AMBASADA EMBASSY
E REPUBLIKËS SË SHQIPËRISË OF THE REPUBLIC OF ALBANIA
\ Hagë The Hague
No 45/09
The Embassy of the Republic of Albania presents its compliments to the Registrar of
the International Court of Justice and has the honour to transmit to the Court this
reply in the advisory proceedings in the case Accordance with International Law of
the Unilateral Declaration of Independence by the Provisional Institutions of Self
Govemment of Kosovo.
The Embassy of Albania avails itself of this opportunity to renew' ,tothe_Regis~,..yf
the International Court of Justice the assurances of its highest consideratio~
'
To: Mr. Philippe Couvreur
Registrar of the InternationalCourt of Justice
Peace Palace
Carnegieplein 2
2517 KJ The Hague
ATelephone: (31)70 42 Fax:(31)70 42 72E-mail:[email protected] INTERNATIONAL COURT OF JUSTICE
Accordance with International Law of the Unilateral
Declaration of Independence by the Provisional
Institutions of Self-Govemment of Kosovo
(Request for Advisory Opinion)
Order of 17 October 2008
REPLY OF THE GOVERNMENT
OF THE REPUBLIC OF ALBANIA
July 2009 TABLE OF CONTENTS
LIST OF ABBREVIATIONS ........................................................................
.................. 4
Part I INTRODUCTION ........................................................................
.................... 5
Part II BACKGROUND TO THE CASE .................................................................. 6
A) Constitutional Issues ....................................................6...................
.................
B) Armed Con:flictin Yugoslavia and Kosovo ..................................................... 9
C) Demographic Issues ......................................................11................
................
D) Parallel Institutions ...................................................13...................
.................
E) Human Rights Violations in Kosovo .......................................14.....................
F) Political Solution of the Kosovo Status .................................16.......................
G) Kosovo's Status within the Project of Greater Serbia .................................... 18
H) Concluding Remarks ......................................................20................
..............
Part III JURISDICTION AND PROPRIETY ISSUES ............................................ 22
A) Issues Concerning the Jurisdiction of the Court ............................................. 22
B) Issues Concerning Propriety .............................................24.........................
...
C) Concluding Remarks ......................................................26................
..............
Part IV ISSUES RELATING TO THE ACCORDANCE WITH
INTERNATIONAL LAW OF THE DECLARATION OF INDEPENDENCE BY
KOSOVO ........................................................................
................................................. 27
A) The Issue of Independence of Kosovo Is Not Before the Court, lt Being
Completely Distinct from the Issue of Accordance with International Law of the
Declaration of Independence ..................................................27....................
..........
B) The Principle of Territorial Integrity Is Not Applicable in This Case............ 27
C) The Principle of Territorial Integrity in No Way Limits the Internai
Constitutional Process of a State.............................................29.........................
.....
D) The Treatment of Self-Determination in Chapter VII of the Statement of
Serbia Is Entirely Incorrect .................................................31.....................
.............
E) The People of Kosovo Clearly Constitutes a People and a Self-Determination
Unit ........................................................................
34..............................................
F) Resolution 1244 (1999) Is No Guarantee for the Territorial Integrity of Serbia
and lt Left Open the Issue of the Final Status of Kosovo and the Manner of lts
Expression ...................................................................36...
.......................................
G) Under Contemporary International Law Serbia's Consent Is Not a Legal
Requirement for the Validity of the Act of Declaring Independence ..................... 37
H) The Kosovar Authorities Exert the Sovereign Prerogatives of a State Entity 39
2 I) Kosovo's Declaration of Independence Is In Conformity with International
Law ........................................................................
........41......................................
J) Minority Guarantees and the Treatment of Ethnie Albanians in the Republic
of Serbia ........................................................................
..42......................................
K) Concluding Remarks ........................................................................
.............. 47
Part V CONCLUSIONS AND SUBMISSIONS ....................................................... 48
A) Conclusions ....................................................................48..
............................
B) Submissions ....................................................................50..
............................
