AMBASSADOR
OF THE CZECH REPUBLIC
The Hague, ,,/fApril 2009
Refno: 235/2009-Haag
Dear Sir,
I have the honor to enclose herewith the written statement of the Czech Republic (in English)
in response to the Court 's Order of 17 October 2008 in connection with a request from the
General Assembly of the United Nations for an Advisory Opinion on the accordance with
international law of the unilateral declaration of independence by the Provisional Institutions
of Self-Government of Kosovo.
Please accept, Sir, the assurances ofmy highest consideration.
Yourssincerely,
His Excellency
Mr. Philippe Couvreur
Registrar
International Court of Justice Accordance with International Law of the Unilateral
Declaration of Independence by the Provisional
Institutions of Self-Government of Kosovo
(Request for an advisory opinion by the United Nations General Assembly)
Written Statement of the Czech Republic
·.April 2009 I.
INTRODUCTION
On 8 October 2008, the General Assembly of the United Nations (UNGA) decided in
resolution AIRES/63/3 to request the International Court of Justice to render an advisory
opinion on the following question:
"Is the unilateral declaration of independence by the Provisional
Institutions of Self-Govemment of Kosovo in accordance with
international law?"
In its order of 17 October 2008, the Court invited UN Member States and the Provisional
Institutions of Self-Govemment of Kosovo, as the authors of the unilateral declaration of
independence, to submitwritten statements.
The Czech Republic is of the view that this request has to be seen in the larger context of an
ongoing political process. The ultimate goal of that process is to ensure lastingpeace, stability
and economic prosperity in the Western Balkans. For that purpose, the EU has repeatedly
expressed its full support for the European perspective ofthe Western.Balkans countries. The
Czech Republic, therefore, warmly welcomes the Stabilization and Association Process, and
hopes for substantial progress on the way to EU membership. At the same time, the Czech
Republic believes that, after the failure of the status negotiations, an independent Kosovo,
initially under international supervision, is the only viable way to realize peace, stability and
economic prosperity for the whole region.
For this reason, and on the basis of the conclusion that Kosovo fulfills the criteria for
statehood, the Czech Republic recognized Kosovo as an independent State on 21 May 2008.
In the view of the Czech Republic, the request for, and the issuance of, an advisoryopinion in
this particular situation has adverse effects on the democratic and economic development of
Kosovo and on the peace and stability of the whole region. Therefore, the Czech Republic,
while strongly committed to ·the rule of law and the use of advisory opinions where
appropriate, abstained in voting onthe above-mentionedresolution.
The Czech Republic decided to submit a written statement in order to draw the Court's
attention to the adverse effects of an advisory opinion in this particular case. The written
statement will, therefore, deal firstly with issues of judicial propriety (part Il). The Czech
Republic further decided to also include in its written statement considerations relating to
substantive issues, in case the Court should decide not to decline giving the opinion. It is to
recall that the Courtis limited to those legal issues that are necessary to answer the question
of the UNGA resolution AIRES/63/3. In view of the Czech Republic, it is sufficient to
identify and deal only with those rules of international law that might conflict with the
unilateral declaration of independence (part III).
1
See, e.g., EU Council Conclusions on the Western Balkans, Brussels, 8 and 9 December 2008.
2 II.
ISSUES OF JUDICIAL PROPRIETY
The Czech Republic greatly values the role of the International Court of Justice as the
principal judicial body of the United Nations and is fully committed to supporting the Court.
As such, the advisory opinions are an important instrument, which should be made use of
whenever necessary and appropriate. "The purpose of the advisory function is not to settle - at
least directly - disputes between States, but to offer legal advice to the organs and institutions
requesting the opinion." 2 The Czech Republic fully recognizes the legal nature of the
requested question, which the Court is undoubtedlycompetent to answer, but in the light of all
the circumstances, the Czech Republic sees compelling reasons why the Court should decline
to answerthe requested question.
