December 2007, while repeating its "respect for the sovereignty, territorial
integrity, political independence and unity of Somalia". 425The African Union in
continuing its mission has reaffirmed "its commitment to the respect of the unity,
426
territorial integrity and sovereignty of Somalia".
427
455. Security Council authorization for AMISOM has been further renewed, as has
428
the mandate of the Monitoring Group, both in resolutions explicitly reaffirming
respect for the sovereignty, territorial integrity and unity of Somalia. Further, in
its resolutions encouraging States to take action with regard to piracy off the
Somali coast in cooperation with the Transitional Federal Govemment, the
Security Council reaffirmed "its respect for the sovereignty, territorial integrity,
political independence and unity of Somalia, including Somalia' s rights with
424
See also Security Council resolutions 733 (1992),1519 (2003), 1558 (2004), 1587 (2005) and 1744 (2007).
425UN Doc. S/PRST/2007/49 (19 December 2007).
426See the Decision of the Peace and Security Council of the African Union, Communiqué of the 163rd
Meeting, December 2008, para. 3.
427
See, e. g., Security Council resolutions 1801 (2008), 1816 (2008) and 1831 (2008).
428See, e.g., Security Council resolutions 1811 (2008) and 1853 (2008).
162 respect to offshore natural resources, including fisheries, m accordance with
international law".429
456. This continuing emphasis upon the territorial integrity of Somalia in the face of
both secessionist pressures and internai conflict has clearly been aimed not only at
States but also at relevant non-state actors.
(3) The situation in Georgia
457. In the case of Georgia, the Security Council adopted a Presidential Statement on 8
April 1994 in which the Council called upon "both parties to observe strictly the
cease-fire and other commitments under the agreements" that had been signed. A
further Presidential Statement was adopted on 2 December 1994 in which it was
stated that:
"The Security Council has received with deep concerna report from
the Secretariat concerning a statement of 26 November 1994
attributed to the Supreme Soviet of Abkhazia, Republic of Georgia.
It believes that any unilateral act purporting to establish a sovereign
Abkhaz entity would violate the commitments assumed by the
Abkhaz side to seek a comprehensive political settlement of the
Georgian-Abkhaz conflict. The Security Council reaffirms its
commitment to the sovereignty and territorial integrity of the
Republic of Georgia.
The Security Council calls upon all parties, in particular the Abkhaz
side, to reach substantive progress in the negotiations under the
auspices of the United Nations and with the assistance of the
Russian Federation as facilitator and with the participation of
representatives of the CSCE aimed at achieving a comprehensive
political settlement of the conflict, including on the political status
of Abkhazia, respecting fully the sovereignty and territorial
429
See Security Council resolutions 1846 (2008) and 1851 (2008).
163 integrity of the Republic of Georgia, based on the principles set out
430
in all the relevant resolutions of the Security Council".
458. The Security Council proceeded to adopt resolutions reaffirming the "sovereignty,
independence and territorial integrity of Georgia within its intemationally
recognised borders", and calling upon "bath sides" of the Georgia-Abkhaz
conflict to settle their dispute only by peaceful means "and within the framework
431
of the Security Council resolutions". Further, in resolution 1781 (2007), the
Council called on "the Abkhaz side to exercise restraint" and on "bath sides" to
use existing mechanisms to corne to a peaceful settlement and in resolution 1808
(2008), the Council noted that the United Nations would "continue to support the
process of conflict resolution between the Georgian and Abkhaz sides" but
reaffirmed the territorial integrity of Georgia and supported all efforts by the
United Nations to settle the Georgian-Abkhaz dispute "only by peaceful means
and within the framework of the Security Council resolutions".
(4) The situation in the Democratic Republic of the Congo
459. With regard to the continuing civil war in the Democratic Republic of the Congo
("DRC"), which has also seen numerous secessionist trends, the United Nations
has been meticulous in reaffirming "its commitment to respect the sovereignty,
territorial integrity and political independence" of that State. Such resolutions
have extended the mandate and deployment of the United Nations Mission in the
DRC (MONUC), part of whose responsibility has included the territorial security
of the DRC, while all Govemments in the region (particularly those of Burundi,
Rwanda and Uganda, as well as that of the DRC itself) have been urged to resolve
432
in a constructive manner their shared security and border problems.
460. For example, Security Council resolution 1756 (2007) reaffirmed its commitment
to respect the "sovereignty, territorial integrity and political independence of the
Democratic Republic of the Congo", within the context of referring to the
430
431UN Doc. S/PRST/1994/78 (2 December 1994).
See, e.g., Security Council resolutions 1752 (2007), 1781 (2007), and 1808 (2008).
432See, e.g., Security Council resolution 1756 (2007); See also Security Council resolutions 1316 (2000),
1493 (2003), 1565 (2005) and 1711 (2006).
164 importance of urgently carrymg out security sector reform and of disarming,
demobilizing, resettling or repatriating, as appropriate, and reintegrating
Congolese and foreign armed groups for the long-term stabilization of the
Democratic Republic of the Congo; reiterating its grave concem at the presence of
"armed groups and militias"; deploring the violations of human rights and
international humanitarian law carried out by such "militias and armed groups";
noting that amongst the fonctions of MONUC was the obligation to observe and
report on the position of "armed movements and groups" and deter any attempt at
the use of force to threaten the political process from "any armed group, foreign or
Congolese"; demanding that "militias and armed groups" still present in the
eastem part of the DRC lay down their arms and urging all govemments in the
region to prevent the use of their territories "in support of activities of armed
groups present m t e reg1on .433
461. Further, Security Council resolution 1771 (2007) repeated its reaffirmation with
regard to the sovereignty, territorial integrity and political independence of the
DRC, reiterated its concem regarding the presence of "armed groups and
militias", emphasised the importance of "reintegrating Congolese and foreign
armed groups for the long-term stabilisation" of the country, and called upon "all
parties and all States" to cooperate with the work of the Group of Experts
established under resolution 1533.
462. Resolution 1804 (2008), similarly reaffirming the territorial integrity of the DRC
(and indeed of Rwanda and all other States in the region), emphasised that:
"the arms embargo imposed by resolution 1493 (2003), as
expanded by resolution 1596 (2005), prohibits the provision of
arms and any related materiel or technical training and assistance to
all foreign armed groups and illegal Congolese militias in the
Democratic Republic of the Congo ... ",
433
See Security Council resolution 1756 (2007).
165 while resolution 1807 (2008) inter alia imposed a travel ban and an assets freeze
on persons and entities, including those impeding the demobilisation and
reintegration of combatants.
463. In addition, General Assembly resolution 60/170, adopted on 9 March 2006, after
specifically referring (in paragraph 4) to "militia groups" and "groups linked to
the mining and trading of .. resources", provides as follows:
"5. Urges all the parties, including non-signatories of the Global
and All-Inclusive Agreement on the Transition, in the Democratic
Republic of the Congo:
(a) To respect and further implement the Global and All-Inclusive
Agreement and to cease immediately any action which impedes the
consolidation of the sovereignty, unity and territorial integrity of
the Democratic Republic of the Congo;
(b) To support the transitional Govemment and its institutions in
order to allow for the re-establishment of political and economic
stability and for the gradua! reinforcement of State structures over
the entire territory of the Democratic Republic of the Congo ..".
(5) The situation in Sudan
464. The civil war in Sudan has also been the subject of continuing concem by the
United Nations and the African Union. In resolution 1556 (2004), the Security
Council endorsed the "deployment of international monitors, including the
protection force envisioned by the African Union, to the Darfur region of Sudan
under the leadership of the African Union", while reaffirming "its commitment to
the sovereignty, unity, territorial integrity, and independence of Sudan".
465. In resolution 1769 (2007), the Security Council reaffirmed its "strong
commitment to the sovereignty, unity, independence and territorial integrity of
Sudan". 434 and specifically recalled the statement of the President of the African
Union endorsing the Addis Ababa and Abuja agreements and calling for them to
434
See Security Council resolution 1769 (2007), preambular para. 2.
166 be fully implemented "by all parties without delay and for all parties to facilitate
the immediate deployment of the United Nations Light and Heavy Support
packages to the African Union Mission in the Sudan (AMIS) and a Hybrid
operat10n m. D ar ur .435
466. In that resolution the Security Council authorised and mandated the establishment
of an AU/UN Hybrid operation in Darfur (UNAMID) based upon a report of the
Secretary-General and Chairperson of the African Union Commission and in the
436
light of proven egregious human rights violations. The Security Council also
urged "all parties" to the conflict in Darfur not to act in a way that would impede
the implementation of the Darfur Agreement and in operative paragraph 4 called
on "all parties" to urgently facilitate the full deployment of the United Nations
Light and Heavy Support packages to the African Union Mission in the Sudan
(AMIS) and preparations for UNAMID. In operative paragraph 13, the Security
Council also called on "all parties to the conflict in Darfur to immediately cease
all hostilities and commit themselves to a sustained and permanent cease-fire".
467. In operative paragraph 18, the Council also:
"Emphasises there can be no military solution to the conflict in
Darfur, welcomes the commitment expressed by the Govemment of
Sudan and some other parties to the conflict to enter into talks and
the political process under the mediation, and in line with the
deadlines set out in the roadmap, of the United Nations Special
Envoy for Darfur and the African Union Special Envoy for Darfur,
who have its full support, looks forward to these parties doing so,
calls on the other parties to the conflict to do likewise, and urges all
the parties, in particular the non-signatory movements, to finalise
their preparations for the talks".
468. The Secretary General was requested to report to the Council on inter alia "the
implementation of the Darfur Peace Agreement and the parties' compliance with
435Ibid.
436UN Doc. S/2007/307/Rev. l (5 June 2007).
167 their international obligations and their commitments under relevant
437
agreements".
469. Finally, in operative paragraph 22, the Council:
"Demands that the parties to the conflict in Darfur fulfil their
international obligations and their commitments under relevant
agreements, this resolution and other relevant Council resolutions".
470. One of the relevant agreements is obviously the Darfur Peace Agreement which
438
expressly affirms "the sovereignty, unity, and territorial integrity of Sudan."
471. The commitment to respect the territorial integrity of Sudan was mentioned in all
439
relevant Security Council resolutions. In resolution 1784 (2007), for example,
the Council called on "all parties" to agree immediately to full unrestricted
UNMIS monitoring and verification in the Abyei region (between north and south
Sudan). Accordingly, the repeated reference by the Security Council in operative
paragraphs to "all parties" which in the circumstances clearly included non-state
actors in Sudan, constitutes a crucial point with regard to the obligation on such
non-state actors to respect the territorial integrity of the State concerned.
472. Further, in addressing the cross-over of the civil wars of Sudan, the Central
African Republic and Chad into each other' s territory, the Security Council in
resolution 1778 (2007) emphasised "its commitment to the sovereignty, unity,
territorial integrity and political independence of Chad and the Central African
Republic" and after noting the role specifically of those two States proceeded to
call upon "all the parties" to cooperate fully in the deployment and operations of
the United Nations Mission in the Central African Republic and Chad
(MINURCAT) and the European Union operation and reaffirmed the obligation of
437
Ibid., operative paragraph 21 (d).
438Darfur Peace Agreement, available at:
http://allafrica.com/peaceafrica/resources/view/OOO 10926.pdf, Preamble.
439See Security Council resolutions 1590 (2005), 1828 (2008) and 1841 (2008).
168 "all parties" to implement fully the rules and principles of international
humanitarian law. 440
(6) Other situations
473. In other situations as well, the United Nations has been consistent in reaffirming
the territorial integrity of States facing interna! disputes and conflicts. In the case
of Iraq, for example, the Security Council both in establishing and subsequently
extending the mandate of the United Nations Assistance Mission for Iraq
(UNAMI) and with regard to the multi-national force in Iraq, has consistently
reaffirmed "the independence, sovereignty, unity and territorial integrity" of the
441
State.
474. With regard to Afghanistan, the Council, in imposing sanctions on the Taliban
regime in 1999, reaffirmed "its strong commitment to the sovereignty,
independence, territorial integrity and national unity'' of the country and insisted
442
that the Taliban "comply promptly with its previous resolutions", as it did
subsequently in resolutions concerning the United Nations Assistance Mission in
Afghanistan (UNAMA) and the International Security Assistance Force
443
(ISAF).
475. In addition, the territorial integrity of number of other States involved in interna!
444
conflicts or disputes has been explicitly and specifically reaffirmed. In the case
440See Security Council resolution 1778 (2007), operative paragraphs 13 and 17.
441
See Security Council resolutions 1500 (2003), 1546 (2004), 1557 (2004), 1619 (2005), 1700 (2006), 1770
(2007), 1790 (2007) and 1830 (2008). In resolution 1770 (2007), for example, the Security Council after
reaffirming the territorial integrity of Iraq emphasised "the need for ail communities in Iraq to reject
sectarianism, participate in the political process, and engage in an inclusive political dialogue and national
reconciliation for the sake of Iraq's political stability and unity". This formulation was repeated in
442resolution 1830 (2008).
See Security Council resolution 1267 (1999).
443See, e.g., Security Council resolutions 1386 (2001), 1510 (2003), 1707 (2006), 1746 (2007) and 1776
(2007).
444
See, e.g., Security Council resolutions 1780 (2007) and 1840 (2008) with regard to Haïti; resolution 1796
(2008) with regard to Nepal; resolution 1719 (2006) and 1791 (2007) with regard to Burundi; resolutions
1782 (2007), 1765 (2007), 1795 (2008) and 1826 (2008) with regard to Côte d'Ivoire; resolution 1268
(1999) and General Assembly resolution 52/211 with regard to Angola; Security Council resolution 1306
(2000) with regard to Sierra Leone; General Assembly resolution 37/43 with regard to the Comoros;
Security Council Presidential statement of 20 July 1993, S/26118, with regard to Ukraine; Security
Council resolutions 822 (1993), 853 (1993), 874 (1993) and 884 (1993) and General Assembly resolution
62/243 with regard to Azerbaijan and ail other States in the region.
169 of Lebanon, for example, the Security Council in resolution 1701 (2006) in
reiterating its "strong support ... for the territorial integrity, sovereignty and
political independence" of that country in the light of the Israel - Hezbollah
conflict that year, also affirmed that "all parties are responsible for ensuring that
no action is taken" that might adversely affect the search for a long-term
solution.445
476. It is, therefore, beyond dispute that international practice has been remarkably
consistent in affirming the territorial integrity of States, both generally and
particularly with regard to States faced with interna! conflicts or disputes. Such
practice, which confirms and reinforces the foundational norm of territorial
integrity, demonstrates that there exists an international rule to that effect which
applies not only to neighbouring and other States, but also to those groups within
the State in question that seek non-consensual secession.
C. Regional Treaty Law Has Also Consistently Upheld the Principle of
Territorial Integrity
477. References to territorial integrity occur with considerable frequency in regional
treaties and other instruments. The following indicative examples may be given.
478. Insofar as Europe is concerned, Principle IV of the Declaration on Principles
Guiding Relations Between Participating States contained in the Helsinki Final
Act adopted on 1 August 1975 by the Conference on Security and Cooperation in
Europe declares that:
"The participating States will respect the territorial integrity of each
of the participating States.
Accordingly, they will refrain from any action inconsistent with the
purposes and principles of the Charter of the United Nations against
445See also Security Council resolutions 347 (1974), 425 (1978), 436 (1978), 444 (1979), 467 (1980), 490
(1981), 508 (1982), 509 (1982), 520 (1982), 542 (1983), 564 (1985), 587 (1986), 1052 (1996), 1559
(2004), 1655 (2006), and 1757 (2007). See also General Assembly resolution 36/226.
170 the territorial integrity, political independence or the unity of any
participating State, and in particular from any such action
constituting a threat or use of force.
The participating States will likewise refrain from making each
other's territory the object of military occupation or other direct or
indirect measures of force in contravention of international law, or
the object of acquisition by means of such measures or the threat of
them. No such occupation or acquisition will be recognized as
legal.,,446
479. The Charter of Paris for a New Europe adopted by the renamed Organisation for
Security and Cooperation in Europe in November 1990 reaffirmed that:
"In accordance with our obligations under the Charter of the United
Nations and commitments under the Helsinki Final Act, we renew
our pledge to refrain from the threat or use of force against the
territorial integrity or political independence of any State, or from
acting in any other manner inconsistent with the principles or
purposes of those documents". 447
480. The Council of Europe has adopted two conventions of particular relevance. First,
Article 5 of the European Charter for Regional or Minority Languages adopted on
5 November 1992, provides that:
446
Declaration on Principles Guiding Relations Between Participating States contained in the Helsinki Final
Act adopted on 1August 1975. Note also the provisions in Principle I that participating states will "respect
each other's sovereign equality and individuality as well as all the rights inherent in and encompassed by
its sovereignty, including in particular the right of every state to juridical equality, to territorial integrity
and to freedom and political independence"; Principle II that participating statesill refrain in their
mutual relations, as well as in their international relations in general, from the threat or use of force against
the territorial integrity or political independence of any State, or in any other manner inconsistent with the
purposes of the United Nations and with the present Declaration" and Principle III that participating states
"regard as inviolable all one another's frontiers as well as the frontiers of all states in Europe".
447
Charter of Paris for a New Europe (19-20 November 1990), available at:
www.osce.org/documents/mcs/1990/11/4045_en.pdf; see also the Lisbon Declaration On a Common and
Comprehensive Security Model for Europe for the Twenty-First Century (1996), point 6; the Charter for
European Security (1999), point 16 and the Agreement on Adaptation of the Treaty on Conventional
Armed Forces in Europe (1999) by participating states reaffirming "their obligation to refrain in their
mutual relations, as well as in their international relations in general, from the threat or use of force against
the territorial integrity or political independence of any State, or in any other manner inconsistent with the
purposes and principles of the Charter of the United Nations".
171 "Nothing in this Charter may be interpreted as implying any right to
engage in any activity or perform any action in contravention of the
purposes of the Charter of the United Nations or other obligations
under international law, including the principle of the sovereignty
448
and territorial integrity of States".
481. Secondly, the Framework Convention for the Protection of National Minorities,
adopted on 1 February 1995, called for cooperation between States "without
prejudice to the constitution and territorial integrity of each State" and for:
"the effective protection of national minorities and of the rights and
freedoms of persans belonging to those minorities, within the rule
of law, respecting the territorial integrity and national sovereignty
of States;"
while Article 21 emphasises that:
"Nothing in the present framework Convention shall be interpreted
as implying any right to engage in any activity or perform any act
contrary to the fondamental principles of international law and in
particular of the sovereign equality, territorial integrity and political
449
independence of States".
482. The Charter of the Commonwealth of Independent States, adopted at Minsk on 22
450
January 1993, notes as amongst its principles listed in Article 3, the
inviolability of State borders, the recognition of existing borders and the rejection
of unlawful territorial annexations; together with the territorial integrity of States
and the rejection of any actions directed towards breaking up alien territory.
448European Charter for Regional or Minority Languages (opened for signature 5 November 1992, entered
into force 1March 1998), CETS No. 148.
449
Framework Convention for the Protection of National Minorities (opened for signature 1 February 1995,
450entered into force 1February 1998), CETS No. 157.
The Charter of the Commonwealth of lndependent States (1993), available at:
http://therussiasite.org/legal/laws/CIScharter.html.
172483. The Charter of the Collective Security Organisation 2002 (replacing the CIS
Collective Security Treaty) sought to ensure the "security, sovereignty and
territorial integrity" of States parties as noted in the preamble, while Article 3
described the purposes of the organisation as being
"to strengthen peace and international and regional security and
stability and to ensure the collective defence of the independence,
territorial integrity and sovereignty of the member States, in the
attainment of which the member States shall give priority to
451
political measures".
484. Outside of the European area, Article 1 of the Charter of the Organisation of
452
American States 1948 provides that the American States parties to the Charter
thereby establish an international organisation "to promote their solidarity, to
strengthen their collaboration, and to defend their sovereignty, their territorial
integrity, and their independence".
485. The Framework Treaty on Democratic Security in Central America, adopted on
15 December 1995, 453 noted in Article 26 as amongst its regional security
principles renunciation of the threat or the use of force against the sovereignty,
territorial integrity and political independence of any country in the region;
collective defence and solidarity in the event of armed attack by a country outside
the region against the territorial integrity, sovereignty, and independence of a
Central American country and the national unity and territorial integrity of the
countries in the framework of Central American integration. Article 46 further
provides that any armed aggression, or threat of armed aggression, by a State
outside the region against the territorial integrity, sovereignty or independence of
451
See also the Charter of GUAM ( Georgia, Ukraine, Azerbaijan and Moldova), (2006), Article II which
calls for cooperation based on "the principles of respect for sovereignty and territorial integrity of the
states, inviolability of their internationally recognized borders and non-interference in their internai affairs
and other universally recognized principles and norms of international law".
452The Charter of the Organisation of American States (1948), as amended in 1967, 1985, 1992 and 1993,
453available at: http://www.oas.org/juridico/English/charter.html.
Framework Treaty on Democratic Security in Central America (1995), available at:
http://www.state.gov/p/wha/rls/70979.htm.
173 a Central American State is to be considered an act of aggression against the other
Central American States".
454
486. The Charter of the Organisation of African Unity 1963 declares in Article II,
paragraph 1(c), that among the purposes of the organisation are the defence of
their "sovereignty, their territorial integrity and independence", while Article III
lists the principles to which the Members of the OAU adhere in folfilling the
Stated purposes of the organisation. These include the sovereign equality of all
Member States; non-interference in the interna! affairs of States and "respect for
the sovereignty and territorial integrity of each State and for its inalienable right to
independent existence". The OAU was transformed into the African Union by the
Constitutive Act of the African Union 2000. 455 Article 3 includes among the
objectives of the Union, defence of the "sovereignty, territorial integrity and
independence of its members", while Article 4 provides that the Union is to
fonction in accordance with a number of principles, including "sovereign equality
and interdependence among member States of the Union" and "respect of borders
existing on achievement of independence".
487. The norm of territorial integrity also appears explicitly in the constitutional
documents of sub-regional organisations. For example, the Heads of State and
Govemment of the Member States of the Economie Community of West African
States (ECOWAS) reaffirmed in Article II of the Protocol Relating to the
Mechanism for Conflict Prevention, Management, Resolution, Peace-keeping and
456
Security adopted on 10 December 1999 a series of "fondamental principles",
including "territorial integrity and political independence of Member States".
488. The preamble to the Protocol on Politics, Defence and Security Cooperation
adopted by the Heads of State and Govemment of the Member States of the
454The Charter of the Organisation of African Unity (1963), available at: http://www.africa
union.org/root/au/Documents/Treaties/text/OA U_Charter_ 1963.pdf.
455
The Constitutive Act of the African Union (2000), available at: http://www.africa
456union.org/root/AU/Documents/Treaties/List/Constitutive%20Act%20of%20the%
20African%20Union.pdf.
The Protocol relating to the Mechanism for Conflict Prevention, Management, Resolution, Peace-keeping
and Security (1999), available at: http://www.oecd.org/dataoecd/55/62/38873520.pdf.
174 457
Southern African Development Community (SADC) on 14 August 2001
recognised and reaffirmed the principles of "strict respect for sovereignty,
sovere1gn equality, territorial integrity, political independence, good
neighbourliness, interdependence, non-aggression and non-interference in interna!
affairs of other States" and declared in Article 11, paragraph 1 (a), that "State
Parties shall refrain from the threat or use of force against the territorial integrity
or political independence of any State, other than for the legitimate purpose of
individual or collective self-defence against an armed attack".
458
489. The Charter of the Organisation of the Islamic Conference 1972 provides that
amongst its principles laid down in Article II are "respect for the sovereignty,
independence and territorial integrity of each member State" and "abstention from
the threat or use of force against the territorial integrity, national unity or political
independence of any member States". The Islamabad Declaration adopted at the
Extraordinary Session of the Islamic Summit 1997 reaffirmed in its preamble
respect for the principles of "sovereignty, territorial integrity and non-interference
459
in interna! affairs of States." The Charter of the Organisation was replaced with
460
an amended document dated 14 March 2008, which refers twice in its
preambular paragraph to the determination of the organisation to "respect,
safeguard and defend the national sovereignty, independence and territorial
integrity of all member States". Article 1 noted as one of the objectives of the
organisation to respect the "sovereignty, independence and territorial integrity of
each Member State", while another objective is to "support the restoration of
complete sovereignty and territorial integrity of any member State under
occupation, as a result of aggression, on the basis of international law and
cooperation with the relevant international and regional organisations". Article 2
states the principles of the organisation, including the principle that all Member
States "undertake to respect national sovereignty, independence and territorial
457The Protocol on Politics, Defence and Security Cooperation (2001), available at:
http://www.iss.co.za/ Af/RegOrg/unityunion/pdfs/sadc/1 Protocol_on_Defence_ Organ.pdf.
458
459Available at: http://www.oic-oci.org/is 11/english/Charter-en.pdf.
See UN Doc. A/51/915, Annex (6 June 1997).
4° Charter of the Organisation of the Islamic Conference, amended on 14 March 2008, available at:
www.oic-oci.org/35cfm/english/res/35CFM-DW-RES-FINAL.pdf.
175 integrity of other member States and shall refrain from interfering in the interna!
affairs of others".
490. The Association of South East Asian Nations (ASEAN) was created on 8 August
461
1967. In the Treaty of Amity and Cooperation in Southeast Asia 1976, the
States parties agreed to be bound by a number of "fondamental principles" laid
down in Article 2, including "Mutual respect for the independence, sovereignty,
equality, territorial integrity and national identity of all nations". Article 10
provides that, "Each High Contracting Party shall not in any manner or form
participate in any activity which shall constitute a threat to the political and
economic stability, sovereignty, or territorial integrity of another High Contracting
Party". The ASEAN Charter was signed on 20 November 2007, with the preamble
noting respect for the "principles of sovereignty, equality, territorial integrity,
non-interference, consensus and unity in diversity". 462 Article 2, paragraph 2,
provides that ASEAN and its Member States are to act in accordance with a
number of principles, including "respect for the independence, sovereignty,
equality, territorial integrity and national identity of all ASEAN member
463
States".
491. The above summary of some of the regional treaties embedding the principle of
territorial integrity is sufficient to demonstrate the extent to which this principle
forms the bedrock of international relations across the international community,
covering all major regions, cultures and civilisations.
461Treaty of Amity and Cooperation in Southeast Asia (1976), available at:
462http://www.aseansec.org/1217 .htm.
The ASEAN Charter (2007), the member states currently are Brunei, Darussalam, Cambodia, Indonesia,
Lao PDR, Malaysia, Myanmar, Philippines, Singapore, Thailand and Vietnam. Available at:
www.aseansec.org/ ASEAN-Charter. pdf.
463
See also the Charter of the South Asian Regional Association for Regional Cooperation (India, Pakistan,
Bangladesh, the Maldives, Nepal, Sri Lanka and Bhutan) adopted on 8 December 1986 which affirmed
"respect for the principles of sovereign equality, territorial integrity, national independence, non-use of
force and non-interference in the internai affairs of other States and peaceful seulement of all disputes"
and emphasised in Article II (1) that, "Cooperation within the framework of the Association shall be based
on respect for the principles of sovereign equality, territorial integrity, political independen~e, non
interference in the internai affairs of other States and mutual benefit."
176 D. Consequential principles
492. This central norm of territorial integrity has generated a senes of relevant
consequential principles which need to be noted. The International Court, for
example, noted that the principle of respect for State sovereignty was "closely
linked with the principles of the prohibition of the use of force and of non
intervention"464 and pointed out that the "effects of the principle of respect for
territorial sovereignty inevitably overlap with those of the principles of the
465
prohibition of the use of force and of non-intervention".
493. Such principles would include that of domestic jurisdiction, which emphasises
that as a direct consequence of the norms of State sovereignty, State equality and
territorial integrity, there is a core of activity within the territorial framework of
each State which is presumptively a matter for domestic regulation only.
494. A second consequential principle is that of non-intervention. The International
Court has declared that:
"The principle of non-intervention involves the right of every
sovereign State to conduct its affairs without outside interference;
though examples of trespass against this principle are not
infrequent, the Court considers that it is part and parcel of
customary international law. As the Court has observed: 'Between
independent States, respect for territorial sovereignty is an essential
foundation of international relations' (/.C.J. Reports 1949, p. 35),
and international law requires political integrity also to be
respected .... The existence in the opinio juris of States of the
principle of non-intervention 1s backed by established and
substantial practice.lt has moreover been presented as a corollary
466
of the principle of the sovereign equality of States".
464Nicaragua Case, p. 111, para. 212.
465Ibid., p. 128,para. 251.
466Ibid., p. 106,para. 202; see also ibid. p. 126, para. 246.
177495. United Nations practice has also been clear and consistent in this matter. The duty
not to intervene in matters within the domestic jurisdiction of any State was
reaffirmed in General Assembly resolution 2131 (XX) 1965 and in General
467
Assembly resolution 2625 (XXV) adopted in October 1970.
496. A third consequential principle is the prohibition of the threat or use of force
against the territorial integrity of States laid down in Article 2, paragraph 4, of the
United Nations Charter. This prohibition is accepted not only as a rule contained
in the United Nations Charter and in customary international law, but also as
468
being contrary to the rules ofjus cogens, or a higher or peremptory norm.
497. Linked to this rule ofjus cogens, is the associated principle that boundaries cannot
in law be changed by the use of force. Security Council resolution 242 (1967), for
example, emphasised the "inadmissibility of the acquisition of territory by
war".469
E. The UDI Contradicts the lnternationally Affirmed Territorial lntegrity of
Serbia
498. The territorial integrity of the Republic of Serbia has been consistently and
repeatedly reaffirmed, so that any non-consensual violation of its territorial
integrity must be seen as contrary to international law and practice.
499. The Arbitration Commission established by the European Communities'
Conference on Yugoslavia, when asked whether the Serbian population in Croatia
and Bosnia and Herzegovina had the right to self-determination, declared in its
467
See General Assembly resolution 36/103 and General Assembly resolution 2734 (XXV) containing the
Declaration on the Strengthening of International Security; General Assembly resolution 3314
containing the Definition of Aggression; General Assembly resolution 31/91, General Assembly
resolution 32/153, General Assembly resolution 33/74, General Assembly resolution 34/101 and General
Assembly resolution 35/159 on non-interference in the internai affairs of States.
468
See Yearbook of the International Law Commission (1966), vol. II, pp. 247-248J.Crawford, The
International Law Commission 's Articles on State Responsibility (2002), p. 246; see also Vienna
Convention on the Law of Treaties, Article 53 and the Nicaragua Case, pp. 14, 100-101.
469See Declaration on Principles of International Law (1970), Security Council resolution 662 (1990) and the
Wall advisory opinion, at p. 171,para. 87.
178 Opinion No. 2 of 11 January 1992 that "whatever the circumstances, the right to
self-determination must not involve changes to existing frontiers at the time of
independence (uti possidetis juris) except where the States concerned agree
470
otherwise". This, therefore, affirmed and confirmed the territorial integrity of
the post-Socialist Federal Republic of Yugoslavia republics, including explicitly
Croatia and Bosnia and Herzegovina and implicitly today's Republic of Serbia.
This position has been repeated, reiterated and re-emphasised continually since
1991.
500. Security Council resolution 1031 (1995) reaffirmed "its commitment to a
negotiated political settlement of the conflicts in the former Yugoslavia,
preserving the territorial integrity of all States there within their internationally
recognized borders" 471 and specifically welcomed the signing on 14 December
1995 at the Paris Peace Conference of the General Framework Agreement for
Peace in Bosnia and Herzegovina (also known as the "Dayton-Paris
Agreement"), 472as well as the Dayton Agreement on implementing the Federation
473 and the conclusions of the
of Bosnia and Herzegovina of 10 November 1995,
Peace Implementation Conference held in London on 8 and 9 December 1995.
The General Framework Agreement specifically provided in Article 1that:
"the Parties shall fully respect the sovere1gn equality of one
another, shall settle disputes by peaceful means, and shall refrain
from any action, by threat or use of force or otherwise, against the
territorial integrity or political independence of Bosnia and
474
Herzegovina or any other State".
501. The express commitment by the Security Council to a settlement of the Yugoslav
conflicts "preserving the territorial integrity of all States there within their
470
Opinion No. 2 of the Arbitration Commission on former Yugoslavia, 31 ILM 1497 (1992), Annex 39 in
Documentary Annexes accompanying this Written Statement.
471Security Council resolution 1031 (1995), Annex 14 in Documentary Annexes accompanying this Written
Statement.
472
473UN Doc. S/1995/999 (30 November 1995).
UN Doc. S/1995/1021 (8 December 1995).
474UN Doc. S/1995/999 (30 November 1995).
179 internationally recognized borders" was reaffirmed in resolutions 1088 (1996),
1423 (2002), 1491 (2003), 1551 (2004), 1575 (2004), 1639 (2005), 1722 (2006),
475 476
1785 (2007) and 1845 (2008). As already noted, each of these resolutions
also called upon the parties to the General Framework Agreement (Dayton-Paris
Agreement) to comply strictly with their obligations under this agreement, such
obligations including the respect for territorial integrity of Bosnia and
Herzegovina and "any other State". The obligation to respect the territorial
integrity is, therefore, based both on the Dayton-Paris Agreement and the binding
Security Council resolutions. What has been regularly underlined in a binding
Security Council resolution as an obligation for the parties to the peace
agreements cannot be regarded as of no consequence in international law for all
Member States of the United Nations and for all those subject to international law.
502. This repeated confirmation of the territorial integrity of the Republic of Serbia in
the general context of the settlement of the conflicts arising out of the former
Yugoslavia was further manifested in resolutions relating specifically to Kosovo.
477
503. Security Council resolution 1160 (1998), while condemning the "use of
excessive force by Serbian police forces against civilians and peaceful
demonstrators in Kosovo, as well as all acts of terrorism by the Kosovo Liberation
Army", specifically affirmed the "commitment of all Member States to the
sovereignty and territorial integrity of the Federal Republic of Yugoslavia". The
resolution also called for a political solution to the developing problem and
imposed an arms embargo on the Federal Republic of Yugoslavia. All States and
all international and regional organizations were called upon to act strictly in
conformity with the resolution. Further, in operative paragraph 3, the resolution
emphasised that the Council:
"Agrees, without prejudging the outcome of that dialogue, with the
proposa! in the Contact Group statements of 9 and 25 March 1998
that the principles for a solution of the Kosovo problem should be
475
See Annex 15 and Annexes 21 to 28 in Documentary Annexes accompanying this Written Statement.
476See supra paras. 450-452.
477Security Council resolution 1160 (1998), Annex 16 in Documentary Annexes accompanying this Written
Statement.
180 based on the territorial integrity of the Federal Republic of
Yugoslavia and should be in accordance with OSCE standards,
including those set out in the Helsinki Final Act of the Conference
on Security and Cooperation in Europe of 1975, and the Charter of
the United Nations, and that such a solution must also take into
account the rights of the Kosovar Albanians and all who live in
Kosovo, and expresses its support for an enhanced status for
Kosovo which would include a substantially greater degree of
autonomy and meaningful self-administration".
504. The "commitment of all Member States to the sovereignty and territorial integrity
of the Federal Republic of Yugoslavia" was specifically underlined in the
Presidential Statements of 24 August 1998, 478 19 January 1999 479and 29 January
1999.480 The same commitment was specifically and expressly reaffirmed in
Security Council resolutions 1199 (1998) and 1203 (1998), while resolution 1239
(1999) reaffirmed "the territorial integrity and sovereignty of all States in the
region". 481
505. However, such obligation must be taken as going beyond United Nations Member
States alone. Resolution 1203 (1998), for example, while reaffirming the
territorial integrity of the Federal Republic of Yugoslavia, also demanded that
"the Kosovo Albanian leadership and all other elements of the Kosovo Albanian
community comply fully and swiftly with resolutions 1160 (1998) and 1199
(1998)". This is important. As noted above, resolution 1160 (1998) specifically
agreed that a political solution to the Kosovo problem be based on the territorial
integrity of the Federal Republic of Yugoslavia, while resolution 1199 (1998)4 82
in tum reaffirmed both the territorial integrity principle and "the objectives of
resolution 1160 (1998), in which the Council expressed support for a peaceful
478UN Doc. S/PRST/1998/25 (24 August 1998), Annex 29 in Documentary Annexes accompanying this
479Written Statement.
UN Doc. S/PRST/1999/2 (19 January 1999), Annex 30 in Documentary Annexes accompanying this
Written Statement.
480UN Doc. S/PRST/1999/5 (29 January 1999), Annex 31 in Documentary Annexes accompanying this Written
Statement.
481
482See Annexes 17 to 19 in Documentary Annexes accompanying this Written Statement.
Annex 16 in Documentary Annexes accompanying this Written Statement.
181 resolution of the Kosovo problem which would include an enhanced status for
Kosovo". Operative paragraph 3 also called upon "the authorities in the Federal
Republic of Yugoslavia and the Kosovo Albanian leadership to enter immediately
into a meaningful dialogue without preconditions and with international
involvement, and to a clear timetable, leading to an end of the crisis and to a
negotiated political solution to the issue of Kosovo".
506. This consistent and invariable pattern of reaffirming the territorial integrity of the
Federal Republic of Yugoslavia, despite allegations concerning its treatment of
the Albanian population of Kosovo, culminated in the critical and seminal
483
resolution 1244 (1999) adopted on 10 June 1999. This resolution, it must be
emphasised, reaffirmed the sovereign title of the Federal Republic of Yugoslavia
over Kosovo, while establishing an international presence with regard to certain
administrative matters.
507. Resolution 1244 (1999) commenced by recalling prev10us resolutions 1160
484
(1998), 1199 (1998), 1203 (1998) and 1239 (1999). In this way, the Security
Council underlined the earlier resolutions that had called for a political solution
based on the territorial integrity of the Federal Republic of Yugoslavia and
autonomy for Kosovo and had also demanded that the Kosovo Albanian
leadership and community accept this.
508. Resolution 1244 (1999) also reaffirmed "the commitment of all Member States to
the sovereignty and territorial integrity of the Federal Republic of Yugoslavia and
the other States of the region, as set out in the Helsinki Final Act and annex 2".
Principle IV of the Declaration on Principles Guiding Relations Between
Participating States contained in the Helsinki Final Act 1975 declared that
participating States would respect the territorial integrity of participating States
and would refrain from any action inconsistent with the purposes and principles of
the Charter of the United Nations against the territorial integrity, political
independence or the unity of any participating State. 485Annex 2 of resolution 1244
483
Annex 20 in Documentary Annexes accompanying this Written Statement.
484Annexes 16 to 18 and 19 in Documentary Annexes accompanying this Written Statement.
485See further above, para. 478.
182 (1999) lays down a number of principles for the resolution of the Kosovo crisis
upon which agreement should be reached and of these, principle 8 stipulates:
"A political process towards the establishment of an interim
political framework agreement providing for substantial self
government for Kosovo, taking full account of the Rambouillet
accords and the principles of sovereignty and territorial integrity of
the Federal Republic of Yugoslavia and the other countries of the
region, and the demilitarization of UCK [Kosovo Liberation
Army]".
509. In addition, preambular paragraph 11 reaffirmed "the call in previous resolutions
for substantial autonomy and meaningful self-administration for Kosovo".
510. Such preambular provisions, so clearly laying down the two guiding principles of
respect for the territorial integrity of the Federal Republic of Yugoslavia and the
need for self-government for Kosovo, were reinforced by provisions contained in
the operative paragraphs of resolution 1244 (1999), following the statement that
the Security Council was acting under Chapter VII of the Charter and thereby
making a binding decision.
511. Operative paragraph one states that the Security Council:
"Decides that a political solution to the Kosovo crisis shall be based
on the general principles in annex 1 and as further elaborated in the
principles and other required elements in annex 2".
512. As already noted, the principles of sovereignty and territorial integrity of the FRY
are mentioned in Annex 2 of resolution 1244 (1999). As far as its Annex 1 is
concerned, it consists of the Statement made by the Chairman on the conclusion
of the meeting of the G-8 Foreign Ministers held at the Petersberg Centre on 6
May 1999. This Statement declares that the G-8 Foreign Ministers adopted a
number of general principles on the political solution to the Kosovo crisis. This
list included the following general principle:
183 "A political process towards the establishment of an interim
political framework agreement providing for a substantial self
govemment for Kosovo, taking full account of the Rambouillet
accords and the principles of sovereignty and territorial integrity of
the Federal Republic of Yugoslavia and the other countries of the
region, and the demilitarization of the KLA".
513. The debate in the Security Council on 10 June 1999 conceming and culminating
in the adoption of resolution 1244 (1999) also demonstrated support for the
principle of territorial integrity in relation to the Federal Republic of
486
Yugoslavia. No State contradicted unequivocal statements by Russia, China
and Argentina that the resolution would reaffirm the commitment of States, and
indeed of the Security Council, to the sovereignty and territorial integrity of the
Federal Republic of Yugoslavia. No State sought to modify such views or to
challenge their accuracy at all. The inevitable interpretational conclusion,
therefore, is that the member States of the Security Council were well aware that
the package of measures adopted in relation to Kosovo rested upon an affirmation
and confirmation of the territorial integrity of that territory.
514. In other words, one constant feature of international practice throughout the crises
conceming the former Yugoslavia and Kosovo was the continuai reaffirmation of
the territorial integrity of the State currently called the Republic of Serbia. This
range of consistent State practice affirmed that no alteration in the recognised
territorial boundaries was possible without the consent of the relevant parties.
However the dissolution of the former Yugoslavia may be characterised over the
relevant period, the international agreements that brought the conflicts to an end
emphasised the principle of the territorial integrity of the States that emerged from
the former Yugoslavia (including, of course, the Federal Republic of Yugoslavia
that became the State Union of Serbia and Montenegro in 2003 and then the
487
Republic of Serbia after the consensual separation of Montenegro in 2006 ).
