Republic of Poland
Minister of Foreign Affairs
Radoslaw Sikorski
Warsaw,1~~12009
Sir,
Pursuant to the provisions of Article 66(2) of the Statute of the International Court of Justice
and in accordance with the Order of the Court dated October 1ih,2008 I have the honor to
submit herewith a written statement of the Republic of Poland on the request by the United
Nations General Assembly for an advisory opinion on the accordance with international law
of the unilateral declaration of independence by the Provisional Institutions of Self
Government of Kosovo.
Please accept, Sir, the assurances of my highest consideration.
His Excellency
Mr. Philippe Couvreur
Registrar of the International Court of Justice
Peace Palace
The Hague INTERNATIONAL COURT OF JUSTICE
REQUEST BY THE UNITED NATIONS GENERAL ASSEMBLY FOR AN
ADVISORY OPINION ON THE
,,ACCORDANCE WITH INTERNATIONAL LAW OF THE UNILATERAL
DECLARATION OF INDEPENDENCE BY THE PROVISIONAL INSTITUTIONSOF
SELF - GOVERNMENT OF KOSOVO"
WRITTEN STATEMENT OF THE REPUBLIC OF POLAND
APRIL2009 CONTENTS
I. Introduction ........................................................................
............................................3
IL Scopeof the Request and Preliminary Considerations..................................................
III. Factual and Legal Backgroundto the Request...............................................................5
IV. Developments since the Declaration oflndependence .................................................20
V. Sui generis Character of Kosovo Case........................................................................
.22
VI. Principle of Self- determination........................................................................
..........24
VII. Interpretation of the United Nations SecurityCouncilResolution 1244(1999)..........30
VIII. General Conclusions........................................................................
.............................31
2I. Introduction
1.1 The International Court of Justice in its Ortler of 17 October 2008 invites States to
submit written statements conceming the request of the General Assembly for an
advisory opinion on the question of the Accordance with International Law of the
Unilateral Declaration of Jndependence by the Provisional Institutions of Self
Government of Kosovo.
1.2 The request was referred to the Court by the United Nations General Assembly
resolution AIRES/63/3 of 8 October 2008 which was adopted by 77 votes in
favour to 6 against, with 74 abstentions.
1.3 The Republic of Poland abstained from voting on that resolution as a country that
recognized Kosovo as a State. The Republic of Poland has also viewed the
Declaration of Independence of 17 Febrnary 2008 as an act that has not conflicted
with any norm of international law. Nevertheless, the Republic of Poland did not
oppose the adoption of the resolution A/RES/63/3, bearing in mind that one of the
purposes of the United Nations is 'to develop friendly relations among nations
based on respect for the principle of equal rights and self-determination of
peoples' and that the access to the Court, 'the principal judicial organ of the
United Nations', is an important factor in the development of friendly relations
between nations.
1.4 In accordance with that resolution, the terms of the request made by the General
Assembly of the United Nations are as follows:
,,The General Assembly,
Decides, 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:
'Jsthe unilateral declaration of independence by the Provisional Institutions
ofSelf-Government of Kosovo in accordance with international law?'.
31.5 The Government of the Republic of Poland, in accordance with the Order of the
Court of 17 October 2008, decided to present this written statement to the Court.
This statement deals with the legal issues pertaining to the General Assembly
request.
II. Scope of the Request and Preliminary Considerations
2.1 It is to be ascertained that the request is framed in a narrow way as it refers solely
to the accordance with international law of the Declaration of Independence as
such. Thus, the legal assessment of the statehood of Kosovo or the analysis of
accordance with international law of the acts of recognition of Kosovo are beyond
the scope of the request posed by General Assembly.
2.2 It may be argued that international law does not contain norms that would apply to
the question of declaring independence. h is a logical consequence of a stipulation
that the existence of the state is a matter of fact, not that of law. As the Conference
ofYugoslavia Arbitration Committee, on 29 November 1991, noted:
'The Committee considers:
a) that the answer to the question should be based on the principles of
public international law which serve to define the conditions on which
an entity constitutes a State; that in this respect, the existence of the
State is a question offact; that the effects of recognition by other States
are purely declaratory;
b) that a State is commonly defined as a community which consists of a
territory and a population subject to an organized political authority;
that such a State is characterized by sovereignty ..." (Conference of
Yugoslavia Arbitration Commission Opinions on Questions Arising
From the Dissolution of Yugoslavia, 31 I.L.M., p. 1488 et. seq.;
emphasis added).
2.3 Thus, a declaration of independence is an act that confim1s these factual
circumstances and it may be di,fficultto assess such an act in purely legal terms.
4III. Factual and Legal Background to the Request
3.1 This part of the statement of the Republic of Poland purports to highlight the
position of Kosovo within Socialist Federal Republic of Yugoslavia (SFRY), the
context in which United Nations Security Council resolution 1244 (1999) was
adopted, as well as the conditions in which the Declaration of Independence of 17
February 2008 was issued.
3.2 Itis the opinion of the Republic of Poland that the abovementioned Declaration
shall be viewed in the light of exceptional,sui generis situation that had led to the
proclamation of the Kosovo's independence.
3.3 The Parliament of Serbia in 1945 recognized the political, ethnical and territorial
distinctiveness of Kosovo and established in its tenitory two autonomous entities,
including Kosovo (the Autonomoüs Kosovo-Metohian Area). That model of
autonomy was preserved in the Socialist Federal Republic of Yugoslavia
Constitution of 1946 (Article 2), on the basis of which the Autonomous Kosovo
Metohian Area was constituted. That situation did not change under the SFRY
Fundamental Constitutional Law of 1953. That Law, however, determined more
precisely the status of autonomous units within SFRY. Italso provided that those
units may establish their own statutes which shall form the basis of their system of
government.
3.4 The status of autonomous regions was in principle sustained in the framework of
1963 SFRY Constitution. It confirmed the existence of two autonomous regions
within the Republic of Serbia,namely the Autonomous Kosovo-Metohian Country
and Vojvodina. The 1968 Amendment to the 1963 SFRY Constitution listed the
grounds on which autonomous regions could have been established. These were
the regions that: (a) were created as a result of common struggle of nations and
nationalities during the World War II and socialist revolution; (b) were, in factual
terms, created and constituted on the basis of, inter alia,freely expressed will of
the nations and nationalities of a given region; (c) constituted, due to common and
freely expressed will of nations and nationalities of Serbia and given regions, part
of Serbia which, in turn, is a part of SFRY.
