The Hague, April 16 2009
.,
,/;,
Your Excellency,
With reference to your letter dated 20 October 2008, by which you invited Member
States of the United Nations to present their Written Statements on the question of the
Accordance with International Law of the Unilateral Declaration of lndependence by
the Provisional Institutions of Self-Govemment of Kosovo to the International Court
of Justice, which had been requested to give an advisory opinion on the
above-mentioned question by the United Nations General Assembly through its
Resolution A/RES/63/3 adopted on 8 October 2008, I am instructed by my
Govemment to forward herewith the Written Statement of the Peopl:Republic of
China to the International Court of Justice on the Issue of Kosovo.
Please find attached onea.rdcopy and one electronic copy of the above-mentioned
Written Statement in English language.
I avail myself of this opportunity to renew to Your Excellency the assurances of my
highest consideration.
ZHANGJun
Ambassador Extraordinary and Plenipotentiary
of the Pepple's Republic of China to
the Kingdom of the Netherlands
H.E.Mr. Philippe Couvreur,
Registrar
International Court of Justice
Peace Palace
The Hague Written Statement of the People's Republic of China to the
International Court of Justice on the Issue of Kosovo
The Chinese Government,
Recalling Resolution A/RES/63/3 adopted by the United Nations
General Assembly on 8 October 2008, which requests that the
International Court of Justice (ICJ) render an advisory opinion on the
following question: "Is the unilateral declaration of independence by the
Provisional Institutions of Self-Government of Kosovo in accordance
with international law?";
Takingnote of the order issued by ICJ on 17October 2008 inviting the
United Nations and its Member States to present written statements on.
the above-mentioned question to ICJbefore 17April 2009;
Acknowledging receipt of the letter dated 20 October 2008 from ICJ
Registrar to the Chinese Ambassador to the Kingdom of the Netherlands
on the above-mentioned matter;
Wishes to make the following written statement:
I. UN Security Council Resolution 1244 (1999) bas been an
authoritative basis recognized by the international community for the·
handling of the issue of Kosovo's status. Security Council resolutions
should be complied with.
(a) UN Security Council Resolution 1244 (1999) sets out a political
solution to the Kosovo issue and explicitly indicates that the goal of the
Resolution is to enable Kosovo to "enjoy substantial autonomy within the 1
Federal Republic of Yugoslavia" • The Resolution reaffirms, in several
places, the commitment to the "sovereignty and territorialintegrity of the
Federal Republic ofYugoslavia and the other States of the region" 2• This
Resolution serves as the political and legal basis for handling the issue of
Kosovo's status.
(b) UN Security Council Resolution 1244 (1999) was adopted in
accordance with Chapter VII of the Charter of the United Nations. Article
49 of the Charter stipulates that "the Members of the United Nations shall
join in affording mutual assistance in carrying out the measures decided
upon by the Security Council". Given the important status of UN Security
Council resolutions, China bas maintained that Parties concerned should
reach agreement on a negotiated solution acceptable to all sides within the
framework of Resolution 1244 (1999). Ali efforts and actions aimed at
solving the issue of Kosovo's status should comply with the relevant
requirements of Resolution 1244 (1999), unless a new resolution is
adopted by the Security Council in this regard. Any attempt to take
unilateral moves or impose a solution will only do more harm to the
efforts to bring a smooth solution to the relevant issue.
II. Respect for State sovereignty and territorial integrity is a
fundamentai principle of international law.
(a) The principle of State sovereignty is a fundamental principle of
international law upon which other principles of international law rest. It
is also the primary principle of the Charter of the United Nations, which
provides that "the Organization is based on the principle of the sovereign
3
equality of all its Members" • The Declaration on Principles of
International Law concerning Friendly Relations and Co-operation among
States in accordance with the Charter of the United Nations adopted by
the United Nations General Assembly on 24 October 1970 also sets forth
the "principle of sovereign equalityof States" and statesthat "in particular,
sovereign equality includes the following elements... (d) the territorial
integrity and political independence of the State are inviolable" 4• All
countries should respect sovereignty and territorial integrity of one
another in international relations.
(b) The principle of respect for State sovereignty and territorial
integrity has been extensively and repeatedly invoked by the United
1 Resolution 1244 (1999), para. 10 andAnnex 2, para.5.
2 The Preamble of the Resolution, para. 10, Annex 1,para. 6 andAnnex 2, para. 8.
3 The Charter of the United Nations, Article 2.
4 ResolutionA/RES/2625 (XXV) adopted by the United Nations General Assembly,the Section on "The principle
of sovereign equality of States", para. 2.
2Nations and other international and regional organizations and in
multilateral and bilateral exchanges of States, and has constituted the
most important principle of international law and the basic norm
governing international relations. 5
(c) International courts have reaffirmed and invoked the principle of
respect for State sovereignty and territorial integrity on many occasions.
