INTERNATIONAL COURT OF JUSTICE
ACCORDANCE WITH INTERNATIONAL LAW OF THE UNILATERAL
DECLARATION OF INDEPENDENCE BY THE PROVISIONAL
INSTITUTIONS OF SELF-GOVERNMENT OF KOSOVO
(REQUEST FOR ADVISORY OPINION)
FURTHER WRITTEN CONTRIBUTION OF
THE REPUBLIC OF KOSOVO
17 JULY 2009 INTERNATIONAL COURT OF JUSTICE
ACCORDANCE WITH INTERNATIONAL LAW OF THE UNILATERAL
DECLARATION OF INDEPENDENCE BY THE PROVISIONAL
INSTITUTIONS OF SELF-GOVERNMENT OF KOSOVO
(REQUEST FOR ADVISORY OPINION)
FURTHER WRITTEN CONTRIBUTION OF
THE REPUBLIC OF KOSOVO
17 JULY 2009 TABLE OF CONTENTS
Table of Contents ................................................................................................... ............ iii
Abbreviations ....................................................................................................... ............. vii
PART I INTRODUCTION ....................................................................................... . 1
C HAPTER I I NTRODUCTION ........................................................................... ................ 3
I. Introductory Remarks ..................................................................................... ....... 3
II. Summary of Kosovo’s Further Written Contribution ............................................ 3
III. The Request for an Advisory Opinion, the Question Put to the Court, and
the Authors of the Declaration of Independence .................................................... 4
A. The Propriety of the Request for an Advisory Opinion .................................. 5
B. The Meaning and Scope of the Question Contained in General
Assembly Resolution 63/3 ........................................................................... .. 8
C. The Persons Who Issued the Declaration of Independence ............................ 9
C HAPTER II K OSOVO TODAY .......................................................................... ............. 11
I. International Relations .................................................................................. ...... 12
II. Constitutional and Internal Developments ........................................................... 16
III. Presence of the International Community ............................................................ 18
IV. Criteria for Statehood ................................................................................... ....... 23
V. Serbia’s Attitude towards Kosovo ........................................................................ 6
– iii –PART II HISTORY AND CONTEXT ................................................................... ... 29
C HAPTER III H ISTORY AND C ONTEXT ........................................................ ....................31
I. The Period before 1945 ..................................................................... ...................32
II. Kosovo was a Federal Unit of the SFRY ...................................................... .......34
III. The Illegal Removal of Kosovo’s Autonomy in 1989 ..........................................4
IV. The Period from the 1989 to 1999 ........................................................... ............41
V. The Position of Kosovo Serbs from June 1999 to February 2008 ........................51
PART III THE LAW ............................................................................... ..................... 57
C HAPTER IV T HE D ECLARATION OF INDEPENDENCE DID NOT C ONTRAVENE ANY
A PPLICABLE R ULE OF G ENERAL INTERNATIONAL L AW ....................... .....59
I. The Principle of “Sovereignty and Territorial Integrity” under General
International Law did not Preclude the Issuance of the Declaration of
Independence ............................................................................... ........................60
A. The Principle of Sovereignty and Te rritorial Integrity is Addressed
Exclusively to States and is not Concerned with the Issuance of
Declarations of Independence .......................................................... .............61
B. The Preambular Reference in Resolution 1244 (1999) to “Sovereignty
and Territorial Integrity” did not Prohibit the Declaration of
Independence .................................................................................................66
1. The Text of the Clause ........................................................... ............... 67
2. Statements Made when the Clause was Adopted .................................. 70
3. Comparison with Clauses in other Resolutions ..................................... 71
– iv – II. The People of Kosovo were Entitled to Exercise their Right of Self-
Determination by Declaring Inde pendence through their Elected
Representatives ..................................................................................................... 75
A. The Right of Self-Determination under International Law ........................... 76
B. The People of Kosovo were Entitled to Exercise their Right of Self-
Determination by Declaring Independence ................................................ .. 80
C HAPTER V T HE D ECLARATION OF INDEPENDENCE DID NOT C ONTRAVENE
S ECURITY C OUNCIL R ESOLUTION 1244(1999) .................................... ..... 87
I. The Negotiating Texts that Prece ded Resolution 1244 (1999) did not
Prohibit Kosovo’s Representatives from Declaring Independence ...................... 88
II. Resolution 1244 (1999) Itself did not Prohibit Kosovo’s Representatives
from Declaring Independence ................................................................. ............ 96
A. The Operative Part of Resoluti on 1244 (1999) did no t Prohibit the
Declaration of Independence nor Require Serbian Consent to It .................. 96
B. The Preambular Reference in Resolution 1244 (1999) to “Sovereignty
and Territorial Integrity” did not Prohibit the Declaration of
Independence ........................................................................... ................... 106
C. References in Resolution 1244 (1999) to Kosovo as Part of the FRY are
Factual Statements Addressing the Interim Period ..................................... 107
D. The Relationship of Resolution 1244 (1999) to General International
Law .................................................................................... ......................... 108
III. The Legal Effects of and Political Attitudes towards Resolution 1244 (1999)
Changed after Commencement of the Final Status Process ............................... 109
IV. The Declaration did not Violate Resolution 1244 (1999) as an Ultra Vires
Act of the PISG or as a Contravention of the 2001 Constitutional
Framework .......................................................................................................... 115
– v – V. The Fact that the Declaration did not Contravene Resolution 1244 (1999) is
Consistent with the Security Counci l’s General Practice of Only Imposing
Legal Obligations upon States ............................................................................119
PART IV SUMMARY AND CONCLUSION ........................................................... 1 3
C HAPTER VI S UMMARY .................................................................... ...........................125
I. Key Elements ........................................................................... ..........................125
II. Summary of Kosovo’s Legal Arguments .................................................... .......129
C ONCLUSION ................................................................................... ..................................137
ANNEXES
A NNEX 1 Presentation by President Martti Ahtis aari to the Assembly of the
Republic of Kosovo, 15 June 2009 ................................................ ......... 143
A NNEX 2 International Steering Group for Kosovo, Pristina, 15 June 2009 ..........149
– vi – ABBREVIATIONS
Ahtisaari Plan ................Comprehensive Proposal for the Kosovo Status Settlement
(S/2007/168/Add.1) (also referred to as “Ahtisaari Settlement”
or “CSP”)
ContactGroup...............France, Germany, Ital y, Russian Federa tion, United Kingdom,
United States of America
Dossier...........................Dossier submitted on behalf of the Secretary-General pursuant to
Article 65, paragraph 2, of the Stat ute of the International Court
of Justice
EU .................................. European Union
EULEX..........................European Union Rule of Law Mission in Kosovo
EUSR.............................European Union Special Representative
FRY ...............................Federal Republic of Yugoslavia
G-8 (Group of Eight).....Canada, France, Germany, Italy, Japan, Russian Federation,
United Kingdom, United States of America
ICO................................International Civilian Office
ICR ................................International Civilian Representative
ICTY..............................International Criminal Tribunal for the Former Yugoslavia
ISG.................................International Steering Group
KFOR ............................Kosovo Force (international military presence in Kosovo)
KLA...............................Kosovo Liberation Army
PISG ..............................Provisional Institutions of Self-Government of Kosovo
SFRY.............................Socialist Federal Republic of Yugoslavia
SRSG ............................. Special Representativeof the Secretary-General
Troika ............................European Union/United States of America/Russian Federation
Troika on Kosovo
UNMIK..........................United Nations Interim Administration Mission in Kosovo
– vii – PART I
INTRODUCTION CHAPTER I
INTRODUCTION
I. Introductory Remarks
1.01. The Republic of Kosovo submits this Further Written Contribution in
accordance with paragraph 4 of the Order of the Court dated 17 October 2008.
1.02. The purpose of the present Contribut ion is to comment on the Written
Statements of other States, which were tran smitted under cover of th e Registrar’s letters
dated 21April and 15May2009. The presen t Contribution does not repeat matters
covered in the first Written Contribution of the Republic of Kos ovo (hereafter “first
Written Contribution”). Kosovo maintains and relies upon what was said in its first
Written Contribution, which remains the basic statement of its position and which is
complemented as necessary by the present Contribution.
1.03. The present Contribution does not seek to address each point made in the
Written Statements. In particular, it does no t address each of the questionable factual and
legal assertions, and citations a nd references often made out of context, that appear in the
Statements of those seeking to demonstrate that the Declaration of Independence was not
in accordance with international law. Rather, it is limited to the main lines of argument
made in those Statements. The absence of comment does not indicate agreement.
1.04. Nor does this Further Written Contribu tion address in detail the Written
Statements which argue that the Court shoul d find that the Declaration of Independence
did not contravene any applicable rule of inte rnational law. Kosovo is in broad agreement
with the lines of argument in those Written Statements.
II. Summary of Kosovo’s Further Written Contribution
1.05. This Further Written Contribution is organised as follows. Section III of the
present Chapter addresses the que stion put by the General Assembly to the Court, in light
3of the approach adopted in some of the Written Statements. Chapter II then updates
developments both within and external to the Republic of Kosovo since early April 2009
(when Kosovo’s first Written Contribution was finalized).
1.06. Part II (which consists of a single chapter, Chapter III) comments on what
Serbia in particular says about the history and context releva nt to the question before the
Court, especially as regards the period 1974 to 1999.
1.07. Part III then deals with the central legal arguments advanced in the
Written Statements which assert that the Declaration of Independence of 17 February 2008
was not in accordance with international law. It does so in two chapters,
demonstrating respectively why the Declaratio n of Independence (i)did not contravene
general international law ( Chapter IV); and (ii)did not contravene Security Council
resolution 1244 (1999) (Chapter V).
1.08. Finally, Part IV (comprising Chapter VI) draws together certain key elements
and summarises Kosovo’s legal arguments.
III. The Request for an Advisory Opinion, the Question Put to the Court,
and the Authors of the Declaration of Independence
1.09. The majority of the Written Statements address the propriety of the request for
an advisory opinion contained in General As sembly resolution 63/3. Kosovo wishes to
comment again, very briefly, on this issue (A).
1.10. As regards the question contained in General Assembly resolution 63/3, almost
all the Written Statements, including that of Serbia 1, underline that it is strictly limited and
should be answered by the Court as it stands. Kosovo fully s ubscribes to this conclusion,
but deems it nevertheless necessary to comm ent on the more expansive approach adopted
by some States (B).
1 Serbia, paras. 19-23. (In this Contribution, references to Written Statements are given in this form.)
4 1.11. Kosovo will once again 2 explain that the authors of the Declaration of
Independence were not the Provi sional Institutions of Self-G overnment (PISG), as seems
to be suggested by the question put to the C ourt and as has been as serted by some States,
but were the democratically elected representatives of the people of Kosovo (C).
A. T HE PROPRIETY OF THE R EQUEST FOR AN A DVISORY OPINION
1.12. The States that have submitted Written Statements accept that the Court has the
discretion whether to respond to the question. The Court’s jurisprudence establishes that
“Article 65, paragraph 1, of its Statut e, which provides that ‘The Court may give an
advisory opinion…’ (emphasis added), shoul d be interpreted to mean that the Court
has a discretionary power to decline to give an advisory opinion even if the conditions
of jurisdiction are met (Legality of the Threat or Use of Nuclear Weapons , Advisory
Opinion, I.C.J. Reports 1996 (I) , pp.234-235, para.14). The Court however is
mindful of the fact that its answer to a re quest for an advisory opinion ‘represents its
participation in the activities of the Orga nization, and, in principle, should not be
refused’ (Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First
Phase, Advisory Opinion, I.C.J. Reports 1950, p. 71; see also, for example, Difference
Relating to Immunity from Legal Process of a Special Rapporteur of the Commission
on Human Rights , Advisory Opinion , I.C.J. Reports 1999 (I) , pp. 78-79, para. 29.)
Given its responsibilities as the ‘princip al judicial organ of the United Nations’
(Article92 of the Charter), the Court shou ld in principle not decline to give an
advisory opinion. In accordance with it s consistent jurisprudence, only ‘compelling
reasons’ should lead the Court to refuse its opinion ( Certain Expenses of the United
Nations (Article17, paragraph2, of the Charter) , Advisory Opinion , I.C.J. Reports
1962, p.155; see also, for example, Difference Relating to Immunity from Legal
Process of a Special Rapporteur of the Commission 3n Human Rights , Advisory
Opinion, I.C.J. Reports 1999 (I), pp. 78-79, para. 29.)”
Consequently, as the Court pointed out, by the same token it must
“satisfy itself, each time it is seised of a re quest for an opinion, as to the propriety of
the exercise of its judicial function, by reference to the criterion of ‘compelling
4
reasons’ …”.
1.13. Kosovo notes the opinion of several States 5 that there may indeed be such
“compelling reasons” that would justify the Court declining to exercise its discretionary
2
See Kosovo, para. 6.01 and paras. 6.03-6.20.
3 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Ter, Advisory
Opinion, I.C.J. Reports 2004, p. 156, para. 44.
4
Ibid., p. 157, para. 45.
5power under Article 65, paragraph 1, of the Statute. The present request does not appear to
have been designed to enable the Court to pa rticipate in the activities of the Organization,
but rather to render a legal opinion for the benefit of the sole sponsor of General Assembly
6
resolution 63/3, the Republic of Serbia (in its words, the “interested State” ) and other
States. The representative of Serbia expl ained during the short debate on the draft
resolution in the Assembly:
“We have chosen to seek an advisory opini on from the International Court of Justice
(ICJ) on the legality of the unilatera l declaration of i ndependence. Today we are
turning to the General Assembly to convey th at request to the Cour t, in fulfilment of
its powers and functions under the United Nations Charter.” 7
And he stressed that:
“We also believe that the Court’s advisory opinion would provide politically neutral,
yet judicially authoritative, guidance to many countries still deliberating how to
8
approach unilateral declarations of independence in line with international law.”
1.14. The role of the Court in its advisory juri sdiction, however, is not to furnish
“judicially authoritative guidan ce” to a State or even to St ates generally, but rather “to
9
guide the United Nations in respect of its own action” . It is not appropriate for a State to
request an advisory opinion of the Court, and to ask the Assembly to “transmit” the request
in order to meet the jurisdictional conditions set by the Statute, nor appropriate for the
10
Court, under its Statute, to act as legal counsel for a State or States . As the Court has
pointed out, its “Opinion is give n not to the States, but to th e organ which is entitled to
5
For example, Czech Republic, p.5; France, paras.1.6-1.26; Ireland, para.12; United States of America ,
pp. 43-45.
6Serbia, para. 80.
7United Nations, Official Records of the General Assembly , Sixty-third Session, 22 ndplenary meeting,
8 October 2008 (A/63/PV.22), p. 1 (emphasis added) [Dossier No. 6].
8
Ibid. See also A/63/195 [Dossier No. 1] (“Many Member States would benefit from the legal guidance an
advisory opinion of the International Court of Justice would confer. It would enable them to make a more
thorough judgement on the issue.”)
9
Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide , Advisory
Opinion, I.C.J. Reports 1951 , p.19 (emphasis added). 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 , I.C.J. Reports1971 , p.24, para.32 (“The request is put
forward by a United Nations organ with reference to its own decisions and it seeks legal advice from the
Court on the consequences and imp lications of these decisions.”); Western Sahara, Advisory Opinion,
I.C.J. Reports 1975, p. 27, para. 41.
10See Kosovo, para. 7.20-7.21.
6request it” . The present request and the circumstan ces of its adoption within the General
Assembly disregarded the inter-organ nature of the advisory function of the Court.
12
1.15. Serbia cannot now “readjust” the picture in its Written Statement by arguing
that the “case raises issues of direct and acute concern to the Un ited Nations and the
13
international system as a whole” and that, somehow incidentally, United Nations organs,
including the Special Representative of th e Secretary-General (SRSG), might find some
benefit in the opinion , in addition to the implications it would have for States 15. There
has been no statement from the SRSG, from the Secretary-General, from the Security
Council, or from the General Assembly indica ting that an opinion from the Court on this
matter is necessary or even helpful for the work of the United Nations, including the
SRSG’s role and the functi oning of UNMIK. Rather, every available source of
information confirms that the opinion has been sought in order to guide States, as was
16 17
made plain in Serbia’s explanatory memorandum , the debate , and General Assembly
18
resolution 63/3 . That the opinion of the Court might have some unspecified effects for
the United Nations as an institution, or, as some States seem to wish, create a precedent on
alleged “fundamental rules and principles of international law which apply throughout the
international legal order” , is irrelevant.
20
1.16. The Court, “being a Court of Justice” , is not called upon to pronounce on
issues of international law in the abstract, ev en in its advisory role. Its function under
Article 65 of the Statute is to give legal gui dance to the organ that requests the Court’s
11
Interpretation of Peace Treaties with Bulgaria, Hungary and Romania , Advisory Opinion , I.C.J.
Reports 1950, p. 71.
12
See e.g. Serbia, para. 8.
13See Serbia, paras. 75 and 79.
14Serbia, paras. 92-94. See also Cyprus, para. 9-12.
15Serbia, paras. 95-96.
16
A/ 63/195 [Dossier No. 1].
17
See para. 1.13 above.
18Dossier No. 7 (“Aware that this act has been received with varied reactions by the Membcrs of the United
Nations as to its compatibility with the existing international legal order”.)
19Cyprus, para. 16. See also Serbia, para. 97.
20Status of Eastern Carelia, Advisory Opinion, 1923, P.C.I.J., Series B, No. 5, p. 29.
7 21
opinion for its own actions. In this rega rd, several United Nations Member States have
expressed strong doubts about whether the General Assembly can ultimately benefit for its
own work from an opinion of the Court on this matter. In their view, the General
Assembly was only a vehicle for the Republic of Serbia to achieve its own goal for its own
purposes: a judicial pronouncement on the legality of the Declaration of Independence of
Kosovo.
1.17. For all these reasons, several United Na tions Member States have suggested
that there are “compelling reasons” for the Court not to entertain the request for an
advisory opinion contained in General Assemb ly resolution63/3. The opinion requested
from the Court would not repr esent the Court’s “participatio n in the activities of the
Organization”, and the Court could, for this “compelling reason”, decline to answer the
question.
B. T HE M EANING AND S COPE OF THE Q UESTION C ONTAINED IN
G ENERAL A SSEMBLY RESOLUTION 63/3
22
1.18. Most States that have addressed the matter, including Serbia , the sole sponsor
of General Assembly resolution63/3, have recognized the strictly limited scope of the
question contained in that reso lution, i.e. the legality of the Declaration of Independence
that was issued on 17 February 2008 . Serbia did so during th e debate in the General
Assembly. It stated that, as formulate d, the question “represe nts the lowest common
denominator of the positions of the Member States on this question, and hence there is no
need for any changes or additions” .
1.19. Consequently, the Court, assuming that it considers it to be appropriate to
respond to the question, should li mit itself to the single issu e contained in the question:
Was the Declaration of Independence of 17 February 2008 in accordance with international
law? The question is narrow. It need not be broadened, interpreted or reformulated. The
21
See note 5 above.
22Serbia, para. 19.
23See also, in principle, Spain, para. 6 (iii).
24 nd
United Nations, Official Records of the General Assembly , Sixty-third plenary meeting,
8 October 2008 (A/63/PV.22), p. 2 [Dossier No. 6].
8Court need only identify the relevant legal rules, if any, and apply them to the Declaration
of Independence. Other questions, such as Kosovo’s statehood today, or the legality of the
many recognitions of the Republic of Kosovo as a sovereign and independent State, are not
25 26
before the Court , contrary to assertions of one or two States .
1.20. The question can also not be broadened by arguing that the rules that allegedly
apply in the Kosovo situation are fundamental rules applying throughout the international
legal order27 or are potentially applicable to other situations . The question only concerns,
and the Court is only called to consider, the le gality of the Declaration of Independence of
Kosovo of 17 February 2008, in it s particular context. The Court is not requested to
pronounce in general or in the abstract on the legality of declarations of independence.
1.21. As previously submitted by Kosovo 29and as underlined by others 30, the
prejudicial and argumentative elements contai ned in the formulation of the question,
i.e. the characterisation of the Declaration as “unilateral”, the mischaracterization of those
who issued the Declaration, and the assumption th at there are indeed rules of international
law governing the issuance of de clarations of independence, should not affect the Court’s
approach in the present proceedings.
C. THE PERSONS W HO SSUED THE D ECLARATION OF INDEPENDENCE
1.22. It is necessary to comment again , very briefly, on the issue of the authorship
of the Declaration of Independence that was read out, vot ed upon and signed
on 17 February 2008.
1.23. As was shown by Kosovo in its first Written Contribution, and contrary to what
may be thought from the terms of the ques tion put to the Court, the Declaration of
25Poland, para. 2.1; United Kingdom, para. 1.16. See also Spain, para. 6 (iii).
26Cyprus, para. 10 ; Russian Federation, para. 52. See also Argentina, para. 112, and Venezuela, para. 5.
27
Cyprus, para.18; Serbia, paras. 75 and 79; Argentina, para. 3. See also Egypt, para. 23.
28Russian Federation, paras. 13-14.
29Kosovo, paras. 7.04-7.10.
30
Luxembourg, paras. 13-14.
31See Kosovo, para. 6.01 and paras. 6.03-6.20.
9Independence of 17 February 2008 was issued in the name of the people of Kosovo, by
their democratically elected representative s meeting in an extraordinary session, as a
32
constituent body in Pristina . Issuance of the Declaration was not an act of the
“Provisional Institutions of Self-Government of Kosovo” (PIS G), or of the Assembly of
Kosovo acting as one of the PISG. As was explained in Kosovo’s first Written
Contribution, the special circumstances of the adoption of the Declaration, its form and its
33
text confirm that it was not an act of the PISG . As the Minister of Foreign Affairs of the
Republic of Kosovo, Mr. Hyseni, put it in the Security Council:
“the independence of the Republic of Kos ovo was declared by elected representatives
of the people of Kosovo, including by all elected representatives of non-Albanian
34
communities except the members of the Serb community” .
1.24. Serbia refers in its Written Statement to those who issued the Declaration as
“members of the Assembly of Kosovo” 35. In fact, on 17 February 2008, the Declaration
was read out by the Prime Minister, voted upo n and signed by the demo cratically elected
representatives of the people, including members of the Assembly, the President of Kosovo
and the Prime Minister. However, “members of the Assembly” are not “the Assembly”,
and these members and the other representatives of the people of Kosovo did not purport to
act on that day as the PISG.
32A number of States have rightly identified those who issued the Declaration as the democratically elected
representatives of the people of Kosovo expressing the will of the people. See, e.g., Austria, para. 8;
Germany, pp. 6-7; Luxembourg, par. 13; Switzerland, para. 79; United Kingdom, para. 1.12; United States
of America, pp. 32-33.
33The text of the Declaration of Independence included by the United Nations Secretariat in its Dossier
(Dossier N°192), and the text included by the Republic of Serbia in its Written Statement (Serbia,
Annex 2), do not reflect the actual wording of the Declaration of Independence as read out (in Albanian),
voted upon, written down in solemn form, and signed on 17 February 2008. A scanned copy of the
original of the Declaration, as well as a translation into English and French, can be found in Kosovo’s
first Written Contribution, Annex 1.
34 th
Security Council, provisional verb atim record, sixty -fourth year, 6144 meeting, 17 June 2009,
S/PV.6144, p. 23.
35Serbia, para. 17.
10 CHAPTER II
KOSOVO TODAY
2.01. The aim of this chapter is two-fold: to respond, as necessary, to assertions
about the situation in Kosovo today made in some Written Statements; and to update the
developments described in Chapter II of Kosovo’s first Written Contribution.
2.02. The chapter is divided into five sections: international relations ( Section I);
constitutional and other internal developments ( Section II); presence of the international
community (Section III); criteria for statehood (Section IV); and Serbia’s attitude towards
Kosovo (Section V).
2.03. As stated in Kosovo’s first Written Contribution, developments in Kosovo
36
since 17 February 2008 are not directly re levant to the question before the Court . That
question concerns solely the Declaration of Independence issued on 17 February 2008,
and its “accordance with international law” . It does not concern other matters, such the
status of the Republic of Kosovo today as a sovereign and independent State or its
recognition by other States. Nevertheless, it may be helpful to mention some important
developments since the finalization of Kosovo’s first Written Contribution in early
April 2009.
2.04. Major developments since early April 2009 include the celebration
on 15 June 2009 of the first anniversary of the entry into force of the Constitution of the
Republic of Kosovo; additional recognitions of the Republic of Kosovo as a sovereign and
independent State; its admission to the International Moneta ry Fund and the World Bank,
both specialized agencies of the United Nati ons, and to other organizations of the World
Bank Group; the appointment of the nine judges of the Constitutional Court, and that
Court’s entry into full func tioning; the election by the Assembly of the Ombudsman
provided for in the Constitution; and increasing efforts at internal reconciliation, with
36Kosovo, para. 2.01.
37Ibid., paras. 7.11-7.15, and paras. 1.18-1.21 above.
11“more and more Serb representatives willing to come forward and engage with the central
38
institutions” .
2.05. Addressing the Assembly of Kos ovo on 15 June 2009, former Finnish
President and United Nations Special Envoy Martti Ahtisaari said:
“Kosovo’s independence is irreversible and th is is evident from the recognitions that
continue to arrive from around the world. Acceptance of this reality by all would go a
long way toward ensuring stability not onl y for Kosovo, but for the entire Western
Balkans region and indeed for Europe as well.” 39
I. International Relations
Recognitions
2.06. Since early April 2009, four more States have recognized the Republic of
Kosovo as a sovereign and independent Stat e: Bahrain, Comoros, Gambia and Saudi
Arabia. In addition, many othe r States deal with the Repub lic of Kosovo as a sovereign
and independent State, without a formal act of recognition . A large number of States that
had not yet recognized the Republic of Kosovo voted for Kosovo’s membership in the
International Monetary Fund or the organizations of the World Bank Group . 41
2.07. Thus, as of the date when this further Written Contribution was
completed, 60 States had formally recognized the Republic of Kosovo as a sovereign and
independent State, while many others treated it as a State in practice. It is particularly
noteworthy that the great major ity of States in Kosovo’s broa der region, that is Europe,
have recognized Kosovo. Of the 47 member States of the Council of Europe, 33 had
recognized by early July 2009 including all of Kosovo’s immediate neighbours (except
Serbia). Such recognition happened notwith standing heavy-handed campaigns, led by the
38ICO, “Consolidating Kosovo’s European Future: Tracing Next Steps”, Presentation at the London School
of Economics, 13 May 2009, p. 7 (available on the ICO website: http://www.ico-
kos.org/d/LSE_final.pdf).
39President Ahtisaari’s address, Annex 1.
40
As the Court is aware, the practice of some Stateis not to issue formal statements of recognition but,
rather, simply to begin treating a new country as a State in their international relations, such as through
the conclusion of bilateral treaties, or the exchange of diplomatic or consular representatives. On such
implied recognition, see Kosovo, para. 2.32.
41
Paras. 2.08-2.11 below.
12President and Foreign Minister of the Republic of Serbia, to coerce States into not
recognizing the Republic of Kosovo, and to put obstacles in the way of Kosovo’s
participation in internationa l organizations and internatio nal cooperation. Such efforts
illustrate Serbia’s backward-looking and negative policies towards Kosovo 42.
Relationship with International Organizations
2.08. The Republic of Kosovo became a member of the International Monetary Fund
on 29 June 2009, and a member of the International Bank for Reconstruction and
Development and other organiza tions of the World Bank system on the same day. It is
43
thus a member of two of the specialized agencies of the United Nations .
2.09. On 8 May 2009, the Executive Board of the International Monetary Fund
(IMF) certified a vote by the IMF’s Board of Governors to offer IMF membership to the
Republic of Kosovo. 138 member countries of the IMF, out of 185, participated in
the vote. 96 countries voted for the Republic of Kosovo’s membership in the IMF;
only 10 voted against. Kosovo became a member of the IMF when its authorized
44
representative signed the IMF’s Articles of Agreement on 29 June 2009 .
2.10. By letter dated 22 April 2009, the Boards of Governors of the International
Bank for Reconstruction and Development (IBRD, also known as the World Bank), the
International Development Agency (IDA) and the International Finance Corporation
(IFC) were asked to vote on draft Resolutio ns entitled “Membership of the Republic of
Kosovo”. The period within which votes could be received expired on 3 June 2009. By
that date, the required number of votes had been cast, and the Resolutions inviting the
Republic of Kosovo to join the three organisa tions were adopted. 96 countries voted for
the Republic of Kosovo’s membership in the World Bank, with only 7 voting against. In
the case of the IDA the corresponding figures were 89 and 5; and in the case of the IFC
they were 95 and 6.
42
See paras. 2.56-2.58 below.
43See also Kosovo, paras. 2.41-2.42.
44
Only “countries” (i.e., States) may become memb ers of the IMF. See Artic les of Agreement of the
International Monetary Fund, 22 July 1944, United Nations, Treaties Series (UNTS) , vol. 2, p. 39,
Article II(2) (“Membership shall be open to other c ountries at such times and in accordance with such
terms as may be prescribed by the Board of Governors.”)
13 2.11. By letter dated 22 April 2009, the Council of Governors of the Multilateral
Investment Guarantee Agency (MIGA) was asked to vote on a draft Resolution entitled
“Membership of the Republic of Kosovo”. The period within which votes could be
received expired on 3 June 2009. By that date, the required number of votes had been cast,
and the Resolution inviting the Republic of Kosovo to join the organisation was thus
adopted. 91 countries voted for the Republic of Kosovo’s membership in MIGA, with 7
voting against.
2.12. A law to enable Kosovo to implement United Nations sanctions imposed by
the Security Council is in preparation. This is an example of Kosovo’s commitment to the
World Organization even prior to its admission as a Member State.
European Union
th
2.13. The 16 plenary meeting of the Kosovo Stab ilisation and Association Process
Tracking Mechanism (STM) was held on 12 June 2009 in Pristina. The meeting focused
on the progress delivered in the implementati on of Kosovo’s European agenda as well as
the priorities for the immediate future. The European Commission has welcomed a
number of recent laws which Kosovo had adopted, and presented an update on the
preparations of the Feasibility Study that will be published in October.
2.14. During May and June 2009, as part of the continuous dialogue between the
European Commission and Kosovo, regular techni cal discussions were held covering six
main sectors. These meetings assess Kos ovo’s progress in implementing the European
Partnership recommendations and advancing to wards EU standards, including legislation
and institutional arrangements.
Diplomatic Relations and the Establishment of Embassies 45
2.15. The Law on the Ministry for Foreign Af fairs and Diplomatic Service of
Republic of Kosovo specifies criteria for the diplom atic representatives of Kosovo 46, and
45See also Kosovo, paras. 2.33-2.35.
4Law No. 03/L-044, 15 March 2008, art. 6, Official Gazette of the Republic of Kosov, No. 26,
2 June 2008, pp. 50-53.
14procedures for their selection and appointment , which include a role for the Assembly in
47
scrutinizing appointments . The selection of Kosovo’ s first Ambassadors has been
conducted by open competition. In addition, a Law on the State Protocol of the Republic
48
of Kosovo was adopted by the Assembly in April .
2.16. High officials of the Republic of Kos ovo have continued to have numerous
bilateral and international meetings with their opposite numbers from other countries, with
49
both inward and outward official visits . By way of example, towards the end of
June 2009 the President of the Republic of Ko sovo attended a meeting at Vlora, Albania,
with the Presidents of Albania, Macedonia and Montenegro.
Treaties and International Law 50
2.17. The general position as regards treatie s was set out in Kosovo’s first Written
Contribution . In addition, Kosovo has conclude d a number of bilateral treaties 5,
including:
– Agreement between the Government of the Republic of Kosovo and the Kingdom of
Denmark on “Development Cooperation”, entered into force on 3 April 2008;
– Agreement between the Government of the Republic of Kosovo and the Government
of the Republic of Turkey on “Mutual A bolition of Visas”, concluded on 13 January
2009, entered into force on 6 June 2009;
– Agreement between the Government of the Republic of Kosovo and the
Government of the Republic of Slovenia on “Development Cooperation”, concluded
on 21 April 2009;
47
Law No. 03/L-044, 15 March 2008, art. 7, Official Gazette of the Republic of Kosova , No. 26,
2 June 2008, pp. 50-53.
48Law No. 03/L-132, 14 April 2009.
49Kosovo, para. 2.28.
50
See also ibid., paras. 2.36-2.40.
51Published or to be published on the website of the Official Gazette of the Assembly of the Republic
of Kosovo (http://www.gazetazyrtare.com/).
15– Agreement between the Government of the Republic of Kosovo and the Government
of the Republic of Turkey on “Economic Cooperation”, concluded 28 May 2009;
– Loan Assumption Agreement between the Republic of Kosovo and the International
Bank for Reconstruction and Development, signed on 29 June 2009;
– Investment Incentive Agreement between th e Government of the Republic of Kosovo
and the Government of the United States of America, signed on 30 June 2009.
2.18. Other bilateral treaties are at an advan ced stage of negotiation (including with
Albania and Turkey).
2.19. Kosovo has recently signed its first two Memoranda of Understanding, with
Montenegro and Italy respectively, to facilita te the exchange of ope rational and judicial
information on matters relating to organized crime.
II. Constitutional and Internal Developments
2.20. On 15 June 2009, the first anniversary of the entry into force of the
Constitution of the Republic of Kosovo, Amba ssador Pieter Feith, the International
Civilian Representative (ICR), while ac knowledging that there was a “long journey
ahead”, said that
“there is progress of which to be proud. Th is is evident in the development of central
institutions, the rule of law and devolution of governing authority to municipalities.
The Kosovo government and its international partners have also pressed ahead on
community 52ghts and representation and preservation of religious and cultural
heritage.”
2.21. By early July, all the prin cipal institutions provided for in the Constitution of
the Republic of Kosovo (and foreseen in the Ahtisaari Plan) had been established and were
operational. Contrary to the impression given in Serbia’s Written Statement, Kosovo Serbs
are increasingly taking part in institution-building.
52Koha Ditore interview, 15 June 2009.
16 2.22. During the period of international s upervision following independence, the
Constitutional Court of the Republic of Kosovo is composed of six judges appointed by
the President of the Republic upon the propos al of the Assembly of Kosovo, and three
international judges appointed by the Internat ional Civilian Representative (ICR) after
consultation with the President of the European Court of Human Rights 53. These
appointments have all been made , and on 26 June 2009, the nine judges were sworn in by
the President of the Republic. Mr. Enver Hasani was elected as President of the
Constitutional Court, which is now fully operational.
2.23. On 4 June 2009, in accordance with article 134 of the Constitution,
the Ombudsperson was elected by the Assembly of Kosovo for a non-renewable
55
five-year term .
