Separate opinion of Judge Cançado Trindade | INTERNATIONAL COURT OF JUSTICE

SEPARATE OPINION OF JUDGE CANÇADO TRINDADE

TABLE OF CONTENTS
Paragraphs

I. PROLEGOMENA 1-3

II. CONSIDERATIONS OPRELIMINARYQUESTIONS OJURISDICTION AND

JUDICIALPROPRIETY 4-34

1. The Court’s jurisdiction, with attention on the preponderant

humanitarian aspects 4-12
2. Alleged judicial “discretion” and the Court’s duty to exer-
cise its advisory function 13-34

III. THEF ACTUALB ACKGROUND AND CONTEXT OF THEQUESTIONPUT
TO THE COURT 35-52

IV. THEA DVENT OFINTERNATIONALO RGANIZATIONS AND THGROW -
ING ATTENTION TO THN EEDS ANDA SPIRATIONS OF T“PEOPLE”

OR THE “POPULATIO” 53-66
1. League of Nations: the mandates system 54-58
2. United Nations: the trusteeship system 59-61

3. International administration of territory 62-64
4. The recurring concern with the “people” or the “popula-
tion” 65-66

V. B ASICC ONSIDERATIONS OFH UMANITY IN THE TREATMENT OF
P EOPLES UNDER THLAW OF NATIONS 67-74

1. Private law analogies 68-70
2. The central position of peoples in the origins of the law of
nations (droit des gens) 71-72

3. The civitas maxima gentium in the vision of the “founding
fathers” of the law of nations 73-74

VI. THEC ONTEMPORANEITY OF TH“D ROIT DEG EN”:T HE HUMAN -
ISTV ISION OF TINTERNATIONALL EGALO RDER 75-96

1. The early judicial recognition of rights of human beings and
of peoples 78-87
2. The humanist legacy of past experiments to UN interna-
tional administration of territory 88-96

VII. THEC ONCERN OF THUNITEDN ATIONSORGANIZATION AS W HOLE

WITH THEH UMANITARIANT RAGEDY INKOSOVO 97-131
1. The Security Council’s reiterated expressions of grave con-
cern with the humanitarian tragedy in Kosovo 98-102

124 2. The General Assembly’s reiterated expressions of grave con-
cern with the humanitarian tragedy in Kosovo 103-114

3. The Economic and Social Council’s reiterated expressions of
grave concern with the humanitarian tragedy in Kosovo115-118

4. The Secretary-General’s reiterated expressions of grave con-

cern with the humanitarian tragedy in Kosovo 119-129
5. General assessment 130-131

VIII. EX INJURIAJUSN ON ORITUR 132-137

IX. CONDITIONS OF LIVING OF THE POPULATION INK OSOVO (SINCE
1989): THE SUBMISSIONSA DDUCED IN THE PRESENT A DVISORY
PROCEEDINGS BEFORE THC OURT 138-155

1. Submissions during the written phase of proceedings 139-148

2. Submissions during the oral phase of proceedings 149-155

X. J UDICIALRECOGNITION OF THA TROCITIES IKOSOVO 156-160

XI. FURTHER EVIDENCE OF THA TROCITIES KNOSOVO:T HEC ENTRAL-

ITY OF THSUFFERINGS OF THEPEOPLE 161-168

XII. THE PEOPLE-CENTERED OUTLOOK IN C ONTEMPORARY NTERNA -
TIONALLAW 169-176
1. “People” or “population” and statehood revisited 169-172

2. The principle of self-determination of peoples under pro-
longed adversity or systematic oppression 173-176

XIII. PRINCIPLES OFINTERNATIONAL LAW, THE LAW OF THE U NITED
NATIONS AND THEH UMANE ENDS OF THES TATE 177-211

1. Territorial integrity in the framework of those humane ends 177-181

2. The overcoming of the inter-State paradigm in international

law 182-188
3. The fundamental principle of equality and non-discrimina-
tion 189-195
4. The fundamental principle of humanity in the framework of

the law of the United Nations 196-211

XIV. T OWARDS A COMPREHENSIVEC ONCEPTION OF THINCIDENCE OJUS
COGENS 212-217

XV. F INAL CONSIDERATION:K OSOVOS INDEPENDENCE WITH U NITED
NATIONSS UPERVISION 218-240

125 I. P ROLEGOMENA

1. My vote is in favour of the adoption of the present Advisory Opin-
ion of the International Court of Justice (ICJ) on Accordance with Inter-
national Law of the Unilateral Declaration of Independence in Respect of
Kosovo, having concurred with the conclusions the Court has reached, set
forth in the dispositif. As I have arrived at the same conclusions on the

basis of a reasoning distinct from that of the Court, I feel obliged to lay
on the records the foundations of my own personal position on the mat-
ter at issue. To that end, I begin by addressing the preliminary questions
of jurisdiction and judicial propriety, with attention turned to the pre-

ponderant humanitarian aspects of the question put to the Court, and to
its duty to exercise its advisory function, without attributing to so-called
judicial “discretion” a dimension which it does not have. Next, I draw
attention to the need to proceed to a most careful examination of the fac-
tual background and context of the question put to the Court by the

United Nations General Assembly.

2. My following line of reﬂections is directed to the advent of interna-
tional organizations and the recurring and growing attention dispensed
to the needs and aspirations of the “people” or the “population” (in the

mandates system under the League of Nations, in the trusteeship system
under the United Nations, and in contemporary United Nations experi-
ments of international territorial administration). My next set of consid-
erations (in Parts V and VI of the present separate opinion) propounds
an essentially humanist outlook of the treatment of peoples under the law

of nations, from a historical as well as a deontological perspective. I then
proceed to an examination (in Part VII) — eluded by the Court in the
present Advisory Opinion — of the grave concern expressed by the
United Nations as a whole with the humanitarian tragedy in Kosovo.

3. After recalling the principle ex injuria jus non oritur , I move on to
an examination (in Part IX) of the important aspect of the conditions of
living of the population in Kosovo (as from 1989), on the basis of the
submissions adduced by participants in the present advisory proceedings
before the Court, in their written and oral phases. I also recall the judicial

recognition, and further evidence, of the atrocities perpetrated in Kosovo
(in the decade 1989-1999), and ascribe a central position to the sufferings
of the people, pursuant to the people-centered outlook in contemporary
international law. I then turn to the consideration of territorial integrity
in the framework of the humane ends of the State, to the overcoming of

the inter-State paradigm in contemporary international law, to the over-
riding importance of the fundamental principles of humanity, and of
equality and non-discrimination, and to a comprehensive conception of
the incidence of jus cogens. The way will then be paved for the presenta-

tion of my ﬁnal considerations.

126 II. C ONSIDERATIONS ON PRELIMINARY Q UESTIONS OF JURISDICTION

AND JUDICIAL PROPRIETY

1. The Court’s Jurisdiction, with Attention on the Preponderant
Humanitarian Aspects

4. First of all, the Court’s jurisdiction to deliver the present Advisory
Opinion is, in my view, established beyond any doubt, on the basis of

Article 65 (1) of its Statute, whereby the Court “may give an advisory
opinion on any legal question at the request of whatever body may be
authorized by or in accordance with the Charter of the United Nations to

make such a request”. Such conditions have been acknowledged in the
case law of the Court . It is for the ICJ, as master of its own jurisdiction,
to satisfy itself that the request for an advisory opinion comes from an

organ endowed with competence to make it; in the case of the General
Assembly, it is so authorized by Article 96 (1) of the United Nations

Charter, to request an advisory opinion of the ICJ on “any legal ques-
tion”. In its case law, the Court has at times given indications as to the
relationship between the object of the requests at issue and the activities
2
of the General Assembly .

5. Article 10 of the United Nations Charter confers upon the General

Assembly competence to deal with “any questions or any matters” within
the scope of the Charter, and Article 11 (2) speciﬁcally endows it with
competence to discuss “questions relating to the maintenance of interna-

tional peace and security brought before it”. The question put to the
Court by General Assembly resolution 63/3, adopted on 8 October 2008,

pertains to the scope of activities of the General Assembly, which, like
the Security Council, has been dealing with the situation in Kosovo for
over a decade (cf. infra) . The main point that may be raised here per-

tains to Article 12 (1) of the United Nations Charter, which states that

“[w]hile the Security Council is exercising in respect of any dispute
or situation the functions assigned to it in the present Charter, the

General Assembly shall not make any recommendation with

1Cf. e.g., Application for Review of Judgement No. 273 of the United Nations Admin-
istrative Tribunal, Advisory Opinion, I.C.J. Reports 1982 , p. 333, para. 21.
2Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase,
Advisory Opinion, I.C.J. Reports 1950 ,p.Legality of the Threat or Use of Nuclear

Weapons, Advisory Opinion, I.C.J. Reports 1996 (I) , pp. 232-233, paras. 11-12; Legal
Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advi-
sory Opinion, I.C.J. Reports 2004 (I) , pp. 145 and 148, paras. 16 and 25.
3In respect of the situation in Kosovo, in addition to the main course of action taken
up by the Security Council, the role of the General Assembly includes taking decisions —
with the advice of its Fifth Committee — on the budget of UNMIK. The responsibilities
of the Secretary-General include the support of the mandate of UNMIK.

127 regard to that dispute or situation unless the Security Council so

requests.”

6. In any case, a request for an advisory opinion is not in itself a

“recommendation” by the General Assembly with regard to a “dispute
or situation”. Under Article 24 of the Charter, the Security Council has
“primary responsibility for the maintenance of international peace and
security” . Yet, Article 24 refers to a primary, but not necessarily exclu-

sive, competence. The General Assembly does have the power, inter alia,
under Article 14 of the United Nations Charter, to “recommend meas-
ures for the peaceful adjustment” of various situations. The ICJ itself has
5
lately pointed out , as to the interpretation of Article 12 of the United
Nations Charter, that in recent years there has been an “increasing ten-
dency” for the General Assembly and the Security Council to deal “in

parallel” with the same matter concerning the maintenance of interna-
tional peace and security: while the Security Council has tended to focus
on the aspects of such matters related to international peace and security,

the General Assembly has taken a broader view, considering also their
humanitarian, social and economic aspects .

7. The General Assembly has developed the practice of making
recommendations on issues which the Security Council has also been
dealing with; United Nations Member States have not objected to such
6
practice , nor has the Security Council opposed it. This has been the
“accepted practice” of the General Assembly, as it has lately evolved,
being consistent with Article 12 (1) of the United Nations Charter.
By adopting, on 8 October 2008, resolution 63/3, seeking an advisory

opinion from the ICJ relating to the declaration of independence by the
authorities of Kosovo, the General Assembly has not acted ultra vires
in respect of Article 12 (1) of the United Nations Charter: it was fully

entitled to do so, in the faithful exercise of its functions under the United
Nations Charter.

8. The remaining aspect concerning the Court’s jurisdiction is whether
the General Assembly’s request relates to a “legal question” within the
meaning of the United Nations Charter and the ICJ Statute. On this par-

ticular point, the ICJ has already indicated that questions “framed in
terms of law” and raising “problems of international law” are “by their
very nature susceptible of a reply based on law” and appear to be “ques-

4
It can thus, in that regard, impose on States an “explicit obligation of compliance”
if, for example, it issues “an order or command” under Chapter VII, and it can, to that
end, “require enforcement by coercive action”; cf.Certain Expenses of the United
Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion, I.C.J. Reports
1952, p. 163.
Cf. Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory, Advisory Opinion, I.C.J. Reports 2004 (I) , pp. 149-150, paras. 27-28.
6 Cf. United Nations Juridical Yearbook (1964), pp. 228 and 237.

128tions of a legal character” . It is immaterial if the legal question put to

the Court, for the exercise of its advisory function, discloses also political
aspects. It could hardly be doubted that the question submitted by the

General Assembly to the ICJ for an advisory opinion is a legal one, rela-
ting as it is to the accordance with international law of the declaration of

independence by the authorities of Kosovo. In its jurisprudence con-
stante, the ICJ has clariﬁed that a legal question may also reveal political
aspects, “as, in the nature of things, is the case with so many questions

which arise in international life, does not sufﬁce to deprive it of its char-
acter as a ‘legal question’ and ‘to deprive the Court of a competence
8
expressly conferred on it by its Statute’” .

9. The ICJ has made it clear that it cannot attribute a political chara-
cter to a request for an advisory opinion which invites it to undertake an
9
“essentially judicial task” concerning the scope of obligations imposed
by international law , namely, an assessment of “the legality of the pos-

sible conduct of States” in respect of obligations imposed upon them by
international law . Since the earlier years of the ICJ, it has been clariﬁed

that the old distinction between so-called “legal” and “political” ques-
tions does not stand, as there are no questions which, by their “intrinsic
nature”, may be termed as essentially “legal” or “political”; such quali-

ﬁcations pertain rather to the means of resolution of the questions at
issue , whether “legal” (judicial), or otherwise. It is thus somewhat sur-

prising to see this point being persistently raised before the ICJ through-
out the years without consistency.

10. In the light of the aforementioned, it can be concluded that the
present request by the General Assembly, by means of its resolution 63/3
of 8 October 2008, for an advisory opinion by the ICJ, fulﬁls the require-

7 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports

1986 (I), p. 232, para. 11.
Application for Review of Judgement No. 158 of the United Nations Administrative
Tribunal, Advisory Opinion, I.C.J. Reports 1973 , p. 172, para. 14; Legality of the Threat
or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I) , p. 234, para. 13.
9 Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter),
Advisory Opinion, I.C.J. Reports 1962 , p. 155.
10 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Ter-
ritory, Advisory Opinion, I.C.J. Reports 2004 (I) , p. 155, para. 41.
11
Cf. Conditions of Admission of a State to Membership in the United Nations (Arti-
cle 4 of the Charter), Advisory Opinion, 1948, I.C.J. Reports 1947-1948 , pp. 61-62; Com-
petence of the General Assembly for the Admission of a State to the United Nations,
Advisory Opinion, I.C.J. Reports 1950 , pp. 6-7; Certain Expenses of the United Nations
(Article 17, paragraph 2, of the Charter), Advisory Opinion, I.C.J. Reports 1962 , p. 155.
And cf. also Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J.
Reports 1996 (I), p. 233, para. 13; Interpretation of the Agreement of 25 March 1951

be12een the WHO and Egypt, Advisory Opinion, I.C.J. Reports 1980 , p. 87, para. 33.
Cf. M. Vaucher, Le problème de la justiciabilité et de la non-justiciabilité en droit
international des différends dits “politiques” ou “non-juridiques” et les notions de com-
pétence exclusive et de compétence nationale , Paris, Pedone, 1951, pp. 3-243.

129ments of Article 96 (1) of the United Nations Charter and of Article 65 of
the Statute of the Court, in respect of both the competence of the

requesting organ (the General Assembly) and of the substance of the
request, and discloses the nature of a legal question. This sufﬁces to
determine the issue of the Court’s jurisdiction. Furthermore, there is no
element raised in the course of the present advisory proceedings that
could lead the Court to conclude otherwise.

11. Accordingly, I concur with the Court’s view that it has jurisdiction
to deliver the requested advisory opinion. This latter should be attentive
to the broader view of the consideration of issues pursued by the General
Assembly (cf. supra), focusing on the preponderant humanitarian aspects

surrounding the conformity or otherwise with international law of the
declaration of independence at issue. This requires a careful considera-
tion by the Court of the factual complex of the request lodged with it
(cf. infra), so as to avoid an aseptic reasoning in the Advisory Opinion.

12. This is an aspect in respect of which my reasoning differs from that
of the Court. The consideration of the factual complex is of considerable
importance, as declarations of independence are not proclaimed in a
social vacuum, and require addressing at least its immediate causes. This

is a point of far greater importance than the usual arguments concerning
so-called judicial “discretion”, dealt at length by the Court in the present
Advisory Opinion. This argument has been repeatedly raised before this
Court, in its practice as to the exercise of its advisory jurisdiction. This
point deserved no more than a brief review of the Court’s jurisprudence

constante on it, so as to concentrate attention on other points that are of
far greater relevance, such as the factual background of the question put
to the Court by the General Assembly.

2. Alleged Judicial “Discretion” and the Court’s Duty
to Exercise Its Advisory Function

13. The second line of considerations at this preliminary stage, per-
taining to judicial “discretion” (rather than propriety), has been brought

to the fore by certain arguments adduced by some participants, in the
course of the present proceedings. Such arguments tried to persuade the
Court that it should nevertheless decline, in the exercise of its discretion-
ary power, to render the advisory opinion requested by the General
Assembly, either because the request concerns “matters essentially within

the domestic jurisdiction of a State” (under Article 2 (7) of the United
Nations Charter); or because the procedure was allegedly being used pri-
marily to further the interests of individual States rather than that of the
requesting organ; or because the Court’s advisory opinion would lack

any useful purpose; or because the Court’s opinion would arguably have
adverse effects on peace and security in the region; or because there is no

130consent of Kosovo to the jurisdiction of the Court; or else because it

would be allegedly politically inappropriate for the Court to deliver the
advisory opinion. I ﬁnd all these arguments wholly unconvincing.

14. To start with, the ICJ itself observed, in an Advisory Opinion
delivered six decades ago, that Article 65 of its Statute gives it “the power
to examine whether the circumstances of the case are of such a character
13
as should lead it to decline to answer the request” ; it further warned
that “the reply of the Court, itself an ‘organ of the United Nations’,

represents its participation in the 14tivities of the Organization, and, in
principle, should not be refused” . In accordance with its ownjurisprudence
constante, only “compelling reasons” could lead the ICJ to such refusal 15.

15. As to the argument of domestic jurisdiction (supra), already in the
case of the Nationality Decrees Issued in Tunis and Morocco (1923), the

Permanent Court of International Justice (PCIJ) pondered that “[t]he
question whether a certain matter is or is not solely within the jurisdic-
tion of a State is an essentially relative question; it depends on the devel-

opment of international relations” (Advisory Opinion, 1923, P.C.I.J.,
Series B, No. 4, pp. 23-24). Ever since, in their constant practice, in the
line of this obiter dictum of the PCIJ, both the United Nations main

organs and United Nations Member States have themselves acknowl-
edged the gradual erosion of the plea of domestic jurisdiction under the
United Nations Charter.

16. This has also been reckoned in international legal writing on this
particular point. Thus, it was pondered, 35 years ago, that the fact that a

State raising an objection on the ground of domestic jurisdiction could
not impede the inclusion of the matter into the agenda of the interna-
tional organ seised of it and its discussion at international level, afforded

evidence for the view that the reserved domain of States was already under-
going a continuing process of reduction. Domestic jurisdiction in this

context becomes a residuum of discretionary authority left by interna-

13 Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase,
Advisory Opinion, I.C.J. Reports 1950 ,p.72.
14 Ibid.,p.71.
15
Judgments of the Administrative Tribunal of the ILO upon Complaints Made against
Unesco, Advisory Opinion, I.C.J. Reports 1956 ,p.86; Certain Expenses of the United
Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion, I.C.J. Reports 1962 ,
p. 155; 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 ,p7; Application for Review of Judgement
No. 158 of the United Nations Administrative Tribunal, Advisory Opinion, I.C.J. Reports
1973, p. 183; Western Sahara, Advisory Opinion, I.C.J. Reports 1975 ,p.2Applicability
of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United
Nations, Advisory Opinion, I.C.J. Reports 1989 , p. 191; Legality of the Threat or Use of
Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I) , p. 235.

131tional law within the reserved domain of States . Two decades later, it

was reasserted that Article 2 (7) of the United Nations Charter was inap-
plicable in so far as the principle of self-determination was concerned,
linked to the consideration of human rights issues, thus removed from
17
the domain of domestic jurisdiction .

17. In fact, the ICJ itself has stated that “[t]he purpose of the Court’s

advisory opinion is not to settle – at least directly — disputes between
States, but to offer legal advice to the organs and institutions requesting
the opinion” . The United Nations practice with regard to Kosovo’s

humanitarian crisis illustrates the widespread agreement that the powers
of the main United Nations organs (in particular the Security Council
and the General Assembly) to initiate and undertake measures in order to

secure the maintenance of international peace and security, are rather
broad — and cannot be restrained by pleas of domestic jurisdiction of
individual States. This being so, the ICJ, as “the principal judicial organ

of the United Nations” (Article 92 of the United Nations Charter),
cannot accept the plea of domestic jurisdiction as a reason to decline to
exercise its advisory function, and this applies to the present request for

an advisory opinion on Accordance with International Law of the Uni-
lateral Declaration of Independence in Respect of Kosovo .

18. Another argument has been raised, by some participants in the
present advisory proceedings, whereby the advisory procedure is alleg-
edly being used primarily to further the interests of individual States

rather than the concerns of the General Assembly as the requesting
United Nations organ. A handful of participants further argued that,
given the close voting in the adoption of resolution 63/3 of the General

Assembly, the ICJ would have to be extremely careful in delivering the
advisory opinion, if at all; in their view, extreme restraint was required
from the ICJ. In my perception, these arguments beg the question.

19. All these considerations were to have been borne in mind in the
course of the discussion of the draft resolution of the General Assem-
19
bly , when all United Nations Member States had an opportunity to
express their views in support or against the adoption of such draft reso-
lution. The proposal for inclusion of the item in the agenda of the Gen-

16A. A. Cançado Trindade, “The Domestic Jurisdiction of States in the Practice of the
United Nations and Regional Organisations”, 25 International and Comparative Law
Quarterly (1976), pp. 713-765.
17A. Cassese, Self-Determination of Peoples — A Legal Reappraisal, Cambridge Uni-
versity Press, 1995, pp. 174 et seq.
18Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports
1996 (I), p. 236, para. 15; Interpretation of Peace Treaties with Bulgaria, Hungary and
Romania, First Phase, Advisory Opinion, I.C.J. Reports 1950 ,p.71.

19
UN doc. A/63/L.2.

132eral Assembly was originally advanced by Serbia, and all United Nations

Member States had a chance to make their views known in the considera-
tion of this agenda item. The circumstances of the approval of the draft
resolution in a rather close or divided voting are, in my view, immaterial.

20. Resolution 63/3 (2008) was adopted on behalf of the United

Nations General Assembly, and not by only those States which voted in
favour of it. This ensues from the international legal personality of the
United Nations, which is endowed with a volonté of its own, surely dis-

tinct from the sum of volontés of its Member States, or of some of them
(those which vote in favour of a resolution of one of its main organs). In
the cas d’espèce, United Nations Member States considered the matter in

the General Assembly, and this latter, as one the main organs of the
United Nations, decided to make of the issue of Kosovo’s declaration of
independence one of “United Nations concern”.

21. The ICJ should thus proceed with care — as it of course did — but

without feeling inhibited to deliver the present Advisory Opinion. It is
not for the Court to dwell upon the circumstances of the political debate
prior to the adoption of General Assembly resolution 63/3 (2008). The

ICJ itself has warned that “the opinion of the Court is given not to
States, but to the organ which is entitled to request it” . The interna-
tional community expects that the Court act at the height of the respon-

sibilities incumbent upon it, without succumbing to apprehensions or
fears, in face of apparent sensitivities of some States. It is incumbent
upon the Court to say what the law is (juris dictio) 21.

22. In any case, it is for the Court itself to assess the consequences of
its decision to deliver an advisory opinion, bearing in mind that it cannot

at all abstain itself from the exercise of its advisory function of saying
what the law is (juris dictio) . After all, the ICJ itself pointed out, six
decades ago, that, to provide a proper answer to a request for an advisory

20Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase,
Advisory Opinion, I.C.J. Reports 1950 ,p.71.
21The ICJ has, on various occasions, pointed out that it “may give an advisory opinion
on any legal question, abstract or otherwise”. Conditions of Admission of a State to Mem-
bership in the United Nations (Article 4 of the Charter), Advisory Opinion, 1948,
I.C.J. Reports 1947-1948 ,p.61;Effect of Awards of Compensation Made by the United
Nations Administrative Tribunal, Advisory Opinion, I.C.J. Reports 1954 ,p.51;Legal
Consequences for States of the Continued Presence of South Africa in Namibia (South
West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opin-
ion, I.C.J. Reports 1971, p. 27, para. 40;Legality of the Threat or Use of Nuclear Weapons,
Advisory Opinion, I.C.J. Reports 1996 (I) , p. 234, para. 14; Legal Consequences of the

Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
I.C.J. Reports 2004 (I), p. 154, para. 40.

133opinion “represents its participation in the activities of the Organization,
22
and, in principle, should not be refused” .
23. Accordingly, the argument of a couple of participants in the present
advisory proceedings to the effect that the Court’s advisory opinion

would lack a useful purpose, appears to me wholly unfounded. The same
applies to the alleged lack of “practical effect” of the Court’s opinion:

this allegation simply begs the question. The Court’s jurisprudence con-
stante on the point at issue could be recalled in this connection .Inthe 23
cas d’espèce, it is the task of the Court to provide an opinion on the ques-

tion of the accordance with international law of Kosovo’s declaration of
independence; and it is for the General Assembly to draw its own con-
clusions, from the Court’s opinion, and to apply them to its further treat-

ment of the situation in Kosovo. In proceeding in this way, the ICJ is
contributing to the rule of law at international level, which, ever since the
2005 United Nations World Summit, has been attracting increasing inter-

est and attention, and since 2006 has become an important agenda item
(“The Rule of Law at the National and International Levels”) of the
24
United Nations General Assembly .
24. The next argument, with an apparent bearing on judicial “discre-
tion” or propriety, whereby the Court’s opinion would arguably have

“adverse effects on peace and security” in the region, likewise begs the
question. There is nothing new under the sun, and the Court itself has
already answered arguments of the kind in previous Advisory Opinions.

For instance, in its Advisory Opinion on the Legality of the Threat or
Use of Nuclear Weapons (1996), the ICJ stated:

“Ithas...beensubmittedthatareplyfromtheCourtinthiscase
might adversely affect disarmament negotiations and would there-

22 Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase,
Advisory Opinion, I.C.J. Reports 1950 ,p.71.
23
Thus, in its Advisory Opinion on the Western Sahara (I.C.J. Reports 1975, p. 12),
the ICJ pondered that nothing in the UN Charter, or in its Statute, limited the compe-
tence of the General Assembly to request an advisory opinion, or that of its own to give
an opinion, on legal questions relating to existing rights or obligations (ibid., p. 19,
para. 18). The opinion would provide the General Assembly with “elements of a legal
character relevant to its further treatment” of the subject-matter at issue (ibid., p. 37,
para. 72). Earlier on, in its Advisory Opinion on Reservations to the Convention on the
Prevention and Punishment of the Crime of Genocide (I.C.J. Reports 1951, p. 15), the ICJ
observed that the object of that request for an opinion was “to guide the United Nations
in respect of its own action” (ibid., p. 19). And half a decade ago, the ICJ stressed, as it
clearly ensued from its jurisprudence constante , that “Advisory Opinions have the purpose

of furnishing to the requesting organs the elements of law necessary for them in their
action”; Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory, Advisory Opinion, I.C.J. Reports 2004 (I) , p. 162, para. 60.

24 Cf. UN General Assembly resolution 61/39, of 18 December 2006; UN resolution 62/
70, of 6 December 2007; UN resolution 63/128, of 11 December 2008; UN resolution 64/
116, of 16 December 2009.

134 fore, be contrary to the interest of the United Nations. The Court is

aware that, no matter what might be its conclusions in any Opinion
it might give, they would have relevance for the continuing debate
on the matter in the General Assembly and would present an addi-

tional element in the negotiations on the matter. Beyond that, the
effect of the Opinion is a matter of appreciation.” (I.C.J. Reports
1996 (I), p. 237, para. 17.) 25

25. It is not the Court’s business to speculate on eventual effects of its
Advisory Opinions; in my view, it is rather for the Court to contribute, in
the faithful exercise of its advisory function, to the prevalence of the rule

of law in the conduction of international relations. This may well assist in
reducing the tension and the political controversy in the region at issue.
In the more distant past, there was a trend of opinion that favoured wide

discretion on the part of the Hague Court to deliver an advisory opinion
or not; it was followed by another trend of opinion which accepted that
discretion, but only exceptionally and in face of “compelling reasons”

(raisons décisives). A more enlightened trend of opinion discards discre26
tion, accepting only inadmissibility to protect judicial integrity .

26. The Court seems to have indulged in unnecessary confusion in
paragraph 29 of the present Advisory Opinion on Accordance with
International Law of the Unilateral Declaration of Independence in

Respect of Kosovo, in regrettably admitting to self-limit its advisory
function, and in ascribing to so-called “discretion” a dimension that it
does not have. It has confused discretion with judicial propriety, and it

has failed to stress the proactive posture that it has rightly adopted in
the United Nations era, in the exercise of its advisory function, as the
principal judicial organ of the United Nations (Article 92 of the United

Nations Charter), and as the ultimate guardian of the prevalence of the
rule of law in the conduct of international relations 27. By the same
token, it is somewhat disquieting to ﬁnd, in the unfortunate language of

25
Cf. also Western Sahara, Advisory Opinion, I.C.J. Reports 1975 , p. 37, para. 73.

26Cf. R. Kolb, “De la prétendue discrétion de la Cour internationale de Justice de
refuser de donner un avis consultatif”, in The International Legal System in Quest of
Equity and Universality — Liber Amicorum G. Abi-Saab (eds. L. Boisson de Chazournes
and V. Gowlland-Debbas), The Hague, Nijhoff, 2001, pp. 614-618, and cf. pp. 619-627.

