Uncorrected
Non corrigé
CR 2009/27
International Court Cour internationale
of Justice de Justice
THHEAGUE LAAYE
YEAR 2009
Public sitting
held on Thursday 3 December 2009, at 10 a.m., at the Peace Palace,
President Owada, presiding,
on the Accordance with International Law of the Unilateral Declaration of Independence
by the Provisional Institutions of Self-Government of Kosovo
(Request for advisory opinion submitted by the General Assembly of the United Nations)
_____________________
VERBATIM RECORD
____________________
ANNÉE 2009
Audience publique
tenue le jeudi 3 décembre 2009, à 10 heures, au Palais de la Paix,
sous la présidence de M. Owada, président,
sur la Conformité au droit international de la déclaration unilatérale d’indépendance
des institutions provisoires d’administration autonome du Kosovo
(Demande d’avis consultatif soumise par l’Assemblée générale des Nations Unies)
____________________
COMPTE RENDU
____________________ - 2 -
Present: Presiewtada
Vice-Presidekta
Judges Shi
Koroma
Al-Khasawneh
Buergenthal
Abraham
Keith
Sepúlveda-Amor
Bennouna
Skotnikov
Cançado Trindade
Yusuf
Greenwood
Registrar Couvreur
⎯⎯⎯⎯⎯⎯ - 3 -
Présents : M. Owada,président
M. Tomka v,ice-président
Shi MM.
Koroma
Al-Khasawneh
Buergenthal
Abraham
Keith
Sepúlveda-Amor
Bennouna
Skotnikov
Crinçade
Yusuf
Grejugesood,
Cgoefferr,
⎯⎯⎯⎯⎯⎯ - 4 -
The Republic of Austria is represented by:
H.E.Mr.Helmut Tichy, Ambassador, Deputy Legal Adviser, Federal Ministry of European
and International Affairs;
H.E. Mr. Wolfgang Paul, Ambassador of Austria to the Kingdom of the Netherlands;
H.E. Mr. Werner Senfter, Deputy Ambassador of Austria to the Kingdom of the Netherlands.
The Republic of Azerbaijan is represented by:
H.E. Mr. Agshin Mehdiyev, Ambassador and Permanent Representative of Azerbaijan to the
United Nations;
Mr. Elchin Bashirov, First Secretary, Embassy of the Republic of Azerbaijan in the Kingdom
of the Netherlands;
Mr. Tofig Musayev, Permanent Mission of Azerbaijan to the United Nations,
as Counsellor .
The Republic of Belarus is represented by:
H.E.MsElenaGritsenko, Ambassador of the Republic of Belarus to the Kingdom of the
Netherlands,
as Head of Delegation ;
Mr.AndreiLuchenok, Counsellor of the Embassy of Belarus in the Kingdom of the
Netherlands.
For the complete list of delegations of all participants, please refer to CR 2009/24. - 5 -
La République d’Autriche est représentée par :
S. Exc. M. l’ambassadeur Helmut Tichy, conseiller juridique adjoint au ministère fédéral des
affaires européennes et internationales ;
S. Exc. M. Wolfgang Paul, ambassadeur d’Autriche auprès du Royaume des Pays-Bas ;
S.Exc.M.Werner Senfter, ambassadeur adjoint d’Autriche auprès du Royaume des
Pays-Bas.
La République d’Azerbaïdjan est représentée par :
S. Exc. M. Agshin Mehdiyev, représentant permanent de l’Azerbaïdjan auprès de
l’Organisation des Nations Unies ;
M.Elchin Bashirov, premier secrétaire à l’ambassade de la République d’Azerbaïdjan au
Royaume des Pays-Bas ;
M.Tofig Musayev, mission permanente de l’Azerbaïdjan auprès de l’Organisation des
Nations Unies,
comme conseiller .
La République du Bélarus est représentée par :
S.Exc.MmeElenaGritsenko, ambassadeur de la République du Bélarus auprès du
Royaume des Pays-Bas,
comme chef de délégation ;
M. Andrei Luchenok, conseiller à l’ambassade du Bélarus au Royaume des Pays-Bas.
Pour consulter la liste complète de toutes les délégations, prière de se reporter au CR 2009/24. - 6 -
The PRESIDENT: Please be seated. The sitting is open. I note that Judge Simma, for
reasons explained to me, is unable to attend the oral proceedings today.
The Court meets this morning to hear the following participants on the question submitted to
the Court: Austria, Azerbaijan and Belarus. I shall now give the floor to His Excellency
Mr. Helmut Tichy.
TMIr. Y:
I.INTRODUCTORY REMARKS
1. Mr. President, distinguished Members of the Court, Austria is pleased to contribute to the
proceedings before this Court.
2. Austria has already expressed its views on th e question put to this Court, namely, “Is the
Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of
Kosovo in accordance with international law?” in its Written Statement in April. Austria stressed
in this Written Statement that it sees the Decl aration of Independence of Kosovo as being in
conformity with international law. Austria now wishes to elaborate on some particularly important
points. It hopes that the solution of the lega l issues at stake will contribute to dialogue and
co-operation between Serbia and Kosovo as well as to peace and security in the region.
3. In Austria’s view the question submitted to this Court is of limited scope: it refers only to
the Declaration of Independence and its legality under international law. Accordingly, my
statement will focus on the matters directly addressed by this question. In particular, it will show
that the Declaration of Independence is in confor mity with international law, including Security
Council resolution 1244. And, in this regard, the question is not whether there exists a permissive
rule of international law enabling declarati ons of independence to be made, but whether
international law prohibits such declarations. Our conclusion is that there is no rule of international
law prohibiting declarations of independence. - 7 -
II.THE DECLARATION OF INDEPENDENCE WAS NOT ISSUED BY A PROVISIONAL
INSTITUTION OF SELF -G OVERNMENT
4. The formulation of the question submitte d to this Court is obviously based on the
assumption that the Declaration of Independence was issued by one of the Provisional Institutions
of Self-Government of Kosovo, namely the Asse mbly. This, however, was not the case. The
Declaration of Independence was voted upon a nd signed by the elected representatives of the
people of Kosovo acting in this capacity, expressing the will of the people outside the framework
of the Assembly. The Declaration’s language, fo rm and method of adoption in an “extraordinary
meeting” 3demonstrate that it was not an act of theProvisional Institutions of Self-Government.
One quotation might suffice to confirm this conclu sion. Already the first operative paragraph of
the Declaration starts with the words “[w]e, the democratically-elected leaders of our people”,
which indicate that the authors of the Declaration acted not as members of a Provisional Institution
of Self-Government but as representatives of the people of Kosovo.
III. ECLARATIONS OF INDEPENDENCE ARE NOT CONTRARY TO INTERNATIONAL LAW
5. Mr. President, distinguished Members of the Court, no rule of international law has been
identified which prohibits the popula tion of a certain territory represented by its elected leaders to
issue declarations of independence. Interna tional law does not address such declarations. A
declaration of independence as such does not have legal effects under international law; the
4
possible establishment of a State depends on a variety of factsnd their legal assessment ⎯ but
that is a different question, which was not put to the Court.
