Ambassador of the Slovak Republic
The Hague
The Hague, 16 April 2009
No.: 2225/2009-NLVV
Enclosure (6 pages)
Dear Sir,
Pursuant to the provisions of Article 66(2) of the Statute of the International Court of
Justice, and in response to the invitation addressed to the Government of the Slovak Republic
by the Registrar of the International Court of Justice in its Order of 17 October 2008, enclosed
I have the honour to submit certain general comments of the Government of the Slovak
Republic on the request for an Advisory Opinion submitted to the Court through Resolution
63/3 (A/63/L.2) of 8 October 2008, in which the General Assembly of the United Nations
aske:dthe Court to respond to the following question:
"ls the unilateral declaration of independence by the Provisional Institutions of Self
Government of Kosovo in accordance with international law?"
Sincerely yours,
(/.
Honourable
Mr. Philippe Couvreur
Registrar
International Court of Justice
The HagueStatement by the Slovak Republic for the International Court of Justice on the request
made by the United Nations General Assembly (resolution A/RES/63/3 of 8 October
2008) for 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?".
A. Introduction
1. This statement is submitted by the Slovak Republic in accordance with the Orcierof
the InternationalCourt of Justice of 17October 2008. The Slovak Republic believes
thatthe UnilateralDeclarationof lndependenceadoptedbythe ProvisionalInstitutions
of Self-Governmentin Kosovoon 17February2008 is not in conformitywith several
normsand principlesof InternationalLaw.
2. The Slovak Republicattaches a great importanceto the legal pronouncementof the
principaljudicial organ of the United Nations and will duly take into accou·ntin its
policy the Advisory Opinion the Court is to render upon request of the General
Assembly.The current policyof the Slovak Republic is based on the following legal
consideration:
B. Territorial Integrity of States
3. Fewprinciplesin present-dayinternationallaw are so firmlyestablishedas that of the
territorial integrityof States.Though it is an ancient principle, linkedto the notion of
the State itself, it has been solemnlyand particularlyforcefullyreaffirmed in the last
more than sixty years. The principle of territorial integrity of States is widely
proclaimed and accepted in practice and forms a part of the corpus of international
law.
4. The principle of the territorial integrityof States is protected by the rules prohibiting
interference within the domestic jurisdiction of states as, for example, stipulates
Article2(7) of the UnitedNations Charter.Article2(4) of the UnitedNations Charter
makes it particularlyone of the principlesof the UnitedNationsOrganization,linking
itto the ban on the threator use of force in internationalrelations,and the principle is
set forth in the same terms under the Declarationon Principlesof International Law
concerning Friendly Relationsand Cooperationamong States in accordance with the
Charterof the UnitedNations,which regardsit as one of the elementsof the principle
of sovereignequality.
5. The HelsinkiFinal Act adoptedon I August 1975by the Conferenceon Securityand
Cooperationin Europestipulates:
"The participating States will respect the territorial integrity of each of the
participating States.
Accordingly,they will refrain from any action inconsistentwith 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 suchactionconstitutinga threat or use of force.
The participatingStateswill likewiserefrainfrommakingeach other'sterritorythe
abject of military occupation or other direct or indirect measures of force in
contraventionof international law, or the abject of acquisition by means of such measures or the threat of them. No such occupation or acquisition will be
recognized as legal." (Emphasisadded)
These commitments are reiterated in the Paris Charter for a New Europe of 21
November 1990.
6. The right to secede does not exist in international law.The creation of a new State in a
colonial context is not secession. The right to self-determination in a post-colonial
context does not mean that the peoples who enjoy such right are recognized as having
a right to independence. Unilateral secession did not involvethe exercise of any right
conferred by international law. Outside the colonial context, the principle of self
determination is not recognized in practice as giving rise to unilateral rights of
secession by parts of independent states. Self-determination outside the colonial
context is primarily a process by which the peoples of the various states determine
their future through constitutional processes without external interference. Faced with
an expressed desire of part of its people to secede, it is for the government of the state
to decide how to respond, for example by insisting that any change be carried out in
accordance with constitutional processes.
7. International law has always favored the territorial integrity of states, and
correspondingly, the government of a state was entitlect to oppose the unilateral
secession of part of the state by all lawfulmeans. Third states were expected to remain
neutral during such a conflict, in the sense that assistance to a secessionary group,
which had not succeeded in establishing its independence, could be treated as
intervention inthe internaiaffairs of the state inquestion.
8. The unwillingness of the international community to accept unilateral secession from
an independent state can be illustrated also by reference to the so-called "safeguard
clause" to the Friendly Relations Declaration, which, in elaborating the Charter
principle of self-determination specifies that:
"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 colour." (Emphasisadded)
9. The United Nations World Conference on Human Rights held in Vienna in 1993
reaffirmed the ,,safeguard clause" in slightly different language. The Vienna
Declaration provides, in relevant part:
"ln accordance with the Declarationon Principlesof International Law concerning
Friendly Relations and Cooperation Among States in accordance with the Charter
of the United Nations, this [the right of self-determination]hall not 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-determinationof peoplesand thus possessed of a Government
representing the whole people belonging to the territory without distinction of any
kind." (Emphasis added)1O. ln accordance with this formula, a state whose government represents the whole
people of its territory without distinction of any kind, that is to say, on a basis of
equality, and in particularwithout discrimination on grounds of race, creed or colour,
complies with the principle of self-determination in respect of all of its people and is
entitled to the protectionof itsterritorial integrity.The people of such a state exercise
the right of self-determinationthrough their participation in the governmental system
of the state on a basisof equality.
