Schweizerische Eidgenossenschaft
Confédératiosuisse
ConfederazioSvizzera
Confederazisvizra
Ambassade de Suisse aux Pays Bas
713.4-WEK
L'Ambassade de Suisse présente ses compliments à la Cour internationale de
Justice et en se référant à sa note du 15 avril 2009, concernant la conformité au
droit international de la déclaration unilatérale d'indépendance des institutions
provisoires d'administration autonome du Kosovo, a l'honneur de lui soumettre
sous ce pli, une version inofficielle en langue anglaise.
L'Ambassade de Suisse saisit cette à la Cour
La Haye, le 25 mai 2009
Annexes : mentionnées
Cour internationale de Justice
Palais de la Paix
La Haye Unofficial translation
Accordance with International Law of the Unilateral
Declaration of Independence by the Provisional Institutions of
Self-Govemment of Kosovo
(Request for Advisory Opinion)
Written statement
Addressed to the ;,
International Court of Justice
bythe
Swiss Confederation
in accordance with
the order of the Court
of 17 October 2008 I. INTRODUCTION
1. On 8 October 2008, the United Nations General Assernbly ("General Assembly'') adopted
Resolution 63/3 (NRES/63/3) by which it decided, in accordance with Article 65 -of the
Statute of the International Court of Justice ("Statute''), to ask the International Court of
Justice ("Court") to givean advisory opinion on the following question: '
"Is the unilateral declaration of independence by the Provisional Institutions of
Self-Governrnent of Kosovo in accordance with international lawr
2. In its Order of 17 October 2008, the Court decided, in accordance with Article 66,
paragraph 1,of the Statute,
"that the United Nations Organisation and its Mernber States are considered \
likely to be able to furnish information on the question subrnitted to the Court
for an advisory opinion".
3. The Court fixed 17 Apri12009 as the time-1imitwithin which written statements on the
question may be presented to the Court in accordance with Article 66, paragraph 2, of the
Statute.
4. Furtherrnore, the 'court fixed 17 July 2009 as the time-limit within which the States or
''
organisations having presented written statements may submit written cornments on the other
statements in accordance with Article 66, paragraph 4, of the Statute.
5. Finally, in the same order of 17October 2008, the Court decided that:
"taking account of the fact that the unilateral decJaration of independence by
the Provisional Institutions of Self-Govemrnent of Kosovo of 17 February 2008
is the subject of the question subrnitted to the Court for an advisory opinion, the
authors of the above declaration are considered likely to be able to fumish ) '
information on the question".
6. Switzer]andwishes to avai1itself of the possibility of fumishing a written statement and, in
respecting the time-limit fixed, subrnitsthe following considerations to the Court:
,,
***
II. BRIEFREMINDEROFTHEPOSITIONOFSWITZERLAND
7. In the interest of transparency, Swifzerland would like to recaU briefly its position with
regard to Kosovo, prior to addressing the questions of the Court's cornpetence, the
appropriateness of the Court exercising itsjurisdiction and, finaUy,the actual substance of the
question submitted to the Court.8. SwitzerJandis one of the States that recognised Kosovo. Ten days after the adoption of the
declaration of independence by Kosovo, Switzerland decided to recognise Kosovo and
establish diplomatie and consular relations. On this occasion, the President of the
Confederation made the followingpublic declaration:
"Bern, 27.02.2008 - Recognition of Kosovo and the establishment of -
diplomatie relations
Today, on the recommendation of the Federal Department of Foreign Affairs
and following consultations with the Foreign Affairs Committees of the
Council of States and the National Council, the Federal Council decided to
recognise Kosovo and to establish diplomatie and consu)ar relations between
the two countries.
The Federal Council took note of the Declaration of lndependence adopted by
the Assembly of Kosovo on 17 February 2008 and the formai invitation to
recognise Kosovo that was addressed to the Swiss government by the President
and the Prime Minister ofKosovo on the same day.
In particular, the Federal Council welcomed the clear commitment expressed
by the authorities of Kosovo in the two above-mentioneddocuments to respect
in full the obligations set out the Comprehensive Proposai for Kosovo Status
Settlement of the Special Envoy of the Secretary-Generalof the United Nations
for Kosovo, Martti Ahtisaari, especially those conceming the protection of
minorities and the supervision of Kosovo's independence by means of an
international civilian and military presence.
The Federal Council also noted that the authorities of Kosovo intend to
cooperate with the NATO military presence, KFOR, on the basis ofResolution
1244/1999of the United Nations Security Council.
In a situation such as this, where emotions run very high and there is a contlict
of interests, an ideal solution is not possible. Nevertheless the Federal Council
considers this new step in the political reconstitution of the region to be
preferable to any alternative. ln addition, it considers that in view of the
circumstances of this particular case, Switzerland's recognition of the
independence of Kosovo does not constitute a precedent.
Clarification ofthè status of Kosovo is a precondition for the stability as well as
for the economic and political development of the whole of the Western
Balkans. The Federal Council declares its intention to pursue Switzerland's
commitment in the region and to take an active part in the international·efforts
both in Kosovo and in the region as a whole.
Switzerland has always adopted balanced positions on issues concerning the
Balkans, taking into account the legitimate interestsof al]parties involved. The
Federal CounciJwishes to emphasise that Switzerland's recognition of Kosovo
goes band in band with its desire to develop further its good relations with
Serbia and to strengthen the very close cooperation that exists between Serbia
and Switzerland."
9. On 8 October 2008, at the time of the vote of the Genera]Assembly on Resolution 63/3
which is at the origin of the request for an advisory opinion, Switzerland decided to abstain.
21O. As is known, Resolution 63/3 was adopted. by the General Assemb]y with 77 votes
against 6 and 74 abstentions. Consequently, the case was brought before the Court.
11. Switzer]and attaches the highest importance to public international ]aw and to the role of
the International Court of Justice. The Swiss Confederation therefore wishes, to the extent of
its abilities, to he]p fumish elements neeoed to answer the question submitted to the Court.
12. Switzer1and hopes that if the Court were to decide to provide the advisory opinion, the
opinion would help strengthen the process of consolidating stability and peace in the region.
***
m. PRELIMINARYCONSIDERA TIONS
a) Competenceof the Court
13. By virtue of Article 65, paragraph 1, of the Statute, the Court may give an advisory
opinion on any legal question at the request of whatever body rnay be authorized by or in
accordance with the Charter of the United Nations ("Charter'') to make such a request. The
request of the General Assemb]y contained in Resolution 63/3 bas been formulated in
app1ication of Article 96, paragraph 1, of the Charter, by virtue of which the General
1
Assernbly rnay request the Court to give an advisory opinion on any 1egalquestion.
14. The Genera1 Assernbly bas not exceeded the functions and powers assigned to it in the
Charter and, in the·opinion ·of Switzerland, respects the limitations irnposed in particular by
the provisions ofparagraph 1 of Article 12. The question subrnitted by the General Assernbly
was put in legal terms. The fact that this question also has political aspects in the current
situation does not deprive it of its legal nature •either the political nature of the reasons that
might be behind the request nor the po1itica1implications which the advisory opinion could
1In its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, the Court confirmed its
practice in this respeInparagraph 13 of the Opinion it says:
"Thefact thatthis question also has political aspects, as, in the nature of things, is th~case with
so many questions which arise in international life, does not S1efjiceto deprive if of ils fharacter
as a 'legal question' and to 'deprive the Court of a competence express/y conferred on it byils
Statute' (Application for Review of Judgement No. 158 of the United Nations Administrative
Tribunal, Advisory Opinion, LC.J. Reports 1973, p. 172, para. 14). Whatever ils political
aspects, the Court cannot refuse to admit the legal character of a question which invites it to
discharge an essentially judicial task, namely, anssment of the legality of the possible
concluct of States with regard to the obligations imposed upon them by international law (cf.
Conditions of Admission of a State to'Membership in the United Nations (Article 4 of Charter),
Advisory Opinion, 1948, LC.J. Reports 1947-1948, pp. 61-62; Competence of the General
Assembly for the Admission of a State to the United Nations, Advisory Opinion, LC.J. Reports
1950, pp. 6-7; Cerlain Expenses of the UnitedNations (Article 17,paragraph 2, of the Charter),
Advisory Opinion, LC.J. Reports 1962p.155).
(Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, LC.J. Reports 1996-1, pp. 233-234,
para. 13).
3have is relevant with regard to the establishment of the competence of the Court2.Nor does
the contingency that there may be factual issues underlying the question posed alter its
character as a legal question in the meaning of Article 96 of the Charter3.