IV. THE DECLARATION ,EVEN IF CONSIDERED A DECLARATION OF THE A SSEMBLY ,
IS NOT CONTRARY TO INTERNATIONAL LAW
6. As I have said, Austria is of the view that the authors of the Declaration acted as
representatives of the people of Kosovo and not as members of the Assembly. In our view,
however, the legal statement that international law does not address declarations of independence
applies irrespective of whether the Declaration is regarded as an act of the representatives of the
people of Kosovo or, for the sake of argument, as an act of the Assembly or of any other institution.
3
Declaration of Independence, 17 Feb. 2008, preambular paragraph 1.
4Art. 1, Montevideo Convention on the Rights and Duties of States, 26 Dec. 1933, 156 LNTS 19. - 8 -
7. Moreover, as far as Security Council resolution1244 is concerned, the Declaration ⎯
even if considered as an act of the Assembly ⎯ does not contradict this resolution. The resolution
provided for increasing powers of the Provisional Institutions, powers which, in a final stage,
included also the competence to issue a declaration of independence.
8. Let me explain this in more detail. Resolution 1244 as well as the UNMIK Constitutional
Framework provided for the gradual transfer of authority and competences to the Provisional
Institutions of Self-Government during the interim period so that in the subsequent final stage these
institutions would have all powers necessary for a peaceful solution. According to operative
paragraph 11 of the resolution, the international civil presence was tasked to oversee in a final stage
the transfer of authority from the Provisional Institutions to institutions established under a political
settlement. The UNMIK Constitutional Framework ha d established that activities of the Assembly
falling within the purview of external competen ces had to be conducted in agreement with the
5
Special Representative of the Secretary-General . In practice, however, the Special Representative
ceased to object to the autonomous exercise of co mpetence by the Assembly, as was confirmed by
several reports of the Secretary-General indicating that the powers of UNMIK were being adjusted
to the changing situation.
9. Accordingly, if ⎯ contrary to the position of Austria ⎯ the Declaration of Independence
were to be considered as an act of the Assembly, it would not have constituted an ultra vires act
and would have been in conformity with resolution 1244.
V. T HE D ECLARATION OF INDEPENDENCE DOES NOT VIOLATE THE PRINCIPLE
OF TERRITORIAL INTEGRITY
10. As already stated, a declaration of inde pendence as such does not have the effect of
creating secession or establishing a State. Such declarations serve mainly as manifestations of the
will of the people and are not addressed by intern ational law, so that they cannot be measured
against the rules of general international law relati ng to changes of territory. Practice and doctrine
5Chap. 8, Sect. 8.1 (o), Constitutional Framework for Provisional Self-Government, UNMIK/REG/2001/9,
15 May 2001.
6Reports of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, S/2008/211,
28 Mar. 2008, para. 30; S/2008/254, 12 June 2008, para. 7; S/2008/692, 24 Nov. 2008, para. 21. - 9 -
of international law are unequivocal in this regard, as already pointed out in the Austrian Written
Statement 7.
11. It is certainly true that international law increasingly contains rules regulating activities
of non-State actors and even individuals. However, these rules concern other issues such as human
rights, humanitarian law or individual criminal responsibility, issues that are not at stake in the
present context.
12. Supporters of the view that the Declarati on of Independence is contrary to international
law have not been able to show in their writte n statements that there is any rule prohibiting
declarations of independence. Nor is there any precedent establishing that the mere act of declaring
independence or proclaiming the existence of a State is contrary to international law. Unilateral
declarations of independence were found to be ille gal only when they were made in combination
with a violation of a rule of international law: examples for such violations are the unlawful use of
force, the breach of an internationa l agreement (as in the case of Cyprus) 8 or racial discrimination
9
(as in the case of Southern Rhodesia) .
13. The argument was made that declarations of independence are contrary to the duty to
respect the territorial integrity of States. We be lieve, however, that this duty does not apply in the
present context for at least three reasons.
14. First, Article 2, paragraph 4, of the Unite d Nations Charter declares that this duty applies
only to Member States of the United Nations and in their international relations. Therefore it does
not apply internally to entities seeking secession. So me have argued that this obligation is of an
10
erga omnes nature . However, such an obligation binds onl y subjects of international law. The
authors of the Declaration, as representatives of the people of Kosovo, are consequently not
addressed by this rule, as ⎯ at the time of the Declaration ⎯ they did not represent a subject of
international law. Various legal instruments establishing the inviolability of the territorial integrity
7
See paras. 22 et seq.
8
UN Security Council resolution 541 (1983), 18 Nov. 1983 (Cyprus).
9UN Security Council resolutions 216 (1965), 12 Nov. 1965 and 217 (1965), 20 Nov. 1965 (Southern Rhodesia).
10Written Statement of Romania, paras.80, 108 ; Written Statement of Serbia, paras.440 et seq., 501, Written
Statement of Iran, paras. 3.1-3.6. - 10 -
of States confirm this conclusion. Even resolutio n1244 itself mentions territorial integrity only
with regard to States when it declares in its preamble:
“Reaffirming the commitment of all Member States to the sovereignty and
territorial integrity of the Federal Republic of Yugoslavia and the other States of the
region, as set out in the Helsinki Final Act and annex 2.”
15. The commitment to territorial integrity co ntained in this preambular paragraph was not
intended to be absolute: it is qualified by the refe rence to the Helsinki Final Act, which places the
respect for the territorial integrity of States on equal footing with other rights and obligations,
including the respect for human rights and fundamental freedoms and the right to
self-determination.
16. It is the practice of the Security Council to reaffirm respect for the territorial integrity of
the State concerned when it acts under Chapter VII of the Charter. It did so in
11
resolution 1272 (1999) on East Timor while explicitly welcoming the will of the Timorese people
for independence 12, which led to the emergence of a new State. This shows that the Security
Council sees no contradiction between the respect for territorial integrity and processes leading
towards independence. Therefore, the preambular reference in resolution1244 to the territorial
integrity of the Federal Republic of Yugoslavia in no way determines that the future status of
Kosovo must be within the borders of Yugoslavia.
17. Second, if the principle of respect for territo rial integrity were applicable in this context,
other principles such as non-intervention would also have had to apply in the relations between
Serbia and Kosovo, even before Kosovo became an independent entity. Any other approach would
be selective and is therefore inadmissible.
18. Third, pertinent precedents confirm that declarations of independence do not violate the
duty to respect the territorial integrity of States. Several other parts of former Yugoslavia, such as
Slovenia, Croatia, the former Yugoslav Republic of Macedonia and Bosnia and Herzegovina, made
similar declarations during and after 1991 which did not meet with any objection from the
international community. Although the Federal Rep ublic of Yugoslavia originally contested the
legality of these declarations under internal as well as under international law, its opposition did not
11
Preambular para. 12.