3 LIST OF ABBREVIATIONS
Dol Declaration of Independence
EULEX European Union Rule of Law Mission in Kosovo
FRY Federal Republic of Yugoslavia
GA General Assembly of the United Nations
ICFY International Conference on the former Yugoslavia
ICJ International Court of Justice
ICTY International Criminal Tribunal for the Former Yugoslavia
KFOR NATO-led Kosovo Force
KLA Kosovo Liberation Army
NATO North Atlantic Treaty Organization
OSCE Organization for Security and Co-operation in Europe
PISG Provisional Institutions of Self-Government of Kosovo
UNMIK United Nations Interim Administration Mission in Kosovo
SC Security Council of the United Nations
SFRY Socialist Federal Republic of Yugoslavia
SR-SG Special Representative of the Secretary-General of the United Nations for
Kosovo
4 Part I INTRODUCTION
1. On the basis of the Ortler of the Court of 17 October 2008 the Republic of Albania
submits its written observations on the other written statements, in accordance
with Article 66, paragraph4, of the Statute.
2. Albania has a number of observations with regard to certain factual and legal
issues presented in the first round of written submissions which closed on 17 April
2009. They mainly respond to the written Statement of Serbia, since other similar
statements do not really add new arguments. These observations should be
considered as additional to or supporting the v1ews expressed in Albania' s
previous written statement submitted on 16 April 2009.
3. The Republic of Albania reserves its position on all issues and matters not dealt
with explicitly in its written statements. Further, Albania reserves the right to
provide further comments or observations should the Court determine to deal with
any such issues.
4. In replying to differing positions the Republic of Albania has chosen to maintain
the structure of its previous statement. Thus, at the beginning are provided some
general initial observations with regard to some factual and legal elements of the
case. In turn, jurisdictional and propriety issues are dealt with briefly.
Subsequently, several legal issues concerned with the question put before the
Court are discussed in detail. A number of conclusions are drawn at the end,
before presenting Albania' s submissions to the Court.
5 Part II BACKGROUND TO THE CASE
5. Albania deems it necessary at this juncture to make a number of general remarks
on some key developments relating to the violent break-up of Yugoslavia, which
involve Kosovo. They are aimed at clarifying certain misleading factual and legal
interpretations present in the written statement of Serbia and a small number of
other countries. At the outset Albania would like to clarify for the purposes of
these proceedings that it does not share a border with Serbia, but with the Republic
of Kosovo, the latter State laying between them.
A) Constitutional Issues
6. The 1968 constitutional amendments started the emergence of the autonomous
province of Kosovo as a constituent part of the SFRY. At the same time these
amendments granted Kosovo the right to establish its own judiciary headed by a
supreme court. Further amendments adopted in 1971 granted Kosovo the right to
have representatives in the federal organs in addition to the Federal Assembly,
namely the Presidency, the Federal Government, and the Federal Constitutional
Court. In 1972 the Assembly of Kosovo created the National Bank of Kosovo and
the Constitutional Court of Kosovo. According to the 1974SFRY Constitution 2/3
of the members of the Assembly of Kosovo had to give their consent for changes
to the SFRY and the Serbian Constitution to be adopted. In the 1974 Constitution
of the SFRY, Kosovo was a constituent part of Yugoslavia, with an equal status to
the republics for all purposes, save for the name.
7. While in theory the March 1989 constitutional amendments of the Serbian
Constitution could be reversed at the SFRY level, Serbia by and large controlled
the federal authorities, including the Federal Constitutional Court of Yugoslavia.
In practice that meant that those changes would drastically affect the self
governing powers and the autonomy enjoyed until that time by Kosovo and its
6 citizens. It should be emphasized that the voting in the Serbian parliament by
Kosovo' s representatives is not important, since their vote would not have been
able to stop the proposed amendments from being adopted. 2 What matters is the
complete rejection of these amendments by the population of Kosovo, expressed
through the hunger strike of the miners in Trepça (Mitrovica) and the widespread
public demonstrations. 3
8. In commenting upon the political manoeuvres preceding the amendments to the
Serb Constitution in 1988-1989 Weller notes:
"To ensure the eventual adoption of reform proposals, the leadership of
Vojvodina was removed first. Measures were taken to ensure that Montenegro,
too, would not oppose Serb action at the Federal level. While Slovenia remained
opposed and was locked in an increasingly bitter struggle with Serbia and the
federal organs increasingly dominated by it, Milosevic also initially managed to
persuade leaders in Croatia and Bosnia and Herzegovina to remain silent, on the
understanding that Serbia would not subsequently seek to take action in relation
to the Serbs inhabiting those two republics. Macedonia, with its very sizeable
ethnie Albanian minority of between 20 and 30 percent, was also persuaded not
to oppose the removal of the Kosovo Albanians from political power." 4
1 See inter alia Written Question E-0432/98 by Leonie van Bladel (UPE) to the Commission (24 February
1998)and the reply by the Commission (European Parliament) Official Journal C 223, 17/07/1998 P. 0172.