15. In the opinion ofSwitzerland, the Courtis competent to respond to the request.
'
b) Appropriatenessof exercisingits competence
16. Article 65, paragraph 1, of the Statute states tbat: "[the] Court may give an advisory
opinion... " (emphasis added). The Court thus exercises a discretionary power to decide
whether or not to give an advisory opinion that bas been requested of it. In this context the
Court has always been aware of its responsibilities as the "principal judicial organ of the
United Nations" (Article 92 of the Charter). Itbas stressed the foUowing:
'vi'he Court's Opinion is given not to the States, but to the organ which is
entitled to request it; the reply of the Court, itself an 'organ of the United
Nations', represents its participation in the activities of the Organization, and,
in principle, should not be refused." (Interpretation of Peace Treaties with
Bulgaria, Hungary and Romania, First Phase,Advisory Opinion, J.C.J.Reports
1950, p. 71; see also Reservations to the Convention on the Prevention and
Punishment of the Crime of Genocide, Advisory Opinion, J.C.J. Reports 1951,
p. 19; Judgments of the Administrative Tribunal of the ILO upon Complaints
Made against Unesco, Advisory Opinion, l.C.J. Reports 1956, p.,,86; Certain
Ex.penses of the United Nations (Article 17, paragraph 2, of the Charter),
Advisory Opinion, l.C.J. Reports 1962, p. 155; and Applicability of Article VI,
Section 22, of the Convention on the Privileges and Immunities of the United
2In its Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territoryof9 July 2004, the Court made use of the occasion to confirm:
"Moreover the Court affinned, in its Opinion on the Legality of the Threat or the Use of
Nuclear Weapons, that
'thepolitical nature of the motives which may be said to have inspired the request and
the political implications that the opinion given might have no relevance in the
establishment of ils competence to give such an opinion ' ([.C.J. Reports 1996 (1),
p. 234, para. 13).
The Court is of the view that there is no element in thepresent proceedings which could lead to
conc/ude otherwise."
(Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
I.C.J. Reports 2004,p. 155f, para. 41).
3
In its Advisory Opinion on the Legal Consequencesfor States of the Continued Presence of South Africa in
Namibia, the Court had already affirmed:
"In the view of the Court, the contingency that there may be factual issues underlying the
question posed does not alter its character as a "legal question" as envisaged in Article 96 of
the Charter. The reference in thisprovision to legal questions cannot be interpreted as opposing
legal lofactual issues. Normal/y, to enable a court topronounce on legal questions, it must also
be acquainted with, take into account and, if necessary, makefindings as to the relevantfactual
issues."
(Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-West Africa)
notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, J.CJ. Reports 1971, p.27,
para. 40).
4 Nations, Advisory Opinion, lC.J. Reports 1989, p. 189." 4
17.In accordance with the constant case law of the Court, only "compelling reasons" could
prompt it to refuse to reply to a request from the General Assemb ty5 . o instance of a refusai
to act upon a request for an advisory opinion, based on the discretionary powers of the Court,
has been recorded in the history of the Cburt 6•
I 8. The question that arises is whether or not, in this particular case, any such "compelling
reasons" exist. In this respect three grounds cou.Idbe taken into consideration in particular:
a) the Jackof consent (cf. below paras. 19to 20),
b) absence of the necessary factual information (cf. para. 21),
c) the political inappropriateness (cf. paras. 22 and 23).
19. In so far as the :firstelement, the Jack of consent, is concemed, the Court affirmed in its
Advisory Opinion on Western Sahara, that:
.!
''the lack of consent of an interested State may render the giving of an advisory
opinion incompatible with the Court's judicial character. An instance of this
would be when the circumstances disclose that to give a reply would have the
effect of circumventing the principle that a State is not obliged to allow its
disputes to be submitted to judicial settlement without its consent. If such a
situation should arise, the powers of the Court under the discretion given to it by
Article 65, paragraph 1, of the Statute, would afford sufficient legal means to
7
ensure respect for the fundamental principle of consent tojurisdictipn."
20. However, the situation in which the Court finds itself with regard to the request
formulated in Resolution 63/3 does not correspond to the one envisaged in the passage cited.
One cannot view the request in this particular case as circumventing the principle of consent
applicable to requests emanating from States. To begin with, Kosovo was not able to give its
consent to the jurisdiction of the Court, not yet being a member of the United Nations and
consequently nota party ipsofacto to the Statute; nor bas it become party to the Statute of the
Court by virtue of Article 93, paragraph 2, of the Charter. Furthermore, there is another
)
reason for which one cannot speak of circumventing the fundamental condition of consent to
ju:risdiction: the question which the General Assembly put to the Court cannot be equated
with a dispute limited to a purely bilateral dimension. Itis part of a much wider framework
4
Legality of the Threat or Use of Nuclear Weapons,Advisory Opinion, LC.J.Reports 1996-1,p235, para.14.
5See Judgements of the Administrative Tribunal of the /LO on requests against Unesco, Advisory Opinion,
LC.J. Reports 1956,p. 86; Certain expenditures of the United Nations (article 17,paragraph 2, of the Charter),
Advisory Opinion, LC.J. Reports 1962, p. 155; Legal Co11Sequencefsor States of thè Continued Presence of
South Africain Namibia (South-West Africa) notwithstanding Resolution 276 (1970) of the SecurityCouncil,
Advisory Opinion, J.C.J. Reports 1971, p. 27; Application for review ofjudgemen°158 of the Administrative
Tribunal of the United Nations, Advisory Opinion, LC.J. Reports 1973, p. 183; Western Sahara, Advisory
Opinion, l.C.J. Reports 1975, 21; Applicability of section 22 of Article VIof the Convention on the Privi/eges
and lmmunities of the UnitedNations, LC.J. Reports 1989,. 191; andlegality of the Threat or Use ofNuclear
Weapons,Advisory Opinion,J.C.J.Reports 1996-1,p. 235, para. 14.
6Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
l.C.J. Reports 2004,. 156,para. 44.
1WesternSahara, Advisory Opinion,I.C.J. Reports 1975, p. 25,para. 33.
5and is of more genera] interest to the United Nations 8•
21. A second ground on which the Court might refuse to act upon a request from the General
Assembly for an advisory opinion would be "the actual Jackof 'materials sufficient to enable
9
it to arrive at any judicial conclusion upon the question of fact"' The reply to the question
put by the General Assembly undoubted.lyinvolves a thorough examination of the faéts. In
this respect the many reports of the Secretary-Genera] on the United, Nations Interim
Administration Mission in Kosovo, together with the report of the Specia1 Envoy of the
Secretary-General on the future Status of Kosovo ofMarch 200?1°are certain to be useful. At
any rate, it is for the Court itself to decide whether or not the material elements available are
sufficient to enable it to reply in the affirmative to the request of the General Assembly. The
way in which the situation has developed in Kosovo appears in any case to be welI
documented.
22. A third ground on which the Court might decide not to act upon such a request is political
inappropriateness. This might be based for example on the argument that an opinion of the
Court could have negative effects on the ground or that the opinion would serve no useful
purpose. Both of these arguments were put forward in the case of the Legal Consequences of
the Construction of a Wall in the Occupied Palestinian Territory. The Court nonetheless
decided as follows:
"The Court is indeed aware that the question of the wall is part of a greater
whole, and it would take this circumstance carefu11yinto account in any
opinion it might give. At the same time, the question that the General Assembly
has chosen to ask of the Court is confined to the legal consequences of the
construction of the wall, and the Court wou1donly examine other issues to the
extent that they might be necessary to its consideration of the question put to
it."11
23. In the past the Court has given carefu] consideration to the possible existence of
compelling reasons that would make it necessary for it to decline the request for an opinion
on the grounds ofpolitica1 inappropriateness. Ta12ng into accountthe conditions established
in the case law of the Court on this subject , Switzerland sees no reason that would compel
8 See also Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory
Opinion, I.C.J. Reports 2004, p. 159, para. 50.
In its Advisory Opinion on the Western Sahara, the Court also stressed the following:
"The object of the General Assembly has not been to bring be/ore the Court,way of a request
for advisory opinion, a dispute or legal controversy, in order that il may later, on the basis of
the Court's opinion, exercise ils powers andfunctions for the peaceful settlement of that dispute
or controversy. The abject of the request is an entirely di.fferentone: to obtain/rom the Court an
opinion which the General Assembly deems of assistance to il for the proper exercise of its
functions conceming the decolonization of theterritory."
(Western Sahara, Advisory Opinion, l.C.J. Reports 1975, pp. 2para.39).
9 Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 28, para. 46.
10S/2007/168, 26 March 2007.
11
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
I.C.J. Reports 2004, p. 160, para 54.
12
In the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, the Court observed that
6the Court to refuse to give considerationto the question of the confonnity with international
IawofKosovo's declarationofindependence.
24. Consequently, Switzerland bas the honour of presenting hereafter its comments with
regard to the questionbefore the Court.
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IV. THEDECLARATION OFINDEPENDENCE IN LIGHTOFINTERNATIONAL
LAW
a) Generalcomments
25. The question put to the Court is whether Kosovo's declaration of independence of
17February 2008 is in accordancewith intemational law.
26. The declaration of independence by a State is a factual, unique event occurring at a
precise, more or less important moment in history. In legal tenns, a declaration of
independence may often raise questions of public Iaw, in particular of constitutional law,
because it can bring with it a profound change, perhaps even a total rupture with the public
law order in force at that time. ''
27. Declarations of independence are rarely the subject of in-depth consideration under
international law, however. For example, the question as to whether and at what moment an
"[the] General Assembly itself has the authority to decide as to the usefulness of an opinion in
consideration ofitown needs".
(Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, LC.J. Reports 1996-1,p. 238, para. 16).
It went on to say:
"The Court knows that, whatever conclusions il might reach in the opinionitrenders,
these conclusions would be pertinent to the debate taking place in the General Assembly, and
would furnish an additional element in the negotiations on the question. Apart from this
observation, the ejfect which the opinion would have is itself a malter of opinion. "
(Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, LC.J.Reports 1996-/, p. 238, para. 17).
In its Advisory Opinion concerning Western Sahara, the Court made the following remark:
"It is in any case not for the Court to say in what way or to what extent ils opinion might
influence the action talcen by the General Assembly. The Court's function is to render an
opinion founded in law, once it has reached the conclusion that the questions put to il are
pertinent, that they will have a timely practical effect and consequent[y that they are neither
pointless nor purposeless.
