.-~
•I. ,)!JI
,, 111
X
REPUBLIC OF CYPRUS
A.G. File No:37/1969N.4/8
3 April2009
The Registrar,
International Court of Justice
Peace Palace
Carnegieplein 2
2517 KJ The Hague
The Netherlands
Dear Registrar,
Re: ACCORDANCE WITH INTERNATIONAL LAW OF THE UNILATERAL
DECLARATION OF INDEPENDENCE BY THE PROVISIONAL
INSTITUTIONS OF SELF-GOVERNMENT OF KOSOVO (REQUEST FOR
ADVISORY OPINION)
1submit the Written Statement by the Republic of Cyprus, authorized by the
Court in paragraph 2 of its Order of 17 October 2008 in relation to an advisory
opinion by the Court on the question:
"ls the unilateral declaration of independence by the Provisional Institutions of
Se/f-Government of Kosovo in accordance with international law?"
The original Written Statement together with 30 copies and a CD-ROM
electronic copy are hereby presented for filing - by way of persona! delivery to the
Registry by H.E. the Ambassador of the Republic of Cyprus.
Please accept, Mr. Registrar, the assurances of my highest consideration.
/~. ;·;
(.i;,-l~
Petros Clerides
Attorney General of the Republic of Cyprus
Agent of the Government of the Republic of Cyprus
/MM
Law Office of the Republic, Apelli 1, 1403 NICOSIA
Tel.: 22889100, Fax.: 22665080, email: [email protected] INTERNATIONAL COURT OF JUSTICE
RE: ACCORDANCE WITH INTERNATIONAL LAW OF THE
UNILATERAL DECLARATION OF INDEPENDENCE BY
THE PROVISIONAL INSITUTIONS OF KOSOVO
(REQUEST FOR AN ADVISORY OPINION)
WRITTENSTATEMENT
SUBMITTED BY
THE REPUBLIC OF CYPRUS
17 APRIL 2009TABLE OF CONTENTS
Chapters Paras Page
I. Summary 1-3 1
II. Terminology 4 3
III. Procedural questions 5-17 4
Jurisdiction of the Court 5-7 4
The General Assembly is competent to make 8-12 4
the request
The request isfor an opinion on a legal 13 6
question
Conclusion 14 6
There are no compelling reasons preventing the 15-16 6
Court from giving the requested advisory
opinion
Conclusion 17 7
IV. Context 18-66 7
Introduction 18-23 7
Socialist Federal Republic of Yugoslavia 24-27 8
Early declarations of independence 28-31 9
Disintegration of the SFRY 32-40 10
Federal Republic ofYugoslavia 33-35 10
Badinter Commission 36 11
International Criminal Tribunalfor the 37 11
former Yugoslavia
Subsequent developments 38-40 11
Resolution 1244(1999), UNMIK, Provisional 41-48 12
Institutions and KFOR
Resolution 1244(1999) 41 12 UNMIK 42-43 12
Provisional Institutions 44-46 12
KFOR 47-48 13
Standards and Status 49-58 13
The Eide Review 52-54 14
The Contact Group 's Guiding Princip/es 55 14
Ahtisaari proposai 56-58 14
European Union Rule of Law Mission in 59-61 15
Kosovo
Current position 62-66 15
V. Terms of the request to the Court 67-74 16
VI. Legal analysis 75-192 18
A. General application of international law 75-81 18
Conclusion on the general application of 81 20
international law
B. Sovereignty and-territorial integrity 82-90 20
Conclusion on sovereignty and territorial 88-90 22
integrity
C.Resolution 1244(1999) does not render the 91-105 23
declaration lawful
Conclusion on resolution 1244(1999) 104-105 26
D.The Provisional Institutions had no power to 106-113 27
make the declaration of independence and
therefore the declaration of independence is
unlawful
Conclusion on thepower of the Provisional 113 29
Institutions
E. Claims that Serbia bas lost its title over 114-158 29
Kosovo by the operation of a rule of law
Il (i) Serbia's sovereignty over Kosovo is 115-122 29
not affected by the dissolution of the
SFRY
Conclusion: There is no right to 122 31
independence arisingfrom the
dissolution of the SFRY
(il) The unilateral declaration bas no 123-148 31
basis in the right of self-determination
No 'right of secession of fast 140-147 36
resort'
Conclusion: Kosovo has no right 148 38
to extemal self-determination
(iii) A 'right of secession' 149-158 39
Conclusion on the non-existence of 157 41
a right of secession in this case
Conclusion on 'rights' to assert 158 41
Statehood
F. The unilateral declaration bas not created a 159-192 41
State
Introduction 159-161 41
'The criteria of Statehood' 162-165 42
The Basic Factual Elements of Statehood 166-192 43
The criteria of Statehood: 172 45
Population and Territory
The criteria of Statehood: Effectiv173-175 45
Government
The criteria of Statehood: 176-183 46
Capacity to enter into relations
with other States
184-191 47
The criterion of legality
Conclusion on Kosovo and the 192 49
legal criteria of Statehood
VII. Conclusion 193 49
111Appendices (The appendices follow the written statement and are
separately paginated)
I. Chapter 8 of the Constitutional Framework
II. Statistics of ethnie population groups in States of the
former Yugoslavia, in Kosovo and in south-central
European States
IV WRITTENSTATEMENT
I Summary
1. This written statement is filed by the Republic of Cyprus in accordance with the Order
of the Court dated 17 October 2008 in response to the United Nations General
Assembly's request for an advisory opinion contained in resolution 63/3 (A/RES/63/3),
dated 8 October 2008.
2. The Republic of Cyprus has submitted this written statement for two reasons. First, over
the past 35 years it has given very careful and sustained consideration to the legal
consequences of unilateral declarations of independence by bodies claiming to be
representatives of new States.Ithopes that this experience may assist the Court. Second,
the Republic of Cyprus considers it inevitable that whatever the Court may say in
relation to Kosovo is very likely to be quoted and applied to other situations. The
Republic wishes therefore to submit its views as to the salient characteristics of the
Kosovo situation, in the hope that it may assist the task of responding to the precise
question now before the Court and of avoiding the framing of propositions in ways that
might be ill-suited to other situations which may appear to be superficially similar to
that of Kosovo.
3. The points that the Republic of Cyprus wishes to make are set out in the following
paragraphs of this written statement, but it may be helpful to summarize the submission
here. After addressing the question of the jurisdiction of the Court and the admissibility
of the request (paragraphs 5 to 14), and the absence of reasons that might prevent the
Court from giving the requested advisory opinion (paragraphs 15 and 16), the statement
sets out a short outline of the key facts (paragraphs 18 to 66). The precise terms of the
request to the Court are considered next (paragraphs 67 to 74). While it is concluded
that the request may be answered simply by pointing out that it was beyond the legal
powers of the Provisional Institutions to make a declaration such as the purported
'declaration of independence' (paragraph 70), this statement continues to consider
certain broader questions. It sets out a legal analysis of the Kosovo situation in which
the following main points are made:-
a. International law must be applied consistently and globally. It is contrary to the
Rule of Law to create exceptions and to settle the legal rights and duties of States
by treating them as sui generis cases. (Paragraphs 75 to 81)
b. The starting point for the analysis of the Kosovo situation must be the principles
of sovereignty and territorial integrity. The fundamental question is whether
Serbia's sovereignty over Kosovo was lawfully terminated on 17 February 2008,
and if so, on what lawful basis. (Paragraphs 82 to 90)
c. Nothing in UN Security Council resolution 1244(1999) purports to authorize the
secession of Kosovo. In any event, the UN Security Council does not have the
legal power to modify territorial title or make changes to a State's territory
without that State's consent. (Paragraphs 91 to 105)
d. The Provisional Institutions are subordinate bodies created under the auspices of
UN Security Council resolution 1244(1999) by UNMIK in its 'Constitutional Framework' for Kosovo, and possessing limited legal powers. Under resolution
1244(1999), under the Constitutional Framework, and as a matter of international
law, the Provisional Institutions had no legal power to make the 'declaration of
independence'. (Paragraphs 106 to 113)
e. Serbia did not lose its sovereignty over Kosovo ,as a part of the process of the
dissolution of the SFRY. (Paragraphs 115to 122)
f. The population of Kosovo does not have a right of self-determination that might
give them the right to secede from Serbia nor the right to dismember the existing
State. Moreover, neither the population of Kosovo (which is not limited to ethnie
Albanians) nor the Albanian population in Serbia as a whole constitutes a 'people'
for the purposes of the right of self-determination in the sense of a right to
independence. The Albanian population of Kosovo and the Albanian population
of Serbia as a whole constitute a minority and as such, as a matter of international
law, they enjoy all the human rights to which the people of a State, and the
minorities within it, are entitled; this includes the right to participate in the
constitutional arrangements of the State ('interna} self-determination').
(Paragraphs 123 to 139)
g. There is no validity in the argument that as part of the right of self-determination
there is a 'right of secession of last resort' for a part of a population which has
suffered gross and systematic human rights violations. In any event, no such right
could justify the 2008 'declaration of independence' because human rights
violations by the Government of Serbia ended in 1999, and because secession was
not a 'last resort', there being other options that could have given substantial
interna} self-determination or autonomy to Kosovo but which remained
unexplored. (Paragraphs 140 to 148)
h. There is no general right in international law for part of the population of a State
to secede from the State without its consent. This principle is essential to the
stability of States and of the international relations between them. (Paragraphs 149
to 158)
1. There is no valid argument that an entity which appears to possess the 'factual'
characteristics of a State and appears 'objectively' to be a State is ipso facto
entitled to be treated as a State. (Paragraphs 162 to 191)
J. A State must possess a territory, a population, an effective govemment, and the
capacity to enter into international relations. (Paragraphs 166 to 183)
k. Kosovo does not possess an effective govemment. Nor does it possess the
capacity to enter into international relations, because its foreign relations powers
are reserved to UNMIK. Accordingly, Kosovo does not satisfy the 'factual'
criteria of Statehood. (Paragraphs 173 to 183)
1. Moreover, international law has developed so as to require not only that an entity
possess the 'factual' characteristics of a State, but also that it has emerged in a
manner that does not violate fundamental principles of international law. For
example, international law precludes the establishment of States by the use of
2 force. Similarly, an entity cannot be established as a State in breach of limitations
on the legal powers of those who purport to establish it. (Paragraphs 184to 191)
m. For these reasons the Republic of Cyprus submits that Kosovo can have no claim
to Statehood, and that the declaration of independence was a declaration
inconsistent with international law. Again, it is emphasised that this does not
mean that Kosovo has no legal rights: it means simply that Kosovo is not an
independent sovereign State, and that Kosovo's rights remain those established by
UN Security Council resolution 1244(1999) and developed under the processes
which it prescribes. (Paragraphs 192and 193)
II Terminology
4. The following phrases and terms are used in this written statement and are defined as
follows:
Badinter
Commission: The Arbitration Commission of the Peace Conference on
the Former Yugoslavia set up by the Council of Ministers
of the European Community in 1991 to provide the Peace
Conference on Yugoslavia with legal advice.
Constitutional
Frarnework: The legal basis for self-government in Kosovo
promulgated by UNMIK in 2001: UNMIKIREG/2001/9 as
amended by UNMIK/REG/2002/9 and
UNMIK/REG/2007/29.
Contact Group: An informai group comprised of United Kingdom, France,
Germany, Italy, Russia and the United States which meets
regularly to co-ordinate international policy in southeast
Europe.
KFOR: The Kosovo Force, a NATO-led international security
force established pursuant to Security Council resolution
1244(1999). It has a broad mandate to maintain a safe and
secure environment in Kosovo for all its inhabitants.
Provision al
Institutions: The Provisional Institutions of Self-Govemment are the
local administrative bodies established by UNMIK in
Kosovo pursuant to the terms of Security Council
resolution 1244(1999).
SRSG: Special Representative of the Secretary-General.
Unilatera]
declaration
of independence: Declaration made by the Provisional Institutions on 17
3 February 2008 that Kosovo is an independent State.
UNMIK: United Nations Interim Administration Mission in
Kosovo, established by Security Council .resolution
1244(1999).
III Procedural questions
Jurisdiction of the Court
5. Article 65 of the Statute of the Court provides:
"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."
6. Article 96(1) of the Charter of the United Nations provides:
"The General Assembly or the Security Council may request the International
Cc:mrtof Justice to give an advisory opinion on any legal question."
7. In accordance with these provisions, the Court has jurisdiction on the basis that (i) the
General Assembly is authorised by Article 96(1) to make a request for an advisory
opinion, and it has done so by General Assembly resolution 63/3, adopted on 8 October
2008; (ii) the General Assembly is competent to make the request since the request
concems matters within the scope of the Assembly's activities; and (iii) the request is
for an opinion on a legal question. Of these points, the Republic of Cyprus considers it
necessary to comment only in relation to the last two.
The General Assembly is competent to make the request
8. Paragraph 1 of Article 96 of the Charter authorises the General Assembly to make a
request for an advisory opinion. The Article does not require that such a request should
fall within the scope of the Assembly's activities, unlike the power to request opinions
given to the organs mentioned in paragraph 2 of that Article. Nevertheless, in its
previous jurisprudence, the Court bas given consideration to whether the subject matter
2
of a request concems the activities of the requesting organ. ·
9. In the case of the request under consideration, it is clear that its subject matter relates to
the general activities of the General Assembly. The powers of the General Assembly are
broad. As stated in Article 10 of the United Nations Charter, they include the power to
"discuss any questions or any matters within the scope of the present Charter or relating
to the powers and functions of any organs provided for in the present Charter". The
specific powers to be found in Articles 11 to 14 of the Charter include consideration of
1
2UN doc. A/RES/63/3.
E.g. 1nterpretation of Peace Treaties with Bulgaria, Hungary and Romania, Advisory Opinion, 1.C. J. Reports
1950, p.70; Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1. C. J .Reports 1996 ( 1),
p.226, at 232 and 233, paras. 11 and 12; Adviso,y Opinion on the Legal Consequences of the Construction of a
Wall in the Palestinian Occupied Territories, Advisory Opinion, 1.C. J. Reports 2004, p.136, at 145, para.16.
4 general principles of co-operation in the maintenance of international peace and
security, making recommendations promoting international co-operation in political,
economic, social, and other fields, and recommending measures for the peaceful
adjustment of any situation which the Assembly deems likely to impair the general
welfare or friendly relations among nations. Further, under Article 4 of the Charter, the
decision of the General Assembly is necessary for the admission of a new Member in
the United Nations.
1O. For the exercise of al1 of these powers the General Assembly must act in accordance
with the principles of international law regarding sovereignty and territorial integrity,
the criteria for Statehood, and the right of self-determination. These essential building
blocks of the international order are central to the Assembly's activities. It is these
issues which will be the subject of the advisory opinion requested of the Court.
11. Furthermore, the subject matter of the request to the Court falls within the specific
activities of the General Assembly and of other organs of the United Nations with_
regard to the future status of Kosovo and thè mandate of UNMIK. The role of the
Security Council in relation to its own resolution, 1244(1999), is clear; the General
Assembly and the Secretary-General also have powers and functions in relation to the
mandate of UNMIK under that resolution. The role of the General Assembly includes
taking decisions, with the advice of its Fifth Committee, on the budget of UNMIK. The
responsibilities of the Secretary-General include the support of the mandate of UNMIK.
Fo11owingthe unilateral declaration of independence by the Provisional Institutions, the
exercise of the legal powers of UNMIK as an interim civil administration have been
obstructed and the Secretary-General has made plans to adjust its operational role and to
reconfigure the international civil presence. In this context, the Secretary-General
reported to the Security Council at its meeting on 20 June 2008 that in view of the
differing positions of Member States on the status of Kosovo "the United Nations has
taken a position of strict neutrality on the question of Kosovo's status." 5
12. The opinion of the Court on the legal status of the declaration of independence will be
of crucial significance to any further consideration by the Secretary-General of whether
it is appropriate to make recommendations for future reconfiguration of UNMIK, and
on what basis, particularly in the light of the view of some members of the Council that
any adjustment in the role of UNMIK should be a matter for the Security Council rather
than the Secretary-General. The same considerations will be relevant to the General
Assembly in their responsibilities for the budget of UNMIK.
3Thus, for example, Item 85 on the agenda of the 63 session of the General Assembly is entitled "Maintenance
of international security - good-neighbourliness, stability and development in South-Eastern Europe". Under this
Item, the Permanent Representative of the Russian Federation sent to the Security Coµncil and the General
Assembly the text of the Joint Statement by the Chamber Council of the Council of Federation and the Council
of the State Duma of the Federal Assembly of the Russian Federation "concerning the consequences of the self
proclamation of independence by the territory of Kosovo (Serbia) adopted on 18 February 2008" (UN doc.
A/63/62).
4The mandate of UNMIK and the exercise of some of its functions by EULEX is discussed further at paras. 43
and 63 below.
5The status-neutral position of the UN has been repeated in subsequent reports of the Secretary-General to the
Security Council, see for example, para. 26 ofhis report dated 24 November 2008 (UN doc. S/2008/692).
5 The request isfor an opinion on a legal question
13. Finally, the request for the advisory opinion concerns the legality under international
law of the unilateral declaration of independence made by the Provisional Institutions of
Kosovo. This is, in terms, a 'legal question'. The Courtis being asked to interpret rules
and principles of international law regarding fundamental aspects of the international
legal order and of the United Nations system, including territorial integrity, self
determination and the criteria for Statehood. These tasks required of the Court are of a
judicial nature. The question submitted by the General Assembly has been "framed in
terms of law and raise[s] problems of international law; . . . it is by its very nature
susceptible of a reply based on law". 6 Itis therefore a question of a legal character.
Conclusion
14. The General Assembly's request for an advisory opm10n satisfies the conditions of
Article 65 of the Statute of the Court and Article 96(1) of the Charter both as regards the
competence of the requesting organ, the General Assembly, and as regards the
substance of the request, a legal question.
There are no compelling reasons preventing the Court from giving the requested
advisory opinion
15. The Court has interpreted Article 65, paragraph 1,of its Statute as giving it discretion to
render an opinion - or to refuse to render an opinion - even if the conditions for
jurisdiction are met. 7 Nevertheless, the present Court has never refused to give a
requested advisory opinion through an exercise of discretion, since the giving of such
opinions represents the Court's participation in the activities of the United Nations. It
bas stated that only 'compelling reasons' should lead the Court to refuse its opinion. 8
The Court bas further stated that it must be satisfied in respect of each request for an
advisory opinion as to the propriety of its acceding to the request, by reference to the
criteria of 'compelling reasons'. 9
16. The purpose of advisory opinions is to furnish to the organ which bas made the request
the elements of law necessary for its action. ° Far from there being compelling reasons
for the Court to refuse to give an opinion, it is clear that the opinion will, as already
stated in paragraphs 11 and 12 above, provide for many of the organs of the United
6
Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Palestinian Occupied
Territories, Advisory Opinion,. C. J. Reports 2004, p.136, at 153, para. 37, quoting in part Western Sahara,
Advisory Opinion,J.C.J. Reports 1975, p.12, at 37, para. 72.
7 E.g. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (1), p.226, at
234-235, para. 14.
8 Certain Expenses of the UnitedNations (Article 17(2) of the Charter),Advisory Opinion, 1.C.J. Reports 1962,
p. 155; Difference Relating to lmmunity/rom Legal Process of Special Rapporteur of the Commission on Human
Rights, Advisory Opinion, J.C.J. Reports 1999 ( 1), p.62, at 78-79, para. 29.); Advisory Opinion on the Legal
Consequences of the Construction of a Wall in the Palestinian Occupied Territories, I. C. J. Reports 2004,
p.136, at 156,para. 44.
9 Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Palestinian Occupied
Territories 1.C.J. Reports 2004, p.136, at 157,para. 45.
10In its Opinion concerning Reservations to the Convention on the Prevention and Punishment of the Crime of
Genocide (J.C. J. Reports 1951, p. 15, at 19) the Court observed: "The object ofthis request for an Opinion is to
guide the United Nations in respect ofits own action."
6 Nations, including the General Assembly and the.Secretary-General, a determination of
the principles and rules of international law necessary for them in the exercise of their
responsibilities regarding the mandate ofUNMIK and the alleged Statehood of Kosovo.
The subject matter of the request is also of broader concern than the competence of the
Provisional Institutions under international law. As indicated in paragraphs 75 to 81
below, the opinion of the Court will address fundamental rules and principles of
international law which apply throughout the international legal order.