1Preambular para. 3. - 11 -
create a rule prohibiting declarations of independe nce under international law, especially since no
other State concurred with the position of Yugoslavi a. All these new States were admitted to the
13
United Nations by consensus , which indicates that all United Nations Member States were of the
view that these States fulfilled the criteria of Article 4 of the Charter. This would not have been the
case had their creation been affected by an unlawful act. Furthermore, the Federal Republic of
Yugoslavia did not object to the declarations of independence when it entered into treaty relations
with these States. It became a party to th e Agreement on Succession Issues signed in 2001 in
Vienna 14 by all new States emerging from former Yugoslavia. These facts corroborate the
conclusion that declarations of independence ca nnot be regarded as unlawful under international
law.
VI. I NTERNATIONAL LAW DOES NOT PROHIBIT SECESSION
19. Mr. President, distinguished Members of the Court, my remarks so far have concentrated
on the issuance of the Declaration itself and have established that such issuance is not contrary to
international law. Let me now turn to the substance of the Declaration where it is equally clear that
no violation of a rule of international law has occu rred, in particular since the Declaration alone is
incapable of effectuating secession or independence.
20. While the coming into existence of a ne w State despite opposition by the predecessor
State is not taken lightly, no rule of international law prohibiting secession has been ascertained.
More precisely, no rule of international law addr esses secession. In fact, international law remains
neutral concerning the separation of a part of a State. As the late ProfessorThomasFranck
declared:
“It cannot seriously be argued today that international law prohibits secession.
It cannot seriously be denied that international law permits secession. There is a
privilege of secession recognized in international law and the law imposes no duty on
any people not to secede.” 15
13
See General Assembly resoluti ons A/RES46/236, 22May1992, A/RE S46/237, 22 May 1992, A/RES46/238,
22 May 1992 and A/RES47/225, 8 Apr. 1993.
1Adopted at the Conference on Succession Issues, Vienna, 29 June 2001.
1Professor Thomas Franck, Experts Report, para . 2.11, reproduced in A.F. Bayefsky (ed.), Self-determination in
International Law: Quebec and Lessons Learned, 2000, p. 335. - 12 -
21. Accordingly, international law does not prohibit secession. Wh ile the community of
States may not favour secession, there is no rule prohibiting secession, in particular since the
principle of territorial integrity applies only in inte r-State relations, as I have said before. In fact,
secession appears to be a political fact from whic h conclusions may be drawn under international
law when it leads to the establishment of effective and stable State authorities 16.
22. In addition to having established that in ternational law does not prohibit declarations of
independence nor secession, allow me to respond to some points which were made in relation to
the Arbitration Commission of the Peace Confer ence of the former Yugoslavia (commonly known
as Badinter Arbitration Commission) 1. It was argued that Opinion No.9 of 4July1992 of the
Badinter Commission disqualified the possibility of any further secession on the territory of former
Yugoslavia so that the Declaration of Independen ce of Kosovo would run counter to the opinions
of the Commission.
23. However, Opinion No.9 could not anticip ate the future development and the events
unfolding several years after the elaboration of this opinion; accordingly, the conclusion expressed
therein has no significance for the present question. The Badinter Commission itself had to adjust
its views according to the developing events: in 1991, it assumed the continuing existence of the
Socialist Federal Republic of Yugoslavia, whereas in 1992 it had to recognize the dissolution of
this State. Furthermore, the view of the Commi ssion is phrased in very careful terms since it
recognizes only the completion of the specific di ssolution process which was addressed in its
Opinion No. 1 and does not address any other disso lution or secession processes. So, for instance,
the Badinter Commission could not preclude the creation of the State of Montenegro.
Montenegro’s emergence as an independent State was not contested by any State and corroborates
this conclusion. Therefore, the opinions of the Badinter Commission cannot be used as an
argument that the Declaration of Independence of Kosovo was illegal.
16
See Austrian Written Statement, paras. 37 et seq.
1See, e.g., Written Statement by Ro mania, 14 Apr. 2009, paras. 69, 127 et seq.; Written Statement by Serbia,
14 July 2009, para. 265. - 13 -
VII. T HE SUBSTANCE OF THE D ECLARATION IS IN ACCORDANCE WITH RESOLUTION 1244
24. I will now elaborate on the point that also resolution 1244 does not preclude a declaration
of independence. Resolution1244 defines the further development of the situation of Kosovo in
two different stages: the first is the interim period; the second, the situation of the final political
settlement. Operative paragraph11 (a) explicitly distinguishes the interim period from the final
political settlement when it defines as task of the international civil presence “[p]romoting the
establishment, pending a final settlement, of subs tantial autonomy and self-government in Kosovo,
taking full account of annex 2 and of the Rambouillet accords”.
25. Whereas the organs of Kosovo during the interim period were established by the
resolution, the exact substance of the final political settlement was not defined therein. The events
leading to the Declaration of Independence demons trated very convincingly that the interim period
had already come to an end and that a furthe r development within this period was no longer
possible. All efforts to achieve a solution by agreement had been exhausted.
26. Resolution 1244 likewise did not define th e mode for reaching a political settlement, so
that the consent of Serbia was not required for a fi nal political settlement to be in conformity with
resolution1244. The requirement which was laid down, however, was the respect for the will of
the people of Kosovo, in accordance with the Rambouillet Accords 1.
27. While the resolution did not explicitly i ndicate that a possible solution could encompass
the independence of Kosovo, it nowhere prohibited independence as an option for a final
settlement. An attempt to modify the wording of the resolution to rule out independence did not
find its way into the final text of the resolution. Therefore, resolution1244 does not contain a
prohibition of secession of Kosovo from Serbia and does not exclude the creation of a new State.
In fact, in the absence of a clear definition of the final political settlement in this resolution, any
political settlement remains only subject to the limits of general international law.
28. The Declaration’s conformity with international law is expressed by the Declaration of
Independence itself ⎯ in paragraph12, consistency with the principles of international law,
including Security Council resolution1244, is exp licitly declared. Therefore, in accordance with
the principle of good faith it cannot be argued th at the Declaration of Independence contradicts
18
Chap. 8, Art. 1, para. 3 of the Interim Agreement for Peace and Self-Government in Kosovo, 23 Feb. 1999. - 14 -
international law, since the Declaration itself a nnounces conformity with it. Accordingly, the
substance of the Declaration of Independence is to be interpreted as being in conformity with
international law.
VIII. N O OBJECTION BY UNITED N ATIONS ORGANS
29. A further indication that the Declaration of Independence ⎯ even if, for the sake of
argument, considered as an act of the Assembly ⎯ was in accordance with international law,
including resolution1244, is that neither the Sp ecial Representative of the Secretary-General nor
the Security Council voiced any objection to the Declaration. The Special Representative did not
invalidate the Declaration of Independence, desp ite his power to annul acts of the Provisional
Institutions he considered in violation of r esolution1244. The responsibilities of the Special
Representative in accordance with operative paragra ph 6 of the resolution include control over the
implementation of the international civil presence. Had he considered the Declaration as violating
resolution1244 and in particular the UNMIK Cons titutional Framework, it would have been his
duty to object to the Declaration of Independence either by public statement, in a report to the
Secretary-General or directly to the Security Council. However, he obviously abstained from
doing so.
