Written Statement of Ireland

AMBASÂID NA hÉIREANN

AMBASSADE D'IRLANDE EMBASSY OF IRELAND

Dr Kuyperstraat 9
2514 BA THE HAGUE

Tel: 070-3630993
Fax: 070-3617604

www.irishembassy.nl
Email: [email protected]

H.E. Philippe Couvreur

Registrar
International Court of Justice
Carnegieplein 2

2517 KJ The Hague
The Netherlands

17 April 2009

Excellency,

I have the honour to transmit to the International Court of Justice the written

statement of Ireland on the question of the Accordance with International Law of the
Unilateral Declaration of Independence by the Provisional Institutions of Self­
Government of Kosovo. Enclosed please find 30 copies ofthis statement, an

electronic copy of the statement on CD-ROM and an accompanying letter from the
Mr. James Kingston.

Original copies of the statement will be transmitted to the Court by the Embassy upon
receipt from the relevant authorities in Dublin.

Yours sincerely,

Frank Power
Chargé d'Affaires a.i.Telet6n
Telephone } (01) 476 0822 AN ROINNGNÔTHAIEACHTRACHA
Departmentof ForeignAffairs

Tagairt BAILE ÂTHA CUATH 2
Aeference } Dublin 2

17April2009

Mr Philippe Couvreur

Registrar
InternationalCourt of Justice
PeacePalace
Camegieplein 2

2517KJ TheHague
The Netherlands

Re: Accordance wlth International Law of the Un.ilateralDeclaration of

Independ.ence bythe Provisional Institutions ofSelf-Governmentof Kosovo
{Requestfor AdvisoryOpinion)

Dear Mr Couvreur

Irefer to your circular letter of 10 October 2008 infonning that the Secretary General.
of the United Nations had notified the International Court of Justice of the adoption
by the UN General Assembly, on 8 October 2008, of resolution 63/3 whereby the

General Assembly decided to request the Court to give an advisory opinion on the
question ofthe Accordancc with International Law of the UnHateral Declaration of
Independence by the ProvisionalInstitutions of Selfa(fovemmentof Kosovo; and to
your circular letter of 20 October 2008 on the filing of written statements in the above
proceedings.

Enclosed please find 30 copies of lreland's written statement and an eiectronk copy
ofthestatementonCDROM. INTERNATIONAL COURT OF JUSTICE

REQUEST FOR ADVISORY OPINION

ACCORDANCE WITH INTERNATIONAL LAW OF THE
UNILATERAL DECLARATION OF INDEPENDENCE BY THE

PROVISIONAL INSTITUTIONS OF SELF-GOVERNMENT OF
Kosovo

STATEMENT OF THE GOVERNMENT OF IRELAND

17APRIL 2009I. Introduction

1. On 8 October 2008, by resolution 63/3 (A/63/L.2), the General Assembly of the

United Nations requested the International Court of Justice to render an advisory
opinion, pursuant to article 65 of the Statute of the Court, on the following question:

"Is the unilateral declaration of independence by the Provisional Institutions
of Self-Govemment of Kosovo in accordance with international law?"

2. lJNGJ\ Resolution 63/3 was adopted by 77 votes to 6, with 74 abstentions (induding
Ireland).

3. Ireland presents the following written statement in accordance with article 66(2) of

the Statute and the Ortler of the Court dated 17 October 2008, deciding that the United
Nations and its Member States are considered likely to be able to fürnish infonnation on

the question.

II. Factual background and position of Ireland

4. On 17 February 2008, the Kosovo Assembly adopted a rcsolution which declared

Kosovo to be "a democratic, secular and multi-ethnic republic, guidcd by the principles
of non-discrimination and equal protection under the law". It undertook to implement
the obligations set out in the Comprehensive Proposai for the Kosovo Status Settlcment

(hereinafter referred to as the "Ahtisaari Proposai''\ emphasising "those that protect
and promotc the rights of communitics and their membcrs'".

5. On 28 February 2008, Ireland recognised the independence of the Republic of
Kosovo. Ireland did so after long and carefül considcration of the complex political and
legal factors pertaining to this matter.