Conclusion
17. There are no 'compelling reasons' why the Court should not render the advisory opinion
which has been requested of it; indeed the opinion will be of crucial significance in the
work of the General Assembly and the Secretary-General of the United Nations.
IV Context
Introduction
18. The Court will have the benefit of a full account of the relevant history in other
submissions made to it. The Republic of Cyprus wishes to draw the attention of the
Court only to the following few facts, an understanding of which is necessary for the
legal analysis and which it believes to be of particular importance to the Court's
determination.
19. The Republic of Cyprus considers that the key period is from the early 1990's onwards,
as this marked Kosovo's earlier unsuccessful attempts to declare independence and the
dissolution of the State of the Socialist Federal Republic of Yugoslavia. However, a
brief summary of earlier events concerning the sovereignty of Serbia over Kosovo is
provided below.
20. In the 19th Century, the Balkan Peninsula, one of the world's most ethnically complex
areas,conta~nedmany groups whose members were scattered across the administrative
provinces through which the Ottoman Empire governed its territory and population. By
1913, the Ottoman Empire in Europe had effectively ended, with partitions of its
territory resulting in seven States- Greece, Albania, Romania, Serbia, Montenegro,
Bulgaria and Turkey (eastern Thrace). The so-called 'Great Powers' imposed or
instigated 'settlements' intended to end the multitude of ethnie struggles, by means of
multilateral treaties which regulated suzerainty, autonomy, sovereignty, the creation of
States and their territorial frontiers. Although the Axis Powersi-eachedthe World War
I settlements, these were restored at the end of World War II.
21. Serbia had become an independent State following the Treaty of Berlin in 1878, after
about 50 years of internationally guaranteed autonomy. Albania was the last of the
seveh Balkan States to emerge, becoming independent in 1913. It was in the same year
and in the same conference of Ambassadors in London (although a different session of
the conference) that an area of Kosovo was ceded by the Ottoman Emperor to the State
of Serbia. This was a different entity from what had been known as Kosovo under the
Ottoman Empire. The Kosovo vilâyet was created under the Ottoman Tanzimat reform
programme in 1864; apart from an earlier small administrative district, this was the first
7 time there had been a govemmental institution entitled 'Kosovo'. The new vilâyet was a
very extensive area, covering part of what is now the Former Yugoslav Republic of
Macedonia, part of modem Bulgaria, part of what is Serbia outside the former
Autonomous Province of Kosovo, part of Montenegro and part of Albania. Most of the
Sançak of Novi Pasar was within the Kosovo vilâyet. (The latter was in 1913 divided
between Montenegro and Serbia.) The Kosovo vilâyet was far larger than the territory
currently alleged to be that of the independent State of Kosovo, the subject of these
proceedings.
22. In December 1918, following declarations by representative councils in Croatia,
Slovenia and Bosnia (then all within Austria-Hungary) and the Montenegro National
Assembly, a new Kingdom of Serbs, Croats and Slovenes was formed. By virtue ofthis
union, other parts of the Kosovo territory became a constituent part of the new State and
it was with its territorial boundaries including the whole of what is now Kosovo that the
State became one of the original members of the League of Nations, the Covenant of
11
which obliged members to respect each other's territorial integrity.
23. In 1929, following the assumption by the King of the Serb-Croat-Slovene State of
dictatorial powers, the name of the State was changed to the Kingdom of Yugoslavia.
During the Kingdom's occupation by Axis forces from 1941to 1945 the area which was
later to become the Autonomous Region of Kosovo and Metohija was not administered
as a single entity. In March 1945 the Democratic Federal Yugoslavia was formed and
some six months later the People's Assembly of the People's Republic of Serbia
established the Autonomous Region of Kosovo-Metohija, declaring it to be a
12
constituent part of Serbia. A Popular Federal Republic ofYugoslavia was declared on
29 November 1945 and in 1963 the name of this State was changed to the 'Socialist
Federal Republic ofYugoslavia'.
Socialist Federal Republic of Yugoslavia
24. In 1990, therefore, Kosovo was part of a multi-ethnic State, the Socialist Federal
Republic of Yugoslavia ('SFRY'). The SFRY comprised six republics including the
13 14
Republic of Serbia, of which the province of Kosovo was a constituent part. Within
the SFRY, these federal units were demarcated by administrative boundaries. 15
12Article 10.
Constitution of the Socialist Federal Republic ofYugoslavia 1963,Article 111.
13 Constitution of the Socialist Federal Republic of Yugoslavia 1974, Article 5: "The territory of the Socialist
Federal Republic of Yugoslavia is a single unified whole and consists of the territories of the Socialist
Republics".
14 Constitution of the Socialist Federal Republic of Serbia of 1974, Article 1: "The Socialist Autonomous
Province ofVojvodina and the Socialist Autonomous Province of Kosovo are parts of the Socialist Republic of
Serbia."; Constitution of the Socialist Federal Republic of Serbia (28 September 1990), Article 4, "The territory
of the Republic of Serbia is a single whole, no part of which may be alienated" and Article 6 "The Republic of
Serbia includes the Autonomous Province ofVojvodina and the Autonomous Province of Kosovo and Metohia".
See also the Constitution of the Socialist Federal Republic ofYugoslavia 1974,Article 1: "The Socialist Federal
Republic of Yugoslavia is 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
15nstituent parts of the Socialist Republic of Serbia".
Constitution of the Socialist Federal Republic of Yugoslavia 1974, Article 5, "The territory of the Socialist
Federal Republic of Yugoslavia is a single unified whole and consists of the territories of the Socialist
Republics...Boundaries between the Republics may only be altered on the basis of mutual agreement". Article 3
specified that the Republics were "states based on the sovereignty of the people". By contrast, Article 4 specified
that the Autonomous Provinces were "self-managing democratic socio-political communities based on the power
8 25. Serbia is ethnically highly heterogeneous: 27 different groups constituted a third of the
population of the Republic of Serbia. 16According to a census of 1991, approximately
17% of its total population were Albanians. A large proportion of these Albanians
resided in the province of Kosovo, alongside various other ethnie and minority groups
such as Roma, Montenegrins, Turks, Croats and Yugoslavs. 17 This pattern continues to
be reflected in the population of Serbia today. The last census conducted in the Republic
of Serbia, dated 2002, states that there were 61,647 Albanians in Serbian territory
18
outside Kosovo.
26. It is not only Serbia which has a diverse population. Although account had been taken
of the political principle of self-determination in making the post-World War I
settlements, the outcome, having regard to the complex reside11tialpatterns of scattered
occupation by different ethnie groups, inevitably left large and small minorities outside
the frontiers of the new or successor State in which their ethnie group constituted the
majority of the population. The resulting population patterns, showing majority and
minority populations in those States over the years, are described in Appendix II to this
written statement.
27. The last official census in Kosovo was conducted in 1991. The Statistical Office for
Kosovo 19timated in 2008 that the population of Kosovo comprised 92% Albanians in
2006. The shifts in populations in Kosovo over the last eighty years are apparent from
the tables set out in Appendix II. The Tables show that Kosovo has always been
inhabited by various ethnie and minority groups. The statistics also reflect the fact that
·since the conflict in the 1990's large numbers of non'-ethnic Albanian groups left
Kosovo following viol20t action taken against them as documented in reports 21 the UN
Secretary-General and various Non-Governmental Organisations.
Early declarations of independence
28. Following a series of decrees and laws adopted22y the Serbian Parliament, on 2 July 23
1990 the Kosovo Provincial Assembly issued a 'Declaration of Sovereignty'. It
of self-management by the working class and ail working people, in which the working people, nations and
nationalities realize their sovereign rights" (emphasis added).
16 1991 censusplaced the percentage of Serbs in Republic of Serbia at approximately 64%.
17According to the census of 1991, the total population of Kosovo consisting of inter alia 82.2% Albanians and
10.9% Serbs and Montenegrins, with the remainder comprising inter alia of Romas, Turks, Croats, Yugoslavs
and Muslims: See T. Judah, Kosovo, What everyone needs to know (2008), p.59.
18 <http://webrzs.statserb.sr.gov.yu/axd/Zip/eSn31.pdf >. The Statistical Office for Serbia provides figure for
total population in 2007 but with no breakdown of ethnie groups: <http://webrzs.statserb.sr.gov.yu/axd/en/
drugastrana.php?Sifra=0013&izbor=odel&tab=l>. The Yearbook for 2008 provides figures based only on the
2002 census (see at p 74): <http://webrzs.statserb.sr.gov.yu/axd/en/god.htm >
19
<http://www.ks-gov.net/ESK/eng/index.php?option=com content&view=article&id=36&Itemid=26> See also
Appendix Il, Tables 6 and 7.
20 E.g. UN doc. S/1999/779, para. 5: "a large number of Kosovo Serbs have left their homes for Serbia....a
second wave of departures resulted from an increasing number of incidents committed by Kosovo Albanians
against Kosovo Serbs."
21
22E.g. OSCE Report, Kosovo/Kosova: As Seen, As Told, Part Il December 1999.
The Provincial Assembly is defined in the Constitution of the Socialist Autonomous Province of Kosovo, 1974
at Article 300 as "a body of social self-management and the supreme organ of power within the framework of
provincial rights and duties".
23For the text of the Declaration, see M. Weller, The Crisis in Kosovo 1989-1999 (1999), p. 64.
9 declared "Kosova as an independent and equal constituent unit within the framework of
the Federation (Confederation) of Yugoslavia entitled to the same constitutional
denomination as other constituent units". At paragraph 3(a) of this Declaration, the
Albanians of Yugoslavia were described as existing as a "national minority".
29. The Yugoslav Constitutional Court ruled that this Declaration was unconstitutional. The
Court held that alteration of Serbia's boundaries required its consent in accordance with
the SFRY Constitution. It stated that as a national minority there was no right to invoke
self-determination in order to proclaim Kosovo a federal unit within Yugoslavia.
30. On 7 September 1990, the Kosovo Assembly adopted a Constitution for the 'Republic
of Kosova'. On 28 September 1990, a new Constitution of the Socialist Federal
Republic of Serbia was adopted by the Serbian Assembly. Nearly one year later, on 22
September 1991, the Kosovo Assembly made a formai declaration of "the Republic of
Koso~a as a so~er_eign and i~de~endent State with the right to participate as a
constituent repubhc m Yugoslav1a". 4 · -
25 26
31. With the exception of Albania, no State recognised Kosovo as an independent State.
Disintegration of the SFRY
32. In 1991 the disintegration of the SFRY began. It resulted in the emergence of a number
of new, successor States. The status and name of the State ofwhich Kosovo was a part
have changed several times during and after the dissolution of the SFRY.
Federal Republic ofYugoslavia
33. On 27 April 1992, Serbia and Montenegro adopted the Constitution of the Federal
Republic of Yugoslavia ('FRY'). This established the FRY as a sovereign and
independent State (Article 1), composed of the Republic of Serbia and the Republic of
Montenegro (Article 2) and affirmed that the Republic of Serbia included the province
of Kosovo (Article 6). Kosovo remained a constituent part of the FRY.
34. The cla27 of the FRY to be the continuation of the SFRY was not accepted by all other
States; the FRY ultimately conceded in October 2000 that it was one of the equal
successor States to the SFRY and it was admitted to the United Nations on that basis on
28
1November 2000 and accordingly was able to operate on the international plane.
35. While the initiative for the recognition of the States emerging from the dissolution of
the SFRY was taken by the EC States, eventually all the successor States accepted
24 For the text of the Declaration, see M. Weller, The Crisis in Kosovo 1989-1999 (1999), p.72.
25UN doc. A/55/421 refers to "the recognition by the Albanian Parliament of the 'Republic of Kosovo' in 1991".
26Attempts to secure recognition through the London International Conference on the Former Yugoslavia and in
the Follow-on Talks of the Special Group of Kosovo were unsuccessful. The Secretary-General of the
Conference reported on 11 November 1992 that independence of Kosovo was not a solution "since existing
boundaries must be maintained" (UN doc. S/24795, para. 91).
27While the FRY had persisted with its claim to be the continuation of the SFRY, the UN had restricted its
participation in the Organisation's activities: SC res. 752 (1992); GA res. 47/1 (1992); letter of UN Legal
Counsel (Fleischauer) to Permanent Representatives of Bosnia and Herzegovina and Croatia to the United
Nations dated29 September 1992(UN doc. A/47/485).
28SC res. 1326(2000); GA res. A/Res/55/12.
10 outcomes which wei-e in accordance with the EC States' positions. So did the wider
international community, in admitting the successor States to the UN. The absence of a
dispossessed sovereign, together with the disappearance of the SFRY and the consent of
the several successor States to the processes which had fixed their identities and
territories, were crucial elements in reaching this international consensus. It is the
presence of a 'dispossessed' sovereign (Serbia) and the absence of its consent which
sharply distinguish these earlier cases occurring within the dissolution of the SFRY
from the situation in Kosovo.
Badinter Commission
36. During this process of the dissolution of the SFRY, the Arbitration Commission of the
Peace Conference on the Former Yugoslavia ('the Badinter Commission') was
established on 27 August 1991. Set up by the Council of Ministers of the European
Community, its purpose was to provide the Peace Conference on Yugoslavia with legal
advice on issues arising from the fragmentation of the SFRY. It was guided by and
applied general principles of international law. 29 According to the Badinter Commission
30
the dissolution of the SFRY was complete by 4 July 1992.
International Criminal Tribunalfor theformer Yugoslavia
37. Approximately one year later, the UN established the International Criminal Tribunal
for the former Yugoslavia (ICTY) to deal with international crimes that took place
during conflicts in the former Yugoslavia in the 1990s. Individuals charged with crimes
committed there since 1991, including conduct in Kosovo and directed against persons
31
there, have been indicted; and some have been convicted.
Subsequent developments
38. The FRY changed its name to Serbia and Montenegro under the Constitutional Charter
32
of the State Union of Serbia and Montenegro dated 4 Februai 2303. The Constitution
expressly stated that Serbia included the province of Kosovo.
39. On 3 June 2006 Monte:negro declared itself independent from Serbia an34was then
accepted as a United Nations Member State on 28 June 2006. Serbia continued the
legal personality of Serbia and Montenegro. 35Kosovo remained within Serbia, a matter
29 Opinion No.l, para. l(a). The ten opinions handed down by the Badinter Commission are reproduced in
(1992) ILM 31 1494- 1526 and also in 92 ILR (1993), 162-211.
30
31Opinion No.8, para. 4. ·
E.g. Milutinovic et al IT-05-87, ICTY: Former Yugoslav Deputy Prime Minister, Nikola Sainovié, Yugoslav
Army General, Nebojsa Pavkovié and Serbian police General Sreten Lukié were each sentenced to 22 years'
imprisonment for crimes against humanity and violation of the laws or customs ofwar; Yugoslav Army General,
Vladimir Lazarevié and Chief of the General Staff, Dragoljub Ojdanié were found guilty of aiding and abetting
the commission of a number of charges of deportation and forcible transfer of the ethnie Albanian population of
Kosovo and each sentenced to 15 years' imprisonment; Milan Milutinovié, the former President of Serbia, was
32quitted of ail charges.
<http://www.mfa.gov.yu/Facts/const scg.pdf>
33The preamble refers to "the state of Montenegro and the state of Serbia which includes the Autonomous
Province ofVojvodina and the Autonomous Province of Kosovo and Metohija".
34GA res. NRES/60/264.
35By a letter dated 3 June 2006, the President of the Republic of Serbia informed the Secretary-General that the
membership of Serbia and Montenegro was being continued by the Republic of Serbia (UN Press Release:
11 reaffirmed in the adoption of Serbia's new Constitution of 8 November 2006, which
36
declared Kosovo "an integral part of the territory of Serbia".
40. At all times, Kosovo remained part of Serbia. This was uncontested by other States.
Resolution 1244(1999), UNMIK, Provisional Institutions and KFOR
Resolution 1244(1999)
41. On 10 June 1999, the UN Security Council adopted resolution 1244(1999) under
Chapter VII of the UN Charter. This resolution affirmed the commitment of all Member
States to the principles of sovereignty and territorial integrity and stated that, pending a
final settlement, "substantial autonomy" was to be established in Kosovo. No member
of the Security Council voted against the adoption of· the resolution, and Serbia
consented to its terms.
UNMIK
42. Pursuant to paragraph 10 of the resolution, Kosovo was placed under a transitional UN
administration, entitled the United Nations Interim Administration Mission in Kosovo
('UNMIK'). The Special Representative of the Secretary-General for Kosovo ('SRSG')
was appointed by the Secretary-General to lead UNMIK. The General Assembly is
responsible for the budget ofUNMIK.
43. UNMIK has a wide-ranging mandate. Its responsibilities, as listed in paragraph 11 of
resolution 1244(1999), include performing basic civilian administrative functions,
maintaining civil law and order, supporting the reconstruction of key infrastructure as
well as protecting and promoting human rights.
Provisional Institutions
44. Under the terms of resolution 1244(1999), UNMIK is also tasked with establishing and
overseeing the development of provisional democratic self-goveming institutions.
Accordingly, in 2001 UNMIK promulgated a Constitutional Framework that established
the Provisional Institutions of Self-Govemment ('Provisional Institutions').
45. The Framework provides that the Provisional Institutions are to work constructively
towards ensuring conditions for a peaceful and normal life for all inhabitants of Kosovo,
with a view to facilitating the determination of Kosovo's final status through a process
at an appropriate future stage in accordance with resolution 1244(1999). The preamble
to this Framework states that the exercise of the responsibilities of the Provisional
Institutions in Kosovo shall not in any way affect or diminish the ultimate authority of
the SRSG for the implementation of resolution 1244(1999), and powers are expressly
reserved to the SRSG pursuant to Chapter 8. The relevant provisions of Chapter 8 are
set out in Appendix I to this written statement. Chapter 2 reiterates that the powers of
the Provisional Institutions must be exercised consistently with the provisions of
resolution 1244(1999).
ORG/1469).
36The Prearnble to the Constitution of Serbia states: "Considering also that the Province of Kosovo and Metohija
is an integral part of the tenitory of Serbia".
12 46. The responsibilities of the Provisional Institutions set out in Chapter 5 of the
Framework include economic and financial policy, fiscal and budgetary issues,
administrative and operational customs activities, domestic and foreign trade, industry,
investments and education.
KFOR
47. Paragraph 7 of Security Council resolution 1244(1999) authorised the establishment of
an international security presence in Kosovo. Point 4 of Annex 2 to the resolution stated
that it should have "substantial North Atlantic Treaty Organization participation" and
"must be deployed under unified command and control and authorized to establish a
safe environment for all people in Kosovo and to facilitate the safe return to their homes
of all displaced persons and refugees". Pursuant to paragraph 9 of resolution
1244(1999) its mandate included deterring renewed hostility and threats against Kosovo
by Yugoslav and Serb forces; establishing a secure environment and ensuring public
safety and order; demilitarizing the Kosovo Liberation Army; supporting the
international humanitarian effort; and supporting the international civil presence.
48. Accordingly, on 9 June 1999 a Military Technical Agreement was formed between the
NATO-led international security force 'KFOR' and the Governments of the Federal
Republic of Yugoslavia and the Republic of Serbia. This agreement stated that KFOR
had "the authority to take all necessary action to establish and maintain a secure
environment for all citizens of Kosovo". KFOR personnel first entered Kosovo on 12 .
June 1999.
Standards and Status
49. From 1999 onwards, the focus of the international community was on setting standards
for Kosovo that had to be met by the institutions in Kosovo before the question of
37
Kosovo' s final status was addressed. Referred to initially as benchmarks, the
'Standards before Status' policy was devised by the SRSG to ensure that Serbia's
interests were defended by the international community, and to measure the progress
achieved by the Provisional Institutions.
50. In December 2003, the SRSG presented to the Security Council a policy document
which replaced the 'Standards before Status' headline with 'Standards for Kosovo'. 38
The introduction stated that:
"this document sets out the standards that Kosovo must reach in full compliance
with the UN Security Council resolution 1244(1999) and the Constitutional
Framework and the original standards/benchmarks statement endorsed by the
Security Council".
51. The standards identified were as follows: functioning democratic institutions; rule of
law; freedom of movement; sustainable retums and the rights of communities and their
members; economy; property rights; dialogue and Kosovo protection corps. 39
37
<http://www.unmikonline.org/standardocs/KSP2 003-2007. pdf>
38<http://www. unrnikonline. org/standards/ docs/leaflet stand eng.pdf >
39The Kosovo Protection Corps is a civilian emergency service agency established on 20 September 1999 by
13 The Eide Review
52. In June 2005, the Secretary-General appointed his Special Bnvoy, Mr Kai Bide, to
undertake a comprehensive review of the situation in Kosovo. In his report of 7
November 2005, 40 Bide addressed the progress in relation to the standards and also the
question of status.