30. Generally speaking, the Special Representa tive was not reluctant to use his powers to
invalidate acts which he did consider contrary to resolution1244. On e such occasion was, for
example, the Assembly’s “Resolution on the Protec tion of the Territorial Integrity of Kosovo” in
2002 that was immediately declared null and void by the Special Representative 19 and
20
subsequently deplored by the Security Council .
31. Like the Special Representative, neither th e Security Council nor the Secretary-General
objected to the Declaration. The absence of objections signifies that the issuance of the Declaration
was accepted as lawful by both the Secretary-Ge neral and the Security Council, as has been
21
elaborated in the Austrian Written Statement . Even if this attitude of the United Nations organs
19
“Determination” by the Special Representative of the Secretary-General, ael Steiner, 23May2002,
UNMIK Press Release, 23 May 2002, PR/740.
20
Statement by the President of the Security Council, 24 May 2002, S/PRST/2002/16.
2Austrian Written Statement, para. 42 et seq. - 15 -
could be considered as taking a neutral stance, it has a legal effect in so far as UnitedNations
organs would have been required to act if they ha d considered the Declaration unlawful. In giving
its advisory opinion, this Court, therefore, may wi sh to give due consideration to the reactions of
UnitedNations organs, including the fact that th ey did not raise any objection against Kosovo’s
Declaration of Independence.
IX. S UBSEQUENT DEVELOPMENTS
32. After having presented the legal arguments speaking in favour of the Declaration of
Independence being in accordance with internationa l law, let me now emphasize the relevance of
certain factual developments after the issuance of the Declaration, which support our legal
conclusions. Such subsequent developments confirm the lawfulness of the Declaration of
Independence.
33. Apart from the legal relevance of the absence of any objections by United Nations organs
to the Declaration of Independence, the factual transition of effective control over Kosovo from
UNMIK to the Kosovo Government 22illustrates the conformity of this Declaration with
international law. This factual transition includes the adoption of a Constitution, which envisages
23
no role for the international administration . This transition has to be seen also in the light of the
unsustainability of the situation that existed before the Declaration of Independence.
34. Moreover, it cannot be disregarded that Kosovo has been recognized by 63States,
including Austria, that embassies and other diplomatic missions have been established, that Kosovo
has been admitted as a member to the IMF 24and the World Bank Group institutions 25and that it
has concluded a bilateral border demarcation ag reement with the former Yugoslav Republic of
Macedonia 26. Although this Court is not called upon to evaluate the legality of recognitions, the
22
Report of the Secretary-General on the United Nations Interim Administration in Kosovo, 24Nov.2008,
S/2008/692, para. 21.
23
Constitution of the Republic of Kosovo, adopted 9 April 2008.
24IMF Press Release No.09/240, 29June2009. Accordi ng to ArticleII of its Articles of Agreement of
22 July 1944, IMF membership is open to countries.
25World Bank Group Press Release No. 2009/448/ECA, 29 June 2009.
2617 Oct. 2009. - 16 -
relevance of the substantial degree of interna tional recognition accorded to the Declaration of
Independence seems obvious.
X. CONCLUSION
35. In conclusion, Mr.President, distinguished Members of the Court, Austria believes that
the answer to the question submitted to this Court is clear: international law does not address the
legality of declarations of independence per se and, moreover, there is no rule of international law
prohibiting the Declaration of Independence by Ko sovo. For these reasons, Austria respectfully
requests this Court to declare that Kosovo’s D eclaration of Independence is in accordance with
international law.
Mr. President, Members of the Court, I thank you.
The PRESIDENT: I thank His Excellency Mr.HelmutTichy for his presentation. Now I
call upon His Excellency Mr. Agshin Mehdiyev to take the floor.
Mr. MEHDIYEV:
1. Distinguished President, honourable judges, it is a great privilege for me to address you on
behalf of the Republic of Azerbaijan and s ubmit my Government’s position on the issue of
profound significance for the international community.
2. The General Assembly, in its resoluti on A/RES/63/3 of 8October2008, requested the
Court to render an advisory opinion on the ques tion of the “Accordance with International Law of
the Unilateral Declaration of Independence (UDI) by the Provisional Institutions of
Self-Government of Kosovo”. In line with its prin cipled and consistent position pertaining to the
consequential issues that potentially arise from the question formulated for the purposes of the
present proceedings, Azerbaijan voted in favour of the said resolution.
3. By taking the decision to support th e resolution, we proceeded also from the
understanding that the General Assembly was duly authorized to request this advisory opinion on
the legal question which is “framed in terms of la w”, “raise[s] problems of international law”, is
“susceptible of a reply based on law” ( Western Sahara, Advisory Opinion, I.C.J. Reports 1975 , - 17 -
p.18, para.15) and clearly falls within the scope of activities of the General Assembly under the
Charter of the United Nations.
4. Furthermore, by requesting the Court to render an advisory opinion, the General Assembly
has expressed its interest in the question and decided “on the usefulness of an opinion in the light of
its own needs” ( Legality of the Threat or Use of Nucl ear Weapons, Advisory Opinion, I.C.J.
Reports 1996 (I), p. 237, para. 16).
5. Azerbaijan believes that the Court is competen t to exercise its advisory jurisdiction in the
present proceedings and that there are no “compelling reasons” that should lead the Court to
decline the present request for an advisory opinion in response to the question submitted by the
General Assembly.
6. Distinguished President, honourable judges, th e matter before the Court in this request for
an advisory opinion is indeed a very important one. Attempts to find a solution to the Kosovo issue
have become one of the biggest policy challe nges complicated by fundamental disagreement
between the parties concerned and, as a consequen ce, their different perspectives as to the final
solution of the problem.
7. Some key powers involved made it clear from the outset that the process leading to
independence of Kosovo, even though without th e consent of the recognized sovereign, was
irreversible and, under the circumstances, was an ultimo ratio way to resolve the issue. Such a
stance substantially predetermined a unilateral approach and influenced to a considerable extent the
willingness of the parties concerned to negotiate in good faith towards finding a consensual
solution.
8. Besides, the path to independence raised a number of questions in terms of international
law and created a fear of emerging precedent as to the definition, scope and application of the
relevant legal norms. Therefore, there is little doubt that the Court’s advisory opinion will have
important consequences for the international legal orde r. It is no coincidence that the case before
the Court attracts significant interest in view of the total number of States participating in the
present proceedings including, for the first time in the history of the Court, all five permanent
members of the Security Council. - 18 -
9. I would like to reiterate the position of Azerbaijan on the issue under consideration laid
out in its Written Statement of 17April2009. At the same time, having considered the written
contributions and statements by other participants of the present proceedings, we decided to dwell
upon some questions of significant importance.
10. Several States advanced ideas that international law (leaving aside special cases such as
aggression and apartheid) does not address the lega lity of declarations of independence perse,
while the creation of States is only a matter of fact. According to these ideas, the principle of
sovereignty and territorial integrity is addressed exclusively to States and is not concerned with the
issuance of declarations of independence. Based on this understanding, it is asserted that the UDI
is not incompatible with international law.
