INTERNATIONAL COURT OF JUSTICE
Request for an Advisory Opinion
"ls the Unilateral Declaration of lndependencbythe Provisional
Institutions of Self-Government of Kosovo in accordance with
international law?"
STATEMENT BY THE GOVERNMENT OF AUSTRIA
Vienna, 16 April 2009 Content
I. Introduction ........................................................................
................................................ 3
II. Factual Background........................................................................
.................................... 4
ID. The conformity of the Declaration with_Resolution1244 and other rules of
international Law........................................................................
................................................ 9
A. Content of the Declaration ........................................................................
..................... 9
B. The signatories of the Declaration are not debarred by international law including
Resolution 1244from acting in the field of external relations............................................... 9
1. The signatories of the Declaration acted as representatives of the Kosovar people 10
2. The signatories, as Assembly, acted in conformity with international law including
Resolution 1244........................................................................
........................................ 11
C. The issuance of the Declaration breaches neither Resolution 1244nor other rules of
international law........................................................................
........................................... 13
D. The substance of the Declaration is not contrary to Resolution 1244 or other rules of
international law, irrespective of its inability to create independence or statehood............ 16
1. The substance of the Declaration is not inbreach of Resolution 1244.................... 16
a) Resolution 1244does not preclude independence ............................................... 16
(i) Independence constitutes a political settlement not excluded by Resolution
1244........................................................................
.................................................. 16
(ii) The international civil presence does not hamper independence ................. 18
b) The substance of the Declaration is not contrary to the object and purpose of
Resolution 1244........................................................................
.................................... 19
c) The Declaration excludes any conflict with Resolution 1244 and the principles of
international law........................................................................
................................... 20
2. The substance of the Declaration is not in breach of general international law.......21
E. Absence of objections by UN Organs........................................................................
.. 23
IV. Conclusion........................................................................
............................................ 26
21. INTRODUCTION
1. On 8. October 2008 the United Nations General Assembly adopted Resolution
A/RES/63/3 whereby it decided, in accordance with Article 96 of the Charter of the United
Nations, to request the International Court of Justice pursuant to Article 65 of the Statute of
the Court to render an advisory opinion on the following question: "Is the unilateral
declaration of independence by the Provisional Institutions of Self-Government of Kosovo in
accordance with international law?" By an Ortler dated 17October 2008, concerning the case
of Accordance with International Law of the Unilateral Declaration of Independence by the
Provisional Institutions of Self-Govemment of Kosovo (Request for an Advisory Opinion), the
Court established the procedures to be followed in this case. By that Order, the Court decided,
inter alia, that "the United Nations and its Member States are considered likely to be able to
fumish information on the question submitted to the Court for an advisory opinion".
Accordingly, the following statement is submitted.
2. The question addressed to the Court is concerned solely with the lawfulness of the
Declaration of Independence (further: "Declaration") by the Provisional Institutions of Self
Government of Kosovo (further: "PISG") under international law. It relates neither to the
question of a right to self-determinationunder international law and the scope of such right, to
the statehood of Kosovo nor to the legality of the recognition of Kosovo by other states.
Consequently, this statement does not deal with the substance of self-determination, the
existence of a State of Kosovo and the latter's recognition. Neither does it address the issue of
conformity of the Declaration with national law, such as the present Constitution of the
Republic of Serbia of 30 September2006.
33. Austria's interest in the case results from its geographical proximity as well as its close
historical ties with the region. With rising concern Austria has witnessed the occurrence of
conflict, atrocities and grave injuries to the civilian population. As a matter of regional
stability it is important to Austria that a permanent peaceful solution can be found and that
further suffering must not be endured by the people in Kosovo.
4. The purpose of this statement is to demonstrate that international law including
Resolution 1244 does not prohibit the authors of the Declaration from issuing it, that the fact
of the issuance of the Declaration is not addressed by international law and that the content of
the Declaration is in accordance with international law including Resolution 1244. Itwill be
further established that the organs of the UN, namely the Special Representative of the
Secretary-General (SRSG), the Secretary-General and the Security Council, did not object to
the issuance of the Declaration and by this conduct accepted the conformity of this act with
international law including Resolution 1244.
Il. FACTUALBACKGROUND
5. Under the 1974 Constitution of the Socialist Federal Republic of Yugoslavia (SFRY)
Kosovo enjoyed the status of an autonomous province of Yugoslavia while remaining a
constituent part of the Republic of Serbia. 1 As an autonomous province, Kosovo was entitled
2
to participate in the federal institutions (including some veto rights) and it had the right to
maintain its own constitution, a parliamentary assembly andits ownjudiciary.
1
Constitution of the Federal Socialist Republic of Yugoslavia, 21 February 1974, Basic Principles Arts. I and II,
reproduced inBlaustein,A. P./FlanzG. H. (eds.), Historie Constitutions of the Countries of the World, Vol. 17,
issued December 1974.
2
See e.g., IbiArt. 398 conceming amendrrients to the constitution.
46. On 28 March 1989, the Assembly of Serbia approved constitutional changes which
3
effectively revoked the autonomy granted in the 1974 constitution. Thereby Kosovo's status
was reduced to that of a municipality and formerly autonomous rights were now attributed to
the central authorities in Belgrade. The Constitutional Court of Serbia was vested with the
4
power to invalidate legal acts of the institutions of Kosovo. In addition, autonomous
5
provinces were deprived of their right to veto future amendments to the Serbian constitution.
In 1990 the Govemment of the Serbian Republic dissolved the Assembly and the status of
autonomy of Kosovo lost all of its substance.