The Court has repeatedly made clear that Article 65 (1) of its Statute, according to which
"[t]he Court may give an advisory opinion [...]" (emphasis added), "leaves a discretion as to
whether or not it will give an advisory 3pinion that bas been requested of it, once it has
established its competence to do so." At the sametime, the Court has alwayshighlighted that
its answer to a request for an advisory opinion "represents its participation in the activities of
4
the Organi5ation, and, in principle, should not be refused." Only if there are "compelling
reasons" th, Court will decline to give the requested advisory opinion. Although the Court
has so far never exercised its discretionary power under Article 65 (1) of the Statute, its
jurisprudence sheds light on what such "compelling reasons" could be. Of particular interest
for the present case is the argument that the advisory opinion has adverse effects on a political
solution of the problem. 7
The request for an advisory opinion and the preceding unilateral declaration of independence
bas to be seen against the background of the developments during the past 20 years. The
situation in Kosovo is ultimately the result of the events related to the dissolution of the
former Socialist Federàl Republic ofYugoslavia and its violent consequences. Kosovo was an
autonomous province within the Republic of Serbia, one of the constituent republics of the
former Socialist Federal Republic of Yugoslavia, and lost this status in 1989. During the
following decade, Kosovar Albanians became increasingly subject to repressions, which led
to the NATO intervention in 1999.
Following the intervention, on 10June 1999, the United Nations Security Council (UNSC)
adopted resolution 1244 (hereinafter "UNSCR 1244"), which placed Kosovo under the
provisional administration of United Nations Interim Administration Mission in Kosovo
(hereinafter the "UNMIK"). The resolution denied the Federal Republic of Yugoslavia
(hereinafter the "FRY") a role in the govemance of Kosovo, and provided for a political
2Legality of the Threat or Use ofNuclear Weapons, Advisory Opinion 8fJuly 1996, ICJ Reports 1996, p 236.
3 Idem, p 234.
4 Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion of 30
March 1950, ICJ Reports 1950, p 71, and following advisory opinions.
5 Certain Expenses of the United Nations (Article 17,paragraph 2 of the Charter), Advisory Opinion of20 July
6962, ICJ Reports 1962, p 155, and following advisory opinions.
Only the Permanent Court of International Justice once declined an opinion because the question directly
concemed an already ex.istingdispute, and one of the parties was not a party to the Covenant or the PCIJ statute
and objected to the proceedings (Status of Eastern Carelia, Advisory Opinion, 1923, PCIJ, Series B, No 5).
7Nuclear Weapons advisory opinion, ICJ Reports 1996,p 237; Legal consequences of the construction of a wall
in the occupied Palestinian territory, Advisory Opinion of9 July 2003, ICJ Reports 2003, p 159-160.
3process designed to determine Kosovo' s future status. A comprehensive review of the
situation in Kosovo in 2005 led to the conclusion that, while the standards' implementation
8
had been uneven, the final statusprocess has now to be started.
In November 2005, the UN Secretary-General appointed Martti Ahtisaari as his Special
Envoy on Kosovo' s future status. The Special Envoy held extensive consultations and
explored all possibilities for a negotiated settlement of the status issue. Despite these efforts
and several rounds of talles between Kosovar Albanians and Serbia, the final status
negotiations failed due to the irreconcilable positions of the parties. The Special Envoy
concluded in his report, transmitted to the UNSC on 26 March 2007, that a reintegration of
Kosovo into Serbia is not a viable option and that a continued international administration is
9
not sustainable either. He thus recommended that Kosovo's status should be independence,
supervised by the international community, and presented the Comprehensive Proposai for the
Kosovo Status Settlement 10 for the implementation of such supervised independence. The
Special Envoy's recommendation, including11he Comprehensive Proposal, was fully
supported by the Secretary-General. The Special Envoy based his conclusions on the
following findings, with which the Czech Republic fully concurs: 12
"Uncertainty over its future status has become a major obstacleto Kosovo's democratic
development, accountability, economic recovery and inter-ethnie reconciliation. Such
uncertainty only leads to further stagnation, polarizing its communities and resulting in
social and political unrest. Pretending otherwise and denying or delaying resolution of
Kosovo's status risks challengingnot only its own stabilitybut the peace and stability of
the region as a whole." 13
Due to the specific situation in the UNSC, the approval of the Special Envoy's
recommendation was not possible. Another effort by a troika of the Contact Group, consisting
of the European Union, the United States and the Russian Federation, to facilitate an
agreement between Belgrade and Pristina failed. In early December 2007, the troika
concluded that the.parties were unable to reach an agreement on the final status of Kosovo. 14
After more than two years of intensive negotiations, it had become clear that a negotiated
settlement was not possible. On 17 February 2008, the Provisional Institutions of Self
Govemment declared the independence of Kosovo and accepted the Special Envoy's
15
Comprehensive Proposai for the Kosovo Status Settlement as binding.