(Western Sahara, Advisory Opinion, LC.J. Reports 1975, p. 37, para. 73).
Finally, in its Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied
PalestinianTe"itory, the Court observed tbat
"[the] Court cannai substitute ils own view as to the usefalness of the opinion requestedfor that
of the organ making the request, in the present instance the General Assembly.
(Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
I.C.J. Reports 2004, p. 163, para. 62).
7entity becomes a State under international law is very different to the question as to whether
and at what point in time independence was declared. An entity wishing to secede may very
well become a State under international Jawwithout rnaking a declaration of independencè at
all. Conversely, a declaration of independence by an entity wishing to secede does not
necessarily lead to the birth of a State under international law. Ttis not surprising therefore,
l . -
that declarations of independence have rarely been studied within the context of international
law.
28. It would however be going too far to claim that international law remains entirely silent
on the subject of declarations of independence and that such declarations thus fall into a legal
vacuum.
29. For a start, seceding entities are subject to and must comply with erga omnes mies under
international law. Tt would, for example, be theoretically possible for a declaration of
independerice to contain an incitement to genocide, thereby breaching one of the peremptory
norms of international law (jus cogens). It is immediately cJear from an analysis of Kosovo's
declaration of independence that it does not in any sense breach any peremptory norm of
international law. To the contrary, its authors have placed the greatest importance on the
respect for human rights, on the prohibition of the use of force and on other principles of
international law. The fact that Kosovo's declaration of independence is the subject of a
request for an advisory opinion of the Court cannot in any way be seen as implying that. it
could be in breach ofjus cogens norms or obligations erga omnes under international law.
\,
30. It is the opinion of Switzerland that the General Assembly's interest in Kosovo's
declaration of independence is rather due to a particular circumstance: the declaration of
independence was a step in a long process towards independence, a process which entailed
international supervision and whose outcome does not satisfy all parties concerned. This
process was launched by Security Council Resolution 1244, presented below in section b.
b) Security Council Resolution 1244 and its implementation
i) Briefhistorica] summary
31. The Security Council dealt with the situation in Kosovo as from 31 March 1998 when, for
the first time in this context, it adopted a resolution under Chapter VII of the Chàrter calling
13
for an immediate politicaJ solution to the Kosovo crisis •It repeated its call on 23 September
13
S/RES/1160. Prior to the worsening of the crisis in Kosovo in 1998, the international community had
launched several initiatives to facilitate a political resolution between the concemed parties. The 1991 Hague
conference peace plan on Yugoslavia provided that "the republics shall apply Jully and in good faith the
provisions existing prior to 1990for autonomous provinces." (Peace Conference on Yugoslavia, Carrington
Draft Paper, "Treaty Provisions for the Convention", UN Doc S/23169, annex VII, 18October 1991).
The 1992 London conference had created a working group to study a means of resolving the crisis in Kosovo.
This led !o the signa~e on 1 September 1996 of the Sant'Egidio accord between the Federal Republic of
Yugoslavta and Ibrahnn Rugova, on behalf of Kosovo; the agreement provided for the normalisation of the
educati?n system for _Albanian-speakingchildren and youth (St. Egidio Education Agreement, 1 September
1996, s1gnedby Ibrahim Rugova and Slobodan Milosevic, andAgreed Measuresfor thelmplementation of the
Agreement on Education of 1 September 1996, Belgrade, 24 March 1998, signed by Ratomir Vico, Goran
81998, stating it was gravely concemed by "the indiscriminate use of force" and "alarmed at
the impending humanitarian catastrophe" 1• On 24 October, it said it was "deeply alarmed
and concemed at the continuing grave humanitarian situation throughout Kosovo and the
15
impending humanitarian catastrophe" • On 14 May 1999, it once more expressed "grave
concem at the humanitarian catastrophe" and requested that humanitarian aid be immediately
16 17
delivered to the refugees •In Resolution 1244 , it regretted that the demands made' in its
resolutions had not been fully complied with and announced that it was determined to resolve
the grave humanitarian situation in Kosovo.
32. Security Council Resolution 1244 was adopted on 10 June 1999, one day following the
signature by the Federal Republic of Yugoslavia (FRY) and Serbia of an agreement with
NATO on the posting of an international peacekeeping force in Kosovo (KFOR).
33. Resolution 1244, adopted with 14 votes in favour and one abstention, refers firstly to the
Statement by the G8 meeting of St Petersburg of 6 May 1999 which had adopted general
principles for a political settlement to the Kosovo crisis. Secondly, it refers to the Agreement
on the Principles (Peace Plan) to Move towards a Resolution of the Kosovo crisis which was
presented to the leaders of the FRY on 2 June in Belgrade by Mr. Ahtisaari, then President of
Finland and representing the European Union, and Mr. Chemomyrdin, Special representative
18
to the Russian Federation • On 3 June 1999, the govemment of the FRY and the Serbian
Parliament approved the agreement. These two documents are annexed to Resolution 1244.
34. The objective of Resolution 1244 was to lay the foundation upon which the political
\;
solution to the status of Kosovo would be based. In this Resolution, the Security Council
demanded, in particular, the immediate end to acts of violence and repression and the
withdrawal from Kosovo of all FRY military and police forces. Furtherrnore it decided upon
the deployment of international security and civil presences - the KFOR and the United
Nations Interim Administration Mission in Kosovo (UNMIK) - with the agreement of the
FRY and under the United Nations auspices.
Percevic, Dobrosav Bjeletic, Fehmi Agani, Abbdulj Rama and Redzep Osmani, in: Heike Krieger, The Kosovo
Conjlict and InternationaLaw. AnAnalytical Documentation, 1974-99, Doc. 8).
After 1997, it was mainly a contact group (comprised of foreign ministers fi:om the United States, France,
Germany, Russia, the United Kingdom and Italy) who were concerned in matters relating to Kosovo; its
mediation attempts resulting in the Rambouillet Accords in 1999 {Interim Agreement for the Peace and
Autonomy of Kosovo). For the text of these agreements refer to the letter of 4 June 1999, addressed to the
Secretary-General by the Permanent Representative of France to the United Nations, S/1999/648, annex -
Rambouillet Accords.
None of these initiatives had a lasting effect: The Hague Peace Plan of 1991 was rejected by Serbia, the
Sant'Egidio accord was never implemented by the Federal Republic ofYugoslavia -_a matter remarked upon
with regret by the General Assembly of the United Nations - and the Rambouillet Accords of 1999 were only
signed by the representative for Kosovo and not by the Federal Republic of Yugoslavia.
14
S/RES/1199.
ISS/RES/1203.
16
S/RES/1239.
17S/RES/1244.
18
Agreement on the Principles {PeacePlan) to Move towards a Resolution of the Kosovo Crises, presented in
Belgrade on 2 Jme 1999 to the Leadership of the FRY by the President of Finland, Mr. Ahtisaari, Representing
the European Union, and Mr. Chemomyrdin, Special Representative of the Russian Federation.
935. Whilst the role of the international securitypresence was to ensure a secure environment,
the role of the international civil presence was inter alia to fucilitate a political process
designed to determine Kosovo's future status. The Security Council demanded the
withdrawal from Kosovo of all FRY police, military and paramilitary forces, and demanded
equa11ythat an armed Kosovo Albanian groups cease a11offensive actions. Finafly, it
requested that the Secretary-General keep them informed of aU developments at regular
intervals.
36. On lODecember 2003, after a few years without major developments in the process for
determining the final status of Kosovo, UNMlK submitted a document "Standards for
Kosovo", setting down the standards required for the establishment of a stable and
democratic multi-ethnic society in Kosovo. These standards were endorsed by the Security
Counci1 19•
37. In March 2004, UNMIK submitted an ''Implementation Plan for the Standards for
Kosovo" which was to serve as a basis for evaluating the progress made in the
implementation of the standards. In bis report of 30 November 2004 20 however, the Special
Envoy of the Secretary-Generalconsidered the plan in question to lack credibility insofar as
it seemed impossible to apply the standards in their entiretybefore commencing negotiations
on Kosovo' s status. The SpecialEnvoy proposed that a set of immediate priorities be defined
so that the aforementioned negotiations could take place in reasonable and achievab]e
conditions. ,,
38. This approach gave the process new momentum and led to positive developments. In
2005, in his "global examination of the situation in Kosovo" 21,the Special Envoy of the
Secretary-Genera1reported on these developments whilst at the same time drawing attention
to certain areas where progress stiJIneeded to be made.Despite having some reservations, be
recommended that a process to determine the final status of Kosovo be launched. This
conclusion receivedthe approvalof the Security Council2 2•
39. In March 2007, after more than one year of talleswith both parties, the new Special
Envoy of the Secretary-General, Mr. Ahtisaari, presented a report which showed that
negotiations had corne to an impasse and confirmed that all possibilities of reaching a
negotiated outcome had been exhausted. Confrontedwith this impasse he concluded that the
only viable solution for this "unique case" was independencesupervised by the international
community and submitted a "CornprehensiveProposa)for the Kosovo Status Settlement" 23 •
19Statement by the President of the SecurityCouncil of 12December2003, S/PRST/2003/26.
20
Annex to the letter of 17 November 2004, from the Secretary-General to the President of the Security
Council, S/2004/932.
21
Annex to the letter of 7 October 2005, from the Secretary-General to the President of the Security Council
S/2005/635. '
22Statementby the President of the SecurityCouncil of24 October2005, S/PRST/2005/51.