486
See UN Doc. S/PV.4011 (10 June 1999), Annex 34 in Documentary Annexes accompanying this Written
Statement. For a more detailed analysis of Security Council resolution 1244 (1999) and the process of its
adoption, seenfra Chapter 8, Section A (III).
487On the continuity between the FRY and the Republic of Serbia, see supra Chapter 1, Section E
184515. In addition, however one characterises the events of 1999 conceming Kosovo, one
factor that was clearly beyond dispute was that any resolution of the problem
would be based upon the respect for the territorial integrity of the FRY (Serbia)
and upon some form of autonomy for Kosovo within the FRY (Serbia). The
constant reaffirmation of the territorial integrity of the Federal Republic of
Yugoslavia was especially marked. Whatever the nature of the post-1999
situation, it was intemationally agreed that the territorial integrity of the Federal
Republic of Yugoslavia was unaffected. A whole series of binding Security
Council resolutions, culminating in the seminal resolution 1244 (1999), affirm and
confirm this proposition and in a manner that was, and remains, obligatory for all
Member States of the United Nations.
516. At no point in the resolutions discussed above was the affirmation of the territorial
integrity of the Federal Republic of Yugoslavia made conditional upon any event
or circumstance and at no point was such affirmation made contingent upon any
non-consensual circumstance.
517. This is confirmed by a consideration of the UNMIK-FRY 'Common Document'
signed on 5 November 2001 by the Special Representative of the Secretary
General of the United Nations for Kosovo, Mr. Hans Haekkerup, and the Special
Representative of the President of the Federal Republic of Yugoslavia and the
Govemment of the Federal Republic of Yugoslavia and the Govemment of the
Republic of Serbia, Mr. Nebojsa Covié.Point 1of the Document
"confirms the basic principle of United Nations Security Council
resolution 1244 (1999) and the shared belief that the resolution can
only be successfully implemented through the joint efforts of all
· ,,488
concerned parties .
518. Point 4 of the Document provides for:
488UNMIK-FRY, Common Document (5 November 2001), Annex 12 in Documentary Annexes
accompanying this Written Statement.
185 "the protection of the rights and interests of Kosovo Serbs and other
communities in Kosovo, based on the principles stated in UNSCR
1244, including the sovereignty and the territorial integrity of the
Federal Republic of Yugoslavia, as well as [in] the Constitutional
Framework for Provisional Self-government".
519. Point 5 of the Document explicitly:
"Reaffirms that the position on Kosovo's future status remains as
stated in UNSCR 1244, and that this cannot be changed by any
action taken by the Provisional Institutions of Self-government".
520. The Common Document was welcomed by the United Nations Security Council
in a Presidential Statement on 9 November 2001. 489 Italso received support from
individual States and other international organisations. The United States, for
example, stated that:
"The U.S. Office Pristina welcomes the "UNMIK-FRY Common
Document" signed in Belgrade on November 5, which reaffirms the
principles and process set forth in UN Security Council resolution
1244. There is nothing in this document that contravenes 1244. It
signais a clear commitment by both parties to intensify efforts to
fulfill the goals of 1244. In this connection, we emphasize the
importance of the upcoming elections and their importance in
490
building Kosovo's democratic self-government".
489
UN Doc. S/PRST/2001/34 (9 November 2001), Annex 32 in Documentary Annexes accompanying this
Written Statement.
490See U.S. Office Supports "UNMIK-FRY Common Document", Press release of the United States Office
Pristina (6 November 2001), available at: http://pristina.usembassy.gov/press20011106aAnnex 67
in Documentary Annexes accompanying this Written Statement. See also the references to the Common
Document in the Memorandum from the Foreign and Commonwealth Office on the Foreign Affairs
Committee Report entitled "Federal Republic of Yugoslavia and the Wider Region following the fa]] of
Milosevic: an update", available at: http://www.publications.parliament.uk/pa/cm200102/cmselect/cmfaff/
/826/826ap06.htm.
186521. The Document was also welcomed by the Council of the EU on 22 July 2002. 491
522. As Orakhelashvili concludes:
"In the period between the 1999 NATO attack on the FRY and the
Ahtisaari Plan, nothing in the practice of States or the United
Nations has ever divulged any attitude aimed at disrupting the
492
territorial integrity of the FRY and subsequently Serbia".
523. Finally, it is worth noting that Mr. Ahtisaari himself in putting forward his plan in
2007 on the future political status of Kosovo recognised that in order for this to be
accomplished further action by the Security Council would be required. He noted
in the letter accompanying his 'Comprehensive Proposa! for the Kosovo Status
Settlement' that: "[i]n unanimously adopting resolution 1244 (1999), the Security
Council responded to Milosevic's actions in Kosovo by denying Serbia arole in
493
its govemance". The use of the term 'govemance' was important for it
demonstrates his understanding that the resolution had no effect upon the
sovereignty or territorial integrity of the Federal Republic of Yugoslavia. Mr
Ahtisaari concluded by urging "the Security Council to endorse my Settlement
proposal". 494 In so doing, he was recognising that an amendment to resolution
1244 (1999) would be required in order for Kosovo to be declared independent.
While Serbia rejects the possibility that this could have happened as a matter of
law, what is important to note at this stage is the affirmation that resolution 1244
(1999) constituted an absolute impediment to any declaration of Kosovo's
independence without Serbia' s consent.
491
Statement of the Council of the European Union, C/02/210; 10945/02 (Presse 210) (22 July 2002),
available at: http://europa.eu/rapid/pressReleasesAction. do?reference=PRES/02/21 0&format=HTML&
&aged=0&lg=hu&guiLanguage=en, Annex 68 in Documentary Annexes accompanying this Written
Statement; see also European Union Presidency Statement of 30 July 2002, available at:
http://www.europa-eu-un.org/articles/es/article_1529_es.htmAnnex 69 in Documentary Annexes
492accompanying this Written Statement.
A. Orakhelashvili, Statehood, Recognition and the United Nations System: A Unilateral Declaration of
Independence in Kosovo , 12Max Planck Yearbook of United Nations Law (2008), pp. 1, 17.
493UN Doc. S/2007/168 (26 March 2007), p. 4, para. 15.
494
Ibid., p. 5, para. 16.
187524. Accordingly, the UDI adopted on 17February 2008 by the Provisional Institutions
of Self-Government of Kosovo violates the internationally agreed and confirmed
territorial integrity of the Republic of Serbia. Such unilateral declaration violates
the applicable law, the domestic law of Serbia, and international law, as repeated
on numerous occasions by the Security Council. Italso constitutes a violation of
binding Security Council resolutions, particularly resolution 1244 (1999). This
resolution cannot be overturned by unilateral action, especially by a non-state
entity, nor may it be bypassed by a desultory collection of individual State
recognitions.
188 Chapter7
SELF-DETERMINATION GIVES NO BASIS FOR A UNILATERAL
DECLARATION OF INDEPENDENCE
525. In this chapter, it is submitted that:
(i) The right to self-determination has become a legal right in international law,
but in a carefully limited manner;
(ii) The right to self-determination does not authorise non-consensual secession
from an independent State;
(iii) Kosovo does not constitute a valid self-determination unit under
international law;
(iv) Kosovo Albanians do not constitute a "people" for the purposes of self
determination under international law.
(v) The "remedial secession" interpretation of the "safeguard clause" contained
in General Assembly resolution 2625 (XXV) is wrong and, in any case,
irrelevant.
A. Self-Determination: The General Principle in International Law
526. The right of peoples to self-determination has become established as a principle of
international law of considerable importance. It powered the drive to
decolonisation and independence of European empires and it has evolved into a
principle of human rights operative within the domestic legal systems of
sovereign States. However, it does not constitute a principle of international law
legitimizing secession from recognised independent States, nor does it confer a
right of secession upon groups or communities or peoples within such States, any
more than it legitimizes irredentist daims by neighbouring States upon ethnie,
national or self-determination daims.
189527. The right of peoples to self-determination is indubitably an important norm within
495
the international community. Article 1(2) of the United Nations Charter states
that the development of friendly relations among nations based upon respect for
the principle of equal rights and self-determination constituted one of the purposes
of the United Nations and this phraseology is repeated in Article 55. Although not
expressed as such as a legal right, the inclusion of a reference to self
determination in the Charter, particularly within the context of the statement of
purposes of the United Nations, provided the opportunity for the subsequent
interpretation of the principle.lt is also to be noted that Chapters XI and XII of the
Charter deal with non-self-governing and trust territories and may be seen as
relevant within the context of the development and definition of the right to self
determination, although in slightly different terms.
528. Practice since 1945 within the United Nations, both generally and particularly
with regard to specific cases, can be seen as having ultimately established the
legal standing of the right in international law. Instruments that may be noted in
this context include resolution 1514 (XV), the Declaration on the Granting of
Independence to Colonial Countries and Peoples, adopted in 1960, which noted in
paragraph 2 that: "all peoples have the right to self-determination; by virtue of that
right they freely determine their political status and freely pursue their economic,
social and cultural development", while also emphasizing in paragraph 6 that
attempts aimed at the partial or total disruption of the national unity and territorial
integrity of a country were deemed incompatible with the UN Charter.
529. The Declaration on the Granting of Independence to Colonial Countries and
Peoples set the terms for the self-determination debate in its emphasis upon the
colonial context and its opposition to secession, and has been regarded by some as
496
constituting a binding interpretation of the Charter. The International Court has
specifically referred to the Declaration as an "important stage" in the development
495
See in general e.g. A. Cassese, Self-Determination of Peoples (1995) C.dTomuschat (ed.), Modern
Law of Self-Determination (1993).
496See e.g.O. Asamoah, The Legal Significance of the Declarations of the General Assembly of the United
Nations(1966), pp. 177-185.
190 of international law regarding non-self-governing territories and as the "basis for
497
the process of decolonization".
530. The 1970 Declaration on Principles of International Law Concerning Friendly
Relations, also noted that:
"by virtue of the principle of equal rights and self-determination of
peoples enshrined in the Charter of the United Nations, all people
have the right freely to determine, without external interference,
their political status and to pursue their economic, social and
cultural development, and every State has the duty to respect this
right in accordance with the provisions of the Charter."
531. In addition to this general approach, the United Nations organs have dealt
extensively with self-determination both generally and in a series of specific
498
resolutions with regard to particular situations. Further, the International
Covenant on Civil and Political Rights and the International Covenant on
Economie, Social and Cultural Rights 1966 contain an identical first article,
declaring inter alia that:
"All peoples have the right to self-determination. By virtue of that
right they freely determine their political status and freely pursue
their economic, social and cultural development".
532. Judicial discussion of the principle of self-determination has not been extensive
and it has taken place in the context of either decolonisation or foreign
occupation. In the Namibia advisory opinion 499 the International Court
emphasised that: "the subsequent development of international law in regard to
non-self-governing territories as enshrined in the Charter of the United Nations
497Western Sahara, p. 31, para. 57.
498
See General Assembly resolutions 1755 (XVII), 2138 (XXI), 2151 (XXI), 2379 (XXIII), 2383 (XXIII)
499and Security Council resolutions 183 (1963), 301(1971), 377 (1975) and 384 (1975).
Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa)
notwithstanding Security Council resolution 276, Advisory Opinion of 21 June 1971, Reports 1971,
p.31, para. 52 (hereinafter: "Namibia").
191 made the principle of self-determination applicable to all of them". 500 The Court
affirmed that the right of self-determination possessed an erga omnes character,
within the colonial context, in the East Timor (Portugal v. Australia) case. 501
533. Since it is undeniable that the principle of self-determination has become a legal
502
norm, the question arises as to its scope and application. Although the usual
503
formulation contained in international instruments from the 1960 Declaration
on the Granting of Independence to Colonial Countries and Peoples to the 1970
Declaration on Principles of International Law and the 1966 International
Covenants on Human Rights refers to the right of "all peoples" to determine
"freely their political status", international practice is clear that not all "peoples"
as defined in a political-sociological sense 504 are accepted in international law as
able to freely determine their political status up to and including secession from a
recognised independent State. In fact, practice shows that the right has been
recognised for "peoples" in strictly defined circumstances. In particular, a critical
difference has been established between peoples and minorities.
B. The Right to Self-Determination is Carefully Limited in Law
534. International practice and doctrine has identified clearly the operative areas of the
legal norm of self-determination and has equally clearly identified the areas of
non-applicability. In short, the norm of self-determination as conferring rights
under international law applies with regard to mandate and trusteeship territories,
colonial territories of the European empires and, arguably, foreign occupations. lt
also applies as a principle of human rights within independent States. ltmanifestly
does not apply as a general rule legitimising secession from independent States
500
See Western Sahara, p. 31, para. 54.
501East Timor (Portugal v. Australia), Judgment of 30 June 1995, J.C.J.Reports 1995, p. 102, para. 29; see
alsoWall, p. 172, para. 88, and p. 199, para. 156.
502
503See also the Reference re Secession of Quebec case, [1998]S.C.R. 217, para. 115.
See also Article 20 of the African Charter of Human and Peoples' Rights (1981), which provides that, "ail
peoples shall have the right to existence. They shall have the unquestionable and inalienable right to self
determination. They shall freely determine their political status and shall pursue their economic and social
development according to the policy they have chosen".
504
See, e.g., the Greco-Bulgarian Communities case, Advisory Opinion of 31 July 1930, P.C.l.J., Series B,
No. 17, p. 4.
192 nor conferring rights of secession upon groups, entities or peoples within such
independent States.
I Mandate and trust territories, and non-self-governing territories
535. The first recognised application intemationally of a right to self-determination
was with regard to mandate and trust territories. The Covenant of the League of
Nations established that such territories were to be govemed by "advanced nations
who by reason of their resources, their experience or their geographical position"
could undertake the responsibility and according to the principle that "the well
being and development of such peoples form a sacred trust of civilisation". 505
Upon the conclusion of the Second World War and the demise of the League, the
mandate system was transmuted into the United Nations trusteeship system under
506
Chapters XII and XIII of the UN Charter.
536. The right of self-determination was subsequently recognised as applicable to non
self-goveming territories as enshrined in the UN Charter. An important step in
this process was the Declaration on the Granting of Independence to Colonial
Countries and Peoples adopted in 1960, which called for the right of self
determination with regard to all colonial countries and peoples that had not
attained independence and this was confirmed by the International Court of
507
Justice in two advisory opinions. The United Nations based its policy on the
proposition that "the territory of a colony or other non-self-goveming territory has
under the Charter a status separate and distinct from the territory of the State
administering it'' and that such status was to exist until the people of that territory
505See Article 22 of the Covenant of the League of Nations; see also the International Status of South West
Africa, Advisory Opinion of 11 July 1950, I.C.J. Reports 1950,. 132; Nambia, pp. 28-29, paras. 45-46;
Certain Phosphate Lands in Nauru, Judgment of 26 June 1992, I.C.J. Reports 1992, p. 256, para. 41, and
Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea
intervening), Judgment of 10 October 2002, I.C.J. Reports 2002,409.
506See Certain Phosphate Lands in Nauru (Nauru v. Australia), Judgment of 26 June 1992, I.C.J. Reports
1992, p.257, para. 44, and Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v.
Nigeria: Equatorial Guinea intervening) Judgment ofO October 2002, I.C.J.Reports 2002, p. 409, para.
507212.
See Namibia, p. 31, para. 52, and Western Sahara, pp. 31-33, paras. 54-59; see also Wall, p. 172, para. 88.
193 508
had exercised the right to self-determination. The Canadian Supreme Court
concluded in the Quebec Secession case that, "[t]he right of colonial peoples to
exercise their right to self-determination by breaking away from the "imperial"
power 1snow un 1spute . d" 509
537. The question of the definition of "people" was addressed in the Western Sahara
case. The Court declared that:
"The validity of the principle of self-determination, defined as the
need to pay regard to the freely expressed will of peoples, is not
affected by the fact that in certain cases the General Assembly has
dispensed with the requirement of consulting the inhabitants of a
given territory. Those instances were based either on the
consideration that a certain population did not constitute a 'people'
entitled to self-determination or on the conviction that a
consultation was totally unnecessary, m v1ew of special
circumstances". 510
538. This important statement by the Court affirms that a definition of a "people" for
the purposes of recognition of the right to self-determination has emerged and in
seeking to identify whether or not a particular claimed group constitutes a
"people" for the purposes of self-determination in international law, recognition
by a relevant international organisation is required. Accordingly, the United
Nations has developed a methodology for identifying "non-self governing
territories" and laying down specific ways to put an end to the colonial situation
including the applicability of the principle of self-determination."511
5081970 Declaration on Principles of International Law. Note also that General Assembly resolution 1541
(XV) declared that there is an obligation to transmit information regarding a territory 'which is
509eographically separate and is distinct ethnically and/or culturally from the country administering it'.
Reference re Secession of Quebec case [1998] 2 S.C.R. 217, para. 132.
510See Western Sahara, p. 33, para. 59.
511See, e.g., General Assembly resolutions 9(1), 66(1), 1541(XVI) and 1654 (XVI).
194539. The principle of self-determination itself provided that the people of the colonially
defined territorial unit in question may freely determine their own political status.
Such determination may result in independence, integration with a neighbouring
State, free association with an independent State or any other political status freely
decided upon by the people concerned. 512
II Occupation
540. The Declaration on Principles of International Law 1970 noted that the
"subjection of peoples to alien subjugation, domination and
exploitation constitutes a violation of the principle [of self
determination], as well as a denial of fondamental human rights,
and is contrary to the Charter",
541. Article 1 (4) of Additional Protocol I to the Geneva Conventions 1949, adopted in
1977, referred to
"armed conflicts in which peoples are fighting against colonial
domination and alien occupation and against racist regimes in the
exercise of their right of self-determination, as enshrined in the
Charter of the United Nations and the Declaration on Principles of
International Law concerning Friendly Relations and Co-operation
among States in accordance with the Charter of the United
Nations".
542. The Canadian Supreme Court also referred to the right of self-determination in the
513
context of foreign military occupations. In order to determine where a foreign
occupation exists, the evidence of relevant international organisations is required
or at least highly desirable.
512See Western Sahara, pp. 32-33, paras. 57-58, and p. 68, paras. 161-162. See also Judge Dillard, ibid., p.
122; see also General Assembly resolution 1541 (XV) and the 1970 Declaration on Principles of
International Law.
513Reference re Secession of Quebec case [1998] 2 S.C.R. 217, para. 138.
195543. The Palestinian people, under Israeli occupation smce the 1967 war, has, in
particular, been recognised as having the right to self-determination. This was
514
noted in a number of United Nations resolutions and by the International Court
515
in the Wall case.
III Self-Determination as a Human Rights Principle
(]) General
544. Beyond the mandate/trusteeship, colonial and foreign occupation situations, the
right to self-determination has been recognised internationally as applying as a
principle of human rights but only within the territorial framework of independent
States. This manifestation of self-determination (sometimes termed 'interna! self
determination') refers essentially to the continuing right of a people within a
516
sovereign State to freely participate in the governance of such State. This,
however, requires recognition of the particular population in question as a
"people" as distinct from a minority or other group or collection of persons.
545. The UN Human Rights Committee has examined this aspect of self-determination
in relation to Article 1 of the Civil and Political Rights Covenant. 517 In its General
Comment on Self-Determination adopted in 1984, the Committee emphasised that
the realisation of the right was "an essential condition for the effective guarantee
518
and observance of individual human rights". In discussing the right, the Human
Rights Committee has encouraged States parties to provide in their reports details
514See General Assembly resolutions 3236 (XXIX), 55/85, 58/163, See also General Assembly resolutions
51538/16 and 41/100, and Cassese,Self-Determination, op. cit., p. 92 and following.
See Wall, p. 183, para. 118, p. 197, para. 149, and p. 199, para. 155. See also e.g. A. Cassese, Self
Determination, op. cit., pp. 90-99 and following.
516A. Cassese, Self-Determination, op. cit., p. 101.
517
See in particular D. McGoldrick, The Human Rights Committee, (1994), chapter 5; Cassese, Self-Determi
nation, op. cit., 59 and following and M. Nowak, UN Covenant on Civil and Political Rights, CCPR
Commentary (2nded. 2005), part 1.
518Generai Comment 12: see HRI/GEN/1 /Rev .1, p. 12, 1994. However, the principle is seen as a collective
one and not one that individuals could seek to enforce through the individual petition procedures provided
in the First Optional Protocol to the Covenant, see, e.g., thetok case, Report of the Human Rights
Committee, Un Doc. A/43/40 (1988), pp. 221, 228; the Lubicon Lake Band case, UN Doc. A/45/40
(1990), vol. II, pp. 1, 27; andv. Canada, UN Doc. A/47/40 (1992), pp. 358. 365; see also R. Higgins,
"Postmodern Tribalism and the Right to Secession" in C. Brolmann, R. Lefeber and M. Zieck (eds.),
Peoples and Minorities in International Law (1993), p. 31.
196 519
about participation m social and political structures, and in engagmg m
dialogue with representatives of States parties, questions are regularly posed as to
how political institutions operate and how the people of the State concemed
participate in the govemance of their State. 520 This necessarily links in with
consideration of other articles of the Covenant concerning, for example, freedom
of expression (Article 19), freedom of assembly (Article 21), freedom of
association (Article 22) and the right to take part in the conduct of public affairs
and to vote (Article 25). The right of self-determination, therefore, provides the
overall framework for the consideration of the principles relating to democratic
govemance.
546. The Committee on the Elimination of Racial Discrimination adopted General
Recommendation 21 in 1996 in which it similarly divided self-determination into
an extemal and an interna! aspect. The former:
"implies that all peoples have the right to determine freely their
political status and their place in the international community based
upon the principle of equal rights and exemplified by the liberation
of peoples from colonialism and by the prohibition to subject
peoples to alien subjugation, domination and exploitation",
while the latter referred to the:
"right of every citizen to take part in the conduct of public affairs at
any level. In that respect there exists a link with the right of every
521
citizen to take part in the conduct of public affairs at any level..".
547. The Canadian Supreme Court addressed this issue in the Quebec Secession case
and concluded that self-determination "is normally fulfilled through interna! self-
519See e.g. the report of Colombia, CCPR/C/64/Add.3, pp. 9 ff., (1991). See also the Third periodic report of
Peru, CCPR/C/83/Add.l, 1995, p. 4.
520
See e.g. with regard to Canada, UN Doc. A/46/40 (10 October 1991), p. 12. See also UN Doc. A/45/40 (4
October 1991), pp. 120-121, with regard to Zaire.
521UN Doc. A/51/18 (1January 1996).
197 determination - a people' s pursuit of its political, economic, social and cultural
522
development within the framework of an existing state".
548. This understanding of the meaning of self-determination in independent States,
that is the principle relates essentially to a bundle of human rights within the
territory of the State and not at all to rights to secede from that State and either
create another one or join a third State, is confirmed upon a consideration of the
approach of international law to the question of minorities and indigenous
peoples.
(2) Minority Rights
549. Insofar as minorities are concerned, international law has accepted that they
possess a distinct status and may benefit directly from carefully circumscribed
international rights. Various attempts after World War I to institutionalise the
international protection of certain minorities in Central and Eastern Europe were
not crowned with success, 523 and after World War II, the focus shifted to the
international protection of universal individual human rights, although several
instruments dealing with specific situations did incorporate provisions concerning
h e protection o mmontles. · 524
550. However, Article 27 of the International Covenant on Civil and Political Rights
1966 provides that,
"[i]n those States in which ethnie, religious or linguistic minorities
exist, persons belonging to such minorities shall not be denied the
right, in community with the other members of their group, to enjoy
their own culture, to profess and practise their own religion, or to
use their own language".
522Reference re Secession of Quebec case [1998] 2 S.C.R. 217, para. 126.
523
524See generally Thornberry, International Law and Minorities (1991), pp. 38 ff.
See, e.g., Annex IV of the Treaty of Peace with ltaly (1947); the lndian-Pakistan Treaty (1950) and Arti
cle 7 of the Austrian State Treaty (1955). See also the provisions in the documents concerning the
independence of Cyprus, Cmnd 1093, 1960.
198 It is to be noted that this provision establishes that such minority rights
belonged to the individual members of such groups and not to the groups
themselves, while the framework for the operation of the provision was that
of the State itself.
551. The Human Rights Committee adopted a General Comment on Article 27 in
1994, which pointed to the distinction between the rights of persons belonging to
minorities on the one hand, and the right to self-determination and the right to
equality and non-discrimination on the other. The Committee noted in particular
that:
"2. In some communications submitted to the Committee under the
Optional Protocol, the right protected under article 27 has been
confused with the right of peoples to self-determination proclaimed
in article 1of the Covenant ...
3.1. The Covenant draws a distinction between the right to self
determination and the rights protected under article 27. The former
is expressed to be a right belonging to peoples and is dealt with in a
separate part (Part 1) of the Covenant. Self-determination is not a
right cognizable under the Optional Protocol. Article 27, on the
other hand, relates to rights conferred on individuals as such and is
included, like the articles relating to other persona! rights conferred
on individuals, in Part III of the Covenant and is cognizable under
the Optional Protocol.
3.2. The enjoyment of the rights to which article 27 relates does not
prejudice the sovereignty and territorial integrity of a State
party".525
552. This approach, whereby the rights of minorities under international law were
strictly confined to the interna! jurisdiction of States and had no application
beyond such borders was reaffirmed in the United Nations Declaration on the
Rights of Persons Belonging to National or Ethnie, Religious and Linguistic
525
General Comment No. 23: The rights of minorities (Art. 27) CCPR/C/21/Rev.1/Add.5 (1994).
199 526
Minorities 1992. Article 1 provides that States, "shall protect the existence and
the national or ethnie, cultural, religious and linguistic identity of minorities
within their respective territories" (emphasis added) and shall adopt appropriate
legislative and other measures to achieve these ends and the Declaration
concludes by explicitly stating in Article 8, paragraph 4, that:
"Nothing in the present Declaration may be construed as permitting
any activity contrary to the purposes and principles of the United
Nations, including sovereign equality, territorial integrity and
527
political independence of States".
553. In similar vem, the Framework Convention for the Protection of National
Minorities, adopted by the Council of Europe in 1995, establishes as its aim, as
expressed in the preamble:
"the effective protection of national minorities and of the rights and
freedoms of persons belonging to those minorities, within the rule
of law, respecting the territorial integrity and national sovereignty
of States",
while specifically providing that:
"Nothing in the present framework Convention shall be interpreted
as implying any right to engage in any activity or perform any act
contrary to the fondamental principles of international law and in
particular of the sovereign equality, territorial integrity and political
independence of States". 528
526General Assembly resolution 47/135.
527
528Ibid.
Article 21 of the Framework Convention for the Protection of National Minorities (opened for signature 1
February 1995, entered into force I February 1998), CETS No. 157.
200 (3) Rights of Indigenous Peoples
554. The international legal situation with regard to indigenous peoples mirrors that
529
concerning minorities generally. While recognizing the special position of such
peoples with regard to the territory with which they have long been associated,
relevant international instruments have consistently constrained the rights
accepted or accorded with reference to the need to respect the territorial integrity
of the State in which such peoples live.
555. Convention No. 169 on Indigenous and Tribal Peoples in Independent Countries,
adopted by the International Labour Organisation in 1989, for example,
underlined in its preamble the aspirations of indigenous peoples
"to exercise control over their own institutions, ways of life and
economic development and to maintain and develop their identities,
languages and religions, within theframework of the states in which
they live" (emphasis added).
556. A Declaration on the Rights of Indigenous Peoples was adopted by the United
530
Nations in 2007. The Declaration, noting that indigenous peoples have the right
to the full enjoyment, as a collective or as individuals, of all human rights and
fondamental freedoms as recognized in the Charter of the United Nations, the
Universal Declaration of Human Rights and international human rights law,
specifically recognised their right to self-determination. 531 In exercising their right
to self-determination, it was noted that indigenous peoples have the right to
autonomy or self-government in matters relating to their internal and local affairs,
as well as ways and means for financing their autonomous functions. 532 While
thus essentially defining the meaning of self-determination for indigenous
peoples, the point was underlined in Article 46 (1) that:
529See, e.g., P. Thornberry, Indigenous Peoples and Human Rights (2002); S. Marquardt, "International Law
and Indigenous Peoples", 3 International Journal on Croup Rights (1995), p. 47; and J. Anaya,
Indigenous Peoples in International Law (2004).
530
531General Assembly resolution 61/295.
Ibid., Articles I and 3.
532Ibid., Article 4.
201 "Nothing in this Declaration may be interpreted as implying for any
State, people, group or person any right to engage in any activity or
to perform any act contrary to the Charter of the United Nations or
construed as authorizing or encouraging any action which would
dismember or impair, totally or in part, the territorial integrity or
political unity of sovereign and independent States"
557. Accordingly, the following summary may be made at this stage:
(i) International law recognises the right of self-determination in the case of
mandated and trust territories as meaning the right of the people of such
territories to decide their own political status, whether or not this leads to
independence or association with another State or any other status;
(ii) International law recognises that those colonial territories designated as
non-self-governing territories by the appropriate United Nations organ
(General Assembly and Decolonisation Committee) may constitute
candidates for the exercise of self-determination. In such cases, the General
Assembly would determine whether the inhabitants of such territories
would constitute or not a "people" entitled to self-determination;
(iii) In such cases, self-determination has been interpreted as meaning the right
of the people of such territories to decide their own political status, whether
or not this leads to independence or association with another State or any
other status;
(iv) International law recognises that the right of self-determination will apply in
cases of foreign occupation as determined by relevant international
organisations and the meaning of self-determination in such cases would
presumptively be the conclusion of that foreign occupation;
(v) International law recognises the right of self-determination with regard to
peoples within independent States as meaning the right of such peoples to
participate in the governance of such States and generally to benefit from
the collective expression of relevant human rights but strictly and solely
within the territorial framework of the State in question;
202 (vi) International law recogmses that persons belonging to minorities within
independent States have certain rights, but that these are to be exercised
strictly and solely within the territorial framework of such States;
(vii) International law recognises the right of self-determination with regard to
indigenous peoples as collective rights and rights related to self-government
and autonomy, but strictly and solely within the territorial framework of the
State in question;
(viii) The principle of self-determination beyond the mandate/trust territories,
colonial and foreign occupation contexts reinforces the concept of the
territorial integrity of States. In the case of the human rights, minorities and
indigenous manifestations of the principle, this has been explicitly affirmed.
C. Self-Determination Does Not Authorise Secession
558. International law is unambiguous in not providing for a right of secession from
independent States. The practice surveyed above in Chapter 6 on the fondamental
norm of territorial integrity demonstrates this clearly. Indeed, such a norm would
be of little value were a right to secession under international law be recognised as
applying to independent States.
559. The United Nations has always strenuously opposed any attempt at the partial or
total disruption of the national unity and territorial integrity of a State. Point 6 of
the Declaration on the Granting of Independence to Colonial Countries and
Peoples, for example, emphasised that:
"Any attempt aimed at the partial or total disruption of the national
unity and the territorial integrity of a country is incompatible with
the purposes and principles of the Charter of the United Nations.
while the preamble to the Declaration on Principles of International Law 1970
included the following paragraphs:
203 "Recalling the duty of States to refrain in their international
relations from military, political, economic or any other form of
coercion aimed against the political independence or territorial
integrity of any State,
Considering it essential that all States shall refrain in their
international relations from the threat or use of force against the
territorial integrity or political independence of any State, or in any
other manner inconsistent with the purposes of the United Nations.
Convinced in consequence that any attempt aimed at the partial or
total disruption of the national unity and territorial integrity of a
State or country or at its political independence is incompatible
533
with the purposes and principles of the Charter."
560. In addition, it was specifically noted that:
"Every State shall refrain from any action aimed at the partial or
total disruption of the national unity and territorial integrity of any
other State or country." 534
561. This approach has also been underlined in regional instruments. For example,
Article III (3) of the OAU Charter emphasises the principle of "Respect for the
sovereignty and territorial integrity of each State and for its inalienable right to
independent existence", as does Article 3 (b) of the Constitutive Act of the
African Union 2001, while Principle VIII of the Helsinki Final Act, in a statement
of considerable importance and relevance for present purposes, noted that:
"The participating States will respect the equal rights of peoples and
their rights to self-determination, acting all times in conformity
with the purposes and principles of the Charter of the United
5331970 Declaration on Principles of International Law, Preamble.
534Ibid.
204 Nations and with the relevant norms of international law, including
535
those relating to the territorial integrity of States".
562. In addition, the Charter of Paris 1990 underlined this approach and declared that
the participating States:
"reaffirm the equal rights of peoples and their right to self
determination in conformity with the Charter of the United Nations
and with the relevant norms of international law, including those
536
relating to the territorial integrity of States".
563. International practice demonstrates that self-determination has not been
interpreted to mean that any group defining itself as such can decide for itself its
own political status up to and including secession from an already independent
537
State. The United Nations Secretary-General has emphasised that:
"as an international organisation, the United Nations has never
accepted and does not accept and I do not believe it will ever accept
the principle of secession of a part of a member State". 538
564. The Arbitration Commission of the Conference on Yugoslavia underlined m
Opinion No. 2 that:
"whatever the circumstances, the right to self-determination must
not involve changes to existing frontiers at the time of
535Principle IV on the Territorial Integrity of States underlined respect for this principle, noting that the
participating statesill refrain from any action inconsistent with the purposes and principles of the
Charter of the United Nations against the territorial integrity, political independence or the unity of any
participating state".
536
The Charter of Paris, available at: http://www.osce.org/documents/mcs/1990/1 l/4045~en.pdf.
537See e.g. H. Hannum, Autonomy, Sovereignty and Self-Determination (1990), p. 469 and Cassese, Self
Determination, op. cit., 122.
538UN Monthly Chronicle (February 1970), p. 36. See also the comment by the UK Foreign Minister that, "it
is widely accepted at the United Nations that the right of self-determination does not give every distinct
group or territorial sub-division within a state the right to secede from it and thereby dismember the
territorial integrity or political unity of sovereign independents", 54 British Yearbook of International Law
(1983), p. 409. See also infra para. 612 and following.
205 independence (uti possidetis juris) except where the States
539
concerned agree otherwise",
while the Canadian Supreme Court concluded in the Quebec Secession case that:
"international law expects that the right to self-determination will
be exercised by peoples within the framework of existing sovereign
States and consistently with the maintenance of the territorial
integrity of those States... The international law principle of self
determination has evolved within a framework of respect for the
territorial integrity of existing States. The various international
documents that support the existence of a people's right to self
determination also contain parallel statements supportive of the
conclusion that the exercise of such a right must be sufficiently
limited to prevent threats to an existing state's territorial integrity or
540
the stability of relations between sovereign states".
565. Learned writers have corne to the same general conclusion. Cassese has written
that:
"Ever smce the emergence of the political principle of self
determination on the international scene, states have been adamant
in rejecting even the possibility that nations, groups and minorities
be granted a right to secede from the territory in which they live.
Territorial integrity and sovereign rights have consistently been
regarded as of paramount importance; indeed they have been
considered as concluding debate on the subject". 541
566. That author concluded with the observation that:
539
Opinion No. 2 of the Arbitration Commission on former Yugoslavia, 31 ILM 1497 (1992), Annex 39 in
Documentary Annexes accompanying this Written Statement.
540Reference re Secession of Quebec case [1998] 2 S.C.R. 217, paras. 122 and 127.
541Cassese, Self-Determination, op. cit., p. 122.
206 "the international body of legal norms on self-determination does
not encompass any rule granting ethnie groups and minorities the
right to secede with a view to becoming a separate and distinct
mternatlona entlty ." 542
567. Crawford has written that:
"Since 1945 the international community has been extremely
reluctant to accept unilateral secession of parts of independent
states if the secession is opposed by the government of that state. In
such cases the principle of territorial integrity has been a significant
limitation. Since 1945 no State which has been created by unilateral
secession has been admitted to the United Nations against the
declared wishes of the predecessor state". 543
568. Crawford concluded as follows:
"To summanse, outside of the colonial context, the principle of
self-determination is not recognised as giving rise to unilateral
rights of secession by parts of independent states ... State practice
since 1945 shows the extreme reluctance of states to recognise
unilateral secession outside of the colonial context. That practice
has not changed since 1989, despite the emergence during that
period of twenty-three new states. On the contrary, the practice has
544
been powerfully reinforced".
569. Itmay, therefore, be concluded that international law assuredly does not recognise
a right of secession from independent States and no formulation of the principle of
545
self-determination can be interpreted so to do. The emphasis placed by
international law and international practice upon the norm of territorial integrity
542Ibid., p. 339.
543
544Crawford, The Creation of States, op. cit., p. 390.
Ibid., p. 415.
545See as to the "safeguard clause" argument, supra Section E. para. 589 ff.
207 must also be understood to render non-consensual secess1on as illegitimate as
such.
D. Kosovo Does Not Constitute a Self-Determination Unit under International
Law Nor Do the Kosovo Albanians Constitute a "People" Entitled to Self
Determination
570. It follows from the above discussion of the right to self-determination as it has
evolved and been recognised in international law that the territory of Kosovo is
not entitled as such to benefit from the right to self-determination insofar as this
may be interpreted as the right to secession.
571. Kosovo was neither a mandated/trust territory nor an overseas European colonial
territory in the UN sense 546 nor was it registered or recognised or ever even
submitted for acceptance as a non-self-governing territory with the United Nations
nor did any international or regional body ever recognise it as such, nor was it
subject to foreign occupation as determined or evidenced by relevant international
organisations. Kosovo formed an integral part of the FRY (State Union of Serbia
and Montenegro ). It remains an integral part of Serbia 547 and as such the
population of that territory were, and remain, part of the "people" of Serbia. Those
persons forming part of a minority within the territory of Serbia, including
Kosovo are entitled to the protection of minority rights as laid down in Articles 14
and 75 - 81 of the Constitution of the Republic of Serbia 2006. 548
572. Kosovo, as a part of an internationally recognised independent State is not a self
determination unit as that term has been understood in international law and
practice. Consistent international recognition of the territorial integrity of the FRY
(and thus of its continuator, the Republic of Serbia) by definition precludes
acceptance of the right of self-determination as inhering in the inhabitants of the
province of Kosovo.
546
See above, para.11.
547On the continuity between the FRY and the Republic of Serbia, see supra Chapter 1, Section E.
548Constitution of the Republic of Serbia, Official Gazette of the Republic of Serbia, No. 98/2006.
208573. The process of dissolution of the SFRY was conducted in a way, which, despite
controversy, affirmed the rule that the constituent republics of that State came to
independence within the territorial definition that they had previously held. As is
well-known, Kosovo was nota constituent republic of the SFRY but part of the
Republic of Serbia. 549
574. The Arbitration Commission established by the European Communities'
Conference on Yugoslavia in its Opinion No. 1 pointed out that the constituent
republics of the SFRY (the former Yugoslavia) had expressed their desire for
independence through a variety of referenda or parliamentary resolutions and that
the composition and workings of the essential federal organs of the former
Yugoslavia no longer met the criteria of participation or representativeness
inherent in a federal State. The Arbitration Commission thus concluded that the
former Yugoslavia was "in process of dissolution". 550
575. In its Opinion No. 2, the Arbitration Commission was asked the question: "Does
the Serbian population in Croatia and Bosnia-Hercegovina, as one of the
constituent peoples of Yugoslavia, have the right to self-determination?". The
Commission responded as follows:
"1. The Commission considers that international law as it currently
stands does not spell out all the implications of the right to self
determination.
However, it is well established that, whatever the circumstances, the
right to self-determination must not involve changes to existing
frontiers at the time of independence (uti possidetis juris) except
where the States concerned agree otherwise.
549See supra Chapter 5, Section A (III)(5), especially paras. 178-180.
550Opinion No. 1 of the Arbitration Commission on former Yugoslavia, 31 ILM 1494, 1497 (1992), Annex
38 in Documentary Annexes accompanying this Written Statement.
209 2. Where there are one or more groups within a State constituting
one or more ethnie, religious or language communities, they have
the right to recognition of their identity under international law.
As the Commission emphasized in its Opinion No. 1 of 29
November 1991, published on 7 December, the - now peremptory -
norms of international law require States to ensure respect for the
rights of minorities. This requirement applies to all the Republics
vis-à-vis the minorities on their territory.
The Serbian population in Bosnia-Hercegovina and Croatia must
therefore be afforded every right accorded to minorities under
international conventions as well as national and international
guarantees consistent with the principles of international law and
the provisions of Chapter II of the Draft Convention of 4 November
1991, which has been accepted by these Republics". 551
576. However one characterises the termination of the former Yugoslavia, what was
clearly apparent from international practice was that the successor States achieved
independence within the territorial bounds of the former republics and with their
right to territorial integrity affirmed. Opinion No. 2 also made it clear that
territories within the constituent republics were not entitled to secede and that the
populations of such territories were entitled to any and all relevant human rights
and, in particular, minority rights. This principle clearly applies to Kosovo, which
is part of the Republic of Serbia.
577. The Commission was also clear that whatever the right to self-determination
might mean, it could not override the territorial integrity of the recognised State.
Further, the Commission emphasised in Opinion No. 3 that:
"Except where otherwise agreed, the former boundaries become
frontiers protected by international law. This conclusion follows
551
Opinion No. 2 of the Arbitration Commission on former Yugoslavia, 31 ILM 1497, 1498 (1992).