Following the declaration of independence, the authorities of Kosovo continuously took steps
towards asserting Kosovo's statehood. The Assembly of Kosovo passed a constitution that
entered into force on 15June 2008, and a Foreign Ministry, as well as a Ministry for Security
8
See the report of Kai Eide in the annex to the Letter dated 7 October 2005 from the Secretary-General to the
President of the Security Council, UNDoc S/2005/635 (2005). Approval of the conclusions by the UNSC
9ollowed on 24 October 2005, UNDocS/PRST/2005/51 (2005).
Report of the Special Envoy of the Secretary-General on Kosovo's future status, annex to the Letter dated 26
March 2007 from the Secretary-General addressed to the President of the Security Council, UNDoc S/2007/168.
1°Comprehensive Proposai for the Kosovo Status Settlement, UNDoc S/2007/l 68/Add.l.
11UNDoc S/2007/168.
12Statement of the Ministry of Foreign Affairs of the Czech Republic on the Proposai of the Final Status of
13sovo, 6 February 2007.
14UNDoc S/2007/168, para 4.
Report of the Europea:nUnion/United States/Russian Federation Troïka on Kosovo, enclosure to the Letter
dated 10 December 2007 from the Secretary-General to the President of the Security Council, UNDoc
S/2007/723.
15Declaration oflndependence of 17February 2008, in particular paras 1, 3, and 12.
4Forces, was established; furthermore, the Kosovo authorities announced the opening of
16
diplomatie missions abroad and applied for membership in some international organizations.
More than a quarter of UN Member States, including the Czech Republic, recognized Kosovo
as an independent State. Despite these developments, there are still many States that have not
yet recognized Kosovo, some ofthem actively opposing Kosovo's independence.
The Czech Republic, however, believes that there is no other option than to accept the
independence of Kosovo as a political reality. The status negotiations have clearly shown that
a retum to any status quo ante is not realistic. At the same time, the absence of a final
settlement of the status issue would constitute a serious threat for peace and stability in the
region, as has been pointed out by the Special Envoy.
In this particular situation, the request for an advisory opinion has adverse effects, as it
artificially casts doubt on Kosovo' s status as an independent State. A decision by the Court to
proceed to the substance of the question posed and to render an advisory opinion would
contribute to this protraction, as the factual and legal issues involved need appropriate time
for consideration. No matter what the Court's decision will be, the status of Kosovo will not
change. 17In addition, the Court cannot decide on Kosovo' s status through an advisory opinion
since advisory opinions are not legally binding.
The Czech Republic believes, therefore, that the request for, and the issuance of, an advisory
opinion has adverse effects on the democratic and economic development of Kosovo and on
the peace and stability of the whole region, 18and that this constitutes a compelling reason for
the Court to decline to give an answer to the question posed.
Finally, regardless whether or not the unilateral declaration of independence of Kosovo is in
accordance with international law, such concrete determination will have no legal effect
either on the status of Kosovo or generally in international law. The Czech Republic is of the
view that an opinion by the Court would provide no practical assistance to the UNGA in
carrying out its functions under the Charter.