53. Regarding standards, he concluded that "the foundation for a multi-ethnic society...is
grim." 41 He stressed the importance of the standards implementation process and
42
observed that "the record of implementation so far is uneven."
54. Regarding the question of status, he concluded that:
"the future status process must be moved forward with caution. All the parties
must be brought together - and kept together - throughout the status process.
The end result must be stable and sustainable. Artificial deadlines should not be
set. Once the process has started, it cannot be blocked...." 43
The Contact Group 's Guiding Princip/es
55. The Contact Group considered Bide's report and submitted to the Security Council its
'Guiding Principles' for a settlement of the status of Kosovo. 44 Itcalled on ail parties to
"refrain from unilaternl steps" and confirmed that "The Security Council will remain
actively seized of the matter". It outlined ten principles, the first of which stated that
"The settlement of the Kosovo issue should be fully compatible with...international
law". The sixth principle stated that:
"Any solution that is unilateral or results from the use of force would be
unacceptable...The territorial integrity and interna! stability ofregional neighbours
will be fully respected".
Ahtisaari proposai
56. In November 2005, the Secretary-General appointed Mr Martti Ahtisaari as his Special
Bnvoy for Kosovo, His mission was, following on from Bide's review, to lead the
political process to determine the future status of Kosovo in the context of resolution
45
1244(1999). Sérbia participated willingly in this process.
57. Ahtisaari commenced negotiations on Kosovo on 21 February 2006. On 2 March 2007,
he stated 46at "the parties remained diametrically opposed on the future status of
Kosovo". 24 days later he presented his "Comprehensive Proposa} to the Secretary-
40MIKIREG/1999/8.
UN doc. S/2005/635.
41Summary at page 3 and para. 44.
42Summary at page 1.
43Summary at page 5 and para. 70.
44UN doc. S/2005/709.
45
46UN doc. SG/A/955.
<http://www.un.org/apps/news/story.asp?News1D=2 l742&Cr=Kosovo&Crl =>
14 General" with the recommendation that Kosovo's future status should move to
independence, supervised by the international community. 47
58. Further negotiations were commenced in August 2007 via a tripartite body comprised of
negotiators from the EU, Russia and the US. 48 In its final report issued four months
later, this body concluded that a negotiated settlement was in the best interests of both
parties but that neither party was willing to cede its position.
European Union Rule of Law Mission in Kosovo
59. The European Union Rule of Law Mission in Kosovo ('EULEX') was established by
EU Council Joint Action 2008/124/CFSP of 4 February 2008, on the European Union
Rule of Law Mission in Kosovo. EULEX operates within the framework of resolution
49
1244(1999). It was formed with executive powers to carry out some of the functions
ofUNMIK. As is said in the Joint Action at paragraph 7 "The United Nations Secretary
General also noted the readiness of the EU to play an enhanced role in Kosovo" and
Article 5 states that "The operational phase of EULEX KOSOVO shall start upon
transfer of authority from the United Nations Mission in Kosovo, UNMIK."
60. EULEX functions with the support of Serbia, as was confirmed in a letter dated 28
November 2008 from Mr Boris Tadié, the President of the Republic of Serbia, to Mr
Javier Solana, High Representative for the Common Foreign and Security Policy of the
European Union.
61. The central aim of EULEX is to assist and support the Kosovo authorities in the rule of
law area, in particular in the areas of international policing, justice and customs,
regarding which there is currently a transfer of responsibility from UNMIK. EULEX
implements its mission through monitoring, mentoring and advising, and it retains
certain executive responsibilities. lts powers are extensive and it may override the local
authorities in Kosovo. Thus, Article 3(b) of the EU Council Joint Action states that
EULEX shall:
"ensure the maintenance and promotion of the rule of law, public order and
security including, as necessary, in consultation with the relevant international
civilian authorities in Kosovo, through reversing or annulling operational
decisions taken by the competent Kosovo authorities".
Current position
62. On 17 February 2008, the Provisional Institutions issued the declaration of
independence. Serbia did not consent - and bas not consented - to the purported
secession of Kosovo from its territory.
47
48UN doc. S/20071168.
49Referred to as 'the Troïka'.
SC res. 1244(1999) is expressly referred to in paragraph 1 of EU Council Joint Action 2008/124/CFSP. As
stated at para. 64 below the Secretary-General confirrned in his report dated 24 November 2008 that "EULEX
will fully respect Security Council resolution 1244(1999) and operate under the overall authority and within the
status neutral framework of the United Nations". The EU submitted its first report on the activities of EULEX to
the UN Secretary-General, Report of the Secretary-General on the United Nations lnterim Administration
Mission inKosovo, S/2009/149, Annex l.
15 63. In the wake of the declaration, the Secretary-General stated that the profile and structure
of the United Nations in Kosovo should be adjusted in light of the evolving
50
circumstances. The Secretary-General subsequently recommended a reconfiguration
of UNMIK, reducing its competences and establishing an enhanced operational role for
EULEX in51he field of the rule of law, notably in the areas of police, customs and
justice. In particular, the Secretary-General outlined a 'six-point plan' for the
deployment of EULEX. The six fields identified are police, customs, justice,
52
transportation and infrastructure, boundaries and Serbian patrimony. On 9 December
2008 UNMIKcommenced phasing out its policing component, handing responsibility
53 54
overto EULEX. Serbia has consented to these new arrangements.
64. The United Nations has maintained a position of strict neutrality about the status of
55 56
Kosovo. For example, in his report dated 24 November 2008, the Secretary-General
confirmed three times the United Nations position of strict neutrality on the question of
57
Kosovo's status. At paragraph 50, he stated, in relation to the EU preparations for
undertaking a rule of law operation, that:
"EULEX will fully respect Security Council resolution 1244(1999) and operate
under the overall authority and within the status neutral framework of the United
Nations."
65. NATO has reaffirmed that KFOR shall remain in Kosovo on the basis of UN Security
Council resolution 1244(1999), unless the United Nations Security Council_decides
otherwise. 58
66. Of the UN Member States, only 55 have recognised Kosovo as an independent State.
The remaining 137 Member States have not recognised Kosovo, and a significant
59
proportion of them have said that they do not intend to do so.
IV Terms.of the request to the Court
67. In its resolution 63/3 (A/RES/63/3), the General Assembly decided to request the
International Court of Justice to render an advisory opinion on the following question:
"Is the unilateral declaration of independence by the Provisional Institutions
50UN doc. S/2008/354, para.19 (dated June 2008). On 18 August 2008 a technical arrangement was agreed for
the handover of assets between UNMIK and EULEX : <http://www.eulex-kosovo.eu/news/docs/Press-release
on-signing-of-technical-arrangement.pdf>
51
52UN doc. S/2008/692 (dated 24 November 2008).
53UN doc. S/2008/692, paras. 30 to 47.
<http://www.unmikonline.org/news.htm#09 l2>
54UN doc. S/2008/692, para. 29: "I welcome the positive outcome of the discussions and the acceptance of
Serbia of these arrangements".
55 See the Reports of the Secretary-General dated 12 June 2008 (UN doc. S/2008/354); 15 July 2008 (UN doc.
562008/458); and 24 November 2008 (UN doc. S/2008/692).
57UN doc. S/2008/692 (24 November 2008). Approved by UN Security Council, see UN doc. S/PRST/2008/44.
Paras 24, 46 and 49.
58 <http://www.nato.int/docu/pr/2008/p08-025e.html>
59Numbers ofrecognizing and non-recognizing States correct as at 6 March 2009.
16 of Self-Government of Kosovo in accordance with international law?"
60
68. lt is important to note what the request covers and what it does not. In effect, the
Court is asked to decide, in accordance with international law, whether the deélaration
adopted by the Provisional Institutions of Kosovo was lawful: that is, whether the
Provisional Institutions acted lawfully under international law in purporting to secede
from the State of Serbia.
69. On the other hand, in the view of the Republic of Cyprus, the question does not ask the
Court to determine whether States which have or have not recognised Kosovo as an
independent State have acted lawfully, nor to decide upon consequences which might
result from the action of the Provisional Institutions.
70. Under one interpretation of the question, the answer can therefore be brief: the
Provisional Institutions had no competence under international law to make the
declaration of independence, and the declaration is therefore not in accordance with
international law. Although the Provisional Institutions represent, in the submission of
the Republic of Cyprus, neither a State nor another subject of international law, it is
meaningful and entirely appropriate to ask the Court to decide the question in
accordance with international law. The declaration of independence which the
Provisional Institutions have promulgated is intended to have an impact on the
international plane and to create a subject of international law. lt is therefore subject to
the application of international law. Moreover, the Provisional Institutions are
themselves created by international law, and the Court is asked to determine whether
they have acted in accordance with that law. In its previous jurisprudence, the Court has
taken decisions as to whether an authority operating in a territory on the basis of a
mandate under international law has exceeded its authority and whether such acts are
without legal effect. 61
71. The Provisional Institutions owe their existence to international law since they are the
creation of UNMIK, itself an organ of the Security Council and possessing a limited
competence derived from and circumscribed by Security Council resolution
1244(1999). There was no power in any institution referred to or created by virtue of
resolution 1244(1999) to reach a decision on the final status of Kosovo; nor did any of
these bodies have the power to create other bodies which themselves had such a power.
The result is that the Provisional Institutions had no power to do what they purported to
do on 18 February 2008. 62 The point is elaborated more fully at paragraphs 106 to 113
60Insofar as there is any ambiguity resulting from the drafting of the request, the Court may itself decide upon
the exact question which it has been asked. Legal Consequences of the Construction of a Wall in the Palestinian
Occupied Territories, Advisory OpinionJ.C. J.Reports 2004, p.136, at 153-154, at para. 38 states "The Court
would point out that Jack of clarity in the drafting of a question does not deprive the Court of jurisdiction.
Rather, such uncertainty will require clarification in interpretation, and such necessary clarifications of
61terpretation have frequently been given by the Court."
International Status of South West Africa, Advisory OpinionJ.C. J.Reports 1950, p. 128, at 141-143 (no
unilateral right of South Africa to modify the terms of the mandate);WestAfrica Cases (Ethiopia v. South
Africa; Liberia v. South Africa), Preliminary ObjectiJ.C. J.Reports 1962, p. 319 (no suggestion that Court
could not have reviewed the merits of South Africa' s conduct if it had had jurisdiction);Legal Consequences for
States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security
Council Resolution 276 (1970), Advisory Opinion,J.C.J.Reports 1971, p. 16 (The Court exercised a form of
review over decisions of the General Assembly and Security Council about the lawfulness of South Africa's
presence in South West Africa).
62
See paragraphs 106to 113above.
17 below.
72. Accordingly, the unilateral declaration of independence was, as a matter of international
law, beyond the powers of the Provisional Institutions and specifically beyond the
powers of 'the Assembly of the Republic of Kosovo' (as it now styles itself); and it is a
nullity in international law.
73. Although the question may thus be briefly answered, the Republic of Cyprus submits
that the fundamental issues of international law which are implied in the question are of
very great importance and practical significance, and should also be considered by the
Court. It is primarily in relation to those issues that the remainder of these submissions
is addressed.
74. The question submitted to the Court by the General Assembly does not ask the Court to
determine the legality of situations other than that of Kosovo. But international law
must be applied in a consistent and uniform manner and the Court is being asked to
decide upon fundamental rules and principles which apply throughout the international
legal order. The Republic of Cyprus has, over a long period, had occasion to give
careful consideration to these rules and principles; drawing on its own experience, it
offers the following submissions in an effort to assist the Court with its task.
VI Legal analysis
A. General application of international law
75. The central idea of law, and of equality before the law, is that rules of law apply to all
persons, except where specific provision is made by another rule of law to the contrary.
In the international legal system of sovereign and equal States, this principle is
fundamental. 63 There must be general rules on basic elements of the legal system,
including its rules on personality, which establish the criteria according to which those
entities having rights and duties in the legal system may be identified. These categories
of rules are so fundamental that their legal quality is sometimes taken for granted: but it
is worth emphasising that they are legal rules, 64 the content and binding quality of
which are to be assessed in the same manner as for other rules of international law.
76. Of the States which have made statements recently reacting to the claims of Statehood
asserted by Kosovo, Abkhazia and South Ossetia, there are many which have given a
legal explanation injustification for their statements. The point is not what position any
particular State has taken on the status of Kosovo or Abkhazia or South Ossetia, but the
demonstration through this body of practice that States regard the question of Statehood
as being one of international law: only if the legal requirements are first satisfied is
there a political discretion for States to take decisions on whether or not to recognise a
'lawful' State.
77. The generality of the rules regulating the basic substance of international law is of as
great importance as is their binding quality: both are necessary to assure States of the
63 th
I. Brownlie, Princip/es of Public International Law (7 ed, 2008), p.279: "sovereignty and equality of states
64present the basic constitutional doctrine of the law of nations". th
R. Jennings and A. Watts (eds.), Oppenheim 'sInternational Law: Peace (9 ed, 2007), pp.119-123.
18 protection oftheir vital interests, notably guaranteeing their identities and allowing them
to'conduct their interna) affairs according to their own conceptions. 65'Special cases' do
not merely dilute the quality of legality of a system: they replace it with a political
element, in which the power and commitment of individual actors becomes more
significant than the legal rights that they enjoy. Claims that situations are sui generis
reduce the universally recognised rights of States, and put them outside the ordinary
processes of the making and application of international law.
78. Severa) of the States which have recognized Kosovo as a State have said that "Kosovo
66
is not a precedent". The international legal system does not have anything akin to a
common law notion of judicial precedent, capable of generating rules with binding
effect within the legal system and it is unlikely that those States which made the "no
precedent" statements had in mind any judicial connotation. As a political matter, it is
always open to a State to distinguish one situation from another, however alike they
may seem to other States, or to identify one situation with another, however different
they may seem. The States recognizing Kosovo undoubtedly interided that no other
group could claim to be like the Albanian population of Kosovo and thus have a right to
be a State (and to have that status acknowledged by other States). However, they are not
·able to bind others to their views. Indeed, it is far from clear that in political terms there
are characteristics unique to the situation in Kosovo which differentiate it completely
from all other similar cases, such that the assertion that "Kosovo is not a precedent"
could carry persuasive force. The Albanian population of Kosovo is not the only
minority within a national State seeking a State of its own or seeking to join with
another State; nor is it the only group to have been the victim of serious human rights
abuses by its own (former) govemment. Furthermore, the situation in Serbia is not the
only intractable one which has involved the UN for a long period.
79. However much the recognizing States might have wished to avoid it, therefore, their
actions in accepting Kosovo's Statehood run a high risk of fuelling or awakening hopes
of favourable reactions to new or reiterated claims of groups within populations to be
entitled to Statehood or even to be a State, with the obvious risks to stability which
would follow. Where the Kosovo-recognising States see only difference, other States
might see other situations as identical and act accordingly. The weakening of the
protectio67of the principles of territorial integrity and non-intervention could hardly be
avoided.
80. As explained in more detail below at paragraphs 82 to 90, at the heart of the
international legal conception of the State is the notion of territorial sovereignty. It is a
fundamental principle that a State is entitled to the greatest protection of those spaces
over which it has title, against the exercise of powers by other international actors which
would interfere with the exercise of its authority there or, even more fundamentally,
would ~eek to alter or eliminate that authority. 68 The stability of international relations
65For what it means to be a State, see J. Crawford, The Creation of States in Internationaed, 2006),
pp.40-45.
66For example, see the Security Council debates dated 18 February 2008 (UN doc. S/PV.5839): Belgium, id,
p.9; United Kingdom, id, p.14; United States, id, p.19.
67R. Mullerson, "Precedents in the Mountains: On the Parallels and Uniqueness of the cases of Kosovo, South
68setia and Abkhazia" (2009) 8 Chinese Journal of International law 2, 3-5, 16-17.
SS Lotus (France/Turkey) PCJJ 1927, A/10, p.18.
19 isunderpinned by respect for territorial title. 69
Conclusion on the general application of international law
81. It is the contention of the Republic of Cyprus that the quality of the generality of the
rules of international law and the prominence of the rule of territorial sovereignty are at
the heart of the question which the Court has been asked to address. The Court should
resist attempts to dilute the qualifications for Statehood and to modify the lawful means
for the creation of States so as to accommodate so-called sui generis situations. Indeed,
it should reaffirm the weight that is to be attached to established territorial sovereignty.
If situations are sui generis, they should be dealt with by conferring an appropriate and
special status on the particular entity, providing it with the necessary rights and powers
in accordance with the processes and principles of international law but leaving the
general concept of Statehood intact. They should not be dealt with by ignoring
fundamental rules of international law.
B. Sovereignty and territorial integrity
82. The starting point for the Courtis the fundamental principle of Serbia's sovereignty and
territorial integrity. Any departure from these principles must be in accordance with
international law. The Republic of Cyprus submits that there is no lawful basis for
depriving Serbia of its territorial rights or for lawfully passing that title to a new State of
'Kosovo'.
83. The centrality of the stability of territorial sovereignty to the system of international law
has been alluded to already. It is universally recognised to be of fundamental
importance to the international order. 70 As observed by the Court "Between
independent States, respect for territorial sovereignty is an essential foundation of
international relations". 71 The status of the principle in international law is well
established as demonstrated by its consistent and repeated approval in a comprehensive
range of international instruments.
84. The Badinter Commission (Opinion No.3), applying general principles of international
law to the dissolution ofYugoslavia, confirmed that:
"all external frontiers must72e respected in line with the principle stated in the
United Nations Charter, in the Declaration on Principles of International
Law concerning Friendly Relations and Co-operation among States in
accordance with the Charter 73 the United Nations (General Assembly
Resolution 2625 (XXV)) and in the Helsinki Final Act....."
69See para. 86 below.
70I. Brownlie, Princip/es of International Law (7th ed, 2008), p 289: "The sovereignty and equality of states
represent the basic constitutional doctrine of the law of nations"; M. Shaw, International Law (6th ed, 2008), p.
488: "The principle of the respect for the territorial integrity of states is well-founded as one of the linchpins of
71e international system".
Corfu Channel Case, J.C.J Reports 1949, p.4, at 35. See also Military and Paramilitary Activities in and
against Nicaragua (Nicaragua v. United States of America) Merits, Judgment. J.C.J. Reports 1986, p. 14, at 133,
para. 263 which refers to the "fundamental principle of state sovereignty, on which the whole of international
law rests".
72Article 2(1) and 2(4).
73" .al! States enjoy sovereign equality ....the territorial integrity...of the State (is) inviolable... (preamble) ...any
20 85. TheHelsinki Final Act reads as follows:
"I: The 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 ...territorial
integrity and to freedom and political independence....
IV: 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 the territorial integrity, political independence or the unity of
any participating State" 74
86. The stability of title to territory bas always been a feature of international law and it has
been bolstered as modem international law has developed. For example, the execution
of the principle of self-determination has resulted in the creation of States, the peoples
of which had the right to determine the political future of the territory on which the
State was formed. The identification of that territory was almost always based on
considerations of uti possidetis, that the previous international or ,administrative
boundaries of the territory should be the boundaries of the new State. These boundaries
have had a very strong persistence in modem international relations and have been
modified only in exceptional circumstances with the consent of the States involved. 75
87. The integrity of all boundaries, post-self-determination and otherwise, has been
reinforced by the development of the rule that boundaries may not be altered by any use
76
of force. This was a major change in the international system where previously the
establishment of new States and changes in territorial title were commonly effected by
77
the use of force. Furthermore, States are now under a positive legal obligation 78t to
recognise States created by, or territorial title gained by, the use of force, an obligation
which has on occasion been reinforced by decisions of the Security Council. 79 This
aspect of the rule on the prohibition of force is one of the foundations of the UN Charter
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 with the purposes and principles of the Charter."
74 See also the Concluding Document of the Vienna Meeting 1986 of representatives of the participating States
of the Conference on Security and Co-operation in Europe which was held on the basis of the provisions of the
Final Act relating to the Follow-up to the Conference (1989): "Principle 5....confinn their commitment strictly
and effectively to observe the principle of the territorial integrity of States. They will refrain from any violation
of this principle and thus from any action aimed by direct or indirect means, in contravention of the purposes and
principles of the Charter of the United Nations, other obligations under international law or the provisions of the
Final Act, at violating the territorial intègrity, political independence or the unity of a State...."