3.5 The SFRY Constitution of 1974 upheld the institution of autonomous regions and
a unique status of Kosovo and Vojvodina among them. These two entities enjoyed
a 'dual status'. On the one hand, they were the subjects of the Federation Gustas
5 the republics), were represented in the Federation's Presidency ru1denjoyed full
status of self-governance appertaining to the republic, including even their own
central banks. On the other hand though, they were subordinated to the Republic of
Serbia. (M. Weller, Negotiating thefinal status of Kosovo, Chaillot Paper, no 114,
Institute for Security Studies, December 2008). According to the 1974 SFRY
Constitution:
Paragraph 6: 'The Socialist Republic of Serbia comprises the Socialist
Autonomous Province of Vojvodina and the Socialist Autonomous Province
of Kosovo, which originated in the common struggle of nations and
nationalities of Yugoslavia in the National Liberation War and socialist
revolution and united, on the basis of the '[reelyexpressed will of the
nations, populations and nationalities of the provinces and Serbia, in the
Socialist Republic of Serbia within the Socialist Federal Republic of
Yugoslavia.'
Paragraph 7: 'The provinces are autonomous socialists self.-managing
democratic socio-political communities with a special ethnie composition
and other specificities, in which working people and citizens, nations and
nationalities exercise their sovereign rights...'(H. Krieger, The Kosovo
Conflict and International Law: An Analytical Documentation 1974-1999,
Cambridge University Press, 2001, p. 5; emphasis added).
3.6 In 1981 the strive of Kosovars for attaining the status of the republic within SFRY
intensified and manifested itself through massive protests that were repressed by
central authorities of Yugoslavia. In the aftermath of these events, Serbia
demanded that Kosovo shall be integrated into that country. That demand was
opposed by other republics, notably Slovenia. (P. Radan, The Break-up of
Yugoslavia and International Law, Routledge, 2002, p. 154).
3.7 One of the first steps taken by Slobodan Milosevié after his rise to power in Serbia
(1989) was to amend the Constitution of the Republic of Serbia in a way that
practically eliminated the autonomy of Kosovo. Through the Amendments of
February 1989 and of July 1990 to Serbian Constitution the main competences of
Kosovo institutions were transferred to central government in Belgrade and the
functioning of the Kosovo' s parliament was suspended.
63.8 The above-described series of events triggered Croatia and Slovenia (on 25 June
1991) to announce their intention to secede from Yugoslav Federation which, in
consequence, led to the dissolution of Yugoslavia. These developments were
confirmed in the 1991 Opinion No. 1 of the Conference of Yugoslavia Arbitration
Commission (Conference of Yugoslavia Arbitration Commission: Opinions on
Questions Arising From the Dissolution of Yugoslavia, 31 I.L.M., pp. 1488 et.
seq.):'The Arbitration Committee is of the opinion that the Socialist Federal
Republic of Yugoslavia is in the process of dissolution'. Subsequently, both
Macedonia (referendum held in September 1991) as well as Bosnia and
Herzegovina (resolution adopted by Parliament on October 14th 1991) declared
independence. Therefore, at that moment it were only Serbia, autonomous units
(Kosovo and Vojvodina) and Montenegro that still found themselves in the
framework of the then Yugoslavia.
3.9 Initially, two international conferences were convened in order to analyze the
situation in the (former) Yugoslavia and to decide upon the next steps of the
international community in that respect. One was held (on the initiative of the
1991 and,
European Community) under the chairmanship of Lord Carrington in
afterwards, the other took place in the period of 26 - 28 August 1992 (London
Conference on Yugoslavia). It shall be pointed out that, for political reasons, the
question of the status of Kosovo was not discussed during those conferences.
3.10 Simultaneously with the process of the dissolution of Yugoslavia, Serbian
repressions towards Kosovo intensified. At the same time, Kosovo's strive for the
status of a republic, initially within SFRY, strengthened. This strive manifested
itself on 2 July 1990 when the Kosovo Assembly issued a Declaration of
Independence in which Kosovo demanded to be recognized as an 'independent and
equal unit within the Yugoslavia' on the basis of 'the sovereign right of the people
of Kosovo, including the right to self-determination'. On 19 February 1990
Yugoslav Constitutional Court found that Declaration to be inconsistent with the
Constitution. The Serbian authorities, on 5 July 1990, dissolved the Kosovo
Assembly and govemment.
3.11 September 7, 1990 marks the adoption by the majority of the delegates from the
dissolved Kosovo Assembly of the Kacanik Resolution. That document underlined
the right of peoples to self-dete1mination and repeated the demands that had been
earlier expressed on 2 July 1990 (concerning Kosovo's status as an equal member
7 of the Yugoslav Federation). On the same date when the Kacanik Resolution was
adopted, the dissolved Kosovo Assembly proclaimed the Constitution of the
Republic of Kosovo. According to its provisions, Kosovo seceded from Serbia but
still considered itself a pmi of SFRY. Inthe period of 26 - 30 September 1991 the
referendum concerning the independence of Kosovo was held. As a result, 87% of
Kosovars (eligible to vote), by the majority of 99,87%, voted 'yes' in favor of
independence. Kosovo declared its independence on 18 October 1991. The only
country, however, that then recognized Kosovo was Albania (on 22 October 1991)
and - as was mentioned above - the question of Kosovo was not subject to debate
during the international conferences convened to deal with the dissolution of the
(former) Yugoslavia. Pursuant to the Constitution of the Republic of Kosovo, on
24 May 1992 assembly as well as presidential elections took place and Mr. I.
Rugova was elected President of Kosovo.
3.12 On the basis of what is stated above, it is possible to conclude that a parallel
administration existed in Kosovo - the one of Kosovo and of Yugoslavia (Serbia).
Itis also of importm1ce that Kosovo exercised such state - related functions,
besides conducting elections, as: providing social insurance, education and cultural
activities.
3.13 Simultaneously with the process of eliminating the (almost half of century long)
autonomy and self-governance of Kosovo, the Serbian authorities launched
aggressive campaign aimed at the people of the former. It did not take long time
that the deteriorating humm1itariansituation in Kosovo became the concern of the
international community.
3.14 United Nations General Assembly (UN GA) in its resolution 47/147 expressed 'its
grave concern at the report of the Special Rapporteur on the dangerous situation
in Kosovo, Sandjak and Voyvodina', urged all parties 'ta act with utmost restraint
and ta settle disputes in full compliance with human rights and fundamental
J,-eedoms' and called upon the Serbian authorities to 'refrainf,-om the use offorce,
ta stop immediately thepractice of 'ethnie cleansing' and ta respectfitlly the rights
of persans belonging ta ethnie communities or minorities'. Since that moment
onwards, General Assembly in a consequent and strong manner condemned the
Serbian authorities with regard to the degrading humanitarian situation in the
region (see in pmiicular UN GA resolutions: 48/153, 49/204, 50/190, 51/111,
52/139, 53/163, 53/164, 54/183).
83.15 The United Nations Commission on Human Rights (UNCHR) also repeatedly
drew the attention of the international community to the massive violations of
human rights in Kosovo. UNCHR, similarly as the General Assembly, already in
1992 condemned the Serbian policy of ethnie cleansing (E/CN.4/1992/S-l/9), as
well as deteriorating human rights situation in Serbia, police brutality, torture, ill
treatment of detainees, discriminatory measures and practices (see in particular:
Commission resolution 1993/7 of 23 February 1993, Commission resolution
1994/76 of 9 March 1994, Commission resolution 1998/79 of 22 April 1998,
Commission resolution 1999/2 of 13 April 1999).