7. After the disintegration of the SFRY, a new Constitution of the Federal Republic of
Yugoslavia (Serbia and Montenegro) was adopted in April 1992. In this Constitution no
reference to a status of autonomy for certain provinces was included: Kosovo was part of the
6
Republic of Serbia without any special rights. Conflicts erupted between Albanians living in
Kosovo and Serb authorities which escalated in 1998 with the occurrence of massive
violations of human rights. The Independent International Commission on Kosovo documents
"a humanitarian catastrophe for the civilian Kosovar Albanian population" 7 and the
occurrence of "numerous atrocities that appeared to have the character of crimes against
8
humanity" .In the recent Milutinovié Judgment the ICTY's Trial Chamber held that crimes
against humanity, violations of the laws or customs of war, deportation, forcible transfer and
3
Prosecutorv.Slobodan Milosevié andotliers,Indictment,22May l999, InternationalTribunalforthe
ProsecutionofPersonsResponsibleforSeriousViolationsoflnternationalHumanitarianLaw intheFormer
Yugoslaviasince 1991(hereinafterICTY)CaseNo.IT-99-37atpara. 11.
4
ConstitutionoftheRepublicof Serbia,28September1990,Art. 130,availableat www.unpan.org(lastvisited
17February2009).
5
SeeStalin,C.,ConstitutionwithoutaState?KosovoUndertheUnitedNationsConstitutionalFrameworkfor
Self-Government,14LeidenJournalofInternational Law 53l (2001);Malcolm, N.,Kosovo:A ShortHistory,
Chapter17(1998).
6
TheConstitutionof theSocialistFederalRepublicofYugoslavia(SerbiaandMontenegro)of27April I992
doesnotmentionautonomousprovincesor regions.Availab\eathttp://www.uta.edu/cpsees/YUGOCON.htm
(lastvisitedl7February2009).
1
Independent fnternational Commission on KosovoTheKosovoReport 163(2000).
8
Ibid.p. 164.
5persecution on ethnie grounds were committed by the Yugoslav army and Serbian MUP
9
forces between 1 January and 20 June 1999 in Kosovo. The Chamber also established that
acts were committed by Ni.kolaSainovié, a Deputy Prime Minister of the Federal Republic of
Yugoslavia (FRY) and others with the intent to forcibly displace part of the Kosovo Albanian
population, both within and without Kosovo, and thereby to change the ethnie balance in the
, 10
provmce.
8. In an attempt to diffuse tensions in Kosovo, an international peace conference was
organised in Rambouillet, France beginning in February 1999. The Interim Agreement for
Peace and Self-Govemment of Kosovo (Rambouillet Accords), resulting from this
conference, would have enabled democratic self-government of Kosovo during a 3-year
11 12
interim period as well as an international implementation mission for this purpose •The
document was signed on 18March 1999 only by the representatives of Kosovo. The Republic
of Serbia, as part of the FRY, and the FRY in its own right refused to accept the agreement.
9. This failure to conclude an agreement and the continuing massive violations of human
rights prompted NATO intervention on 24 March 1999. As held by the ICTY's Trial
Chamber in the Milutinovié case, during the course of NATO intervention a broad campaign
of violence was directed against the Kosovo Albanian civilian population, conducted by
13
forces under the control of the FRY and Serbian authorities. On 9 June 1999 KFOR, the
FRY and the Republic of Serbia signed the "Military Technical Agreement" which provided
9Prosecutorv. MilanMilutinoviéandothers , rial Chamber Judgment, 26 February 2009, ICTY, Case No. IT-
05-87-T,Volume III paras.475,788,930,1138.
10Prosecutorv.MilanMilutinoviéandothers ,rial Chamber Judgment, 26 February 2009, ICTY, Case No. IT-
05-87-T, Volume m. para 466.
11Chapter 1,Art.I and Chapter 8, Art. l(3) of the Agreement, UN Doc. S/l999/648 (7 June 1999).
12
See Ibid., Chapter 4A.
13Prosecutorv. MilanMilutinoviéandothers ,rial Chamber Judgment, 26 February 2009, ICTY, Case No. IT-
05-87-T, Volume II, para 1156.
6for withdrawal of FRY military forces (Article Il 2) and the presence of an international
security force following an appropriate UN Security Council Resolution (Article I 2). This
Resolution, adopted on 10 June 1999 as UNSC Resolution 1244 (further: "Resolution 1244"),
regulated the security presence as foreseen (operative paras 5, 7 and 9) and established an
international civil presence in order to provide interim administration (operative paras 5 and
10).
10. Subsequentnegotiations to reach a political settlement for the status of Kosovo underUN
auspices have failed to achieve their objective. In 2005 the Secretary-General appointed
Martti Ahtisaari as his Special Envoy for the Future Status Process for Kosovo. The
14
appointment was approved by the Security Council on 10 November 2005. In his capacity
as SpecialEnvoy, Mr. Ahtisaari's task was to lead the political process to determinethe future
status of Kosovo in the context of Resolution 1244. After 15 months of United Nations
sponsored negotiations, Mr. Ahtisaari prepared a Comprehensive Proposai for the Kosovo
Status Settlement. He recommended a status of independence for Kosovo, supervised by the
International Community. His recommendation and settlement proposai was approved by the
15
Secretary General, and accepted by the representatives of Kosovo. However, neither the
Security Cormeil reacted nor did Serbia accept the proposai and recommendations. The
Special Envoy was of the view that "negotiation's potential to produce any mutually
agreeableoutcome on Kosovo's status is exhausted". 16
11. Further negotiations with representatives of Serbia and Kosovo took place between
August and Decernber 2007 under the supervision of the "Troika" (consisting of
14
Letter from the President of the Security Council addressed to the Secretary-General, UN Doc. S/2005/709 (10
November 2005).
15
Letter from the Secretary-General addressed to the President of the Security Council, UN Doc. S/2007/168 (26
March 2007).
16Ahtisaari,M.Report of the Special Envoy of the Secretary-General on Kosovo 's future status, UN Doc
S/2007/268 (26 March 2007), para. 3.