Part of the reply reads: "The concept of autonomy under the 1990 constitution of the Republic of Serbia is
very limited, in particular as all economic decisions are centralised. Kosovo Albanians have lost all of the
legislative and executive authority which they had gained under the 1974 federal construction."
2 See written statement ofSerbia, par. 235 and M. Weller, The Crisis in Kosovo 1989-1999, Documents and
Analysis Publishing Ltd, September 1999,p. 47 (hereinafter Weller).
3
See inter alia written statement of Albania, p. 7, par. 8; Weller, p. 47; and The Kosovo Report: Conflict,
International Response, Lessons Learned, The Independent International Commission on Kosovo, Oxford
University Press, 2000, p. 43.
4 WeiIer,supra note 2, p. 47.
7 9. It should be noted beforehand that the discussion by Serbia of a number of cases
decided by the Constitutional Court of the SFRY is not relevant for the current
legal proceedings. What these cases demonstrate is that in dealing with the issue of
impending secession of the Yugoslav Republics, the Yugoslav Constitutional
Court in the Slovenian Constitutional Amendment Case clarified that this was a
matter for the Federal Constitution of Yugoslavia and not the constitution of a
single republic, where the approval of all of Yugoslavia's republics and
autonomous provinces was necessary. 5 Similarly, the decision by the Yugoslav
Constitutional Court in the case of Kosovo upheld the process which was to be
followed in such a case. A sine qua non legal requirement for that process was
that any changes to the SFRY Constitution necessitated the approval of all
republics and autonomous provinces. These cases, if anything, demonstrate the
wide discrepancy between the constitutional legal framework existing at that time
and the changing political realities and demands within the SFRY.
10.Furthermore, it is telling for the functioning of federal institutions at the time and
their legitimacy that the decision of Yugoslav Federal Constitutional Court of 19
February 1991 on Kosovo's declaration of itself as a republic within the SFRY,
was rendered by a reduced court composed of nine out of the total number of 14
members. That is by a court where more than one third of the judges did not
participate in the legal proceedings. Taking note of these developments, in its
Opinion No. 1 issued on 29 November 1991 the Badinter Commission concluded
that the SFRY had ceased to be a State since federal institutions, including the
Federal Constitutional Court, had ceased 'to meet the criteria of participation and
7
representativeness inherent in a federation'.
5 See inter alia P. Radan, 'Secession: Can it be a Legal Act?', in Identity, Self-Determination and
Secession, 1.Primoratz and A. Pavkovié (eds.), Ashgate, 2006, pp. 158-160.
6Federal Constitutional Court ofYugoslavia, Decision of 19 February 1991, Official Gazette of the SFRY,
No. 37/1991.
7 See inter alia P. Radan, The Break-Up of Yugoslavia and International Law, Routledge Publishers:
London and New York, 2002, p. 205; T.D. Musgrave, Self Determination and National Minorities,
Clarendon Press: Oxfiord, 1997, p. 201. The relevant paragraph from Opinion No. 2 (b) reads: "The
8 11. The cases discussed in the Serbian written statement bear no semblance, nor do
they provide any useful guidance for deciding in the present case. Kosovo cannot
be compared, as Serbia tries to, with the situation of the Serb population in Bosnia
Herzegovina or Croatia. Badinter Commission Opinion No. 2 dealt with the issue
of the right to self-determination of the Serb population of Bosnia and
Herzegovina and that of Croatia. This Opinion is not applicable to Kosovo, since
Kosovo was a constituent part of the former Yugoslavia. Further, the situation is
not at all comparable with that in Eastern Slavonia, a region which was not a
constituent part of Yugoslavia (SFRY) like the Autonomous Province of Kosovo,
but merely an administrative unit of Croatia. Furthermore, the parties there,
namely the Republic of Croatia and the local Croatian Serb authorities in Eastern
Slavonia, had already reached an agreement. The SC established an interim
administration to govern the region during the transitional period of 12 months,
and authorized an international force to maintain peace and security during that
period. Thus, the UN assisted in the implementation of a prior agreement between
the parties concerned. 8 Kosovo was not a party to the Dayton agreement, nor was
it discussed there, so any references contained there regarding the territorial
integrity of the FRY cannot be seen as binding on Kosovo.