3.16 In the context of the present considerations, it shall also be mentioned that, by the
UN SC resolution 827 (1993), International Criminal Tribunal for the former
Yugoslavia (ICTY), was established. One of the reasons that prompted the UN
Security Council to establish such an international body was:
'grave alarm at continuing reports of widespread and flagrant violations of
international humanitarian law occurring within the territory of the former
Yugoslavia (...) including reports of mass killings, massive, organized and
systematic detention an rape of women, and the continuance of the practice
of "ethnie cleansing", including for the acquisition of and the holding of
territory' (emphasis added).
3.17 Since 1998, the situation in Kosovo was included in the agenda of the United
Nations Security Council. UN Security Council resolutions 1160 (1998), 1199
(1998), 1203 (1998), 1239 (1999) and 1244 (1999) underlined in particular the
indiscriminative use of force by Serbian security forces, numerous civilian
causalities, massive flow of refugees and rapid deterioration of humanitarian
situation throughout Kosovo. UN Security Council was also alarmed by the
spreading humanitarian catastrophe there (SC Res. 1199 (1998) and 1203 (1998)).
3.18 Following the establishment of ICTY, the Security Council in its resolution 1160
(1998) urged the Office of the Prosecutor of the International Tribunal for the
Former Yugoslavia 'to begin gathering information related to the violence in
Kosovo that mayJal! within itsjurisdiction '.
3.19 It can be concluded on the basis of the above considerations, that the humanitarian
situation in Kosovo, especially in the period of 1998 - 1999, became disastrous.
9 According to the statistical data contained in the United Nations High
Commissioner for Human Rights Report (Rep01i on Situation of Human Rights in
Kosovo, HC/K224, 22 April 1999), there were nearly 600 000 refugees from
Kosovo and almost 800 000 displaced persons within Kosovo. That rep01i
highlights also the instances of ethnie cleansing, forced displacement, arbitrary
executions and detentions as well as enforced disappearances, all of which took
place in Kosovo.
3.20 The detailed information concerning those events is well documented in a report
prepared by the Organization for Security and Cooperation in Europe (OSCE) -
Kosovo Verification Mission: Kosovo/Kosova As Seen, As Told. An Analysis of the
human rights findings of the OSCE Kosovo Verification Mission, October 1998 ta
June 1999. The introductory part ofthat report, in relevant parts, states:
'Violations of the right ta life feature extensively in this report, from
numerous single arbitrary killings ta mass killings involving scores of
victims. Particularly in the period after 24 March 1999, communities in
Kosovo were subjected ta a state of lawlessness precisely at the hands of
those authorities charged with the maintenance of security and law and
order, and those authorities demonstrated a sweeping disregard for human
life and dignity. The loss of life by large numbers of Kosovo Albanian
civilians was one of the most characteristic features of the conjlict of the
conjlict after 24 March and accountfor a very high number of reports and
witness statements received by OSCE-KVM.
(..)
The mass killing at Racak/Recak (Stimlje/Shtime municipality) on 15
January 1999 was an event bath definitive in terms of establishing
international recognition that human rights violations were at the core of
Kosovo conjlict, and (together with two other incidents later that month in
Djakovica/Gjakova municipality, at Rogovo/Rogove and
Rakovina/Rakovine) indicative of what was tafollow in the period from late
March.'
3.21 Since 1990s the European Parliament in the senes of resolutions strongly
condemned the Serbian actions in the territory of Kosovo and expressed its deep
10 regret as far as the humanitarian situation was concemed (see in particular:
Resolution on the situation in Kosovo, O.J. C 328, 26.l 0.1998, p. 0182 and
Resolution on the situation in Kosovo, O.J C 115, 14.04.1997, p. 0170).
3.22 Under the auspices of North Atlantic Treaty Organization (NATO) a special
conference was convened in order to stabilize the situation and attain peaceful and
political solution in Kosovo. During the negotiations the so called Rambouillet
Accords: Jnterim Agreement for Peace and Self-Government in Kosovo ( doc.
S/1999/648, 7 June 1999) were elaborated, the provisions of which envisaged a
broad autonomy for Kosovo. Serbian party did not acceptthe solutions under the
Rambouillet Accords and(on 18 March 1999)the negotiations ended with a fiasco.
3.22.1 The relevant provision of the Rambouillet Accords is Article 1 (under the chapeau
of Chapter I of the Rambouillet Accords: Constitution) which reads:
'Kosovo shall govern itself democratically through the legislative, executive,
judicial, and other organs and institutions specified herein.'
3.22.2 The above-characterized solutions were meant to be of a temporary nature only
which is clearly reflected in ChapteVIII of the Rambouillet Accords:
'Three years after the entry into force of this Agreement, an international
meeting shall be convened to determine a mechanism for afinal settlement for
Kosovo, on the basis of the will of the people, opinions of relevant authorities,
each Party's efforts regarding the implementation of this Agreement, and the
Helsinki Final Act, and to undertake a comprehensive assessment of the
implementation of this Agreement and to consider proposais by any Party for
additional measures '. (mphasis added)
3.23 On 24 March 1999 NATO commenced its 'Operation Allied Force' against Serbia.
The campaign was intended to 'halt the violence and bring an end to the
humanitarian catastrophe now unfolding in Kosovo (...). Our objective is to
prevent more human suffering and more repression and violence against the
civilian population of Kosovo' (Press release 1999(040), 23 March 1999). It may
be noted that already in 1998NATO Member States reaffirmed that:
11 'We are deeply concerned by the situation in Kosovo. We deplore the
continuing use of violence in suppressing political dissent or in pursuit of
political change. The violence and the associated instability risk
jeopardising the Peace Agreement in Bosnia and Herzegovina and
endangering security and stability in Albania and the former Yugoslav
Republic of Macedonia. It is particularly worrying that the recent
resurgence of violence has been accompanied by the creation of obstacles
denying access by international observers and humanitarian organisations
ta the affected areas in Kosovo' (NATO Statement on Kosovo: Press
Communique M-NAC-1 (98)61 issued at the Ministerial Meeting of the
th
North Atlantic Council held in Luxembourg on 28 May 1998).
3.24 June 10, 1999 marks the adoption by the UN Security Council, acting under
Chapter VII of the Charter of United Nations, of the resolution 1244 (1999). At the
same time, the NATO Secretary General, after nearly three months of air
campaign, decided to suspend 'Operation Allied Force'.