7representatives of the European Union, the Russian Federation and of the United States)
which was appointed by the Secretary-General. 17 The Troïka was able to facilitate high-level,
substantive discussions between Belgrade and Pristina. Nonetheless, after intensive
negotiations the parties were unable to reach an agreement on Kosovo's status. Subsequent
meetings of the Security Council were also inconclusive on the matter of a status settlement
18
and no action was taken by the Security Council.
12. On 17 February 2008, at an extraordinary meeting in Pristina, the representatives of the
Kosovar people, gathered in the Assembly of Kosovo, issued the Declaration which is the
object of the present request. It declared the independent and sovereign state of Kosovo while
at the same announcing respect for international law as well as Resolution 1244, welcoming
the international presence and pledging conformity with the Ahtisaari Plan.
13. The Republic of Serbia requested the inclusion in the agenda of the sixty-third session of
the UN General Assembly of a supplementar.y item entitled "Request for an advisory opinion
of the International Court of Justice on whether the unilateral declaration of independence of
Kosovo is in accordance with international law". 19The draft Resolution presented by Serbia
as well as the Resolution subsequently adopted set out the following question addressed to the
Court: "Is the unilateral declaration of independence by the Provisional Institutions of Self
Govemment of Kosovo in accordance with international law?" 20 The Resolution was adopted
17See Statement by the Secretary-General on the new period of engagement in Kosovo of l August 2007, UN
Doc. S/2007/723, Annex I (10 December 2007).
18
Cf. UN Doc. S/PV.5811 (19 December 2007); UN Docs. S/PV.5822 and S/PV.5821 (l6 January 2008); UN
Doc. S/PV.5835 (14 February 2008); UN Doc. S/PV.5839 (18 February 2008).
19
Letter dated 15August from the Permanent Representative of Serbia to the United Nations addressed to the
Secretary-General, UN Doc. A/63/195 (22 August 2008).
20
UN Docs. A/63/L.2 (23 September 2008) and A/63/3 (8 October 2008).
8 nd
at the 22 meeting of the General Assembly on 8 October 2008 with 77 in favour, 6 against
21
and 74 abstentions.
Ill.THECONFORMITY OFTHEDECLARATION WITHREsOLUTION 1244 ANDOTHERRULES
OFINTERNATIONAL LAW
A. Content of the Decltiration
14. The Declaration of 17 February 2008 "declare[s] Kosovo to be an independent and
sovereign state".22 Its paragraph 3 states that the leaders of Kosovo "accept fully the
obligations for Kosovo contained in the Ahtisaari Plan" and assures implementation of these
obligations. The Declaration, in preambular paragraph 11, expresses regret "that no mutually
acceptable status outcome was possible" and in preambular paragraph 13 emphasises the
reasons why a permanent solution to the status is indispensable to "move beyond the conflicts
of the past and to realise the full democratic potential of our society". The Declaration
explicitly welcomes an international civilian presence to implement the Ahtisaari Plan as well
as the internationalmilitary presence according to Resolution 1244 (paragraph 5). In its final
paragraph 12 the Declaration expresses a commitment to the principles of international law
andResolution 1244.
B. The signatories of the Declaration are not debarred by international law
including Resolution 1244from acting in thefield of external relations
21 nd rd
Verbatim Records of the 2meeting of the UN General Assembly at its 63 session, UN Doc. N63fPV .22
(8 October 2008).
22
Declaration oflndependence of 17February 2008 (hereinafter Declaration), para. 1.
915. The main objective of the Declaration is to determine the international legal status of
Kosovo. As such, it is an act within the field of extemal relations. This is confirmed in
paragraph 11 of the Declaration that emphasizes, in particular, the desire to establish good
relationsto neighbouring states.
1. The signatories of the Declaration acted as representatives of the Kosovar
people
16. The Declaration was signed by the President of Kosovo, the Assembly President, the
Prime Minister of Kosovo (who also presented the Declaration) and the 109elected members
23
present. As indicated by this method of adoption, the members present at this Special
Sessiondid not formally actas the Assembly forming part of the PISG, but asrepresentatives
of the Kosovar people. Precisely for this purpose the text of the Declaration refers to "we, the
democratically-elected leaders of our people" as the signatories of the Declaration. Despite
the adoptionby a vote of the members of the Assembly, it is the signature of the Declaration
that demonstrates externally that the will of the Kosovar people is expressed. Elections
regularly held since 2001 and open to the entire population of Kosovo entitle the members of
the Assembly to act as representatives of the Kosovar people. 24 Acting in this capacity, the
signatories are not bound by Resolution 1244. The signatories as representatives of the
Kosovar people are not an entity created by Resolution 1244 and as such do not exercise
competences derived from this Resolution. In the same vein, the conduct of the signatories
acting in their capacity as representatives of the Kosovar people is not governed by
internationallaw as they arenot acting as subjects of internationallaw.
23Transcript of the Special Plenary Session of the Assembly of Kosovo on the Declaration of Independence, 18
February 2008, prepared by the Transcript Unit within the Assembly of Republic of Kosovo.
24Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, UN
Doc.S/2007/768 (3 January 2008), parasetseq;Cf.UNMIK.Regulations No. 2007/26 and 2007/28 on
Elections for the Assembly of Kosovo (29 August 2007).
10 2. The signatories, as Assembly, acted in confonnity with international law
including Resolution 1244
17. But even if the Declaration is seen as emanating from the Assembly as the highest
representative and legislative Provisional Institution of Self-Government in Kosovo (further:
5
PISG)2 it must be acknowledged that the Assembly is not debarred from acting in the field
of external relations. It was, together with the other PISG (the President, the Prime Minister
and several Ministries as well as a Judicial System), established pursuant to Resolution 1244
26
through the means of the international civil presence (UNMIK).