B) Armed Conflict in Yugoslavia and Kosovo
12.It has to be kept in mind that between 1992 and 1995 Serbia was waging war
against Croatia and Bosnia and Herzegovina, in spite of a number of Security
composition and workings of the essential organs of the Federation, be they the Federal Presidency, the
Federal Council, the Council of the Republics and the Provinces, the Federal Executive Council, the
Constitutional Court or the Federal Army, no longer meet the criteria of participation and representatives
inherent in a federal state" (emphasis added).
8 For more details on the mission and duration of the United Nations Transitional Authority in Eastern
Slavonia (UNTAES) http://www.un.org/Deptsldpkoldpko/co_mission/untaes.h(last accessed on 14 July
2009).
9 Council resolutions calling for an end to the hostilities. As the North Atlantic
Council Ministerial meeting in December 1992 observed:
"Primary responsibility for the conflict in Bosnia- Herzegovina lies with the
present leadership of Serbia and of the Bosnian Serbs. They have sought
territorial gains by force and engaged in systematic gross violations of human
rights and international humanitarian law, including the barbarous practice of
"ethnie cleansing" ."
A similar strategy would be employed by the Serbian authorities in Kosovo only a
few years later.
13.Expressing concem about a potential escalation of the conflict and its spillover in
Kosovo that Ministerial meeting statement noted:
"We are deeply concerned about possible spillover of the conflict, and about the
situation in Kosovo. We call urgently on ail parties to act with restraint and
moderation. Serious negotiations on the restoration of autonomy to Kosovo
within Serbia and the guarantee of full human rights should begin immediately
under the ICFY. We are in favour of a UN preventive presence in Kosovo. An
explosion of violence in Kosovo could, by spreading the conflict, constitute a
serious threat to international peace and security and would require an
appropriate response by the international community." 10
14. Since a lot of its resources were drawn into conflicts in Bosnia-Herzegovina and
Croatia, the peaceful resistance by Kosovar Albanians fitted neatly Serbia's
interests at the time. That temporary 'tolerance' by the Serb authorities faded
quickly when in 1998-1999 the Serbian army, police and paramilitary forces
engaged in a wholesale campaign of ethnie cleansing, pillaging and destruction of
9 Statement on Former Yugoslavia, Issued by the North Atlantic Council in Ministerial Meeting at NATO
Headquarters, Brussels on 17th December 1992, available at: http://www.nato.int/docu/comm/49-
95/c921217b.htm (last accessed on 14July 2009).
10
Ibidem.
10 civilian property and cultural and religious objects. It should be noted that a
number of Serbian political and military leaders of the highest rank have been
convicted for these crimes by the International Criminal Tribunal for the former
Yugoslavia.
15. Contrary to what is contended by Serbia, 11 the period from October 1998 to
January 1999 was characterized by a military build-up, against the
recommendations of the Security Council, and the Contact Group for a withdrawal
of Serb military and special police forces from Kosovo. 12The Kosovo Liberation
Army (KLA) was a liberation movement stemming from the people of Kosovo,
strongly opposed to the violent oppression exercised upon them by the Milosevic
regime. While a small number of low-ranking or rogue elements of the KLA have
committed violations of the laws of armed conflict, the highest ranking political
and military leaders of Serbia of that time have been found guilty of war crimes
and crimes against humanity committed against Kosovar Albanian civilians in
furtherance of clear State policy to ethnically cleanse Kosovo. 13
C) Demographic Issues
11See written statement ofSerbia, par. 333.
12
See inter alia the transcript of testimony given by General Wesley Clark in the Milosevic trial on 15
December 2003, p. 30467: 13-20 noting that by 20thor so of December [1998] additional Serb military
forces were being deployed and used against the population contrary to the October 1998 Holbrooke
agreement, p. 30468: 18-25 noting inter alia 'We saw increased numbers of forces moved in, we saw more
tactical activities', available at: http://www.icty.org/x/cases/slobodan_ milosevic/trans/en/03tm
(last accessed on 14 July 2009); The Kosovo Report: Conjlict, International Response, Lessons Learned,
The lndependent International Commission on Kosovo, Oxford University Press, 2000, p. 80; see also
Weller, supra note 2, pp. 272-286.