2.24. A number of new laws have been adopted by the Assembly of Kosovo 56.
These include the Law on the Membership of the Republic of Kosovo in the International
Monetary Fund and World Bank Group of Organizations.
2.25. In June 2009, the Government of Kosovo announced that a census would be
held in the spring of 2011, in parallel with those in other European States.
2.26. On 16 June 2009, the President of the Republic fixed 15 November 2009 as the
date for local elections throughout Kosovo. These elections will be the first held in
Kosovo since independence, and will involve elections in 38 municipalities, including 10
with a Serb majority and one with a Turk majority. Five of the Serb-majority
municipalities are new, formed as part of the decentralization process foreseen in the
Ahtisaari Plan.
53Constitution, art. 152.
54Of the six judges appointed by the President of the Republic, four are Kosovo Albanians, one a Kosovo
Serb, and one from the Turkish community; the thre e judges appointed by the ICR are from Bulgaria,
Portugal and the United States of America.
55
For the functions of the Ombudsman, see Constitution, art. 132.
56Law No. 03/L-132 of 16 April 2009 On the State Protocol of the Republic of Kosovo ; Law No. 03/L-129
of 30 April 2009 On Economic Zones; Law No. 03/L-119 of 27 May 2009 On Biocide products; Law
No. 03/L-152 of 29 May 2009 On Membership of the Republic of Kosovo in the International Monetary
Fund and World Bank Group Organizations.
17 2.27. Efforts continue to en sure the return of refugees and internally displaced
persons, and progress is being made – though for a number of reasons, not least economic,
the numbers involved, while once again on the increase, continue to be disappointingly
57 58
low . Such efforts are necessarily long-term .
2.28. Progress has also been made with the reconstruction of cultural and religious
59
heritage sites, with tenders for significant projects being issued in May 2009 .
2.29. As regards the Kosovo Security Force , the Foreign Minister of Kosovo
informed the Security Council on 17 June 2009 that
“[t]he build-up of our security force is progressing. As I said in my March statement
to the Council, the NATO-trained Kosovo Security Force is a democratic and
civilian-controlled security force. This multi-ethnic and apolitical force will be
focused primarily on emergency response and generally on activities to promote
development and regional peace, security and stability.” 60
III. Presence of the International Community
2.30. Contrary to the presentati on by certain States, notably Cyprus and Serbia, the
international presence in Kosovo in no way under mines the sovereignty of the State. On
the contrary, the principal role of the presence, which is in Kosovo at the invitation of the
State, is to monitor and to assist in develo ping the institutions in accordance with the
Ahtisaari Plan and the Constitution of the Republic of Kosovo.
2.31. Important elements of the international presence, in particular UNMIK and
KFOR, have already been reconfigured and downsized very significantly. Others, in
particular the ICR/ICO and EU LEX, are due to have their mandates reviewed in 2010.
5Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo,
S/2009/300, 5 May 2009, paras. 30-33.
58Remarks by the ICR at the Institute for Historical Justice and Reconciliation, The Hague, 26 May 2009,
pp. 4-5 (available on the ICO website: http://www.ico-kos.org/d/090526 Remarks IHJR(1).pdf).
59
Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo,
S/2009/300, 5 May 2009, paras. 34-36.
Security Council, provisional verb atim record, sixty -fourth year, 6144 th meeting, 17 June 2009,
S/PV.6144, p. 9.
18These reductions reflect the development of the institutions of Kosovo, and the importance
attached to local ownership.
2.32. The International Steering Group of 25 States 61 continues to support
Kosovo’s development. Its Eighth Meeti ng was held in Pristina on 15 June 2009, the
anniversary of the entry into force of the C onstitution of the Republic of Kosovo. In its
statement issued on that occasion 62 the ISG noted that
“in the past year the people of Kosovo have made significant pr ogress in building a
democratic, multi-ethnic State based on the pr inciples of democracy and human rights
in accordance with its European perspective”.
2.33. The ICR recently said
“[t]he Ahtisaari Plan vests in me ex ecutive authority to supervise Kosovo’s
development as an independent state, and this fact is also acknowledged in the
Constitution of Kosovo. However, I have to da te not felt the need to exercise these
powers – mainly out of respect for th e principle of local ownership and
responsibility …” .64
2.34. The ICR/ICO monitors progress in the broad fields covered by the Ahtisaari
Plan. Considerable progress has been made in the various fields covered by European
Standards (internal market; public procurement; transport; telecoms; social affairs;
agriculture and rural development; energy; environment; justice, freedom and security; and
integrated border management).
2.35. As provided for in the Ahtisaari Plan, wh en the ICR’s powers are reviewed
in 2010, the ISG will decide whether there is a continuing need for their retention.
2.36. EULEX’s mandate is a technical one, aimed at assisting local institutions in the
rule of law field. It does not have political functions. The mandate is set out in the Joint
61
Kosovo, paras. 2.62-2.63.
62Annex 2.
63Kosovo, para. 2.64.
64
“Consolidating Kosovo’s European Future: Tracing Next Steps”, Presentation at the London School of
Economics, 13 May 2009, p. 4 (available on the ICO website: http://www.ico-kos.org/d/LSE_final.pdf).
19Action of the Council of the Eu ropean Union of 4 February 2009 65, and it reports to
Brussels. Like other European Security and Defence Policy (ESDP) missions, the
principle of local ownership is at the heart of the mission. As the Head of Mission, Yves
de Kermabon, has put it, locals are “in the driver’s seat”.
2.37. EULEX’s Mission Statement is as follows:
“The ESDP mission will assist the Kosovo au thorities, judicial authorities and law
enforcement agencies in their progress towa rds sustainability and accountability. It
will further develop and strengthen an i ndependent and multi-ethnic justice system
and a multi-ethnic police and customs service, ensuring that these institutions are free
from political interference and adhering to internationally recognised standards and
European best practices. The mission, in full co-operation w ith the European
Commission Assistance Pr ogrammes, will implement its mandate through
monitoring, mentoring and advising, while retaining certain executive
responsibilities.”
2.38. EULEX is described as follows on its website:
“The European Union Rule of Law Mission in Kosovo (EULEX) is the largest civilian
mission ever launched under the European S ecurity and Defence Policy (ESDP). The
central aim is to assist and support the Kosovo authorities in the rule of law area,
specifically in the police, judiciary and customs areas. The mission is not in Kosovo to
govern or rule. It is a technical mission which will66onitor, mentor and advise whilst
retaining a number of limited executive powers.”
2.39. As the Foreign Minister of Kosovo e xplained during the Security Council
meeting on 23 March 2009,
“[d]eployment of EULEX throughout Kosovo is in accordance with the mandate that
derives from the Kosovo independence de claration, the Ahtisaa ri package, the
constitution of the Republic of Kosovo, the laws of the Republic of Kosovo, the
European Union joint action plan of 4 February 2008 and the invitations of the
President of 17 February and 8 August” . 67
65
Kosovo, para. 2.66.
66http://www.eulex-kosovo.eu/?id=2 (emphasis added).
67Security Council, provisional verbatim record, sixty-fourth year, 6079 meeting, S/PV.6079, p. 8.
20 2.40. A second report on EULEX’s activities, covering the period February to
68
May 2009, is annexed to the United Nati ons Secretary-General’s latest report . As this
report states, “[t]hrough monitoring, mentoring and advising the rule of law institutions in
Kosovo, EULEX built up a picture of the compet ence of those authorities, and identified
areas for further targeting of reform efforts”.
2.41. EULEX judges and prosecutors act within the Kosovo judicial system, in
accordance with the Constitution and laws of th e Republic of Kosovo. In particular, they
act on the basis of two Laws adopted by the Kosovo Assembly as part of the Ahtisaari
package, the Law on the Jurisdiction, Case Selection and Case Allocation of EULEX
Judges and Prosecutors in Kosovo , and the Law on Special Prosecution Office of the
Republic of Kosovo 69. Article 1 of the first of these Laws provides as follows:
“This law regulates the integration and jurisdiction of the Eulex judges and prosecutors
in the judicial system of the Republic of Kosovo.”
2.42. Two recent reports of the Secretary-Gene ral describe the current situation as
70
regards UNMIK: his report to the Fifth (Budgetary) Committee of April 2009 ; and his
71
report to the Security Council on UNMIK of June 2009 .
2.43. As anticipated , the April 2009 report proposed to the General Assembly that
the personnel of UNMIK be reduced, in 2009- 2010, by almost 90% as compared with the
approved numbers for 2008-2009 (507 persons instead of 4,911) 73. In the case of law
enforcement matters, UNMIK has now handed over to EULEX virtually all remaining
6Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo,
S/2009/300, 5 May 2009, annex I.
69
Kosovo, para. 2.67.
70
Budget of the United Nations Interim Administration Mission in Kosovo for the period 1 July 2009 to
30 June 2010, Report of the Secretary-General, A/63/803, 2 April 2009.
71Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo,
S/2009/300, 5 May 2009.
72Kosovo, paras. 2.69-2.74.
73
Budget of the United Nations Interim Administration Mission in Kosovo for the period 1 July 2009 to
30 June 2010, Report of the Secretary-General, A/63/803, 2 April 2009. On the basis of this report, the
General Assembly has adopted a greatly reduced budget for UNMIK for 2009/2010 (resolution 63/295,
30 June 2009).
21 74
active case files . As of 19 March 2009 the Kosovo authorities assumed responsibility for
75
transnational mutual legal assistance with those States that have recognised Kosovo .
2.44. The mandate of UNMIK is described as now being “to help the Security
Council achieve an overall objective, namely, to ensure conditions for a peaceful and
normal life for all inhabitants of Kosovo and advance regional stability and prosperity in
the western Balkans” 76.
2.45. The main remaining functions of UNM IK are described in the April 2009
report as being “monitoring and reporting on political, secur ity and community
developments that affect inter-ethnic relations and stability in Kosovo and the sub-region;
facilitating, where necessary and possible, arrangements for Kosovo’s engagement in
international agreements; and facilitating dialogue between Pristina and Belgrade on issues
of practical concern” 77. The Secretary-General also made clear that UNMIK “will not
undertake activities in the area s of the international admini stration of Kosovo or the
rule of law, areas in which the Mission ha s already ceased operations in the wake of
Kosovo’s declaration of independence in February 2008 and the deployment of EULEX in
December 2008” . There is no mention in the report of any remaining functions of the
SRSG/UNMIK with regard to “[f]acilitating a political process designed to determine
Kosovo’s future status, taking into account the Rambouillet accords” . 79
2.46. The latest report of the Secretary-General is incorrect, when it says, without
attribution, that “Kosovo authorities … made a series of public statements ... asserting that
Security Council resolution 1244 (1 999) is no longer relevant and that they had no legal
7Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo,
S/2009/300, 5 May 2009, para. 21.
75Ibid., para. 22.
76
Budget of the United Nations Interim Administration Mission in Kosovo for the period 1 July 2009 to
30 June 2010, Report of the Secretary-General, A/63/803, 2 April 2009, para. 2; see also Report of the
Secretary-General on the United Nations Interim Administration Mission in Kosovo, S/2009/300,
5 May 2009, paras. 18-20.
77
Budget of the United Nations Interim Administration Mission in Kosovo for the period 1 July 2009 to
30 June 2010, Report of the Secretary-General, A/63/803, 2 April 2009, para. 34 (last sentence).
78Ibid., para. 12. The last remaining UNMIK rule of la w function is liaison with INTERPOL. This too is
expected to cease, when, as anticipated, EULEX co ncludes a Memorandum of Understanding with the
International Criminal Police Organisation (INTERPOL) at its General Assembly in October 2009.
79Security Council resolution 1244 (1999), para. 10 (e) [Dossier No. 34].
22 80
obligation to abide by it” . This statement, which in context appears to relate to the period
covered by the latest report (10 March-31 May 2009), simply repeats what was said in the
81
previous report .
2.47. In the Security Council debate on 17 June 2009, the Foreign Minister of
Kosovo clearly and unequivocally stated
“As I said in my remarks in this forum in March, for practical and pragmatic reasons
we have requested the conclusion of the mi ssion and mandate of UNMIK. In light of
the continued positive developments in Kosovo and the widespread deployment of
EULEX, I reiterate that request today. I al so reiterate the commitment expressed in
our Declaration of Independence and in ou r Constitution of respect for and adherence
to international law, including binding resolutions of this body. That commitment has
never wavered.” 82
2.48. Until the Security Council terminates its mandate, UNMIK remains in Kosovo
in accordance with Security Council resolution 1244 (1999), which is the United Nations
basis for its presence, as Kosovo accepted in its Declaration of Independence. It will be
recalled that in paragraph 12 of the Declaration of Independence, the representatives of the
people of Kosovo stated that they would “act consistent with the principles of international
83
law and resolutions of th e Security Council, including reso lution 1244 (1999)” . This
remains the position.
IV. Criteria for Statehood
84
2.49. It is suggested in one or two of the Written Statements that the Republic of
Kosovo does not meet the “Montevideo” criteria for statehood. In particular, in its Written
8Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo,
S/2009/300, 5 May 2009, para. 4.
81
Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo,
S/2009/149, 17 March 2009, para. 4.
82 th
Security Council, provisional verbatim record, sixty-fourth year, 6144 meeting, 17 June 2009,
S/PV.6144, p. 8 (corrected).
83Kosovo, Annex 1, p. 217.
84Cyprus, paras. 159-192. The Russian Federation raises the question whether Kosovo “met the necessary
criteria for statehood”, without giving an answer. Its point seems to be that “throughout that period [June
1999 to February 2008], and well into the year 2008, Kosovo remained largely dependent on the
functioning of the international presences” (it cites only figures for security forces), and it concludes that
“[b]y and large, the situation remains the same today” (Russian Federation, paras. 52-53). This is simply
not the case.
23Statement, the Republic of Cyprus argues at length that Kosovo was not, in April 2009, a
State because it did not meet at least one of the criteria 85. Specifically, Cyprus suggests
that the role of the international community in Kosovo is such as to preclude Kosovo from
meeting the requirement of independence in th e exercise of its international relations.
86
While this issue is not before the Court , Kosovo wishes to place on record that it does in
fact clearly meet the criteria for statehood.
2.50. Article 1 of the Montevideo Convention provides:
“The state as a person of internat ional law should possess the following
qualifications: (a) a permanent population: (b) a defined territo ry; (c) government;
and (d) capacity to enter into relations with other states.”
2.51. The reality is that Kos ovo has a defined territory 87, has a permanent
population , has a fully functioning and effective government 89, and is engaging actively
on its own behalf in international relations with States worldwide (as well as within
international organizations) . 90
2.52. Despite some equivocal language a bout the criteria of population and
91
territory , Cyprus seems only to question Kosovo’s fulfilment of the criteria for statehood
on the ground that it lacks an effective government and the capacity to enter into relations
with other States . Cyprus asserts, rather vaguely, th at “the Kosovo authorities appear to
be some way from being able to function independently as an effective government” , and 93
85
Cyprus, paras. 159-192. Cyprus further argues that Kosovo does not meet a requirement of “legality”,
which it suggests is missing inter alia when “the entity has been established in a manner that violates the
legal obligations, or the legal limitations upon th e powers, of those who purported to establish the
State” . This argument will not be addressed here; it adds nothing to Cyprus’s assertion that the authors
of the Declaration of Independence acted ultra vires their powers under Security Council resolution 1244
(1999) (as to which see paras. 5.61-5.66 below).
86See Kosovo, paras. 7.11-7.15, and paras. 1.18-1.21 above.
87Kosovo, paras. 2.10-2.14.
88Ibid., paras. 2.15-2.16.
89
Ibid., paras. 2.48-2.56.
90
Kosovo, paras. 2.27-2.47 and paras. 2.06-2.19 above.
91Cyprus, para. 172. Past population changes, hardly unique to Kosovo, are irrelevant. What matters for
statehood is current population.
92Cyprus, paras. 3 (k), 172-183, and 193 (g).
93Ibid., para. 173.
24that “much of the responsibility for gove rnance still falls on the ‘international
presences’” . It seems to base these assertions largely on the tasks of EULEX, as set out
in paragraph 3 of the EU Council Joint Action 95, and on what it claims is the continuing
role of UNMIK in respect of Kosovo’s international relations . 96
2.53. Regarding the presence of EULEX in Kosovo, as Cyprus itself notes, the
mandate of EULEX is to “monitor, mentor and advise”, and to “contribute to” certain other
97 98
narrowly-defined tasks . As explained in Kosovo’s first Written Contribution and
99
above , EULEX’s role is a technical one, strictly focused on assisting Kosovo institutions
in certain discrete rule of law activities. It operates in accordance with the law applicable
in Kosovo and supports the principle of local ownership.
2.54. Cyprus asserts that “it is UNMIK which conducts much, if not all, of Kosovo’s
100
international relations” . This is not correct and C yprus provides no factual foundation
101
for the assertion. As noted above , and as the Secretary-General has made clear, the role
of UNMIK in this field is stric tly limited; it is confined to “ facilitating, where necessary
102
and possible, arrangements for Kosovo’s engagement in international agreements” . As
agreed between the SRSG and the Govern ment of Kosovo, UNMIK stands ready to
facilitate Kosovo’s participatio n in regional and more widely in international initiatives
upon the Government’s request. Such facilita tion may, occasionally, be of assistance in
dealing on practical matters with certain States that have not yet recognized Kosovo. In
94Cyprus, para. 175
95
Ibid., para. 174.
96Ibid., para. 178.
97Paras. 2.36-2.41 above.
98Kosovo, paras. 2.65-2.67.
99
Paras. 2.36-2.41 above.
100Cyprus, para. 178.
101Paras. 2.42-2.48 above.
102
Budget of the United Nations Interim Administration Mission in Kosovo for the period 1 July 2009 to
30 June 2010, Report of the Secretary-General, A/63/803, 2 April 2009, para. 34 (emphasis added).
25other respects, as already described 103, Kosovo conducts its interna tional relations directly
and independently.
2.55. As explained in Kosovo’s first Written Contribution 10, the international
community’s presence and role in Kosovo is similar to that in certain other States that are
fully accepted as having acquired statehood. Indeed, if one compares the position of
Kosovo with other States that have been admitted to the United Nations, such as Bosnia
and Herzegovina or Timor Leste, or States th at in the past had significant international
presences as they entered upon statehood (including former colonies and trusteeships), it is
clear that the international community’s present role in Kosovo can in no way be viewed as
an exceptional circumstance, let alone a dimi nution of Kosovo’s position as a sovereign
and independent State. Rather, the interna tional presence in Kos ovo has been welcomed
and accepted by Kosovo, and as such is an affirmation of Kosovo’s independence and
sovereignty.
V. Serbia’s Attitude towards Kosovo
2.56. The hostile and backward-l ooking attitude of the Republic of Serbia’s high
105
officials towards Kosovo continues as does their interferen ce in Kosovo’s internal
affairs. This is to the grave detriment of Kosovo Serbs, especially those living in northern
Kosovo, who have been largely prevented by di rect and indirect Se rbian pressure from
benefiting from integration into the structures of the Republic of Kosovo. As the Foreign
Minister of Kosovo informed the Security Council on 17 June 2009:
“Our Government has conti nued to seek ways to improve the conditions in the
minority community areas, especially in th e Serb-majority areas. Unfortunately the
Republic of Serbia has continued to pr event the Serb citi zens of Kosovo from
cooperating with the institutions of Kosovo. Belgrade has also continued to impede
103Kosovo, paras. 2.27-2.47.
104Ibid., paras. 2.58-2.74.
105
See, as one example among many, the intemperate speech of the Foreign Mini ster of Serbia in the
Security Council on 17 June 2009: “we are gathered [h e said] to discuss the dangerous consequences of
the 17 February 2008 unilateral declaration of independence by the ethnic Albanian authorities of
Serbia’s southern prothnce of Kosovo and Metohija” (Security Council, provisional verbatim record,
sixty-fourth year, 6144 meeting, 17 June 2009, S/PV.6144, p. 5).
26 our cooperation with neighbors and the in ternational commun ity by blocking our
participation in regional and wider international bodies.” 106
2.57. Serbian officials, in particular its Foreign Minister, Mr. Jeremi ć, assert that
107
Serbia will “never” recognize Kosovo , apparently regardless of the outcome of the
present proceedings before this Court and re gardless of the attitude of the people of
108
Kosovo (including the Kosovo Serbs) towards independence . They engage in
provocations, such as the recent announcement that “local elections” will be held in Peja
and Pristina municipalities on August 2009. In adopting such positions, Serbia’s leaders
are seeking to bind the people of Serbia, and all the peoples of the Balkans, to an indefinite
future of discord and instability. The ICR recently said,
“Kosovo’s stability continues to be negatively influenced from the outside. While
actively courting Brussels in its European aspirations, Serbia exercises a certain
influence over the Serb community living in Kosovo, particularly in the North.
Progress towards a multi-ethnic society in pa rt rests on Belgrade’s willingness to let
communities decide their future for themselves.” 109
2.58. Serbia’s negative attitude contrasts st arkly with the positive vision of the
people and leaders of Kosovo:
“The desire of Kosovo’s people and of their leaders for progress and for Euro-Atlantic
integration is palpable, and the spirit of local ownership for Kosovo’s affairs
110
grows.”
1Security Council, provisional verb atim record, sixty -fourth year, 6144 thmeeting, 17 June 2009,
S/PV.6144, p. 9.
107See, among many such statements, Mr. Jeremi ć’s statement to the Security Council on 17 June 2009:
“Serbia will never, under any circumstances, implicitl y or explicitly recognize the unilateral declaration
of independence by the ethnic Albanian authorities of our southern province” (ibid., p. 5).
108As the Secretary-General says in his latest report, “increasing numbers of [Kosovo Serbs] continue to
apply for Kosovo identity cards, driver’s licenses and other Kosovo documentation, and sign contracts
with the Kosovo Energy Corporation (KEK) in order to facilitate their daily lives (S/2009/300, para. 7).
He further said that “[a] growing number of Kosovo Serb police officers appear to have started returning
to work …; there also seems to be considerable interest amongst members of the Kosovo Serb community
to apply for posts which might b ecome vacant after 30 June” (ibid., para. 25). In fact, the overwhelming
majority of Kosovo Serb police officers in the Nort h did return to work with the Kosovo Police by
the 30 June 2009.
109“Consolidating Kosovo’s European Future: Tracing Next Steps”, Presentation at the London School of
Economics, 13 May 2009, pp. 6-7 (available on the ICO website: http://www.ico-kos.org/d/
LSE_final.pdf).
110Remarks by the ICR at the Institute for Historical Justice and Reconciliation, The Hague, 26 May 2009,
p. 6 (available on the ICO website: http://www.ico-kos.org/d/090526 Remarks IHJR(1).pdf).
27 PART II
HISTORY AND CONTEXT CHAPTER III
HISTORY AND CONTEXT
3.01. This chapter responds to some specific points made by Serbia in its Written
Statement 111 concerning the historical bac kground and context against which the
Declaration of Independence of Kosovo is to be seen. Serbia’s pres entation of history is
selective and inaccurate on many points, large and small. The present chapter only covers
some of these inaccuracies, focusing on the constitutional position of Kosovo as a federal
unit in the period 1974 to 1989, and the forcible removal of that status in 1989, as well as
Serbia’s distorted view of the atrocities and acts of oppression co mmitted against Kosovo
112
Albanians in the period 1989-1999 .
3.02. The general historical background is im portant for an unde rstanding of the
special circumstances of Kosovo. Further, certa in aspects of the history could be relevant
in the event that the Court were to find it necessary to consider whether the people of
113
Kosovo had a right to self-determination under international law . However, the detailed
history is not directly relevant to the ques tion before the Court, which is limited to
whether the Declaration of Independence of 17 February 2008 cont ravened any rule of
114
international law .
3.03. This chapter is divided into five sections. The first responds to some assertions
by Serbia concerning the period up to 1945 ( Section I). Then Serbia’s arguments that
Kosovo was not a federal unit of the SFRY are dealt with ( Section II), as are Serbia’s
assertions about the removal of that status in 1989 (Section III). Response is made next to
Serbia’s account of the period of persecuti on in the 1980s and 1990s, culminating in the
111
Of those States that have submitted Written Statements to the Court arguing against the legality of the
Declaration of Independence of 17 February 2008, it is principally Serbia which has made detailed
arguments on historical matters. See also Cyprus, paras. 28-40.
11Kosovo’s account of the relevant history is contained in Chapters III, IV, and V of its first Written
Contribution. For a detailed account of th e history of Kosovo, see N. Malcolm, Kosovo: A Short History
(1998).
113See paras. 4.31-4.52 below.
114
See paras. 1.18-1.21 above.
31atrocities of 1998-1999 ( Section IV). A final section deals with the position of Kosovo
Serbs during the period June 1999 to February 2008 (Section V).
I. The Period before 1945
3.04. Serbia has suggested that Serbs historic ally were the predominant inhabitants
115
of Kosovo since the fourteenth and fifteenth centuries . This is incorrect.
3.05. Serbia gives a misleading and inaccurate account of the demographic history of
116
Kosovo . The claim that the first evidence of a “noticeable Albanian population”
appeared “around the seventeenth century” is false: there are many references to an
Albanian population in this territory in medieval records. A highly inaccurate and
speculative estimate by an Austrian soldier in 1871 is quoted by Serbia because it claimed
that there was a majority of Serbs in Kosovo; but no mention is made of the much more
detailed Austrian study published in 1899 wh ich carefully analysed the Ottoman census
statistics and found that the ratio of Muslims (who were mostly Albanian) to non-Muslims
117
(who were mostly Serb) in Kosovo was 72:28 .
3.06. Over the course of history, the territory that now forms the Republic of Kosovo
has at times been part of other units, most notably the Ottoman Empire. Over time,
Kosovo has been occupied, annexed and exchan ged between various powers, including by
Serbia. In short, Serbia has no special histor ical claim to the territo ry that now forms the
Republic of Kosovo.
3.07. In any case, these questions of histor ical demography are of limited relevance
to the question of Kosovo’s Declaration of Independence on 17 February 2008. At most,
two facts (neither of which has been seriously contested by Serbia) might be considered to
be of some relevance: that a majority of the population at the time of the Serbian conquest
of Kosovo in 1912 consisted of Albanians, who had no wish to come under Serbian rule;
115
Serbia, para. 112.
116Ibid., paras. 112-118.
117
On all the demographic issues here, see N. Malcolm, Kosovo: A Short History (1998), passim.
32and that Kosovo was subsequently treated by the government in Belgrade as a colonial
territory, with what was officially described as a “colonisation” programme.
3.08. Serbia refers to Kosovo’s “integration into Serbia” in 1913 and adds that:
“the constitutional provisions and laws of Serbia were gradually introduced to the
territory and the guarantees of local self -government were not applied until after
118
World War I, i.e. 1919” . This misrepresents both the factual situation and the legal
position. In fact, Kosovo was forcibly o ccupied by Serbia in 1912/1913 prior to the
119
creation of the Kingdom of Serbs, Croats and Slovenes in 1918 .
3.09. The suggestion that the inhabitants of Kosovo gradually came to enjoy the
normal protection of the law in the period be tween the Serbian conqu est in 1912 and the
Serbian loss of control of the territory during World War I (in 1915) is false. The territory
120
was governed primarily on the basi s of Serbian royal “decree-laws” . Throughout this
period, the Albanian population of Kosovo suffered gross abuses of human rights at the
hands of the Serbian authorities. A detailed report by the Austrian Consul in January 1914
recorded that not one of the Serbians’ prom ises of equal treatment for the Albanians
had been kept 121.
122
3.10. The territory of Kosovo was not legally “integrated” into Serbia in 1913 .
Kosovo was administered as an occupied territor y. It only began to be integrated into a
constitutional and legal system some time after the formation of the Kingdom of Serbs,
Croats and Slovenes (later called the Kingdom of Yugo slavia) in 1918. Whatever
“guarantees of local self-government” were ev entually “applied”, they were Yugoslav and
not Serbian ones 123.
118
Serbia, para. 138.
119Kosovo, paras. 3.05-3.06.
120
N. Malcolm, Kosovo: A Short History (1998), p. 257.
121Ibid., p. 258.
12Under Article 4 of the 1903 Serbian Constitution, the consent of a “Grand National Assembly” (a
constitutional assembly, specially convened) was required for this; yet no such Assembly was convened.
See N. Malcolm, Kosovo: A Short History (1998), pp. 264-266.
123
In fact, power in the local admini stration was then held almost exclusively by Slavs, not by members of
the local Albanian majority population.
33 3.11. Thus, contrary to the impression given by Serbia 124, Kosovo was not part of
Serbia at the time of the formation of the Yugoslav State. Legally, it was a component of a
Yugoslav entity before it became a component of a Serbian one.
3.12. Serbia refers to a 1943 declaration in support of certain legal propositions
about the status of Kosovo 125. That declaration, however , was not a constitutional
document, but merely a statement of policy by the Communist leadership at a particular
moment in late November 1943. One month la ter, a conference of Kosovo representatives
(Bujan, 31 December 1943 – 2 January 1944) issued another declaration, which stated:
“the only way freedom can be achieved is if all peoples, incl uding the Albanians,
have the possibility of deciding on thei r own destiny, with the right to self-
determination up to and including secession” 126.
3.13. Serbia’s account of the establishment of the present-day territorial unit of
127
Kosovo by the Presidency of the National Assembly of Serbia in 1945 omits the essential
information that Serbia was given the power to determine these matters on the basis of a
128
decision (an ostensibly volunt ary and democratic decision ) by the “Regional People’s
Council of Kosovo” to join a “federal Serb ia”. That decision was, officially, the
constitutional basis of Kosovo’s participation in the Serbian Republic.
II. Kosovo was a Federal Unit of the SFRY
3.14. The constitutional position of Kosovo within the SFRY may be relevant to the
legal arguments in at least two respects: (1 ) whether the declarations of independence
by the republics of the SFRY (Slovenia, Croa tia, Bosnia and Herzegovina, Macedonia) in
the 1990s are to be regarded as similar in nature to Kosovo’s Declaration of Independence
of 17 February 2008 (so that the failure to regard the former as violations of international
law would be relevant to whether Kosovo ’s Declaration of Independence was in
124Serbia, para. 138.
125Ibid., paras. 144-146.
126
N. Malcolm, Kosovo: A Short History (1998), p. 308.
127Serbia, para. 147.
128
See however Kosovo, paras. 3.09-3.10.
34 129
conformity with international law) ; and (2) whether the people of Kosovo were entitled
130
to the right of self-determination .
3.15. Serbia repeatedly asserts that Kosovo was not a federal unit of Yugoslavia .
131
Kosovo addressed this issue in its first Written Contribution . The following specific
points are made in reply to Serbia’s dist orted picture of Kosovo’s position within the
Federation.
3.16. Serbia states that upon the formation of a federal Yugoslavia in 1945, Kosovo
was not regarded as a constituent component of the federation 132. This is not correct. In
fact, at the meeting of the Anti-Fascist Council of National Libe ration of Yugoslavia
(AVNOJ) held in August 1945 – the constituen t body of the federal Yugoslavia – Kosovo
133
was represented by its own delegates independently of Serbia .
3.17. Serbia asserts that Kosovo was not a federal unit under the 1974 SFRY
Constitution – the constitution in force before the dissolution of the SFRY. This too is
incorrect. Kosovo had numerous powers, dutie s and rights, independ ent of Serbia, and
directly guaranteed by the 1974 SFRY Constitution. In fact, Serbia itself admits that
Kosovo was “ruled almost exclusively by [its ] own institutions” and that if the Kosovo
Constitution was contrary to the Serbian Constitution, “there was no legal mechanism in
place that would ensure the latter’s primacy” 134.
3.18. As set out in Kosovo’s first Written Contribution 135, with supporting extracts
from the ICTY judgment in the Milutinović case, the position of Kosovo under the 1974
SFRY Constitution was equivalent to that of the republics. Kosovo as a unit was
represented directly (not by Serbia) in the fe deral legislature, exec utive, and judiciary.
129See Kosovo, paras. 8.22-8.37.
130See ibid., paras. 8.38-8.41, and paras. 4.31-4.52 below.
131
Kosovo, paras. 3.17-3.22.
132Serbia, para. 146.
133Kosovo, para. 3.11.
134
Serbia, para. 190.
135Kosovo, paras. 3.17-3.22.
35Under powers granted to it by the Federal Constitution, it issued its own Constitution
directly, not receiving it from the Republic of Serbia, and had its own Constitutional Court.
Kosovo had its own legislature, executive, a nd judiciary, with competences equivalent in
almost every way to those of the republics. It had the right, which it exercised, to negotiate
and enter into agreements with foreign States . As such, Kosovo is properly regarded as
having been a federal unit of the SFRY.
3.19. To deny that it was a federal unit is to go against the simple and universally
accepted meaning of that term, as it would be applied in any federal system. A federal
system is one in which the constitution dis tinguishes two levels of government: at the
higher level, authority is exercised by a fede ral government over the entire State; at the
lower level, authority is exercised by the governments of unit territ ories; and those unit
territories are themselves represented at the higher, federal level. Kosovo was indeed such
a unit territory, both exercising governmental power over its own territory and being
represented directly at the federal level.
3.20. Serbia indicated in its Written Statemen t that Kosovo was defined as part of
Serbia under the 1974 SFRY Constitution. Yet a proper understanding of the words used
indicates that rather than Ko sovo being a mere geographical ar ea within Serbian territory,
the Constitution was actually defining the structural and constitutional relationship
between Kosovo and Serbia 13. In any case, as set out in detail in Kosovo’s first Written
Contribution 137, Kosovo had a dual status under th e SFRY Constitution – it was both a
federal unit of the SFRY and a part of Serbia.
3.21. However, to say that it was both of these things does not and should not imply
anything like a parity of impor tance between them, for two f undamental reasons. First,
Kosovo was only part of Serbia on the condition that Serbia remained a part of the federal
136The phrase “u njenom sastavu” is translated by Serbia as “[which are] its parts”. Yet in paragraph 159 of
Serbia’s Written Statement, the phrase “ u sastavu republike ” is translated as “within a republic”. This
illustrates the difficulty of translating the abstract noun “sastav”, which means “composition”,
“structure”, or “makeup”. Better translations wouldbe: “[which are] in its composition” or “… in its
structure”, and “in the composition of a republic” or “in the structure of a republic”. The implication of
these phrases is that the relation of Se rbia to the autonomous provinces wasstructural relationship;
insofar as those provinces were “parts” of Serbia they were so by virtue of their constitutional relationship
to it, and not as mere geographical areas of Serbian territory.
137
Kosovo, paras. 3.17-3.21.