18. Resolution 1244 provides in its paragraphs 11 (c) and (d) that the functions of the
Provisional Institutions shall be "democratic and autonomous self-government" and
"administrative responsibilities". Originally, alongside the competences reserved to the SRSG
in the field of external relations to be conducted in consultation and cooperation with the
27
PISG, the Assembly was explicitly granted competences conceming "international and
28
external cooperation, including the reaching and finalising of agreements". Such activities
were, however, to be coordinated with the SRSG. 29 Resolution 1244 stipulates that gradually
a transfer of administrative responsibilities 30 as well as a transfer of authority 31 from the
international civil presence to Kosovo's institutions shall occur. Also, the Constitutional
25
Art. 9.1.1., Constitutional Framework for Provisional Self-Govemment, UNMIK/REG/200 l/9 (15May 2001),
as amended by UNMIK/REG/2007 /29 and UNMIK/REG/2002/9 (hereinafter Constitutional Framework)
available at http://www.unmikonline.org/constframework.htm (last visited 17February 2009).
26Paras. JO and 11(c), UN Security Council Resolution 1244 (1999), UN Doc. S/RES/1244 (10 June 1999),
(hereinafter Resolution 1244).
27 Chapter 8, Constitutional Framework provides: "(o) Externat relations, including with states and international
organisations, as may be necessary for the implementation of his mandate.Inexercising his responsibilities for
externat relations, the SRSG willconsult and co-operate with the Provisional Institutions of Self-Government
with respect to matters of concern to the institutions" [emphasis added].
28
Art. 5.6 Constitutional Framework.
29
Ibid.
30Para. 11(d) Resolution 1244.
31Para. 11(f)Resolution 1244.
11Framework for Provisional Self-Government, promulgated by the SRSG as a further basis for
the establishment and composition of the PISG, refers to a transfer of responsibilities several
times. 32Thus, the fact of the issuance of the Declaration is to be regarded as a manifestation
of the transfer of competences to the Assembly as stipulated in Resolution 1244.
19. When the Assembly issued the Declaration without consulting the SRSG, it assumed the
competence to act autonomously in the field of extemal relations, reflecting thereby the
transfer of responsibilities as foreseen by Resolution 1244. The SRSG did not object to this
exercise of power by the Assembly in the field of foreign relations,33despite the fact that, at
least at that moment, the Constitutional Framework still provided that "the exercise of
responsibilities by the PISG does not affect or diminish the authority of the SRSG to oversee
3
the Provisional Institutions" 4. and despite the fact that the Declaration was issued
autonomously by the Assembly. Similarly, the Secretary-General and the Security Council
did not voice objections. 35By abstaining from a negative reaction, the Security Council has
accepted the competence of the Assembly to act in this field. Moreover, since this conduct
consisting of non-objection is decisive for the interpretation of Resolution 1244 as subsequent
practice, 36the act of the issuing the Declaration has to be recognized as being in conformity
with Resolution 1244.
20. It is clear that the Assemblyhas relied on the conduct of the SRSG and other UN organs.
By adopting Kosovo's constitution on 8 April 2008 37 and going forward with the assumption
32
See Preamble, Arts. 5.2.(i) and 14.2.
33See infrapara. 41.
34Chapter 12,Constitutional Framework.
35
See UN Doc. S/PV.5839 ([8 February 2008).
36
Wood,M., The Interpretation of Security Council Resolutions, 2 Max Planck Yearbook of United Nations Law
73, 90 and 91-92 (1998).
37The Text of the Constitution is available at http://www.kosovoconstitution.info/ (last visited 17February
2009).
12of powers to the detrirnent of UNMIK's competences, the Assembly demonstrated its reliance
on the continued non-interference by the SRSG as well as other UN organs and their
acceptance of the Declaration.
21. The assumption of increasing powers of the Assembly concurred with the reduction of
the powers exercised by the SRSG. Several months after the Declaration was issued, the
Secretary-General recognized that his SRSG's authority in practice was diminishing and that
his functions could no longer be exercised to their full extent. 38 Thus the UN has recognized
the waning of the powers of the Special Representative so that parts of Resolution 1244 and
the ·powers conferred upon the Special Representative by this resolution and the
Constitutional Framework are no longer applicable. This is a further indication that the
Secretary-General is accepting the assumption of powers of the Assembly. The transfer of
powers is in accordance with paragraph 11 of Resolution 1244 and therefore the relegation of
the SRSG's authority is in conformity with the objectives of the Resolution.
C. The issuance of the Declaration breaches neither Resolution 1244 nor other
rules of international law
22. The issuance of the Declaration itself cannot cause a breach of international law
including Resolution 1244 since international law leaves "a wide measure of discretion which
is only limited in certain casesby prohibitive rules."39 Therefore, only if there were an explicit
international obligation incumbent on the signatories not to adopt such a Declaration, could
38Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, UN Doc.
S/2008/692 (24 November 2008) para. 21.
39
The Case of the SSLotus, Judgment of7 September 1928,PCU Series A, No. 10,pp. 18and 19; see also
Legality of the Threat or Useof Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports 1996, p. 226 at
para 21.
13the issuance of the Declaration be in breach of international law. Such an obligationdoes not
exist.
23. Resolution 1244 does not address the issuance of a declaration of independence and
40
therefore does not prohibit such an act. The same applies to the Constitutional Framework.