16 Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo of 24
17vember 2008, UNDoc S/2008/692; see also the Report of 18March 2009, UNDoc S/2009/149.
As the US and UK delegates put it in the UNGA debate, "Kosovo's independence is irreversible" and "will
remain a reality'' (Official Records of the United Nations General Assembly, 63rd session, 22nd plenary
meeting, 8 October 2008, UNDoc A/63/PV.22, p 5 and 2 respectively).
18In the UNGA debate before and after the adoption of resolution A/RES/63/3, States abstaining or voting
against the resolution have voiced similar views on adverse effects on the democratic and economic development
of Kosovo and on the peace and stability of the whole region as the Czech Republic in this writtèn statement,
while those States in favor did not present substantive arguments (UNDoc A/63/PV.22). References ofa general
kind to the need for legal clarity, the peaceful settlement of disputes, and the rule of law are far frorn sufficient to
counter the specific arguments on adverse effects put forward in the UNGA debate and in this written staternent.
5 III.
ISSUES OF SUBSTANCE
Should the Court, in spite of the above-stated arguments, decide to issue an advisory opinion
on the question asked by the UNGA, the Czech Republic would like the Court to considerthe
following points.
At the outset, it is necessary to identify the legal issues involved. The Court has made clear in
its jurisprudence that, notwithstanding the specific formulation of the request, it must
ascertain "the legal questions really in issue" and take into consideration "all the pertinent
19
legal issues involved." This implies, however, that the Court may not go beyond these
pertinent legal issues. The Court itself affirmed that its considerations are confined to the
question as formulated by the requesting organ, and further held that it "would only examine
other issues to the extent that they might be necessary to its consideration of the question put
20
to it."
Although the unique case of Kosovo involves many legal questions, the UNGA decided to
confine its request to whether or not the unilateral declaration of independence by the
Provisional Institutions of Self-Government of Kosovo is in accordance with international
law. Itwas highlighted in the UNGA debate that the question as formulated "represents the
lowest common denominator of the positions of the Member States [...] and hence there is no
need for any changes or additions." 21 Consequently, the considerations of the Court are
strictly limited to this precise question as set out in resolutionA/RES/63/3.
According to that question, only the declaration of independence is at issue. It is thus
necessary first to examine the nature of such a declaration. Any declaration of independence
is an expression of will of a people or merely of a group, and, as such, of a political nature.
The declaration alone cannot violate international law; any possible violation would rather
steni :fromactions relating to the realization or putting into practice of the declaration, such as
the use of force. It is not necessary to examine whether any such action is related to the
declaration of independence at issue in the present case, as the question put to the Court is
confined to the declaration itself. In that sense, the Czech Republic contends that the
declaration of independence by the Provisional Institutions of Self-Government of Kosovo,by
its very essence, cannot violate international law, and, thus, the Court may end its
examination at this point.
If the Court does not follow this argument and sees the declaration of independence itself as
potentially capable of violating international law, the Czech Republic would like to point out
the limits imposed by the particular question asked by the UNGA. The question is put
positively, as it asks for accordancewith international law of the declaration of independence.
This, however, does not imply that any positive rule in international law allowing for the
declaration of independence has to be found. The task is rather to ask whether there is any
19Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion of 20
December 1980, ICJ Reports 1980, p 88-89,with references to previous jurisprudence. For legal issues
prejudicial to the reply to the question seet consequencesfor States of the continued presence of South
Africa in Namibia (South West Africa) notwithstanding Security Council resolution 276 (1970),Advisory
Opinion of21 June 1971, ICJ Reports 1971,p 45.
2°Construction of a waladvisory opinion, ICJ Reports 2003, p 160.
21Introduction of the draft resolution by the representative of the Republic ofSerbia, UNDoc A/63/PV.22, p 2.