3.25 In the preambular part of the UN SC resolution 1244 (1999), Security Council
stated that it was:
'determined ta resolve the grave humanitarian situation in Kosovo, Federal
Republic of Yugoslavia, and ta provide for the safe andfree return of all refugees
and displaced persans to their homes.'
and that it:
'Condemns all acts of violence against the Kosovo population as well as all
terrorist acts by anyparty'.
3.26 On the basis of that resolution an international civil and security presences, under
United Nations auspices, were established. As a result, United Nations Interim
Administration Mission in Kosovo (UNMIK) was created, composed of four
pillars: Police and justice (led by United Nations), Civil Administration (United
Nations), Democratization and institution building (Organization for Security and
Co-operation in Europe), Reconstruction and economic development (European
Union). It may be noted already at this stage of considerations that the
12 establishment of UN administration in Kosovo significantly changed its legal
status.
3.27 On the basis of UNMIK Regulation 1/1999 of 25 July 1999
(UNMIK/REG/1999/1):
'Al! legislative and executive authority with respect to Kosovo, including the
administration of the judiciary, is vested in UNMJK and is exercised by the
Special Representative of the Secretary - General '.
3.28 In May 2000 UNMIK established Joint Interim Administrative Structure (JIAS)
that included the following components: Interim Administrative Structure, Kosovo
Transitional Council, Administrative departments and Municipal boards.
3.29 On 15 May 2001 the Special Representative of the Secretary General signed
Regulation No. 2001/9 that promulgated 'A Constitutional Framework for
Provisional Self-Government in Kosovo' (Constitutional Framework). The
preamble to that document states:
'Acknowledging Kosovo 's historical, legal and constitutional development,·
and taldng into consideration the legitimate aspirations of the people of
Kosovo to live in freedom, in peace, and in friendly relations with other
people in the region.
(.)
Determining that, within the limits defined by UNSCR 1244 (]999),
responsibilities will be transferred ta Provisional Institutions of Self
Government which shall work constructively towards ensuring conditions
for a peaceful and normal lifefor al! inhabitants of Kosovo, with a view to
facilitating the determination of Kosovo 'future status through a process at
an appropriate future stage which shall, in accordance with UNSCR
1244(1999), take full account ofall relevant factors including the will of the
people' (emphasis added).
3.30 In accordance with the regulations of the Constitutional Framework, de facto all
authority over Kosovo was vested in the hands of Special Representative or in the
institutions established under the Constitutional Framework, i.e. the Assembly, the
President of Kosovo, Government and Courts. As far as the Kosovo's status is
13 concerned, the relevant provisions of Chapter I of the Constitutional Framework
provided that:
'1.1 Kosovo is an entity under interim international administration which,
with its people, has unique historical, legal, cultural and linguistic
attributes.
1.2 Kosovo is an undivided territory throughout which the Provisional
Institutions of Self-Government established by this Constitutional
Framework for Provisional Self-Government (Constitutional Framework)
shall exercise their responsibilities.
1.3 Kosovo is composed of municipalities, which are the basic territorial
units of local self-government with responsibilities as set forth in UNMIK
legislation inforce on local self-government and municipalities in Kosovo.'
Itis also necessary to note that aècording to Chapter XIV of the Constitutional
Framework:
'The SRSG shall take the necessary 1neasures to facilitate the transfer of
powers and responsibilities to the Provisional Institutions of Self
Government'.
3.31 Mr. M. Steiner, Special Representative of the Secretary - General for Kosovo and
Head of the United Nations Interim Administration Mission in Kosovo, in his
report of 2002 stated that 'United Nations operation in Kosovo under resolution
1244 (J999) has entered a new phase, allowing us to make new proposais for the
way ahead' (doc. S/PV.4518, 24 April 2002, p. 2). In the very same report, Mr.
Steiner informed that he was embarking on a benchrnark process. These
benchmarks should be achieved before launching a discussion on status, in
accordance with resolution 1244 (1999) (supra, p. 4). This approach became to be
known as 'Standards before Status' policy (see: S/PRST/2003/1, 6 February 2003,
p. 2) and the 'benchrnarks' referred to above included: (a) existence of effective,
representative and functioning institutions; (b) reinforcement of the rule of law; (c)
freedom of movement for all; (d) respect for the right of all Kosovans to remain
and return; (e) development of a sound basis for a market economy; (f)clarity of
property title; (g) normalized dialogue with Belgrade; and (g) reduction and
14 transformation of the Kosovo Protection Corps in line with its mandate. Thus, the
need to consider the future status of Kosovo was explicitly recognized. At the
same time, it was thought that before embarking on that debate, certain standards
of democracy had to be introduced and implemented in Kosovo.
3.32 After the riots that had taken place in Kosovo in March 2004, Ambassador Kai
Eide, the then Permanent Representative of Norway to NATO, indicated that
'standards before status policy lacked credibility and should be replaced by a
priority-based and realistic standardspolicy',adding as well that 'raising afi1ture
status question soon seems - on balance - to be better option and is probably
inevitable' (M. Weller, op. cit., p. 20; see also: Letter dated 17 November 2004
from the Secretary - General addressed to the President of the Security Council,
S/2004/932, 30 November 2004, Annex).
3.33 On 7 October 2005, Ambassador K. Eide, in his capacity as Special Envoy of the
UN Secretary - General to undertake a comprehensive review of the situation in
Kosovo, reported to the Security Council:
'The future status process must be movedforward with caution. (...) The end
result must be stable and sustainable. Artificial deadlines should not be set.
Once the process has started, it cannot be blocked and must be brought to a
conclusion' (Letter dated 7 October 2005 from the Secretary - General
addressed to the President of the Security Council, S/2005/635, 7 October
2005, Annex; emphasis added).
3.34 The UN Security Council agreed with Ambassador K. Eide's conclusions and
authorized, on 24 October 2005, the commencement of the process conceming the
future status of Kosovo (Statement by the President of the Security Council,
S/PRST/2005/51, 24 October 2005).
3.35 In November 2005 the UN Secretary - General nominated Martti Ahtisaari as his
Special Envoy for the Future Status Process for Kosovo. Later on, Mr. Ahtisaari
undertook a series of actions in order to settle the issue of the future status of
Kosovo, with the agreement ofboth interested parties.
3.36 However, Mr. Ahtisaari in his 2007 report (UN doc. S/2007/168, 26 March 2007)
concluded:
15'1. But after more than one year of direct talks, bilateral negotiations and expert
consultations, it has become clear to me that the parties are not able to reach an
agreement on Kosovo 'sfuture status.
(..)
3. It is my firm view that the negotiations' potential to produce any mutually
agreeable outcome on Kosovo 'sstatus is exhausted No amount of additional
talks, whatever theformat, will overcome this impasse.
(...)
3. The time has come to resolve Kosovo 'sstatus. Upon careful consideration of
Kosovo 's recent history. the realities of Kosovo todav and taking into account the
negotiations with the parties. I have came to the conclusion that the only viable
option for Kosovo is independence, to be supervised for an initial period by the
international community. My Comprehensive Proposa! for the Kosovo Status
Settlement, which sets forth these international supervisory structures, provides
the foundations for a future independent Kosovo that is viable, sustainable and
stable, and in which all communities and their members can live a peaceful and
dignijied existence (emphasis added).