36(SFRY) framework. Kosovo’s relationship wi th Serbia was defined by, and existed by
virtue of, the federal Constitution. Second, in the 1974 Constitution the status of Kosovo
as a component of Serbia was an almost notional matter, being stated there only in a few
articles of a general and theoretical nature; wh ereas the status of Kosovo as a unit of the
federal system was established by the many subs tantive articles which set out its rights,
powers and duties, both in its own territory and at the federal level.
3.22. Serbia suggests that what the Yugoslav constitutions called “nationalities”
(“narodnosti”) can be reasonably translated as “national minorities” 138. Serbia’s
translation is seriously misleadi ng, as the term “nationalities” (“ narodnosti”) was in fact
used in a very different way in Yugoslav le gal discourse – a way th at had no relation to
whether the population in question was a minority or a majority in any particular territory.
The particular Yugoslav theory (which wa s directly modeled on Soviet theory and
terminology) was that a population within Y ugoslavia was called a “nationality”, not a
“nation”, if there was a larger body of people with that ethnic or lingui stic character in
another State. Thus the Ko sovo Albanians were called a “n ationality” because of the
existence of the Albanian population in Alba nia itself, regardless of their numerical
position in Kosovo, and regardless of the relative sizes, within the Yugoslav State, of the
Albanian population and the populations of the so-called “nations”. In fact, within the
SFRY, the Kosovo Albanians were the third most populous national group, comparable in
numbers to the Bosnian Muslims and the Slovenes, and larger than the Macedonians and
the Montenegrins.
3.23. In short, the term “nationality” (“ narodnost”) cannot properly be translated as
“national minority”. The status of a “nati onality” was assigned to the Kosovo Albanians
on extraneous grounds, without the application of any reasonable or consistent criteria as to
what might constitute a “minority” in any nume rical sense. Insofar as this status was
intended to be associated with a lower leve l of constitutional or political rights, its
assignment to the Kosovo Albanians was discriminatory.
138Serbia, para. 157.
37 3.24. Serbia argues that “[d]espite their part icipation in the federal bodies and their
role in the Yugoslav federation, the autonomous provinces were not federal units” 13. This
statement vividly illustrates the untenability of Serbia’s positi on, since it must be obvious
that, as a unit that enjoyed direct participa tion in the federal bodies and played a role
equivalent to that of the other units in th e Yugoslav federation, Kosovo was a federal unit.
The only reason given by Serbia to sustain its assertion that Kosovo was not a federal unit
is the fact that there were some differences of terminology between the two general articles
140
that defined the republics and the autonomous provinces . Emphasis is placed on the fact
that a republic was defined as “based on the sovereignty of the people”. The phrase
translated here as “the sovereignty of the people” is “ suverenosti naroda”; in fact, “narod”
here means not “people” but “nation”, in th e special sense in wh ich Yugoslav theory
distinguished a “nation” from a “nationality”. However, while this definition grounds a
republic on the “sovereignty” of a “nation”, the definition of an autonomous province also
attributes “sovereign rights” (“suverena prava”) to both “nations” a nd “nationalities”, and
says that they realize or implement those sovereign rights in the autonomous province.
3.25. Such tensions or contradictions in th ese general statements show that these
very general statements had a character a nd purpose that were, to a significant extent,
rhetorical. A full understanding of Kosovo’s constitutional position under the 1974
Constitution requires a study of all the specific rights and competences attributed therein to
Kosovo, rather than from the study of these general phrases.
3.26. Serbia relies on an SFRY Constitutional Court decision of 19 February 1991 to
argue that Kosovo was not a federal unit. As explained in Kosovo’s first Written
Contribution, this is factually and legally incorrect. When considering that decision by the
Constitutional Court, it is necessary to understand that, by 1991, the Court was (and
understood itself to be) a political organ of th e State. In December 1990, the Socialist
Party of Serbia had won a sweeping victory in the elections, under its leader Slobodan
Milošević. For more than two years he had campaigned on the issue of Kosovo, stirring up
a ferment of hostility in Serbian political and intellectual circles towards the rights enjoyed
139Serbia, para. 178.
140Articles 3 and 4 of the 1974 Constitution, first pres ented as Amendment XX, paras. 3 and 4 in 1971 (see
Serbia, para. 167).
38by Kosovo under the 1974 Constitution. Thus , when the SFRY Constitutional Court was
asked to consider the proclamation made by former members of the Kosovo Assembly
in September 1990 which declared that Kosovo wa s a “Republic”, it is not surprising that
the judges adopted an essentially political approach, believing that their role was to support
the objectives of State policy. It should also be noted that even more blatant political
pressures were exerted on the members of the SFRY Presidency during 1990-1991. As
such, Serbia’s references to statements of the SFRY Presidency should likewise be
regarded with due caution 141.
3.27. Serbia asserts, on the basis of the SFRY Constitutional Court decision, that
under the SFRY Constitution the right of self-d etermination belonged exclusively to the
nations of Yugoslavia and not to the nationalities 142. This issue was addressed briefly in
Kosovo’s first Written Contribution, where it was noted that the SFRY Constitution does
143
not expressly accord a right of secession to either the republics or the provinces . If there
was no right of secession under the SFRY Constitution, then none of the republics (such as
Slovenia, Croatia, Macedonia, or Bosnia-H erzegovina) had a right under national law to
declare independence prior to the dissolution of the SFRY, and yet the international
community did not regard such declarations as internationally wrongful. Similarly, even if
Kosovo’s declaration of independence was incons istent with FRY or Serbia law, that does
not make it internationally wrongful. Alternat ively, if there was a right of secession in
the SFRY Constitution, it was shared by the equally sovereign nations and nationalities of
the SFRY, including Kosovo. It cannot therefore be said that Kosovo’s exercise of that
right through a declaration of independence is wrongful either nationally or internationally.
Moreover, that existence of such a right in the SFRY Constitution is of relevance in
considering whether the people of Kosovo have an internationally-protected right of self-
determination. Nothing in the 1974 SFRY Constitution says otherwise.
3.28. In summary, Kosovo was a federal unit of the SFRY and as such, like the
republics, was entitled to determine its own future upon the dissolution of the SFRY.
141
A clear account of the Serbian control over the SFRY, in particul ar the Presidency, and the extreme
pressure placed on its non-Serb members is found in L. Silber and A. LittThe Death of Yugoslavia
(1995).
142Serbia, para. 195.
143
Kosovo, para. 3.19, in particular fn. 141.
39 III. The Illegal Removal of Kosovo’s Autonomy in 1989
3.29. The federal protections guaranteed to Kosovo as an autonomous province
144
under the SFRY Constitution were illeg ally removed by Serbia in 1989 . This forcible
removal of Kosovo’s autonomy was effectively a denial by Serbia of Kosovo’s right to
participate in the SFRY institutions. Serbia’s remarkable assertion that the amendments
removing Kosovo’s federal rights and autonomy were “duly adopted with the consent of
the assemblies of the autonomous provinces of Kosovo and Vojvodina ”145is yet another
example of Serbia’s inability, even today, to accept that gross illegalities were committed
by the Milošević regime.
3.30. The 1989 amendments were forced through unconstitutionally, as described by
the ICTY in its Milutinović judgment 146. Far from being duly adopted with the consent of
the Kosovo Assembly, the measures were forced through in a procedurally invalid way in
circumstances of intense intimidation and with tanks being outside the Assembly building.
The BBC editor Dr. Paulin Kola has summarized the objections as follows:
“first … there was a state of emergency in place and, therefore, the conditions were
not conducive to the free exercise of the functions of members of the Assembly;
secondly, many members had been threatened with serious consequences unless they
voted in favour of the changes; thirdl y, there was no quorum in the Assembly, let
alone the two-thirds majority required to pass constitutional laws; fourthly, the votes
were never counted; and, fifthly, Belgrade de legates and even secret service agents
147
had also participated in the vote” .
The amendments “adopted” on that occasion, a nd the subsequent measures carried out on
the basis of those amendments, cannot be described as legally valid.
3.31. Serbia relies on an SFRY Constitutional Court decision of 18 January 1990 to
argue that the main amendments were legitimate. However, that decision is simply not
relevant. The Constitutional Court did not examine the circumstances in which the
144
Kosovo, paras. 3.23-3.28.
145Serbia, para. 189.
146Prosecutor v. Milan Milutinovi ć, Nikola Šainovi ć, Dragoljub Ojdani ć, Nebojša Pavkovi ć, Vladimir
Lazarević, Sreten Luki ć (IT-05-87-T), Judgement, 26 February 2009, paras.217-221 (available on the
ICTY website: http://www.icty.org/case/milutinovic/4#tjug), cited inKosovo, para. 3.27.
147
P. Kola, In Search of Greater Albania (2003), pp. 180-181.
40amendments were forced through the Kosovo A ssembly, merely assuming that they had
been correctly adopted.
3.32. In fact, in 1990 the Constitutional Cour t of Kosovo took up the issue of the
constitutionality of the 1989 amendments, fi nding that there were indeed procedural
improprieties in respect of the vote in the Kosovo Assembly on 27 March 1989. Before
the Kosovo Constitutional Court could reach a final judgment, Serbia dissolved the Court,
in yet another act of anti-Kosovo repression.
3.33. In summary, in 1989, Kosovo, a federa l unit of the SFRY with all the
associated powers and rights, had these rights forcibly and illegally removed by Serbia in
violation of the SFRY Constitution. It was these events that triggered the collapse and
ultimate dissolution of the SFRY 14.
IV. The Period from the 1989 to 1999
3.34. Throughout its Written Statement, Serbia dow nplays the atrocities and acts of
oppression that were committed against the people of Kosovo.
Systematic violations of constitutional rights
3.35. Serbia points to the rights that th e people of Kosovo purportedly had under
149
the 1990 Serbian Constitution . In fact, the guarantees a ppearing on paper in that
Constitution were in practice systematically violated during subsequent years:
– The “freedom to use his or her language and alphabet” was systematically violated.
As the United Nations Rapporteur Tadeusz Mazowiecki stated in his report of 17
November 1993:
“In 1984 identity cards, birth and marriage certificates, and ot her documents were
issued in three languages, Al banian, Serbo-Croat and Turkish; in 1990, in Albanian
and Serbo-Croat, and in 1993 only in Serbo-Cr oat. In the Prizren district court,
proceedings take place excl usively in Serbo-Croat, ev en though 95% of the people
148
For an account of this, see L. Silber and A. Little, The Death of Yugoslavia (1995).
149Serbia, para. 207.
41 being tried are Albanian. The alteration of street names in Kosovo is intended to give
a Serbian character to places with major ity-Albanian 150ulations. In Prizren,
since 1991, 90% of the place names have been changed.”
Kosovo Albanian medical workers were al so dismissed for communicating with other
Kosovo Albanians in the Albanian language.
– The right “to preserve, foster and expr ess their cultural, linguistic and other
peculiarities” was also systematically viol ated. The most importa nt Albanian cultural
bodies in Kosovo, such as the Academy of Sciences and Arts and the Institute of
Albanology in Pristina, were forcibly suppr essed, and in Prizren the Museum of the
League of Prizren, one of the most important cultural sites for Albanian history in the
region, was closed down 151.
– The right “to have information media in their own language” was also systematically
violated. In July 1990, the Kosovo Albanian staff of the State-run radio and television
service in Kosovo were dismissed (1,300 jour nalists and technician s lost their jobs)
and their Albanian-language programmes were closed down. In August 1990, the only
152
Albanian-language daily newspaper, Rilindja, was also suppressed .
153
3.36. Serbia lists in a footnote “various measures” which were adopted
between 1989 and 1990 to preven t the exodus of Serbs from Ko sovo and for the return of
those who had left. But no information is give n about the contents of those measures, nor
of their effects in practice. Similarly, only the title of the “Program for realization of
Peace, Freedom, Equality, Democracy and Prosperity of SAP Kosovo” is given at
paragraph 231. In fact, these measures were blatantly discriminatory, being designed to
benefit Serbs in Kosovo and future Serb mi grants to Kosovo, by diverting resources to
them.
3.37. Thus, for example, the “Yugoslav Program” of January 1990 retrospectively
annulled legally valid sales of real estate by Serbs to Albanians; decreed that the
development funds for Kosovo should be concen trated on projects in Serb-majority areas;
150Cited in J. Hubrecht, Kosovo: établir les faits (2001), pp. 27-28.
151
N. Malcolm, Kosovo: A Short History (1998), pp. 346 and 352.
152J. Hubrecht, Kosovo: établir les faits (2001), p. 27.
153
Serbia, para. 230.
42enjoined that all large-scale investment projects in Kosovo should include an obligation to
construct apartments for Serb and Montenegri n workers; called for measures to encourage
Kosovo Albanians to move to other parts of Yugoslavia; offered special credits to non-
Albanians to settle in Kosovo; and announced that in urban centres in Kosovo, Serbs and
Montenegrins would be given priority in the a llocation of permits to build houses, and
would also be given priority when buying or renting shops, or seeking work permits
154
or bank credits .
3.38. The “Program for realization of P eace, Freedom, Equality, Democracy and
Prosperity of SAP Kosovo” was similarly conc erned mostly with discriminatory measures
in favour of Serb inhabitant s and settlers, announcing, for example, that new factories
would be built in 30 Serb-majority villages. It also contained the provision that “[a]ll those
who have taken part in protest demonstrations will be dismissed from all managerial posts
in enterprises and institutions” 155.
3.39. Altogether, 32 laws and more than 470 sp ecial decrees of this discriminatory
kind were issued in the period 1990-1992 15.
3.40. During the period of Serbian oppre ssion in the 1990s, Kosovo Albanians
sought to develop many of the institutions (e.g. schools) that they were denied under the
law. The reference to Serbia “tolerating” various aspects of the situation should not be
taken to imply that Serbian policy was mo tivated or characterized by a spirit of
“tolerance”. Rather, the Serbian authorities made a calculation about the level of “political
friction” that would suit them. This “fric tion” included repressive actions against many
thousands of Albanians. In 1999, the Counc il for the Defense of Human Rights and
Freedoms calculated that between Marc h 1989 and December 1997 more than 10,000
Albanians in Kosovo had been victims of phys ical violence by the authorities, including
157
heavy beatings and torture .
154A. Gashi, ed., The Denial of Human and National Rights of Albanians in Kosova (1992), pp. 130-134.
155
J. Hubrecht, Kosovo: établir les faits (2001), pp. 19-20.
156H. Clark, Civil Resistance in Kosovo (2000), pp. 71-72.
157
J. Hubrecht, Kosovo: établir les faits (2001), p. 26.
43Education
3.41. Serbia’s assertion that the Serbian author ities “tolerated most of the parallel
structures” 158 must be heavily qualified. Amnest y International repor ted in 1998 that
“[t]he Serbian authorities have systematica lly harassed those involve d in the educational
process, including members of the teachers’ trade union, teachers, university lecturers,
private citizens who have made their hom es available for teaching and even pupils
themselves. Schools have been broken into and raided, teachers arrested and/or beaten and
159
lessons repeatedly interrupted.”
3.42. Serbia’s account of the issue of educa tion begins with the “boycott” following
the introduction of new curricula in August 1990 160. This approach gives a false
impression of the situation, as it fails to men tion the events of the previous year. In
August 1990, the Serbian Assembly repealed th e entire body of educ ational legislation
previously passed by the Assembly of Kosovo, in order to impose a uniform curriculum on
the whole of Serbia, with only token concessions to the Albanians, this action was a central
part of the Serbian political programme relating to Koso vo (a programme which also
involved the closure of the Mi nistry of Education in Kosovo and of the Pedagogical
Institute in July 1990). Any “boycott” of th is new program was simp ly a reaction to the
wholesale evisceration of an educational system that had been in place for years to educate
students in Kosovo. The suggestion that pr oposals submitted by the Kosovo Albanian
teachers would have been accepted by Belgrade is simply not realistic.
3.43. The statement that “Kosovo Albanian e ducators chose to resign from their
posts and to establish a parallel educational system” 161also fails to characterize correctly
the nature of these developments. Kosovo Albanian teachers would have preferred to
remain in their posts and, where possible, phys ically in their school s, teaching what had
previously been the officially approved curriculum. Yet, during the 1990-1991 school
year, schools in many Kosovo towns were closed down, sometimes forcibly, by the
authorities: in Podujevë/Podujevo, for example, police used tear gas to close down two
158Serbia, para. 265.
159
Amnesty International, Kosovo: The Evidence (1998), p. 66.
160Serbia, para. 267.
161
Serbia, para. 267.
44high schools where 4,300 Albanian ch ildren were taught by 264 teachers 162. Then, in the
period between January and May 1991, the Serbian authorities ceased to pay the Kosovo
Albanian teachers.
3.44. The claim made by Serbia that “primary and much of secondary education of
Kosovo Albanian pupils was substantially funded by the State authorities” 163is very
misleading. In May 1991, the Serbian authorities a nnounced a plan to abolish half of the
secondary schools in Kosovo (specifically, in areas where the Albanians formed a large
majority). Only 29% of Albanian children leaving primary school w ould be permitted to
go to secondary school, but the plan also specifi ed that the number of places reserved for
Serb children would be greater than the tota l number of Serb children leaving primary
school. It was also announced that for the ne xt year, the Universi ty of Pristina would
admit 1,500 Albanian students and 1,500 Serb students, even though the ratio between
these ethnic groups in the popul ation of school-leavers was r oughly 9:1, and the previous
enrolment of Albanian students had been more than 7,000 per year 164. Generally, schools
were kept “open and running” in cases where there were Serb children being taught in
them. In many cases, secondary schools that served Albanian communities were closed
down by the authorities. At the start of the 1991-1992 school year, the Serbian authorities
barred all Kosovo Albanian children from Stat e schools, both primary and secondary. In
the second term of that year, because the Yugoslav Constitution made elementary
schooling compulsory, roughly 90 % of the primary schools were re-opened to Kosovo
Albanians. However, ethnic segregation was strictly maintained, and the Kosovo Albanian
classes did not benefit from any public expenditure on teaching, books, equipment, or even
heating. Where the Kosovo Albanian children used separate classrooms (as opposed to the
same ones in different shifts), all equipment – including, in one recorded case, the window-
glass – was removed from those classrooms 165.
162
Amnesty International, Kosovo: The Evidence (1998), p. 164.
163Serbia, para. 268.
164Amnesty International, Kosovo: The Evidence (1998), pp. 124-125 and p. 172; H. Clark, Civil Resistance
in Kosovo (2000), p. 96.
165
H. Clark, Civil Resistance in Kosovo (2000), p. 97; N Malcolm,Kosovo: A Short History (1998), p. 349.
45Public health
3.45. Serbia refers to a “stable” situation in the public health system, in which “the
Kosovo Albanian community continued to use the State public hea lth system throughout
the period”, claiming that there were no “e n masse resignations of Kosovo Albanian
166
health care providers” . In support of this statement, it gives a reference to pp. 25-26 of
a report issued by the Internat ional Crisis Group in 1998. Serbia’s statement seriously
misrepresents the contents of that report, which in fact states (at p. 25 ) that “[i]n July and
August 1990, health care in Kosovo came under Serbian ‘emergency management’ which
rapidly led to large-scale sackings. In total, 1,855 Kosovar medical workers were
dismissed, of whom 403 were physicians.” It continues: “The boycott of the Serbian
health care system is almost as comprehensive as that of the educational system,” and it
notes that “[b]etween 1990 and 1993 Kosovars went to great lengths not to visit Serb
doctors, and Kosovar doctors by and large refused to work within the Serbian system
which required them to write prescriptions in Cyrillic”. The only exception it notes is that
Kosovo Albanians were willing to use th e Serbian system for consultations
with specialists167.
3.46. The statement that there were no “ en masse resignations of Kosovo Albanian
health care providers” is to be explained by the fact that there were en masse dismissals of
them instead. As another analysis of this issue puts it:
“From August 1990 onwards, more than half of the medical staff of Kosovo were
dismissed – beginning at th e Gynaecological Clinic in the Medical Faculty. As
elsewhere, any sign of disloyalty could be a reason for dismissal, including treating
demonstrators, offering humanitarian aid to strikers or dismissed workers, or writing
in Albanian… In the Medical Faculty, pol ice dragged senior doctors from their
offices. Clinic168ere shut down – 38 in Prishtina alone and many more in towns
and villages.”
166
Serbia, para. 269.
167International Crisis Group, Kosovo Spring (1998), p.25 (available at http://www.crisisgroup.org/library/
documents/report_archive).
168H. Clark, Civil Resistance in Kosovo (2000), p. 106.
46Employment
3.47. Serbia’s reference to “publicly-owned companies where Kosovo Albanians
continued to work throughout the whole period discussed in this section” 169is misleading.
Those who continued to work were minorities of the former workforces, in some cases
very small ones. To give the example of three major industrial sectors, where the
industries were all publicly owne d: 94% of all Albanian mine rs were dismissed; 90% of
170
chemical workers; and nearly 60% of metal workers .
Departure of Serbs from Kosovo
3.48. Serbia makes much of the departure of thousands of Serbs from Kosovo since
the 1960s, stating that the movement was due to mistreatment by Kosovo Albanians. In
fact, this movement was largely for economic reasons. For example, Serbia refers to a
departure of 50,000 Serbs from Kosovo in the 1970s. But in reality during this period
there were large flows of people moving from all under-developed parts of Yugoslavia to
developed or developing ones. Thanks to th e expansion of Belgrade and the industrial
development of Serbia, Serbia attracted a higher net immigration, from all parts of
Yugoslavia, than any other area. In 1981, th ere were 112,000 people living in Serbia who
had moved from Bosnia-Herzegovina , 111,000 from Croatia, and 50,000 from
Macedonia 17. Overall, the flow of Serbs from Kosovo was a normal part of this trend. An
investigation into the entir e issue of the Serb “exodus” from Kosovo by the Yugoslav
Democratic Initiative in 1990 concluded: “d emographic shifts [in Kosovo] were not the
result of an unusually large em igration of Serbs but of a surp risingly small emigration of
172
Albanians” .
3.49. There was indeed “continued Serb ian and Montenegrin emigration …
173
throughout the 1980s” , again primarily for economic reas ons. Official reports on the
reasons for emigration of the 14,921 Serbs who left Kosovo in the period 1983-7 found
169Serbia, para. 266.
170H. Clark, Civil Resistance in Kosovo (2000), p. 76.
171
N. Malcolm, Kosovo: A Short History (1998), p.330.
172S. Popović, “A Pattern of Domination”, Balkan War Report, 1993, pp. 6-7.
173
Serbia, para. 224.
47that in 95% of cases the emigrants cited econo mic or family reasons. In only eleven
174
cases (0.1%) were pressures from Albanians given as the main cause of emigration .
3.50. When charging that Kosovo Albanians were responsible for atrocities against
175
Serbs, it is noteworthy that Serbia relies entirely on very general statements . No specific
evidence of maltreatment, and no detailed anal yses of bodies of evidence (of the sort
carried out by the Yugoslav Democratic Initiative) have been put forward.
Serbian atrocities in 1998/1999
3.51. Serbia’s statement that the hostilities between March and September 1998 “led
to more than 600 civilian deaths on both sides” contrives to give an impression of
symmetry. However, it is adapted from the te xt of the Secretary-Ge neral’s report of 4
September 1998, which said: “An estimated 600 to 700 civilians have b een killed in the
176
fighting in Kosovo since March.” The great majority of these were Kosovo Albanians.
3.52. Serbia states that the KLA actions in July 1998 “provoked a fierce reaction
177
from Government forces” . The “fierce reaction” of Serbia in fact involv ed killings of
Kosovo Albanian civilians, th e destruction of Kosovo Albani an civilian homes on a large
scale, mostly by arson, and the driving out of Kosovo Albanian civilians en masse from the
178
areas where they lived .
3.53. Again, the statement that the increase in refugees and internally displaced
persons “affected both sides of the conflict ”, and that the total number was “280,000, of
which 200,000 were internally displaced persons within Kosovo, and 80,000 were located
179
in central Serbia or neighbouring countries” , is potentially misleading. By emphasizing
that “both sides” were affected, and singling out “central Serbia” (the destination preferred
by Serb refugees and some Roma), it obscures the fact that th e great majority of the IDPs
174N. Malcolm, Kosovo: A Short History (1998), p. 331.
175Serbia, paras. 221-226.
176
Dossier No 18.
177Serbia, para. 319.
178
See Kosovo, paras. 3.47-3.60.
179
Serbia, para. 322.
48and refugees were Albanians. These figures are cited from the Secr etary-General’s report
of 3 October 1998, which itself merely summarized a report by the UNHCR 180. The report
by the UNHCR, of 8 September 1998, estimated that 20,000 refugees were in Serbia,
39,628 in Montenegro, 14,000 in Albania, 5,200 in Bosnia, 2,000 in Turkey and 1,000 in
Macedonia. Since the majority of those who went to Montenegro were Albanians seeking
refuge with the ethnic Albanian population there (including 17,000 who went to the ethnic
Albanian town of Ulcinj), it is clear that the majority of the refugees who left Kosovo were
181
Albanian .
3.54. Serbia’s description of the violence in Kosovo between Spring 1998 and
March 1999 is seriously misleading. Serbia cites the Secretar y-General’s report of 30
182
January 1999 about the growth of violence in Kosovo , but fails to mention the most
serious example discussed at length in that report, the massacre at Reçak/Ra čak, where 45
Kosovo Albanian civilians were murdered. The report noted that “[m]any of the dead
appeared to have been summarily executed, shot at close range in the head and neck”, and
that “investigative and forensic efforts in th e wake of this massacre have been willfully
obstructed by the lack of c ooperation by the authorities of the Federal Republic of
183
Yugoslavia” .
3.55. Further, the phrase “unrestrained ar med conflict broke out” 184gives the
impression almost of a natural occurrence taking place after the removal of a “restraint”.
Yet the atrocities that unfolded were the re sult of a deliberate policy by armed forces,
paramilitaries and police acting under and on beha lf of the Serbian and FRY authorities.
The statement that “[t]he beginning of the NATO bombing, and intensified clashes
between Government forces and the KLA le d to massive displacement of Kosovo’s
population, including more than 800,000 refugees …” is simply wrong. The refugees were
not fleeing from the NATO bombing (which was targeted at military and other
installations, not at homes), nor were “clashe s” between Government forces and the KLA
180M. Weller, The Crisis in Kosovo, 1989-1999 (1999), p. 215.
181
Ibid., p. 269. The report gives a detailed breakdown of destinations in Montenegro, from which broad
deductions can reasonably be made about the ethnic character of the refugees.
182
Serbia, para. 345.
183S/1999/99, 30 January 1999, paras. 11-12 [Dossier No. 26].
184
Serbia, para. 351.
49the prime reason for the mass exodus from Kosovo. The Serbian authorities went to great
lengths to force people from their homes in areas where th ere was no fighting (e.g. the
capital Pristina, where Kosovo Albanian inhabitants were rounded up and expelled in large
numbers), and to force them en masse to leave Kosovo. While doing this, they confiscated
passports and identity cards, and removed number-plates from cars before they were
allowed to cross the border. This was clearl y designed to make it possible, thereafter, to
refuse them re-entry to Kosovo, on the basis that they could not prove that they were
Kosovo citizens. In other words, the Serbian authorities drove most of the Kosovo
Albanian population from their homes, and drove nearly half of them (the officially
recorded figure is 848,100) out of Kosovo, in a deliberate attempt to cause a permanent
change in the nature of the population there.
Serbia’s current attitude to the past atrocities
3.56. The attitude displayed by Serbia, in its Written Statement, towards the horrific
events in Kosovo from 1989 to 1999, culmina ting in the crimes against humanity, war
crimes and human rights violations comm itted on a massive scale by the Belgrade
authorities and security forces 18, is revealing. It confirms what is also clear from the
statements of the highest representatives of Serbia, that underlying attitudes among those
in power in Belgrade towards Kosovo seem not to be unduly troubled by the treatment of
the people of Kosovo during the Milošević era. Such an attitude vividly confirms why the
people of Kosovo were not willing to entert ain a final status under which Kosovo would
remain a part of Serbia.
3.57. Throughout the Written Statement, descriptions are given which reproduce and
appear to defend the Miloševi ć regime’s own version of events. Thus the constitutional
amendments of 1989, coercively and illegally imposed, are described as ‘duly adopted’;
the facts about the po litical persecution of Kosovo Albanians are denied; human rights
guarantees are cited with no acknowledgement of the fact that they were systematically
violated; the situation in edu cation, public health and employme nt is misrepresented, with
an attempt both to minimise the number of dismissals and to suggest that the Kosovo
Albanians were themselves responsible for the loss of their jobs; the departures of Serbs
185Kosovo, paras. 3.23-3.60.
50are misrepresented, in ways that echo the propaganda of the Miloševi ć regime at the time;
the armed conflict of 1998-1999, and the sufferi ng it caused, are characterized with false
suggestions of symmetry; the wo rst atrocities of the Miloševi ć regime are passed over in
silence; and an attempt is made to blame the mass expulsion in 1999 on the NATO
bombing, as was done by the Milošević regime at the time.
3.58. There is in Serbia’s Written Statement, no real comprehension of the past. On
the contrary, the underlying theme is that, since the autumn of 2000, there has been a
“new” Serbia; that this new Serbia has nothing to do with the past; and that Serbia’s
sovereignty over its province of ‘Kosovo and Me tohija’ cannot be put in doubt as a result
of past events. Yet from their approach it seems clear that, like their predecessors, the
present authorities in Belgrade view Kosovo essentially as territory, not as people that have
overwhelmingly rejected rule from Belgrade because of the constant denial of their right of
self-determination and massive human rights violations.
V. The Position of Kosovo Serbs from June 1999 to February 2008
3.59. Serbia wrongly claims that “more than 200,000 Serbs and other non-Albanians
fled Kosovo” after 10 June 1999 18. This appears to reflect the figure of 229,600 (for
refugees from Kosovo in Serbia and Monten egro) put forward by the government of the
FRY at the time, but no evidence is supplied to justify this figure. Taken as such, this
figure would imply the flight of virtually the entire Serb population of Kosovo. Since it is
well known that many thousands of Serbs re mained in Kosovo after 1999 (and remain
today), Serbia’s claim is clearly wrong.
3.60. In a study published in Ja nuary 2000, six months after the end of the war, the
Unites States Committee for Refugees and Immigrants noted:
“The Yugoslav government says that 229,600 people have been displaced from
Kosovo into Serbia-proper (199,600, as of November 26, 1999) and Montenegro
(30,000, as of January 28, 2000). This numbe r is, however, open to dispute. The
Kosovo Serb National Council claims that there are still about 100,000 Serbs living
in Kosovo. Added together, this would be a larger number than the estimated
200,000 Serbs living in Kosovo before th e war, casting obvious doubt on the
186Serbia, paras. 357 and 365.
51 accuracy of the count, or of the pre-war estimate. Further confusing the numbers
picture is the estimate that up to 50,000 Ro ma have fled Kosovo 187well, and, by
some accounts, that up to 25,000 are still living in Kosovo.”
Other estimates have placed the number of Se rbs who remained in Kosovo a little higher,
at approximately 110,000.
3.61. Serbia, against this eviden ce, continues to assert that 200,000 Kosovo Serbs
left Kosovo in 1999 188. The Foreign Minister of Kosovo explained to the Security Council
on 17 June 2009:
“the kind of game that is being played with figures is not helpful. Two hundred
thousand Kosovo Serbs, said Minister Jeremic, are still displaced. I have to repeat
yet again that accord ing to the last census – whic h was conducted by the Serbian-
imposed authority in Kosovo – the largest number of Serbs ever living in Kosovo
was 195,000. Presently in Kosovo, 135,000 Serbs live. I do not know where that
200,000 figure is found.” 189
3.62. While Serbia invokes the authority of the UNHCR for its inflated figures, it
must surely be aware that the UNHCR merely reproduced figures given to it by the Serbian
authorities. The most detailed study of this issue is th e analysis carried out by the
European Stability Initiative, an international NGO, in 2004, which presented evidence
indicating that roughly 130,000 Serbs were living in Kosovo (as compared with
the 195,000 living there in the early 1990s), and commented:
“The claim that there are 200,000 IDPs from Kosovo in Se rbia, representing almost
the entire Kosovo Serb popul ation, has become an or thodoxy, even repeated by
international officials … The only offici al figure on displacement of Serbs from
Kosovo comes from a registration exercise carried out by the Serbian government in
early 2000. The results, published in April 2000, state that there were 187,129 IDPs
from Kosovo, of whom 141,396 were Se rbs … However, the limited hard
information available from within Kosovo pain ts a very different picture. As we
have already pointed out, if one compar es the data on the number of Serbs who
remain in Kosovo with Yugoslav statistica l data from before 1999, the extent of
displacement of Serbs from Kosovo is more likely to be in the vicinity of 65,000 …
187
US Committee for Refugees and Immigrants, Reversal of Fortune: Serbia's Refugee Crisis , 1 January
2000, Refugee Reports, Vol. 21, No. 1 (available at: http://www.unhcr.org/refworld/docid/
3c58099b4.html).
188See most recently the comm ents of the Foreign Minist er of Serbia in the Secu rity Council debate on 17
June 2009 (provisional verbatim record, sixty-fourth year, 6144 meeting, S/PV.6144, pp. 6 and 24).
189
Ibid, p. 23.
52 UNHCR’s own documents repeat the results of the Serbian government registration
exercise. UNHCR, which operates on the te rritory of Serbia by invitation of the
government, has not carried out an independent investigatio n. In the fine print of
some of its documents, however, it expr esses serious doubts about the official
190
figures.”
It also cited a UNHCR document of February 2004 which said: “The sum of the estimated
number of minorities living in Kosovo, and the number of currently registered IDPs in
Serbia and Montenegro, results in a figure that is significantly higher than the minority
191
population that has ever lived in Kosovo.”
192
3.63. The comparison made by Serbia between the human and minority rights
situation in Serbia and that in Ko sovo since June 1999 is artificial , as it takes no account
of relevant features of the background to these two very different situations. Some Kosovo
Serbs have undoubtedly experience d hostility from Kosovo Alba nians. This is partly
because of the long previous history of Kosovo Albanian suffering at the hands of the
Serbian authorities; partly because of the brutal actions of Serbian forces and paramilitaries
in 1998-1999, in which some Kosovo Serbs partic ipated; and partly because of the policy
pursued by successive Belgrade governments since 1999, which has involved manipulating
the Serb minority in Kosovo in or der to block, so far as possi ble, any integration of those
Serbs into a functioning Kosovo State.