11. The position stated by the Commissionof Jurists appointed by the League of Nations
to examine the Aaland l\·land~ situation in 1920 remains true, notwithstanding
subsequent developmentsin the principleof self-determination:
"Positive International Law does not recognize the right of national groups, as
such, to separate themselves from the State of which they form a part by the
simple expressionof a wish."
12. The principles of sovereignty and territorial integrity set by the Helsinki Final Act
should be interpreted bytaking intoaccount other key principles stipulated inthe Act,
includingthe principleof equal rightsand self-determinationof peoples. Furthermore,
according to the declaration on Principles of International Law Concerning Friendly
Relations and Cooperation Among States of October 24, 1970,the principle of self
determination should not be interpreted as "authorizing or encouraging any action
which would dismemberor impair,totally or in part,the territorial integrityor political
unity of sovereign independent states conducting themselves in compliance with
principle of the equal rightsand self-determinationof peoples".
13. The Slovak Republic considers the principle of the territorial integrity of States as a
basic pillar of the international law on which the international community is
established and has functioned. This principle must be seriously taken into
consideration inany case of the possible recognitionof the UDI.
C. Self-determination of National Groups / Minorities
14. ln the phrase "all peoples havethe right to self-determination",there is no universally
accepted definition of the word "peoples" nor of the notion of self-determination. For
some scholars the rightto self-determinationalways includesthe right to forma State,
even where the people that enjoy such right could be content with other political
structures. For others, this right has a much broader scope and impliesthat any human
collectivity which defines itself as such has the right to be recognized, to chose its
future and to participate in the democratic expression of the political will within the
State to which it isjoined. ln fact, whichever of these two arguments would prevail,
both of them rule out any rightto secede in a non-colonialsituation
15. The emphasis inail relevant instrumentsand in the state practice on the importanceof
territorial integrity, means that "peoples" is to be understood in the sense of ail
peoples of given territory. Ali members of distinct minority groups are part of the
peoples of the territory. However, minorities as such do not have a right of self
determination. That meansthat they have no right to secession,to independence,or to
join with comparable groups inother states. 16. Minorities are to be protected through the guarantee of human rights that every
individual is entitledto and throughthe provisionof minorityrights.These rights ftnd
contemporary formulation in Article 27 of the International Covenant on Civil and
Political Rightsof 1966,that provides:
"ln those states in which ethnie, religious or linguistic minorities exist, persans
belongingto such minoritiesshall not be deniedthe right, incommunitywith other
members of their group, to enjoy their own culture, to profess and practice their
own religion,and to usetheir own language."
17. There is a common pattern of international responses to unilateral secession and
threats of such secession in the non-colonialcontext, a pattern which has a normative
signiftcance.This may be summarizedas follows:
(a) There is strong international reluctance to support unilateral secession or
separation, and there isno recognitionof a unilateralrightto secede based merelyon a
majority vote of the populationof a given sub-divisionor territorial unit. ln principle,
self-determination for peoples or groups within the state is to be achieved by
participation in its constitutionalsystem, and on the basis of respect for its territorial
integrity.
(b) In most cases, referendaconducted in territories wishing to secede have returned
very substantial majorities in favour. But even in cases where there is a strong and
continued call for independence, it is a matter for the government of the state
concerned to considerhowto respond ina democraticand respectingway.
c) Even in the context of separate colonial territories, unilateral secession was the
exception. Self-determination was in the ftrst instance a matter for the colonial
authority to implement;only if itwas blockedby the colonial authoritydid the United
Nations support unilateralsecession.Outside the colonial context, the UnitedNations
has been extremely reluctant to admit a seceding entity to membership against the
wishes of the governmentof the state from which it has purportedto secede.
D. Security Council Resolution 1244 (1999)
18. The Security Council [SC] Resolution 1244, passed on 10 June 1999, conftrms the
territorial integrityof the FederalRepublicof Yugoslavia/Republicof Serbiaand does
not predeterminethe independenceof the Provinceof Kosovo.
19. SC Resolution 1244wasadoptedunderChapter VIIof the UnitedNations Charter and
so there are bindingobligationsfor ail Membersof the UNwhicharise from it,so long
as it remainsan operativeinstrument.
20. ln its Preamble, SC Resolution 1244speciftcally reafftrmed:"The commitment ofall
Members 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 Final Act and
Annex 2" (emphasisadded).As inthe case of internationaltreaties, the preamble is of
a great importance for determiningthe meaning of ait operative paragraphs, none of
which should be taken out of the generalcontext of the document, whilethe preamble
reflects the circumstancesand goalsof the document's adoption.