27In its Advisory Opinion on Legal Consequences of the Construction of a Wall in the
Occupied Palestinian Territory (2004), the ICJ recalled that

“[t]he present Court has never, in the exercise of this discretionary power, declined to
respond to a request for an advisory opinion . . . Only on one occasion did the Court’s
predecessor, the Permanent Court of International Justice, take the view that it should
not reply to a question put to it(Status of Eastern Carelia, Advisory Opinion, 1923,
P.C.I.J., Series B, No. 5).” (I.C.J. Reports 2004 (I), pp. 156-157, para. 44.)

135paragraph 29, that the ghost of Eastern Carelia seems, like phoenix, to
have arisen from the ashes . . .

27. The Court’s advisory function is not a simple faculty that it may
utilize at its free discretion: it is a function, of the utmost importance ulti-
mately for the international community as a whole, of the principal judi-
cial organ of the United Nations. Discretion is for a political organ, like

the General Assembly or the Security Council, to exercise, also when
deciding to request an advisory opinion to the ICJ. This latter, when
seised of a matter — either a request for an advisory opinion, or a con-
tentious case — has a duty to perform faithfully its judicial functions,

either in advisory matters or in respect of contentious cases. It is not for
the Court to indulge in an appreciation of the opportunity of an advisory
opinion, and it is surprising to me that the Court should dispense so
much attention to this issue in the present Advisory Opinion (paras. 29-
48), to the point of singling out technicalities (in paragraphs 36 and 39, as

to the respective roles and faculties of the Security Council and the Gen-
eral Assembly) and of eluding a careful consideration of the factual back-
ground (cf. infra)ofthe grave humanitarian crisis in Kosovo , brought to
its attention by several participants in the course of the written and oral
phases of the present advisory proceedings.

28. After all, ours is the age of the reassuring multiplication of inter-
national tribunals, bearing witness of the acknowledgement of the pri-
macy of law over force. Ours is the age of the “jurisdictionalization” of
international law and relations, bearing witness of the improvements in

the modalities of peaceful settlement of disputes. Ours is the age of the
expansion of international jurisdiction , bearing witness to the advances of
the idea of an objective justice. Ours is the age of an ever-increasing
attention to the advances of the rule of law at both national and inter-
national levels, a cause which the United Nations as a whole is now com-

mitted to, particularly from 2006 onwards (cf. supra). To invoke and to
insist on “discretion” — rather discretionally — seems to me to overlook,
if not to try to obstruct, the course of evolution of the judicial function in
contemporary international law. The awareness of the contemporary and
reassuring phenomenon of jurisdictionalization has fortunately prevailed

at the end over undue politicization, underlining certain arguments exam-
ined by the Court, which should have been promptly discarded by it.

29. Turning to another related aspect, it seems furthermore clear to me

that the ICJ is fully entitled, if it so deems ﬁt, to reformulate the question
put to it by the request for an advisory opinion, so as to give it more
clarity. Thus, the alleged lack of clarity or certainty in the drafting of a
question cannot be invoked so as to deprive the Court of its jurisdiction.

Quite on the contrary, any uncertainty may require clariﬁcation or
rephrasing by the Court itself. In fact, over the decades, both the PCIJ

136and the ICJ have repeatedly observed that the wording of a request for

an advisory opinion did not accurately state the question of which the
Court’s opinion was being sought , or else did not correspond to the
29
“true legal question” under consideration . In one particular instance,
the ICJ noted that the question put to it was, “on the face of it, at once
30
infelicitously expressed and vague” .

30. Consequently, the Court has often been required to broaden, inter-
31
pret and even reformulate the questions put ; and it has accordingly
deemed it ﬁt to “identify the existing principles and rules”, to interpret

them and to apply them, thus offering a reply to “the question posed
based on law” . This disposes of the wholly unconvincing — if not inap-

propriate — argument that it would allegedly be “politically inappropriate”
for the ICJ to deliver the present Advisory Opinion. Such an argument
should simply not be raised before “the principaljudicial organ of the

United Nations” (Article 92 of the United Nations Charter), which can-
not attribute a political character to a request which is supposed to invite
33
it to undertake an essentially judicial task . The ICJ itself has pondered,
in this respect, that

“in situations in which political considerations are prominent, it may
be particularly necessary for an international organization to obtain

an advisory opinion from the Court as to the legal principles appli-
cable with respect to the matter under debate” . 34

31. Yet, another argument of the kind has been raised in the course of
the present advisory proceedings, namely, the lack of consent of Kosovo

to the jurisdiction of the Court, allegedly affecting this latter as a matter
of judicial propriety: the allegation was that the ICJ should refrain from
exercising its jurisdiction in the cas d’espèce, because the General Assem-

bly request concerns arguably a bilateral dispute between Kosovo and
Serbia in respect of which Kosovo has not consented to the exercise of

28
Cf. e.g., Interpretation of the Greco-Turkish Agreement of 1 December 1926 (Final
Protocol, Article IV), Advisory Opinion, 1928, P.C.I.J., Series B, No. 16 , pp. 14-16.
29 Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt,
Advisory Opinion, I.C.J. Reports 1980, pp. 87-89, paras. 34-36.
30 Application for Review of Judgement No. 273 of the United Nations Administrative
Tribunal, Advisory Opinion, I.C.J. Reports 1982 , p. 348, para. 46.
31
Cf. in addition to the aforementioned three Advisory Opinions, also Admissibility of
Hearings of Petitioners by the Committee on South West Africa, Advisory Opinion, I.C.J.
Reports 1956,p.25;and Certain Expenses of the United Nations (Article 17, para-
graph 2, of the Charter), Advisory Opinion, I.C.J. Reports 1962 , pp. 157-162.
32 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports
1996 (I), p. 233, para. 13; Legal Consequences of the Construction of a Wall in the Occu-
pied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I) , p. 153, para. 38.
33
Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter),
Advisory Opinion, I.C.J. Reports 1962 , p. 155.
34 Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt,
Advisory Opinion, I.C.J. Reports 1980, p. 87, para. 33.

137that jurisdiction. This argument also appears, in my view, unpersuasive

and groundless.
32. As is widely known, consent is a precondition for the exercise of
the Court’s contentious, not advisory, function. And it could not be other-
wise, as advisory opinions are intended for the orientation or guidance of

the United Nations and its organs. The ICJ itself has clariﬁed this aspect,
six decades ago, in its celebrated Advisory Opinion on the Interpretation
of Peace Treaties with Bulgaria, Hungary and Romania, First Phase

(1950); in its own words,

“The consent of States, parties to a dispute, is the basis of the
Court’s jurisdiction in contentious cases. The situation is different in
regard to advisory proceedings even where the Request for an Opin-

ion relates to a legal question actually pending between States. The
Court’s reply is only of an advisory character: as such, it has no
binding force. It follows that no State, whether a Member of the
United Nations or not, can prevent the giving of an advisory opinion

which the United Nations considers to be desirable in order to
obtain enlightenment as to the course of action it should take. The
Court’s Opinion is given not to the States, but to the organ which is

entitled to request it; the reply of the Court . . ., in principle, should
not be refused.” 35(I.C.J. Reports 1950, p. 71.)

In the present instance, the object of the request for an advisory opinion
of the ICJ is to enlighten the General Assembly as to the accordance, or
otherwise, with international law, of the declaration of independence of

Kosovo by its authorities.
33. It should, furthermore, be kept in mind that, whilst the prior con-
sent of States has always been a hurdle to the exercise of the ICJ’s func-
tion in settling contentious cases, the opposite occurs in the exercise of its

advisory function: it is not at all conditioned by the prior consent of
States. Here, the ICJ has a means not only to clarify the questions sub-
mitted to it for advisory opinions, but also to contribute thereby to the

progressive development of international law. Three remarkable exam-
ples to this effect lie in its ground-breaking Advisory Opinions in Repara-
tion for Injuries Suffered in the Service of the United Nations , of 1949; in
Reservations to the Convention on the Prevention and Punishment of the

35
The ICJ followed this same reasoning, half a decade ago, in its previous Advisory
Opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory (2004). The Court, after examining “the opposition of certain interested States
to the request by the General Assembly” for an advisory opinion on the subject-matter at
issue, “in the context of issues of judicial propriety”, pondered that:
“The object of the request before the Court is to obtain from the Court an opinion
which the General Assembly deems of assistance to it for the proper exercise of its
functions. The opinion is requested on a question which is of particularly acute con-
cern to the United Nations, and one which is located in a much broader frame of
reference than a bilateral dispute.” (I.C.J. Reports 2004 (I), p. 159, para. 50.)

138Crime of Genocide, of 1951; and in Legal Consequences for States of the

Continued Presence of South Africa in Namibia (South West Africa)
notwithstanding Security Council Resolution 276 (1970) , of 1971.

34. In sum and conclusion on the preliminary question under con-
sideration, none of the arguments raised in the course of the present
advisory proceedings, to try to persuade the ICJ to inhibit itself and to

refrain from performing its advisory function in relation to the declara-
tion of independence of Kosovo by its authorities, resists a closer exami-
nation. The Court’s jurisdiction is fully established in the present

matter (cf. supra), and there is no “compelling reason” for the Court not
to exercise it. There is not much else to be clariﬁed in this respect. My
conclusion on this point is that it is not at all for the Court to act
“discretionally”; the Court has to perform its advisory function, and

ought to deliver, as it has just done, the requested Advisory Opinion, thus
fulﬁlling faithfully its duties as the principal judicial organ of the United
Nations. In turn, the Court should have, to my understanding, devoted
much more attention than it has done, in the present Advisory Opinion,

to the factual context — in particular the factual background — of the
matter at issue.

III. THE FACTUAL B ACKGROUND AND C ONTEXT
OF THE Q UESTION P UT TO THE C OURT

35. In the present Advisory Opinion on Accordance with Interna-

tional Law of the Unilateral Declaration of Independence in Respect of
Kosovo, the Court pursued a minimalist approach to the factual
background of the question put to it by the General Assembly, con-
centrating its attention on Kosovo’s declaration of independence of

17 February 2008, and making abstraction of its causes, lying in
the tragic succession of facts of the prolonged and grave humanitarian
crisis of Kosovo , which culminated in the adoption of Security Coun-
cil resolution 1244 (1999). As a Member of the Court, I feel obliged

to examine that factual background in the present separate opinion,
given the fact that the Court appears not to have found it neces-
sary to do so, namely, to consider carefully Kosovo’s grave humani-
tarian crisis . This issue, to which I attach great relevance, was, after all,

brought repeatedly to the attention of the Court, in the course of the
present advisory proceedings, by several participants, in both the
written and oral phases. Perhaps the Court, like humankind, “cannot
36
bear very much reality” .

36
To paraphrase Thomas Becket’s soliloquy in Canterbury, his premonition in face of

139 36. In addressing, accordingly, the factual background and the context
of the issue submitted by the General Assembly’s request to the Court for

the present Advisory Opinion, may I draw attention to the fact that, on
previous occasions, somewhat distinctly, the ICJ deemed it ﬁt to dwell
carefully on the whole range of facts which led to the issues brought to its
cognizance for the purpose of the requested advisory opinions. Thus, in

its célèbre Advisory Opinion of 1971 on the Legal Consequences for
States of the Continued Presence of South Africa in Namibia (South
West Africa) notwithstanding Security Council Resolution 276 (1970) ,
the ICJ stated that:

“It is undisputed, and is amply supported by documents annexed
to South Africa’s written statement in these proceedings, that the
ofﬁcial governmental policy pursued by South Africa in Namibia is
to achieve a complete physical separation of races and ethnic groups

in separate areas within the Territory. The application of this policy
has required, as has been conceded by South Africa, restrictive
measures of control ofﬁcially adopted and enforced in the Territory
by the coercive power of the former Mandatory. These measures

establish limitations, exclusions or restrictions for the members of
the indigenous population groups in respect of their participation in
certain types of activities, ﬁelds of study or of training, labour or
employment and also submit them to restrictions or exclusions of
residence and movement in large parts of the Territory.

Under the Charter of the United Nations, the former Mandatory
has pledged itself to observe and respect, in a territory having an
international status, human rights and fundamental freedoms for all

without distinction as to race. To establish instead, and to enforce,
distinctions, exclusions, restrictions and limitations exclusively based
on grounds of race, colour, descent or national or ethnic origin
which constitute a denial of fundamental human rights is a ﬂagrant
violation of the purposes and principles of the Charter.” (I.C.J.

Reports 1971, p. 57, paras. 130-131.)

37. Likewise, in its Advisory Opinion of 1975 on the Western Sahara,
the ICJ examined the matter submitted to its cognizance “in the context

of such a territory and such a social and political organization of the
population” (I.C.J. Reports 1995, p. 42, para. 89), which led it to a
detailed factual examination (ibid., pp. 42-49, paras. 90-107). And, once
again, in its Advisory Opinion of 2004 on the Legal Consequences of the

Construction of a Wall in the Occupied Palestinian Territory , before

the imminence of his sacriﬁce; cf. T. S. Eliot, “Murder in the Cathedral” (1935), in The
(reprint), pp. 208-209.s 1909-1950 , New York/London, Harcourt Brace & Co., 1980

140determining the principles and rules of international law which were of
relevance to assess the legality of the measures taken by Israel, the Court

described extensively the works that Israel constructed or was planning
to construct, basing itself on the report of the Secretary-General. The
Advisory Opinion gave ample detail of the effect of those works for the
Palestinians (I.C.J. Reports 2004 (I), pp. 168-171, paras. 79-85). And
the ICJ added that, for “developments subsequent to the publication” of

the report of the Secretary-General, it would refer to complementary
information contained in the Written Statement of the United Nations,
which was intended by the Secretary-General to supplement his report
(ibid., p. 168, para. 79).

38. On another occasion, in its Judgment of 19 December 2005 in the
case concerning Armed Activities on the Territory of the Congo (Demo-
cratic Republic of the Congo v. Uganda), the ICJ, after a careful analysis
of the factual background of the case and the evidence produced before
it, considered that

“it has credible evidence sufﬁcient to conclude that the UPDF
troops committed acts of killing, torture and other forms of inhu-

mane treatment of the civilian population, destroyed villages and
civilian buildings, failed to distinguish between civilian and military
targets and to protect the civilian population in ﬁghting with other
combatants, incited ethnic conﬂict and took no steps to put an end
to such conﬂicts, was involved in the training of child soldiers, and

did not take measures to ensure respect for human rights and inter-
national humanitarian law in the occupied territories.” (I.C.J.
Reports 2005, p. 241, para. 211.)

In the same 2005 Judgment in the case opposing the Democratic Repub-
lic of the Congo to Uganda, the Court added that:

“the actions of the various parties in the complex conﬂict in the
DRC have contributed to the immense suffering faced by the Con-

golese population. The Court is painfully aware that many atrocities
have been committed in the course of the conﬂict” (ibid., p. 245,
para. 221).

39. On yet another occasion, in its Order of 10 July 2002 in the case
concerning Armed Activities on the Territory of the Congo (New
Application: 2002) (Democratic Republic of the Congo v. Rwanda),
the ICJ, taking account of the factual context, declared itself “deeply

concerned by the deplorable human tragedy, loss of life, and enormous
suffering in the east of the Democratic Republic of the Congo resulting
from the continued ﬁghting there” ( I.C.J. Reports 2002 , p. 240,
para. 54). Likewise, in its Order on Provisional Measures of 2 June 1999

in the cases concerning the Legality of Use of Force , the ICJ noted that
it was

141 “deeply concerned with the human tragedy, the loss of life, and the

enormous suffering in Kosovo which form the background of the
present dispute, and with the continuing loss of life and human suf-
fering in all parts of Yugoslavia” .37

On all the aforementioned occasions, as one could well expect, the ICJ
did not hesitate to dwell upon the factual background of the cases and
matters brought into its cognizance, before pronouncing on them.
40. It looks thus rather odd to me that, in the present Advisory Opin-

ion on Accordance with International Law of the Unilateral Declaration
of Independence in Respect of Kosovo , the ICJ, after having dedicated —
as already pointed out — so much attention to the usual points raised

before it, in its practice, on so-called judicial “discretion” — as if appar-
ently attempting to justify the delivery of the present Advisory Opin-
ion — has given only brief and cursory attention to the factual back-
ground of the question put to it by the General Assembly for the purpose

of the present Advisory Opinion. Yet, it is precisely the humanitarian
catastrophe in Kosovo that led to the adoption of Security Council reso-
lution 1244 (1999), and the subsequent events, that culminated in the dec-
laration of independence of 17 February 2008 by Kosovo’s authorities.

41. I thus consider Kosovo’s humanitarian catastrophe as deserving of
careful attention on the part of the Court, for the purpose of the present
Advisory Opinion. The Court should, in my view, have given explicit

attention to the factual background and general context of the request
for its Opinion. After all, the grave humanitarian crisis in Kosovo
remained, throughout the decade 1989-1999, not only a continuing threat
to international peace and security — till the adoption of Security Coun-

cil resolution 1244 (1999) bringing about the United Nations interna-
tional administration of territory — but also a human tragedy marked by
the massive inﬂiction of death, serious injuries of all sorts, and dreadful
suffering of the population. The Court should not, in my view, have lim-

ited itself, as it did in the present Advisory Opinion, to select only the few
reported and instantaneous facts of the circumstances surrounding the
declaration of independence by Kosovo’s authorities on 17 February 2008
and shortly afterwards, making abstraction of the factual background

which led to the adoption of Security Council resolution 1244 (1999) and,
one decade later, of that declaration of independence.

42. In effect, that factual background was to a great extent eluded by
the ICJ. In the present Advisory Opinion, it appeared satisﬁed to con-

37Legality of Use of Force (Yugoslavia v. Belgium), Provisional Measures, Order of
2 June 1999, I.C.J. Reports 1999 (I) , p. 131, para. 16, and corresponding obiter dicta in
the other Legality of Use of Force cases (1999).

142centrate on the events of 2008-2009 , and, as to the grave humanitarian

crisis which preceded and accounted for them, the Court has only brieﬂy
and elliptically referred to that crisis in Kosovo, and to the “end to vio-
lence and repression” 39 in Kosovo, without any further concrete refer-

ences to the facts which constituted that prolonged humanitarian crisis.
The Court did so, notwithstanding the fact that such factual background
was brought to its attention, in detail, by several participants (cf. infra),

in the course of the present advisory proceedings, during both the written
and oral phases.

43. Moreover, in my view, neither Security Council resolution 1244
(1999), nor Kosovo’s declaration of independence of 17 February 2008,
can be properly considered of making abstractions of their factual back-

ground and context. As to their factual background, it may be recalled
that, prior to the irruption and aggravation of the crisis of Kosovo (in the
late eighties and early nineties), the constitutional structure of the Social-

ist Federal Republic of Yugoslavia (SFRY) encompassed six Republics
(the Socialist Republics of Bosnia and Herzegovina, Croatia, Macedonia,
Montenegro, Serbia and Slovenia) and two Autonomous Provinces (Kos-

ovo, and Vojvodina, within the Socialist Republic of Serbia). Under the
1974 Constitution of the Socialist Federal Republic of Yugoslavia, the
Socialist Autonomous Province of Kosovo had a “very high degree of

autonomy”; in fact, the “broad powers” granted by the 1974 Constitu-
tion of the SFRY resulted in a “de facto equality” between the aforemen-
tioned Republics and Autonomous Provinces . 40

44. In 1989, as a result of changes introduced into the Constitution of
the Republic of Serbia, Kosovo’s status of Autonomous Province was
41
revoked, which led to much tension and Kosovo’s prompt reaction to
seek independence. The humanitarian crisis broke up, and the period
following 1990 was marked by systematic discriminatory measures, and

successive and serious violations of human rights, perpetrated in the
earlier years by Serbian authorities against a large segment of the Kosovo

Albanian population. In the late nin42ies the crisis worsened, with the hein-
ous practice of ethnic cleansing and grave violations of human rights
and international humanitarian law.

45. In the course of the present advisory proceedings (written and oral
phases) before this Court, several participants were concerned with char-

38
Sections III and IV of the present Advisory Opinion.
39Cf. paragraph 58 of the present Advisory Opinion.
40Cf. inter alia, R. Muharremi, “Kosovo’s Declaration of Independence: Self-Deter-
mination and Sovereignty Revisited”, 33 Review of Central and East European Law
(2008), pp. 406-407.
41In declaring itself, by its Assembly, in July 1990, an independent Republic within
Yugoslavia.
42Cf. M. Grmek, M. Gjidara and N. Simac (eds.), Le nettoyage ethnique (documents
historiques sur une idéologie serbe) , Paris, Fayard/Ed. du Seuil, 2002, pp. 43-353.

143acterizing the situation of Kosovo as sui generis, or otherwise. Under-

lying this concern is the preoccupation with the creation of a precedent,
whatever its outcome might be. One can hardly escape from the acknowl-
edgement that each case is a case, engulfed as it is in its own history.
Some cases may possess the same historical features (such as the decolo-
nization cases of the late sixties, seventies and early eighties), thus con-

forming to a pattern, in the historical development of the Law of the
United Nations. Others may appear rather unique, also in the framework
of the Law of the United Nations .
46. Thus, the history of each case is to be kept carefully in mind. And

each case has a dynamic of its own. Accordingly, Kosovo’s declaration of
independence of 2008 cannot, in my view, be examined in abstracto,orin
isolation, but rather in relation to its factual background and its historical
context, which explain it. In the same line, the 2008 declaration of inde-

pendence should be considered as a whole. The humanitarian crisis of
Kosovo during the decade of 1989-1999 appeared related to the historical
process of the dissolution of the former Yugoslavia. Its social facts
resisted successive attempts of peaceful settlement, did not abide by time-
43
limits , nor were restrained by deadlines. The history of each case is not
limited to the successive attempts of its peaceful settlement: it also com-
prises its causes and epiphenomena, which have likewise to be taken care-
fully into account.

47. Secondly, the grave humanitarian crisis, as it developed in Kosovo
during the nineties, was marked by a prolonged pattern of successive
crimes against civilians, by grave violations of international humanitar-
ian law and of international human rights law, and by the emergence of

one of the most horrible crimes of our times, that of ethnic cleansing.
This latter entered the vocabulary of contemporary international law
through the prompt reaction of the former United Nations Commission
on Human Rights, which, as from August 1992, began to utilize the

expression in relation speciﬁcally to the tragic conﬂicts that began to
plague the former Yugoslavia. From late 1992 onwards, the expression
“ethnic cleansing” was to appear systematically in other United Nations
documents, including resolutions of the General Assembly and the Secu-

rity Council.
48. I well remember the prompt repercussions that the news of those
crimes had, a couple of hundreds of kilometres away, in Vienna, in the
course of the II World Conference on Human Rights in Vienna, where I

was working (in June 1993), in its Drafting Committee. The decision that
the World Conference had taken not to single out any situation was
promptly abandoned, and reversed, given the horrible news that was

43Unlike what the Badinter Commission would have liked to make one believe (having
attempted in vain to do so). Cf. on this particular point, P. Radan, The Break-up of Yugo-
slavia and International Law , London/New York, Routledge, 2002, pp. 247-253.

144arriving from the former Yugoslavia: it became the general feeling that a

United Nations World Conference on Human Rights that would make
abstraction of that general situation, would simply lose its raison d’être.
This explains the adoption of — besides the 1993 Vienna Declaration and

Programme of Action, and the Final Report of the Conference — of two
resolutions, on Bosnia and Herzegovina and on Angola, respectively,
both then plagued by armed conﬂicts.

49. Thirdly, another element characteristic of the humanitarian crisis
in Kosovo was the decision taken by the UN Security Council 1244
(1999), adopted on 10 June 1999, to place Kosovo under a UN transi-

tional international administration — while recognizing Serbia’s territo-
rial integrity — pending a ﬁnal determination of its future status. Ever
since, Kosovo has withdrawn from Serbia’s “domestic jurisdiction”,

having become a matter of legitimate international concern. The Law of
the United Nations was the law that became applicable to its status for
the purposes of its international administration. The unique character of
the situation in Kosovo was pointed out also by the Special Envoy

(Mr. M. Ahtisaari, appointed on 14 November 2005) of the United
Nations Secretary-General, in its Report on Kosovo’s Future Status:
“Kosovo is a unique case that demands a unique solution. It does not
44
create a precedent for other unresolved conﬂicts.” (Para. 15.)
50. Looking back to the causes and epiphenomena of Kosovo’s
humanitarian crisis (which the present Advisory Opinion of the Court

just brieﬂy refers to, while avoiding any examination whatsoever of the
relevant facts which led to it), the deprivation of Kosovo’s autonomy
(previously secured by the Constitution of 1974) in 1989, paved the way
for the cycle of systematic discrimination, utmost violence and atrocities

which victimized large segments of the population of Kosovo, over one
decade (1989-1999), leading to the adoption of a series of resolutions by
the main political organs of the United Nations, and culminating in the

adoption of Security Council resolution 1244 (1999).
51. For the examination of a humanitarian crisis such as that of Kos-
ovo, the endeavours of its friendly settlement are surely relevant , but, in

order to move from Security Council resolution 1244 (1999) to address
Kosovo’s declaration of independence of 17 February 2008, one needs to

44
Likewise, the Council of the European Union reiterated, on 18 February 2008, its
view that the situation of Kosovo constituted a sui generis case. Throughout those years,
the general picture in the whole region changed remarkably.
45Efforts and initiatives taken, at distinct stages of the crisis of Kosovo, to arrive at a
peace settlement, are of course to be taken into account by the ICJ, together with the
causes of the conﬂict. One may recall, in this connection, as to the endeavours of peace
settlement, among others, the negotiations engaged into by the Contact Group (1998-
1999), the Accords resulting from the Rambouillet Conference (1999), Security Council
resolution 1244 (1999) itself, the Constitutional Framework for Provisional Self-Govern-
ment of Kosovo (promulgated by the Special Representative of the UN Secretary-General
in May 2001 and with implementation completed by the end of 2003), the Troika talks

145keep in mind the causes of the preceding conﬂict, which lie in the

planned, long-standing and brutal repression of large segments of the
population of Kosovo (infra). Friendly settlement efforts, in my view,
cannot thus be approached in a “technical”, isolated way, detached from

the causes of the conﬂict. It is thus important, as already pointed out, to
have clearly in mind the whole context and factual background of the
question put to the ICJ by the General Assembly for the present Advi-
sory Opinion (cf. infra).

52. Before proceeding to an examination of that series of resolutions
altogether (which the ICJ has likewise avoided doing, concentrating spe-
ciﬁcally on Security Council resolution 1244 (1999)), I deem it necessary

to insert the matter into the larger framework of the Law of the United
Nations. To that end, I shall start by recalling pertinent antecedents
linked to the advent of international organizations — which cannot pass

unnoticed here — in their growing attention to the needs and aspirations
of the “people” or the “population”.

IV. THE ADVENT OF INTERNATIONAL O RGANIZATIONS
AND THE GROWING A TTENTION TO THE N EEDS AND A SPIRATIONS
OF THE “P EOPLE” OR THE “P OPULATION ”

53. The advent of international organizations not only heralded the
growing expansion of international legal personality (no longer a

monopoly of States), but also shifted attention to the importance of ful-
ﬁlling the needs and aspirations of people. In this sense, international
organizations have contributed to a return to the droit des gensi the
framework of the new times, and to a revival of its humanist vision, faith-

ful to the teachings of the “founding fathers” of the law of nations
(cf. infra). That vision marked its presence in past experiments of the
mandates system, under the League of Nations, and of the trusteeship

system, under the United Nations, as it does today in the United Nations
initiatives of international territory administration.

1. League of Nations: The Mandates System

54. The mandates system emerged from human conscience, as a reac-

tion to abuses of the past, and in order to put an end to them: the

(2007) and the Report on Kosovo’s Future Status of the Special Envoy of the UN
Secretary-General (2007). For recent accounts of the successive endeavours of peaceful
settlement, cf. e.g., H. H. Perritt Jr., The Road to Independence for Kosovo — A Chronicle
of the Ahtisaari Plan, Cambridge University Press, 2010, pp. 1-2,osovo:Ker-LindsayK
The Path to Contested Statehood in the Balkans , London/New York, I. B. Tauris, 2009,
pp. 1-126.

146annexation of colonies, the policy of acquisition of territory (as an ema-

nation and assertion of State sovereignty) practised by the great powers
of the epoch, the acquisition and exploitation of natural resources. All
such abusive practices used to occur in ﬂagrant and gross disregard to the
already adverse conditions of living, and defencelessness, of the native

peoples. The reaction to such abuses found expression in Article 22 of the
Covenant of the League of Nations, which shifted attention to the
peoples to be assisted and protected.