210 from the principle of respect for the territorial status quo and, in
particular, from the principle of uti possidetis. Uti possidetis,
though initially applied in settling decolonization issues in America
and Africa, is today recognized as a general principle, as stated by
the International Court of Justice in its Judgment of 22 December
1986 in the case between Burkina Faso and Mali (Frontier Dispute,
(1986) ICJ Reports 554 at 565):
'Nevertheless the principle is not a special rule which pertains
solely to one specific system of international law. It is a general
principle, which is logically connected with the phenomenon of the
obtaining of independence, wherever it occurs. Its obvious purpose
is to prevent the independence and stability of new States being
endangered by fratricidal struggles ..."' 552
578. It is worthy of note that Dr. Rugova, the leader of the Kosovo Albanians at the
time, wrote to Lord Carrington, Chairman of the European Communities'
Conference on Yugoslavia, on 22 December 1991 seeking recognition of the
"Republic of Kosovo" as an independent State consequent upon the adoption of
553
the EC Guidelines. This request was not granted. The Arbitration Commission
considered applications by the former constituent Yugoslav republics of Slovenia,
Croatia, Bosnia and Herzegovina and Macedonia, but not the one made by the
Kosovo Albanian leader. It is, further, noticeable that the International Conference
on Yugoslavia established by the European Community in 1991 refused to permit
the representatives of the Kosovo Albanians to participate on an equal footing
with the Yugoslav Republics. 554
552
Opinion No. 3 of the Arbitration Commission on former Yugoslavia, 31 ILM 1499, 1500 (1992), Annex
40 in Documentary Annexes accompanying this Written Statement.
553See Letter from Dr. Rugova to Lord Carrington, Peace Conference on Yugoslavia, 22 December 1991,
554Annex 76 in Documentary Annexes accompanying this Written Statement.
In a letter to Dr. Rugova dated 17 August 1992, Lord Carrington, the Chair of the Conference, wrote with
regard to the participation of a Kosovo delegation to the Conference as follows: are planning to be
in London at the time of the Conference (from 26-28 August) then I am pleased to inform you that it will
be possible for you and your delegation to have access to the Queen Elizabeth II Conference Centre for
meetings, for example with me, Secretary Vance, and other participants. As it will not, for practical and
other reasons, be possible to grant your delegation access to the Conference chamber itself, the organisers
will set up a 'Salle d'écoute' to which the formai Conference proceedings will be relayed live", Annex 77
in Documentary Annexes accompanying this Written Statement.
211579. For present purposes, it should be emphasised that the process seeking to manage
the dissolution of the former Yugoslavia in the light of international law specified
that a key element was "respect for the inviolability of all frontiers" with the
proviso that issues concerning self-determination, minority protection and human
rights were vital but were to be achieved within the territorial boundaries of the
former Yugoslav republics. In other words, the dissolution of the former
Yugoslavia was accomplished with the recognition and reaffirmation of the
territorial integrity of the constituent republics now recast as new States.
580. The international instruments marking a conclusion to the conflict over the former
Yugoslavia are also characterised by explicit and unambiguous affirmation of the
territorial integrity of all the successor States, including the Republic of Serbia.
Such instruments include Security Council resolution 1031 (1995) reaffirming "its
commitment to a negotiated political settlement of the conflicts in the former
Yugoslavia, preserving the territorial integrity of all States there within their
internationally recognized borders" and Article 1 of the General Framework
Agreement for Peace in Bosnia and Herzegovina (Paris-Dayton Agreement),
which provided for mutual recognition of the sovereign equality and territorial
integrity of Croatia, Bosnia-Herzegovina and the FRY. The express commitment
by the Security Council to a settlement of the Yugoslav conflicts "preserving the
territorial integrity of all States there within their internationally recognized
borders" was reaffirmed in resolutions 1088 (1996), 1423 (2002), 1491 (2003),
1551 (2004), 1575 (2004), 1639 (2005), 1722 (2006), 1785 (2007) and 1845
(2008).555
581. Such affirmation of the territorial integrity of the successor States to the former
Yugoslavia was repeated specifically with regard to the FRY (today's Republic of
Serbia) in the Kosovo crisis. The Security Council in a whole series of resolutions
and Presidential Statements specifically affirmed the "commitment of all Member
555See Annex 15 and Annexes 21 to 28 in Documentary Annexes accompanying this Written Statement. For
more, seesupra Chapter 6, Section E, paras. 498-524.
212 States to the sovereignty and territorial integrity of the Federal Republic of
556
Yugoslavia".
582. This culminated in Security Council resolution 1244 (1999), which in addition to
reaffirming this commitment to the sovereignty and territorial integrity of the
FRY in the light of preceding Security Council resolutions, also referred to the
Helsinki Final Act, which called for respect for the territorial integrity of each of
the participating States in the Helsinki process, and to the set of principles for the
resolution of the Kosovo crises, contained in annexes 1 and 2, which explicitly
557
and specifically emphasised the sovereignty and territorial integrity of the FRY.
583. This continua! reaffirmation of the sovereignty and territorial integrity of Serbia
throughout the settlement process of the conflicts in the former Yugoslavia and
with regard to the Kosovo crisis is consistent with an understanding of the right to
self-determination of people within Serbia in the sense discussed earlier in this
section. It is simply not consistent with any understanding of the right to self
determination which extends beyond domestic human rights to include any
purported right to secession.
584. Not only has Kosovo not been recognised in any international instrument as
constituting a unit for the purposes of the exercise of self-determination, it is also
the case that the Kosovo Albanians have not as such been recognised by any
international organisations as a "people" entitled to the exercise of the right to
self-determination outside of the internationally recognised and affirmed
territorial integrity of the Republic of Serbia.
585. Such international recognition in the context of self-determination was critical in
the acceptance of the application of the right to particular categories of "people".
556See Security Council resolutions 1160 (1998), 1199 (1998), 1203 (1998), 1239 (1999), reproduced in
Annexes 15 to 19 in Documentary Annexes accompanying this Written Statement; and UN Doc.
S/PRST/1998/25 (24 August 1998), UN Doc. S/PRST/199/2 (19 January 1999) and UN Doc.
S/PRST/199/5 (29 January 1999), reproduced in Annexes 29 to 31 in Documentary Annexes
accompanying this Written Statement. See furthera Chapter 6, Section E, paras. 498-524.
557See further Chapter 6, Section E, paras. 506-515.
213586. As noted above, the right to self-determination in its fullest sense, that is
permitting the people concerned to decide for itself its future political status
including independence, pertains only to mandate/trust territories (of which there
are no more) and non-self-governing (or colonial) territories, as defined carefully
558
in United Nations practice noted above.
587. No information was ever transmitted to the United Nations claiming that Kosovo
was such a non-self-governing territory. No member State ever argued that
Kosovo should be so designated. No challenge was ever made to the territorial
integrity of the FRY (currently the Republic of Serbia) on the basis that Kosovo
was a non-self-governing territory or at all. No United Nations resolution ever
stated that Kosovo was or should be designated a non-self-governing territory to
which the right of self-determination in its widest sense might apply. No other
international or regional organisation has ever made such a claim.
588. In such circumstances, it is clear that there is no evidence to support the
proposition that Kosovo ever constituted a self-determination unit as a recognised
non-self-governing territory or that the Kosovo Albanians, being a part (albeit the
majority) of the population of Kosovo, constituted a people entitled to exercise the
right of self-determination in the sense of a totally free choice as to its political
status up to and including secession.
E. The "Remedial Secession" Reading of the "Safeguard Clause" Contained in
General Assembly Resolution 2625 (XXV) Is Wrong and At Any Rate Does Not
Apply to Kosovo
589. In an attempt to legally justify the purported secession of the Serbian province of
Kosovo, one of the arguments advanced by those promoting this secession has
been a particular reading of the "safeguard clause" contained in paragraph 7 of the
principle of equal rights and self-determination of peoples embodied in General
Assembly resolution 2625 (XXV) (Declaration on Principles of International
Law) adopted in 1970. This section addresses this particular reading of the
558
See supra paras. 535-557.
214 "safeguard clause" in order to demonstrate the flawed character of the purported
justification of so-called "remedial secession". This section is divided into 3 parts.
First, it will be shown that the "safeguard clause" is part of a firm practice of
guaranteeing the preservation of the political unity and territorial integrity of
independent States (1).Second, it will be demonstrated that an a contrario reading
of the "safeguard clause" in order to admit a right to "remedial secession" is not
supported by the terms of the paragraph, its context, its object and purpose, the
travaux préparatoires and subsequent practice (2). Third, it will be established
that resolution 2625 (XXV) does not transform a minority suffering from human
rights violations into a people having a right to self-determination (3). Fourth,
even if there is a so-called right to "remedial secession" (quod non), it does not
apply to the case of Kosovo (4).
I Paragraph 7 of the principle of equal rights and self-determination of peoples
forms part of a well-established practice of guaranteeing the preservation of
the political unity and the territorial integrity of independent States
590. As stated above, the United Nations has always attributed great importance to the
respect of the territorial integrity of its member States. 559 Even when dealing with
decolonisation - which is not a case of secession - and after having affirmed the
rights of peoples to self-determination, the Organisation was careful to state that
territorial integrity should be preserved. Thus, General Assembly resolution 1514
(XV), which was recognised by the Court as an important milestone in the
evolution of customary law in that field, 560 affirms in its paragraph 6 that "[a]ny
attempt aimed at the partial or total disruption of the national unity and the
territorial integrity of a country is incompatible with the purposes and principles
of the Charter of the United Nations". 561
591. Itis worth recalling that during the debates preceding the adoption of resolution
1514 (XV), Guatemala introduced an amendment to the Afro-Asian draft, in
559
See Chapter 6 of this Written Statement.
560Namibia, p. 31, paras. 52-53, Western Sahara, p. 31, para. 55.
561General Assembly resolution 1514(XV).
215 which it proposed to include a new paragraph that provided that the principle of
self-determination could not affect the territorial integrity of States. In considering
the Guatemalan amendment unnecessary, the authors of the draft made it clear
562
that this point was already covered by paragraph 6.
592. Another important instrument for the determination of the scope of the right to
self-determination is General Assembly resolution 2625 (XXV). Again, in this
resolution the General Assembly considered it necessary to expressly state that the
territorial integrity of States must be respected when it addressed the right to self
determination. Paragraph 7 of the principle of equal rights and self-determination
of peoples, referred to as the "safeguard clause", reads as follows:
"Nothing in the foregoing paragraphs [those related to self
determination] shall be construed as authorising or encouraging any
action which would dismember or impair, totally or in part, the
territorial integrity or political unity of sovereign and independent
States conducting themselves in compliance with the principle of
equal rights and self-determination of peoples as described above
and thus possessed of a government representing the whole people
belonging to the territory without distinction as to race, creed or
colour".563
593. The inclusion of the "safeguard clause" reflected the desire of many States during
the drafting of resolution 2625 (XXV) to make express reference to respect for the
territorial integrity of States in relation to the principle of equal rights and self
determination of peoples. A number of proposed texts may be cited in this respect.
594. Both paragraph 2(c), part VI, of the United Kingdom text, 564 and paragraph 2(c)
of the proposa! by Algeria, Burma, Cameroon, Dahomey, Ghana, India, Kenya,
Lebanon, Madagascar, Nigeria, Syria, the United Arab Republic and
562UN Doc. A/PV.947 (14 December 1960), pp. 1271-1272, See also Yearbook of the United Nations 1960,
563. 48.
General Assembly resolution 262(XXV).
564UN Doc. A/AC.125/L.44 (19 July 1967) part VI, reprinted in: Official Records of the General Assembly,
Twenty-second Session, annexes, agenda item 87, UN Doc. A/6799 (26 September 1967), para. 176.
216 565
Yugoslavia, included the following statement: "Every State shall refrain from
any action aimed at the partial or total disruption of the national unity and
territorial integrity of any other State." Paragraph 2(a) of the proposa! submitted
by Czechoslovakia, Poland, Romania and the Union of Soviet Socialist Republics
provided a broader statement. It simply read "The integrity of the national
territory shall be respected."566
595. Both paragraph 7 of the section conceming the principle of equal rights and self
determination of peoples contained in General Assembly resolution 2625 (XXV),
and paragraph 6 of its resolution 1514 (XV) are examples of a longstanding
practice of the international community of underlining the territorial integrity of
member States. The substantial involvement of the United Nations in the Republic
of Congo at the beginning of the 1960s in order to preserve this State's territorial
integrity against Katangese separatism, and the rejection by the Organization of
African Unity of the secessionist attempt by Biafra from Nigeria in 1967, are
significant examples of this long-standing practice of the international community
around the time resolution 2625 (XXV) was adopted.
596. In relation to Katangese separatism, in 1960 the Congolese President and Prime
Minister sent a telegram to the Secretary-General requesting the "urgent dispatch
of military assistance" in response to the purported secession of Katanga. 567 The
Secretary-General responded by requesting United Nations action in his Report to
the Security Council. 568On 14July 1960, the Security Council adopted resolution
143 (1960), which provides in its operative paragraph 2 that the Security Council
"Decides to authorize the Secretary-General to take the necessary
steps... to provide the Government [of the Republic of Congo] with
such military assistance as may be necessary until... the national
security forces may be able... to meet fully their tasks".
565
UN Doc. A/AC.125/L.48 (27 July 1967), reprinted in Official Records of the General Assembly, Twenty
second Session, annexes, agenda item 87, UN Doc. A/6799 (26 September 1967), para. 177.
566UN Doc. A/AC.125/L.74.
567
Official Records of the Security Council, Fifteenth Year, Supplement for July, August and September
1960, UN Doc. S/4382.
568Official Records of the Security Council, Fifteenth Year, 873 meeting, paras. 18-29.
217 This was followed by Security Council resolution 145 (160) of 22 July
1960 that, in operative paragraph 2, requested all States "to refrain from
any action which might undermine the territorial integrity and the
political independence of the Republic of Congo" and Security Council
resolution 146 (1960) of 9 August 1960.
597. The Security Council action in response to the Katanga separatist movement in
the Congo was supported by the General Assembly in resolution 1474 (ES-IV) of
20 September 1960, in operative paragraph 5(a), which requested all States" ...to
refrain from any action that might undermine the unity, territorial integrity and the
political independence of the Republic of the Congo."
598. In relation to the secessionist attempt by Biafra from Nigeria, the Organization of
African Unity firmly condemned this secessionist attempt in a resolution in which
the heads of member States reaffirmed their adherence to the principle of
terr1tona mtegnty o f states.569
599. The year that the Declaration on Principles of International Law was adopted was
also the same year that Secretary-General U Thant made the following famous
statement in January 1970:
"As far as the question of secession of a particular section of a State
is concerned, the United Nations attitude is unequivocable. As an
International Organization, the United Nations has never accepted
and does not accept and I do not believe will ever accept the
principle of secession of a part of its member States". 570
600. The international legal environment in which resolution 2625 (XXV) was adopted
was thus one in which the practice of emphasising the territorial integrity and
569
OAU Resolution on Situation in Nigeria, OAU Doc. AHG/Res.51 (IV) adopted at the Fourth Ordinary
Session of the Assembly of the Heads of State and Government of the OAU, Kinshasa, 11-14 September
1967, paras. 1-2,printed in 6 ILM (1967), p. 1243. See D.A. Ijalaye, "Was Biafra at Any Timea State in
International Law?" 65 AJIL (1971), pp. 551-568.
5707 UN Monthly Chronicle (1970), p. 36.
218 political unity of independent States was well established and continually
571
affirmed.
II An a contrario reading of the "safeguard clause" in order to admit a right to
"remedial secession" is not supported by legal means of interpretation
(1) A goodfaith interpretation of the "safeguard clause" does not admit a right to
"remedial secession"
601. A good faith interpretation of the "safeguard clause" in General Assembly
resolution 2625 (XXV), 572in accordance with the ordinary meaning to be given to
the terms in their context and in the light of the object and purpose, leads to the
conclusion that the principle of self-determination cannot be understood as either
authorising or promoting in any way actions that are contrary to the territorial
integrity and the political unity of States.
602. The "safeguard clause" is the seventh paragraph of the section dealing with the
fifth principle entitled 'the principle of equal rights and self-determination of
peoples' in General Assembly resolution 2625 (XXV) and must be interpreted in
this context. First, the first six paragraphs under this heading address the principle
of self-determination, the content of that right, the possible outcomes of its
exercise, the obligation to put an end to any situation contrary to that right and to
promote its respect, and finally the different legal nature of the colonial territories
with regard to the territory of the administering States. Second, in paragraph 7, the
text provides that nothing in those six foregoing paragraphs must be understood as
authorising or encouraging any action which would dismember or impair, totally
or in part, the territorial integrity or political unity of sovereign and independent
States. Any action is an all-encompassing formula. Itnecessarily includes actions
not only taken by States but also taken by any entity, organ, organization or group
of any kind. Consequently, no secessionist attempt made by any entity, organ,
571
572See supra Chapter 6, paras. 429-433
As Judge Lauterpacht has noted, UN member States are bound to give due consideration to General
Assembly resolutions in good faith, seeuth-West Africa-Voting Procedure, Advisory Opinion of June
7t,1955, l.C. J. Reports 1955, Separate Opinion Judge Lauterpacht, p. 119.
219 organization or group can be legally justified under the plea of the exercise of the
right to self-determination.573
603. The end of paragraph 7 recalls that States, which the safeguard clause aims at
protecting, must conduct themselves in compliance with the principle of self
determination of peoples and consequently their govemments must represent the
whole people belonging to the territory without distinction as to race, creed or
colour. However, this wording cannot be read in good faith as meaning that if a
govemment does not represent a whole people belonging to the territory without
distinction as to race, creed or colour, that the secession of part of that State' s
territory is either authorized or encouraged by General Assembly resolution 2625
(XXV), as advocates for so-called "remedial secession" claim. The right of self
determination cannot comprise a right to secession if the language of paragraph 7
safeguarding each State' s political unity and territorial integrity is to have any
effect. Indeed, paragraph 7 makes clear that any action that dismembers or
impairs totally or in part the territorial integrity or political unity of a State is not
in accordance with the principle of equal rights and self-determination of peoples,
as set out in the preceding six paragraphs.
604. Those who read the safeguard clause as recognizing "remedial secession" adopt
an erroneous interpretation of General Assembly resolution 2625 (XXV) by
reading the paragraph backwards and implying a meaning that is not present in the
text. The Declaration on Principles of International Law contains a positive
statement: that there must be respect for the political unity and the territorial
integrity of "States conducting themselves in compliance with the principle of
equal rights and self-determination of peoples". Itdoes not say that "States that do
not conduct themselves in compliance with the principle of equal rights and self
determination of peoples could be the object of an action that would dismember or
impair, totally or in part, their territorial integrity or political unity".
605. The only ground advanced for the so-called "remedial secession" reading of this
paragraph is an interpretation on the basis of a contrario reasoning. However, to
573
See supra paras. 558-569.
220 reason a contrario does not necessarily lead to a correct outcome. As a matter of
course, an a contrario reasoning is not in and of itself self-explanatory. The
express statement contained in the safeguard clause contains an assertion and a
consequence. The "remedial secession" reading imagines the opposite assertion
(States which do not conduct themselves in compliance with the principle of self
determination) and purports to apply toit the opposite consequence (no safeguard
to their territorial integrity and political unity). However there are many
alternative consequences to the opposite assertion, and the consequence advanced
(secession) is just one among many others, and, as will be demonstrated below,
neither the most reasonable nor the most logical one.
606. The purpose of paragraph 7 is largely acknowledged to be the establishment of a
"safeguard clause". Indeed, this is the term that is generally employed to refer to
574
this paragraph. This clearly follows from the travaux préparatoires: the text of
the different drafts submitted by States that proposed incorporating this paragraph
into resolution 2625 (XXV) were referred to as the "safeguard clause". 575 By
definition, a safeguard clause does not add any particular element to the scope of
the right. Its purpose is to expressly state or reaffirm something clearly, in order to
avoid confusion or an incorrect interpretation of the right at issue. This is clearly
evinced by the words with which paragraph 7 begins: "Nothing in the foregoing
paragraphs shall be construed as... ". One could say that even if the safeguard
clause had not been included in resolution 2625 (XXV), a good faith interpretation
of the preceding six paragraphs should not be any different.
(2) The travaux preparatoires do not support an a contrario reading of the "safeguard
clause" that admits a right to "remedial secession"
607. In addition to a good faith interpretation of the "safeguard clause", the travaux
préparatoires of General Assembly resolution 2625 (XXV) also confirm that the
574
Crawford, The Creation of States, op. cit., p. 118. Other similar terms are also used to refer to this
paragraph, such as "saving clause", see Steven Wheatley, Democracy, Minorities and International Law
(2005), p. 93.
575See Report of the Special Committee on Princip/es of International Law concerning Friendly Relations
and Co-operation among States., GA OR, Twenty-fifth Sess., Supp. No. 18, UN Doc. A/8018(1 May
1970), p. 51, para. 78, and p. 99, para. 177.
221 scope of the "safeguard clause" is limited to safeguarding the territorial integrity
and political unity of States. Rather than providing for a so-called "right to
remedial secession" if the wording of the second part of the safeguard clause is
not complied with by a State, the travaux préparatoires make clear that the clause
is designed to perform the opposite task, namely that of protecting the territorial
integrity and political unity of States.
608. The "safeguard clause" was the result of a proposa! by Italy to expressly include a
statement "safeguarding" the territorial integrity of States in relation to the
principle of equal rights and self-determination of peoples. In response to a
576
broadly-worded paragraph proposed by the United Kingdom, Italy advocated a
text that would
"ensure that the principle [of equal rights and self-determination of
peoples] would not be interpreted in such a way as to undermine the
territorial integrity of independent States, which was safeguarded as
fondamental by the Charter." 577
609. Sorne States even thought the inclusion of such a "safeguard" would be
578
unnecessary, but Italy was resolute, and one could say now that it showed
enormous foresight. The representative of Italy, Professor Gaetano Arangio-Ruiz,
explained the logic behind the Italian proposa! in the following terms:
"Once it was clear that it was peoples that were the beneficiaries of
the principle of self-determination, it followed logically that
576
The text proposed by the United Kingdom provided as follows: "States enjoying full sovereignty and
independence, and possessed of a representative government, effectively functioning as such to ail distinct
peoples within their territory, shall be considered to be conducting themselves in conformity with this
principle as regards those peoples": UN Doc. A/AC.125/L.44, part VI, reprinted in Official Records of the
General Assembly, Twenty-second Session, annexes, agenda item 87, UN Doc. A/6799 (19 July 1967),
577para. 176
Report of the Special Committee on Principles of International Law concerning Friendly Relations and
Co-operation among States, Official Records of the General Assembly, Twenty-fourth Session,
Supplement No. 19, UN Doc. A/7619, p. 67, para. 187.
578Statement by Mr. Allaf on behalf of Syria, Special Committee on Principles of International Law
Concerning Friendly Relations and Co-operation among States: Summary Records of the One Hundred
and Tenth to One Hundred and Fourteenth Meeting held at Palais des Nations, Geneva, from 31 March to
1May 1970, UN Doc. A/AC.125/SR. I I0-114, p. 18.
222 provision must be made to safeguard the territorial integrity and
political unity of States. And it was a problem that had to be dealt
with at the international level. Provisions of constitutional law
could not protect the territorial integrity or political unity of a State
at that level, which was precisely the level at which the declaration
would be made. In the absence of such a safeguard in international
law, it would be possible to invoke the principle of self
determination in order to destroy the territorial integrity or
undermine the political unity of a State.
The claim that the territorial integrity of States was safeguarded
under the principles concerning the non-use of force and
intervention was not enough. Since the principle of equal rights and
self-determination conferred rights on peoples and not on States, it
would be very easy to disrupt the political integrity of a State on the
basis of that principle. The term 'people' was not defined and it
would be possible to invoke the principle of self-determination on
behalf of any group, that possibly rendered an ad hoc safeguard,
such as the one included in the Italian proposa!, absolutely
579
necessary."
610. The Indian Government also held a similar understanding of the limitations to the
principle of equal rights and self-determination of peoples. It expressed its view as
follows:
"...the right of self-determination d[oes] not apply to sovereign and
independent States or to integral parts of their territory or to a
section of a people or nation. Without such an understanding, the
principle of self-determination would lead to fragmentation,
disintegration and dismemberment of sovereign States and
579Statement by Mr. Arangio-Ruiz on behalf of ltaly, United Nations General Assembly, 1970 Special
Committee on Principles of International Law Concerning Friendly Relations and Co-operation among
States: Summary Records of the One Hundred and Tenth to One Hundred and Fourteenth Meeting held at
Palais des Nations, Geneva, from 31 March to I May 1970, UN Doc. A/AC.125/SR.110-114, p. 22.
223 Members of the United Nations. The dangers in that context would
be particularly acute in the case of States having multi-racial and
580
multi-lingual populations. "
611. Therefore, rather than providing for a right to so-called "remedial secession", the
"safeguard clause" was included in resolution 2625(XXV) to protect the territorial
integrity and political unity of States in relation the principle of the equal rights
and self-determination of peoples. Indeed, as an author has pointed out, the origin
of the last part of the "safeguard clause" was the struggle between the different
groups of States with regard to the reinforcement of the idea of the interna[
581
element of self-determination during the time of the Cold War. This wording
does not refer to the external element of self-determination, even less to a
purported right to secession.
(3) Subsequent practice does not support an a contrario reading of the "safeguard clause"
that admits a right ta "remedial secession"
612. Nothing that has happened following the adoption of General Assembly resolution
2625 (XXV) has changed the constant UN policy of seeking to preserve the
territorial integrity and political unity of States. Rather, subsequent practice
confirms that the "safeguard clause" does not admit a right to "remedial
secession".
613. To date there has not been a single instance where a State has been successfully
created by the secession of territory from an existing State in circumstances where
the secession was officially justified on the basis of the exercise of the right to
self-determination by "remedial secession". Examples of remedial secession that
are sometimes invoked are the cases of Bangladesh and Eritrea. However, in both
580
Ibid, p. 110,para. 221.
581See Cassese, Self-Determination, op. cit., pp. 109-110. The same author concluded that "the possibility of
racial groups toecede under the extreme circumstances set out above has not become customary law".
Ibid, p. 121.
224 these instances the parent States, Pakistan and Ethiopia respectively, accepted the
secession of these parts of their territories, as will be discussed below. 582
614. The 1975 Helsinki Final Act confirmed both the principle of self-determination
and that of territorial integrity. Not only was no reference made to any purported
right to "remedial secession", but rather, on the contrary, stress is strongly laid on
583
the respect of the territorial integrity of States. The principle of the territorial
integrity of States also features prominently in the formulation of the principle of
"Equal rights and self-determination of peoples", which inter alia provides that
"The participating States will respect the equal rights of peoples and
their right to self-determination, acting at all times in conformity
with the purposes and principles of the Charter of the United
Nations and with the relevant norms of international law, including
those relating to territorial integrity of States." 584
615. States recognised this legal situation in the past. The British Minister of State of
the Foreign and Commonwealth Office wrote in reply to a question in 1983, for
example, that:
"...it has been widely accepted at the United Nations that the right
of self-determination does not give every distinct group or
territorial subdivision within a State the right to secede from it and
thereby dismember the territorial integrity or political unity of
585
sovereign independent States".
582
583 See infra Chapter 10,para. 947.
See Helsinki Final Act, Declaration on Principles Guiding Relations between Participating States,
Principle IV; see also, Principles I and;for other international instruments confirming the principle of
territorial integrity of States see Chapter 6, Sections B & C.
584Ibid, Principle VIII.
585
H.L. Debs., vol. 446, cols 93-4: 12 December 1983, reprinted in British Year Book of International Law,
1983, p. 409.
225616. Similarly, m 1996 the Government spokesman in the House of Lords, Lord
Chesham, stated that "[t]he right to self-determination does not equate
automatically with a right to secession." 586
617. Specific mention was made of the principles set out in the 1975 Final Act of the
Helsinki Conference on Security and Cooperation in Europe by Lord Whitty,
when presenting the British Government's response to the situation in Nagorno
Karabakh with regard to Azerbaijan and Armenia in 1997. In response to a
question by Baroness Cox who asked Her Majesty' s Government to provide
details about "their position with regard to the relationship between the principles
587
of self-determination and territorial integrity", his Lordship replied:
"The eighth OSCE principle relates to self-determination. It 1s
worth mentioning that for the purposes and principles of the UN
Charter that is operative with reference to the relevant norms of
international law. They include not just references to human rights
but those relating to territorial integrity of states. Our position on
the issue does not apply just to Nagorno-Karabakh. It applies
throughout the world, but in particular in that part of the world it
applies to Abkhazia where we have made clear our support for the
territorial integrity of Georgia."588
618. Specifically in relation to the Serbian province of Kosovo, the French Minister for
Foreign Affairs stated in 1998 following a meeting with his Albanian counterpart,
that while the province of Kosovo should enjoy a large degree of autonomy, and
that human rights need be respected, the territorial integrity of the FRY must be
589
respected. This need to respect internationally recognised borders with respect
586H.L. Debs., vol. 569, col. 971: 20 February 1996, reprinted in British Year Book of International Law,
1996, p720.
587
Lord Hansard text for 1July 1997, col. 154, available at:
http://www.publications.parliament.uk/pa/pahansard.htm.
588Ibid., col. 169, available at. http://www.publications.parliament.uk/pa/pahansard.htm
589"J'ai rappeléà cette occasion la position de la France qui est très claire, qui s'appuie sur quelques
principes et qui sont les suivants : il faut respecter l'intégrité territoriale de la République fédérale de
Yougoslavie. En même temps, la démocratisation et le respect des droits de l'homme sont nécessaires dans
ce pays, ce qui favorisera sa réintégration dans la communauté internationale. Nous demandons que l'on
revienneà où que l'on obtienne un statut de large autonomie pour le Kosovo", Statement by the French
226 590
to Kosovo was reiterated by the President of France on 12 March 1998.
Similarly, Kosovo independence would, again according to the French Minister
for Foreign Affairs in 1998, destabilise the region. 591
619. Germany was of a similar opinion when it penned a joint letter with France to the
FRY in which the two States noted that only a negotiated solution among the
FRY, the Republic of Serbia, and the Albanian community of Kosovo could
create the basis for lasting peace in the region. 592
620. The Committee on the Elimination of All Forms of Racial Discrimination
(CERD) also interpreted self-determination as denoting a right that does not lead
to secession from a State:
"6. The Committee emphasizes that, in accordance with the
Declaration on Friendly Relations, none of the Committee's actions
shall be construed as authorizing or encouraging any action which
would dismember or impair, totally or in part, the territorial
integrity or political unity of sovereign and independent States
conducting themselves in compliance with the principle of equal
rights and self-determination of peoples and possessing a
Govemment representing the whole people belonging to the
territory, without distinction as to race, creed or colour. In the view
of the Committee, international law has not recognized a general
right of peoples unilaterally to declare secession from a State. In
this respect, the Committee follows the views expressed in An
Agenda for Peace (paras. 17 and following), namely, that a
Minister for Foreign Affairs, 5 March 1998, reprinted in Jean-François Dobelle, "Pratique française du
droit international - 1998 "44uaire français de droit international (1998), p.735.
590
"En revanche, il faut que Belgrade sache que cette attitude de très grande fermeté doit le conduire à une
solution aimable, c'est-à-dire une grande autonomie du Kosovo comme ce fut le cas dans le passé, mais
dans le respect des frontières internationalement reconnues", Statement by the President of France at a
London press conference, 12March 1998, reprintedid..
591Statement by the French Minister for Foreign Affairs during an interview on Radio France, 13 March
1998, reprinted in ibid..
592
Letter from the Ministers for Foreign Affairs of France and Germany to the President of the Federal
Republic of Yugoslavia, 19 November 1997, reprinted in Jean-François Dobelle, "Pratique française du
droit international - 1998 "43 Annuaire français de droit international (1997), p. 930.
227 fragmentation of States may be detrimental to the protection of
human rights, as well as to the preservation of peace and security.
This does not, however, exclude the possibility of arrangements
593
reached by free agreements of all parties concerned."
621. Significantly, following its analysis of the scope of the right to self-determination,
the CERD quoted paragraph 7 of the Declaration on Principles of International
Law and immediately concluded that "[i]n the view of the Committee,
international law has not recognized a general right of peoples unilaterally to
declare secession from a State". Not a single phrase in the CERD's extended
analysis of self-determination in general and of paragraph 7 in particular refers to
the possibility of existence of a right to "remedial secession".
622. General Comment 12 by the Human Rights Committee concerning Article 1 of
the International Covenant on Civil and Political Rights (ICCPR) equally does not
contain any comment in relation to the "safeguard clause", or any mention of
594
secession. Referring to the first paragraph of Article 1 of the Covenant, the
Committee considers that "States parties should describe the constitutional and
595
political processes which in practice allow the exercise of this right". All States
Parties must do this, irrespective of the composition of their respective population,
i.e. whether the State is made up of national, linguistic, religious or other
minorities. Of particular interest is the following analysis of Article 1, paragraph
3, of the Covenant:
"Paragraph 3, in the Committee's opinion, is particularly important
in that it imposes specific obligations on States parties, not only in
relation to their own peoples but vis-à-vis all peoples which have
not been able to exercise or have been deprived of the possibility of
exercising their right to self-determination. The general nature of
593
CERD, General Recommendation XXI, Right to Self-determination (23 August 1996), available at
http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/dc598941 c9e68a 1a8025651e004d31dü?Opendocument.
594Human Rights Committee, General Comment 12, Article 1 (Twenty-first session, 13 March 1984),
Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty
Bodies, U.N. Doc. HRI/GEN/1/Rev.1 at 12 (1994), available at:
http://www.unhchr.ch/tbs/doc.nsf/(S ymbol)/f3c99406d528f3 7fc12563ed004960b4 ?Opendocument.
595Ibid., para. 4.
228 this paragraph is confirmed by its drafting history. It stipulates that
'The States Parties to the present Covenant, including those having
responsibility for the administration of Non-Self-Governing and
Trust Territories, shall promote the realization of the right of self
determination, and shall respect that right, in conformity with the
provisions of the Charter of the United Nations'. The obligations
exist irrespective of whether a people entitled to self-determination
depends on a State party to the Covenant or not. Itfollows that all
States parties to the Covenant should take positive action to
facilitate realization of and respect for the right of peoples to self
determination. Such positive action must be consistent with the
States' obligations under the Charter of the United Nations and
under international law: in particular, States must refrain from
interfering in the internai affairs of other States and thereby
adversely affecting the exercise of the right to self-determination.
The reports should contain information on the performance of these
obligations and the measures taken to that end." 596
623. Clearly, the view is taken that paragraph 3 focused on Non-Self-Governing and
Trust Territories and it is underlined that positive action by States Parties must not
be such as to constitute interference in the internai affairs of other States.
Supporting secessionist attempts constitutes the most evident case of any such
interference.
624. Other international instruments adopted subsequent to the 1970 Declaration on
Principles of International Law during the course of the last two decades have
reproduced the safeguard clause. Examples include the Vienna Declaration and
Programme of Action, as adopted by the World Conference on Human Rights on
25 June 1993, 597 and General Assembly Declaration on the Occasion of the
Fiftieth Anniversary of the United Nations. 598
596Ibid., para. 6.
597"Ali peoples have the right of self-determination. By virtue of that right they freely determine their
political status, and freely pursue their economic, social and cultural development. Taking into account the
particular situation of peoples under colonial or other forms of alien domination or foreign occupation, the
229625. In sum, paragraph 7 of the principle of equal rights and self-determination of
peoples embodied in the Declaration on Principles of International Law contains a
safeguard clause the purpose of which is to make clear that the right of self
determination does not authorise or encourage any action against the territorial
integrity or political unity of States.
III Resolution 2625 (XXV) does not transform a minority suffering from human
rights violations into a people having a right to self-determination
626. Despite the clear object of the "safeguard clause", described above, paragraph 7 of
the principle of equal rights and self-determination of peoples has been read by
some authors and by some States as encouraging or authorising the UDI of 17
599
February 2008, on the basis of what they call a right to "remedial secession".
World Conference on Human Rights recognizes the right of peoples to take any legitimate action, in
accordance with the Charter of the United Nations, to realize their inalienable right of self-determination.
The World Conference on Human Rights considers the denial of the right of self-determination as a
violation of human rights and underlines the importance of the effective realization of this right. In
accordance with the Declaration on Principles of International Law concerning Friendly Relations and
Cooperation Among States in accordance with the Charter of the United Nations, this shall not be
construed as authorizing or encouraging any action which would dismember or impair, totally or in part,
the territorial integrity or political unity of sovereign and independent States conducting themselves in
compliance with the principle of equal rights and self-determination of peoples and thus possessed of a
Government representing the whole people belonging to the territory without distinction of any kind", UN
Doc. A/CONF.157/23 (12 July 1993), para. 2.
598"[T]he United Nations ... [c]ontinue to reaffirm the right of self-determination of all peoples, taking into
account the particular situation of peoples under colonial or other forms of alien domination or foreign
occupation, and recognize the right of peoples to take legitimate action in accordance with the Charter of
the United Nations to realize their inalienable right of self- determination. This shall not be construed as
authorizing or encouraging any action that would dismember or impair, totally or in part, the territorial
integrity or political unity of sovereign and independent States conducting themselves in compliance with
the principle of equal rights and self-determination of peoples and thus possessed of a Government
representing the whole people belonging to the territory without distinction of any kind". General
Assembly resolution 50/6 of 24 October 1995, para. 1.
599For an account of this doctrinal position,C.Tomuschat, "Secession and Self-Determination" in M. G. Kohen
(ed.),ecession. International Law Perspectives (2006),p. 48; J. Dugard and D. Raie, "The Role of Recognition in
the Law and Practiceof Secession" inbid., p. 28; A Cassese, Self-Detennination, op. cit., p. 118.
Recognition by Switzerland of the so-called "Republic of Kosovo" has been explained by its Foreign
Affairs Minister in this way: "Un Etat qui se comporte en conformité avec le droit des peoplesà disposer
d'eux-mêmes et qui dispose d'un gouvernement qui représente et respecte toutes les personnes faisant
partie de son pays, se voit garantir son intégrité territoriale et sa souveraineté par le droit international. En
revanche, cette garantie échoit si l'Etat en question ne protège plus ses citoyens, viole le droit des peuples
à l'autodétermination de façon systématique et flagrante, comme l'a fait la Serbie à l'égard de la très grande
majorité des habitants du Kosovo". "Les priorités de la politique étrangère de la Suisse", Discours de
Madame Micheline Calmy-Rey, lüe anniversaire du "Forum Suisse de politique internationale", Geneva,
7 March 2008. Available at:
http://www .eda.admin.ch/etc/medialib/ downloads/edazen/ dfa/head/ speech0 .Par.0013 .File.tmp/080307 _Di
scours%20MCR_fr.pdf.
230 The existence of such a right is highly controversial and such interpretation has
not received any support from the United Nations.
627. Indeed, secession is not a legal effect of a failure of a State to respect human
rights or to conduct itself in accordance with the principle of self-determination.
The first legal consequence that emerges from a case in which a State is not
conducting itself in accordance with the principle of self-determination and with
international human rights standards is that it must put an end to the situation and
act in conformity with these principle and standards. This is the normal way to
deal with wrongful acts having a continuing character, including human rights
violations.
628. The second legal consequence anses m the field of reparation. However,
"remedial secession" goes much further than requiring reparation. Itis tantamount
to imposing a type of sanction that is wholly outside the field of State
responsibility for wrongful acts. "Remedial secession" means that, as a
consequence of human rights violations, the wrongdoer will be sanctioned with
the loss of its territory. This kind of sanction, even in response to grave violations
600
of peremptory norms, is unknown in international law.
629. Viewed from another perspective, "remedial secession" would imply that if a
national, religious or linguistic minority is seriously discriminated against by the
State, then this minority would become a "people" entitled to exercise self
determination by seceding territory from the State. However this purported new
"category" of peoples has never been referred to in any international instrument or
in practice. Here, the well-established distinction between peoples' rights and
minorities' rights is critical. Only "peoples" are entitled to exercise self
determination. To apply self-determination to minorities is tantamount to not only
blurring but rendering meaningless this distinction. Indeed, this approach leads to
the negation of the distinction clearly made in international law between peoples -
entitled to the right of self-determination - and minorities - holders of other
600See Article 41of the ILC articles on Responsibility of States for lnternationally Wrongful Acts, YILC,
2001, Vol. II, Part Two.
231 rights, but not of the right of self-determination. Conventional or customary rules
dealing with minority rights, both at the individual and the collective level, do not
601
recognize minorities as holders of the right to self-determination.
630. Indeed, the more appropriate way to address the issue of serious violations of
human rights, either collective or individual, is through the restoration of the
respect of such rights and the reparation of the injury caused. These kinds of
violations are often due to the existence of a particular government following
discriminatory policies. By definition, this is a temporary situation, spanning the
political life of the government concerned. By contrast, a radical "solution" such
as secession is permanent. The creation of States is not intended to be a temporary
measure. They are created with the intention of permanency. There is no reason to
respond to a temporary situation with a permanent disruption. Moreover, there
exists many different ways other than the creation of an independent State to
allow a population of a given territory to pursue its political, economic, social and
cultural development. Different forms and degrees of self-government and
autonomy are examples all over the world.
631. Nothing in international law gives support to the "remedial secession" reading of
the "safeguard clause". Not surprisingly, no author to date who defends the a
contrario reading of this clause has provided any legal justification of it based on
positive applicable rules. 602
632. Moreover, paragraph 7 does not refer to grave violations of human rights or
international humanitarian law. It speaks of "States conducting themselves m
compliance with the principle of equal rights and self-determination of peoples as
described above and thus possessed of a government representing the whole
people belonging to the territory without distinction". Even assuming the
601See Article 27 of the ICCPR; Declaration on the Rights of Persons Belonging to National or Ethnie,
Religious and Linguistic Minorities, adopted by General Assembly resolution 47/135; Framework
Convention for the Protection of National Minorities (opened for signature 1 February 1995, entered into
602force 1February 1998), CETS No. 157.
See, e.g., Allen Buchanan, Justice, Legitimacy, and Self-Determination(2004), pp. 357-359; Lee
Buchheit, Secession: The Legitimacy of Self-Determination (1978), p. 223; T. M. Franck, "Postmodern
Tribalism and the Right to Secede" in Brêilmann, Lefeber, Ziek,Peoples and Minorities (1993), pp. 13-14;
T. D. Musgrave,Self-Determination and National Minorities (1997), pp. 188-192.
232 correctness of the a contrario reading (quod non), the only application of
"remedial secession" would be in the case of the State that does not conduct itself
"in compliance with the principle of equal rights and self-determination of peoples
and thus [not possessing] of a government representing the whole people
belonging to the territory without distinction as to race, creed or colour". Hence,
not all grave violations of human rights and international humanitarian law would
create conditions for a purported "remedial secession".