13 ICTY, Prosecutor v. Milan Milutinovié, Nikola Sainovié, Dragoljub Ojdanié,Nebrojsa Pavkovié,
Vladimir Lazarevié, Sreten Lukié(hereinafter Prosecutor v. Milutinovié et al.), Case No. IT-05-87-T,
Judgment of 26 February 2009, Volumes 1-IV, available on the ICTY website:
http://www.icty.org/case/milutinovic/4#tjug (last accessed on 14 July 2009).
11 16. Slow econom1c growth in Kosovo compared with other parts of Yugoslavia,
including Serbia, and better opportunities elsewhere were the main factors driving
a number of Serbs out of Kosovo throughout the 70s, 80s, and 90s. The per capita
income [in Kosovo] had declined from 48 per cent of the Yugoslav average in
1954 to 33 percent by 1975, and 27 percent in 1980. 14 While the political crisis
went hand in hand with the economic difficulties facing all inhabitants of Kosovo,
these hit ethnie Albanians the hardest. Thus, the numbers of Kosovar Albanians
leaving Kosovo throughout the 70s, 80s, and 90s is estimated at around 500 000
persons, with about 300 000 ofthem leaving in the period from 1991 to 1995 when
the level of economic hardship and human rights abuses increased exponentially.
17.It is submitted that the number of over 200 000 Serbs fleeing Kosovo after June
1999 is considerably inflated. 15 According to the Serb census of 1991 the total
number of Serbs living in Kosovo at that time was about 194 190. 16 It should be
noted that the Serb population at that time was estimated at about 9% and at
present at about 6-7%. 17That means that the number of Serbs leaving Kosovo after
June 1999 most probably ranges from 30 to about 50 thousand persons at the most.
While still considerable, the number is far below what the Serbian authorities
contend. It should be mentioned that a lot of efforts have been made by the
Kosovar authorities in cooperation with UNMIK and other international
organisations to ensure the return to Kosovo of this part of the population. A
number of them have already returned.
18.Besiclespassing a number of decrees aimed at changing the ethnie composition of
Kosovo, part of the efforts aimed at the Serbianisation of Kosovo was the
14See A.J. Bellamy, Human Wrongs in Kosovo: 1974-99, International Journal of Human Rights, Special
Issue: The Kosovo Tragedy: The Human Rights Dimensions, 2000, p. 111, quoting D. Rusinow,
Yugoslavia: A Fractured Federalism, Washington DC: Wilson Centre Press, 1988,p. 70.
15See written statement ofSerbia, pars. 357 and 365-387.
16See written statement of Serbia, par. 122.
17See written statement of Serbia, pars. 110 and 122 and the CIA World Factbook on Kosovo, available at:
https://www.cia.gov/library/publications/the-world-factbook/geos/kv(last accessed on 14July 2009).
12 resettlement of Serbs in Kosovo and depriving the Kosovar Albanians of their
demographic advantage. 18 Thus, Serbia kept transferring to Kosovo Serbian
refugees fleeing from other parts of Yugoslavia where war was ongoing. 19 It is
highly likely that with the withdrawal of the Serbian forces in June 1999 large
numbers of these persons departed with them.
D) Parallel Institutions
19. The factual description in the statement of Serbia regarding the so-called parallel
20
institutions in Kosovo in the period 1991-1998 is misleading. An uninformed
reader could get the impression that it was a policy of boycott of the existing
public institutions by the Kosovar Albanians which led to the parallel institutions.
In fact it was the exclusion of Kosovar Albanians from all forms of public life
which left them no other alternative. Cultural, economic and political apartheid
acted as the driving force for the creation of parallel state institutions by Ibrahim
Rugova and his party, the Democratic party of Kosovo (LDK). 21 It was the firing
en masse of Kosovar Albanians from their jobs and the discriminatory State
policies against them which forced them to establish parallel institutions to cater
22
for basic needs in the fields of education and elementary healthcare.
18See A.J. Bellamy, Human Wrongs in Kosovo: 1974-99, International Journal of Human Rights, Special
Issue: The Kosovo Tragedy: The Human Rights Dimensions, 2000, p. 115. Reference is made there to the
'Decree for Colonisation of Kosovo of the Federal Republic of Yugoslavia' adopted by the Serbian
Parliament on 11 January 1995. See also International Crisis Group Report, Kosovo Spring, 20 March
1998, p. 5 and The Kosovo Report: Conflict, International Response, Lessons Learned, The Independent
International Commission on Kosovo, Oxford University Press, 2000, pp. 41-42.