(...)
6. A history of enmity and mistrust has long antagonized the relationship between
Kosovo Albanians and Serbs. This difficult relationship was exacerbated by the
actions of the Milosevic regime in the 1990s. After years of peaceful resistance to
Milosevic 's policies of oppression - the revocation of Kosovo 's autonomy, the
systematic discrimination against the vast Albanian majority in Kosovo and their
effective elimination /rom public life - Kosovo Albanians eventually responded
with armed resistance. Belgrade 's reinforced and brutal repression followed,
involving the tragic loss of civilian lives and the displacement and expulsion on a
massive scale of Kosovo A/banians /rom their homes, and /rom Kosovo. The
dramatic deterioration of the situation on the ground prompted the intervention of
the North Atlantic Treaty Organization (NATO), culminating in the adoption of
resolution 1244 (1999) on 10June 1999.
7. For the past eight years, Kosovo and Serbia have been governed in complete
separation. The establishment o[the United Nations Mission in Kosovo (UNMJK)
pursuant to resolution 1244 O 999). and its assumption of all legislative. executive
and iudicial authority throughout Kosovo, has created a situation in which Serbia
16 has not exercised any governing authority over Kosovo. This is a reality one
cannot deny; it is irreversible. A return of Serbian rule over Kosovo would not be
acceptable ta the overwhelming ma;ority of the people o{Kosovo. Belgrade could
not regain its authority without provoldng violent opposition. Autonomy o{Kosovo
within the borders of Serbia - however national such autonomy may be - is
simply not tenable (emphasis added).
3.37 The 'Comprehensive Proposa! for the Kosovo Status Settlement' (so called
Ahtisaari' s Plan) was annexed to that report. Its principal assumptions, although
not pointing directly at the independence of Kosovo, defined it using the classic
state 'toolbox' like: authority, population, defined territory and capacity to
conclude international agreements.
'1.1 Kosovo shall be a mufti-ethnie society, which shall govern itself
democratically, and with full respect for the rule of law, through its
legislative, executive, andjudicial institutions.
(...)
1.3 Kosovo shall adopta Constitution (...).
(...)
1.5 Kosovo shall have the right to negotiate and conclude international
agreements and the right to seek membership in international organizations.
(.)
Am1ex IX, Article 1 Kosovo shall be responsible for managing its own
ajfairs, based upon the democratic principles of the rule of law,
accountability in government, and the protection and promotion of human
rights, the rights of members of all Communities, and the general welfare of
all its people. Recognizing that fulfilling Kosovo 's responsibilities under
this Settlement will require a wide range of complex and difficult activities,
an International Civilian Representative (]CR) shall supervise the
implementation of this Settlement and support the relevant efforts of
Kosovo 's authorities.'
3.38 Since the presentation of the report to the Security Council, it failed to adopt (or
find alternatives to) Ahtisaari's Plan which, in turn, gave rise to further efforts of
the international community to find consensual resolution to the question of the
17 future status of Kosovo. In particular, the Troika (officiais from EU, Russia and
USA) facilitated a series of negotiation rounds as well as mediated between Serbia
and Kosovo. Various options were inquired into, from the full independence of
Kosovo, through supervised independence or autonomy to, eventually, 'agreement
to disagree'. In the end though 'the parties were unable ta reach an agreement on
the final status of Kosovo. Neither party was willing to cede its position on the
fundamental question of sovereignty over Kosovo' (Letter dated 10 December
2007 from the Secretary - General to the President of the Security Council,
S/2007/723, 10December 2007, Enclosure).
3.39 In January 2008 the UN Secretary General in his periodical report on the United
Nations Interim Administration Mission in Kosovo underlined:
'Expectations in Kosovo remain high that a solution to Kosovo 's future
status must be found rapidly. As such the status quo is not likely to be
sustainable. Should the impasse continue, events on the ground could take
on a momentum of their own, putting at serious risk the achievements and
legacy of the United Nations in Kosovo. Moving forward with a process ta
determine Kosovo 's future status should remain a high priority for the
Security Council and for the international community.' (S/2007/768, 3
January 2008, para. 33; emphasis added)
What was underlined above, as the UN Security Council was not able to find
consensus on the question on the status of Kosovo, events on the ground indeed
took on momentum of their own.
3.40 On 17 February 2008 the Assembly of Kosovo (elected in the democratic elections
held on 17 November 2007) adopted the Declaration of Independence that, inter
alia,underlined the sui generis character of Kosovo case as well as confirmed the
solutions earlier proposed in the Ahtisaari' s Plan and main principles of the UN
SC resolution 1244 (1999):
'Observing that Kosovo is a special case arising from Yugoslavia's non
consensual breakup and is nota precedent for any other situation,
(...)
18 We, the democratically-elected leaders of our people, hereby declare
Kosovo to be an independent and sovereign state. This declaration reflects
the will of ourpeople and it is infull accordance with the recommendations
of UN Special Envoy Martti Ahtisaari and his Comprehensive Proposa! for
the Kosovo Status Settlement.
(..)
We hereby affirm, clearly, specifically, and irrevocably, 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 al! of these matters, we shall act consistent with principles of
international law and resolutions of the Security Council of the United
Nations, including resolution 1244 (1999).'
3.41 It is worth noting that the Declaration of Independence derives from the will of
people represented by the democratically-elected leaders not from, as it was
phrased in the request incorporated in the UN GA 63/3, the decision of
Provisional Institutions of Self-Government of Kosovo. In that regard it shall be
underlined that the Council of Europe Election Observation Mission in Kosovo
(CEEOM V) observed the electoral process leading up to the 17 November 2007
Kosovo Assembly, Municipal Assembly and Mayoral Elections and it concluded
that:
'The elections were conducted generally in line with Council of Europe
principles, as well as international and European standards for democratic
elections, when considering the late calffor elections and theparticularity of
running three elections concurrently in Kosovo 's still complex political and
social environment.
The elections took place in a peaceful atmosphere, despite the particularly
tense political context at the approach of the deadline for the negotiation
process on thefuture status of theprovince (...) '.
19IV. Developrnents since the Declaration of Independence
4.1 Since the adoption of the Declaration of Independence, 57 States, including 22 EU
Member States, recognized Kosovo as a sovereign and independent State. It shall also
be noted that recognizing States represent various geographical regions of the world,
as well as multiple legal, cultural and religious traditions (e.g. Albania, Australia,
France, Japan, Malaysia Maldives, Panama, South Korea, Turkey, United Arab
Emirates, United Kingdom, United States of America).