3.64. Serbia asserts that the “situation drastic ally deteriorated for Kosovo Serbs”,
193
pointing to the violence that occurred in March 2004 . However, by extracting only a
few elements from various reports, and omitting essential details that explain how this
situation arose, Serbia gives an inadequate and potentially misleading account of these
events. On 16 March 2004 three Albanian child ren drowned in the ri ver Ibar; a fourth,
who survived, claimed that they had been chased into the river by a group of local Serbs.
This claim (which later turned out to be fals e) was reported as fact in news broadcasts,
190
European Stability Initiative, “The Lausanne Principle: Multiethnicity, Territory, and the Future of
Kosovo’s Serbs”, 7 June 2004, pp. 18-19 (available at http://www.esiweb.org/pdf/
esi_document_id_53.pdf)
191UNHCR, Critical Appraisal of Response Mechanisms Operating in Kosovo for Minority Returns ,
Pristina, February 2004, p. 14.
192Serbia, para. 220.
193
Ibid., para. 375.
53leading to widespread anger in the Kosovo Albanian population. When Kosovo Albanians
gathered to demonstrate at the end of the br idge in the nearby city of Mitrovica on 17
March 2004, Serbs gathered to oppose them on the other side of the bridge; shooting broke
out, in which six Kosovo Albanians and two Kosovo Serbs were killed. After this, a series
of demonstrations and violent actions agai nst Kosovo Serbs took place in other parts of
Kosovo. Of the 19 who died, 11 were Kosovo Albanians.
3.65. Serbia presents quotations from Nexhat Daci, the then Speaker of the Kosovo
Assembly, and Hashim Thaçi, the present Prim e Minister of Kosovo, describing them as
having “publicly supported” the violence against the Serbs in March 2004. This is grossly
misleading. On 18 March 2004 Nexhat Daci wa s a signatory (with President Ibrahim
Rugova, Prime Minister Bajram Rexhepi, and others) to a joint public statement that said:
“There is no excuse for violence and it must stop immediately. Those who are
engaging in violence are betraying all the people of Kos ovo. The progress of the last
few years is in jeopardy and with it prospects for a better future for everyone. We, the
leaders of Kosovo, unite in denouncing those who practice violence.” 194
Similarly, it is highly misleadi ng to present Hashim Thaçi’s comments as an example of
“Kosovo Albanian politicians [who] publicly su pported the violence”. On 20 March Mr.
Thaçi issued a strong public statement, including the following: “those who set fire to Serb
houses and to Orthodox churches are nothing more than criminals, who cannot be
tolerated. Kosovo does not just belong to the Albanians” 195.
3.66. To summarize the position of Serbs and other non-Albanians in Kosovo
since 1999 19:
(a) Even though, since June 1999, crimes have been committed against members of
the Serb community, these have for the most part been individual a nd isolated, with the
exception of the violence in March 2004. Two important points should be noted. First, the
number of inter-ethnic crimes in Kosovo has drastically dropped over the ten years
194
Human Rights Watch, Failure to Protect: Anti-minority Violence in Kosovo, March 2004 , (report issued
25 July 2004), fn. 171.
195Ibid., fn. 174.
196Serbia, paras. 365-387.
54since 1999. In particular, the crimes that happened duri ng the past two years (even
between different communities) were ordinary crimes that mostly related to personal
problems between individuals, not crimes of an inter-ethnic nature. Second, the
197
Government of Kosovo has consiste ntly condemned enter-ethnic crime , and has put in
place measures to ensure that all persons in Kosovo can live in freedom and without fear.
These measures are supported by the strong pr otections set out in the Constitution of the
Republic of Kosovo, which came into force in June 2008.
(b) The acts of violence committed against Serbs during these years have been the
acts of individuals; they have not been orga nized by the Kosovo authorities, and have not
formed part of a State policy. This strongly contrasts with the maltreatment of the Kosovo
Albanians in the previous decade, 1989-1999, when the State policy of Serbia and the FRY
was discriminatory, and violen ce and other forms of maltreat ment were systematically
applied by the organs of the State.
(c) While the Government of Serbia comp lains that the Serbs in Kosovo are not
enabled to lead normal lives, Serbia is system atically working to prevent their integration
into the legal structures, political structures, public services, etc., of Kosovo, by instituting
boycotts, creating and funding parallel structures, and putting pressure (including threats of
the withdrawal of pension payments) on those who might otherwise be willing to integrate
with the structures of the Kosovo. This policy not only has a negative effect on the
integration of the Serbs; it also contributes to distrust or even hostility on the part of
ordinary Kosovo Albanians, who are thereby led to regard their Serb neighbours as
instruments of a hostile Serbian policy. Despite direct and indirect pressure from Serbia,
more and more Kosovo Serbs continue to cooperate and participate with the Kosovo
institutions.
197As recently as 23 March 2009, the Foreign Minister of Kosovo said in the Security Council “I will start
by once again condemning, on behalf of the Republic of Kosovo, the events of 17 March 2004. I invite
the Council’s attention to the statement made by the Government of the Republic of Kosovo on 17 March
this year.” (Security Council, provisional verbatim record, sixty-fourth yearmeeting, S/PV.6079,
p. 24).
55 PART III
THE LAW CHAPTER IV
THE DECLARATION OF INDEPENDENCE DID NOT CONTRAVENE ANY
APPLICABLE RULE OF GENERAL INTERNATIONAL LAW
4.01. In its Written Statement, Serbia ar gues that recognizing the newly created
situation on the ground would constitute a violation of general international law by
198
recognizing States . It asserts that “were the international community to accept as
proposed the UDI by the provisional instituti ons of self-government of Kosovo a radical
re-orientation of international law would in effect be proposed whic h would significantly
199
undermine the principle of the stability of boundaries” and that “the obligation upon all
States is not simply to avoid trespassing across international borders, but to acknowledge
200
and positively protect the territorial composition of other States” .
4.02. This, however, is not the issue in the present proceedings. As underlined in
201 202
Chapter I above , and as Serbia itself has recognized , the only question before the
Court is the conformity with internationa l law of the Declaration of Independence
of 17 February 2008. The Court is not called upon to pronounce on the legality or the
consequences of recognitions of the Republic of Kosovo as a State. The Court is only
called upon to pronounce on the question of whet her the Declaration of Independence was
contrary to any rule of international law.
4.03. The fundamental point is that international law does not address the legality of
203
declarations of independence . While such declarations may well violate the internal law
of a State, as a matter of international law th e issuance of a declaration of independence is
merely an element in the factual process of th e creation of a State. International law only
198See also Argentina, para. 112; Romania, para. 109; Venezuela, para. 5.
199
Serbia, para. 427.
200Ibid., para. 424.
201See paras. 1.18-1.21 above.
202
Serbia, para. 19.
203Kosovo, para. 8.07-8.37; Austria, paras. 22 and 24; Germany, p. 27; United Kingdom, paras. 5.2-5.7.
59 204
takes account of the existence of States as subjects of the international legal order . The
205
creation of a State is a ma tter of fact, not of law . As Professor Malcolm Shaw rightly
underlined, “[t]he process of s ecession is probably best dea lt with in international law
within the framework of a process of cl aim, effective control and international
recognition” 206.
4.04. The absence of rules of internationa l law concerning declarations of
independence has been stressed by most of the States that have submitted written
statements. Nevertheless, other States have advocated that, for va rious reasons, general
international law precludes Kosovo’s declarat ion of independence. In particular, two
reasons have been addressed in depth by severa l States, which require further response in
this Chapter. First, the principle of sovere ignty and territorial inte grity does not preclude
the issuance of a declaration of i ndependence, as argued by some States 20, whether
considered generally or in the context of the preambular reference in Resolution 1244
(Section I). Second, though the right of self-determination need not be addressed when
answering the question now before the Court, that right certainly is available to the people
of Kosovo given the circumstances that preceded the issuance of Kosovo’s Declaration of
Independence (Section II).
I. The Principle of “Sovereignty and Territorial Integrity” under General
International Law did not Preclude the Issuance of the Declaration of Independence
4.05. The principle of sovereignty and territori al integrity is widely recognized in
numerous international instruments, especi ally Article 2, paragraph 4, of the United
208
Nations Charter, and in the jurisprudence of the Court . Kosovo does not dispute the
204 ème
A. Pellet, “Le droit international à l’aube du XXI siècle”, 1 Bancaja Euromediterranean Courses of
International Law 55 (1997). See also P. Daillier and A. Pellet, Droit international public (Nguyen Quoc
Dinh) (7 ed., 2002), p. 407.
205
G. Abi-Saab, “Conclusion”, inM. G. Kohen, Secession: International Law Perspectives(2006), p. 470.
206International Law (6 ed., 2008), p. 523.
207Argentina, paras.121-122; Azerbaijan, para.27; Brazil, p.2; Cyprus, paras. 88-89; Romania, para.109;
Russian Federation, para. 76; Serbia, paras. 498-524; Spain, para. 55; Venezuela, para. 4.
208
Corfu Channel (United Kingdom of Great Britain and Northern Ireland v. Albania) , Merits, Judgment,
I.CJ. Reports 1949, p. 35; Military and Paramilitary Activ ities in and against Nicaragua (Nicaragua v.
United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 111, para. 213. Se also ibid., p. 128,
paras. 251 and 252
60importance of the principle; indeed, the principle was accepted as part of Kosovo’s
international obligations in the Declaration of Independence itself:
“With independence comes the duty of respons ible membership in the international
community. We accept fully this duty and shal l abide by the principles of the United
Nations Charter, the Helsinki Final Act, other acts of the Organization on Security and
Cooperation in Europe, and the internationa l legal obligations and principles of
international comity that mark the relations among states. Kosovo shall have its
international borders as set forth in Anne x VIII of the Ahtisaari Plan, and shall fully
respect the sovereignty and territorial integrity of all our neighbors. Kosovo shall also
refrain from the th209t or use of force in any manner inconsistent with the purposes of
the United Nations.”
A. T HE PRINCIPLE OF SOVEREIGNTY AND TERRITORIAL INTEGRITY
ISA DDRESSED EXCLUSIVELY TO S TATES AND IS NOT CONCERNED WITH
THE SSUANCE OF D ECLARATIONS OF INDEPENDENCE
4.06. The authors of the Declaration of Independence in no way violated the
principle of sovereignty and territorial integrity, as recognized in contemporary
international law. That principle is designed and shaped as a protection of the territory of a
State against other States, in particular agains t outside interference by the threat or use of
force. The principle simply does not apply to situations that occur only within States and
does not, in particular, prevent the authors of a declaration of independence from issuing
such a declaration. By definition, at the time when they issue the declaration such authors
do not act on behalf of a Stat e but of a people. Nor does th e issuance of a declaration of
independence per se involve a threat or use of force in international relations prohibited by
Article 2, paragraph 4, of the Charter. Hencethe principle of sovere ignty and territorial
integrity cannot operate to preclude declarations of independence being issued on behalf of
peoples.
4.07. Article 2, paragraph 4, of the United Nati ons Charter embodies this State-to-
State character of the principle of sovereignty and territorial integrity:
209Kosovo, Annex 1.
61 “All Members shall refrain in their international relations from the threat or use of
force against the territorial integrity or poli tical independence of a ny state, or in any
other manner inconsistent with the Purposes of the United Nations.” 210
It is clear from its wording that the princi ple in Article 2, para graph 4, of the Charter
prohibits only the threat or use of force by a St ate in its international relations, i.e. towards
the territory or political inde pendence of another State. Article 2, paragraph 4, which
reflects the customary international law principle of the prohibition of the use of force and
the territorial integrity of States 211, consequently has no application to the actions of the
authors of the Declaration of Independence on 17 February 2008.
4.08. The list of regional instruments identified by Serbia 212adds nothing to the
argument. Serbia points out in its Written Stat ement that this “summary of some of the
regional treaties embedding the principle of territorial integrity is sufficient to demonstrate
the extent to which this principle forms the bedrock of international relations across the
international community, covering all ma jor regions, cultures and civilizations” 213.
However, it does not establish that these inst ruments prohibit the issu ance of declarations
of independence. As is clear from their text, all of these instruments only concern State-to-
State relations, and are confined to reaffirming the principle as set forth in the United
Nations Charter and customary international law. For example, Principle IV of the
Declaration on Principles Guiding Relations be tween Participating St ates contained in
the 1975 Helsinki Final Act makes clear that
“The participating State214 will respect the territorial integrity of each of the
participating States.”
4.09. Some States attempt, in their Written Statements, to apply the principle of
sovereignty and territorial integrity to the au thors of the Declaratio n of Independence by
arguing that the principle “imposes an erga omnes obligation with regard to its
210Emphasis added.
211
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) ,
Merits, Judgment, I.C.J. Reports 1986, pp. 99-101, paras. 188-190.
212Serbia, paras. 477-491.
213Ibid., para. 491.
214
Dossier No. 217 (emphasis added).
62 215
observance” . However, this reliance on erga omnes does not establish that the principle
binds non-States. As the Court explained in its Barcelona Traction judgment:
“In particular, an essential distinction should be drawn be tween the obligations of a
State towards the international community as a whole, and thos e arising vis-à-vis
another State in the field of diplomatic protection. By their very nature the former are
the concern of al1 States. In view of th e importance of the rights involved, al1 States
can be he216to have a legal interest in their protection; they are obligations erga
omnes.”
The Court was clearly only referring to obliga tions owed by States to States. Moreover,
the qualification of an obligation as erga omnes does not broaden the circle of those bound
by the obligation, but only those to whom the obligation is owed.
4.10. Even Serbia initially seems to accept that the principle of sovereignty and
territorial integrity is limited to State-to-State relations 217; but it tries by a long
enumeration of international instruments, especially General Assembly and Security
Council 218resolutions, to demonstrate that it “is not so limited” 21. However, this
“demonstration” is unpersuasive, in part because most of these instruments are not
themselves legally binding upon States (let alone upon non-States) and in part because,
even if they reflect customary international law, by their terms they do not support Serbia’s
conclusions. For example, the paragraph of General Assembly resolution 1514 (XV)
219
of 14 December 1960, cited by Serbia , is simply not relevant to the present question; it
concerns the particular situation of decoloni zation and is speaking to the right of a people
to the integrity of their national territory as against external influences. Moreover, while
resolution 1514 (XV) may perhaps be read as broadening the beneficiaries of the principle
of territorial integrity so as to include not just the State but the people of the State, it says
nothing about a duty of such people – even of peoples subject to alien subjugation – to
respect the principle.
215Romania, para. 80.
216
Barcelona Traction, Light and Power Company, Limited, Judgment, I.C.J. Reports 1970, p. 32, para. 33.
217Serbia, para. 431.
218See paras. 4.21-4.29 below.
219
Serbia, para. 431-432.
63 4.11. All other examples listed by Serbia 220 are equally unpersuasive in establishing
that the authors of the D eclaration of Independence were bound by the principle of
sovereignty and territorial integrity under international law.
– General Assembly resolution 2625 (XXV) of 24 October 1970 embodies, like
Article 2, paragraph 4, of the Charter, only a State-to-State obligation to respect the
territorial integrity of a State. The part icular provision cited by Serbia 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” (emphasis added).
– General Assembly resolution 41/128 of 4 December 1986 (Declaration on the Right to
Development) contains a State-to-State obligation concerning sovereignty and
territorial integrity. It provides, in its Article 5, that “ States shall take resolute steps to
eliminate (…) aggression, foreign interf erence and threats against national
sovereignty, national unity and territorial integrity …” (emphasis added).
– The Guiding Principles on Humanitarian Assistance annexed to General Assembly
resolution 48/192 of 19 December 1991 do not a ddress the issue of declarations of
independence, but instead the very diffe rent question of “strengthening of the
coordination of emergency humanitarian a ssistance of the United Nations system”.
The citation by Serbia concerns the need fo r consent of the affected country to the
provision of humanitarian assistance from outside the State.
– General Assembly resolution 52/112 “on the use of mercenaries as a means of
violating human rights and impeding the exer cise of the rights of peoples to self-
determination” 221recalls Article 2, paragraph 4, of the Charter, without purporting to
modify or broaden it in any way.
– The Millennium Declaration and the World Summit Outcome simply reaffirm the
principle enshrined under Article 2, paragraph 4, of the United Nations Charter, and do
not purport to modify or broaden it in any way.
220Serbia, para. 433-436. It should be noted that many of the General Assembly resolutions cited by Serbia
were adopted over negative votes.
22Adopted by 113 votes to 18, with 41 abstentions (General Assembly, Offici al Records, fifty-second
session, 70 plenary meeting, 12 December 1997, A/52/PV.70, pp. 10-11).
64– Article 46 (1) of the United Nations Declar ation on the Rights of Indigenous Peoples
of 7 September 2007 also does not help Serbia 222. It states that
“Nothing in this Decl aration may be interpreted as implying for any State, people,
group or person any right to engage in any act ivity or to perform any act contrary to
the Charter of the United Nations or cons trued 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”.
By its terms, this Declaration is simply st ating that nothing with in it implies a right
under international law for peoples or person s to take action to dismember or impair
the territorial integrity or political unity of a State. The Declaration – which of course
itself is not legally binding, and whic h was adopted by vote in the General
223
Assembly – expresses no view on whether su ch a right already exists in
international law and certainly does not articulate a prohibition on the conduct of
peoples or persons. Indeed, it leaves international law in the same position as it was
prior to the issuance of the Declaration.
Consequently, the instruments relied upon by Serbia do not dem onstrate that the principle
of sovereignty and territorial integrity extends beyond inter-State relations. Indeed, for the
most part they confirm that it does not.
4.12. The correlative principle of stability of international borders, like the basic
principle of sovereignty and territorial in tegrity, only applies as against forcible
modification by other States. It does not prot ect a State against dissolution, but constitutes
a useful means, under international law, to limit the breakup of a State to its own territory,
without modifications of borde rs of neighbouring States. As the Badinter Arbitration
Commission underlined in its Opinion No. 3:
“All external frontiers must be respected in line with the principles stated in the United
Nations Charter, in the Declaration on Prin ciples of Internati onal Law concerning
Friendly Relations and Cooperation among Stat es in accordance with the Charter of
the United Nations (General Assembly Re solution 2625 (XXV)) and in the Helsinki
222General Assembly resolution 61/295, 13 September 2007. See Serbia, para. 437.
22General Assembly, Official R ecords, sixty-first session, 1plenary meeting, 13 September 2007,
A/61/PV.107, p. 19.
65 Final Act, a principle which also underlies Article 11 of the Vi224a Convention of 23
August 1978 on the Succession of States in Respect of Treaties.”
This does not imply that the external frontiers of the SFRY had to remain the external
frontiers of the FRY. Rather the principle of stability of borders is directed at maintaining
intact the border between, for example, Kos ovo and Albania, as it existed before the
independence of Kosovo. Furthermore, wher eas a State can complain to another State
about the violation of its external frontiers, it cannot do so, under international law, against
its own citizens. As long as no other State is injured, international law does not preclude
the redistribution of the external borders between the preexisti ng State and the newly
created State. Even if the principle of stability of international boarders were binding upon
the authors of the Declaration of Independence, which is not the case, it is clear that this
principle has not been infringed in any way. Kosovo respects faithfully the international
225
frontiers with its neighbours as recognized in the Declaration of Independence itself
4.13. In summary, the principle of sovereignty and territorial integrity as enshrined in
general international law does not address a declaration of i ndependence like that issued
on 17 February 2008. Rather, the principle protects States against the coercive action and
interference of other States . It does not preclude the i ssuance of a declaration of
independence. This has been made clear by States in their Written Statements226.
B. T HE PREAMBULAR REFERENCE IN R ESOLUTION 1244(1999) TO “S OVEREIGNTY AND
TERRITORIAL INTEGRITY ”DID NOT P ROHIBIT THE D ECLARATION OF INDEPENDENCE
4.14. The preambular reference in Security Council resolution 1244 (1999)
to the principle of sovereignty and territori al integrity of Serbia did not change
the State-to-State character of the principle, nor did it prev ent the democratically elected
224European Journal of International Law, vol. 3, 1992, p. 185.
225See para. 4.05 above.
226
Austria, para.37; Estonia, p.4; France, paras.2.6-2.8; Ireland, para.18; Switzerland, para. 55; United
Kingdom, paras. 5.8-5.11; United States of America, p. 69.
66representatives of the people of Kosovo from issuing the Declaration of Independence
227
on 17 February 2008 .
1. The Text of the Clause
4.15. In order to sustain the proposition th at resolution 1244 (1999) prohibited the
Declaration of Independence of 17 February 2008, Serbia and some other States rely
heavily upon a single clause in the preamble of the resolution 228, where the Security
Council says it is:
“Reaffirming the commitment of all Member States to the sovereignty and territorial
integrity of the Federal Repub lic of Yugoslavia and the othe r States of the region, as
set out in the Helsinki Final Act and annex 2 …” 229
230
This preambular paragraph, obviously, is not part of the operative part of the resolution .
As such, it is rather extraordinary for Serbia and others to regard this clause, standing
alone, as a critical factor for whether the people of Kosovo could pursue independence,
especially in light of the events and negotia tions that unfolded in the period preceding the
231
adoption of resolution 1244 (1999) .
4.16. Leaving aside its presence in the preamble, the language of the clause says
nothing about a declaration of independence, nor is it formulated in terms of a prohibition
of any kind 232. Indeed, by its terms the clause does not purport to establish a new legal
obligation; it is “reaffirming” a pre-exis ting commitment of United Nations Member
States 233. That commitment relates not to the “sovereignty and territorial integrity” of the
FRY as a general matter; rather, the commitment is “as set out in the Helsinki Final Act
227
For the discussion of the operative text of resolutio n 1244 (1999) as it relates to the question before the
Court, see Chapter V below.
228
Serbia, paras. 776-780 and paras. 928-940; Cyprus, para. 92; Spain, pp. 24-25; Russian Federation, para.
42 and paras. 54-58.
229Dossier No. 34.
230France, para. 2.21; United Kingdom, para. 6.12(1) (“It was a considerandum, not a guarantee.”)
231
See paras. 5.05-5.18 below.
232See Kosovo, paras. 9.29-9.36.
233See Czech Republic, p. 9 (“the preambular part of UNSCR 1244 does not create any new obligations
under international law for the Member States or the” PISG); Denmark, pp. 10-11 (“the reference was
concerned with the commitment of UN Member States, as opposed to the people of Kosovo …”).
67 234
and annex 2” of the resolution. That a nnex relates solely to the interim period , and
hence this clause is only reaffirming a co mmitment of Member States for the interim
235
period prior to resolution of Kosovo’s fi nal status (as some States concede ). As for the
Helsinki Final Act, the relevant principles in that instrument in part reveal a concern with
236
the prevention of forcible actio n by one State against another , but also with the
promotion of human rights and democracy in Eu rope. As such, this commitment is best
understood as focused on the interim period (and therefore not of relevance to decisions on
the final status of Kosovo) and as cognizant of the importance of balancing during that
period values of territorial integrity and human rights.
4.17. Moreover, even if – contrary to its term s – this preambular clause were viewed
as an open-ended commitment in 1999 to FRY “sovereignty and territorial integrity”, that
commitment must be understood as simply re flecting the view of Member States that
coercive force by States to alter FRY territory was not acceptable, since that is the meaning
237
ascribed to the principle of sovereignty and territorial integrity . Had the Security
Council intended to link the aspirations of the Kosovo people in some fashion to the
concept of territorial integrity, one would exp ect language to that effect in the preamble,
238
and yet none exists . As such, the commitment e xpressed in the preamble of
resolution 1244 (1999) has no application to a peaceable declaration of independence by
the representatives of the people of Kosovo.
234See Kosovo, para. 9.30; Austria, para. 23 (“If there were an obligation to respect the territorial integrity of
the FRY it would, first, apply only for a limited period of time, namely the interim period, and second,
apply only to member states of the UN.”); France, paras. 2.28 and 2.32 (“Les mêmes annexes ne disaient
absolument rien en revanche du statut définitif du territoire.”); Germany, p. 38 (“all references to
Yugoslavia’s territorial integrity occur in the context of the interim framework, and not in that of any
final settlement”); Poland Submission, para. 7.2 (“that reference concerns solely the provisional phase of
the UN administration in Kosovo”); Ireland, para. 24 (the “annexes confirm only that, pending a final
settlement, an ‘interim political framework’ shall afford substantial self-governance for Kosovo and taken
into account the territorial integrity othe Federal Republic of Yugoslavia”); Norway, para. 16 (“the
wording of inter alia Annex 2 of resolution 1244 concerns only the interim period of international
administration and not the final status, which was left open.”)
235See, e.g., Romania, para. 46 (“the objective of UNSC Resolution 1244 is not to find a long-term solution
to the Kosovo situation but to provide for [a] short-term and medium-term solution to the crisis following
the principles contained in annexes 1 and 2 to the Resolution.”).
236
See para. 4.08 above.
237
See paras. 4.06-4.13 above.
238For example, in the context of the interim period envisaged by the Rambouillet Interim Agreement,
Article 1(2) expressly stated that “national communities … shall not use their additional rights to
endanger … the sovereignty and territorial integrity of the Federal Republic of Yugoslavia …” No such
language was used in the preamble of resolution 1244 (1999).
68 4.18. Finally, even if, by some extraordinary alchemy, this preambular clause were
interpreted as a broad political commitme nt in 1999 to unchanging FRY territorial
boundaries, that commitment cannot be regard ed as still viable in 2008. Any such
commitment in 1999 to the territory and borde rs comprising the FRY at that time was a
commitment that saw Kosovo as part of a tripar tite federal relationship within the FRY, in
which political power could be bala nced among the Federal authorities 239. When the
Parliament of Montenegro declared independence on 3 June 2006 and Montenegro left the
State Union, it altered more than the geograp hic territory of the federal State and its
international borders; it remove d the last vestiges of Federa l structure, thereby radically
altering the premises of any such commitment. Serbia itself acknowledged that this was an
issue when, in 2002, it included in the Constitut ional Charter of the State Union of Serbia
and Montenegro a provision st ating that “[s]hould Montenegro break away from the state
union of Serbia and Montenegro, the internat ional instruments pertaining to the Federal
Republic of Yugoslavia, particularly UN SC Resolution 1244, would concern and apply in
their entirety to Serbia as a successor” 240. Serbia and Montenegro properly concluded that
any preambular “commitment to unchanging FRY boundaries” could not possibly continue
automatically after Montenegro broke awa y. Yet Serbia and Montenegro could not
unilaterally decide that any such commit ment would now “concern and apply” to a
radically different State, for those two states had no ability to alter the commitment of UN
Member States (or of the Security Council) 241. In short, even if this clause is given the
extraordinary interpretation of committing Member States to unchanging FRY territorial
borders as of 1999, it simply cannot be assu med that the same commitment continued
242
after 2006 .
239Kosovo, paras. 9.32-9.33. Concern with this balancing may be seen even in the interim agreement
developed at Rambouillet, where the proposed In terim Constitution envisaged certain powers being
accorded to the FRY, certain power s being accorded to Serbia, andcertain powers being accorded to
Kosovo. Such carefully negotiated divisions of authority would have no place in a state in which FRY
authority no longer exists. See Rambouillet Accords, Chapter 1, Article 1.
240Constitutional Charter of the State Union of Serbia and Montenegro, Article 60.
241
That the Republic of Serbia continues the legal personality of the FRY does not change this conclusion.
While Serbia may be viewed as having retained the in ternational rights and obligations of the Serbia and
Montenegro, which in turn retained the rights and obligations of the FRY, this does not mean that any
commitment of other States expressed in 1999 with respect to the FRY automatically remained the same
after the fragmentation of what had been the FRY.
242
United States, pp. 74-78.
69 2. Statements Made when the Clause was Adopted
4.19. Serbia and some other States attempt to look past the actual language of the
preamble to find support for their position in th e statements made at the Security Council
243
meeting when the resolution was adopted . Yet none of the statements made by members
of the Security Council at the meeting indica ted that the representa tives of Kosovo were
precluded from declaring independence. Furt her, none of the statements made at the
meeting indicated that Kosovo could not ultimat ely emerge as an independent State. On
the contrary, certain members strongly signale d that the aspirations of the people of
Kosovo were central to a final status settlement. The representative of Malaysia noted:
“With regard to the responsib ility of the intern ational civil presence, my delegation
underscores the paramount importance of the proposed interim administration for
Kosovo, which should pave the way for an early settlement of the future status of
Kosovo, taking fully into account the political framework proposed in the Rambouillet
accords. The root cause of the crisis is clear. The Secretary-General himself stated, in
his address to the High-Level Meeting on the cr isis in the Balkans, held in Geneva on
14 May 1999:
‘Before there was a humanitarian catastrophe in Kosovo, there was a human rights
catastrophe. Before there was a human rights catastrophe, there was a political
catastrophe: the deliber ate, systematic and violent disenfranchisement of the
Kosovar Albanian people.’
This clearly demonstrates the need to en sure one very fundamental element in the
peace settlement: the fulfilment of the legitimate aspirations and expectations of the
Kosovar Albanian people, the majority i nhabitants of Kosovo. Any departure from
this fundamental point will risk unravel ling the entire exercise which is being
painstakingly put together.” 244
4.20. Certainly some members of the Council highlighted in their statements concern
for FRY sovereignty and territorial integr ity. At the same time, other members
acknowledged that the Council needed to balan ce concerns for sovereignty and territorial
integrity with concern for human rights and threats to the peace. For example, the
representative of Slovenia stated:
“Success in this specific case would give an example of the balance between the
considerations of State sovereignty on th e one hand and humanity and international
243See, e.g., Serbia, paras. 691-66; Spain, pp. 26-27.
2Security Council, provisional verb atim record, fifty-fourth year, 4011meeting, 10 June 1999,
S/PV.4011, p. 16 [Dossier No. 33].
70 order on the other. It is true that international organizations must be careful in all their
efforts and that they must respect internat ional law, including the principle of the
sovereignty of States. However, it is at least equally clear that State sovereignty is not
absolute and that it cannot be used as a tool of denial of humanity resulting in threats
to peace. While the situation in Kosovo last year and early this year escalated to a
serious threat to peace, there is now a genui ne opportunity to reverse the situation and
to create the balance necessary for polit ical stability and durable peace for the
future.” 245
Finally, Serbia itself did not regard the pr eambular language to resolution 1244 as
precluding the independence of Kosovo. In fact, Serbia stated the exact opposite, by
asking Security Council members before they voted to oppose the resolution (including its
preamble) so as to “stand up in defence … of the territorial integrity and sovereignty of the
246
Federal Republic of Yugoslavia …” . Serbia entirely underst ood that this particular
preambular reference was no guarantee agains t the possibility of the issuance of a
declaration of independence, no more than the general inte rnational law principle of
sovereignty and territorial integrity.
3. Comparison with Clauses in other Resolutions
4.21. Serbia 247, along with Iran 248 and Argentina 249, point to other Security Council
resolutions concerning internal conflicts that re affirm the territorial integrity of the State
concerned. Even if the Security Council could legally impose an obligation on non-States,
which is far from established 25, these examples do not indicate that the principle of
sovereignty and territorial integrity applies to the issuing of declarations of independence.
245 th
Security Council, provisional verb atim record, fifty-fourth year, 4011 meeting, 10 June 1999,
S/PV.4011, p.11 [Dossier No. 33]; see also remarks by Netherlands, ibid., p. 12 (“The Charter, to be
sure, is much more specific on respect for sovereignty than on respect for human rights, but since the day
it was drafted the world has witnessed a gradual shift in that balance, making respect for human rights
more mandatory and respect for sovereignty less abso lute. Today, we regard it as a generally accepted
rule of international law that no sovereign State has the right to terrorize its own citizens.”); remarks by
Canada, ibid., pp.13-14 (“We wholeheartedly agree with the Ambassador of the Netherlands that the
tensions in the United Nations Charter between state sovereignty on the one hand and the promotion of
international peace and security on the other must be more readily reconciled when internal conflicts
become internationalized, as in the case of Kosovo.”)
246 th
Security Council, provisional verb atim record, fifty-fourth year, 4011 meeting, 10 June 1999,
S/PV.4011, p. 6 [Dossier No. 33].
247Serbia, paras. 440-475.
248Iran, para. 3.2.
249
Argentina, paras. 77-80.
250See paras. 5.67-5.74 below.
71All the references made by Serbia relate to internal armed conflicts: Bosnia and
Herzegovina, Croatia, Democratic Republic of Congo, Georgia, Somalia, and Sudan. The
situation of the peaceful accession to independence by the people of Kosovo can hardly be
compared to those examples.
4.22. Furthermore, Serbia fails to note that in most of those cases, the sovereignty
and territorial integrity of the State was enda ngered primarily by extern al assistance. To
comment only on one case that Serbia brings up: the crisis in Bosnia and Herzegovina was
not primarily internal in character, as Serbia is well aware. The calls made by the Security
Council relating to the territorial integrity of the new State were essentially directed to the
Federal Republic of Yugoslavia. As the Court recalled in 2007:
“It is true that there is much evidence of di rect or indirect participation by the official
army of the FRY, along with the Bosnian Se rb armed forces, in military operations in
Bosnia and Herzegovina in the years prior to the events at Srebrenica. That
participation was repeatedly condemned by the political organs of the United Nations,
which demanded that the FRY put an end to it (see, for example, Securi251Council
resolutions 752 (1992), 757 (1992), 762 (1992), 819 (1993), 838 (1993)).”
4.23. Moreover, if the clauses on “sovereignty and territorial integrity” in Security
Council resolutions relating to Bosnia and Herzegovina are relevant to the permissibility of
Kosovo’s Declaration of Independence, it must be noted that the same clause has been
included in resolutions on Bosnia and Herzegovina even after Kosovo’s Declaration of
Independence with the support of several St ates that have recognized Kosovo. For
example, in resolution 1845 ( 2008), nine members of the Security Counc il that had
recognized Kosovo – Belgium, Burkina Faso, Costa Rica, Croatia, France, Italy, Panama,
United Kingdom, and United States – had no di fficulty supporting language reaffirming
the Security Council’s commitment “to the polit ical settlement of the conflicts in the
former Yugoslavia, preserving the sovereignty a nd territorial integrity of all States there
within their internationally recognized borders”. In other words, those States clearly do
not regard the commitment expressed in those resolutions as precluding a Declaration of
Independence by the representatives of the people of Kosovo.
251Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Merits, Judgment, para. 386.
72 4.24. Finally, if comparisons are to be ma de with Security Council resolutions
unrelated to Kosovo, then the most releva nt comparison is between the preamble of
resolution 1244 (1999) and the preamble or opera tive part of Security Council resolutions
that expressly address whether particular entities should remain a part of an existing State,
especially those relating to the Balkans. In 1992, the Security Council adopted a resolution
in the context of Bosnia and Herzegovina in which it directly and expressly addressed the
possibility of the issuance of a declaration of independe nce that would promote an
independent State of Republika Srpska. Secu rity Council resolution 787 (1992) stated in
the operative part:
“Strongly reaffirms its call on all parties and others concerned to respect strictly the
territorial integrity of Bosnia and Her zegovina, and affirms that any entities
unilaterally d252ared or arrangements impos ed in contravention thereof will not be
accepted …” .
