AMBASSADE DE ROUMANIE
auprès du Royaume des Pays-Bas
SS,Catsheuvel, 2517 KA, La Haye
Tél.+ 31 70 3543796 Fax:+ 31 70 3541587
http://haga.mae.rol.nl
La Haye, le 14 avril 2009
Monsieur le Greffier,
J'ai l'honneur de vous transmettre ci-joint l'exposé écrit que lamélnieentend
présenter à la Cour dansl'affaire concernant la conformité au droit international de
la déclaration unilatérale d'indépendance des institutions provisoires
d'administration autonome du Kosovo (requête pour avis consultatlf).
Veuillez recevoir, Monsieur le Greffier, l'expression de ma considération la plus
distinguée.
Ca.lin Fabian,
(?~ Jrtir/aL-
A.mba~,;aeur
,.
\J
M. Philippe COUVREUR
Greffier
COUR INTERNATIONALE DE JUSTICEACCORDANCE WITH INTERNATIONAL LAW OF THE
UNILATERAL DECLARATION OF INDEPENDENCE BY
THE PROVISIONAL INSTITUTIONS OF SELF
GOVERNMENT OF KOSOVO
(REQUEST FOR ADVISORY OPINION)
WRITTEN STATEMENT OF ROMANIA TABLE OF CONTENTS
Chapter 1 Introduction 3
Chapter 2 Was the Unilateral Declaration of lndependence by the Provisional
Institutions of Self-Government of Kosovo in Conformity with Relevant United
Nations Security Council Resolutions and other Documents? 6
1.Introduction 6
Il. Resolutions of the organs of the United Nations pertaining to the situation in
Kosovo adopted prior to UN SC Resolution 1244(1999) 11
Ill. United Nations Security Council Resolution 1244(1999) of 10June 1999 16
IV. Competence of the Provisional Institutions of Self-Government in Kosovo 20
V. Conclusion 21
Chapter 3 Serbia's Right to Territorial lntegrity 22
1.Introduction 22
Il. Regulation of the principle of territorial integrity of States 23
A. Documents of universa! significance 24
B. Documents of regional significance 26
C. Conclusion 29
Ill. The case of Serbia 29
IV. Conclusion 31
Chapter 4 Does Kosovo Have a Right to Self-Determination
lmplying Secession from Serbia? 32
1.Secession in international law 32
Il. Right of peoples to self-determination - the rule 33
Ill. Right of peoples to self-determination - the exception 39
Chapter 5 Conclusions 46
2 Chapter 1
Introduction
1. On 8 October 2008, the General Assembly of the United Nations adopted Resolution
NRES/63/3 by which it requested the International Court of Justice to render an advisory
opinion on the question "ls the unilateral declaration of independence by the Provisional
Institutions of Self-Government of Kosovo in accordance with international law?"
2. The Resolution was adopted by the General Assembly with 77 votes in faveur, 6 votes
against and 74 abstentions 1; Romania was one of the States that voted in faveur of the said
Resolution; it explained its vote with the following statement:
"[...] Compliance with international law is the very essence of our Organization
and the matrix on which we strive to build international peace, stability and
security. Draft resolution N63/L.2 contains a question that is fully in line with
the simple right of recourse to international law, to which any United Nations
Member is entitleci to benefit uncier the Charter itself. Romania fully trusts the
acivisory opinions of the International Court of Justice, the main judicial organ
of the United Nations, a prominent promoter and guardian of international law.
We are absolutely sure that its opinion on the question raised in the ciraft
resolution will assist us in rnaking ciecisions in thé future, in particular when
funciamental issues such as the sovereignty and territorial integrity are at stake.
ln the light of those cons2cierations, Remania has decicied to vote in faveur of
ciraft resolution N63/L.2".
3. Following the communication of the Resolution to the Registry of the International Court of
Justice, by an Orcier of 17 October 2008 the Court decided, inter a!ia, that Member States of
the United Nations are likely to be able to furnish information on the question and fixed 17
April 2009 as the time-limit within which written statements may be submitted to it in
3
accorciancewith Article 66 paragraph 4 of the Statute. The Written Statement of Remania is
submitted in accorciance with this Orcier.
4. The Declaration of lnciepencience of the Provisional Institutions of Self-Government of
Kosovo (which will be hereafter referred to in this Written Statement as the DOi) was adopted
1
A/RES/63/3;
2A/63/PV.22, p. 6;
3Orcierof 2008 17October, General List No. 141;
3 on 17 February 2008. The document purported to establish "Kosovo to be an independent
and sovereignstate". 4
5. Following the adoption of the DOi, Romania did not recognize the newly proclaimed
"Republic of Kosovo" as an independent State. The official position of Remania was
expressed in the statement of the President of Romania delivered on 18 February 2008:
"[...] Remania maintains its position and will not recognize the independence of
the province of Kosovo. The situation that we ail witness, announced yesterday
in Pristina - the unilateral declaration of independence of this province - was
generated, in our opinion, by several factors. Firstly, the parties could not reach
a common solution by direct negotiations. Pristina and Belgrade could not
define a common position, which could have been in both parties' advantage.
[...] From our point of view, unrecognizing Kosovo's independence is based not
only on the fact that the two parties could not reach an understanding, but also
on the fact that there is no UN Security Council resôlution to legalize the
declaration of independence made yesterday in Pristina. As well, Remania will
not recognize Kosovo's independence for other reasons such as: granting of
collective rights to [national] minorities, non-respecting the territorial integrity of
Serbia, non-respecting the principle of the inviolability of Serbia's borders and
5
non-respecting the sovereignty of Serbia. [... ]".
6. The Parliamentof Romania also adopted, on 18 February 2008, the following declaration:
"The Parliament of Remania took note with deep concern of the unilateral
procfamation of the independence of the province of Kosovo, on 17 February
2008, by the authorities in Pristina.
[...J
consistent with its position stated in its Declaration of 20 December 2007 in
which it expressed its regrets for the failure of the negotiations for a solution
regarding the status of Kosovo [which should have been] equitable and in
conformity with the international law, the Parliament of Romania does not
recognize the unilateral declaration of independence of the province of Kosovo,
consideringthat the conditions to recognize the new entity are not met.
The Parliament of Remania underlines that the decision of the authorities in
Pristina, as well as the eventual recognition of the unilaterally-declared
independence by other States, cannot be interpreted as a precedent for other
regions or as recognizing or guaranteeing collective rights for national
minorities".
7. As it results from these official statements of the Romanian authorities, Romania's position
of non-recognition of the unilaterally-proclaimed independence of Kosovo is grounded in
international law. After a thorough analysis, Romania came to the conclusion that, in view of
4 Declaration of lndependence of Kosovo of 17 February 2008, avai!able at http://www.icj
5ij.org/docket/files/141/15038.pdf;
18 February 2008 Press Statement of the President of Romania regarding the official position of
[Romania] towards the unilateral declaration of independence of Kosovo province, available on
http://www.presidency.ro/pdf/date/9628_ro.pdf(translationprovided by Romania);
6
Monitorul Oficial (Official Gazette) part. Il, year 176 (XIX), no. 12 of 28 February 2008, p. 3
(translationprovidedby Romania);
4 the specificities of the case, the authorities in Pristina had no right to lawfully declare
independence in a unilateral manner, and the legal conditions for Kosovo to become a State
were not met. Since ex injuria jus non oritur, Remania did not recognize the DOi; nor does it
recognizethe subsequent acts based on the purported statehood of Kosovo.
8. This Written Statement contains the elements of fact and law, which Remania considers
relevantfor this matter and able ta support the Court in reaching its opinion. Since it is aa/
matter which is before the Court, the Written Statement focuses on the elements of /aw, and
covers factual issues only and inasmuch as they are pertinent and necessary for the
appropriate application of international law. This Written Statement answers the question
which is before the Court, as requested by the General Assembly, and is not covering
related, yet different, legal matters.
9. This Written Statement is structured in five chapters. Chapter 2 analyses the lawfulness of
the DOi from the perspective of the relevant applicable UN resolutions, concluding that the
DOi was not in conformity with the provisions of the applicable UN resolutions and that, by
adopting it, the Provisional Institutions of Self-Government of Kosovo went beyond and
against the mandate conferred to them by the relevant regulations adopted by the UN
Mission in Kosovo {UNMiK). Chapter 3 makes an application of the fundamental principles of
international law to the case, as enshrined in applicable universal and European documents,
reaching the conclusion that the DOi disregarded the necessity to uphold international law
principles such as the respect for sovereignty of States or respect for the territorial integrity of
States. Chapter 4 considers the concept of secession in the international law and the
applicability to this case of the right of peoples to self-determination; it concludes that there is
no established right of secession in international law and that the right of peoples to self
determination could not be relied upon to declare Kosovo's independence. Finally, Chapter 5
presents the conclusions reached by Remania, according to which the unilateral declaration
of independence by the Provisional Institutions of Self-Government of Kosovo is not in
accordance with international law.
5 Chapter 2
Was the Unilateral Declaration of lndependence by the Provisional Institutions of Self
Government of Kosovo in Conformity with Relevant United Nations Security Council
Resolutions and other Documents?
1Introduction
1O. The United Nations Security Council approached the situation in Kosovo from two
perspectives. First, in the broader context of putting an end to the conflict in the former
Yugoslavia, the Council adopted Resolution 855 (1993) of 9 August 1993. This resolution
addressed the refusai of the authorities in the then Federal Republic of Yugoslavia (Serbia
and Montenegro) to allow the long-term missions of the Conference on Security and
Cooperation in Europe to continue their activities. The resolution also specifically referred to
the territorial integrity of the Federal Republic of Yugoslavia in the following terms:
"Stressing its commitment to the territorial integrity and political independence
of al! States in the region"
Second, beginning with 1998, the issue of Kosovo was dealt with, specifically, by the Council
in several resolutions adopted under Chapter VII of the United Nations Charter. These
resolutions addressed the issue and set out the framework for a future final settlement of the
serious situation the Council was faced with.
11. lt is important to note here that none of the Security Council resolutions adopted
between 1993 and 1999 have raised the matter of independence of Kosovo, or prejudiced
the territorial integrity of the Federal Republic of Yugoslavia and Serbia. lt is also worth noting
that al! these resolutions contain an affirmation of the commitment of ail UN Member States
to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia.
12. The Security Council, when adopting these resolutions, acted on behalf of the
members of the United Nations as a whole in performing its functions, and therefore its
decisions are binding upon ail member States according to Article 25 of the Charter.
13. As the Court showed in the 21 June 1971 Advisory Opinion concerning the Legal
Consequences for States of the continued presence of South Africa in Namibia (South West
Africa) notwithstanding Security Council resolution 276 (1970):
7
S/RES/855 (1993);
6 "[wJhenthe Security Council adopts a decision under Article 25 in accordance
with the Charter, it is for rnernber States to cornply with that decision, including
those mernbers of the Security Council which voted against it and those
Members of the United Nations who are not members of the Council. To hold
otherwisewould be to deprive this principal organ of its essential functions and
8
powers under the Charter".
14. These resolutions did not bind only the Member States and the organs of the United
Nations (such as the United Nations lnterim Administration Mission in Kosovo), but also the
Provisional Institutions of Self-Government in Kosovo. According to Chapter 2 of the
Constitutional Framework for Provisional Self-Government, promulgated by the Special
Representativeof the Secretary General in Kosovo:
''The Provisional Institutions of Self-Government and their officiais shall:
Exercise their authorities consistent with the provisions of U[nitedJ N[ationsJ
S[ecurity] C[ouncil] R[esolution] 1244 (1999) and the terms set forth in this
9
Constitutional Framework [...]"
As UNSC Resolution 1244 10 recalls previous determinations made by the Council in relation
to the Kosovo situation, more specifically resolutions 1160 (1998) of 31 March 1998 11,1199
(1998) of 23 September 1998, 12 1203 (1998) of 24 October 1998 13and 1239 (1999) of 14
May 1999, this means that these previous documents must a/sa be dul/y observed by the
Provisional Institutions of Self-Government of Kosovo.