6. In announcing lreland' s recognition of Kosovo, the Ministcr for Foreign Affairs
refcrred to some of the factors which in his view made Kosovo a unique case. He said:

"We regret that years of talks failcd to producc an agreement between Belgrade

and Pristina. The reality is that the legacy of the coni1ict of the late 1990s made
the return of Serb dominion in Kosovo unthinkable, and also undermined the
prospects for a long-sought compromise. After almost nine years under UN-led

interim administration, more than 90% of Kosovo's population wants
indepcndence, and this is supportcd by most of our partners in the EU, many of
whom have already recognised Kosovo.

lreland strongly supported last year's proposai by the lJN Secretary General's
Special Envoy on Kosovo, former Finnish President Martti Ahtisaari, \Nhich

1KosovoDeclarationof lndependence, 17February2008: http://www.assemblv:
koso,'..rg/common/docsidcclarationîndependencc.pdf.
2
Reportof the UN Special Envoyof the Sccretary-Gcneralon Kosovo's füture status,UN Doc
S/2007/168dated26 March2007, includinga ComprehcnsiveProposai for the Kosovo Status
Settlement:http://v./ww·.unosek.org/docref/report-english.pdf.

1 recommended that Kosovo' s status should be independence, supervised by the

international community. This proposai included detailed provisions concerning
the promotion and protection of the rights of communities and their mcmbers. I

am plcased to note th3 commitment by Kosovo to implcment fully the Ahtisaari
recommendations. "

III. Outline of submissions

7. Ircland respcctfully submits that the Court should have regard to the following in its
consideration of the request of the UN General Asscmbly for an advisory opinion in this

matter:

a. the Court should exerc1se its discretion to decline to provide the requested
advisory opinion;

b. further or alternatively, if the Court does not declinc jurisdiction, it should
confine its opinion only to the lawfulness of the unilateral declaration of
independence;

c. the unilateral declaration of independcnce of Kosovo was not unlaw-fuL as
international law does not prohibit unilateral declarations of indcpendence;

d. further or altcrnatively: that the unilateral declaration of independencc of

Kosovo ,.vasnot unla,vful, as it representcd an exercise of self-detcrmination in
the context of gross or fondamental human rights abuses.

A. The Court should exercise its discretion to declinc to providc the requested
advisory opinion

8. Ireland accepts that the question bcfore the Court is a "legal question" within the
meaning of article 96 of the Charter and article 65 of the Statutc, in the scnse that it is
4
"framed in terms of law and raise[s] problems of international law". 5urther, Ircland
does not request the Court to considcr whether article 10 of the Charter confers on the
General Assembly competence in this matter.

9. While not disputing the Court's competencc and jurisdiction in this matter, Ireland

respectfully submits that the Court should excrcise its discretion to decline to providc
the requested opinion.

3
Statcment of the Minister for Foreign Affairs Dermot Ahern TD, announcing Ireland's recognition of
the Republic of Kosovo, 29 February 2008.

4 Western Sahara, Advisory Opinion of 16 October 1975, l.C.J. Reports 1975, 12, at paragraph 15, citcd
inLegality of the Use by a State of,Vuclear IYeapons in Armed Conjlicts, Advisory Opinion of 8 July
1996, I.C.J. Reports 1996, 66, at paragraph 15.; and L4gathe Threat or Use of Nuclear Weapons,
Advisory Opinion of 8 July 1996, l.C.J. Reports l996, 226, at paragraph 13.
5Confcrring on the General Assembly a competencc relating to any questions or mattcrs within the scope

of the Charter.

2 1O. Although the Court has to date not refused to givc an advisory opinion, it has

consistently confirmed that its Statute leaves the Court discretion whether to give an
advisory opinion rcquested of it, once it has established its compctence to do so. lt has 6

a "discretionary power to decline to give an advisory opinion even if the conditions of
7
jurisdiction are met.'' Although an opinion should not gencrally or in principle be
refused, "cornpelling reasons" rnay lead the Court to decline to give the opinion
8
requestcd. Ireland submits that there are compclling reasons for declining to provide
an opinion in the present case.