Nevertheless, it has been alleged that the Declaration proclaiming the independence of
Kosovo is not in conformity with the duty to respect the territorial integrity of the Federal
41
Republic of Yugoslavia. The respect for territorial integrity is referred to in preambular
paragraph 11 and Annex 2 of Resolution 1244. However, the question whether the
representatives of the people of Kosovo could issue a declaration of independence is not
addressed. If there were an obligation to respect the territorial integrity of the FRY it would
first, apply only for a limited period of time, namely the interim period, and second, apply
only to member states of the UN. However,the Declaration itself did not constitute astate, let
alonea member stateof the UN. 42
24. Generally, it has to be recognized that a declaration of independence as such is not
addressedby international law since it cannot be attributed to a subject of international law
capable of acting with international effect. International law is silent with regard to
declarations of independence, thus no prohibition of the Declaration can be derived from
international law. This is proved by the precedents furnished by the Republic of Slovenia's
Declaration of Independence 43 as well as the Declaration on the Establishment of the
40
See infrparas.28et seq.on theconforrnityof a statusof independenceforKosovo withinternationallaw
includingResolution1244.
41SeeStatementsmadein theSecurityCouncil,UNDoc.S/PV.5839 (L8February2008):Statementby
PresidentTadié(Serbia)at p.5, Statementby Mr.Churkin (RussianFederation)atp. 6 andMr. Wang Guangya
(China)at p. 8Orakhelashvili A.Statehood,RecognitionandtheUnitedNationsSystem:AUnilateral
Declarationoflndependence inKosovo, 12MaxPlanckYearbookofUnitedNationsLaw 1, 17(2008).
42See infraparas.33et seq.
43
Republicof SloveniaAssemblyDeclarationoflndependence, Ljubljana,25June 1991,reproducedin
Trifunovska,S.(ed),YugoslaviaThroughDocuments:From itscreationtoits dissolution,286 (1994).
14sovereign and independent Republic of Croatia of 25 June 1991. Both were issued without
the preceding consent of the then existing state of Yugoslavia, and no argument was made
45
that these declarations could be seen as violating international law.
25. In any event, it must be acknowledged that a mere declaration does not suffi.cein order
for an independent state to corne into existence. Independence is a formai legal status
resulting from social fact 46 that cannot be established by simple proclamation. Arbitrator Max
Huberhas defined independence as the right to exercise within a territory "to the exclusion of
47
anyother state, the functions of a state".
26. Similarly, such a declaration alone cannot establish a state since other elements are
required for this purpose such as: (a) a permanent population; (b) a defined territory; (c)
48
government; and (d) capacity to enter into relations with other states. State practice bas
49
applied the principle of effectiveness to the constitutive elements of the state. Accordingly,
doctrine and practice unequivocally illustrate that a declaration alone does not suffice to
establish the status of an "independent and sovereign state". Since the Declaration is unable to
create statehood it cannot be measured against rules of general international law relating to
the creation of a new State or change of territory.
44Declarationon theEstablishment of theSovereignandIndependentRepublicofCroatia,Zagreb,25 June
1991,reproducedin Trifunovska, S.(ed),YugoslaviaThroughDocuments:Fromitscreationtoits dissolution,
30l (1994); seealsotheConstitutionalDecisionon the SovereigntyandIndependenceof theRepublicof
Croatia,Zagreb,25 June l991,reproducedin Trifunovska,p. 299.
45SeeAssessmentsandPositionsof theSFRYPresidencyconcerningtheProclamationof theIndependenceof
theRepublicofCroatiaandSlovenia,Belgrade,11October 1991,reproducedin Trifunovska,p. 353.This
documentdoesnotallegeillegalityunderinternationallaw,butrefersonlyto theunconstitutionalityof the
declarations.See alsoWeller,M.,TheInternationalResponseto theDissolutionof theSFRY,86AJIL569
(1992).
46
Kreijen,G.,Transfonnationof SovereigntyandAfricanIndependence:NoShortcutsto Statehood, in:State,
SovereigntyandInternationalLaw (Kreijen,G.ed.)45, 52 (2002).
47
Island of Palmas (Netherlands v.USA), Award,4 April 1928,2 RlAA829,839(1928).
48
Art. 1,MontevideoConventionontheRightsandDutiesof States,26December1933,156L.N.T.S. 19.
49Kreijen,G.,TransfonnationofSovereigntyandAfricanIndependence:NoShortcutsto Statehood, in:State,
SovereigntyandInternationalLaw (Kreijen,G. ed.)45, 53 (2002).
15 D. ThesubstanceoftheDeclarationis notcontrarytoResolution1244orother
rulesof internationallaw, irrespectiveofitsinabilitytocreateindependenceor
statehood.
27. Notwithstanding that international law including Resolution 1244 neither infringes upon
the signatories' competence to issue the Declaration nor prohibits the factual issuance thereof,
it is further established that the content of this Declaration is equally in accordance with
international law including Resolution 1244.
1. The substance of the Declaration is not in breach of Resolution 1244
28. In order to determine whether or not certain conduct is in conformity with Resolutions of
the Security Council, it is necessary to interpret them. In doing so, regard shall be had to
teleological as well as logical and systematic interpretation taking into account the object and
50
purpose of the Resolution, as set forth in the Tadiécase. In particular, the overall political
background as well as the surrounding circumstances of adoption must be taken into account
51
due to the essentially political nature of Security Council Resolutions.
a) Resolution 1244 does not preclude independence
(i) Independence constitutes a political settlement not excluded
by Resolution 1244
29. Neither the language of the Resolution nor the language of its Annexes excludes
independence as an option for the future status of Kosovo. Resolution 1244 refers to a
"political solution" to Kosovo's status (para 1) and a "political settlement" several times (para
50Prosecutor v.DuskoTadié, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2
October 1995, ICTY, Case No. IT-94-l-AR72, 35 ILM 32 etseq.paras. 71-93 (1996).
51
Wood,Interpretatiosupra,p. 74.
1611), though it lacks clarification as to what form a political seulement is supposed to take.
Operative paragraph 1 states that a political solution shall be based on the principles set forth
in the Annexes that, however, also remain silent as to the precise form of the final status.