15. ln addressing the exact legal content of these resolutions, they should be interpreted
according to the rules contained in the 1969 Vienna Convention on the Law of Treaties, as
reflectingcustomary international law, especially Article 31, which provides:
"1. A treaty shall be interpreted in good faith in accordance with the ordinary
meaning to be given to the terms of the treaty in their context and in the light of
its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise, in
15
addition to the text, including its preamble and annexes...".
8Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West
Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports
91971, p. 54, para. 116;
Regulation 2001/9, published in the UNMIK Official Gazette, available at http://www.unmikonline.org
/regulations/unmikgazette/02english/E2001regs/RE2001 _09.pdf;
10S/RES/1244 (1999);
11S/RES/1160 (1998);
12
13S/RES/1199 (1998);
14S/RES/1203 (1993);
S/RES/1239 (1999);
15United Nations Treaty Series, vol. 1155, p. 340;
7 While the Security Council resolutions are not treaties, still, they corne about as a result of
the agreement between states and therefore it is clearly reasonable to interpret them
16
according to the rules of interpretation provided for by the Vienna Convention . Moreover,
the International Court of Justice has held that the principles of interpretation embodied in
17
Articles 31 and 32 reflect customary international law. Therefore, it is appropriate to take
due account of these principles and rules in order to interpret United Nations Security Council
resolutions.
16. ln the context of assessing the conformity of the DOi with relevant United Nations
Security Council resolutions, the raie of the preambu/ar part of various resolutions is also
important. As the Court showed in its Judgment of 20 June 1959 in the Case concerning
sovereignty over certain frontier lands (Belgium/Netherlands), in the preamble [of a
convention], the interpreter finds the "common intention" [of the Parties]. 18
The Arbitration Tribunal underlined in the Case concerning a dispute between Argentina and
Chile concerning the Beagle Channel:
"Although Preambles to treaties do not usually-nor are they intended to
contain provisions or dispositions of substance-(in short they are not operative
clauses)-it is neverthe/ess generally accepted that they may be relevant and
important as guides to the manner in which the Treaty shou/d be interpreted,
and in order, as it were, to ''situate" it in respect of its abject and purpose" . 19
(emphasis added)
while the European Court of Human Rights showed that:
"... the preamble is generally very useful for the determination of the "abject"
20
and "purpose" of the instrument to be construed".
16As the former Commissaire du gouvernement, R. Abraham showed "... the techniques of
interpretation resulting from the general principles of public international law and recalled by Articles
31 to 33 of the Vienna Convention on the Law of Treaties ... are not that far from those used in the
interpretation of domestic laws" -R. Abraham quoted in Les Conventions de Vienne sur le droit des
traités, commentaire article par article, Olivier Corten, Pierre Klein (eds), Bruylant, Bruxelles 2006, p.
1717;
Legal Consequences of the Construction of a Wall in the Occupied Pafestinian Territory, Advisory
Opinion, I.C.J. Reports 2004, p. 174, para. 94; Legality of Use of Force (Serbia and Montenegro v.
United Kingdom), Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 1345, para. 98; Avena
and Other Mexican Nationals (Mexico v. United Slates of America), Judgment, 1.C. J. Reports 2004
p. 48 para. 83; Sovereignty over Pulau Ligitan and Pulau Sipadan (lndonesia/Malaysia), Judgment,
I.C.J. Reports 2002, p. 645, para. 37; Kasikili/Sedudu Island (Botswana/Namibia), Judgment, I.C.J.
Reports 1999, p. 1059, para. 18; Oil Platforms (lslamic Republic of Iranv.United States of America),
Preliminary Objection, Judgment, I.C.~_. eports 1996 (lip. 812, para. 23;
18
Case concerning sovereignty over certain frontier lands, Judgment of 20 June 1959, I.C.J. Reports
1959, p. 221;
19 Case concerning a dispute between Argentina and Chile concerning the Beagle Channel, 18
February 1977, Reports of International Arbitral Awards, vol. XXI, p. 89;
2
° Case of Golder v. the United Kingdom, Application no. 4451/70, Judgment, Strasbourg, 21
February 1975, available at http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en;
8 17. The preambles of the relevant UNSC Resolutions, by recalling either previous
resolutions or specific provisions contained therein, and always including an express
reference to the territorial integrity of the Federal Republic of Yugoslavia, create a clear
framework of interpretation of the operative parts of these resolutions.
The relevance of the preamble of relevant UNSC Resolution was also acknowledged by the
Court in the 21 June 1971 Advisory Opinion concerning th.e Legal Consequences for States
of the continued presence of South Africa in Namibia (South West Africa) notwithstanding
21
Security Council resolution 276 (1970) .
18. Before proceeding ta analyze thé provisions of various relevant UN resolutions, it is
appropriate to approach the issue of the continuation by the present Republic of Serbia of the
legal personality of the former Federal Republic of Yugoslavia since, in accordance with the
legal and political situation of the time of their adoption, the UN resolutions referred ta the
"Federal Republic of Yugoslavia".
19. The Federal Republic of Yugoslavia (FRY) was one of the successor States of the
former Socialist Federative Republic of Yugoslavia, which ceased to exist following its
dissolution after the events in 1991-1992. Although it had an uncertain legal status for a
22
rather long period, these uncertainties disappeared after the FRY was admitted as a UN
member on 1 November 2000. The FRY was made up of two constituent federated republics
- Serbia and Montenegro.
20. After a process of reorganization of the federal State, the FRY transformed itself in
2002 in the State Union of Serbia and Montenegro. The Constitutional Charter of the State
Union referred to:
"the equality of the two member states, the state of Montenegro and the state of
Serbia which includes the Autonomous Province of Vojvodina and the
Autonomous Province of Kosovo and Metohija, the latter currently under
23
international administration in accordance with UN SC resolution 1244".
21LegalConsequences for States of the Continued Presence of South Africa in Namibia (South West
Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports
1971,p. 24 para. 32, p. 46 para. 92, p. 51 para. 107, p. 52 para. 109, p. 53 para. 115;
22 The 26 February 2007 Judgment in the Case concerning the Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and
Montenegro) provides for a complete characterization of the legal status of the FRY between 1992
23d 2000 at paras. 88-99, available at http://www.icj-cij.org/docket/files/91/13685.pdf;
Preamble of the Constitutional Charter of the State Union of Serbia and Montenegro, available at
http://www.mfa.gov.yu/Facts/const_scg.pdf;
9 The Constitutional Charter also established that "Serbia and Montenegro shall be a single
24
personality in international law'' and that:
"[uJponthe entry into force of the Constitutional Charter, ail the rights and duties
of the Federal Republic of Yugoslavia shall be transferred to Serbia and
Montenegro in line with the Constitutional Charter''.25
Consequently, the State Union of Serbia and Montenegro continued the international legal
personality of the former FRY.
21. The Constitutional Charter of Serbia and Montenegro also had specific provisions to
regulate the right of either of the two constituent republics to break away from the State
Union and the legal consequences deriving from such a situation. More specifically, the
Constitutional Charter dealt with the legal consequences of the eventual decision of the
Republic of Montenegro to leave the Union, in the following terms:
"[s]hould Montenegro break away from the state union of Serbia and
Montenegro, the international instruments pertaining to the Federal Republic of
Yugoslavia, particularly UN SC Resolution 1244, would concern and apply in
26
their entirety to Serbia as the successor".
22. On 3 June 2006, the Republic of Montenegro made use of this constitutional right and,
following a referendum organized accordingly, proclaimed its independence. Consequently,
according to the constitutional provisions of the former State Union, ail international
instruments applying to the former FRY or the State Union continued to apply to Serbia.
23. This state of affairs was repeatedly confirmed by the authorities of Serbia, including in
official positions taken in the UN context. For instance, on 3 June 2006, the President of the
Republic of Serbia informed the Secretary-General of the United Nations that, following the
declaration of independence adopted by the National Assembly of the Republic of
Montenegro,
"the membership of the state union Serbia and Montenegro in the United Nations,
including ail organs and organizations of the United Nations system, [would be]
continued by the Republic of Serbia, on the basis of Article 60 of the
Constitutional Charter of Serbia and Montenegro".
The president of Serbia also stated that the Republic of Serbia:
24 Article 14 of the Constitutional Charter of the State Union of Serbia and Montenegro, available at
25tp://www.mfa.gov.yu/Facts/const_scg.pdf;
Article 63 of the Constitutional Charter of the State Union of Serbia and Montenegro, available at
http://www.mfa.gov.yu/Facts/const_scg.pdf;
26Article 60 of the Constitutional Charter of the State Union of Serbia and Montenegro, available at
http://www.mfa.gov.yu/Facts/const_scg.pdf;
10 "remain[ed] responsible in full for ail the rights and obligations of the state union
of Serbia and Montenegro under the UN Charter". 27
24. This Court also acknowledged the continuation by the Republic of Serbia of the legal
personalityof the former state union of Serbia and Montenegro, in its judgments in the cases
concerning Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Serbia and Montenegro}2 8 and Application of the
Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v.
29
Serbia).
25. The present Republic of Serbia is therefore to be considered the continuator of the
legal personality of the former FRY, and ail UN resolutions referring to the latter are to be
readas referring now to the Republic of Serbia.
Il.Resolutions of the organs of the United Nations pertaining to the situation in
Kosovo adopted prior to UN SC Resolution 1244 (1999)
26. ln the second preambular paragraph of Resolution 1244, the Council, by
"Recalling its resolutions 1160 (1998) of 31 March 1998, 1199 (1998) of 23
September 1998, 1203 (1998) of 24 October 1998 and 1239 (1999) of 14 May
30
1999"
sets out ail its determinations made in relation ta the Kosovo situation beginning with 1998.
27. This reminder has the purpose of bringing, in the corpus of UNSC Resolution 1244,
elements regarding the final settlement of the Kosovo crisis. lt also partially explains why
there are so few express references to the final settlement of the Kosovo crisis in the text of
Resolution 1244. Remania believes that UNSC Resolution 1244 cannot be correctly
interpreted outside the framework provided by the previous UNSC resolutions, which are
recalled in the second preambular paragraph. lt should be underlined that this express
reference to the previous UNSC resolutions is a clear indication that these earlier resolutions
27Case concerning the Application of the Convention on the Prevention and Punishment of the Crime
of Genocide (Croatia v. Serbia) 18 November 2008 Judgment on the Preliminary Objections,
28aras.23-34available at http://www.icj-cij.org/docket/files/118/14891.pdf;
Case concerning the Application of the Convention on the Prevention and Punishment of the Crime
of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), 26 February 2007 Judgment,
paras.67-79 available at http://www.icj-cij.org/docket/files/91/13685.pdf;
29Case concerning the Application of the Convention on the Prevention and Punishment of the Crime
of Genocide (Croatia v. Serbia) 18 November 2008 Judgment on the Preliminary Objections,
30ras.23-34 available at http://www.icj-cij.org/docket/files/118/14891.pdf;
S/RES/1244 (1999);
11 need to be regarded as still operative, in those particular aspects, which were not replaced by
subsequent resolutions.