23
Letter of 26 March 2007, from the Secretary General to the President of the Security Council and
accompanying annex, S/2007/168(2007).
1040. This proposa], also known as the "Ahtisaari Plan", contained prov1s10ns for
·constitutional, economic and security issues as well as provisions concerning the promotion
and the protection of the rights of communities, the decentralisation of government and the
protection and preservation of cultural and religions heritage. The proposai was accepted by
the representatives of Kosovo but rejected by the representatives of Serbia.
'
41. In a Jast attempt to find a way out of the dead]ock, a troïka, made up of.representatives of
the European Union, Russia and the United States, was formed in an attempt to keep
negotiations going between the parties. After 120 days of intense negotiations the parties
4
failed to corne to an agreement2 •
ii) Accordance of the declaration of independence with Resolution 1244 of the Security
Council
42. Security Council Resolution 1244 cannot be understood as prohibiting in any way a
declaration of independenceby Kosovo.
43. In paragraph 10 of the preamble, the Security Council reasserts the sovereignty and
territorial integrity of the_FRY. Preambles to UN resolutions set out the context for
interpretation of the operative paragraphs and remind States that they need to respect the
principles set forth in the preamble when implementing the measures taken in the operative
part. \,
44. It isstandard practice for the Security Council to reaffirm the sovereignty and territorial
integrity of a State, in particular when taking enforcement measures against it under Chapter
VII of the Charter. In so doing the Security Council indicates to that State that it is neither its
intention that the State lose its national sovereignty as a result of the measures taken nor that
its borders be altered. This allaying formula is however of relative importance only: in the
preamble to Resolution 1272 whereby the Security Council was putting a transitional
administration in place in East Timor, it reasserted the sovereignty and territorial integrity of
Indonesia whilst, in the same resolution, expressly supporting the ultimate independence of
25
East Timor within the ftamework of a transition process under the authority of the UN •By
analogy, the reference to the territorial integrity of the FRY contained in paragraph 10 of the
preamble to Resolution 1244does not in any way mean that the future status of Kosovo must
be confined within the borders of the FRY.
45. The first operative paragraph also indirectly al1udesto the territorial sovereignty of the
FRY, because the Security Council decides therein that "the political solution to the Kosovo
crisis shall be based on the general principles in annex 1" to the Resolution. The annex
referred to launches a 'l)olitical process towards the establishment of an interim political
24
Letter of 10 December 2007, from the Secretary-General to the President of the Security Council, S/20071723.
25 S/RES/1272 of 25 October 1999, para._12 of the Preamble: "Reaffirming respect for the sovereignty and
territorial integrity of Indonesia";inpara. 3 of the Preamble: "... begin a process of transition under the
authority of the United Nations towards independence, which it [the Security Council] regards as an accurate
reflection of the will of the East Timorese people."
11framework agreement providing for a substantial self-government for Kosovo, taking full
account of the Ramboui1letaccords and the principles of sovereignty and territorial integrity
26
of the Federal Republic of Yugoslavia (...)" • This indirect reference is not a perpetual
reassertion of the territorial integrity of the FRY either, but only relates to the political
process leading towards the establishment of an interimpoJitical framework agreement. The
Security Council did not, in Resolution Î244; provide for any specific measures, should that
po1itica1process eventually fait.
46. In this context, it should also be pointed out that the Ramboui11etAccords referred to in
Resolution 1244 explicitly provide that the wil1of the people of Kosovo must be respected in
7
the definitive solution to the question ofstatus2 •
47. In addition, ResoJution 1244 mandates UNMIK to prepare Kosovo for its future status,
without specifying the tasks of the mission in respect ofthis status. The responsibilities given
to the mission by the Security Council include.for example "promoting the establishment,
pending a final settlement, of substantial autonomy and self-government" and "facilitating a
political process designed to determine Kosovo's future status, taking into account the
Rambouillet accords',2 What subsequently brought Kosovo to independence rather than to a
retum under the Govemment of Belgrade, were the actual developments on the ground -
under the regime ofResolution 1244 and white the Security Council had multiple occasions
to pronounce itself on the matter. It is at the end of the UN-Jed process and as a simple
consequence of the implementation of the measures laid down in Resolution 1244 that the
Secretary-General finally saw no other choice than to unambigupusly recommend
independence for Kosovo under the supervision of the international community.
48. If the Security Council had really wanted to preclude Kosovo's independence, it would
have done so in clear and unequivocal terms in a binding operative paragraph of the
29
teso1ution • The Security Council deliberately chose not to make any definitive
pronouncement on the subject, though, when it adopted Resolution 1244. The latter
contemplates a "final settlement", whilst saying nothing of the content, form or scope of such
"settlement". The Security Council did not therefore fix in advance the final settlement for
Kosovo's status; it limited itself to Jaunching a political process with the aim of arriving at a
political solution.
26
S/RES/1244(1999),annex 1,p.6.
27
Rambouillet Accords, Chapter 8, Art.I on Amendment and Comprehensive Assessment, para. 3: ..Three years
after the entry into force of this, an international meeting shall be convened to determine a mecbanism for a final
settlement for Kosovo, on the basis of the will of the people, opinions of relevant authorities, eachrty's
efforts regarding the implementation ofthis Agreement, and the Helsinki Final Act".
28
29S/RES/1244(1999), para.11, let. a and e.
ln its Resolution 541 of 18 November 1983 for example, the Security Council viewed the proclamation made
by the Turkish Cypriot authorities on 15 November 1983 "which purports to create an independent state in
northern Cyprus" as being "incompatible with the Treaty of 1960 relating to the Republic of Cyprus". In the
?Per~tive clauses of the ~olu_tion, the ~ecurity Council considered "the declaration referred to above legally
mvalt~ and ~ll[ed] for 1t_with~wal (para.. 2). As a result, it "call(ed] upon all States to respect the
sovere1gnty,..mdependence, mtegr1~ and non-a?gnment of the Republic of Cyprus" (para. 6) and expressly
called upon all States not to recogn1seany Cypnot state other than the Republic of Cyprus" (para. 7).
1249. This is confmned, if confmnation were necessary, by the minutes of the meeting of the
Security Council of 10 June 1999. The representative of the government of the FRY
requested that the wording of the Resolution be modified to the following effect:
''The Security Council draft resolution should contain the fo11owingpositions: a
finn and unequivocal reaffirmatibn of full respect for the territorial integrity and
sovereignty of the Federal Republic of Yugoslavia; a political sol,ution to the
situation in Kosovo and Metohija that would be based on broad autonomy...
The solution for Kosovo and Metohija must fall within the legal frameworks of
the Republic Serbia and the FerleraiRepublic ofYugoslavia, which implies that
ail State and public services in the province, including the organs of law and
order, should function according to the Constitutions and laws of the Federal
Republic ofYugoslavia and the Republic of Serbia... In sub-item (a) and (b) of
operative paragraph 9, the draft resolution requests in all practical terms that the
Ferlerai RepubJic of Yugoslavia renounce a part of its sovereign territory.
Furthennore, in operative paragraph 11, the draft resolution establishes a
protectorate, provides for the creation of a separate political and economic
system in the province and opens up the possibility of the secession of Kosovo
and Metohija :fromSerbia and the Federal Republic ofYugoslavia." 30
50. The Security Council did not agree with the demands of the FRY: the territorial integrity
of the FRY was not reaffinned in absolute terms within the operative part of the resolution,
nor does it contemplate that the international civil presence in Kosovo should comply with
the laws of the FRY or Serbia. What is more, during the course of the meeting of 10 June
1999, the representative for the United Kingdom rernarkedthat: ''
''This Chapter-VII resolution and its annexes clearly set out the key demands of
the international community, which Belgrade must satisfy. The interpretations
and conditions which the delegation of the Fe1eral Republic ofYugoslavia bas
attempted to propose have been rejected.',3
51. The minutes of the adoption of Resolution 1244 illustrate clearly that the Security
Council had taken no position over the future status of Kosovo. IfResolution 1244 does not
contain any provision for Kosovo's future status, it is not due to an oversight in its drafting.
On the contrary, the Security Council had absolutely no intention of prejudicing the process
launched by the Resolution. The process was deliberately left open from the start.
52. For the reasons set out above, Resolution 1244 cannot in any way be ihterpreted as
precluding the secession of Kosovo.
c) Accordancewith generalinternationallaw
53. Switzerland will now respond to the question ofwhether other elements of international
law could give rise to the notion that the declaration of independence on 17 February 2008
30S/PV.4011, 10 June 1999.
31S/PV.4011, 10 June 1999.
13was contrary to intemationa11aw. As already noted inparagraph 29, one cannot criticise the
declaration of independence as contradicting peremptory norms of international law (e.g. the
prohibition of the use of force or obligations relating to fundamental human rights). Above
alJ, the question has to be examined whether the declaration of independence is in violation
of other norms or legal principles, notably the generaUyrecognised principle in international
law conceming the territorial integrity ofStates. ·
i) Principle of territorial integrity
54. Respect for territorial integrity is an integral component of the principle of sovereignty
recognised under international law. The guarantee of the territorial integrity of States ensures
the stability of the international order.
55. Article 2, paragraph 4, of the Charter, which embracesthe principle of territorial integrity,
only refers to the relevant obligation for a11member states "in their international relations".
The obligation is directed towards other States, it applies "extemally". Conversely, the
inviolability of territorial integrity stipulated in Article 2, paragraph 4, does not app]y to
entities within a State, i.e. it does not apply "internaUy".