Though an agreement by all parties to the conflict would have been ideal, numerous attempts
2
to reach such an agreement have failed (most recently in December 2007)5 and a negotiated
status seulement seemed unaUainable to the Secretary-General's Special Envoy 53•
30. With regard to a determination of the future status of Kosovo, Resolution 1244 is, in fact,
open and does not exclude independence. Rather than presenting an obstacle to Kosovo's
development towards independence, the final settlement envisaged in Resolution 1244
comprises also a seulement by independence. Ifthis were not so, independence would have
also been excluded as a solution to a political settlement by negotiation. Resolution 1244 links
the political settlement with the holding of elections (paragraph 11 c). Indeed, the legitimacy
of the signatories of the Declaration was confinned in several successive elections. 54 These
signatories, as the legitimate representative organ of the people of Kosovo are therefore
engaged in the political process referred to by Resolution 1244.
31. Notwithstanding that the signatories of the Declaration are not bound by Resolution 1244
and that the Declaration alone cannot create statehood or affect territory, the Resolution does
not contain an obligation to respect by all means the territorial integrity of the (then) Federal
Republic of Yugoslavia since this language is confined to preambular paragraph 11.Given the
general political climate at the time of adoption of the Resolution, which must be taken into
52See Report of the European Union/United States/Russian Federation Troika on Kosovo, 4 December 2007,
UN Doc. S/2007/723, Enclosure, (LODecember 2007).
5Ahtisaari,M., Report of the Special Envoy of the Secretary-General on Kosovo's future status, UN Doc.
S/2007/168 (26 March 2007), para. 16.
54Elections to the Assembly were most recently held on 17November 2007. See Report of the Secretary
General on the United Nations Interim Administration Mission in Kosovo, UN Doc. S/2007/268 (3 January
2008), para 29; Council of Europe, Election Observation Mission, Press Release - 801(2007), 19November
2007, available at http://www.coe.int (last visited 17February 2009).
17 55
account when interpreting resolutions of the Security Council, this paragraph is to be
qualified as a reference to proposals which are not acceptable in the operative part and
therefore moved to the Preamble. 56 Although the preamble may give some indication of the
object andpurpose of the resolution, the reference to territorial integrity cannot be considered
as the main aim of the Resolution. Rather, as set out below, the object and purpose was to
ensurepeace and stability in the region. 57
32. A reference to territorial integrity is also made in Annex 2 of Resolution 1244.This can
equally not amount to an obligation to respect the territorial integrity of the FRY in any case
as the language in the Annex concerning territorial integrity is directed only towards an
interim settlement and the interim period, not a final status settlement. It has to be noted that
the Declaration can no longer be regarded as an element of the interim settlement so that it is
not subject to this obligation to respect the territorial integrity of the FRY as reflected in
Annex2 of Resolution 1244.
(ii) The international civil presence does not hamper
independence
33. It cannot be contended that independence is excluded by the continuation of the
international civil presence established by Resolution 1244. The wording of the Resolution
signals that the international civil presence is meant to exist beyond the end of the interim
period, after a political settlement has been achieved. Paragraph 10 indicates that UNMIK
will be present for the duration of an interim period while paragraph 11 (d) mak.esit clear that
55Wood, Interpretatiosupra,p.74.
56
Wood, Interpretatiosupra,p.87.
57See infra, para 34.
18the civil presence shall remain to oversee a transfer of authority to permanent institutions.
This open-ended mandate of the civil presence envisaged in Resolution 1244 is in line with
the Rambouillet Accords, that, as a constituent part of Resolution 1244 (paragraph 11 (a)),
58
also provide for an international mission to implement the agreement. The recommendations
of the Special Envoy of the Secretary-Generalon Kosovo' s future status explicitly provide for
a status of independence, which shall be supervised by the international community5 so that
they combine independence with international supervision. Additionally, in his
Comprehensive Proposa! for a Kosovo Status Settlement the Special Envoy elaborated
provisions for international supervision until the terms of the Settlement have been
implemented (Annex IX) and for a withdrawal of UNMIK only after a 120-day transition
60
period (Article 15). The Secretary-General has expressed his full support for these
recommendations 61 and the Assembly of Kosovo has accepted them in its Declaration. This
corroborates the conclusion that continued international supervision cannot be an impediment
to independence as envisagedby the Declaration.
b) The substance of the Declaration is not contrary to the object and
purpose of Resolution 1244
34. The substance of the Declaration is in conforrnity with the object and purpose of
Resolution 1244. The object and purpose of the Resolution can be drawn from preambular
58Cf Chapter4A,Art.1oftheInterimAgreemenf torPeaceandSelf-Govemmen (tRambouillet ccords), N
Doc. S/1999/648 (7 June 1999).
59Ahtisaari,M.Report of the Special Envoy of the Secretary-General on Kosovo's Future Status, UN Doc.
S/2007/168 (26 March 2007).
60
Ahtisaari.M.Comprehensive Proposai for the Kosovo Status Settlernent, UN Doc. S/2007/168/Add. l (26
March 2007).
61
Letter frorn the Secretary-General addressed to the President of the Security Council, UN Doc. S/2007/168 (26
March 2007).
19paragraph 4 in which the Security Council expresses its determination to "resolve the grave
humanitarian situation in Kosovo". Further expressing the Security Council's chief concern is
the binding formulation in operative paragraph 10 which authorizes the Secretary-General to
tak:ecertain measures with a view to "ensure conditions for a peaceful and normal life for all
inhabitants of Kosovo". Efforts to achieve a negotiated solution on the basis of Resolution
1244 have been exhausted unsuccessfully. 62 The determination of the future status by the
Declaration remains, therefore, the only means to achieve the political settlement and a
peaceful solution. This is in accordance with the Recommendation of the Special Envoy, who
is of the view that "negotiation's potential to produce any mutually agreeable outcome on
Kosovo's status is exhausted". 63 More importantly, his recommendation did in fact consist in
a status of independence for Kosovo, supervised by the international community, which was
endorsed by the Secretary-General. 64
c) The Declaration excludes any conflict with Resolution 1244 and the
principles of international law
35. In its paragraph 12the Declaration explicitly excludes any conflict with Resolution 1244
and the principles of international law and affirms that
"Kosovo shall be legally bound to comply with the provisions contained in this
Declaration, including, especially the obligations for it under the Ahtisaari Plan.