11. The Court has found that its advisory fonction is to give an opinion based on law
"once it has corne to the conclusion that the questions put to it are relevant and have a

practical and contemporary effect and, consequcntly, are not devoid of object or
purpose". 9 Although the Court will not "substitute its assessmcnt of the usefulness of
10
the opinion requcsted for that of the organ that secks such opinion", the purpose of an

advisory opinion is to furnish the requcsting organ with a statement of the lav.rnecessary
for it in its action or the proper exercisc of its fonctions. 11

12. lreland is of the view that the Court should provide advice only if it is necessary for

the requesting organ to proceed with its work in the knowlcdge that it is acting in
12
accordance with international law. In Ircland's vicw, this consideration should
influence the Court's assessment of when it should exercise its discrction to refuse an

advisory opinion. The status of Kosovo is not an issue befôre the United Nations
General Assembly at this tirne, such as to require lcgal guidance for action by that

organ. The UN Sccurity Council is ·'actively seized" of the rnatter; and under UN
Security Council Resolution 1244 (1999), it is to the Sccurity Council that the UN

6
E.g. Legali(v of the Threat or Use of Nuclear Weapons, supra, at paragraph 14.
7 Leial Consequences of the Construction by Israel of a Wall in the Occupied Palestinian Territory,

8dvîsory Opinion of9 July 2004, ICJ Reports 2004, 136, at paragraph 44.
E.g. Construction of a Wall, supra, at paragraph 44.
9 Western Sahara, supra, at paragraph 73.
w Construction of a Wall, supra, at paragraph 62; Legality of the Threat or Use ofNudeaWeapons,
supra, at paragraph 15.
11
Construction ofa Wall, supra, at paragraph 50:

"The object of the request before the Courtis to obtain from the Court an opinion which the
General Assembly deems of assistance toit for the proper exereise ofits functions. The opinion

is requestcd on a question which is ofparticularly aeute conccm to the United nations and one
which is locatcd in a much broadcr frame ofeterence than a bilateral dispute. In the
circumstances the Court does not consider that to give an opinion1!d have the effect of
circumventing the principle of consent tojudicial sett!ement, and the Court accordingly cannot,
in the exercisc of its discretion, decline to give an opinion on that ground".

See alsoLegality of the Threat or Use o/Nuclear Weapons, supra, at paragraph 15: ·'thepurpose of the
advisory function is not to settle - at least directly- disputes betweens, but to offor legal advice to
the organs and institutions requesting the opinion''.
12"The Court regards its role as the provision of advice so that the requesting organ may prowith its

work in theknmvledge that it is acting in accordance with international law": Rosalyn Higgins, Problems
andProcess:InternationalLaw and How H'eUse Jt(1994), at198.

3Secretary General reports on implementation of that rcsolution. 13 Although not

disputing the Court' s formal jurisdiction, in light of this - and in the absence of a
Sccurity Council rcquest for an advisory opinion - Ircland submits that the Court may

choose to exercise its discretion not to rcnder the requested opinion and should do so in
this instance.

B. That if the Court does not decline jurisdiction, it should confine its opinion
only to the lawfulness of the unilatcral declaration of independence

13. The question put to the Court by UNGA Resolution 63/3 is: "Is the unilatcral
declaration of independence by the Provisional Institutions of Self-Government of

Kosovo in accordance with international law?" Ireland is of the vicw that, should the

Court decide to render an advisory opinion, it should confine its opinion to that question
alone.

14. In his separate opinion in the Construction c? f Wall case, Judge Owada hcld that

the Court should consider judicial propriety, not alone in relation to the question of
whether it should comply with the request for an advisory opinion, but also in relation
to the question of how it should exercise jurisdiction. 14 ln his view, the:

"critical criterion for judicial propriety in the final analysis should lie in the
Court seeing to it that giving a reply in the form of an advisory opinion on the

subject-matter of the request should not be tantamount to adjudicating on the
very subject-matter of the underlying concrete bilateral dispute that currently
15
undoubtedly exists" .

Thus, although the fact that a case contains "an aspect of addressing a bilateral dispute"

should not in itself prevcnt a Court from excrcising its competencc, this fact has an:

"important bearing on the whole proceedings that the Court is to conduct in the
prcsent case, in the sensc that the Court in the present advisory proceedings

should focus its task on offering its objective findings of law to the cxtent
necessary and useful to the requesting organ, the General Assembly, in carrying

13UN Security Council Resolution 1244(1999) of 10 June 1999, UN Doc S/RES/1244 (1999), paragraph
20and21.
14Separate opinion of Judge Owada, Construction of a Wall, supra, at paragraph 10:

·'Whitethe existence of a bilateral dispute thus should not exclude the Court from exercising
jurisdîctîon in advisory proceedings as a matter ofjudicial propriety, howcver, it is my view that
the existence of a bilateral disputefd be a.factotobe taken into account hy the Court in
determining the extent to v.·hich.and the manner in which, the Court should exercisejurisdiction

in such advisory proceedings." (emphasis added)

and id. at paragraph 2:
''in order to ensure that it is not only right as a matter of law but also proper as a matter of
judicial policy for the Court as a judicial body to exercise jurisdiction in theontcxt of

the case. This means, at least to my mind, that the Court would be required to engage in an
depth scrutiny of all aspects of the particular circumstances of the present case relevant to the
consideration of the case, ifnecessary going beyond what hasn argucd by the participants."
15Id., at paragraph 13.