55. Article 22 (1) and (2) of the Covenant left it clear that, under the
emerging mandates system, the mandatory powers were entrusted with
the “well-being and development”, and the “tutelage”, of the peoples

placed thereunder. State sovereignty was alien to the mandates system: it
had no effect on, or application in, its realm. State sovereignty was
clearly dissociated from the mandataries, duties and responsibilities
towards the mandated peoples, as a “sacred trust of civilization”, to pro-

mote the well-being and development of those peoples.

56. A new relationship was thus created in international law, replac-

ing, in the framework of the mandates system, the old and traditional
conception of State sovereignty by the governance of peoples, pursuing
their own interests, and training them towards autonomy and self-
government. In the thoughtful words of Norman Bentwich in 1930 (then

Attorney-General of Palestine, one of the mandated territories),

“The mandatory is a protector with a conscience and — what is
more — with a keeper of his conscience, required to carry on the

government according to deﬁnite principles, to check the strong and
protect the weak, to make no proﬁt and to secure no privilege.” 46

57. In securing the well-being and development of the peoples con-
cerned, mandatory powers were required to assure their freedom of con-
science and the free exercise of all religions and forms of worship. The
dual nature of mandatory powers became evident, ensuing from Arti-

cle 22 of the Covenant itself: ﬁrst, and foremost, they had duties vis-à-vis
the peoples under guardianship (a personal relationship); and, secondly,
they had duties towards the international society (of the epoch) at large,
to the League of Nations as supervisor of the mandates system , and, 47

ultimately, to humankind as a whole.
58. Yet, like all juridical instruments, mechanisms and institutions, the
mandates system was a product of its time. We all live within time. It

made clear that it was necessary, from then onwards, furthermore, to

46
47N. Bentwich, The Mandates System, London, Longmans, 1930, p. 5.
Cf. ibid., pp. 7-9 and 16-20.

147avoid stigmas of the past — source of much debate in those days and

thereafter — such as the use of certain terms (like “tutelage”, or even
“guardianship” itself), and the attempted classiﬁcation of degrees of civi-
lization (as in the list of mandates A, B and C). In the following experi-
ment of international organizations, already in the League of Nations
era — that of the trusteeship system — attention became focused on self-

determination of peoples.

2. United Nations: The Trusteeship System

59. In the United Nations international trusteeship system, under

Chapters XII and XIII of the Charter, attention remained focused on the
peoples concerned. There was, in addition, Chapter XI, on non-self-
governing territories: thereunder, Article 73 reiterated the notion of
“sacred trust”, in the protection of the peoples concerned “against

abuses”, and in the progressive development of their “self-government”
pursuant to their “aspirations”. As to the trusteeship system itself (Chap-
ter XII), Article 76 listed its basic objectives, namely:

“(a) to further international peace and security;
(b) to promote the political, economic, social, and educational

advancement of the inhabitants of the trust territories, and
their progressive development towards self-government or
independence as may be appropriate to the particular circum-
stances of each territory and its peoples and the freely

expressed wishes of the peoples concerned, and as may be pro-
vided by the terms of each trusteeship agreement;

(c) to encourage respect for human rights and for fundamental

freedoms for all without distinction as to race, sex, language,
or religion, and to encourage recognition of the independence
of the peoples of the world; and
(d) to ensure equal treatment in social, economic, and commercial
matters for all Members of the United Nations and their

nationals, and also equal treatment for the latter in the admin-
istration of justice . . .”

60. It ensues from those objectives, from the letter and spirit of their
formulation in Article 76 of the UN Charter, that the UN trusteeship
system was devised and put into practice, in line with natural law think-
ing, in order to secure the welfare of the inhabitants of trust territories,
48
and to move towards their self-government or independence . In foster-
ing the social development of the inhabitants of trust territories, the trus-
teeship system stimulated the consciousness of their rights; furthermore,

48Cf. to this effect, e.g., C. E. Toussaint, The Trusteeship System of the United
Nations, London, Stevens, 1956, pp. 5, 21, 29, 248, 251 and 253.

148it kept in mind the common interests — of present and future genera-
49
tions — of the populations of those territories . Furthermore, it aimed
at enabling such populations to achieving the capacity to become inde-
pendent, in fulﬁlment of their own aspirations, so as to secure the equal-
50
ity of treatment to everyone .

61. This outlook has projected itself into contemporary UN experi-

ments of international administration of territory. The humanist legacy
of past experiments of international organizations to present-day UN

initiatives of international administration of territory (cf. infra) cannot
pass unnoticed here. Former experiments of the League of Nations (the
mandates system) and of the United Nations (the trusteeship system, in

addition to the regime of non-self-governing territories) were devised, and
put into operation, as human conscience awakened to the need to do so,
in order to put an end to abuses against human beings, and to prevent

the recurrence of abuses of the past.

3. International Administration of Territory

62. Territorial administration exercised by international organizations

(rather than foreign States) has also historical antecedents: for example,
in the League of Nations era, the Free City of Danzig (1920-1939), and
the Saar (German Saar Basin, 1920-1935), followed, in the United Nations

era, by the UN Council for Namibia (established in 1967), and UN-
performed administrative functions in Cambodia (1991-1992). Three
decades after the creation of the UN Council for Namibia, contemporary

experiments of UN international administration of territory began to
pursue likewise a people-centered outlook, in a rather proactive way, to
put an end to abuses and to correct mistakes that affected the
51
population .

63. The cases of Kosovo and East Timor serve as pertinent illustra-
tions: the roles of UNMIK and UNTAET have been unique, turned as
they have been to the aftermath of intra-State, rather than inter-State
52
conﬂicts . As from the nineties, as well known, UN peace operations

49
Cf. to this effect, C. V. Lakshmi-Narayan, Analysis of the Principles and System of
International Trusteeship in the Charter (thesis), Geneva, University of Geneva/IUHEI,
1951, pp. 131, 133, 139-140, 145 and 153.
50Cf. to this effect, Jean Beauté, Le droit de pétition dans les territoires sous tutelle ,
Paris, LGDJ, 1962, pp. 14-15, and cf. pp. 12-13.
51R. Wilde, “From Danzig to East Timor and Beyond: The Role of International
Territorial Administration”, 95 American Journal of International Law (2001), pp. 586,
592-593, 599-600 and 605.
52M. Bothe and T. Marauhn, “UN Administration of Kosovo and East Timor:
Concept, Legality and Limitations of Security Council-Mandated Trusteeship Adminis-

149began to engage themselves in post-conﬂict reconstruction 53 and peaceful

State-building, as from a people-centered perspective, attentive to the
creation and preservation of public participation. This applies even more
forcefully in cases (like that of Kosovo) where the population was sub-

jected to successive brutalities, for a prolonged period of time, on the
part of the former “sovereign” authorities.

64. Prolonged oppression stresses the pressing need of safeguarding

the rights of the inhabitants, and this again brings to the fore the notion
of trusteeship, this time related to the contemporary experiments of
international administration of territory 5. In the UN World Summit of

September 2005, the former UN Trusteeship Council came indeed to the
end of its days, replaced as it was by the UN Peacebuilding Commission,
but the basic idea of trusteeship seems to have survived in the new con-
55
text . It is thus not surprising to ﬁnd that, out of a context of utmost
violence such as that of Kosovo in the decade of 1989-1999, Security
Council resolution 1244 (1999) emerged, followed by the goals of self-

government and UN-supervised independence pursued by the victimized
population.

4. The Recurring Concern with the “People”

or the “Population”

65. It is not surprising that, in the times of the experiments of territories

under mandate or in that of trust territories, considerable attention
was dispensed to “territory”. Yet, the considerable development of
international law in our times, assists us, in current-day rethinking of those

juridical institutions, to identify an element, in my view, of greater tran-
scendence in those juridical institutions: that of the care with thecondi-
tions of living of the “people” or the “population”. People and territory —

regarded as two of the constitutive elements of statehood (added to the
normative system) — go together; yet, when placed in balance, to paraphrase

tration”, in Kosovo and the International Community — A Legal Assessment (ed. Ch. Tom-
uschat), The Hague, Kluwer, 2002, pp. 223, 233, 236 and 239, and cf. p. 242.
53Cf. B. Boutros-Ghali, An Agenda for Peace (With the New Supplement) , 2nd ed.,

Ne54York, United Nations, 1995, pp. 61-64.
T. B. Knudsen, “From UNMIK to Self-Determination: The Puzzle of Kosovo’s
Future Status”, in Kosovo between War and Peace — Nationalism, Peacebuilding and
International Trusteeship (eds. T. B. Knudsen and C. B. Laustsen), London, Routledge,
2006, pp. 158-159 and 163-165, and cf. p. 156; and cf. T. B. Knudsen and C. B. Laustsen,
“The Politics of International Trusteeship”, in ibid., pp. 10 and 16.
55Cf. to this effect, R. Wilde, International Territorial Administration — How Trus-
teeship and the Civilizing Mission Never Went Away , Oxford University Press, 2008,
pp. 321-323, 325, 344-346, 349, 379-380, 382, 384, 386, 399, 415-416, 444 and 459; and
cf. also G. Serra, “The International Civil Administration in Kosovo: A Commentary on
Some Major Legal Issues”, 18 Italian Yearbook of International Law (2008), p. 63.

150a Judge of the Hague Court of the past, “it is for the people to determine the
56
destiny of the territory and not the territory the destiny of the peo.le”
66. This leads us to consider a key aspect which was insufﬁciently
singled out in the past, despite its great relevance, and which remains, in
my view, of considerable importance in the present, namely, the afore-

mentioned conditions of living of the population . People and territory
go together, but the emphasis is shifted from the status of territory to
the needs and aspirations of people. It is this element which, in my per-

ception, provides the common denominator, in an inter-temporal dimen-
sion, of the experiments of mandates, trust territories and contemporary
international administration of territories. Those juridical institutions —
each one a product of its time — were conceived and established, ulti-

mately, to address, and respond to, the needs (including protection) and
aspirations of peoples, of human beings.

V. B ASIC CONSIDERATIONS OF H UMANITY IN THE T REATMENT OF

PEOPLES UNDER THE L AW OF N ATIONS

67. Over the last decades, attempts have thus been made to character-

ize the role of international organizations in the aforementioned experi-
ments turned to the treatment of the “people” or the “population” (the
mandates and trusteeship systems, and the international administration

of territory). If a common denominator of such characterization in rela-
tion to distinct experiments can be detected, it lies in the basic considera-
tions of humanity which permeates them all. Such considerations go well
beyond the classical focus on private law analogies.

1. Private Law Analogies

68. In assessing the growing experience of international organizations
with experiments of the kind of the mandates system (in the League of

Nations era), and the trusteeship system (in the United Nations era), fol-
lowed by that of the contemporary international administration of terri-
tories, there has been an effort, on the part of expert writing, to situate

them in the conceptual universe of law and identify therein their origins.
To this end, there was a tendency, especially in studies by authors of
common law formation, to resort to private law analogies, in particular
with regard to the mandates and trusteeship systems.

69. In addressing them, most legal scholars appeared satisﬁed to iden-
tify such private law analogies, without feeling the need to go deeper

56Western Sahara, Advisory Opinion, I.C.J. Reports 1975 , separate opinion of Judge
Dillard, p. 122.

151into the international legal doctrine of a more distant past 57. Thus,

“mandate” was identiﬁed as deriving from the mandatum, a consensual
contract in Roman law; the beneﬁciary was a third party. “Trust” and
“tutelage” had roots in the tutela of Roman law, a sort of guardianship
of infants; this disclosed much uniformity in legal systems, as disclosed

by the English trust, to some extent a descendant of the ﬁdeicommissum
of Roman law (in “ﬁduciary” relations). In any case, a new relationship
was thereby created, in the mandates and trusteeship systems, on the

basis of conﬁdence (the “sacred trust”, infra) and, ultimately, human
conscience.

70. What ultimately began to matter was the well-being and human

development of the population, of the inhabitants of mandated and trust
territories. In the infancy of those experiments under international organi-
zations, it was clearly pointed out by Quincy Wright, for example, that

mandates — under the League of Nations mandates system — were thus
intended to evade the notion of absolute territorial sovereignty, which
became “unsuited” to the international society of the time, and were
further intended to give “legal protection” to newly arisen needs, namely,

those of “the mandated peoples”, by application of those private law
analogies (supra); the mandatory, tutor or trustee had “duties rather
than rights” .8

2. The Central Position of Peoples in the Origins of the Law of
Nations (Droit des Gens)

71. Yet, however clarifying an analysis of the kind may be (no one
would deny it), it would remain incomplete if not accompanied by an

examination of the teachings of the so-called “founding fathers” of the
law of nations (le droit des gens). This latter is remarkable by its essen-
tially humanist outlook — which is the one I have always espoused.

Human conscience soon awakened, and reacted to the news of atrocities
perpetrated at international level, in the epoch of formation of the jus
gentium (already detached from its origins in Roman law), the droit des
gens (derecho de gentes) . The attention was turned to the victims, the

people victimized by the violence and cruelty of power-holders of the
time. Peoples assumed a central position in the early days of the emer-
gence of the droit des gens.

72. Thus, as early as in the mid-sixteenth century, in his memorable
account of the cruel destruction of the Indias (1552), Bartolomé de Las
Casas, invoking the recta ratio and natural law, boldly denounced the

57For a notable exception, going back to the thinking of the Spanish theologians of the
sixteenth century (F. de Vitoria and B. de Las Casas), cf. R. N. Chowdhuri, International
Mandates and Trusteeship Systems — A Comparative Study , The Hague, Nijhoff, 1955,
pp. 13, 16-18 and 20-22.
58Quincy Wright, Mandates under the League of Nations , Chicago, University of Chi-
cago Press, 1930, pp. 389-390, and cf. pp. 375-378, 382-386 and 387.

152massacres and the destruction of the villages, of the inhabitants of the
59
Indias, perpetrated with impunity by the colonizers . Despite the fact
that the victims were totally innocent , not even women and children
and elderly persons were spared by the cruelty and violence of those who

wanted to dominate them, at the end killing them all; in some regions the
whole population was exterminated . The violence was characterized by

its inhumanity and extreme cruelty; notwithstanding, injustice pre-
vailed . But the reaction of the droit des gens emerged therefrom.

3. The Civitas Maxima Gentium in the Vision of the
“Founding Fathers” of the Law of Nations

73. The ideal of the civitas maxima gentium was soon to be cultivated
and propounded in the writings of the so-called “founding fathers” of

international law, namely, the célèbres Relecciones Teológicas (1538-
1539), above all the De Indis — Relectio Prior , of Francisco de Vitoria;

the treatise De Legibus ac Deo Legislatore (1612), of Francisco Suárez;
the De Jure Belli ac Pacis (1625), of Hugo Grotius; the De Jure Belli
(1598), of Alberico Gentili; the De Jure Naturae et Gentium (1672), of

Samuel Pufendorf; and the Jus Gentium Methodo Scientiﬁca Pertrac-
tatum (1749), of Christian Wolff. At the time of the elaboration and dis-
semination of the classic works of F. de Vitoria and F. Suárez (supra),

the jus gentium had already freed itself from private law origins (of
Roman law) to apply itself universally to all human beings . 63

74. As recently recalled, in the conception of the “founding fathers”
of the jus gentium inspired by the principle of humanity lato sensu

(whichseemssomewhatforgotteninourdays),thelegalorderbindsevery-
one (the ones ruled as well as the rulers); the droit des gens regulates an
international community constituted of human beings socially organized in

States and co-extensive with humankind (F. de Vitoria); thus conceived,
it is solely law which regulates the relations among members of the uni-
versal societas gentium (A. Gentili). This latter (totus orbis) prevails

over the individual will of each State (F. de Vitoria). There is thus a nec-
essary law of nations, and the droit des gens reveals the unity and uni-
versality of humankind (F. Suárez). The raison d’Etat has limits, and

the State is not an end in itself, but a means to secure the social order

59 Fray Bartolomé de Las Casas, Brevísima Relación de la Destrucción de las Indias
(1552), Barcelona, Ediciones 29, 2004 (reprint), pp. 7, 9, 17, 41, 50 and 72.

60 Ibid., pp. 7-14.
61
Ibid., pp. 23, 27 and 45. According to his account, some of the victims were burned
al62e, and those who survived were enslaved; ibid., pp. 31, 45, 73, 87 and 89.
Ibid., pp. 89-90. Bartolomé de Las Casas asserted that those mass killings and devas-
tation did harm to the Spanish crown itself, to the Kings of Castilla themselves, and were
in breach of all rights; ibid., pp. 41-42.
63 A. A. Cançado Trindade, A Humanização do Direito Internacional , Belo Horizonte/
Brazil, Edit. Del Rey, 2006, pp. 318-319.

153pursuant to the right reason, so as to perfect the societas gentium which

comprises the whole of humankind (H. Grotius). The legislator is subject
to the natural law of human reason (S. Pufendorf), and individuals, in
their association in the State, ought to promote together the common
good (C. Wolff) .4

VI. THE C ONTEMPORANEITY OF THE “D ROIT DES G ENS”:T HE HUMANIST
VISION OF THE INTERNATIONAL LEGAL O RDER

75. Since the times of those writings, the world of course has entirely

changed, but human aspirations have remained the same. The advent,
over the twentieth century, of international organizations (as we came
to know them nowadays), has much contributed, in a highly positive

way, to put an end to abuses against human beings, and gross violations
of human rights and international humanitarian law. The United
Nations, in our times, has sought the prevalence of the dictates of the
universal juridical conscience, particularly when aiming to secure digni-

ﬁed conditions of living to all peoples, in particular those subjected to
oppression.
76. International organizations have contributed to foster an essen-

tially humanist outlook of the earlier experiments of mandates and trus-
teeship under their supervision — an outlook which is in line with the
natural law thinking of the totus orbis,orthecivitas maxima gentium.In
that thinking, be it the old polis, be it the State, or any other forms of

socio-political organization, they were all conceived, and came to exist,
for the human person, and not vice-versa. International organizations,
created by States, have acquired a life of their own, and been faithful to

the observance of the principle of humanity lato sensu, bringing this
latter well beyond the old and strict inter-State dimension. The early exp-
eriments of the mandates and trusteeship systems provide clear histo-
rical evidence to that effect.

77. Yet, international legal doctrine, obsessed, throughout the twenti-
eth century, with the ideas of State sovereignty and territorial integrity
(which are not here in question) to the exclusion of others, was oblivious

of the most precious constitutive element of statehood: human beings,
the “population” or the “people”. The study of statehood per se, centered
on the State itself without further attention to the people, was carried to
extremes by the legal profession. In successive decades, attention was

focused, in institutions of learning (mainly Faculties of Law in numerous
countries), on the so-called “general theory of the State” (théorie géné-
rale de l’Etat/teoría general del Estado /teoria geral do Estado/Allgemeine

Staatslehre/teoria generale dello Stato) , repeating mechanically and ad
nauseam certain concepts advanced by authors of times past who had dis-

64Cf. A. A. Cançado Trindade, op. cit. supra note 63, pp. 9-14, and cf. pp. 172, 393 and
408.

154tinct concerns in mind. This uncritical attitude led many to believe that

the State was the permanent and ﬁnal repository of human aspirations
and human freedom.

1. The Early Judicial Recognition of Rights
of Human Beings and of Peoples

78. The consequences of that indifference to the human factor 65were
devastating. As abuses and atrocities became recurrent, the need began to

be felt to turn attention to the conditions of living of the population or
the people, to the fulﬁlment of their needs and aspirations. International
juridical conscience took a long time to awake to that. Yet, already in the
inter-war period the minorities and mandates systems under the League

of Nations were attentive to that. The old Permanent Court of Interna-
tional Justice (PCIJ) gave its own contribution to the rescue of the
“population” or the “people”. Some of its relevant obiter dicta cannot
pass unnoticed here, as, eight decades later, they seem to remain endowed

with contemporaneity.

79. Thus, in its Advisory Opinion on the Greco-Bulgarian “Communi-
ties” (1930), the PCIJ took the occasion to state that a community is

“a group of persons living in a given country or locality, having a
race, religion, language and traditions of their own and united by

this identity of race, religion, language and traditions in a sentiment
of solidarity, with a view to preserving their traditions, maintaining
their form of worship, ensuring the instruction and upbringing of
their children in accordance with the spirit and traditions of their

race and rendering mutual assistance to each other.” (P.C.I.J., Series
B, No. 17, p. 21.)

80. Half a decade later, the PCIJ, in its Advisory Opinion on Minority
Schools in Albania (1935), warned that “the idea underlying the treaties
for the protection of minorities” was to secure “living peaceably” along-
side with the population. To that end, “two things were regarded as par-

ticularly necessary”, namely:

“The ﬁrst is to ensure that nationals belonging to racial, religious
or linguistic minorities shall be placed in every respect on a footing
of perfect equality with the other nationals of the State.

The second is to ensure for the minority elements suitable means
for the preservation of their racial peculiarities, their traditions and
their national characteristics.

65To paraphrase the title of Graham Greene’s insightful novel.

155 These two requirements are indeed closely interlocked, for there

would be no true equality between a majority and a minority if the
latter were deprived of its own institutions, and were consequently
compelled to renounce that which constitutes the very essence of its
being as a minority.” (P.C.I.J., Series A/B, No. 64 , p. 17.)

81. The minorities treaty at issue — the PCIJ added — aimed at “pre-
venting differences of race, language or religion from becoming a ground

of inferiority in law or an obstacle in fact to the exercise of the rights in
question” (ibid., p. 18). The PCIJ further recalled that, 12 years earlier, in
its other Advisory Opinion on German Settlers in Poland (1923), it had
stated that “There must be equality in fact as well as ostensible legal

equality in the sense of discrimination in the words of the law” (P.C.I.J.,
Series B, No. 6, p. 24).

82. The “principle of identical treatment in law and in fact” was reit-

erated by the PCIJ in the aforementioned Advisory Opinion on Minority
Schools in Albania (1935), in the following terms:

“Equality in law precludes discrimination of any kind; whereas
equality in fact may involve the necessity of different treatment in
order to attain a result which establishes an equilibrium between dif-

ferent situations.
It is easy to imagine cases in which equality of treatment of the
majority and of the minority, whose situation and requirements are
different, would result in inequality in fact . . . The equality between

members of the majority 66d of the minority must be an effective,
genuine equality . . .” (P.C.I.J., Series A/B, No. 64 , p. 19.)

83. It is thus signiﬁcant that, even well before the 1948 Universal Dec-
laration of Human Rights, the fundamental principle of equality and
non-discrimination had found judicial recognition. The Universal Decla-

ration placed the principle in a wider dimension, by taking the individual
qua individual, qua human being, irrespective of being a member of a
minority, or an inhabitant of a territory under the mandates system (or,
later on, under the trusteeship system). Yet, the formulation of the prin-

ciple in relation to those pioneering experiments under the League of
Nations (the minorities and mandates systems, this latter followed by the
trusteeship system under the United Nations), contributed to giving uni-
versal expression to equality and non-discrimination. Yet, the principle
of equality and non-discrimination was already engraved in human con-

science.
84. The Universal Declaration of Human Rights proclaimed it in
emphatic terms. Its preamble began by stating that “recognition of the

66The PCIJ added that “the idea embodied in the expression ‘equal right’ is that the
right thus conferred on the members of the minority cannot in any case be inferior to the
corresponding right of other Albanian nationals” (P.C.I.J., Series A/B, No. 64 , p. 20).

156inherent dignity and of the equal and inalienable rights of all members of

the human family is the foundation of freedom, justice and peace in the
world” (para. 1). It then recalled that “disregard and contempt for
human rights have resulted in barbarous acts which have outraged the
conscience of mankind” (para. 2). And it further warned, still in its pre-
amble, that “it is essential, if man is not to be compelled to have recourse,

as a last resort, to rebellion against tyranny and oppression, that human
rights should be protected by the rule of law” (para. 3). The Universal
Declaration then proclaimed, in its Article 1, that “All human beings are
born free and equal in dignity and rights. They are endowed with reason

and conscience and should act towards one another in a spirit of
brotherhood.”

85. Already in the early years of the United Nations era, the Interna-

tional Court of Justice, in its Advisory Opinion on theInternational Status
of South-West Africa (1950), saw ﬁt to ponder that Article 80 (1) of the
UN Charter purported

“to safeguard, not only the rights of States, but also the rights of the
peoples of mandated territories until Trusteeship Agreements are
concluded. The purpose must have been to provide a real protection

for those rights; but no such rights of the peoples could be effec-
tively safeguarded without international supervision and a duty to
render reports to a supervisory organ.” (I.C.J. Reports 1950, pp. 136-
137.)

Thus, as acknowledged by the ICJ, “the necessity for supervision contin-
ues to exist despite the disappearance of the supervisory organ under the

mandates system” (ibid., p. 136). The “international function of admin-
istration” (of mandated territories) aimed at “promoting the well-being
and development of the inhabitants” . 67
86. The ICJ saw ﬁt to recall that the mandates system had been cre-
ated

“in the interest of the inhabitants of the territory, and of humanity
in general, as an international institution with an international

object — a sacred trust of civilization. It is therefore not possible to
draw any conclusion by analogy from the notions of mandate in
national law or from any other legal conception of that law.” (Ibid.,
p. 132.)

Furthermore, in the view of the ICJ, the rights of States and peoples did
not lapse automatically on the dissolution of the League of Nations; on

the contrary, they were safeguarded “under all circumstances and in all
respects, until each territory should be placed under the trusteeship sys-
tem” (ibid., p. 134).

67This being the “sacred trust of civilization” referred to in Article 22 of the Covenant
of the League of Nations (I.C.J. Reports 1950, p. 133).

157 87. The ICJ stressed “the general obligation to promote to the utmost

the material and moral well-being and the social progress of the inhabit-
ants”, and this assumed “particular obligations” in relation to abuses of
the past . The ICJ sought to secure the continuity of those obligations.
Thus, in the same Advisory Opinion on the International Status of

South-West Africa (1950), it recalled that the Assembly of the League of
Nations, in its resolution of 18 April 1946, reckoned that Chapters XI,
XII and XIII of the Charter of the United Nations embodied principles
corresponding to those declared in Article 22 of the Covenant, in a clear

indication that “the supervisory functions exercised by the League would
be taken over by the United Nations”. The competence of the UN Gen-
eral Assembly to exercise such supervision derived from Article 10 of the
Charter, which authorized it “to discuss any questions or any matters

within the scope of the Charter and to make recommendations on these
questions or matters to the members of the United Nations”. The UN
General Assembly, early in its life, began to exercise that competence,
and the ICJ found, in that Advisory Opinion of 1950, that the General

Assembly was “legally qualiﬁed” to do so (I.C.J. Reports 1950, p. 137).

2. The Humanist Legacy of Past Experiments to United Nations
International Administration of Territory

88. Each juridical institution is the product of its time. Social facts
tend to come before the norms, and these latter emerge from legal
principles, in order to regulate new forms of inter-individual and social

relations. Juridical institutions constitute responses to social needs of
their times, including protection. The institutions of mandates (under the
League of Nations), of trusteeship (under the United Nations until 2005)
and of international administration of territory (by the United Nations,

of the kind which evolved in the nineties), are no exception to that.

89. Although the experiences of the mandates and the trusteeship sys-
tems belong to the past, this does not mean that lessons cannot be
extracted therefrom, for the consideration of new juridical institutions,
operating nowadays also in response to social needs, including protec-

tion. This amounts to rethinking the juridical institutions of the past, to
identify their legacy, their relevance to new social needs. In my own per-

68Such as “slave trade, forced labour, trafﬁc in arms and ammunition, intoxicating
spirits and beverages, military training and establishments, as well as obligations relating
to freedom of conscience and free exercise of worship”; such obligations represented “the
very essence of the sacred trust of civilization” (I.C.J. Reports 1950, p. 133).

158ception, in at least one particular aspect, the experiments of the mandates

and the trusteeship systems were ahead of their times: that of the access
of the inhabitants concerned (of mandated and trust territories) to justice
at international level.

90. As attention gradually began to turn to the “population” or the
“people” (with the awakening to the human conscience as to their needs
of protection), pioneering experiments were devised and placed in opera-
tion: in the era of the League of Nations, the minorities and mandates

systems, placed under its supervision, and, later on, in the era of the
United Nations, the trusteeship system. There can hardly be any doubt
that the experiments of mandates (in addition to the minorities system),

and of trust territories, were aimed at the fulﬁlment of the needs, and at
the empowerment, of the inhabitants of the territories at issue, so as to
put an end to abuses of the past. The inhabitants of mandate and trust
territories were, furthermore, endowed with the right of international
69
individual petition (to the Permanent Mandates Commission, to the
Minorities Committees, and to the Trusteeship Council, respectively) —
heralding the advent of the access of individuals to international legal
proceedings in order to vindicate their own rights, emanating directly

from the droit des gens, from the law of nations itself.
91. If we go through the bulk of expert writing on the mandates and
the trusteeship systems, especially those that were familiar with the
operation of those systems, we detect: (a) analogies of private law

wherefrom inspiration was drawn for the establishment of those juridical
institutions; (b) devising of mechanisms of supervision (of territories and
mandates and in the trusteeship system), also at international level

(recourse to the former Permanent Mandates Commission and the former
Trusteeship Council); (c) interactions between the domestic and interna-
tional legal orders; (d) classiﬁcation of units (mandates and trust terri-
tories); (e) modus operandi of the respective systems.