In all these rnatters we [i.e. the leaders of Kosovo] shall act consistently with the
principles of international law and the resolutions of the Security Council,
includingResolution 1244(1999)."
62See supra, paras. l0 and 11.
63
Ahtisaari, M., Report of the Special Envoy of the Secretary-General on Kosovo's future status UN Doc.
S/2007/268 (26 March 2007), para. 3.
64
Ahtisaari,M.,Report of the Special Envoy of the Secretary-General on Kosovo's future status UN Doc.
S/2007/268 (26 March 2007).
20It renders itself as well as the status of independence anticipated therein subject to the rules
and principles of international law. Accordingly, the intention of the Assembly in issuing the
Declaration was to submit its status of independence to Resolution 1244 and to international
supervision, as contained in the Ahtisaari Plan.
36. In conformity with the principle ut res magis valeat quam pereat that precludes the
65
interpretation of a clause in such a way that it is devoid of purport or effect ,paragraph 12 of
the Declaration which expresses the Declaration' s conformity with international law must not
be interpreted in such a way as to render it meaningless. It follows from this principle as well
as from the obligation of a contextual interpretation that is firmly enshrined in Article 31 (1)
of the Vienna Convention on the Law of Treaties 66 that the Declaration in its entirety,
including the independence envisaged therein, is to be interpreted as being in conformity with
Resolution 1244and the principles of international law.
2. The substance of the Declaration is not in breach of general international
Law
37. The proclamation of independence in the Declaration does not contradict general
international law, which does not prohibit any part of a population of a State to declare its
independence. As such it is not subject to the obligation to respect the territorial integrity of
States as was confirmed by the ILC. When discussing the Declaration on the Rights and
Duties of States the Commission reiterated that the duty not to recognize acquisitions of
65Corfu Channel (UK v. Albania) Judgment of 4 April 1949, ICJ Reports 1949, p. 24.
66Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331. See also Orakhelashvili, A., The
Interpretation of Acts and Rules in Public International Law, 339, 468 (2008) and for the application of these
principles also to declarations Minority Schools in Albania, Advisory Opinion of 6 April 1935, PCU Series A/B,
No. 64at 16-17.
21 67
territory by the use of force did not apply to secessions as it addressed only States.
Secessionin this sense needs nojustification by the right to self-determination.
38. A review of state practice has shown that in most cases, the issue was not whether or not
the secession movement was internationally lawful, but whether or not this movement was
68
successful. Although in most cases secessionist movements did not achieve the
independence they sought, their failure to do so did not render the secessionist movement
illegal under international law because secession is neither legal nor illegal in international
law, but a legally neutral act the consequences of which are regulated internationally. 69 As
La.uterpacht has pointed out "international law does not condemn rebellion or·secession
70
aiming at the acquisition of independence." In debates on resolutions of the Security
71
Councilwhich declared as unlawful the declaration of independence of Congo and Rhodesia
no reference was made to the illegality of secession under international law. Moreover,
characterizingthe acts of a seceding entity as illegal under international law would grant it the
statusof a subject of international law. 72
39. This question of the legality of secession under international law has to be distinguished
from that of alleged illegality of secessionist movements under the internai Iaw of the states.
In this line, as the Canadian Supreme Court put it in the Case Reference re Secession of
Quebec in 1998:
67/LC, Draft Declaration on the Rights and Duties of States, UN Doc. A/CN.4/SR.14, YBILC 113(1949).
68Cf Crawford, J., The Creation of States in International Law, Chapter 9 (2006).
69
Crawford.. Creation, supra, p. 389.
70
lauterpacht, Sir H., Recognition in International Law, 8 (as4cited in: Crawford, Creation, supp.390.
71[nfra,para. 35.
72Crawford, Creation, supra, p. 389.
22 "Although there is no right, under the Constitution or at international law, to
unilateral secession [...] this does not rule out the possibility of an
unconstitutional declaration of secession leading to a de facto secession." 73
40. The Declaration cannot be compared to those unilateral declarations of independence that
were declared unlawful by Security Council Resolutions. In 1965 the Security Council
explicitly condemned the unilateral declaration of independence by the Smith regime in
Southern Rhodesia. 74 The Council decided "to condemn the unilateral declaration of
independence made by a racist minority in Southern Rhodesia" and decided to call upon all
states not to recognize this regime. In another case the Security Council characterized
secessionist activities as illegal. For example, Resolution 169 (1961) "strongly deprecates the
secessionist activities illegally carried out by the provincial administration of Katanga" and
declared "that all secessionist activities against the Republic of the Congo are contrary to the
Loi fondamentale and Security Council decisions and specifically demands that all such
activities [...] cease forthwith". These cases occurred in the framework of the decolonization
process so that any comparison with the case of Kosovo is excluded. Further more, in the case
of Kosovo, the Security Council refrained from taking similar action. Therefore, the decisions
of the Council concerning Rhodesia and Katanga cannot be used as a precedent.
E. Absence of objections by UN Organs
41. None of the organs of the UN which were competent and called upon to act, such as the
Special Representative of the Secretary-General, the Security Council or the Secretary
General, issued an objection or similar statement in relation to the Declaration. The SRSG did
73Reference re Secession of Quebec, Supreme Court of Canada, 20 August 1998, 2 S.C.R. 217(1998) para. 155.
74
UN Security Couneil Resolution 215 (12November 1965); UN Security CoilResolution 216 (20
November 1965).
