ROYAL DANISH EMBASSY
The Hague
Registrar, M. Philippe Couvreur Koninginnegracht 30
International Court of Justice P.0. Box 85654
Peace Palace NL-2508J Den Haag
Tel: +31 70 302 59 59
2517 KJ the Hague Fax: +31 302 70 59 50
E-mail: [email protected]
http:/ /www.ambhaag.um.dk
Enclosure File
12.C.4.HAG. 17 April 2009
Sir,
Re: Advisory Opinion on the Accordance with International
Law of the Unilateral Declaration of Independence by the
Provisional Institutions of Self-Government of Kosovo
With reference to your letter of 20 October 2008 addressed to HE the
Ambassador of the K..ingdom of Denmark to the Kingdom of the
Netherlands regarding the request for advisory opinion submitted to the
Court by the General Assembly of the United Nations on the question
of the Accordance with International Law of the Unilateral Declaration
of Independence by the Provisional Institutions of Self-Government of
Kosovo, I have the honour to attach herewith the statement of Denmark
in this regard, in accordance with Article 66, paragraph 2, of the Statute
of the Court.
Also attached are thirty original signed copies of the statement along
with a CD-ROM containing the text of the statement.
SincerelyYours
Kirsten · ring
Ambassador of Denmark to the Nethe
Enc. INTERNATIONAL COURT OF JUSTICE
REQUEST FOR AN ADVISORY OPINION
Accordance with International Law of the Unilateral
Declaration of lndependenbythe Provisional
Institutions of SeJf-Government of Kosovo
(General List No. 141)
WRITTEN STATEMENT
BYTHEGOVERNMENTOFDENMARK 1. Introduction
ln its ordcr of 17 Octobcr 2008, the International Court of Jusrice invitcd i\lcmbcr
States of the United I\ations to submit writtcn statcmcms rcgarding the
accordance \vith intcmatiornù law of the unilateral declaration of in<lcpcndenccby
the Pn>Yisional lnstitutions of Sdf-Govcmmcnt of Kosovo. In reply to dus
invit'lrion, tllis written statemcnt is prcscnted by rhe Govcrnmcnt of Dcnmark as
an expression of Denmark's comminncnt to the conrinucd stability and
devclopmcnt of Kosovo and the rcbrionas a wholc.
I.ike others, the Danish Govcrnmcnt would have prcferred the issue of Kosovo's
finalstatus to have been settlcd in the fom1 of a ncgotiatcd ag1-ccment betwccn the
Kosovo .\!banian and Scrbian rcprcscntativcs. Intensive efforts and prolongcd
dclibcrations,howcvcr, provcd ftuitlcss, and it bccame clear that such :1greemcnt
cmùdnot be rcachcdby the parties.
In rcsponsc to Kosovo's dcclaration of indcpcndcncc, the Danish .i\linistcr for
Foreign :\ffairs, Dr Per Stig 1\foller, on 21 Pcbruary 2008 exprcssed Denmark's
fonnal recog11ition of the Republic of Kosovo and its reac.lincss to cstablish
diplomatierelations.Tlùs decù;ion n:flcctc<lthe Danish Covc1nmcnt's considcrcd
,ie,v thatrecognitionof Kosovo'sindcpendcncc was conducivc to the stabilitand
dcvclopmcm of Kosovo and the rcgjon as a wholc and that Kosovo's
indcpcndcncc was in accordancc ,vith internationallaw.
ln reccnt ycars, Denmark has activcly contributcd to the efforts of the
international community to stabilize Kosovo and help dcvclop a multi-ethnic,
democraùc socicty. Since 1999, Dcnmark has conttibutcd more than EUR 200
million in assistance to the international effort in Kosovo, and has conrinualk
pnn~dcd approximatcly 400 pcacckecpcrs to the international sccurity presencc
Q<FOR) cstablishcd under SecUtit:yCouncil resolution 1244. Dming the nine-year
l)>-;î\ITK adminisîl'ation of Kosovo, t\vo Danish nationals 1 scrvcd as Spccial
Representatives to the UN Secretary Gcncral, hcading U:Ni\flK, and Denmark has
in ail relevant international fora supportcd effotts of cnsuring politicalsenkmcnt
bct\vccn the parties. i\lore reccntly, Denmark bas bccn a strong pmponcnt of the
i\lr. l lans l la:kkerup (2U00-2001) and Jcssen-Pctcrsen (2ü04-20U6J int6 rration of both Serbia and Kosovo into Europcan structures as appropriatc.