19See written statement ofSerbia, par. 293.
20See written statement of Serbia, p. 103.
21
See A.J. Bellamy, Human Wrongs in Kosovo: 1974-99, International Journal ofHuman Rights, Special
Issue: The Kosovo Tragedy: The Human Rights Dimensions, 2000, p. 122.
22For more details see inter alia International Crisis Group Report, Kosovo Spring, 20 March 1998; The
Kosovo Report: Conflict, International Response, Lessons Learned, The Independent International
Commission on Kosovo, Oxford University Press, 2000, pp. 45-46.
13 20. The establishment of these institutions provided work and some source of income
to a large number of Kosovar Albanians who had been fired from their jobs, while
at the same time providing them education in their own language and enjoyment of
some minimum services. The Serbian authorities kept financing a number of the
healthcare and educational institutions, since the majority of persons employed
there were Serbs. Serbia violated the most fondamental elements of Kosovo' s right
to interna! self-determination when it forced all Albanian pupils to undergo
education in the Serbian language. Justifying that procedure on the adoption of
"uniform curricula for primary and secondary education throughout Serbia in
August 1990", as the Serbian statement does, is no excuse for that flagrant
violation of the rights of the ethnie Albanian population of Kosovo 2 .
21. A number of speculative assertions have been made by Serbia, claiming that
participation in the elections organized by Serbia of Kosovar Albanians would
have saved both Serbia and Kosovo from the policies of the Milosevic regime. 24
At a time when nationalism and nationalist policies were having their heyday in
the Balkans, including Serbia, to claim that Kosovar Albanians could have tipped
the balance in such elections is speculative. Moreover, no mainstream Serbian
political party has then, nor does now take into account or even less so
accommodate the legitimate interests and choices of Kosovar Albanians.
Unfortunately, their position on Kosovo remains largely unaltered to this date.
E) Human Rights Violations in Kosovo
22. While correctly stating that the human rights' situation in Kosovo was very
25
serious, the written statement of Serbia fails to explain why that was so. Instead,
by saying that the human rights' situation was not much better in the rest of Serbia
at the relevant time Serbia tries to avoid accepting that the violation of human
rights of the Kosovar Albanians was part and parcel of State policy at that time.
23
See written statement of Serbia, par. 267.
24See written statement of Serbia, par. 642.
25See written statement of Serbia, p. 105, par. 270.
14 Comparing the difficult human rights situation of about 1 800 000 Kosovar
Albanians resulting from sanctioned discriminatory State policy with the
repression of a small number of Serb political dissidents opposed to the policies of
Milosevic is a clear effort to gloss over the gross and systematic human rights
abuses perpetrated upon ethnie Albanians in Kosovo. It bears mentioning here that
at least one member of every Kosovar Albanian family was called by the police in
what were termed 'informative talks', had spent some time in jail, or was waiting
for a trial.26 Such 'talks' were simply instances during which individuals were
subjected to psychological intimidation and in many cases to acts of torture at the
hands of the Serbian police.
23. The human rights abuses perpetrated on ethnie Albanians in Kosovo throughout
the 90's are well-known and well-documented. 27 It is a complete misrepresentation
of the factual situation pertaining at the time to list the formai legal protection
theoretically available under the laws of the country, while gross and systematic
violations of human rights of ethnie Albanians took place with virtual impunity.
As the General Assembly, as well as the Security Council note in many
resolutions, the suppression of the ethnie Albanian population in Kosovo was
evident, well-documented and thus it became subject to international
28
condemnation. Unfortunately, even nowadays the Serbian judicial authorities are
reluctant to award reparations for violations of humanitarian law in Kosovo by
26 See The Kosovo Report: Conjlict. International Response, Lessons Learned, The lndependent
International Commission on Kosovo, Oxford University Press, 2000, p. 42.
27See inter alia Human Rights Watch Report, Humanitarian Law Violations in Kosovo, October 1998;
Human Rights Watch Report, Kosovo: Rape as a Weapon of Ethnie Cleansing, March 2000, available at:
http://www.hrw.org/legacy/reports/2000/fry/index.htm#TopOJPage(last accessed on 14July 2009); Human
Rights Watch Report, Under Orders: War Crimes in Kosovo, 200 I, available at:
http://www.hrw.org/legacy/reports/2001 /kosovo/part _two.pdf (last accessed on 14 July 2009); Reports of
the UN Commission on Human Rights, the UN High Commissioner on Human Rights and the Special
Rapporteur for the Former Yugoslavia in Weller, pp. 158-185; The Kosovo Report: Conjlict, International
Response, Lessons Learned, The Independent International Commission on Kosovo, Oxford University
Press, 2000, pp. 364-366.