By contrast, in resolution 1244 (1999), th e Council made no statement regarding a
unilateral declaration by Kosovo Albanian authorities or entities.
4.25. Similarly, the Security Council included in the preamble of its resolution 1037
(1996) on Croatia a clause that directly and expressly addr essed the status of certain
territories in that country:
“Reaffirming once again its commitment to the independence, sovereignty and
territorial integrity of the Republic of Croatia and emphasizing in this regard that the
territories of Eastern Sla253ia, Baranja and Western Sirmium are integral parts of the
Republic of Croatia …” .
By contrast, in resolution 1244 (1999), the Council made no statement indicating that
Kosovo is an integral part of the FRY or of Serbia.
4.26. Moreover, the Security Council included in Securi ty Council resolutions
contemporaneous with resolution 1244 (1999) language that clearly indicated a position on
secession. In the same month of June 1999, the Council adopted a resolution on Cyprus in
which it stated in the operative part:
252
Security Council resolution 787 (1992), para. 3.
253Security Council resolution 1037 (1996), preamble. In its Written Statement, Serbia quotes the first half
of this provision on “territorial integrity” but redacts the second half on “integral part” (Serbia, para. 793).
73 “Reaffirms its position that a Cyprus settlement must be based on a State of Cyprus
with a single sovereignty and international personality and a single citizenship, with its
independence and territorial integrity safeguarded, and comprising two politically
equal communities as described in the rele vant Security Council resolutions, in a bi-
communal and bi-zonal federation, and that such a settlement must exclude union in
whole or in part with any other country or any form of partition or secession” 254.
Yet in resolution 1244 (1999), no statements of any kind were present indicating that a
political settlement on Kosovo must be base d on a FRY with a single sovereignty and
international personality or that the political settlement must exclude secession.
4.27. In two resolutions concerning the situation unfolding in Georgia in the first half
of 1999, the Council called for “settlemen t on the political st atus of Abkhazia within the
State of Georgia ” 25. Through its President, the Counc il had also previously issued
statements relating to Georgia reflecting its view on a declaration of independence:
“The Security Council has rece ived with deep concern a report from the Secretariat
concerning a statement of 26 November 1994 attributed to the Supreme Soviet of
Abkhazia, Republic of Georgia. It believes that any unilateral act purported to
establish a sovereign Abkhaz entity would violate the commitments assumed by the
Abkhaz side to seek a comprehens ive political settlement of the Georgian-Abkhaz
conflict.”256
4.28. Such resolutions and statements, of c ourse, were well known to the Council at
the time of the adoption of resolution 1244 ( 1999) in June 1999, as was the aspiration of
the people of Kosovo for independence. Yet in neither the preamble nor the operative part
of resolution 1244 (1999) did the Security Council repeat, mutatis mutandis, such language
so as to reject prospectivel y a declaration of independenc e by Kosovo’s leaders or to
declare that Kosovo was and must remain an integral part of the FRY. Nor did the
Council’s President issue any statement to that effect. As stressed by the United Kingdom,
“when the Security Council inte nds to create an explicit guara ntee or prohibition, or an
254
Security Council resolution 1251 (1991), 29 June 1999, para. 11.
255Security Council resolution 1225 (1999), 28 January 1999, para. 3; Security Council resolution 1255
(1999), 30 July 1999, para. 5 (emphasis added).
256S/PRST/1994/78 (emphasis added).
74obligation of non-recognition consequent on such a guarantee, it knows how to do so and it
does so explicitly, not in a preamble” 257.
4.29. Moreover, even in the context of these other resolutions and statements, the
Security Council did not proclaim a d eclaration of independence unlawful under
international law; rather, it simply indicated that the Council would not accept such an act
258
or that the act would violat e political commitments undertaken by the relevant entity .
Had the Council intended to declare unaccepta ble a Kosovo declaration of independence,
or the issuance of such a declaration without FRY, Serbian, or Security Council consent,
the Council was fully capable of saying as mu ch, rather than masking its position in a
preamble through reliance on a general reference to “sovereignty and territorial integrity”.
Yet it did not, leading inescapably to a conclusion that the Council had no such intention.
4.30. In conclusion, the international law prin ciple of sovereignty and territorial
integrity speaks to the obligation of States to refrain from the use of coercion against other
States. As such, the authors of the Declaration of Independence, who were not a State, and
who did not use force when issuing their De claration, cannot be regarded as having
violated the principle of sovereignty and terr itorial integrity under international law. The
reference to the “sovereignty and territorial integrity” contained in the preamble of
Security Council resolution 1244 (1999) did not change the legal position and did not
prevent the issuance of a declaration of independence.
II. The People of Kosovo were Entitled to Exercise their Right of Self-
Determination by Declaring Independence through their Elected Representatives
4.31. Kosovo explained in its first Written Contribution 259that, given the specific
question put to the Court by the General Assemb ly, it is not necessary to show that the
authors of the Declaration of Independence of 17 February 2008 were entitled, under some
rule of international law, to issue the Declaration. In order to assess the conformity of the
Declaration with international law, it is su fficient to find that there is no rule of
257
United Kingdom, para. 6.12 (4).
258Kosovo, para. 8.18. See also paras. 5.67-5.70 below.
259Ibid., paras. 8.38-8.41.
75international law prohibiting or preventing the authors from adopting the Declaration. It is
not necessary to demonstrate that there are ru les of international law entitling the authors
of the Declaration of Independence to issue the Declaration.
4.32. Many States, nevertheless, commented, sometimes at length, on the question of
whether the people of Kosovo had a right of self-determination. Kosovo therefore
considers it necessary to deal briefly with this issue, while still main taining that this point
need not be reached by the Court in order to respond to the question contained in General
Assembly resolution 63/3.
4.33. The present section, after discussing some general aspects concerning the right
of self-determination under international law (A ), demonstrates that the people of Kosovo
constitute a self-determination unit and were entitled to declare independence through their
democratically elected representatives gi ven the massive human rights’ violations
perpetrated and the systematical denial of the right of self-det ermination by the FRY/
Serbia (B). As stated in Kosovo’s first Wr itten Contribution, there can be no doubt that in
260
the circumstances, the people of Kosovo were entitled to the right of self-determination
A. THE RIGHT OF SELF -DETERMINATION UNDER INTERNATIONAL LAW
4.34. The existence of the right of self-determination as such is not disputed by those
States that have submitted written statements. Indeed, the right is firmly established in
contemporary international law as expressed, inter alia, in the United Nations Charter, in
relevant General Assembly resolutions, and in the Court’s case law:
“The principle of self-determination of peoples has been recognized by the United
Nations Charter and in the juri sprudence of the Court (see Legal Consequences for
States of the Continued Presence of South Africa in Namibia (South West Africa)
notwithstanding Security C ouncil Resolution 276 (1970) , Advisory Opinion , I.C.J.
Reports 1971 , pp. 31-32, paras. 52-53; Western Sahara , Advisory Opinion , I.C.J.
260Kosovo, para. 8.40.
76 Reports 1975 , pp.31-33, paras.54-59); it is one of the essential principles of
contemporary international law.” 261
4.35. In addition, it is also expressly recognized by Article1 of the 1966 Covenants
that “all peoples have the right of self-determination” 262. Consequently, this right does not
apply exclusively in the context of decolonization 263. While Serbia seems to be in broad
agreement with this proposition 264, it nevertheless discusses ex tensively the right to self-
determination of dependent or colonial peoples 265, as those terms are understood in the
practice of the General Assembly. Since th e right is not limited to situations of
decolonization, it is en tirely irrelevant that Kosovo di d not constitute a mandate or
trusteeship territory or was not listed as dependent terr itory by the United Nations
General Assembly 266.
4.36. In the most authoritative expression of the right of self-determination, a people
are entitled “[b]y virtue of that right [to] freely determine their poli tical status and [to]
267
freely pursue their economic, so cial and cultural development” . The right to “freely
determine their political status” is sufficien tly broad to include a multitude of choices,
including but not limited to independence, de pending on the particular circumstances of
each case 268. In this regard, Kosovo is well aware of the fact that, within a sovereign State,
261East Timor , Judgment, I.C.J. Reports 1995 , p.102, para.29. See also Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory , Advisory Opinion, I.C.J. Reports 2004 ,
pp. 182-183, para. 118.
262International Covenant on Civil and Political Rights, New York, 16 December 1966, Article 1 (1), United
Nations, Treaty Series, vol. 999, p. 171 (emphasis added); International Covenant on Economic, Social
and Cultural Rights, New York, 16 December 1966, Article 1 (1), United Nations, Treaty Series, vol. 993,
p. 3. See also World Conference on Human Rights, Vienna Declaration and Programme of Action,
25 June 1993 (A/CONF.157/23), Article I.2.
263
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory , Separate
Opinion of Judge Higgins , I.C.J. Reports 2004 , p.214, para.29 (referring to the “substantial body of
doctrine and practice on ‘self-determination beyond colonialism’.”)
264
Serbia, para. 534.
265Ibid., paras. 535-539. Serbia also acknowledged the existence of a right of self determination in the case
of foreign occupation, especially with regard to the case of Palestine ( ibid., paras.540-543). See also
China, passim.
266See Serbia, para. 571.
267International Covenant on Civil and Political Rights, New York, 16 December 1966, Article 1 (1), United
Nations, Treaty Series, vol. 999, p. 171; International Covenant on Economic, Social and Cultural Rights,
New York, 16 December 1966, Article 1 (1), United Nations, Treaty Series, vol. 993, p. 3.
268Western Sahara, Advisory Opinion, I.C.J. Reports 1975 , p. 33, para. 58. See also General Assembly
resolution 2625 (XXV), Declaration on Principles of International Law concerning Friendly Relations
and Co-operation among States in accordance with the Charter of the United Nations, 24 October 1970.
77the exercise of the right to self-determina tion by a self-determination unit usually does not
include the creation of a new State. Serbia and others have sought at length to demonstrate
that, in such a case, the principle of sovere ignty and territorial integrity necessarily has
precedence over the will of the people and th at, consequently, the choice of the people
concerned is limited in the sense that they are precluded from opting for independence.
This ignores the fact that the principle of s overeignty and territorial integrity speaks to
269
coercion in inter-State relations, not to the conduct of persons within a State .
4.37. Moreover, even if one were to recon ceptualize the principle of territorial
integrity as calling for main taining the integrity of bounda ries or frontiers (which
international law normally addresses by reference to the principle of uti possidetis), there is
no basis in law or practice for concluding that such a principle always supersedes the
exercise of a right of self-determination. Serb ia and other States cite no authority to the
effect that this new form of “territorial in tegrity” would operate in a manner that entirely
neglects the people living in th e territory and their expressed desires. Moreover, Serbia
fails to recognize that under contemporary inte rnational law there is no hierarchy between
any such revised principle of territorial integrity and the right of self-determination; neither
excludes the other. As this Court noted in the Frontier Dispute case, when considering the
relationship between the uti possidetis principle and the right of self-determination in
situations of State formation and the polic y choice adopted by African States, neither
concept preempts the other:
“At first sight this principle [of uti possidetis] conflicts outright with another one, the
right of peoples to self-determination. In fact, however, the maintenance of the
territorial status quo in Africa is often seen as the wisest course, to preserve what has
been achieved by peoples who have struggled for their independence, and to avoid a
disruption which would deprive the continent of the gains achieved by much sacrifice.
The essential requirement of stability in orde r to survive, to deve lop and gradually to
consolidate their independence in all fields, has induced Af rican States judiciously to
consent to the respecting of colonial frontiers, and to ta ke account of it in the
270
interpretation of the principle of self-determination of peoples.”
4.38. Thus, even if the principle of territorial integrity were reconceptualized so as to
be a principle that generally disfavors changes in international boundaries (which is it not),
269
See paras. 4.06-4.13 above.
270Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, I.C.J. Reports 1986, p. 567, para. 25.
78in any given situation, that pr inciple would need to be wei ghed against the right of self-
determination, without there being any predetermined outcome as to which prevails.
4.39. Despite Serbia’s efforts to demonstrate otherwise, this is also the clear meaning
of the “ safeguard clause” contained in General Assembly resolution 2625 (XXV), stating:
“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 inde pendent States conducting themselves in
compliance with the principle of equal righ ts and self-determination of peoples as
described above and thus possessed of a government representing the whole people
belonging to the territory without distinction as to race, creed or colour.”
271
This formula, which is essentially repeated in later instruments , may not expressly
authorize or encourage secession as a means of self-determination, but it certainly does not
exclude it. Indeed, the clause recognizes th at independence may be an appropriate choice
in the case where a State does not conduct itself in compliance with the principle of equal
rights and self-determination of peoples as desc ribed. In those partic ular circumstances,
the State concerned not only forfeits the be nefit of the safeguard clause of General
Assembly resolution 2625 (XXV), but also the ri ght to invoke its sovereignty against the
will of a people deprived of its right of self-determination. As Professor Tomuschat put it:
“Within a context where the individual citizen is more regarded as a simple object,
international law must allow the member s of a community suffering structural
discrimination – amounting to grave prejudice affecting th eir lives – to strive for
secession as a measure 272last resort afte r all other methods employed to bring about
change have failed.”
4.40. If, as the Canadian Supreme Court stated in its well-known Quebec Opinion,
the right of self-determination “generates, at best, a right to external self-determination [i.e.
independence] in situations (…) where a de finable group is denied meaningful access to
271See World Conference on Human Rights, Vienna Declaration and Programme of Action, 25 June 1993
(A/CONF.157/23), Article I.2; United Nations Declaration on the Rights of Indigenous Peoples, General
Assembly resolution 61/295, 13 September 2007, Article 46 (1). See also para. 4.11 above.
272
Ch. Tomuschat, “Secession and self -determination”, in M. G. Kohenth Secession: International Law
Perspectives (2006), at p.41; see also M. Shaw, International Law (6 ed., 2008), p. 523 (stating that
there is an “arguable exception to this rule that the right to external self-determination applies only to
colonial situations … where the group is questionis subject to ‘extreme and unremitting persecution’
coupled with the ‘lack of any reasonable prosp ect for reasonable challenge’”). See also Finland,
paras. 8–9.
79 273
government to pursue their political, economic, social and cultural development” , then,
the people of Kosovo were entitled to issu e a declaration of independence in accordance
with this right. As shown in Section B be low, given the decade of deliberate exclusion
from governing institutions and violation of basic human rights, culminating,
in 1998-1999, in massive crimes against humanity and war crimes 274, the people of Kosovo
had the right to chose independence 27. The people of Kosovo chos e to exercise this right
through their democratically elected repres entatives, by adopting the Declaration
of Independence.
4.41. Serbia repeatedly276argues that recognizing such a right effectively “punishes”
the State concerned and that the law of intern ational responsibility does not allow such a
sanction. Yet it cannot be in the interest of the international community to offer only
compensation or repeated exhortations to an existing government that it should “do better”
when there have been massive violations of human rights and denial to a people
of any ability to participate in the determin ation of their destiny. International law
offers meaningful protective measures fo r such a people, and not only corrective
instruments once the evil is done . Modern internat ional law is also the law of people
– a droit des gens – protecting the people, human beings, especially in the case where the
State fails to do so. In those circumstan ces, the malfeasant State has to bear the
consequences of its actions, not as a punishme nt, but as a necessary concomitant to the
protection of core human rights.
B. T HE PEOPLE OF KOSOVO WERE ENTITLED TO EXERCISE THEIR R IGHT OF SELF -
D ETERMINATION BY DECLARING INDEPENDENCE
4.42. The people of Kosovo are a people enj oying the right of self-determination,
contrary to assertions denying th em such a right. For its part , Serbia denies the right of
277
self-determination to th e “territory of Kosovo” . However, the right of self-
determination is not a right held by territor y, but a right held by hum an beings living in a
273Secession of Quebec, [1998] 2 S.C.R. 217 (Can.), para. 138, reprinted in I.L.M., vol. 37, 1998, p. 1340
274
See paras. 3.29-3.58 above.
275See paras. 4.42-4.52 below.
276See e.g. Serbia, paras. 627-628. See also Slovakia, para. 28.
277
Serbia , para. 570.
80given territory, an important factor that Serbia ignored throughout the 1990s and still
ignores today. For decades, Serbia’s policy towards Kosovo has been to regard it simply
as land (its territory) without regard to the rights and interests of the inhabitants.
4.43. The Canadian Supreme Court stated:
“It is clear that ‘a people ’ may include only a portion of the population of an existing
state. The right to self-determination has developed largely as a human right, and is
generally used in documents that simultane ously contain referen ces to ‘nation’ and
‘state’. The juxtaposition of these terms is indicative that the reference to ‘people’
does not necessarily mean th e entirety of a state’s popul ation. To restrict the
definition of the term to the population of existing states would render the granting of
a right of self-determination largely duplicative, given the parallel emphasis within the
majority of the source documents on the need to protect the territorial integrity of
existing states, and would frustrate its remedial purpose.” 278
4.44. The existence of a people of Kosovo has been largely recognized by the
international community, despite the fact that Kosovo formed part of the FRY/Serbia. And
rightly so: as Professor Cr awford points out, “a further possible category of self-
determination units” is constituted by
“entities part of a metropolitan State but that have been governed in such a way as to
make them in effect non-self- governing territories – in other terms, territories subject
to carenc279e souveraineté. Possible examples are Bangladesh, Kosovo and perhaps
Eritrea” .
4.45. The people of Kosovo are much more than just a minority within the
FRY/Serbia, but a self-determination unit as a “non-self-governing territory” in the sense
280
referred to by Professor Crawford . Furthermore, the people of Kosovo are distinct and
homogeneous, being a group of which 90 perc ent are Kosovo Albanians, who speak the
Albanian language, and who mostly share a Muslim religious identity. The 2001
Constitutional Framework promulgated by the SR SG recognized that “Kosovo is an entity
under interim international admini stration which, with its people, has unique historical,
278
Secession of Quebec, [1998] 2 S.C.R. 217 (Can.), para. 124, reprinted in I.L.M., vol. 37, 1998, p. 1340.
279J. Crawford, The Creation of States in International Law (2 ed., Oxford, 2006), p.126. See also
Ireland, para. 29.
280
Prof. Crawford also explained that “[a]t the root, the question of defining ‘people’ concerns identifying
the categories of territory to which the principle of self-determination applies as a matter of right” ( ibid,
p. 126).
81 281 282
legal, cultural and lin guistic attributes” . Security Council resolution 1244 (1999) ,
283
like earlier Presid ential statements , the Rambouillet Interim Agreement and other pre-
resolution 1244 documents 284, refers to the “people of Kosovo” or the “will of the people”.
Indeed, Security Council resolution 1244 (1999) itself may be read as confirming the
existence of the right of self-determination for the people of Kos ovo: the international
administration of the territory was designed not only to exclude the FRY/Serbia from
governing in Kosovo during the interim peri od, but also, and foremost, to establish
favorable conditions for the people of Kosovo to exercise their right of self-determination,
without prejudging whether the final status settl ement would take the form of internal or
external self-determination. As Professor Tomuschat explained:
“It should be noted that re solution 1244 carefully avoids mentioning this word [i.e.
self-determination]. Nowhere does it appear in the text. Implicitly, however, it
permeates the entire texture of the resolution. Autonomy for a given human
community cannot be invented by the Security Council without any backing in general
international law. In conclusion, Securi ty Council Resolution 1244 can be deemed to
constitute the first formalized decision of the international community recognizing that
a human community within a sovere285 St ate may under specific circumstances enjoy
a right of self-determination.”
4.46. If a right to secession exists in the cas e of a people being denied the exercise
and enjoyment of the right to self-determination and subjec t of deliberate discrimination
and human rights’ violations, then the people of Kosovo were certainly entitled to exercise
that right. Being entitled to a right to se lf-determination, the people of Kosovo, given the
particular circumstances surrounding their re cent history, could declare independence
in 2008.
4.47. In its Written Statement, Serbia plays down the dramatic events of 1989-1990,
and the systematic denial of self-determination, as well the large scal e violations of basic
281UNMIK Regulation No. 2001/9, 15 May 2001, Article 1.1 [Dossier No. 156] (emphasis added). See also
Albania, para. 84.
282
Dossier No. 34.
283See e.g. Statement by the Presid ent of the Security Council, S/PRST /1998/25, 24 August 1998 [Dossier
No. 14].
284See paras. 5.05-5.18 below.
285
Ch. Tomuschat, “Secession and self -determination”, in M. G. Kohen, Secession: International Law
Perspectives (2006), p. 34.
82 286
human rights to which the people of Kos ovo were subjected, in the period 1989-1999 .
It states:
“As far as Kosovo is concerned, its status as an autonomous province granted by the
1974 Constitution of the SFRY and the 1974 Constitution of Serbia, was modified in
1989. This was done through amendments to the Constitution of Serbia, in the
constitutionally prescribed procedure and with the consent of Kosovo and another
Serbian autonomous province, Vojvodina. Their status of autonomous provinces
remained under both the federal and Serbia n constitutions, but they enjoyed less
autonomous powers, particularly in the legislative realm. At no time was the Albanian
minority, either in Kosovo or elsewhere in Serbia, excluded or discriminated from the
participation in the public affairs of the State.” 287
4.48. As discussed in Chapter III this bland account of the terrible actions by Serbia
288
from 1989-1999 is entirely contradicted by the findings of international bodies . Kosovo
has already quoted extensively from the findings of the International Criminal Tribunal for
the former Yugoslavia in the Milutinović et al. judgment of 26 February 2009 28, which
clearly contradict Serbia’s assessment of the facts 290. Furthermore, numerous General
Assembly resolutions took account of the flagra nt and systematic denial of basic human
rights and discrimination ag ainst the people of Kosovo 291. There is no doubt that the
people of Kosovo were, at least since the ev ents of 1989-1990, entirely deprived of any
form of self-determination and excluded from any participation in the political processes
within the SFRY/FRY institutions. These events culminated in systematic and deliberate
large-scale violations of human rights, crimes against humanity, ethnic cleansing, and a
massive refugee and internally displaced pers ons crisis. All these events, which were
identified by the Security Council as a threat to the peace and resulted ultimately in the
intervention of the interna tional community, entitled the pe ople of Kosovo to determine
independently their political status and to de clare independence from the State responsible
for the grave humanitarian situation.
286Kosovo, paras. 3.23-3.60, and paras. 3.29-3.58 above.
287
Serbia, para. 641.
288See paras. 3.29-3.58 above, and Kosovo, paras. 3.23-3.37 and 3.47-3.60. See also Albania, paras. 86-92.
289Prosecutor v. Milan Milutinovi ć, Nikola Šainovi ć, Dragoljub Ojdani ć, Nebojša Pavkovi ć, Vladimir
Lazarević, Sreten Luki ć (IT-05-87-T), Judgement, 26 February 2009 (available on the ICTY website:
http://www.icty.org/case/milutinovic/4#tjug).
290
Kosovo, paras. 3.27 and 3.33.
291
Estonia, pp. 6-9; Ireland, para. 33 (iii); Switzerland, paras. 82-84.
83 4.49. The adoption of Security Counc il resolution 1244 (1999) and the
implementation of the United Nations admini stration in Kosovo put an end to these
traumatic events and the situation on the ground changed. Circumstances also changed
within the FRY, with the fall from power of the Milošević régime and, later, the departure
of Montenegro from the State Union. Howeve r, these circumstances did not change the
entitlement of the people of Kosovo to self -determination, contrary to the argument put
forward by Cyprus 292.
4.50. Indeed, the positive developments in Ko sovo in the period between June 1999
and February 2008 (a period of less than 9 ye ars, during which the Serbian authorities had
no presence in Kosovo) cannot be invoked to deny the people of Kosovo the right to self-
determination. As discussed in Chapter V below, resolution 1244 (1999) did not preclude
independence, but established an interim administration in orde r to enable th e people of
Kosovo to re-establish a secure environment a nd to effectively implement its right of self-
governance pending a final status settlement, of which indepe ndence was one possibility.
Rather than having the effect of ending a right of external self-determination, the interim
period was aimed at giving th e people of Kosovo the possibil ity to effectively exercise
their internationally recognized rights through the establishment of democratic institutions,
which ultimately might lead to independence if that was the will of the people of Kosovo.
4.51. Contrary to assertions made by various States, the new situation created in
Kosovo between 1999 and 2008 was not accompanied by a markedly improved situation in
the FRY/Serbia, at least in terms of Belg rade’s attitude toward Kosovo. Serbia
misleadingly claims that significant progress has been made with regard to the recognition
of human rights for Kosovo within th e new Serbian Constitution of 2006 29. The fact is
that even after 1999, the FRY a nd Serbian authorities continue d in their statements and
positions to treat Kosovo merely as a piece of territory belonging to Serbia, ignoring
entirely the aspirations a nd fears of the people actually living there. The 2006
Constitution, which in its preamble openly decl ares that “the Province of Kosovo and
Metohija is an integral part of the territory of Serbia” 294, was not even submitted for the
292Cyprus, para. 146.
293
See e.g. the very selective quotes made by Romania of the opinion of the Venice Commission on the
Serbian Constitution (Romania, para. 154).
294Serbia, Annex 59.
84approval of the people of Kosovo 295. Notwithstanding its positive assessment of the 2006
Constitution with regard to human rights, the Venice Commission sharply criticized the
absence of any constitutional guarantee for an autonomy status of Kosovo:
“With respect to substantial autonomy, an examination of the Constitution, and more
specifically of Part VII, makes it clear that this substantial autonomy of Kosovo is not
at all guaranteed at the constitutional level, as the Constitution delegates almost every
important aspect of this autonomy to the [Serbian] legislature. In Part I on
Constitutional Principles, Article 12 deals with provincial aut onomy and local self-
government. It does so in a rather ambi guous way: on the one hand, in the first
paragraph it provides that state power is limited by the right of citizens to provincial
autonomy and local self-government, yet on th e other hand it states that the right of
citizens to provincial autonomy and local self-government shall be subject to
supervision of constitutionality and legality. Hence it is clear that ordinary law can
restrict the autonomy of the Provinces.
This possibility of restricting the autonomy of the Provinces by law is confirmed by
almost every article of Part 7 of the Constitution, and more specifically by:
- Article 182, par. 2: ‘The substantial au tonomy of the Autonomous Province of
Kosovo and Methohija shall be regulated by the special law which shall be adopted in
accordance with the process envisaged for amending the Constitution.’
- Article 183, par. 4: ‘The territory of autonomous pr ovinces and the terms under
which borders between autonomous provinces may be altered shall be regulated by
the law …’
- Article 183, par. 2: ‘Aut onomous provinces shall, in accordance with the law ,
regulate matters of provincial interest in the following fields …’
- Article 183, par. 3: ‘Autonom ous provinces shall see to it that human and minority
rights are respected, in accordance with the Law.’
- Article 183, par. 5: ‘Autonomous provinces shall manage the provincial assets in the
manner stipulated by the Law.’
- Article 183, par. 6: ‘A utonomous provinces shall, in accordance with the
Constitution and the Law, have direct revenues, …’
- Article 184, par. 1 to 3: ‘An autonomous province shall have direct revenues for
financing its competences. The kind and amount of direct revenues shall be
stipulated by the Law. The Law shall specify the share of autonomous provinces in
the revenues of the Republic of Serbia.’
Hence, in contrast with what the preamble announces, the Constitution itself does not
at all guarantee substantia l autonomy to Kosovo, for it entirely depends on the
29International Crisis GroupSerbia’s New Constitution, Democracy going backward, Policy Briefing
No. 44, 8 November 2006, available on http://www.crisisgroup.org/home/index.cfm?id=4494.
85 willingness of the National Assembly of the Republic of Serbia whether self-
government will be realised or not.” 296
4.52. Against this background, it is apparent that the effective exercise of the right to
self-determination of the people of Kosovo was not secured w ithin the Republic of Serbia
under the 2006 Constitution. At the end of the long but ultimately fruitless process in
297
order to find a negotiate d solution to this problem , the people of Kosovo had no other
choice then to declare independence, as a last recourse to effectively exercise their right.
In these circumstances, the i ssuance of the Declaration of Independence can properly be
seen as the exercise by the people of Kosovo of their right to self-determination. As the
Foreign Minister of the Republic of Kosovo put it in the Security Council debate
on 17 June 2009:
“After having endured decades of unspeakab le occupation, terror and slavery, the
people of Kosovo deserve to be free and to join the community of the free and
democratic nations of the world.” 298
4.53. In conclusion, however, Kosovo reiterates that in order to assess the conformity
of the Declaration with international law, th e Court need not address the issue of whether
international law authorized or entitled Kosovo to exercise a right of self-determination.
299
As discussed in depth in Kosovo’s first Written Contribution , it is sufficient to find that
there is no rule of international law prohibiting or preventing the authors from adopting the
Declaration.
296European Commission for Democracy through Law, Opinion on the Constitution of Serbia, Venice, 17-
18 March 2007, paras. 7-8, available on http://www.venice.coe.int/docs/2007/CDL-AD(2007)004-e.pdf.
297See Kosovo, paras. 5.08-5.5.34.
298 th
Security Council, provisional verb atim record, sixty -fourth year, 6144 meeting, 17 June 2009,
S/PV.6144, p. 9.
299Kosovo, paras. 8.03-8.06.
86 CHAPTER V
THE DECLARATION OF INDEPENDENCE DID NOT CONTRAVENE
SECURITY COUNCIL RESOLUTION 1244 (1999)
5.01. Several written statements address the issue of whether th e Declaration of
Independence contravened Security Council resolution 1244 (1999). In its first Written
Contribution, Kosovo addressed in some depth the meaning of resolution 1244 (1999) and
the reasons why the Declaration ca nnot be seen as contravening it 30. In this chapter,
Kosovo will not repeat the arguments in it s first Written Contribution, but will provide
greater depth to certain specific issues raised by the statements of others.
5.02. First, the negotiating texts that preceded resolution 1244 (1999) did not prohibit
Kosovo’s representatives from declaring independence. Rather, those negotiations reveal a
movement toward resolving the Kosovo crisis through a framework that would consist of
two stages: an interim period during which Kosovo would be accorded extensive autonomy
within the FRY, to be followed by a final settlement that would not require Belgrade-
Pristina mutual agreement ( Section I). Resolution 1244 (1999) adopted this two-stage
approach through a framework that is status ne utral in nature, meani ng that it established
an interim period of autonomy to be followed by a final status settlement based principally
on the will of the Kosovo people, whatever that may be. As such, the resolution did not
predetermine Kosovo’s final status, nor prohibit Kosovo’s repr esentatives from ultimately
declaring independence (Section II).
5.03. In the immediate aftermath of reso lution 1244 (1999)’s adoption, certain
documents and statements were issued that Serbia and some other States regard as relevant
to Kosovo’s ability to declare independence. Yet such statements and documents were
reflecting attitudes as to what was appropriate at that time, prior to the commencement and
completion of the final status process. Afte r the relevant United Nations officials found
in 2007 that independence was the only vi able option, and that maintaining the status quo
would be destabilizing, a decl aration of independence was e nvisaged as the appropriate
300Kosovo, Chapter IX.
87means for reaching a final settlement based upon the will of the people, as contemplated by
resolution 1244 (1999) (Section III).
5.04. For several reasons, the Declaration of Independence cannot be regarded as an
ultra vires act of the PISG or as a contravention of the Constitutional Framework. This is
especially so since the Decl aration was never set aside or declared null by the Special
Representative of the Secretary-General in Kosovo – the United Nations official who
established the Constitutional Framework and the PISG, and who was charged with
overseeing the PISG and correcting any measures they took that were inconsistent with the
Constitutional Framework ( Section IV). Finally, the fact that the Declaration did not
contravene resolution 1244 (1999) is consis tent with the Securi ty Council’s general
practice of only imposing legal obligations upon States (Section V).
I. The Negotiating Texts that Preceded Resolution 1244 (1999) did not Prohibit
Kosovo’s Representatives from Declaring Independence
5.05. In its Written Statement, Serbia argues that the negotiations preceding
resolution 1244 (1999) demonstrate that Kosovo had no unilateral right to secede. In this
301
regard, Serbia makes reference to the negotiations that took place at Rambouillet , those
302 303
within the G-8 , the Ahtisaari-Chernomydrin negotiations , and the negotiations in the
304
context of the Military Technical Agreement . Some other States make similar
305
arguments . Serbia fails to note, however, that none of the texts emerging from these
various negotiations prohibited Kosovo from d eclaring independence. In each of these
instances, the relevant negotiators unders tood that the leaders of Kosovo sought
independence and that any text that precluded such an outcome would not be acceptable.
306
5.06. As indicated in Kosovo’s first Written Contribution , any analysis of these
pre-resolution 1244 (1999) negotiations should begin with the dr afts prepared by the U.S.
301
Serbia, paras. 781-784.
302
Ibid., paras. 667 and 686-687.
303Ibid., paras. 684-685.
304
Ibid., paras. 668-674.
305E.g., Argentina, para. 76.
306Kosovo, paras. 9.13-9.14.
88Ambassador (to Macedonia) Christopher Hill, w ho in late 1998 was tasked by the Contact
Group to engage in extensive “shuttle diplomacy” with leaders from both Belgrade and
Kosovo. From October 1998 to January 1999, in what is sometimes referred to as the “Hill
Process”, Ambassador Hill sought to establish an agreement that would stabilize the crisis
that had unfolded in Kosovo. The Hill Process was important in laying the groundwork for
two key elements of the negotiations that would follow and that would culminate in
resolution 1244 (1999). First, it became appare nt to all involved th at it would not be
possible to resolve Kosovo’s fina l status at the outset. Inst ead, the central focus of the
negotiations (and ultimately of resolution 1244 itse lf) had to be on esta blishing an interim
solution, one designed to create the immediate conditions for th e return to a peaceful and
normal life for the inhabitants of Kosovo 30. Second, while the negotiations (and
ultimately resolution 1244) briefly addressed th e process for Kosovo’s final status, they
avoided prejudging what that fi nal status would be and avoi ded giving Serbia any veto
over the resolution of that status.
5.07. Analysis of the four draft proposals of the Hill Process readily demonstrates
these elements. All of the drafts principally focused on an immediate interim solution
providing rights and protections to the people of Kosovo, while only at the end of the
drafts is there a brief, but important, referen ce to the process for resolving the final status
after the passage of three years. In the first Hill draft proposal of 1 October 1998, this took
the form of a final clause stating:
“In three years, the sides will undertak e a comprehensive assessment of the
Agreement, with the aim of improving its implementation and considering proposals
by either si308for additional steps, which will require mutual agreement for
adoption.”