56 Even if the principle of territorial integrity should be understood as a Jegalprinciple of a
general nature extending beyond the scope of Article 2, paragraph 4 of the UN Charter,
applying also to entities within a State, then such a principle would not Jre absolute, but it
would itselfbe subject to restrictions. One possible restriction would be the right of peoples
to self-determination, also firm]y anchored in international law.
ii) Right ofpeoples to self-determination
57. International law guarantees the principle of territorial integrity, but it also recognises the
right of peoples to self-determination. Both principles are recognised in the UN Charter, as
well as in the Final Act of the Conference on Security and Co-operation in Europe (Helsinki,
1975), and in the Charter of Paris for a New Europe (1990).
58. The actual extent of the right to self-determination remains a matter of dispute. In
SwitzerJand's view, in the course of the past few decades this right bas devefoped from a
principle arising from a political aspiration into a directly applicable norm of international
Jaw,which now represents a provision of customary international law and an obligation erga
omnes 32• The exercise ofthis right is subject to a number ofspecific conditions, however.
32
East Timor (Portugal vs. Australia), Judgment, LC.J. Reports 1995p. 90, para. 29: "ln the Court's view,
Portugal's assertion that the right of peoples to self-determinasiit evolved from the Charter and from
United Nations practice, basnerga omnes character, is irreproachable. The principle of self..detennination of
peoples bas been recognized by the United Nations Charteand in the jurisprudence of the Court (sLegal
Consequences for States of the Continued Presence of South Africa in Namibia {South West Africa)
notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, LCJ. Reports 1971,pp. 31-32,
paras. 52-53;WesternSahara,Advisory Opinion, l.C.J.Reports 1975,pp. 31-33, paras. 54-59); it is one of the
essential principles of contemporary internatIaw."
1459. In Article 1, paragraph 2, of the Charter, the right of peoples to self-determination first
appeared as a programmatic norm. It was paragraph 1 of Article 1 cornmon to the 1966 UN
Covenants on human rights that first gave it the outline of a legal definition. It stipulates that
all peoples have the right to self-determination, and that on the basis of this right they can
freely determine their political status ahd freely pursue their economic, social and cû.Itural
development. A few years later, the General Assembly elaborated the most authoritative and
comprehensive formulation so far of the right to self-determination in its 1970 "Declaration
2625 on the Principles of International Law conceming Friendly relations and Co-operation
among Statès in accordance with the Charter of the United Nations" (or Dec/aration on
Friendly Relations) 33, with certain provisions becoming recognised as customary
4
intemational law3 T•is transition from a political principle of self-determination to a right
was confirmed within the context of decolonisation through the case law of the International
5
Court of Justice in its advisory opinions conceming South WestAfrica (1971 )3 and Western
Sahara (1975)36,and its ruling in the East Timor case 37•
60. The assertion of principles of friendly relations also touches on the relationship between
national sovereignty, territorial integrity and the right of peoples to self-determination.
According to the principles set out in the Declaration on Friendly Relations, for the people
concemed the creation of a sovereign and independent State constitutes a means of exercising
their right to self-determination. The Declaration contains a specific clause to this effect:
"Nothing in the foregoing paragraphs shall be construed as authorizing or
encouraging any action which would dismember or impair, totally''orin 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 descnoed above and thus possessed of a
govemment representing the whole people belonging to the territory without
38
distinction as to race, creed or colour."
61. It stipulates that the right of peoples to self-determination cannot be interpreted as
authorising secession if the state concemed conducts itself in accordance with the principles
of equality before the law and right of peoples to self-determination, and jfthe govemment
represents the whole population within its territory, regardless oftheir race, religions beliefs
or colour. A similar safeguard clause has been confinned in the Vienna Declar3:tion and
Programme of Action at the World Conference on Human Rights (1993):
33NRES/25/2625, 24 October 1970,annex.
34
Cf. Case conceming armed activities on the territory of the Congo (Democratic Republic of Congo v.
Uganda), LC.J. Reports 2005, p. 56, para 162;Case conceming military and paramilitary activities in and
against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, l.C.J. Reports 198p. 101,
para.191.
35
Legal Consequencesfor States of the Continued Presence of South Africa in Namibia (South West Africa)
notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, LCJ. Reports 1971,pp. 31-32,
paras 52-53.
36WesternSahara, Advisory Opinion,I.CJ. Reports 1975,pp. 31-33,paras.54-59.
31
East Timor (Portugal v.Australia), LC.J. Reports 19p. 102,para.29.
38NRES/25/2625, 24 October1970,annex.
15 "In accordance with the Declaration on Principles of International Law
conceming Friend1y Relations and Cooperation Among states in accordance
with the Charter of the United Nations, [the rightofself-determination] shall not
be constmcted as authorizing or encouraging any action which would
dismember or impair, totaUyor inpart, the territorial integrity or political unity.
of sovereign and independent States conductingthemselves in compliance with
the principle of equa1 rights and self-determination of peoples and thus
possessed of a Government representing the whole people belonging to the
territory without distinction of any kind."39
62. This means that international law express1yprotects a State's territorial integrity to the
detriment of the right·ofpeoples to se1f-determinationif its government represents the whole
population without any form of discrimination. In this case, the population is exercising its
right to self-detennination through its representatives within the government, which is
obliged to respect the principle of equality before the law.
63. Conversely, a State's territorial integrity is not protected to an unlimited extent if its
government does not represent the whole population, arbitrarily practices discrimination
against certain groups, and thus clearly violates the right ofpeoples to self-determination. In
such a case, the declaration of independence by people forming part of a larger national
population could be in compliance with international law and the principle of territorial
integrity.
64. The Canadian Supreme Court, for ~xample,examinedthis question in its 1998Rejerence
re Secession of Quebec. Here it drew a distinctionbetween internai and external right to self
determination:
''The recognized sources of international law establish that the right to self
determination of a people is normally fu1filled through interna] self
determination- a people's pursuit ofits political, economic, social and cultural
development within the framework of an existing state. A right to externat self
determination (which in this case potentially takes the form of the assertion of a
right to unilateral secession) arises in on1ythe most extreme of cases, and even
then, under carefully defined circumstances. ,,4o
65. Thus the Canadian Supreme Court did not cornpletelyrule out the right ofa people to
declare unilateral independence against the wishes of the State to which it former1ybelonged,
stating that this was an exceptional action that could only be carried out under careful1y
defined circumstances.For the Supreme Court it is indisputablein international Jawthat such
circumstances can arise in the case of a population that has been colonised or subjected to
foreign domination. The Court also does not rule out the possibility that the circumstances
may arise in another case, name]y:
39
A/CONF.157/23, 12 July 1993, para. 2.
40Reference re Secession ofQuebec, Supreme Court (1998), 2 SCR 2InternationaLaw in Domestic Courts
ILDC 184 (CA 1998), para. 126 [Reference re Secession ofQuebec].
16 ''when a people is blocked from the meaningful exercise of its right to self
determination internally, it is entitled, as a Iastresort, to exercise it by secession
... Clearly, such a circumstance parallels the other two recognized situations in
that the ability of a people to exercise its right to self.-determinationinternally is
somehow being totally frustrated.',4 ·
66. According to prevailing doctrine, a people may by way of exception exercise the right to
extema1 self-determination if the State systematically and gravely vio1ates the right to
42
interna] self-determination on the basis of distinctive group traits, in such a manner that the
group concemed can no longer be expected to remain within the State concemed. If a people
finding itself in such a situation were unable to exercise the right to externat self
determination, then the right of peoples to self-determination would Jose its intrinsic
43
function f4. Switzerlànd shares this view.
67. In Switzerland's view, respect for territorial integrity is undoubtedly an important
principle of intemational law. However, it is not isolated frqm other fundamental principles
of international law, and in particular it cannot be called on for the purpose of excluding a
right to secession under all circumstances. A right to secession based on the right of peoples
to self-determination can exist, but may only be exercised in exceptional circumstances,
when all other means of exercising the right to self.-determinationhave failed or have to be
45
regarded as futile due to grave and systematic violations of human rights • In other words,
the proclamation of an independent State distinct from the former one must remain a solution
of last resort in order for a population to be able to exercise its right to self-determination
intemally, and enjoy the human rights and the rights of members of·minorities that are
41
Reference re Secession of Quebec, para. 135.
42 For example, murder, unlimited imprisonment without a legal basis, destruction of family relations,
dispossessionwithout regard to basic needs,pecial proluoitionof certain religions beliefs or use of own
language,enforcementof such prohibitionsthroughtheuse ofbrutalmeans and measures (cfKarlDndHRING,
Self-Determination,in: Bruno Simma (ed.),he Charter of the United Nations: A Commentary (2 edition,
Oxford2002)[DoEHRIN2 G002],p. 58.