4 out its functions relating to this question, rather than adjudicating on the subject­
16
mattcr of the dispute between the parties conccmcd".

15.This approach is consistent with the very object of advisory opinions, namely that:

"The object of the General Assembly has not been to bring before the Court, by
way of a request for advisory opinion, a dispute or legal controversy, in order

that it may later, on the basis of the Court's opinion, exercise its powers and
functions for the peaceful settlement of that dispute or controversy. The object
of the requcst is an entircly different one: to obtain from the Court an opinion

·whichthe General Assembly deems of assistance to ifor the proper exercise of
1/siunctwns ... ."17

16.Judge Owada further, while stressing the cardinal importance of keeping ''inbalance
the overall picture which has formed the entire background of the construction of the
wall\ also noted as a general or starting position that "the request for an advisory

opinion is focussed on a spec18ic question and that the Court should treat this question,
and this question only.... "

17. Ireland îs of the view that - consistent with the purpose of advisory opinions as set
out above - if rendering an advisory opinion in the present case, the Court should - in
the terms of the Western Sahara decision - limit itself to an:

"objective [finding_lof law to the extent necessary and useful to the requesting
organ, the General Assembly, in carrying out its fonctions rclating to this

question, rather than adjudicating on the subject-matter of the dispute bctwecn
the parties concerne , .'19

C. That the UDI of Kosovo was not unlawful, as international law does not

prohibit uniJateral declarations of indcpcndcnce

18. Ireland is of the view that international law contains neither a general right to nor a
general prohibition on unilateral declarations of independence (secession). In the

absence of such a prohibition - and in the absence of illegality in the circumstances of a
partîcular case by virtue of breach of peremptory norms or breach of the prohibition on

intervention - unilateral declarations of independence are not contrary to international
law. Accordingly and from the perspective of international law, the unilateral
declaration of independence of Kosovo should in al! the circumstances be considered an

act not prohibited by international law.

19. Ireland is of the view that international law is generally silent or neutral on the
legality of secession. In support of this view, Lauterpacht argues that:

16Id., at paragraph 14.
17
18fVesternSahara, supra, at paragraph 39 (emphasis added).
19Separate opinion of Judge Owada, Construction of a Wall, supra, at paragraph 27.
1-Vesternahara, supra, at paragraph 39.

5 "International law acknowledgcs as a source of rights and obligations such facts

and situations as are not the result of acts which it prohibits and stigmatizes as
unlawful. Thus, for instance, secession from an existing state, although

constituting a breach of the law of the State concemed, is not contrary to
international lav-.r"

and further that "successful secession from the parent State 1s a fact which 1s not
21
contrary to international law".

20. Judge Rosalyn Higgins, fonner President of the Court, similarly is of the vie\v that:

"it is not the case that this view of self-determination 22means that new frontiers

can never be recognized. Even if, contrary to contemporary political
assumptions, self-determination is not an authorization of secession by

minorities, there is nothing in international law that prohibits secession or the
formation of new states. The principlc of uti possidetis provides that siates

accept their inherited colonial boundaries. It places no obligation upon minority
groups to stay a part of a unit that maltreats them or in which thcy feel

unrepresented. If they do in fact establish an independent state, or join with an

existing statc, then that new rcality is one \vhich, ,vhen its permanence can be
shown, ,vill in due course be rccognized by the international community". 23

This v1ew of international lmv as silent on secession is sharcd by numerous othcr
· · 24
Junsts.

20Hcrsch Lauterpacht, Recognition in International Law (1948), at 409.
21
22Id., at 6.
Responding to a question ofwhether self-determînation is ''tobe understood as being lîmited to an
exercise of rights within the inherited frontier".
23Higgins, supra, at 125(emphasis in original).
24E.g. Oppenheim too makcs a distinction bctween legality under domestic and international law, stating:

"although a rebellion will involve a breach of the law of the state concemed, no breach of

international law occurs through the mere fact of a rebel regime attempting to ovcrthrow
government of the state or to secede from the state".