92. A rethinking of those experiments of mandates and trust territories
does not need to go over such aspects, overworked in the past; it is here
rather intended to focus on the lessons left for the present and the future.
This implies consideration of their causes, of what originated those insti-

tutions, as well as of their purposes, of the goals they purported to attain.
Much of the energy — not all of it — spent in devising them was condi-

69
Just like the members of minorities, in the minorities system under the League of
Nations. The procedures varied from one system to the other; on the right of interna-
tional individual petition in those pioneering experiments, cf., e.g., C. A. Norgaard, The
Position of the Individual in International Law , Copenhagen, Munksgaard, 1962, pp. 109-
138; A. A. Cançado Trindade, “Exhaustion of Local Remedies in International Law
Experiments Granting Procedural Status to Individuals in the First Half of the Twentieth
Century”, 24 Netherlands International Law Review (1977), pp. 373-392; A. A. Cançado
Trindade, “Exhaustion of Local Remedies in the Experiment of the United Nations Trus-
teeship System”, 61 Revue de droit international de sciences diplomatiques et politiques —
Geneva (1983), pp. 49-66.

159tioned, perhaps ineluctably, by prevailing notions of their times. Yet,

they left a precious lesson for succeeding generations, that cannot be
overlooked nowadays.
93. The juridical institutions of mandates, trusteeship and interna-
tional administration of territories emerged, in succession, from the juridi-

cal conscience, to extend protection to those “peoples” or “populations”
who stood — and stand — in need of it, in modern and contemporary
history. The respective “territorial” arrangements were the means devised
in order to achieve that end, of protection of “populations” or “peoples”.

It was not mandates for mandates’ sake, it was not trusteeship for trus-
teeship’s sake, and it is not international administration of territory for
administration’s sake.

94. If we turn to the causes, as we ought to, we identify their common
purpose: to safeguard the “peoples” or “populations” concerned (irre-
spective of race, ethnic origin, religious afﬁliation, or any other trait) from
exploitation, abuses and cruelty, and to enable them to be masters of their

own destiny in a temporal dimension. In such domain of protection, law is
ineluctably ﬁnaliste. Those experiments were inspired by the fundamental
principle of humanity (cf. paras. 196-211, infra), and purported to safe-
guard the dignity of the human person. Thus, Article 22 of the Covenant

of the League of Nations, on the mandates system, enunciated “the prin-
ciple that the well-being and development” of the “peoples” at issue, under
“tutelage”, formed “a sacred trust of civilization”. The mandates sys-
tem, it added, was to ensure “freedom of conscience and religion”, and to
71
establish the prohibition of abuses of the past .
95. On its part, Article 73 of the United Nations Charter, concerning
non-self-governing territories, determined that

“Members of the United Nations which have or assume responsi-
bilities for the administration of territories whose peoples have not
yet attained a full measure of self-government recognize the principle
that the interests of the inhabitants of these territories are para-

mount, and accept as a sacred trust the obligation to promote to the
utmost, within the system of international peace and security estab-
lished by the present Charter, the well-being of the inhabitants of

these territories, and, to this end:
(a) to ensure, with due respect for the culture of the peoples con-

cerned, their political, economic, social, and educational
advancement, their just treatment, and their protection against
abuses;
(b) to develop self-government, to take due account of the political

70
It added — in a categorization that did not pass without criticism — that “the chara-
cter of the mandate” (i.e., mandates A, B or C) “must differ according to the stage of
development of the people, the geographical situation of the territory, its economic con-
di71ons and other similar circumstances”.
Such as, for example, “the slave trade, the arms trafﬁc and the liquor trafﬁc”.

160 aspirations of the peoples, and to assist them in the progressive

development of their free political institutions, according to the
particular circumstances of each territory and its peoples and
their varying stages of advancement;

(c) to further international peace and security;
(d) to promote constructive measures of development, to encour-
age research, and to co-operate with one another and, when
and where appropriate, with specialized international bodies

with a view to the practical achievement of the social, eco-
nomic, and scientiﬁc purposes set forth in this Article; and
(e) to transmit regularly to the Secretary-General for information

purposes, subject to such limitations as security and constitu-
tional considerations may require, statistical and other infor-
mation of a technical nature relating to economic, social, and
educational conditions in the territories for which they are

respectively responsible other than those territories to which
Chapters XII and XIII apply.”

96. The lessons accumulated, by those who witnessed or survived the
successive massacres and atrocities of the last hundred years, and those
who study and think seriously about them today, cannot but lead to this

humanist acknowledgement: in the roots of those juridical institutions
(mandates, trusteeship, international administration of territories) we
detect the belated consciousness of the duty of care for the humankind .
This is, after all, in my own perception, their most invaluable common

denominator.

VII. THE C ONCERN OF THE UNITED N ATIONS ORGANIZATION AS A W HOLE
WITH THE H UMANITARIAN TRAGEDY IN K OSOVO

97. In the light of the previous considerations, we may now turn to the
expressions of the United Nations Organization as a whole regarding the
humanitarian tragedy in Kosovo that victimized its population for one

decade (1989-1999). Not only the Security Council, but also the General
Assembly, ECOSOC and the Secretary-General expressed, on successive
occasions, their grave concern with that humanitarian crisis. It had
become, in fact, a matter of legitimate concern for the international com-

munity as a whole, in the framework of the United Nations Charter, as
we shall see now.

1. The Security Council’s Reiterated Expressions of Grave Concern
with the Humanitarian Tragedy in Kosovo

98. By the turn of the century, in the period extending from March
1998 to September 2001, the Security Council expressed its concern with

the grave humanitarian crisis in Kosovo. In its resolution 1160 (of

16131 March 1998), the Security Council condemned both “the use of exces-

sive force by Serbian police forces against civilians and peaceful demon-
strators in Kosovo” and “all acts of terrorism by the Kosovo Liberation
72
Army” . A few months later, in resolution 1199 (of 23 September 1998),
the Security Council expressed its grave concern at the “rapid deteriora-
73
tion” of the “humanitarian situation in Kosovo” , with the “increasing
violation of human rights and of international humanitarian law” .In 74

particular, resolution 1199 (1998) expressed its grave concern at

“the recent intense ﬁghting in Kosovo and in particular the excessive
and indiscriminate use of force by Serbian security forces and the
Yugoslav Army which have resulted in numerous civilian casualties

and, according to the estimate of the Secretary-General, the dis-
placement of over 230,000 persons from their homes” . 75

99. In the same resolution 1199 (1998), the Security Council expressed

its deep concern with the “ﬂow of refugees” and the “increasing numbers
of displaced persons”, up to “50,000 of whom . . . without shelter and
76
other basic necessities” . It then warned against the “impending humani-
tarian catastrophe” 77in Kosovo, and asserted

“the right of all refugees and displaced persons to return to their

homes in safety, and . . . the responsibility of the Federal Republic of
Yugoslavia for creating the conditions which allow them to do
78
so” .

The Security Council then demanded, still in Resolution 1199 (1998), the

unimpeded and safe return of refugees and displaced persons to their
homes, and “humanitarian assistance to them” , so as “to improve

the humanitarian situation and to avert the impending humanitarian
catastrophe” ; it also acknowledged the need “to bring to justice those
members of the security forces who have been involved in the mistreat-
81
ment of civilians” , through full co-operation with the Prosecutor of the
International Tribunal for the former Yugoslavia “in the investigation
82
of possible violations” within its jurisdiction . Resolution 1199 further
asserted the support for a peaceful resolution of the Kosovo crisis, inclu-

72 Preamble, para. 3.
73 Preamble, paras. 10 and 14.
74 Preamble, para. 11.
75 Preamble, para. 6.
76
77 Preamble, para. 7.
Preamble, para. 10, and operative part, para. 1.
78 Preamble, para. 8.
79 Operative part, paras. 5 (c) and (e), and 12.
80 Operative part, para. 2.
81 Operative part, para. 14.
82
Operative part, para. 13.

162ding “an enhanced status for Kosovo, a substantially greater degree of
83
autonomy, and meaningful self-administration” .

100. One month later, the Security Council adopted resolution 1203

(of 24 October 1998), whereby it reiterated this last objective in the
same terms , as well as its deep “alarm” and concern with the continu-

ation of the “grave humanitarian situation throughout Kosovo” and
the pressing need to prevent “the impending humanitarian catastro-
phe” , which constituted “a continuing threat to peace and security in
86
the region” . Resolution 1203 (1998) further reiterated its demand to
the authorities of the Federal Republic of Yugoslavia to secure the safe

return to their homes of all refugees and displaced persons, in the exer-
cise of their own right of freedom of movement 87 — so as “to avert the
88
impending humanitarian catastrophe” . Resolution 1203 called at last
for “prompt and complete investigation” of “all atrocities committed

against civilians”, in “full co-operation with the International Tribunal
for the former Yugoslavia” 89.

101. Seven months later, the Security Council adopted resolution 1239

(of 14 May 1999), reiterating its “grave concern” at the humanitarian
catastrophe in and around Kosovo”, given the “enormous inﬂux of Kos-

ovo refugees” and the “increasing numbers of displaced persons within
Kosovo” , calling for the effective co-ordination of “international
91
humanitarian relief” . After reafﬁrming “the right of all refugees and
displaced persons to return to their homes in safety and in dignity” , 92
Resolution 1239 (1999) warned with emphasis that “the humanitarian

situation will continue to deteriorate” in the absence of a proper “politi-
cal solution” to the crisis . 93

102. The next step taken by the Security Council, shortly afterwards,

was the adoption of its signiﬁcant Resolution 1244 (of 10 June 1999),
commented on supra/infra. Subsequently, the Security Council adopted
resolution 1367 (2001), wherein it took note, in relation to Kosovo, of the

situation concerning security in the borders, and stressed the “continuing

83 Preamble, para. 12.
84 Preamble, para. 8.
85
86 Preamble, para. 11.
Preamble, para. 15.
87 Operative part, paras. 12 and 9, and cf. para. 13.
88 Operative part, para. 11.
89 Operative part, para. 14.
90 Preamble, paras. 3-4.
91 Preamble, para. 5, and operative part, paras. 1-2.
92
93 Operative part, para. 4.
Operative part, para. 5.

163authority” of the UN Secretary-General’s Special Representative “to

restrict and strictly control the ﬂow of arm94into, within and out of Kos-
ovo, pursuant to resolution 1244 (1999)” .

2. The General Assembly’s Reiterated Expressions of Grave
Concern with the Humanitarian Tragedy in Kosovo

103. Earlier than the Security Council, as from 1994, the General
Assembly began to express its concern with the grave humanitarian crisis

in Kosovo. In its resolution 49/204 (of 23 December 1994) — the ﬁrst of
a series on the “Situation of Human Rights in Kosovo”, the General
Assembly acknowledged the “continuing deterioration” of the human
rights situation in Kosovo, with “various discriminatory measures taken

in the legislative, administrative and judicial areas, acts of violence and
arbitrary arrests perpetrated against ethnic Albanians in Kosovo”,
including:

“(a) police brutality against ethnic Albanians, the killing of ethnic
Albanians resulting from such violence, arbitrary searches,

seizures and arrests, forced evictions, torture and ill-treatment
of detainees and discrimination in the administration of justice;

(b) discriminatory and arbitrary dismissals of ethnic Albanian
civil servants, notably from the ranks of the police and the
judiciary, mass dismissals of ethnic Albanians, conﬁscation
and expropriation of their properties, discrimination against

Albanian pupils and teachers, the closing of Albanian-
language secondary schools and university, as well as the closing
of all Albanian cultural and scientiﬁc institutions;

(c) the harassment and persecution of political parties and asso-
ciations of ethnic Albanians and their leaders and activities,
maltreating and imprisoning them;

(d) the intimidation and imprisonment of ethnic Albanian jour-
nalists and the systematic harassment and disruption of the
news media in the Albanian language;

(e) the dismissals from clinics and hospitals of doctors and mem-
bers of other categories of the medical profession of Albanian
origin;

94Preamble, para. 4.

164 (f) the elimination in practice of the Albanian language, particu-

larly in public administration and services;
(g) the serious and massive occurrence of discriminatory and
repressive practices aimed at Albanians in Kosovo, as a whole,
95
resulting in widespread involuntary migration” .

104. The General Assembly then strongly condemned, in the same

resolution 49/204, these “measures and practices of discrimination” and
“large-scale repression” of the “defenceless ethnic Albanian population”,

and the discrimination against ethnic Albanians “in the administrative
and judiciary branches of government, education, health care and employ-
ment, aimed at forcing ethnic Albanians to leave” . 96

It then demanded from the authorities of the former Republic of
Yugoslavia (Serbia and Montenegro) to bring to an “immediate end” all

those human rights violations (including torture and other cruel, inhu-
man or degrading treatment; arbitrary searches and detention; denial of
a fair trial; among others) . It further encouraged the UN Secretary-

General to pursue his “humanitarian efforts” in the region, in liaison
with, inter alia, the UNHCR and UNICEF,

“with a view to taking urgent practical steps to tackle the critical
needs of the people in Kosovo, especially of the most vulnerable

groups affected by the conﬂict, and to assist in the voluntary return
of displaced persons to their homes” . 98

105. One year later, the General Assembly adopted resolution 50/190

(of 22 December 1995), acknowledging the same acts of discrimination
and violence , and reiterated — in a longer text — its concerns with the
100
human rights violations in Kosovo . It “urgently” demanded that the
authorities of the Federal Republic of Yugoslavia (Serbia and Monte-
negro):

“(a) Take all necessary measures to bring to an immediate end all

human rights violations against ethnic Albanians in Kosovo,
including, in particular, the discriminatory measures and prac-

tices, arbitrary searches and detention, the violation of the
right to a fair trial and the practice of torture and other cruel,
inhuman or degrading treatment, and to revoke all discrimi-

95
96Preamble, para. 4.
Operative part, paras. 1-2.
97Operative part, para. 3.
98Operative part, para. 5.
99Preamble, para. 5.
100Preamble, paras. 6 and 8, and operative part, paras. 1-2.

165 natory legislation, in particular that which has entered into

force since 1989;

(b) Release all political prisoners and cease the persecution of

political leaders and members of local human rights organiza-
tions;
(c) Allow the establishment of genuine democratic institutions in

Kosovo, including the parliament and the judiciary, and
respect the will of its inhabitants as the best means of prevent-

ing the escalation of the conﬂict there;
(d) Abrogate the ofﬁcial settlement policy as far as it is conducive
to the heightening of ethnic tensions in Kosovo;

(e) Reopen the cultural and scientiﬁc institutions of the ethnic
Albanians;
(f) Pursue dialogue with the representatives of ethnic Albanians

in Kosovo, including under the auspices of the International
Conference on the Former Yugoslavia” 101.

And, once again, the General Assembly encouraged the UN Secretary-

General to pursue his “humanitarian efforts” in the region, together with,
inter alia, the UNHCR and UNICEF, “to tackle the critical needs of the
people in Kosovo, especially of the most vulnerable groups affected by

the conﬂict”, as well as “to assist in the voluntary return of displaced per-
sons to their homes” 102.

106. The “continuing grave human rights situation in Kosovo” was
again the object of concern by the General Assembly, in its resolution 51/
111 (of 12 December 1996) 10, whereby the Assembly condemned “all

violations of human rights in Kosovo, in particular repression of the
ethnic Albanian population and discrimination against them, as well as
all acts of violence in Kosovo” 104. It reiterated the aforementioned

demands to the authorities of the Federal Republic of Yugoslavia (Serbia
and Montenegro) , and it again (paras. 6-7) encouraged the UN Secretary-

General to pursue his humanitarian endeavours with the appropriate
humanitarian entities (such as UNHCR and UNICEF)

“to tackle the critical needs of the people of Kosovo, especially of
the most vulnerable groups affected by the conﬂict, and to assist in
the voluntary return of displaced persons to their homes in condi-
106
tions of safety and dignity” .

101Operative part, para. 3.
102Operative part, para. 5.
103Preamble, para. 2.
104Operative part, para. 1.
105Operative part, para. 2.
106Operative part, para. 6.

166Moreover, resolution 51/111 called for compliance with the “principles of

non-discrimination, equal protection before the law and the reduction
and avoidance of statelessness” 107.

107. One year afterwards, the General Assembly, in resolution 52/139
(of 12 December 1997), noted with concern “the use of force by Serbian
police against peaceful Albanian student protesters of Kosovo on 1 Octo-
108
ber 1997” , and further expressed “deep concern” about “all violations
of human rights and fundamental freedoms in Kosovo, in particular the
repression of the ethnic Albanian population and discrimination against
109
it, as well as acts of violence in Kosovo” . Accordingly, the General
Assembly called upon the authorities of the Federal Republic of Yugo-
slavia:

“(a) to take all necessary measures to bring an immediate end to all

human rights violations against ethnic Albanians in Kosovo,
including, in particular, discriminatory measures and prac-
tices, arbitrary searches and detention, the violation of the

right to a fair trial and the practice of torture and other cruel,
inhuman or degrading treatment, and to revoke all discrimi-
natory legislation, in particular that which has entered into

force since 1989;
(b) to release all political prisoners and to cease the persecution of
political leaders and members of local human rights organiza-

tions;
(c) to allow the return in safety and dignity of Albanian refugees
from Kosovo to their homes;
(d) to allow the establishment of genuine democratic institutions

in Kosovo, including the parliament and the judiciary, and to
respect the will of its inhabitants as the best means of prevent-
ing the escalation of the conﬂict there;

(e) to allow the reopening of the educational, cultural and scien-
tiﬁc institutions of the ethnic Albanians” 110.

Resolution 52/139 at last reit111ted the same words of encouragement to
the UN Secretary-General as previously done in earlier resolutions of
the General Assembly on the situation of human rights in Kosovo
(cf. supra).

108. In the following year, the General Assembly adopted an exten-
sive resolution on the situation of human rights in Kosovo; by means of
resolution 53/164 (of 9 December 1998), the General Assembly focused

107
108Operative part, para. 7.
109Preamble, para. 4.
Operative part, para. 1.
110Operative part, para. 2.
111Operative part, para. 7.

167on “the regional dimensions of the crisis in Kosovo”, and its “persistent

and grave violations and abuse of human rights and humanitarian law
in Kosovo” 112. The General Assembly expressed its “grave” concern
with

“the systematic terrorization of ethnic Albanians, as demonstrated

in the many reports, inter alia, of torture of ethnic Albanians,
through indiscriminate and widespread shelling, mass forced dis-
placement of civilians, summary executions and illegal detention of
113
ethnic Albanian citizens . . . by the police and military” .

The General Assembly expressed further its concern with “reports of vio-
lence committed by armed ethnic Albanian groups against non-combat-

ants and the illegal detention of individuals, primarily ethnic Serbs, by
those groups” 114.

109. In its call for respect for human rights and international humani-
tarian law 115, resolution 53/164 condemned “the acts of violence, includ-
ing kidnappings, by armed ethnic Albanian groups, in particular against
116
non-combatants” . Furthermore, it “strongly” condemned

“the overwhelming number of human rights violations committed by

the authorities of the Federal Republic of Yugoslavia (Serbia and
Montenegro), the police and military authorities in Kosovo, includ-
ing summary executions, indiscriminate and widespread attacks on

civilians, indiscriminate and widespread destruction of property,
mass forced displacement of civilians, the taking of civilian hostages,
117
torture and other cruel, inhuman or degrading treatment . . .” .

110. Next, the General Assembly, by means of resolution 53/241 (of
28 July 1999), turned its attention to the ﬁnancing of the United Nations
Interim Administration Mission in Kosovo (UNMIK). The following

resolution of the General Assembly on the matter — resolution 54/183
(of 17 December 1999) — again shifted attention to the situation of

human rights in Kosovo. It began by recalling “the background of years
of repression, intolerance and violence in Kosovo”, and the persisting
challenge to build therein “a multi-ethnic society on the basis of substan-

tial autonomy”, as well as the “continuing problems”, the “human rights

112Preamble, paras. 3-4.
113Preamble, para. 5.
114Preamble, para. 6.
115Operative part, para. 6, and cf. also operative part, paras. 14 (e), 17, and 18 (a)
and (b).
116Operative part, para. 9.
117Operative part, para. 8.

168and humanitarian situation”, and the “regional dimensions of the crisis
118
in Kosovo” .

111. It then expressed its concern with, and condemned, the persistent

and “grave violations of human rights” and of international humanitar-
ian law in Kosovo, affecting ethnic Albanians 119. There had been many
reported cases, resolution 54/183 added, of

“torture, indiscriminate and widespread shelling, mass forced dis-
placement of civilians, summary executions and illegal detention of
ethnic Albanians in Kosovo by the Yugoslav police and military, [as

well as] frequent instances of harassment, periodic kidnapping and
murder of ethnic Serb, Roma and other minorities of Kosovo by
120
ethnic Albanian extremists” .

112. As a consequence, resolution 54/183 went on, “the entire popu-
lation of Kosovo has been affected by the conﬂict” 121. It then warned
that all national minorities must beneﬁt from “their full and equal
122
rights” , and further stressed “the urgent need to implement effective
measures to stop trafﬁcking in women and children” 123. In its operative

part, resolution 54/183 called for a solution to the Kosovo crisis on the
basis of “general principles” 124, putting an end to actions leading de
125
facto or de jure to “ethnic cantonization” . Moreover, it called upon
all actors “to refrain from all acts of violence” 126, and “to facilitate the
free and unhindered return to their homes, in safety and with dignity, of
127
all displaced persons and refugees, of whichever ethnic background” .

113. In addition, resolution 54/183 requested humanitarian entities,
and the UNHCR and the Ofﬁce of the UN High Commissioner for

Human Rights to continue to take practical steps “to meet the critical
needs of the people in Kosovo and to assist in the voluntary return of

118
Preamble, paras. 3-4.
119 Preamble, paras. 5-6.
120 Preamble, paras. 6-7.
121 Preamble, para. 8.
122 Ibid.
123 Preamble, para. 11.
124
125 Operative part, paras. 1-2.
Operative part, para. 7.
126 Operative part, para. 6.
127 Operative part, para. 11.

169displaced persons to their homes in conditions of safety and dignity” 128.

It further urged all parties involved in the Kosovo crisis to support the
efforts of UNICEF “to ensure that all children in Kosovo return to
school as soon as possible and to contribute to the rebuilding and repair
129
of schools destroyed or damaged during the conﬂict in Kosovo” .

114. The General Assembly continued to occupy itself with the

humanitarian crisis of Kosovo. In the years preceding its request (by
means of resolution 63/3, of 8 October 2008) for an advisory opinion of
this Court, it adopted a series of 14 resolutions on the ﬁnancing of
130
UNMIK . And months after its request for an advisory opinion of
the ICJ, the General Assembly adopted a new resolution 13, again on
the ﬁnancing of UNMIK. The UN General Assembly has, thus, just

like the Security Council, been constantly attentive to the evolving situ-
ation of Kosovo in recent years.

3. The Economic and Social Council’s Reiterated Expressions

of Grave Concern with the Humanitarian Tragedy in Kosovo

115. Not only the Security Council and the General Assembly, but
also the Economic and Social Council (ECOSOC) likewise occupied

themselves with the situation of human rights in Kosovo, in its more
troubling moments. By means of its decision 1998/272 (of 30 July 1998),
ECOSOC approved the requests of the old UN Commission on Human

Rights that the Special Rapporteur on the situation of human rights in
the former Yugoslavia carry out missions in the Federal Republic of
132
Yugoslavia, including in Kosovo . One year later, in its decision 1999/
232 (of 27 July 1999) ECOSOC again approved a request of the
former UN Commission on Human Rights that the aforementioned
133
Special Rapporteur conduct missions inter alia in Kosovo ;
furthermore, ECOSOC endorsed the decision of the Commission on
Human Rights to request the Special Rapporteur “to make interim

reports as appropriate about his work in support of the Kosovo ini-

128Operative part, para. 14.
129Operative part, para. 21.
130Namely, resolution 54/245 A of 23 December 1999; resolution 54/245 B of 15 June
2000; resolution 55/227 A of 23 December 2000; resolution 55/227 B of 14 June 2001;
resolution 56/295 of 27 June 2002; resolution 57/326 of 18 June 2003; resolution 58/305 of

18 June 2004; resolution 59/286 A of 13 April 2005; resolution 59/286 B of 22 June 2005;
resolution 60/275 of 30 June 2006; resolution 61/285 of 29 May 2007; and resolution 62/
262 of 20 June 2008; resolution 63/295 of 30 June 2009; and resolution 64/827 (general
distribution of 18 June 2010, and cf. doc. A/C.5/64/L.47, of 28 May 2010).
131Resolution 63/295 of 30 June 2009.
132Item (c) (iii).
133Item (b) (iii).

170tiative of the United Nations High Commissioner for Human
134
Rights” .
116. The former UN Commission on Human Rights, which used to

report to ECOSOC and the Secretary-General, issued two resolutions in
1994 expressing its grave concern with the humanitarian tragedy in Kos-
ovo. In its resolution 1994/72 (of 9 March 1994), the Commission,

“gravely” concerned at the deteriorating human rights situation in Kos-
ovo 13, strongly condemned in particular

“the measures and practices of discrimination against and the viola-
tion of the human rights of the ethnic Albanians of Kosovo, as well

as the large scale repression committed by the Serbian authori-
ties” 136.

The Commission demanded that these authorities “respect the human

rights” of ethnic Albanians in Kosovo, and further declared that “the
best means to prevent the possible escalation of the conﬂict” was “to
safeguard human rights, restore the autonomy of Kosovo and to estab-
137
lish democratic institutions in Kosovo” .
117. Shortly afterwards, the Commission, recalling an ECOSOC docu-
138
ment , in resolution 1994/76 (also of 9 March 1994) again condemned
strongly the “discriminatory measures and practices as well as the viola-
tions of human rights”, committed by Serbian authorities against ethnic
139
Albanians in Kosovo , and urgently demanded that those authorities

“(a) Cease all human rights violations, discriminatory measures

and practices against ethnic Albanians in Kosovo, in particu-
lar arbitrary detention and violation of the right to a fair trial

and the practice of torture and other cruel, inhuman and
degrading treatment;

(b) Release all political prisoners and cease all persecution of
political leaders and members of local human rights organiza-
tions;

(c) Establish democratic institutions in Kosovo and respect the
will of its inhabitants as the best means of preventing the esca-
140
lation of the conﬂict there . . .” .

134Item (c) (i).
135Operative part, para. 25.
136Operative part, para. 26.
137Operative part, para. 27.
138UN doc. E/CN.4/1994/110, referring to the report of the Special Rapporteur on the

Situation of Human Rights in the former Yugoslavia (describing the “continuing deterio-
ra139n” of that situation in Kosovo).
Operative part, para. 1.
140Operative part, para. 2.

171 118. The Commission, again recalling an ECOSOC document 141,inits

resolution 1995/89 (of 8 March 1995) saw ﬁt to reiterate its deep concern
with the ongoing human rights situation in Kosovo, and to repeat its
142
“strong condemnation of “discriminatory measures and practices” and
its urgent demands (supra) to the Serbian authorities to put an end to
them and to human rights violations, and to “respect the will of the
143
inhabitants of Kosovo” . Next, in its resolution 1996/71 (of 23 April
1996), the Commission once again strongly urged the Serbian authorities
“to revoke all discriminatory legislation and to apply all other legislation

without discrimination, release all political detainees”, and “allow the
free return of ethnic Albanian refugees to Kosovo” 144. Furthermore, it

urgently demanded Serbian authorities to

“take immediate action to put an end to the repression of and pre-
vent violence against non-Serb populations in Kosovo, including
acts of harassment, beatings, torture, warrantless searches, arbitrary

detention, unfair trials, arbitrary unjustiﬁed evictions and dis-
missals . . .” 145.

4. The Secretary-General’s Reiterated Expressions of Grave
Concern with the Humanitarian Tragedy in Kosovo

119. Like other main organs of the United Nations (General Assem-

bly, Security Council, ECOSOC — supra), the Secretary-General of the
United Nations also expressed on distinct occasions his grave concern
with the humanitarian tragedy in Kosovo. Thus, in his Report of
146
12 July 1999 on UNMIK , he warned that

“The humanitarian consequences of the conﬂict on the people of

Kosovo have been profound. Out of a population estimated in 1998
to number 1.7 million, almost half (800,000) have sought refuge in
neighbouring Albania, the former Yugoslav Republic of Macedonia

141
UN doc. E/CN.4/1995/57, referring to the report of the Special Rapporteur on the
Situation of Human Rights in the former Yugoslavia (describing the brutalities and dis-
criminatory measures perpetrated in Kosovo).
142Such as mass dismissals of civil servants, discrimination against ethnic Albanians in
primary and secondary schools and universities, dismissal of doctors and other members
of the medical profession from clinics and hospitals — generating forced migration.