Denmark has ~ùsoprovide<l personnel anJ ot.l1Lresourccs to the EU rulc of law
mission (ECJ..EX) set up in Kosovo in 2008.
.\s the Court now has becn requcstcd to a<lvise on the dcclararion of
indepcndence, the Danish Govcrnmcnt consiJers itappropriatc tosrnte its rcasons
why the dedararion of independencc of 17 1-'cbruary2008 was in accorchmcc with
internationalaw.
2. The declaration of independence was 1n accordance with
international law
2.1.Thespec!fiacndlltl!7VquestionbqôretheCom1
By n:solution 63/3 the UN General Asscmbly decided, in accordancc \vith article
96 of the L1~ Cha1ter, to rcquest the Intcmational Court of Justice to rcnc.leran
a<lvisoryopinion on the following question: '1sthe11ni!tJteredarationqfimlependrote
~)'heProvisionafl!lslil11tie1fSe!fGover11mm qt/Kosovo i1accorda11 wcirhinlematio11al
lmv?"
The Danish Govcrnment does not doubt that the Court willbe acuteh' awarc of
ù1e specific and narrow character of this question. At the same ttrnc, the
Danish Governmcnt <lcems it important to undcrlinc that the c.1rn.:stion
beforc the Court conccms only the confonnity of Kosovo s dcclarnrion of
indcpcndcncc with international law. The crucial date is 17 Fcbruary 2008. It \vould
be going bcyond the request, and the particular diplomatie contcxt leading to its
adoption, wcrc the Court ro rcspond to othcr questions, such as Kosovo's
statehood, the legality of recognitions and non-recognitions by tlùrd States, orany
future negotiations benvccn Kosovo and Scrbia.
In pa.tticu.lar,it is to be noted that the Cmu1 bas not bcen askcd to advis<:on the
conscc1ucnces cnstùng from its findings rc~ding the question put bcforc itrllis is
an issuewhich the Ceneral Asscmbly and the .\kmber States of the United Nations
have exprcssly rcservcd for the political prnccsscs within the U~ and bcyond. ï11c
crcation of a new State is the resultof a predominately political proccss possibly
spanning over many years. Itwould not be helpfu]to Kosovo and Scrbia, the UN or
othcr intcrcste<l pmties, nor to the Court itsclf, if the Cowere ro enter into :--uch
2 unchartcrcd waters in an attcmpt to contribute to political mapping.
2.2.Applicablg ememli11temation lalwregardind geclaratio1qfindepmdence
Central to the narrow and spccific question before the Court is whcthcr, in
international law, there is a prohibition against the issuance of a dcxlaration of
indepcndcncc. lt is forthose maintaining that the declaraùon is unla\vful to show
theexistence of such a prohibitive rule.
Basically, an act is permittcd undcr international law unlcss ir can be shown
rhat itis prohlbited in either trcaty la\v or customary international hl\v.
One can not only find support for this presumption in the old dicta of the
Permanent Court of International Justice that "restrictions upon the
indcpcndcnce of States cannot ... be presumc<l" and that international law
]caves to States "a wide mcasurc of discrecion \vhich is onlv limited in certain
cases by prohibitive rules."2
ln 1986, the International Court of Justice found that it could not pass
judgmcnt on the militarizacion of Nicaragua "sincc in international law rhcrc
are no mies, other than such rules as may be acccptcd by the Statc conccrncd,
by trcaty or othcrwisc, whereby the levcl of armaments of a sovcrcign Statc
3
can be limitcd, and this principlc is val.id for ail States without exccption."
ln 1996, the International Court was ec.1uallyclear, a<lvising that "Sratc practicc
shows that the illcgality of the use of certain wcapons as such does not result
from the absence of authorization but, on the comrary, is formulated in tcrms
of prohibition." 1
Similarly, in addrcssing the question now bcfore the Court, the declaration of
inclcpcnclcnce must be takcn to be in accordance with international law unless
a prohibition laid down by treaty or othcrwisc applics.
2
The Lutus, l'Cl.JScrics .\ ~o. 10 (1927), pp. 18 and 19.