11. It is essential to clarify in this regard th at the declaration of independence in a given case
is the expressed intention to create a State by means of unilateral termination of the existing legal
régime and non-consensual secession from a sovere ign State. The UDI attempts to apply
international law and purports to produce concrete legal effects. Should the Court find it justified
addressing the UDI not as an isolated act but in a comprehensive manner, then we would expect
thorough examination of its various aspects and their legality.
12. The position based on the assumption that international law remains “neutral” with
regard to a secessionist attempt does not create c onditions for legitimizing secession in any sense,
nor does it mean that secession automatically succeeds and the international community accepts its
consequences without the consent of the recognized sovereign.
13. As is well known, a secessionist attempt is often accompanied by violation of
international law, including its peremptory norms, such as those prohibiting the threat or use of
force, racial discrimination and apartheid. International law also applies if a secessionist attempt is
in violation of self-determination, as well as if it is controlled from outside or coupled with external
aid.
14. Besides, international law does not remain indifferent to situations where an attempt to
create a new State through non-consensual secession violates the domestic law of the parent State,
the territorial integrity of which is ensured by international law and the government of which is
entitled to suppress by legitimate means any attempt to achieve such secession. - 19 -
15. In other words, the most important issu e is the legitimacy of the process by which the de
facto secession is, or was, being pursued. An entity created in breach of international and domestic
law, even if it has all the factual attributes of a State, is not a Stat
e.
16. It has been argued that the principle of effectiveness in international law means that de
facto situations, however brought about, lead to de jure situations. This cannot be right and it is not
right. International law, if it is to mean anything, means that faits accomplis do not have to be
simply accepted. Might is not right. The fact that illegal situations continue because of political
circumstances does not mean that they are therefore rendered legal. Law is more important than
force.
17. This understanding is supported by intern ational practice and examples are well known.
As we have already pointed out in our Writte n Statement, the United Nations has always
strenuously opposed any attempt at partial or tota l disruption of the national unity and territorial
integrity of a State. The United Nations Secretary-General has emphasized that
“as an international organization, the Unite d Nations has never accepted and does not
accept and I do not believe it will ever accept the principle of secession of a part of a
member State” (United Nations Monthly Chronicle, Feb. 1970, p. 36).
18. As one leading author has written,
“[s]ince 1945 the international community h as been extremely reluctant to accept
unilateral secession of parts of independent states if the secession is opposed by the
government of that state. In such cases the principle of territorial integrity has been a
significant limitation. Since 1945 no state which has been created by unilateral
secession has been admitted to the United Na tions against the declared wishes of the
predecessor state.” (J.Crawford, Creation of States in International Law, 2nd ed.,
2006, p. 390.)
19. Distinguished President, honourable j udges, the case under consideration regards the
scope of the principle of territorial integrity, the right to self-determination and the notion of
secession. It is the view of Azerbaijan that there exists no conflict of norms in international law.
Most important in addressing the content of norms is their precise scope and application. In this
regard, we deem it important to reiterate the following position as supported by comprehensive
academic studies and reflected in both our Written Statement and written contributions by other
States participating in this proceeding. - 20 -
20. It is essential to emphasize that States are at the heart of the international legal system
and the prime subjects of international law, while the principle of the protection of the territorial
integrity of States is bound toassume major importance.
21. Territorial integrity and State sovere ignty are inextricably linked concepts in
international law. They are foundational principles. Unlike many other norms of international law,
they can only be amended as a result of a con ceptual shift in the classical and contemporary
understanding of international law.
22. This Court clearly underlined that “[b]et ween independent States, respect for territorial
sovereignty is an essential foundatio n of international relations” ( Corfu Channel (United
Kingdom v. Albania), Merits, Judgment, I.C.J. Reports 1949, p. 35).
23. The juridical requirement, therefore, placed upon States is to respect the territorial
integrity of other States. It is an obligation flowing from the sovereignty of States and from the
equality of States. It is essential to note that this obligation is not simply to protect territory as such
or the right to exercise jurisdiction over territory or even territorial sovereignty, the norm of respect
for the territorial integrity of States imports an additional requirement and this is to sustain the
territorial wholeness or definition or delineation of particular States. It is a duty placed on all
States to recognize that the very territorial structure and configuration of a State must be respected.
24. The principle of respect for the territori al integrity of States constitutes a foundational
norm in international law buttressed by a vast array of international, regional and bilateral practice.
This norm is enriched in international instruments, binding and non-binding, ranging from
United Nations resolutions of a general and specific character to international multilateral, regional
and bilateral agreements.
25. Therefore, the proposition that the explic it reference to the principle of territorial
integrity in the preamble of a Security Council resolution is of little effect since the preamble is a
“non-binding clause” is curious and gravely disturbing in terms of law. Indeed, it is not unusual for
the territorial integrity of States to be reaffirmed in the preamble of Security Council resolutions
dealing with specific situations and it would be very strange indeed for this to be seen as
weakening the principle. In fact, it would be an interpretation that would threaten a number of - 21 -
States in practice. In any event, the Council does not decide on the territorial integrity of States
since this is a matter of international law, but simply chooses to reaffirm it in particular situations.
26. It has been argued that where the Secur ity Council does not refer to explicit secessions
by name, then secessions are not prohibited in international law. This cannot be right. A
significant number of resolutions have been adopt ed by the Council in r esponse to secessionist
attempts, all of which reaffirm the territorial inte grity of States. Their relevant provisions can only
make sense by understanding that they prohibited such attempts. It should not be forgotten that the
Security Council is a political organ and the ma nner in which it reacts to each situation reflects
political as well as legal factors.
27. International law is unambiguous in not providing for a right of secession for
independent States and in not creating grounds and conditions for legitimizing non-consensual
secession in any sense. Otherwise, such a fundamental norm as the territorial integrity of States
would be of little value were a right to secession under international law be recognized as applying
to independent States.
28. Secession from an existing sovereign State does not involve the exercise of any right
conferred in international law and hence has no place within the generally accepted norms and
principles of international law which apply within precisely identified limits.
29. Since it is undeniable that the principle of self-determination is a legal norm, the question
arises as to its scope and application.
30. Both the textual analysis of the ex isting provisions on self-determination and the travaux
préparatoires of international instruments containing such provisions give cause for distinguishing
two aspects of self-determination, namely, firstly, the internal aspect, which means that all peoples
have the right to pursue freely their economic, so cial and cultural development without outside
interference, and second, the external aspect, wh ich includes the right of peoples to determine
freely their political status and their place in the international community based upon the principle
of equal rights and exemplified by the liberation of peoples from colonialism and by the prohibition
to subject peoples to alien subjugation, domination and exploitation.
31. As the Committee on the Elimination of Racial Discrimination made it clear, in respect
to the internal aspect of self-determination there exis ts a link with the right of every citizen to take - 22 -
part in the conduct of public affairs at any level (CERD General Recommendation 21 (48), para. 4).