L.F.L. Oppenheim, International Law, 9 Ed. (I 992), Volume l: Peace, at 16l-162.

Hannum has similarly consistently argued that international law is silent on seccssion: see e.g. 'The right
of self-determination in the twenty-first century", (l998) 55 Washington and Lee Law Review 773:

"There simply is no right ofsecession under international law... Of course, there is no
prohibition in international law against secession, either".

See also e.g. Outcome and Rapporteur's Summary of the Amsterdam International Law Conference on
Pcoples and Minoritics in Jnternational Law, 18-20 June 1992, Refugee Studies Centre RSC/A-2 l. l HAN
at 4:

"The present state of international law is neutral, i.e. it neither supports nor prohibits secessîon,

although an increasing number ofscholars may be found who maintain that such a right is or
ought to exist''.

621. This view is also supported by the Supreme Court of Canada which, in its decision

in Rejèrence re Secession of Quebec, indicated that "international law contains neither a
right of unilateral secession nor the cxplicit denial of such a right" . 25

22. Ireland acknowledges that it is \Vell-established that illegality may anse wherc
26
secession is attempted in violation of pcrcmptory norms of international law.
Similarly, and in accordancc with the jus cogens status of the illegality of resort to the

threat or use of force against the territorial intcgrity or political independence of any
statc, the Declaration on Friendly Relations confirms that no territorial acquisition
rcsulting from the threat or use of force by one state against another shall be recogniscd
27
as legal. The unilateral declaration of independcnce of Kosovo was not brought about
in violation of peremptory norms of international law such as to fall within thcsc

exceptions.

23. It is also the case that the UN Security Council may declare a spccific attempted

secession illcgal in the circumstances of the individual case, such as where the
attempted secession is in itself in violation of self-dcterrnination, as occurred in relation
28
to Southern Rhodesia, Transkei and other similar cases. In the case of Southern
Rhodesia, the Security Council explicitly recorded the 1965 declaration of

indepcndence as having no legal validity, referred to the minority goverm11ent as an
"illegal authority'' and "called on all states not to recognize this illcgal racist minority

regime". 29

For fürther authorities see e.g. Christopher Borgen, "Introductory Note to Kosovo's Declaration of
lndcpendence'', (2008) 47 lLM 461:

"since the birth of the United Nations, diplomats and jurists have emphasized that a right to self­
determination was not a general right of secession. Allowing secession as a remedy ,.vould have
clashed with a comcrstone of the UN which is to protect the territorial integrity of states.
However one cannot say that international law makes secession illegal. If anything, international
law is largely silent regarding secession".

25 In the matter o_f'Section 53 of the Supreme Court Act, R.S.C.. 1985, c. S-26; and in the matter r!['a
Ref'erence by the Governor in Council concerning certain questions relating tothe secession of'Quebec
fiwn Canada. as set out in Order in Council P.C. 1996-1497, dated the 30th day of September, 1996

26Reference re Secessiun uf Quehec") [1998] 2 S.C.R. 217, at paragraph 112.
Ti-Chiang Chen, The International Law of Recognition (195l) at 429.
27 1'vfilitaryand Paramilitary Activities in and againsl Nïcaragua (,Nicaragua v. United States of America),
(lvferits)inion 27 June 1986, ICJ Reports 1986, 392, at paragraph 190, confirming the international
prohibition on use of force toe a "conspicuous example of a rule of international law having the

character ofjus cogens".
Declaration ofprinciples of international law conceming Friendly Relations and Cooperation among
States, adopted by the General Assembly in 1970, UNGA Res 2625 (XXV). James Crawford, The
Creation o_f'Statesin International Law, 2Ed., (2006), at 148, finds that, accordingly, "an entity created
in violation of the rules relating to the use of force in such circumstances will not be regarded as astate''.
28
29 See e.g. Oppenheim, supra, al 162, note 1.
UN Security Council Resolutions 215 (12 November 1956) and 2l7 (22 Novcmber 1965). Note that the
obstacle to establishment of Rhodesia as an independent state was that:

''theminority govemment' s declaration of independence was and remained internationally a nullity, as a

violation of the principle of self-determination"

Crawford, supra, at 130.