633. For the abovementioned reasons, neither the safeguard clause nor any existing
legal rule provides legal support for the "remedial secession" doctrine.
IV There is no support for the "remedialsecession"doctrine in national case law
or the findings of human rights commissions and courts
634. The highest courts in some federal States have dealt with the matter of secession
and have analysed their concrete situations both at the constitutional and
international law levels. In this vein both the Russian Supreme Court, with regard
to Tatarstan, and the Canadian Supreme Court, with regard to Quebec, have dealt
with the question of secession.
635. The Canadian Supreme Court in its opinion on Quebec analysed the position of
some commentators on a right to unilateral secession in the circumstance "when a
people is blocked from the meaningful exercise of its right to self-determination
internally [and whether] it is entitled, as a last resort, to exercise it by secession".
The Canadian Supreme Court's position was that "it remains unclear whether this
third proposition actually reflects an established international law standard".03
636. The Russian Supreme Court analysed the relationship between self-determination
and territorial integrity with respect to the Constitution of the Russian Federation
and expressly referred to paragraph 7 of the principle of self-determination
contained in resolution 2625 (XXV). Without denying the right of self
determination as the expression of the will of the people, according to the Russian
603
Reference re Secession of Quebec, [19S.C.R.217, paras. 134-135.
233 Constitutional Court any unilateral action aiming at breaking up the national unity
and the territorial integrity of the Russian Federation would not be in conformity
604
with international law mies goveming human rights and the rights of peoples.
637. In its 2007 Advisory Opinion on the United Nations Declaration of Indigenous
Peoples, the African Commission of Human and Peoples' Rights summarised its
position with regard to secession and the relationship between self-determination
and territorial integrity in general as follows:
"In its jurisprudence on the rights of peoples to self-determination,
the ACHPR, seized of Communications/Complaints claiming for
the enjoyment of this right within State Parties, has constantly
emphasized that these populations could exercise their right to self
determination in accordance with all the forms and variations which
are compatible with the territorial integrity of State Parties [See
Communication 75/92 of 1995 -the Katangese People Congress vs.
Zaïre, reported in the 8 Annual Activity Report of the ACHPR].
In this respect, the report of the ACHPR's WGIP states that, 'the
collective rights known as the peoples' rights should be applicable
to certain categories of the populations within Nation States,
including the indigenous populations but that ...the right to self
determination as it is outlined in the provisions of the OAU Charter
and in the African Charter should not be understood as a
sanctioning of secessionist sentiments. The self-determination of
the populations should therefore be exercised within the national
inviolable borders of a State, by taking due account of the
604No. 3-P of 13 March 1992 In Re the Constitutionality of the Declaration of State Sovereignty of the Tatar
Soviet Socialist Republic of August 30, 1990, Law of the Tatar Soviet Socialist Republic of April 18,
1991 "On Amendments and Additions to the Constitution (Basic Law) of the Tatar Soviet Socialist
Republic", of Law of the Tatar Soviet Socialist Republic of November 29, 1991 "On the Referendum of
the Tatar Soviet Socialist Republic", Decree of the Supreme Soviet of the Republic of Tatarstan of
February 21, 1992 "On the Holding of a Referendum of the Republic of Tatarstan on the Question of the
State Status of the Republic of Tatarstan", available in Russian at: http://ks.rfnet.ru.
234 sovereignty of the Nation State (Experts' Report of the ACHPR p.
83/88). 11605
638. This distinction between the rights enjoyed by a people, and those enjoyed by a
minority was made by the Inter-American Commission on Human Rights in the
Miskito Case concerning the indigenous Miskito population of Nicaragua. In
acknowledging the principle of self-determination of peoples, the Commission
nevertheless stated that "[t]his does not mean, however, that it recognizes the right
606
to self-determination of any ethnie groupas such." The Commission found that
although the Miskito population was an ethnie minority in Nicaragua, and enjoyed
special legal protection by virtue of this status, this legal protection did not extend
607
to "a right to political autonomy and self-determination".
V Even if read as providing a right to "remedial secession" (quod non), the
"safeguard clause" requirements would not be met in the present case
639. The insurmountable problem facing those attempting to legally justify the UDI
through "remedial secession" is that even if this doctrine has became an
established rule of international law (quod non), the purported conditions required
through the a contrario reading of the Declaration on Principles of International
Law would not at any rate be met in the case at issue.
640. The purported conditions for "remedial secession" would be that the State is not
conducting itself in compliance with the principle of equal rights and self
determination of peoples and thus not possessing a government representing the
whole people belonging to the territory without distinction.
605
Advisory Opinion of the African Commission on Human and Peopsts' Rights on the United Nations
Declaration on the Rights of lndigenous Peoples, adopted at lts 41 Ordinary Session Held in May 2007 in
Accra, Ghana, paras. 23-24.
606The Miskito Case, Case 7964 (Nicaragua), lnter-American Commission on Human Rights, Report on the
Situation of a Segment of the Nicaraguan Population of Miskito Origin, OEA/Ser.L./V.11.62,doc. 10 rev.
6073, 29 November 1983, Part Two(B) §9.
Ibid,§ 15.
235641. As far as Kosovo is concemed, its status as an autonomous province granted by
the 1974 Constitution of the SFRY and the 1974 Constitution of Serbia, was
modified in 1989. This was done through amendments to the Constitution of
Serbia, in the constitutionally prescribed procedure and with the consent of
608
Kosovo and another Serbian autonomous province, Vojvodina. Their status of
autonomous provinces remained under both the federal and Serbian constitutions,
609
but they enjoyed less autonomous powers, particularly in the legislative realm.
At no time was the Albanian minority, either in Kosovo or elsewhere in Serbia,
excluded or discriminated from the participation in the public affairs of the
State.610
642. Since then, however, the Kosovo Albanians have organized themselves into
parallel institutions, holding elections in which they elected their own "president"
611
and "parliament", and establishing their own education, health, tax systems.
The majority of the Kosovo Albanian population systematically boycotted any
participation in any state structure in the FRY (Serbia and Montenegro) and in
Serbia, and in particular elections. The goal of the majority of Kosovo Albanians
was independence, and they accordingly not only refused to cooperate with the
Serbian govemment in office at that time, but also with the Serbian democratic
opposition. 612 Should the Kosovo Albanians have acted otherwise, their presence
in the national Parliament would have permitted a different majority from that
formed by Mr. Milosevic and his allies, and sparing not only Kosovo but the
entire Serbia the policies of his regime.
643. It emerges that the Kosovo Albanians did not participate in the State apparatus of
Serbia and Yugoslavia during the 1990s out of choice not to do so, and in the
pursuit of independence as evinced in the establishment of their own parallel
institutions. Consequently, the FRY and the Republic of Serbia cannot be held
accountable for the lack of Kosovo Albanian participation in the national State
608
609See supra para. 189.
See supra paras. 189-198.
610See supra Chapter 5, Section D (II).
611
612See supra Chapter 5, Section (I).
See supra Chapter 5, para. 277.
236 institutions. This 1s not a case of non-compliance with the principle of self
determination of a State, but the decision of part of the population not to
participate in the functioning of the State.
644. At no time during that period, until today, has a single United Nations or regional
organisation resolution recognised that the Kosovo Albanians had a right to
"remedial secession", or that this part of the population of Serbia had a right of
extemal self-determination to create an independent State.
645. Indeed, the Peace Conference on Yugoslavia did not recognise at any time a right to
Kosovo to constitute its own sovereign State, in opposition to what it did for the
constituent republics of the former SFRY. This was so, despite the demands by the
613
leaders of the Kosovo Albanians to be recognised as an independent republic.
Indeed, the Conference did not even allow the representatives of the Kosovo
614
Albanians to participate in it on an equal footing with the Yugoslav republics.
646. Furthermore, there remam two important reasons categorically to reject the
purported justification under international law of the UDI on the basis of "remedial
secession". First, at the moment that this secessionist attempt was carried out by the
Provisional Institutions of Self-Govemment, the region of Kosovo enjoyed - and
continues to enjoy - substantial autonomy within Serbia under the administration of
the United Nations. It is difficult to imagine a more remote situation from that
which a case for "remedial secession" would have to be substantiated. Second,
Kosovo's substantial autonomy is also guaranteed by the Constitution of the
Republic of Serbia, 615which since 2000 has been an entirely democratic State in
which human rights are widely respected and in which all the inhabitants, regardless
of their national origin, language or religion, can participate in public life. National
minorities freely develop their fondamental rights and the principle of self
determination is fully respected within Serbian territory with regard to all members
613Letter from Dr Rugova to Lord Carrington, Peace Conference on Yugoslavia, 22 December 1991, Annex
76 in Documentary Annexes accompanying this Written Statement.
614
Letter from Lord Carrington, Chairman, Conference on Yugoslavia, to Dr Rugova, 17 August 1992,
Annex 77 in Documentary Annexes accompanying this Written Statement.
615Constitution of the Republic of Serbia, Preamble and Article 182, para. 2, Annex 59 in Documentary
Annexes accompanying this Written Statement.
237 of its people. Serbia is a party to all relevant universal and regional instruments
616
guaranteeing human rights and minority rights.
647. As Crawford has stated,
"the inhibitions on international recognition of unilateral secession
movements go further, and are even stronger than the 'safeguard
clause' in the 1970 and 1993 Declarations imply. If the 1970/1993
proviso is taken to mean that unilateral secession is permissible
where the government is constituted on discriminatory basis, it is
doubtful whether the proviso reflects international practice. But
whoever this may be, a state which is governed democratically and
respects the human rights of all its people is entitled to respect for
617
its territorial integrity".
648. Finally, it must be noted that, notwithstanding the international civil and security
presence in the territory, Serbian and other national groups of Kosovo have been
victims of serious violations of human rights infringed by members of the Kosovo
Albanian minority over the last nine years. Over 200,000 non-Albanians from
Kosovo had to seek refuge in other parts of Serbia or in other countries, and the
618
conditions for their return home have not been met. It would be indeed a
strange right of "remedial secession" that grants a victimised minority the right to
create a new State while, at the same time, the leadership of this same minority
bears responsibility for similar violations infringed on other national groups
within the same territory.
649. In sum, the decision of the Kosovo Albanians not to participate in any Yugoslav
or Serbian State institution, in order to proclaim their "sovereignty" and
"independence" in 1990 and to effectively create their own parallel institutions
616On guarantees of human rights and minority rights in Serbia, see Chapter 5, Section B (III).
617James Crawford, "State Practice and International Law in Relation to Unilateral Secession", Report,
Experts opinion accompanying the Attorney General of Canada's Factum, in: Anne Bayefsky (ed.), Self
Determination in International Law. Quebec and Lessons Learned. Legal opinions Selected and
Introduced by Anne Bayefsky (2000), p. 61, para. 71.
618For more on persecution ofnon-Albanians in Kosovo, see Chapter 5, Section F(I).
238 during the whole decade preceding the adoption of Security Council resolution
1244 (1999), renders the "remedial secession" doctrine completely inapplicable to
the case at hand, even assuming that this doctrine constitutes a rule of
international law (quod non). Furthermore, following the adoption of Security
Council resolution 1244 (1999) and to date, Kosovo enjoys a regime of substantial
autonomy under United Nations administration, such autonomy also being
guaranteed by the Constitution of the Republic of Serbia, which means that the
UDI canin no way be justified by the purported doctrine of "remedial secession".
VI No international body has ever acknowledged the applicability of the
purported ''remedial secession'' of Kosovo
650. A further element demonstrating the futility of the claim of "remedial secession"
as legal ground for the unilateral declaration of independence of 17 February 2008
is that nota single resolution by a United Nations organ, regional organisation, or
any relevant international body has endorsed this claim. This was the case even
during the worst period of the conflict between the Yugoslav Army and Serbian
security forces on the one side, and the Kosovo Albanian terrorist organisation,
the so-called KLA, on the other. As mentioned above, both Serbian forces and the
KLA forces committed serious breaches of fondamental human rights and the
rules of international humanitarian law. 619 Nevertheless all Security Council
resolutions adopted in 1998-1999 concerning the situation in Kosovo stressed the
need to respect the territorial integrity of the FRY, which is tantamount to denying
any poss1 11tyo secess10n.. 620
651. In an attempt to blur this unquestionable fact, the UDI daims that Kosovo's
secession "brings to an end the process of Yugoslavia's violent dissolution". 621
This is in clear contradiction with the findings of the Arbitration Commission of
the Conference on Yugoslavia (Badinter Commission). In its Opinion No. 8 of 4
619See Chapter 5, Section E.
620
See Security Council resolutions 1199 (1998), 1203 (1998) and 1244 (1999), reproduced in Annexes 17,
18 and 20 in Documentary Annexes accompanying this Written Statement. For more seera Chapter 6,
Section E.
621See Annex 2 in Documentary Annexes accompanying this Written Statement.
239 July 1992, the Arbitration Commission considered that the process of dissolution
of the SFRY had corne to an end. 622At no time did the Arbitration Commission
mention the possibility of the independence of Kosovo, as a result of the
application of the "remedial secession" doctrine or otherwise. If the abrogation of
the autonomous status of Kosovo by the Milosevic regime in 1989 had created a
situation on the ground triggering the applicability of the doctrine of "remedial
secession", the Arbitration Commission could have not failed to omit this
important fact. Indeed, the Commission was not even asked by the Conference to
address the possible independence of Kosovo. Remarkably, in its first opinion, the
Commission enumerated the declarations of independence issued by the Yugoslav
Republics, but did not even mention that of "Kosovo", despite the fact that the
623
Kosovo Albanian leaders had requested the Conference to consider it.
652. Further, the European Union and the Organization for Security and Co-operation
in Europe (OSCE) did not invoke the applicability of the external element of self
determination to the Kosovo population, and much less acknowledge a purported
right of "remedial secession". 624
653. It would be extraordinary to admit the application of the principle of self
determination to the population of Kosovo on the ground of "remedial secession"
while, contrary to the whole history of the application of the right of peoples to
self-determination within the United Nations, not a single acknowledgment as to
the applicability of the principle to the situation of Kosovo has been made.
622Opinion No. 8 of the Arbitration Commission on former Yugoslavia, 31 ILM 1521, 1523 (1992), Annex
62341 in Documentary Annexes accompanying this Written Statement.
See Opinion No. 1, 31 ILM 1494, 1496 (1992), Annex 38 in Documentary Annexes accompanying this
Written Statement and the letter from Dr Rugova to Lord Carrington, Peace Conference on Yugoslavia, 22
December 1991, Annex 76 in Documentary Annexes accompanying this Written Statement.
624In relation to the Council of the European Union, see Presidency Conclusions (19/20 June 2008), Brussels,
rd
20 June 2008, 11018/08. In relation to the OSCE Mission in Kosovo, see OSCE, Decision No. 263, 193
Plenary Meeting, PC.DEC/263 (25 October 1998); OSCE, Preliminary Assessment of the Situation of
Ethnie Minorities in Kosovo (10 July 1999), available at:
http://www.osce.org/documents/html/pdftohtml/ll l9_en.pdf.html;OSCE, Second Assessment of the
Situation of Ethnie Minorities in Kosovo, 26 July 1999, available at
http://www.osce.org/documents/html/pdftohtml/ll l8_en.pdf.html; OSCE, Overview of the situation of
ethnie minorities in Kosovo, 3 November 1999, available at
http://www.osce.org/documents/html/pdftohtml/ll 17_en.pdf.html. See also Human Rights Watch,
'Federal Republic of Yugoslavia: Humanitarian Law Violations in Kosovo', Vol. 10, No. 9 (D), October
1998, available at:http://www.hrw.org/legacy/reports/reports98/kosovo/.
240 F. Conclusions
654. In conclusion, it is submitted that
(i) The right to self-determination has become a legal right in international law,
but in a carefully limited manner;
(ii) International law has evolved a particular definition of a "people" entitled to
self-determination for which recognition by a relevant regional or
international organisation is required. In particular the United Nations has
developed a methodology for identifying "non-self-governing territories"
and laying down specific ways to put an end to colonial situations, including
the applicability of the principle of self-determination;
(iii) The right to self-determination does not authorise non-consensual secession
from an independent State;
(iv) Kosovo does not constitute a valid self-determination unit under
international law;
(v) Kosovo Albanians do not constitute a "people" for the purposes of self
determination under international law.
(vi) Paragraph 7 of the principle of equal rights and self-determination of
peoples embodied in the Declaration on Principles of International Law is a
guarantee of the preservation of the political unity and the territorial
integrity of independent States.
(vii) The a contrario reading of that paragraph m order to admit a right to
"remedial secession" is not supported by the terms of the paragraph, its
context, its abject and purpose, the travaux préparatoires and subsequent
practice.
(viii) National minorities cannot become "peoples" entitled to self-determination
because of human rights violations.
(ix) Even assuming the legal existence of the doctrine of "remedial secession"
(quod non), the conditions for its application would not be met in the case of
Kosovo.
(x) Kosovo Albanians decided themselves not to participate m the State
apparatus of Yugoslavia and Serbia, but rather to create their own parallel
institutions.
241(xi) Consequently, Yugoslavia and Serbia cannot be considered as not having
respected the principle of equal rights and self-determination and thus as not
possessing a government representing the whole people belonging to the
territory of Serbia "without distinction as to race, creed or colour"
(xii) Neither the Arbitral Commission on Yugoslavia nor any United Nations or
regional organisation resolution endorsed the claim of independence by the
Kosovo Albanians or acknowledged any their purported right to external
self-determination, either through "remedial secession" or otherwise.
Kosovo continues to enjoy a regime of substantial autonomy under United
Nations administration, such autonomy also being constitutionally recognized by
the Republic of Serbia.
242 Part IV
THE IMPACT OF SECURITY COUNCIL RESOLUTION 1244 (1999) ON THE
QUESTION PUT TO THE COURT
Chapter 8
SECURITY COUNCIL RESOLUTION 1244 (1999) HAS ESTABLISHED AN
INTERNATIONAL LEGAL REGIME FOR KOSOVO
655. The previous chapters have established that the UDI violated general principles of
international law. The focus of this chapter is on the non-conformity of the UDI
with the special legal regime that applies to Kosovo, as established by the United
Nations Security Council in a binding resolution. This chapter will demonstrate
that
(i) The Security Council of the United Nations, by adopting Security Council
resolution 1244 (1999) under Chapter VII of the Charter, established an
international legal regime for Kosovo, binding upon the parties as well as
upon all Member States of the United Nations;
(ii) The international legal regime for Kosovo guarantees the territorial integrity
625
of Serbia pending a final settlement to be agreed between the parties
under the auspices of the Security Council;
(iii) The notions of "self-government" and "autonomy" m Security Council
resolution 1244 (1999) exclude independence for Kosovo, in particular a
unilateral declaration of independence;
(iv) Security Council resolution 1244 (1999) requires that Kosovo's future status
be determined through a political process, peacefully and by negotiations;
(v) Only the Security Council may terminate the international legal regime for
Kosovo.
625
On the continuity between the FRY and the Republic of Serbia, see supra Chapter 1, Section E.
243 A. Practice of the Security Council, in particular Resolution 1244 (1999),
Recognizes and Guarantees the Territorial Integrity of the FRY/Serbia
I. Practice prior to the adoption of Security Council resolution 1244 (1999)
656. Already well before the adoption of Security Council resolution 1244 (1999), both
the Security Council and individual Members of the United Nations had
confirmed the territorial integrity of the FRY and rejected the idea of any
unilateral right of Kosovo to secede. In addition, the Security Council stressed the
need for any settlement to be based on an agreement reached between the parties
on an autonomous status of Kosovo within the FRY.
657. As a matter of fact, it was already in 1995, 1996 and 1997 respectively, that the
Security Council in resolutions 1031 (1995), 1088 (1995) and 1144 (1997) - after
having reaffirmed its commitment to a negotiated settlement of all conflicts in the
former Yugoslavia - referred to the preservation of the territorial integrity and the
preservation of the sovereignty and territorial integrity of all States concemed
within their intemationally recognized borders 626
658. Similarly, the Contact Group, compnsmg France, Germany, ltaly, Russia, the
United Kingdom and the United States, also supported "an enhanced status for
Kosovo within the Federal Republic of Yugoslavia", 627 including "meaningful
self-administration". 628
659. In early 1999, the President of the Security Council, speaking on behalf of the
Security Council, in two presidential statements stated that the Council "reaffirms
626
See Security Council resolution 1031 (1995), preambular para. 2, as well as Security Council resolution
1088 (1996), preambular para. 2, reprinted in Annexes 14 & 15 in Documentary Annexes accompanying
this Written Statement. See, also, Security Council resolution 1144 (1997), preambular para. 2. For more,
see Chapter6, Section E.
627See Contact Group Statement on Kosovo of 24 September 1997 (emphasis added), reprinted in Weller,
op.cit., p. 234. This formula was repeated in subsequent Contact Group statements on Kosovo, see the
628statements of 25 February 1998 (Moscow) and 9 March 1998 (London), reprinted ind., p. 235.
See Contact Group statements on Kosovo of 25 February 1998 (Moscow) and 9 March 1998 (London),
ibid., pp. 235-236.
244 its commitment to the sovereignty and territorial integrity of the Federal Republic
of Yugoslavia." 629
660. In Security Council resolution 1239 (1999), adopted only weeks before Security
Council resolution 1244 (1999) was adopted, the Council not only again
630
reaffirmed "the territorial integrity and sovereignty of all States in the region",
but in operative paragraphs 2 and 3 also specifically referred to Kosovo as one of
631
the "parts of the Federal Republic of Yugoslavia".
661. On 8 May 1999, during a meeting of the Security Council devoted to discussing
the bombardment of the Chinese embassy in Belgrade, the French representative
referred to the process which was then taking place within the framework of the
G-8 and which laid the groundwork for what was to become Security Council
resolution 1244 (1999). He stressed that the goal of any Security Council decision
would be
"a political process leading to the establishment of an interim
political agreement, involving substantial autonomy for Kosovo,
that fully takes into account the Rambouillet accords, the principles
of the sovereignty and territorial integrity of the Federal Republic
of Yugoslavia and the other countries of the region and the
632
demilitarization of the Kosovo Liberation Army".
662. That same view was endorsed by representatives of a significant number of States
during debates of the Security Council. Thus the representative of Cuba stated that
the task of the Security Council was
629
See UN Doc. S/PRST/1999/5 (29 January 1999), para. 4, and UN Doc. S/PRST/1999/2 (19 January 1999),
para. 10, reprinted in Annexes 31 & 30 respectively.
630Security Council resolution 1239 (1999), preambular para. 7, Annex 19 in Documentary Annexes
accompanying this Written Statement.
631
632Ibid., operative paras. 2 & 3 and preambular paras. 4 & 6.
Statement of Mr. Dejammet (France), UN Doc. S/PV.4000 (8 May 1999), p. 5 (emphasis added).
245 "to find the path towards a just and dignified political solution that
respects the sovereignty and territorial integrity of the Federal
633
Republic of Yugoslavia and all the States of the region".
663. Argentina in tum referred to the
"need to create conditions conducive to a lasting peace, within a
framework based on respect for human rights and for the principles
of the territorial integrity and sovereignty of the Federal Republic
,-y l . ,,634
oJ ugos avia... .
664. In the same vein, China took the position that any settlement of the Kosovo issue
ought to take place "on the basis of respect for the sovereignty and territorial
integrity of the Federal Republic of Yugoslavia", 635 a view that was shared by the
636 637
representatives of Ukraine and Belarus.
665. Similarly, India reiterated that "the sovereignty and territorial integrity of the
international border of the Federal Republic of Yugoslavia is inviolable". 638
666. Germany's ambassador also assumed that any future political solution would be
based on the "sovereignty and territorial integrity of the Federal Republic of
639
Yugoslavia".
633
634Statement by Mr. Rodriguez Parrilla (Cuba), UN Doc. S/PV.4000 (8 May 1999), p. 11 (emphasis added).
Mr. Petrella (Argentina), UN Doc. S/PV.3988, (24 March 1999), p.11 (emphasis added).
635See statements by the representative of China Mr. Qin Huasun (China), UN Doc. S/PV.3989 (26 March
1999), p. 9.
636
Mr. Yelchenki (Ukraine):
"It is necessary to return as soon as possible to a peaceful political seulement on the basis of the
preservation of the sovereignty and territorial integrity of the Federal Republic of Yugoslavia (..., ibid.,
637p. 10.
Mr. Sychon (Belarus):
"The Republic of Belarus reaffirms its position on the seulement of the Kosovo conflict: it should be
based on unconditional respect for the sovereignty and territorial integrity of Yugoslavia (...)", ibid., p.
12.
638Mr. Sharma (India), UN Doc. S/PV.3988 (24 March 1999), p. 15.
639Mr. Kastrup (Germany), ibid., p. 17.
246II. The practice leading to the adoption of Security Council resolution 1244 (1999)
(1) The Statement by the chairman on the conclusion of the meeting of the G-8foreign
ministers at the Petersberg on 6 May 1999
667. One of the first steps towards the adoption of Security Council resolution 1244
(1999) was a statement of the G-8 of 6 May 1999, which also reflected the views
of those G-8 members that were members of the Security Council at the relevant
time on the Kosovo situation and its settlement. One of the core principles of that
statement was the establishment of a political process towards the establishment
of
"an interim political framework agreement providing for a
substantial self-government for Kosovo, taking full account of the
Rambouillet accords and the principles of sovereignty and
territorial integrity of the Federal Republic of Yugoslavia and the
640
other countries of the region..."
(2) The Military Technical Agreement between the International Security Force ("KFOR")
and the Governments of the FRY and /the Republic of Serbia of 9 June 1999
668. The Military Technical Agreement of 9 June 1999 between the International
Security Force ("KFOR") and the Governments of the FRY and its constituent
entity, the Republic of Serbia of which Kosovo formed part, also confirms the fact
that the legal status of Kosovo as a province falling under the sovereignty of the
FRY remained unaltered, and, given the contractual character of the undertaking,
could not be subsequently altered unilaterally.
669. In that regard, it should first be noted that the agreement, on frequent occasions,
refers to "Kosovo" on the one side, and "locations in Serbia outside Kosovo" on
the other, which clearly implies that the parties to the agreement considered
640UN Doc. S/1999/516 (6 May 1999) (emphasis added), also reprinted as Annex 1 to Security resolution
1244 (1999), see Annex 20 in Documentary Annexes accompanying this Written Statement.
247 Kosovo to form part of Serbia (as a constituent entity of the FRY) and thus also of
the FRY. Accordingly, Article II, paragraph 2 of the Military Technical
Agreement states that "[t]he FRY agrees to a phased withdrawal of all FRY forces
641
from Kosovo to locations in Serbia outside Kosovo."
670. Had the parties instead taken the position that Kosovo no longer formed part of
the FRY, they would have simply formulated that any such withdrawal should
take place "from Kosovo to locations in Serbia."
671. Besides, while limiting the right of the FRY to station troops in Kosovo, Article 1,
paragraph 4(a) of the agreement provided that any such provisions were
"...without prejudice to the agreed return of FRY and Serbian personnel [to
Kosovo]..."
672. The fact that the agreement left untouched the sovereignty of the FRY with regard
to Kosovo is finally also confirmed by Article II, paragraph 2 (h) of the
lt provides:
agreement.
"The international security force ("KFOR") will provide
appropriate control of the borders of FRY in Kosovo with Albania
and FYROM until the arriva! of the civilian mission of the UN."
(emphasis added, footnote omitted)
673. The formula "the borders of FRY in Kosovo" clearly shows that the boundaries of
Kosovo with Albania and the Former Yugoslav Republic of Macedonia at the
same time also constitute the external borders of the FRY.
674. The Military Technical Agreement remains in force, notwithstanding the UDI. 642
641
Art. II, para. 2 of the Military Technical Agreement between the International Security Force ("KFOR")
and the Governments of the Federal Republic of Yugoslavia and the Republic of Serbia of 9 June 1999,
UN Doc. S/1999/682 (15 June 1999) (emphasis added), Annex 10 in Documentary Annexes
accompanying this Written Statement.
642See infra paras. 861-864.
248III. Security Council resolution 1244 (1999) guarantees the territorial integrity of
the FRY and contradicts any right of the so-called "Republic of Kosovo" to
unilaterally declare independence
675. It is against this background that Security Council resolution 1244 (1999)
similarly confirms the territorial sovereignty of the FRY. Furthermore it also sets
out the parameters for any future political settlement. These parameters clearly
contradict any possibility of a unilateral change to the legal status of the territory,
and provide for a negotiated settlement to be agreed upon by the two parties
concemed.
676. Security Council resolution 1244 (1999) first and foremost reaffirms the
sovereignty and the territorial integrity of theRY.
677. Preambular paragraph 2 recalls Security Council resolutions 1160 (1998), 1199
(1998), 1203 (1998) and 1239 (1999), all of which had in tum previously
FRY. 643
confirmed the territorial integrity of the
678. Further, preambular paragraph 4 of Security Council resolution 1244 (1999) refers
to the area concemed as "Kosovo, Federal Republic of Yugoslavia" thereby
clearly indicating the conviction of the Security Council that Kosovo forms part of
the FRY.
679. This is particularly significant bearing in mind that earlier drafts of Security
Council resolution 1244 (1999) and in particular drafts adopted by the G-8 on 7
and 8 June 1999 had, in their preambular paragraph C., merely referred to the
situation in "Kosovo". 644
680. Accordingly, this indicates that the formula "Kosovo, Federal Republic of
Yugoslavia" was deliberately introduced and was meant to be more than just a
description of the geographical setting of "Kosovo".
643As to the content of those resolutions see supra para 503 ff. As to the legal identity the FRY and the
Republic of Serbia see supra Chapterection E.
644See Annex 35 in Documentary Annexes accompanying this Written Statement.
249681. The Security Council then, once again, and in line with its own prior practice, 645
reaffirmed in preambular paragraph 10 of Security Council resolution 1244 (1999)
the commitment of the Security Council and of its members to the sovereignty of
the FRY "as set out in the Helsinki Final Act".
682. The Security Council thereby incorporated the content of the Helsinki Final Act in
the resolution. According to Principle III of the Helsinki Final Act, "[t]he
participating States regard as inviolable all one another' s frontiers as well as the
646
frontiers of all States in Europe..."
683. Further, according to Principle I, any change in boundaries may only take place
"... in accordance with international law, by peaceful means and by agreement."
(emphasis added)
684. Preambular paragraph 10 of Security Council resolution 1244 (1999) at the same
time refers to annex 2 thereof, 647 which contains "principles to move towards a
resolution of the Kosovo crisis". These principles were contained in a peace
proposa! submitted to the govemment of the FRY by former Finnish President
Ahtisaari and former Russian Prime Minister Chemomyrdin and which proposa!
648
was formally accepted by the FRY.
685. Annex 2 of Security Council resolution 1244 (1999) not only makes reference to
the territorial integrity of the FRY, as one of the principles to be taken into full
account when establishing interim political agreement for Kosovo (paragraph 8),
but also provides for the establishment of an interim administration under which
645
See supra Section A.(Iabove.
646Helsinki Final Act (emphasis added).
647Annex 2 to Security Council resolution 1244 (1999), Annex 20 in Documentary Annexes accompanying
648this Written Statement.
Annex 2 to Security Council resolution 1244 (1999), ibid.
250 "the people of Kosovo ["la population du Kosovo" in the French
text] can enjoy substantial autonomy within the Federal Republic of
649
Yugoslavia".
686. The territorial integrity of the FRY is also confirmed in Annex 1 to resolution
1244 which reproduces the conclusion of the G-8 meeting of foreign ministers of
6 May 1998 on "the general principles on the political solution to the Kosovo
crisis".650
687. One of the general principles agreed at the meeting was that a political process
towards the establishment of an interim political agreement should take full
account of
"the principles of sovereignty and territorial integrity of the Federal
Republic of Yugoslavia and the other countries of the region". 651
688. This idea of Kosovo enjoying substantial autonomy within the FRY is then, once
again, reiterated in operative paragraph 10 of Security Council resolution 1244
(1999), which authorises the Secretary-General to establish an international civil
presence in Kosovo to provide an interim administration.
689. The principle of respect for the territorial integrity of the FRY is reaffirmed in
operative paragraph 1 of Security Council resolution 1244 (1999) which expressly
refers to annexes 1 and 2. The Security Council, acting under Chapter VII of the
Charter, decided that a political solution to the crisis in Kosovo
"shall be based on the general principles in annex 1 and as further
elaborated in the principles and other required elements in annex
2".
649Ibid., para 5 (emphasis added).
650
Annex 1 to Security Council resolution 1244 (1999), Annex 20 in Documentary Annexes accompanying
this Written Statement.
651Ibid.
251690. As discussed above, the general principles in annex 1 and annex 2 include the
principles of sovereignty and territorial integrity of the FRY.
691. The understanding that Security Council resolution 1244 (1999) reqmres any
future solution to take into account the territorial integrity of the FRY is also
confirmed by statements of members of the Security Council made immediately
prior or after the adoption of Security Council resolution 1244 (1999) including
statements of permanent members of the Security Council, whose agreement was
necessary for the resolution to be adopted.
692. Thus, the representative of the Russian Federation underlined the reaffirmation of
the commitment of all States to the sovereignty and territorial integrity of theFRY
by stating:
"In addition to clearly reaffirming the commitment of all States to
the sovereignty and territorial integrity of the Federal Republic of
Yugoslavia, the draft resolution authorizes the deployment in
Kosovo, under United Nations auspices, of international civil and
security presences with a clearly formulated, concrete mandate." 652
693. The representative of China also underlined that any solution of the question of
Kosovo must respect the sovereignty and territorial integrity of the FRY. He
stated:
"W e stand for peaceful settlement of the question of Kosovo on the
basis of respect for the sovereignty and territorial integrity of the
Federal Republic of Yugoslavia and guarantees of the legitimate
rights and interests of all ethnie groups in the Kosovo region."653
652Mr. Lavrov (Russian Federation), UN Doc. S/PV.4011 (10 June 1999), p. 7, Annex 34 in Documentary
Annexes accompanying this Written Statement
653Mr. Shen Guofang (China), ibid., p. 8 (emphasis added).
252694. He also underlined that the views of the govemment of the FRY are of particular
relevance:
"We are of the view that any proposed solution should take full
account of the views of the Federal Republic of Yugoslavia." 654
695. As a matter of fact, the preservation of the sovereignty and territorial integrity of
the FRY was a conditio sine qua non for China in order not to block with a veto
vote the adoption of Security Council resolution 1244 (1999). ltwas only subject
to this condition that China was willing to abstain and thus allow the draft
resolution to be adopted. As stated by the representative of China:
"The draft resolution before us has failed to fully reflect China's
principled stand and justified concems. In particular, it makes no
mention of the disaster caused by NATO bombing in the Federal
Republic of Yugoslavia and it has failed to impose necessary
restrictions on the invoking of Chapter VII of the United Nations
Charter. Therefore, we have great difficulty with the draft
resolution. However, in view of the fact that the Federal Republic
of Yugoslavia has already accepted the peace plan, that NATO has
suspended its bombing in the Federal Republic of Yugoslavia, and
that the draft resolution has reaffirmed the purposes and principles
of the United Nations Charter, the primary responsibility of the
Security Council for the maintenance of international peace and
security and the commitment of all Member States to the
sovereignty and territorial integrity of the Federal Republic of
Yugoslavia, the Chinese delegation will not black the adoption of
655
this draft resolution."
696. The representative of Argentina specifically addressed a possible final status of
Kosovo. He stated:
654Ibid.
655Ibid., p. 9 (emphasis added).
253 "Secondly, it [Security Council resolution 1244 (1999)] lays the
foundation for a definitive political solution to the Kosovo crisis
that will respect the sovereignty and territorial integrity of the
656
Federal Republic of Yugoslavia."
IV Subsequent practice of United Nations organs confirms the territorial
integrity of Serbia
697. Subsequent practice by United Nations organs also confirms the v1ew that
Security Council resolution 1244 (1999) is based on the guarantee of the territorial
integrity of the FRY.
698. Thus, inter alia, reports of the Secretary-General to the Security Council on the
United Nations Interim Administration Mission in Kosovo from 1999 onwards
referred to Kosovo as forming part of Serbia by using the following formulae:
"Kosovo, Federal Republic of Yugoslavia", "Kosovo, Serbia and Montenegro",
and finally "Kosovo (Serbia)". 657
699. Furthermore, UNMIK Regulation No. 1999/3 of 31 August 1999 "On the
Establishment of the Customs and Other Related Services in Kosovo"
distinguished between the extemal borders of Kosovo on the one hand and the
administrative line dividing Kosovo from the rest of the FRY by providing that
customs would be established "... at the inland customs houses and international
658
borders of Kosovo".
700. Besides, both the Security Council and the Special Representative of the
Secretary-General in Kosovo have upheld the right of the FRY to demarcate its
border, including those parts relating to Kosovo.
656Mr. Petrella (Argentina), ibid., p. 19.
657See e.g. UN Doc. S/1999/1250 (23 December 1999), p. 1, as well as UN Doc. S/2002/1126 (9 October
2002), p. 1 ("Kosovo, Federal Republic of Yugoslavia"), see also UN Doc. S/2003/996 (15 October 2003),
p. 1, UN Doc. S/2004/907 (17 November 2004), p. 1 and UN Doc. S/2005/335 (23 May 2005), p. 1
("Kosovo, Serbia and Montenegro"), and finally UN Doc. S/2007/768 (3 January 2008), p. 1 ("Kosovo
658(Serbia)").
Preamble of UNMIK Regulation 1999/3 (31 August 1999); see also Section 5 thereof. UNMIK regulati
ons are available at http://www.unmikonline.org/regulations/unmikgazette/i.dex.htm
254701. It was for this reason that the Special Representative of the Secretary-General in
2002 declared null and void the "Resolution on the protection of the territorial
integrity of Kosovo" adopted by the Assembly of Kosovo on 23 May 2002. 659
This resolution had attempted to challenge the legality of the border agreement
between Macedonia and the FRY concluded on 23 February 2001. 660 This
Yugoslav-Macedonian agreement had, inter alia, demarcated the Kosovo part of
the Yugoslav-Macedonian border.
702. The Security Council, by way of a Presidential Statement, 661 in turn confirmed
this decision of the Special Representative and reiterated that any such resolution
by the Assembly of Kosovo did not fall within the field of competences of the
Assembly of Kosovo. With regard to the same matter, the Security Council had
previously also emphasized that the said border, as determined by the agreement
662
concluded between Macedonia and the FRY "must be respected by all".
703. These statements when read together confirm conclusively the v1ew of the
Security Council that under the regime established by Security Council in
resolution 1244 (1999), Kosovo continues to form part of the FRY/Serbia and that
it is Serbia, and Serbia alone, that can dispose of any territory forming part of
"Kosovo".
704. This view was also shared by the Secretary-General. Thus, in the exchange of
letters between the Under-Secretary-General for Peace-Keeping Operations and
the Permanent Representative of Serbia and Montenegro to the United Nations
dated 23/ 24 December 2003 on the United Nations Office in Belgrade, the
Under-Secretary-General referred to the content of Security Council resolution
1244 (1999)
659
See UNMIK/PR/740 (23 May 2002), Annex 80 in Documentary Annexes accompanying this Written
Statement.
660Agreement for the delineation of the borderline between the Republic of Macedonia and the Federal
Republic ofYugoslavia (signed 23 February 2001, entered into force 16 June 2001) 2174 UNTS 4.
661
UN Doc. S/PRST/2002/16 (24 May 2002).
662UN Doc. S/PRST/2001/7 (12 March 2001).
255 " by which the United Nations Security Council, acting under
Chapter VII of the United Nations, decided on the deployment in
Kosovo in the Federal Republic of Yugoslavia, (now with the new
name of Serbia and Montenegro )... of... the United Nations Interim
Administration in Kosovo (UNMIK)." 663
B. The Establishment of an International Civil Administration (UNMIK)
705. Acting under Chapter VII of the Charter, the Security Council in resolution 1244
(1999) authorized the Secretary-General to establish an international civil
presence (hereinafter referred to as the "United Nations Mission in Kosovo"
(UNMIK)), the task of which was
"... to provide an interim administration for Kosovo under which
the people of Kosovo can enjoy substantial autonomy within the
Federal Republic of Yugoslavia, and which will provide transitional
administration while establishing and overseeing the development
of provisional democratic self-governing institutions to ensure
conditions for a peaceful and normal life for all inhabitants of
664
Kosovo;".
706. Further, in paragraph 10 of resolution 1244 (1999), the Security Council decided
that UNMIK would, inter alia,
perform civilian administrative fonctions where and as long as required;
organize and oversee the development of provisional institutions for
democratic and autonomous self-government;
transfer its administrative responsibilities to these institutions while
continuing to oversee and support the consolidation of Kosovo's local
provisional institutions;
663Annex 11 in Documentary Annexes accompanying this Written Statement (emphasis added).
664Security Council resolution 1244 (1999), para. 10 (emphasis added), Annex 20 in Documentary Annexes
accompanying this Written Statement
256 support the reconstruction of infrastructure and economic reconstruction;
support humanitarian aid;
maintain civil law and order,
protect human rights, and
assure the return of refugees and displaced persans.
707. Accordingly, as explained in the Secretary-General's Report onUNMIK that was
submitted to the Security Council on 12 July 1999, shortly after resolution 1244
(1999) was adopted:
"The Security Council, in its resolution 1244 (1999), has vested in
the interim civil administration authority over the territory and
people of Kosovo. All legislative and executive powers, including
the administration of the judiciary, will, therefore, be vested in
UNMIK." 665
708. This was reaffirmed in UNMIK Regulation 1999/1 "On the Authority of the
Interim Administration in Kosovo" adopted on 25 July 1999, which is still in
force and which provides that
"[a]ll legislative and executive authority with respect to Kosovo,
including the administration of the judiciary, is vested in UNMIK
and is exercised by the Special Representative of the Secretary
General." 666
709. The paramount administrative and legislative authority of UNMIK in Kosovo was
subsequently confirmed, inter alia, by promulgation of the Constitutional
Framework for Provisional Self-Government in Kosovo by the Special
665UN Doc. S/1999/779 (12 July 1999), para. 35.