In the light of this understanding, the Human Rights Committee considers it highly desirable that
States parties’ reports under the International Covenant on Civil and Political Rights describe, with
regard to Article1, paragraph1, the constitutional and political processes which in practice allow
the exercise of the right to self-determination (HRC General Comment No. 12 (21), para.4). The
practice of the Human Rights Committee confirms that it addresses the right of self-determination
as providing the overall framework for the consider ation of the principles relating to democratic
governance. The internal aspect of self-determination applies in a number of contexts, but with the
common theme of the recognition of legal rights fo r communities of persons within the territorial
framework of the independent States.
32. As far as the external aspect of self-d etermination is concerned, the peoples of the
colonially defined territorial unit in ques tion and people who find themselves in similar
circumstances, i.e., those subjected to alien s ubjugation, domination and exploitation, including
peoples under foreign military occupation, are entit led to the “external” self-determination, the
main content of which is to freely determine the political status of the territory as a whole.
33. As one leading author has observed,
“unlike external self-determination for colonial peoples ⎯ which ceases to exist under
customary international law once it is implemented ⎯ the right to internal
self-determination is neither destroyed nor diminished by its already once having been
invoked and put into effect” (A. Cassese, Self-Determination of Peoples, p. 101).
34. Another leading author has noted in regard to both aspects of self-determination, that
“external self-determination requires a state to take action in its foreign policy
consistent with the attainment of self-determination in the remaining areas of colonial
or racist occupation. But internal self-determination is directed to their own peoples.”
(R. Higgins, Postmodern Tribalism and the Right to Secession, p. 31.)
35. International practice demonstrates that self-determination has not been interpreted to
mean that any group defining itself as such can d ecide for itself its own political status up to and
including secession from an already independent State. Although the usual formulation contained
in international instruments refers to the right of “all peoples” to determine “freely their political
status”, international practice is clear that not all “peoples” as defined in a political-sociological
sense are accepted in international law as able to freely determine their political status up to and - 23 -
including secession from a recognized independent State. In fact, practice shows that the right has
been recognized for “peoples” in strictly defined circumstances.
36. Therefore, a distinction should be made between the notion of a “people” possessing the
specific characteristics in a political-sociological sense and the notion of a “people” entitled to the
right of self-determination. Irrespective of the fi ndings as to the former notion, the latter one is
strictly limited in international law to concrete categories of peoples. The term “people” entitled to
the right of self-determination under international law obviously means the whole people, the
demos, which is to benefit from self-determination, not the separate ethnoses or other groups,
which at the same time together form the demos.
37. The International Covenant on Civil a nd Political Rights contains both the terms
“peoples” and “minorities” and the Human Rights Committee in its General Comment 23 draws a
distinction between the rights of persons belongi ng to minorities on the one hand, and the right to
self-determination on the other. The Committee particularly emphasized that the rights under
Article27 of the Covenant did not prejudice the sovereignty and territorial integrity of States
(HRC General Comment No. 23 (50), paras. 3.1 and 3.2). The same approach was adopted in the
commentary to the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious
and Linguistic Minorities (UN doc. E/CN.4/Sub.2/AC.5/2001/2, para. 15).
38. Consequently, minorities are not entitled in international law to exercise the external
right to self-determination, meaning that they cannot unilaterally purport to secede from the State
in which they live. Rather, they exercise the intern al aspect of this right, together with the rest of
the population of the State concerned, as part of this population and within the recognized
boundaries of the State. As the United Nations Secretary-General has emphasized in “An Agenda
for Peace”, “[y]et if every ethnic, religious or linguistic group claimed statehood, there would be no
limit to fragmentation, and peace, security and economic well-being for all would become ever
more difficult to achieve” (An Agenda for Peace, UN doc. A/47/277-S/24111, p. 5, para. 17).
39. State practice confirms that an entity created on part of the territory of a State without the
support of the whole people entitled to self-determination is a priori illegal and cannot thus be
considered as a State. Hence, the establishmen t of an ethnically constructed separatist entity,
particularly one which survives by virtue of ex ternal political, military and economic support, is - 24 -
illegal both because of the violation of the right to self-determination of the population of the State
as a whole and because of the breach of the principle of non-discrimination.
40. We share the view of those States participating in the present proceedings that there is no
proof of the existence of secession as a form of san ction or remedy in contemporary international
law. This understanding is supported both by the textual analysis of the existing provisions on
territorial integrity and self-determination and by State practice demonstrating the absence of any
successful application to the so-called “remedial secession”.
41. It has been pointed out by some States for the purposes of the present proceedings that
the principles laid down in the Final Act of Hels inki of1975 (Helsinki Declaration) should be
applied equally, with “each of them being interpre ted taking into account the others”. However,
the same States pass over in silence the fact th at this document is unambiguous in addressing
self-determination within its international dimension and in stating that any boundary change must
necessarily take place in accordance with internatio nal law, by peaceful means and by agreement.
Moreover, the emphasis in the Helsinki Declarati on and subsequent documents on the principle of
the territorial integrity of States, coupled with the lack of any reference to the so-called “remedial
secession” doctrine, even gave rise to views, including in the academic co mmunity, that the Final
Act of Helsinki and its follow-up process created doubts about the continuing commitment of the
CSCE and OSCE to the right of self-determination. The Helsinki Final Act’s reaffirmation of the
status and importance of the principle of territori al integrity cannot be ignored, particularly when
subsequent instruments refer explicitly to it.
42. In the follow-up process the participating States placed even greater emphasis on
respecting the territorial integrity of States when de fining the principle of self-determination. This
approach is clearly apparent in the Charter of Paris for a New Europe of 1990 and in the Document
of the Moscow Meeting of the Conference on the Human Dimension [of the CSCE] adopted in the
following year. Thus, the Charter of Paris reaffirmed “the equal rights of peoples and their right to
self-determination in conformity with the Charte r of the United Nations and with the relevant
norms of international law, including those relati ng to territorial integrity of States”. In the
Document of the Moscow conference - 25 -
“the participating States underlined that, in accordance with the Final Act of the
Conference on Security and Co-operation in Europe and the Charter of Paris for a
New Europe, the equal rights of peoples and their right to self-determination are to be
respected in conformity with the Charter of the United Nations and the relevant norms
of international law, including those relating to territorial integrity of States”.
The list of similar examples can easily be continued. Simply put, this means that any exercise of
self-determination (outside of the context of colonial situation or foreign occupation) has to be in
conformity with the principle of territorial integrity.
43. We support the view that the Court need not decide whether Kosovo has validly
exercised the right of self-determination to r espond to the question referred by the General
Assembly. Should the Court find it necessary to examine the UDI through the lens of the right of
self-determination, then we would request that the aforementioned position be taken into account.
44. Distinguished President, honourable judges, we have witnessed in the course of the
written stage and during these hearings that there ex ist divergent interpretations of resolution 1244
of the Security Council and that there is no una nimity both within the Security Council and among
Member States of the United Nations in general as to the issue under the examination by the Court.
However, we are of the view that neither such divergences nor the lack of progress in political
negotiations between the parties concerned can be introduced as justifying unilateral actions.
45. All States are bound by the generally accepted norms and principles of international law,
including in particular those relating to respect for the sovereignty and territorial integrity of States,
inviolability of their internationally recognized borders and non-interference in their internal
affairs. Azerbaijan believes that faithful observance of the generally accepted norms and principles
of international law concerning friendly relations and co-operation among States and the fulfilment
in good faith of the obligati ons assumed by States are of the greatest importance for the
maintenance of international peace and security.