.75M. Shaw, International Law (6 ed, 2008), pp. 523-524.
76
UN Charter, Article 2(4); GA res. 2625 (1970), Principle 1; African Union, Non-Aggression and Comrnon
Defence Pact 2005, Article 4; Badinter Commission, Opinion No.3, para. 2, s.4.
77 See M. Zacher, "The Territorial lntegrity Norm: International Boundaries and the Use of Force" 55
International Organisation 215 (2001) for an account of state practice, before and after 1945. Cf., P. Daillier and
A. Pellet, Droit international public (6th ed, 1999), 409-41O.
78
International Law Commission, Articles on State Responsibility, Article 41(2) and Commentary, paras (6)-(9),
ILC Yearbook 114-115 (2001-Il.2) (also in J. Crawford, The International Law Commission 's Articles on State
Responsibility (2002), pp.250-251).
79SC res. 541(1983), para. 7; SC res. 550(1984), paras 2 and 3 (Cyprus); SC res. 662(1990), para. 2 (Kuwait).
21 80
and applies whether the initial use of force was lawful or unlawful. Because the
prohibition on the use of force is a rule of jus cogens, any consent of the State which is
the victim of the use of force does not affect the wrongfulness of the use of force or
reverse the invalidity of any change of title which purports to be made in consequence
81
of it. These developments in international law give an entrenched legal status to
established title.
Conclusion on sovereignty and territorial integrity
88. Itis undisputed that on 17February 2008, the terrifory affected by the claim asserted in
the unilateral declaration of the Provisional Institutions on 18February 2008 was part of
the territory of the State of Serbia. It is thus incumbent on those who claim that the
substance of the declaration was compatible with international law to demonstrate the
legal basis on which Serbia was deprived of its territorial rights and to show further that
title had lawfully passed to a new State of "Kosovo". As the ICJ said in the Case
concerning Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South
Ledge (Malaysia/Singapore):
"Critical for the Court's assessment of the conduct of the Parties is the central
importance in international law and relations of State sovereignty over territory
and of the stability and certainty of that sovereignty. Because of that, any passing
of sovereignty over territory on-the basis of the conduct of the Parties, as set out
above, must be manifested clearly and without any doubt by that conduct and the
relevant facts. That is especially so if what may be involved, in the case of one of
82
the Parties, is in effect the abandonment of sovereignty over part of its territory."
This principle is equally applicable to all instances where one party maintains that a
previously established title of another State has been changed.
89. Itis the unequivocal position of the Republic of Cyprus that nothing has occurred to
cast doubt on Serbia's uncontested title to Kosovo, and that the claim to the contrary
made in the unilateral declaration is incompatible with international law. During a visit
to Belgrade on 22 July 2008, the Foreign Minister of the Republic of Cyprus gave full
support to Serbia's sovereignty and territorial integrity and said:
"the future status of Kosovo has to be solved through bilateral agreement with the
observation of the principle of international law. That is why Cyprus will never
recognise the unilaterally declared independence ofKosovo-Metohia".
During a visit to Serbia on 23 February 2009, the President of the Republic of Cyprus
Mr Demetris Christofias said "we support Serbia's struggle to protect its sovereignty
and territorial integrity". Citing the Republic of Cyprus' position of principle regarding
the non-recognition of Kosovo's unilateral declaration of independence, he noted:
"This is our firm and consistent position of principle and we will follow this
80
SC res. 478(1980) on East Jerusalem, basing the decision not to recognize the purported change in status of
EastJerusalem on a violation of Geneva Convention IV and calling on States to acceptthe Council's decision,
81ras 2 and 5.
82A Orakhelashvili, Peremptory Norms in International Law (2006), pp.218-223.
J.C.J Reports 2008, para. 122.
22 policy in the framework of the European Union and the international community ...
We are by your side not just because we deal with a violation of international law
in Cyprus as well as a violation of its territorial integrity and sovereignty, but
because your case,just like ours, is a case of principle". ·
90. In the next section it is submitted that the fundamental principles of international law
regarding sovereignty and territorial integrity are not displaced by resolution
1244(1999). On the contrary, the resolution indicates that it is these principles that must
be applied.
C. Resolution 1244(1999) does not render the declaration lawful
91. Any settlement of Kosovo's status must be in accordance with resolution 1244(1999)
which was adopted by the Security Council pursuant to Chapter VII of the United
Nations Charter, and is binding upon Member States in accordance with Article 25 of
the Charter. The fact that the resolution remains in force and provides the relevant legal
framework .has been repeatedly confirmed both by the Security Council and by the
83
Secretary-General in his reports to the Council.
92. The sovereignty and territorial integrity of Serbia is unambiguously confirmed in the
84
resolution. The preamble reaffirms "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" and thus provides the Jens through which all other provisions
should be interpreted. Further, operative paragraph 1 states that any "solution to the
Kosovo crisis shall be based on the general principles in annex 1and... 2". Both of those
annexes provide that the political process must take "full account" of the "principles of
sovereignty and territorial integrity of the Federal Republic of Yugoslavia and the other
countries of the region".
93. Finally, operative paragraphs ll(a) and (e) of resolution 1244(1999) refer to the
Rambouillet Accords, which themselves explicitly affirmed the sovereignty and
territorial integrity of what was then the Federal Republic ofYugoslavia. The Preamble
of the Rambouillet Accords pledges adherence to the Helsinki Final Act, in particular to
"the sovereignty and territorial integrity of the Federal Republic of Yugoslavia" and
Chapter 1 of the Accords states that institutions of democratic self-government in
Kosovo should be "grounded in respect for the territorial integrity and sovereignty of
83Report of Secretary-General dated 15 July 2008 (UN doc. S/2008/458, para. 30); Report of the Secretary
General dated 12 June 2008 (UN doc. S/2008/354, para. 14); Report of the Secretary-General dated 28 March
2008 (UN doc. S/2008/211), para. 29. See also Secretary-General statements before the Security Council dated
20 June 2008 (UN doc. S/PV.5917) and 18 February 2008 (UN doc. S/PV.5839) and statement issued on 17
February 2008 (UN doc. SG/SM/11424). See also the Report of the Secretary-General dated 17 March 2009 (UN
doc. S/2009/149). A majority ofmembers of the Security Council explicitly reaffirmed the continuing validity of
resolution 1244(1999) in the debate on the Report dated 23 March 2009 (UN doc. S/PV.6097).
84J. Friedrich, "UNMIK in Kosovo, Struggling with Uncertainty" Max Planck Yearbook of United Nations Law,
Vol 9 (2005) 225, 248 "Resolution 1244 stresses that a solution to the crisis should take the principles of
sovereignty and territorial integrity of the FRY into consideration .....a right of secession ... is not recognised in
Resolution 1244"; R. Wilde, International Territorial Administration: How Trusteeship and the Civilising
Mission Never WentAway (2008), p.145 "sovereignty as to title was affirmed"; M. Shaw, International Law, (6
ed, 2008), p.210 "This comprehensive administrative competence is founded upon the reaffirmation of
Yugoslavia's sovereignty and territorial integrity and thus continuing territorial title over the province".
23 the Federal Republic of Yugoslavia".
94. As is clear from its express words, the resolution does not permit the independence of
Kosovo. 85 It provides for the "substantial autonomy" 86 of Kosovo. The Ahtisaari
proposai for intemationally supervised Statehood for Kosovo was firmly rejected by
Serbia;87 and in any event the factthat independence was mooted as a possible solution
by a third party cannot alter the express terms of the extant resolution, which clearly
confirms the territorial integrity of Serbia and does not provide for the secession of
Kosovo.
95. It has been argued by some States which have recognized Kosovo that a rightto secede
can be drawn from the fact that it has been under an international administration since
1999.Such an argument has no legal validity.
96. Serbia has maintained its de jure right to sovereignty over Kosovo since the Federal
Republic of Yugoslavia, (to which Serbia is the successor in this context), agreed to the
arrangement set out in resolution 1244(1999); it has not accepted that the resolution has
modified its rights. The whole arrangement established in accordance with the
resolution was adopted after the FRY had given its consent to the broad lines of it. 88It
was, accordingly, an arrangement adopted in a manner consistent with the maintenance
of Serbia's sovereignty over Kosovo. Serbia has largely refrained from physically
exercising its rights in Kosovo, as is to be expected given that it consented to the
provisions of resolution 1244(1999) and accepted its terms. Even so, Serbia has carried
out some State activities in Kosovo, notably the conduct of elections, 89 even after the
declaration of independence. Thisîs, however, of relatively little legal significance in
this context. While the exercise of sovereign rights in a territory may reinforce the
assertion of title to that territory, it is not to be equated with title itself. Serbia's title to
Kosovo was firmly established for many years before the declaration of independence.
97. Even if it were accepted, which the Republic of Cyprus does not, that resolution
1244(1999)preserved Serbia's territorial rights over Kosovo only for an interim period
until a final solution is reached (and, therefore, that the resolution does not necessarily
85O.Corten, "Déclarations Unilatérales d'indépendence et Reconnaissances Prématurées: du KosoàvLo'Ossétie
du Sud et à L'Abkhazie" (2008) Revue Générale de Droit International Public 721, 729-741, argues that the
86claration of independence is incompatible with SC res. 1244(1999).
87Para. 10,paragraph l l(a) and annex2, principle 8.
UN doc. S/PV.5673 and S/PV.5672.
88 Evidenced in the preambular paragraph "Welcoming the general principles on a political solution to the
Kosovo crisis adopted on 6 May 1999 (S/1999/516, annex 1 to this resolution) and welcoming also the
acceptance by the Federal Republic of Yugoslavia of the principles set forth in points 1 to 9 of the paper
presented in Belgrade on 2 June 1999 (S/1999/649, annex 2 to this resolution), and the Federal Republic of
Yugoslavia's agreement to that paper", and in operative paragraphs 1 and 2 in which the Security 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; (2.) Welcomes the acceptance by the
Federal Republic ofYugoslavia of the principles and other required elements referred to in paragraph 1above."
89Local elections were held in Kosovo by Serbian authorities on 11 May 2008,
www .reuters.com/articlePrint?articleleid=USL1110304620080511.
9
° For instance, the title of a displaced sovereign persists following the military occupation of (a part of) its
territory - Hague Regulations Respecting the Laws and Customs of War on Land, 1907,Article 43, annexed to
the Fourth Hague Convention, 100 BFSP 338; S. Talmon, Recognition of Governments in International Law
(1998), pp.219-227; (UK) Ministry ofDefence,The Manual of the Law of Armed Conflict (2004), ss.11.9-11.11,
pp.278-279.
24 preclude the possibility that a final solution could involve some modification of Serbia' s
territorial sovereignty), resolution 1244(1999) plainly does not give to the Secretary
General, or to the international presences, the power themselves to terminate Serbia's de
jure rights. Nor does the resolution contemplate the transfer of any such power to the
institutions, including the provisional authorities, created by the international presence
in Kosovo. 91 There is nothing in either the resolution or the fact of international
administration which gives Kosovo some kind of right of secession which is not
available under general international law. 92
98. Furthermore, the thrust of resolution 1244(1999) is that of a consensual negotiated
settlement accepted by the Security Council. A unilateral imposition of a solution by
one entity is contrary to both the text and spirit of the terms of the resolution. Annex 1
and paragraph 5 of Annex 2 of the resolution clearly state that the establishment of
substantial autonomy for the Kosovo is "to be decided by the Security Council". In
addition, resolution 1244(1999) provides for a political ''process" 93 leading to a
94
"settlement". The term "settlement" is repeated four times in the resolution. A natural
reading of the term 'settlement' requires the meeting of minds between relevant actors.
99. This interpretation is supported by the fact that States have repeatedly rejected the idea
of determining the status of Kosovo by a unilateral act, on the basis that this would be
incompatible95ith the resolution; and they have confirmed the importance of co
operation. The Contact Group bas also stressed that:
"any solution that is unilateral....would be unacceptable. There will be no changes
in the current territory ofKosovo ....The territorial integrity and internai stability of
96
regional neighbours will be fully respected".
100. The United Nations bas no legal power to remove or curtail the sovereignty of any
State over its territory; and nothing in resolution 1244(1999) purports to do so. This
was strikingly and insistently reaffirmed in Sweden's Non-Paper, "A European
97
Strategy for Kosovo". There it is said that:
91
K. A. Wirth, "Kosovo am Vorabend der Statusentscheidung: Überlegungen zur rechtlichen Begründung und
Durchsetzung der Unabhangigkeit" (2007) 67 ZaoRV 1065-1106. See para. 67 above for the terms of the request
for the advisory opinion.
92 See S. Oerter, "The Dismemberment of Yugoslavia: an Update on Bosnia and Herzegovina, Kosovo and
Montenegro", (2007) 40 GYIL 457, 508.
93
94Paragraph l l(e), annex 1and annex 2, principle 8.
Paragraph 11 (a) (c) (f); annex 2, principle 8.
95 See the Presidential statement of 24 April 2002 which states that the Security Council considered that
"dialogue and co-operation... is vital to the full and effective implementation of resolution 1244" (UN doc.
S/PRST/2002/11); the French representative observed that "The Assembly in particular must renounce initiatives
that are contrary to resolution 1244(1999) or the Constitutional Framework. No progress can be achieved in
Kosovo on the basis ofunilateral action that is contrary to resolution 1244(1999)" (UN doc. S/PV.4770, dated 10
June 2003); the Italian representative stated that "1244...(is the) comerstone of the intemational'community's
commitment to Kosovo...urge all concemed in Kosovo and in the region to co-operate in a constructive
manner...on fully implementing resolution 1244(1999) while refraining from unilateral acts and statements ..."
(UN doc. S/PV.4823 dated 12 Sept 2003): the UK representative had earlier noted in 2000 that "It will, in the
end, be up to Belgrade and elected representatives of Kosovo's communities to reach finalgreement between
themselves on status, with the help and support of the international community. That is the import of resolution
1244(1999) ..."emphasis added) (UN doc. S/PV/4225 dated 16November 2000).
96Contact Group, Ten Guiding Principles, (UN doc. S/2005/709).
9713 December 2007: www.europaportalen.se/xvrigtlkosovo-nonpaper-december2007.pdf
25 "With UNSCR 1244 continuing to be in force, and used to authorize the continued
international presence, a full legal recognition of an independent state of Kosovo
hardly seerns possible.
..... As long as 1244 rernains in force, the status of Kosovo will be one of less
than cornplete independence and sovereignty.
..... There are nurnerous precedents for recognition that does not go all the way to
full and cornplete independence. Anyhow, a full and cornplete recognition is
hardly possible as long as UNSCR 1244 rernains in force and Kosovo is notable
to enter key international organisations like the UN, the OSCE and the Council of
Europe."
101. That is a view which the Republic of Cyprus, too, considers to be correct. Indeed, the
Republic of Cyprus wishes to rnake it clear that it does not accept that there is any
power in the Security Council to rnodify territorial title with binding effect under
Chapter VII. 98
102. The rnandatory powers of the Security Council under Chapter VII are dependent upon a
finding that there is a threat to international peace and security and are to be directed to
99
meeting the threat or restoring peace. Those powers are wide but not unlirnited. It is
to be ernphasized that in the instance where the Security Council bas corne closest to
determining a territorial question without the consent of one of the States involved, the
dernarcation of the Iraq-Kuwait boundary under resolution 687(1991), the Council
consistently characterised the exercise as a "technical" one of dernarcation of an
existing boundary. 100Iraq initially contested both the process by which the dernarcation
were arrived at and the basis on which the Commission relied to decide the boundary.
The long-term cornrnitrnent of Kuwait and Iraq to the line settled by the Dernarcation
Commission depends upon the unilateral acceptances of it by each State rather than
upon any decision of the Security Council.
103. Such powers as the Council bas with respect to territorial title are restricted to making
recornrnendations to States under Chapter VI, Article 37(2), when, again, the enduring
legal basis for title would be the agreement reached by States in pursuance of the
recommendation. If the Security Cormeil bas no power, even expressly, to change title
to territory, then it clearly bas no power to do so by implication and Security Council
resolution 1244(1999)rnay not be read to suggest that it does.
Conclusion on resolution 1244(1999)
104. In its terrns, resolution 1244(1999) is predicated on the continued existence of the
sovereignty of Serbia over the territory of Kosovo. The resolution rnakes express
reference to Serbia's consent to the international presences in part of its territory. The
98Cf., K. A. Wirth, "Kosovo am Vorabend der Statusentscheidung: Überlegungen zur rechtlichen Begründung
und Durchsetzung der Unabhiingigkeit" (2007) 67 ZaoRV 1065-1106; G Denis, Le pouvoir normatif du Conseil
de sécurité(2004), at pp. 60-61, 258-261 and 328.
99The Security Council has created the Ad Hoc International Criminal Tribunals for Yugoslavia and Rwanda
under resolutions 827(1993) and 955(1995) but with respect to each the Council accepted that it did not have the
power to confer substantive jurisdiction on the Tribunals other than for existing crimes under customary
100ernational law.
Resolutions 773(1992), 833(1993) and Presidential Statement S/24113 (1992).
26 resolution looks to conditions for the interim administration of Kosovo. If that status is
to result in changes contrary to Serbia's established legal rights, it may be made only
with Serbia' s consent. The fact that Serbia has consented to the exercise of govemance
functions by international bodies in Kosovo, including the facilitation of local
institutions, does not allow those international bodies to confer on those institutions the
power to strip Serbia of its territorial sovereignty over Kosovo. The Security Council
has no power to make changes in a State's territory without that State's consent.
105. Not only is the declaration of independence inconsistent with resolution 1244(1999); it
was also made by a body, the Provisional Institutions, which had no power, under that
resolution or otherwise under international law, to make the declaration. This is
discussed more fully in the following section.
D. The Provisional Institutions had no power to make the declaration of independence
and therefore the declaration is unlawful.
106. The Republic of Cyprus submits that that the declaration purporting to create an
independent State was a matter beyond the legal competence of the Provisional
Institutions.
107. UN Security Council resolution 1244(1999) authorized the UN Secretary-General:
"to establish an international civil presence in Kosovo in order 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 Kosovo" 101
102
108. UNMIK accordingly promulgated the Constitutional Frarnework which established
the Provisional Institutions of Self-Govemment. Since the Provisional Institutions are
institutions of limited authority, they must point to a legal basis for any action which
they take. Chapter 2 of the Constitutional Framework states that:
"The Provisional Institutions of Self-Govemment and their officiais shall (a)
Exercise their authorities consistent with the provisions of UNSCR 1244(1999)
and the terms set forth in this Constitutional Framework."
109. The Framework vested ultimate govemmental authority in the SRSG, with the intention
that powers should be transferred over a period of time to the Provisional Institutions in
Kosovo. Chapter 8 of the Constitutional Framework (see Appendix I) lists among the
"reserved powers and responsibilities which remain exclusively in the bands of the
SRSG" the following:
"(m) Concluding agreements with states and international organizations m all
matters within the scope ofUNSCR 1244(1999);
101
Para.10.
10UNMIK/REG/2001/9 (15 May 2001) amended by UNMIK/REG/2002/9 and UNMIK./REG/2007/29.
27 (n) Overseeing the fulfilment of commitments in international agreements entered
into on behalf of UNMIK;
(o) Externat relations, including with States and international organisations, as
may be necessary for the implementation of his mandate. In exercising his
responsibilities for external relations, the SRSG will consult and co-operate with
the Provisional Institutions of Self-Government with respect to matters of concem
to the institutions"
110. UNMIK lists no Foreign Ministry among the departments of the Provisional
Institutions,103 and it was UNMIK that entered into international trade agreements on
104
behalf of the Provisional Institutions in 2003 and 2005.
111. The limited responsibilities of the Provisional Institutions are outlined in Chapter 5 of
the Framework. They manifestly do not include the power to change Kosovo's
territorial status.05 Even the responsibility for preserving municipal boundaries remains
106
within the powers of the SRSG. The Provisional Institutions were created under the
authority of the UN; and the UN defined the scope of the powers that the Provisional
Institutions could exercise. Those powers did not include the power to conduct foreign
relations on behalf of Kosovo, let alone a power to abandon the UN-defined goal of
"substantial autonomy" and declare Kosovo independent. The declaration of
independence was quite clearly a violation of the legal limitations imposed by the
Security Council on the powers of the Provisional Institutions.