The Permanent Court of Arbitration stated in its award on the Island of
Palmas Case (orMiangas) (United States of America v. TheNetherlands)
that, the principle of territorial sovereignty is "the point of departure in
settling most questions that concern international relations ...with which
6
almost all international relations are bound up." ICJ stated in its
judgment on the Coifu Channel Case (United Kingdom of Great Britain
and Northern Ireland v. Albania) that "between independent States,
respect forterritorial sovereignty is anessential foundation of international
relations." 7 This was reaffirmed in the ICJ judgment on the Case
Concerning Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States of America), which referred to
"the duty of every State to respect the territorial sovereignty of others" and
"...the fundamental principle of State sovereignty, on which the whole of
8
international law rests..."
(d) The Five Principles of Peaceful Coexistence, which were jointly
initiated by China, India and Myanmar(formerly Burma) in 1954 and have
ever since been consistently upheld, also contain mutual respect for
9
sovereignty and territorial integrity.
m. The principle of self-determination of peoples bas specifically
defined contents and scope of application.
Although the principle of self-determination has become a basic
principle of international law, it applies within specific limits, primarily
restricted to situations of colonial rule or foreign occupation. This has
been accepted by States as, opiniojuris, legally binding international law
and there have been numerous evidential international practices to that
effect since World War II. The right to self-determination is different in
5 See footnotes 4, 9, 19, 20, 21, 22, 23 and 24, and a large number of other UN documents and multilateral and
bilateral treaties and declarations.
6Reportsof InternationalArbitralAwards,UniteVolume II, pp. 838 and 839.
1ReportsofJudgments,Adviso,yOpinions and Orders,I.Cp. 35.9,
8ReportsofJudgments,AdvisoryOpinions and Orders,I.Cp. 106, para. 202; p. 111,para. 213; and p.
133,para. 263.
9 TheAgreementbetweenthe PeosRepublic of ChinaandtheRepublicofJndiaon TradeandIntercourse
betweeT~bet egionof ChinaandIndPreamble; see alsJointStatementof thePrimeMinisters of China
andIndi1ssuedon 28 June 1954, para. 3JointStatementofthePrimeMinisters of ChinaandMyanmar
issued on the next day,para. 3.
3nature from the so-called right of secession. The exercise of the right of
self-determination shall not undermine the sovereignty and territorial
integrity ofthe State concerned.
(a) The principle of self-determination became a principle of
international law inthe course of decolonization movement. It was against
such a historical background that the right to self-determination was
written into the Charter of the United Nations 10,and then the Declaration
11
on the Granting of Independence to Colonial Countries and Peoples and
the Declaration on Principles of International Law concerning Friendly
Relations and Co-operation among States in accordance with the Charter
of the United Nations 12 adopted by the United Nations General Assembly
on 14December 1960 and 24 October 1970respectively. The right to self
determination has always been applied to situations of colonial ru.le or
foreign occupation. Cases where such a right was exercised and endorsed
by the United Nations were all related to territories under colonial ru.leor
foreign occupation, such as Southern Rhodesia, Namibia, Western Sahara,
East Timor,African Territories under Portuguese administration, Palestine
andPacifie islands (Trust Territory). 13
ICJ applied or invoked the right to self-determination in several cases,
including "Legal Consequences for States of the Continued Presence of
South Africa in Namibia (South West Africa) notwithstanding Security
Council Resolution 276 (1970), Advisory Opinion", "Western Sahara,
Advisory Opinion", "Case Concerning East Timor (Portugal v.Australia),
Judgment," and" Legal Consequences of the Construction of a Wallin the
Occupied Palestinian Territory, Advisory Opinion". In the above
mentioned cases, the Court recognized the right to self-determination of
the peoples of Namibia, Western Sahara, East Timor and Palestine, who
were then under colonial ru.leor foreign occupation. In the Namibia Case,
the Court stated that "the subsequent development of international law in
regard to non-self-governing territories, as enshrined in the Charter of the
United Nations, made the principle of self-determination applicable to all
of them". 14 That was reiterated many times by the Court in the Western
Sahara Case 1 ,East Timor Case 16,and Construction of a WallCase 17•The
Court further stated in the WesternSahara Case that "the principle of self-
10The Charter of the United Nations, Article l, para. 2 and Article 55.
11AdoptedinA/RES/1514(XV).
12See footnote 4.
13SeeA/RES/1755 (XVII), A/RES/2138 (XXI), A/RES/2151 (XXI), A/RES/2379 (XXIII), A/RES/2383 (XXIII),
A/RES/2795 (XXVI), A/RES/3236 (XXIX), A/RES/3292 (XXIX), A/RES/58/163, S/RES/180 (1963), S/RES/218
(1965), S/RES/183 (1963), S/RES/301 (1971), S/RES/384 (1975), S/RES/621 (1988) and S/RES/683 (1990).
15Reports ofJudgments, Adviso,y Opinions and Orders, /.C.J. 1971, p.31, para. 52.
16Reports ofJudgments, Advisory Opinions and Orders, /.C.J. 1975, p.31, para. 54.
11Reports ofJudgments, AdvisoryOpinions and Orders, 1.C.J. 1995, p.102, para. 29.
Reports of Judgments, Advisory Opinions and Orders, /.C.J. 2004, pp. 171 and 172, para. 88.