23not object to the Declaration and did not exercise his competence to invalidate the
Declaration, 75 despite requests to do so 76 and contrary to former executive decisions
invalidating resolutions of the Assembly in the field of foreign relations. On some occasions
the SRSG has made use of his power to overrule acts of the PISG and has determined that a
resolution of the Assembly was not in conformity with Resolution 1244. One pertinent
example concerns the Resolution on the Protection of the Territorial lntegrity of Kosovoof 23
May 2002. The Kosovo Assembly declared not to respect the Border Demarcation Agreement
between FRY and FYRoM of 23 Feb 2001 since Kosovo had not participated in this
agreement that encroached upon the territory of Kosovo. This Resolution was immediately
declared null and void by the SRSG 77 and it was promptly deplored by the Security Counci1 78•
On 17 November 2005 the SRSG was faced with a Resolution on Reconfinnation of the
79
Political Will of the People of Kosovo for an independent and sovereign state. This
resolution was interpreted by the SRSG as providing a mandate for the Delegation of Kosovo
80
for the upcoming status talks. This act was therefore not seen as being in violation of
Resolution 1244 and it was not invalidated by the SRSG. On the contrary, by this
interpretative statement the SRSG acknowledged the independence of Kosovo as a possibility
for a final status settlement.
42. After the Declaration of 17 February 2008 the SRSG did not issue an executive decision
declaring its nullity nor a statement to that effect. Likewise, the Security Council did not react
75
Seesupra, para. 19.Chapter 12of the Constitutional Framework grants the SRSG the authority to annul and
declare invalid acts of the Provisional Institutions of Self-Government which are in violation of Resolution 1244
and the Constitutional Framework.
76
See Statement byBorisTadié, UN Doc. N62/703-S/2008/ l l l, Annex (19February 2008); Statement of the
Ministry of Foreign Affairs of the Russian Federation on Kosovo, UN Doc. N62/700-S/2008/ I08, Annex (19
February 2008).
77Determination by SRSG Mic!wel Steiner (23 May 2002), UNMIK Press Release PR/740 (23 May 2002).
78Statement by the President of the Security Council, UN Doc. S/PRST/2002/16 (24 May 2002).
79
Assembly of Kosovo, Resolution on the Reconfirmation of the Political Will of the People of Kosovo, 17May
2005, available at http://www.assembly-
kosova.org/common/docs/Resolution.%20english, %20version. l7.11.05.pdf (last visited l7 February 2009).
80Statement by SRSG Soren Jessen-Petersen, UNMIK Press Release PR/1445 (17 November 2005).
24negatively to the reports of the Secretary-General where it was stated that the SRSG could no
81
longer exercise his powers to the full extent. The choice not to pronounce the Declaration
invalid is an action attributable to the United Nations since the SRSG is an organ of that
82
organization. Moreover, from the SRSG's and the Security Council's competences with
regard to UNMIK and the PISG an obligation to react to void acts contrary to international
law, including Resolution 1244, may be inferred. Since the Secretary-General as well as the
83
Security Council were immediately aware of the events in Kosovo and, nevertheless, none
of the organs of the UN took action in this regard, the impression is created that the UN bas
agreed to the Declaration. In the Gulf of Maine case, this Court stated that "acquiescence is
equivalent to tacit recognition manifested by unilateral conduct which the other party may
interpret as consent". 84 Judge Fitzmaurice, in bis separate opinion to the Temple of Preah
Vihear case, declared that: "... acquiescence can operate as a preclusion or estoppel in certain
cases, for instance where silence, on an occasion where there was a duty or need to speak or
act, implies agreement, or waiver of rights." 85 The judgment itself expressed this view .
similarly:
"the circumstances were such as called for some reaction, within a reasonable
period, [... ], if they wished to disagree. They did not do so, either then or for
many years, and thereby must be held to have acquiesced. Qui tacet consentire
videtur si loqui debuisset acpotuisset." 86
81Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, UN Doc.
S/2008/21 l (28 March 2008) para. 30; Report of the Secretary-General on the United Nations Interim
Administration Mission in Kosovo, UN Doc. S/2008/ 254 (12June 2008) para. 7 stating that UNMIK can
exercise only residual powers.
82Cf ILC,Responsibility of States for Internationally Wrongful Acts, Art. 4, Report of the ILC on the work of
its45 Session, UN Doc. A/56/10, YBILC Vol.II (Part Two), 30 (2001).
83See Session of the Security Council of 18February 2008, UN Doc. S/PV.5839 (18 February 2008).
84Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v. USA) Judgment of 12October
1984,ICJ Reports 1984,p. 305 para. 130;Thirlway, H., The Law and Procedure of the International Court of
Justice 1960-1989, 60 BYIL 1,38 (1989).
85Temple of Preah Vihear (Cambodia v. Thailarul)Judgment of 15June 1962, Separate Opinion Judge
Fitzmaurice, ICJ Reports 1962p. 23, 62.
86Temple of Preah Vihear (Cambodia v. Thailarui)Judgment of 15June 1962, ICJ Reports 1962,p. 21.
25Estoppel, based on the principle of good faith has the effect of precluding that party from
later asserting a daim that contradicts its prior attitude which has given rise to reliance and
legitimate expectations. 87Accordingly, on the part of the UN this declaration must have been
considered lawful. Its organs involved in this matter refrained from a negative reaction to the
Declaration despite their competence to do so and can be considered debarred from taking
actions not in conformity with its previous conduct.
IV.CONCLUSION
43. For the reasons set out in this statement the Government of Austria is of the view that the
Declaration of Independence of 17 February 2008 is not contrary to international law
including Resolution 1244.
(Representative of the Republic of Austria)
87
Cheng, B., General Principles of Law, 14l-l42 (1953); Bowett, D.W., Estoppel before International Tribunals
and its Relation to Acquiescence, 33 BYIL 176, 176 (1957).
26
Written Statement of Austria