6 rule in international law prohibiting the declaration of independencél.The Czech Republic,
thus, believes that the Court is strictly limited to identifying those international legal norms
that could have been violated by the declaration of independence, and to deciding whether
such norms were in fact violated.
lt has to be examined, therefore, whether there is any norm in general international law
prohibiting a declaration of independence, and whether the declaration violated any other
existing specific international norms applicable to the case of Kosovo. Regarding the latter,
the UNSCR 1244 is the most relevant norm to be analyzed;
General International Law
It is widely recognized in doctrine that contemporary international law does not know any
rule prohibiting a declaration of independence or, more generally, a secession. International
law neither prohibits nor promotes secession; it does, however, take new factual situations
into account and accepts the political reality of a successfu.lsecession. In that sense, secession
22
is considered "a legally neutral act the consequences ofwhich are regulated internationally."
Since the declaration of independence, which alone is at issue here, is a part in the process of
secession and secession is not prohibited by international law, the Czech Republic concludes
that the declaration of independence by the Provisional Institutions of Self-Govemment of
Kosovo does not violate international law.
As the Republic of Serbia contended, specifically, that the ''unilateral secession" is a violation
23
of its territorial integrity , the Czech Republic sees the need to make two remarks in that
respect:
First, the principle of territorial integrity is an essential element of state sovereignty, but it is
not an absolute rule and should be understood in the light of recent developments in
24
international law.
Second, the principle of territorial integrity protects the territory and international borders of
independent States, particularly against the threat or use of force and intervention by other
States. This principle is well established in international law and, inter alia, reflected in
25
Article 2 (4) of the UN Charter as well as in several landmark UNGA resolutions , and in the
Final Act of the Conference on Security and Co-operation in Europe. But in the case of
secession, the events leading thereto develop primarily within the :frontiersof the original
22
J. Crawford, The Creation of States in International Law, Second Edition, Oxford 2006, p 390. In the same
sense see C. Haverland, Secession, in EPIL vol IV, p 354-359. For national jurisprudence see in particular
Reference in re Secession ofQuebec, 1998,2 SCR217.
23Letter dated 17 February 2008 from the Permanent Representative of Serbia to the United Nations addressed
to the Secretary-General, UNDoc A/62/703-S/2008/111.
24
E.g., 2005 World Summit Outcome (A/RES/60/1), para 138-139; Implementing the responsibility to protect.
25port of the Secretary-General of 12 January 2009, UNDoc A/63/677.
E.g. the Declaration on Principles of International Law concerning Friendly Relations and Co-operation
among States in accordance with the Charter of the United Nations (resolùtion 2625 (XXV)), the Definition of
Aggression (resolution 3314 (XXIX)), the Declaration on the Inadmissibility of Intervention in the Domestic
Affairs of States and the Protection of Their Independence and Sovereignty (resolution 2131 (XX)), and the
Declaration on the Inadmissibility of Intervention and Interference in the Internai Affairs of States
(A/RES/36/103).
7 State. Unless there is a use of force against or an intervention by another State into the affairs
of the original State, secession cannot be a breach of the latter's territorial integrity.
In conclusion, the declaration of independence by the Provisional Institutions of Self
Government of Kosovo did not and does not violate any rule of general international law,
including the principle of territorial integrity.
United Nations Security Council Resolution 1244 (1999)
The events leading to secession, in the specific case of Kosovo, must been seen in a broader
international context, in particular with regard to the involvement of the international
community. The UNSC considered the situation in Kosovo to be a threat to international
peace and security in UNSCR 1160 (1998) and, after the NATO-intervention, established an
international administration by UNSCR 1244. In the present case, it is, therefore, necessary to
examine whether the unilateral declaration of independence is in con:flictwith the pertinent
UNSC resolutions, in particular UNSCR 1244.
With respect to the question asked by the UNGA, the following parts of the UNSCR 1244 are
relevant:
"The Security Council, ...