307See, e.g., I. Daalder and M. O'Hanlon,Winning Ugly: NATO’s War to Save Kosovo (2000), pp. 39-40
(“The logical options for Kosovo’s future were thr ee: independence, partition or autonomy. … Hill was
tasked by the Contact Group to meet with the Belgrade and Albanian leadership to gain agreement on
what were termed ‘principles to guide discussions and negotiations’ presented by the United States to the
Contact Group meeting in Bonn. The key concept of the principles focused on the means for
implementing autonomy in Kosovo in the short term and left the issue of the area’s political future to be
decided years later. On September 2, 1998, Hill an nounced that Milosevic and Rugova had agreed to
work toward an interim plan for Kosovo and to postpo ne a final decision on Kosovo’s political status for
three to five years.”)
308
First Hill Draft Agreement for a Settlement of thCrisis in Kosovo, 1 October 1998, Article VIII(3),
reprinted in M. Weller, The Crisis in Kosovo 1989-1999 (1999), p. 359 (emphasis added).
89The second Hill draft proposal of 1 Nove mber 1998 repeated this final provision 309. The
third Hill draft proposal of 2 December 1998 re peated this provision but replaced “sides”
with “Parties” 310.
5.08. Yet because the language of “mutual ag reement” would have given Serbia a
veto over future developments, it was not acceptable to the Kosovo delegation.
Consequently, in the fourth and final Hill draf t proposal of 27 January 1999, this final
provision was altered and placed in brackets, so as to read as follows:
“In three years, there shall be a compre hensive assessment of this Agreement under
international auspices with the aim of improving its implementation and determining
whether to implement proposals by either side for additional steps, by a procedure to
be determined taking into account the Part ies’ roles in and compliance with this
Agreement.” 311
5.09. Hence, in the last version of the Hill proposals, reference to the “mutual
agreement” by “sides” or “Parties” is completely dropped. Instead, the proposed provision
moved toward a final status approach that would involve a “comprehensive assessment”
under “international auspices” by a “procedure” that would “take into account” the two
sides’ roles and compliance with the agreement. No aspect of this (o r any other) provision
precluded the possibility of Kosovo seeking independence.
5.10. Ultimately, neither Kosovo nor the FRY/Serbia accepted the final Hill
proposal: Kosovo was not sufficiently satisfied that the proposal constituted an interim
agreement, while Serbia insisted that language be added definitively establishing that
Kosovo would remain a part of Yugoslavia.
5.11. After the Yugoslav offensive in Kosovo in December 1999, and the massacre
of some forty-five Kosovo Albanians in the village of Reçak/Račak, new negotiations were
312
initiated at Rambouillet . Coming only days after the end of the Hill Process and
mediated in part by Ambassador Hill himsel f, the Rambouillet negotiations built upon the
309
Revised Hill Proposal, 1 November1998, Article XI (3), reprinted in ibid., p. 369.
310Third Hill Draft Proposal for a Settlement of thCrisis in Kosovo, 2 Decem ber 1998, Article X (3),
reprinted in ibid., p. 381.
311Final Hill Proposal, 27 January 1999, Article X (3), reprinted in ibid., p. 388 (emphasis added).
312
Kosovo, paras. 3.42-3.46.
90Hill Process. Like the proposals that emer ged from the Hill Process, the Rambouillet
Interim Agreement contains no language pr ohibiting Kosovo’s repr esentatives from
declaring independence. Instead, like the Hill Process, the Rambouillet Interim Agreement
envisaged an interim period of substant ial Kosovo autonomy followed by a final
settlement; indeed, the formal title of the Ag reement is “Interim Agreement for Peace and
Self-Government in Kosovo”.
5.12. Like the final Hill Proposal, the Rambouillet Interim Agreement abandoned the
idea of Kosovo’s final status being determin ed by “mutual agreement” between Kosovo
and Serbia. The first draft of the Rambouillet Interim Agreement of 6 February 1999 drew
upon the relevant final clause from the final Hill Proposal, stating:
“In three years, ther e shall be a comprehensive a ssessment of the Agreement under
international auspices with the aim of improving its implementation and de313mining
whether to implement proposals by either side for additional steps.”
During the course of the Rambouillet negotiati ons, however, it became apparent that some
greater content had to be given to the means by which final status would be determined. In
doing so, the negotiators did not return to the original “mutual agreement” language of the
Hill Process, but instead emphasized the need to base the final status upon “the will of the
people” of Kosovo, in conjunction with certain other factors. Specifically, Chapter 8,
Article I, paragraph 3 of the final version of the Rambouillet Interim Agreement stated:
“Three years after the entry into force of this Agreement, an international meeting
shall be convened to determine a mechanis m for a final settlement for Kosovo, on the
basis of the will of the people, opinions of relevant authorities, each Party’s efforts
regarding the implementation of this Agreement, and the Helsinki Final Act, and to
undertake a comprehensive assessment of th e implementation of th314Agreement and
to consider proposals by any Party for additional measures.”
5.13. Kosovo accepted the Rambouillet Interim Agreement 31, whereas the
FRY/Serbia did not. Instead, the FRY/Serb ia sought to revise the Rambouillet Interim
313
Interim Agreement for Peace and Self-Government in Kosovo, Initial Draft, 6 Fe bruary 1999, Article III
(3), reprinted in M. Weller, The Crisis in Kosovo 1989-1999 (1999), pp. 422-423.
314Interim Agreement for Peace and Self-Government in Kosovo, 23 February 1999, Chapter 8, Article I(3),
reproduced in S/1999/648 [Dossier No. 30].
315
Letter from Hashim Thaci, Chairman of the Pres idency of the Kosova Delegation, 15 March 1999,
reprinted in M. Weller, The Crisis in Kosovo 1989-1999 (1999), p. 480.
91Agreement to delete “interim” from its title and text, and to delete the concept of a final
status based on the “will of the people” in favor of one that required Serbia’s consent.
Specifically, FRY/Serbia proposed to change the final clause so as to read:
“After three years, the signatories shall comprehensively review this Agreement with a
view to improving its implementation and shall consider the proposals of any
signatory for additional measures, whose adoption shall require the consent of all
signatories.” 316
The negotiators at Rambouillet, including Ru ssian Ambassador Majo rski, rejected the
FRY/Serbian proposed revision, stating that it was “the unanimous view of the Contact
Group that only technical adjustments can be considered which, of course, must be
accepted as such and approved by the other delegation” 31. The FRY/Serbia’s failed
efforts to alter the Rambouillet Interim Agr eement from an “interim” to a permanent
settlement, and to require that the final status be subject to “the consent of all signatories”
(i.e. including FRY/Serbia) agai n confirms that the Rambouill et Interim Agreement in its
final form contemplated an interim period of substantial autonomy for Kosovo within the
FRY to be followed by a final status process driven principally by the “will of the people”
and with no requirement of FRY/Serbian consent.
5.14. Some States apparently now regard the Rambouillet Interim Agreement as
318
calling for a permanent integration of Kosovo in Serbia or as establishing unchangeable
borders because of its reference to the Helsinki Final Act 319. Yet the text of the Agreement
cannot sustain such interpretations. The various references to “t erritorial integrity” of the
FRY or “autonomy” of Kosovo within the FR Y must be seen in the context of an interim
period. Indeed, the ve ry title of the Interim Agreement makes clear that it is principally
addressing an interim solution, not Kosovo’s fi nal status. So too does its text. For
example, the preambular clause in the proposed Constitution (Chapter 1 of the Agreement)
emphasizes the interim nature of the provision as follows:
316
FRY Revised Draft Agreement, 15 March 1999 , Chapter 8, Article 1 (4), reprinted in ibid., pp. 489-490
(emphasis added).
317Letter from the three Negotiators to Head of Republic of Serbia Delegation, 16 March 1999, reprinted in
ibid., p. 490.
318Russian Federation, para. 55; Spain, p. 26; Romania, paras. 47-52.
319
Cyprus, para. 93.
92 “Desiring through this interim Constitution to establish institutions of democratic self-
government in Kosovo grounded in respect for the territorial integrity and sovereignty
of the Federal Republic of Yugoslavia and from this Agreement, from which the
authorities of governance set forth herein originate.” 320
The one provision in the Rambouillet Interim Agreement that did address Kosovo’s final
status – Chapter 8, Article I, paragraph 3 – sa ys nothing about either “territorial integrity”
or “autonomy” of Kosovo within the FRY; inst ead, it refers to a polit ical solution driven
321
principally by the “will of the people” of Kosovo .
5.15. Perhaps the most striking interpretati on of the meaning of the Rambouillet
Interim Agreement is the one now advanced by Serbia itself for purposes of these
322
proceedings . Serbia now maintains that the Rambouillet Interim Agreement accepted
that Kosovo would remain a part of the FRY unless Serbia otherwise consented. But in the
immediate aftermath of the Rambouillet meeting, the FRY/Serbia had a very
different view, seeing the Agreement as esse ntially endorsing secession by Kosovo.
On 24 March 1999 – just one month after completion of the text of the Rambouillet Interim
Agreement – Belgrade’s representative declared to the Security Council its view as to its
meaning. He complained that the “meetings in France were not negotiations about the
autonomy of Kosovo and Metohija” but instead an “attempt to impose a solution clearly
endorsing the separatists’ object ives”. Further, he maintain ed that the FRY “was and is
ready to find a political solution. We give it absolute priority, but we cannot agree to the
secession of Kosovo and Metohija, either immedi ately or after the in terim period of three
320
Rambouillet Accords, Chapter 1, preamble. The reference in the overall preamble of the Interim
Agreement to “the commitment of the international community to the sovereignty and territorial
integrity” of the FRY” and to the Helsinki Final Act, even if regarded as speaking beyond the interim
period, cannot be viewed as calling for a permanent integration of Kosovo in Serbia, let alone a
prohibition on a declaration of independence. As di scussed in Chapter IV, paras. 4.06-4.13, general
references of this sort to “territorial integrity” must be seen as a commitment by States not to use coercion
to alter territorial boundaries. Further, as also disc ussed in Chapter IV, paras. 4.14-4.29, with respect to
the similar commitment by Member States in the preamble to resolution 1244 (1999), a preambular clause
of this type simply cannot sustain the weight of the interpretation Serbia and some other States wish to
place upon it.
321
As Romania concedes, Rambouillet “was meant to provide an interim solution for Kosovo. The
Rambouillet Agreement itself provided in its final chapter … for the way forward in identifying the final
solution for the status of Kosovo. It is to be noted that such a solution would have taken account of the
‘will of the people’ …” (Romania, para. 52).
322
Serbia, paras. 781-784.
93years” 323. Similarly, on 26 March 1999, Belgrade reiterated this view of the Rambouillet
Interim Agreement to the Security Council, stating:
“Now Yugoslavia is faced with another u ltimatum, this time from NATO – from so-
called democratic countries. It has been offe red two alternatives: either voluntarily to
give up a part of its territory or to have it taken away by force. This is the essence of
the ‘solution’ for Kosovo and Metohija that was offered by way of an ultimatum at the
‘negotiations’ in France.” 324
5.16. These assertions were exaggerated, in that the Rambouillet Interim Agreement
did not expressly provide that Kosovo would be an independent State. Yet by Belgrade’s
own assertions, the Rambouillet Interim Agr eement cannot be interpreted in the manner
now advanced by Serbia and others. At the ti me they were drafted, the FRY/Serbia read
the Agreement as not deciding that Kosovo would remain a part of Serbia, and read the
references to “territorial integrity” and “the Helsinki Final Act” as not precluding the
emergence of an independent State of Kosovo, because those references related only to the
interim period. Rather, the provision calling for final status to be resolved after three years
based on the “will of the pe ople” was well-understood, ev en by the FRY/Serbia, as
including the possibility, indeed the likelihood, of Kosovo’s emergence as an independent
State after the interim period.
5.17. After armed conflict broke out in which the North Atlantic Treaty Organisation
(NATO) States sought to prevent Serbian crimes against humanity and other atrocities in
Kosovo, the leaders of the G-8 meeting at th e Petersberg Centre on 6 May 1999 issued a
325
statement of principles . This relatively short statement was focused on the immediate
steps necessary for ending the armed conflict: withdrawal of FRY/ Serbian forces from
Kosovo and establishment of an interim ad ministration of Kosovo by the international
community. The sole reference to “territorial integrity” refers to the interim period only:
“A political process towards the establis hment of an interim political framework
agreement providing for a substantial self-government for Kosovo, taking full account
of the Rambouillet accords and the principles of sovereignty and territorial integrity of
323See Security Council, provisional verbatim record, fifty-forth year, 3988meeting, 24 March 1999,
S/PV.3988, p. 14.
32Security Council, provisional verb atim record, fifty-forth year, 3989tmeeting, 26 March 1999,
S/PV.3989, p. 11.
325
Security Council resolution 1244 (1999), annex 1 [Dossier No. 34].
94 the Federal Republic of Yugoslavia and th e other countries of the region, and the
demilitarization of the KLA.”
By its terms, this principle is focused on the establishment of an interim political
framework agreement and in that context no tes, among other things, “principles of
sovereignty and territorial integrity”. Nothing in this principle or in the G-8 statement of
principles as a whole, sought to alter the basic scheme developed in the Rambouillet
Interim Agreement. Indeed, by expressly re ferencing the Agreement in the principle
quoted above, the statement acknowledged and adopted the basic approach of Rambouillet
that FRY/Serbia had rejected. As noted above, that approach contemplated that the interim
period would be followed by a final status process based on the will of the people of
Kosovo and not on consent by authorities in Belg rade. This statement of principles would
become Annex 1 to Security Council resolution 1244 (1999).
5.18. Former Finnish President Martti Ahtisaari, on behalf of the G-8 and the
European Union, and former Russian Prime Mi nister Viktor Chernomyrdin, on behalf of
the Russian Federation, then engaged in negotiations with FRY President Slobodan
Milošević regarding the steps necessary to end the armed conflict. This negotiation
resulted in the “Ahtisaari-Che rnomyrdin Plan”, a series of principles that the Serbian
Parliament ratified on 3 J une 1999, and that were later incorporated as Annex 2 to
resolution 1244 (1999). Like the G-8 statement of principles, the Ahtisaari-Chernomyrdin
Plan is relatively brief, and is focused on th e immediate steps necessary for withdrawal of
FRY and Serbian forces from Kosovo and an interim administration of Kosovo.
Recognizing the need for a detailed framework for gove rnance of Kosovo during the
interim period, the Ahtisaari-Chernomyrdin Plan called for:
“A political process towards the establis hment of an interim political framework
agreement providing for substantial self- government for Kosovo, taking full account
of the Rambouillet accords and the principles of sovereignty and territorial integrity of
the Federal Republic of Yugoslavia and th e other countries of the region, and the
demilitarization of UCK. Negotiations between the parties for a settlement shou326not
delay or disrupt the establishment of democratic self-governing institutions.”
Again, the sole reference to “territorial integrity” arises in the context of the interim period
and, further, by expressly referencing the Rambouillet Interim Agreement, both
326S/1999/649, Annex, p. 2, para. 8 [Dossier No. 31].
95acknowledges and adopts the basic approach at Rambouillet that the FRY/Serbia had
originally rejected, including the provision relating to the final status process.
II. Resolution 1244 (1999) Itself did not Prohibit Kosovo’s Representatives from
Declaring Independence
A. T HE O PERATIVE P ART OF RESOLUTION 1244(1999) DID NOT PROHIBIT THE
D ECLARATION OF NDEPENDENCE NOR R EQUIRE SERBIAN C ONSENT TO T
5.19. Serbia’s Written Statement and those of certain other States contain repeated
and sweeping assertions that resolution 1244 ( 1999) requires that th e final status for
Kosovo be one of autonomy within Serbia or that the final status only be resolved with the
327
consent of Belgrade . As such, they argue that th e Declaration of Independence was
unlawful because it denied a status of Ko sovo autonomy within Serbia and because the
Declaration was undertaken without Serbia’s consent.
5.20. Yet resolution 1244 (1999) contains no language either expressly or implicitly
requiring autonomy within Serbia or requiring FRY/Serbia’s consent to Kosovo’s final
status28. Indeed, had resolution 1244 (1999) intended to alter the basic premises of the
prior negotiations from the Hill Process, Ra mbouillet, the G-8 principles, or the Ahtisaari-
Chernomyrdin Plan–in other words, to retu rn to the FRY/Serbia’s preference for an
immediate resolution of Kosovo’s status as an integral part of the FRY with no future
change unless consented to by the FRY/Serbia – it would be expected that resolution 1244
(1999) would say as much. Instead, the approach taken in resolution 1244 (1999) is one of
continuity with the Rambouillet approach; one in which an interim period of autonomy of
327
See, e.g., Russian Federation, para. 57 (“the Resolution was based on the idea of Kosovo remaining an
integral part of the FRY and Serbia”); Slovakia, para. 24.
328See, e.g., Japan, p. 5 (“UNSC resolution 1244 contains no language indicating any conclusion on the
future legal status of Kosovo. Nor is there any language under which it may be understood that Kosovo’s
independence is precluded.”); France, para. 2.25 (“la résolution 1244 (1999) n’a pas exclu l’option de
l’indépendance.”); Luxembourg, para. 22 (“L’indépendance du Kosovo n’y est ni explicitement souhaitée,
ni exclue. Selon les termes et l’esprit de la résolution 1244, cette indépendance reste donc entièrement
possible.”); Norway, para. 16 (“resolution 1244 does not take a position on the question of Kosovo’s final
status”); United Kingdom, para. 6.9 (“The resolution, while stressing the need for a final settlement, is
silent on the content of this settlement, a silence that was acknowledged by representatives to the Security
Council during the debates of the resolution and in subsequent UN documents.”).
96Kosovo within Serbia would be followed by a final status process based upon the will of
329
the people of Kosovo .
5.21. The framework of resolution 1244 (1999) is neutral as to the final status of
Kosovo, though it provides important guidance on how that status ultimately is to be
determined. Most of resolution 1244 (1999) focuses on the interim period, in which
FRY/Serbian forces would be removed from Kosovo, an international civilian and military
presence in Kosovo would be established, and indigenous Kosovo institutions would be
promoted and developed so as to allow for extensive self-governance 330. To that end,
paragraph1 decided that “a political solution to the Kosovo crisis shall be based on the
general principles in annex 1 and as further el aborated in the principles and other required
elements in annex 2”. To give that political solution greater content, paragraphs 2 to 4
indicated various steps for the withdrawal of FRY/Serb forces, while paragraphs 5 to 10
elaborated upon the deployment of the international civil and military presence to Kosovo.
5.22. The several references in this part of resolution 1244 (19 99) indicating that
Kosovo would have “substantial autonomy with in the FRY” (which are highlighted by
331
Serbia and some other States ) are all in the context of th e interim period. As was the
case at Rambouillet, it was understood that during an interim period Kosovo would be
accorded extensive autonomy within the FRY, but that understanding did not prejudge the
final status once the interim period came to an end. Indeed, as Spain acknowledges, the
special regime for the interim period “does not predetermine the future status of Kosovo,
as the status of this territory is to be dete rmined in an autonomous way in accordance with
a process established for this purpose under resolution 1244 (1999)” 33.
329Any interpretation of a Security Council resolution must begin with its terms, though other factors may be
taken into account when construing those terms. See Legal Consequences for States of the Continued
Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution
276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 53, para. 114 (“In view of the nature of the powers
under Article 25, the question whether they have been in fact exercised is to be determined in each case,
having regard to the terms of the resolution to be interpreted, the discussions leading to it, the Charter
provisions invoked and, in general, al1 circumstances that might assist in determining the legal
consequences of the resolution of the Security Council.”)
330Kosovo, paras. 4.04-4.22 and paras. 9.06-9.14.
331See, e.g., Serbia, paras. 685, 705, and 729-741;China, para. I (a); Cyprus, para. 94; Slovakia, para. 26.
332
Spain, p. 39, para. 58 (iv).
97 5.23. Resolution 1244 (1999)’s neutrality on what the final status for Kosovo should
be was widely understood at the time the resolution was adopted and thereafter, even in the
aftermath of issuance of the Declaration of Independence. For example, the Secretary-
General recently noted that EULEX operates “under the overall auth ority of the United
Nations and within the status-neutral framework of resolution 1244 (1999)”, and
that “UNMIK has moved forward with its configuration within the status-neutral
333
framework of resolution 1244 (1999)” . Such an understanding of the approach taken by
resolution 1244 (1999) would make no sense if the resolution had predetermined Kosovo’s
final status or prohibited a declaration of independence.
5.24. Although it did not predetermine Kosovo’ s final status, resolution 1244 (1999)
did address the process for reaching final status. Paragraph 11 decided that the main
responsibilities of the international civilian presence would include:
“(e)Facilitating a political process desi gned to determine Kosovo’s future status,
taking into account the Rambouillet accords (S/1999/648);
(f)In a final stage, overseei ng the transfer of authority from Kosovo’s provisional
institutions to institutions established under a political settlement”.
5.25. Before this Court, Serbia seeks to portray resolution 1244 (1999) paragraphs
11 (e) and 11 (f) as dictating an outcome that required Kosovo to remain within the FRY in
334
the absence of FRY consent , and that a “political settlement” means a legal requirement
335
of Kosovo-Serbia mutual agreement . Yet the actual text of paragraphs 11 (e) and 11 (f)
says nothing about the political process or the political settlement occurring only with the
acceptance of the FRY/Serbia or through agreemen t by Belgrade and Pristina authorities.
The lack of any such language is important when considered in context, for elsewhere
resolution 1244 (1999) expressly refers to securing the FRY’s “agreement” or
336
“acceptance” on other matters .
33Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo,
S/2009/300, 10 June 2009, paras. 6 and 40.
334See Serbia, paras. 751-756; see also Russian Federation, paras. 59-64.
335
See Serbia, paras. 757-758; see also Spain, para. 18; Cyprus, para. 98.
33See resolution 1244 (1999), preamble (“welcomi ng also the acceptance by the Federal Republic of
Yugoslavia of the principles set forth in points 1 to 9 of … annex 2 to this resolution … and the Federal
Republic of Yugoslavia's agreement to that paper,”) ; resolution 1244 (1999), para. 4 (referring to “an
98 5.26. Rather, the actual text of paragraph 11(e) makes clear that the international
civilian presence would facilitate a process that takes accoun t of the outcome reached at
Rambouillet, an outcome that in its Chapter 8, Article I, paragraph 3, emphasized the
importance of the will of the people of Kosovo and that rejected a re quirement of consent
337
from Serbia . Thus, paragraph 11(e)’s reference to Rambouillet – which also provides
context for the interpretation of paragraph 11 (f) – demonstrates that Kosovo-FRY/Serbia
mutual agreement was not a required component of either the political process or political
settlement (although it certainly was not pr ecluded). Indeed, the term “political
settlement” in paragraph 11(f) is reminiscent of the phrase “final se ttlement” used in the
Rambouillet Interim Agreement.
5.27. Moreover, an interpretation that insists upon Kosovo-Se rbia mutual agreement
is inconsistent with the overall object and purpose of resolution 1244 (1999) – i.e. to create
an enduring peace in Kosovo. At the tim e resolution 1244 (1999) was adopted, Council
members knew that it would be extremely diffi cult to reach agreement between Belgrade
and Pristina on a permanent status; the Hill and Rambouillet negotiations had demonstrated
as much. While negotiations with both si des were certainly expected, interpreting
resolution 1244 (1999) as requiring mutual c onsent before any final status could be
reached means imputing to the Council a willingn ess to “permanently lock the parties in a
frozen conflict” 33, to create a situation of persistent instability in the region, to impede
over the long-term the foreign investment need ed for Kosovo’s growth, and to maintain in
339
perpetuity a costly United Nations administration . By contrast, reading the language as
it is actually drafted – without a requirement of mutual consent – is consistent with the
resolution’s object and purpose since it avoids the possibility of an enduring deadlock.
5.28. Yet perhaps the most compelling conf irmation that paragraph 11 did not
envisage FRY/Serbian consent to Kosovo’s final status comes fr om Belgrade itself, in the
agreed number of Yugoslav and Serb military and police personnel” returning to Kosovo in the interim
period); resolution 1244 (1999), para. 5 (“Decides on the deployment in Kosovo, under United Nations
auspices, of international civil and security pres ences … and welcomes the agreement of the Federal
Republic of Yugoslavia to such presences”).
337
Luxembourg, para. 21; United States of America, pp. 64-68.
338Germany, p. 40.
339
United Kingdom, para. 6.31 (referring to UNMIK annual budgets in recent years, which exceed $200
million).
99position taken before the Security Council at the meeting during which resolution 1244
(1999) was adopted. There, Belgrade advanced an entirely different interpretation of the
meaning of the resolution, one that square ly envisaged the possibility of Kosovo’s
emergence as an independent St ate without Belgrade’s consent 34. In its statement to the
Security Council on 10 June 1999, Belgrade’s representative stated as follows:
“In sub-item (a) and (b) of operative para graph 9, the draft resolution requests in all
practical terms that the Federal Republic of Yugoslavia renounce a part of its
sovereign territory and grant amnesty to terrorists. Furthermore, in operative
paragraph 11, the draft resolu tion establishes a protectora te, provides for the creation
of a separate political a nd economic system in the province and opens up the
possibility of the secession of Kosovo a nd Metohija from Serbia and the Federal
Republic of Yugoslavia.
In adopting the present text of the draf t resolution, … the Secu rity Council would…
be instrumental in a de facto dismemberment of a sovereign European State …
By opposing these provisions, the Security Council shall stand up in defence … of the 341
territorial integrity and sovereignty of the Federal Republic of Yugoslavia …”
Thus, at the time of its adoption, Belgrade interpreted resolutio n 1244 (1999) (which
included the preambular clause relating to FRY territorial integrity as well as
paragraph 11) as “open[ing] up the possibility of secession of Kosovo and Metohija from
Serbia”. It is not surprising that the FRY took this position; resolution 1244 (1999)
embraced a final process based upon the approach taken at Rambouillet, an approach that
the FRY rejected at Rambouillet because it allowed ultimately for an independent Kosovo
without Belgrade’s consent. As such, it is entirely unpersuasive to argue now that
paragraphs 11(e) and 11(f) must be constr ued as requiring a me eting of the minds
between the FRY/Serbia and Kosovo 342. While it is correct that members of the United
Nations Security Council would have welcom ed a mutual agreement and encouraged both
sides to reach one 343, resolution 1244 (1999) contains no lega l requirement to that effect.
340See Kosovo, para. 4.22 (a).
341 th
Security Council, provisional verb atim record, fifty-fourth year, 4011 meeting, 10 June 1999,
S/PV.4011, p. 6 [Dossier No. 33].
342See Cyprus, para. 98.
343See Spain, pp. 50-51.
100In light of its text, context, object and pur pose, and negotiating history, many States are
344
candid in acknowledging that resolution 1244 (1999) did not prohibit secession .
5.29. Given all these factors, Serbia’s argument that Kosovo must recommence
345
negotiations is seriously misplaced for two reasons. First, Kosovo did engage in
extensive negotiations, which ended in failure . As discussed in Kosovo’s first Written
Contribution, Kosovo engaged in fifteen rounds of negotiations in the course of 2006 in
Vienna, during which Serbia insisted that autonomy was the only possible status (and even
argued – incomprehensively – that internati onal law precluded any settlement involving
346
independence) . Pristina advanced a forward-looki ng position, maintaining that while
independence was the only solution, it coul d occur along with appr opriate treaties and
agreements on friendship and cooperation between two neighboring states. Ultimately, the
Secretary-General’s Special Envoy for the negotiations, President Ahtisaari, concluded that
“[i]t is my firm view that the negotia tions’ potential to produce any mutually
agreeable outcome on Kosovo’s status is e xhausted. No amount of additional talks,
whatever the format, will overcome this impasse” 347.
5.30. Though some further attempts at negotiation were made, in light of the repeated
failures to reach agreement (the Hill Process, Rambouillet, Ahtisaari talks), these further
348
efforts (by the “Troika”) only served to confirm the deadlock . Today, there can be no
question of further negotiations on final status . Kosovo is now widely accepted as a State
within the international community, while Serbia on repeated occasions, even after
initiation of this request for an advisory opinion, insists that it will never accept an
349
independent Kosovo . This Court has long recognized that when an obligation to
negotiate exists, it does not require continuing to negotiate until success is achieved; rather,
344
See Slovakia, para. 26 (“Resolution 1244 does not contain provisions that exclude the possibility of
Kosovo’s independence”); ibid., para. 27 (resolution 1244 “does not explicitly prohibit secession or
prohibit states from recognizing secession,” as was done in the case of Southern Rhodesia); Azerbaijan,
para. 14 (“There are divergent interpretations of reso lution 1244 (1999) and there is no unanimity within
the Security Council and among Member States of the United Nations in general as to the issue under
examination by the Court.”)
345
Serbia, paras. 766-775.
346Kosovo, paras. 5.08-5.22.
347Report of the Special Envoy of the Secretary-General on Kosovo’s future status, S/2007/168/Add.1, 26
March 2007, para. 3 [Dossier No. 203].
348
See France, para. 2.51.
349See para. 2.57 above.
101 350
reasonable efforts at negotiation satisfy the obligation . In the Mavrommatis case, the
Permanent Court stated that
“[t]he question of the importance and chan ces of success of diplomatic negotiations
is essentially a relative one. Negotiations do not of necessity always presuppose a
more or less lengthy series of notes and dispatches; it may suffice that a discussion
should have been commenced, and this disc ussion may have been very short; this
will be the case if a deadlock is reached or if finally a point is reached at which one
of the Parties definitely declares himself unable, or refuses, to give way and there can
be no doubt that the dispute cannot be settled by diplomatic negotiation.” 351
5.31. Second, resolution 1244 (1999) does not incl ude an obligation to strive for
bilateral agreement, nor does it require maintenance of the status quo if a bilateral
agreement cannot be reached. Rather, para graph 11 of resolution 1244 (1999) calls for a
process to be facilitated by UNMIK, one that included as a possible outcome independence
352
for Kosovo, even without Serbian consent, so long as it reflected the will of the people .
As aptly put by the United Kingdom, the “consequence of Resolution 1244 (1999) was that
the future of the territory of Kosovo ceased to be a matter for Serbia alone to decide upon.
It became a matter to be resolved having re gard to the interests and wishes of the
353
inhabitants of Kosovo.”
5.32. In their submissions, some States maintain that resolutions preceding
resolution 1244 (1999), which were recalled in its preamble, es tablished that the Security
Council intended a bilaterally negotiated outc ome consisting solely of Kosovo autonomy
354
within the FRY . Thus, resolution 1160 (1998) called upon the FRY to pursue a
“dialogue” with the “leadership of the Ko sovar Albanian community” concerning the
rights of Kosovar Albanians, and expressed its “support for an enhanced status for Kosovo
350
See Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, I.C.J. Reports 2003,
p. 210, para. 107; Land and Maritime Boundary between Camer oon and Nigeria (Cameroon v. Nigeria:
Equatorial Guinea intervening), Judgment, I.C.J. Reports 2002, p. 424, para. 244.
3511924, P.C.I.J., Series A, No. 2, p. 13 (emphasis in original)
352See Austria, para. 30 (“the final settlement envisaged in Resolution 1244 comprises also a settlement
towards independence. If this were not so, independence would have also been excluded as a solution to a
political settlement by negotiation.”)
353
United Kingdom, paras. 0.25 (1) and 6.10.
354
See, e.g., Romania, pp. 11-15.
102which would include a substantially greater degree of autonomy and meaningful self-
administration” 355. Similarly, resolution 1199 (1998) called upon
“the authorities in the Federal Republic of Yugoslavia and the Kosovo Albanian
leadership to enter immediately into a m eaningful dialogue without preconditions and
with international involvement, and to a clear timetable, leading to an end of the crisis
and to a negotiated political solution to the issue of Kosovo …” 356
Further, resolution 1199 (1998) repeated in its preamble “support for a peaceful resolution
of the Kosovo problem which would incl ude an enhanced status for Kosovo, a
substantially greater degree of autonom y, and meaningful self-administration” 357. Similar
language may be found in resolution 1203 (1998) 358.
5.33. Such language in favor of dialogue and negotiation cannot be viewed as
supporting Serbia’s interpretation of resolu tion 1244 (1999). Certainly none of these
earlier provisions constituted a prohibiti on on a declaration of independence by the
democratically elected representatives of th e people of Kosovo, whether issued with FRY
consent or otherwise. Moreover, sentiments in these earlier resolutions in favor of
dialogue and negotiation in 1998 simply cannot be transplanted to resolution 1244 (1999),
which was adopted in the radically change d circumstances of June 1999, almost nine
months after resolution 1203 (1998). Given the dramatic events that unfolded in late 1998
and the first five months of 1999, involving widespread FRY/Serbian crimes against
humanity and other atrocities against Kosova r Albanians, resulting in massive flows of
refugee and internally displaced persons, 359 there is no reason to suppose that the Security
Council viewed measures of reconciliation pur sued in 1998 as still viable in mid-1999.
Indeed, when voting for resolution 1244 (1999), the representative of France reviewed
resolutions 1160 (1998), 1199 (1998), and 1203 (1998), and then noted that
“[u]nfortunately, the Belgrade regime refused to comply with the obligations set out in
those resolutions”, ther eby compelling a radical change in approach by the international
355Resolution 1160 (1998), paras. 1 and 4 [Dossier No. 9].
356Resolution 1199 (1998), para. 3 [Dossier No. 17].
357
Ibid., preamble.
358Resolution 1203 (1998), preamble, paras. 3 and 5 [Dossier No. 20].
359
Kosovo, pp. 60-67.