28. Of the four UNSC resolutions recalled, the most important in assessing the conformity
of the DOi with the relevant United Nations resolutions is UNSC Resolution 1160 (1998) of
31
31 March 1998.
29. UNSC Resolution 1160 was expressly adopted under Chapter VII, although the source
of the threat to the peace requiring the actions contained therein is not identified in its text. lt
contains, in its operative part, paragraphs 1, 4 and 5, several highly important provisions
concerning the settlement of the Kosovo crisis. These paragraphs read:
"1.Calls upon the Federal Republic of Yugoslavia immediately to take further
necessary steps to achieve a political solution to the issue of Kosovo through
dialogue and to implement the actions indicated in the Contact Group statements
of 9 and 25 March 1998;
[...1
4. Calls upon the authorities in Belgrade and the leadership of the Kosovar
Albanian community urgently to enter without preconditions into a meaningful
dialogue on political status issues, and notes the readiness of the Contact Group
to facilitate such dialogue;
5. Agrees, without prejudging the outcome of that dialogue, with the proposai in
the Contact Group statements of 9 and 25 March 1998 that the principles for a
solution of the Kosovo problem shou/d be based on the territorial integrity of the
Federa/ Republic of Yugos/avia and should be in accordance with OSCE
standards, including those set out in the Helsinki Final Act of the Conference on
Security and Cooperation in Europe in 1975, and the Charter of the United
Nations, and that such a solution must also take into account the rights of the
Kosovar Albanians and ail who live in Kosovo, and expresses its support for an
enhanced status for Kosovo which would include a substantially greater degree
32
of autonomy and meaningful self-administration". (emphasis added)
30. While this language ("calls upon") may not be regarded as directly mandatory, the
binding nature of the requirements was clarified in operative paragraphs 8 and 16. ln
operative paragraph 8, the resolution imposed an arms embargo upon the Former Republic
of Yugoslavia, including Kosovo. Paragraph 16 contains the requirements for lifting such
embargo:
"16. ...decides also to reconsider the prohibitions imposed by this resolution,
including action to termihate them, following receipt of the assessment of the
Secretary-General that the Government of the Faderai Republic of Yugoslavia,
cooperating in a constructive manner with the Contact Group, have:
31
S/RES/1160 (1998);
32S/RES/1160 (1998);
12 begun a substantive dialogue in accordance with paragraph 4 above, including
the participation of an outside representative or representatives, unless any
failure to do so is not because of the position of the Federal Republic of
33
Yugoslaviaor Serbian authorities ...".
31. UNSC Resolution 1160 does not address the substance of the political solution to the
issueof Kosovo.The only specific requirement set out by the resolution is that the substance
of the long-term status of Kosovo must be found through a meaningful dialogue.
Nevertheless, the language of the resolution is clear: the future solution for the Kosovo
situation should be based on "the territorial integrity of the Federal Republic of Yugoslavia",
and ought to include a "substantially greater degree of autonomy and meaningful self
administration" for Kosovo. Such solution was to be found, according to the provision of
UNSCResolution 1160, through meaningful dialogue (and not through unilateral measures).
32. As it is evidently clear from the provisions of UNSC Resolution 1160, there is no
indication towards any sort of solution that would imply a unilateral declaration of
independence for Kosovo. On the contrary, the Security Council refers twice, in the
preambular and operative part of Resolution 1160 to the territorial integrity of the Federal
Republic of Yugoslavia. This is also clearly stated in the Contact Group statement on
Kosovo,adopted in London, on 9 March 1998,and referred to in operative paragraph 5:
"9. No one should misunderstand our position on the core issue involved. We
support neither independence nor the maintenance of the status quo. As we
have set out clearly, the principles for a solution of the Kosovo problem should
be based on the territorial integrity of the Federal Republic of Yugoslavia, and be
in accordance with OSCE standards, Helsinki principles, and the UN Charter
[...J34
33. The specific requirements of the OSCE standards, inc/uding those set out in the
Helsinki Final Act of the Conference on Security and Cooperation in Europe in 1975, and the
Charter of the United Nations, referred to in UNSC Resolution 1160 and the Contact Group
statementswill be addressed in Chapter 3 of this Written Statement. 35
34. ln UNSC Resolution 1199 (1998) of 23 September 1998, the Council adopted a more
determined wording, although it took no further enforcement measures. lt reaffirmed the
proposed guidelines for the process of finding a political solution to the Kosovo issue, in
preambular paragraphs 12 and 13, which read:
33S/RES/1160 (1998);
34S/1998/223·
35
Seeinfrap~ras. 81-96 oftheWrittenStatementofRomania;
13 "Reaffirming the objectives of resolution 1160 (1998), in which the Council
expressed support for a peaceful resolution of the Kosovo problem which wou/d
inc/ude an enhanced status for Kosovo, a substantially greater degree of
autonomy, and meaningfu/ self-administration,
Reaffirming a/sa the commitment of ail Member States ta t36 sovereignty and
territorial integrity of the Federal Republic of Yugoslavia".emphasis added)
These two guidelines - enhanced status for Kosovo, a substantially greater degree of
autonomy, meaningful self-administration and the commitment to the sovereignty and
territorial integrity of the Federal Republic of Yugoslavia - are to be found throughout ail
determinationsmade by the Security Council in relation to the Kosovo problem.
35. The Council reiterated, in the operative part of Resolution 1199, its requirement that
the substance of the long-term status of Kosovo must be found through a meaningful
dialogue37.lt should be underlined, once again, that the wording of UNSC Resolution 1199,
much like UNSC Resolution 1160, clearly provides only for a negotiated political solution to
the long-term status of Kosovo. Such negotiations should have been conducted between the
authorities of the Federal Republic of Yugoslavia and the Kosovo Albanian leadership, with
international involvement.
36. The requirements stated in UNSC Resolution 1160 and restated in UNSC Resolution
1199, of entering into negotiations and meaningful dialogue towards finding a long-term
solution to the Kosovo issue, were to be observed not only by the Federal Republic of
Yugoslavia, but a/so by the Kosovo Albanian leadership. Thus, the latter were not allowed the
recourse to a unilateral solution.
37. UNSC Resolution 1203 (1998) of 24 October 1998 endorsed the latest evolutions in
finding a solution to the Kosovo situation, following the demarches of NATO and OSCE. At
the same time, this Resolution maintained the stringent requirement put by the Security
Council on the Belgrade authorities and the Kosovo Albanian leadership. Thus, the relevant
preambular paragraphs of the Resolution read as follows:
"Recalling its resolutions 1160 (1998) of 31 March 1998 and 1199 (1998) of 23
September 1998, and the importance of the peaceful resolution of the problem of
Kosovo, Federal Republic of Yugoslavia [...]
Recalling the objectives of Resolution 1160 (1998), in which the Council
expressed support for a peaceful resolution of the Kosovo problem which would
include an enhanced status for Kosovo, a substantia//y greater degree of
autonomy, and meaningful self-administration[ ...]
36
S/RES/1199(1998);
37para.3 of S/RES/1199(1998);
14 Reaffirming the commitment of al/ Member States to the sovereignty and
territorial integrity of the Federal Republic of Yugos/avia".(emphasis added)
38. The stringent requirement referred to above is underlined in the operative part of
UNSCResolution 1203:
"3. Demands that the Federal Republic of Yugoslavia comply fully and swiftly
with resolutions 1160 (1998) and 1199(1998)...
4. Demands that the Kosovo Albanian leadership and all other element of the
Kosovo Albanian community comply fully and swiftly with resolutions 1160
(1998)and 1199 (1998)...
5. Stresses the urgent need for the authorities in the Federal Republic of
Yugoslavia and the Kosovo Albanian leadership ta enter immediately into a
meaningful dialogue without preconditions and with international involvement,
and ta a clear timetable, leading to an e39 of the crisis and ta a negotiated
politicalsolution to the issue of Kosovo."
39. The wording of these operative paragraphs leaves no doubt as to the obligation of the
two parties to reach a negotiated political solution to the issue of Kosovo. ln Romania's view,
this wording - besides excluding any possibility of a unilateral solution to the Kosovo issue -
also transformed the proposed guidelines for negotiations, first set out in UNSC Resolution
1160, into straightforward guarantees for the outcome of the negotiations. Neither the
Federal Republic of Yugoslavia could diminish the future enhanced status for Kosovo,
substantially greater degree of autonomy and meaningful self-administration, nor could the
KosovoAlbanian community terminate unilaterallythe Yugoslav territorial title over Kosovo.
40. UNSC Resolution 1239 (1999) of 14 May 1999, addressed a specific issue, namely
the "enormous influx of Kosovo refugees into Albania, the former Yugoslav Republic of
Macedonia, Bosnia and Herzegovina, and other countries, as well as [the] increasing
numbers of displaced persans within Kosovo, the Republic of Montenegro and other parts of
the Federal Republic of Yugoslavia" 40 and did not concern the negotiated solution for the
Kosovo problem. lt referred, however, to the determinations made previously by the Security
Council regarding the Kosovo situation and, also, to the "territorial integrity and sovereignty of
all States in the region".
38S/RES/1203 (1998);
39S/RES/1203 (1998);
40
41S/RES/1239 (1998);
S/RES/1239 (1998);
15 III. United Nations Security Council Resolution 1244 (1999) of 10 June 1999
41. While the provisions of UNSC Resolution 1244 play a very important raie in assessing
the conformity of the DOi with relevant United Nations Security Council resolutions, Remania
underlines that an equally important raie in such assessment is played by the provisions of
UNSC Resolutions 1160, 1199, 1203 and 1239. These resolutions, together with UNSC
Resolution 1244 have a combined and cumulative effect. This is not something unusual, as
the Court observed in 1971 in relation ta UNSC Resolutions 264 (1969), 267 (1969) and 276
(1970) .42 Romania also reminds in the context its conclusions regarding the legal value of
preambles in legal documents, as presented above. 43
42. UNSC Resolution 1244 was in force at the moment of the DOi and continues to be in
force, since it was not modifîed or terminated by another UNSC resolution or by becoming
obsolete.
43. Security Council Resolution 1244 was aimed directly, as expressly mentioned in
preambular paragraph 4, at resolving "... the grave humanitarian situation in Kosovo, Federal
Republic of Yugoslavia" and providing "... for the safe and free return of all refugees and
displaced persans to their homes". The relevant paragraph reads as follows:
"Determined to resolve the grave humanitarian situation in Kosovo, Federal
Republic of Yugoslavia, and to provide fo44the safe and free return of all refugees
and displaced persans to their homes,"
The two main objectives of UNSC Resolution 1244 can be clearly seen in this paragraph.
The first task taken up by the Council was to resolve the grave humanitarian situation in
Kosovo, Federal Republic of Yugoslavia at that time and, the second, to provide for the safe
and free return of ail refugees and displaced persans to their homes.
44. Preambular paragraphs 5 to 8 present the rationale behind the two objectives while
preambular 9 to 11 establish the guidelines and guarantees in accomplishing the two
objectives mentioned above. These guidelines and guarantees are mentioned as follows:
42 See Legal Consequences for States of the Continued Presence of South Africa in Namibia (South
West Africa) notwithstanding Security Council Resolution 276 (1970), Advisoiy Opinion, I.C.J. Reports
1971, p. 51, para. 108: "Resolution 276 (1970) of the Security Council, specifically mentioned in the
text of the request, is the one essential for the purposes of the present advisoiy opinion. Before
analysing it, however, it isecessaiy to refer briefly to resolutions 264 (1969) and 269 (1969), since
these two reso/utions have, together with resolution 276 (1970), a combined and a cumulative effect";
43See supra para. 16 of the Written Statement of Remania;
44S/RES/1244 (1999);
16 "We!coming the genera! princip!es on a political solution to the Kosovo crisis
adoptedon 6 May 1999 [...] and we!coming aise the acceptance by the Federal
Republic of Yugoslavia of the principles set forth in points 1 ta 9 of the paper
presented in Belgrade on 2 June 1999 [...], and the Federal Republic of
Yugoslavia'sagreement ta that paper,
Reaffirming the commitment of ail Member States to the sovereignty and
territorial integrity of the Federal Republic of Yugoslavia and the other States in
the region,as set out in the Helsinki FinalAct and annex2,
Reaffirming the cal! in previous resolutions for substantial autonomy and
meaningfulself-administration for Kosovo...". 45
45. As it was shown above, these preambularparagraphsare a basis for the interpretation
of the main part of the Resolution, since they display the authentic will of the Security
Council. They have the same binding force as the preambular paragraphs reaffirming, for
instance,the right of the refugees to return to their homes.