43JamesCRAWFORD T,e Creation of States in International (Oxford 2006) [CRAWFOR2 D006], p. 119;
AntonioCASSESSE, Seif-Detehnination of Peoples: A Legal Reapprais(Cambridge 1995),pp. 109 ffDaniel
THÜRER D,os Selbstbestimmungsrecht der Vôlkermiteinem Ex/cursuszur Jurafrage(1976),p. 15 f.; Daniel
THÜRER, Dos Selbstbestimmungsrecht der Volker und die Anerkennung von Staaten, in: Hanspeter
Neuhold/BrunoSimma(ed.), Neues europâisches Vôlkerrechtnach dem Ende des Ost-West-Konj/ikt(Baden
Baden 1996)[THORER 1996],p. 50; Hans-JoachimHEINTZE i,: Knut Ipsen,Volkerrecht (5 edition,Munich
2004)[HBINTZ2 E004],pp.421 ffDOEHRIN2 002,pp. 57f.; ChristianTOMUSCHA GT,neral Course on Public
International LawAcadémie de Droit International,Recueil des Cours 1999 (The Hague 2001), pp. 253f,
DietrichMURSWIEK Die Problematik eines Rechts au/ Sezession - neu betrachtArcbiv des Vôlkerrechts
(AVR)31 (1993)[MURSWIE1 K993],pp.313f.
44Sovereigntyand territorialintegrityshouldnot beregardedhereas absolutevalues, but they shouldbe based
on a legitimacyarisingftom the responsibilityadoptedtowardslegalsubjects.They do not representan end in
itself, but are in the service of people and human rights,which alone legitimise their institutionalisation.Cf.
DanielTHÜRER, Der Wegfall effektiver Staatsgewalt; 'TheFailed StatBerichte der DeutschenGesellschaft
fürVollcerrecht(BDGV)34 (1995),p. 15;seealsoCRA WFOR2 D006,p. 384:'"Internationallawbas extendedits
protectionoftheterritorialintegrityof States,thoughnotto thepointofprovidinga guarantee.
45Reference re Secession of Quebec, par134; CRA WFORD 2006, p. 119; Hans-JoachimHEINTZE , : lpsen
2004,pp. 422 f; DoEHRING 2002, p. 58; DanielTHÜRER i,: Encyclopediaof Public International (North
Holland2000),p. 371 [THÜRER EPIL];MURSWIE1 K993,pp.313f.
17 46
guaranteed by intemational law • In such extreme situations, the right of a people to separate
itse1ffrom a State through a unilateral declaration of independence bas to be defined as an
ultima ratio solution. This concept was already defended in 1921by the Second Commission
of the League ofNations in connection with the wish of the people of the Aland islands to
47
secede from Finland •
68. Even if one wanted to admit that respect for territorial integrity could also be applied
intemally in a State, it would be possible to assert, in Switzerland's view, that the strict
conditions to be met in order to call on the right to self-determination were in fact fulfilled in
the specific case of Kosovo: that the people of Kosovo can exercise its right to self
determination (see iii below), that it had been subjected to grave and systematic violations of
human rights and the rights of members of minorities (see iv below), and that for the people
of Kosovo the declaration of independence in fact constituted a solution of last resort (ultima
ratio) (see v below).
iii) The right of the people of Kosovo to exercise the right of peoples to self
determination, and democratic legitimisation for exercising this right
69. Article 1 common to the two UN Covenants on human rights states that all peoples
possess the right to self-determination 48•Efforts by States to restrict this right to colonised
49
peoples were rejected •
''
70. The legal notion of people entitled to self-.determination is imprecise. To date, the
practice of States bas been deliberately to avoid conclusiveJy defining the notion of a people.
To quote Aureliu Cristescu, Special Rapporteur of the Sub-Comrnission on Prevention of
Discrimination and Protection of Minorities:
46See Article 1 of the International Covenant on Civil and Political Rights: "Ail peoples have the right of self
determination. By virtue of that right they freely determine their political status and fteely pursue their
economic, social and cultural development''. See also _Article27 of the same Covenant: "In those States in
which ethnie, religions or linguistic minorities exist persons belonging to such minorities shall not be denied the
right.,in community with the other members of their group, to enjoy their own culture, to profess and practise
their own religion, or to use their own language".
41Commission of Rapporteurs, League of Nations Doc. B.7.21/68/106(1921), Official Journal, Suppl. No. 5,
1921, p. 24: ''Theseparation of a minority ftom the State of which it forms a part and its hl.corporation in
another State can only be considered as an altogether exceptional solution, a last resort when the State lacks
either the will or the power to enact and applyjust and effective guarantees."
48 st
See also General Comment no. 12:Article 1 (Right to self-detennination), adopted at its 21 session (1984)
by the Commission on Human Rights established by the Covenant on Civil and Political Rights
(HRI/GEN/1/Rev. 9 (Vol. I) pp. 213 f.): "The right ofself-determination is ofparticular importance because its
realization is an essential condition for the effective guarantee and observance of individual human rights and
for the promotion and strengthening of those rights. lt is for that reason that States set forth the right of self
determination in a provision of positive law in both Covenants and placed this provision as article 1 apart frrn:n
and before ail of the otherrights in the two Covenants".
49
At the time of the ratification of the two human rights covenants, in 1979,India declared that: "the words 'the
right of self-determination• ... apply only to the peoples under foreign domination and ... do not apply to
sovereign independent States or to a section of a people or nation -which is the essence of nationalintegrity''.
France, Gennany and the Netherlands were against this restriction, stating that the UN Charter did not foresee
any condition limiting the exercise of the right ofpeoples to self-detennination.
18 ''The fact is that, whenever in the course ofhistory a people bas become aware
ofbeing a people, all definitions have proved superfluous." 50
71. Switzerland agrees in principle with the view expressed here, but would add certain other
51
points :
1. The right to self-determination is closely linked with the principl~ of equality.
Ali peoples possess this right to the same extent. It cannot be granted to one
people but denied to another in a selective manner on subjective grounds.
2. The right to self-determination applies to a collective that goes beyond a mere
group of individuals. What binds a people is a shared consciousness or a
common political will. This results ftom the exact nature of the right ofpeoples
to self-.determination which is a fundamental standard of the democratic State.
Thus any effort to define the notion of a people entitled to self-.determination in
a conclusive, objective and scientifically observable manner, is intrinsically
contradictory.
3. As a general rule, in order to exercise the right to self-detennination, the
people concemed have to share a common territorial basis.
72. To quote Rosalyn Higgins:
''To what unit does the concept of self-detennination apply? If the international
order is not to be reduced to a fragmented chaos, then some answer must be
provided to this question ... Self-determination refers to the right (;)fthe majority
within a generally accepted political unit to the exercise of power. Tt is
necessary to start with stable boundaries and to permit political change within
them." 52
73. For James Crawford, the question of the legal definition of the notion of 'people' as in
the right of peoples to self-.determinationturns on the identification of the territories likely to
exercise such a right. In his own words:
"At the root, the question of defining 'people' concerns identifying the
categories of territory to which the principle ·of self-determination applies as a
matter of right. ,,5
74. In his view, it is also clear that this right can only be exercised without co~raint on the
basis of the principle of equality, since it is a right that is closely tied to funda'inental rights.
He continues:
50Aureliu CRISTESCUL ,e droit à l'autodétermination (New York 1981, N Doc. E/CN.4/Sub.2 /404/Rev.l),
p.38, para. 274.
51
THÜRER 1996, pp. 45 f, sealsoTHÜRER EPIL, pp. 364 ff.
52RosalynHlGGINS The Development of International Law through the Political Organs of the UN(London
1963), p. 104.
53
CRAWFORD 2006, p. 126.
19 "First, it applies to entities whose right to self-determination is established
under or pursuant to international agreements, and in particular to mandated,
trust and non self-governing territories. Secondly, it applies to existing States,
excluding for the purposes of self-determinationthose parts of the state that are
themselves self-determination units as defined. ... However, there is a finther
possible category of self-determination units, that is, entities part of a.
metropolitan State but that have been govemed in such a way as to make them,
in effect non-self-governing territories - in other terms, territories subject to
carence de souveraineté. Possible examples are Bangladesh, Kosovo and
54
perhapsEritrea. "
75. The people of Kosovo can thus exercise a right of self-determination that is different
from that of the population ofSerbia. This can arise:
''when the inhabitants [of the territories forming distinct political-geographica]
areas] are arbitrarily excluded from any share in the govemment either of the
region or of the State to which they belong, with the result that the territory
becomes in e55ect, with respect to the rernainder of the State, non-self
goveming."
76. Finally, in its Reference re Secession of Quebec (1998), the Canadian Supreme Court
cornmentedas follows on this issue:
"Ttis clear that 'a people' rnay include only a portion of the population of an
existing state. The right to self-determinationbas devefoped largely as a hurnan
right, and is generally used in documentsthat simultaneously contain references
to 'nation' and 'state'. The juxtaposition of these terms is indicative that the
reference to. 'people' does not necessarily mean the entirety of a state's
population. To restrict the de-finitionof the term to the population of existing
states would render the granting of a right to self-determination largely
duplicative, given the parallel emphasis within the majority of the source
documents on the need to protect the territorial integrity of existing states, and
would frustrate its remedialpurpose." 56
77. Based on the above-rnentioned doctrine, Switzer]and's conclusion is that the people of
Kosovo possess the right to self-determination. Kosovo was in fact a non-self-governing
territory as definedby Crawford.
78. The fact that cJose ties exist between the right of peoples to self-determination and the
fundamental rights of a democratic society sets at the same time the condition that the
demand for self-determination can onlybe consideredif the majority of the populationwithin
the territory concemed declare that they are in favour of self-determination. This condition is
also met.
54 CRA WFORD 2006, p.126.
55
CRAWFORD 2006,p. 127.