103community 360. Likewise, the representative of Ga bon stated that “[n] either the peaceful
measures that were advocated nor the condemnation repeatedly expressed by the
international community [in the prior resolu tions] succeeded in curbing the violence in
Kosovo”, and therefore the “resolution that we have just adopted … offers fresh prospects
for a resolution of the Kosovo conflict and for peace in the Balkan region…” 361. The
United Kingdom, another active participant in the meeting and the negotiations leading up
to it, now notes to this Court:
“As far as the Yugoslav effective pr esence [in Kosovo] was concerned,
Resolution 1244 (1999) aimed for, and achieved a clean slate. Previous international
mandates had been piecemeal and ultimately unsuccessful attempts to address an
escalating series of abuses by Yugosla v forces in Kosovo. By contrast,
Resolution 1244 (1999) established basic public order in Kosovo and created
international and local transitional institutions as a framework for a final settlement of
Kosovo’s internal and external affairs.” 362
5.34. Finally, and most importantly, the failure to repeat provisions from those earlier
resolutions actually confirms that resolution 1244 ( 1999) did not preclude a Kosovo
declaration of independence. If the S ecurity Council in reso lution 1244 (1999) had
intended that the “political process” in pa ragraph 11(e) consist solely of a “dialogue”
between the FRY and Kosovo’s leaders that would result in a “negotiated political
solution”, the Council certainly knew how to say as much, for it had done so in those
earlier resolutions. Likewise , if the Council in resolution 1244 (1999) had intended that
the “political settlement” in paragraph 11(f) consist solely of “an enhanced status for
Kosovo” within the FRY, that too the Counc il could have stated, using language from its
prior resolutions. Yet in drafting resolutio n 1244 (1999), no such language was included
anywhere in the text of the resolution.
5.35. By contrast, in the same timeframe that resolution 1244 (1999) was adopted,
the Security Council adopted resolutions relating to Georgia that were quite explicit about
the need for a mutual agreement of the two pa rties to the c onflict and about the essential
outcome expected in that agreement. In resolutions 1225 (1999) and 1255 (1999), which
36Security Council, provisional verb atim record, fifty-fourth year, 4011thmeeting, 10 June 1999,
S/PV.4011, p. 12 [Dossier No. 33].
36Security Council, provisional verb atim record, fifty-fourth year, 4011thmeeting, 10 June 1999,
S/PV.4011, p. 20 [Dossier No. 33].
362
United Kingdom, para. 6.25 (footnotes omitted).
104were adopted, respectively, five months before and one month after resolution 1244
(1999), the Council underlined in the operative part of the resolutions the “necessity for the
parties to achieve an early and comprehens ive political settlement, which includes a
settlement on the political status of Abkhazia within the State of Georgia …” 363.
5.36. Rather than adopt such an approa ch, the Council in resolution 1244 (1999)
discontinued the use of such language, repl acing it instead with language calling for a
political process that would take into acc ount the Rambouillet accords – accords that did
not call for a FRY-Kosovo agreement on final status and did not require that final status to
consist of autonomy within the FRY. Given that the Rambouillet Interim Agreement was
364
adopted after virtually all of the resolutions “re called” in resolution 1244 (1999) , and
given that it is the Rambouillet Interim Agreement that is identified in the operative text of
resolution 1244 (1999) relating to Kosovo’s final status, the resolutions that preceded
resolution 1244 (1999) serve to confirm the interpretation of that resolution discussed
above, not to rebut it.
5.37. Perhaps aware that resolution 1244 (1999) cannot be construed as prohibiting a
declaration of independence by the democratica lly elected representatives of the people of
Kosovo, some States shift ground by arguing that resolution 1244 (1999) did not authorize
a declaration of independence 365. To that end, Serbia and cert ain other States note that in
some other resolutions the Security Counc il has acknowledged a right of independence,
366
such as with respect to Namibia and East Timor .
5.38. Such resolutions are not relevant to the case now before this Court. First, in
those other instances, the Council had already decided that a new St ate should be formed
and the Council was simply acknowledging that fact. By contrast , in resolution 1244
(1999), the Council adopted a status-neutral framework in which there would be an interim
363
Security Council resolution 1225 (1999), 28 January 1999, para. 3; Security Council resolution 1255
(1999), 30 July 1999, para. 5 (emphasis added).
36The only resolution recalled in resolution 1244 (1999) that post-dated the Rambouillet Accords was
resolution 1239 (1999), which “did not concern the negotiated solution for the Kosovo problem”
(Romania, para. 40).
365Cyprus, pp. 23-26 (especially para. 97);Argentina, para. 64.
366
Serbia, paras. 785-792.
105period of autonomy, followed by a process th at would resolve the final status.
Consequently, the language of the resolution did not seek to prejudge, one way or the
other, the outcome of the final status proces s, as was done in the Namibia and East Timor
resolutions.
5.39. Second, in answering the question now before it, the Court need not
determine that resolution 1244 (1999) authorized such action; the Court need only find that
resolution 1244 contains no prohibition on a d eclaration of independence and hence that
the declaration cannot be said to contravene the resolution
B. THE P REAMBULAR R EFERENCE IN R ESOLUTION 1244(1999) TO “SOVEREIGNTY AND
T ERRITORIAL NTEGRITY ”DID NOT P ROHIBIT THE D ECLARATION OF INDEPENDENCE
5.40. With no support in the operative part of resolution 1244 (1999) for the
proposition that it prohibited the Declaration of Independence of 17 February 2008, Serbia
and some other States turn to and rely heavily upon the single clause in the preamble of the
resolution, where the Security Council says it is:
“Reaffirming the commitment of all Member States to the sovereignty and territorial
integrity of the Federal Repub lic of Yugoslavia and the othe r States of the region, as
set out in the Helsinki Final Act and annex 2 . . . .”
5.41. Yet this preambular paragraph says nothing about a declaration of
independence, nor is it formulated in terms of a prohibition of any kind. Indeed, by its
terms, the clause does not even purport to impose any new legal obligation; it is
“reaffirming” a pre-existing commitment of United Nations Member States. This
commitment must be understood as simply c onfirming the commitment of Member States
to the principle of “territorial integrity” bodied in general international law, which
prohibits States from using coercion against other States so as to alter territorial
boundaries, but does not prohibit declarations of independence.
367
Kosovo, pp. 137-39; Germany, p. 38 (“As to how the final settlement at the end of the political process
should look like, resolution 1244 (1999) is entirely silent. It does not ask for complete independence, but
neither does it exclude it.”).
106 368
5.42. As discussed in greater detail in Chapter IV above , there are several other
reasons why Serbia’s argument is not sustainable. Even if Serbia’s view of the meaning of
this commitment was correct as of 1999 (which it is not), such a commitment cannot be
regarded as still viable by 2008, given the extensive changes that had occurred over almost
a decade. Further, a comparison of this clau se with other clauses in the resolution, and a
review of the statem ents made by members of the Secu rity Council when the resolution
was adopted, confirm that the clause was not intended to preclude Kosovo’s Declaration of
Independence. Finally, had th e Security Council intended to link the aspirations of the
Kosovo people to the concept of territorial integr ity, one would expect language to that
effect in paragraph 11 of resolution (1999), yet no such language exists.
C. REFERENCES IN RESOLUTION 1244(1999) TO KOSOVO AS P ART OF THE FRY ARE
F ACTUAL STATEMENTS A DDRESSING THE INTERIM P ERIOD
5.43. Serbia and some other States expend c onsiderable effort attempting to deduce
from the language of resolution 1244 (1999) that it is based on a “principle that Kosovo
continues to form part of Serbia” 36. For example, Serbia no tes that paragraph 4 of
resolution 1244 (1999) envisaged a limited num ber of FRY military and police personnel
returning to Kosovo (which it fact never happened). From this, Serbia concludes that “the
Security Council, while significantly limiting th e right of the FRY to exercise effective
control over Kosovo, still perceived Kosovo as con tinuing to form an integral part of the
370
FRY pending a final agreement…” . Similarly, Serbia point s out that the Security
Council in resolution 1244 (1999) di d not seek to alter the nati onality of persons living in
371
Kosovo .
5.44. Kosovo does not dispute that at the tim e of resolution 1244 (1999)’s adoption,
Kosovo was regarded by the international community as a part of the FRY. Consequently,
any provisions within resolution 1244 (1999) or statements by members of the Security
Council during that period of time naturally viewed Kosovo as being part of the FRY. Yet
368
See paras. 4.14-4.29 above.
369Serbia, para. 721.
370Ibid., paras. 722-723.
371
Ibid., paras. 724-725.
107these were merely factual statements of what was considered to be the case at the time
resolution 1244 (1999) was adopted. These stat ements cannot be read as having in any
372
way prejudged Kosovo’s final status following the interim period .
5.45. The same point applies with respect to Serbia’s arguments concerning the
Military Technical Agreement of 9 June 1999, concluded between KFOR, the FRY, and
373
Serbia immediately prior to th e adoption of resolution 1244 (1999) . That Agreement
certainly contains provisions indicating that Kosovo is with in Serbia, but these are simply
factual statements reflecting what was consider ed to be the case at the time and remained
so until 17 February 2008. The Agreement di d not purport to provide any guidance on the
final status process and would have ha d no reason to do so; indeed, NATO had no
authority in this matter. The same point applies with respect to Security Council
resolutions predatin g resolution 1244 (1999) 37, and Security Council Presidential
statements 375or other United Nations documents from that time 376. All of these simply
recognized the existing factual situation prior to 17 February 2008.
D. T HE R ELATIONSHIP OF R ESOLUTION 1244 (1999) TO G ENERAL NTERNATIONAL LAW
5.46. Some States argue that resolution 1244 (1999) established a special legal
regime as it relates to the final status of Kosovo. Thus , Spain asserts that resolution 1244
(1999) established “an ad hoc legal system applicable to the Kosovo situation which would
eventually make it possible to exclude the a pplication of the rule s and principles of
377
intentional law generally applicable” . If resolution 1244 ( 1999) is regarded as
establishing a special legal system applicable only to Kosovo then, for the reasons
indicated above, that ad hoc legal system did not prohibit the Declaration of Independence
of 17 February 2008. Rather, resolution 1244 (1999) set up a status-neutral framework for
372See, e.g., Estonia, p. 12 (“Resolution 1244 (1999) did not determine the autonomy of Kosovo within the
Federal Republic of Yugoslavia as a final outcome of the process. It only established an interim
international administration which should, pending a political settlement, assure Kosovo’s autonomy
within the Federal Republic of Yugoslavia.”)
373
Serbia, paras. 668-674 (referring to resolution 1239 (1999)); see alsoSpain, para. 45.
374
Serbia, para. 660; Spain, para. 37 (i).
375Spain, para. 38, fn. 60.
376
Serbia, paras. 698-699.
377Spain, p. 12, para. 14. Such a position would seem inconsistent with the view that a decision by the Court
in favor of Kosovo’s position would set an adverse precedent for situations worldwide.
108addressing Kosovo’s future, one that cont ained no prohibition on a declaration of
independence and instead fully envisaged the possi bility of a final status of independence,
if that ultimately proved to be the will of the people of Kos ovo. Hence, even if the Court
were to take the view that resolution 1244 (1999) is the sole source of law applicable in
these proceedings, the Declaration of Independe nce still did not contra vene that source of
law.
5.47. Other States, such as Russia, assert that resolution 1244 (1999) “should be
considered as the special legal regime upon wh ich the Court can base its consideration of
the request”, but that “[p]rinciples of inte rnational law serve as the background against
378
which the Resolution is to be interpreted and applied” . If this approach is correct, then
general international law does no t prohibit a declaration of in dependence, as explained in
Kosovo’s first Written Contribution 379and in Chapter IV above. Had the Security Council
intended to alter the “background” rules emanati ng from general international law so as to
create a prohibition on Kos ovo’s Declaration of Independen ce, it would have expressly
said so in resolution 1244 (1999). By not doi ng so, general international law remained “as
the background” and, under that law, there ex isted no prohibition on the issuance of the
Declaration.
III. The Legal Effects of and Political Attitudes towards Resolution 1244 (1999)
Changed after Commencement of the Final Status Process
5.48. Serbia and some other States assert th at in the immediate aftermath of the
adoption of resolution 1244 (1999) , certain documents and stat ements were issued that
characterized Kosovo as a part of the FRY and that in so me instances opposed Kosovo’s
ability to declare independence at that time. Yet, such statements and documents typically
do not address whether a declaration of inde pendence might be issued by the people of
Kosovo, and in any event were reflecting attit udes as to what was po litically and legally
appropriate prior to the commencement and completion of the final status process.
378Russian Federation, paras. 28 and 30.
379Kosovo, Chapter VIII.
109 5.49. In assessing the period between the adop tion of resolution 1244 (1999) in June
1999 and the issuance of the Declaration of Independence on 17 February 2008, it is useful
to consider three distinct pha ses. In the first phase, fr om 1999 to 2005, th e international
community was focused on an interim period in Kosovo that would see the departure of
FRY/Serbian forces from Kosovo, the return of refugees and displaced persons to their
homes, and the transfer of extensive authority to Kosovo institutions of self-government.
5.50. In this period, the Contact Group, the Secretary-General’s Special
Representative, and others made various statements to the effect that Kosovo’s leaders
380
should not proceed with effo rts to declare independence . Further, Serbia points to a
“FRY-UNMIK Common Document” of 5 Nove mber 2001, a political document which
“[reaffirmed] that the posit ion on Kosovo’s future status remains as stated in
UNSCR 1244, and that this cannot be change d by any action taken by the Provisional
381
Institutions of Self-government” . Serbia also observes that the 2001 FRY-Macedonia
382
border agreement sought to address the border between Kosovo and Macedonia, a step
that demonstrates that Kosovo remained a part of Serbia. Finally, Serbia notes that the
SRSG declared null and void a “Resolution on th e protection of the territorial integrity of
Kosovo” adopted by the Kosovo Assembly in 2002 in connection with the border
agreement 383, again confirming that Kosovo was not an independent State.
5.51. Yet such political statements and othe r actions often do not actually say what
Serbia now claims that they say. The “Common Document”, for instance, simply says that
the position on Kosovo’s future status “remai ns as stated” in resolution 1244 (1999) (i.e.
that such status will be facilitated by UNM IK taking into account Rambouillet) and that
“the position” expressed in the resolution cannot be changed by the PISG. The “Common
Document” did not say that Kosovo’s final status had to be one of autonomy, nor did it say
that the PISG or any other entity or people could not be a factor in determining Kosovo’s
final status. Rather, the clau se at issue merely says that the PISG cannot change the
380Serbia, para. 658.
381
Ibid., para. 759-762; see also Spain, para. 41.
382Spain, para. 44.
383
Serbia, paras. 701-704; see also Cyprus, para. 112; Spain, p. 51; Kosovo, paras. 9.24-9.26.
110approach on final status that was set forth within the framework of resolution 1244 (1999),
which in fact it did not.
5.52. Moreover, it is important to note that such political statements and actions
arose in the context of the first period of in terim administration, at a time when the final
status process had not yet been launched. In this period, it is clear that the relevant
decision-makers in the international communi ty did not regard th e political process
envisaged by resolution 1244 (1999), paragrap h 11 (e), as yet having commenced. As
such, action to bring about a final status settlement was not yet envisaged.
5.53. This situation changed during the second phase, the period between 2005
384
and 2007 . In 2005, Ambassador Kai Eide reported that the situation in Kosovo was no
longer sustainable, an assessment with whic h the Security Council agreed. The Council
therefore supported “the Secret ary-General’s intention to st art a political process to
determine Kosovo’s Future Status, as fore seen in Security C ouncil resolution 1244
(1999)”, and welcomed the appointment of a Special Envoy to that end 385. Moreover, the
Security Council welcomed and approved the appointment of President Martti Ahtisaari as
the Special Envoy, whose Terms of Reference i ndicated that the “pa ce and duration” of
this process “will be determined by the Speci al Envoy on the basis of consultations with
the Secretary-General, taking in to account the cooperation of the parties and the situation
on the ground” 38.
5.54. As is often referred to by Serbia and others 387, the Contact Group stated in its
“Guiding Principles” of 10 November 2005, issued at the outset of this process, that “any
solution that is unilateral woul d be unacceptable”. Seen in c ontext, this was a political
assertion that both sides must engage in good faith negotiations on final status issues under
the auspices of the United Nations; it was ce rtainly not, by its terms, nor could it have
been, an interpretation of the requirements of resolution 1244 (1999), nor a statement that
negotiations must continue indefinitely. Si milarly, the statement by the Contact Group, in
384See Kosovo, paras. 9.15-9.19.
385
See ibid., para. 9.15.
386See ibid., para. 9.16.
387
Serbia, para. 764; Cyprus, para. 99; Spain, para. 79.
111those same “Guiding Principles”, that the “final decision on the status of Kosovo should be
388
endorsed by the Security Council” , as well as the statement by President Ahtisaari that
389
“it is up to the Security Council to decide how the future status will look like” , were also
political assertions, issued at the outset of the final status process, positing that it was
politically desirable for the Security Council to endorse the outcome of the process. Such
assertions were no doubt also motivated by an understanding that, at some point, in order
to terminate the presence of UNMIK in Kosov o, there would need to be a further Security
Council resolution. These statements cannot be read as an interpretation of resolution 1244
(1999) that Security Council endorsement wa s legally necessary for the final status
settlement to take effect prior to the termination of UNMIK.
5.55. President Ahtisaari engaged in fifteen months of intense negotiations with
390
Serbia, Kosovo, and other stakeholders culminating in 2007 . He then determined that it
was not viable to continue the status quo and that further “negotiations’ potential to
produce an mutually agreeable outcome on Kos ovo’s status is exhausted. No amount of
391
additional talks, whatever the format, will overcome this impasse.” Further, he crafted a
detailed political settlement, the Ahtisaari Plan, based on his conclusion that independence
392
for Kosovo was the only viable option . The Secretary-Genera l supported the plan.
Kosovo accepted the plan. Serbia did not. It is true that President Ahtisaari’s conclusions
included a “recommendation” to the Security Council for action 393, and that many states
saw Security Council action 394as politically desirable. Yet none of these statements
expressed the belief that Kosovo’s could not declare independence in the absence of a
further Security Council resolution. Indeed, the draft resolution that was considered at the
time contained no provision that would have de clared Kosovo to be an independent State
or that would have authorized a declaration of independence; instea d, it was focused on
UNMIK’s changed role in the post-independence period.
388Serbia, para. 763.
389Ibid., para. 817.
390
These negotiations included 17 direct discussion sessions and 26 missions of experts dispatched to
Belgrade and Pristina. See France, para. 2.48.
3Report of the Special Envoy of the Secretary-General on Kosovo’s future status, S/2007/168,
26 March 2007, para. 3 [Dossier No. 203].
392Kosovo, para. 9.17.
393
See Argentina, paras. 58-59.
394Serbia, para. 821.
112 5.56. As it happened, the Ahtisaari Plan wa s supported by many members of the
Security Council, none of whom viewed it as inconsistent with resolution 1244 (1999) due
395
to a lack of Serbian consent or because it would transgress FRY “t erritorial integrity” .
No longer were statements being made at th is point in the proce ss about the need for
further negotiations or about a concern with “unilateral action”, for events had now moved
past that point. Unfortunately, efforts to secure Security Counc il endorsement of the
Ahtisaari Plan were unsuccessful due to the li kely veto of a permanent member. Further
efforts to resolve the matter, in which Serbia itself informed a mi ssion of the Security
Council that the status quo was not sustainable 396, also failed.
5.57. In the third and final phase, it was apparent towards the end of 2007 at the
latest that the political process launched by the Security Council and Secretary-General had
run its course, that the person charged with determining the “pace and duration” of this
process viewed his task as completed, and that the only viable option was for Kosovo to be
independent 397. Once that process had run its course, the SRSG – unlike in prior phases –
chose not to proclaim the Declaration null an d void, or without lega l effect. Thus, the
entity charged by resolution 1244 (1999) with “facilitating” the final status process and, in
the final stage, with overseeing the transfer of authority to the final settlement institutions,
took a very different path than was taken befo re the end of the final status negotiations.
Serbia thereupon formally demanded that the Secretary-General take steps to have the
Declaration set aside. The Secretary-General did not do so. Nor did the Security Council,
395See Security Council, provisional verbatim record, sixty-second year, 5673 rdmeeting, 10 May 2007,
S/PV.5673 [Dossier No. 114] (indicating that the Plan was supported by Belgium (p. 3), Peru (p. 5),
France (p.6), Ghana (p. 8), Panama (p. 9), Italy (p. 11), United Kingdom (p. 12), and United States (p.
13)). For example, Ghana stated: “W e recognize the need to resolve th e issue of the future status of
Kosovo as soon as practicable, and support in principle the adoption of a resolution following the
submission by the Special Envoy of the comprehensive proposal on the Security Council mission. We
hope that the Security Council will work assiduously towards the realization of that objective.” (p. 8).
396Ibid., p. 3 (“Despite the strongly opposed positions, both parties agree that the status quo is not
sustainable.”)
397Kosovo, paras. 9.20-9.28; see also France, paras. 2.55-2.56; United Kingdom, para. 0.15 (the Declaration
“flowed from the failure of the two sides, and ofthe international community, after long and sustained
effort, to secure any other framework for peaceful rela tions between the people of Serbia and the people
of Kosovo”.); United States, p. 83 (“At the point in February 2008 that Kosovo declared independence …
there was no longer an ongoing future status proces s. The Special Envoy had declared that that the
process was over, and that there was no prospect of its successful resumption.”)
113either by resolution or through a statement of its President, take any steps to instruct the
398
Secretary-General or his representative to set aside the Declaration .
5.58. This unwillingness of the SRSG, the Secr etary-General, or any other United
Nations entity to act strongly supports the prop osition that the issuance of the Declaration
did not violate resolution 1244 (1999) 399. Resolution 1244 (1999) charges the SRSG (as
the head of UNMIK) with “overseeing the deve lopment of provisional democratic self-
governing institutions in Kosovo” and then, “[i] n a final stage, overseeing the transfer of
authority from Kosovo’s provisional institutions to institutions established under a political
settlement” 400. In discharging these functions, Serb ia itself has characterized UNMIK as
having “supreme administrati ve authority” in Kosovo 401, a view echoed by several
States 402. Actions in exercise of that authority, as noted by the Russian Federation,
“constitute a means of interpretation of the Reso lution as well as a part of the legal regime
established by it”. Moreover, UNMIK stated in its Constitutional Framework that it would
take “appropriate measures whenever [PISG] actions are inconsistent with UNSCR 1244
403
(1999) or this Constitutional Framework” .
5.59. Yet the SRSG did not take any action before or after th e Declaration of
Independence of 17 February 2008 to set asid e the Declaration or to declare it null and
void. By not doing so, the “supreme admini strative authority” in Kosovo acted in a
manner that does not fit Serbia’s conclusion that the Declaration violated resolution 1244
398Kosovo, para. 9.27.
399See also Austria, para. 19 (“By abstaining from a negative reaction, the Security Council has accepted the
competence of the [PISG] Assembly to act in this field. Moreover, si nce this conduct consisting of non-
objection is decisive for interpretation of Resolution 1244 as subsequent practice, the act of the issuing of
the Declaration has to be recognized as in conformity with Resolution 1244.”); ibid., para. 42 (“Since the
Secretary-General as well as the S ecurity Council were immediately aware of the events in Kosovo and,
nevertheless, none of the organs of the UN took action in this regard, the impression is created that the
UN has agreed to the Declaration.”); Germany, p. 42 (“This only confirms the proposition that the
prohibition of unilateral steps towards independence, contained in resolution 1244 (1999) for the interim
framework, ended when the political process foreseen by that resolution had finally collapsed.”); United
States, pp. 84-89.
400
Security Council resolution 1244 (1999), paras. 11 (c) and (f) [Dossier No. 34].
401
Serbia, para. 895; ibid., para. 896 (referring to “the international legal regime established by Security
Council resolution 1244 (1999) which provides that UNMIK, headed by the Special Representative, is the
supreme authority in Kosovo …”).
402Argentina, para. 62 (“The Special Repres entative of the Secretary-Genera l was vested with the highest
authority of the international administration.”)
403Constitutional Framework, Chapter 12 [Dossier No. 156].
114(1999). Rather, the SRSG’s position was entirely consistent with the view that the events
contemplated in resolution 1244 (1999) had unfolded to the point where a transfer of
authority from interim institutions to permanent institutions was appropriate.
5.60. The concluding element of the final st atus process, the Declaration of
Independence of 17 February 2008, was the product of the will of the people of Kosovo, as
well as the other Rambouillet factors recognized in resolution 1244 (1999) as important for
the facilitation of a final settlem ent. It occurred only after the conclusions reached by the
relevant United Nations representatives re sponsible for overseeing the final status
discussions that the status quo was not sustainable and inde pendence was the only viable
option. While the Declaration may have been “unilateral”(as it is qualified in the question
put to the Court and by Serbia in its Written Submission 404) in the sense of not being the
product of a Kosovo-Serbia agreement, the Decl aration was certainly not “unilateral” in
the sense of an action taken by Kosovo wit hout any involvement of the international
community in launching, negotiating, and concluding a final status settlement.
IV. The Declaration did not Violate Resolution 1244 (1999) as an Ultra Vires Act
of the PISG or as a Contravention of the 2001 Constitutional Framework
5.61. Serbia and some other States also maintain that the Declaration is “contrary to
the international legal regime for Kosovo” established by resolution 1244 (1999) because it
405
constituted an ultra vires act by the PISG and violated the Constitutional Framework
406
promulgated by the SRSG . The crux of this argument is that resolution 1244 (1999) and
the regulations issued by UNMIK thereafter established authorities within Kosovo that
were limited in their power; the Declarati on unlawfully transgressed that limited power,
and in doing so violated the “legal regime” set up by the Security Council for Kosovo. For
several reasons, these arguments fail.
404
Serbia, paras. 913-940.
405Ibid., paras. 867-94; Cyprus, pp. 27-29; Argentina, para. 116; Romania, para. 60; Russian Federation,
para. 72; Slovakia, para. 25.
406
Serbia, paras. 895-912. Slovakia refers to this as an alleged diminishment of the authority of the SRSG
(Slovakia, para. 25).
115 5.62. First, as explained in greater detail in Kosovo’s first Written Contribution, the
entities identified in the question submitted to the Court – the PISG – did not adopt the
407
Declaration . As a series of institutions that do not act as a collective even in their
normal functioning, the PISG cannot be regard ed as having issued the Declaration.
Moreover, if one sets aside the PISG and focuses on just one of the PISG institutions – the
Assembly – it is also readily apparent from the form and content of the Declaration, and
the procedure for adopting it, that this D eclaration differed from the legislative acts
normally adopted by the PISG Assembly. This particular action was of a very special and
extraordinary nature that simply cannot be judged as the act of a body created by the SRSG
and charged with day-to-day governing responsibilities during the interim period.
5.63. Second, even if this action of the demo cratically elected leaders of Kosovo,
meeting as a constituent body, were to be rega rded as an action of the PISG (or of the
PISG Assembly), the legality of that action cannot be judged as against standards set in
either resolution 1244 (1999) or UNMIK regul ations for governance during the interim
period. As discussed in Sec tion III above, by February 2008 the final status settlement
process had concluded with a determination by the United Nations authorities charged with
overseeing the process that the status quo in Kosovo was unsustainable, further
negotiations with Serbia were pointless, a nd Kosovo’s independence was the only viable
option. At this point, having reached the en d of the political process for determining
Kosovo’s future status, paragraph 11 (f) of resolution 1244 (1999) contemplated a stage in
which a transfer of authority would occur from Kosovo’s provisional institutions to
institutions established under a political settlement. Seen in this light, issuance of the
Declaration of Independence on 17 February 2008 was not an act of an interim institution
transgressing its limited authorit y; rather, it was an act of a constituent body declaring in
the name of the people its readiness to exer cise governing authority on a permanent basis,
as contemplated by resolution 1244 (1999).
5.64. In this regard, it must be noted that the issuance of the Declaration did not
408
terminate or seek to terminate the role of UNMIK under resolution 1244 (1999) . That
407
Kosovo, Chapter VI and paras. 1.22-1.24 above; see alsoAustria, para. 16.
408See, e.g., Argentina, para. 118 (the Declaration “attempts to pu t an end to such presence established on
the basis of the Resolution, something which can only be decided by the Security Council”).
116 409
resolution contemplated a role for UNMIK in both the interim and post-interim periods ,
which UNMIK has continued to fulfil. Serbia itself accepts that the Declaration did not set
aside the mandate of UNMIK and that UNMIK continued to perform certain functions
410
after the adoption of the Declaration . Kosovo accepts that it is the Security
411
Council’s prerogative to terminate the international civilian presence in Kosovo and that
412
resolution 1244 (1999) remains the UN basis for UNMIK’s presence in Kosovo , which
over time is being reconfigured so as to reduce UNMIK’s functions and personnel.
Acceptance of those points, however, does not a lter the fact that a final status process
under resolution 1244 (1999) has ru n its course and UNMIK’s ro le in facilitating a final
status settlement is completed. Indeed, as noted in Chapter II, according to the Secretary-
General, UNMIK’s functions no longer include “[f]acilitating a political process designed
to determine Kosovo’s future status, taking into account the Rambouillet accords” 413.
5.65. Third, whether or not the PISG issued the Declaration, it fell to the SRSG to
determine whether the Declaration was an ultra vires act or an act that violated the
Constitutional Framework promulgated by the SRSG , if that was truly the case. Yet, as
discussed in the prior section, the SRSG took no such action. In this regard, a point of
United Nations law arises. The Security Council, after delegating authority to the
Secretary-General and his Special Representa tive on the ground in situations involving
civilian administration of territory, provides those officials with authority for implementing
the civilian administration, which includes interpreting Security Council resolutions as the
need arises in the theatre of operations 414. Such an approach empowers the relevant United
Nations representatives (or for that matter subsidiary organs or committees) with the
409See Kosovo, para. 4.20; Austria, para. 33 (“The wording of the Resolution signals that the international
civil presence is meant to exist beyond the end of the interim period, after a political settlement has been
achieved.”)
410Serbia, paras. 827 and 834.
411
Hence, Serbia’s arguments in this respect are misguided. See ibid., paras. 795-798.
412Kosovo’s Foreign Minister has recently (on 17 J une 2009) reiterated to the Security Council Kosovo’s
adherence to international law, including binding S ecurity Council resolutions, such as resolution 1244
(1999). “This commitment has never wavered.” S/PV.6144 (2009), p. 8: see paras. 2.46-2.47 above.
Hence, arguments by others on th is point are also misplaced. Serbia, paras. 799-815; Spain, para. 84;
Russian Federation, para. 26.
413
See para. 2.45 above.
414The need for according such author ity to local administrators has also been recognized in the context of
other types of representatives. See, e.g., resolution 1869 (2009), para. 4 (“ Reaffirms also the final
authority of the High Representative in theatre regarding the interpretation of annex 10 on civilian
implementation of the Peace Agreement”).
117authority they need for day-to-day implementation of the Council’s resolutions. Obviously
if the United Nations representative acts in a manner that transgresses the United Nations
Charter or a Security Council resolution, the Council or this Court might take steps to
correct that transgression. But where the issu e concerns a possible transgression in theatre
of the rules adopted by the United Nations repres entative to regulate local matters (such as
the Constitutional Framework), considerable deference should be accorded to that
415
representative to interpret wh ether a transgression has occurr ed and, if so, to correct it .
In this instance, the SRSG’s decision not to de clare null or set aside the Declaration as an
ultra vires act of the PISG, or as a violation of the Constitutional Framework, was an
authoritative (or at least highly persuasive) interpretation that merits deference 416.
5.66. Fourth, even if one hypothesizes that the Declaration constituted an ultra vires
act by the PISG and that it violated UNMIK ’s Constitutional Framework, Serbia errs in
regarding any such action as a violation of international law. Such action would only have
been a violation of the domestic law applicab le in Kosovo – that is local law established
for the administration of Kosovo. Indeed, as Spain notes, UNMIK’s “set of regulations
makes clear that these competences are to be deployed exclusively within the internal
sphere”, “that the PISG lack competences in the international sphere”, that “competences
granted to the PISG are internal powers, with no international projection whatsoever” and
that “such powers are ex ercised within Serbia” 417. As such, any transgression of the
powers of the PISG or of the Constitutional Framework would have been a violation of
domestic, not international law, and thus fall outside the scope of the question asked of this
Court. In this respect, the Declaration of Independence would have been ultra vires only
in the same way that most declarations of independence are – as a contravention of the
domestic law of the State concerned.
41As the Permanent Court said, “it is an established principle that the right of giving an authoritative
interpretation of a legal rule (le droit d’interpréter authentiquement) belongs solely to the person or body
who has power to modify or suppress it.” ( Jaworzina, Advisory Opinion, 1923, P.C.I.J., Series B, No. 8,
p. 37).
416Netherlands, p. 4 (“the exercise of delegated power in this case … has been generally accepted in
practice.”) Indeed, it should be noted that the Co nstitutional Framework itself is simply a regulation of
UNMIK, which can be altered, amended, and interpreted at any time by the SRSG.
417
Spain, para. 17; see also Argentina, para. 62 (“The Provisional Institu tions of Self-Government … were
conceived as a local governing institution …”).
118 V. The Fact that the Declaration did not Contravene Resolution 1244 (1999) is
Consistent with the Security Council’s General Practice of Only Imposing Legal
Obligations upon States
5.67. The fact that resolution 1244 (1999) di d not prohibit the issuance of the
Declaration of Independence of 17 February 2008 is consistent with the Security Council’s
general practice of imposing obligations upon States, not upon other entities or persons.
5.68. As the Court is well aware, the United Nations Charter is a multilateral treaty
establishing an international organization an d focusing upon rights a nd obligations of its
Member States. The binding nature of Security Council decisions flows from Article 25 of
the Charter, which states that “the Members of the United Nations agree to accept and
carry out the decisions of the Security Council in accordance with this Charter” 418.
5.69. When acting under Chapter VII, the Security Council “may call upon the
Members of the United Nations” when pursuing non-forcible measures to address a threat
to the peace 419, whereas forcible measures may include “operations by ai r, sea or land
forces of Members of the United Nations” 420. Article 48 provides that the “action required
to carry out decisions of the Security Counc il for the maintenance of international peace
and security shall be taken by all the Members of the United Nations or by some of them,
as the Security Council may de termine”, while under Article 49 “Members of the United
Nations shall join in affording mutual assist ance in carrying out th e measures decided by
421
the Security Council” . In light of Article 2(6), the United Nations powers have
sometimes been regarded as extended to States that are not Members of the United
422
Nations, though this is controversial .
418
United Nations Charter, art. 25.
419Ibid., art. 41.
420Ibid., art. 42.
421
Ibid., arts. 48-49. China asserts that resolution 1244 (1999) was adopted in accordance with this
Article 49. See China, p. 2.
422Article 2(6) provides that the United Nations “shall ensure that states whic h are not Members of the
United Nations act in accordance with these Principles so far as may be necessary for the maintenance of
international peace and security”.
119 5.70. Such provisions help explain why th e dominant and natural focus of the
Security Council when adopting resolutions is upon the rights and oblig ations of States.