46. Moreover,the objective of UNSC Resolution 1244 is not ta find a long-term solution ta
the Kosovo situation but to provide for short-term and medium-term political solution ta the
crisis following the principles contained in annexes 1 and 2 to the Resolution. Remania will
not expound on this political solution. However, it observes that the annexes to the
Resolution expressly state that the interim political framework agreement providing for
substantialself-government in Kosovo needs to take full account of the Rambouillet accords
and the principles of sovereignty and territorial integrity of the Federal Republic of
Yugoslavia.The almost identical paragraphs read:
"A political process towards the establishment of an interim political framework
agreement providing for a substantial self-government for Kosovo, taking full
account of the Rambouillet accords and the principles of sovereignty and
territorial integritl of the Federal Republic of Yugoslavia and other countries of
4
the region [...]".
47. The Rambouillet accords, whilst intended to affotd Kosovo meaningful autonomy,
ruled out the redrawing of the existing borders. ln a statement to the press, the Security
Council:
"... took note of the conclusions of the co-chairmen of the Rambouillet
Conference at the end of the two weeks of intensiveefforts aiméâat reaching an
agreement on substantial autonomy for Kosovo, which respects the national
sovereignty and territorial integrity of the FRY".
45
S/RES/1244 (1999);
46S/RES/1244 (1999);
47TheKosovoConflictand InternationalLaw:An Analytica/Documentation1974-1999, Heike Krieger
(ed.), Cambridge University Press, Cambridge, 2001, at. 143 p. 278;
17 48. lt is to be noted that references to the sovereignty and territorial integrity of Serbia are
found in the Preamble of the lnterim Agreement for Peace and Self-Government in Kosovo
("Rambouillet Agreement"), in Article 1 of its Framework, in the Preamble of its Chapter 1
(Constitution)and in Article' 1 of its Chapter 7 (lmplementation Il).
49. ln the preambular part the emphasis is on "the commitment of the international
community to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia",
whereas, Article 1 of the Framework refers to the principles of the agreement. One of this
principles, specified in paragraph 2 of the mentioned article, ensures to the national
communities and their members additional rights, which can not be used, however, against,
inter a/iathe sovereignty and territorial integrity of Serbia:
"National communities and their members shall have additional rights specified in
Chapter 1. Kosovo, Federal, and Republic authorities shall not interfere with the
exercise of these additional rights. The national communities shall be legally
equal as specified herein, and shall not use their additional rights to endanger
the rights of other national communities or the rights of citizens, the sovereignty
and territorial integrity of the Federal Republic ofuioslavia, or the functioning of
4
representative democratic government in Kosovo" .
50. Hence, the agreement guarantees, on one hand, an enhanced right to self
government to Kosovo and its inhabitants and additional rights within Serbia, and on the
other, the respect for the sovereignty and territorial integrity of Serbia. The political solution
for Kosovo, therefore, should not go beyond the long established principles of international
law to which the international community committed itself.
51. Similar references are to be found in the preambular part of Chapter 1,
"Desiring through this interim Constitution to establish institutions of democratic
self-government in Kosovo grounded in respect for the territorial integrity and
sovereignty of the Federal Republic of Yugoslavia and from this Agreement, from
which the authorities of governance set forth herein originate (... )"9
and in Article 1 paragraph 1 letter a) of Chapter 7 of the Rambouillet Agreement:
"The United Nations Security Council is invited to pass a resolution under
Chapter VII of the Charter endorsing and adopting the arrangements set forth in
this Chapter, including the establishment of a multinational military
implementation force in Kosovo. The Parties invite NATO to constitute and lead
a military force to help ensure compliance with the provisions of this Chapter.
48
ïhe Kosovo Conflict and International Law: An Analytical Documentation 1974-1999, Heike Krieger
(ed.), Cambridge University Press, Cambridge, 2001, at. 141 p. 261;
49ïhe Kosovo Conflict and International Law: An Analytical Documentation 1974-1999, Heike Krieger
(ed.), Cambridge University Press, 2001, at. 141 p. 261;
18 Theyalso reaffirm the 50vereignty and territorial integrity of the Federal Republic
of Yugoslavia (FRY)".
Thus, the right to self-government itself is rooted in the sovereignty and territorialintegrity of
Serbia, which should be maintained and respected by the international community,
undoubtedlyon the basis of the provisions of the UN Charter.
52. This agreement was meant to provide an interim solution for Kosovo. The Rambouillet
Agreementitself provided in its final chapter (Amendment, Comprehensive Assessment, and
Final Clauses)for the way forward in identifying the final solution for the status of Kosovo. lt
is to be noted that such a solution would have taken account of the "will of the people", as
well as of the opinions of relevant authorities, the good will of the Parties in implementing the
Agreement as well as of the Helsinki Final Act (Article 1 paragraph 3 of Chapter 8 of the
RambouilletAgreement).
53. Hence, the solution for the final settlement would have not, in any case, been based
on a unilateralreaction on the part of one side or another, but on a complex of factors which
would have considered, as well, the position of Serbia, vis-à-visthe principles of sovereignty
and territorial integrity as illustrated in the 1970 Resolution 2625 (XXV) of the UN General
Assembly, concerning the "Declaration on Principles of International Law Concerning
Friendly Relations and Cooperation among States in accordance with the Charter of the
UnitedNations"and the Helsinki Final Act.
54. By recalling Resolutio.ns1160, 1199, 1203 and 1239, the Security Council deliberately
reaffirmed its adherence to the already established principles for a solution to the Kosovo
issue.Through the same recalling of previous resolutions, the obligations of the two parties to
the Kosovo conflict were implicitly reconfirmed. There is nothing in the text of UNSC
Resolution 1244 to bear the meaning that, in 1999, the Council authorized the separation of
Kosovo at sometime in the future. Nor there is any mention of the right to self-determination
for the population of Kosovo.
55. The difference between the references to the territorial integrity of the Federal
Republic of Yugoslavia found in preambular paragraph 10 of the Resolution and the two
annexes lies in the fact that the references in the two annexes concern only the interim
political agreement, while the reference in the preambular paragraph concerns any future
settlement.
50TheKosovoConflictand InternationalLaw:An AnalyticalDocumentation1974-1999,Heike Krieger
(ed.),CambridgeUniversityPress,2001,at. 141p.272;
19 56. Remania believes that the guidelines and guarantees in accomplishing the objectives
of Resolution 1244 are not aimed exclusively at the interim status of Kosovo. They are also a
reaffirmation of the guidelines for the final settlement. Along with the substantial autonomy
and meaningful self-administration mentioned in preambular paragraph 11 of the Resolution,
principle 9 mentioned in the annex 2 to the document, provides that "[n]egotiations between
the parties for a settlement should not delay or disrupt the establishment of democratic self
51
governing institutions". Negotiations at the time of the adoption of the resolutions mentioned
above spoke in terms of self-government, not merely interim but as a feature of the future
regime for Kosovo.
57. Thus, UN SC Resolution 1244 expressly acknowledged the territorial integrity of
Serbia and established that this principle had to be taken into account by any solution for the
status of Kosovo, which was to be reached through meaningful dialogue between the
interested parties. Consequently, the unilateral act of the Provisional Institutions of Self
Government of Kosovo of adopting the DOi ran contrary to UN SC Reso/ution 1244.
IV. Competence of the Provisional Institutions of Self-Government in Kosovo
58. Another aspect which needs to be analyzed concerns the competence of the
Provisiona! Institutions of Self-Government of Kosovo. These institutions have been
established by UNMiK Regulation 2001/9 of 15 May 2001 on the Constitutional Framework
52
for Self-Government of Kosovo. The Regulation was adopted in conformity with, and in
application of, UN SC Resolution 1244. Hence, the competences and responsibilities it
establishes for the Provisional Institutions of Self-Government cannot go beyond the
principles embodies in the said resolution, including the respect for the territorial integrity of
Serbia.
59. Chapter 5 of UNMiK Regulation 2001/9, as subsequently amended, regulates the
responsibilities of the Provisional Institutions of Self-Government; there is no specific, not
even indirect, provision enabling the Provisional Institutions to decide on the status of
Kosovo, and no existent provision can be interpreted as suggesting such an authority. ln fact
such a disposition could not have found its place in the UNMiK regulation, since it was the
51S/RES/1244 (1999);
52 Regulation 2001/9, published in the UNMIK Official Gazette, available at
http://www.unmikonline.org/regulations/unmikgazette/02english/E2001regs…;
20 Security Council which established the framework of the political solution for Kosovo.
Moreover,the Regulation expressly provides for the fact that:
"The exercise of the responsibilities of the Provisional Institutions of Self
Government under this Constitutional Framework shall not affect or diminish the
authority of the SRSG to ensure full implementation of UNSCR 1244(1999),
including overseeing the Provisional Institutions of Self-Government, its officiais
and its agencies, and taking appropriate measures whenever their actions are
inconsistentwith UNSCR 1244(1999) or this Constitutional Framework". 53
60. lt is obvious that the Provisional Institutions of Self-Government could not overpass, in
exercising their mandate, the legal framework created by the UN SC Resolution 1244.
Consequently, they had no mandate ta take uni!ateral decisions on the final status of Kosovo,
which must be decided in accordance with the relevant provisions of UN SC Resolution 1244
itself.
61. Whether the Provisional Institutions of Self-Government in Kosovo, as representative
bodies of the population of Kosovo, cou/d lawfully adopt the DOi in the exercise of its right
under general international law is a different aspect, which Romania analyzes in Chapter 4 of
this Written Statement. 54
V. Conclusion
62. lt is clear from ail the above that, according to the relevant United Nations resolutions,
main/y UN SC Reso/ution 1244 (1999), any solution for the final status of Kosovo must take
account of the territorial integrity of Serbia and must be obtained in a consensual manner,
through meaningful dialogue. Hence, by disregarding the territorial integrity of Serbia and by
being unilaterally adopted, the 2008 DOi was not in accordance with the provisions of the
said UN reso/utions. Furthermore, the DOi went beyond and against the competence of
these Provisional Institutions of Self-Government, as established by the relevant UNMiK
regulations.
53 Chapter 12 of Regulation 2001/9 , published in the UNMIK Official Gazette, available at
54tp://www.unmikonline.org/regulations/unmikgazette/02english/E2001regs/RE2001…;
See infra paras. 110-159 of the Written Statement of Remania;
21 Chapter 3
Serbia's Right ta Territorial lntegrity
1.Introduction
63. The contemporary international law has been faced, after 1945, with a number of
challenges regarding the right to self-determination and the principle of territorial integrity, as
~nshrined in the main documents of international law. This is more so given the post-colonial
context, when entities constant/y invoked "the right to self-determination" to tentatively
secede from existing States, while States constantly refrained form recognizing such
unilateral declarations of independence unless agreed by the former State against which the
secession occurred.
64. As Professer Crawford wrote,
"International law has always favoured the territorial integrity of states and,
correspondingly, the government of a state was entitled to oppose the unilateral
secession of part of a state by ail lawful means".5
However, there is a constant need and an endless search for a balanced solution between
the principles of sovereignty and territorial integrity, on one hand, and the principles of equal
rights and self-determination of peoples, on the other.
65. To use the words of the Secretary General in his report of 17 June 1992, entitled "An
Agenda for Peace. Preventive diplomacy, peacemaking and peace-keeping",
"The foundation-stone of this work [the maintenance of international peace and
security under the Charter] is and must remain the State. Respect for its
fundamental sovereignty and integrity are crucial to any common international
progress. The time of absolute and exclusive sovereignty, however, has passed;
its theory was never matched by reality. lt is the task of leaders of States today
to understand this and to find a balance between the needs of good internai
governance and the requirements of an ever more interdependent world. (...).
Yet if every ethnie, religious or linguistic group claimed statehood, there would be
no limit to fragmentation, and peace, security and economic well-being for ail
would become ever more difficult to achieve.
One requirement for solutions ta these problems lies in commitment to human
rights with a special sensitivityto those of minorities, whether ethnie, religious,
social or linguistic (...).