4.2 Moreover, in its resolution of 5 February 2009, European Parliament called upon
states, that have not already clone so, to recognize the independence of Kosovo
(European Parliament resolution of 5 February 2009 on Kosovo and the role of the
EU, P_6TA_PROV(2009)0052, B_6-0063/2009).
4.3 Several states have established diplomatie relations with Kosovo. Also Kosovo has
diplomatie representation in other states and it already concluded some international
agreements.
4.4 On 9 April 2008 (effective from 15 June 2008) Assembly of Kosovo adopted the
Constitution of the Republic of Kosovo, according to which:
'The Republic of Kosovo is an independent, sovereign, democratic, unique
and indivisible State.
(...)
The Republic of Kosovo shall have no territorial claims against, and shall
seek no union with , any State or Part of any State.
(..)
The sovereignty and territorial integrity of the Republic of Kosovo is intact,
inalienable, indivisible and protected by all means provided in this
Constitution and the law' (Articles 1- 2 of the Constitution).
The Constitution also provides that Kosovo 'will abide by all of its obligations under
the Comprehensive Proposa!for the Kosovo Status Settlement' (Article 143 (1)) and
envisages the international civilian and security presences on its territory (Articles
146, 147, 153).
4.5 On 26 February 2009 the Trial Chamber of ICTY found Nikola Sainovié, the former
Yugoslav Deputy Prime Minister, Nebojsa Pavkovié, a former General of the
20 Yugoslav Army, and Sreten Lukié, the former Serbian Police General, guilty of
crimes against humanity and violation of the laws and customs of war. Also
Dragoljub Ojdanié, Chief of the General Staff was found guilty of deportation and
forcible transfer as a crime against lmmanity, and Vladimir Lazarevié, the
Commander of Pristina Corps was found to have aided and abetted the commission
of a number of the charges of deportation and forcible transfer in the Indictment.
4.5.1 ICTY Trial Chamber - with relation to Kosovska Mitrovica/Mitrovica - found that:
'the events there amounted to attack upon civilian population of the town,
that this attack was carried out in a systematic manner, and that itwas part
of the widespread and systematic attack against Kosovo Albanian civilians
in at least 13 municipalities of Kosovo. (...) The chamber finds therefore
that in relation to Kosovska Mitrovioca/Mitrovica town al! the elements of
deportations a crime against humanity (...) are satisfied. (.) Consequently
the Chamber is convinced that the elements of the crime of other inhumane
acts (forcible transfer) (...) are also satisfied. (...) The Chamber thus finds
that in the village of Zabare/Zhabar, along with other neighboring villages
in Kosovska Mitrovica municipality, al! of the elements of deportation, as a
crime against humanity (...) are satisfied.' (ICTY Case No. IT-05-87-T, 26
February 2009; paras. 1225 - 1231).
4.6 It should be also noted that the Europea11Union launched a Rule of Law Mission in
Kosovo (Council Joint Action 2008/124/CFSP of 4 February 2008 on the European
Union Rule of Law Mission in Kosovo; EULEX), indicating that:
'There is a need toprevent, on humanitarian grounds, possible outbreaks of
violence, acts ofpersecution and intimidation in Kosovo, taking account, as
appropriate, of the responsibility towards populations as referred ta in
Resolution 1674 by the United Nations Security Council on 28 April 2006.'
Moreover, EULEX assumed, under the auspices of UN administration, the majority
of responsibilities of the latter. On 18 August 2008 UNMIK and EULEX signed a
technical agreement on the sale of UNMIK surplus equipment and vehicles. On 26
June 2008 UNMIK formally announced the staii of the reconfiguration process
21 (Report of the Secretary - General on the United Nations Interim Administration
Mission in Kosovo, S/2008/692, 24 November 2008, paras. 21 - 25).
V. Sui generis Character of Kosovo Case
5.1 In the opinion of the considerable part of the international community, as well as of
prominent representatives of the doctrine of international law, the situation of Kosovo
has been exceptional. The Government of the Republic of Poland shares that view.
The Declaration of Independence of Kosovo shall by assessed in light of that
conclusion. It is to be added that the Declaration itself underlines that 'Kosovo is a
special case arising from Yugoslavia's non-consensual breakup and is not a
precedent for any other situation'. Finally, as Martti Ahtisaari, UN Special Envoy of
the Secretary General on Kosovo' s future status, put it:'Kosovo is a unique case that
demands unique solution' (Letter dated 26 March 2007 from the Secretary - General
addressed to the President of the Security Council, S/2007/168, para. 15).
5.2 The following elements constitute the sui generis, exceptional, character of
Kosovo case:
5.2.1 Longstanding autonomy and self- governance of Kosovo, that dates back to, at
th
least, half of the 20 century. Since the creation of SFRY in 1945, Kosovo enjoyed
broad scope of autonomy, guaranteed by subsequent Yugoslav Constitutions (see
in particular paras.: 3.3 - 3.12 above).
5.2.1.1As a rule, Kosovo and its people enjoyed special rights within both SFRY and
Serbia. It was expressed in particularly clear terms in the 1974 SFRY
Constitution, where the will of Kosovo's people to exercise their rights within
SFRY and Serbia is highlighted (see para. 3.5 above). After the political changes
of 1980s and 1990s (aimed notably at the limitation and, afterwards, the
elimination of all forms of Kosovo's autonomy), as well as in the result of
deteriorating humanitarian situation in Kosovo, the will of its inhabitants evolved
into achieving their own independence (initially, still in the framework of SFRY).
Moreover, that will was consequently and repeatedly expressed, which took place
against the background of the process of progressive 'autonomization' of Kosovo.
225.2.1.2 Gradually, together with the strengthening of the Serbian repressions against
Kosovo, the will of its people to createtheir own state intensifiedince Kosovars
were deprived of the possibility to govern themselves autonomously.
Notwithstanding the Serbian repressions, Kosovo in 1990s managed to sustain its
- parallel to the Serbian ones - institutions (including the Assembly). It should be
stressed that those institutions - characteristic for a state - were created entirely
outside of Serbian authority and control. At a later stage those national institutions
were strengthened and supported under the auspices of United Nations.
5.2.2 Second important feature decisive of Kosovo's sui generischaracter is the fact that
systematic and broad scale violations of human rights and humanitarian law
by Serbia took place there.
5.2.2.1 As indicated, 1980s and 1990s were marked by the spreading of ethnical
cleansing, forced displacement, arbitrary executions and detentions as well as
enforced disappearances and outbreaks of violence directed also against Kosovo's
civilian population (see also ICTY Trial Chamber findings, para. 4.5 above). These
events were also the main reason for the commencement of NATO air campaign
and, later on, for the adoption ofSCresolution 1244(1999).
5.2.3 The third differentia specifica of Kosovo is the fact that its status was
'internationalized' as a consequence of systematic and broad scale violations of
human rights and humanitarian law which have been committed by Serbia there.
International community introduced thus de facto and de iure protection of
Kosovars against hostile and violent actions of Serbia.