3 ::--..;icaC,JReports j198Gj1-t.para. 269.
1
·Lcgalityof Nuclcar \'\'capons, ICJ Repons [19%j 226, para. 52.
3 In rhe view of the Da11isl 1uve11u11eut, no such gcncral prohibition cx1Bts .here
is no support for a gcncral prohibition undcr custornary international law.
I\1orcovcr, no treaty prohibition has becn cstablished. ,\s a rnatter of
international law, the issuancc of a dcclararion of independencc isprimarily a
factual cvcnt, which togcthcr \\~th où1cr factual elemcnts, suchas a dcfincd tcn-itory
and a permanent population, may be deemcd to rcsult, immcdiately or over rime,
in the creation of a ncw Statc.
2.3. U.i\mc!ice
The absence of a gcncral prohibition against the issuancc of dcclarntions of
indcpcndcncc has bccn confirmed in UN practicc. Only in rare circLUnstanccshas
the Security Council or the Cencral ,\sscmbly expressed a nq,rarive ,~ew on
decfa.rationof independcnce, and thisonly where such dcclarationscould be said to
be part of an ovcrallschemethat vioL1tcs fondamentalnorms of internationalbw.
For cxampk, in 1961, the Sccurity Council "[s]tronglydcprecatc[d]the sccessionist
acriviticsillcgallycarricd out by the prmincial administration of Katanga" and
"l<lleclarcl< h]at allscccssionistactiviticsagainst the Republic of the Con!-,>a urc
conttary to thl:Loi fondamentale and Sccmi.ty Council dccisions". Concems re11ted
' .
not leastto theexistenceof foreignintervention.
111edcclarntion of indcpcn<lence by the regimein Southem Rhodesia in 1965was met
with condcmnation by the Genet-al:\sscmbly;6 and also by the SccurityCouncil\v-hich
calledupon "all states notto n:cognizc this illcgalracminorityregime... ''.
.\mong othcr examples, wc point to the rcjcctionby the internationalcommunity of
dcclarationsof indcpcndcnccof the so-callcdBantustans,8and theTurkishRepublicof
5Sccuriry Council rcsolution 169 (1961) of 24 Novcmbcr 1961.
r,Gcncral Asscmbly rcsolution 2(X."Xof 11 Novcmber 1965.
··Sccuri1y Council rt.'soluuon 216 (1965) of 12 No1965.r
"Gt'ncral:\sscmbly rcsolution 341!D (XX.X)of 28 :\onmb1975 and Sccurin· Council
rcsolution 264 (l969) of 20 :-lovcmbcr l969.
41....n 1em ,yprns.')
Itfollows that,in certain instances, dcchrations of indcpcn<lcncc occuning in the
contcxt of a manifcst brcach of fundamentù norms of international law have becn met
with univcrsal condemnation. However, itis impottant to stress that those dccfarations
have bccn the cornplction of what alrcady constitutcd a brcach of intcmatiomù law. It
was thus not the dcclarationsof indcpcndcncc themselves that, taken in isolation, wcrc
found to be contrat-yto international law.
~ [on:m·er, these werc dcchrations m1<le infun<lamcntallydîffercnt contcxts from that
of rhc dcclm,ltion of indcpcndcncc issucd by the reprcscntativcs of Kosovo on 17
l;cbrnary :2008.The Kosovo dcclaration spcllcd out dearly the commitmcnt of Kosovo
to a multi-ethnic, dcmocratic future for Kosovo at1dprotection for the rights of ailof
Koson/s communîtics as cmbodicd in the Kosovo constitution. Todav, dus
,
commi11ncnt îsin the process of being impkmemcd in Kosovo.
2.4.Prmticr eelatillotheSFRY
In dcaling \VÎthdcclarations of indcpcndencc issued by Slovcnia, Croatia, Rosnia
and IIerzcgovina and (\Iaccdonia in 1991, the _Arbitrnt:ionCommission undcr the
Conforcncc on Yugoslavia confirmed thar the existence or disappcarance of a
,,tare 1s a quesuon o ffacr . -1
Notably, the fact that the Soci,ùist Fedcral Republic of Yugmdavia (SFRY) was
taken at d1e rime to rctain its international personality did not rcsult in the
dcclarations of indcpcndence being seen as contrat)' to international law, even
though they had been issucd against the willof the SFRY. Quitc to d1e contrary,
to the cxtcnt issucd by fotmer Rcpublics thcy were g-ivcn cffcct through the
recognitions of Slovcnia, Croaria, Bosnia and Hcrzcgovina and J\laccdonia as
independem States.