56 Reference re Secession of Quebec, para. 124.
2079. The declaration of independence on 17·February 2008 was made by democratically
elected representatives of the people of Kosovo. The elections had taken place on
17November 2007. In bis report dated 3 January 2008 to the Security Council, the Secretary
General commented as follows on the elections in Kosovo: ''The elections took place without
incident following a generally fair and cairn campaign period, and were confirmed by the
Council of Europe to have been in compliance with international and European standa~ds" 57•
At the time of the declaration of independence, the majority also undertook to respect the
fundamental rights of persons belonging to minorities. Kosovo must be a multi-ethnic State
8
that respects the rights that are guaranteed in accordance with international Iaw5 •
80. In these circumstances, the people of Kosovo can exercise the right of peoples to self
determination.
iv) Grave and systematic violations in Kosovo of the rights of persons belonging to
minorities. and of the principles ofhuman rights
81. In 1989, Serbia's parliament revoked the province's autonomy. As a result Kosovo's
parliamentary assemblywas deprived of the right to object to amendments of the Constitution
of the Republic ofSerbia. In 1990, Serbia's parliament then disbanded the functioning of the
Assembly and Executive Council of Kosovo, and the authorities of Serbia assumed the right
to administer the affairs of Kosovo directly and to nullify decisions which Kosovar public
59
authorities had taken • ,,
82. The grave and systematic violations in Kosovo of the rights of persons belonging to
minorities and the principles of human rights are well documented. The General Assembly
first began to look into the situation regarding the rights ofmembers ofminorities and human
right~ in Kosovo in 1992 60• One year later it ascertained a deterioration. In its Resolution
48/153, which was adopted by consensus, it "strongly condemns in particular the measures
and practices of discrimination and the violations of the human rights of the ethnie Albanians
of Kosovo, as well as the Iarge-scale repression committed by the Serbian authorities". In·
particular it urged the FRY:
57
S/2007/768, p~ 3.
58 Cf. Declaration of Independence, paragraph 2: ''We declare Kosovo to be a democratic, secular and
multietbnic republic, guided by the principles of non-discrimination andqual protection tmder the law. We
shall protect and promote the rights of all communities in Kosovo and create the conditions necessary for their
effective participation in political and decision-making processes."
59Serbia's action against Kosovo violated the constitution ofYugoslavia dating from 1974, which recognised
Kosovo asan autonomous province within Yugoslavia, with a status equivalent to that of the six republics, with
its own parliament, its own constitution, its own judiciary and its own joint representation in all bodies of the
Federation, including the presidencyItshould be noted here that the violationthe 1974 constitution occurred
at the beginning of the development thatwas to result in the break-up of YugoslaviaCf. Joseph MARK.o, The
constitutional development of Kosovo/a 1913-1995, in J.Marko (ed.): Kosovo/a. An Analysis of the Kosovo/a
Conjlictfrom the Perspective of Political Science, Comparative and International Public Law (Berlin 2000),
pp. 261-279.
60
AJRES/47/147, 26 April 1993 (adopted on 18December 1992).
21 "a) To take all necessary measures to bring to an immediate end the human
rights violations inflicted on the ethnie Albanians in Kosovo, including in
particular, discriminatory measures and practices, arbitrary detention and the
use of torture and other cruel, inhuman or degrading treatment and the
occurrence of summaryexecutions;
b) To revoke all discriminatory Iegislation, in particular which bas entered into
force since 1989;
c) To re-establish the democratic institutions of Kosovo, inèluding the
Parliament and thejudiciary;
d) To resume dialoguewith the ethnie Albanians in Kosovo ... ,,6 1•
83. Towards the end of 1994, the General Assembly noted a further deterioration in the
situation conceming the respect for minority rights and bu.man rights: discriminatory
expulsion ofa largeproportion of ethnie Albanian officiais,harassment of Albanian-Ianguage
information organs, discrimination against Albanian students and teachers, closure of
schools, universities and cultural institutions. The Resolution condemned the large-scale
repression by the police and armed forces of the FRY and Serbia against the defenceless
ethnie Albanians population, and qualified their actions as "ethnie cleansing". The GeneraI
Assembly again demanded the restoration of "genuine democratic institutions in Kosovo,
including the parliament and the judiciary" as we11as respect for the ''wiIIof the inhabitants
2
as the best means ofpreventing an escalation of the conflictthere',6 •
84. The resolutions concerningKosovo that were adopted by the General Assembly each year
until December 1999 indicate a constant deterioration on the ground 63• The situation
regarding human rights and the rights of members of minorities was visibly deteriorating in
Kosovo, where part of the population was becoming increasingly radica] 64, and where
migration was steadily gaining momentum - a situation which threatened to lead to an
outbreak of a major crisis with very severe consequences for the civilian population. In the
preamble to its Iast resolution (54/183) dated 17 December 1999, the General Assembly
recalled the ''years ofrepression, intolerance and violence in Kosovo, the challenge to build a
65
multi-ethnic society on the basis of substantial autonomy" •
85. The International CriminalTribunal for former Yugos]avia(ICTY) also closely examined
the situation at that time in Kosovo. Former members of the Kosovo Liberation Army and
high-level officials of former Yugoslavia and Serbia had to answer for their actions before
the ICTY. Regardless of the criminal responsibility of the accused officiais, the conclusions
drawn by the Tribunal show that there was an extensive campaign of violence irlKosovo. In
the case of Milutinovié et al,the Court concluded that an armed conflict took place in Kosovo
61
A/RES/48/153, 7 Februâry 1994(adopted on 20 December 1993), para. 19.
62A/RES/49/204, 13 March 1995(adopted on 23 December 1994).
63
Cf. NRES/50/190, 6 March 1996 (adopted on 22 December 1995);NRES/51/111, 5 March 1997 (adopted
on 12 December 1996); NRES/52/139, 3 March 1998 (adopted on 12 December 1997); A/RES/53/164, 25
February 1999 (adopted on 9 December 1998); A/RES/54/183, 29 February 2000 (adopted on 17 December
1999).
64
65 Cf. NRES/53/164, 25 February 1999(adopted on 9 December 1998),para. 9.
A/RES/54/183, 29 February 2000 (adopted on 17 December 1999),para. 3 ofthe Preamble.
22 66
from the middle of 1998 until the middle of 1999 • The ICTY also concluded that, during
this period, the armed forces and the police placed under the control of the authorities of the
FRY and Serbia conducted a widespread campaign of violence against the Albanian civilian
population of Kosovo, and deliberately drove Kosovo Albanians out of their homes 67•
Furthermore, the ICTY came to the conclusion that, in the course ofthis campaign, numerous
murders, acts of sexual violence and other crimes were committed by the armed and police
68
forces • The Court found that some of these actions constituted persecution against the
Albanian civilian population of Kosovo on the basis oftheir ethnie origin 69•
86. Even after the Milosevié era had corne to an end, in 2000, Serbia's policies towards
Kosovo continued to include aspects of discrimination against the Albanian majority in
Kosovo. The Serbian Constitution of 2006, which defines Kosovo as forming an integral part
of Serbia, was implemented in Kosovo without consideration of the Albanian majority
population, who were not invited to participate in the preparation of the new draft
constitution, and whose votes did not count in the referendum on its adoption 70• Estimations
suggest that the constitution could not have been adopted by the electorate of Serbia if
Kosovo Albanians had had a chance to vote against it or if their votes had been accounted for
71
as a boycott • The procedure adopted for this referendum thus appears to clearly contradict
the views repeatedly expressed by Serb officiais, claiming that Kosovo formed an integral
part of Serbia. The procedure could also be perceived as being part of an obstructionist policy
put in place by Serbia in order to impede the political process initiated in Security Council
Resolution 1244 with a view to finding a definitive solution to the question of Kosovo's
status. Moreover, it may also be perceived as an indication that Serbia was not willing to
include the entire population in the territory into the existing syst~m of democratic
representation without resorting to discrimination based on ethnie origin or other criteria.
v) Declaration of independence on 17 Febmary 2008: last resort for Kosovo to exercise
its right of self-determination (u/tima ratio)
87. What was particularly notable about the efforts by Kosovo to gain independence is
undeniably the fact that the process to determine Kosovo's future status was supported by the
international community. This leads back to the Security Council Resolution 1244 (cf.
paragraphs 31 ft). Over the years, the implementation of this Resolution brought about the
66
ICTY, IT-05-87, ProsecutorvsMilanMilutinoviéetal, ruling dated 26 February 2009, Vol. ('para. 841.
67ICTY, IT-05-87, ProsecutorvsMilanMilutinovié et alruling dated 26 February 2009, Vol. II, paras. 1156 to
1178. See also findings of the court of first instance, which established that the actions carried out by the armed
forces under the control of the authorities of the Republic ofYugoslavia and Serbia constituted crimes against
hmnanity and, in certain casewar crimes:ibid."Legal findings", paras. 1179to 1262.
68Ibid.cf. especially Vol. Il, paras. 238, 382, 432-433, 549, 679, 1189, 1192, 1194.
69
ICTY, IT-05-87, Prosecutorvs MilanMilutinoviéet al, ruling dated 26 February 2009, Vol. II, paras. 1193,
1198, 1209, 1211, 1213,1218, 1223, 1224, 1237, 1249.
70
See International Crisis Group,Serbia's New Constitution,Democracygoing baclcward, Policy Briefing
No. 44, 8 November 2006.
71 Wolfgang BENEDEK, Implicationsof the lndependence of Kosovofor InternationalLaw, in: I. Buffard/J.
Crawford/A. Pellet/S. Wittich (eds.InternationalLaw betweenUniversalismandFragmentation, Festschrift in
Honour of Gerhard Hafuer (2008). p. 13.