724. The situation in Kosovo is not unlawful. Security Council Resolution 1244 (1999)
cannot be seen as dctermining independencc for Kosovo as unlawfuL Ireland is of the
view that the rcsolution docs not define the outcomc of final status talks, but rather that

its annexes confirm only that, pending a final settlement, an "interim political
framework" shall afford substantial sclf-governance for Kosovo and take into account
the territorial intcgrity of the Fcderal Republic of Yugoslavia. 30

25. In Ireland's view, the structure of these ammgements suggest that it is the

establishment of interim self-governing institutions that must take account of the
principles of sovereignty and territorial integrity of the FRY (as occurred) and not the

"final settlcment" (v,foch is not exprcssly subject to the same condition). To do
otherwise would have been to pre-empt that settlemcnt, to be determincd by a political

process "designed to dctermine Kosovo's future status, taking into account the
Rambouillet accords" 3, vvhich reference by implication acknowlcdgcd the possible

outcome of independence.

26. Ireland submits that, in accordance with the above, the unilateral dcclaration of
independence of Kosovo was not contrary to international law, as international law

gencrally contains no prohibition of such declarations; and the exceptions to this rule -
relating to breach of peremptory norms and/or determination of illegality by the

Security Council on the basis of such a breach - do not apply.

D. Further or alternatively: that the unilateral declaration of indcpendcnce of

Kosovo was not unlawful, as it represents an cxercise of sclf-determination in the
contcxt of gross or fundamental human rights abuses

27. The Court has previously held "that the right of peoples to sclf-determination, as it
evolved form the Charter and from United Nations practice, has an erga omnes

character, is irreproachable .... itis one of the essential principles of contemporary
international law". 32 Itis accordingly only the scope of self.-dctcrmination which is at

issue in this instance.

28. Ireland is of the view that, outside the colonial context, the right to sclf­
determination does not give rise to a unilateral right of secession by constituent parts of

existing states: "International law expects that the right to self-dctermination will be

See also further c.g. the characterisation by the Sccurity Council of the proclamation of independence of
the Turkish Republic of Northem Cyprus as"invalid": Security Council Resolution 541 (1983):
http://daccessdds.un.org/doc/RESO LUTION/GEN/NR0/453/99/IM G/NR04 5399.pdf?Openëlement. See
further the dcclaration asvalid" of the independencc of Transkei: Gcneral Assembly Resolution 3l/6A

(1976), endorsed in Security Council Resolution 402(1976):
http:/idaccessdds. un.org/doc/RESO LUTION/GEN/NR0/2 94/90/ rMGINR029490.pdf?Open Element
:wAnnexes I and 2 including the principle of"a politîcal proccss towards the establishment of an intcrim
political framework agreement providing for a substantial self-government for Kosovo, taking full
account of. .. the principles ofsovereignty and territorial integrity of the Federal Republic of
Yugoslavia ....
31UN Security Council Resolution 1244 (1999), supra, at paragraph l l(e).
32East Timor (Portugal v. Australia) Opinion 30 June 1995, lCJ Reports 1995. 90, at paragraph 28.

8exercised by peoples within the framework of existing sovereign states and consistently
33
with the maintenance of the territorial integrity of those states". Accordingly, "there is
34
no lcgal right of secession where there is representative govemment" and a State
whose government represents the whole of the people within its territory on an equal

basis complies with the principle of sclf-detennination and is cntitlcd to the protection
of its territorial integrity under international law. 35

29. Howevcr, an cxceptional right of secession has been referred to in decisions on self­

determination since the earliest days of its application, for example, the Aland Islands
arbitration in 1920-1921 resulted in a finding by the International Committcc of Jurists

that "there was no right to secede absent 'a manifest and continued abuse of sovereign
pmver to the detriment of a section of population' _"36 This decision "lcnds support to

the principle in international lavv· of carence de souveraineté, that is, whcrc a tcrritory is
so misgoverned by the state that secession is permitted". 37

30. Ireland agrees with the view cxpresscd by the Canadian Suprcme Court that
although "international law expects that the right to self-determination \Vill be exercised

by peoples within the framcwork of existing sovereign states and consistently with the

maintenance of the territorial intcgrity of thosc states", "where this is not possible, in
the exceptional circumstanccs discussed below, a right of secession may arise". 38 Such

an exception to the general rule, allowing for a right to secession in the case of gross or

fundamental human rights abuses, "arises in only the most extreme of cases an<l,even
then. under carefullv defined circumstances'' and as a "last resorf'. 39 lt mav be
, - -
considered to arise "only when a people had been subject to such repression by the
majority within a state that separation was the only feasible alternative" 40 ,or where a

people is "discriminated against in such a way that remaining in the state cannot be
41
demanded any longer".