,\s for the declaration of indcpendcncc îssued by the people of Kosovo on 17
Febrnary 2008, the particular circumstances indicatc both \vhy this dcclaration
')Sccurity Council rcsolmion 541 (1of318 NoYembcr 1983.
11Opinion No, l of29 NoYetnbcr 1991, 92 ILR 162.
5 cannot be equated with the abovementioncd instances wherc such declarntions of
indcpendenΠhave lx:en con<lcmm:J lJy tln: international community; and why
Kosovo was and is .migeneris and docs nor serve as a prccedent for orhcr
11
scccssionist movcments.
lt is the vie,v of the Danish Govcmment that at lcast two kcv clements givc the
• <-
case of Kosovo a unique character: 1)the history and dissolution of the SFRY, and
2) Security Council resolution 1244.
2.5.Thedi.noht1io of1he S1--'~·y
I•îrstly,tl1cspccial status of Kosovo must be seen in light of the fact that Scrbia itself
came into existence as a State only a fcw ycars after the SFRY had bcgun its
disintegrarion. ïl1e independence of Kmovo came in the contcxt of what in the
words of the UN Secretary-Gencral Special Envoy for the future stan1sprocess for
Kosovo, President \fartti :\htisaari couic) be seen as the conclusion of "the last
cpisode in tl1cdissolution of the fo1mer Yugoslavia [that is,the SFRYJ". 12
To un<lerstand the importance of tl1cinterrelationship between the dissolution of
the SFRYand Kosovo's indepcndcnceit ishelpfulbriefly to rcvisit the particular
constin1cional framcwork of SFRY and Kosovo's special stams ,vithin it.
The 1974 constitution of the SrRY providcd for a fcdcral suucmre bLùlton six
republics and two autonomous provinces of which Kosovo was one.
Undcr the 1974 constitution, Kosovo thus had a dual nature; both a
Fedcral unit, similar to the six Republics, and an autonomous province within
11
'!lie tmiquccharactcrof the Kosovo situationwas also highlightcdin the umuùmoussrntemm1of El.'s 27
fon:igministerscxpressedthrougd1tdcchrntionofthe GcncralA.ffairsaE\.i:emal,\ffCouncilof the
Furopean Union meetingonFebm-1ry18,2008.Herc the Councilrcitcitsadhcrenctathe pnnoples ù1e
UN Charterand the Hdsinki l·'ina:l\et andundcrlint~"it:ù1atin\'iewof the confliùwo19\)0s:md
the extemb:Iperiod intcmationaladministrarn1dcSCR 12++.Kosovo consrituteSlUgenerisca.~cw!uch
drn:snot cal!tnto(JUcsrionthcscprinciplcsand rcsolutions.
12
Report of the SpcciaEnniy of the Scc!'etary-(1eneral on Kosm·o's future stam~ proccss,
S/2007 / l68 of 26 :\farch 2007, para 16. The report is reproduccd as Do~sic:rNo. 203 in the
Dossier submittcdto the Court onbchalrof the Sccrctary Gcncral pursuant to article 65. 2 of the
St:ltutc (hereafter Dossier) h/w\nv.iq-
cij.orv / docket /indcx.pl=.)&p?= l&k-? l&casc- !-l-l&codc-kos&p3-t1.
6 Serbia. Moreovcr, Kosovo sharcd the Prcsidency of the SFRY with the othcr
Republic~, and had a numbcr of rights,~s-à-visScrbia,including the 1:ight of
veto over constitutional changes.
The emphasis in the 197 4 constitution on both the rcpublics and provinces as
consriruent clcmems of the SI•'RY and of the voluntary nature of thcir participation
in the Federat:ion 13 unclerscorc the significancc of cvents in 1989/90 whcn
Kosovo's autonomy was removcd. 14
The inability of the ncw const:itut:ional structure adequately to protect the human
rights of the people of Kosovo was dcmonstratcd throughout the 1990s,
culminaùng in the 1998-99 crises whcrc more than 700,000 civilians sought or
werc forced inro refugce camps out-sicle of Kosovo and an estimatcd addirional
600,000 pcrsons wcrc internally displaccd. Therc \Vere a numbcr of crcdibk
reports of scrious crimes being committed primarily against the Kosovo
.\lbanian population; reports that wcrc subsequently confirmcd thrnugh
15
findings of the International Criminal Tribunal for the fom1er Yugoslavia.