112. The powers of the Provisional Institutions are thus limüed by international law, and in
exercising those powers the Institutions must keep within the terms of resolution
1244(1999) and the Constitutional Framework. Not only do the Provisional Institutions
have no power to declare Kosovo independent, but also any such declaration is contrary
to the terms of resolution 1244(1999) which expressly affirms the sovereignty and
107
territorial integrity of Serbia. As the SRSG stated in 2001:
"The issue of an eventual declaration of independence would hence be
obsolete, since this is by no means within the authority of the self-
government...... Ït is very clear, in how we have defined the powers of the
provisional self-government, that questions about the final status or the
sovereignty are not part of the mandate. That is a reserved power and will be
dealt with when we corne to the final political settlement." 10
103 For the structure of the Provisional Institutions, see the 'Provisional Institutions for Self Government
Organigram', at< http://www.unmikonline.org/pisg/PISG organigram 2008.pdf>.
104See < http://www.unmikonline.org/regulations/unmikgazette/02english/IAE/IAE.h…
105The fact that it was not within the competence of the Provisional Institutions to adopt acts determinative of
Kosovo's final status bas also been observed by the UNMIK Legal Office (UNMIK/FR/0040/01, 25 May 2001)
and it was stated in the UNMIK-FRY Common Document dated 5 November 2001 that 'the position on
Kosovo's future status remains as stated in SC resolution 1244(1999) and that this cannot be changed by any
action taken by the Provisional Institutions of Self-Government'.
106Constitutional Framework Document, Chapter 8.l(v).
107J. Friedrich, "UNMIK in Kosovo, Struggling with Uncertainty" (2005) 9 Max Planck Yearbook of United
Nations Law 225, 260: "The Constitutional Framework is not intended to be a constitutional
document.....UNMIK remains within the limits ofResolution 1244 insofar as it does not allow Kosovo to have a
constitution, because this would have to be seen as a step towards an independent final status without a previous
political settlement and run contrary to Resolution 1244."
108UN doc. S/PV.4387 dated 3 Oct 2001.
28 Conclusion on thepower of the Provisional Institutions
113. The unilateral declaration of independence was, as a matter of international law, beyond
the powers of the Provisional Institutions, since those powers were limited by the
Constitutional Framework made under Security Council resolution 1244(1999). In the
following section we go on to consider whether there is any basis in the rules of
customary international law to give those Institutions any right to claim Statehood.
E. Claims that Serbia bas lost its title over Kosovo by the operation of a rule of law
114. In this submission, the Republic of Cyprus has dealt with the argument that the
Provisional Institutions are entitled under resolution 1244(1999) to declare
independence, concluding that the resolution does not provide any valid legal basis for
the removal of Kosovo from Serbia's sovereignty. Itnow tums to certain arguments that
might be advanced under the general rules of international law. It has already disposed
of the argument that for an area to be under the sovereignty of a State it has to be under
the effective control of that State. 109Three other kinds of claim that Serbia has lost its
title to Kosovo will be considered. First, that the events leading up to 18February 2008
represent the final act in the dissolution of Yugoslavia (SFRY); second, that the change
of title was founded on the application of the law of self-determination; and third that
the loss of Serbia's title was due to the exercise of a "right of secession". Itis concluded
that none of these bas had any impact on Serbia's territorial right to Kosovo.
(i) Serbia's sovereignty over Kosovo is not affected by the dissolution of the SFRY
115. The dissolution of the State of the Socialist Federal Republic of Yugoslavia began in
1991. Towards the end of 1991, the States of the European Communities reached the
conclusion that disintegration was inevitable, and also that what was happening could
not accurately be characterized as the secession from the SFRY of certain territories, on
which new States were being formed, leaving the identity of the old SFRY intact if
110
much diminished in territorial scope. Instead, the EC States saw the process of
dissolution of the SFRY as one which would result in the emergence of a number of
successor States on what had previously been the territory of the SFRY. The EC States
sought to influence what was happening, inter alia, by use of their recognition
prerogatives, accompanied by the innovatory device of an arbitral commission (the
Badinter Commission 111) to offer advice to the European Peace Conference on
Yugoslavia and to the EC States about whether or not the several claimants 112Statehood
had satisfied the criteria for recognition set out in the EC Guidelines.
116. As was noted at paragraphs 36 113 84 above, the Commission based its advice on
general international law, as applied to the circumstances in the region, though the
advice about recognition of particular States was not regulated by international law but
by the terms of the initiative of the EC States expressed in its recognition guidelines.
109See para. 96 above.
110See paras. 32 to 40 above. -
111For details, see M Craven 'The European Community Arbitration Commission on Yugoslavia", 66 BYIL 333
(1995). See also para 36 above. ·
112(1992) 31 ILM 1486.
113
Badinter, Opinion No.l, para. l(a).
29 The Commission endorsed the view that the SFRY was disintegrating 114 and reached
conclusions on whether or not four of115e six entities which applied to it had satisfied
the EU conditions for recognition.
117. The Commission followed the declaratory view of recognition, which it said was the
position in international law. 116It said:
"a) that the answer to the question should be based on the principles of public
international law which serve to define the conditions on which an entity
constitutes a state; that in this respect, the existence or disappearance of the state
is a question of fact; that the effects of recognition by other states are purely
declaratory;
b) 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 a state is
characterized by sovereignty.... "
The Commission concluded eventually that in all cases, entlttes which had been
117
recognized as States had already achieved the status of States.
118. The Commission relied on a modification of the application of the uti possidetis
principle, which it held to be a rule of general international law relevant not only to
post-colonial, self-determination cases but also to the break-up of federal States. It
considered that the previous internai boundaries of the federal State components of the
SFRY were the new international boundaries for the emerging States, contrary to the
ambitions of those trying to alter the boundaries by118rce and establish new, ethnically
homogeneous Stateswith different boundaries.
119. An application to the Badinter Commission for recognition was made on behalf of
Kosovo in December 1991, 119 but was not considered by the Commission. 120 The
Commission was asked whether the Serb populations of Croatia (the Krajina) and of
Bosnia-Herzegovina had a right of self-determination. The Commission said that they
did not, and in particular that any right of self-determination must not involve changes
to frontiers fixed according to the principle of uti possidetis. The Commission decided
that in this context uti possidetis meant adopting the boundaries of the federal States
within the SFRY as the international boundaries between them when they became
States. Accordingly, the Serbian populations were entitled to be treated in conformity
with the international law protection afforded to minorities within a State. 121It is an
irresistible inference that the Commission would have taken the same position about the
population of Kosovo, since the Commission decided that the unit entitled to self-
114Badinter, Opinion No.l, para. 3.
115
Badinter, Opinions Nos.4-7. On the recognition criteria, see EPC Declarations on the Recognition of New
116tes in Eastern Europe and the Soviet Union and on Yugoslavia, 16December 1991: (1992) 31 ILM 1486.
Badinter, Opinion No.l. para. 1(a); Opinion No.8, para. 1.
117Badinter, Opinion No.l; No 11.
118Badinter, Opinion No.3, para. 2.
119Letter from Dr Rugova to Lord Carrington, Peace Conference on Yugoslavia, 22 December 1991, in H
Kreiger, The Kosovo Conflict and International Law: An Analytical Documentation I974-1999, (2001), p.118;
120 also the Report of the Secretary-General of the UN (UN doc. S/24795).
M Vickers, Between Serb and A/banian: a History of Kosovo (1998), p.252; R Capian, Europe and the
Recognition of New States in Yugoslavia2005), p.139.
121Badinter, Opinion No.2.
30 122
determination was the FRY. It should be emphasised that if previous interna!
boundaries within a disintegrating State are to be relied on as the international
boundaries of the emerging States, those boundaries must be the ones established under
123
the domestic law of the now disappeared State. At the time of the independence of
the FRY, the territory of Kosovo was, according to the law of the SFRY, part of
Serbia. 124
120. The Badinter Commission made reference to self-determination and to the protection of
minorities as principles of international law. The manner in which it did so is
significant. lt referred to self-determination for the purpose of fixing the limits of the
units which might achieve Statehood and then apply for recognition, rather than as the
basis for selecting the peoples which had a right of self-determination that then might be
exercised in favour of a claim of Statehood. The identification of the territorial limits of
the self-determination units by the Badinter Commission has been accepted by all the
States which have emerged from the dissolution of the SFRY, despite major efforts by
armed force, movement of populations and political measures to change them. The
Commission's conclusions were reinforced by the terms of the Dayton Agreement
which brought the Bosnian wars to an end. While elaborate constitutional arrangements
were made for the federal State of Bosnia and Herzegovina, no changes were proposed
to its extemal boundaries, which followed those of the former federal State of Bosnia
Herzegovina within the SFRY.
121. The result of the process of disintegration of the SFRY was the emergence of a number
of new, successor States. Kosovo was then and is today part of the territory of Serbia.
Even after the international presences took their places in Kosovo after the adoption of
Security Council resolution 1244(1999), States and international bodies understood that
Serbian sovereignty continued.
Conclusion: There is no right to independence arisingfrom the dissolution of the SFRY
122. The population of Kosovo thus have no claim to be entitled to Statehood on the basis
that they have acquired this right by the dissolution of the SFRY. That process has long
since finished, and was conducted according to standards by which any claim by
Kosovo to independence would have been inadmissible. 125
(ii) The unilateral declaration bas no basis in the right of self-determination
123. The Republic of Cyprus submits that there is no validity in a claim that the population
of Kosovo have a right of self-determination under international law which might give
them a i-ightto secede from Serbia.
124. The right of ~elf-determination ofpeoples is firmly established in international law. The
Court has noted that "the principle of self-determination has been recognised by the
United Nations Charter and in the jurisprudence of the Court... [and] is one of the
122
This is the necessary implication of Opinion No.8.
123See M Shaw, "The Heritage of States: the Principle ofUti Possidetis Juris Today" (1996) 77 BYIL 75, 116-
119.
124See para. 33 above.
125Badinter, Opinion No.8 stated that "the process of dissolution of the SFRY... is now complete and the SFRY
no longer exists." ((1992) 31 ILM 1486 at 1523) ).
31 126
essential principles of contemporary international law." While there is ~ long history
behind the principle of self-determination, its status as a legal right and the content of
that right was not fixed at the time of the making of the UN Charter. Rather, it evolved,
first, during the decolonisation period and, second, in the context of the development of
the international law ofhuman rights.
125. In the decolonisation period, the Declaration on the Granting of Independence to
Colonial Countries and Peoples adopted by the General Assembly in 1960 127 affirmed
that "All peoples have the right to self-determination." Insofar as that right conferred the
entitlement to "complete independence", it was limited to "trust and non-self-governing
territories or all other territories which have not yet attained independence" (paragraph
5). Immediately after requiring the transfer of power to such territories, the resolution
affirms 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."
126. This stipulates that the right of self-determination does not give a right to dismember
existing States. So far as the right to independence was concerned, the Declaration was
limited to processes of decolonisation and similar situations.
127. The 1970 Friendly Relations Declaration 128 affirmed the right of self-determination and
stated that the right could be exercised by the establishment of a sovereign and
independent State, the free association or integration with an independent State, 129the
emergence into any other political status freely determined by a people. With its
focus on the right of peoples to choose their own extemal political status, this is often
terrned the right of' external self-determination'.
128. The Friendly Relations Declaration also made it clear that 'peoples' enjoying the right
of externat self-determination included those subjected to "alien subjugation,
domination and exploitation". This was a category recognised as referring to the
situations of Palestine, and of Namibia (then under South African domination). One
distinguished commentator has described this category as one where a State domina130
the people of a foreign territory against their will by recourse to force. The right
applies particularly in relation to military invasion or belligerent occupation of a foreign
territory:
"The right to extemal self-determination is thus, in a sense, the counterpart of the
prohibition on the use of force in international relations. In many cases, the breach
of extemal self-determination is simply an unlawful use of force looked at from
the perspective of the victimised people rather than from that of the besieged
126
East Timor (Portugal v. Australia), Judgment, J.C.J. Reports 1995, p. 90, at 102, para. 29 ; see also Legal
Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa)
notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 1.C.J. Reports 1971, p. 16; Western
Sahara, Advisory Opinion,l.C.J. Reports 1975,37.
127G.A. res. 1514 (XV) of 14December 1960.
128Declaration on Principles of International Law conceming Friendly Relations and Co-operation among States
in accordance with the Charter: GA res. 2625(XXV) of 24 October 1970.
129
130GA res. 154l(XV) of 15 December 1960 had already specified the first three ofthese modes.
A. Cassese, SelfDetermination of Peoples: a Legal Reappraisal (1995), pp. 90-99.
32 131
sovereign State or territory."
129. During the decolonisation period, therefore, the right of external self-determination
applied to the inhabitants of non-self-governing territories, of trust and mandated
territories, and of territories similarly under alien domination as discussed above. The
1960 Declaration on the Granting of Independence to Colonial Countries and Peoples
was simply a resolution of the General Assembly but it is widely regarded as reflecting
customary law, whether at the time or subsequently, so far as the right of self
determination for colonial countries and peoples is concerned. 132 The right of self
determination reflected in the General Assembly resolutions was essentially a right of
decolonisation and freedom from military occupation. 133 Minorities within a State were
not covered by the resolutions, and were emphatically not within the scope of the
concept of self-deterrnination.
130. Within the context of the law of human rights, the UN Covenants on Civil and Political
Rights and on Cultural, Economie and Social Rights, adopted in 1966, each referred to
the right of self-deterrnination in their respective Articles 1, which is identical in each
Covenant. Article 1reads as follows:
1. Ail peoples have the right of self-deterrnination. By virtue of that right they freely
determine their political status and freely pursue their economic, social and
cultural development.
2. All peoples may, for their own ends, freely dispose of their natural wealth and
resources without prejudice to any obligations arising out of international
economic co-operation, based upon the principle of mutual benefit, and
international law. In no case may a people be deprived of its own means of
subsistence.
3. The State Parties to the present Covenant, including those having responsibility
for the administration of Non-Self-Governing and Trust Territories, shall promote
the realisation of the right of self-determination, and shall respect that right, in
conformity with the provisions of the Charter of the United Nations.
131. Like the General Assembly resolutions in the decolonisation period, the Covenants refer
to the holders of these rights as 'peoples'. Minorities within a State are not included. 134
The position of minorities is separately addressed, in Article 27 of the Covenant on
Civil and Political Rights, whièh provides that persons belonging to minorities:
"shall not be denied the right, in community with other members of their group, to
enjoy their own culture, to profess and practise their own religion, and to use their
own language."
132. The application of the Covenants is of course not limited to colonial situations; and the
Covenants are drawn up in a more general and binding form that the resolutions on
131A. Cassese, Self-Determination of Peoples: a Legat Reappraisal (1995), p. 99.
132R. Jennings and A. Watts (eds.), Oppenheim 'sInternational Law: Peace (9 ed, 2007), p. 286 n. 17.
133See generally chapter Il of M. Pomerance, Self-Determination inLaw and Practice (1982).
134R. Higgins, Problems and Process (1994), p.124; P. Thomberry, "Self-determination, Minorities,
Human Rights: A Review oflntemational Instruments", 38 I.C.L.Q. 871 (1989).
33 decolonisation. The right to external self-determination in colonial situations is
reaffirmed in paragraph 3 of Article 1 of the Covenants. The Article as a whole,
however, impliedly recognises the right of access to political systems, and economic
135
and cultural rights. This is termed internal self-determination and is a right for all
people living within a State's jurisdiction. 136 There is accordingly a shift of meaning in
both 'self-determination' (to include interna}self-determination) and 'peoples' (to mean
all people within a State). The reference to the UN Charter in paragraph 3, as one
137
distinguished commentator has put it, "aims at excluding the right of secession" .
133. The numerous later references to the right of self-determination in international
instruments, such as in the Helsinki Final Act of the Conference on Security and Co
Operation in Europe, 138 are not expressly limited to colonial situations. But the right
they affirm, for situations other than colonial and non-self-governing territories, is not
the right of external self-determination. That would amount to accepting an unlimited
right of secession, a position which is not supported by the travaux of such instruments
or more generally in international law. 139 Indeed the wording of some texts seems
consciously140 limit the right as existing subject to the principle of territorial
integrity. While the concluding document of the Vienna Meeting in 1989 of the
Conference on Security and Co-operation in Europe on the follow-up to the Helsinki
Final Act referred to the right of self-determination in principle 4, the following
principle states that the participating States:
"... confirm their commitment strictly and effectively to observe the
principle of the territorial integrity of States. They will refrain from any
viblation of this principle and thus from any action aimed by direct or
indirect means, in contravention of the purposes and principles of the
Charter of the United Nations, other obligations under international law
or the provisions of the [Helsinki] Final Act, at violating the territorial
integrity, political independence or the unity of a State. No actions or
situations in contravention of this principle will be recognized as legal by
141
the participating States."
134. Having regard to this and other instruments, 142the reference in the Helsinki Final Act to
a people determiriing its external political status must be read as the expression of
extemal political status for the whole population of a State through the govemment of
135
" ••the travaux préparatoires of the covenants do not establish that the right of self-detennination, defined as
a unilateral right to independence, was intended to apply outside the context of decolonisation." Hurst Hannum,
"Rethinking self-detennination in international law" 34 Virginia Journal of International Law (1993) 1at p.32
136R. Higgins intetprets 'peoples' in the Covenants in the sense of'al! the peoples of a given territory' (R.
Higgins, Problems and Process (1994), p,124).
137
138A. Cassese, UnitedNations Law/Fundamental Rights (ed,) Cassese (1979), p. 143.
1August 1975.
139D. Raie, Statehood and the Law of Self-determination (2002), p.234.
140E.g. Charter of Paris 19-21 November 1990 which reaffirms "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
141ernational law, including those relating to territorial integrity of states".
Concluding Document of the Vienna Meeting 1986 of Representatives of the Participating States of the
Conference On Security and Co-Operation In Europe, Held on the Basis of the Provisions of the Final Act
Relating to the Follow-Up to the Conference, 15 January 1989.
142E.g. Charter of Paris 19-21 Novemberl990 which reaffinns "the equal rights ofpeoples 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 relating to territorial integrity of states".
34 the existing State.143 The international instruments which continue to refer to the right
of self-determination give no right for a part of an existing State to dismember the State.
An example from the African Commission on Human and People's Rights illustrates
the point. In Katangese Peoples' Congress v Zaire, the Commission considered the
Katangese a people for the purpose of self-determination. But the Commission rejected
their claim to secession and said that "Katanga is obliged to exercise a variant of self
determination that is compatible with the sovereignty and territorial integrity of
144
Zaire." The Committee on the Elimination of Racial Discrimination considered the
point in its Recommendation XXI on the right to self-determination in 1996 (A/51/18).
The Committee noted that "ethnie or religious groups or minorities frequently refer to
the right to self-determination as a basis for an alleged right to secession." The
Committee stated:
"In the view of the Committee, international làw 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 (paragraphs 17
and following), namely, that a 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 reached by free
agreements of all parties concerned."
135. Self-determination is thus a right of peoples beyond the decolonisation context, and has
been recognised as such in numerous instruments. The right applies between the State
and all its population, giving people the right to choose the form of govemment and
have access to constitutional rights. This is internai self-determination. As a
distinguishedcommentator puts it:
"Self-determination for peoples or groups within a State is to be achieved by
participation in the constitutional system and on the basis of respect for its
145
territorial integrity."
136. Thefirst consequence of this reasoning for the claim asserted in respect of Kosovo is 146
that neither the population of Kosovo (which is not limited to ethnie Albanians ) nor
the Albanian population in Serbia as a whole, are a 'people' for the purpose of the right
147
of extemal self-determination.
137. Even in the Milosevic era, when there was repressive State action and violation of
human rights, the Security Council, the Contact Group and the other mechanisms used
for mediation between the two sides did not accept that Kosovo had a right to
independence. As a distinguished commentator summed up the position in the mid-
1990s:
143A. Cassese, Self-Determination of Peoples: a Legal Reappraisal (1995), p.287.
144Katangese Peoples' Congress v. Zaire, African Commission on Human and Peoples' Rights, Comm. No.
75/92 (1995).
145 nd
146J.Crawford, The Creation of States in International Lawed, 2006), p. 417.
147See paras. 25 and 27 above and Appendix Il.
See, to the same general effect, the conclusion of Bing Bing Jia, Tsinghua University Law School, Beijing,
"The Independence of Kosovo: A Unique Case of Secession" 8 Chinese Journal of International Law (2009) p.
27 atpp.31-37.