4determination as a right of peoples, and its application for the purpose of
bringing all colonial situations to a speedy end, were enunciated in the
Declaration on the Granting of Independence to Colonial Countries and
Peoples, GeneralAssembly Resolution 1514 (XV)." 18
(b) Even after colonial rule ended in the world, the scope of
application of the principle of self-determination has not changed. This
can be seen in some important documents adopted by the United Nations
inrecent years.
The United Nations Millennium Declaration adopted by the General
Assembly on 8 September 2000 states that "we rededicate ourselves to
supportall efforts to uphold the sovereignequality of all States, respect for
their territorial integrity and political independence, ... the right to self
determination of peoples which remain under colonial domination and
foreign occupation, non-interference inthe internai affairs of States ..." 19
The World Summit Outcome adopted by the United Nations General
Assembly on 24 October 2005 states that "we rededicate ourselves to
support all efforts to uphold the sovereign equality of all States, respect
their territorial integrity and political independence, ... the right to self
determination of peoples which remain under colonial domination and
20
foreignoccupation ... "
(c) In the exercise of the right to self-determination, the territorial
integrity of a sovereign State should be respected rather than undermined.
A series of important international and regional documents, while
affirming the right to self-determination, all provide for respect for State
sovereignty and territorial integrity. The above principle is also reflected
in Statepractices.
The Declaration on the Granting of Independence to Colonial
Countries and Peoples states that "any attempt aimed at the partial or total
disruption of the national unity and the territorial integrity of a country is
incompatible with the purposes and principles of the Charter of the United
Nations." 21
The Declaration on Principles of International Law conceming
Friendly Relations and Co-operation among States in accordance with the
Charter of the United Nations states that "nothing in the forgoing
18Reports ofJudgments, AdvisoryOpinions and Orders, IC.J. 1975, p. 31, para. 55.
19UN General Assembly Resolution A/RES/55/2, sec. 1,para. 4.
20UN General Assembly ResolutionA/RES/60/1, sec. 1, para. 5.
21See footnote 11,para. 6.
5paragraphs shall be construed as authorizing or encouraging any action
which would dismember or impair, totally or m part, the. territorial
integrityorpolitical unity of Sovereignand independent States conducting
themselves m compliance with the principles of equal rights and self
determination of peoples as described above and thus possessed of a
government representing the whole people belonging to the territory
22
withoutdistinctionas to race, creedorcolour."
The Helsinki Final Act passed by the Conference on Security and Co
operation m Europe m 1975 states that the participating States "will
respect the equal rights of peoples and their right to self-determination,
acting at all timem conformity with the purposes and principles of the
Charterof the United Nations and with therelevant norms of international
23
law, including those relating to territorial integrity of StatesThe
Charterof Paris for aNew Europe adoptedby the Conference m 1990has
similarprovisions.4
In addition, the judgment of the Supreme Court of Canada on the
Secession of Quebec stated that "the international law principle of self
determination has evolved within a framework of respect for the territorial
integrity of existing states. The various international documents that
supportthe existence of a people's right to self-determination also contain
parallel statements supportive of the conclusionthat the exercise of such a
right must be sufficiently limited to prevent threats to an existing state's
25
territorialintegrityor the stabilityof relationsbetween sovereign states."
(d) The self-determinatiom international law is differintnature
from secession from a sovereign State by its part. Secession is not
recognized by international law and has always been opposed by the
internationalcommunity of States.
United Nations Secretary-General U Thant said, when addressing the
secession of Katanga from the Congo and of Biafra from Nigeria, at a
press conferencem Dakar, Senegal, on 4 January 1970 that "as far as the
question of secession of a particular section of a Member State is
concerned, the United Nations' attitude is unequivocable. As an
international organization, the United Nations has never accepted and
does not accept and I do not believe it will ever accept the principle of
2See footnote 4, the Section on "The principle of equal rights and self-determination of peoples", para. 7.
2See "VIII: Equal rights and self-determination ofpeoples" of the above document. Available at
2Available at http://www.osce.org/l/4045_en.pdf.l990/l.
2The Supreme Court of Canada judgment on the "Secession ofQuebec", para. 127.Available at
http://scc.lexum.umontreal.ca//l 998rcs2-217.html.
6secession of a part of its Member State." 26
In a written answer to the Upper House on the question of self
determination for Somalis in Ethiopia as a right to which they are entitled
dated 12 December 1983, the Minister of State from the UK Foreign and
Commonwealth Office said that "it has been widely accepted atthe United
Nations that the right of self-determination does not give every distinct
group or territorial sub-division within a state the right to secede from it
and thereby dismember the territorial integrity or political unity of
sovereign independent states." 27
26
UNMonthly Chronicle,UnitedNations Officeof PublicInformation,Volume.VII, Number 2, February 1970,
2736.
RecordsofUK Houseof Lordsdebate(HL,Deb,vol446, cc94WA).Availableat
http://hansard.millbanksystems.com/writtenanswers/1983/dec/12/somalis-a…
determination#V0446P0 _198312l2_LWA_34.
7
Written Statement of China