Reaffirming the commitment of all Member States to the sovereignty and
territorial integrity of the Federal Republic of Yugoslavia and the other States of
the region, as set out in the Helsinki Final Act and annex 2, ...
1. Decides that a political solution to the Kosovo crisis shall be based on the
general principles in annex 1 and as further elaborated in the principles and other
required elements in annex 2; ...
3. Demands in particular that the Federal Republic of Yugoslavia put an
immediate and verifiable end to violence and repression in Kosovo, and begin and
complete verifiable phased withdrawal from Kosovo of all military, police and
paramilitary forces according to a rapid timetable, with which the deployment of
the international security presence in Kosovo will be synchronized; ...
11. Decides that the main responsibilities of the international civil presence will
include:
a. Promoting the establishment, pending a final settlement, of substantial
autonomy and self-government in Kosovo, taking full account of annex 2 and of
the Rambouillet accords (S/1999/648); ...
e. Facilitating a political process designed to determine Kosovo's future
status, taking into account the Rambouillet accords (S/1999/648);"
In. order to determine whether the unilateral declaration of independence is in violation of
UNSCR 1244, a thorough interpretation of the resolution is necessary. For that purpose, the
rules of interpretation as laid down in Articles 31 to 33 of the Vienna Convention on the Law
of Treaties (hereinafter the "Vienna Convention"), accepted by this Court as reflecting
8 customary international law, 26may be applied mutatis mutandis. Such analogical application
of the Vienna Convention to the interp27tation of UNSC resolutions has been suggested by
leading experts of international law. Furthermore, this approach has also been ta.kenby the
International Criminal Tribunal for the former Yugoslavia in the interpretation of its Statute. 28
The general rule of interpretation stipulated in Article 31 (1) of the Vienna Convention sets
out four basic interpretative methods: interpretation in good faith, textual interpretation,
systematic interpretation and teleological interpretation. Article 31 (3) of the Vienna
Convention contains three additional criteria that should be ta.keninto account when a treaty
is interpreted. Although not all these criteria can be fully applied in case of interpretation of a
UNSC resolution, the subsequentpractice test may be used in this case as well.
First, the good faith principle, which is also a "general principle of law recognized by the
civilized nations," is quite elusive. According to the jurisprudence, the interpretation in good
29
faith shouldnot lead to "a result which would be manifestly absurd or unreasonable." In this
respect, the interpretation, that UNSCR 1244 does not prohibit the Provisional Institutions of
Self-Govemment of Kosovo from unilaterally declaring the independence, is - in the Czech
Republic's view neither manifestly absurd, nor unreasonable.
Second, the textual interpretation is focused on the "ordinary meaning to be givento the terms
of the treaty", in this case UNSCR 1244. In this regard, it should be pointed out that in the
preambular part of UNSCR 1244, the UNSC was "[r]eaffirming the commitment of all
Member States to the sovereignty and territorial integrity of the Federal Republic of
Yugoslavia". Wbile this sentence constitutes a mere declarative statement, in the core
provisions ofUNSCR 1244,the UNSC used much more categorical expressions. The UNSC,
e.g., in paragraph 1, "[d]ecides" what the basis for a political solution should be, and, in
paragraph 3, "[d]emands" the FRY to end violence and repression in Kosovo and to
withdraw its forces from Kosovo. As such, the preambular part of UNSCR 1244 does not
create any new obligations under international law for the Member States or the Provisional
Institutions of Self-Govemment of Kosovo. Furthermore, the UNSCR 1244 reaffirms the
sovereignty and territorial integrity of the FRY - a State which, meanwhile, ceased to exist -
and it is now Serbia that claims sovereignty over the territory of Kosovo. Finally, the UNSC
does not contain in any other paragraph of the UNSCR 1244 a stronger wording that would,
e.g., guarantee the sovereignty and territorial integrity of the FRY over Kosovo for any
situation that may occur in the future.