35 "... .the status of Kosovo as part of Serbia (and thus of the FRY) was not
questioned by the outside world and, in contrast to the populations of the republics
which made up the SFRY, the Kosovars were not generally perceived as
possessing a right of self-determination (at least in the form of a right to create an
independent State)." 148
138. Nothing that has happened since then has converted the ethnie Albanians resident in
Kosovo into a self-determination entity. Security Council resolution 1244(1999), as is
explained above, supports the view that far from a right of external self-determination
being accepted by the Security Council, the territorial integrity of Serbia was to be
safeguarded. Indeed, not only is there no right of external self-determination for the
ethnie Albanians, but the dismemberment of Serbia is contrary to the right of self
determination of the Serbian population taken as a whole.
139. The second consequence of this reasoning is that the Kosovo Albanians and the
Albanians in the State of Serbia as a whole constitute a minority and as such enjoy all
the human rights to which the people of a State, and the minorities within it, are entitled.
Thus, to assert that Kosovo does not have a right of externat self-determination is not at
ail to ignore the undoubted human rights of all of its population, including the rights
laid down in Article 27 of the ICCPR and in Article 25 of the ICESC. Serbia has
international law obligations to each group as a whole and to individuals as members of
that group. All are entitled to treatment which recognizes their status and which allows
them both individually and as a group effective participation in the State. For breaches
of those obligations Serbia would bear State responsibility; but the remedy for any such
breaches is not the splitting up of the State.
No 'right of secession of fast resort'
140. Ithas sometimes been argued that there is a right of external self-determination outside
the colonial context where a distinct part of a population bas suffered gross and
systematic violations of human rights, that is, where the right of interna! self
determination bas not been accorded to them. This purported right is sometimes derived
from an interpretation of paragraph 7 of the 'principle of equal rights and self
determination of peoples' in the Friendly Relations Declaration, which reads as follows:
"Nothing in the foregoing paragraphs 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 self-determination and
thus possessed of a government representing the whole people belonging to the
territory without distinction as to race creed or colour."
This paragraph is followed by paragraph 8, which reads:
"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."
148Professor (now Judge) Christopher Greenwood, "Humanitarian Intervention: the Case of Kosovo" in Essays
on Warin International Law (2006), p. 593 at p.598.
36 141. The principle in paragraph 7 was reaffirmed in similar terms by the 149ted Nations
World Conference on Human Rights in Vienna in 1993. An attempt is sometimes
made to draw from an a contrario interpretation of the provision the conclusion that if a
government does not accord interna} self-determination, in the sense of access to its
constitutional system on a racially non-discriminatory basis, to its whole people, those
people have a right to take action dismembering the territorial integrity of the State.
142. This 'right of secession of last resort' would thus make a 'people' of the 'victim' part of
the population. But this enormous step cannot validly be taken from an interpretation of
the provision in question. First, such a major right as this would require a positive
source; rather than a mere a contrario reasoning. Second, the overwhelming majority of
States participating in the drafting of the Declaration did not agree that peoples might
150
have a right of secession from an existing State. Third, the provision refers back to
the right of self-determination as set out in the 1960 Declaration, which, as we have
noted, refers largely to colonial situations and certainly does not refer to minorities
within a State. Fourth, even if the provision does not rule out secession there are plenty
of international law principles that do (see paragraphs 149 to 158 below). In short, the
provision does not recognise a right of secession. On the contrary, and at the most, it
affirms the right of internai self-determination.
143. While the daim that there is a 'right of secession of last resort' has been supported by
some writers and by a contrario reasoning such as that above, it is without support in
151
State practice. It has not emerged as a rule of customary law. It is not found in any
treaty. And it has no support from the practice of the UN. 152 In its decision on the
question of the secession of Quebec, the Supreme Court of Canada considered whether
there was such a right and concluded that "it remains unclear whether this ...
proposition actually reflects an established international law standard". 153
144. Recent State practice is, indeed, clearly against the existence of any such right. 154 The
Government of Russia bas, admittedly, supported the assertion to independence of
South Ossetia following alleged human rights and humanitarian law abuses by
155
Georgia. Itbas also supported the claimed independence of Abkhazia. But although
these 'States' have been recognized by Russia, a much larger number of States has
complained that these recognitions are unlawful, and that the status of the territories
156
remain unchanged. The purported secessions from Georgia in defiance of the wishes
149Vienna Declaration and Programme of Action, 25.6.1993 (UN doc. A/CONF.157/24 (Part I), 13 October
1993. Reproduced in (1993) 32 ILM 1061).
150A. Cassese, Self-Determination of Peoples: a Legat Reappraisal (1995) p. 112.
151
P Hilpold, "Die Sezession: zum Versuch der Verrechtlichung eines faktischen Phanomens" (2008) 63 ZoR
117-142.
152J. Crawford states: "Outside the colonial context the United Nations is extremely reluctant to admit a seceding
entity to membership against the wishes of the government of the State from which it has purported to secede.
There is no case since 1945 where it has done so." The Creation of States in International Law (2ed, 2006),
15317. He discusses the practice with regard to unilateral secession at pp. 415-418.
154Reference re Secession of Quebec [1998] 2 S.C.R. 217, reproduced in 115 ILR p.539 at 585, para. 130.
P Hilpold, "Die Sezession: zum Versuch der Verrechtlichung eines faktischen Phanomens" (2008) 63 ZôR
117-142.
155UN Security Council debate dated 28 August 2008 (UN doc. S/PV.5969).
156See for example the declaration by the Presidency of the Council of the European Union dated 26 August
2008 which reads: "The Presidency of the Council of the European Union takes note of the decision taken by the
Russian authorities to recognize the independence of Abkhazia and South Ossetia. The Presidency strongly
condemns this decision, which is contrary to the principles of Georgia's independence, sovereignty and
37 of the territorial sovereign have been criticised as being contrary to the principle of
territorial integrity. The international corrimunity as a whole bas clearly not adopted the
position that South Ossetia and Abkhazia have any legal right of secession.
145. While the case of Bangladesh is sometimes mentioned in support of a claim to
'secession of last resort', that case was not fully resolved, and the admission of
Bangladesh into the United Nations took place only after recognition of the State by
Pakistan. 157 In any event, this one case alone cannot give rise to a valid claim for the
existence of a right of secession in the circumstances of gross human rights breaches.
Accordingly, there is no right of 'secession of last resort' as a strand of the law of self
determination or otherwise, on which the population of Kosovo could rely to create a
State on part of the territory of Serbia, however serious might have been the human
rights violations in the past by the Serbian authorities.
146. Finally, even if there were a 'right of secession of last resort' this would not have an
application to Kosovo. First, the rationale behind any recognition of a right of last
resort is to enable â people to protect themselves from destruction by hµman rights
abuses. But the human rights violations by the government of Serbia ended in 1999.
Since the Milosevic era there have been extensive changes in the government of Serbia.
Sorne of those persons responsible for the abuses committed in Kosovo have been
prosecuted by the International Criminal Tribunal for the former Yugoslavia. 158
Allegations of ill-treatment several years ago cannot be a justification for allowing the
dismemberment of a State now.
147. Second, secession was not 'the last resort' for Kosovo. Alternative solutions could have
satisfied any right of internai self-determination in conformity with the general trend in
international law towards options of internai self-determination rather than external self
determination, i.e. secession. It would also have respected the widespread reservations
of States towards full-scale independence. As indicated in paragraph 57 above, the time
given to explore such options by Special Envoy Ahtisaari was very short and could not
be said to give rise to a claim for any action as a 'last resort'. Indeed, although
references to the human rights abuses of the Milosevic era have frequently been made in
relation to the situation of Kosovo, a right of 'secession as a last resort' does not seem to
have been a159nced as a matter of law by governments which have recognised Kosovo
as a State.
Conclusion: Kosovo has no right to external self-determination
148. In sum, neither the General Assembly resolutions, nor the human rights Covenants, nor
territorial integrity, recognized by the United Nations Charter, the final Act of the conference on security and
cooperation in Europe and the relevant Security Council Resolutions. In this context, the Presidency strongly
recalls its commitment to the principle of Georgia's territorial integrity within its intemationally recognized
borders."
157Bangladesh declared its independence in December 1971 but was not recognized by Pakistan until February
1974and was not adrnittedto the UN until September 1974.
158For example, former Serbian president Milan Milutinovic and five co-accused have been tried for war crimes
and crimes against humanity: Milutinovic et al IT-05-87, ICTY. Discussed at n.31 above.
159O. Corten indeed concludes, having examined such statements made on recognition, that "le Kosovo semble
plutôt plaider contre la validité de la théorie de la "sécession-remède".("Déclarations Unilatérales
d'indépendence et Reconnaissances Prématurées: du Kosovà L'Ossétie du Sud eà L'Abkhazie" (2008) Revue
Générale de Droit International Public 721 at 727).
38 any other rule of customary or treaty law gives any basis for an argument that there is a
right of external self-determination for a part of the population of an existing State.
Accordingly, the Kosovo population cannot draw from the right of self-determination
any right to dismember the State of Serbia.
(iiiA 'right of secession'
149. It is sometimes argued that the authorities of a discrete area within an established State
have a 'right of secession' even absent any consideration of self-determination. What is
claimed is a right to remove the territory and its people from the extant sovereignty
without the consent of the 'parent' State, whether by a process within the State's
constitution or in some other way. The purpose of the secession may be to establish a
new State or to join another State. Thus, the authorities in Somaliland claim a right to
secede from Somalia and create their own State; 160 and those in Nagomy-Kharabakh
claim to have established a State by secession from Azerbaijan. 16• However, there is no
such 'right' - how could there be for a non-State group, absent some element of self
determination which gives a 'people' a right in international law? Claims to a right to
secede have been rejected by the 'parent' States and have not been accepted by other
States (except in very exceptional circumstances and then, always subject to further
objection by the 'parent' State).
150. As Professor Crawford writes:
"... unilateral secession did not involve the exercise of any right conferred by
international law 1nternational law has always favoured the territorial
integrity of States, and correspondingly, the govemment of a State was
entitled to oppose the unilateral secession of part of the State by all lawful
means." 162
151. He concludes his survey of State practice as follows:
"... State practice since 1945 shows very clearly the extreme reluctance of
States to recognize or accept unilateral secession outside the colonial
context." 163
152.The crucial element is the position of the established sovereign State, for be goes on:
"... where the government of the State concemed has maintained its
opposition to an attempted unilateral secession, such secession bas in modem
164
practice attracted virtually no international support or recognition."
153. International practice militates strongly against the legality of secession. Claims to a
'right of secession' are frequently supported by appeals to history but these daims enjoy
no support in international law in cases where the established sovereign resists the
160
161www.somalilandgov.com
www.nkr.am/eng/constitution
162J. Crawford, "State Practice in International Law in relation to Secession" 69 BYIL 85, 86-87 (1998).
163Id, 114.
164Id, 116.
39 165
secession. The practice is remarkably consistent: the treatment of Chechnya ,
Tibet 166,Aceh 167,and Papua, 168 may be cited as examples. The instability which would
result from the concession of a general right to secession to any group proclaiming its
ambition to create a new State is obvious and it is not surprising that State practice
shows no examples in the period since 1945 of non-consensual secession, outside the
colonial context.
154. In a rare judicial examination of the question of secession in international law, the
Supreme Court of Canada (which had received extensive evidence from experts m
international law on the matter) said:
"It is clear that international law does not specifically grant the component
parts of sovereign States the legal right to secede unilaterally from their
'parent' State." 169
155. The Republic of Cyprus endorses this opinion and is strongly opposed to any
modification of the existing position, which is essential for the stability of States and for
the international relations between them. 170Matters such as this are to be managed by
negotiation, with solutions to be found within the prevailing territorial dispositions, save
where the national government concedes a settlement which leads to a change of title
and, perhaps, the creation of a new State. The Republic of Cyprus notes that, in rather
different circumstances, attempts to find a solution to the Cyprus problem and the
situation in the occupied area of its own territory have continued for more than thirty
years; but no international body or any State other than Turkey currently recognizes a
State in the occupied area. Those negotiations proceed on the basis that the Republic of
171
Cyprus is a single State within the whole of its territory.
156. The absence of practice which endorses a right of secession may be contrasted with the
great weight of practice supporting other rules of international law which reinforce the
territorial rights of States, notably the effect of the doctrine of uti possidetis both on the
172
persistence of colonial boundaries for post-colonial States in Africa and on the
165
166. Raie, Statehood and the Law of Self-determination (2002), pp.375-378.
For China's rejection of the latest call even for autonomy for Tibet, see
<http://www.iht.com/articles/2008/l l/l 0/arts/tibet.php>.
167Memorandum of understanding between the Government of the Republic of Indonesia and the Free Aceh
Movement (15 August 2005): "The Government of Indonesia (Gol) and the Free Aceh Movement (GAM)
confirm their commitment to a peaceful, comprehensive and sustainable solution to the conflict in Aceh with
dignity for all. The parties commit themselves to creating conditions within which the government of the
Acehnese people can be manifested through a fair and democratic process within the unitary state and
constitution of the Republic of lndonesia"emphasis added). Text at <http://www.reliefweb.int/rw/rwb.nsf/db
900sid/SODA-6FC7HP?OpenDocument>.
168(2007) 78 BYIL, UKMIL 2007, pp.686-687.
169Reference re Secession ofQuebec [1998] 2 S.C.R. 217, reproduced in 115ILR p.539, at 572, para. 111.
170
171See paras. 82 to 90 above.
Another example where negotiations have continued for many years concerns the disputed territory of
Kashmir.
172M. Shaw, "The Heritage of States: the Principle of Uti Possidetis Juris Today" (1996) 77 BYIL 7, pp.116 to
119.Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, J.C.J. Reports 1986, p. 554, at 565, para. 20
(utipossidetis a "general principle, which is logically connected to the phenomenon of obtaining independence
wherever it occurs."); Land Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua
intervening) J.C.J Reports 1992, p. 350, at 559, para. 333 states "when the principle of uti possidetis juris is
involved, the jus referred to is not international law but the constitutional or administrative law of the pre-
40 emphasis put on constitutional solutions for the protection of minorities and other
173
groups, such as devolution and autonomy. It should be noted that in post-colonial
examples, the principle of self-determination has not trumped a claim of territorial
sovereignty deriving from the application of uti possidetis - factors such as ethnicity,
pre-colonial title or economic coherence have never been regarded as sufficient ground
for departing from a boundary line deriving from utipossidetis. 174
Conclusion on the non-existence of a right of secession in this case
157. It is clearly the case that Serbia has not given any consent to the secession of Kosovo.
Accordingly, there is no 'right' for the people of Kosovo- even less, for the ethnie
Albanian community in Kosovo - to secede from Serbia. As is explained at paragraphs
173to 183below, such defacto authority as the Provisional Institutions have in Kosovo
is, both as a matter of law and as a matter of fact, dependent upon the international
presences there. Serbia consented to these international presences, but only on the basis
that there was no effect on its sovereign rights over the territory.
Conclusion on 'rights' to assert Statehood
158. The conclusion is that the Provisional Institutions can show no rule of international law
which explains how the sovereignty of Serbia over Kosovo, incontestably in place on 17
February 2008, could have been terminated on the next day, so as to allow the
Provisional Institutions to declare a new State on Serbian territory in a way compatible
with international law. They cannot explain how their declaration of independence itself
could have the legal effect of severing Serbian sovereignty and creating an independent
State of Kosovo.
F. The uniJateral declaration has not created a State
Introduction
159. In the preceding paragraphs the Republic of Cyprus has put forward four broad
submissions:
1. that the declaration is incompatible with the fundamentally important principles 175
sovereignty, territorial integrity, and the sanctity of international borders;
11. that there is nothing in Security Council resolution 1244(1999) to permit the
declaration of independence; 176
m. that the declaration of an independent State was a matter beyond the legal
competence of the Provisional Institutions; 177 and
173ependence sovereign."
For example, the Constitution ofBosnia-Herzegovina established by the Dayton Accords (1996) 35 ILM 170;
"Good Friday" Agreement for Northem Ireland, <www.nio.gov.uk/agreement.pdf>.
174M. Shaw, "The Heritage of States: the Principle ofUti Possidetis Juris Today" (1996) 77 BYIL 75.
175Paras. 82to 90 above.
176Paras. 91 to 105 above.
177Paras. 106to 113 above.
41 1v. that there is no legal principle under general international law which could
provide an exceptional justification for the dismemberment of Serbia. 178
160. Here the Republic of Cyprus makes its fifth broad submission: that there is no credible
argument that, even though there was no legal right to establish an independent State of
Kosovo, international law will overlook the illegality and treat Kosovo as a State
because it has the objective characteristics of a State.
161. In order to explain its view of the relevant principles of international law .these
observations of the Republic of Cyprus will, for the sake of clarity, first consider the
general criteria of Statehood and comment briefly upon the points at which Kosovo
appears to fall short of satisfying those criteria. This systematic approach should not be
allowed ·to obscure the main point which the Republic of Cyprus wishes to emphasize,
which is that Statehood is not a status that can be achieved in defiance of international
law. Specifically, Statehood is not a status that can be claimed by a group that has
established a factual presence in, and a degree of control over, an area of land in
violation of international law, for example through the use of force.
'The criteria of Statehood'
162. Itis sometimes suggested that any entity which displays the characteristics of a State is
ipsofacto a State, and entitled to be recognized as such regardless of the manner in
which it came into existence. This might be called the notion of 'objective Statehood'.
Were this notion correct as a matter of international law, and were Kosovo to be
securely 179in possession of those characteristics, it might be argued that Kosovo could
be considered a State and that the declaration of independence is accordingly an
accurate declaration of the existing state of affairs. The Republic of Cyprus does not
consider that Kosovo does possess the characteristics of a State. Furthermore, it
considers that international law now attaches a condition of legality to the achievement
of Statehood, which is of particular importance in the context of the question put to the
Court.
163. The Republic of Cyprus notes that this question was carefully discussed180 the Supreme
Court of Canada in the Reference re Secession of Quebec, where the Court
emphasized the crucial distinction between the power of an entity to declare itself
independent and the right of an entity to do so. It said that:
"A distinction must be drawn between the right of a people to act, and their power
to do so. They are not identical. A right is recognized in law: mere physical
ability is not necessarily given status as a right. The fact that an individual or
group can act in a certain way says nothing at all about the legal status or
consequences of the act. A power may be exercised even in the absence of a right
178Paras. 114to 158 above.
179Merely transitory possession of (to anticipate the factual criteria of Statehood) a permanent population, a
defined territory, and an effective and independent government would not be sufficient: insurgents may possess
those attributes even while there is an army in the field attempting to restore the control of the established
government over the entire territory of the State which they are attempting to seize or from which they are
attempting to secede. In order to be a State it is necessary that the entity appear likely to be able to maintain its
180session of the requisite factual characteristics.
[1998] 2 S.C.R. 217.
42 to do so, but if it is, then it is exercised without legal foundation." 181
164. This question is entirely independent of the questions of the existence of a duty of
recognition and of the effects of recognition. For the purposes of this Written
Submission, the Republic of Cyprus accepts the view of the Conference on Yugoslavia
Arbitration Commission (the 'Badinter Commission') that "recognition is not a
prerequisite for the foundation of a State and is purely declaratory in its impact." 182
Conversely, an entity that is, as a matter of international law, incapable ofbeing a State,
cannot be converted into a State by recognition. This point, too, is reflected in the
judgment of the Canadian Supreme Court in the Reference re Secession of Quebec. The
Court said that:
"As a court of law, we are ultimately concerned only with legal daims. If the
principle of "effectivity" is no more than that "successful revolution begets its
own legality" (S. A. de Smith, "Constitutional Lawyers in Revolutionary
Situations" (1968), 7 West. Ont. L. Rev. 93, at p. 96), it necessarily means that
legality follows and does not precede the successful revolution. Ex hypothesi, the
successful revolution took place outside the constitutional framework of the
predecessor State, otherwise it would not be characterized as "a revolution". 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." 183
165. In the present case the question putto the Courtis one oflegality. Thus, the question of
the status of Kosovo is one to be answered on the basis of the criteria established by
international law. Statements recognizing or not recognizing Kosovo made by other
States may have some value as evidence of Kosovo's compliance with those criteria;
but they can have no determinative legal effect upon Kosovo's status.
The Basic Factual Elements of Statehood
184 185
166. The relevant factual characteristics of a State have in the past often been said to be
those to which reference was made in the 1933 Montevideo Convention on Rights and
186
Duties of States. Article 1 of the Montevideo Convention reads as follows:
"The state as a person of international law should possess the following
qualifications: a) a permanent population; b) a defined territory; c)
govemment; and d) capacity to enter into relations with the other states."