46. It is the hope of the Republic of Azerba ijan that the Court, by answering the question
referred, will contribute to the strengthening of the international legal order and enhancement of its
role and effectiveness in international relations.
47. That concludes my statement. I should like to thank the Court for the courtesy with
which it has heard my statement on behalf of the Republic of Azerbaijan.
Thank you very much. - 26 -
The PRESIDENT: I thank His Excellency Mr. Agsh in Mehdiyev for his presentation on behalf of
Azerbaijan. I now call upon Her Excellency Ms Elena Gritsenko to the floor.
MsGRITSENKO: Mr.President, distinguished Members of the Court, the Republic of
Belarus attaches great importance to th e hearings on the question of the Accordance with
International Law of the Unilateral Declaration of Independence by the Provisional Institutions of
Self-Government of Kosovo. The International Court of Justice is the most appropriate institution
for the comprehensive and impartial analysis of inte rnational legal issues related to this unilateral
act.
The Republic of Belarus supported the adopti on of the UnitedNations General Assembly
resolution 63/3 on the request to the Internationa l Court of Justice for rendering an advisory
opinion. Our support follows from the significance of finding actually stable and lasting solutions
regarding the status of the territory for the St ates of the region and international community as a
whole.
We believe that an advisory opinion of th e UnitedNations principal judicial organ,
composed of the world’s foremost international lawyers, will promote the respect for the purposes
and principles of the UnitedNations Charter in contemporary international relations, in general,
and the rule of international law in the process of implementation of the right of self-determination,
in particular.
The request of an advisory opinion of the International Court of Justice by the General
Assembly is made in full compliance with the Un itedNations Charter, Statute of the Court and
Rules of Procedure of the General Assembly.
Ar9tcle (a) of the Charter envisages that the Gene ral Assembly or the Security Council
may request the International Court of Justice to gi ve an advisory opinion on any legal question.
Article65(1) provides that the Court may give an advisory opinion on any legal question at the
request of any agency authorized to make such a request by the Charter of the UnitedNations or
under this Charter.
In assessing whether the question is “legal” we are governed by the consistent practice of the
Court. The practice regards the question as a legal one if it is formulated in legal terms, concerns - 27 -
matters of international law and is susceptible to a reply based on law. The request of the General
Assembly for an advisory opinion meets these criteria.
Many current acute questions of an inte rnational legal nature arise from political
circumstances. The International Court of Justice rendered its reasoned advisory opinions under
similar conditions more than once. We expect that an advisory opinion concerning the legality of
the Unilateral Declaration of Independence of Ko sovo will also provide clear guidance for settling
the particular situation by virtue of the general perception accepted in international law with respect
to correlation of the right of self-determination an d principles of sovereign equality and territorial
integrity.
MrP. resident, distinguished judges, to prepare an advisory opinion the principal
international legal sources should include:
⎯ the United Nations Charter of 26 June 1945;
⎯ the Final Act of the Conference on Security and Co-operation in Europe of 1 August 1975;
⎯ the International Covenant on Civil and Political Rights of 16 December 1966;
⎯ the International Covenant on Economic, Social and Cultural Rights of 16December 1966;
and, finally,
⎯ the United Nations Security Council resolution 1244 (1999).
In order to determine and interpret applicable norms of international law, it is necessary to
apply the international judicial practice and d eclarations and resolutions adopted within the
framework of the UnitedNations. In this regard , particular attention is to be given to the
Declaration on Principles of International Law Concerning Friendly Relations and Co-operation
among States in accordance with the Charter of the UniteN dations of 1970
(resolution 2625 (XXV)), which enshrines the normative content of principles of international law.
Distinguished judges, Article1(2) of the UnitedNations Charter proclaims the purpose “to
develop friendly relations among na tions based on respect for the principle of equal rights and
self-determination of peoples, and to take othe r appropriate measures to strengthen universal
peace”.
The 1970 Declaration provides: - 28 -
“By virtue of the principle of equal rights and self-determination of peoples
enshrined in the Charter of the UnitedNa tions, all peoples have the right freely to
determine, without external interference, their political status and to pursue their
economic, social and cultural development, and every State has the duty to respect this
right in accordance with the provisions of the Charter.”
The Declaration further spells out that the modes of implementing the right of
self-determination can be “[t]he establishment of a sovereign and independent State, the free
association or integration with an independent State or the emergence into any other political status
freely determined by a people”.
The 1975 Helsinki Final Act enshrines interdependent principles of invio
lability of frontiers,
territorial integrity of States and equal rights and self-determination of peoples. The principle of
right to self-determination is unambiguously limite d to the “purposes and principles of the Charter
of the UnitedNations and... the relevant norms of international law, including those relating to
territorial integrity of States”.
Article1 of the 1966 International Covenant on Civil and Political Rights and Article1 of
the 1966 International Covenant on Economic, Soci al and Cultural Rights contain provisions
reading as follows:
“1. All peoples have the right of self-determination. By virtue of that right they freely
determine their political status and freely pursue their economic, social and cultural
development.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3. The States Parties to the present Covenant, including those having responsibility for
the administration of Non-Self-Governing and Trust Territories, shall promote the
realization of the right of self-determination, and shall respect that right, in conformity
with the provisions of the Charter of the United Nations.”
The Republic of Belarus is highly committed to the right of peoples to self-determination
and considers this right as a key principle of cont emporary international law. Such perception of
the right of peoples to self-determination is sh aped by the UnitedNations practice, which is
evidenced, inter alia, by the judgments and advisory opinions of the International Court of Justice.
The major contribution to the development of the concept of self-determination in international law
is made through the Advisory Opinions in the cases on the Legal Consequences for States of the
Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security
Council Resolution276 (1970) (I.C.J. Reports 1971 , p.16), and Western Sahara (I.C.J. Reports - 29 -
1975, p.12), as well as Judgments in the cases concerning the Frontier Dispute (Burkina
Faso/Republic of Mali) (I.C.J. Reports 1986, p. 554) and East Timor (Portugal v. Australia), (I.C.J.
Reports 1995, p. 90).
Two concepts of implementation of the right of self-determination, namely, concepts of
internal and external right of self-determination, are established in international law. These two
approaches stem from the basic documents regarding the right of self-determination, including the
1970 Declaration, as well as doctrine of international law.
The internal right of self-determination usually means the right of ethnic minorities for
self-determination. Such right is implemented w ithin the borders of the existing States and may
involve such modes as national-cultural autonom y, territorial autonomy, federation, active
participation in the single State’s governance, etc.
The right for internal self-determination h as evolved through the 1966 International Pacts
and the 1970 Declaration on Principles of Interna tional Law, Friendly Relations and Co-operation
among States in Accordance with the Charter of the United Nations.
External self-determination implies the right of the ethnic minority residing on a certain
territory within the borders of a State to demand the secession of the said territory and to form a
new independent State.