143
144Operative part, paras. 29-31.
145Operative part, para. 25.
Operative part, para. 26.
146UN doc. S/1999/779, of 12 July 1999, pp. 1-25.

172 and Montenegro during the past year. While estimates vary, up to

500,000 persons may have been internally displaced. Many internally
displaced persons (IDPs) are in worse health than the refugees,
having spent weeks in hiding without food or shelter. Many refugees
and IDPs bear the scars of psychological trauma as well as physical
abuse.

As of 8 July 1999, more than 650,000 refugees had returned to
Kosovo through a combination of spontaneous and Ofﬁce of the
United Nations High Commissioner for Refugees (UNHCR)-

assisted movement. This leaves an estimated 150,000 persons in neigh-
bouring regions and countries, 90,000 evacuees in third countries
and an unknown number of asylum-seekers. Those who have not
returned home will continue to require a high level of assistance in

their country of asylum and upon eventual return. Within Kosovo, a
still unknown number of individuals remain outside their homes . . .”
(Paras. 8-9.)

120. In the same Report, the UN Secretary-General deemed it ﬁt to
add, inter alia, that

“The adoption of Security Council resolution 1244 (1999) and the
deployment of KFOR and UNMIK has marked the end of a tragic

chapter in the history of the people of Kosovo. The task before the
international community is to help the people of Kosovo to rebuild
their lives and heal the wounds of conﬂict. Reconciliation will be a
long and slow process. Patience and persistence will be needed to
carry it through.” (Para. 117.)

121. In his following Report of 16 September 1999 147on UNMIK, the

Secretary-General pointed out that “[t]he level and nature of violence in
Kosovo, especially against vulnerable minorities, remains a major con-
cern. Measures taken to address this problem are having a positive effect,
but continued vigilance is necessary.” (Para. 4.) The Report addressed

some of the most pressing measures to be taken:

“Housing surveys have been conducted in more than 90 per cent
of the war-affected villages. An estimated 50,000 houses are beyond
repair and another 50,000 have sustained damage of up to 50 per cent,
but are repairable. One of the most urgent tasks to be completed

before winter is the temporary rehabilitation of the 50,000 repairable
houses.” (Para. 11.)

122. To that end, UNMIK counted on the assistance of the UNHCR’s
emergency rehabilitation programme (para. 11). Another priority area,

147UN doc. S/1999/987, of 16 September 1999, pp. 1-12.

173the Secretary-General’s Report added, was “targeted assistance for

women and children”; to that end, UNMIK counted on the assistance of
UNHCR, UNICEF, and international local non-governmental organiza-
tions, which were “implementing a series of projects under a ‘Kosovo

Women’s Initiative’” (para. 13). Parallel to those two Reports, early in
the same year of 1999, the Secretary-General also saw ﬁt to issue a state-
ment, on 16 January 1999 (the day following the massacre of Raçak),
expressing his grave concern as follows:

“I am shocked to learn today of the alleged massacre of some 40
individuals, apparently civilians, in Kosovo . . . I am gravely con-
cerned at this latest development and call for a full investigation by

the competent authorities. I appeal once again to all sides in Kosovo
to refrain from any action that would further escalate the tragic
situation.” 148

123. From 1999 onwards, the UN Secretary-General issued periodical
and numerous Reports on the evolving work of UNMIK. Early in this
decade (2002-2004), his Reports pursued the supervision of the agreed
149
policy of “standards before status” . In the following period (2006-
2008), before the declaration of independence, the Secretary-General
drew the attention of all concerned to the importance of putting an end
150
to violence for the future of Kosovo. Thus, in his Report of 5 June 2006 ,
he pondered that

“Implementation of the standards is a measure of the commitment
of the political leaders and Provisional Institutions of Kosovo to

realizing a society where all people can live in dignity and without
fear...Realpi tiregardisanesilfaitorn
determining progress in the political process to determine Kosovo’s

future status . . .

Reconciliation remains essential for the future of a multi-ethnic
Kosovo as well as stability in the region. Although all communities

have a role in improving the conditions under which all can live and
work together in harmony, the principal responsibility rests with the
majority . . .

148Cit. in M. Weller, The Crisis in Kosovo, 1989-1999, Cambridge, Docs. & Analysis
Publ., 1999, p. 320. Two days later (18 January 1999) the UN High Commissioner for
Refugees (Ms S. Ogata) also expressed the grave concern of the UNHCR and condemned
the atrocities; cf. cit. in ibid., p. 321.
149Cf. Secretary-General, Report of 9 October 2002 (UN doc. S/2002/1126), para. 2;
Secretary-General, Report of 29 January 2003 (UN doc. S/2003/113), paras. 12 and 61;
Secretary-General, Report of 16 January 2004 (UN doc. S/2004/71), para. 2.
150UN doc. S/2006/361, of 5 June 2006, pp. 1-9.

174 Violence will affect the future status process, and must not be tol-
151
erated by any part of the society in Kosovo . . .”

124. In his following Reports on UNMIK, attention was increasingly

turned to the setting up of provisional institutions for democratic and
autonomous self-government, i.e., of public institution-building, so as to
foster the consolidation of the rule of law in a democratic society 152.In

one of those Reports (that of 9 March 2007), the Secretary-General
stated:

“After almost eight years of United Nations interim administra-

tion, Kosovo and its people need clarity on their future . . . Moving
towards a timely conclusion of the Kosovo future status political
process and a sustainable solution to the future status of Kosovo

should be a priority for the international community as a whole.

Such a solution must entail a Kosovo that is stable and in which
all communities can coexist in peace. The use of violence by extrem-

ist groups in Kosovo to achieve political objecti153 cannot be toler-
ated and should be strongly condemned.”

125. In the following Report (of 29 June 2007), the Secretary-General

took note of the Report presented to him by his Special Envoy, contain-
ing “his recommendation of independence for Kosovo supervised initially
by the international community, and his settlement proposal” 15.I

another Report (that of 20 November 2006), the Secretary-General had
already called upon “the leaders and people of Kosovo” to remain
engaged in the political settlement, and added that

“[i]t remains important for the Kosovo authorities to take the

progress achieved still further, and not to lose sight of all the stand-
ards that are important to developing more stable and effective insti-
tutions and to improving the delivery of services to all people in
155
Kosovo” .

126. There is a series of Reports of the Secretary-General covering
developments pertaining to UNMIK since Kosovo’s declaration of inde-

151
UN doc. S/2006/361, of 5 June 2009, paras. 24 and 26-27, p. 8.
152Cf. Report of 1 September 2006 (UN doc. S/2006/707); Report of 20 Novem-
ber 2006 (UN doc. S/2006/906); Report of 9 March 2007 (UN doc. S/2007/134); Report
of 29 June 2007 (UN doc. S/2007/395); Report of 28 September 2007 (UN doc. S/2007/
582); Report of 3 January 2008 (UN doc. S/2007/768).
153UN doc. S/2007/134, of 9 March 2007, paras. 24-25, p. 7.
154UN doc. S/2007/395, of 29 June 2007, para. 2, p. 1, and documents referred to
therein.
155UN doc. S/2006/906, of 20 November 2006, para. 24, p. 7.

175pendence of 17 February 2008 15. Shortly after the adoption of the decla-

ration of independence by the Assembly of Kosovo on that same day, the
UN Secretary-General, in his Report of 28 March 2008, took note of the
declaration (para. 3) and added that UNMIK continued “to operate on
the understanding that resolution 1244 (1999) remains in force” (para. 29),

but at the same time conceded that

“Kosovo’s declaration of independence has had a profound impact
on the situation in Kosovo. The declaration of independence and

subsequent events in Kosovo have posed signiﬁcant challenges to the
ability of UNMIK to exercise its administrative authority in Kos-
ovo.” (Para. 30.)

127. In his subsequent Report on UNMIK (of 12 June 2008), the

Secretary-General took note of the Constitution adopted by the Assembly
of Kosovo, on 9 April 2008, to enter into force on 15 June 2008 (para. 7).
This posed, in his view, “signiﬁcant challenges” and “operational impli-

cations” for UNMIK to exercise its “administrative authority” (paras. 10,
14 and 17). In the following Report (of 15 July 2008), he added that “the
authorities in Pristina have taken a number of steps to assert their
authority in Kosovo” (para. 4), and UNMIK has been “confronted with

a substantially changed situation in Kosovo” (para. 29).
128. The next Report (of 24 November 2008) of the Secretary-General
acknowledged the difﬁculty to reconcile Security Council resolu-
tion 1244 (1999) and the Kosovo Constitution (para. 21). To conclude, in

a further Report (of 10 June 2009), the Secretary-General added that,
although, to the Kosovo authorities, Security Council resolution 1244
(1999) no longer appeared relevant (para. 2), the United Nations would

“continue to adopt a position of strict neutrality on the question of Kos-
ovo’s status” (para. 40).

129. Thus, it clearly ensues from these and the previous Reports that,
to start with, the main concern of the UN Secretary-General and UNMIK
was with the safety and the conditions of living of the population. It then
turned to public institution-building. International administration of ter-

ritory does not appear as an end in itself — not international administra-
tion of territory for territorial administration’s sake — but rather as a
means to an end, namely, to secure the well-being of the “people” or the
“population”, and the inhabitants living under the rule of law in a demo-

156
Cf. Secretary-General, Report of 28 March 2008 (UN doc. S/2008/211); Secretary-
General, Report of 12 June 2008 (UN doc. S/2008/354); Secretary-General, Report of
15 July 2008 (UN doc. S/2008/458); Secretary-General, Report of 24 November 2008 (UN
doc. S/2008/692); Secretary-General, Report of 17 March 2009 (UN doc. S/2009/149);
Secretary-General, Report of 10 June 2009 (UN doc. S/2009/300); Secretary-General,
Report of 30 September 2009 (UN doc. S/2009/497); and Secretary-General, Report of
5 January 2010 (UN doc. S/2010/5).

176cratic society. As for the more recent Reports, issued by the time of Kos-

ovo’s declaration of independence, and shortly afterwards, it is difﬁcult
to escape the impression that, by then, Kosovo was already being envis-
aged as a State in statu nascendi.

5. General Assessment

130. From the review above, it is clear that the United Nations Organi-

zation as a whole was and has been concerned with the humanitarian
tragedy in Kosovo. Each of its main organs (General Assembly, Security
Council, ECOSOC and Secretariat) expressed on distinct occasions their

grave concern with it, and each of them was and has been engaged in the
solution of the crisis, within their respective spheres of competence. Such
domains of competence are not competing, but rather complementary, so
as to fulﬁl the purposes of the United Nations Charter, in the light of the

principles proclaimed therein (Articles 1-2). The crisis concerned the
international community as a whole, and the United Nations Organiza-
tion as a whole thus rightly faced it.

131. The International Court of Justice, the principal judicial organ of
the United Nations (Article 92 of the UN Charter), has now been called
upon to pronounce on one speciﬁc aspect, namely, that of the conform-

ity, or otherwise, with international law, of the declaration of independ-
ence of Kosovo. In the exercise of its advisory function, and bearing in
mind its high responsibility as the World Court, it has rightly refused to

indulge in a false and fabricated problem of delimitation of competences
between the main organs of the United Nations. It has kept in mind the
principles and purposes of the UN Charter, together with general inter-
national law. It has acted as it should.

VIII. E X INJURIA JUS N ON O RITUR

132. According to a well-established general principle of interna-
tional law, a wrongful act cannot become a source of advantages,
157
beneﬁts or rights for the wrongdoer : ex injuria jus non oritur .n
the period extending from the revocation of Kosovo’s autonomy in
1989 until the adoption of the UN Security Council’s resolu-

tion 1244 (1999), successive grave breaches of international law were
committed by all concerned. These grave breaches, from all sides,
seriously victimized a large segment of the population of Kosovo.

157P. Guggenheim, “La validité et la nullité des actes juridiques internationaux”, 74
Recueil des cours de l’Académie de droit international de La Haye (1949), pp. 226-227,
230-231 and 256; H. Lauterpacht, Recognition in International Law , Cambridge Univer-
sity Press, 1947, pp. 420-421.

177They comprised grave violations of human rights and of international

humanitarian law from virtually all those who intervened in Kosovo’s
crisis.
133. In the course of the advisory proceedings before the Court, a cou-
ple of participants invoked the principle ex injuria jus non oritur , each
one referring to one of the successive wrongful acts, in the course of the

decade 1989-1999, and up to Kosovo’s declaration of independence of
17 February 2008. None of them referred to the successive injuriae as a
whole — including three unwarranted NATO bombings of Kosovo in
1999, outside the framework of the UN Charter, and also generating

“casualties” among hundreds of innocent civilians. There occurred, in
fact, injuriae committed everywhere in the region as a whole, coming
from a variety of sources (State and non-State alike).
134. The principle ex injuria jus non oritur applies to all those grave

breaches, to the atrocities perpetrated against the population, as well as
to the unwarranted use of force in the bombings of Kosovo (likewise
causing numerous innocent victims in the civilian population), outside
the framework of the UN Charter. UN Security Council resolu-

tion 1244 (1999) cannot thus be read as endorsing wrongful acts of any
origin or kind, nor as taking advantage of them. Quite on the contrary:
Security Council resolution 1244 (1999) reinserted the handling of Kos-
ovo’s humanitarian crisis within the framework of the UN Charter, in

one of the great challenges to the UN as a whole (not only its Security
Council) in our days. It can hardly be doubted that the Security Coun-
cil, proceeding on the basis of Chapter VII of the United Nations Char-
ter, by means of its resolution 1244 (1999), acted in a decisive way for
the restoration and preservation of peace in Kosovo and the whole

region.

135. In establishing UNMIK by that resolution, the Security Council
has been careful not to anticipate or prejudge the outcome of the interim

administration of Kosovo. Its balanced position is transparent in the
terms of its resolution 1244 (1999) as a whole: nowhere it professed an
obsession — proper of traditional international law of the past — with
territory to the detriment of the people, of the local population. It like-

wise took people into account. It had the principle ex injuria jus non
oritur in mind.
136. This general principle, well-established as it is, has at times been
counterbalanced by the maxim ex factis jus oritur 158. This does not mean

that law can emerge out of grave violations of international humanitar-
ian law, but rather as a response or reaction to these latter. In the con-
ceptual universe of international law, as of law in general, one is in the

158H. Lauterpacht, “Règles générales du droit de la paix”, 62 Recueil des cours de
l’Académie de droit international de La Haye (1937), pp. 287-288; P. Guggenheim, “La
validité et la nullité . . .”, op. cit. supra, footnote 157, p. 231.

178domain of Sollen, not of Sein, or at least in that of the tension between

Sollen and Sein. It is inconceivable that States’ rights can arise, or be pre-
served, by means of a consistent pattern of grave violations of human
rights and of international humanitarian law.

137. Thus, the maxim ex factis jus oritur does not amount to a carte
blanche, as law plays its role also in the emergence of rights out of the
tension between Sollen and Sein. In the present stage of evolution of the
law of nations (le droit des gens), it is unsustainable that a people should

be forced to live under oppression, or that control of territory could be
used as a means for conducting State-planned and perpetrated oppres-
sion. That would amount to a gross and ﬂagrant reversal of the ends of

the State, as a promoter of the common good.

IX. C ONDITIONS OF LIVING OF THE POPULATION IN KOSOVO (SINCE 1989):

T HE SUBMISSIONS A DDUCED IN THE P RESENT A DVISORY PROCEEDINGS
BEFORE THE COURT

138. In respect of the present request by the General Assembly for an
advisory opinion of the ICJ, it seems to me wholly warranted, and indeed
necessary, to turn attention to the conditions of living — or rather,

of surviving — of the population in Kosovo, ever since this latter
was deprived of its autonomy in 1989 and until the UN international
administration of the territory was established in 1999 by means of the
adoption of the aforementioned resolution 1244 (1999) of the Security

Council. This crucial aspect was in fact the object of attention,
and was submitted to the cognizance of the Court, in the course of the
present advisory proceedings, in both their written and oral phases.

1. Submissions during the Written Phase
of Proceedings

139. In the course of the written phase, some of the participants in the
proceedings sought to provide — apart from a descriptive account of the
facts — an evaluation of the events which took place in that decade

(1989-1999), irrespective of their conclusions on the central question at
issue. Thus, in its Written Statement, Germany, for example, adduced
that the Yugoslav Government had created “a climate of absolute law-
lessness in the region” and that

“the responsible authorities not only failed to protect the life and

physical integrity of their citizens of Albanian ethnicity, but that
these citizens had become objects of constant prosecution, subjected
to the most complete arbitrariness. . . . It was clearly conveyed to all
ethnic Albanians that their presence was undesirable in Kosovo and

that they would do better to leave the region for good.” (Pp. 16-17.)

179Germany then concluded that “[the] facts . . . speak for themselves”, fully
conﬁrming that

“at the beginning of 1999 there indeed existed, as observed and
documented by knowledgeable and impartial third-party institu-

tions, a humanitarian emergency, caused by serious crimes deliber-
ately and purposefully committed by the security and military forces
of the FRY, and that the criminal strategy gained unprecedented
momentum when the KVM Observer Mission was withdrawn”
(p. 19).

140. Likewise, in its Written Comment, the United Kingdom stressed

that those events of great violence (between 1989 and 1999) were

“horriﬁc, well-documented and proven abuses of human rights,
abuses that have been described and condemned by the UN General
Assembly, the Security Council, by various UN treaty organs (such
as the Committee on the Elimination of Racial Discrimination
[CERD], and the Committee against Torture [CAT]), the former

UN Commission on Human Rights, UN Special Rapporteurs (from
1992 to 1997), and by the International Committee of the Red
Cross” (para. 14).

The United Kingdom also referred to these sources in its Written State-
ment (paras. 2.25-2.40).
141. The Netherlands, on its part, recalling, in its Written Statement,

the ﬁndings by the ad hoc International Criminal Tribunal for the former
Yugoslavia (ICTY) Milutinovic et al. case (2009 — cf. infra), pointed out
that there had been “campaigns of terror and violence” which resulted in
“the denial of fundamental human rights in Kosovo”, amounting to a
pattern of breaches which

“was serious because it was systematic, the joint criminal enterprise,
in particular, evidencing that the breach was carried out in an organ-

ized and deliberate way. The breach was also serious in that it was
gross: the number of expelled Kosovo Albanians and the nature and
extent of the violence directed against them constituted evidence of
the ﬂagrant nature of the breach, amounting to a direct and outright
assault on the values protected.” (Para. 3.12.)

142. Norway, in turn, in its Written Statement, informed the ICJ that,
in its letter of recognition of Kosovo (by the Royal Decree of 28 March

2008), it referred to the comprehensive assessment of evidence carried out
by the ICTY in the Milutinovic et al. case (2009). And, in its Written
Comment, Norway further recalled that the Rambouillet accords (of
1999) provided that Kosovo’s ﬁnal status should be determined on the

basis of the “will of the people”.

180 143. In its Written Statement, in the same line of concern, Albania
referred to the report published by the International Commission of

Experts to indicate that “through a widespread and systematic campaign
of terror and violence, the Kosovo Albanian population was to be forci-
bly displaced both within and without Kosovo”; the purpose of such a
campaign would have been to “displace a number of [Kosovo Albanians]
sufﬁcient to tip the demographic balance more toward ethnic equality

and in order to cow the Kosovo Albanians into submission” (para. 29).

144. Albania referred to systematic repression, daily human rights
violations and discriminatory State policies (between 1990 and 1995 —

para. 11); it further invoked the reports of the UN Special Rapporteur
on Human Rights in the former Yugoslavia, and of Human Rights
Watch (1997-1998 — paras. 18 and 20). Moreover, it also invoked the
former UN Commission on Human Rights’ resolution 1998/79, calling
upon the Serbian authorities to put an end to torture and ill-treatment of

persons under detention (para. 18). Albania at last added that “the
intention to reduce the Albanian population in Kosovo to about 600,000
by killing members of the group or forcefully expelling them”, was
“known to foreign ofﬁcials, and reportedly have been publicly uttered by
Serbian ofﬁcials” (para. 29). This concern was retaken by a handful of

participants in the course of the oral phase of the present proceedings
(cf. infra).

145. But still in the written phase of the proceedings, in its Written

Statement Austria referred to various documentary sources, including the
2009 ﬁndings of the ICTY in the Milutinovic et al. case, conﬁrming the
massive violations of human rights of international humanitarian law in
Kosovo, as from the revocation of its autonomy in 1989 onwards, until
the perpetration of crimes against humanity in 1999 (paras. 5-9). In its

Written Statement, Estonia likewise observed that the long-lasting refusal
of internal self-determination suffered by the Kosovar people was accom-
panied by grave violations of human rights and ethnic cleansing, as dis-
closed in various documentary UN sources (pp. 6-9, para. 2.1.1).

146. Poland, likewise, drew attention, in its Written Statement, to the
systematic and large-scale violations of human rights and international
humanitarian law in Kosovo during the nineties, marked by the spread-
ing of ethnic cleansing, forced displacement of people, arbitrary deten-

tions and extra-legal executions, forced disappearances of persons, and
other outbreaks of violence directed against Kosovo’s civilian population
(as established by the ICTY, Trial Chamber, in its 2009 Judgment in the
Milutinovic et al. case), rendering the situation of Kosovo unique and sui

generis. To Poland, all this humanitarian tragedy should be taken into

181account in considering Kosovo’s declaration of independence of 17 Feb-
ruary 2008 (paras. 4.5.1 and 5.2.2.1).

147. Further references to the grave and systematic violations of human
rights in Kosovo were made by Switzerland, in its Written Statement,
which also referred to General Assembly resolutions and the ICTY ﬁnd-
ings in the Milutinovic et al. case (supra — paras. 81-85). The United

States, likewise, recalling a variety of UN documentary sources (General
Assembly and Security Council, the former UN Commission on Human
Rights, the UN High Commissioner for Human Rights, the ICTY),
observed in its Written Statement that the whole factual background of

the massive violence and repression during the nineties was relevant for
considering Kosovo’s declaration of independence of 17 February 2008
(Sections II-III, pp. 8-19).

148. Slovenia also, in its Written Statement, mentioned the system-

atic repression of Kosovo Albanians, as one of the factors that led to
its recognition of Kosovo on 5 March 2008 (para. 3). Luxembourg, in
its Written Statement, also took into account the factual background
of the acute humanitarian crisis in Kosovo in the nineties, especially
the late nineties, which called for a response of the international com-

munity (para. 6, note 1). And Finland, also recalling the ﬁndings of the
ICTY in the Milutinovic et al. case (supra), pondered in its Written
Statement that the factual background of the situation in Kosovo dur-
ing the period 1989-2007 was to be taken into account for the consid-
eration of its declaration of independence of 17 February 2008. In

Finland’s view, that factual situation was inserted into the violent
break-up of Yugoslavia, within which the deliberate policy of repres-
sion and persecution of Kosovo Albanians throughout the decade
1989-1999 (seeking to render them defenceless) took place, culminat-
ing, in the spring of 1999, in the massive displacement of people in and

from Kosovo (paras. 10-11).

2. Submissions during the Oral Phase of Proceedings

149. The factual background of the grave humanitarian crisis in Kos-
ovo was also brought to the ICJ’s attention in the oral phase of the
present advisory proceedings. The matter was readdressed by partici-
pants — irrespective of their conclusions on Kosovo’s declaration of
independence of 17 February 2008 — in the public sittings of the ICJ

during the ﬁrst half of December 2009. Thus, in its oral arguments,
(present-day) Serbia, much to its credit, regretted the tragedies and pain
provoked by the conﬂicts of 1998-1999; it conceded that there was ethnic
cleansing in the city of Pristina, and all this — the generalized violence of

State and non-State actors — led to the establishment in 1999 of the
international administration of territory, and to the purported criminal

182sanction of individuals responsible for the grave breaches of human
159
rights and international humanitarian law .

150. On their part, Kosovo’s authorities, after recalling the persecu-
tions of the twenties, the ﬁfties and the sixties, added that the forcible

removal, by intimidation, of Kosovo’s autonomy in 1989 by S. Miloševic ´
led to the “humanitarian catastrophe” of 1998-1999, when there were
large-scale discrimination, grave human rights violations, war crimes,

crimes against humanity, ethnic cleansing, massive refugee ﬂows, loss of
life and great suffering — all rendering impossible for the people of Kos-
160
ovo to contemplate a future within Serbia . Albania, likewise, referred
to the illegal deprivation of Kosovo’s autonomy which led to those sys-
tematic and widespread violations of human rights, also including, in

addition to ethnic cleansing, summary executions, torture and rape,
forced disappearance of persons and forceful displacement of persons by
the hands of Serbian forces and paramilitaries 161. Albania stated that

over 1.5 million Kosovar Albanians were forcibly expelled from their
homes, and argued that the denial of internal self-determination of Kos-
162
ovo points to its independence .

151. Denmark also singled out the tragic events of the nineties; it
contended that those gross human rights violations led to the adoption

of resolution 1244 (1999) of the Security Council, so as to 163ress the
real and daily needs of the “people” of Kosovo . Brazil identiﬁed,
in the adoption of Security Council resolution 1244 (1999), a “clear rejec-

tion”, by the UN “collective security system”, of “the use of the veil of
sovereignty by any State to perpetrate heinous crimes against its own
population” 164. In the view of Spain, the grave situation of viola-

tions of human rights, of international humanitarian law, and of the
rights of minorities in Kosovo, was “settled” in 1999, with the adoption
165
of Security Council resolution 1244 (1999) . Russia, in its turn,
stated that resolution 1244 (1999) of the Security Council was the result
of the tragedy which fell upon Kosovo, of the conﬂict which victimized

its “community”, and of the acts of terrorism of the Kosovo Libera-
tion Army (KLA) 166.

159CR 2009/24, of 1 December 2009, pp. 33-34.
160CR 2009/25, of 2 December 2009, pp. 15-19.
161CR 2009/26, of 2 December 2009, pp. 8-9.
162Ibid., pp. 9 and 31.
163
164CR 2009/29, of 7 December 2009, pp. 66 and 74-75.
165CR 2009/28, of 4 December 2009, p. 17.
CR 2009/30, of 8 December 2009, p. 18.
166Ibid.,p.45.

183 152. The United States, on its part, argued that Kosovo, having suf-

fered a tragedy, marked by oppression and massive and systematic abuses
of human rights, became detached from Serbia 167. In turn, Croatia
stressed that the illegal removal of the autonomy of Kosovo was followed

by the systematic repression and grave violations of the human rights of
its population, which, in turn, were followed by the UN international

administration of Kosovo and the development, thereunder, of its self-
administration 168; in Croatia’s view, Kosovo has now elements of state-
hood, and all this development should be taken into account by the
169
ICJ .
153. Jordan recalled the well-documented history in Kosovo of dis-
crimination, police brutality, arbitrary imprisonment, torture, ethnic

cleansing, war crimes and crimes against humanity, victimizing the
“people” of Kosovo from the denial of its autonomy in 1989; it further
recalled that Kosovo’s declaration of independence of 17 February 2008

provided for its international supervision and human rights guaran-
tees 170; Jordan further contended that, in these circumstances, the

“people” of Kosovo are entitled to independence, emerging from the
context of the disintegration of the SFRY in 1991 171. The Netherlands,
likewise, warned that there was an atmosphere of terror in Kosovo,

with the killings, sexual assaults and forcible displacements; those grave
breaches by Serbia, it added, generated the lawful exercise by the
“people” of Kosovo of external self-determination, and the recognition

of such right by the ICJ would in its view contribute to peace and sta-
bility in the region 172.
154. In the view of Finland, the atrocities perpetrated in Kosovo

render it necessary to create the conditions wherein Kosovo’s “commu-
nities” can live in peace and justice; hence, with the impossibility of

returning to the statu quo ante and the emergence of the State of Kosovo,
with its declaration of independence of 17 February 2008 173. The United
Kingdom, on its part, after recalling the “human rights catastrophe”

which followed the revocation of Kosovo’s autonomy in 1989, argued
that secession is not regulated by international law, territorial integrity
applies only to international relations, Article 1 of the two UN Cov-

enants on Human Rights is not limited to decolonization cases only, and
the stability which prevails in the region today ﬂows, in its view, from
Kosovo’s independence 174.

155. All the aforementioned participants, as just seen, saw ﬁt to lay

167CR 2009/30, of 8 December 2009, pp. 31 and 33.
168
169CR 2009/29, of 7 December 2009, p. 57.
170Ibid.,p.61.
CR 2009/31, of 9 December 2009, pp. 28-31.
171Ibid., pp. 30-32, 36-37, 39 and 41.
172CR 2009/32, of 10 December 2009, pp. 8, 11, 13 and 16.
173CR 2009/30, of 8 December 2009, pp. 52-53, 61 and 64.
174CR 2009/32, of 10 December 2009, pp. 42, 50 and 54.