666UNMIK/REG/1999/1 (25 July 1999). Subsequent amendments to this regulation retained the quoted
provision, see UNMIK/REG/2000/54 (27 September 2000).
257 Representative of the Secretary-General, expressly acting pursuant to the authority
667
given to him under Security Council resolution 1244 (1999).
710. By means of the Constitutional Framework, the Special Representative
established the Provisional Institutions of Self-Government, and determined their
competences and principles of work. However, the Special Representative
reserved a number of powers and responsibilities for himself including
"[d]issolving the assembly and calling for new elections m
circumstances where the Provisional Institutions of Self
Government are deemed to act in a manner which is not in
conformity with UNSCR 1244 (1999), or in the exercise of the
668
SRSG's responsibilities under that Resolution";
669
"[m]onetary policy";
"[e]xercising powers and responsibilities of an international nature
in the legal field";670
"[c]oncluding agreements with states and international
organizations in all matters within the scope of UNSCR 1244
(1999);" 671
"[e]xternal relations, including with states and international
organisations, as may be necessary for the implementation of his
672
mandate".
711. In addition to reserving certain powers for himself, the Special Representative
reaffirmed his supreme legislative and administrative authority in Kosovo by
ensuring that his conferral of powers on the Provisional Institutions of Self
Government in no way affected or diminished his authority to ensure full
implementation ofresolution 1244 (1999):
667
See Constitutional Framework, Preamble, para. 2, reprinted in Annex 3 in Documentary Annexes accom-
panying this Written Statement.
668Ibid., Art. 8.1 (b).
669Ibid., Art. 8.1 (d).
670Ibid., Art. 8.1 (i).
671
Ibid., Art. 8.1 (m).
672Ibid., Art. 8.1 (o).
258 "The exercise of the responsibilities of the Provisional Institutions
of Self-Government under this Constitutional Framework shall not
affect or diminish the authority of the SRSG to ensure full
implementation of UNSCR 1244 (1999), including overseeing the
Provisional Institutions of Self-Government, its officials and its
agencies, and taking appropriate measures whenever their actions
are inconsistent with UNSCR 1244 (1999) or this Constitutional
673
Framework."
712. One way in which the Special Representative exerc1ses his authority in the
implementation of Security Council resolution 1244 (1999) is by adopting
regulations. These regulations not only provide an interpretation of the resolution,
but also build upon it, thus forming a body of law which, together with resolution
1244 (1999), constitutes the international legal regime applicable to Kosovo.
713. In this regard as well, the supreme authority of the Special Representative is
confirmed by the fact that his regulations take precedence over all other acts in
Kosovo. Already in UNMIK Regulation 1999/1, it was provided that regulations
issued by UNMIK
"[... ] will remain in force until repealed by UNMIK or superseded
by such rules as are subsequently issued by the institutions
established under a political settlement, as provided for in United
Nations Security Council resolution 1244 (1999)". 674
714. Further, the Constitutional Framework, which was issued m the form of a
regulation of the Special Representative and can only be changed by adoption of a
new regulation by the Special Representative, has supremacy over the laws
enacted by the Kosovo Assembly. It specifically provides:
673
Ibid., Chapter 12 (emphasis added). The Constitutional Framework also provides that nothing in it shall
affect the authority ofRunder Security Council resolution 1244 (1999) and the Military Technical
Agreement,ibid., Chapter 13.
674UNMIK/REG/1999/1 (25 July 1999), Section 4 (emphasis added).
259 "In case of conflict between this Constitutional Framework and any
law of the Assembly, this Constitutional Framework shall
675
prevail."
715. A recent confirmation of the supreme administrative and legislative authority of
UNMIK in Kosovo may be found in the judgment of the European Court of
Human Rights in the Behrami v. France and Saramati v. France, Germany and
Norway cases where the Court stated that UNMIK has to provide
"... an interim international administration and its first Regulation
confirmed that the authority vested in it by the UNSC comprised all
legislative and executive power as well as the authority to
676
administer the judiciary ... "
716. This finding by the European Court of Human Rights was informed by a
statement of the United Nations made in the context of these proceedings. The
United Nations position is that UNMIK is
" a subsidiary organ of the UN endowed with all-inclusive
legislative and administrative powers in Kosovo including the
admm1stratlon o Justice .,,677
This statement is in turn in line with Section 1of UNMIK Regulation 1999/1.
717. Consequently, as prescribed by the Security Council in operative paragraph 11 of
Security Council resolution 1244 (1999), and until such time that a final
settlement has been agreed upon by the parties under the supervision of the
Security Council, it is therefore UNMIK which exercises overall legislative and
administrative fonctions in and with regard to Kosovo, while the provisional
675
676UNMIK/REG/2001/9 (15 May 2001), Article 14.1.
European Court of Human Rights, Behrami v. France and Saramati v. France, Germany and Norway,
Decision on admissibility of2 May 2007, para. 70 (emphasis added).
677Ibid., para. 118 (emphasis added), referring to a statement made by the United Nations in the proceedings
before the Court.
260 institutions of Kosovo may solely exercise autonomous self-government fonctions
and may not, in this exercise, act contrary to Security Council resolution 1244
(1999), the Constitutional Framework, and other regulations and decisions issued
by the Special Representative of the Secretary-General.
C. The Establishment of a Security Presence (KFOR)
718. Acting under Chapter VII, the Security Council also authorized Member States
and relevant international organizations to establish a security presence in
Kosovo, i.e. KFOR. It is KFOR, in exercising its mandate under Security Council
resolution 1244 (1999), that is empowered to deter hostilities, establish a secure
environment, ensure public safety, supervise demining, support UNMIK, and
678
conduct border monitoring duties.
719. Thus, as aptly described again by the European Court of Human Rights, KFOR is
679
mandated "(... ) to exercise complete military control in Kosovo".
720. In other words, KFOR was established as, and indeed remams, the ultimate
military and security authority in Kosovo. This is so even after the UDI, as KFOR
"continues to stand ready to deal with unrest or violence, regardless of where it
cornes from". 680
D. The Role of Serbia in Kosovo
721. That Security Council resolution 1244 (1999) is based on the principle that
Kosovo continues to form part of Serbia is also confirmed by the fact that Serbia
678Security Council resolution 1244 (1999), para. 9, Annex 20 in Documentary Annexes accompanying this
Written Statement.
679European Court of Human Rights, Behrami v. France and Saramati v. France, Germany and Norway,
680Decision on admissibility of2 May 2007, para. 70.
Monthly Report to the United Nations on the Operations of the Kosovo Force, UN Doc S/2008/6388of
October 2008 [i.e. after the adoption of the UDI], Annex, para. 28.
261 was recognised as having certain administrative rights with respect to its territory
of Kosovo as well as sovereignty.
722. Operative paragraph 4 of Security Council resolution 1244 (1999) confirms that
the FRY is permitted to station an agreed number of military and police personnel
in Kosovo in order to liaise with UNMIK and KFOR, to mark and clear
minefields, but also in order to maintain a presence at Serb patrimonial sites and at
key border crossings. This is even more relevant since an earlier draft of what was
to become Security Council resolution 1244 (1999) of 7 June 1999 prepared by
681
the G-8 did not contain such a provision.
723. In particular, the two latter fonctions, i.e. the stationing of troops at certain sites as
well as at border crossings, are clear examples not only of the possibility of
exercising official authority by Serbia within the territory of Kosovo, but also the
right to do so in law. Their inclusion demonstrates that the Security Council,
while significantly limiting the right of the FRY to exercise effective control over
Kosovo, still perceived Kosovo as continuing to form an integral part of the FRY
pending a final agreement to be agreed upon by the parties under the supervision
of the Security Council.
724. This approach is further confirmed by the fact that the Security Council did not
regulate the issue of the nationality of persans living in Kosovo.
725. Thus, even after the adoption of Security Council resolution 1244 (1999), the
inhabitants of Kosovo retained their prior nationality, i.e. continued to be
nationals of the FRY.
726. Accordingly, UNMIK Regulation 2000/18 of 29 March 2000 "On travel
Documents" expressly provided in Section 1.2. that a travel document issued by
UNMIK "does not confer nationality upon its holder, nor does it affect in any way
the holder's nationality".
681
See Annex 35 in Documentary Annexes accompanying this Written Statement.
262727. In line with this legal situation, since the adoption of Security Council resolution
1244 (1999) more than 244,843 persons from Kosovo from all ethnie
communities have been granted passports of the FRY/State Union of Serbia and
Montenegro/Serbia respectively, or have since then requested to be released from
their Yugoslav/Serbian nationality in accordance with the domestic law of the
FRY/Serbia. This includes approximately 2,228 persons who have done so after
the adoption of the UDI.
E. The Notions of Substantial Autonomy and Self-Government in Security
Council Resolution 1244 (1999)
728. Security Council resolution 1244 (1999) provides in operative paragraph 10 that
the international civil presence will provide an interim administration for Kosovo
under which the people of Kosovo ["la population" in the French text] can enjoy
substantial autonomy within the FRY and will later establish and oversee the
development of provisional democratic self-governing institutions. Yet, both
terms, i.e. "autonomy within the Federal Republic of Yugoslavia" and "self
government" exclude any form of independence, and even more so exclude a
unilateral declaration of independence.
I The meaning of "autonomy"
729. With regard to the notion of "autonomy", it has to be noted that it was the
Permanent Court of International Justice which emphasized that a grant of
autonomy does not set aside the sovereignty of the territorial State concerned.
Thus the Court stated, when dealing with the Statute of Memel:
"When... Lithuania undertook to secure to that Territory
autonomy ... it certainly was not the intention of the Parties to the
Convention that the sovereignty should be divided between two
bodies which were to exist side by side in the same territory. Their
intention was simply to ensure to the transferred territory a wide
263 measure of legislative, judicial, administrative and financial
decentralization, which should not disturb the unity of the
Lithuanian State and should operate within the framework of
Lithuanian sovereignty.
Whilst Lithuania was to enJoy full sovereignty over the ceded
territory, subject to the limitations imposed on its exercise, the
autonomy of Memel was only to operate within the limits so fixed
and expressly specified." 682
730. Itfurther defined the purpose of autonomy as "the purpose of managing its local
683
affairs as it pleases".
731. In relation to Kosovo in particular, this limitation of the notion of "autonomy" is
further supported by the fact that under Security Council resolution 1244 (1999)
such autonomy is to be granted "within the Federal Republic of Yugoslavia",
which confirms that the Security Council did not mean to question, by providing
for such autonomy, the territorial integrity and overall sovereignty of the FRY. 684
II The meaning of "self-government"
732. Article 76 (b) of the Charter of the United Nations, as was observed by one
distinguished commentator, 685 neatly sets the two concepts of "self-government"
and independence in contrast with one another. It is therefore obvious that the
concepts of self-government on the one hand, and independence on the other, are
mutually exclusive.
733. Self-government has to be understood as the ability of a given community to
administer itself internally, as confirmed by the French text of Article 76 of the
682
Interpretation of the Statute of the Memel Territory (Great Britain, France, Italy, Japan/Lithuania),
Judgment of 11August 1932, PCIJ Series A/B, No. 49, p. 313 (emphasis added).
683Ibid., p. 314 (emphasis added).
684
685See supra paras. 667-696.
See C. Tomuschat, "Yugoslavia's Damaged Sovereignty over the Province of Kosovo", in G. Kreijen et
al. (eds.), State, Sovereignty and International Governance (2002), p. 323 et seq., at 328.
264 Charter which refers to self-government as "... la capacité à s'administrer eux
mêmes".
734. More specifically with regard to Security Council resolution 1244 (1999), it is
again the French text which clarifies that self-government is tantamount to
autonomy and involves no more than the right of the population of Kosovo to
administer itself. Accordingly, the French text of Security Council resolution 1244
(1999) refers in paragraph 10 and annex 2, paragraph 5, to "institutions d'auto
administration", and in paragraph 11 (c) it speaks of "auto-administration
substantielle" or simply refers to "une autonomie substantielle". 686 All these
variations denote nothing more than the regulation of interna! affairs.
735. Accordingly, self-government describes a legal status under which a human
community enjoys full powers to govern its interna! matters while still being
debarred from, for example, conducting its own foreign affairs, which has
constitutionally been allocated elsewhere. 687
736. Thus self-government as such may only be concerned with the administration of a
territory.It does not entail the power to determine, and even less to change, the
international legal status of the territory concerned.
737. This is confirmed by paragraph 11 (a) of resolution 1244 (1999) where the
Security Council decided that the international civil presence will have the
responsibility to promote substantial autonomy and self-government, "taking full
account of annex 2 and of the Rambouillet accords..."
738. In turn, annex 2 to the resolution states that an interim political agreement
providing for substantial self-government for Kosovo should, inter alia, take into
full account the Rambouillet accords and the principles of sovereignty and
territorial integrity of the FRY. This again shows that (substantial) self-
686See Annex I and Annex 2, para. 8, of Security Council resolution 1244 (1999), Annex 20 in Documentary
Annexes accompanying this Written Statement.
687Tomuschat, op.cit., at p. 328.
265 government was not to be understood as in any way affecting the sovereignty and
territorial integrity of the FRY.
739. Further, the official name of the so-called Rambouillet Accords was "Interim
Agreement for Peace and Self-Government in Kosovo", which also indicates that
the content of this document reflects what the parties involved in the negotiation
of its text understood as comprising "self-government".
740. In particular, the Rambouillet Accords recognized the reservation of certain
competences for the FRY as not falling within the notion of "self-government"
including territorial integrity and defence, as well as foreign policy except in
matters that fell within Kosovo's self-governing competences under the
agreement.. 688
741. The self-government in Kosovo is also limited by the fact that it is subject to
oversight by the international civil presence, whose responsibilities, according to
paragraph 1l(c) of Security Council resolution 1244 (1999) include
"[o]rganizing and overseeing the development of provisional
institutions for democratic and autonomous self-government
pending a political settlement, including the holding of elections".
(emphasis added)
742. The practice of the Special Representative of the Secretary General in the
implementation of Security Council resolution 1244 (1999), has also been in line
with this limited understanding of the term "self-government".
743. In particular, the Special Representative of the Secretary-General adopted the
Constitutional Framework for Kosovo "... with a view to the further development
689
of self-government in Kosovo", and decided that "... within the limits defined
688See Rambouillet Accords, UN Doc. S/1999/6(7 June 1999), Chapter I, Article I, paras. 3 & 6(c).
689Constitutional Framework, preamble, para. 6, Annex 3 in Documentary Annexes accompanying this
Written Statement (emphasis added).
266 by UNSCR 1244 (1999), responsibilities will be transferred to Provisional
690
Institutions of Self-Government...".
744. Thus, the competences of the Provisional Institutions of Self-Government were
delegated to them by the Special Representative and, furthermore, this was done
"within the limits defined" by Security Council resolution 1244 (1999).
745. The Constitutional Framework further affirmed that
"the exercise of the responsibilities of the Provisional Institutions of
Self-Government in Kosovo shall not in any way affect or diminish
the ultimate authority of the SRSG for the implementation of
691
UNSCR 1244 (1999)",
and that accordingly
"[t]he Provisional Institutions of Self-Government and their
officials shall:
Exercise their authorities consistent with the provisions of UNSCR
1244 (1999) and the terms set forth in this Constitutional
Framework. .." 692
746. Accordingly, any exercise of the responsibilities of the Provisional Institutions of
Self-Government under the Constitutional Framework may
"not affect or diminish the authority of the SRSG to ensure full
implementation of UNSCR 1244 (1999), including overseeing the
Provisional Institutions of Self-Government, its officials and its
· ,,693
agenc1es.
690Ibid., preamble, para. 7.
691Ibid., preamble, para. 1O.
692
Ibid., Chapter 2.
693Ibid., Chapter 12.
267747. Moreover, whenever the Provisional Institutions of Self-Government do not act in
accordance with Security Council resolution 1244 (1999) and the Constitutional
Framework, the Special Representative of the Secretary General may take
appropriate action. 694In particular, the Special Representative may, and indeed is
required to, uphold the integrity of the legal regime established by the Security
Council by virtue of Security Council resolution 1244 (1999) and make sure that
the Provisional Institutions of Self-Government do not overstep their limits. 695
748. These provisions confirm that the powers of the Provisional Institutions of Self
Government are subject to supervision by the head of UNMIK, which clearly
confirms that the notion of self-government, as used in Security Council
resolution 1244 (1999), in no way permits those institutions to unilaterally
proclaim the independence of Kosovo.
749. It follows that the "self-government" granted to the Provisional Institutions of
Self-Government by virtue of Security Council resolution 1244 (1999) does not
and cannot relate to the international legal status of Kosovo. Instead, it amounts to
the right of the inhabitants of Kosovo to govern themselves internally pending a
final agreement on the permanent status of Kosovo to be reached by the parties
under the supervision of the Security Council. This is confirmed in the preamble
of the Constitutional Framework itself which recalls that Security Council
resolution 1244 (1999)
"envisages the setting-up and development of meaningful self
government m Kosovo pending a final seulement" (emphasis
added).
F. The Political Process Designed to Determine the Future Status of Kosovo
750. Security Council resolution 1244 (1999) provides essential parameters concerning
694Ibid.
695See supra para. 709 ff.
268 - the procedure for reaching a final settlement by the parties; and
- the guiding substantive criteria for any such final settlement.
I Procedural parameters laid down by Security Council resolution 1244 (1999)
(1) Political process and negotiations
751. Security Council resolution 1244 (1999) presupposes that any final settlement
between the parties as to the legal status of Kosovo shall be reached peacefully
and through negotiation.
752. It is for this reason that the Security Council in operative paragraph 11 of Security
Council resolution 1244 (1999) decided that one of the main responsibilities of the
international civil presence would be
"(e) Facilitating a political process designed to determine Kosovo's
future status". (emphasis added)
753. The very term "political process" implies that all parties concemed shall be
involved and that they have to find a mutually agreeable solution through
negotiation.
754. The requirement laid down by the Security Council that a solution as to the final
status of Kosovo must be reached by agreement between the parties is further
confirmed by the fact that the interim situation created by Security Council
resolution 1244 (1999) will only end when authority is transferred from Kosovo's
696
provisional institutions to institutions "established under a political settlement",
whereby the parties will agree on the outstanding issues as to the final status of
Kosovo. It is obvious that "settlement" cannot but mean agreement, not a
unilateral measure taken by one of the parties.
696See Security Council resolution 1244 (1999), op. para. 11 (f), Annex 20 in Documentary Annexes
accompanying this Written Statement.
269755. Most notably, Annex 2, paragraph 8, 2 ndsentence of Security Council resolution
1244 (1999) provides that
"[n]egotiations between the parties for a settlement should not
delay or disrupt the establishment of democratic self-governing
institutions." (emphasis added)
756. Accordingly, the Security Council assumed that negotiations between the parties
would take place in order to bring about a definitive settlement. Italso took it for
granted that these negotiations would take time. Itis only pending the successful
conclusion of the negotiations that the self-governing institutions were to continue
to exercise their rights within the framework and limits of Security Council
resolution 1244 (1999).
(2) Unilateral action is not permitted
757. That the Security Council was well aware that the interim status, pending a
mutually agreed solution, could continue to exist for quite a significant period of
time is obvious from the fact that it did not, unlike in many other cases, limit the
mandate of the international civil and security presences. Rather it provided that
"... the international civil and security presences are established for
an initial period of 12 months, to continue thereafter unless the
Security Council decides otherwise". (emphasis added)
758. It is therefore clear that the Security Council took the position that, pending a
successful conclusion to the negotiations leading to a mutually acceptable
political settlement, the mandate of both the civilian and military presences would
continue and that neither of the parties to the conflict could unilaterally impose a
solution on the other.
270759. This view was expressly confirmed in a "FRY-UNMIK Common Document",
dated 5 November 2001 and signed on behalf of the United Nations by the Special
Representative of the Secretary-General of the United Nations, which inter alia
"[r]eaffirms that the position on Kosovo's future status remains as
stated in UNSCR 1244, and that this cannot be changed by any
697
action taken by the Provisional Institutions of Self-government."
(emphasis added)
760. The Security Council, by way of a Presidential Statement, took note of this
agreement and underlined the need for Security Council resolution 1244 (1999) to
be respected by all parties in its entirety.tated:
"The Security Council welcomes the signing on 5 November 2001
of the UNMIK-FRY Common Document by the Special
Representative of the Secretary-General and the Special
Representative of the President of the Federal Republic of
Yugoslavia and the Government of the Federal Republic of
Yugoslavia and the Government of the Republic of Serbia. This
document is consistent with resolution 1244 (1999) and the
Constitutional Framework for Provisional Self-Government in
Kosovo."
"The Security Council reaffirms the statement of its President of 5
October 2001 (S/PRST/2001/27). lt encourages the further
development of a constructive dialogue between the United Nations
Interim Administration Mission in Kosovo (UNMIK) and the
authorities of the Federal Republic of Yugoslavia. ltemphasizes the
responsibility of the provisional institutions of self-government and
all concerned to respect Jully the final status provisions of
resolution 1244 (1999). lt underlines its continued commitment to
697
Paragraph 5, reprinted in Annex 12 in Documentary Annexes accompanying this Written Statement.
271 the full implementation of resolution 1244 (1999), which remains
the basisfor building Kosovo' sfuture." 698
761. In sum, the FRY-UNMIK Common Document reiterates and confirms the
obligation of the parties contained in Security Council resolution 1244 (1999) to
continue to negotiate and not to attempt to change the status quo unilaterally.
762. The FRY-UNMIK Common Document was also welcomed and endorsed by the
United States 699 and the Member States of the European Union. 700
763. This v1ew was also shared by the members of the Contact Group when they
adopted the "Guiding principles of the Contact Group for a settlement of the status
701
of Kosovo", subsequent to Ambassador Eide's report on the comprehensive
review of the situation in Kosovo submitted to the Security Council on 7 October
2005. This document provided inter alia in its introductory part that
"The Security Council will remain actively seized of the matter.
The final decision on the status of Kosovo should be endorsed by
the Security Council." 702
764. In addition, principle 6 specifically refers to the issue of a possible unilateral
solution, i.e. a solution not based on the consensus of the parties. It stipulated:
"6. The settlement of Kosovo's status should strengthen regional
security and stability. Thus, it will ensure that Kosovo does not
return to the pre-March 1999 situation. Any solution that is
698UN Doc. S/PRST/2001/34 (9 November 2001) (emphasis added), Annex 32 in Documentary Annexes
accompanying this Written Statement.
699
See http://pristina.usembassy.gov/press200l l l06a.html, Annex 67 in Documentary Annexes accompa
nying this Written Statement.
700 See European Union Presidency Statement of 30 July 2002, Annex 69 in Documentary Annexes
accompanying this Written Statement.
701
702UN Doc. S/2005/709, Annex (10 November 2005).
Ibid., p. 2 (emphasis added).
272 unilateral or results from the use of force would be
unacceptable." 703
765. All these statements demonstrate a common understanding that unilateral steps
taken to resolve the status of Kosovo are not allowed under Security Council
resolution 1244 (1999), which presupposes that any solution should be agreed by
the parties and endorsed by the Security Council. Moreover, in the case of the
UNMIK-FRY Common Document, this understanding was not only expressly
accepted by the Special Representative of the Secretary-General who is directly
responsible for implementation of said resolution, but also endorsed by the
Security Council itself.
(3) Obligations of the negotiating parties
766. It should be noted that the requirement to enter into negotiations between the
parties as well as the "political process" envisaged by the Security Council entail
certain obligations for the parties concemed.
767. According to the jurisprudence of the Court, the obligation to negotiate m
international law presupposes that "the negotiations have to be conducted in good
faith".704
768. Further, the Court has in its jurisprudence formulated certain other requirements
that the parties to a negotiating process are bound to respect. Thus in the North
Sea Continental Shelf cases, the Court held that negotiating parties
"are under an obligation so to conduct themselves that the
negotiations are meaningful, which will not be the case when either
703Ibid., p. 3 (emphasis added).
704Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Judgment of IO
October 2002, I.C.J. Reports 2002, p. 424, para. 244.
273 of them insists upon its own position without contemplating any
705
modification of it".
769. The Court reiterated this position m the Gabcîkovo-Nagymaros case where it
further underlined, before repeating the above statement, that
"[i]t is for the Parties themselves to find an agreed solution that
takes account of the objectives of the Treaty, which must be
pursued in a joint and integrated way, as well as the norms of
international environmental law and the principles of the law of
international watercourses. "706
770. Applied to the situation of Kosovo, this means that the two parties to the conflict
must take into account all relevant norms of international law, as set out in
Security Council resolution 1244 (1999), and may not simply disregard the basic
legal arguments brought forward by the other side. It is even less the case that one
of the parties, in the absence of an agreed upon solution, may unilaterally attempt
to impose its own views and enforce its own position by attempting to create afait
accompli on the ground.
771. This v1ew seems to be reflected in a statement made by the representative of
China, who, after the adoption of Security Council resolution 1244 (1999), stated
that
"... any proposed solution should take full account of the views of
707
the Federal Republic of Yugoslavia."
705North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of
Germany v. Netherlands), Judgment of 20 February 1969, I.C.J. Reports 1969, p. 47, para. 85.
706
Gabcikovo-Nagymaros Project (Hungary/Slovakia), Judgment of 25 September 1997, J.C.J. Reports 1997,
707p. 78, para. 141 (emphasis added).
UN Doc. S/PV.4011 (10 June 1999), p. 8, Annex 34 in Documentary Annexes accompanying this Written
Statement.
274772. It is only by taking into account bonafide the views of the other side, and by not
trying to unilaterally impose its own views and create afait accompli, that a party
to ongoing negotiations is fulfilling its obligation to negotiate in good faith.
773. On the other hand, the Court's jurisprudence also confirms that any such
obligation to negotiate in good faith does not require that negotiations should be
successfui7° nor that they must lead to a certain result. It has to be noted,
however, that pending a mutually agreed upon solution under the supervision of
the Security Council, the legal status quo remains as beforehand, i.e. Kosovo
remains subject to the sovereignty of Serbia while being administered by the
international civil and security presences provided for in Security Council
resolution 1244 (1999).
774. It should be noted that even subsequent to the report of President Ahtisaari, and
until December 2007, the parties continued to undertake negotiations on the future
status of Kosovo. Those negotiations were then unilaterally interrupted by the
UDI, only one month after the Security Council had last considered the issue
st
during its 5821 Meeting. Nevertheless, Serbia stands ready, in fulfilment of its
obligations under both general international law and Security Council resolution
1244 (1999) to resume negotiations on a final settlement of the status of Kosovo
at any given moment.
775. In conclusion, under general international law and Security Council resolution
1244 (1999), bath parties to the negotiations on the future status of Kosovo are
under an ongoing obligation to negotiate in good faith and to take into account
international law in order to reach a mutually agreeable solution on the final status
of Kosovo under the supervision of the Security Council. Neither party may,
pending a mutually agreed solution, unilaterally attempt to impose its own views
by trying to create a fait accompli. Pending an agreed solution, the legal status
created by Security Council resolution 1244 (1999) remains unchanged.
708See mutatis mutandis North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark;
Federal Republic of Germany v. Netherlands), Judgment of 20 February 1969, J.C.J. Reports 1969, p. 47,
para. 85.
275 II The substantive parameters laid down by the Security Council in resolution
1244 (1999)
776. Apart from laying down procedural parameters to settle the situation, Security
Council resolution 1244 (1999) also contains substantive benchmarks that the
parties have to abide by, when fulfilling their underlying duty to negotiate in good
faith in order to reach an agreement on the final status of Kosovo.
777. These benchmarks are referred to in operative paragraph 1 of Security Council
resolution 1244 (1999) where the Council
"1. Decides that a political solution to the Kosovo crisis shall be
based on the general principles in annex 1 and as further elaborated
in the principles and other required elements in annex 2".
(1) Princip/es of sovereignty and territorial integrity of Serbia
778. As already discussed, Annexes 1 and 2 of Security Council resolution 1244
(1999) in tum refer to a political process which shall, inter alia, also take full
account of
" the principles of sovereignty and territorial integrity of the
709
Federal Republic of Yugoslavia".
779. It is thus the principles of sovereignty and territorial integrity of Serbia that are of
fondamental relevance for the determination of any future final status of Kosovo.
The meaning and content of these two basic principles of international law, which
are incorporated in Security Council resolution 1244 (1999), has been outlined
710
earlier in this Written Statement.
709See supra Section A(III).
710See supra Chapter 6.
276780. The call for respect of the sovereignty and territorial integrity of Serbia contained
in Security Council resolution 1244 (1999) makes clear that, pending a final
settlement to be agreed between the parties under the auspices of the Security
Council, Serbia is "entitled to maintain the unity of its territory as well as to
exercise governmental powers in that territory and over its citizens" 711 subject
only to the limits of Security Council resolution 1244 (1999) and general
international law.
(2) Rambouillet Accords
781. Apart from the explicit references to the protection of sovereignty and territorial
integrity of the FRY, Security Council resolution 1244 (1999) also refers to the
Rambouillet Accords
782. It is particularly important to note, however, that the Rambouillet Accords
themselves were
"[r]ecalling the commitment of the international community to the
sovereignty and territorial integrity of the Federal Republic of
Yugoslavia". 712
783. Furthermore, the Rambouillet Accords, to which Security Council resolution 1244
(1999) refers, also incorporated the Helsinki Final Act as a legal parameter for
determining the final status of Kosovo. Therefore, by including this reference to
the Helsinki Final Act, the Security Council again considered (as did the drafters
of the Rambouillet Accords) that any such solution shall not lead to an
infringement of the territorial integrity of the FRY, given that the Helsinki Final
713
Act provides that the frontiers of all States in Europe shall be inviolable, and
711V. Santori, "The United Nations Interim Administration Mission in Kosovo and the Sovereignty and
Territorial Integrity of the Federal Republic of Yugoslavia", in Studi di diritto internazionale in onore di
Gaetano Arangio-Ruiz, Vol. 3 (2003), pp. 1689, 1702.
712
Rambouillet Accords, UN Doc. S/1999/648 (7June 1999), Preamble, para. 4.
713Helsinki Final Act, Principle III.
277 that accordingly any change m boundaries presupposes the agreement of the
territorial state concemed. 714
784. In conclusion, the Rambouillet Accords, as the document which should be taken
into account in the political process that would determine Kosovo' s future status,
clearly adopts the principle of the continued territorial integrity and sovereignty of
the FRY over Kosovo.
(3) The practice of the Security Council in other cases confirms this interpretation of
Security Coune il resolution 1244 (1999)
785. The conclusion that Security Council resolution 1244 (1999) prescribes that any
solution should not only be reached by way of negotiations between the parties,
but also that the territorial integrity and sovereignty of the FRY should be
safeguarded, is also confirmed by the continuous practice of the Security Council
with regard to other situations. Thus, the Security Council has either,
like in the case of Namibia and East Timor, and in contrast to the case of
Kosovo, explicitly acknowledged a right to strive for independence;
or
like m the case of Eastern Slavonia, explicitly confirmed the territorial
integrity and sovereignty of the territorial State and provided for a
temporary United Nations administration pending the implementation of a
negotiated settlement between the parties to the conflict.
786. In the case of Namibia, the Security Council in both Security Council resolutions
435 (1978) and 632 (1989) reiterated that its objective was the withdrawal of the
illegal South African administration and to ensure "the early independence of
715
Namibia" and "the early independence of the territory", respectively, to be
achieved with the assistance of the United Nations Transition Assistance Group.
714Ibid., Principle I.
715Security Council resolution 435 (1978), op. para. 3; and resolution 632 (1989), operative para. 2.
278787. Even more telling is a comparison with the case of East Timor. In this case, and in
sharp contrast to Security Council resolution 1244 (1999) on Kosovo, Security
Council resolution 384 (1975) of 22 December 1975 not only expressly refers to
the "people of East Timor", but also recognized "the inalienable right of the
716
people of East Timor to self-determination and independence" and to this end
called upon all States to
"respect the territorial integrity of East Timor as well as the
717
inalienable right of its people to self-determination".
788. Most striking is Security Council resolution 1246 (1999), adopted by the Security
Council on 11 June 1999, i.e. only one single day after Security Council
Resolution 1244 (1999) on Kosovo had been adopted. In this resolution, the
Security Council decided to establish the United Nations Mission in East Timor
(UNAMET) to organize and conduct a popular consultation
"in order to ascertain whether the East Timorese people accept the
proposed constitutional framework providing for a special
autonomy for East Timor within the unitary Republic of Indonesia
or reject the proposed special autonomy for East Timor, leading to
East Timor's separationfrom Indonesia ...". 718
789. Itis obvious that the Security Council, had it considered that the population of
Kosovo was similarly entitled to unilaterally separate from the FRY, would have
used in Security Council resolution 1244 (1999) similar, if not identical, language
to the wording that it used only one day later with regard to East Timor. Yet it did
not.
790. Itis therefore not surprising that Security Council resolution 1272 (1999), again in
sharp contrast to Security Council resolution 1244 (1999), took note of the will of
the East Timorese people
716
Security Council resolution 384 (1975), preambular para. 4.
717Ibid., operative para. 1 (emphasis added).
718Security Council resolution 1246 (1999), operative para. 1 (emphasis added).
279 "to begin a process of transition under the authority of the United
719
Nations towards independence".
791. Accordingly the task of the United Nations Transitory Authority in East Timor
(UNTAET) was, unlike that of UNMIK "to support fully the transition [of East
Timor] to independence" (emphasis added). 720
792. The examples of Namibia and East Timor stand in sharp contrast to the practice of
the Security Council with regard to Eastern Slavonia, where the Security Council,
just like in the case of Kosovo, underlined the integrity of the territorial State
concerned, i.e. Croatia, and provided for a temporary United Nations Transitory
Authority in Eastern Slavonia (UNTAES). The only difference from the present
case is that in the case of Eastern Slavonia the parties had already reached an
agreement as to the final status of the area concerned before UNTAES was
established.
793. Just like Security Council resolution 1244 (1999), Security Council resolution
1037 (1996) of 15January 1996 relating to Eastern Slavonia reaffirmed the
" commitment to the independence, sovereignty and territorial
integrity of the Republic of Croatia",
and then referred to the "Basic Agreement on the Region of Eastern Slavonia,
Baranja and Western Sirmium between the Government of the Republic of
721
Croatia and the local Serbian community" agreed upon by the parties as
providing the mechanism to bring about a political settlement of the dispute.
719
720Security Council resolution 1272 (1999), preambular para. 3 (emphasis added).
See e.g. Security Council resolution 1338 (2001), op. paras. 3 and 4:
"3. Requests the Special Representative of the Secretary-General to continue to take steps to delegate
progressively further authority within the East Timor Transitional Administration (ETTA) to the East
Timorese people until authority is fully transferred to the government of an independent State of East
Timor, as set out in the report of the Secretary-General;
4. Encourages UNTAET, bearing in mind the need to support capacity-building for self-government, to
continue to support fully the transition to independence (... )".
721UN Doc. S/1995/951, Annex (15 November 1995).
280 G. Only the Security Council May Terminate the International Legal Regime
Established by Security Council Resolution 1244 (1999)
794. Given the content and wording of Security Council resolution 1244 (1999) and the
competences of the Security Council under the Charter, it is only the Security
Council itself that may terminate the international legal regime created by
Security Council resolution 1244 (1999).
I Competence of the Security Council to establish an interim territorial
administration under Chapter VII of the UN Charter
795. When adopting Security Council resolution 1244 (1999), the Security Council
was acting under Chapter VII of the Charter of the United Nations, and in
exercising those powers, decided on the deployment of both international civil and
military presences in Kosovo, the responsibilities of which are outlined in
paragraphs 9, 10 and 11 of the said resolution respectively, pending a final status
agreement between the parties to be reached under the supervision of the Security
Council.
796. While initially there might have been some doubt concerning the powers of the
Security Council to provide for an administration on a given territory by the
722
United Nations under Chapter VII of the Charter, there now seems to be
723
consensus that the Security Council can, when acting under Chapter VII, do so.
722
See H. Kelsen, The Law of the United Nations (1951), p. 651 ("... the Organisation is not authorised by the
Charter to exercise sovereignty over a territory which has not the legal status of a trust territory. ").
Moreover, in 1947, Australia contended that Article 24 of the Charter would not support the assumption
by the Security Council of governmental functions with respect to Trieste, see Repertoire of the Practice
of the Security Council, 1946-1951, at 482.
723
See e.g. M. J. Matheson, "United Nations Governance of Postconflict Societies", 95 AJIL (2001), pp. 76,
83-84; M. Bothe/T. Marauhn, "UN Administration of Kosovo and East Timor: Concept, Legality and
Limitations of Security Council-Mandated Trusteeship Administration" in C. Tomuschat (ed.), Kosovo
and the International Community. A Legal Assessment (2002), pp. 217, 231-232; C. Stahn, "International
Territorial Administration in the former Yugoslavia: Origins, developments and challenges ahead", 61
ZaoRV (2001), pp. 107, 129-131; M. Ruffert, "The Administration of Kosovo and East Timor by the
International Community", 50 ICLQ (2001), pp. 61nd 620-622; J. Frowein/N. Krisch, in B. Simma (ed.),
The Charter of the United Nations: A Commentary2 ed. 2002), Vol. I, Art. 41, paras. 20-22.
281797. This v1ew was confirmed by the European Court of Human Rights, which
specifically held that Security Council resolution 1244 (1999) was not only
validly adopted, but that the Security Council could also delegate its powers to
UNMIK and KFOR. The Court considered
"... that Chapter VII provided a framework for the above-described
delegation of the UNSC's security powers to KFOR and of its civil
724
administration powers to UNMIK."
798. This view was later reconfirmed when the same Court stated with regard to the
international administration of Bosnia and Herzegovina that
"[g]iven that the UNSC had, as required, established a "threat to
international peace and security" within the meaning of Article 39
of the UN Charter, it had the power to authorise an international
725
civil administration in Bosnia and Herzegovina".
II Continued validity of Security Council resolution 1244 (1999)
799. The section that follows will demonstrate that the continued validity of Security
Council resolution 1244 (1999), until the Security Council decides otherwise, is
clearly mandated by the text of the resolution, and confirmed in international
practice both, before and after, the adoption of the UDI.
(1) Text of the resolution 1244 (1999) and subsequent practice
800. Pending an agreement on Kosovo, upon which the Security Council would
eventually terminate the mandate of the civil and military presences, the
international legal regime of Kosovo, as established by Security Council
resolution 1244 (1999), remains and indeed must remain unaltered.
724
European Court of Human Rights, Behrami v. France and Saramati v. France, Germany and Norway,
Decision on admissibility of2 May 2007, para. 130.
725European Court of Human Rights, Berié et al. v. Bosnia Herzegovina, Decision on admissibility of 16
October 2007, para. 27.
282801. It is only the Security Council that may alter this interim status quo. Thus,
pending a Security Council resolution deciding otherwise, Kosovo remains
subject to United Nations administration, enjoying a right of self-government,
while at the same time Serbia continues to have sovereignty over the area.
802. The unlimited duration of Security Council resolution 1244 (1999) is first and
foremost confirmed by the fact that the mandate of both the civil and the military
presences is, according to the clear wording of operative paragraph 19 of Security
Council resolution 1244 (1999), not limited intime.
803. This stands in sharp contrast to the practice of the Security Council with regard to
other situations where it had from the very beginning limited the respective
mandates to periods of six or twelve months, which accordingly had to be
renewed in order to remain in force.
804. In addition, in paragraph 21 of the Security Council resolution 1244 (1999), the
Security Council decided to continue to remain actively seized of the matter.
805. Accordingly, as the representative of the United States in the Security Council
expressly stated with regard to Security Council resolution 1244 (1999)
"[i]t is important to note that this resolution [i.eSecurity Council
resolution 1244 (1999)] provides for the civil and military missions
to remain in place until the Security Council affirmatively decides
that conditions existfor their completion." 726
806. As a matter of fact, the responsibilities of UNMIK under paragraph 11 (a) of
Security Council resolution 1244 (1999) include promoting the establishment of
substantial autonomy and self-government in Kosovo "pending a final settlement"
(''en attendant un règlement définitif'). This wording once again demonstrates and
reaffirms that the legal regime set up by Security Council resolution 1244 (1999)
may only corne to an end by a final settlement to be reached by the parties which
726Mr. Burleigh (United States of America), UN Doc. S/PV.4011 (10 June 1999), p. 14 (emphasis added),
Annex 34 in Documentary Annexes accompanying this Written Statement.
283 would then eventually propose to the Security Council to terminate the said
resolution.
807. Similarly, the Security Council has also charged the UNMIK under paragraph 11
(c) of Security Council resolution 1244 (1999) with establishing and overseeing
the development of provisional democratic institutions for self-government
"pending a political settlement".
808. It has also to be noted, that under Security Council resolution 1244 (1999),
operative paragraph 11 (f),UNMIK will oversee the transfer of authority from
Kosovo' s provisional institutions to institutions established "under a political
settlement" ("d'un règlement politique").
809. Thus, any transfer of authority from Kosovo's provisional institutions (which may
only act within the limits laid down by Security Council resolution 1244 (1999) in
any event) to institutions not so limited is dependant on a political settlement,
which necessarily presupposes an agreement between the two parties concerned,
one of which is the territorial State, i.e. the Republic of Serbia.
810. Until such time, i.e. until a political settlement has been reached between the
parties and until the Security Council endorses such settlement, Security Council
resolution 1244 (1999) and the international legal regime it created remains in
force in its entirety.