(...) The sovereignty, territorial integrity and independence of States within the
established international system, and the principle of self-determination for
55
James Crawford, State Practice and International Law in Relation to Unilateral Secession - Report
to the Government of Canada concerning unilateral secession by Quebec, para. 8;
22 peoples, bath of great value and importance, must net be permitted ta work
against each other in the period ahead. Respect for democratic principles at ail
levels of social existence is crucial: in communities, within States and within the
community of States. Our constant duty should 56 ta maintain the integrity of
eachwhile finding a balanced designfor ail".
66. Therefore, fragmentation of States does not prefigure itself as the solution for the
effective exercise of the right ta self-determination, as it could be a potential danger ta
international peace and security. Respect for human rights and the assurance of effective
participationin the internai affairs of a State could represent, on the other hand, an authentic
solutionfor maintaining the integrity of the principle of self-determination.
67. The main arguments with respect ta the right ta self-determination and its (lack of)
applicationta Kosovo will be advanced in the following chapter of this Written Statement; 57
the present chapter will focusron the principle of territorial integrity in order ta permit a
conclusion pursuant ta which the principle of territorial integrity must be observed. Such a
conclusion would be valid and applicable ta the situation of Serbia/Kosovo even in the
absence of the particular regime set forth by the sum of relevant UN resolutions and other
58
documents.
68. This analysis of the principle of territorial integrity is twofold: first, Remania will
considerthe relevant universal and regional instruments pertinent for the consideration of the
issue in view; second, Remania will apply these instruments to the particular case under
discussion.
Il. Regulation of the principle of territorial integrity of States
69. As the Arbitration Commission established by the International Conference on
Yugoslaviastated in its Opinion no. 3,
"ail external frontiers must be respected in line with the principles stated in the
United Nations Charter, in the Declaration on Principles of International Law
concerning Friendly Relations and cooperation among States in accordance with
the Charter of the United Nations (General Assembly Resolution 2625 (XXV))
and in the Helsinki Final Act, a principle which aise underlines Article 11 of the
56
paras. 17 to 19 of the Report-N47/277- S/24111;
57See infra paras. 117-159of the Written Statement of Romania;
58See supra paras. 26-57 of the Written Statement of Romania;
23 Vienna Convention of 23 August 1978 on the Succession of States in Respect of
Treaties".59
A. Documentsof universa/significance
70. As reflected in the doctrine, "few principles in present-day international law are so
60
firmly established as that of territorial integrity of States".
71. The whole United Nations establishment is based on the principle of sovereign
equality among States, as one of the most important principles in international relations, as
seen in art. 2 of the UN Charter.
72. The fourth principle listed in art. 2 of the UN Charter protects the territorial integrity and
political independence of States, asserting that,
"ail Members shall refrain in their international relations from the threat or use of
force against the territorial integrity or political independence of any State, or in
any other manner inconsistent with the Purposes of the United Nations".
Therefore, territorial integrity of States, alongside political independence, is a fundamental
principle of theUN Charter, dealt with in relation with the prohibition of the use of force.
73. ln case the sovereignty of a State or its territorial integrity is affected, amounting to a
threat to peace, breach of peace or act of aggression, the Security Council has the right to
make the decisions it deems appropriate to maintain or restore international peace and
security, in accordance with the provisions of the UN Charter.
74. These principles are the basis upon which the UN and its Members act in pursue of
the objectives of the Organization, such as the development of "friendly relations among
nations based on respect for the principle of equal rights and self-determination of peoples"
(art. 1 of the UN Charter).
75. The 1970 Resolution 2625 (XXV) of the UN General Assembly, concerning the
"Declaration on Principles of International Law Concerning Friendly Relations and
59Arbitration Commission, Opinion No. 3, 11 January 1992, European Journal of International Law,
no. 3 (1992), p. 185;
60
Thomas Franck et al., The Territorial lntegrity of Quebec in the Event of the Attainment of
Sovereignty, Report prepared for the Quebec Department of International Relations (8 May 1992),
para. 2.16;
24 Cooperationamong States in accordance with the Charter of the United Nations" enunciates,
as itsfirst principle,
"the principle that States shall refrain in their international relations from the
threat or us of use of force against the territorial integrity or political
independence of any State, or in a61 other manner inconsistent with the
purposes of the United Nations".
76. Further on, the Resolution itself provides, for an unambiguous "safeguard clause" in
favor of the principle of territorial integrity of States, by underlying, under the principle of
equalrights and self determination of peoples, that,
"nothing (...) shall be construed as authorizing or encouraging any action which
would dismember or impair, totally or in part, the territorial integrity or political
unity of sovereign and independent States conducting themselves in compliance
with the principle of equal rights and self-determination of peoples as described
above and thus possessed of a government representing the whole people 62
belongingta the territory without distinction as ta race, creed or colour".
77. This obligation is incumbent upon those to which the principle of equal rights and self
determinationaddresses, but also upon the international community, as,
"every State shall refrain from any action aimed at the partial or total disruption of
the national unity and territorial integrity of any other State or country".3
78. This is, however, closely linked ta the next principle - of sovereign equality of States -
which defines, as one of the elements of sovereign equality, the inviolability of the territorial
integrity and political independence of States (the principle of sovereign equality of States,
letterd).
79. Therefore,
"a State whose government represents the whole people of its territory without
distinction of any kind, that is ta say, on the basis of equality, and in particular
without discrimination on grounds of race, creed or colour, complies with the
principle of self determination in re64ect of ail of its people and is entitled tothe
protection of its territorial integrity".
61A/RES/2625 (XXV) in Resolutions adopted on the Report of the Sixth Committee, available at
http://www.un.org/Docs/asp/ws.asp?m=A/RES/2625%20(XXV);
62A/RES/2625 (XXV) in Resolutions adopted on the Report of the Sixth Committee, available at
63tp:l/www.un.org/Docs/asp/ws.asp?m=A/RES/2625%20(XXV);
A/RES/2625 (XXV) in Resolutions adopted on the Report of the Sixth Committee, available at
http://www.un.org/Docs/asp/ws.asp?m=A/RES/2625%20(XXV);
64James Crawford, State Practice and International Law in Relation to Unilateral Secession - Report
to Government of Canada concerning unilateral secession by Quebec, para. 61;
25 80. Even if the international documents referred to above apparently establish a general
obligation oftates to fully observe the principle of territorial integrity in their mutual relations,
this principle imposes anrgaomnes obligation with regarto its observance.
B. Documentsofregionalsignificance
81. The Final Act of the Conference on Security and Cooperation in Europe (1 August
1975) (HelsinkiFinalAct) reiterates, at European level, in a more comprehensive way, the
main principles of the Charter of the United Nations, which are to guide the relations between
the States participating in its adoption.
82. The adoption of this act was motivated by the desire
"to improve and intensify [the] relations [between the Participating States] and to
contribute in Europe to peace, security, justice and co-operation as well as to
rapprochement among themselves and with the other States of the world". 65
83. The Declaration on Principles, comprised in the Helsinki Final Act, contains ten
principles of "primary significance" for the mutual relations between the States.
84. The first of the enumerated principles referso the sovereign equality and respect for
the rights inherent in sovereignty. lt is worth mentioning some of the elements envisaged by
this principle as it applies in the European framework:
> the principle of sovereign equality and the rights inherent in sovereignty include
the right of every Stateto juridical equalitytoterritorial integrity and to freedom and
politîcal independence;
> with due respect to the principle of sovereign equality, States must respect
each other's right freely to choose and develop its political, social, economic and
cultural systems as well as its right to determine its laws and regulations;
> States consider that their frontiers can be changed, in accordance with
international law, by peaceful means and by agreement. 66
Therefore, this principle recognizes the territorial integrity of States, their right to internally
dispose of themselves and the inviolability of frontiers, which can be altered only by peaceful
means and in a consensual manner.
65preambularparagraph4, availableat http://www.osce.org/documents/mcs/1975/08/4044_en.pdf;
66http://www.osce.org/documents/mcs/1975/08/4044_en.pdf;
26 85. The distinction between territorial integrity and inviolability of frontiers distinguishes
this Declarationfrom the UN Charter, as the latter principle is dealt with separately from the
former.
86. Notwithstanding the positive approach taken within the context of the principle of
sovereign equality, the principle of the inviolability of frontiers forbids at any time any
contestationof the frontiers of the States in Europe as they are deemed inviolable. This aise
rulesout "any demand for, or act of, seizure and usurpation of part or all of the territory of any
participatingState" (Principle Ill).
87. This principle has its counterpart in the doctrine of uti possidetis or "the permanence
67
and stability of land frontiers". As seen in the context of the discussion on sovereign
equality, this principle does not entai! that the frontiers are immutable, but that they can only
be changed by agreement between or among the parties concerned and without the use of
force.
88. The principle of territorial integrity of States asserts the territorial integrity of States and
the obligationof ail the Participating States to respect it. This includes their obligation
"to refrain from any action inconsistent with the purposes and principles of the
Charter of the United Nations against the territorial integrity, political
independence or the unity of any participating State, and in particular from any
such action constituting a threat or use of force" (Principle IV)
89. ln connection with this principle cornes the principle of equal rights and self-
determinationof peoples, which should be respected
"at ail times in conformity with the purposes and principles of the Charter of the
United Nations and with the relevant norms of international law, including those
relatingto territorial integrity of States" (PrincipleVIII)
90. Therefore, the full exercise of the principle of equal rights and self determination of
peoplesshould in no way undermine the territorial integrity of States and should not corne at
the expense of the territorial integdty of States (that is territorial integrity per se, political
independence and unity of the State). The problem will be dealt with in the following
chapter.68
67ContinentalShelf(Tunisia/LibyanArabJamahiriya),Judgment,I.C.J.Reports1982,p. 66 para. 84;
68Seeparas.117-159of the WrittenStatementof Remania;
27 91. Out of ail norms of international law which should be obseNed when exercising the
rightto self-determination, the principle of territorial integrity was singled out within the
context of the principle of equal rights and self-determination of peoples. This stresses once
more that, as conceived, the right to self-determination has a preponderant internai
character.
92. The principles of the Final Act are reasserted in the Charter of Paris for a New Europe
(1990),which, underthe heading "Friendly Relationsamong Participating States" affirms that,
"our relations will rest on our common adherence ta democratic values and to
human rights and fundamental freedams. We are convinced that in arder to
strengthen peace and security among our States, the advancement of
democracy and respect for and effective exercise of human rights, are
indispensable. We reaffirm the equal rights of peoples and their right to self
determination in conformity with the Charter of the United Nations and with the
relevant norms of international law, inc/uding those re!ating to territorial integrity
of States".9
93. The principles1of the Helsinki Final Act and of the Paris Charter are referred ta as well
in the Dec!aration of the European Counci! on the "Guidelines on the Recognition of New
States in Eastern Europe and in the Soviet Union", issued on 16 Oecember 1991, according
to which the Community and its member States declared their readiness to recognize the
new States established on the territories of the former Soviet Union and Yugoslavia.
Recognition was however circumscribed to various requirements, which should be obseNed
in the process of recognition. One such requirement was
"respectfor the inviolability of ail 70ontiers which can only be changed by peaceful
means and by common agreement".
94. Therefore, similarly to the principle of the inviolability of frontiers within the Helsinki
Final Act, the frontiers of States can only be changed by peaceful means and by common
agreement.
95. Further-on, the Declaration states that "ail questions concerning State successions
and regional disputes" must be settled "by agreement, including where appropriate by
recourse to arbitration".
69http://www.osce.org/documents/mcs/1990/11/4045_en.pdf;
70
16 December 1991 Declaration of the European Council on the "Guidelines on the Recognition of
New States in Eastern Europe and in the Soviet Union" availabfe in European Journal of lnternatio_naf
Law, no. 4(1993), p. 72;
28 96. The Declaration does not explicitly refer ta the principle of territorial integrity, but such
a reference is made in the context of the general statement concerning the respect for the
provisionsof the UN Charter and ta the commitments subscribed to in the Helsinki FinalAct
andin the Paris Charter.
C. Conclusion
97. The principles of territorial integrity and of the inviolability of frontiers have an absolute
character. This means that no changes to a State's territory orto its frontiers can occur
exceptin those cases when the State concerned consents ta that end.