184particular emphasis on the conditions of living — actually, of surviv-

ing — of the population of Kosovo in the period concerned, namely, as
from the revocation by Serbia of Kosovo’s autonomy (constitutionally
ensured since 1974) in 1989, that led to the great suffering imposed upon
the population throughout a whole decade, until 1999. I feel obliged to
leave on the records this aspect of the substantial advisory proceedings

before this Court (written and oral phases), as, for reasons which escape
my comprehension, they are not even referred to in the present Advisory
Opinion of the Court. Signiﬁcantly, that suffering of the population of
Kosovo has now found judicial recognition, to which I shall turn next.

X. JUDICIAL RECOGNITION OF THE A TROCITIES INK OSOVO

156. As already indicated, the recent decision of the ICTY (Trial
Chamber) in the Milutinovic et al. case (2009), was in fact referred to, in
the course of the written and oral phases of the present proceedings

before the ICJ, by several participants (cf. supra). A careful reading of
the judgment of the ICTY (Trial Chamber) of 26 February 2009 discloses
facts, determined by it, which appear to me of relevance to the ICJ for
the purposes of the requested advisory opinion. The Trial Chamber of

the ICTY was very attentive to the atrocities perpetrated in Kosovo dur-
ing the nineties. In my view, the ICJ, in the same line of thinking, cannot
make abstraction of them.

157. In its judgment of 26 February 2009 in the Milutinovic et al. case,

the Trial Chamber of the ICTY found that there had been in Kosovo, in
the period concerned, a “joint criminal enterprise”, with the intent to
commit crimes or to cover them up (paras. 95-96). The targeted groups —
the victims — were civilians (para. 145). By means of the suppression of

Kosovo’s autonomy and of that “joint criminal enterprise”, Kosovo was
placed ﬁrmly under the control of Serbian authorities, and the Kosovo
Albanian population became the object of repressive and discriminatory
practices, which led to the emergence of the KLA (paras. 211-213 and

222). In 1990, Kosovo had already become a “police State”, with deten-
tions and restrictions on the freedom of information; in 1991 professors
and ofﬁcials of the University of Pristina were removed and replaced by
non-Albanians (paras. 224-225). By then, a system of discrimination

against Kosovo Albanian workers was already imposed, and maintained
throughout the nineties (paras. 226-228).

158. State-sanctioned discrimination took place even in the workplace,

in labour relations; there was reported in the United Nations in 1992 the
“dismissal of thousands of Kosovo Albanian workers, and the effect of
the ‘Law on Labour Relations under Special Circumstances’”, as well as

185“the measures taken by the Serbian authorities in Kosovo” (paras. 229-

230). As from 1989, “laws, policies and practices were instituted that
discriminated against the Albanians, feeding into local resentment and
feelings of persecution” (para. 237). Those fears increased in 1996, with
the emergence of the KLA, and its actions thereafter (para. 237).

159. Furthermore, impunity prevailed, as the local judicial system was

not effective “in investigating, prosecuting, and punishing those respon-
sible for committing serious crimes against the civilian population”
(para. 569). As a result of all this, and particularly of the “excessive and
indiscriminate force used by the forces of the FRY and Serbia in 1998”,

massive forced displacement took place: the United Nations (its High
Commissioner for Human Rights) estimated that 285,500 people had
been internally displaced towards the end of 1998 (paras. 913 and 918-

919). In its resolution 1199 of 23 September 1998, the Security Council
expressed its “grave concern” about “the excessive and indiscriminate use
of force by Serbian security forces and the Yugoslav army” (para. 916).
The Trial Chamber of the ICTY established the occurrence of an armed

conﬂict on the territory of Kosovo in 1998-1999 (para. 1217).
160. Last but not least, the Trial Chamber of the ICTY saw ﬁt to refer
also to the efforts undertaken to reach a peaceful settlement of the

humanitarian crisis of Kosovo. It recalled, in this connection, that, at the
Conference of Rambouillet (1999), Kosovo Albanians — unlike S. Milo-
ševi´ for Serbia — signed the agreement only after the inclusion of Chap-
ter 8, foreseeing the taking into account, for the determination of the

status of Kosovo, ﬁrst and foremost, “the will of the people in Kosovo”
(para. 401).

XI. F URTHER EVIDENCE OF THE A TROCITIES INK OSOVO :
T HE C ENTRALITY OF THE S UFFERINGS OF THE P EOPLE

161. The substantial evidence obtained by the ICTY in its judgment of
26 February 2009 in the Milutinovic et al. case (2009) is by no means the
only one. A detailed account of the systematic and gross violations of the

rights of workers in Kosovo (as from 1990), in ﬂagrant breach of the fun-
damental principle of equality and non-discrimination, and in further
“violation of the principles of the rule of law”, is provided in the detailed

Written Comments (of 17 July 2009) 175Slovenia, lodged with this Court.
Other sources could be referred to .
162. The argument that, since the utmost violence of 1998-1999 one

175For example, Amnesty International opened its Report on Kosovo of 24 July 2006
with the warning that “respect for the human rights of all, without discrimination, should
lie at the heart of the talks process. This should be a central and unifying consideration in
all decisions and agreements made about the future of Kosovo.” (Para. 1.) Almost one

186decade has passed and the “conﬂict is over” and somehow “buried” into

oblivion, and that there is peace today in Kosovo and the afore-
mentioned repression belongs to the past, is in my view superﬁcial, if not

unsustainable. It leads precisely to approach the matter from a “techni-
cal” point of view, making abstraction of the human sufferings of the

recent past. The effects of oppression are still present, and account for Koso-
vo’s declaration of independence on 17 February 2008. One cannot erase
the massive violations of human rights and of international humanitarian

law of the recent past, by invoking the passing of time. In this respect, in
its Written Comment submitted to this Court, France has aptly pondered

that:

year later, in its subsequent Report on Kosovo of May 2007, Amnesty International,
dwelling upon the ongoing forced displacement of persons, further warned that:

“[i]n addition to ongoing ethnically motivated attacks, impunity for past inter-ethnic
violence — including war crimes, and in particular impunity for ‘disappearances’ and
abductions, and continued impunity for perpetrators of the ethnic violence of March
2004 — continues to provide a massive barrier to minority return” (para. 3.2).

On its part, the 1999 Report of the OSCE Kosovo Veriﬁcation Mission provided an
account of its ﬁndings in the period ranging from October 1998 to June 1999. In its fore-
word, Justice Louise Arbour warned that “the violence in Kosovo was horriﬁc, and again

proved devastating for the many ordinary people who became its victims” (p. 1). The
atrocities comprised arbitrary arrest and detention, denial of fair trial, torture, rape and
other forms of sexual violence (sometimes applied as a weapon of war), killings, targeting
of children, forced expulsion on a massive scale, destruction of property and looting — all
“highly organized and systematic”. Acts of utmost violence were perpetrated in Rogovo,
Rakovina, Kacanik, Raçak and Pristina for example. According to the OSCE Report,
by June 1999 over 90 per cent of the Kosovo Albanian population (over 1.45 million
people) had been displaced by the conﬂict. In its summary (p. 2), the same Report stressed

that “[o]n the part of the Yugoslav and Serbian forces, their intent to apply mass killing
as an instrument of terror, coercion or punishment against Kosovo Albanians was already
in evidence in 1998, and was shockingly demonstrated by incidents in January 1999
(including the Raçak mass killing and beyond)”. In its turn, the Report of Human Rights
Watch Humanitarian Law Violations in Kosovo, covering the period February-Septem-
ber 1998, gave a detailed account of grave breaches of international humanitarian law
which took place (forced disappearances, killings, destruction of villages, arbitrary arrests,

looting of homes by the police, burning of crops, taking of hostages and extrajudicial
executions), victimizing mainly civilians, including “indiscriminate attacks on women and
children”. Special police forces acted in a planned, quick and well-organized manner, and
“autopsies were not performed on any of the victims”. There was a sustained pattern of
serious crimes (duly reported) committed by the Serbian special police, in distinct locali-
ties of Kosovo. Summing up, the Report attributed the majority of those acts of brutality
to the government forces of the Serbian special police (MUP) and the Yugoslav army
(VJ), under the command of Yugoslav President Slobodan Miloševic ´ ; it attributed vio-

lence also, on a “lesser scale”, to the Kosovo Albanian insurgency, the Kosovo Liberation
Army (KLA), and added: “The primary responsibility for gross government abuses lies
with Slobodan Miloševic ´, who rode to power in the late eighties by inciting Serbian
nationalist chauvinism around the Kosovo issue”; Human Rights Watch, Humanitarian
Law Violations in Kosovo , London/New York, HRW, 1998, pp. 3-22 and pp. 26-65.

187 “[w]hatever the political changes seen in Serbia since the fall of the
Miloševic´ régime, the trauma and scars of the past were (and still

are) far from healed. The brutal repression — and international
crimes accompanying it — to which the Kosovar population was
subjected in 1998-1999 could but prevent it from contemplating a
future within the Serbian State, so deep the psychological wounds go
(and still do) and so well entrenched in minds was (and still is) the

memory of the atrocities committed. There are crimes which cannot
fade from the individual and collective memory.” (Para. 18.)

163. To attempt to make abstraction of the suffering of the people or
population of Kosovo in the years of repression is an illusory exercise.
The scars of the bloodshed will take a long time to heal, they will take

generations to heal. The experience, in this connection, of the recent
adjudication by international human rights tribunals such as the Inter-
American and the European Courts of Human Rights, of cases of mas-
sacres lodged with them, contains invaluable lessons, worthy of attention
and deserving of being rescued in this respect. One such lesson lies in the

enhanced centrality of the position of those victimized by human cruelty,
and of their suffering.
164. To recall but one example of the recent cycle of cases of mas-
sacres brought before, and adjudicated by, international human rights
tribunals (a noticeable advance of the old ideal of the realization of inter-

national justice), in the case of the Moiwana Community versus Suri-
name, the massacre of the members of that Community (by State-organ-
ized, trained and armed perpetrators) had taken place in late 1986, but
only two decades later, their case, lodged with the Inter-American Court
of Human Rights, was adjudicated by this latter (Judgment on the mer-

its, of 15 June 2005). In my separate opinion in the Moiwana Community
case, I deemed it ﬁt to ponder:

“The circumstances of the present case of the Moiwana Commu-
nity versus Suriname invite one to a brief reﬂection, going beyond its
conﬁnes. Well before, as well as after, the attainment of statehood
by Suriname, the existence of the Maroon peoples (like the Sarama-

kas in the Aloeboetoe case and the N’djukas in the present Moiwana
Community case, before this Court) has been marked by suffering, in
their constant struggle against distinct forms of domination.

The projection of human suffering in time (its temporal dimen-

sion) is properly acknowledged, e.g., in the ﬁnal document of the
UN World Conference against Racism, Racial Discrimination,
Xenophobia and Related Intolerance (Durban, 2001), its adopted
Declaration and Programme of Action. In this respect, it began by

stating that

188 ‘We are conscious of the fact that the history of humanity is
replete with major atrocities as a result of gross violations of

human rights and believe that lessons can be learned through
remembering history to avert future tragedies.’ (Para. 57.)

It then stressed the ‘importance and necessity of teaching about
the facts and truth of the history of humankind’, with a view to
‘achieving a comprehensive and objective cognizance of the tragedies

of the past’ (par. 98). In this line of thinking, the Durban ﬁnal docu-
ment acknowledged and profoundly regretted the ‘massive human
suffering’ and the ‘tragic plight’ of millions of human beings caused
by the atrocities of the past; it then called upon States concerned ‘to

honour the memory of the victims of past tragedies’, and afﬁrmed
that, wherever and whenever these occurred, ‘they must be con-
demned and their recurrence prevented’ (par. 99).
The Durban Conference ﬁnal document attributed particular
importance to remembering the crimes and abuses of the past, in

emphatic terms:

‘We emphasize that remembering the crimes or wrongs of the
past, wherever and whenever they occurred, unequivocally con-
demning its racist tragedies and telling the truth about history, are
essential elements for international reconciliation and the creation
of societies based on justice, equality and solidarity’ (para. 106) . . .

In the present case of the Moiwana Community, the handicap of,
or harm suffered by, the survivors of the massacre and close relatives
of the direct victims, of the massacre perpetrated on 29 November
1986 in the N’djuka Maroon village of Moiwana, is a spiritual one.
Under their culture, they remain still tormented by the circum-

stances of the violent deaths of their beloved ones, and the fact that
the deceased did not have a proper burial. This privation, generating
spiritual suffering, has lasted for almost twenty years, from the
moment of the perpetration of the 1986 massacre engaging the
responsibility of the State until now. The N’djukas have not forgot-

ten their dead . . . Nor could they . . .
For the ﬁrst time in almost two decades, since the massacre at
Moiwana village in 1986, the survivors found redress, with the
present Judgment of the Inter-American Court. In the meantime, the
N’djukas did not, and could not, forget their innocent and defence-

less beloved relatives, murdered in cold blood. And they will never
forget them, but their suffering — theirs together with their dead —
has now been at least judicially recognized. Their long-standing
longing for justice may now be fulﬁlled, so that they can rest in

peace with their beloved deceased.
The usual blindness of power-holders as to human values has not

189 succeeded — and will never succeed — in avoiding human thinking

to dwell upon the conception of human mortality, to reﬂect on the
enigmas of existence and death . . .

Human thinking on mortality has, in fact, accompanied human-
kind in all ages and cultures. In the old Paleolithic times, there was

a cult to the memory, and in a176ent Egypt the living and their dead
remained close together . In ancient Greece, a new sensitivity
towards post mortem destiny arose 177. It need only be recalled, as

two examples among many, namely, Plato’s contribution, in secur-
ing the continuity of human experience through the immortality and

transmigration of the soul, as well as Buddha’s contribution of
detaching human suffering from in his view what originates it, the
desires 178. The myth of the ‘eternal return’ (or repetition), so wide-

spread in ancient societies (as in Greece), conferring upon time a
cyclic structure, purported to annul (or even abolish) the irreversibil-

ity of the passing of time, to contain or withhold its virulence, and to
foster regeneration 179.

In modern times, however, human beings became ineluctably

integrated into history and to the idea of ‘progress’, implying the ‘deﬁ-
nitive abandonment of the paradise of the archetypes and of the
repetition’ 180, proper of ancient cultures and religions. In the West-

ern world, there came to prevail, in the twentieth century, an attitude
of clearly avoiding to refer to death; there came to prevail a ‘great
181
silence’ about death . Contemporary Western societies came to
‘prohibit’ the consideration of death at the same time that they fos-
182
tered hedonism and material well-being .
While ancient cultures were very respectful of the elderly, ‘mod-
ern’ societies try rather to put them aside 18. Ancient cultures ascribe

great importance to the relationships between the living and the
dead, and to death itself as part of life. Modern societies try in vain

176 J. L. de León Azcárate, La Muerte y Su Imaginario en la Historia de las Religiones ,

Bi177o, Universidad de Deusto, 2000, pp. 24-25, 37, 50-51 and 75.
178 Ibid., pp. 123 and 130.
J. P. Carse, Muerte y Existencia — Una Historia Conceptual de la Mortalidad
Humana, Mexico, Fondo de Cultura Económica, 1987, pp. 85 and 167.
179 M. Eliade, El Mito del Eterno Retorno , Madrid/Buenos Aires, Alianza Ed./Emecé
Ed., 2004, pp. 90-91.

180 Ibid., p. 156.
181
Ph. Ariès, Morir en Occidente desde la Edad Media hasta Nuestros Días , Buenos
Aires, A. Hidalgo Ed., 2000 (re-ed.), pp. 196-199, and cf. pp. 213 and 238.

182 Ibid., p. 251.
183 Cf. [Various authors] Dialogue among Civilizations — The Round Table on the Eve
of the United Nations Millennium Summit , Paris, Unesco, 2001, p. 84 (intervention by
E. Morin).

190 to minimize or ignore death, rather pathetically. Nowadays there is
184
stimulus simply to forget . . .”

165. In the present Advisory Opinion, the ICJ should not have eluded,
as it did, to the consideration of the facts; the atrocities undergone by the
people in Kosovo in the decade 1989-1999 which led to the adoption by
the UN Security Council of its resolution 1244 (1999). This factual back-

ground was taken note of in several preceding resolutions of the Security
Council itself, as well as of the General Assembly and ECOSOC, and in
reports of the UN Secretary-General. One cannot avoid the sunlight with

a blindfold. That factual background has been duly captured by human
conscience, by the United Nations as a whole — whether the ICJ evades
it or not. It is of great importance to keep the grave humanitarian tragedy
of Kosovo in mind, so as to avoid repetition in the future of the crimes

against humanity therein committed in the course of a decade.

166. At this stage of my separate opinion in the present Advisory

Opinion of the ICJ, may I summarize the factual background and con-
text of the present request for an advisory opinion of the ICJ. As pointed
out by several participants in their Written Statements and Comments, as
well as in the course of their oral arguments in the public hearings before

this Court, the forcible removal, in 1989, by the Serbian authorities, of
Kosovo’s autonomy led to the humanitarian catastrophe, which reached
the point of highest tension in 1998-1999. During this catastrophe, grave
and successive violations of human rights and of international humani-

tarian law occurred, including mass killings, war crimes, crimes against
humanity, ethnic cleansing, massive refugee ﬂows and forcible displace-
ment of large segments of the population. Over 1.5 million Kosovar
Albanians were forcibly expelled from their homes.

167. There were systematic and widespread violations of human rights,
including torture and rape, forced disappearance of persons, abductions,
indiscriminate attacks on women, targeting of children, taking of hos-
tages, arbitrary arrests, summary and extrajudicial executions; by the

hands of Serbian forces and paramilitaries. There also occurred destruc-
tion of property, looting of homes by the police, burning of crops — all
highly organized and systematic.

168. State-sanctioned discrimination took place in the workplace, in
labour relations, in public health, and in education. The basic needs of

184IACtHR, case of the Moiwana Community versus Suriname, Judgment (merits) of
15 June 2005, Series C, No. 124, separate opinion of Judge A. A. Cançado Trindade,
paras. 24-27, 29-30, 33 and 35-38.

191the population were no longer met, as a result of State-sanctioned

discrimination. The judicial system failed to work, and total impunity
prevailed. Systematic and gross violations of the rights of workers in
Kosovo occurred (as from 1990) in ﬂagrant violation of the fundamental

principle of equality and non-discrimination, and in further breach of the
rule of law. As violence breeds violence, as from the mid-nineties KLA
violence was added to the context of social disruption in Kosovo. The
State-planned widespread oppression created an atmosphere of terror,

and led to the adoption of resolution 1244 (1999) of the Security Council,
so as to address the pressing daily needs of the “people” or “population”
of Kosovo.

XII. T HE P EOPLE-C ENTERED O UTLOOK IN C ONTEMPORARY
INTERNATIONAL LAW

1. “People” or “Population” and Statehood Revisited

169. In the past, expert writing on statehood seemed obsessed with one

of the constitutive elements of statehood, namely, territory. The obses-
sions of the past with territory were reﬂected, in the legal profession, in
the proliferation of writings on the matter, in particular on the acquisi-
tion of territory. Those past obsessions led to the perpetration of the

abuses of colonialism, and other forms of dominance or oppression. All
this happened at a time when international law was approached from the
strict and reductionist outlook of inter-State relations, overlooking — or

appearing even oblivious of — the needs and legitimate aspirations of the
subjugated peoples.
170. The preconditions for statehood in international law remain those

of an objective international law, irrespective of the “will” of individual
States. As to the classic prerequisites of statehood, gradually greater
emphasis has shifted from the element of territory to that of the norma-
tive system185. In more recent times, it has turned to that of the popula-

tion — pursuant to what I would term as the people-centered outlook in
contemporary international law — reﬂecting the current process of its
humanization, as I have been sustaining for many years. In fact, the law

of nations has never lost sight of this constitutive element — the most
precious one — of statehood: the “population” or the “people”, irrespec-
tive of the difﬁculties of international legal thinking6to arrive at a uni-

versally accepted deﬁnition of what a “people” means.

185Cf., e.g., K. Marek, Identity and Continuity of States in Public International Law ,
2nd ed., Geneva, Droz, 1968, pp. 1-619.
186The endeavours of conceptualization of “people”, in connection with the exercise of

192 171. Even some exercises of the past — which have proven to be long-

lasting and still valuable — disclosed concern with the conditions of liv-
ing of the “people” or the “population”, in an endeavour which at their
time was perhaps not grasped with sufﬁcient clarity. Thus, the célèbre

1933 Montevideo Convention on the Rights and Duties of States was
adopted at the VII International Conference of American States as the
most signiﬁcant achievement of a Latin American initiative prompted by

a regional resentment against interventionist and certain commercial
policies. The Proceedings (Actas) of the Montevideo Conference reveal
that the travaux préparatoires of the aforementioned 1933 Convention

were marked by reliance on principles of international law, so as to pro-
tect “small or weak nations” 187.

172. Those principles emanated from the “juridical conscience” of the
continent 188. In the course of that Conference’s debates on the Draft
Convention, there were in fact reiterated expressions of concern with the
189
conditions of living of the peoples (pueblos) of the continent .tI
comes, thus, as no surprise, that the 1933 Montevideo Convention,
adopted on 26 December 1933 (having entered into force on 26 Decem-

ber 1934), in dwelling upon the prerequisites of statehood, already at that
time referred ﬁrst to the population, and then to the other elements. In
the wording of its Article I,

“The State as a person of international law should possess the fol-

lowing qualiﬁcations: (a) a permanent population; (b) a deﬁned
territory; (c) government; and (d) capacity to enter into relations
with the other States.”

2. The Principle of Self-Determination
of Peoples under Prolonged Adversity

or Systematic Oppression

173. In our age of the advent of international organizations, the
former experiments of the mandates system (in the League of Nations
era), and of the trusteeship system (under the United Nations), to which

self-determination in international law, have given rise to much discussion in recent
decades, which have, however, remained inconclusive to date. Cf., on this particular
point, e.g., J. Summers, Peoples and International Law , Leiden, Nijhoff, 2007, pp. XXXIII,
26, 73, 164, 174-175, 244-245, 269-270, 306, 314 and 404.

187[Actas de la] VII Conferencia Internacional Americana (1933) — II Comisión: inter-
ventions of Haiti (pp. 12-13), Nicaragua (pp. 15 and 60-61), Ecuador (p. 34), Argentina
(pp. 38 and 40-41), El Salvador (p. 52) and Cuba (p. 60) (original document deposited in
the Columbus Memorial Library, OAS, Washington, DC; copy of the document on ﬁle
with me).
188Ibid., interventions of Colombia (pp. 43-45 and 57-59), Brazil (p. 55), Nicaragua
(pp. 62-63 and 72) and Uruguay (pp. 65-67).
189
Ibid., interventions of Mexico (pp. 20-21), Ecuador (p. 34), Chile (p. 48) and Nica-
ragua (pp. 62-63).

193the contemporary (and distinct) UN experiments of international admin-
istration of territory (such as Kosovo and East Timor) can be added, dis-

play one common denominator: the concern with the conditions of living,
the well-being and the human development of the peoples at issue, so
as to free them from the abuses of the past, and to empower them to
become masters of their own destiny (cf.supra).
174. The historical process of emancipation of peoples in the recent

past (mid-twentieth century onwards) came to be identiﬁed as emanating
from the principle of self-determination, more precisely external self-
determination. It confronted and overcame the oppression of peoples
as widely known at that time. It became widespread in the historical

process of decolonization. Later on, with the recurrence of oppression as
manifested in other forms, and within independent States, the emancipa-
tion of peoples came to be inspired by the principle of self-determination,
more precisely internal self-determination, so as to oppose tyranny.

175. Human nature being what it is, systematic oppression has again
occurred, in distinct contexts; hence the recurring need, and right, of
people to be freed from it. The principle of self-determination has sur-
vived decolonization, only to face nowadays new and violent manifesta-

tions of systematic oppression of peoples. International administration of
territory has thus emerged in UN practice (in distinct contexts under the
UN Charter, as, for example, in East Timor and in Kosovo). It is imma-
terial whether, in the framework of these new experiments, self-determi-
nation is given the qualiﬁcation of “remedial” or another qualiﬁcation.

The fact remains that people cannot be targeted for atrocities, cannot live
under systematic oppression. The principle of self-determination applies
in new situations of systematic oppression, subjugation and tyranny.

176. No State can invoke territorial integrity in order to commit
atrocities (such as the practices of torture, and ethnic cleansing, and mas-
sive forced displacement of the population), nor perpetrate them on the
assumption of State sovereignty, nor commit atrocities and then rely on a

claim of territorial integrity notwithstanding the sentiments and inelucta-
ble resentments of the “people” or “population” victimized. What has
happened in Kosovo is that the victimized “people” or “population” has
sought independence, in reaction against systematic and long-lasting ter-
ror and oppression, perpetrated in ﬂagrant breach of the fundamental

principle of equality and non-discrimination (cf. infra). The basic lesson
is clear: no State can use territory to destroy the population. Such atroci-
ties amount to an absurd reversal of the ends of the State, which was cre-
ated and exists for human beings, and not vice-versa.

194 XIII. PRINCIPLES OF INTERNATIONAL LAW ,THE L AW OF

THE U NITED NATIONS AND THE H UMANE ENDS OF THE STATE

1. Territorial Integrity in the Framework
of those Humane Ends

177. Over the last four decades, growing attention has been turned to

the treatment dispensed by States to the populations concerned. This has
become a matter of concern in contemporary international law. The
debate on human security has echoed in the UN General Assembly
throughout the last decade, reminding States that theirs is the duty to

protect and to empower their inhabitants. They cannot engage in criminal
activities against their population. Human conscience has again awak-
ened to respond to the pressing need to secure that abuses of the past and

the present are no longer committed in the future, to the detriment of the
population. Two illustrations may be recalled in this connection.

178. The celebrated resolution 2625 (XXV) of 1970 of the UN General

Assembly, containing the Declaration on Principles of International Law
concerning Friendly Relations and Co-operation among States in accord-
ance with the Charter of the United Nations190, states in paragraph 5 (7)

that:

“Nothing in the foregoing paragraphs shall be construed as author-
izing or encouraging any action which would dismember or impair,
totally or in part, the territorial integrity or political unity of sov-

ereign and independent States conducting themselves in compliance
with the principle of equal rights and self-determination of peoples as
described above and thus possessed of a government representing the

whole people belonging to the territory without distinction as to race,
creed or colour.” (Emphasis added.)

179. The Court could, and should, have paid close attention to this

particular paragraph of the UN Declaration of Principles, when it recalled
another passage of the 1970 Declaration in paragraph 80 of the present
Advisory Opinion on Accordance with International Law of the Unilat-

eral Declaration of Independence in Respect of Kosovo . After all, this
paragraph of the UN Declaration of Principles has a direct bearing on
the question put to the Court by the General Assembly, and should at
least have been considered together with the paragraph that the Court

saw ﬁt to refer to. The relevance of compliance with the principle of equal
rights and self-determination of peoples, in relation to the States’ territo-
rial integrity, as set forth in paragraph 5 (7) of the 1970 Declaration, has

190Hereinafter referred to as the “1970 UN Declaration of Principles”.

195not passed unnoticed throughout the years in expert writing on this par-
191
ticular subject .

180. Thus, in the line of the previous considerations, the Government
of a State which incurs grave and systematic violations of human rights

ceases to represent the people or population victimized. This understand-
ing has been reiterated, in even stronger terms, at the outcome of the
II World Conference on Human Rights held in Vienna, by the

1993 Vienna Declaration and Programme of Action (para. 2), which
restates:

“The World Conference on Human Rights considers the denial of
the right of self-determination as a violation of human rights and

underlines the importance of the effective realization of this right.

In accordance with the Declaration on Principles of International

Law concerning Friendly Relations and Co-operation among States
in accordance with the Charter of the United Nations, this shall not
be construed as authorizing or encouraging any action which would
dismember or impair, totally or in part, the territorial integrity

or political unity of sovereign and independent States conducting
themselves in compliance with the principle of equal rights and self-
determination of peoples and thus possessed of a government repre-

senting the whole people belonging to the territory without distinction
of any kind.” (Emphasis added.)

181. The ﬁnal document of a memorable United Nations World Con-
ference — the II World Conference on Human Rights of 1993 — went

further than the 1970 Declaration of Principles, in proscribing dis-
crimination “of any kind”. The massive violations of human rights and
international humanitarian law to which the Kosovar Albanians were

subjected in the nineties met the basic criterion set forth in the 1970
UN Declaration of Principles, and were enlarged in scope in the 1993
ﬁnal document of the United Nations II World Conference on Human
Rights. The entitlement to self-determination of the victimized popula-

tion emerged, as the claim to territorial integrity could no longer be relied
upon by the willing victimizers.