811. This view is also confirmed by the practice of the Special Representative of the
Secretary-General, given that UNMIK Regulation 1999/1 provides that
regulations issued by UNMIK
"... will remain in force until repealed by UNMIK or superseded by
such rules as are subsequently issued by the institutions established
284 under a political settlement, as provided for in United Nations
Security Couneil resolution 1244 (1999)." 727
812. Similarly, the Special Representative of the Secretary-General during a visit of a
mission of the Security Council to Kosovo, stated that
"[t]he Security Council would determine the future status [of
728
Kosovo] and no party had a right to prejudge it."
813. This view was reconfirmed on behalf of the Security Council by the Head of the
Mission of the Security Council when stating that
"[n]o unilateral steps will determine Kosovo's final status. The
United Nations Security Council will, in consultation with all
concerned, ultimately determine Kosovo's final status." 729
814. Further, this position that any final status may not be unilaterally imposed and that
it consequently presupposes a negotiated settlement between the parties to be
reached within the overall framework of the Security Council, was also confirmed
by the "Agreed Minutes of the Bilateral Meeting in the Context of CEFTA
Enlargement Negotiations agreed upon by Serbia and UNMIK of 20 October
2006". This document provides that:
"5. The conclusion of the Agreement will be without prejudice
to the current status of Kosovo under the United Nations Security
Council Resolution 1244 of 10 June 1999 or the determination of
its final status under the auspices of the United Nations Security
Council." 730
727UNMIK/REG/1999/1 (25 July 1999), Section 4 (emphasis added).
728Report of the Security Council Mission to Kosovo and Belgrade, Federal Republic of Yugoslavia, 14 to 17
December 2002, UN Doc. S/2002/1376 (19 December 2002), p. 4 (emphasis added).
729
730Ibid., Annex I, p. 17.
Annex 13 in Documentary Annexes accompanying this Written Statement.
285815. This again confirms the shared conviction of both Serbia and the United Nations,
represented by UNMIK, that any final status determination is contingent on the
Security Council taking action, and that pending any such action no party can
change the international legal status of Kosovo, as defined in Security Council
resolution 1244 (1999).
(2) Views expressed in the context of the "Ahtisaari Plan"
816. The continued validity of Security Council resolution 1244 (1999) and the
international legal regime of Kosovo it has created, pending an actus contrarius
by the Security Council itself, is also confirmed by the fact that the Special Envoy
of the Secretary-General on Kosovo's future status, former Finnish President
731
Ahtisaari, "urge[d] the Security Council to endorse [his] Settlement proposal"
when submitting it to the Council, thereby implying that such an endorsement was
indeed needed to implement the proposa!.
817. Indeed, Special Envoy Ahtisaari had already taken this position after his very first
visit to Kosovo in 2005. In a press briefing following the visit, he stated:
"In the final analysis it is not me, I have also made it perfectly
clear, it is not me, neither us, who will decide the timing, the
Secretary General has an important role, and finally it is up to the
Security Council to decide how thefuture status will look like." 732
818. Even more telling is the fact that a certain number of States had in July 2007
formally introduced a draft Security Council resolution which would have
replaced Security Council resolution 1244 (1999)7 33 and which would have
terminated the current legal status of Kosovo after a given period. However, the
731UN Doc. S/2007/168 (26 March 2007), para. 16.
732
Press Briefing by UN Special Envoy Martti Ahtisaari and his Deputy Albert Rohan after their first visit to
Kosovo, 23 November 2005, p. 2 (emphasis added), available at www.unmikonline.org.
733S/2007/437 (17 July 2007) (Provisional), see Annex 36 in Documentary Annexes accompanying this
Written Statement.
286 draft resolution was withdrawn after it became obvious that it would not receive
sufficient support within the Security Council.
819. This draft resolution, ifadopted, would have provided that the mandate of the
international civil presence (UNMIK) and the international security presence
734
(KFOR) would have ended 120 days after its adoption. It would have also taken
note of "the declaration of the Kosovo Assembly of 5 April 2007 concerning the
735
Special Envoy's proposals" by which the Assembly of Kosovo had accepted
the proposa! of the Special Envoy.
820. The very fact that this draft resolution was considered necessary, confirms that the
interim legal status of Kosovo, as laid down in Security Council resolution 1244
(1999), including the powers of both UNMIK and KFOR with regard to the
territory, could only be altered by a new Security Council resolution.
821. This was expressly confirmed by the sponsors of said draft resolution, i.e.
Belgium, France, Germany, Italy, the United Kingdom and the United States,
which recognized that an additional Security Council resolution would be
necessary as a legal basis for implementation of the Ahtisaari plan providing for
Kosovo's independence. In a "Statement issued on 20 July 2007 by the co
sponsors of the draft resolution on Kosovo presented to the UNSC on 17 July",
they stated:
"UN Special Envoy Martti Ahtisaari presented his Comprehensive
Proposa! for the Kosovo Status Settlement to the UN Secretary
General on March 26... Since that date we have worked intensively
to achieve a resolution that would allow for this proposa[ to be
taken forward ....We regret, however, that it has been impossible to
secure such a resolution in the UNSC." 736
734
Ibid., operative paras. 5 and 8 respectively.
735Ibid., operative para. 2.
736Annex 37 in Documentary Annexes accompanying this Written Statement (emphasis added).
287822. A fortiori, a decision by a party to the conflict cannot unilaterally undo the
prescriptions contained in Security Council resolution 1244 (1999). Finding
otherwise would endanger the very system of collective security which was set up
by the Charter of the United Nations and would by the same token also put into
question the pivota! role of the Security Council with regard to the maintenance of
international peace and security.
823. Indeed, to accept that the Provisional Institutions of Self-Government could alter
the legal status of Kosovo would be tantamount to setting aside the prerogatives
of the Security Council under the Charter since it was the Security Council which
adopted resolution 1244 (1999) under Chapter VII of the Charter, and thereby
established the international legal regime for Kosovo and provided that this
regime and the mandate of the international presences in Kosovo would continue
until the Council decides otherwise by a new resolution.
(3) Practice of United Nations organs subsequent to the Ahtisaari plan and the UDI
824. This v1ew that the status of Kosovo, being part of the Republic of Serbia,
continues to be governed by Security Council resolution 1244 (1999) and cannot
unilaterally be changed, is also a view shared by organs of the United Nations and
individual Member States including those States that have recognized the
purported independence of the so-called "Republic of Kosovo".
825. The Security Council in its resolution 1785 (2007) adopted on 21 November
2007, i.e. weeks before the UDI was adopted, as well as most recently in its
resolution 1845 (2008) adopted on 20 November 2008, i.e. after the adoption of
the UDI, in identical wording reaffirmed
"its commitment to the political settlement of the conflicts in the
former Yugoslavia, preserving the sovereignty and territorial
288 integrity of all States there within their internationally recognized
borders" 737
'
which, g1ven the aforementioned sequence of events, must necessarily be
understood as a renewed recognition of the territorial integrity of the Republic of
Serbia including Kosovo.
826. In the same vein, the "Report of the Secretary-General on the United Nations
738
Interim Administration Mission in Kosovo" of 15 July 2008, presented to the
Security Council, covers the period from 1 March to 25 June 2008, and thus a
period subsequent to 17 February 2008, the date on which the UDI was adopted.
This report refers to the continued "implementation of the mandate" with regard
to this period,739 as does the Secretary-General' s report dated 17 March 2009 with
regard to the period from 1November 2008 to 9 March 2009. 740
827. The Secretary-General accordingly was and continues to be of the view that the
mandate of UNMIK, based on Security Council resolution 1244 (1999), had not
been set aside by the UDI.
828. Even more expressly, in his "Report on the United Nations Interim Administration
Mission in Kosovo" of 28 March 2008 covering the period from 16 December
741
2007 to 1 March 2008, the Secretary-General drew the attention of the Security
Council to the UDI, and then
"reaffirmed that, pending guidance from the Security Council, the
United Nations would continue to operate on the understanding that
737See Security Council resolution 1785 (2007), preambular para. 2; and resolution 1845 (2008), preambular
para. 2; reprinted in Annexes 27-28 in Documentary Annexes accompanying this Written Statement.
738UN Doc. S/2008/458 (15 July 2008).
739Ibid., para. 1.
740Report of the Secretary-General on the United Nations lnterim Administration in Kosovo, UN Doc.
741S/2009/149 (17 March 2009), para. 1.
UN Doc. S/2008/211 (28 March 2008).
289 resolution 1244 (1999) remains in force and constitutes the legal
frameworkfor the mandate of UNMIK..." 742
829. In his report dated 24 November 2008, as well as in his latest report dated 17
March 2009, the Secretary-General reiterated this same position and reaffirmed
that Security Council resolution 1244 (1999) continues to govem the legal status
of Kosovo. Accordingly, it follows that Kosovo continues to form part of Serbia,
the UDI notwithstanding.
830. Thus, his reports begin by stating that they are submitted pursuant to Security
743
Council resolution 1244 (1999). Most recently, the Secretary-General has also
pointed out that "despite ever-increasing challenges to [UNMIK's] ability to fulfil
its mandate" which result inter alia from the position of Kosovo provisional
authorities that resolution 1244 (1999) "is no longer relevant and that the
institutions of Kosovo have no legal obligation to abide by it", 744 UNMIK
...will continue working towards the advancement of regional
stability and prosperity, based on its continued mandate under
resolution 1244 (1999), in close coordination with the Organization
for Security and Cooperation in Europe (OSCE) and KFOR and in
745
cooperation with authorities in Pristina and Belgrade."
831. The Secretary-General' s report dated 24 November 2008 describes the
demarcation line between Kosovo and the other part of Serbia as "the
Administrative Boundary Line" 746 which, to state the obvious, is clearly different
from an international boundary between two independent States. This distinction
is confirmed by the fact that the Secretary-General, when referring to the mandate
of KFOR, mentions other "boundaries" in contrast to the aforementioned
"administrative boundary line".
742
Ibid., para. 4 (emphasis added).
743UN Doc. S/2008/692 (24 November 2008), para. 1, & UN Doc. S/2009/149 (17 March 2009), pa1..
744UN Doc. S/2009/149 (17 March 2009), para. 4.
745
746Ibid., para. 17.
UN Doc. S/2008/692 (24 November 2008), para. 19.
290832. With regard to UNMIK, the Secretary-General confirms that his Special
Representative "is still formally vested with executive authority under resolution
747
1244 (1999)" while the European Union mission EULEX will act
"under the overall authority of the United Nations, under a United
Nations umbrella headed by my Special representative, and in
accordance with resolution 1244 (1999)", 748
and thus exclusively deriving its authority from Security Council resolution 1244
(1999).
833. This view, that Kosovo is part of Serbia and is still subject to the international
administration established by Security Council resolution 1244 (1999), the UDI
notwithstanding, is also confirmed by the fact that UNMIK continued its work
under the mandate of Security Council resolution 1244 after the UDI.
834. Despite the fact that the declaration constituted a significant challenge to the
administrative authority of UNMIK, 749 it was after its adoption that UNMIK still
approved the Kosovo Budget for 2008, 750and passed another 25 regulations. 751
835. Furthermore, more specifically with regard to Kosovo's extemal status, it was
UNMIK, acting on behalf of Kosovo and exercising its mandate provided for in
Security Council resolution 1244, which inter alia
747Ibid., para. 21.
748Ibid., para. 23.
749
See e.g., Report of the Secretary-General on the United Nations Interim Administration in Kosovo, UN
Doc. S/2008/211 (28 March 2008), para. 30.
750UNMIK/REG/2008/13 (29 February 2008).
751
See Regulation No. 2008/10 (19 February 2008); Regulation No. 2008/11 (22 February 2008); Regulation
No. 2008/12 (27 February 2008); Regulation No. 2008/14 (17 March 2008); Regulation No. 2008/15 (17
March 2008); Regulation No. 2008/16 (20 March 2008); Regulation No. 2008/17 (26 March 2008);
Regulation No. 2008/18 (26 March 2008); Regulation No. 2008/19 (31 March 2008); Regulation No.
2008/20 (21 April 2008); Regulation No. 2008/21 (6 May 2008); Regulation No. 2008/22 (6 May 2008);
Regulation No. 2008/23 (15 May 2008); Regulation No. 2008/24 (16 May 2008); Regulation No. 2008/25
(16 May 2008); Regulation No. 2008/26 (27 May 2008); Regulation No. 2008/27 (27 May 2008);
Regulation No. 2008/28 (29 May 2008); Regulation No. 2008/29 (31 May 2008); Regulation No.
2008/30 (5 June 2008); Regulation No. 2008/31 (5 June 2008); Regulation No. 2008/32 (14 June 2008);
Regulation No. 2008/33 (14 June 2008); Regulation No. 2008/34 (14 June 2008), all available at
http://www.unmikonline.org/regulations/unmikgazette/02english/E2008regs/
E2008regs.htm
291 on 21 July 2008 filed a progress report to the Council of Europe on the
implementation of the Framework Convention for the Protection of
National Minorities (FCNM) in Kosovo; 752
conducted High Level talks with Representatives of the European
Committee for the Prevention of Torture and Inhuman or Degrading
753
Treatment or Punishment (CPT) in Pristinafrom 9 to 11 December 2008;
represented Kosovo in answering to the Committee on Economie, Social
and Cultural Rights on the Implementation of the International Covenant on
Economie, Social and Cultural Rights (ICESCR) in Kosovo in its 41 st
session on JO November 2008. 754
represented Kosovo in the first round of bilateral consultations on trade in
agricultural products in January 2009 following an invitation by the Chair
755
In-Office of the Central European Free Trade Agreement (CEFTA).
and
in the Regional Cooperation Council, where Kosovo is represented by an
756
UNMIK coordinator along with a Kosovo coordinator.
836. Further, as the Secretary-General has noted in his latest report on UNMIK,
"the attendance of Kosovo at Energy Community meetings and
meetings of the Central European Free Trade Agreement (CEFTA)
has been irregular, as Kosovo ministry representatives have
attempted without success to attend some meetings without
757
UNMIK."
837. It should also be mentioned that the Committee for the Rights of the Child, when
dealing with the State report of the Republic of Serbia on 20 June 2008, referred
752Doc. ACFC (2008) 001 (10 December 2008), available at:
http://www.coe.int/t/dghl/monitoring/minorities/3_FCNMdocs/Table_en.asp.
753
754See http://www.cpt.coe.int/documents/srb/2008- l2-15-eng.htm.
See http://www2.ohchr.org/english/bodies/cescr/cesl .htm.
755See UN Doc. S/2009/149 (17 March 2009), para. 28.
756
757Ibid.
Ibid., (emphasis added).
292 to the Committee's request to UNMIK to provide "... information on the
implementation of the Convention [on the Rights of the Child] in Kosovo and
758
Metohija."
st
838. In the same vem, at its 41 session in November 2008, the Committee on
Economie, Social and Cultural Rights recommended
" that UNMIK include the Covenant in the list of directly
applicable human rights treaties in Chapter 3.1 of the Constitutional
Framework for Provisional Self-Government in Kosovo...". 759
839. The Committee thus took it for granted that it is the Constitutional Framework
adopted by the Special Representative of the Secretary-General under its authority
based on Security Council resolution 1244 (1999) that continues to govern the
exercise of governmental authority in Kosovo.
840. The fact that it is UNMIK that continues to represent Kosovo in external matters
falling within its powers of administration of the territory is also confirmed by the
practice of the International Criminal Tribunal for the former Yugoslavia (ICTY).
Thus, where provisional release is granted to an accused from Kosovo, subject to
certain conditions, it is UNMIK that is requested to guarantee that the said
conditions are being met. Accordingly on 9 February 2009, i.e. almost one year
after the UDI, the ICTY Appeals Chamber requested UNMIK to meet the accused
Mr. Bajrush Morina at Pristina airport, to accompany him to his home, to instruct
him about the conditions of provisional release he had to abide by, and to ensure
that he would surrender his passport to UNMIK and regularly report to UNMIK
police, and finally to eventually return him to Pristina airport in order to be
760
returned to the Hague.
758UN Doc. CRC/C/SRB/CO/1 (20 June 2008), para. 6.
759
760UN Doc. E/C.12/UNK/CO/1 (19 November 2008), para. 9 (emphasis added).
ICTY, Prosecutor v. Haraqija and Marina, IT-04-84-R77.4-A, Decision on Motion of Bajrush Morina for
Provisional Release, 9 February 2009, para. 12.
293841. Finally and most recently, it was the Security Council itself, which, through its
President on 26 November 2008, after having welcomed the report of the
Secretary General of 24 November 2008, also welcomed "the cooperation
between the UN and other international actors, within theframework of Security
Council resolution 1244 (1999)", 761 which again presupposes the continued
applicability of the said resolution in its entirety.
842. The United Nations organs have applied the same approach, mutatis mutandis,
with regard to the security presence of KFOR.
843. Thus, in a letter dated 16May 2008 from the Secretary-General to the President of
762
the Security Council, the Secretary-General "[p]ursuant to Security Council
763
resolution 1244 (1999)" conveyed a report on the international security
presence in Kosovo covering the period from 1to 29 February 2008. In this report
KFOR described the fulfilment of its mandate under Security Council resolution
1244 (1999) since the UDI thereby once again confirming the continued validity
of the said resolution, the UDI notwithstanding.
844. This was reiterated in a letter dated 8 July 2008 from the Secretary-General of the
North Atlantic Treaty Organization (NATO) addressed to the United Nations
Secretary-General to which the former attached a report on the operations of the
Kosovo Force covering the period from 1 to 30 April 2008 "[i]n accordance with
paragraph 20 of Security Council resolution 1244 (1999)". 764
845. Since then several other letters were sent to the Security Council by the United
Nations Secretary-General where he, expressly acting pursuant to Security
Council resolution 1244 (1999), conveyed reports on the fulfilment of the Security
761UN Doc. S/PRST/2008/44 (26 November 2008), para. 2 (emphasis added), Annex 33 in Documentary
Annexes accompanying this Written Statement.
762UN Doc. S/2008/331 (16 May 2008).
763
Ibid., p. 1.
764UN Doc. S/2008/477 (22 July 2008), p. 2.
294 765
Council mandate of KFOR, which agam confirms that Security Council
resolution 1244 (1999) remains in force in all of its aspects.
846. The Secretary-General of the United Nations confirmed this position most
recently in his report of 24 November 2008, in which he referred to the fact that
KFOR will continue its security mandate throughout Kosovo, including with
respect to the boundaries in accordance with Security Council resolution 1244
(1999).766
847. In his report of 17 March 2009, the Secretary-General also noted "the
commitment of EULEX to fully respect resolution 1244 (1999)" 767 Indeed,
EULEX reports about its activities to the Secretary-General of the United
Nations. 768
(4) Statements ofmembers of the Security Council
848. Members of the Security Council have, on various occasions, expressed the view
that Security Council resolution 1244 (1999) remains fully in force and valid, the
UDI notwithstanding.
849. Thus, immediately after the UDI the representative of the Russian Federation
stated that
" resolution 1244 (1999) remams fully in force and that in
accordance with it the Secretary-General' s Special Representative
and Head of the United Nations Interim Administration Mission in
Kosovo (UNMIK) must continue to carry out fonctions and
765See e.g. UN Doc. S/2008/549 (12 August 2008), p. 1; UN Doc. S/2008/600 (12 September 2008), p. 1;
UN Doc. S/2008/638 (8 October 2008), p.
766
767See UN Doc. S/2008/692 (24 November 2008), para. 44.
UN Doc. S/2009/149 (17 March 2009), para. 37
768Ibid., Annex I.
295 responsibilities of the provisional administration of Kosovo
assigned to the Mission ..." 769
850. The representative of China took the same position and confirmed that
"Security Council resolution 1244 (1999) remains the political and
legal basis for the settlement of the Kosovo issue. Prior to the
adoption of any new resolution by the Council, all efforts and
actions for the settlement of this issue should conform to the
770
relevant provisions of resolution 1244 (1999)."
851. This view was also shared by the representative of Indonesia stating on the same
occasion that "[t]he Security Council should ensure that the provisions of the United
Nations Charter and Council resolution 1244(1999) are fully respected." 771
(5) Statements by other States
852. A similar approach confirming the continued applicability of Security Council
resolution 1244 (1999) was taken by individual States, including States that have
recognized the so-called "Republic of Kosovo". Thus, for example, the German
govemment stated in May 2008 that "Security Council resolution 1244 (1999)
will remain in force until the adoption of a subsequent resolution by the UN
772
Security Council".
853. Further, India, in a joint statement with the Russian Federation and China on May
15, 2008 unequivocally stated that
769Mr. Churkin, (Russian Federation), UN Doc. S/PV.5839 (18 February 2008), p. 6.
770
771Mr. Wang Guangya (China), ibid., p. 8.
Mr. Natalegawa (Indonesia), ibid., p. 12
772See Deutscher Bundestag Drucksache 16/9287 [German Parliament, Doc. 16/9287] (27 May 2008), p.2,
Annex 74 in Documentary Annexes accompanying this Written Statement. Translation of the German
original, which reads as follows:
"Bis zum Beschluss einer Folgeresolution durch den VN-Sicherheitsrat gilt die Sicherheitsratsresolution
1244 (1999) fort.".
296 "[t]he unilateral declaration of independence of Kosovo is contrary
to the UN Security Council Resolution 1244, which should remain
the legal basis for the settlement of Kosovo issue till new decisions
by the UN." 773
854. The fact that Security Council resolution 1244 (1999) remains in force was also
confirmed by the Bucharest Summit Declaration issued by the Heads of State and
Govemment participating in the meeting of the North Atlantic Council in
Bucharest on 3 April 2008 representing the vast majority countries contributing
troops for the security presence in Kosovo. The Heads of State and Govemment
of NATO States stated:
"We reiterate that KFOR will remain in Kosovo on the basis of
United Nations Security Council Resolution (UNSCR) 1244 to
ensure a safe and secure environment, including freedom of
movement, for all people in Kosovo unless the Security Council
decides otherwise." 774
855. Similarly, the Council of the European Union, in a statement adopted on February
2008 declared that it "... welcomes the continued presence of the international
775
community [in Kosovo] based on UN Security Council resolution 1244".
856. Both texts confirm the conviction of a significant number of States, including
several members of the Security Council, that Security Council resolution 1244
(1999) remains in force, the UDI notwithstanding, for otherwise Security Council
resolution 1244 (1999) could no longer govern the deployment of troops in
Kosovo.
773
Joint Communiqué on the outcome of the Meeting of the Foreign Ministers of the Russian Federation, the
People's Republic of China and the Republic of India (15 May 2005), para. 17, Annex 73 in Documentary
Annexes accompanying this Written Statement, available at http://www.meaindia.nic.in/.
774Bucharest Summit Declaration issued by the Heads of State and Government participating in the meeting
of the North Atlantic Council in Bucharest on 3 April 2008, Doc. NATO PR/CP(2008)049 (3 April 2008),
para. 7 (emphasis added), Annex 72 in Documentary Annexes accompanying this Written Statement.
775 t
Council of the European Union, 285sExternal Relations Press Release 6496/08 (18 February 2008), p. 7
(emphasis added), Annex 71 in Documentary Annexes accompanying this Written Statement.
297857. Further, this view is shared by the European Commission which also expressed the
view that Security Council resolution 1244 (1999) remains fully in force, the UDI
notwithstanding. In its Kosovo 2008 Progress Report of 5 November 2008 (i.e.
several months after the UDI), the European Commission accordingly states that
"... United Nations Security Council Resolution 1244/99 (UNSCR
1244/99) provides the international legal framework for Kosovo. It
provides for the deployment of international civil and military
presences in Kosovo, under UN auspices. Itauthorises the Secretary
General of the United Nations (UNSG) to establish an international
776
civil presence to provide an interim administration for Kosovo."
858. Yet any such continued applicability of the prov1s10ns of Security Council
resolution 1244 (1999) relating to KFOR respectively to UNMIK in turn
presupposes that all other parts of Security Council resolution 1244 (1999) also
remain in force, including the interim self-governing status of Kosovo created by
the Security Council in that resolution.
859. Otherwise individual States or groups of States could apply a "pick-and-choose"
approach of freely determining what parts of a given Security Council resolution
would remain in force while others would not, their obligations under the Charter
to abide by binding Security Council resolutions notwithstanding.
860. The quintessential importance of complying with binding decisions of the
Security Council was stressed by the Court in its Advisory Opinion on the Legal
Consequences for States of the Continued Presence of South Africa in Namibia
(South West Africa) notwithstanding Security Council Resolution 276 (1970).
After having determined that the Security Council resolution under consideration
was legally binding under the Charter, the Court continued:
776Commission of the European Communities, Kosovo (under UNSCR 1244/99) 2008 Progress Report, Doc.
SEC (2008) 2697, p. 4, available at http://ec.europa.eu/enlargement/pdf/press_corner/key
documents/reports_nov _2008/kosovo_progress_report_en.pdf.
298 "Thus when the Security Council adopts a decision under Article 25
in accordance with the Charter, it is for member States to comply
with that decision, including those members of the Security Council
which voted against it and those Members of the United Nations
who are not members of the Council. To hold otherwise would be to
deprive this principal organ of its essential functions and powers
under the Charter." 777
(6) Continued applicability of the Military-Technical Agreement of 9 June 1999
861. The understanding that Security Council resolution 1244 (1999) remains fully in
force and legally binding is also confirmed by the further fact that neither party to
the Military-Technical Agreement of 9 June 1999 concluded between the
International Security Force KFOR on the one hand, and the FRY and the
Republic of Serbia, on the other, has taken any step whatsoever to terminate the
said agreement, despite the fact that the agreement takes as a basic starting point
778
the fact that Kosovo forms part of the FRY.
862. Thus, the fact that the parties continue to apply the agreement, which in tum is
closely intertwined with the continued applicability of Security Council resolution
1244 (1999), again demonstrates and confirms that Kosovo continues to form part
of Serbia and that its legal interim status is still govemed by the parameters of
said resolution, the UDI notwithstanding.
863. It is also telling that even States that have recognized the independence of Kosovo
continue to recognise that the Military-Technical Agreement providing for the
stationing of troops in Kosovo as part of the FRY/ the Republic of Serbia remains
in force and serves as an additional legal basis for the deployment of troops in
Kosovo.
777Nambia, p. 54, para. 116 (emphasis added).
778On the continuity between the FRY and the Republic of Serbia, see supra Chapter 1, Section E.
299864. This is exemplified by the request of the government of the Federal Republic of
Germany addressed to the German Parliament for a continued participation of
German troops in KFOR dated May 27, 2008, i.e. subsequent to the UDI. 779This
request referred to the continuation of the German participation in KFOR
"... on the basis of Security Council resolution 1244 (1999) and the
Military-Technical Agreement between the International Security
Presence (KFOR) and the governments of the Federal Republic of
Yugoslavia (now: Republic of Serbia) and that of the Republic of
780
Serbia of 9 June 1999".
H. Conclusions
865. From the above the following conclusions may be drawn:
(i) The Security Council, acting under Chapter VII of the Charter, adopted
Security Council resolution 1244 (1999) and created an international legal
regime for Kosovo pursuant to which this Serbian territory is administered
by an international civil presence, while security is provided by an
international security presence.
(ii) The territorial integrity and sovereignty of the FRY with respect to the
territory of Kosovo was confirmed in Security Council resolution 1244
(1999), as well as in the practice of the United Nations and its Member
States prior and subsequent to the adoption of the said resolution. The
principle of the territorial integrity and sovereignty of the FRY 781forms an
inherent part of the international legal regime for Kosovo.
779See Deutscher Bundestag Drucksache 16/9287 [German Parliament, Doc. 16/9287] (27 May 2008),
Annex 74 in Documentary Annexes accompanying this Written Statement.
780
Ibid., p.1; emphasis added. The German original reads as follows:
,,Antrag der Bundesregierung Fortsetzung der deutschen Beteiligung an der internationalen
Sicherheitsprasenz im Kosovo auf der Grundlage der Resolution 1244 (1999) des Sicherheitsrates der
Vereinten Nationen vom 10. Juni 1999 und des Militarisch-Technischen Abkommens zwischen der
internationalen Sicherheitsprasenz (KFOR) und den Regierungen der Bundesrepublik Jugoslawien (jetzt:
781Republik Serbien) und der Republik Serbien vom 9. Juni99".
On the continuity between the FRY and the Republic of Serbia, see supra Chapter 1, Section E.
300(iii) The international legal reg1me for Kosovo compnses Security Council
resolution 1244 (1999), and other acts of the Security Council pertaining to
Kosovo, as well as legal acts adopted by the Special Representative of the
Secretary-General, UNMIK and KFOR, including the Constitutional
Framework.
(iv) Security Council resolution 1244 (1999) provides that the international civil
presence will provide an interim administration for Kosovo under which the
people of Kosovo can enjoy substantial autonomy, and which will establish
and oversee the development of provisional democratic self-governing
institutions.
(v) Both the term "substantial autonomy" and the term "self-government"
exclude any form of independence for Kosovo, and even more so, exclude a
unilateral declaration of independence.
(vi) Security Council resolution 1244 (1999) envisages a political process that
will determine Kosovo' s future status which presupposes that any final
settlement between the parties shall be reached peacefully and through
negotiations. In this regard, Security Council resolution 1244 (1999) lays
down specific procedural and substantive parameters.
(vii) As far as the procedure is concerned, the parties to such negotiations are
under the obligation, both under general international law and Security
Council resolution 1244 (1999), to negotiate in good faith and to take into
account international law, and may not, pending a mutually agreed solution,
unilaterally attempt to impose their own views by attempting to create afait
accompli.
(viii) As for the substance of the final settlement, the Security Council provided
that such settlement should be based inter alia on the principle of territorial
integrity and sovereignty of the FR Y.
(ix) Pending the settlement, the legal situation remams unaltered: Kosovo
remains an integral part of Serbia. Only a final settlement to be agreed upon
by the parties under the auspices of the Security Council can modify this
situation.
(x) Security Council resolution 1244 (1999), and the international legal regime
established on the basis of this resolution, continues to be binding and
301applicable in its entirety until the Security Council decides otherwise. The
continued validity of Security Council resolution 1244 (1999) is confirmed
by the practice of the United Nations organs, including the Security
Council, as well as by the practice of Member States, both before and after
the adoption of the UDI.
302 CHAPTER9
THE UDI IS CONTRARY TO THE INTERNATIONAL LEGAL REGIME
ESTABLISHED BY SECURITY COUNCIL RESOLUTION 1244 (1999)
866. It has been shown in this Written Statement that the UDI is contrary to the
principle of respect for the territorial integrity of States (Chapter 6), while the
right to self-determination provides no basis whatsoever for the UDI (Chapter 7).
Itwill now be shown that the UDI is also contrary to the international legal regime
for Kosovo established by Security Council resolution 1244 (1999) which has
been analyzed in the previous chapter. In particular, it will be demonstrated that
the UDI
(i) constitutes an ultra vires act of the Provisional Institutions of Self
Government;
(ii) contravenes the paramount administrative authority of UNMIK in Kosovo;
(iii) challenges the competences and authority of the Security Council under
Chapter VII of the United Nations Charter, and
(iv) constitutes an attempt to unilaterally determine the status of Kosovo contrary
to the requirements of Security Council resolution 1244 (1999).
A. The Declaration is an Ultra Vires Act of the Provisional Institutions
of Self-Government
I The UDI
867. The UDI was adopted on 17 February 2008 by the Assembly of Kosovo. 782 For
the purposes of the present discussion some of its provisions will be briefly
recalled.
782
Annex 2 in Documentary Annexes accompanying this Written Statement.
303868. The UDI declares Kosovo
"to be an independent and sovereign state." 783
869. The Assembly of Kosovo also assumed constitutional powers m the UDI, by
stating its intention to
"adoptas soon as possible a Constitution ..." 784
785
Indeed, a "constitution of Kosovo" was subsequently adopted on 9 April 2008.
870. The Assembly also purported to act as a representative of a sovere1gn and
independent State, inter alia, by inviting international missions and by purporting
to establish international relations in the field of implementation of Security
Council resolution 1244 (1999). It stated
"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 also invite and welcome the
North Atlantic Treaty Organization to retain the leadership role of
the international military presence in Kosovo and to implement
responsibilities assigned to it under UN Security resolution 1244
(1999) and the Ahtisaari Plan, until such time as Kosovo
institutions are capable of assuming these responsibilities." 786
871. Similarly, the Assembly purported to undertake international obligations in the
name of Kosovo:
"With independence cornes the duty of responsible membership in
the international community. We accept fully this duty and shall
783
784Ibid., para. 1.
785Ibid., para. 4.
See "Kosovo adopts constitution; U.N. handover June 15", Reuters, 9 April 2008, available at
http://www.reuters.com/articie/homepageCrisis/idUSL09435803._CH_.2400
786UDI, para. 5, Annex 2 in Documentary Annexes accompanying this Written Statement.
304 abide by the principles of the United Nations Charter, the Helsinki
Final Act, other acts of the Organization on Security and
Cooperation in Europe, and the international legal obligations and
principles of international community that mark relations among
787
states..."
"We hereby undertake the international obligations of Kosovo,
including those concluded on our behalf by the United Nations
Interim Administration Mission in Kosovo (UNMIK) and treaty
and other obligations of the former Socialist Federal Republic of
Yugoslavia to which we are bound as a former constituent part,
including the Vienna Conventions on diplomatie and consular
relations. (...) We intend to seek membership in international
organisations, in which Kosovo shall seek to contribute to the
788
pursuit of international peace and stability."
872. The Assembly also purported to establish Kosovo's "international borders" by
stating that
"Kosovo shall have its international borders as set forth in Annex
VIII of the Ahtisaari Plan, and shall fully respect the sovereignty
and territorial integrity of all our neighbours."89
II The scope of powers of the Provisional Institutions of Self-Government, in
particular the Assembly
873. As already discussed in Chapter 8, Section B, the scope of powers of Kosovo
institutions has been determined by Security Council resolution 1244 (1999) and
subsequent regulations issued by the Special Representative of the Secretary
General in implementing the resolution, most importantly by the Constitutional
Framework.
787
Ibid., para. 8.
788Ibid., para. 9.
789Ibid., para. 8
305874. According to Security Council resolution 1244 (1999), the scope of powers of
Kosovo institutions is determined by the notions of "substantial autonomy" and
"self-government". As has been demonstrated in Chapter 8, Section E, these
notions exclude any form of independence. Likewise, they exclude any exercise,
by Kosovo institutions, of competences related to the international legal status of
Kosovo. Rather, they are limited to providing a system in which the inhabitants of
Kosovo are able to govern themselves internally in a meaningful way.
875. The Special Representative of the Secretary General in Kosovo, pursuant to the
790
authority given to him by Security Council resolution 1244, adopted the
Constitutional Framework which established the Provisional Institutions of Self
791
Government in Kosovo and transferred certain limited powers to them. These
powers must be exercised
"consistent with the provisions of UNSCR 1244 (1999) and the
terms set forth in [the] Constitutional Framework" 792
876. It follows that the Provisional Institutions of Self-Government were created as
part of the international legal regime of Security Council resolution 1244 (1999),
with all their powers deriving from this resolution and the Constitutional
Framework adopted pursuant to it. Accordingly, the powers of the Provisional
Institutions of Self-Government cannot be exercised in a manner that is
inconsistent with this legal regime as interpreted by the Special Representative of
the Secretary-General in Kosovo and, ultimately, the Security Council.
877. The competences of the Provisional Institutions of Self-Government are expressly
set out in the Constitutional Framework, mostly in its Chapter 5. These
competences relate to various fields of activity in interna! affairs but do not
include, inter alia, defence, law-enforcement and control of borders issues.
79
° Constitutional Framework, Preamble, para. 2, Annex 3 in Documentary Annexes accompanying this
Written Statement.
791See supra Chapter 8, Section B.
792Ibid., Chapter 2, para. !(a).
306878. In the field of foreign affairs, the Provisional Institutions of Self-Government
have limited competences, akin to those exercised by other autonomous or
federated entities within many States:
"The Provisional Institutions of Self-Government shall also have
the following responsibilities in the field of external relations:
- international and external cooperation, including the reaching and
finalising of agreements. Such activities shall be coordinated with
793
the SRSG [Special Representative of the Secretary-General]".
In this regard, the Assembly of Kosovo has the competence to consider and
endorse "proposed international agreements within the scope of its
responsz .z1ztzes.,794
879. The Assembly of Kosovo also has the competence to adopt laws and resolutions
in the areas of responsibility of the Provisional Institutions of Self-Government. 795
796
880. As already mentioned, the Special Representative of Secretary-General
reserved certain competences for himself, as well as the general authority to
ensure full implementation of Security Council resolution 1244 (1999), including
overseeing the Provisional Institutions of Self-Government and taking
"appropriate measures" when their actions are inconsistent with the resolution or
797
the Constitutional Framework.
793
794Ibid., Article 5.6.
Ibid., Article 9.1.26 (f) (emphasis added)
795Ibid., Article 9.1.26 (a).
796See supra Chapter 8, Section B, at para. 710.
797
Constitutional Framework, Chapter 12, Annex 3 in Documentary Annexes accompanying this Written
Statement.
307 III The UDI is an ultra vires act in violation of international law
881. By adopting the UDI, the Provisional Institutions of Self-Government acted
outside their competencies as set out in the Constitutional Framework, which
itself derives its force from Security Council resolution 1244 (1999). Their ultra
vires acts were therefore not in accordance with international law, of which
resolution 1244 and UNMIK regulations form part.
882. In the UDI, the Assembly of Kosovo declared Kosovo "to be an independent and
sovereign state" (paragraph 1), thereby purporting to determine the international
legal status of Kosovo. By doing so, the Assembly violated Security Council
resolution 1244 (1999) and the Constitutional Framework.
883. As a "provisional institution for democratic and autonomous self-government" as
provided for in Security Council resolution 1244 (1999), paragraph 11 (c), the
Assembly by its very nature does not have the power to take decisions related to
the international legal status of Kosovo, including proclamations of independence.
Therefore, the Assembly acted ultra vires under resolution 1244 (1999) by
adopting the UDI.
884. By purporting to determine the international legal status of Kosovo, the Assembly
directly encroached upon the competences of the Security Council which, by
virtue of its powers under Chapter VII of the UN Charter, is the only authority
competent to change the international legal regime established by its resolution
798
1244 (1999).
885. As will be discussed below, by unilaterally attempting to determine Kosovo's
status, the Assembly acted contrary to Security Council resolution 1244 (1999)
which provides that this status will be determined by a "final settlement" between
799
the parties that shall be reached by negotiations.
798See infra paras. 904-912.
799See infra paras. 913-927.
308886. Further, the Assembly acted ultra vires under the Constitutional Framework when
it declared that Kosovo is a sovereign and independent State. The Constitutional
Framework does not provide the Assembly with any authority to deal with matters
relating to the international legal status of Kosovo, let alone to declare its
independence. Moreover, its declaration is contrary to an express provision of the
Constitutional Framework which provides that
"Kosovo is an entity under interim international administration."
887. In the UDI, the Assembly also attempted to assume constitutional powers by
stating its intention to "adopt as soon as possible a Constitution ...,soo
888. However, the Assembly does not possess such powers in relation to Kosovo
because, under the international legal regime established by Security Council
resolution 1244 (1999), this is the sole competence of the Special Representative
of the Secretary-General, which he exercised by adopting, inter alia, the
Constitutional Framework. The Constitutional Framework itself provides that it
may be amended only by the Special Representative of the Secretary-General,
while the Assembly's role is confined to the right to request amendments. 801Thus,
the Assembly of Kosovo acted ultra vires when it tried to assume constitutional
powers in the UDI, thereby purporting to abolish and de facto amend the
Constitutional Framework.
889. The Assembly also invited international missions to exercise responsibilities in
relation to Kosovo, including an invitation to NATO to continue to implement its
responsibilities as the international military presence under Security Council
resolution 1244 (1999). In this way, the Assembly purported to act as a
representative of a sovereign and independent state, which is clearly beyond its
competences under Security Council resolution 1244 (1999) and constitutes a
clear defiance of the Security Council. 802
800
UDI, para. 4, Annex 2 in Documentary Annexes accompanying this Written Statement.
801Constitutional Framework, Article 14.3, Annex 3 in Documentary Annexes accompanying this Written
Statement
802See infra Section C.
309890. This also constitutes a clear violation of the Constitutional Framework, which
provides that the Provisional Institutions of Self-Government in Kosovo have
limited competences in the field of foreign affairs, and which must always be
exercised in coordination with the Special Representative of the Secretary
General.803 Inviting international missions, and in particular inviting them to
participate in the implementation of Security Council resolution 1244 (1999) does
not fall within the scope of responsibilities of the Assembly and it does not have
any powers in this regard. On the contrary, this is a reserved power of the Special
Representative of the Secretary-General, who has a general authority to conduct
804
external relations "as may be necessary for the implementation of his mandate"
and, in particular, the authority to ensure full implementation of resolution 1244
(1999). Indeed,
"the exercise of the responsibilities of the Provisional Institutions of
Self-Government... shall not affect or diminish the authority of the
SRSG [Special Representative of the Secretary-General] to ensure
1244 (1999)..."805
full implementation of UNSCR
891. Further, the Assembly purported to establish Kosovo's "international borders"
(paragraph 8), which is also beyond its competences as an institution of
"autonomous self-government" under Security Council resolution 1244 (1999)
(paragraph ll(c)). The Constitutional Framework also does not provide the
Provisional Institutions of Self-Government with any powers relating to the
determination of international borders. Their only powers related to borders are
"administrative and operational customs activities", 806
803
804See supra para. 878.
Constitutional Framework, Article 8.1.(o), Annex 3 in Documentary Annexes accompanying this Written
Statement
805Ibid., Chapter 12.
806Ibid. Article 5.1.(c).
310 where the custom service belongs to UNMIK, with the Special Representative
having "control and authority" over it, as well as "control over cross
807
border/boundary transit of goods."