The forccd change in Kosovo':; constitutional stan.1s in 1989/90 and the
subsec.iuent human rights violations, took place in the context of the armed
conflict in and among certain of the republics of the SFRY and the dissolution
1'For a bricf <lescrip1ion of the 1974 constitutionfnum-work SC<-also Croati:m prcsidcnt Stjcpan
.\ksic m ,m article"Kosovo - .\ Problcm 111atTolcratcs No Delay" which was publishe11the
ncw~papcr " Veéernji I.i,ton Saturday 1Grcbruary 2008.
14For a description of this proccss sec inter alia ICTY JudgmcntProsecutor "· !\Wan J\lilutinovic et
al.(!T-05-87-T) Judgment of 26 Fcbruary 2009 atpara 217 - 221.
1,Prosecutor \'. .\!i;\[ilutinonc eal., opcit.interaliaat para1178 whcrc the TrialChambcr
found "thar then: was a campaign of Yiolcnce dircctcd against the KowYo Albanian cidlian
popul:Hlon, during wbich thcre wcrc incidents of killing, sexual assault, and the intcntional
dc~tniction of mosl1ues.1t was the deliberate actions of [the force~ of the HZ'!'and Scrbia] during
thi~ campaign th:llcauscd the dcpar!ure of at lcast 700,000 Kosovo .\!banians from Koso\'o in the
short penod of t.imc betwccn the end of /\farch ami beg-inning of June 1999. Effortby the .\IUP to
conccal the killing of Kmovo :\IIJanians, by transportinthe bodies to othcr arcas of Scrbia, :is
discu,sed in greater det:iil below, :ilso sug,ttest that such incidems were criminal in nature." See more
generally, th; l'N matcrial on tht· periml /rom /1.larch 1to8the establishment of UN.\IIK in June
1999 contained in the Dossier submittcd to the Court on bchalf of the Secrct:iry-Gencral(Part Il :\,
Dossier No. 8-28).
7 of Fcdcration.
\\1uk it is not for the Danish Govcrnmcnt authoritativcly to intcrprct the
constitutional framework of anothcr Sratc, it ismaintaincd that thesc particular
facrualand legalcharactetisricsclearlydistinguish Kosovo from other cases.
2.6. l?.esolut1124-1-
·1·hc second and rchtcd reason for the s1ri~me,ù charactcr of Kosovo\; dccbration of
indcpcndcnce flows from the parricular circumsranccs surrow1ding the international
community's responsc through rcsolution 1244 tothe 1998/99 c1-isis.
Following the anned intenrention by the North .\tlantic Treaty Organization
(:\.\'l'O), the Security Cow1cil on 10June 1999 adoptcd Security Council rcsolution
1244 under Chaptcr \'II of the UN Chaiter, authorizing both a civil and military
intcmarional prcscnce. Among the central purposes of rcsolurion 1244 ,vere to
cnsure protection of the population of Kosovo, to crcate the conditions for
the development of Kosovo's institutions and, at a later stage, to facilitatc a
process for dctermining Kosovo's final status.
In the words of CN Spcci,-tlEnvoy :\htisaari, resolurion 1244 respondcd to
!\lilosevic's actions in Kosovo by denying Scrbia a mie in its govemancc, p11cing
Kosovo undcr tcmporary CN administration and cnvisag:ing a politic,Ù process
16
dcsigncd to dctctminc Kosovo's furure.
For scveral vcars the status issue was set asi<le\vhile the crearion of conditions
conducivc to rcaching agreement \Vere ad<lresscd. But in 2005 U~ Spccial Envoy
I<aiEide recommendcd that the srarusproccss be initiated, 17and subseyuently, as
1
rùreadynoted, President 1Vfartti:\htisaari was appointcd as the LN Secrctary
Gcncral's Spccial Envoy on Kosovo's funire stah1s proccss. In l\farch 2007 his
1'C:f..\htissari Report para 15.