181At para. 106.
182Opinion No. 10 (1992), para. 4: (1992) 31 ILM 1488 at 1526.
183
184At paras 142, 144.
The characteristics are, of course, not purely factual in nature: but this is a convenient way to refer to
characteristics that are 'objective' in the sense that they may be discemed by third states, and not characteristics
that are bestowed by third states upon the entity in question.
185See, for example, the Decision of the ICTY Trial Chamber dated 16 June 2004 in Case No. IT-02-54-T,
Prosecutor v Slobodan Milosevic, at paragraphs 85-92.
186165LNTS 19.
43 167. As bas often been pointed out, 187the fourth factual criterion, the 'capacity to enter into
188
relations with other States' is a consequence rather than an indicium of Statehood,
and is in any event a characteristic that is shared by certain non-State entities, such as
international organizations. It is generally accepted that this criterion should be
understood to refer to the need for the independence of the entity, so that its authorities
may decide for themselves, free from the direction189 control of any other entity, the
nature of their dealings with other States. 'Puppet' regimes, for example, fail to
satisfy this criterion and have accordingly not been recognized as States. 190
168. Sorne States andjurists follow a slightly different approach, identifying three rather than
191
four factual elements of Statehood. The three elements are: a) Staatsvolk or
population; b) Staatsgebiet or territory; and c) Staatsgewalt or (effective) government.
The last element, Staatsgewalt, is, however, understood to include both interna} and
extemal sovereignty; and the latter is understood as signifying independence, i.e. legal
independence. 192 This approach, therefore, is consistent with the Montevideo formula as
that formula bas in fact been applied.
169. The Republic of Cyprus considers, broadly speaking, that this approach reflects the
factual criteria of Statehood, in the sense that no entity that does not fulfil these criteria
can properly be said to be a sovereign State in international law.
170. Practice in relation to the break-up of the former State of Yugoslavia confirms the
continuing validity of this approach to the identification of the factual elements of
Statehood. The Badinter Commission, which reported on these questions and explicitly
193
based its Opinions upon "the principles of public international law", stated in its first
Opinion:
"that the State is commonly defined as a community which consists of a
territory and a population subject to an orfanized political authority; that such
19
a State is characterized by sovereignty."
The wording is different but the effect is the same, the requirement of independence
being imported through the reference to 'sovereignty'.
171. Compliance with the first three 'Montevideo' criteria territory, population, and
effective government - is essentially a question of fact, in the sense that only facts need
tobe established and no specifically legaljudgment needs to be made.
187 nd
See, e.g., J. Crawford, The Creation of States in International Law (2 ed, 2006), p. 61.
188 The criterion as commonly framed refers to relations with "with other States" rather than "with the other
States.
189PM Dupuy, Droit international public, (8 ed, 2006), p. 31.
190 th
191See, e.g., the refusa! to regard Manchukuo as a State: M. Shaw, International Law (6 ed, 2008), p.468.
E.g., Germany: see (1996) 56 ZaôRV 1007-1008, (2000) 60 ZaôRV 901, and Talmon Kollektive
Nichtanerkennung (2006) 223. This appears to derive from the doctrinal approach of the German jurist Georg
Jellinek. For a recent example, see (2006) 66 ZaôRV 990.
192 See the Oberveiwaltungsgericht Münster, Decision Nr 89/1 (14 Feb 1989) in (1991) 51 ZaôRV 19L C
Schaller 'Die Sezession des Kosovo und der vôlkerrechtliche Status der intemationalen Prasenz' (2008) 46 AVR
193-171.
Opinion No. 1(1992), paragraph l(a). See (1992) 31 ILM 1488 at 1495.
194Opinion No. 1(1992), paragraph l(b). See (1992) 31 ILM 1488 at 1495.
44 The criteria of Statehood: Population and Territory
172. Although Kosovo has been a part of Serbia since the early twentieth century and bas
been delimited at various times by internai administrative boundaries, the boundaries
have not been constant. Equally, there have been significant shifts in the population,
particularly over the past two decades during a period in which the large-scale
population movements, which had a number of causes including ethnie cleansing. Those
population shifts have seen a significant number of people ofnon-Albanian origin move
out of Kosovo, chan~ing the distribution of ethnie groups within Serbia (and, indeed,
1 5
surrounding States). These movements of boundaries and of population are relevant
aspects of the question of Kosovo; but they involve a detailed account of the facts which
is more appropriately provided by others, and on which the Court will no doubt be
provided with extensive materials. Accordingly, the Republic of Cyprus has no further
observations to make at this stage on the questions of territory and population, in so far
as they relate to the criteria of Statehood under the Montevideo Convention.
The criteria of Statehood: Effective Government
173. In relation to the third Montevideo criterion - the existence of an effective government
- the Republic of Cyprus observes that the Kosovo authorities appear to be some way
from being able to function independently as an effective govemment in the territory.
174. The extent to which the government of Kosovo is dependent as a matter of fact upon the
'international presences' - that is, upon the armed forces and other agencies and
personnel of third States - is clearly reflected in the 'tasks' of EULEX, which manda196
it generally to "monitor, mentor and advise the competent Kosovo institutions" and
mandate it to "contribute to" certain tasks such as the fight against corruption, but give
it primary or ultimate responsibility for other tasks. Thus, it is stipulated in Article 3 of
the EU Council Joint Action which established EULEX that EULEX shall:
"(b) ensure the maintenance and promotion of the rule of law, public order and
security including, as necessary, in consultation with the relevant international
civilian authorities in Kosovo, through reversing or annulling operational
decisions taken by the competent Kosovo authorities;
(d) ensure that cases of war crimes, terrorism, organised crime, corruption, inter
ethnie crimes, financial/economic crimes and other serious crimes are properly
investigated, prosecuted, adjudicated and enforced, according to the applicable
law, including, where appropriate, by international investigators, prosecutors and
judges jointly .with Kosovo investigators, prosecutors and judges or
independently .....
(h) assume other responsibilities, independently or in support of the competent
Kosovo authorities, to ensure the maintenance and promotion of the rule of law,
public order and security, in consultation with the relevant Council agencies."
195
See Appendix II.
19Council Joint Action 2008/124/CFSP, Article 3(a).
45 175. It is apparent that much of the responsibility for governance still falls on the
'international presences'. The Provisional Institutions are not acting independently.
They have not established contrai throughout Kosovo. For example, there is as yet no
197
single legal space across the whole territory of Kosovo.
The criteria of Statehood: Capacity to enter into relations with other States
176. The fourth Montevideo characteristic is different in nature from the first three.
"Capacity to enter into relations with ... other states" is, in so far as it is a question
distinct from the existence of a govemment, at least in part a legal and not a factual
question. It is, moreover, a question that must be answered by reference to matters
outside the entity: it cannot be the case that the entity can itself decide whether or not it
has the capacity to enter into relations with other States.
177. That question would commonly be answered by asking whether the entity is permitted
by the relevant constitution to have relations with other States. For example, a
component unit of a federal State would ordinarily lack that capacity because many
federal States reserve the conduct of foreign relations to the federal government.
178. Paragraph (i) of Chapter 8 of the Constitutional Framework reserves to the SRSG the
exercise of "powers and responsibilities of an international nature in the legal field" and
certain other matters.198 Consistently with this stipulation, it is UNMIK which conducts
much, if not all, of Kosovo's international relations. For example, it is UNMIK that has
acted on behalf of Kosovo in enabling its participation in a number of international
organisations and agreements such as the Energy Community, the European Common
Aviation Area Agreement, the South East Europe Transport Observatory agreement,
and the Central European Free Trade Area Agreement (CEFTA). Similarly, it is
UNMIK which regularly attends the joint committee and sub-committee meetings of the
CEFTA, and UNMIK which took over the Presidency of the Energy Community Treaty
from 1 January until 30 June 2008, and which attends meeting of the EU Charter for
Small Enterprises, and of the South East Europe Transport Observatory (SEETO).
179. It seems evident that as a matter of law the authorities in Kosovo do not have the legal
capacity to enter into relations with other States. That capacity resides in the SRSG and
UNMIK. Given the reservation of. powers to the SRSG by the Constitutional
199
Framework, it plainly cannot be said that the Provisional Institutions of Self
Govemment in Kosovo have the lawful authority to act as if they were an independent
government with the capacity to carry on international relations for Kosovo.
180. It may also happen that the capacity to enter into relations with other States is precluded
by the operation of international law. If, for example, other States were under a legal
obligation not to recognise or enter into State-to-State dealings with the entity, it would
be nonsensical, for as long as that obligation exists, to say that the entity has the
capacity to enter into relations with other States. The entity might potentially have the
ability to enter into such relations: but it does not actually have the ability to do so at
that stage.
197See eurobserver.com, 11.02.2009.
198See Appendix I: Chapter 8, paragraphs (m)-(o).
199See para. 178above.
46 181. There may also be a factual aspect to the question whether the Government bas the
capacity to enter into relations with other States. The Government of the entity may be
nominally independent and free to enter into relations with foreign States, but in fact be
demonstrably under the control of the government of another State. 200 In both of these
circumstances, the fourth criterion would not be satisfied. It appears that as a matter of
fact, and as indicated in paragraph 178 above, it is the SRSG, UNMIK, and the
'international presences' which have the key role in the conduct of international
relations on behalf of 'Kosovo'.
182. The failure of Kosovo to meet the well-established 'Montevideo' criteria for Statehood
has been examined in the preceding paragraphs. This is important, and sufficient to
dispose of the question whether Kosovo may properly claim to be a State. It 1s,
however, not the main focus ofthis submission by the Republic of Cyprus.
183. The main focus is on the critical role of the criterion of legality and the maintenance of
the Rule of Law in international law. The following paragraphs make the further point
that the attempt by the Provisional Institutions to override the legal limitations imposed
by resolution 1244(1999) means that the declaration of independence was an act in
violation of international law, and that this illegality is a further reason why Kosovo
cannot be considered to be a State, quite apart from the question of the fulfilment of the
'Montevideo' criteria of Statehood.
'The criterion of legality'
184. State practice and the development of international law during the past half century
have established that it is necessary not only that an entity satisfy the four essentially
factual 'Montevideo' criteria described above, but also that the entity in question has
emerged in a manner and by a process which is not incompatible with certain basic
principles of international law. 201
185. This additional requirement of 'legality' is logically and legally distinct from the
requirement that the factual criteria of Statehood be fulfilled. An entity which evidently
fails to meet the factual criteria of Statehood simply does not qualify for consideration
as a State. That would be the case, for example, where a citizen purports to establish an
'independent State' on an offshore installation or some such structure. 202 Any purported
declaration of independence in such circumstances is in law a non-existent act.
186. That position is to be distinguished from a situation in which an entity does possess the
factual characteristics of a State - territory, population, effective government, and the
capacity to enter into relations with other States - but has emerged in circumstances
203
which constitute a violation of fundamental rules of international law.
200Manchukuo is a case in point.
201 See, e.g., S Sur andJ Combacau, Droit international public, (7th ed, 2006), 282-283; J. Crawford, The
Creation of States in International Law (2 ed, 2006), Ch. 3. This might be regarded as an instance of a broader
principle which also underlies principles such as ex injuria non oriturjus, and the so-called 'Stimson doctrine' of
the non-recognition of the acquisition of territory by force. See A D McNair, "The Stimson Doctrine of Non
202ognition", 14BYIL 65 (1934).
E.g., the "Principality ofSealand": < http://www.sealandgov.org/histozy.html >.
203See R Y Jennings, "Nullity and Effectiveness in International Law", in Cambridge Essays in International
Law. Essays in honour of Lord McNair, (1965), pp. 64-87. The distinction reflects that between, for example, an
47 187. The violation of international law may take different forms. The entity may h.ave been
established by a process which itself constitutes a violation of rules of international law.
The establishment of a 'State' by use of force would be an example. The entity may, on
·the other hand, have emerged in a manner that does not itself violate international law;
but the entity may have characteristics which themselves violate international law. The
emergence of the Bantustans, which served to entrench the apartheid regime in South
Africa, is an example. No entities tainted by illegality in these ways would be accepted
as States.
188. A further possibility is that the entity bas been established in a manner that violates the
legal obligations, or the legal limitations upon the powers, of those who purported to
establish the State. If the actions of those who purport to establish the State go beyond
what international law allows, the attempt to establish the State may be regarded
as ineffective. For example the purported establishment of the German Democratic
Republic ('GDR') by the USSR was regarded by the United States, the United
Kingdom, and France as a violation of the obligations of the USSR under the Four
Power Agreements of 1945;and the GDR was accordingly not treated as a State. 204
189. Thus, international law may preclude the achievement of Statehood by an entity and
may do so by the operation of legal limitations upon the powers of the actor which
purports to confer that international status of 'Statehood' upon the entity. This is the
case in Kosovo. As was explained above, 205 neither the Provisional Institutions nor the
UN Security Council had the legal capacity to declare that a part of Serbian territory
was henceforth to be regarded as an independent sovereign State.
190. Put more generally, an assertion of independence which violates the terms of a binding
Security Council resolution cannot be legally effective to create a new State. The
assertion of independence would plainly not be in accordance with international law.
And the Court is asked in this case to answer the question, "is the unilateral declaration
of independence by the Provisional Institutions of Self-Govemment of Kosovo in
accordance with international law?"
191. It may be thought unnecessary to pursue this question here because it is in any event
clear that Kosovo does not fulfil even the four basic 'Montevideo' criteria of Statehood.
The Republic of Cyprus does, however, consider that regardless of whether Kosovo is
disqualified from Statehood because of its failure to satisfy the four 'factual' criteria, it
is necessary for the Court to address the issues raised in the previous paragraphs. The
Republic of Cyprus respectfully submits that the Court should conclude that the
declaration of indepe206nce could not be effective to establish Kosovo as a State since,
as discussed above, the Provisional Institutions had no capacity under international
agreement entitled a 'treaty' between two private commercial corporations, which cannot be a treaty at ail, and a
treaty which, though having ail of the essential characteristics of a treaty, is voidnitio because it is
incompatible with a rule ofjus cogens.
204See the decision of the UK Bouse of Lords in Carl Zeiss Stiftung v. Rayner & Keeler Ltd, [1967] 1AC 853.
Sirnilarly, in the South West Africa Advisory Opinion, this Court determined that South Africa's authority was
based upon the terrns of the Mandate, and that South Africa therefore had no power to modify unilaterally the
international status of the territory of South West Africa: International Status of South West Africa, Advisory
Opinion,J.C.J.Reports 1950, p. 128, at 133, 141.
205Paras. 106to 113above.
206
Paras. 106to 113 above.
48 law to create it.
Conclusion on Kosovo and the legal criteria of Statehood
192. For these reasons the Republic of Cyprus submits that Kosovo can have no claim to
Statehood, and that the declaration of independence was a declaration inconsistent with
international law. Again, it is emphasised that this does not mean that Kosovo has no
legal rights: it means simply that Kosovo is not an independent sovereign State, and that
Kosovo's rights remain those established by UN Security Council resolution
1244(1999) and developed under the processes which it prescribes.
VII Conclusion
193. The Republic of Cyprus accordingly submits that:
a. The General Assembly's request for an advisory opinion satisfies the conditions of
the Statute of the Court and of the United Nations Charter both as regards the
competence of the requesting organ and as regards the substance of the request;
and the Court accordingly hasjurisdiction in the case.
b. There are no 'compelling reasons' why the Court should not render the advisory
opinion which has been requested of it.
c. The generally applicable rules and principles of international law govern every
situation of claimed Statehood. Even situations that are allèged to be 'sui generis'
must be shown to be so in accordance with the rules of international law.
d. Security Council resolution 1244(1999) does not render the declaration of
independence lawful; indeed the declaration is incompatible with the resolution
which remains in force.
e. The unilateral declaration of independence was, as a matter of international law;
beyond the powers of the Provisional Institutions, since those powers were limited
by the Constitutional Framework made under Security Council resolution
1244(1999) and there is no basis in customary international law for those
Institutions to claim the right to assert Statehood.
f. Any departure from the principles of sovereignty and territorial integrity would
have to be justified on the basis of international law. There are, however, no
grounds under international law justifying the terrnination of the sovereignty of
Serbia over Kosovo which undoubtedly existed on 17 February 2008. More
specifically:
1. Serbia's sovereignty over Kosovo is not affected by the dissolution of the
Socialist Federal Republic ofYugoslavia;
11. The declaration has no basis in the right of self-deterrnination; indeed, the
dismemberrnent of Serbia is contrary to the right of self-deterrnination of the
49 Serbian population taken as a whole;
m. There is no other 'right of secession' under which the Provisional Institutions
canjustify the unilateral declaration of independence.
g. Kosovo does not meet the criteria for Statehood in international law and is not an
independent sovereign State, because it Jacks an effective govemment with the
capacity to enter into relations with other States, and also because the declaration
of independence violates the terms of a legally-binding Security Council
resolution.
h. Accordingly, Kosovo's rights remain those established by UN Security Council
resolution 1244(1999) and developed under the processes which it prescribes.
n;:·Qt
Attorney-General of the Republic of Cyprus
Agent of the Government of the Republic of Cyprus
50 APPENDIXI
CHAPTER 8 OF THE CONSTITUTIONAL FRAMEWORK
Chapter 8
Powers and Responsibilities Reserved to the SRSG
8.1 The powers and responsibilities of the Provisional Institutions of Self-Government shall
not include c~rtain reserved powers and responsibilities, which will remain exclusively
in the hands of the SRSG. These reserved powers shall include:
(a) Full authority to ensure that the rights and interests of Communities are fully
protected;
(b) Dissolving the assembly and calling Îor new elections in 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 SRSG's
responsibilities under that Resolution. The SRSG shall exercise this power after
consultation with the President of Kosovo. The Assembly may, by a decision
supported by two-thirds of its members, request the SRSG to dissolve the
Assembly. Such a request shall be communicated to the SRSG by the President of
Kosovo; ·
(c) Final authority to set the financial and policy parameters for, and to approve, the
Kosovo Consolidated Budget, acting on the advice of the Economie and Fiscal
Council;
(d) Monetary policy;
(e) Establishing arrangements for the independent external audit of the Kosovo
Consolidated Budget;
(f) Exercising control and authority over the UNMIK Customs Service;
(g) Exercising final authority regarding the appointment, removal from office and
disciplining ofjudges and prosecutors;
(h) Deciding upon requests regarding the assignment of international judges and
prosecutors, as well as change of venue, in accordance with the relevant UNMIK
legislation in force;
(i) Exercisingpowers and responsibilities of an international nature in the legal field;
G) Exercising authority over law enforcement institutions and the correctional
service, both of which include and are supported by local staff;
(k) Exercising control and authority over the Kosovo Protection Corps;
(1) Exercising control and authority over the management of the administration and
financing of civil security and emergency preparedness. Responsibility shall be
gradually assumed by the Provisional Institutions of Self-Government;
(m) Concluding agreements with States and international organizations in all matters
within the scope ofUNSCR 1244(1999); (n) Overseeing the fulfilment of commitments in international agreements entered
into on behalf of UNMIK;
(o) Extemal relations, including with States and international organisations, as may
be necessary for the implementation of his mandate. In. exercising his
responsibilities for extemal relations, the SRSG will consult and co-operate with
the Provisional Institutions of Self-Govemment with respect to matters of concern
to the institutions;
(p) Control over cross-border/boundary transit of goods (including animals). The
Provisional Institutions of Self-Government shall co-operate in this regard;
(q) Authority to administer public, State and socially-owned property in accordance
with the relevant UNMIK legislation in force, in cooperation with the Provisional
Institutions of Self-Govemment;
(r) Regulation of public and socially-owned enterprises after having consulted the
Economie and Fiscal Council and the Provisional Institutions of Self
Government;
(s) Administrative control and authority over railways, frequency management and
civil aviation functions. Certain administrative functions shall be carried out by
the Provisional Institutions of Self-Government and the relevant independent
regulatory bodies;
(t) Control and authority over the Housing and Property Directorate, including the
Housing Claims Commission;
(u) Defining the jurisdiction and competence for the resolution of commercial
property disputes;
(v) Preserving the existing boundaries of municipalities;
(w) Responsibility to ensure that the system of local municipal administration
functions effectively based on intemationally recognized and accepted principles;
(x) Appointing the members of the Economie and Fiscal Council, the Goveming
Board of the Banking and Payments Authority of Kosovo, the chief executives of
the Customs Service and Tax Inspectorate, and the Auditor General; convening
and presiding over the Economie and Fiscal Council;
(y) Appointing international experts to the managing boards or commissions of the
public broadcaster, the independent media regulatory body and other institutions
involved in regulating the mass media, with the proviso that the number of such
SRSG nominations will not constitute the majority of any such managing board
or comm1ss10n;
(z) Contrai and authority over the civil registry database, which shall be maintained
in cooperation with the Provisional Institutions of Self-Government."
li APPENDIXII
STATISTICS OF ETHNIC POPULATION GROUPS IN STATES OF THE FORMER
YUGOSLA VIA, IN KOSOVO AND IN SOUTH-CENTRAL EUROPEAN STATES
Various statistical studies by States and other statistical services and by authors analysing
such data are presented below to provide context in relation to issues where population may
be relevant
A KOSOVO STATISTICS
1. Separate statistics during Ottoman rule for the vilâyet of Kosovoclearly indicating
ethnie identity, are not available. Only with the advent of statistics of the Kingdom of
Yugoslavia can a clearer indication of ethnie groups, and their relative expansion and
contraction in the area currently alleged to be territory of an independent State of
Kosovo, be obtained. A table of Kosovo population statistics appears in Branislav
Krstic-Brano, Kosovo. Facing the Court of History, Humanity Books (2004), p.92. The
author used data from the SFRY Federal Statistical Office (ibid., p.379):
TABLE 1
Population evolution [in Kosovo] between 1931 and 1991
Croats,
Muslims,
Year Total Serbs, % Albanian % Roma, Turks
Montenegrins %
1889 240,300
1900 378,300
1921 439,010
1931 552,064 150,745 27.3 331,549 60.1
1948 727,820 199,961 27.5 463,742 63.7 64,117 8.8
1953 808,141 221,212 27.4 524,559 64.9 62,370 7.7
1961 963,988 264,604 27.4 646,605 67.1 52,779 5.8
1971 1,243,693 259,819 20.9 916,168 73.7 67,706 5.4
1981 1,584,441 236,525 14.9 1,226,736 77.4 121,180 7.7
1991 1,956,196 214,555 11.0 1,596,072 81.6 145,559 7.4
1The Ottoman vilâyet of Kosovo was a very extensive area covering parts of the modem States of Albania,
Montenegro, Serbia (beyond the area of the later Autonomous Province of Kosovo), the subsequent Former
Yugoslav Republic of Macedonia (FYROM) and Bulgaria. The vilâyet was far larger than the territory currently
alleged to be that of an independent State of Kosovo, the subject of these proceedings. See the Republic's
submission to the Court, para 21. 2. The writer, Tim Judah, has published broadly similar figures. He contends that in the
area which is today called Kosovo, the official population statistics of the former
Socialist Federal Republic of Yugoslavia (hereinafter SFRY) showed population
"trends". Judah noted that questions may be asked about the reliability of actual figures.