808
892. As discussed in Chapter 8, the Special Representative had already prevented the
Assembly of Kosovo from dealing with matters of international borders, when in
2002 he declared null and void an Assembly resolution attempting to challenge a
border agreement concluded between Macedonia and the FRY which, inter alia,
dealt with the Kosovo section of the border between two States. This action by the
Special Representative was endorsed by the Security Council which agreed that
809
the Assembly's decision was outside its competence and thus null and void.
893. In paragraphs 8 and 9 of the UDI, the Assembly also purported to undertake
international obligations in the name of Kosovo and declared its intention to seek
membership of Kosovo in international organizations. Again, this is clearly
beyond the Assembly' s competences as an institution of "autonomous self
government" under Security Council resolution 1244 (1999), paragraph 1l(c). The
Constitutional Framework similarly does not provide the Assembly with the
power to undertake international obligations or to seek membership in
international organizations in the name of Kosovo as a State.
894. In conclusion, the UDI as a whole purports to establish Kosovo as an independent
and sovereign State and to deal with various aspects of independence which is
manifestly an ultra vires act of the Assembly under Security Council resolution
1244 (1999) and the Constitutional Framework. Further, as has been demonstrated
above, individual provisions of the UDI dealing with, inter alia, constitutional
powers, international borders, international relations and implementation of
Security Council resolution 1244 (1999), by themselves constitute an ultra vires
act of the Assembly, contrary to Security Council resolution 1244 (1999) and the
Constitutional Framework.
807
Ibid., Article 8.1.((p).
808See supra paras. 701-702.
809S/PRST/2002/16 (24 May 2002).
311B. The Declaration Contravenes the Paramount Administrative Authority Set Up
by Security Council Resolution 1244 (1999)
895. The Assembly of Kosovo not only acted ultra vires when it adopted the UDI, it
also challenged and contravened the supreme administrative authority of UNMIK
and thereby also violated Security Council resolution 1244 (1999), the
Constitutional Framework and other UNMIK regulations.
896. By declaring Kosovo to be "an independent and sovereign state", the Assembly
purported to exercise fonctions of a sovereign entity acting as if it were the
supreme authority in Kosovo, vested with original legislative powers. This is
contrary to the international legal regime established by Security Council
resolution 1244 (1999) which provides that UNMIK, headed by the Special
Representative of the Secretary-General, is the supreme authority in Kosovo, and
that all legislative and administrative powers are vested in UNMIK alone. While
the Special Representative transferred certain enumerated powers to the
Provisional Institutions of Self-Government by the Constitutional Framework, he
did not, and indeed could not, transfer the power to change the binding
international regime established by Security Council resolution 1244 (1999) and
UNMIK regulations.
897. The UDI also challenges the supreme legislative authority of UNMIK by setting
aside the Constitutional Framework issued by the Special Representative of the
Secretary-General acting pursuant to the authority given to him under Security
Council resolution 1244 (1999). This is contrary to the international legal regime
established by Security Council resolution 1244 (1999) and contrary to the
primacy of the Constitutional Framework over decisions of the Kosovo
810
Assembly. In this regard, it should be recalled that the provisions of the
Constitutional Framework shall prevail over the UDI according to the terms of the
811
Constitutional Framework itself, and the general principle that all legislative
and administrative authority in Kosovo belongs to UNMIK and the Special
810See supra paras. 875-876.
811Constitutional Framework, Article 14.1, Annex 3 in Documentary Annexes accompanying this Written
Statement.
312 Representative of the Secretary-General 812 who adopted the Constitutional
Framework.
898. Further, the UDI encroaches upon the reserved powers of the Special
Representative of the Secretary-General in two ways.
899. First, the UDI contravenes the authority of the Special Representative to oversee
the Provisional Institutions of Self-Government. According to Security Council
resolution 1244 (1999), one of the responsibilities of the international civil
presence 1s
"overseeing the development of provisional democratic self
governing institutions" (paragraph 10, see also paragraph 11 (c)).
900. Consequently, Chapter 12 of the Constitutional Framework expressly reserves the
Special Representative's power of
"overseeing [inter alia] the Provisional Institutions of Self
Government"
and
"taking appropriate measures whenever their actions are
inconsistent with UNSCR 1244 (1999) or this Constitutional
Framework."
901. The claim by the Assembly that it is the sovere1gn and supreme authority in
Kosovo is a limine contrary to this power of oversight and contrary to the power
of the Special Representative to take appropriate measures against recalcitrant
authorities. Consequently, the UDI violates paragraphs 10 and ll(c) of Security
Council resolution 1244 (1999), as well as Chapter 12 of the Constitutional
Framework.
812
See UNMIK/REG/1991/1 (25 July 1999) and UNMIK/REG/2000/54 (27 Sept. 2000), para. 1.1.
313902. Second, as already noted, the Special Representative's reserved powers under the
Constitutional Framework include
"exercising powers and responsibilities of an international nature in
813
the legal field",
as well as
"concluding agreements with states and international organizations
in all matters within the scope ofUNSCR 1244 (1999)", 814
and conducting external relations as may be necessary for the implementation of
his mandate. 815 Further, the Constitutional Framework expressly provides that the
exercise of the responsibilities of the Provisional Institutions of Self-Government
"shall not affect or diminish the authority of the SRSG [Special Representative of
the Secretary-General] to ensure full implementation ofUNSCR 1244 (1999)". 816
903. By adopting the UDI the Assembly purported to act as a representative of a
sovereign and independent State in international relations, including by attempting
to fix Kosovo' s "international borders", by "inviting and welcoming"
international missions to Kosovo to implement Security Council resolution 1244
(1999), and by assuming international obligations and seeking membership in
international organizations. This way the Assembly encroached upon the reserved
powers of the Special Representative of the Secretary-General in the field of
external relations, treaty-making, and implementation of Security Council
resolution 1244 (1999), and thereby contravened his authority under Security
Council resolution 1244 (1999) and the Constitutional Framework.
813Constitutional Framework,, Article 8.l(i), Annex 3 in Documentary Annexes accompanying this Written
Statement.
814
815Ibid., Article 8.1(m).
Ibid., Article 8.l(o).
816Ibid., Chapter 12.
314 C. The UDI Challenges the Competences of the Security Council
904. As demonstrated above, it was the Security Council which, acting under Chapter
VII of the Charter and in order to address the threat to international peace and
security in the region, adopted Security Council resolution 1244 (1999) and for
that very purpose created an interim administration for Kosovo. 817
905. Given that Security Council resolution 1244 (1999) is not limited in time, 818this
interim status continues until a final status agreement has been reached between
the parties under the auspices of the Security Council, or until the Security
Council terminates the international administration of Kosovo and the legal
regime established by Security Council resolution 1244 (1999).
906. Despite continued attempts by the Republic of Serbia to bring about such an
agreement, including far-reaching proposais for autonomy of Kosovo, 819 the
parties have so far been unable to reach any final settlement, as envisaged by
Security Council resolution 1244 (1999).
907. Given this situation, it is for the Security Council, and for the Security Council
alone, to decide whether or not it wishes to terminate Security Council resolution
1244 (1999) and the international legal regime established by it, including the
mandate of the international presences. Pending such termination, which has not
yet occurred, any attempt by either side to alter the legal status quo of the territory
is a flagrant attempt to circumvent the role of the Security Council by disregarding
and contradicting its competences under Chapter VII of the Charter of the United
Nations.
817See Chapter 8, Section B.
818See Chapter 8, Section G(II).
819
See Republic of Serbia Status Proposai, 26 April 2007, Annex 81 in Documentary Annexes accompanying
this Written Statement. See, also,Amendments to Comprehensive Proposai For the Kosovo Status
Seulement by the Negotiating Team of the Republic of Serbia, 2 March 2007, Annex I, Article 1.2.,
available at http://www.media.srbija.sr.gov.yu/medeng/documents/amendments_eng.pdf
315908. As demonstrated above, 820the practice of both the Security Council and the other
organs of the United Nations in implementing Security Council resolution 1244
(1999), as well as the practice of individual Member States, confirms this
understanding, i.e. that the interim legal status created by resolution 1244 (1999)
has not changed, the UDI notwithstanding.
909. In contrast thereto, by declaring Kosovo to be a sovereign State, the UDI purports
to unilaterally terminate Kosovo's interim status which has been created by the
Security Council in an exercise of its prerogatives under Chapter VII of the
Charter.
910. This illegal attempt is evident from paragraph 1 of the UDI by which the
Assembly declares Kosovo to be "an independent and sovereign state." Similarly,
in paragraph 5 of the UDI its authors
"(... )invite and welcome an international civilian presence (... )"
and also
"(... ) invite and welcome the North Atlantic Treaty Organization to
retain the leadership role of the international military presence in
Kosovo".
This wording indicates that, according to the Assembly, it 1s Kosovo's
"invitation" which serves as a legal basis for the respective international
presences, and not the Chapter VII mandate under Security Council resolution
1244 (1999).
911. This encroachment upon the powers of the Security Council is further highlighted
by the fact that, according to paragraph 5 of the UDI, the international security
presence is only supposed to exercise its fonctions
820
See Chapter 8, Section G.
316 "(... ) until such time as Kosovo institutions are capable of
assuming these responsibilities"
without even mentioning any role whatsoever for the Security Council m
eventually terminating the mandate of KFOR.
912. Thus, the UDI flagrantly disregards the very foundations not only of Security
Council resolution 1244 (1999), but also of the system of collective security set up
by the Charter of the United Nations, since it purports to terminate a specific legal
situation and a specific mandate that were created by a binding Security Council
resolution.
D. The UDI is an Attempt to Unilaterally Decide the Outcome of a Political
Process Provided for by Security Council Resolution 1244 (1999)
913. As demonstrated above, 821 Security Council resolution 1244 (1999) lays down
specific procedural parameters concerning how a final settlement with regard to
the situation in Kosovo shall be reached, as well as substantive parameters upon
which the settlement shall be based. The UDI is contrary to both these sets of
requirements.
I The UDI violates procedural parameters laid down in Security Council
resolution 1244 (1999)
914. Security Council resolution 1244 (1999) presupposes and requires the parties to
the conflict to enter into and sustain a political process to be pursued under the
auspices of the Security Council in order to bring about a mutually acceptable
solution.
821See Chapter 8, Section F.
317915. More specifically, it requires the parties to negotiate bona fide so as to eventually
reach an agreement on the final status of Kosovo within the realm of the
substantive parameters also laid down in Security Council resolution 1244
(1999).822
916. By the same token and by providing for such a mechanism, Security Council
resolution 1244 (1999) precludes any unilateral attempt to change the current
interim legal status of Kosovo and thereby also precludes any attempt to create a
fait accompli.
917. Serbia has actively and constructively participated in the political process
envisaged in Security Council resolution 1244 (1999), including in the
negotiations chaired by the Special Envoy of the Secretary-General on Kosovo's
future status, former Finnish President Martti Ahtisaari, 823 and the negotiations
under the auspices of the European Union/United States/Russian Federation
Troika on Kosovo. 824 Serbia has always negotiated in good faith with the
representatives of Kosovo Albanians and international mediators in order to find a
mutually acceptable solution.
918. More specifically, in line with the parameters contained in Security Council
resolution 1244 (1999), it has offered to grant Kosovo a wide degree of autonomy.
Serbia's proposals envisaged a substantial autonomy for Kosovo, in which the
latter would have autonomous legislative, executive and judicial powers, except
with respect to the following competences: foreign policy, border control,
monetary policy, customs policy, final legal recourse in the protection of human
825
rights, and the protection of Serbian religious and cultural heritage.
822
823See supra Chapter 8, Section F(II).
See Report of the Special Envoy of the Secretary-General on Kosovo's future status, UN Doc. S/2007/168
(26 March 2007).
824See Report of the European Union/United States/Russian Federation Troika on Kosovo of 4 December
2007, UN Doc. S/2007/723 (10 December 2007).
825
See Republic of Serbia Status Proposai, 26 April 2007, Annex 81 in Documentary Annexes accompanying
this Written Statement. See, also, Amendments to Comprehensive Proposai For the Kosovo Status
Seulement by the Negotiating Team of the Republic of Serbia, 2 March 2007, Annex I, Article 1.2.,
available at http://www.media.srbija.sr.gov.yu/medeng/documents/amendments_eng.pdf
318919. On the other hand, the representatives of Kosovo Albanians participating in the
negotiation process have, from the very beginning, insisted that the only
acceptable solution would be independence and the abolition of any form of
sovereignty of Serbia over the territory. However, in sharp contrast to this
approach, Security Council resolution 1244 (1999) is premised on the idea that the
sovereignty and territorial integrity of Serbia should be safeguarded.
920. The approach taken by the representatives of the Kosovo Albanians during the
negotiations, who did not provide any leeway for a compromise on the
international legal status of Kosovo, is in line with a long-standing attempt of the
Albanian independence movement to secede this territory from Serbia dating back
to the late 1980s.
921. Notwithstanding this, Serbia, in line with the requirements of Security Council
resolution 1244 (1999) and the general obligation to negotiate in good faith, was
willing and continues to be willing to negotiate on the final status of Kosovo.
922. On the other hand, the authorities in Pristina have by their declaration of
independence not only attempted unilaterally and illegally to change the status
826
quo, but also continue to be unwilling to resume the negotiations.
923. The v1ew that Security Council resolution 1244 (1999) did not allow such
unilateral steps was inter alia shared by the representative of South Africa during
a Security Council debate subsequent to the UDI, when he regretted that this step
"... was not taken in conformity with a legal and political process
827
envisaged by Security Council resolution 1244 (1999)..."
826 See, e.g., the recent statements of the Kosovo prime minister and speaker of the Assembly that they are
only willing to negotiate with Serbia once Serbia recognizes Kosovo's independence "Furore over
customs stamp overshadows Kosovo's independence anniversary", Financial Times, 17 February 2009,
available at http://www.ft.com/cms/s/0/8a20l45e-fc93-ldd-aed8-000077b07658.html; "Kosovo: No
Talks Before Serbia Recognition", Balkan Insight, 11February 2009, available at
http://balkaninsight.com/en/main/news/16600/.
827UN Doc. S/PV. 5839 (18 February 2008), p. 16 Mr. Kumalo (South Africa); emphasis added.
319924. Similarly, the representative of the Russian Federation took the position that
" resolution 1244 (1999) [... ] clearly does not provide for the
possibility of Kosovo unilaterally proclaiming its independence,
since what happens in Kosovo is controlled by the United Nations
and that situation still prevails there from the point of view of
resolution 1244 (1999)..." 828
925. Accordingly, any unilateral action, such as the UDI, runs counter to Security
Council resolution 1244 (1999) and its basic premise that any final settlement
must be reached by way of a political process involving both the parties to the
conflict, and the Security Council.
926. As a matter of fact, any such unilateral action does not only challenge the
authority of the Security Council, but has a bearing upon the very fabric of
international law more generally as the representative of China in the Security
Council noted after the adoption of the UDI:
" to terminate negotiations, g1ve up pursuit of a solution
acceptable to both parties and replace such efforts with unilateral
actions will certainly constitute a serious challenge to the
829
fondamental principles of international law."
927. Apart from being an act contrary to the procedural requirements contained in
Security Council resolution 1244 (1999), the UDI also contradicts the substantive
parameters set out therein, and, in particular, violates the sovereignty and
territorial integrity of Serbia.
828Mr. Churkin (Russian Federation), UN Doc. S/PV.5969 (28 August 2008), p. 17.
829UN Doc. S/PV. 5839 (18 February 2008), p. 8, Mr. Wang Guangya (China).
320 II The UDI violates the sovereignty and territorial integrity of Serbia
928. As demonstrated above, 830 Security Council resolution 1244 (1999) not only
contains procedural but also substantive parameters for a final agreement to be
reached by the parties under the auspices of the Security Council. In particular,
Security Council resolution 1244 (1999) specifically refers to the sovereignty and
territorial integrity of Serbia.
929. Security Council resolution 1244 (1999) has as its very premise the assumption
that Kosovo continues to form part of Serbia, notwithstanding that the territory is
subject to the administration by the international civil and military presences, i.e.
UNMIK and KFOR respectively.
930. It should be also reiterated that Security Council resolution 1244 (1999) does not
contain any provision and not even a hint that it was the intention of the Security
Council to abrogate the sovereignty of Serbia with regard to Kosovo. Rather,
Security Council resolution 1244 (1999) takes as a starting point and repeatedly
guarantees the sovereignty and territorial integrity of Serbia with regard to Kosovo.
831
931. As already discussed, operative paragraph 1 of Security Council resolution
1244 (1999) provides that "a political solution to the Kosovo crisis" shall be based
on the general principles set in Annexes 1 and 2 to the resolution, which include
the principles of sovereignty and territorial integrity of Serbia.
932. Further, it is only within the framework of Security Council resolution 1244
(1991), and thus respecting the overall sovereignty and territorial integrity of
Serbia, that the Provisional Institutions of Self-Govemment may exercise their
limited powers derived from those of the United Nations.
933. In blatant contradiction to these limitations the UDI declared
"Kosovo to be an independent and sovereign state"
830See Chapter 8, Section F (II).
831See supra paras. 776 ff.
321934. The authors of the UDI thereby claimed that Kosovo would no longer form part of
Serbia. This claim is reiterated in paragraph 11 of the same document where the
authors refer to Serbia as one of the States neighbouring Kosovo, thereby
implying that the territory of Kosovo would no longer form part of Serbian
territory.
935. The UDI therefore purports to strip Serbia of approximately 15 percent of its
territory, contrary to Security Council resolution 1244 (1999) and indeed without
any form of Security Council authorization or involvement, and thus the UDI runs
diametrically counter to the guarantee of Serbia' s territorial integrity, as
guaranteed in this same resolution adopted under Chapter VII of the Charter. In
addition, as noted above in Chapter 6, this UDI also constitutes a violation of
general international law.
936. This purported secession of Kosovo from Serbia has not been accepted either by
Serbia, the lawful sovereign, or by the Security Council which established the
international administration of Kosovo.
937. Accordingly, the legal situation, as provided for in Security Council resolution
1244 (1999), must be considered to have remained unchanged. If it were
otherwise, one of the parties concerned, contrary to the procedural arrangements
foreseen in this same resolution, could have not onlyunilaterally altered the status
quo, but would have also challenged the primary competence of the Security
Council for the maintenance of international peace and security under Article 24
of the Charter of the United Nations generally and its prerogatives under Chapter
VII thereof more specifically.
938. Therefore, the legal situation remams as provided for in Security Council
resolution 1244 (1999), i.e. Kosovo remains part of Serbia and thus subject to
Serbian sovereignty whilst being administered by an international civil and
military presence.
322939. This legal situation created by Security Council resolution 1244 (1999) will only
corne to an end once a mutually agreed upon final settlement is reached by the
parties under the auspices of the Security Council, or once the Security Council
otherwise decides to terminate this interim administration.
940. It follows that the UDI violates the territorial integrity and sovereignty of Serbia,
as guaranteed by Security Council resolution 1244 (1999).
E. Conclusion
941. It has been demonstrated that the UDI is contrary to the legal regime established
under Security Council resolution 1244 (1999).
(i) The UDI constitutes an ultra vires act of the Assembly of Kosovo. In
particular,
by declaring Kosovo "to be an independent and sovereign state", the
Assembly acted ultra vires and violated Security Council resolution
1244 (1999) and the Constitutional Framework which provide that the
Assembly is a provisional institution of self-government which does
not have the power to determine the international legal status of the
territory;
by assuming constitutional powers, the Assembly acted ultra vires
under the Constitutional Framework;
by inviting international missions to Kosovo, purporting to fix
Kosovo' s "international borders", purporting to conduct international
relations, purporting to undertake international obligations and to seek
membership in international organizations, the Assembly acted ultra
vires under Security Council resolution 1244 (1999) and the
Constitutional Framework.
(ii) The UDI contravenes the paramount administrative authority in Kosovo
established by Security Council resolution 1244 (1999) by declaring Kosovo
to be "an independent and sovereign state", as well as by encroaching upon
the reserved powers of the Special Representative of the Secretary-General
under the Constitutional Framework.
323(iii) The UDI challenges the competences of the Security Council with respect to
the situation in Kosovo by unilaterally terminating Kosovo's interim status
and the mandate of international presences, both of which were established
by Security Council resolution 1244 (1999).
(iv) The UDI violates procedural requirements for the conduct of negotiations
set forth in Security Council resolution 1244 (1999), by unilaterally and
illegally attempting to change the current interim legal status of Kosovo.
(v) The UDI also violates substantive requirements for the conduct of
negotiations and a final settlement set forth in Security Council resolution
1244 (1999), specifically the territorial integrity and sovereignty of Serbia
which are guaranteed by the said resolution.
324 Part V
NO OTHER JUSTIFICATION FOR THE UNILATERAL DECLARATION OF
INDEPENDENCE UNDER INTERNATIONAL LAW
Chapter 10
NEITHER A "RIGHT TO SECESSION" NOR "LEGAL NEUTRALITY"
AFFORDS SUPPORT TO THE LEGALITY OF THE UNILATERAL
DECLARATION OF INDEPENDENCE
942. The previous chapters have demonstrated that the UDI is not in conformity either
with fondamental principles of international law, such as the principle of respect
for the territorial integrity of States and the right of peoples to self-determination,
or with the international legal regime established by Security Council resolution
1244 (1999). It has also been shown that so-called remedial secession cannot
validly be invoked to legally justify the conformity of the UDI with international
law. This chapter will demonstrate why the UDI purporting to constitute a
secession of Kosovo from Serbia cannot be justified under international law by
the application of any other rule relevant to the issue of secession:
(i) The situation in Kosovo will be distinguished from those situations where
international law recognises secession, namely where
domestic law grants that right to a constituent part of the State
concerned;
the territories seeking secess1on had previously been unlawfully
annexed;
the parent State agrees to the secession of part of its territory and
population, either before or after the secession attempt.
(ii) The relevance of effectiveness will be examined in order to demonstrate
that the purported presence of the so-called constituent elements of
325 statehood is not the only decisive factor in determining the existence of a
new State.
(iii) In any case, the so-called constituent elements of statehood are not present
in the case of Kosovo.
(iv) Recognition by some States of a so-called "Republic of Kosovo" neither
grants retroactive legality to the UDI, nor purges it of itsb initio illegality.
(v) The contemporary international legal system does not remain neutral on the
question of non-consensual secession, so that new States cannot be illegally
created today.
A. None of the Exceptional Situations in Which a Right to Secession Might Exist Are
Present in the Case of Kosovo
943. There have been a number of secessionist attempts from independent States in
different parts of the world. Most of these attempts have failed, and just a few
have resulted in the creation of new States. In some cases this failure was a pure
matter of fact: some or all of the constituent elements allowing the possibility of
the existence of a State simply were not present. In other cases, some or even all
of the material elements were present and even a semblance of a State apparatus
emerged. Nevertheless the creation of a new State met the insurmountable
obstacle of its non-conformity with international law, and no new State was
created. Only in exceptional cases was a new State created and practice shows that
this was the result of its conformity with international law. This conformity can be
manifested in a number of different ways: 1) by the granting of the right to
secession in domestic law, 2) by the particular situation of territories that were
previously illegally annexed to the State from which they later secede, or 3) by the
acceptance by the parent State of the secession of part of its territory and
population, either preceding or within a short time following the secession.
944. As will be seen below, none of these situations apply to the case of Kosovo.
326 I Domestic law did not and does not grant Kosovo a right to secession
945. The first situation where international law acknowledges the right of secession of
part of a State's territory is where the constitution of the parent State itself
envisages that possibility. Indeed, very few constitutions of independent States
recognise the right to secession of its peoples or of the component units that make
832 833
up the State. At present, this is the case with regard to Ethiopia, Uzbekistan,
and St. Kitts-and-Nevis. 834 This was also the case in the former Soviet Union. 835
Similarly, the federal constitution of the former SFRY envisaged the right of the
836
nations of Yugoslavia to secede. The separation of Montenegro from the Union
State of Serbia and Montenegro in 2006 was also foreseen in the Constitution of
837
that Union.
946. A case of secession that has its origin in the granting of such a right by the domestic
law of the parent State does not raise any difficulty in the realm of international law.
It will be in conformity with it because none of the fondamental principles which
are at issue in a case of the creation of new States in contemporary international law
would be infringed. If the constitution itself recognises that the State is constituted
of a plurality of peoples each of which has the competence to exercise external self
determination, then international law cannot but take notice of this. Equally, respect
832
Article 47 of the Constitution of Ethiopia, available in English on the website of the Parliament of the
Federal Democratic Republic of Ethiopia at http://www.ethiopar.net . Article 47(2) provides "Nations,
Nationalities and Peoples within the States enumerated in sub-Article I of this article have the right to
establish, at any time, their own States." This right is exercisable according to the procedures set out in
Article 47(3).
833Article 74 of the Constitution of Uzbekistan, which provides 'The Republic of Karakalpakstan shall have
the right to secede from the Republic of Uzbekistan on the basis of a nationwide referendum held by the
people of Karakalpakstan." Available at
http://www.umid.uz/Main/Uzbekistan/Constitution/constitution.html.
834Article 113 of the Federation of Saint Kitts and Nevis Constitutional Order of 1983, 1983 No.881,
available on the website of the Office of the Prime Minister of St. Kitts and Nevis at
http://www.cuopm.com. This article provides that 'The Nevis Island Legislature may provide that the
island of Nevis shall cease to be federated with the island of Saint Christopher and accordingly that this
Constitution shall no longer have effect in the island of Nevis." This must be done in accordance with the
other provisions of Article 113.
835
Article 72 of the 1977 Constitution of the U.S.S.R. provides that "To every Union Republic is reserved
the right freely to secede from the U.S.S.R."
836The Basic Principle I of the Constitution of the SFRY, 1974, provided that "[t]he nations of Yugoslavia,
proceeding from the right of every nation to self-determination, including the right to secession ... " See
Annex 52 in Documentary Annexes accompanying this Written Statement.
837Article 60 of the Constitutional Charter of the State Union State of Serbia and Montenegro, Annex 58 in
Documentary Annexes accompanying this Written Statement.
327 for the territorial integrity of States is not at issue either, since the State itself
considers that part of its territory can be legally separated from the whole to
constitute a new State. In other words, the State itself has provided for its consent to
secession of part of its territory in its constitution.
947. Neither during the existence of the SFRY, nor afterwards, were the Kosovo
Albanians or the province of Kosovo granted the right of secession. During the
period of the SFRY, only the constituent nations of Yugoslavia were recognized
as holders of the right of self-determination, including the right to secession. 838
The Kosovo Albanians were a national minority ("narodnost", "nationality") and
not one of the nations of Yugoslavia, and as such they did not have the right to
self-determination under the 1974 federal Constitution. This was confirmed by the
Constitutional Court of Yugoslavia in 1991. 839
948. Further, whereas Serbia, a Socialist Republic, was defined as a "state" in Article 3
of the 1974 SFRY Constitution, the Socialist Autonomous Province of Kosovo
was defined as an "autonomous socialist self-managing democratic socio-political
communit[y]" under Article 4. The difference between the two was also
confirmed by the Constitution Court of Yugoslavia when in 1991 it declared
unconstitutional a declaration made by individual members of the Kosovo
Assembly seeking the status of the federal unit for Kosovo. The Court held that
Serbia was a federal unit of the Yugoslav federation (as were Bosnia and
Herzegovina, Croatia, Macedonia, Montenegro, and Slovenia), unlike Kosovo
which was an autonomous province within Serbia. The Court further held that any
change of the legal status of Kosovo required the consent of the Republic of
840
Serbia and changes to the Yugoslav and Serbian constitutions.
949. Further, the Conference on Yugoslavia, created by the European Communities
and afterwards co-chaired by the United Nations at the beginning of the process of
838See, e.g., supra para. 195.
839
See Constitutional Court of Yugoslavia, Decision of 19 February 1991, II-U-broj 87/90, Sluzbeni list
SFRJ [Official Gazette of the SFRY], No. 37/1991, p. 618, Annex 56 in Documentary Annexes
accompanying this Written Statement.
840Ibid. For more, see Chapter 5, Section A, paras. 194-195.
328 dismemberment of the SFRY, did not recognise that Kosovo was entitled to create
its own sovereign State. 841 This was so, despite the request by the leaders of the
Kosovo Albanians to be recognised as a republic, having the same rights as
Bosnia and Herzegovina, Croatia, Macedonia, Montenegro, Serbia and
842
Slovenia. Indeed, the Conference did not even allow the representatives of the
Kosovo Albanians to participate on an equal footing with the Yugoslav
843
Republics. Discussions in which a Kosovo Albanian delegation participated
844
only dealt with issues relating to economic, social and cultural rights.
950. The constitutions that have been enacted subsequently to the dissolution of the
SFRY have also not granted any right of secession to Kosovo, namely the 1990
Constitution of Serbia, the Constitution of the FRY of 1992; the Constitutional
Charter of the Union of Serbia and Montenegro of 2003; and the Constitution of
the Republic of Serbia of 2006, currently in force.
951. Consequently, Kosovo cannot invoke any interna! legal right to secede, either at
the time of the collapse of the SFRY, or at any moment up until the present.
II Kosovo was not illegally integrated into Serbia
952. There have been cases where secess10n occurred after a period of illegal
incorporation of some entities into another State. This has been the dominant
perception of the situation of the Baltic States when they declared their
841
In its Opinion No. 1, the Arbitration Commission only referred to the independence of the existing
Republics within the SFRY, not that of the provinces. Opinion No. 1 of the Arbitration Commission of the
Conference on Yugoslavia, 31 ILM 1494 (1992), Annex 38 in Documentary Annexes accompanying this
Written Statement.
842Letter from Dr. Rugova to Lord Carrington, Chair of the Peace Conference on Yugoslavia, Peace
Conference on Yugoslavia, 22 December 1991, Annex 76 in Documentary Annexes accompanying this
Written Statement.
843In a letter to Dr. Rugova, Lord Carrington specified the participation of a Kosovo delegation in the
conference as follows:If you are planning to be in London at the time of the Conference (from 26-28
August) then I am pleased to inform you that it will be possible for you and your delegation to have access to
the Queen Elizabeth II Conference Centre for meetings, for example with me, Secretary Vance, and other
participants. As it will not, for practical and other reasons, be possible to grant your delegation access to the
Conference chamber itself, the organizers will set up a 'Salle d'ecoute' to which the formal Conference
proceedings will be relayed live", Letter from Lord Carrington, Chairman, Conference on Yugoslavia, to Dr.
I. Rugova, 17August 1992, Annex 77 in Documentary Annexes accompanying this Written Statement.
844
Statement by the Republic of Kosovo to Conference on Yugoslavia, Geneva, 16 September 1992,
reprinted in Weller,. cit., p. 89. See, also, supra Chapter 5, Section D.
329 independence in 1990. As a result, they became Members of the United Nations
and were widely recognised as independent States before the collapse of the
Soviet Union and hence before the other republics.
953. In the case of Eritrea, it was a decision of a United Nations organ, which had the
capacity to decide the fate of the territory, to integrate Eritrea within Ethiopia on
condition of its autonomy and in the framework of a federated State. 845 After a
prolonged period of many decades in which the conditions set out in General
Assembly resolution 390 (V) were not met, the United Nations participated in the
final process that led to the holding of a referendum in which the Eritreans opted
forindependence.
954. What is striking is that in the two situations just depicted, the parent States in both
cases (the Soviet Union and Ethiopia respectively) recognised the independence
of the new States. In the case of Ethiopia, its govemment agreed to the holding of
a referendum, i.e. to the possibility of secession even before this situation actually
846
occurred.
847
955. These cases are not analogous to the situation of Kosovo. As explained above,
most of the territory of what is known as Kosovo today was integrated into Serbia,
with the remaining part being integrated into Montenegro, during the Balkan Wars
of 1912-13, i.e., 34 years after Serbia (and Montenegro) were recognized as
independent States. This was a valid decision recognized by valid international
treaties and without any particular condition. This integration was also
intemationally mandated and intemationally recognized. Since then, and
notwithstanding all the changes that have occurred in the region, Kosovo has been
an integral part of Serbia, both when Serbia was a constituent part of a sovereign
State (Kingdom of the Serbs, Croats and Slovenes, Kingdom of Yugoslavia,
Popular or Socialist Federal Republic of Yugoslavia, FRY, Serbia and
845General Assembly resolution 390 (V), Article I of which provides "Eritrea shall constitute an autonomous
unit federated with Ethiopia under the sovereignty of the Ethiopian Crown."
846
Eritrea/Ethiopia Claims Commission, Partial Award (Civilian Claims) (Eritrea 's Claims), 17 December
2004, available on the website of the Permanent Court of Arbitrationat http://www.pca
cpa.org/showpage.asp?pag_id= 1151, para. 7.
847See supra para. 132.
330 Montenegro), and a sovereign State itself. The only exception was the legally void
annexation of most of the territory of Kosovo to "Greater Albania" under the
Nazi-Fascist occupation during World War IL
956. In sum, the situation of Kosovo is by no means comparable to that of an illegally
annexed territory seeking to recover its independence, or becoming independent
as a result of the denial of the international conditions imposed to the previous
incorporation of a territory to an existing State.
III The parent State has never accepted secession
957. Secession will be in conformity with international law if there is consent from the
parent State. Although there is doctrinal debate on a point of nomenclature,
namely whether such consent given before the accession of the independence
should be called "secession" or "devolution", 848 it is not contested that the
creation of a new State in such circumstance is in accordance with international
law.
958. The same can be said when that consent is granted after a unilateral declaration of
independence by an entity possessing all the constituent elements of a State.
However, there is no such consent when the parent State considers the secession
attempt to be an act against the territorial integrity of the State or not m
conformity with the principle of equal rights and self-determination of peoples.
959. Consent of the parent State renders secession in conformity with international law.
This is a point upon which no discrepancy arises. Examples constitute virtually all
cases of secessionist phenomena having culminated in the actual creation of new
849
States. These examples include the case of Bangladesh, whose independence
850
was recognised by Pakistan on 22 February 1974.
848Crawford, The Creation of States, op.cit., p. 330.
849See the list elaborated in ibid., p. 391, as well in J. Crawford, State Practice and International Law in
Relation to Unilateral Secession: Report to Government of Canada concerning unilateral secession by
850Quebec, 19February 1997, paras. 30-48.
Bangladesh was admitted to the United Nations on 17 September 1974, see General Assembly resolution
3203 (XXIX).
331960. As a matter of course, we are not referring here to the cases of decolonisation.
Newly independent States created by decolonisation are not cases of secession,
since, as recalled by the Declaration on Principles of International Law
"[t]he territory of a colony or other Non-Self-Governing Territory
has, under the Charter, a status separate and distinct from the
territory of the State administering it; and such separate and distinct
status under the Charter shall exist until the people of the colony or
Non-Self-Governing Territory have exercised their right of self
determination in accordance with the Charter, and particularly its
purpose and principles".
961. In the case of Kosovo, no consent of the parent State has ever been granted, either
before the UDI, or subsequently. The contrary is rather the case. Before the
unilateral action taken by the provisional institutions, Serbia made it clear that
Kosovo constituted part of its territory. Following the UDI, Serbia has in turn
851
declared it null and void. It could not be clearer that Serbia does not consent to
the secession of Kosovo.
962. As seen above, neither Serbia (the FRY/Serbia and Montenegro) nor the former
SFRY have ever agreed or consented to recognising the inhabitants of Kosovo as
falling within the category of a "people" entitled to external self-determination, a
path that would have permitted those inhabitants to secede territory from the
parent State. 852
963. In sum, the UDI cannot be justified under international law on the basis that there
was consent of the State holder of territorial sovereignty, either before or after the
UDI was made, either expressly or by inference.
851The unilateral declaration of independence was declared null and void by the Government of Serbia and
the National Assembly of the Republic of Serbia. See Annex 4 in Documentary Annexes accompanying
this Written Statement; see also Letter dated 17 February 2008 from Mr. Boris Tadic, President of the
Republic of Serbia, to the Secretary-General, U.N. doc. A/62/703-S/2008/111, reproduced in Annex 5 in
Documentary Annexes accompanying this Written Statement.
852See supra Chapter 5, especially paras. 194-203.
332 B. Effectiveness Alone 1sNot a Ground for Statehood
964. The present advisory proceedings concern the legal question whether the UDI is
"in accordance with international law" and not the factual issue of whether
Kosovo has an effective government. However, the issue of effectiveness will also
be addressed in this Written Statement as this has been invoked as a justification
for the UDI.
965. While it is difficult to conceive of the creation of a State if the material constituent
elements are not present (a government exercising sovereign authority over a
given territory and its population), it is a completely different idea to affirm that
the mere existence of these elements automatically leads to the existence of a
State. In relation to this latter statement, it will be demonstrated below that
effectiveness perse is not sufficient to justify the creation of a State today. In any
event, it will be shown that there is no effective independent government in
Kosovo. Consequently, effectiveness is not a ground to justify the legality of the
UDI, either before or after the declaration was made.
I The effective presence of the so-called constituent elements of the State does
not suffice in contemporary international law for the creation of a new State
966. Itis common to quote Article 1 of the 1933 Montevideo Convention on Rights
and Duties of States adopted by the ih International American Conference in
order to determine the constituent elements of an independent State:
"The state as a person of international law should possess the
following qualifications: a) a permanent population; b) a defined
territory; c) government; and d) capacity to enter into relations with
the other states."
967. Shortly before the Montevideo Convention, an arbitral tribunal advanced a similar
idea:
333 "un Etat n'existe qu'à la condition de posséder un territoire, une
collectivité d'hommes habitant ce territoire, une puissance publique
s'exerçant sur cette collectivité et ce territoire. Ces conditions sont
reconnues indispensables et l'on ne peut concevoir un Etat sans
853
elles."
968. Sorne decades after, the Arbitration Commission of the Conference on Yugoslavia
also defined these elements, considering:
"that the state is commonly defined as a community which consists
of a territory and a population subject to an organized political
authority, that such astate is characterized by sovereignty". 854
969. As mentioned above, these so-called "constituent elements" must necessarily be
present to invoke the existence of a new State. However, they do not represent per
se a sufficient ground for admitting ipso facto the existence of a new State. 855
They are necessary, but not sufficient, conditions of statehood.
970. International practice reveals a number of examples of entities claiming to be
independent States that are able to demonstrate an actual effectiveness of their
constituent elements, but which nevertheless are not considered to be sovereign
States. The reason for this is that their creation and existence is vitiated by an
infringement of the law. "Manchukuo" was a classic example in the inter-war
period. "Southern Rhodesia" another, during the Cold War era. Contemporary
examples are those of the "Turkish Republic of Northern Cyprus" and
"Somaliland", among others.
853Deutsche Continental Gas Gesellschaft c. Etat polonais, cause n° 1877, 2 (1/2) ZaoRV (1930), part 2:
Documents, p. 22.
854Opinion No. 1, 31 ILM 1494 (1992), Annex 38 in Documentary Annexes accompanying this Written
855Statement.
On this point, see Theodore Christakis, "L'Etat en tant que 'fait primaire': réflexions sur la portée du
principe d'effectivité" in M. G. Kohen (ed),Secession. International Law Perspectives (2006), pp. 138-
170.
334971. The reason why these entities do not exist as States despite their effectiveness is
that their creation or their very existence infringes international law. Such entities
cannot therefore acquire the status of a State, the principal subject of international
law. This is even more so the case today because contemporary international law
contains fondamental principles which are relevant to the creation of States. These
principles are the prohibition of the use of force in international relations, the right
of peoples to self-determination, respect for the territorial integrity of States, non
intervention in the domestic affairs of States, and respect for fondamental human
rights.
972. The assertion that "the creation of States is a matter of pure fact and not of law" is
not accurate. Constant practice clearly goes in the opposite direction,
demonstrating that the creation and extinction of States is not a mere factual
situation: international law acts either to allow one or another situation to occur,
or to prevent it. An example of where international law has allowed the creation of
new States - indeed, where international law has actively favoured it - was the
creation of an impressive number of States through decolonisation. Examples of
where international law has prevented entities from becoming new States are the
non-existence as independent States of "Katanga", "Southern Rhodesia", "Turkish
Republic of Northern Cyprus", "Bougainville", "Republic of Anjuan",
"Somaliland", "Kosova", "Nagorno-Karabakh", among others. Further support for
the assertion that the creation of States is a matter of law and not of fact are
situations in which international law has prevented the extinction of an existing
State despite its lack of effectiveness. Examples include the illegal annexation of
Kuwait in 1990, as well as the collapse of Somalia' s government around this same
period and in the years that have followed.
973. Therefore, contemporary international law does not content itself with
ascertaining the existence of a de facto situation of an entity effectively
controlling a territory and its population, in order to automatically consider it as a
State. The creation of a new State is also contingent on the respect of applicable
rules of international law.
335 II In any event, there is no effective independent government in Kosovo
974. In addition to its non-conformity with international law, the so-called "Republic
of Kosovo" does not fulfil the constituent requirements of a State, as there is no
effective independent government in Kosovo.
975. This fact is demonstrated by the following:
UNMIK continues to act within the territory, together with EULEX.
KFOR continues to be the ultimate military and security authority in the
territory.
Serbia continues to retain its sovereign rights over Kosovo insofar as they
are compatible with Security Council resolution 1244 (1999).
The provisional institutions of self-government, purporting to have become
the organs of an independent State, in fact substantially exercise the same
authority that they have performed previously, on the basis of Security
Council resolution 1244 (1999).
976. In accordance with what is foreseen in Security Council resolution 1244 (1999),
the United Nations Secretary-General has stated that UNMIK continues to be
856 857
deployed in Kosovo. The same is applicable to KFOR. Contrary to the
858
wishes of the so-called "independent" authorities, EULEX was deployed within
the framework of Security Council resolution 1244 (1999) and with the support of
859
Serbia.
977. In order to measure the degree of independence of the authorities of a secessionist
entity, the starting point must be the existing situation at the time of the UDI.