98. Therefore, the territorial integrity of States can not be affected as a result of a
unilateralright of secession, which is not recognized as such by international law, as it would
be demonstrated in the next Chapter, but only as a result of a mutual agreement between or
amongthe parties involved.
Ill. The case of Serbia
99. From the outset it should be underlined that Serbia never relinquished its sovereign
rightsover the province of Kosovo which it considers as an integral part of it.
100. The 1974 Constitution of the Socialist Federal Republic of Yugoslavia granted
autonomy to the province of Kosovo, recognizing it as "[an] autonomous, socialist, self
managing,democratic, socio-political [community]"within the Socialist Republic of Serbia and
71
the Socialist Federal Republic of Yugoslavia. The 1990 Constitution brought no changes to
the matter.
101. UN SC Resolution 1244 (1999) did not operate any transfer of sovereignty from Serbia
to the international community or the UN. As seen above, in fact UN SC Resolution 1244
reaffirmedin clear terms the territorial integrity of Serbia (the FRY).
102. At the same time, UN SC Resolution 1244 specifically provides that the then
Yugoslavia will continue to exercise acts deriving from its sovereignty over Kosovo. For
instance,para. 4 refers to the fact that:
71TheKosovoConflictand InternationalLaw:An Ana!ytica!Documentation1974-1999,Heike Krieger
(ed.),CambridgeUniversityPress,Cambridge,2001,at. 1p. 3;
29 "an agreed number of Yugoslav and Serb military and police personnel will be
permitted to return to Kosovo to perform the functions in accordance with annex
2".72
103. Annex 2 specifies that Yugoslav military and police personnel are to perform certain
acts which would have been incompatible with a transfer of sovereignty from Yugoslavia to
the international community, such as maintaining presences at Serb patrimonial sites or at
key border crossings. 73
104. Serbia did not relinquish its title over Kosovo at any subsequent moment; on the
contrary, Serbia continued to reaffirm_its sovereignty over the territory and continued to
perform acts of sovereignty concerning Kosovo, such as delivery of identity documents or
passports to Kosovo inhabitants or organizing polling stations in Kosovo, on the occasion of
Serbian electoral processes.
105. The present Constitution of Serbia, adopted by the National Assembly of the Republic
of Serbia on 30 September 2006 and endorsed by referendum on 28 and 29 October 2006,
specifies in its Preamble that "the Province of Kosovo and Metohija is an integral part of the
74This Constitution was in force at the moment of the DOi.
territory of Serbia".
106. Ali official Serbian positions taken before, on and after the adoption of the DOi clearly
indicate that Serbia was not and is not willing to give up its title over the territory of Kosovo.
107. Considering this fact, it cannot even remotely be sustained that Serbia consented to
the alteration of its frontiers or its territorial integrity at any given moment.
108. Under these circumstances, there is an ergaomnes obligation to respect the territorial
integrity of Serbia and the inviolability of its frontiers. Therefore, according to the international
law, the territorial integrity of Serbia or its frontiers cannot be affected or modified by a
unilateral act of the Provisional Institutions of Self-Government of Kosovo.
72
73S/RES/1244(1999);
S/RES/1244(1999);
74 Constitution of the Republic of Serbia, available at http://www.predsednik.yu/ mwc/ epic/ doc/
ConstitutionofSerbia.pdf;
30 IV.Conclusion
109. ln conclusion, under the whole edifice of international law, as reflected in instruments
of universal and regional importance, at the moment of the DOi the State of Serbia had the
righto territorial integrity and inviolability of its frontiers. The international community had the
correlative obligation to respect this right. Serbia's right and the corresponding obligation of
al!other subjects of international law existed according ta international law and the provisions
of the relevant UN documents, which were in fact based on this right and this obligation and
reinforced them. Consequently, the unilateral declaration of independence by the Provisional
Institutions of Self-Govemment of Kosovo was not in conformity with this right under
internationallaw.
31 Chapter 4
Does Kosovo Have a Right toSelf-Determination lmplying Secession from Serbia?
I.Secession in international law
11O. As evident from its content, the DOi of the Provisional Institutions of Self-Government
of Kosovo aims at establishing a new State on the territory of the Serbian province of Kosovo
- the "Republic of Kosovo". On the moment of the DOi, the title of sovereignty over Kosovo
undisputedly belonged to Serbia. Placing Kosovo under the provisional administration of the
UN, by UNSC Resolution 1244/1999, by no means signified a transfer of title from Serbia to
the international community or the UN and, as already seen, Serbia did not relinquish its title
over Kosovo at any moment.
111. Under these circumstances, the establishment of a new State in Kosovo - a territory
legally belonging to Serbia - could only be done, out of the generally identified modes of
creation of States in international law, through the process commonly-referred to as
secession, which implies the creation of a State without the consent of the former sovereign.
Any other modality, such as acquisition, occupation, explicit grant of independence or implicit
75
devolution, is excluded.
112. As a modality of creation of States, secession has been analyzed in doctrine from
various perspectives. Authorities in international law have treated differently the cases of
secession which occurred prier or after 1945 and further differentiated the latter according to
whether they happened in the context of the decolonization process or outside the colonial
76
context.
113. ln analyzing secession in relation to the Kosovo case, it is important to keep in minci
the actual question which is before the Court and to delimit it from related but, nevertheless,
different matters. Thus, the subject-matter of the case on which the Court is to render an
advisory opinion regards the accordance or the Jack of accordance of the DOi with the
international /aw, not other issues such as whether Kosovo presently meets the factual
criteria of statehood, whether recognition of States is declaratory or constitutive or which are
the legal consequences of the recognition of the statehood of Kosovo by certain States.
75
For a complete analysis of the modes of the creation of States in international law, see James
Crawford, The Creation of States in International Law, Second Edition, Clarendon Press, Oxford,
2006, p.255-501;
76James Crawford, The Creation of States in International Law,Second Edition, Clarendon Press,
Oxford, 2006, p. 374-448;
32 114. Thus, in the concrete context of the actual question which is before the Court, after
having analyzed the DOi from the perspective of the UN relevant resolutions, UNMiK
pertinent regulations and the principles of international law regarding the inviolability of
frontiers and the territorial integrity of States, the question is whether there might be other
principles of, or rights established under, international law which would have entitled the
Kosovo authorities ta lawfully declare independence, thereby establishing a new State
secedingfrom Serbia.
115. An accurate presentation of the current state of play regarding secession in
internationallaw was given by the Supreme Court of Canada in its 1998 opinion regarding
the Secession of Quebec:
"International law contains neither a right of unilateral secession nor the explicit
denial of such a right, although such a denial is, ta some extent, implicit in the
exceptional circumstances required for secession ta be permitted under the right
of a people ta self-determination, e.g., the right of secession that arises in the
exceptional situation of an oppressed or colonial people [...] [l]nternational law
places great importance on territorial integrity of nation states and, by and large,
leaves the creation of a new state ta be determined by the domestic law of the
existing state of which the seceding entity presently forms a part[ ...Where, as
here, unilateral secession would be incompatible with the domestic Constitution,
international law is likely ta accept that conclusion, subject ta the right of peoples
77
to se!f-determination [...]".(emphasis added)
116. ln other words, since the constitutional framework of Serbia, in force on 17 February
2008, did not allow for the unilateral secession of parts of it, the determination of the
conformity with the international law of the DOi - which equates with the determination of
their right ta unilaterally declare Kosovo's secession from Serbia - becomes a matter of
determiningif Kosovo qualified at that moment as a subject of the right to self-determination.
Il. Right of peoples to self-determination - the rule
117. The right of peoples ta self-determination is presently considered a fundamental
principleof international law. As the Court put itEast Timor case,
"[Portugal's] assertion that the right of peoples ta self-determination, as it
evolved from the Charter and from United Nations practice, has an erga omnes
character is irreproachable. The principle of self-deterrnination of peop/es has
been recognized by the United Nations Charter and by the jurisprudence of the
n Reference re Secession of Quebec, Supreme Court of Canada, 1998, para. 112, available at
http://csc.lexum.umontreal.ca/en/1998/1998rcs2-217/1998rcs2-217.pdf;
33 Court [...]; it is one of the essential principles of contemporary international
law".78
118. Although mostly spoken of in the context of the process of decolonization, the principle
of the right of peoplès ta self-determination has a general, broad application.
119. At universal level, the principle of self-determination is enshrined in the UN Charter,
the UN Covenants on Civil and Political Rights and respectively on Economie, Social and
Cultural Rights, as well as in the UN General Assembly's Declaration on Principles of
International Law concerning Friendly Relations and Co-operation among States in
accordance with the Charter of the United Nations (General Assembly Resolution 2625
(XXV)).
120. Thus, the latter document states that
"By virtue of the principle of equal rights and self-determination of peoples
enshrined in the Charter of the United Nations, ail peoples have the right freely to
determine, without external interference, their political status and to pursue as
they wish their economic, social and cultural development, and every State has
the duty to respect this right in accordance with the provisions of the Charter.
[..]
The territory of a colony or other non self-governing territory has, under the
Charter, a status separate and distinct from the territory of the State
administering it; and such separate and distinct status under the Charter shall
exist until the people of the colony or non-self-governing territory has exercised
the right of self-determination in accordance with the Charter[ ...]
Nothing in the foregoing paragraphs shall be construed as authorizing or
encouraging any action which would dismember or impair, totally or in part, the
territorial integrity or political unity of sovereign and independent States
conducting themselves in compliance with the principle of equal rights and self
determination of peoples as described above and thus possessed of a
government representing the whole people belonging to the territory without
distinction as to race, creed or color.
Every State shall refrain from any action aimed at the partial or total disruption of
die national unity and territorial integrity of any other State or country".
121. Almost similar language was used by the Vienna Declaration of the UN World
Conference on Human Rights, adopted on 25 June 1993 80, as well as by the UN General
78Case Concerning East Timor (Portugal v. Australia), Judgment, ICJ Reports 1995, p. 102, para. 29;
79 A/RES/2625 (XXV) in Resolutions adopted on the Report of the Sixth Committee, available at
80tp://www.un.org/Docs/asp/ws.asp?m=A/RES/2625%20(XXV);
A/CONF.157/24 (Part I);
34 Assembly's Declaration on the Occasion of the Fiftieth Anniversary of the United Nations,
81
adopted by GA Resolution 50/6, on 9 November 1995.
122. At European level, the principle is included among the ten principles regulating the
relations among the States participating to the Conference on Security and Co-operation in
Europe (later-on, OSCE) - the Helsinki Final Act - which states that
"The Participating States will respect the equal rights of peoples and their right to
self-determination, acting at ail times in conformity with the purposes and
principles of the Charter of the United Nations and with the relevant norms of
international law, inc/uding those relating to territorial integrity of States.
By virtue of the principle of equal rights and self-determination of peoples, all
peoples always have the right, in full freedom, to determine, when and as they
wish, their internai and external political status, without external interference and
to pursue as they wish their political, economic, social and cultural
development". 82
123. Based on these texts, the doctrine and relevant case-law concur in concluding that,
outside the colonial context, the rule established by the principle of self-determination is that
peoples exercise this right within the existing States. As the Supreme Court of Canada
stated,
"international law expects that the right to self-determination will be exercised by
peoples within the framework of existing sovereign states and consistently with
83
the maintenance of the territorial integrity of those states".
The Court alsa found that
"[t]he recognized sources of international law establish that the right of self
determination of a people is normally fulfilled through internai self-determination
- a people's pursuit of its political, economic, social and cultural development
84
within the framework of an existing state".