Third, according to the systematic interpretation, the terms of UNSCR 1244 should be
interpreted "in their context". By the context, the Vienna Convention understands in Article
31 (2), inter alia,the text of a treaty, including its preamble and annexes. In the case of
UNSCR 1244, it is crucial to read the declaration reaffirming the sovereignty and territorial
integrity of the FRY together with paragraph 1, that provides for the principles on which "a
political solution to the Kosovo crisis" shall be based on, paragraph 1l(a); that regulates the
powers of the international civil presence "pending a fmal settlement," and paragraph 11(e),
26The Territorial Dispute Case, Libyan Arab Jamahiriya v. Chad, Judgment of 3 February 1994, ICJ Reports
1994, p 21-22 at para 41.
27M C. Wood, The Interpretation of Security Council Resolutions, Max Planck Yearbook of United Nations
Law, 1998; p 85-86.
28Prosecutor v. D. Tadié, Case No. IT-94-l-AR72, Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction, 2 October 1995, paras 71-93.
29A. Aust, Modem Treaty Law and Practice, Second Edition, Cambridge 2007, p 234.
9 which gives to this presence the responsibility to facilitate "a political process designed to
determine Kosovo's future status". In the context of these provisions, it is clear that the UNSC
confinned the sovereignty and territorial integrity to the FRY only for the duration of the
political procèss between its Government and the Provisional Institutions of Self-Government
of Kosovo. Therefore, until 17 February 2008, the UNSCR 1244 provided to both parties
almost nine years to agree on a negotiated solution. This political process was definitely over
at the end of 2007. UNSCR 1244 does not impose on the parties of the dispute an obligation
to negotiate for an indefinite period of time without any prospect of an agreed solution. As the
political process ended, the declaration reaf:finning the sovereignty and territorial integrity of
the FRY is no longer relevant for answering the question asked by the UNGA.
Fourth, the teleological interpretation is based on the "object and purpose" of the terms of the
treaty, in this case UNSCR 1244. One of the objectives of UNSCR 1244 was to create an
international legal framework for the political process between the authorities in Belgrade and
Pristina, rather than to decide on the final solution of the Kosovo status. If the UNSC had
wanted to decide on the matter and eliminate one of the solutions, such as the independence of
Kosovo, the UNSC would have surely included a specific provision into UNSCR 1244, as it
did, e.g., in its resolutions related to the situation in Cyprus. On 29 June 1999,just a few days
after the adoption of the UNSCR 1244, the UNSC approved UNSCR 1251 including a clear
30
cut position on a Cyprus settlement. This wording has been repeatedly used by the UNSC in
other resolutions on the situation in Cyprus before and after the adoption of UNSCR 1251.
Nevertheless, in the case of UNSCR 1244, the UNSC did not approve a similar paragraph
excluding a unilateral solution, even though the members of the UNSC did probably not
consider this option as the preferred one.
Fifth, the subsequent practice by UNMIK and some Member States in the region is important
also for understanding UNSCR 1244. Even before 17 February 2008, the sovereignty of the
FRY and its successor States was understood restrictively, e.g., with respect to the conclusion
of international agreements applicable on the territory of Kosovo. It has been UNMIK's
consistently held position that, pursuant to UNSCR 1244, the situation ·of Kosovo, under
interim administration, is sui generis and that treaties to which Serbia is a party are not
automatically binding in Kosovo, the applicability of such treaties in respect of Kosovo being
a matter for the UNMIK to determine. The only treaties that were binding in Kosovo were the
human rights instruments listed in Chapter 3 of Regulation No. 2001/9 on a Constitutional
Framework for Provisional Self-Government in Kosovo promulgated by the Special
Representative of the Secretary-General. In fact, the UNMIK even concluded agreements on
the transfer of sentenced persons with Albania, FYROM and the FRY. It seems, therefore,
that in practice, the reaffinnation of the Yugoslav sovereignty over Kosovo, as stated in
UNSCR 1244, was understood as a mere declaration by some Member States, including the
FRY itself.