5.2.3.1 Beginning with the adoption of UN SC resolution 1244 (1999), Kosovo was
practically governed and supervised by international institutions - the United
Nations, North Atlantic Treaty Organization, Organization for the Security and
Co-operation in Europe and the European Union.
5.2.3.2Under the UN Special Representative for Kosovo legislation was passed
concerning a broad range of issues (e.g. customs, currency, taxes, banking system,
telecommunication law, penal law or family law). At the same time public and
municipal administration, economic, judicial and health care system were further
developed, public safety institutions were organized and elections were held.
235.2.4 Since the commencement of NATO air campaign and the adoption of the UN SC
1244 (1999) resolution, Serbia lost effective authority and control over Kosovo
which was assumed in full by the UN administration and Kosovo institutions.
That situation existed since 1999 and within the next 9 years Serbia neither
exercised nor resumed its control in Kosovo. In that sense, the adoption of the
Declaration of Independence in 2008 only confirmed the reality.
5.2.5 AUthe above described factors treated together constitute the sui generis character
of Kosovo's Declaration of Independence. It is also why the 'Kosovo case' shall
not be regarded as setting a general precedence for any other similar situation.in
a particular case only one or a few (but not all) of above mentioned sui generis
conditions were fulfilled, it could not be legally assessed per analogiam to
Kosovo' s Declaration of Independence.
5.2.5.1 It shall also be reminded that the international community, at least since 2007
knew that there was no coming back to the autonomy of Kosovo within Serbia. As
Mr. Ahtisaari stated 'independence is the only viable option for Kosovo' (Letter
dated 26 March 2007 from the Secretary - General addressed to the President of
the Security Council, S/20071168,para. 5).
5.2.5.2 In the situation where theUN SC was unable to take fu1iher steps in determining
the future status of Kosovo on behalf of international community as well as after
the exhaustion of all diplomatie means, those steps were taken, peacefully, by the
people of Kosovo themselves on 17February 2009.
VI. Principle of Self - determination
6.1 On the basis of the Declaration on Principles of International Law concerning
Friendly Relations and Co-operation among States in accordance with the Charter
of the United Nations (UN GA resolution 2625 (XXV), 25 October 1970) the
following four forms of the right to self - determination may be singled out:
a) of people under the colonial dependence or under other form of
domination;
b) of people under alien occupation;
24 c) of people inhabiting states that infringe the right to self - determination
and, thereby, being prevented from effective exercise of that right
(which could, in particular, take the form of those people being
represented in the host state's government that would reflect, in a not
discriminatory manner, the whole of a given state population);
d) of people inhabiting states that respect the principle of self -
dete1mination and, consequently, those people being adequately
represented in the government of the host state.
6.2 In the situation (d) above, people of a given ten-itory are not empowered to
exercise their right to self - determination (e.g. through secession), unless such a
right is guaranteed by a constitutional act and conditions to execute that right are
fulfilled.
6.3 In the category (c) above, on the other hand, right to self - determination cannot
be effectively exercised by people within a given country and, consequently, that
right may under certain circumstances entail secession and be vindicated by all
legal means.
6.4 Itis possible to distinguish between the primary and remedial right to secession.
(see e.g. A. Buchanan, Justice, Legitimacy and Self-determination. Moral
Foundations for International law, Oxford University Press 2004, p. 271 and
subseq., J. Crawford, The Creation of States in International Law, Second
Edition, Oxford University Press 2006, pp 119 - 128).
6.5 Remedial right to secession is based on a premise that a state gravely violates
international human rights and humanitarian law against peoples inhabiting its
territory. Those violations may include inter alia: genocide, crimes against
humanity, war crimes and other massive violations of human rights and
humanitarian law.
6.6 As the Supreme Court of Canada in Quebec Secession case put it:
'A right to externat self- determination (which in this case potentially takes
form of the assertion of a right to unilateral secession) arises in only the
most extreme cases and, even the, under carefitlly defined circumstances.
(...) Although this third circumstance [of external self - determination] has
been described in several ways, the underlying proposition is that, when a
25 people is blocked from meaningful exercise of its right to self -
determination internally, it is entitled, as a last resort, to exercise it by
secession. (...) Clearly, such a circumstance parallels the other two
recognized situations in that the ability of apeople to exerciseits right to self
- determination internally is somehow being totally frustrated.' ([1998] 2
S.C.R. 217, paras 126 - 134; emphasis in original).
6.7 Therefore, remedial right to secession may only corne into question as a last resort
when it is necessary to protect the inhabitants of territories from wrongful acts of
their host states (see also The lmplementation of the Right to Self Determination
as a Contribution to Conjlict Prevention, Report of the International UNESCO
Conference of Experts held in Barcelona, 21 -27 November 1998, Dr. Michael C.
van Walt van Praag with Onno Seroo (eds), pp. 22 - 28).
6.8 It is also the Declaration on Principles of International Law concerning Friendly
Relations and Co-operation among States in accordance with the Charter of the
United Nations itself that states explicitly:
'Nothing in theforegoing 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 sel(-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.' (emphasis added;
similar explanation may be found in: United Nations Word Conference of
Human Rights, Vienna Declaration and Progra,nme of Action, 25 June
1993, 32 I.L.M.(1993), p. 1665).
6.9 It may be inferred therefore that the subordination of the principle of self -
determination to the principle of territorial integrity is by no means of absolute
character. The latter does not always have priority irrespective of the particular
conditions of a given situation.
6.10 In the light of the considerations presented, inter alia, in paras 6.1 - 6.7 and
Chapter V of the present statement, the conclusion has to be drawn that Kosovo
was entitled to exercise its remedial right to secession.
266.11 lt shall be underlined once agam that the exerc1se of the right to self -
determination of Kosovo' s people in Serbia was not longer possible and
unattainable. That conclusion is validated by the scale of violations of human
rights and humanitarian law by Serbia. In such a situation Kosovo could
legitimately exercise its remedial right of secession from Serbia in order to protect
and preserve most fundamental rights and interests of its people.
6.12 Therefore, the territorial integrity of Serbia - in the consequence of its own
wrongful acts against Kosovo - eroded and was undermined already in 1999. That
led to the situation where Serbia lost its effective authority and control over
Kosovo and has not regained it within the next years. In the consequence of the
Serbian violations of human right and humanitarian law, it may also be argued,
that that State could no longer have recourse to the principle of territorial integrity
as protecting Serbia from the exercise by the Kosovars of their remedial right to
secess10n.
6.13 It is also beyond any doubt that certain norms of international law concerning,
inter alia, the protection of fundamental human rights as well as self -
determination of peoples have special legal value and meaning. These norms have
been often referred to as peremptory norms (see e.g. A. Cassese, International
Law, 2 nd Edition, Oxford University Press 2005, pp 64 - 67 and bibliography
quoted therein; Draft Articles on the Law of Treaties with commentaries, YILC,
1966, Vol. II, p. 248; Commentaries to the draft articles on Responsibility of
States for internationally wrongful acts, YILC, 2001, Vol. II, pp. 110 et. seq.). lt
corresponds to the view that in case of severe violations of ce1iain fundamental
human rights and humanitarian law norms, the principle of self - determination
may not be limited to its interna! aspect (i.e. self - determination within a 'host'
state).