33Supreme Court of Canada, Reference re Secession of Quebec, supra, at para 122.
34Higgins. supra, at 115.
35
As may be required under the Declaration on Friendly Relations. See also e.g. Ved Nanda, "Self­
detennination under International Law: Validity of Claims to Secede" (1981) 13Case W. Res. J. ln1'L.
257, at 269-270:

"Consequently astate has to meet the requirement of possessing a ·government representing the
whole people' before it is entitled to protection from 'any action which would dismember or
impair. .. [îts] territorial integrity or political unity'. Thus under special circumstances the
principlc of self-determination is to be accorded priority over the opposing principlc of territorial

36 integrity".
Borgen, supra.
37Ana Filipa Vrdoljak "Self-Determination and Cultural Rights" in F. Francioni and M. Scheinin (Eds.),
Cultural Hwnan Rights (2008), at 46.
38
39Rejèrence re Sucession ofQuebec, supra, at paragraph 122.
Id.. supra, at paragraphs 126 and 134.
·0Outcome of the Amsterdam Conference 1992, supra, at 4.
·1Christian Tomuschat, Modern Law of Se(f~Determination (1993), at 26. See also Hannum who, while

of the view that there is in general no legal right to secession, argues that:

"There are two instances in which secession should be supported by the international
community. The first occurs when massive, discriminatory human rights violations, approaching

the scale of genocide, are being perpetrated. Ifthere is no likelihood of a change in the attitude
of the central government, or ifthe majority population supports the repressîon, scccssion may

931. It is notable that - even prior to its unilateral dcclaration of independence - Kosovo
"ras being suggcstcd as such a territory:

"There is a further possible category of self-determination units, that is, cntitics

part of a rnetropolitan State but that have bcen governed in such a \Vay as to
make them in effect non-self-govcming territories - in other terms, territories
. d . ' P 'bl 1 K ''41
su bcetto carence e souveramete. oss1 c examp es are ... osovo .... ·-

32. Ireland is of the view that these elernents ought properly to be applicd in concert -
that this right may arise, as a last resort, only in the case of gross and fondamental

human rights abuses and further, where an elcmcnt of discrimination is involved (that is,
whcrc the central authorities exclude a defined group from the meaningful cxcrcisc of
43
interna] self-determination).

33. Ireland, in coming to its decision on recognition of Kosovo, concluded that it was

indeed a sui generis case meeting these requiremcnts. It had regard to a number of
factors including the follmving:

i. The status of Kosovo under the Constitution of the Socialist Fcdcral Republic of

Yugoslavia. Although the 1974 Constitution provided that Kosovo and Vojvodina were

autonomous provinces within Serbia, "by most critcria 44 constitutional law they were
at the same timc fully-i1cdgcd fcdcral bodics". Such autonomy was not limitcd to

autonomy ,vithin Serbia, including also direct representation "on the main federal
Yugoslav bodies". 45 lt expressly provided for "full cquality between the republics and

autonomous provinces in regard to their participation in the federation, by determining
that fcderal dccisions were to be made 'according to the principles of agreement among
46
the republics and autonomous provinces' ." This equality of position is further evident
in the constitutional requirement of consent not only of Republics but also of the

be the only effective remedy for the besieged group..a second possible exception might find
a rîght of secession if reasonable dcmands for local self-government or minority rights have been
arbîtrarily rejected by a central government without accompanying large scale abuses. This
exceptiûn, however, would play only when minimal demands are rejected, it does not mean that
at the States or the UN should substitute itsjudgment of what is politically rcasonable for thai of

the parties involved".

"The Specter of Secession: responding to claims for ethnie self-determination" (1998) 11 Foreign Affairs
13,at 16.
42Crawford, supra, at 126.
43
Antonio Cassese, Se[f-determinatian ofpeoples: a legal appraisal summary cif·exception to the right to
territorial integrity (1995), at 119-120:

"When the central authorities of a sovereign state persistently refuse to grant partieipatory rights
to a religious or racial group, grossly and systematically trampon their fundamental rights
and deny the possibility ofreaching a peaceful seulement within the framcwork of the state

structure... a racial or religious group mayede... once it is c!ear that ail attempts to achicvc
internai self-determînation have failed or are destincd to foi!".
44Noe}Malcolm, Kosovo: A short history (1998), at 327.
45Id.
46Heike Kreiger (Ed.), The Kosovo Cmiflict and International Law (2001), at I.