Contemporia nrernational law only generates and accepts the possibility of external
self-determination in situations “of former colonies; where a people is oppressed . . .; or where a
definable group is denied meaningful access to government to pursue their political, economic,
social and cultural development”. Such a conclusion was made by the Supreme Court of Canada
on the case concerning certain questions relating to Secession of Quebec from Canada. The Court’s
findings confirm the interpretation of the right of self-determination which was shaped within the
United Nations framework during the second half of 20th century.
In the year 1960 the United Nations Genera l Assembly adopted the Declaration on the
Granting of Independence to Colonial Countries and Peoples, which proclaimed the necessity of
“bringing to a speedy and unconditional end colo nialism in all its forms and manifestations”
(United Nations resolution 1514 (XV) of 14 December 1960). The Declaration proved to be a solid
basis for interpretation of the right to self-determi nation within the context of decolonization. The - 30 -
situation concerning status of Kosovo is different from that of decolonization and does not meet the
traditional notion of the external right of self-d etermination. A general norm allowing unilateral
secession beyond a decolonization context does not exist in international law.
The 1970 Declaration states that the principl es of international law are intertwined and
interdependent. Pursuant to the provisions of the Declaration, the right to self-determination is to
be implemented in conformity with other principles of international law, in particular principles of
sovereign equality and territorial integrity. Ho wever, the document contains certain elements
which might serve as a basis to extend the traditional scope of the external right of
self-determination.
According to the Declaration, the right to self-determination cannot be construed as
“authorizing or encouraging any action whic h would dismember or impair, totally or
in part, the territorial integrity or political unity of sovereign and independent States
conducting themselves in compliance with the principle of equal rights and
self-determination of peoples as described above and thus possessed of a government
representing the whole people belonging to th e territory without distinction as to race,
creed or colour”.
Therefore, one may argue that these provisions can be interpreted in a manner allowing
ethnic minorities to exercise the right of extern al self-determination in case of such minorities
being deprived of the right of internal self-deter mination and being unable to take part in State
governance together with the prevalent ethnic group. Nevertheless, this reasoning is not
universally accepted and does not constitute a broad norm of international law. If central
authorities respect the right to self-determination without any discrimination and the territory,
notwithstanding this, demands for secession, such se cession would be a manifest violation of the
principles of self-determination, territorial integrit y and inviolability of frontiers. Moreover, even
if the discrimination does exist, it does not entail unconditional right of external self-determination.
The 1970 Declaration clearly states that “any attempt aimed at the partial or total disruption of the
national unity and territorial integrity of a State or country or at its political independence is
incompatible with the purposes and principles of the Charter”.
If one analyses the situation with Kosovo ’s Declaration of Independence beyond the
traditional decolonization context of external self-d etermination, we will come to the conclusion - 31 -
that there are no convincing legal arguments in favour of Kosovo’s secession from the Republic of
Serbia.
From the retrospective point of view, it is worth noting that the 1974 Socialist Federal
Republic of Yugoslavia (SFRY) Constitution gran ted ample powers to the region in question
making it a de facto self-dependent subject of the federation. The representatives of Kosovo were
members of the common State governance body ⎯ Socialist Federal Re public of Yugoslavia
Presidium, which enrolled representatives from all the republics of the federation. Kosovo had the
right to delegate 28 (out of a total of 308) deputies to the Yugoslavian Skupschina, 20 (out of a total
of 220) deputies to the Union Veche, and8 (out of a total of 88) deputies to the Veche of the
republics. Moreover, regional authorities were gr anted a veto right on the republican level.
Kosovo had its own Central Bank, police, education system (including institutions where teaching
took place in the Albanian language) and a university . The scale of implementation of Albanians’
right to self-determination in Yugoslavia is illust rated by the number of ethnic Albanians holding
high offices during different periods.
The authorities of SFRY have thus granted the autonomous region and the republics equal
rights except for one ⎯ it could not effect secession from Serbia.
The aggravation of the situation with respect to Kosovo in the period 1992-1994 did not
legitimize the right of the Kosovo’s Albanian population to effect secession from the Federal
Republic of Yugoslavia. On the contrary, the United Nations Security Council
resolution 1244 (1999) of 10 June 1999 confirms the obligations of the United Nations Member
States with respect to sovereignty and territorial integrity of the Federal Republic of Yugoslavia set
forward in the Helsinki Final Act. With regard to Kosovo’s status, paragraph11 (a) of the
resolution stresses the primary necessity of gr anting a substantial autonomy and meaningful
self-governance for the region. All other matters regarding a political process designed to
determine Kosovo’s status are to be settled with the participation of the United Nations Security
Council and the parties concerned, taking into account the Rambouillet Accords.
Resolution 1244 (1999) is a binding instrument, specifically aimed at solution of the Kosovo
question. Applicable provisions of the United Na tions Charter, the Helsinki Final Act and other
international legal instruments are to be interp reted in the light of the said resolution. The - 32 -
Declaration of Independence of Kosovo directly refers to the resolution as an international
instrument in force.
The Republic of Serbia did not refuse to co-operate under resolution1244(1999) on the
issue of a substantial autonomy and meaningful self-governance. Therefore, even if a broad
interpretation of the right to self-determination is invoked, there are no grounds to presume that the
authorities of the Republic of Serbia denied th e possibilities for Kosovo to implement internal
self-determination in conformity with the United Nations Security Council resolution 1244 (1999).
The question to be addressed in the requested advisory opinion refers to the observance of
legal requirements for a declaration of independence and secession of territory from a single State.
It does not encompass a subject of consequences of recognition of de facto independence by the
international community.
In the opinion of the Republic of Belarus, the following acts of the recognition of Kosovo as
a sovereign State should not prejudice an analysis of legitimacy of the effected declaration of
independence under international law.
Mr.President, distinguished judges, in conclusion, we would like to emphasize that
self-determination in no case seems to be absolu tely synonymous with independence. For
attainment of this right which the Covenant on Civil and Political Rights defines as “to freely
determine their political status and pursue th eir economic, social and cultural development”,
freedom is more important than independence. Adequate constitutional arrangements within a
single State can satisfy the rights of ethnic minorities, including the right to development.
The principles of international law being inte rpreted in good faith and in a harmonious and
systematic manner allow us to arrive at the conc lusion that the external self-determination is an
extraordinary event, which may take place only under extreme conditions. Historically, only
colonial oppression is universally accepted as such an extreme condition constituting a special case
for external self-determination. The Republic of Belarus does not perceive such conditions in the
Kosovo case.
So, distinguished judges, I thank you very much for your attention. - 33 -
The PRESIDENT: Thank you very much, Your Excellency MsElenaGritsenko, for your
presentation.
That concludes the oral statement and comment s of Belarus and brings to a close today’s
hearings. The Court will meet again tomorrow at 10a.m. when it will hear Bolivia, Brazil,
Bulgaria and Burundi. The Court is adjourned.
The Court rose at 11.30 a.m.
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Public sitting held on Thursday 3 December 2009, at 10 a.m., at the Peace Palace, President Owada, presiding, on the Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo (Request for advisory opinion submitted by the General Assembly of the United Nations)