Such a declaration is supposed to initiate a major change in the factual and legal
856See reports of the Security-General on the United Nations Interim Administration Mission in Kosovo, UN
857Doc. S/2008/692 (24 November 2008) and UN Doc. S/2009/149 (and 17 March 2009).
Ibid, pp. 2 and 12.
858"Kosovo again opposes EULEX plan; Albania airs doubts", Thomson Reuters Foundation, 25 November
2008. Available at: http://www.alertnet.org/thenews/newsdesk/LP686l 74.htm. See Annex 32 in Docu
mentary Annexes accompanying this Written Statement.
859
See letter by President of the Republic of Serbia sent to Mr. Havier Solana, Secretary-General of the
Council of the European Union and High Representative for the Common and Foreign Policy, dated 28
November 2008, reproduced in Annex 83 in Documentary Annexes accompanying this Written Statement.
336 situation. In the case of Kosovo, the Provisional Institutions of Self-Government
enjoyed substantial authority, although not of a sovereign character, on the basis
of Security Council resolution 1244 (1999). There have not been any significant
changes to this status since then. The mere reinforcement of the existing
substantial administering powers conferred by the United Nations does not
transform these institutions into institutions of an independent State. It should be
noted that the international administration is entitled to annul acts of the Kosovo
authorities.
978. Equally, the authors of the UDI cannot claim that they have the power to exclude
the exercise of Serbia's sovereignty over the territory. If Serbia does not
administer the territory, this is so due to a Security Council resolution adopted
under Chapter VII of the United Nations Charter and the Serbian acceptance of
the establishment of an international administration over the territory, 860 and has
nothing to do with the UDI or the subsequent action of its authors. On the
contrary, Serbia continues to act on the international level as the holder of
sovereignty over the territory of Kosovo and is recognised as such by a majority
of the components of the international community. Even those States that support
independence have had to negotiate with Serbia for the deployment of EULEX,
which finally has been done in conformity with Security Council resolution 1244
(1999), contrary to the wishes of the so-called "government of the Republic of
861
Kosovo".
979. As it is also evident, the authorities of the so-called "Republic of Kosovo" have
not been able to put an end to the international regime established by Security
Council resolution 1244 (1999), although they purported to do so by the UDI. In
fact, UNMIK/EULEX possess substantial authority over the territory, which
overrides that of the so-called "Government of Kosovo".
980. All the above mentioned elements are sufficient to reject any claim that the UDI
reflects a factual "reality" or has lead to the creation of a State.
860 See Annex 2 of Security Council resolution 1244 (1999), Annex 20 in Documentary Annexes
accompanying this Written Statement.
861See supra para. 976.
337981. However, there are additional elements that show a lack of "Republic of Kosovo"
effectiveness. Following the UDI, parts of the population of Kosovo have refosed
to recognise the Provisional Institutions of Self-Government as legitimate, since
they have acted ultra vires and have invoked a capacity that they do not possess.
As a consequence, some areas remain completely outside any purported authority
exercised by the so-called "Government of Kosovo", and in other areas attempts
to exercise any such authority are seriously hampered by the boycotting of the
"independent" institutions by some parts of the population.
982. The "independent government" does not have political control over the whole
territory of Kosovo, nor is it recognised by the entire population of Kosovo as
having the authority to exercise such control. While the Assembly of Kosovo
purports to pass legislation without reference to the powers of the Secretary
General' s Special Representative under Security Council resolution 1244
862
(1999), the "majority of Kosovo Serbs continue to recognize UNMIK as their
sole and legitimate civilian international interlocutor... This has had significant
implications, including in the police, customs and judicial sectors, where UNMIK
863
continues to play a prominent role." Sorne areas in the northern region of
Kosovo fonction completely outside of any political control exercised by the
provisional interim institutions. As the Secretary-General noted in his Report of
24 November 2008:
"In the north [of Kosovo], four municipal structures fonction on the
basis of the law on local self-government of Serbia. The local
Kosovo Serbian community resists any real or perceived efforts by
Kosovo authorities to exercise control north of the TharRiver. For
example, it opposed efforts by Mitovicë/Mitrovica municipality,
which is based in the south, to initiate projects in the north,
especially as neither UNMIK nor the community itself had been
consulted." 864
862
Report of the Secretary-General on the United Nations lnterim Administration Mission in Kosovo, UN
Doc. S/2008/692 (24 November 2008), p. 1,para. 2.
863Ibid. p. 2, para. 4.
864Ibid.
338983. Further, the provisional interim institutions do not exercise judicial control over
the whole territory of Kosovo. In Mitrovica, the court was not operational for a
six-month period, and was only re-opened, with international judges and
prosecutors temporarily appointed to handle the most urgent criminal cases, after
consultations between the United Nations Special Representative, Mr. Zannier,
865
and the Government of Serbia. Courts that deal with municipal and minor
offences in the municipality of Leposavic fonction as part of the Serbian judicial
866
system, and courts in Zubin Potok that deal with municipal and minor offences
are not operational following the resignation of all Kosovo Serb support staff. 867
984. Even in the areas supposed to be under control of the "independent government",
there are serious difficulties in implementing a real, efficiently fonctioning
868
judiciary and police force, two basic elements for the existence of any State.
869
Corruption and crime, including trafficking of all kinds, are widespread due to
the lack of any true State authority.
985. Indeed, given the strong international civil and security presence in the territory
on the basis of Security Council resolution 1244 (1999); the fact that even those
States who encouraged the UDI of the so-called "Republic of Kosovo" have had
to negotiate with Serbia on matters regarding Kosovo (such as EULEX); the
strong resistance by part of the population to the attempt by the institutions to
exercise ultra vires power; and the failure of these institutions to exercise basic
public fonctions, it is difficult to imagine how the so-called "Government of
Kosovo" can be equated with an effective government of an independent State.
865Ibid. p. 3, para. 8.
866Ibid. See also report of the Secretary-General on the United Nations lnterim Administration Mission in
Kosovo, UN Doc. S/2008/458 (15 July 2008), p. 4, para. 9, and UN Doc. S/2009/149 (17 March 2009),
para. 14.
867Ibid.
868Commission of the European Communities, 'Kosovo (Under UNSCR 1224/99) 2008 Progress Report.
869Commission Staff Working Document', Brussels, 5 November 2008, SEC(2008) 2697, pp. 13, 15, and 53.
Ibid, pp. 15 and 54.
339 C. Recognition by Third States Alone Is Not Decisive
I Recognition by third States as such does not grant retroactive legality or
purge illegality
986. It has been shown in this Written Statement that the UDI was contrary to
international law and to the domestic law of the Republic of Serbia. It is now
argued that recognition by a number of States cannot overturn that legal situation
or rectify the UDI. In particular and as part of this proposition, Security Council
resolution 1244 (1999) with its unambiguous affirmation of the sovereignty and
territorial integrity of the FRY in the context of the Kosovo situation cannot be
overturned or bypassed by a number of recognitions by individual States. Further,
what is clearly illegal in international law cannot be unilaterally rendered valid by
one or more States.
(1) Recognition is not constitutive of statehood
987. Recognition of new States plays an important part in the process of acceptance or
confirmation of the statehood of a particular aspirant within the international
community, but it should not be confused with the creation of statehood itself,
which is a distinct and a discrete process.
988. That the constitutive theory of recognition of statehood is not accepted as part of
the international legal order is attested by the fact that States overwhelmingly
regard the grant of recognition as being a political act (albeit within a legal
framework) and thus subject to the discretion of the State considering recognition.
Provided that there is no illegality involved, States have a wide discretion as to
870
whether or not to recogmse an ent1ty as a new S tate. Dugar d and R .aie
concluded that:
870See, e.g., M. Whiteman, Digest of International Law (1968), vol. II, p. 10 and Digest of US Practice in
International Law(1976), pp. 19-20.
340 "it is essential to appreciate that political considerations do
influence the decision [to recognise] and may prompt a State to
recognise an entity prematurely or to refuse to grant it
· · ,, 871
recogmtlon .
989. The Arbitration Commission of the Conference on Yugoslavia emphasised in its
Opinion No. 1 that "the effects of recognition by other States are purely
872
declaratory".
990. In other words, the pre-existing legal status cannot be changed as a matter of law
by an act of recognition. There are two separate questions here: first, whether a
new entity has established itself in a manner consistent with international law,
and, secondly, whether third States have taken a decision to accept the legal
consequences of this situation insofar as they are concerned by the political act of
recognition. We are here concerned with the first question only, noting only that
an act of recognition by a third State cannot as a matter of law and as such
constitute or create a new State.
991. In other words, international practice is consistent in not accepting the doctrine
whereby a new State is created only by and upon the recognition of existing
States. Crawford makes the essential argument as follows:
"If individual States were free to determine the legal status or
consequences of particular situations and to do so definitively,
international law would be reduced to a form of imperfect
communications, a system for registering the assent or dissent of
individual States without any prospect of resolution". 873
992. He continues:
871
"The Role of Recognition in the Law and Practice of Secession" in Secession: International Law Per
spectives (ed. M.G. Kohen, 2006), pp. 94, 98.
87231 ILM 1494 (1992), Annex 38 in Documentary Annexes accompanying this Written Statement.
873Crawford, The Creation of States, op.cit., p. 20.
341 "...if State recognition is definitive then it is difficult to conceive of
an illegal recognition and impossible to conceive of one which is
invalid or void. Yet the nullity of certain acts of recognition has
been accepted in practice, and rightly so; otherwise recognition
would constitute an alternative form of intervention, potentially
874
always available and apparently unchallengeable".
993. Such political calculation will doubtless take account of a number of pertinent
features of the particular situation, but it cannot ignore or neglect the overall
context of international law. Recognition may be made or refused for political
reasons by States but it cannot so be done in contravention of international law.
More to the point in the matter at hand, recognition cannot validate an illegal act.
Recognition is nota law-creating mechanism in the arena of international law.
994. It is clear that recognition by a number of States is not as such constitutive of
statehood in international law, except, of course, within the domestic legal system
of the particular recognising State. Oppenheim summarises the situation as
follows:
"The grant of recognition by a State is a unilateral act affecting
essential bilateral relations and neither constitutes nor declares the
recognised State to be a member of the international community as
a whole ..... The overwhelming practice of States does not accept
that the mere claim of a community to be an independent State
automatically gives it a right to be so regarded ... While the grant
of recognition is within the discretion of States, it is not a matter of
arbitrary will or political concession, but is given or refused in
accordance with legal principle. That principle ... is that when
certain conditions of fact (not in themselves contrary to
874
Ibid., p. 21. Footnote omitted.
342 international law) are shown to exist, recognition is permissible and
875
is consistent with international law".
(2) Recognition and unlawful assertions of statehood
995. It follows that where the situation or claim to statehood is contrary to international
law, recognition becomes problematic. However, the question before the Court is
not concerned with the question of the legality or otherwise of such recognitions
of the so-called "Republic of Kosovo" as have occurred, but rather with the
assertion of independence and the consequential argument that may be made to
the effect that recognition has either demonstrated the legality of the UDI or cured
the illegality of such declaration. Recognition, however, cannot mitigate or
legitimate in international law what is an unlawful act.
996. It is well established that an illegal unilateral act cannot produce legal
876
consequences, ex injuria jus non oritur. Consequently, the attempt made by
some States to support the creation of a new State on the territory of Serbia
through recognition is devoid of any legal relevance for the present advisory
proceedings.
(3) Inability of recognition to legitimise illegality
997. The principle of ex injuria jus non oritur may be seen as having three possible
consequences. In the first case, an obligation would be seen to arise requiring the
non-recognition of the new situation brought about by the wrongful act. For
example, Article 41, paragraph 2, of the International Law Commission's Articles
on State Responsibility8 77 provides that no State "shall recognise as lawful a
situation created by a serious breach within the meaning of Article 40 [ie. of an
obligation arising under a peremptory norm of general international law] nor
875Oppenheim's International Law (ed. R.Y. Jennings and A.D. Watts), (9 ed., 1992), p. 130. Emphasis
added and footnotes omitted.
876
See, e.g., Gabçikovo-Nagymaros Project Case (Hungary v. Slovakia), Judgment of 25 September 1997,
I.C.J. Reports 1997, p. 76, para. 133, and Judge Elaraby's Separate Opinion inWall, p. 254, para. 3.1.
877See General Assembly resolution 56/1O;see also resolution 56/83.
343 render aid or assistance in maintaining that situation". 878A general duty of non
recognition may, for example, arise in situations arising out of the illegal use of
force. A second consequence of the principle is that, whether or not a duty of non
recognition arises, an obligation will exist not to accept as valid that original
unlawful act. Thirdly, and related to the second point, the principle of ex injuria
jus non oritur must mean, in order to maintain any credibility, that recognition of
an unlawful situation cannot as such render legal what is illegal.
998. This is particularly important with regard to the present case, where Serbia is
arguing that those recognitions that have occurred cannot have the effect of
validating in law the initial unlawful act (that is, the non-consensual secession of
Kosovo from the Republic of Serbia). This is the critical point from the
perspective of the question asked of the Court.
999. It is important to recognise the distinction for present purposes between the initial
act and the question of subsequent events and the question asked of the Court
focuses clearly upon the initial act itself. What is actually before the Court is the
question whether "the unilateral declaration of independence by the Provisional
Institutions of Self-Government of Kosovo [is] in accordance with international
law?" and not the legality or otherwise of subsequent acts by third parties.
Recognition, therefore, is only meaningful in terms of the question asked of the
Court to the extent that it sheds light on the initial act of declaring independence.
In this context, the relevant part of the principle of ex injuriajus non oritur is the
third point which establishes, it is argued, that the illegality of the wrongful act
cannot be validated or made legal by third party recognition. As such, the political
or other consequences of the series of recognitions is not relevant.
1000. The Canadian Supreme Court in the Quebec Secession case addressed in detail
and with great care the relevant issues for present purposes. It declared that:
878
See also, e.g., Wall, p. 200, para. 159.
344 "Although recognition by other States is not, at least as a matter of
theory, necessary to achieve statehood, the viability of a would-be
State in the international community depends, as a practical matter,
upon recognition by other States. That process of recognition is
guided by legal norms. However, international recognition is not
alone constitutive of statehood and, critically, does not relate back
to the date of secession to serve retroactively as a source of a 'legal'
right to secede in the first place. Recognition occurs only after a
territorial unit has been successful, as a political fact, in achieving
879
secession".
1001. The Supreme Court continued:
"It may be that a unilateral secession by Quebec would eventually
be accorded legal status by Canada and other states, and thus give
rise to legal consequences; but this does not support the more
radical contention that subsequent recognition of a state of affairs
brought about by a unilateral declaration of independence could be
taken to mean that secession was achieved under colour of a legal
right".880
1002. The Supreme Court developed the argument as follows:
"Although there 1s no right, under the Constitution or at
international law, to unilateral secession, the possibility of an
unconstitutional declaration of secession leading to a de facto
secession is not ruled out. The ultimate success of such a secession
would be dependent on recognition by the international community,
which is likely to consider the legality and legitimacy of secession
having regard to, amongst other facts, the conduct of Quebec and
Canada, in determining whether to grant or withhold recognition.
879Reference re Secession of Quebec case, [199S.C.R.217, , para. 142.
880Ibid., para. 144. Emphasis added.
345 Even if granted, such recognition would not, however, provide any
retroactive justification for the act of secession, either under the
Constitution of Canada or at international law". 881
1003. Three essential points were made by the Canadian Supreme Court. First, that the
domestic process is important and will have an influence upon international
perceptions and conduct, at the least. In other words, the fact that a secession has
been accomplished according to valid internai norms and is thus legitimate in
constitutional terms is likely to constitute an important consideration in the
recognition process and thus encourage recognition by third States as both
politically and legally acceptable. Conversely and equally significantly, a
secession achieved contrary to the relevant applicable law will face increased
difficulties in the political recognition process as well as raising the issue of
illegality. Adherence or not to constitutional processes must be therefore an
important consideration in the methodology of recognition by third States,
although this is essentially a different question from that of illegality before the
Court.
1004. Secondly, the Quebec Secession case underlines that recognition by third States
constitutes a process that affects viability and effectiveness on the international
stage, but it cannot as such alter the legality or otherwise of the initial act of
independence or secession. Recognition in international law concerns the conduct
of international relations and not the modification of existing legal rules and
juridical situations.
1005. Thirdly, the case emphasises that recognition cannot retroactively legitimate in
law what is already an established illegality. Recognition does not, and cannot,
reach back into the domestic legal system of an individual States in order to alter
its legal norms and their application, nor can it retroactively re-classify the status
of an illegal act either in domestic or in international law.
881
Ibid., para. 155. Emphasis added.
346 II Kosovo: a varied mix of recognition and refusai to recognise
1006. As of 1 April 2009, there are 56 States that have recognised the independence of
Kosovo. Or to put this another way, 136 Member-States of the United Nations
have not recognised Kosovo. These States include Russia, China, India, Pakistan,
Brazil, Argentina, South Africa, the vast majority of African and Asian States and
most of the Latin American States. Not only is there no consistency of
recognition, but those recognitions that have occurred have been concentrated in
Europe. The recognition of Kosovo by minority of States can prove little on the
international scene and most certainly cannot be used to demonstrate the
acceptance of statehood for Kosovo as an international practice. It certainly
cannot be argued that such a geographically unbalanced pattern of recognitions
constitutes conduct capable of rectifying the unlawful declaration of independence
as a matter of international law.
1007. Critically, such recognition of Kosovo bas not included membership of the United
Nations, which would constitute powerful evidence of existence of statehood. As
Dugard has noted, the United Nations:
"bas for practical purposes become the collective arbiter of
statehood through the process of admission and non
882
recognition".
III Conclusion
1008. It can therefore be concluded that:
(i) Recognition as such is, as a matter of general international legal principle,
not constitutive of statehood;
(ii) Recognition is essentially a political and discretionary act of a State with
determinative effects only within its own domestic legal system and with
regard to bilateral relations with the recognised State;
882
J. Dugard, Recognition and the United Nations (1987), p. 102.
347 (iii) Accordingly, recognition cannot deterrnine the legal nature of the asserted
independence of a purported State in any binding way in international law;
(iv) An illegal act cannot as a rnatter of general principle be creative of legal
rights;
(v) Recognition as such cannot legitirnate an illegal act nor rnay it re
characterise that unlawful actas legal;
(vi) As a rnatter of fact, the long list of States not recognising Kosovo and their
global distribution underrnines any thesis as to the legitirnation of the
legally flawed declaration of independence by the Provisional Institutions of
Self-Governrnent of Kosovo;
(vii) The fact that the United Nations has not accepted Kosovo as a Mernber adds
to the range of international conduct dernonstrating the unacceptability of
the proposition that a new State has been validly created.
D. Contemporary International Law Does Not Remain "Neutral"
with Regard to Illegal Secessionist Attempts
1009. Sorne writers have clairned that international law sirnply does not regulate
secession, and consequently secession is neither perrnitted nor prohibited by
883
international law. This purported neutrality of international law rnay lead sorne
to argue that the question asked by the General Assernbly to the Court would not
be able to be answered, or at least would be devoid of any practical consequence.
Sorne rnay consider that the rnatter under discussion is a purely political one. This
is not the case, as is dernonstrated in this Written Staternent.
1010. Indeed, the clairn of international law's "neutrality" vis-à-vis secession is just the
final atternpt to find a legal justification for what is an illegal atternpt to secede
frorn a recognised State and United Nations Mernber. Such a clairn is tantarnount
883
For example, Thomas Franck holds the view that "[post-colonial international law] appears not to take
sides; rather, modestly it tries only to regulate and mitigate in a humanitarian fashion the more deleterious
effects of rampant postmodern tribal secessionism", T. Franck, Fairness in International Law (1995), p.
159. For a critical analysis of this view, see Olivier Corten,oit international est-il lacunaire sur la
question de la sécession?" in M. G. Kohen (ed),Secession. International Law Perspectives (2006), pp.
231-254.
348 to asserting that international law does not apply to secessionist attempts; that the
act under scrutiny is neither illegal nor legal.
1011. For the sake of completeness, the present section will deal with the doctrine of
"neutrality", particularly taking into account the positions held by some States.
Indeed, those States that support an "independent" Kosovo and that have
recognised an "independent" Kosovo with unprecedented speed, have tried to
avoid making a legal analysis of the UDI for the obvious reason of its non
accordance with international law. Consequently, the arguments of such States
rest solely on political considerations.
1012. In this respect, the position of the United Kingdom may be cited when it
considered the request for an Advisory Opinion from the Court to be "primarily
884
for political rather than legal reasons." Similarly, Ms. DiCarlo on behalf of the
United States of America, stated that "[w]e do not think it appropriate or fair to
the Court to ask it to opine on what is essentially a matter that is reserved to the
885
judgment of Member States." In a similar vein, Mr. McNee, on behalf of
Canada, stated that "[i]t is our view, however, that the case raises highly political
matters that are unsuitable for judicial review." 886
1013. Even if "neutrality" is clearly not the position of the United Kingdom as evinced
in a letter of 1 October 2008 distributed to the General Assembly in which the
British Government affirmed that it does not have any doubt about the legality of
887
the UDI, the United Kingdom's government nevertheless seems to leave open
the possibility of such an argument. It stated that "[m]any States emerged to
888
independence in what at the time were controversial circumstances". Itis not
clear to which cases the British Government is referring to. The fact is that since
884
Statement by Sir John Sawers on behalf of the United Kingdom, UN Doc. A/63/PV.22 (8 October 2008),
p. 2.
885Statement by Ms. DiCarlo on behalf of the United States of America, ibid., p. 5.
886
887Statement by Mr. McNee on behalf of Canada, ibid., p. 11.
Letter dated 1 October 2008 from the Permanent Representative of the United Kingdom of Great Britain
and Northern Ireland to the United Nations addressed to the President of the General Assembly, UN Doc.
A/63/461 (2 October 2008).
888Annex to the letter dated 1 October 2008 from the Permanent Representative of the United Kingdom of
Great Britain and Northern Ireland to the United Nations addressed to the President of the General
Assembly, ibid, para. 8.
349 the existence of the United Nations, all new States have emerged under legal
circumstances, either through decolonisation, a General Assembly resolution, the
dissolution of the parent State, or with the consent of the parent State. Not a single
case can be mentioned in which the creation of a State had another legal ground.
1014. Moreover, the British Government in the aforesaid letter refers to "the pragmatic
reality of the circumstances" that would "warrant wider recognition" of Kosovo's
889
independence. This assertion seems to support the claim that the issue of
Kosovo's independence must be dealt with "pragmatism", taking into account
"reality". Law seems to be completely neglected.
1015. The previous chapters have demonstrated that international law is far from being
"neutral". On the contrary, the international legal system clearly sets out rigorous
requirements for secession, regarding it as illegal in most circumstances and
recognising its legality in a few limited cases only. Those chapters have also
demonstrated that the UDI is not in conformity with those requirements, and thus
not in conformity with international law.
1016. The following sub-sections will first explain why the so-called "Lotus principle"
(or "principe de liberté" in French), according to which "everything that is not
prohibited is permitted" is not applicable to the case of the UDI. The second sub
section will then show that, on the contrary, the maxim ex injuriajus non oritur is
plainly applicable to the issue at hand, and it follows from an application of this
maxim that the creation of a new State cannot occur if this creation is not in
accordance with international law.
I The "Lotus principle" ("principe de liberté") has no room in the case of
Kosovo
1017. The maxim "anything that is not prohibited by law is deemed to be permitted" is
often referred to as the "Lotus principle" since it was applied by the Permanent
889
Ibid., para. 1O.
350 890
Court of International Justice in the Lotus case between France and Turkey.
Those attempting to transplant this notion to the realm of secession contend that,
since secession is not prohibited by international law, it should therefore be
permitted. This thesis leads to two equally implausible conclusions: (a) either
there is a right to secession, or (b) the matter is not covered by international law
and consequently there would be, if nota right, at least a "privilege" to secede, i.e.
a kind of authorisation to do so. 891 Quite apart from the controversial scope, and
questions concerning the validity and the application of this principle in
international law, it will be demonstrated here that there is no room to apply the
Lotus principle to the case of Kosovo.
1018. At the outset, it can be stated that the Lotus judgment noted that "[r]estrictions
892
upon the independence of States cannot be presumed". As pointed out by
Crawford, "[t]he Court was not at all concerned with the position of non-state
893
entities, such as secessionist groups". Thus, even if the Lotus principle applies
within the scope depicted above, secession would not be covered by it.
1019. The previous chapters have abundantly demonstrated that rules of international
law clearly apply to cases of secession, and that secession is consequently not
exclusively determined by the "normative Kraft des Faktischen". On the contrary,
international law plays an increasing role in prohibiting the creation of a State
even where there appears to be an effective "State" in existence, when the creation
and existence of this entity is contrary to applicable principles and rules.
1020. It is uncontroversial that some matters are not governed by international law. In
these cases, States and other subjects of international law are at liberty to regulate
their conduct as they think fit. However, this is just part of the overall picture. If
the matter is not governed by international law, the international legal system may
890
891S.S. Lotus, Judgment of 7 September 1927, P.C.I.J., Series A, No.JO.
See Thomas Franck, "Opinion Directed at Question 2 of the Reference" in Anne F. Bayefsky (ed), Self
Determination in International Law. Quebec and Lessons Learned. Legal Opinions Selected and
Introduced by Anne F. Bayefsky (2000), pp. 77-79.
892S.S. Lotus, Judgment of 7 September 1927, P.C.I.J., Series A No.10, p.18.
893
"Response to Experts Reports of the Amicus Curiae", in Anne F. Bayefsky (ed), Self-Determination in
International Law. Quebec and Lessons Learned. Legal Opinions Selected and Introduced by Anne F.
Bayefsky (2000), p. 162.
351 recognise that the matter is governed by domestic law. Examples are abundant.
The determination of nationality and the interna! mechanisms and competencies
for the conclusion of treaties are just two examples.
1021. The fact that a matter is governed by domestic law does not mean that
international law remains completely alien to the same matter. International law
plays a role at two levels:first, by establishing a framework for domestic law (i.e.
domestic regulations must respect international law) and second, by recognising
that a matter can become international at a certain stage - and that is usually
determined by international law. The case of secession also meets this
categorisation. With the exceptions already mentioned, 894 international law
considers secession to fall within the interna! sphere of States. This is the reason
why it is widely recognised, even by supporters of secession, that the central
authorities have the right to use all means - whilst respecting applicable
international rules, such as those related to human rights and humanitarian law
applicable in interna! conflicts - to avoid an attempt to secede. A number of
examples may be cited.
1022. For instance, the United Kingdom recognised and supported the sovereignty and
territorial integrity of the Russian Federation when the armed secessionist
movement led by Mr. Dzhokhar Dudayev in the Russian province of Chechnya
purported to unilaterally declare independence. The United Kingdom commented
that "the exercise of the right [of self-determination] must also take into account...
respect for the principle [of] territorial integrity of the unitary state. In the case of
Chechnya ...we have repeatedly called on the Russians to work for a political
solution which would allow the Chechen people to express their identity within
895
the framework of the Russian Federation,"
1023. For its part, the European Council stated that
894See supra paras. 952 ff.
895563 HL Deb Col. 476, 18 April 1995, reprinted in 66 British Year Book of International Law (1995), p.
621.
352 "[t]he European Council does not question the right of Russia to
preserve its territorial integrity nor its right to fight against
terrorism. However the fight against terrorism cannot, under any
circumstances, warrant the destruction of cities, nor that they be
emptied of neither their inhabitants, nor that a whole population be
896
considered as terrorist"
1024. Similarly, the United States of America stated:
"We support the sovereignty and territorial integrity of the Russian
Federation ...We oppose attempts to alter international boundaries
by force, whether in the form of aggression by one state against
another or in the form of armed secessionist movements such as the
one led by Dzhokhar Dudayev. That is why we have said that we
regard Chechnya as a matter which the Russian Government and
the people of Chechnya will have to resolve together peacefully by
. . 1 ,,897
po11tlca means
1025. Generally, the case of the independence of Kosovo is a matter governed by
domestic law. At the same time, however, it is also governed by international law,
due to the existence of an international regime established by Security Council
resolution 1244 (1999). The Provisional Institutions of Self-Government are an
international creation and are bound to respect the international legal framework
upon which they were created and exercise their fonctions. This includes, as seen
above, respect for the territorial integrity of Serbia.898
1026. The situation in the case of Kosovo may be distinguished from those matters that
have been determined by the Court as not regulated by international law. The
latter include, for instance - in the case of lack of any particular treaty-based
obligation for the States concerned - the determination of the particular regime of
896
Helsinki European Council, 10 and 11 December 1999, Conclusions of the Presidency, Annex II,
Declaration on Chechnya, para. 2. Available at: http://www.ena.lu/
897Deputy Secretary of State Talbott (1995) 6 US Department of State Dispatch 119,p. 120.
898See supra para. 728 ff.
353 a free zone, the way to terminate a diplomatie asylum not granted in conformity
with international law, the question over who has preference to exercise functional
or diplomatie protection in the case of an international civil servant having the
nationality of a given State, and the level of armaments of a State.
1027. The Court held in the Nicaragua case, for example, that the extent to which the
level of armaments of a State may be limited was not a matter regulated by
international law, unless States accepted rules limiting their actions in the form of
a treaty or otherwise. This is in contrast to the situation in Kosovo which 1s
specifically governed by binding Security Council resolution 1244 (1999).
1028. In the Case of the Free Zones of Upper Savoy and the District of Gex, the Court
declined to determine the regime governing the zones because according to its
interpretation of the Special Agreement, the parties intended to reach an
899
agreement between themselves on this point.
1029. In the "new situation" faced by the Court in the Reparations for Injury case, the
Court found that the United Nations had the capacity to bring international claims
against both Member and non-Member States of the United Nations. 900 The
question remained, however, whether the national State of the victim or the
Organisation employing the victim had priority with regard to the exercise of
either diplomatie or functional protection. The Court stated:
"In such a case there is no rule of law which assigns priority to the
one or to the other, or which compels either the State or the
Organization to refrain from bringing an international claim. The
Court sees no reason why the parties concerned should not find
solutions inspired by goodwill and common sense, and as between
the Organization and its Members it draws attention to their duty to
899
Case of the Free Zones of Upper Savoy and the District of Gex (France v. Switzerland), Judgment of 7
June 1932 P.C.I.J., Series NB No. 46, p. 152.
900Reparation for injuries suffered in the service of the United Nations, Advisory Opinion of 11 April 1949,
I.C.J. Reports 1949,. 185.
354 render 'every assistance' provided by Article 2, paragraph 5, of the
901
Charter".
1030. In the Haya de la Torre case, the Court found that the asylum must cease, even
though the Govemment of Colombia was not under an obligation to surrender the
individual to the Peruvian authorities. The Court left open the manner in which
the situation should practically be resolved, stating that
"[i]t is unable to give any practical advice as to the various courses
which might be followed with a view to terminating the asylum
since, by doing do, it would depart from its judicial fonction. But it
can be assumed that the Parties now that their mutual legal relations
have been made clear, will be able to find a practical and
satisfactory solution by seeking guidance from those considerations
of courtesy and good-neighbourliness which, in matters of asylum,
have always held a prominent place in the relations between the
Latin-American republics." 902
The Court thus left it to the two parties to reach an agreement on how to
practically find a solution to the dispute.
1031. None of the situations the Court faced in the abovementioned four cases is present
in the current advisory proceedings. In the case under the consideration of the
Court, there are both principles of general international law and specific Security
Council resolutions adopted under Chapter VII of the UN Charter that are
applicable.
1032. The question set out by the General Assembly raises the matter of the legality or
the illegality of a certain act. Here, the Court is plainly in a position to determine
whether the UDI is or is not in accordance with Security Council resolution
1244(1999), with regard to the principle of respect for the territorial integrity of
901Ibid, pp. 185-186.
902Haya de la Torre Case (Colombia v. Peru), Judgment of June 13 1951, I.C.J. Reports 1951, p. 83.
355 States, equal rights and self-determination of peoples and any other rule deemed
applicable.
li Ex injuria jus non oritur: a State cannot be created illegally
1033. Thus, not only does international law not remam "neutral" in the case of
secession, it governs the issue and imposes as a condition for the existence of a
new State the legality of its creation. In this regard, the maxim ex injuria jus non
oritur is plainly applicable.
1034. The Court applied the principle ex injuria jus non oritur in the Case concerning
the Gabcikovo-Nagymaros Project, when the Court affirmed the applicability of
the 1977 treaty despite the fact that it had been violated by both parties. The Court
stated in relation to the acts and omissions by the parties that
"[t]his does not mean that facts - in this case facts which flow from
wrongful conduct - determine the law. The principle ex injuria jus
non oritur is sustained by the Court's finding that the legal
relationship created by the 1977 Treaty is preserved and cannot in
903
this case be treated as voided by unlawful conduct. "
1035. As Judge Elaraby affirmed in his Separate Opinion to the Court' s Advisory
Opinion on the Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory,
"[t]he general principle that an illegal act cannot produce legal
rights - ex injuria jus non oritur - is well recognized in international
law."904
1036. The Canadian Supreme Court also applied this maxim, with regard to secession:
903Case concerning the Gabcikovo-Nagymaros Projec(Hungary v. Slovakia), Judgment of 25 September
1997, l.C.J. Reports 1997, p. 76, para. 133.
904Wall, Separate Opinion of Judge Elaraby, p. 254, para. 3.1.
356 "It is further suggested that if the secession bid was successful, a
new legal order would be created in that province, which would
then be considered an independent state. Such a proposition is an
assertion of fact, nota statement of law. Itmay or may not be true;
in any event it is irrelevant to the questions of law before us. If,on
the other hand, it is put forward as an assertion of law, then it
simply amounts to the contention that the law may be broken as
long as it can be broken successfully. Such a notion is contrary to
905
the rule of law, and must be rejected."
1037. Further, an illegal act that purports to create a State in violation of international
law cannot be made good by the assertion that a de facto situation has been
created that alters the status of the territory in law. "State" refers to a subject of
international law; it is not merely a term that is applied to facts on the ground. As
discussed above, effectiveness must be accompanied by legality before a claim for
statehood can be accepted as in accordance with international law.
1038. In sum, the application of international law leads to the finding that the UDI was
not in accordance with international law, and it does not produce the effect
attributed to it by its authors.
E. Conclusions
1039. The present chapter has shown that there is no additional legal argument that may
be used to justify the validity of the UDI. In particular:
(i) Domestic law has not granted to the territory of Kosovo a right to secede.
(ii) Kosovo is not a territory that was placed under Serbian sovereignty subject
to certain conditions or on the basis of an unlawful act, such as annexation.
(iii) The parent State and recognised legal sovereign has never consented to the
secession of Kosovo, either before or after the UDI.
905Reference re Secession ofQuebec, [1998] S.C.R. 217, 20 August 1998, paras. 107-108.
357 (iv) Effectiveness is nota ground for justifying the UDI, either at the time of the
declaration or afterwards.
(v) In any case, the so-called "Republic of Kosovo" does not fulfil the material
requirements of an independent State.
(vi) The illegality of the secession cannot be cured by recognition, which is, as a
matter of general international legal principle, not constitutive of statehood.
(vii) Accordingly, recognition cannot determine the legal nature of the asserted
independence of a purported State in any binding way in international law nor
may recognition as such legitimate an illegal act or characterise that unlawful
act as legal.
(viii) As a matter of fact, the long list of States not recognising Kosovo and their
global distribution undermines any thesis as to the legitimation of the legally
flawed declaration of independence by the Provisional Institutions of Self
Government of Kosovo.
(ix) International law does not remain "neutral" with respect of secession, but
rather specifies that it is illegal unless certain particular conditions have
been satisfied - such conditions clearly not being satisfied in the case of
Kosovo.
(x) Accordingly, Kosovo is a clear case in which secession has no legal basis.
358 Chapter 11
CONCLUSIONS AND SUBMISSIONS
A. Conclusions
1040. For the reasons set out in this Written Statement, the Republic of Serbia
respectfully concludes as follows:
(i) In accordance with Article 65 of the Statute, the Courtis competent to give
the advisory opinion requested by the General Assembly in the present case,
because the request came from an organ duly authorized under Article 96,
paragraph 1, of the United Nations Charter, and concerns a legal question.
(ii) There are no compelling reasons that would prevent the Court from giving
its opinion.
(iii) Kosovo remains under the international legal reg1me established by the
United Nations Security Council under Chapter VII of the United Nations
Charter; only the Security Council can modify or terminate this
international legal regime.
(iv) Security Council resolution 1244 (1999) forms the cornerstone of the
international legal regime for Kosovo, which also includes decisions and
regulations adopted by the Special Representative of the Secretary-General
in Kosovo, in particular the Constitutional Framework which created the
Provisional Institutions of Self-Government in Kosovo and regulated their
competences.
(v) The principle of territorial integrity of States is one of the key elements of
international law:
- Security Council practice shows that the obligation to respect territorial
integrity extends beyond States and binds non-state actors in situations of
non-consensual attempts to violate the territorial integrity of independent
States;
359 - In addition, the Security Council resolutions that deal generally with the
situation in the former Yugoslavia, and more specifically with Kosovo,
demonstrate clearly the intention of the Security Council that the Kosovo
Albanian leadership and community be bound by the principle of the
territorial integrity of Serbia.
- In particular, the territorial integrity of the FRY/Serbia was reaffirmed in
Security Council resolution 1244 (1999).
(vi) The UDI, by purporting to create an independent State on the territory of
Serbia, violates the internationally confirmed territorial integrity of Serbia
guaranteed by norms of international law.
(vii) The right to self-determination does not authorise non-consensual secession
from an independent State.
(viii) In any case, Kosovo does not constitute a valid self-determination unit
under international law, and the population of Kosovo do not constitute a
"people" for the purposes of self-determination under international law.
(ix) The UDI constitutes an ultra vires act of the Assembly of Kosovo contrary
to the international legal regime for Kosovo. In particular,
by declaring Kosovo "to be an independent and sovereign state", the
Assembly of Kosovo acted ultra vires and violated Security Council
resolution 1244 (1999) and the Constitutional Framework which
provide that the Assembly is a provisional institution of self
government which does not have the power to decide on the
international legal status of the territory;
by assuming constitutional powers, the Assembly acted ultra vires
under the Constitutional Framework;
by "inviting" international missions to Kosovo, by purporting to set
Kosovo's "international borders", and by purporting to conduct
international relations, undertake international obligations and seek
membership in international organizations, the Assembly acted ultra
vires under Security Council resolution 1244 (1999) and the
Constitutional Framework.
(x) The UDI challenges the competences of the Security Council under the
Charter of the United Nations generally, and in particular its powers under
360 Chapter VII thereof, by purporting to unilaterally terminate Kosovo' s
interim status created under Chapter VII and the mandate of the
international presences under Security Council resolution 1244 (1999),
thereby violating the said resolution and the Constitutional Framework
which defines Kosovo as "an entity under interim international
administration".
(xi) The UDI contravenes the paramount administrative authority in Kosovo set
up by Security Council resolution 1244 (1999) and also encroaches upon
the reserved powers of the Special Representative of the Secretary-General
under the Constitutional Framework.
(xii) By unilaterally and illegally attempting to change the current interim legal
status of Kosovo, the UDI violates procedural requirements for the conduct
of negotiations set forth by Security Council resolution 1244 (1999); the
UDI also violates substantive requirements for the conduct of negotiations
and a final settlement stipulated in the resolution, specifically the territorial
integrity and sovereignty of Serbia which are guaranteed by said resolution.
(xiii) None of the exceptional situations in which a "right to secession" might
exist under general international law is applicable to Kosovo, since
Kosovo has never had a right to secession either under domestic law of
Serbia (which is the continuation of the FRY and the State Union of
Serbia and Montenegro) or of the SFRY;
Kosovo was not unlawfully annexed by Serbia, rather, on the contrary,
its integration into Serbia has been internationally guaranteed since
1913;
Serbia, as the parent State and the recognized legal sovereign, does not
accept the secession of Kosovo which continues to form an integral
part of its territory.
(xiv) The purported existence of an effective "government" in Kosovo (which is
denied) is not sufficient for statehood. Further, the requirement of
respecting the applicable mies of international law has not been met in the
present case.
361 (xv) Contemporary international law is not "neutral" in cases of secession and
reqmres, as a necessary condition for the existence of a new State, the
legality of its creation.
(xvi) In any event, however, there is no effective independent government in Kosovo,
which is still a territory under international administration: KFOR continues to
provide security, while UNMIK continues to act in Kosovojointly with the EU
mission EULEX, which operates under the overall authority of the United
Nations and in accordancewith SecurityCouncil resolution 1244(1999).
(xvii) The fact that Kosovo has been recognized by a number of States cannot
overturn, rectify or legitimize in any way the illegality of the UDI under
international law by virtue of the inherent characteristics of the principle of
recognition in international law and in view of the maxim ex injuria jus non
oritur. In any event, the fact that the international community as a whole
cannot be said to have recognised Kosovo as an independent State, is
demonstrated by the long list of States from all parts of the world that do
not recognise Kosovo. This further undermines and contradicts any
assertion of the alleged "legitimatisation" of the illegal UDI.
B. Submissions
1041. For the reasons set out m this Written Statement, it 1s therefore respectfully
submitted that:
(i) The Court is competent to give the advisory opinion requested by the General
Assembly in its resolution 63/3 of 8 October 2008, and that there are no
compelling reasons that should lead the Court to decline to give its opinion;
(ii) The unilateral declaration of independence adopted by the Assembly of
Kosovo on 17 February 2008 is not in accordance with international law.
Sasa Obradovié
Belgrade, 15 April 2009 Head of the Legal Team of the Republic of Serbia
362APPENDICES
363364 APPENDIX 1
SERBIA, United Nations Department of Peacekeeping Operation, Cartographie Sector
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368 APPENDIXS
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369 APPENDIX6
THE BALKANS IN 1914, Charles Jelavich& Barbara Jelavich, "The Balkans",
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Written Statement of Serbia