191Cf., e.g., Milan Sahovic, “Codiﬁcation des principes du droit international des rela-
tions amicales et de la coopération entre les Etats”, 137 Recueil des cours de l’Académie de
droit international de La Haye (1972), pp. 295 and 298; O. Sukovic, “Principle of Equal
Rights and Self-Determination of Peoples”, in Principles of International Law concerning
Friendly Relations and Co-operation (ed. M. Sahovic), Belgrade, Institute of International
Politics and Economics/Oceana, 1972, pp. 338-341, 346-347 and 369-373; G. Arangio-
Ruiz, The UN Declaration on Friendly Relations and the System of the Sources of Inter-
national Law, Alphen aan den Rijn, Sijthoff/Noordhoff, 1979, pp. 135-136 and 140-141;
P. Thornberry, “The Principle of Self-Determination”, in The United Nations and the
Principles of International Law — Essays in Memory of M. Akehurst (eds. V. Lowe and
C. Warbrick), London/New York, Routledge, 1994, pp. 176 and 192-195.

196 2. The Overcoming of the Inter-State Paradigm

in International Law

182. Principles of international law, as formulated in the UN Charter

(Article 2) and restated in the 1970 UN Declaration of Principles, besides
retaining their full validity in our days, have had signiﬁcant projections in
time, accompanying pari passu, and guiding, the evolution of interna-
192
tional law itself. This applies to the seven restated principles
in the 1970 Declaration of Principles (to which the ICJ has been attentive
193
in its case law) , including the principle of equality of rights and self-
determination of peoples , pointing towards the overcoming of the tradi-
tional inter-State dimension of international law.

183. In the restatement of the principle of equality of rights and self-
determination of peoples by the 1970 UN Declaration of Principles of

International Law, it was explained that even a non-self-governing terri-
tory (under Chapter XI of the UN Charter) has a separate and distinct

status from the territory of the State which administers it, so that the
people living therein can exert their right of self-determination in accord-
ance with the principles and purposes of the UN Charter 19.

184. Recent developments in contemporary international law were to
disclose both the external and internal dimensions of the right of self-

determination of peoples: the former meant the right of every people to
be free from any form of foreign domination, and the latter referred to

the right of every people to choose their destiny in accordance with their
own will, if necessary — in case of systematic oppression and subjuga-
tion — against their own government. This distinction 195 challenges the

192
Namely: (1) the principle of the prohibition of the threat or use of force in inter-
national relations; (2) the principle of peaceful settlement of disputes; (3) the principle
of non-intervention in the internal affairs of States; (4) the States’ duty of international
co-operation in accordance with the UN Charter; (5) the principle of equality of rights
and self-determination of peoples; (6) the principle of sovereign equality of States; and
(7) the principle of good faith in the fulﬁlment of obligations in accordance with the UN
Charter.

193
As, for example, and as well known, in its Advisory Opinion on Western Sahara of
1975, and in its Judgments in the Nicaragua v. United States case of 1986, and in the East
Timor case of 1995.
194 The international legal status of that territory (under Chapter XI of the UN Char-
ter) generates likewise obligations of respect for the right of self-determination of the
people living in it, as well as for the safeguard of the human rights of its inhabitants; cf.,
in this respect, e.g., I. Brownlie, “The Rights of Peoples in Modern International Law”, in
The Rights of Peoples (ed. J. Crawford), Oxford, Clarendon Press, 1988, pp. 1-16; [Vari-
ous authors], Les résolutions dans la formation du droit international du développement

(C195oque de 1970), Geneva, IUHEI, 1971, pp. 63-67.
Endorsed in expert writing; cf., e.g., A. Cassese, Self-Determination of Peoples — A
Legal Reappraisal, Cambridge University Press, 1995, pp. 1-365; P. Thornberry, “The
Principle of Self-Determination”, in The United Nations and the Principles of Interna-

197purely inter-State paradigm of classic international law. In the current

evolution of international law, international practice (of States and of
international organizations) provides support for the exercise of self-
determination by peoples 196 under permanent adversity or systematic

repression, beyond the traditional conﬁnes of the historical process of
decolonization. Contemporary international law is no longer insen-
sitive to patterns of systematic oppression and subjugation.

185. The emergence and evolution of the international law of human

rights came to concentrate further attention on the treatment dispensed
by the State to all human beings under its jurisdiction, on the conditions
of living of the population, in sum, on the function of the State as pro-

moter of the common good. If the legacy of the II World Conference on
Human Rights (1993) convened by the United Nations is to be summed
up, it surely lies in the recognition of the legitimacy of the concern of the

international community as a whole with the conditions of living of the
population everywhere and at any time 19, with special attention to those
in a situation of greater vulnerability and standing thus in greater need of

protection. Further than that, this is the common denominator of the
recent UN cycle of World Conferences throughout the nineties, which
sought to conform the UN agenda for the dawn of the twenty-ﬁrst

century. Ironically, at the same time the international community
was engaged in this exercise, discriminatory practices and grave violations
of human rights and international humanitarian law kept on being per-

petrated in Kosovo, and the news of those practices and violations promptly
echoed in the United Nations.
186. Both the Security Council and the General Assembly, as well as

other organs of the United Nations, promptly responded to the aggrava-
tion of the humanitarian crisis in Kosovo, by means of a series of reso-
lutions they adopted (cf. supra). Security Council resolution 1244 (1999)

itself, adopted on 10 June 1999, established UNMIK, drawing attention
to the “grave humanitarian situation in Kosovo” 19, amounting to a
199
“humanitarian tragedy” . It condemned all acts of violence against,

tional Law ...op. cit. supra, note 191, pp. 175-203; Ch. Tomuschat, “Self-Determination
in a Post-Colonial World”, in Modern Law of Self-Determination (ed. Ch. Tomuschat),
Dordrecht, Nijhoff, 1993, pp. 1-20; A. Rosas, “Internal Self-Determination”, in ibid.,

pp. 225-251; J. Salmon, “Internal Aspects of the Right to Self-Determination: Towards a
De196ratic Legitimacy Principle?”, in ibid., pp. 253-282.
Cf., on the matter, e.g., United Nations, Compilation of General Comments and
General Recommendations Adopted by Human Rights Treaty Bodies , UN doc. HRI/
GEN/1/Rev.3, of 15 August 1997, p. 13, paras. 1-2 and 6.

197A. A. Cançado Trindade, Tratado de Direito Internacional dos Direitos Humanos ,
2nd ed., Vol. I, Porto Alegre/Brazil, S. A. Fabris Ed., 2003, pp. 241-242; ibid., 1st ed.,
Vol. II, 1999, pp. 263-276; ibid., 1st ed., Vol. III, 2003, pp. 509-510.
198Preamble, para. 4.
199Preamble, para. 6.

198and repression of, the population in Kosovo 20. It called for, and insisted

on, the voluntary and safe return of all refugees and (internally) displaced
persons to their homes 20.
187. Its major concern was with the population in Kosovo; it thus

decided to facilitate a “political process designed to determine Kosovo’s
future status” 202. To that end, and “pending a ﬁnal settlement”, it further

decided to promote “substantial autonomy and self-government in Kos-
ovo” 203. Accordingly, two years after the adoption of Security Council
resolution 1244 (1999), the Head of UNMIK, Special Representative of

the UN Secretary-General (Mr. H. Haekkerup), promulgated, on 15 May
2001, the newly created “Constitutional Framework for Provisional Self-
Government in Kosovo” 204. The adoption of this document resulted

from a concerted dialogue involving UNMIK itself, Kosovo’s authorities
and members of its distinct communities. Signiﬁcantly, the Constitutional
Framework was not “conceptually linked” to any State, and rather
205
addressed an “internationalized territory” .
188. It went beyond the strict inter-State paradigm in interna-

tional law. The aforementioned Constitutional Framework favoured the
emergence of a “multi-ethnic civil society”, guided by the principles of
protection to the national communities and of supervision by the Special

Representative of the UN Secretary-General. In this understanding, it
delegated to local institutions in Kosovo parts of the responsibility
that UNMIK itself had undertaken since mid-1999, thus taking a rele-
206
vant step towards the attainment of self-government in Kosovo .n
Kosovo’s evolving domestic legal order in its new era, a key role was
reserved to the fundamental principles of equality and non-discrimina-

tion, and of humanity (in the framework of the Law of the United
Nations), to which I shall now turn.

3. The Fundamental Principle of Equality and Non-Discrimination

189. I have already referred to the fact that the “principle of identical
treatment in law and in fact” found judicial recognition, by the PCIJ,

before the 1948 Universal Declaration of Human Rights (cf. paras. 70-
71, supra). And even before that, it was deeply engraved in human con-
science. More recently, the ICJ, in its célèbre Advisory Opinion on

Namibia of 1971, pointed out that “the injured entity” was a “people”,

200Preamble, para. 5; operative part, para. 3; Annex 1; and Annex 2, para. 1.

201Preamble, para. 7; operative part, para. 9 (c),11 (k) and 13; Annex 1; Annex 2 (4)
and (7).
202
203Operative part, para. 11 (e).
204Operative part, para. 11 (a).
UN doc. UNMIK regulation 2001/9.
205Carsten Stahn, “Constitution without a State? Kosovo under the United Nations
Constitutional Framework for Self-Government”, 14 Leiden Journal of International Law
(2001), pp. 542 and 544.
206Ibid., pp. 531-532, 557-558 and 561.

199which had to “look to the international community for assistance

(I.C.J. Reports 1971 , p. 56, para. 127). In their separate opinions,
Judge Ammoun stressed the relevance of “the principles of equality, lib-
erty and peace” embodied in the UN Charter and the 1948 Universal

Declaration (ibid., pp. 72 and 76-77), and Judge Padilla Nervo stressed
the UN Charter’s call (Articles 1 (3) and 76 (c)) for the promotion of
respect for human rights “for all, without distinction as to race . . .”

(ibid., pp. 111 and 126).

190. The fundamental principle of equality and non-discrimination is
indeed of the utmost importance in the framework of the Law of the
United Nations. When the United Nations engaged itself in the pro-

tection of the inhabitants of trust territories (Chapter XII of the UN
Charter), or else of non-self-governing territories (Chapter XI), its human-
itarian initiatives intended to bring about changes in the international

legal order itself, as part of the historical process of its humanization.
In its outlook, sovereignty “resided with the people, was at their service”;
such “people-centered vision of sovereignty” was remindful of the preamble

of the United Nations Charter, evoking “We the peoples of the United
Nations”; this outlook is further illustrated by some rather novel concep-
tions, such as States’ automatic succession into human rights treaties, or
207
extra-territorial application of human rights .

191. International law, freed from the strictness and reductionism of

the inter-State paradigm of the past, is nowadays conceived with due
account of the fundamental principle of equality and non-discrimina-
tion. The UN Human Rights Committee itself, supervisory organ under

the UN Covenant on Civil and Political Rights, has pronounced on
States’ automatic succession into human rights treaties ( general com-
ment No. 26, of 1997, on “continuity of obligations”, para. 4) and on
extra-territorial application of human rights (general comment No. 31,

of 2004, on “the nature of the general legal obligation imposed on States
Parties”, para. 10) 208.

207As timely recalled by Carsten Stahn, The Law and Practice of International Terri-
torial Administration — Versailles to Iraq and Beyond , Cambridge University Press, 2008,
pp. 112 and 755-756; and cf. pp. 753 and 759, for the UN proactive State-building prac-

ti208developed as from the nineties.
Cf. text in: United Nations, International Human Rights Instruments — Compila-
tion of General Comments and General Recommendations Adopted by Human Rights
Treaty Bodies, Vol. I, doc. HRI/GEN/1/Rev.9 (Vol. I), of 27 May 2008, pp. 223 and 245.
As to State succession, may it be recalled that, a resolution of the Institut de droit inter-
national (of 26 August 2001), though covering State succession in matters of property and
debts rather than treaties, nevertheless acknowledged the need “to clarify and improve the
situation of individuals” (Article 5 (2)), and afﬁrmed, in the preamble, that “all situations

200 192. There is nowadays a considerable number of international instru-

ments informed by, and conformed on the basis of, the fundamental
principle of equality and non-discrimination. It is the case, inter alia,of
the 1965 UN Convention on the Elimination of All Forms of Racial Dis-

crimination, of the 1973 UN Convention on the Suppression and Pun-
ishment of the Crime of Apartheid, of the 1979 UN Convention on the
Elimination of All Forms of Discrimination against Women, of the 1985
Convention against Apartheid in Sports, of the 1990 UN Convention on

the Protection of the Rights of All Migrant Workers and Members of
Their Families, of the 1981 Declaration on the Elimination of All Forms
of Intolerance and of Discrimination Based on Religion or Belief, of the

1992 UN Declaration on the Rights of Persons Belonging to National or
Ethnic, Religious and Linguistic Minorities, the 1958 ILO Convention
(No. 111) concerning Discrimination in Respect of Employment and

Occupation and the 1960 Unesco Convention against Discrimination in
Education, to name a few.

193. It goes beyond the scope of the present separate opinion to pro-

ceed to an examination of these instruments. At this stage, I limit myself
to add that, parallel to this impressive law-making work on the basis of
the fundamental principle of equality and non-discrimination, this latter

has generated in recent decades much doctrinal writing (on pertinent pro-
visions of human rights treaties in force) 209and an equally impressive
jurisprudential construction on the principle at issue. As a result of all

that, contemporary international law does not lose sight at all of the fun-
damental principle of equality and non-discrimination, keeps it in mind
all the time and in distinct circumstances, with all the implications of this
new posture.

194. Attention has thereby been rightly shifted from unaccountable
“sovereign” prerogatives of the past to people-centered rights and
accountability of territorial authorities. And it was about time that

human conscience awakened to the imperative of doing so, so as to avoid
the repetition of the atrocities of the recent past. The fundamental prin-

leading to a succession of States should take place in full conformity with public interna-
tional law, and in particular with humanitarian law and human rights”. Cf. 69 Annuaire
de l’Institut de droit international — Session de Vancouver (2000-2001) pp. 715 and 717.
And, in relation to State succession as well as extra-territorial application of human
rights, cf. further, inter alia, comments in: F. Pocar, “Patto Internazionale sui Diritti
Civili e Politici ed Estradizione”, in Diritti dell’Uomo, Estradizione ed Espulsione (Atti del
Convegno di Ferrara di 1999 per Salutare G. Battaglini, ed. F. Salerno), Padua/Milan,
Cedam, 2003, pp. 89-90.

209Cf., inter alia, e.g., J. Symonides (ed.), The Struggle against Discrimination , Paris,
Unesco, 1996, pp. 3-43; T. Opsahl, Law and Equality — Selected Articles on Human
Rights, Oslo, Ad Notam Gyldendal, 1996, pp. 165-206; M. Bossuyt, L’interdiction de la
discrimination dans le droit international des droits de l’homme , Brussels, Bruylant, 1976,
pp. 1-240; N. Lerner, Group Rights and Discrimination in International Law , 2nd ed., The
Hague, Nijhoff, 2003, pp. 1-187.

201ciple of equality and non-discrimination provides the foundation of an

impressive series of human rights treaties (supra) which integrate the
corpus juris gentium of contemporary international law. It is, however,
by no means only a contemporary phenomenon, as the secular principle

of equality of treatment in the relations among individuals as well as 210
among peoples is deeply rooted in the droit des gens (jus gentium) .

195. Last but not least, on this particular point, I have had the occa-

sion to dwell upon the incidence of the fundamental principle of equality
and non-discrimination in a recent decision of this Court. In my dissent-
ing opinion in the Court’s Order of 6 July 2010 in the case concerning

Jurisdictional Immunities of the State (Germany v. Italy), I.C.J. Reports
2010 (I), (original claim and counter-claim), I have deemed it ﬁt to
observe that

“As proclaimed, in the aftermath of the Second World War, by the
1948 Universal Declaration of Human Rights, ‘[a]ll human beings
are born free and equal in dignity and rights’ (Article 1). This
prohibition derives from the fundamental principle of equality and

non-discrimination. This fundamental principle, according to
Advisory Opinion No. 18 of the Inter-American Court of Human
Rights (IACtHR) on the Juridical Condition and Rights of Undocu-

mented Migrants (of 17 September 2003), belongs to the domain
of jus cogens.
In that transcendental Advisory Opinion of 2003, the IACtHR, in

line with the humanist teachings of the ‘founding fathers’ of the droit
des gens (jus gentium), pointed out that, under that fundamental
principle, the element of equality can hardly be separated from non-
discrimination, and equality is to be guaranteed without discrimina-

tion of any kind. This is closely linked to the essential dignity of the
human person, ensuing from the unity of the human kind. The basic
principle of equality before the law and non-discrimination perme-

ates the whole operation of the State power, having nowadays
entered the domain of jus cogens 21. In a concurring opinion, it was
stressed that the fundamental principle of equality and non-discrimi-

nation permeates the whole corpus juris of the international law of
human rights, has an impact in public international law, and projects
itself onto general or customary international law itself, and inte-
grates nowadays the expanding material content of jus cogens 21.”

(P. 381, paras. 134-135.)

210Cf. Association internationale Vitoria-Suárez, Vitoria et Suárez: Contribution des
théologiens au droit international moderne , Paris, Pedone, 1939, pp. 38-39.
211IACtHR, Advisory Opinion No. 18 (of 17 September 2003), on theJuridical Condi-
tion and Rights of Undocumented Migrants, Series A, No. 18, paras. 83, 97-99 and 100-101.
212Ibid., concurring opinion of Judge A. A. Cançado Trindade, paras. 59-64 and
65-73. In recent years, the IACtHR, together with thad hoc International Criminal
Tribunal for the former Yugoslavia, have been the contemporary international tribunals

202 4. The Fundamental Principle of Humanity in the Framework of the

Law of the United Nations

196. In the present separate opinion, I have already pointed out that
the experiments of international organizations of mandates, minorities
protection, trust territories, and, nowadays, international administration
of territory, have not only turned closer attention to the “people” or the

“population”, to the fulﬁlment of the needs, and the empowerment, of
the inhabitants, but have also fostered — each one in its own way —
their access to justice at international level (para. 90, supra). Such access
to justice is understood lato sensu, i.e., as encompassing the realization of

justice. Those experiments of international organizations (rendered pos-
sible by the contemporary expansion of the international legal personal-
ity, no longer a monopoly of States) have contributed to the vindication
by individuals of their own rights, emanated directly from the droit des

gens, from the law of nations itself.
197. In my perception, this is one of the basic features of the new jus
gentium of our times. After all, every human being is an end in himself or
herself, and, individually or collectively, is entitled to enjoy freedom of

belief and “freedom from fear and want”, as proclaimed in the preamble
of the Universal Declaration of Human Rights (para. 2). Every human
person has the right to respect for his or her dignity, as part of the
humankind. The recognition of this fundamental principle of humanity is
one of the great and irreversible achievements of the jus gentium of our

times. At the end of this ﬁrst decade of the twenty-ﬁrst century, the time
has come to derive the consequences of the manifest non-compliance
with this fundamental principle of humanity.
198. Rights inherent to the human person are endowed with univer-

sality (the unity of the humankind) and timelessness, in the sense that,
rather than being “conceded” by the public power, they truly precede the
formation of the society and of the State. Those rights are independent of
any forms of socio-political organization, including the State created by

society. The rights inherent to the human person precede, and are sup-
erior to, the State. All human beings are to enjoy the rights inherent to
them, belonging to humankind. As a corollary of this, the safeguarding
of such rights is not exhausted — it cannot be exhausted — in the action

of States. By the same token, States are not to avail themselves of their
entitlement to territorial integrity to violate systematically the personal
integrity of human beings subject to their respective jurisdictions.
199. States, created by human beings gathered in their social milieu,

which have most contributed, in their case law, to the conceptual evojus cogens
(well beyond the law of treaties), and to the gradual expansion of its material content;
cf. A. A. Cançado Trindade, “ Jus Cogens : The Determination and the Gradual Expan-
sion of Its Material Content in Contemporary International Case Law”, in XXXV
Curso de Derecho Internacional Organizado por el Comité Jurídico Interamericano —
OAS (2008), pp. 3-29.

203are bound to protect, and not at all to oppress, all those who are under

their respective jurisdictions. This corresponds to the ethical minimum,
universally reckoned by the international community of our times. States
are bound to safeguard the integrity of the human person from system-
atic violence, from discriminatory and arbitrary treatment. The concep-
tion of fundamental and inalienable human rights is deeply engraved in

the universal juridical conscience; in spite of variations in their enuncia-
tion or formulation, their conception marks presence in all cultures, and
in the history of human thinking of all peoples 213.
200. This was captured in one of the rare moments — if not glimpses —

of lucidity in the twentieth century (marked by successive atrocities vic-
timizing millions of human beings), namely, that of the proclamation, by
the UN General Assembly, of the Universal Declaration of Human
Rights, on 10 December 1948. In the present Advisory Opinion on

Accordance with International Law of the Unilateral Declaration of Inde-
pendence in Respect of Kosovo , the ICJ did not even mention — not even
once — the Universal Declaration of Human Rights; as one of the Mem-
bers of the Court, I feel, however, obliged to dwell upon it, given the con-

siderable importance that I attribute to the Universal Declaration, in
interaction with the United Nations Charter, for the consideration of a
subject-matter like the one raised before the Court for the present Advi-
sory Opinion.

201. I feel not only obliged, but likewise entirely free to do so, since,
unlike the Advisory Opinion of the Court, in the present separate opinion
I made a point of ﬁlling a void, by not eluding the cause of the grave
humanitarian crisis in Kosovo, underlying not only the adoption of Secu-
rity Council resolution 1244 (1999), but also the following declaration of

independence of Kosovo, one decade later, of 17 February 2008. In fact,
it should be kept in mind that the acknowledgement of the principle of
respect for human dignity was introduced by the 1948 Universal Declara-
tion, and is at the core of its basic outlook. It ﬁrmly asserts: “All human

beings are born free and equal in dignity and rights” (Article 1). And it
recalls that “disregard and contempt for human rights have resulted in
barbarous acts which have outraged the conscience of mankind” (pream-
ble, para. 2). The Universal Declaration warns that

“it is essential, if man is not compelled to have recourse, as a last

resort, to rebellion against tyranny and oppression, that human
rights should be protected by the rule of law” (preamble, para. 3);

and it further acknowledges that

213Cf., e.g., [Various Authors] Universality of Human Rights in a Pluralistic World
(Proceedings of the 1989 Strasbourg Colloquy) , Strasbourg/Kehl, N. P. Engel Verlag,
1990, pp. 45, 57, 103, 138, 143 and 155.

204 “recognition of the inherent dignity and of the equal and inalienable

rights of all members of the human family is the foundation of free-
dom, justice and peace in the world” (preamble, para. 1).

202. Since the adoption of the Universal Declaration in 1948, one
could hardly anticipate that a historical process of generalization of the
international protection of human rights was being launched, on a truly

universal scale. Throughout more than six decades of remarkable histori-
cal projection, the Declaration has gradually acquired an authority which
its draftsmen could not have foreseen. This happened mainly because

successive generations of human beings, from distinct cultures and all
over the world, recognized in it a “common standard of achievement” (as
originally proclaimed), which corresponded to their deepest and most
214
legitimate aspirations .

203. The Universal Declaration is widely recognized as having inspired,
and paved the way for, the adoption of more than 70 human rights trea-
ties215, and having served as a model for the enactment of numerous human

rights norms in national constitutions and legislations, while helping to
ground decisions of national and international courts. The Declaration has
been incorporated into the domain of customary international law, much

contributing to render human rights the common language of humankind.

204. The Universal Declaration, moreover, is today widely recognized

as an authoritative interpretation of human rights provisions of the
Charter of the United Nations itself, heralding the transformation of the

214Already throughout the travaux préparatoires of the Universal Declaration
(particularly in the 13 months between May 1947 and June 1948), the holistic view of all
rights to be proclaimed promptly prevailed. Such an outlook was espoused in the ofﬁcial
preparatory work of the Declaration, i.e., the debates and drafting in the former UN
Commission on Human Rights (Rapporteur, René Cassin) and subsequently in the Third

Committee of the General Assembly. In addition, in 1947, in a contribution to the
work then in course in the UN Commission on Human Rights, Unesco undertook an
examination of the main theoretical problems raised by the elaboration of the Universal
Declaration; it circulated, to some of the most inﬂuential thinkers of the time around
the world, a questionnaire on the relations between rights of individuals and groups in
societies of different kinds and in distinct historical circumstances, as well as the relations
between individual freedoms and social or collective responsibilities. For the answers pro-
vided, cf. Los Derechos del Hombre — Estudios y Comentarios en torno a la Nueva
Declaración Universal Reunidos por la Unesco, Mexico/Buenos Aires, Fondo de Cultura
Económica, 1949, pp. 97-98 (Teilhard de Chardin), pp. 181-185 (Aldous Huxley), pp. 14-22
and pp. 69-74 (Jacques Maritain), pp. 24-27 (E. H. Carr), pp. 129-136 (Quincy Wright),

pp. 160-164 (Levi Carneiro), pp. 90-96 (J. Haesaert), pp. 75-87 (H. Laski), pp. 143-159
(B. Tchechko), pp. 169-172 (Chung-Shu Lo), p. 23 (M. K. Gandhi), pp. 177-180
(S. V. Puntambekar), and pp. 173-176 (H. Kabir). The two UN World Conferences on
Human Rights (Teheran, 1968; and Vienna, 1993) have given concrete expression to the
interdependence of all human rights and to their universality, enriched by cultural diversity.
215Applied today on a permanent basis at global (UN) and regional levels, and all con-
taining references to it in their preambles.

205social and international order to secure the enjoyment of the proclaimed
rights. In the preamble of the United Nations Charter, “the peoples of

the United Nations” express their determination “to save succeeding gen-
erations from the scourge of war” (para. 1), and “to reafﬁrm faith in funda-
mental human rights, in the dignity and worth of the human person”
(para. 2). This last assertion is repeated in the 1948 Universal Declaration
(para. 5). The UN Charter, furthermore, repeatedly calls for universal

respect for all, without distinction as to race, sex, language, or religion
(Articles 1 (3), 13 (1) (b),55(c) , and 76 (c)).

205. Grave breaches of fundamental human rights (such as mass kill-
ings, the practice of torture, forced disappearance of persons, ethnic
cleansing, systematic discrimination) are in breach of the corpus juris

gentium, as set forth in the UN Charter and the Universal Declaration
(which stand above the resolutions of the United Nations political
organs), and are condemned by the universal juridical conscience. Any
State which systematically perpetrates those grave breaches acts crimi-
nally, loses its legitimacy, and ceases to be a State for the victimized

population, as it thereby incurs into a gross and ﬂagrant reversal of the
humane ends of the State.

206. Under contemporary jus gentium, no State can revoke the consti-
tutionally guaranteed autonomy of a “people” or a “population” to start

then discriminating, torturing and killing innocent persons, or expelling
them from their homes and practising ethnic cleansing — without bear-
ing the consequences of its criminal actions or omissions. No State can,
after perpetrating such heinous crimes, then invoke or pretend to avail
itself of territorial integrity; the fact is that any State that acts this way

ceases to behave like a State vis-à-vis the victimized population.

207. An international organization of universal vocation and scope of
action like the United Nations, created on behalf of the peoples of the
world (supra), is fully entitled to place under its protection a population

that was being systematically discriminated against, and victimized by
grave breaches of human rights and international humanitarian law, by
war crimes and crimes against humanity. It is fully entitled, to my under-
standing, to assist that population to become master of its own destiny,
and is thereby acting in pursuance of its Charter and the dictates of the

universal juridical conscience.

208. In a historical context such as the one under review, the claim to
territorial integrity, applicable in inter-State relations, is not absolute as

some try to make one believe. If one turns to intra-State relations, terri-
torial integrity and human integrity go together, with State authority

206being exercised harmoniously with the condition of the population, aiming

to fulﬁl their needs and aspirations. Territorial integrity, in its intra-State
dimension, is an entitlement of States which act truly like States, and not

like machines of destruction of human beings, of their lives and of their
spirit216. By the same token, self-determination is an entitlement of
“peoples” or “populations” subjugated in distinct contexts (not only that

of decolonization) systematically subjected to discrimination and humili-
ation, to tyranny and oppression. Such condition of inhumane subjuga-

tion goes against the Universal Declaration and the United Nations
Charter altogether. It is in breach of the Law of the United Nations .