6.14 The International Court of Justice also affirmed on a number of occasions that
certain norms or obligations have special nature. In theEast Timor case, the Court
said that:
'Portugal 's assertion that the right of peoples to self-determination, as it
evolvedfrom the Charter and/rom the United Nations practice, has an erga
omnes character, is irreproachable. The principle of self-determination of
peoples has been recognized by the United Nations Charter and in the
27 jurisprudence of the Court (...); it is one of the essential principles of
contemporary international law' (Case concerning East Timor, Portugal v.
Australia, Judgment, I.C.J. Reports 1995,p. 102).
That assertion was repeated in the International Court of Justice's advisory
opinion on the Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, where the Court referred also to its judgment in the
Barcelona Traction case:
'The Court would observe that the obligations violated by Israel include
certain obligations erga omnes. As the Court indicated in the Barcelona
Traction case, such obligations are by their very nature 'the concern of al!
States' and, 'ln view of the importance of the rights involved, al! States can
be held to have a legal interest in their protection' (Barcelona Traction,
Light and Power Company, Limited, Second Phase, Judgment, 1.C.J Reports
1970, p. 32, para. 33). The obligations erga ornes violated by Israel are the
obligation to respect the right of the Palestinian people to self determination
(...).' (Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, Advisory Opinion, I.C.J. Rep01is2004, para. 155).
In the Reservations to the Convention on the Prevention and Punishment of the
Crime of Genocide case, the Court also highlighted that:
'The origins of the Convention show that it was the intention of the United
Nations to condemn and punish genocide as 'a crime under international
law' involving a denial of the right of existence of entire human groups, a
denial which shocks the consistence of mankind and results in great lasses
ta humanity, and which is contrary ta moral law and ta the spirit and aims
of the United Nations (Resolution 96(!) of the General Assembly, December
1/h 1946). The first consequence arising fi·om this conception is that the
principles underlying the Convention are principles which are recognized
by civilized nations as binding on States, even without any conventional
obligation. A second consequence is the universal character bath of the
condemnation of genocide and of the co-operation required 'in order to
liberate mankind from such a odious scourge' (Preamble ta the
28 Convention)' (Reservations to the Convention on the Prevention and
Punishment of the Crime of Genocide, Advisory Opinion, I.C.J. Reports
1951,p. 23).
The Court sustained its reasoning m that respect in the Application of the
Convention on the Prevention and Punishment of the Crime of Genocide case,
where it stated in particular that:
'The Court affirmed the 1951 and 1996 statements in its Judgment of 3
February 2006 in the case concerning Armed Activities on the Territory of
Congo (NewApplication 2002) (Democratic Republic of Congo v. Rwanda),
paragraph 64, when it added that the norm prohibiting genocide was
assuredly a peremptory norm of international law üus cogens).' (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, para. 161).
6.15 Serbia not only did not provide sufficient guarantees to the protection of
fundamental human rights but was the one that violated these rights in Kosovo
depriving it at the same time of autonomy. In such a situation people of Kosovo
requested execution of their inherit rights that by no means could have been
exercised within Serbia.
6.16 Finally, international law should be viewed as a dynamic, notas a static system. It
is because that system changes and develops through, inter alia,the constant
practice of states. Therefore the content of norms and principles of that legal
system (even the ones of such a significance as territorial integrity and self -
determination) are subject to continuous modifications and adjustments. For
example, the political and legal system established on the basis of Potsdam and
Yalta conferences and arrangements, supplemented by the CSCE/OSCE process,
at that time was considered to be of a quasi-permanent nature. However, the so
called 'Spring of Nations' in the Eastern and Central Europe that commenced in
Poland in 1980 brought about significant changes in the international system,
including the independence of many states, the German reunification, fall of the
Soviet Union or the dissolution of Yugoslavia.
29VII. Interpretation of the United Nations Security Council Resolution 1244 (1999)
7.1 It is the view of the Republic of Poland that the Kosovo's Declaration of
Independence is not contrary to the UN SC resolution1244 (1999).
7.2 Though this resolution refers to the territorial integrity and sovereignty of the then
SFRY, it does so only in a prearnbular language, not in the operational one.
Moreover, that reference concerns solely the provisional phase of the UN
administration in Kosovo. Bence, it does not predetermine the applicability of
these principles to the future status of Kosovo. The relevant parts of the UN SC
resolution 1244 (1999) read:
• [The Security Council] 'Decides that the main responsibilities of the
international civilpresence will include:
(a) Promoting the establishment, pending a final settlement, of
substantial autonomy and self-government in Kosovo, taking full
account of annex 2 and of the Rambouillet accords (S/1999/648). (...)'
(op. para. 10; emphasis added).
• '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 integrity of the Federal
Republic of Yugoslavia and the other countries of the region, and the
demilitarization of the KLA.' (Annex 1, item 6; emphasis added).
Analogous formulations may be found in Annex 2, para. 8 of the resolution.
7.3 It may be inferred therefore that the Security Council, while deciding that the
solution to the 'Kosovo crisis' would be based upon general principles contained
in Annex I and elaborated on in Annex II to the resolution, did not took the stance
that such a solution may ori.lybe attained through its own decisions.
7.4 Consequently, the UN SC resolution 1244 (1999) needs to be interpreted in the
light of the above presented considerations, as well as of sui generis character of
Kosovo case.
307.5 As it was already stated ·above, the international community realized that
independence is 'the only viable option' which is expressed in the most
comprehensive way in the Ahtisaari's Plan. The failure to implement that Plan and
further development of the situation regarding Kosovo also constitute factors that
need to be taken into account while interpreting the UN SC resolution 1244
(1999).
7.6 Moreover, the Security Council was notable to execute its fonctions envisaged in
the UN Charter, to 'remain actively seized of the matter' or to propose viable
solutions for the future status of Kosovo that would be acceptable for the parties
to a conflict and the international community as a whole.
7.7 The political impasse within the UN SC and, thus, the loss of its control over the
situation in Kosovo catalyzed the exercise by the people of Kosovo of its remedial
right to secession. It shall be also noted that the people of Kosovo only exercised
that right after the UN-guided course of action in determining the Kosovo's future
status came to a halt.
VIII. General Conclusions
8.1 The Government of the Republic of Poland is of the opinion that the Declaration of
Independence of 17 February 2008 has not conflicted with any norm of international
law.
8.2 The Government of the Republic of Poland respectfully asks the Court to respond to
the question posed in the General Assembly resolution 63/3 taking into account
considerations presented in this statement.
31
Written Statement of Poland