As the meaning ofUNSCR 1244,resulting from the basic interpretative methods set out in the
Vienna Convention, neither "leaves the meaning ambiguous or obscure," nor "leads to a result
30
The relevant part of the UNSCR 1251 reads as follows: "The Security Council ... 11. Reaffirms its position
that a Cyprus settlement must be based on a State of Cyprus with a single sovereignty and international
personality and a single citizenship, with its independence and territorial integrity safeguarded, and comprising ·
two politically equal communities as described in the relevant Security Council resolutions, in a hi-communal
and bi-zonal federation, and that such a settlement must exclude union in whole or in part with any other country
or any form of partition or secession;"
10which is manifestly absurd or unreasonable," 31 the Czech Republic does not consider it
necessary to enter into the analysis of thetravaux préparatoires of this resolution.
The Czech Republic believes, therefore, that a thorough interpretation ofUNSCR 1244on the
basis of the methods set out in the Vienna Convention has to lead to the conclusion that
UNSCR 1244 does not prohibit the Provisional Institutions of Self-Government of Kosovo to
unilaterally declare independence without the consent of the Republic of Serbia.
While UNSCR 1244 remains the main legal basis for answering the question asked by the
UNGA, it should also be taken into account that the relevant developments of international
law did not end by 17 February 2008, when the unilateral declaration of independence was
made. In this context, the Czech Republic would like to draw the attention of the Court to the
fact that the UNSC has not passed any resolution on the legality of this act, as it did before in
the cases of Katanga, Rhodesia and the Turkish Republic ofNorthern Cyprus.
First, when Katanga attempted to break away from the Republic of Congo, the UNSC passed
the resolution 169 (1961) of 24 November 1961 by which it "[d]eclares that all secessionist
activities against the Republic of Congo are contrary to the Loi fondamentale and Security
Council decisions and specifically demands that such activities which are now taking place in
Katanga shall cease forthwith."
With regard to the second case, after the Government of Ian Smith issued its unilateral
declaration of independence of Rhodesia on 11 November 1965, the UNSC reacted on the
very next day. The UNSC, by its resolution 216 (1965) of 12 November 1965, decided not
only to "condemn the unilateral declaration of independence made by a racist minority in
Southern Rhodesia," but also to "call upon all States not to recognize this illegal racist
minority régime".
Third, when the Turkish Republic of Northem Cyprus unilaterally declared its independence
on 15 November 1983, the UNSC responded by its resolution 541 (1983) of 18 November
1983. According to this resolution, the UNSC, inter alia, "[c]onsiders the declaration referred
to above as legally invalid and calls for its withdrawal" and, furthermore, "[c]alls upon all
States not to recognize any Cypriot State other th.anthe Republic of Cyprus".
Until April 2009, when the Czech Republic finalized its written statement to the Court, the
UNSC has not, however, taken any action in relation to the unilateral declaration of
independence issued by the Provisional Institutions of Self-Government of Kosovo. This is, in
view of the Czech Republic, a clear signal that the UNSC does not consider this unilateral
declaration of independence to be a violation of international law.
31Vienna Convention on the Law ofTreaties, signed at Vienna, 23 May 1969, Article 32.
11 IV.
CONCLUSIONS
In conclusion, the Czech Republic is of the view that the unilateral declaration of
independence by the Provisional Institutions of Self-Government of Kosovo does not violate
any existing rule of international law.
The Czech Republic believes that, after the failure of the status negotiations, an independent
Kosovo, initially under international supervision, is the only viable way to realize peace,
stability and economic prosperity for the whole region. Any delays in this regard should be
avoided. In that sense, the Czech Republic respectfully asks the Court to exercise its
discretion and decline to give an advisory opinion.
Finally, the Czech Republic would like to stress again the importance of achieving lasting
peace, stability and economic prosperity in the Western Balkans, a region that has been
tormented by conflict for almost two decades. It further reaffirms its support for a European
perspective for all countries of the region.
12
Written Statement of the Czech Republic