,- l'N Spec1al Envoy Kai Eide srnted in October 2005: "'T11erewill not be an:· guod moment for
addrcssmg rhe future status Koso,·o1... Ne,·erthclcss, an O\'Crallasscssment lead~ to the
conclus1ontbat the rime hcome to commence this process."ci.S/2005/635 of October 7,2005
(Dos~icr No. 193).
8 conclusions wcrc prcsented to the Security Council. 18 Special Envoy :\hrisaari put
forward a det'l.ilcdset of recomrncndations for Kosovo, including a proposa! for a
phascd mmsîtion to îndcpcndcnŒ undcr international supcn-1s1on. 'llùs
recommcndarion was made on the basis of the \\~dcly sharcd vicw that a
reintegrnrion of Kosovo was not a viable option, that starus guo of conrinued
imcmational administration was unsustainablc, and chat ailavenues for rcaching a
ncgotiated scttlcmcm had bccn cxhausted.
JntcnsÏ\'C \Vork was undcrtakcn to secure Sccurity Council cndorscment of rhc
.\htisaari Report in the form of a rcsolution ro replace resolution 1244.
Bdgium, France, Iraly, the United Kingdom and the United States, prcsentcd
a drnft Sccur:ity Council rcsolution to this cffcct, but no agreement could be
rcachcd.
c\ final attempt at forgi.ng agreement was made in the aununn of 2007 when a
Troika, consisring of the Russian Fedcrntion, the United States and the Europcan
L'nion facilitatcd additional extensive negoriations bct:wccn the parties. Hmvevcr,
the Troika concluded: "The parties wcrc unablc to rcach an agreement on the final
, nl~
status o fI <..osovo.
]11e efforts of the Troika brought to an end an unprcccdented effort within the
L:N system at reaching agreement on a status issue; an effort that had fullyrespcctcd
20
and honourcd the process envisioned by rcsoluùon 1244.
1
'ln his lcner forn·arùing the :\htissari RtoùieSccurity Council the Sccrct:u·y-Cencral str<.·ssc<hl1s
iullsupportfor the recommcndation~ rcg.mling KornYo's fi.m.ctatus contaim:d itheRxport, cf.
S/2007 /768 of26 i\larch 2()1)7(Do:;sier No .203)
11
'Rcpon of the Russia/US/EL' Troika on Kosovo, Dcccmbcr ·+2007. Thar the partiesto the
negotiatîons had ,·cry divcrging vicws can be illustrntcdthe fact tbat during those ncgot:iations, as
Koson/s reprcsmtativcs argued stronglyn favour of imkpcndcncc,Scrbiain2006 amcndcd its
constitution to the cffcct of constitutionallr sccking to cxcludc the possibiliry indcpcndcnci.:.
The Constitution of Scrbia was adoptcd by the National Asscmbly of the Republic of Scrbia on 30
Sc·ptt'mbcr 2006 anJ cndorsed by a rcfcrcn<lum on 28 and 29 Octobcr 2006.
:'»'lllGo\'(.:mmcnt would furthcr nottl1at ano point did the Stuctary·Gcne.mlSpcci:tlRcprc,c111aùvc
(SR.SC) in Ko.mm dcchrc the Dccb.rnùon of lndcpc-mk·ncc as invalid dt-,.piceù1cSRSG~ ru,·ponsibilityfor
msuring th:stq'lStakby Kosovo'sauù1oriti,vcrcconsi.~tmt\\ith rcsolu12.J-t
9 Reso/11ti1o1414does110/excbrdiendependen Rce.olurion 1244comains no prohibition on a
(k:chmuiu11uC i11depc11dcu1. ..yKosovo, nor any rcqu1rcment th.nstuch 1 dechrntinn nnlr
beissuedwi.ththe consent of the Fcderal Republicof '{ugoslavia(FRY)or Serbia,or
l1cSecuntY ~ounc1.- ·")1
Rcsolution 1244 paragraph 11 (D spcaks of the rolc of the international civilian
prescncc in "facilitating a political process designcd to cktermine Kosovo\;
future status, taking into account the Rambouillet ,-\ccords", but resolution
1244 lcft the proccss undefincd cxccpt to charactcrize it as political. The
resolution's dctcrmination of Kosovo's "autonomous srarus" was for an
intcrim pcrio<l that \Voul<lat a subsn1ucnt point be supcrseckd bv a "final
status".