10Autonomous Provinces for alteration of territories, frontiers or boundaries 47, and

continued to be the case until the 1989-1990 amcndrncnts of the Serbia Asscmbly
rernoving such autonomy. 48

ii. The protracted period of international administration, in accordance "vith UN
Security Council Resolution 1244 (1999), including the graduai dcvolution of authority

frorn UNMIK to local authorities during a political process designed to detennine
Kosovo's future status. 49 Further, that the continuation of such international

administration was not sustainable in the long tenn.

iii. The widespread and gross hurnan rights abuses perpetrated by the Serb authorities

against the Kosovar Albanians, as referred to by UN Security Council Reso]ution 1244,
noting the "grave humanitarian situation" and "threat to international peace and

security" involved and UN General Assernbly Resolution 54/183 on the situation of
50
human rights in Kosovo.

iv. The clear and overwhelming desire of more than 90% of Kosovo's population for
indepcndcncc.

v. The absence of other remedies or foasible alternatives, following lengthy negotiations
and international engagement, and having regard to the vievv·of the UN Special Envoy

that reintegration to Serbia was not a viable option, that continued international
administration was not sustainable and that independence with international supervision
51
was the only viable option for Kosovo.

47
Article 5 of the 1974 Constitution of the SFRY providcd as follows:

The territory of the Social Federal Republic ofYugoslavia is a single unified whole and consists
of the te1Titoriesof the Socialist Republics. The territory of a Republic may not be altered
,vithout the consent ofthat Republic; and the territory of an Autonomous province - without the

consent ofthat Autonomous Province. The frontiers of the Socialist Federal Republic of
Yugoslavia may not be altered without the consent ofthat Autonomous Province. The frontiers
of the Socialist Federal Republic of Yugoslavia may not be altered without the consent of ail
Republics and Autonomous Provinces. Boundaries between the Rcpublics may only be altered

on the basis of mutual agreement, and if the boundary of an Autonomous province is involved -
also onthe basis of the latter's agreement.

Translated and reprinted in Kreiger, supra, at 3.
48Malcolm, supra, at 343 et seq. In this regard it may be noted that "it is often takcn as axiomatic that

autonomy cannot be unilaterally revoked by the central government once it has been constitutionally
established". Marc Weller, Contested Statehood: Kosovo's Strugglefor Independence (2009), al 10.
49See e.g. Constitutional Framework for Provisional Self-Government, UNMIK/REG/2001/9, 15 May
2001.
50
"Condemning the grave violations ofhuman rights in Kosovo thal affected ethnie Albanians prior to
the arrivai of personnel of the United Nations lnterim Administration Mission in Kosovo and troops of
the international security presence, as demonstrated in the yrepotts of torture, indiscriminate and
widespread shelling, mass forced displacement of civilians, summary executions and illegal detention of
ethnie Albanians in Kosovo by the Yugoslav police and military".

UN General Assembly Resolution 54/183, 29 February 2000, UN Doc. A/RES/54/183.
51Report of the Special Envoy, supra al paragraphs 6-14.

1134. In all the circumstances, Ireland is of the view that the case of Kosovo represcnts a
sui xeneris case representing an exercise of self-determination in the context of gross or

fondamental human rights abuses.

IV. Conclusion

35. Ireland respectfully suggests that the issues addresscd above are of importance and
relevance to the substance of the referral and that the Court:

i. should exercise its discretion not to provide the requcsted advisory opinion in this
matter, or alternatively

ii. if the Court elects to provide an advisory opinion in this instance:

• it should confine its opinion only to the lawfulncss of the unilatcral declaration
of independence;

• itshould find that the unilateral declaration of indepcndence of Kosovo was not
unlawful, as international law does not prohibit unilateral declarations of

independence;

• further or alternatively, the Court should find that the unilateral declaration of
independence of Kosovo \vas not unlawful, as it represcnted an excrcise of sclf­
detcrmination in the context of gross or fondamental human rights abuses.

17 April 2009

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