21. It is importantto interpretthis Resolution in its integrityandjointly with other related
SC Resolutionsand furtherdocumentsadopted bythe states inorder to implementthe
stipulations of the Resolutionand accepted by all most importantparticipants of the Kosovosettlementprocess.This is, in particular,the Contactgroupguiding Principles
for the Settlementof Kosovo's Status.
22. The confirmationof the commitmentof the SecurityCouncilto the territorial integrity
of the then Federal Republicof Yugoslavia(now Republicof Serbia which continues
the internationallegalpersonalityof the FederalRepublicof Yugoslavia)over Kosovo
can be find, besides the SC Resolution 1244, also in other Security Counci1
resolutions, e.g. in SC Resolutions 1160 (1998), 1199 (1998), 1203 (1998), 1239
(1999). SC Resolution 1160 (1998) inter alia stipulated: "[T]he principle.s for a
solution of [this] Kosovo problemshould be based on the territorial integrily of the
Federal Republic of Yugoslavia 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 Europeof 1975,and the Charterof the UnitedNations, and that such a
solution must also take into account the rights of the KosovarAlbanians and ail who
live in Kosovo."(Emphasisadded)
23. SC Resolution 1244warrantedthe territoryof Kosovobeingplacedunderthe auspices
of the UN. Instrumental to this process were two measures overseen by the UN:
firstly, "the Federal Republic of Yugoslavia... begin ,md complete a complete
verifiable phased withdrawal from Kosovo of ail military, police and paramilitary
forces according to a rapid timetable, with which the deploymentof the international
security presencein Kosovowill be synchronized";secondly,the establishmentof "an
interim administration for Kosovo under which the people of Kosovo can enjoy
substantial autonomy within the Federal Republic of Yugoslavia," (emphasis added).
lt is on this basis that the UnitedNations Mission in Kosovo(UNMIK)has since had
exclusive transitionalcontrai of Kosovo.
24. SC Resolution 1244 explicitly reiterates the agreed formulations of "substantial
autonomy" and "meaningful self-administration" for Kosovo. Such formulations,
combined with the consistent omission of any reference to the principle of self
determination,conclusivelyindicatethat there isno legalbasiswhatsoeverforthe type
of independentstatehoodthat has been unilaterally declared and recognized by some
States. This tends credence to the claims that this unilateral declaration and
recognition thereof violates Serbia's sovereignty and is not in conformity with
international law.
25. In making the unilateraldeclarationof independenceand adoptingthe Constitution of
the Republic of Kosovo, Kosovo's Assembly has acted ultra vires. The UNMIK
,,ConstitutionalFrameworkfor ProvisionalSelf-Government"confirms that Kosovo's
"Provisional Institutionsof Self-Government" had no powers to act in the foregoing
ways.To do so isto be inbreachof the obligationto in no way"affect or diminish the
ultimate authorityof the SRSG [Special Representativeof the Secretary General] for
the implementationof UNSCR 1244(1999)". ln this respect, as Chapter 8 Para. 2 of
the UNMIK ,,Constitutional Framework" reserves the powers to the SRSG in the
domains of defense,justice, legal affairs and foreign affairs, it is suggested that the
provisions within The Constitution of the Republic of Kosovo such as Article 2,
Article 65 paragraph(12),Article 84 paragraphs(7), (10),(12)and (15)- (25), Article
93, Article 131, Article 151 contradict the "Constitutional Framework" and are
therefore unlawfuland untenable.26. The fact that the SC Resolution 1244does not contain provisionsthat exclude the
possibility of Kosovo's independence is by no means a confirmation of a right to
independence. To the contrary, the formulation "substantial autonomy within the
Federal Republic of Yugoslavia" in the Resolution's Paragraph 10 should be
interpretedas an evidencethat a settlementbasedon this Resolutionshouldnot leadto
independenceof Kosovo.
27. HoweverSC Resolution1244maybe read it surelydoes not bearthe meaningthat, in
1999,the SecurityCouncilauthorizedthe separationof Kosovosometimeinthe.future
even if the resolution nowhere expressly excludes it. There has been no "second
resolution" which would fill the gap in Resolution 1244. And even though SC
Resolution 1244 does not explicitly prohibit secession or prohibit states from
recognizing secession (like Security Council Resolutions216 and 217 in the case of
Rhodesia's UnilateralDeclarationof Independence in 1965),it nonetheless seems to
set forth the frameworkfor self-determinationthat does not include independence. lt
seems that ail the parties in the case were attempting to create an autoilomous
arrangement. ln the Kosovo case, internai self-determination would be achieved
through substantialautonomywithin Serbia.
28. The Slovak Republicby no means disputes serious violationsof international law in
the past by the Federal Republic of Yugoslavia in its treatment of the Kosovars.
However, officiais individually responsible have been indicted and prosecuted for
criminal violations of international law in Kosovo at the International Criminal
Tribunal for FormerYugoslavia.To trace a rightto changethe statusof Kosovo back
to the events of 1999does not comport with the law. There is no authority for a rule
of law which allowsthe "punishment" of States, especiallyby somethingas a loss of
territory, for breachesof the law.
Written Statement of Slovakia