The rcfcrcnce to the füunbouillet Accor<lsin rcsolution 1244 is sig11ificant.ln
Chaptcr 8, Art I (3) of thcsc .\ccords rcference is made to "the will of the
people". lt was clear both during the negotiations at RambOLùllet, 111 the
iminediate pcriod aftcr the 1999 crises, and throughout the ycars of the
LTN;\UK administration that the \\~sh of the ovcrwhelming majotity of the
population of Kosovo was to g,ùn indcpendcnce. 22
Rcsolution 1244'sprcarnbular rcfcrcnce to "the commitment of ,ùlJ\Iembcr Statesto
the sovcrcignty aml territori,ù intcgrity" of the MlY "and the othcr States of the
rcgion"in accordancc\\~th1\nnex2 of the resolutiondid not establisha prohibition
of a dcclararion of indcpcndcncc. Indccd, the rcference was conccmc<l with the
èThe \'il'cxprcs~cd byl'!\Secrctary-(;encraSR.SC Jcsscn-Petcrscnatapress briefinat
L;l\~IIK headquarn:rsn 21 >Jovcrnber 2005 were made at the time of the initiation of the status
process under Special EnYo:,·:\htissari in .2005 (sec L'~I\IIK L'nofficial transcript, Press Briefing
.\Jotes, 21 Non:mbe2005). His rcmarks - tbat a unih1teral tkclaof indcpcndence ,vou!JhaYe
bren111violauon of rcsoluti1244 - came m the contcxt of the bcgin111ngof the status proce%,
and cannot be niuatedwith thesimarion after SpcciEn\'oy :\htisaari had prcscntcd his report and
ncgotiationshad comc ta a standsùll in 2007/2008. Indeed, at the time of Kosoyo's dcclaration of
mdependcncc on 17 h:bruary .2008, UN SRSG clid not declare the dcclaration illegal or indccd
express anycriticism.
2_In rhi~ conrcxt it should be notcd char also the Kosu\·o Contact Group compriscd of United
States, Russia, Great Britain, FraIra\yand Germanr st:m.'d that a final solution should be
acceptable to the people of Kosovo, see ·inter alia Koso~·o Conrn.ct Group StLondon, 31
January 20U6.
10 commitmcnt of U:\ .\fembcr States, as opposed to the pcopk of Kosovo, and it
wa::l;J,niu..:in dmt it n.Jcned also to St_atcsothcr thanFRY and, moregenemlly o
cxisting principles of imcmational lmv. :\s for Annex 2, itis focuscd soldy on the
period of intcrim administration.
Kuso!':ideclamtion r1 ·ndrpmdmce. l;accd with at complctc dcadlock in the starus
ncgotiarions and a framework in rcsolution 1244 which did not cxcludc a
dcclaration of indcpcndencc, the (JUcstionwas hO\v to rcsolvc a situation which, in
the word's of Special Envoy :\htisaari, was in urgent nccd of rcsolution. In
presenting his report to the Security Council, Spccial Envoy .Ahtisaari said:
"Unccrt.ainty ovcr [Kosovo'sl future has bccome a major
obstacle to Kosovo's dcmocratic dcvclopmcnt,
accountability, cconon11c rccovcrv and inter-ethnie
reconciliation. Such uncertainty only lcads to furthcr
stagnation, polarizing its communitics and rcsulting in social
and politiGù unrest. PŒtcnding othcrwise and denying or
dclaying resolution of Kosovo's status risks challcnging not
only its own stabilitbut the peacc and stabilit:of the region
asa whole". 23
\'('hile the negociacing proccss bcrween the parties and in the Sccmity Council had
broken <lown, the challenges on the ground remained vcry reaL ln tlus cxcce<lingly
diflïcult political situation, the people of Kosovo chose the only way forward
which thcy dccmcd available to sccurc the development and prospcrity of
Kosovo am! the region as a wholc. Hcncc on 17 Fcbruary 2008 Kosovo declarcd
indcpcndcnce.
In its dcclaration of independcnce, Kosovo undertook to protcct and promotc
the rights of ail communities in a democrntic, sccular and multiethnic rcpublic.
ln cxprcssing their recognition, Dcnmark and othcr States placcd sigiuficant
cmphasis on thcsc oblig-ations.24Kosovo has adopted and - togcthcr with its
20:\htisaari Report para 4.