This is not to say that the C ouncil has refrained from issuing resolutions that speak to the
conduct of entities or persons other than States. The Council, for example, can recognize
existing legal rules that bind insurgent groups or that bind individuals under the jus in
bello, and can set up international institutions to prosecute individuals for violations of
those rules. The Council can also issue politic al statements about its attitude toward the
423
conduct of non-state entities, ca lling upon them to (or demanding that they) pursue a
certain course of action, or stating that th e Council will not accept a different course of
action. The Council can certainly impose upon St ates the obligation to sanction groups or
individuals, such as freezing of asset or trav el restrictions. Yet under international law 42,
and specifically under Article 25 of United Nations Charter, it is States (not individuals or
groups of individuals) that are obligated to accept and carry out the decisions of the
Security Council. As such, the authors of th e Declaration of Independence cannot be said
425
to have violated any obligation that might have been imposed by resolution 1244 (1999) .
5.71. In these proceedings, however, this C ourt need not address the exact limits on
the power of the Security Council in this regard. Instead, it is sufficient to find that when
the Security Council seek s to address (and perhaps to bind) non-state entities, it does so
expressly and clearly. Alt hough some States assert that the decisions contained in
resolution 1244 (1999) are “unambiguously addr essed to the Kosovo Al banian leadership
426
and hence are binding on them” , in fact there is no demand or even request within
resolution 1244 (1999) directed at the “Kosovo Albanian leadership”. Nor is there any
prohibition on the Declaration of Independence or of other acts that might alter the political
status of Kosovo.
423
See Argentina, para. 75.
424Compare Vienna Convention on the Law of Treaties, 23 May 1969, Arts. 34 and 35, United Nations,
Treaties Series, vol. 1155, p. 331 (providing that a treaty “does not create either obligations or rights for a
third State without its consent” and that an obligtion from a treaty arises for a third State only if it
“expressly accepts that obligation in writing”).
42Indeed, if Cyprus is correct that the Security Council could not itself grant Kosovo independence
(Cyprus, paras. 100-103), then there is no principled basis for finding that the Council has the power to
forbid any modification of territorial title that isnot prohibited under general international law.
426
Russian Federation, para. 24.
120 5.72. In prior resolutions, the Council made cer tain political demands of the Kosovo
Albanian leadership on certain issues. For example, in resolution 1160 (1998), the Council
called “upon the Kosovar Albanian leadersh ip to condemn all te rrorist action, and
emphasize[d] that all elements in the Kos ovar Albanian community should pursue their
427
goals by peaceful means only” . Similarly, in resoluti on 1199 (1998), the Council
demanded “that the authorities of the Fede ral Republic of Yugoslavia and the Kosovo
Albanian leadership take immediate steps to improve the humanitarian situation and to
avert the impending humanitarian catastrophe”, and further called upon “the authorities of
the Federal Republic of Yugoslavia, the leaders of the Kosovo Albanian community and all
others concerned to cooperate fully with th e Prosecutor of the International Tribunal for
the Former Yugoslavia in the i nvestigation of possible violations within the jurisdiction of
428
the Tribunal” . Yet the Council made no such requests or demands upon the Kosovo
Albanian leadership in reso lution 1244 (1999) of any kind, le t alone with respect to a
declaration of independence.
5.73. Some States argue that resolution 1 244 (1999) binds the PISG by virtue of
Chapter 2 of the Constitutional Framework, whic h states that the PISG and their officials
shall exercise their authorities consistent with resolution 1244 (1999) 429. Yet such an
argument is misguided; the SRSG had no power to transform a Security Council resolution
that does not bind an en tity into one that does 430. At best, the SRSG incorporated into his
Regulation (the Constitutional Framework) certain standards existing in resolution 1244
(1999), such that a transgression of those standards by the PISG would violate the
Regulation. As was indicated in the prior s ection, however, there was no violation of the
Regulation, since (1) the pers ons who adopted the Declaration were not the PISG, (2) the
Declaration was adopted as part of the transition from interim to final status, and thus was
not by an interim institution, and (3) the D eclaration cannot be s een as violating the
Constitutional Framework given the inaction of th e SRSG in setting the Declaration aside.
In any event a violation of the Constitutional Framework would not have been a violation
of international law, only of the local law applicable in Kosovo.
427Security Council resolution 1160 (1998), para. 2 [Dossier No. 9].
428
Security Council resolution 1199 (1998), para. 2 [Dossier No. 17].
429Romania, para. 14.
430
See Russian Federation, para. 27 (the Constitutional Frameworkis “secondary and subordinate to the
legal regime created by Resolution 1244”).
121 5.74. In short, given the orientation of the United Nations Charter in setting forth the
powers of the Security Council and the overall practice of the Council in taking measures
that bind only States, the lack of any men tion of non-State entitie s in resolution 1244
(1999) confirms that the Council did not s eek in resolution 1244 (1999) to prohibit, by
imposing an obligation under international law, the conduct of a non-State entity in issuing
a declaration of independence.
122 PART IV
SUMMARY AND CONCLUSION CHAPTER VI
SUMMARY
6.01. In this concluding Chapter, the Republic of Kosovo reiterates some of the key
elements that were identified in earlier Ch apters and in its first Written Contribution
(Section I). The Chapter then summarises Kosovo’s the legal arguments as set out its first
Written Contribution and in the present Contribution (Section II).
I. Key Elements
The situation of Kosovo entailed special charac teristics that are unlikely to be replicated
in other cases
6.02. The emergence into statehood of the Republic of Kosovo occurred under
circumstances that are very unlikely to be replicated elsewhere. Kosovo is best seen not as
an example of secession, but as the final step in the process of a disintegrating Federation
(the former SFRY).
6.03. Kosovo’s status within the Federati on gave Kosovo important protections
against unilateral actions by Serbia, which coul d not survive the diss olution of the SFRY,
as was amply demonstrated throughout the 19 90s, culminating in Serbia’s devastating
crimes against the Kosovo Albanian populat ion in 1998 and 1999, 90 percent of whom
were forced from or fled their homes. Th e crimes against humanity and massive human
rights violations of the 1998-1999 were identified by the Security Council as a threat to the
peace and resulted ultimately in the intervention of the international community.
6.04. Under Security Council resolution1244(1999), Serbia was excluded from any
role in the governance of Kosovo, replaced instead by UNMIK and Kosovo institutions
nurtured by UNMIK from 1999 onwards.
6.05. Further, resolution 1244 (1999) called for a political process on final status that
would be predicated upon certain key factors, in particularthe will of the people of
125Kosovo, and not on the consent of the FRY or of Serbia. The political process on final
status was led by the United Nations Secret ary-General and his Special Envoy, involved
extensive negotiations over a lengthy period, and concluded after the relevant United
Nations officials determined that furthe r negotiations were pointless, that the status quo
was unsustainable, and that independence was the only viable option.
6.06. Such characteristics are quite special in nature, such that the emergence of
Kosovo as an independent State is not a precedent for the emergence of other States where
similar factors do not exist.
Final Status for Kosovo was the Last Stage of the Break-up of the SFRY
6.07. Kosovo’s Declaration of Independence was the last stage of the non-consensual
dissolution of the SFRY. Serbia’s destruc tion of Kosovo’s autonomy in 1989, in a
concerted effort to dominate the SFRY, was an important element in the chain of events
leading to Yugoslavia’s collapse. The break- up of the Federation, which had consisted of
eight federal units, fundamentally undermined the basis for Kosovo’s autonomy within
Serbia. Before the break-up, Kosovo had had a dual nature: it was a constituent unit of the
Federation (on an equal footing with the six republics), and it was an autonomous province
within Serbia. With the disintegration of the SFRY, the constitutional safeguards could not
be re-established. The unacceptability of any solution other than independence was
confirmed by the brutal way in which Serbia destroyed Kosovo’s autonomy in 1989, by the
events of the 1990s, and by the terms of the 2 006 Constitution of the Republic of Serbia.
Other former units of that Federation also have become independent States, and their
independence is universally accepted.
The people of Kosovo have long made clear their overwhelming desire for independence
6.08. The desire of the people of Kosovo to determine freely their political status
goes back many years. This desire was clear to all the participants in the 1999 Rambouillet
Conference and was recognized through the “will of the people” clause in the Rambouillet
Interim Agreement as the key element in resolving Kosovo’s final status. It was clear
immediately after the 1999 c onflict when resolution 1244 (1999) expressly referred to the
Rambouillet accords, it was clear throughout th e period of UNMIK administration, and it
126was fully discussed and considered through out the final status negotiations. Key
participants in those negotiations, such as the Contact Group, re peatedly said that the final
status must be acceptable to the people of Kosovo.
The crimes against humanity and human right abus es suffered by the people of Kosovo
in 1998/1999 reinforced their demands for independence, and their unwillingness to return
to Serbia
6.09. The people of Kosovo suffered human righ ts abuses in 1912, in the 1920s and
1930s, between 1945 and 1966, and throughout th e 1980s and 1990s, culminating in the
1998-1999 ethnic cleansing, crimes against huma nity, and the massive refugee and IDP
431
crisis. This suffering was the result of a deliberate policy of the authorities of Serbia .
Final status negotiations had reached an impa sse by the end of 2007; prolongation would
have been highly destabilising for Kosovo and the region
6.10. By December 2007, at the latest, final st atus negotiations had reached a dead-
end, and it was clear that their continuation would serve no purpose, as has been
recognized by those most closely involved in these negotiations, including Special Envoy
Ahtisaari 432, the Troika 433, and the United Nations Secretary-General 434. It was also the
considered view of many in the international community that to prolong the uncertainty
caused by the protracted negotiations would be destabilising with in Kosovo, given the
435
expectations of the people of Kosovo, and within the region . There can be no obligation
436
to continue to negotiate in such circumstances . More than one year later, there can be no
question of resuming final status negotiations , as repeatedly and publicly suggested by
Serbian authorities and as appears to be a principal motive for Serbia having instigated the
present proceedings. Doing so would be point less, destabilizing, and doomed to failure.
The Declaration of Independence of 17Febr uary2008, the adoption, entry into force and
431See the ICTY Trial Chamber in its 26 February 2009 judgment in Milutinović et al.
432
Kosovo, para. 5.22.
433Ibid., para. 5.33.
434Ibid., para. 5.34.
435
Ibid., paras. 5.11-5.14.
436See paras. 5.28-5.30 above.
127implementation of the Constitution of the Republ ic of Kosovo, the establishment of fully-
functioning sovereign governing institutions, the widespread recognition of Kosovo and its
admission to international organizations, and above all the will of the people of Kosovo
make clear that Kosovo’s independence is irreversible.
6.11. In any event, these proceedings are for the provision of advice to the General
Assembly. It would not be appropriate for th e Court to treat this matter as a contentious
proceeding by calling upon the two States to resume final status negotiations. In fact, were
the issue before the Court to be seen as esse ntially a bilateral dispute over which the Court
does not have contentious jurisdiction, then the Court should decline to address the matter
through these advisory proceedings.
6.12. The Republic of Kosovo hereby reaffirms its wish for good neighbourly
relations with the Republic of Serbia. It repeats that it would welcome talks with the
Republic of Serbia on practical issues of mu tual concern, such as those foreseen in
the Ahtisaari Plan. Such talks would be normal between neighbouring sovereign and
independent States but must be held on an equal basis, between two sovereign States. On
the other hand, the Republic of Kosovo is not w illing to enter into ne gotiations that could
bring into question its status as a sovereign and independent State.
Kosovo has been recognized as a soverei gn and independent Stat e by many States,
including almost all States in the region, and admitted to international organizations
6.13. Since 17February2008, the day on which th e representatives of the people of
Kosovo voted upon and signed the Declarati on of Independence, many States have
recognized Kosovo as a sovereig n and independent State, while others have taken steps
that imply recognition. Indee d, most European States have recognized the Republic of
Kosovo, including all of its imme diate neighbours, with the ex ception of Serbia. Within
Europe, it is widely agreed that Kosovo’s status as a sovereign and independent State is an
important factor for peace and security in the region.
6.14. Since the Declaration of Independence, many steps have been taken by Kosovo
to implement the commitments made to the in ternational community regarding protections
128for communities, rule of law, respect for intern ational agreements, and cooperation with
international institutions.
6.15. The Republic of Kosovo is participating as a sovereign and independent State
in international relations through the establishment of dipl omatic relations, the conclusion
of treaties and its participation in internationa l organizations. In part icular at the end of
June 2009, Kosovo became a member in the IMF and the World Bank institutions
following an overwhelming vote in its favour. Kosovo has received much help from the
international community, includi ng from many States that have not yet taken the step of
according formal recognition.
The common future for the States of the Western Balkans lies in Europe
6.16. In its Presidential statement of 26 November 2008, the Security Council
welcomed “the continuing efforts of the European Union to advance the European
perspective of the whole of the Western Balkans, thereby making a decisive contribution to
regional peace and stability” 43.
6.17. The common future for Kosovo and Serbia lies in eventual membership in the
European Union. In the meantime, the deve lopment of good-neighbour ly relations, as
is normal between neighbouring States, shou ld proceed hand-in-hand with progress
towards full integration within European inst itutions, including the EU and the Council of
Europe. This is a positive prospect, one looking toward the future, not rooted in the past.
II. Summary of Kosovo’s Legal Arguments
The question posed to the Court may not be proper
6.18. The process by which the question was formulated, considered, and then
adopted provides no indication as to how the Court’s opin ion will assist the General
Assembly in its work. Rather, the purpose of the question appears to be part of a strategy
by Serbia to influence States in their politic al decision about whet her to recognize the
437Statement by the President of the Security Council, S/PRST/2008/44, 26 November 2008 [Dossier
No. 91].
129Republic of Kosovo. Yet in the course of exer cising its advisory jurisdiction, the Court is
not charged with providing gene ral legal advice on any questi on of international law to
whomever might solicit it; the Court is char ged with providing advice to the political
organs of the United Nations and the specia lized agencies on matters within their
competence.
The question put to the Court is narrow in scope
6.19. The question that has been put to the Court is narrow in scope, with a focus on
the issuance of a particular statement – a declaration of independence – by particular
persons on a particular day. This has been recognized by Serbia, the author of the question
and sole sponsor of General Assembly resolution 63/3.
In so far as the question asked to the Court is argum entative and prejudicial, these
elements should be disregarded
6.20. The question was drafted by a single Stat e that declined to entertain any
modifications contains prejudicial and argumentative assumptions. The question
characterizes the Declaration of Independence as “unilateral”, a term that at best is
superfluous and at worst intended as a synonym for “illegal”. Further, the question
incorrectly suggests that the D eclaration was adopted by the “P rovisional Institutions of
Self-Government of Kosovo”, when it was an act voted upon and signed by the
democratically elected representatives of the people of Kosovo, acting in a manner wholly
different from the PISG Assembly let alone the several institutions that collectively
comprise the PISG. Finally, the question app ears unjustifiably to assume that there are
rules of international law governing the issuance of declarations of independence, when in
fact general international law does not regulate such declarations.
There are no rules of international law proh ibiting the issuance of a declaration of
independence
6.21. International law contains no prohibitio n on the issuance of declarations of
independence. Rather, the issu ance of a declaration of i ndependence is unde rstood as a
factual event that, in combination with other even ts and factors, may or may not result in
130the emergence of a new State. If a State em erges, only at that point does the new State
become exposed to rights and obligations un der international law. Consequently, the
Declaration of Independence of 17February20 08, as a factual event, did not contravene
any applicable rule of inte rnational law and in that se nse was “in accordance” with
international law.
The principle of sovereignty and territorial in tegrity did not prevent the issuance of the
Declaration of Independence
6.22. The principle of sovereignty and territorial integrity is not a rule prohibiting the
issuance of a declaration of independence. Rather, the principle is applicable only in State-
to-State relations, as is amply clear in th e relevant provisions of the United Nations
Charter, the Court’s jurisprude nce and relevant international instruments. Moreover, the
principle is aimed at prohibi ting the use or the threat of force by a State against the
territorial integrity or political independen ce of another, or, more specifically, against
established international boundaries . It is not shaped to prot ect a State agai nst internal
developments, such as the issuance of a declar ation of independence. Consequently, as a
matter of international law, Serbia cannot invoke the principle of sovereignty and territorial
integrity against the people of Kosovo and their democratically elected representatives.
Even if it were necessary to demonstrate that the people of Kosovo had a right to issue the
Declaration of Independence, they had the right to do so.
6.23. The Court need not reach the issue of whether the Declaration of Independence
of 17 February 2008 reflected an exercise of th e right of self-determination, for there is no
need to determine whether international law has authorized Kosovo to declare
independence.
6.24. However, because of the constant denial of self-determination to the people of
Kosovo by Serbian authorities since 1989 and c ontinuing right up to the date of the
Declaration of Independence (as demonstrated by the 2006 Constitution of the Republic of
Serbia), in conjunction with widespread violations of elementary human rights and the
perpetration of war crimes and crimes agains t humanity against the people of Kosovo, the
people of Kosovo were clearly en titled, under the internationally recognized right of self-
131determination, to declare independence. No international law rule precluded such an
event.
The Declaration did not contravene Secu rity Council resolutio n 1244 (1999), which
envisaged a political process that included the possibility of Kosovo’s independence if it
was the “will of the people”
6.25. The Declaration of Independence of 17February2008 did not contravene
Security Council resolution 1244 (1999). Rather than prohibit the issuance of a declaration
of independence, resolution 1244 (1999) established a stat us-neutral framework that
included the possibility of Kosovo’s emergence as an independent State.
6.26. In the negotiations which took place at Rambouillet prior to the adoption of
resolution 1244 (1999), the FRY and Serbia sought to include language that would ensure
a final status solely of Kos ovo autonomy within Serbia, with no further changes in the
absence of FRY/Serbian consent. Those effo rts failed; instead, the final text of the
Rambouillet negotiations contained a clause that focused on final status that reflected the
“will of the people”. Although the Rambou illet accords were not agreed to by the
FRY/Serbia, they became the touchstone for Ko sovo’s final status in the political process
identified in resolution 1244 (1999).
6.27. Nothing in the text of resolution 1244 (1999) precluded independence as the
final status for Kosovo. The operative pa rt of resolution 1244 (1999) made provision
primarily for an interim period, during whic h Kosovo was placed under international
administration. The resolution did not prejud ge any final status outcome and favoured
neither autonomy nor independe nce; indeed, it has been ch aracterized by the Secretary-
General as establishing a “status-neutral framework”. Further, while all solutions were left
open, the resolution clearly did not require a final status settlement predicated upon FRY
or Serbian consent. Rather, UNMIK was charged with facilitating a political process that
would take into account the Ra mbouillet accords, meaning a process largely driven by the
“will of the people”.
132 6.28. References within Security Council resolution 1244 ( 1999) or as contained in
previous resolutions of the Secu rity Council to FRY/Serbia’s te rritorial integrity, or to the
fact that Kosovo was part of Serbia have to be interpreted in light of this clear
understanding. Further, references to “territorial integrity” in resolution 1244 (1999) must
be understood as references to inter-State relations, as prev iously discussed and, in any
event, only related to the “interim poli tical framework” envisaged by resolution 1244
(1999). As such, these references did not prejud ge the outcome of the final status political
process.
6.29. While a further Security Council deci sion was no doubt viewed as politically
desirable, resolution1244 (1999) did not requi re any such decision. Indeed, the process
and substance identified in the resolution fo r guiding this process were consciously open-
ended and identified as “political” in nature.
The political process envisaged by resolution1244(1999) ended in 2007 when the
authorized representatives of the United Natio ns determined that independence was the
only viable option
6.30. In 2005, the Secretary-General, after consulting the Security Council, launched
the political process for the determination of Kosovo’s final status. The outcome of that
process was a determination by President Ah tisaari, the United Na tions Special Envoy
appointed by the Secretary-General, that the “potential to produce any mutually agreeable
outcome on Kosovo’s status is exhausted” 438 and that “the only viable option for Kosovo is
439
independence” . Given the acceptance by the Secretary-General that further negotiations
would be fruitless and that independence was the only viable option, it cannot be said that
a declaration of independence by the democra tically elected representatives of Kosovo
contravened resolution 1244 (1999). Rather, the declaration was an obvious and necessary
step in the process of achievi ng a final settlement of Kos ovo’s status, one that flowed
directly from the conclusions by the very persons (the Secr etary-General and his Special
Envoy) charged by the Security Council with leading the final status process.
438
Report of the Special Envoy of the Secretary- General on Kosovo’s future status, S/2007/168,
26 March 2007, para. 3 [Dossier No. 203].
439Ibid., para. 5.
133The Declaration was not declared unlawful by the SRSG, the United Nations official
authorized to monitor implementation of resolution 1244 (1999)
6.31. Under the mandate assigned to the Speci al Representative of the Secretary-
General (SRSG) by resolution1244(1999), as well as the terms of the Constitutional
Framework promulgated by the SRSG in 2001, it would be expected that the SRSG would
declare null and void any acts of the Kosovo Assembly that were regarded as inconsistent
with resolution 1244 (1999). Any United Nati ons mission deployed under the direction of
the Secretary-General is expected faithfully to execute the tasks assigned to it, in close
consultation with United Nations officials in New York if important issues of interpreting
that mandate arise. As such, the SRSG would have been expected to annul a declaration of
independence if he regarded necessary to do so in order to implement
resolution 1244 (1999), just as he had taken steps at earlier st ages against actions of that
nature prior to the completion of the Ahtisaari process. The fact that the SRSG did not do
so indicates that the Declaration did not contravene resolution 1244 (1999).
The Declaration did not violate resolution 1244 (1999) as an ultra vires act of the PISG or
as a contravention of the Constitutional Framework
6.32. Contrary to allegations to this effect , the Declaration of Independence of 17
February 2008 did not violate resolution 1244 (1999) as an ultra vires act of the PISG. It
was not the PISG which issu ed this Declaration, but th e democratically elected
representatives of the people of Kosovo. As shown by the text and the form of the
Declaration, as well as the specific circumstances under which it was read out, voted upon
and signed, the representatives of the people of Kosovo did not purport to act, on that day,
as either the PISG or one of its parts.
6.33. Even if the Court were of the opinion th at the Declaration was an act of the
PISG, it was not ultra vires. The Declaration was not an act of an interim institution
transgressing its limited authority; rather, it was the act of a constituent body declaring in
the name of the people its readiness to recei ve the transfer of governing authority on a
permanent basis, as contemplated by resolution 1244 (1999). Furthermore, the SRSG, the
competent authority to set aside unlawful acts of the PISG, did not annul the Declaration of
134Independence. His judgment constitutes an authoritative interpretation that no violation of
the relevant UNMIK regulations occurred.
6.34. In any event, even if one of the PISG had acted not in accordance with the
Constitutional Framework by overstepping its competence, that would not have constituted
a violation of public internat ional law. Any action beyond th e powers of the PISG or of
the Constitutional Framework w ould have been contravened dom estic or local rules, not
rules of public international law. The Constitutional Framework, as its name indicates and
like the many other regulations issued by the SRSG, set up a legal framework on the
internal sphere of Kosovo. Given their non-international nature, any transgression of these
rules falls outside the scope of the question before the Court.
6.35. Regarding the Declaration as not in c ontravention of resolution 1244 (1999) is
consistent with the general practice of the Security Council in only regulating the conduct
of states. To the extent that the Council s eeks to address the conduct of other entities, it
does so clearly and expressly, not through vague or ambiguous language.
*
6.36. In short, given the terms of resolution1244(1999), the process that unfolded
based on those terms, and the reaction of the SRSG after the issuance of Kosovo’s
Declaration of Independence, there is no basis for concluding th at the February 2008
Declaration contravened resolution1244(1999) or any other any applicable rule of
international law.
135 CONCLUSION
For the reasons set out in its first Writte n Contribution and in this Further Written
Contribution, the Republic of Kosovo respectfully requests the Court, in the event that it
deems it appropriate to respond to the request for an advisory opinion contained in General
Assembly resolutio6n3/3, to find th at the Declaration of Independence
of 17 February 2008 did not contravene any applicable rule of international law.
Skender Hyseni
Minister of Foreign Affairs of the Republic of Kosovo
Pristina, 17 July 2009 Representative of the Republic of Kosovo before the
International Court of Justice
137ANNEXES CERTIFICATION
I hereby certify that the documents annexed to this Written Contribution are true
copies of and conform to the original documents and that th e translations provided by the
Republic of Kosovo are accurate.
Skender Hyseni
Minister of Foreign Affairs of the Republic of Kosovo
Pristina, 17 July 2009 Representative of the Republic of Kosovo before the
International Court of Justice
141 Annex 1
PRESENTATION BPRESIDENM ARTTIAHTISAARI
TO THEASSEMBLY OF THREPUBLIC OKOSOVO,15 UNE2009 Presentation by President Martti Ahtisaari
Chairman of Crisis Management Initiative, former UN SG Special Envoy
for the future status process for Kosovo
Pristina, 15 June 2009
Mr. Speaker, Mr. President, Mr. Prime Mini ster, distinguished members of the Kosovo
Assembly, friends, colleagues, ladies and gentlemen.
I am deeply honored to be here on this momentous occasion, the first anniversary of the
Kosovo Constitution. Please accept my warmest congratulations. My deep involvement
with Kosovo began many years ago and it is pa rticularly gratifying to see the journey
Kosovo has taken this past year. I am also happy to see so many friends here today who
worked closely with me for Kosovo and its future.
On this day, I am reminded of the Preamble in the Kosovo Constitution which so
eloquently captures the aspirations of this nation as it stands “determined to build a future
for Kosovo as a free, democratic and peace-loving country that will be a homeland to all of
its citizens.”
Kosovo’s independence is irreversible and this is evident from the recognitions that
continue to arrive from around the world. Acceptance of this reality by all would go a long
way toward ensuring stability not only for Kosovo, but for the enti re Western Balkans
region and indeed for Europe as well.
There is much that Kosovo can be proud of in this past year. Domestically, with the
passing of legislation and adoption of a C onstitution, addressing concerns of all
communities as well as establishing state instit utions, remarkable progress has been made.
I have been deeply impressed as well with efforts made on the international front to setting
up of diplomatic representations in key capit als, the recent membership offer from the
IMF, and I am sure, offers from the World Ba nk and other organizations to follow, as well
as bilateral meetings that the Kosovo leadership has undertaken in several countries.
I am also particularly impressed by the setti ng up of the Constitutional Court, the ultimate
interpreter and guardian of the Constitution. It represents the launch of the most important
body in the institutional architecture of the Constitution.
To Kosovo’s partners here, the European Union and the United States, as well a number of
other international organizati ons and NGO’s, I offer my deepest thanks as well as
encouragement for your efforts and commitment to assisting and advising Kosovo’s own
efforts in important areas such as rule of la w and reforms in key sectors of society. When
you declared independence and built the Constitution you took it upon yourselves to
implement the Comprehensive Settlement Plan (CSP), and welcomed Pieter Feith as the
International Civilian Representative. I congratulate you for th e progress made thus far in
your pledge and warmly thank Pieter and his team.
145With Yves De Kermabon leading EULEX efforts in critical rule of law areas, I am fully
confident that top expertise is in place to assist Kosovo as it builds and strengthens the
structures and processes of law and justice.
Ladies and gentlemen, no tangible progress is ever devoid of challenges. Let us be frank.
Kosovo also faces challenges despite the rapid and remarkable progress that it has made
thus far. Institutional structures are in deep need of further reforms, economic and social
development must be furthered strengthene d, the imperatives of accountability and
transparency in institution-building cannot be stressed strongly enough. There also remains
the task of obtaining full international recognition in the global arena. These challenges are
daunting in many ways and therefore I appeal to all ministers, officials and political parties
to recognize what is still an issue of comm on cause—that of building Kosovo into a truly
multi-ethnic, democratic state with its European perspective in clear focus.
State and institution-building endeavors necessarily require the participation of all citizens.
The Republic of Kosovo will sow the seeds of failure and discord if it does not reach out in
an authentic way to those who feel exclud ed, isolated and disenfranchised. Women’s
empowerment is also critical and their full pa rticipation an imperative in the development
of a society. I am keen to see members of the Kosovo Serb as well other ethnic
communities, to be full participants in Kosovo’s future growth. My Comprehensive Plan is
dedicated to ensuring the legi timate place of the Serb community in the new Kosovo.
Indeed, the Constitution enshrines the rights of all communities buttressed by a strong rule
of law structure.
Let me now turn to my Kosovo Serb friends. It is most important that you take advantage
of new opportunities that will present themselves as this nation grows and you must
become important stakeholders in the future that your children will inherit from you. There
needs to be fuller appreciation of the outreach by the Kosovo leadership toward you and
other communities, particularly returnees, a nd a willingness to trust that responding to
these initiatives is in the best interest of all citizens of Kosovo. Building these links is
necessary in all places at th e local, municipal and state level. I cannot emphasize enough
the enjoyment that life can bestow when ther e is a will to coexist in harmony by people
who ultimately share a common destiny and future.
Serbia is a neighbor of Kosovo’s and to that end interaction betw een the two can never
cease to exist. The question is what kind of interaction this will be—constructive or
destructive? I would wish to remind Belgrade to accept the reality that is now Kosovo and
to extend its cooperation to this young nation that has miles to go yet, but whose journey
has begun and the horizon beckons toward a br ighter tomorrow. Belgrade and Pristina
could together find common ground on their place in the world and determine that they
could actually move away from adversarial rhetoric and toward coexistence, reconciliation
and ultimate friendship.
To the European Union, I would say it is important to remain fully engaged in Kosovo and
to find a common position which could help th e region, as well as pr epare Kosovo for its
European perspective. To all the other intern ational agencies and organizations working in
Kosovo, I urge you to continue with the important task of preserving and building upon the
peace in the Western Balkans. This is a tr ansatlantic task requiring the continued
collaboration between the European Union and the United States. Following years of strife,
the people of Kosovo and the other countries in this region richly deserve tranquil lives.
146I have a special message today for the young people of Kosovo. Yours is the future for
which we have collectively worked and now arrived at this day. It is up to you to ensure
that you build upon our efforts and determine to take your nation from strength to strength.
There is so much opportunity for you to e ngage with each other and through your daily
lives as students, friends, colleagues and citizens—you can already set the agenda for your
participation in a stable and cosmopolitan Kosovo. So, begin now to imagine a Kosovo that
you would be proud to call home and which would be proud of you. Because soon you will
be called on to build it.
I stand before you today with a vision in mind for Kosovo. I imagine a few years from now
a democratic, modern, multi-cultural, tolerant and prosperous nation, at peace with its
neighbors, part of an integrated Europe and widely respected in the world. At the same
time, I am a realist and I know that the road will continue to be strewn with obstacles. It is
bound to be a long journey and requires your co llective wisdom and effort to bring this
vision into reality. Working for peace as I have done all my lif e, I have remained mindful
that in negotiating I am vested with the respon sibility to influence the destinies of peoples.
This is a responsibility I have never taken lig htly and have fought hard to ensure that
dignity, opportunity and a chance at peaceful living have been accorded to those on whose
behalf I have intervened.
Today, I have the unique privileg e of witnessing a nation that has indeed taken charge of
its own journey into a future which will be of its own making. Kosovo will forever hold a
special place in my heart and I am so ha ppy to share this day with you. While other
responsibilities may keep me from visiting as often as I might like, please be assured of my
continued support and trust in your progress. You have rightly earned this day and with
genuine efforts of all the men and women wh o comprise this very special place. I know
that the dream of a new Kosovo is bound to be realized. I also know that the vision of
Kosovo as a “homeland to all of its citizens” will be a reality. Again, congratulations on
your charter document, now one year old. Be proud of its achievements, dedicated to its
vision, and mindful of its obligations.
I thank you.
147 Annex 2
ITERNATIONAL STEERING GROUP FOR K OSOVO,
P RISTIN, 15UNE 2009
(available at http://www.ico-kos.org/d/090615 Eighth ISG meeting ENG.pdf) Eighth meeting of the International Steering Group for Kosovo
15 June 2009, Pristina, Republic of Kosovo
1. The International Steering Group (ISG) c ongratulates the citizens of Kosovo on the
first anniversary of the entry into force of their Constitution. In the past year the people of
Kosovo have made significant progress in building a democratic, multi-ethnic State on the
principles of democracy and human rights in acc ordance with its European perspective. It
welcomes the additional recognitions of Ko sovo by a number of States as well as its
admission to the International Monetary Fund and the World Bank.
2. The Constitution builds on the Declaration of Independence of 17 February 2008 and
on the Comprehensive Settlement Proposal (CSP). The ISG appreciates the commitment of
the Republic of Kosovo, as enshrined in the Constitution, to implement all the provisions
in the CSP. The CSP is the result of the unt iring mediation efforts of President Ahtisaari
and his team. The ISG feels honoured to have President Ahtisaari and Ambassadors Rohan
and Wisner in its midst today. It thanks H.E. President Sejdiu and H.E. Prime Minister
Thaci for addressing the ISG.
3. Integration of the Kosovo Serb community as part of a multi-ethnic society in
Kosovo remains a key objective. This can be achieved through participation in the
forthcoming municipal elections and th rough engagement in the Government’s
decentralization initiative which will bring important benefits to the Kosovo Serb
community, as well as to the other non-majo rity communities. Refo rm of local self-
government is highly important to further st rengthen municipal governance to the benefit
of every citizen, and to promote the inclusion of all in the democratic structures of Kosovo.
The ISG urges the Government and all those in positions of responsibility to continue to
reach out purposefully to every community in Kosovo in order to address their needs and
to find practical and pragmatic solutions to everyday problems.
4. The ISG underlines the importance of Kosovo’s regional integration as a prerequisite
for economic development.
5. The ISG commends Kosovo for laying th e groundwork for a successful election
process by taking steps to strengthen the Central Electio n Commission. It furthermore
congratulates Kosovo on the progress achieved in establishing the Constitutional Court and
warmly welcomes the recent election of Kosovo’s Ombudsperson.
6. The ISG expresses its support to the Government for its efforts to promote the rule of
law. In particular, it encourages further e fforts aimed at continuing the fight against
corruption and organized crime in close coope ration with the EU Rule of Law mission
EULEX.
7. Freedom of expression and independe nt media acting within the law are
indispensable elements in a democracy. Accordingly the ISG urges the Government of
Kosovo, the Independent Media Commission as well as other relevant actors to do their
utmost to promote and strengthen freedom of expression in Kosovo.
1518. The ISG reiterates its full support to the efforts undert aken by the International
Civilian Representative (ICR) Mr Pieter Feith and the International Civilian Office (ICO).
The ISG welcomes the publication on the ICO website (www.ico-kos.org) of an updated
ICO Mission Implementation Matrix, demonstr ating the progress achieved to date. The
ISG looks forward to the review of the ICR’s powers to be held at its meeting in February
2010.
152
Further written contributions of the authors of the Unilateral Declaration of Independence regarding the Written Statements