23view that the political process originally conceived to be open would inevitably Iead to
Kosovo's independence. After almost eight years of administration by the UN,.on26 March
2007 72 the Secretary-General recommended Kosovo's status should be independence,
supervised by the international community. His recommendation was based on the report of
his Special Envoy, Mr. Martti Ahtisaari, conceming the future statusof Kosovo.
i
88. In his report, the Special Envoy explained why Kosovo could not be reintegrat1d into
Serbia. His conclusion that the reintegration of Kosovo into Serbia was not a viable option
was based inter alia on the foUowingconsiderations:
''For the past eight years, Kosovo and Serbia have been governed in complete
separation. The establishment of the United Nations Mission in Kosovo
(UNMIK.) pursuant to resolution 1244 (1999), and its assumption of a11
legislative, executive and judicial authority throughout Kosovo, has created a
situation in which Serbia has not exercised any goveming authority over
Kosovo. This is a reality one cannot deny; it is irreversible. A retum of Serbian
rule over Kosovo would not be acceptable to the overwhelming majority of the
people of Kosovo." 73
89. Having noted that maintaining international administration threatens to compromise
economic and social development, the report cornesto the conclusionthat "[i]ndependence is
74
the only option for a politically stable and economically viable Kosovo" • The proposed
international supervision would guarantee that the democratic process would be pursued in
Kosovo, and that in particular the rights of members of minorities would be protected In
order to promote the economic reconstruction of Kosovo and its capacity for social
reconciliation, international supervision would have to concentrate on consolidating the rule
of law, decentralisation, community rights and the protection of the Serbian Orthodox
Church.
90. In addition, the Special Envoy noted in his report that Kosovo's independence against the
will of Serbia was an unusual means of settling a conflict, and that it had to be viewed in the
context of Resolution 1244 as well as the tumultuous dissolution of the Socialist Federal
Republic of Yugoslavia:
"Kosovo is a unique case that demands a unique solution. It does not create a
precedent for other unresolved conflicts. In unanimously adopting resolution
1244 (1999), the Security Council responded to Milosevic's actions in Kosovo
by denying Serbia arole in its govemance, placing Kosovo under temporary
United Nations administration and envisaging a political process designed to
determine Kosovo' s future. The combination of these factors makes Kosovo' s
circumstances extraordinary ... Concluding this last episode in the dissolution of
the former Yugoslavia will allow the region to begin a new cha,Psteirn its history
5
- one that is based upon peace, stability and prosperity for all."
72
S/2007/l 68.
73S/2007/ l68, para. 7.
74
-S/2007/168, para. 10.
75S/2007/168, paras. 15-16.
24 '.
7
91. The mission established by the Security Council in April 2007 6,carried out, as previous
missions, under the auspices of the USA, Russia and the EuropeanUnion, failed to yield new
77
resu.1ts •
92. One of the main reasons behind thérecommendation of the Secretary-General wâs that
any other solution would have ignored the will of the majority of the population of Kosovo.
From 1994 onwards, the General Assembly had appealed to Belgrade to respect the will of
the inhabitants of Kosovo, since Serbia had unconstitutionally suppressed the autonomous
78
status of Kosovo and had initiated a policy of ethnie cleansing in this province • This
demand was included inthe text of the 1999Rambouillet Accords.
93. Resolution 1244established an international administrationwhich was required to govem
Kosovo defacto as a State independent from Serbia. Ali possible amicable solutions were
explored with Serbia within the framework of an intense political process initiated by
Resolution 1244, but unfortunately no agreement could be reached. On this particularly I1
important point - i.e. negotiation for a politica] solution - UNMIK was unable to implement
Resolution 1244 as planned, since the authorities in Belgrade and the Serb community in
Kosovo demonstrated a great deal of opposition 79•Thereferendum on the constitution held in
2006 made it clear that the authorities in Belgrade did not have any intention of allowing the
whole population of Kosovo to participate in the political decision-makingprocess in Serbia.
94. Given the Charter and the right of peoples to self-determination,placing Kosovo back
,,
under the sovereignty ofSerbia against the will of the populationof the province would have
constituted a most dreadfu.lstep by the international community. From the beginning of the
negotiations carried out within the framework of Resolution 1244, the contact group had
underscored the necessity to respect the will of the people of Kosovo when settling the
80
question of its status •Accordi~g to the Special Envoy to the Secretary-General, the only
solution was independence under the supervision of the international community, which at
the same time also had to guarantee respect for the rights of members of minorities in
Kosovo. The Secretary-Generalalso asked the membersof the Serb community in Kosovo to
81
"reverse their fundamental position of non-cooperation" and fulfil their role as citizens in
the political lifeof Kosovo.
95. The declaration of independence was adopted on 17February 2008, once it had become
clear that the process that had been pursued since 10 June 1999, i.e. for almost a decade,
could not corneto a consensualsolution. The declaration reiterated Kosovo's commitment to
76S/2007/256, 4 May 2007.
77S/2007/723, 10December 2007.
78
A/49/204, 23 December 1994.
79This was in contravention of the conditions of UN General Assembly Resolution 54/183 dated 17 December
1999, whicb underscores that the authorities of the Federal Republic of Yugoslavia are obliged to respect the
provisions of Security Council Resolution 1244 (1999), as well as the general principles for a political
settlement of the crisisKosovo, whicb were adopted on 6 May 1999.
80Declaration bythe contact group on the future of Kosovo, London, January 2006, para 7.
81
S/2007/168, para. 12.
25act in accordance with the principles of international law and in compliance with the
resolutions of the UN Security Council. It underscored Kosovo's intention to respect ail
obligations that formed an integral part of the Ahtisaari Plan, including those relating to the
protection of minorities and supervision of its independence in the form of an international
civilian and militarypresence.
96. In light of the above, the declaration ofindependence by Kosovo was indeed an act ofJast
resort (ultima ratio). Thereby, the last criterion for Kosovo to exercisethe right ofpeoples to
self-determination is also met. Therefore, Switzerland is of the view that there is no element,
even under general international law, that could give rise to the interpretation that Kosovo's
declaration ofindependence was not in accordancewith international law.
97. For Switzerland,Kosovo became an independent State on 17 February 2008. Switzerland
is of the view that it would no longer be possible for Kosovo to be returned to its former
status. Moreover, any attempt to restore the statu quo ante would be regrettable and even
82
appalling ftom the perspective of the principles of the Charter : in a region that bas already
been severely tested, it would show flagrant disregard for the wi11clearly expressed by a
large majority ofthe population of Kosovo.
***
''
V. CONCLUSIONS
98. In Switzerland's view, the following factors are decisive in responding to the question
submitted by the General Assemblyto the Court.
a) The declaration ofindependence by Kosovo on 17February2008 does not contravene
peremptory norms of international law or any other importantprovisions of international law
with erga omnes character. On the contrary, it reflectsthe firmwill of Kosovo to fully respect
international law, in particular the prohibition of the use of force, and to respect human
rights, including the rights of members of minorities.
b) Kosovo's declaration of independence does not contradictResolution 1244 of the UN
Security Council. In Switzerland's opinion, this Resolution initiated a process without
prejudging either its outcome in general or the definitive status of Kosovo in particular. The
subsequent independence of Kosovo was one of several options. While not opting for it,
Resolution 1244 deliberately included independence as a possible solution. EquaUy,
82 Simon Chesterman recalls, for example, that:
"[l]n those rare situations, in which the United Nations and other international actors are
called upon to exercise state likefunctions, they must not /ose sight of their limited mandate to
hold that sovereigt1typower in trustfor the population that will(v claim it."
Simon CHESTERMAN, You, ThePeople - The United Nations, TransitionalAdministration, and State-Bui/ding,
(Oxford and·New York 2004), p. 257.
26 1\ ~
.,,!
Resolution 1244 does not contain any provision that makes the solution of the questioq. of
Kosovo's status dependent on the consent of the Federal Republic ofYugoslavia
c) The dec1aration of independence on 17 February 2008 is not in conflict with the
principle of territorial integrity. This principle as defined in the Charter of the United Nations
only applies to international relations, and thus does not apply within a State. In view ofthis,
the principle of territorial integrity could be regarded as irrelevant in the examination of
declarations of independence by secessionist entities.
d) Alternatively, should the principle of territorial integrity be understood as a legal
principle of a genera1nature extending beyond the scope of Article 2, paragraph 4, of the UN
Charter, Switzerland considers that it has not been violated, given the particular situation of
Kosovo. Indeed the situation of Kosovo fulfiJied all the conditions - however stringent -
under which a people may exceptionally claim independence by exetcising the right to self
determination: existence of a people holding the right to self-determination and territorial
unity, established democratic will on the part of a large rnajority of the population within the )
State's territorial limits, grave and systematic violations of the rights of members of
minorities and human rights, and secession as a measure oflast resort (ultima ratio).
e) The situation in Kosovo was characterised by the fact that intense international efforts
were made from 1999 onwards under the auspices of the UN Security Council to find a
political solution to the status of Kosovo. For many years, all actors, and in particular
Kosovo, sought a solution as consensual as possible. Kosovo's declaration of indep,,dence
was only made after it becarne clear that it would not be possible to find a consensual
solution within a reasonable period of time. The implementation ofResolution 1244 by the
international community thus gave rise to a situation which, since all international efforts to
find a consensual solution had ended in failure, left Kosovo with no other option than to
declare its independence.
*****
27
Written Statement of Switzerland (translation provided by that State)