124. The Committee on the Elimination of Racial Discrimination, in its General
Recommendation XXI on the right to self-determination, came to the conclusion that:
"international law has not recognized a general right of peoples unilaterally ta
declare secession from a State. ln this respect, the Committee follows the views
expressed in An Agenda for Peace (paragraphs 17 and following), namely, that a
fragmentation of States may be detrimental ta the protection of human rights, as
wel/ as to the preservation of peace and security. This does not, however,
81AfRES/50/6;
82http://www.osce.org/documents/mcs/1975/08/4044_en.pdf;
83
Reference re Secession of Quebec, SupremeCourt of Canada, 1998, para. 122, available at
http://csc.lexum.umontreal.ca/en/1998/1998rcs2-2 /11798rcs2-217.pdf;
84 Reference re Secession of Quebec, SupremeCourt of Canada, 1998, para. 126, available at
http://csc.lexum.umontreal.ca/en/1998/1998rcs2-2 /19798rcs2-217.pdf;
35 exclude the possibility of arrangements reached by free agreements of ail parties
concerned". 85
125. The Human Rights-Committee aise views the right to self-determination as having an
internai character, the States being under the obligation of reporting on the measures
undertaken at normative level on the implementation of the right to self-determination.
General Comment 12 (Right to self-determination) of the Human Rights Committee illustrates
the view of the Committee to that end:
"Article 1 enshrines an inalienable right of all peoples as described in its
paragraphs 1 and 2. By virtue of that right they freely "determine their political
status and freely pursue their economic, social and cultural development". The
article imposes on ail States parties corresponding obligations. This right and the
corresponding obligations concerning its implementation are interrelated with other
provisions of the Covenant and rules of international law.
Although the reporting obligations of ail States parties include article 1, only some
reports give detailed explanations regarding each of its paragraphs. The
Committee has noted that many of them completely ignore article 1, provide
inadequate information in regard to it or confine themselves to a reference to
election laws. The Committee considers it highly desirable that States parties'
reports should contain information on each paragraph of article 1.
With regard to paragraph 1 of article 1, States parties should describe the
constitutional and political processes which in practice allow the exercise of this
right".6
126. ln 2006, the Association of the Bar of the City of New York issued a report titled
Thawing a Frozen Conf!ict: Legat Aspects of the Separatist Crisis in Mo!dova, which
concludes the following:
"The assumption is that such a pursuit of economic, social and cultural
development would occur under the auspices87f an existing State, and would net
require the establishment of a new State".
127. The Arbitration Commission established by the European Communities in 1991 in
order to provide legal advice in the context of the dissolution of Yugoslavia (commonly known
as the Badinter Commission), was confronted, among others, with the issue of self
determination. Following the rendering of Opinion No.1 of the Commission, the European
Community issued the Guidelines on Recognition of New States in Eastern Europe and the
Soviet Union, whLch refer to "the principles of the Helsinki Act and the Paris Charter, in
85
Compilation of General Comments and General Recommendations adopted by Human Rights
Treaty Bodies, HRI/GEN/1/Rev.7, p. 213-214;
86 paragraphs 2-4 of General Comment nr. 12 in Compilation of General Comments and General
87commendations adopted by Human Rights Treaty Bodies, HRI/GEN/1/Rev.7, p. 134;
http://www.nycbar.org/pdf/report/NYCity%20BarTransnistriaReport.pdf;
36 particular the principle of self-determination".88 The Commission itself, in its Opinion No. 2,
considered that:
"[...] it is well established that, whatever the circumstances, the right to self
determination must not involve changes to existing frontiers at the time of
independence (uti possidetis juris) except where the States concerned agree
89
otherwise".
128. This assessment was given by the Commission while considering whether the Serbian
population in Croatia and Bosnia and Herzegovina had a right to self-determination. The
Commission went on to specify that
"[w]here there are one or more groups within a State constituting one or more
ethnie, religious or language communities, they have the right to recognition of
their identity under international law.
[..]
Article 1 of the two 1966 International Covenants on Human Rights establishes
that the principle of the right to self-determination serves to safeguard human
rights. By virtue of that right every individual may choose to belong to whatever
ethnie, religious or language community he or she wishes. ln the Commission's
view one possible consequence of this principle might be for the members of the
Serbian population in Bosnia-Hercegovina and Croatia to be recognized under
agreements between the Republics as having the nationality of their choice, with
ail the rights and obligations which that entails with respect to the States
90
concerned".
129. Thus, the Commission expressly denied that the right to self-determination has an
"external" facet implying a right of secession from existing States. On the contrary, the
Commission emphasized the "internai" facet of the right of self-determination: as a rule of
international law, the right of self-determination implies its exercise within the frontiers of the
existing States, of course with States taking due account of their obligations under
international law to respect human rights, including rights of persans belonging to national,
ethnie or linguistic minorities.
130. This conclusion is also supported by doctrine. Professor Crawford summarizes the
situation as follows:
"[...] the principle of self-determination applies in the following cases:
88
16 December 1991 Declaration of the European Council on the "Guidelines on the Recognition of
New States in Eastern Europe and in the Soviet Union" available in European Journal of International
Law, no. 4(1993), p. 72;
89 Arbitration Commission, Opinion No. 2, 11 January 1992, European Journal of International Law,
90. 3 (1992),p. 183-184;
Arbitration Commission, Opinion No. 2, 11 January 1992, European Journal of International Law,
no. 3(1992), p. 183-184;
37 First, it applies to entities whose right to self-determination is established under or
pursuant to international agreements, and in particular to mandated, trust and
non-self-governing territories.
Second, it applies to existing States [...]. ln this case the principle of self
determination normal/y takes the we/1-known form of the rule preventing
intervention in the internai affairs of a State, central element of which is the right
of the people of the State to choose for themselves their own form of government.
ln this sense, at least, self-determination is a continuing, and not a once-for-al!
right. Since self-determination units are coming increasingly to be States [...] it is·
likely that self-determination in the future will be a more conservative principle
91
than has sometimes been feared". (emphasis added)
131. Applying these findings to the Kosovo case, the following conclusions are apparent:
- since there was no agreement in force at the date of the DOi (neither in the form of a
bilateral or multilateral treaty, nor, as shown above, 92in the form of a binding UN document)
providing for the application of the right of self-determination to Kosovo, Kosovo was not at
that moment (and is not now) an entity entitled to the right of self-determination implying
uni!atera/secession tram Serbia;
- at the moment of the DOi, the inhabitants of Kosovo were entitled (and are entitled now) to
exercise their right to self-determination, together with the rest of the inhabitants of Serbia, by
freely pursuing their political, economic, social and cultural development within the State of
Serbia;
- conversely, the authorities of Serbia were (and are) under the obligation to ensure the free
exercise of the right of self-determination of all the people of Serbia (including Kosovo); this
obligations subsumes the obligation to ensure that no part of the people of Serbia (including
Kosovo) is abusively or discriminatory excluded from the exercise of its right to self
determination on grounds of ethnicity, language or religion;
- Serbia was aise (and still is) under the obligation to fully respect and implement human
rights, including the rights of persans belonging to national minorities, such as the non
Serbian inhabitants of Kosovo, as provided for by the applicable international treaties.
91 James Crawford, ïhe Creation of States in International Law,Second Edition, Clarendon Press,
Oxford, 2006, p. 126;
92See supra paras 10-57 of the Written Statement of Romania;
38 Ill.Rightof peoplesto self-determination - theexception
132. From the general rule according to which the primary units to which the right to self
determination applies are the existing States, the doctrine formulated a possible exception:
the application of the principle to parts of existing States in exceptional circumstances, in
case those specific parts are denied a meaningful exercise of the right to self-determination.
ProfesserCrawford terms this as
'"remedial secession' in the case of a State that does not conduct itself in
compliance with the principle of equal rights and self-determination of peoples;
e.g. in the case of total denial to a particular group or people within the State any
raie in their own government, either through their own institutions or the general
institution of the state".
133. This exception may tentatively be justified by the language found in the UN General
Assembly's Declaration on Principles of International Law concerning Friendly Relations and
Co-operation among States in accordance with the Charter of the United Nations (General
Assembly Resolution 2625 (XXV)), according to which
"[n]othing in the foregoing paragraphs shall be construed as authorizing or
encouraging any action which would dismember or impair, totally or in part, the
territorial integrity or political unity of sovereign and independeStates conducting
themselves in compliance with the princip/e of equal rights and self-determination
of peoples as described above and thus possessed of a government representing
the who/e people belonging to the territory without distinction as to race, creed or
94
co!or' (emphasis added).
134. Taking into account this text, it might be argued that in cases where States do not
conduct themselves in compliance with the principle of self-determination of peoples and
discriminatory exclude from the exercise of this right parts of, or groups from, their people,
the oppressedgroups might invoke, as a remedy, a right to self-determination of their own.
135. This theory was analyzed by the Supreme Court of Canada as well, in the case on
Quebec Secession. The Court described it as
93James Crawford, The Creation of States in International Law, Second Edition, Cfarendon Press,
94ford, 2006, p. 119;
NRES/2625 (XX:V)in Resolutions adopted on the Report of the Sixth Committee, avaifabfe at
http://www.un.org/Docs/asp/ws.asp?m=NRESl2625%20(XXV). See afso the Vienna Decfaration of
the UNWorfd Conference on Human Rights, adopted on 25 June 1993, which states that the right ta
seff-determination "shalf not be construed as authorizing or encouraging any action which would
dismember or impair, totalfy or in part, the territorial integrity or political unity or sovereign and
independent States conducting themse/ves in comp/iance with the princip/e of equa/ rights and se!f
determination of peop/es and thus possessed of a Government representing the who/e people
be!ongingto the territory without distinction of any kind." (emphasis added) - NCONF.157/24 (Part I);
39 "the underlying proposition is that, when a people is blocked from the meaningful
exercise of its right to self-determination internally, it is entitled, as a last resort, to
95
exercise it by secession".
Earlierin the same Opinion, the Court had made it very clear that
"[a] right to external self-determination (which in this case potentially takes the form
of the assertion of a right to unilateral secession) arises only i96the most extreme of
cases and, even then, under carefully defined circumstances".
136. The Association of the Bar of the City of New York, in its 2006 report on the
Transnistrian conflict, also referred to the "external" aspect of the right to self-determination,
by trying ta identify the conditions needed for a claim ta "remedial secession":
"At the very least, an argument for external self-determination would need to prove
that (a) the secessionists were a "people", (b) the state in which they are currently
part brutally violates human rights, and (c) there are no other effective remedies
under either domestic law or international law". 97
137. ln bath instances it was found that, under the particular circumstances, the respective
entities -i.e. Quebec and Transnistria - did not qualify as meeting the criteria necessary to
entitle them ta "remedial secession" in the application of the right to self-determination.
138. Even though the "remedial secession" theory is not yet fully established in international
law and is still wanting of meaningful State practice, it is of interest to make its application to
the case under discussion, in order ta establish whether, at the mome'nt of the proclamation
of the DOi, the people of Kosovo found themselves in such an exceptional situation that
could have justified "remedial secession". Only in such a case, the Provisional Institutions of
Self-Government in Kosovo could be said ta have acted in the exercise of the right ta self
determination, thereby ensuring the lawfulness of their unilateral declaration of
independence.
139. ln assessing this case, two aspects may be considered:
- first, whether the people of Kosovo were subject, on the moment of the DOi, to gross
violation of human rights or other form of oppression capable to deny it any meaningful
exercise of its right to self-determination internally, together with the rest of the people of
Serbia;
95
Reference re Secession of Quebec, Supreme Court of Canada, 1998, para. 134, available at
http://csc.lexum.umontreal.ca/en/1998/1998rcs2-217/1998rcs2-217.pdf;
96 Reference re Secession of Quebec, Supreme Court of Canada, 1998, para. 126, available at
97tp://csc.lexum.umontreal.ca/en/1998/1998rcs2-217 /1998rcs2-217.pdf;
http://www.nycbar.org/pdf/report/NYCity%20BarTransnistriaReport.pdf;
40 - second, whether in such a case there was no option available to the people of Kosovo to
ensurethe full exercise of their right to self-determination internally within the State of Serbia
(since,to quote the Supreme Court of Canada, remedial secession is only the "last resort"). 98
140. Remania remarks that the second aspect should corne into play only if the answer ta
the first were in the positive. lndeed, only if found that the people of an entity are abusively
deniedthe meaningful exercise of their right to self-determination internally within their State,
the assessments of remedial options arise, with secession coming in the end as "the last
resort".