209. Last but not least, the fundamental principle of humanity has
been asserted also in the case law of contemporary international tribu-
nals. In the case of the Massacre of Plan de Sánchez (Judgment of

29 April 2004), concerning Guatemala, for example, at a certain stage of
the proceedings before the IACtHR, the respondent State accepted its

international responsibility for violations of rights guaranteed under the

216Already the ancient Greeks were aware of the devastating effects of the indiscrimi-
nate use of force and of war over both winners and losers, revealing the great evil of the
substitution of the ends by the means: since the times of The Iliad by Homer until
today — as so perspicaciously pondered by Simone Weil, one of the great thinkers of the
twentieth century — all “belligerents” are transformed in means, in things, in the sense-

less struggle for power, incapable even to “subject their actions to their thoughts”. The
terms “oppressors and oppressed” almost lose meaning, in face of the impotence of every-
one in front of the machine of war, converted into a machine of destruction of the spirit
and of fabrication of the “inconscience” (S. Weil, Reﬂexiones sobre las Causas de la Lib-
ertad y de la Opresión Social , Barcelona, Ed. Paidós/Universidad Autónoma de Barce-
lona, 1995, pp. 81-82, 84 and 130-131). As in The Iliad by Homer, there are no winners
and losers, all are taken by force, possessed by war, degraded by brutalities and massa-
cres; S. Weil, “L’Iliade ou le poème de la force (1940-1941)”, in Oeuvres, Paris, Quarto
Gallimard, 1999, pp. 527-552. Homer’s perennial message — as to “the butchery of men”

and the “wretched lives” of all those involved in endless ﬁghting (cf. Homer, The Iliad,
New York/London, Penguin Books, 1991 (re-ed.), pp. 222 and 543-544, verses 275-281
and 83-89) — is as valid and poignant in his times in ancient Greece as in our days.
Throughout the centuries, the “butchery of men” has continued endlessly (cf., e.g., Bar-
tolomé de Las Casas, Tratados, Vol. I, Mexico, Fondo de Cultura Económica, 1997
(reprint), pp. 14-199, and cf. pp. 219, 319 and 419), and lessons do not yet seem to have
been sufﬁciently learned — in particular the pressing need and duty to secure the primacy
of law over brute force. Thus, already in ancient Rome, M. T. Cicero pondered, in his De

Legibus (On the Laws, Book II, circa 51-43 BC), that there was “nothing more destructive
for States, nothing more contrary to right and law, nothing less civil and humane, than
the use of violence in public affairs” (M. T. Cicero, On the Commonwealth and On the
Laws (ed. J. E. G. Zetzel), Cambridge University Press, 2003 (re-ed.), Book III, ibid.,
p. 172). And in his De Republica (circa late 50s-46 BC), Cicero added that nothing was
“more damaging to a State” and “so contrary to justice and law” than recourse “to force
through a measure of violence”, where a country had “a settled and established constitu-
tion” (M. T. Cicero, The Republic — The Laws, Oxford University Press, 1998, p. 166,
Book III, para. 42). All those warnings sound, centuries later, in our days, quite contem-

porary.

207American Convention on Human Rights, and, in particular, for “not

guaranteeing the right of the relatives of the . . . victims and members of
the community to express their religious, spiritual and cultural beliefs”
(para. 36). In my separate opinion in that case, I pondered that the
primacy of the principle of humanity is identiﬁed with the very end or

ultimate goal of the law, of the whole legal order, both domestic and
international, in recognizing the inalienability of all rights inherent to
the human person (para. 17).

210. That principle marks its presence — I added — not only in the
international law of human rights, but also in international humanitarian
law, being applied in all circumstances. Whether it is regarded as under-
lying the prohibition of inhuman treatment (established by Article 3 com-

mon to the four Geneva Conventions on International Humanitarian
Law of 1949), or else by reference to humankind as a whole, or still to
qualify a given quality of human behaviour (humaneness), the principle
of humanity is always and ineluctably present (paras. 18-20). The ad hoc

International Criminal Tribunal for the former Yugoslavia (ICTY —
Trial Chamber) likewise devoted attention to that principle in its judg-
ments in, for example, the cases of Mucic et alii (of 20 February 2001)
and of Celebici (of 16 November 1998). It may further be recalled that

the Martens clause, which permeates the corpus juris of international
humanitarian law from the times of the I Hague Peace Conference (1899)
to our days, invokes and sustains the continued applicability of the prin-
ciples of the law of nations, the “principles of humanity” and the “dic-
217
tates of the public conscience” .

211. The same principle of humanity — I concluded in the aforemen-
tioned separate opinion in the case of the Massacre of Plan de Sánchez —

also has incidence in the domain of international refugee law, as disclosed
by the facts of the cas d’espèce, involving massacres and the State-policy
of tierra arrasada, i.e., the destruction and burning of homes, which gen-
erated a massive forced displacement of persons (para. 23). Cruelties of

the kind occur in different latitudes, in Europe as in the Americas, and in
the other regions of the world — human nature being what it is. The
point I wish to make here is that the principle of humanity operates, in
my view, in a way to foster the convergences among the three trends of

the international protection of the rights inherent to the human person
(international law of human rights, international humanitarian law and
international refugee law).

217Cf. Jurisdictional Immunities of the State (Germanv. Italy), Counter-Claim,
Order of 6 July 2010, I.C.J. Reports 2010 (I), dissenting opinion of Judge Cançado Trin-
dade, p. 378, para. 126 and pp. 381-383, paras. 136-139.

208 XIV. T OWARDS A COMPREHENSIVE C ONCEPTION OF THE INCIDENCE

OF JUS C OGENS

212. May I now refer back to my brief reﬂections on the principle ex
injuria jus non oritur (cf. supra, paras. 132-137), in order to address

another point touched upon by the present Advisory Opinion of the ICJ
on Accordance with International Law of the Unilateral Declaration of
Independence in Respect of Kosovo . As I pointed out therein, in the years
preceding the adoption of Security Council resolution 1244 (1999) — in

the decade 1989-1999 — the United Nations as a whole was deeply con-
cerned with all sorts of injuriae perpetrated against the population of
Kosovo; there were successive grave breaches of human rights and of
international humanitarian law, committed by all concerned and coming

from all sides, seriously victimizing that population, and aggravating
Kosovo’s humanitarian crisis.

213. Yet, the invocation of the principle ex injuria jus non oritur by a

couple of participants during the advisory proceedings before the Court
referred only, in an atomized way, to one or another of the successive
grave breaches committed in that period, and none of them referred to
the successive injuriae as a whole (cf. supra). In paragraph 81 of the

present Advisory Opinion, the ICJ has expressed concern with, and has
drawn attention to, unlawful use of force, or other egregious violations of
international law, in particular of peremptory norms of international law.
I fully endorse the Court’s concern with violations of jus cogens,andIgo

further than the Court in this respect.
214. The Court’s obiter dictum appears (in paragraph 81) at the end
of its reasoning addressing speciﬁcally one aspect, namely, that of the
territorial integrity of States, a basic principle applicable at inter-State

level. The Court, given the classic features of its own Statute and of its
Rules (interna corporis), is used to reasoning in the straightjacket of the
inter-State dimension. Yet, the incidence of jus cogens transcends that
dimension. Egregious violations of international law, in particular of

peremptory norms of general international law, have most regrettably
taken place both at inter-State level (e.g., unlawful use of force, such
as the 1999 bombings of Kosovo outside the framework of the UN
Charter, resulting in many victims), and atintra-State level (e.g., the grave

violations of human rights and of international humanitarian law per-
petrated in Kosovo throughout the decade of 1989-1999, victimizing its
population).
215. As to these latter, in contemporary international law it is clear

that the prohibitions of torture, of ethnic cleansing, of summary or extra-
legal executions, of forced disappearance of persons, are absolute prohi-
bitions, in any circumstances whatsoever: they are prohibitions of jus
cogens. Breaches (at intra-State level) of those prohibitions, such as those

which occurred in Kosovo during its grave humanitarian crisis, are vio-
lations of peremptory norms of general international law (i.e., of jus

209cogens), promptly engaging the responsibility of their perpetrators (States

and individuals), with all the juridical consequences ensuing therefrom
(which have not yet been sufﬁciently elaborated by international case law
and legal doctrine to date).

216. By bearing in mind only the inter-State dimension, the Court’s
aforementioned obiter dictum has pursued also an unsatisfactory atom-
ized outlook. The truth is that jus cogens has an incidence at both inter-

State and intra-State levels, in the relations between States inter se,as
well as in the relations between States and all human beings under their
respective jurisdictions. We may here behold horizontal (inter-State) and

vertical (intra-State) dimensions. This is the comprehensive conception of
the incidence of jus cogens that, to my understanding, the Court should
from now on espouse.

217. In this latter (vertical) dimension, in our times, the State’s terri-
torial integrity goes hand in hand with the State’s respect of, and guar-
antee of respect for, the human integrity of all those human beings under
its jurisdiction. A State’s territory cannot be used by its authorities for

the pursuance of criminal policies, in breach of jus cogens prohibitions
(such as the ones aforementioned). A State’s territorial borders cannot be
used by its authorities, responsible for grave breaches of human rights or

of international humanitarian law, as a shelter or shield to escape from
the reach of the law and to enjoy impunity, after having committed
atrocities which shocked the conscience of humankind. After all, homi-

num causa omne jus constitutum est (all law is created, ultimately, for the
beneﬁt of human beings); this maxim, originated in Roman law, is nowa-
days common to both the national and the international legal orders (the
jus gentium of our times).

XV. F INAL C ONSIDERATIONS :K OSOVO ’S INDEPENDENCE WITH
U NITED N ATIONS S UPERVISION

218. In view of the Court’s reasoning being almost entirely based on
Security Council resolution 1244 (1999), I feel obliged to make a couple

of further points in the present separate opinion. First, no one would
deny the central position here of Security Council resolution 1244 (1999),
but the fact is that resolution 1244 (1999) is the outcome of a political
compromise 21, and, above it and above all resolutions of the Security

Council (and of other political organs of the UN), lies the United Nations

218After its adoption, the debate persisted between, on the one hand, those States
which laid emphasis on the reference the “territorial integrity” of the F. R. Yugoslavia,
found in a preambular paragraph (and Annex 2, para. 8) of resolution 1244 (1999), and
those States which stressed that that preambular paragraph of the resolution at issue did
not create binding obligations and applied only to Kosovo’s interim phase, and not to its
ﬁnal status, which was not determined by resolution 1244 (1999); cf. A. Tancredi, “Nei-
ther Authorized nor Prohibited? Secession and International Law after Kosovo, South

210Charter. It is the UN Charter that is ultimately to guide any reasoning.

Secondly, the Court’s argument that it “sees no need to pronounce” on
other Security Council resolutions adopted “on the question of Kosovo”
(as stated in paragraph 86) prior to resolution 1244 (1999) (and anyway
“recalled” in the preamble of this latter) is, in my view, not well founded:

it simply begs the question.

219. It simply enables the Court to proceed to a “technical” and
aseptic examination of Kosovo’s declaration of independence of 17 Feb-
ruary 2008, making abstraction of the complex and tragic factual back-
ground of the grave humanitarian crisis of Kosovo , which culminated

in the adoption by the Security Council of its resolution 1244 (1999). While
not “pronouncing” on other resolutions of the Security Council (and
certainly not of the General Assembly, the importance of which it clearly

appears to unduly minimize in paragraph 38), the Court appears atpains
when it reckons the need to at least take into account other Security
Council resolutions (without “pronouncing” on them), prior to resolution
1244 (1999), just to illustrate one aspect of the crisis (in paragraph
219
116), in an incomplete way .

220. The result is that the Court has found it sufﬁcient just to refer
220
brieﬂy and in passim to the Kosovo crisis , without explaining any-
where in the Advisory Opinion what caused that crisis, and what it con-
sisted of; this is exactly what has been addressed in detail by the Security
Council resolutions prior to resolution 1244 (1999), and by General

Assembly resolutions, and by manifestations of other organs of the
United Nations. As I do not accompany nor endorse the Court’s reason-
ing, I have felt obliged, as a Member of the Court, to lay down in the

present separate opinion my own reasoning, which includes a considera-
tion of the reiterated expressions of grave concern with the humanitarian
tragedy in Kosovo on the part of the Security Council, of the General
Assembly, of ECOSOC, of the Secretary-General (cf. supra), in sum, of

the United Nations as a whole .
221. To me, the whole factual background should have been treated
by the Court with the same zeal and attention to detail which prompted

it to consider the factual circumstances that surrounded the act of adop-
tion by the Assembly of Kosovo of the declaration of independence. I
have concluded, like the Court, that the ICJ has jurisdiction to deliver the

Ossetia and Abkhazia”, 18 Italian Yearbook of International Law (2008), pp. 55-56. In
effect, operative paragraph 11 (a) of that resolution expressly referred to the promotion
of “the establishment, pending a ﬁnal settlement, of substantial autonomy and self-
government in Kosovo”.
219Further brief references to those other resolutions of the Security Council are found
in paragraphs 91 and 98.
220E.g., paras. 95, 97-98 and 116.

211advisory opinion requested by the General Assembly, that it ought to

comply with the General Assembly’s request for the advisory opinion,
and that Kosovo’s declaration of independence of 17 February 2008 did
not violate international law; but I have so concluded on the basis of my
own reasoning, developed in the present separate opinion, which is

clearly distinct from the Court’s reasoning.
222. Another aspect which cannot pass unnoticed here pertains to the
recent practice of the Security Council, as reﬂected in some of its resolu-
tions, of addressing not only States but also non-State entities, and thus

going beyond the strict inter-State dimension. The Court brieﬂy refers to
it (paras. 115-117), as well as to the growing need of securing a proper
interpretation of resolutions of the Security Council (para. 94). Yet, the
Court touches on these two points without further elaboration. Without

intending to go deeper into this matter, I shall, however, refer here to one
additional point, not touched upon by the Court, which in this connec-
tion cannot be overlooked.
223. The Security Council’s increasing engagement, from the early

nineties onwards, in operations not only of peacekeeping, but also of
conﬂict prevention, peacemaking and peacebuilding, has enlarged its
horizon as to the exercise of its functions. This is a well-known contem-
porary phenomenon within the Law of the United Nations 221. In this

context, the fact that the Security Council has lately started making
demands on, besides States, also non-State entities (including groups of
individuals), is not so surprising, after all. What, however, needs to be
added — as the Court seems to have missed this point — is that the

Security Council also has its “constitutional framework”: the United
Nations Charter. However broad its powers might be, or might have
become nowadays, they remain limited by the United Nations Charter
itself.

224. The Security Council is not the legislator of the world, but rather
one of the main political organs of the United Nations, and the central
organ entrusted with the maintenance of international peace and security

under the UN Charter. For the consideration of the question put to the
Court by the General Assembly for the present Advisory Opinion, the
Grundnorm is not Security Council resolution 1244 (1999), but rather the
United Nations Charter. And the Charter has placed limits on the action

of all its organs, including the Security Council. In the case of Kosovo,
the Security Council has acted within those limits, and, by means of its
resolution 1244 (1999), has placed the grave humanitarian crisis of Kos-
ovo within the framework of the Law of the United Nations . This latter,

in turn, has been particularly attentive to the conditions of living of the

221Cf., inter alia, e.g., K. Manusama, The United Nations Security Council in the Post-
Cold War Era — Applying the Principle of Legality , Leiden, Nijhoff, 2006, pp. 1-320;
B. G. Ramcharan, The Security Council and the Protection of Human Rights, The Hague,
Nijhoff, 2002, pp. 1-213.

212population, in Kosovo as in distinct parts of the world, so as to preserve

international peace and security.
225. There is still one remaining line of consideration that I deem

proper to add hereto. At the close of the oral proceedings before this
Court relating to the present Advisory Opinion on Accordance with

International Law of the Unilateral Declaration of Independence in
Respect of Kosovo, in the public sitting of 11 December 2009, I put to the

participants the following question:

“United Nations Security Council resolution 1244 (1999) refers, in

its paragraph 11(a), to ‘substantial autonomy and self-government
in Kosovo’, taking full account of the Rambouillet accords. In your

understanding, what is the meaning of this renvoi to the Rambouillet
accords? Does it have a bearing on the issues of self-determination

and/or secession? If so, what would be the prerequisites of a people’s
eligibility into statehood, in the framework of the legal regime set up

by Security Council resolution 1244 (1999)? And what are the fac-
tual preconditions for the conﬁgurations of a ‘people’, and of its eli-

gibility into statehood, under general international law?”

226. Fifteen participants cared to provide their answers to my ques-
tion: Kosovo 222, Serbia 223, Albania 224, Argentina 225, Austria 226,
227 228 229 230 231
Burundi , Cyprus , Finland , France , Netherlands , Roma-
nia 232 , Spain 233, United Kingdom 234, United States 235, and Venezuela 236.
After a careful reading of those 15 answers, I am led to extract and select

a couple of points, made therein, to which I attach particular importance.
227. The renvoi of Security Council resolution 1244 (1999) to the

Rambouillet accords was meant to create the conditions for substantial
autonomy and an extensive form of self-governance in Kosovo 237in

222 CR 2009/115.
223 CR 2009/111.
224 CR 2009/106.
225 CR 2009/110.
226
227 CR 2009/116.
CR 2009/117.
228 CR 2009/109.
229 CR 2009/107.
230 CR 2009/118.
231 CR 2009/108.
232
233 CR 2009/112.
CR 2009/114.
234 CR 2009/119.
235 CR 2009/113.
236 CR 2009/120.
237 Answers by Kosovo (para. 19), Serbia (para. 3.12), United States (pp. 1 and 4),

United Kingdom (para. 11), Argentina (para. 4).

213view of the “unique circumstances of Kosovo” 238 (cf. supra). In the

course of the following decade (1999-2009), the population of Kosovo
was able, thanks to resolution 1244 (1999) of the Security Council, to

develop its capacity for substantial self-governance, as its declaration of
independence by the Kosovar Assembly on 17 February 2008 shows.
Declarations of the kind are neither authorized nor prohibited by inter-

national law, but their consequences and implications bring international
law into the picture.

228. Furthermore, it would not be necessary to indulge into semantics
of what constitutes a “people” either. This is a point which has admit-
tedly been defying international legal doctrine to date. In the context of

the present subject-matter, it has been pointed out, for example, that
terms such as “Kosovo population”, “people of Kosovo”, “all people in

Kosovo”, “all inhabitants in Kosovo”, appear indistinctly in Security
Council resolution 1244 (1999) itself 239. There is in fact no terminological
precision as to what constitutes a “people” in international law 240, despite

the large experience on the matter. What is clear to me is that, for its
conﬁguration, there is a conjugation of factors, of an objective as well as

a subjective character, such as traditions and culture, ethnicity, historical
ties and heritage, language, religion, sense of identity or kinship, the will
to constitute a people 241; these are all factual, not legal, elements, which
242
usually overlap each other .

229. It may be recalled that the UNMIK Constitutional Framework
for Kosovo (2001) itself (cf. supra), clarifying the UN approach to the

238 Answer by the United Kingdom (para. 12). The Rambouillet Conference brought
Europe — besides the UN itself — into the framework of the Kosovo crisis, in yet another
demonstration that the crisis had become a matter of “international concern”; E. Decaux,
“La Conférence de Rambouillet — Négociation de la dernière chance ou contrainte illic-
ite?”, in Kosovo and the International Community — A Legal Assessment (ed. Ch. Tomus-

ch239, The Hague, Kluwer, 2002, pp. 45-64.
In preamble, para. 5, operative para. 10, and Annex 2, para. 5; in Annex 2, para. 4,
operative para. 10; in Annex 1, principle 4; and in Annex 2, para. 5, respectively; answer
by Spain (para. 20).

240 It has been argued, for example, that, for a human collectivity or a group to con-
stitute a “people” for eligibility to statehood, it would need: (a) sharing of common
background of ethnicity, language, religion, history and cultural heritage; (b) territorial

integrity of the area claimed; (c) the subjective element of the group’s self-conscious per-
ception as a distinct “people”, able to form a viable political entity; for the view that the
Kosovars meet these requirements and constitute a “people”, and, moreover, their right to
internal self-determination was not respected by Milošev´-led Serbia, cf., e.g., M. Sterio,
“The Kosovar Declaration of Independence: ‘Botching the Balkans’ or Respecting Inter-
national Law?”, 37 Georgia Journal of International and Comparative Law (2008-2009),
pp. 277 and 287.

241 Answers by the Netherlands (para. 16), and Albania (paras. 20-21).
242
Answer by Finland (p. 3).

214matter at issue, pointed out that Kosovo is “an entity” which, “with its

people, has 243que historical, legal, cultural and linguistic attributes”
(para. 1.1) . To these elements I would add yet another one — and a
signiﬁcant one — namely, that of common suffering : common suffering
creates a strong sense of identity. Many centuries ago, Aeschylus (525-

circa 456 BC) had an intuition to that, in his penetrating Oresteian Tri-
logy: he made clear — in the third choral Ode in Agamemnon, and in the
culmination of the ﬁnal procession in The Eumenides — that human

beings learn by suffering, and they ultimately learn not simply how to
avoid suffering, but how to do right and to achieve justice. Nowadays, in
2010, so many centuries later, I wonder whether Aeschylus was being,
perhaps, a bit too conﬁdent, but, in any case, I greatly sympathize with

his brave message, which I regard as a most valuable and a timeless or
perennial one.

230. It is true that UN Security Council resolution 1244 (1999) did not
determine Kosovo’s end-status, nor did it prevent or impede the declara-
tion of independence of 17 February 2008 by Kosovo’s Assembly to take
place. The UN Security Council has not passed any judgment whatsoever

on the chain of events that has taken place so far. There remains the UN
presence in Kosovo, under the umbrella of Security Council resolu-
tion 1244 (1999). It has operated in favour of Kosovo’s “substantial

autonomy” and s244-government, and, in the view of some, also of its
independence .
231. This is not, after all, so surprising, if one keeps in mind the special
attention of the contemporary UN experiments of international admin-

istration of territory to the conditions of living of the population (in
the line of the similar concern of the prior experiments of the mandates
system under the League of Nations, and of the United Nations trustee-

ship systems — cf. supra), thus disclosing a humanizing perspective. The
permanence of the UN presence in Kosovo, also from now on, appears
necessary, for the sake of human security, and the preservation of inter-
national peace and security in the region.

232. In the other contemporary example of UN international admin-
istration of territory, that of East Timor, even a few years after the com-
pletion of the task of UNTAET and the proclamation of independence of

East Timor, the UN has been keeping a residual245esence in the new
State of East Timor until now (mid-2010) . Would anyone dare to sug-
gest it should be removed? Hardly so. With all the more reason, in the
case of Kosovo, given its factual background, the UN presence therein

243Cited in answer by Austria (p. 2).
244Cf., to this effect, e.g., G. Serra, “The International Civil Administration in Kos-
ovo . . .”, op. cit. supra footnote 55, pp. 77-78, 81-82 and 87.
245By means of its resolution 1704 (2006) of 25 August 2006, the Security Council
established the new UN Integrated Mission in East Timor (UNMIT), whose mandate has
been renewed ever since (Security Council resolutions 1802 (2008) of 25 February 2008,

215seems to remain quite necessary. Kosovo, as a State in statu nascendi,

badly needs “supervised independence”, as recommended in the Report
on Kosovo’s future Status (2007) presented by the Special Envoy of the
UN Secretary-General (Mr. M. Ahtisaari).

233. That Report, accompanied by the Special Envoy’s Comprehen-

sive Proposal for the Kosovo Status Settlement, presented in mid-March
2007 24, contains proposals of detailed measures aiming at: (a) ensuring

the promotion and protection of the rights of communities and their
members; (b) the effective decentralization of government and public
administration (so as to encourage public participation); (c) the preser-

vation and protection of cultural and religious heritage. The ultimate
goal is the formation and consolidation of a multi-ethnic democratic
society. To that end, Kosovo will have no “ofﬁcial” religion, will pro-

mote the voluntary and safe return of refugees and internally displaced
persons, will secure direct applicability in domestic law of provisions of
human rights treaties and international instruments, will secure represen-

tation of non-majority communities in its Assembly, will have Albanian
and Serbian as ofﬁcial languages, will secure the formation and establish-
ment of an independent judiciary based upon the rule of law.

234. Furthermore, Kosovo will secure the prevalence of the funda-
mental principle of equality and non-discrimination, the exercise of the

right of participation in public life, and of the right of equal access to
justice by everyone. In the framework of all these proposed measures, the
safeguard of the rights of the members of the Serb community (as a
247
minority) assumes special importance , as well as the promotion of the
preservation of the cultural and religious heritage 248 of all communities
as an integral part of the heritage of Kosovo.

235. In its declaration of independence of 17 February 2008, Kosovo’s
Assembly expressly accepts the recommendations of the UN Special
249
Envoy’s Comprehensive Proposal for the Kosovo Status Settlement ,
and adds that

“We declare Kosovo to be a democratic, secular and multi-ethnic
Republic, guided by the principles of non-discrimination and equal

protection under the law. We shall pr250ct and promote the rights of
all communities in Kosovo . . .”

and 1867 (2009) of 26 February 2009); recently, by its resolution 1912 (2010) of 26 Feb-
ruary 2010, the Security Council has again renewed UNMIT’s mandate for one year.
246Cf. UN docs. S/2007/168 and S/2007/168/Add. 1.
247As the riots of 2004 indicate.
248With the continuous and undisturbed existence and operation of the Serbian Ortho-
dox Church in Kosovo.
249Preamble, para. 12; operative part, paras. 1, 3, 4, 5 and 12.
250Operative part, para. 2.

216In the declaration of independence, Kosovo’s Assembly, furthermore,

accepts the continued presence of the UN in Kosovo, on the basis of
Security Council resolution 1244 (1999) 25, and expresses its commitment
to “act consistent with principles of international law and resolutions of
252
the Security Council”, including resolution 1244 (1999) .

236. The Special Representative of the UN Secretary-General contin-
ues, in effect, to exercise his functions in Kosovo to date, as the Court

recalls in paragraph 92 of the present Advisory Opinion on Accordance
with International Law of the Unilateral Declaration of Independence in
Respect of Kosovo ; but, contrary to what may be inferred from

the Court’s brief reference (without any analysis) to the Reports of the
Secretary-General on the United Nations Interim Administration Mission
inKosovo,issuedafterthedeclarationofindependencebyKosovo’sAssem-
253
bly (period 2008-2010) , the situation in Kosovo today is not the same
as at the time of its declaration of independence. An examination of the
aforementioned Reports indicates that Kosovo’s situation has undergone
changes in the period 2008-2010.

237. Thus, the Report of the Secretary-General of 24 November 2008,
for example, commented that Kosovo’s declaration of independence and
its new Constitution posed difﬁculties and challenges to UNMIK’s abil-

ity to exercise its administrative authority, but it has never stated that the
evolving circumstances represented a violation of resolution 1244 (1999)
of the Security Council; it has never attempted to “annul” that declara-

tion of independence (para. 21). The Secretary-General admitted making
adjustments in UNMIK in the light of the evolving circumstances, rather
than opposing these latter, and he added that this would be done by
means of a “reconﬁguration process” of the international presence in

Kosovo (paras. 22-25). He insisted on such UNMIK “reconﬁguration” in
his Reports of 17 March 2009 (paras. 12-14 and 16-17), and of 10 June
2009 (paras. 18-20).

238. In his following Report, of 30 September 2009, the Secretary-
General informed that the “gradual adjustment” and “reconﬁguration”
of UNMIK had been “successfully concluded” (para. 2), and its role was

now that of promotion of security and stability in Kosovo and in the Bal-
kans (para. 3), defusing tensions and facilitating practical co-operation
with all communities in Kosovo “as well as between the authorities in
Pristina and Belgrade” (paras. 3 and 46-47). The same outlook has been

251Operative part, para. 5.
252Operative part, para. 12.
253Ever since Kosovo’s declaration of independence, six Reports of the Secretary-
General on the United Nations Interim Administration Mission in Kosovo have been
issued and reproduced in the following documents: United Nations docs. S/2008/692,
of 24 November 2008, pp. 1-23; S/2009/149, of 17 March 2009, pp. 1-18; S/2009/300,
of 10 June 2009, pp. 1-17; S/2009/497, of 30 September 2009, pp. 1-19; S/2010/5, of 5 Janu-
ary 2010, pp. 1-18; and S/2010/169, of 6 April 2010, pp. 1-19, respectively.

217pursued in the two most recent Reports of the Secretary-General (of

2010), which indicate, as areas of priority, those of elections and decen-
tralization, security, rule of law, returns, cultural and religious heritage,
community issues, human rights, and Kosovo’s representation and
engagement in international and regional forums (Reports of 5 Janu-
ary 2010, paras. 15-46, and of 6 April 2010, paras. 16-38). In sum, there

has been an apparent acceptance by UNMIK of the new situation, after
Kosovo’s declaration of independence, in view of its successive endeav-
ours to adjust itself to the circumstances on the ground, so as to beneﬁt
the population concerned.

239. In conclusion, States exist for human beings and not vice-versa.
Contemporary international law is no longer indifferent to the fate of the
population, the most precious constitutive element of statehood. The
advent of international organizations, transcending the old inter-State

dimension, has helped to put an end to the reversal of the ends of the
State. This distortion led States to regard themselves as ﬁnal repositories
of human freedom, and to treat individuals as means rather than as ends
in themselves, with all the disastrous consequences which ensued there-

from. The expansion of international legal personality entailed the expan-
sion of international accountability.

240. States transformed into machines of oppression and destruction

ceased to be States in the eyes of their victimized population. Thrown
into lawlessness, their victims sought refuge and survival elsewhere, in the
jus gentium, in the law of nations, and, in our times, in the Law of the
United Nations. I dare to nourish the hope that the conclusion of the
present Advisory Opinion of the International Court of Justice will mark

the closing chapter of yet another long episode of the timeless saga of
humankind in search of emancipation from tyranny and systematic
oppression.

(Signed) Antônio Augusto C ANÇADO TRINDADE .

218

Bilingual Content