21J,cttcr from .\lins ter for :\ffaîrsDr. Pcr Stig r-foofe21 fcbruarv 2008 to Fatmir
ScdJiu, Prc~idcnt of Koso,·o and IIashim Thaci, Prime .\Iinister of·Koso\'o.
11 partncrs - is implcmcnting a constitution protccrive of human rights and nùnority
ri.ghts.
In light of the above the Danish Govcrnmcnt is of the v'Îcwthat thcrc is no basis
for finding that Kosovo's declaration of indcpcndcnce on 17Fcbrnary 2008 was in
,iolation of resolution 1244.
2.7.S1fdf ete1mi11atùm
'Il1isconclusion is also compatible ,,~d1principlcs rcg-ardingpcoples' right of self-
dctcnnination. l•or one thing, Kosovo's fimùstatuscould not be dctcmùncd without
the involvcmcnt and consent on the part of the people of Kosovo. \X11ilcthcrc are
implicarionsof the right of sclf--dctcnninationnot yct fi.ùldevelopcd in intcmatiornù
practicc,the Danish Govemment sces no rcason vvhydenial of mcaningfl.Ù internai
self--dctcmlÎ.nation,as Kosovo was arguably subjectc<lto at least from the late 1990's,
should be dccmcd iffclevam in relation ro an othcnvisc lcgitim"1te daim of
indepcndcncc.
The internationalcommtmity is thankful to the InternationalCourt ofJusricc for its
muncrous contributions in past decadcs to the <lcvclopmentof the right of sdf-
dctcrrnination.111epracrice of the Court will not be discusscd in dctail hcrc. It is
decmcd sufficient to emphasize that, in 1986, referring to the principlc of 11/i
possidetis,the Court hcld that "[t]he esscmial rcquiremcnt of stability in order
ro survive, to dcvelop and gradually to consolidatc their indepcncknce in all
fields, has induccd .\frican States judiciously to consent ro the rcspecting of
colonial fronriers, and to take account of it in the intcq)rctation of the
principlc of sclf-dctcrmination of pcoplcs". 25
Thcrcby, the Court acknowledged, firstly, a conflict benveen the principlc of
11/piossirletsnd the principle of sclf--determination. Sccondly, the Court found
that, normally, the fom1cr u·umpcd rhc latter. Ho\vcvcr, the Court was carcful
not to statc rhat the principlc of sclf-dctcnnination automatically yiclds to
principlcs of tcrritori.al intcgrity. The .\rbitrnt:ion Commission undcr the
Confcrcncc on Yugoslaviacndorscd the trnnsfonnation of internai borclcrs into
:-,Frontin Dispute, ICJ Repons [1986]5para.25.
12 international froncicrs in situations not more compclling than the one now, in
26
part, bcforc the Court.
3. Conclusion
ln conclusion, the Danish governmcnt maintains rhat no gencral prohibition
exists in international law against declarations of independcncc. To the cxtent
inremariornù law provides any guidance on the legality of declarations of
indcpcndcncc tlus lcads to the conclusion tl1at the Kosovo dcclaration of 17
1:cbmary 2008 was in accordance wiù1 international law.
~\n op1111on of the Court calling into question the status of Kosovo as an
independcnt Statccmtld have a dctriincntù cffcct on pcacc and security in Kosovo
and the region as a whole. Significant efforts werc invcstcd in cnsuring an agrccd
scnlcmcnt bctwccn the parties up to Fcbn.mry 2008, and it would seem highly
improbable tliat an advisory opinion under these pm1icular circumstanccs could gi,·c
positive impctus fur ncw negotiations on the status issue. "\bo, itis diffiCLtl t0
envisage a firnùstatus diffcrcnt from thar sought on 17 Fcbruary 2008 by the people
of Kosovo.
v\ ../,/1 //Î
,..,,L,·l.,,L-----
,-\mbassador Thomas \X.'inklcr,
L'mkr-Sccrcrary for Lcgal Affairs
Copenhagcn, 16 _\pril 2009
:iOpinion No. 3 of 11January 1992, 92 ILJ7U.
13
Written Statement of Denmark