141. This statement will not analyze whether the population of Kosovo represent "a people".
Romania's firm conviction is that, in fact, the population of Kosovo is not a people, but is
made up of various ethnicities, which - in view of Serbia's total population - represent
national minorities (e.g. Albanians, Turks, Bosnians), ethnie minorities (e.g. Goranis, Roma,
Ashkalis, Egyptians) or are part of the Serb majority.
142. lt is generally admitted that the international law does not recognize a right to self
determinationfor national minorities distinct from the right to self-determination of the entire
"people"of their state and implying a right of secession therefrom. The persans belonging ta
national minorities are entitled to the exercise of the internai right to self-determination
togetherwith ail the other inhabitants of the existing States, withinthese States. 99 But not the
externalself-determination.
143. As Rosalyn Higgins observes,
" [...] minoritiesas such do not have a right of self-determination. This means, in
effect, that they have no right ta secession, ta independence, or to join with
comparable groups in other states". 100
144. The non-recognition of a special right to self-determination or secession for national
minorities is perfectly compatible with the requirements of stability and predictability of the
international relations and the international law. On the contrary, the recognition of such an
unqualified right could irreparably affect these stability and predictability. ln the already
quotedtreatise, Professor Rosalyn Higgins explains:
98
Reference re Secession of Quebec, Supreme Court of Canada, 1998, para. 134, available at
http://csc.lexum.umontreal.ca/en/1998/1998rcs2-217/1998rcs2-217.pdf.
99See supra para. 123 of the Written Statement of Romania;
100Rosalyn Higgins, Problems & Process. International Law and How We Use if, Clarendon Press,
Oxford, 1996, p. 124;
41 "the reality is that secession may not cure ail the problems. There may be an area in
a state where a particular minority is regionally predominant. [...] But within this
regional area there may be a minority of the predominant minority - perhaps
persans belonging to the national majority, or to yet another ethnie minority. [...]
Virtually every minority has its own minority [...] The lesson we must draw is that the
right of self-determination is interlocked with the proper protection of minority rights
- but that they are discrete rights, not to be confused with each other".01
145. The first issue at stake is hence whether the population of Kosovo, irrespective of its
national or ethnie characteristics, was subject,at the moment of the DOi, to gross violation of
human rights or other form of oppression capable to deny it any meaningful exercise of its
right to self-determination internally, together with the rest of people of Serbia.
146. lt is undisputed that, starting with 1996, serious violations of human rights were
committed in Kosovo, mainly by military and paramilitary forces under the command or
control of the Serbian authorities. The graveness of the situation prompted the international
community to intervene and in 1999, Kosovo was provisionally placed under the UN
administration.
147. Thus, it could be effectively argued that, until the moment of the intervention of the
international community in 1999, the population of Kosovo was arbitrarily denied the exercise
of its right to self-determination internally, by reasons of nationality or ethnicity.
Consequently, it might be said that, at that moment, Kosovo could have successfully claimed
the right to self-determination leadingto remedial secession. Still, not even then was this the
case: UN SC Resolution 1244 mentioned nowhere the notion of "self-determination", but
affirmed for several times the territorial integrity of the then-Yugoslavia. 102 Obviously, the
international community did not consider in 1999 the situation in Kosovo of such a nature as
to justify a case of remedial secession.
148. Of relevance is the view of the Committee on the Elimination of Racial Discrimination
on the adoption of its decision on Kosovo on 9 August 1999 (Decision 1(55)). The Committee
took account of the events that occurred in Kosovo and of the entire context in the region,
and asserted at the same time its support for multi-ethnic societies. Further-on, the
Committee emphasized that:
"the implementation of the principle of self-determination requires every State to
promote, through joint and separate action, universal respect for an observance of
101
Rosalyn Higgins, op.cit.p. 125;
102For a detailed analysis of UNSC Resolution 1244 see supra paras. 41-46 of the Written Statement
of Remania;
42 human rights and fundamental freedoms in accordance with the Charter of the
United Nations. Equally, the Committee has expressed its view that international
law has not recognized a general right of peoples unilaterally to declare secession
from a State".103
149. ln any case, it is not the period previous ta 1999 or the precise moment of the
adoptionof UN SC Resolution 1244 which is the point of reference. The DOi was unilaterally
adopted by the Provisional Institutions of Self-Government of Kosovo_a _/most a decade after
the events in 1999, respectively on 17 February 2008; it is this moment which must be
considered.
150. From the outset it must be mentioned that, by and large, on 17 February 2008 Kosovo
was not under the de facto contrai of Serbia, having provisionally been placed under the
administration of the UN, by UN SC Resolution 1244. Therefore, as a matter of fact, the
populationof Kosovo was not, at that moment, subject to any mistreatment from the Serbian
authoritiessuch as ta justify a remedial secession.
151. Nevertheless, in order to have a clear and accurate picture of the case, the probability
of such mistreatment, should Kosovo have been under the jurisdiction of Serbia on the
momentof the DOi must be assessed.
152. The present Serbian Constitution (also in force on the moment of the DOi) defines
Serbia as a state "based on the rule of law and social justice, principles of civil democracy,
human and minority rights and freedoms, and commitment to European principles and
values."According toArticle 2 of the Constitution, "[s]overeignty is vested in citizens [...]" and
"[n]ostate body, political organization, group or individual may usurp the sovereignty from the
citizens, nor establish government against freely expressed will of the citizens".
153. The Constitution dedicates its Part Il to "Human and Minority Rights and Freedoms".
This part comprises 64 articles and covers a wide range of rights, ta which we might add
articles 82 to 90 from Part Ill of the Constitution ("Economie System and Public Finances"),
which deal also with fundamental human rights.
154. The Opinion on the Constitution of Serbia adopted by the European Commission for
th
Democracy Through Law (Venice Commission) at its 70 plenary session (17-18 March
103Report of the Committee on the Elimination of Racial Discrimination Fifty-fourth sessio(1-19
March 1999), Fifty-fifth session (2-27 August 1999), Supplement No. 18 (N54/18), para. 4 of
Decision1(55) p. 11;
43 2007) 104- which is a rather critical report regarding various aspects of the Constitution -
refersto its part dedicated to human rights in the following terms:
"[...] ln sum, nearly 70 Articles are dedicated to fundamental rights, i.e.
approximately one third of the 206 Articles of the Constitution. From an
international and a comparative perspective this number is quite remarkable, in
absolute and in relative terms. lt shows that Human Rights form an integral and an
important part of constitutional law and it makes it clear that attention is paidto this
element and basic feature of a democratic society in the sense of European
Standards such as the European Convention on Human Rights.
Part Il resembles the previous Charter on Human and Minority Rights and
Freedoms of the State Union [...]. lt must be recalled at the outset, that the Charter
of the State Union was very positively assessed by the Venice Commission in
2003. [...]
Part Il fully covers ail areas of "classical" human rights. Their content is in line with
Europeanstandards and goes in some respect even beyond that". 105
155. The 2008 Human Rights Report of the State Department on Serbia (released on 25
February 2009), while noting various shortcomings, concludes that "[t]he government
106
generally respected the human rights of its citizens" and, referring to the 2008 elections,
that "[t]he OSCE and other election observers, including domestic organizations, judged
107
these elections mostly free and fair". lt must be noted that the phrase "generally respected
human rights" is, according to the Explanatory Notes to the Reports, "the standard phrase
used to describe all countries that attempt to protect human rights in the fullest sense, and is
108
thus the highest level of respect for human rights" assigned by the State Department's
reports.
156. ln this context, the obvious conclusion is -that the general situation of Serbia, in
particular regarding human rights and people's participation to the government, meets
presently the generally recognized universal and European standards, and so it did at the
moment of the DOi. Consequently, there is no reason to believe that Kosovo, at the moment
of the DOi, have been under Serbia's contrai and its population would have been victim of
oppression, brutal violation of human rights or unjust exclusion from the exercise of its right of
internai self-determination together with the rest of people of Serbia - which would have
justified a case of "remedial secession".
104 Opinion no. 405/2006, CDL-AD(2007)004, available at http://www.venice.coe.int/docs/2007/CDL
AD(2007)004-e. pdf;
105
Opinion no. 405/2006, CDL-AD(2007)004, available at http://www.venice.coe.int/docs/2007/CDL
AD(2007)004-e. pdf;
106available at http://www.state.gov/g/drl/rls/hrrpt/2008/eur/119103.htm;
107http://www.state.gov/g/drl/rls/hrrpt/2008/eur/119103.htm;
108
http://www.state.gov/g/drl/rls/hrrpt/2008/eur/119103.htm;
44 157. Having corne to this conclusion, there is no need to analyze whether on the moment of
the DOi there was an option avai!able to Kosovo to ensure the full exercise of its right ta self
determination internally within the State of Serbia. Having found that at that moment the
inhabitants of Kosovo were not subject ta mistreatment from the Serbian authorities and
therewas no reason to believe that they would have been denied the exercise of their right to
self-determination within Serbia, such a discussion is not required.
158. The present Serbian constitutional establishment, as well as Serbia's approach during
the status negotiations which took place between 2006 and 2008, represent guarantees
ensuring that, even if on the moment of the DOi there could have been fears that the
inhabitantsof Kosovo would have been denied the exercise of their right of self-determination
within Serbia, such fears remain objectless. The recourse to secession was, thus, unjustified.
159. To conclude, at the moment of the DOi - 17 February 2008 - the criteria which might
have justified the application of the "remedial secession" of Kosovo from Serbia, as an
exercise of the external right of self-determination for the population of Kosovo, were not met.
Kosovo was not at that moment (and is not now) an entity entitled to the right of se/f
determinationimplying uni/ateral secession from Serbia.
45 Chapter 5
Conclusions
160. This Written Statement was confined to a legal examination, from the point of view of
the international law, of the right - or lack thereof - of the Provisional Institutions of Self
Government of Kosovo to unilaterally declare the independence of Kosovo from Serbia. This
analysis was based on the relevant international law in force on the moment of the DOi -
principles of international law, as enshrined in universal and regional instruments, as
reflected by State practice and case-law of international courts and as commented by
relevant doctrine, as well as documents adopted by the United Nations.
161. This Written Statement refrained from including historical or political analyses or
assessments, since it is the law which is on the docket of the World Court. Romania brought
this contribution with the conviction that, thus, it will contribute to reaching a sustainable
solution to the Kosovo issue and to promoting peace, stability and development in the
Western Balkans region.
162. Having considered the legal and factual resources relevant to the case, in conclusion,
on the moment of the adoption of the declaration of independence:
- under the provisions of the relevant United Nations Resolutions, including but not limited to
UN SC Resolution 1244 (1999), the Provisional Institutions of Self-Government of Kosovo
had no right to unilaterally adopt a solution for the final status of Kosovo which disregarded
the territorial integrity of Serbia;
- under the provisions of UN SC Resolution 1244 (1999) and the relevant regulations of the
United Nations Mission in Kosovo, the Provisional Institutions of Self-Government of Kosovo
had no competence to unilaterally adopt any solution for the final status of Kosovo;
- under the principles of international law, Serbia had the right to territorial integrity and
inviolability of its frontiers; consequently, the Provisional Institutions of Self-Government of
Kosovo had no right to adopt any unilateral solution for the final status of Kosovo in disregard
of these rights;
- under the principles of international law, the population of Kosovo had no right to self
determination implying unilateral secession from Serbia; consequently, the Provisional
Institutions of Self-Government of Kosovo had no right to adopt any unilateral solution for the
final status of Kosovo implying such an outcome.
46163. Consequently, the unilateral declaration of independence by the Provisional
Institutions of Self-Govemment of Kosovo is not in accordance with international law.
Câlin Fabian
Ambassador Extraordinary and Plenipotentiary of Remania
to the Kingdom of Netherlands
47
Written Statement of Romania