The Table below is derived from him. 2
TABLE2
Modern Kosovo Population statistics, 1948-1991
Serbs or Population % Albanians Population
Year Montenegrins %
1948 199,961 27.5 498,242 68.5
1964 264,604 20.9 646,805 67.2
1981 236,526 14.9 1,200,000 77.4
1991 215,346 10.9 1,607,000 82.2
B. STATISTICS FOR SERBIA AND MONTENEGRO (FRY)
POPULATION IN 1991-1992 UPON SFRYDISSOLUTION
3. A pattern of mixed population throughout the States which had formerly constituted
.-
Yugoslavia was still obvious in the Federal Republic of Yugoslavia (FRY) even after
the dissolution of the Socialist Federal Republic of Yugoslavia (henceforth SFRY). The
Table below was derived from the 1991 census (taken while SFRY was in existence,
although Albanians had declined to participate). The FRY population figures were:
TABLE3
Yugoslavia (Serbia and Montenegro) population and minorities: 1991-92i 1
2 Compiled from Tim Judah, Kosovo. What Everyone Needs to Know (2008), pp.59, 158, relying on SFRY
census statistics from 1948-1991. Regarding the 1991 figure of Albanians in Kosovo, he states it was
than 1.6 million". The figure included in Table 2 above is taken from Minority Rights Group International,
World Directory of Minorities, (1997) p.252. The Directory also stated that the Albanian population might in
reality be 2 million Albanians in Kosovo.
3
Derived from WorldDirectory of Minorities, supra, p.250. The Minority Rights Group figures are those in the
1991census. Other reliable sources estimate Albanians at more than 2 million and Roma at 500,000 (4.8%). The
populations of the States of Croatia, Bosnia and Herzegovina, Slovenia and the former Yugoslav Republic of
ii Population (mid-1992) Numbers %
Main Minority Groups
Albanians 1,727,500 16.6
Montenegrins (in Montenegro and Serbia) 520,500 5.0
Hungarians 345,400 3.3
Yugoslavs 344,000 3.3
Muslims 327,500 3.1
Roma 137,265 1.3
Croats 109,214 1.0
Others 270,497 2.6
Total main minorities 3.781,876
All groups 10,597,000
(mid-92)
Serbs 6,816,124 c.64%
(approximately)
4. It will be observed that ethnie Albanians constituted the largest minority (16.6%) in
Serbia and Montenegro and that Serbs constituted the majority of the population (c.
64%) of the State.
C. KOSOVO POPULATION BYETHNIC COMPOSITION FROM 1921 TO 2006 -
WITH CHANGES IN PERCENTAGES AND IN ABSOLUTE NUMBERS
5. The Statistical Office of Kosovo (hereinafter SOK)4 has published ethnie population
statistics for Kosovo for the years 1921 to 2006. Theyare shown in Table 4 infra:
Macedonia (hereinafter FYROM) are not included as the Socialist Federal Republic ofYugoslavia had by mid-
4992 dissolved.
The SOK is an independent professional office in the frame of Kosovo' s Ministry of Public Service and acts
under UNMIK Regulation 2001/14.
5 This is Table 2_in the SOK publication, Demographic Changes of the Kosovo Population 1948-2006,
Statistical Office of Kosovo, Febmary 2008.
See: http://www.ks-gov.net/ESK/eng/index.php?option=com _docman&task=cat_view&gid=8<emid=8
iiiTABLE4
Kosovo population by ethnie composition- 1921-2006
Years of Total Albanians Serbs Turks Romans Others
census
1921 439.010 - - - - -
- - -
1931 552.64 - -
1948 733.034 498.244 176.718 1.320 11.230 45.522
0% 100 68,0 24,1 0,2 1,5 6,2
1953 815.908 524.562 189.869 34.590 11.904 54.983
0% 100 64,3 23,3 4,2 1,5 6,7
1961 963.988 646.605 227.016 25.764 3.202 61.401
0% 100 67,1 23,5 2,7 0,3 6,4
1971 1.243.693 916.168 228.264 12.244 14.593 72.424
0% 100 73,7 18,4 1,0 1,2 5,8
1981 1.584.440 1.226.736 209.798 12.513 34.126 101.267
0% 100 77,4 13,2 0,8 2,2 6,4
1991 1.956.196 1.596.072 194.190 10.445 45.745 109.744
0% 100 81,6 ·9,9 0,5 2,3 5,6
2006 2.100.000 1.932.000 111.300 8.400 23.512 24.788
0% 100% 92 5,3 0,4 1,1 1,2
For the years of 1948, 1953, 1961, 1971, and 1981, data were obtained from the
publication of the population censuses
For 2006, datais assessment of SOK
The SOK commented on its Table (supra) that:
"The A/banian ethnicity, in 1948, constituted of 68% of the total number of
population in Kosovo, in 1991 (the assessment of the Ex-Yugoslav Federation
Statistics Office) 81,6%, and in 2006 has been 92% (the assessment of SOK).
iv Serb ethnicity in 1948 constituted of 24.1% of the total number of population in
Kosovo, in 1991 constituted of9.9%, and in 2006 has been 5.3% (the assessment
ofSOK).
Turk ethnicity in 1948 constituted of 0.2% of the total number of the population
in Kosovo, in 1991 (assessment of the Ex-Yugoslav Federation Statistics Office)
0.5%, and in 2006 has been 0.4% (assessment of SOK).
Roma ethnicity in 1948 constituted of 1.5% of the total number of population in
Kosovo, in 1991 constituted of 2.3%, and in 2006 has been 1.1% (assessment of
SOK).
In the population censuses until 1981, the participation of the Albanian ethnicity
in the registration (census) committees has been very low."
D. ESTIMATED KOSOVO POPULATION AFTER DISPLACEMENT (1997-1999)
AND EARLIER MIGRATION (1990-1997) OF KOSOVO ALBANIANS AND
DISPLACEMENT OF SERBS (1997-2003)
6. In the period of instability at the end of the 1990s and after the NATO campaign, there
had been Serb displacement of ethnie Albanians, the return of ethnie Albanians, their
retaliatory displacement of Serbs and of other minorities, and early administration of
UNMIK. International organizations then produced estimates of the population of
6
Kosovo. Statistics by such organizations and estimates by the SOK are in approximate
agreement.
In 2003, according to SOK estimates 7,the ethnie composition of Kosovo' s population
was:
6Inter alia, tliese included the Poverty and Human Resources Development Research Group.
7 See «Kosovo-Sorne key indicators on population" reproduced in Statistics, an article published by the
European Centre for Minority Issues (Flensburg,Germany) and accessed on 5 March 2009 at
www.ecmi.de/emap/download/KosovoStatistics Final One.pdf
V TABLES
Ethnie composition of Kosovo 2003
%
Total population 1,900,000 estimate
Ethnie groups:
Albanian 88%
Serbian 7%
8
Other ethnie groups 5%
7. The Statistical Office of Kosovo's 2008 Report assesses the Kosovo population as
9 10
being 2.1 million habituai residents in 2006. Of these, the ethnie breakdown was as
follows.
TABLE6
Kosovo (2006 estimate)
Albanians 2,100,000 92%
Others 8%
8. The following graph is from SOK's website, graphically showing the situation:
8
9These included Muslims, Bosniaks, Roma, Gorani, Turks and others.
i.e. persons not away from their permanent homes for 12months or more. See p.19 ofDemographic Changes
of the Population of Kosovo 1948-2006, cited supra. SOK assessed that the total population of Kosovo residing
outside it was 586, 543 inhabitants, making a total of 2,686.543 Kosovo inhabitants. Those residing outside
would include displaced persons (whether Serb, Albanian or from other ethnie groups) and emigrants after 1948.
JO http://www.ks-gov.net/ESK/eng/index.php?option=com content&view=article&id=36(viewed at
5.3.2009). Before rounding, the figure was 2,153,139: http:www.ks-gov.net/ESK/eng/
vi TABLE7
Ethniecomposition
100%
90%
80%
70%
60%
50%
40%
30%
20%
10%
0%
Albanian Otherethniegroups
9. It will be noted from Tables 5 and 6 that the pereentage of the Kosovo population
eonstituted by minorities (Serbs and Others) had, between 2003 and 2006, declined by
approximately 4%, with a corresponding inerease in Albanian numbers and in the
Albanian pereentage from 88% to 92%.
O. A graphie illustration of ,the ethnie population of Kosovo m 2008 1s provided by
Judah.11
E. ETHNIC MINORITIES ACROSS STATES
11. Table 3 above makes it elear that the minorities in FRY were members ofpeoples who
were spread aeross several other States. Moreover, the peoples who were minorities
within FRY formed majorities in another national State in which they were
predominant e.g. Hungary, Albanià, Croatia and Bosnia- Herzegovina. ("Muslims" in
11
See Kosovo. What Everyone Needs to Know, (2008), p.112. At pp 101-2, Judah quotes 2004 research by the
European Stability Initiative (Berlin) showing that "there are still 130,000 Serbs living in Kosovo ... [then]
representing two-thirds of the pre-war Serb po[Using the 1991 SFRY census statistics, this would
mean that 65,000 Serbs left.] Judah, at p.104, cited estimates by the Gorani leadership that only 8,000 of 18,000
Gorani (in the region South of Dragash) remained i.e. 56% left.
vii Table 3 basically consisted of "Bosniaks".) The nature and scale of the minorities
situation in some of the States adjacent to Serbia is indicated in the succeeding
paragraphs.
(i) Ethnie Albanians in FRY and elsewhere
12. In 1992, there was an estimated population of 3.4 million persons in Albania.
According to the Albanian 1989 census, 1.99% of the population (63,700) were from
the Greek and "Macedonian" minority groups (although other reliable estimates
suggested that all members of minorities totaled 380,000 persons i.e. 10.6%). There
12
were therefore at least 3 million ethnie Albanians in Albania. There were also
443,000 ethnie Albanians in FYROM i.e. 23% of the population (according to the 1994
14
census) 13and 40,000 Albanians in Montenegro in 1991. Ethnie Albanians outside the
area of Kosovo and Albania itself are graphically shown in a map in Poulton. 15
13. Experts claim that there are large Albanian diasporas. 16In Greece, the Minority Rights
Group in 1997 estimated there were 200,000-300,000 recent Albanian immigrants in
Greece, but, in 2005, the Albanian Govemment estimated 600,000 Albanians had
migrated to Greece. In north western Greece there had also been an ethnie Albanian
population at the time that area had been acquired in 1913. Other nearby States have
17
Albanian diasporas. Italy received 250,000 Albanian migrants. There is also a
diaspora of several hundred thousand Albanians, who emigrated to the USA and
countries of the Commonwealth, while many more Albanians have migrated to EU
States and Switzerland. The Kosovo ethnie Albanians thus number well under 35% of
the Albanian people.
12World Directmy ofMinorities, p.201. Hugh Poulton, The Balkans. Minorities and States in Conflict, Minority
Rights Publications, London, 1993 edition, at p.195, quotes the Albanian 1961 census as showing 95% of the
f3opulationwas Albanian. The Albanian census of 2001 estimated apopulation of 3 million.
World Directory. p.233. According to the 2002 FYROM census, there were 509, 083 Albanians in FYROM
in 2002, making up some 25% of the population.
14Poulton, supra p.75.
15Poulton, ibid., p.58.
16 e.g:N. Malcolm (Kosovo: A Short History (1999)) estimates 100,000 Albanians left Kosovo for Turkey
between 1945 and 1966; and see Denisa Kostovicova "Albanian diasporas and their political roles" in Is there
an Albanian question? Chaillot Paper No.107, January 2008, Institute for Security Studies, EU, Paris, pp.73 et
seq.
17Nicola Mai, "Albanian migrations: demographic and other transformations" in Is there an Albanian question?
p.62.
viii (ii) Hungarians in FRY and elsewhere
14. Similar minority dispersals apply as respects Hungarians, who were 345,400 (3.3%) of
the SFRY population in 1991, 18 while, according to the FRY census of 2002,
Hungarians were 3.91% of the population of Serbia and Montenegro excluding the area
of Kosovo. On the 2002 FRY census, they were 14.28% of the population ofVojvodina
19 20
(with Serbs being 65%). Hungarians numbered over 10 millions in Hungary.
Hungarians numbered 1,620,007 (7.1%) of Romania's population in 1992. Moreover,
Hungarians numbered 567,000 (10.8%) of Slovakia's population in 1991.
(üi) Montenegro population statistics
15. According to the 2003 census, taken during the existence of FRY, the ethnie
populations were as follows:
TABLES
Montenegro Population Census 2003
Montenegrins 273,355 40.64%
Serbs 201,892 30.01%
Bosniaks 63,272 9.41%
Albanians 28,714 4.2%
16. According to unchallenged Montenegrin statistics after Montenegro' s independence,
the ethnie composition of the population was:
18World Directory. p.250. Most Hungarians live in the Vojvodina, which from 1974 until 1989 énjoyed rights
of autonomy analogous to those enjoyed by Kosovo as an autonomous Province. The bulle of the Hungarian
minority has not responded by seeking independence or union with Hungary in a manner similar to that of the
Kosovo Albanians. ln parts of northem Vojvodina, the Hungarian minority forms a local majority.
192002 Census: http://webrzs.statserb.sr.gov.yu/axd/Zip/eSn3 l.pdf
20
World Directory. p.223.
ix TABLE9
Montenegro Population post-2006 independence
Montenegrins 267,669 43.16%
Serbs 198,414 31.99%
Bosniaks 48,184 7.77%
Albanians 47,682 7.072%
Muslims 24,625 3.97%
17. Both Tables, ignoring minor discrepancies, show 3 large ethnie or religious population
groupings, with no group having an absolute majority, nainely, over 40%
Montenegrins, over 30% Serbs and about 18% ofBosniaks, Albanians and Muslims.
(iv) FYROM population statistics
21
18. According to the 1994FYROM census, the ethnie composition of the population was:
TABLE 10
FYROM population 1994 (total 1,937,000)
Macedonians 22 c.1,290,000 C.66.3%
Albanians 443,000 23%
Turks 77,000 4%
Roma 44,000 2.3%
Serbs 39,000 2.0%
Others 46,000 2.4%
19. These figures were disputed by ethnie Albanians, who are concentrated in western areas
of FYROM and the cities of Skopje and Kumanovo. They claim that their percentage of
21
22Derived from World Directory ofMinorities, ibid., p.233.
Since FYROM statistics are being cited, the language and description used by FYROM's statistical service
are here employed.
X the population is far larger than the 1994 eensus indicated. Allegedly, also, Roma
numbers were underestimated, with the World Direetory reporting an estimate of Roma
eonstituting 10.3% of the population (200,000). It will be noted that Serbs are indicated
as 2.0%. Serbian nationalist historians have claimed that Slav-Macedonian eitizens of
FYROM are in faet Southern Serbs, a claim mueh disputed by FYROM nationalist
historians, while Bulgarian nationalist historians claim that they are Bulgarians.
(v) Bosnia and Herzegovina population statistics
20. Prior to the Bosnian war, Serbs were estimated by the 1991 SFRY eensus at 1,369,258
in Bosnia and Herzegovina (31.4% of the total population of 4.3 million). Most Serbs
were resident in areas which later became part of Republika Srpska, one of the two
governing entities of Bosnia and Herzegovina, forming a majority in Republika Srpska.
Serbs also constituted minority groups elsewhere in Bosnia and Herzegovina. 23
21. By July 2008, the estimate, prepared by CIA World Factbook on demographie
24
statistics is that the total population of Bosnia and Herzegovina was 4,590,31O.
Earlier ethnie statisties for 2000 were eited as follows:
TABLE 11
Bosniak 48%
Serb 37.1%
Croat 14.3%
Other 0.6%
22. In the statistieal referenees (and elsewhere) "Bosniak" replaeed "Muslim" as the
appropriate term to differentiate ethnie identity from denominational loyalties. The CIA
World Factbook does not provide an ethnie breakdown by partieular areas, but it is
undisputed that Croats, like Serbs, form local majorities in particular areas.
23The Badinter Commission in its Opinion No.2 (92 ILR 167 at 169) when asked for an opinion on whether the
Serbian population in Croatia and Bosnia and Herzegovina had the right to self-determination, ruled that such
populations were entitled to the rights accorded to minorities and ethnie groups and that members of such
24norities were entitled to ail the human rights and freedoms recognised in international law.
http://www.cia.gov/library/publicati ons/the-world-factbook/geos/bk.html
xi (vi) Croatia population statistics
23. In 1991 Serbs numbered 12.2% of the population ofCroatia: Croats numbered 78.1%. 25
Following inter-ethnie violence during the war, there were major moves (in 1991 and
then in 1995) of both population groups (about 200,000 Croats and about 550,000
Serbs). At the end of the war, the ethno-religious structure for Croatia's two largest
nations was as fo11ows:
TABLE 12
Post-war correlation of the ethno-religious structure of Croatia's
26
two largest nations
Croats 89.6% Catholics 82.8%
Serbs 4.5% Orthodox Christians 4.4%
24. It will be observed that thete was a major fall in the population percentage of Serbs
(from 12.2% to 4.5%) representing a reduction in numbers from 580,762 to 201,631 by
2001.
25
World Directory, ibid., pp.213-215. According to the 1991 census, the number were 580,762 Serbs and of a
total population which numbered 4.79 million in 1992. This is corroborated by the statistics for religious
denominations: Orthodox Christians 11.1%.
26 Derived from the Croatia 2001 census and materials in the CIA World Factbook:
http://www.cia.gov/library/publications/the-world-factbook/geos/hr.html
xii
Written Statement of Cyprus