28
See written statement of Albania, Part II, section B, pp. 7-16.
15 29
Serbian forces of the Ministry of the Interior. Thus, a lawsuit for reparations
brought by the Humanitarian Law Center on behalf of 14 women and children of
the Bogujevci and Duriqi families in Halim Gashi's yard in Podujevo on 28 March
1999 in an action aiming at the expulsion of the Albanian population, was
dismissed by the judge on the basis of the expiry of the statute of limitation.
24. At this point Albania would like to rectify the position expressed in the
Introductory Note to the Dossier prepared by the Secretariat of the United Nations,
namely that March 1998 marks the beginning of the UN's engagement in
Kosovo. 30 The UN has been engaged in following the situation in Kosovo long
before March 1998 through the numerous resolutions adopted by the General
Assembly and the Security Council addressing the very serious human rights
situation and the need for a political solution. 31 The dire humanitarian situation in
Kosovo especially in early 1999 has not been extraneous even to this Court since
in an Ortler of 1999 it stated that it 'is deeply concerned with the human tragedy,
the loss of life, and the enormous suffering in Kosovo which form the background
32
of the present dispute'.
F) Political Solution of the Kosovo Status
25. Even when the Kosovar Albanian leadership engaged with the Serb authorities
through international mediation like the example of the Saint Egidio agreement
29
See Press Release of 21 May 2009 by the Humanitarian Law Centre, Belgrade, Serbia, Compensation
Lawsuit for Victims from Podujevo Dismissed, available at: http://www.hlc
rdc.org/Saopstenja/1712.en.html (last accessed on 14 July 2009).
30UN Dossier, Introductory Note, p. 2.
31See General Assembly Resolutions 47/147 (1992), 48/153 (1993), 49/196 (1994), 49/204 (1994), 50/190
(1995), 50/193 (1995), 51/111 (1996), 51/116 (1996), 52/147 (1997), 52/139 (1997), 53/163 (1998), 53/164
(1998) in H. Krieger, The Kosovo Conjlict and International Law: An Analytical Documentation 1974-
1999: An Analytical Documentation 1974-1999 (Cambridge International Documents Series), Cambridge
University Press, 2001, pp. 15-25, Weller, pp. 125-132.
32ICJ, Case Concerning Legality of Use of Force (Yugoslavia v. Belgium), Request for the Indication of
Interim Measures, ICJ Rep. 1999, p. 131, par. 16. The same concern was expressed by the Court in the
other nine Legality of Use of Force cases.
16 regarding education, such agreements were a smokescreen for the eyes of the
international community and were in fact never implemented by the Serb
33
authorities. The boycott of the elections organized by Serbia in Kosovo from
1991 to 1998 was the reply by Kosovar Albanians to the wholesale takeover and
disregard by the then Serbian administration of the status previously enjoyed by
them under the 1974 Constitution. Kosovar Albanians had their own institutions
and leaders which were viewed by the population as the legitimate representatives
of Kosovo. Further, even if they wanted to participate in the political life of Serbia,
there were simply no political forces which would represent their legitimate
requests, including respect for the right of Kosovo to self-determination.
Unfortunately, mainstream political parties in present day Serbia have not changed
their attitude much towards Kosovo' s status as compared with the time of
Milosevic. 34
26. One of the stepping stones towards the solution of the Kosovo crisis was the
statement by the Chairman of the meeting of the G-8 Foreign Ministers held at the
Petersberg Centre on 6 May 1999. In adopting a number of general principles on
the political solution to the Kosovo crisis the G-8 Foreign Ministers called inter
alia for:
"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
33 See inter alia EUROPEAN PARLIAMENT MINUTES OF THE SITTING OF THURSDAY 12
MARCH 1998 PART TT- Texts adopted by the European Parliament, 5. Situation in Kosovo Official
Journal No. C 104, 1998, Item 4 (1998/C 104/04-6). Part of this document reads: "aware that the
suppression of the cultural and political autonomy of Kosovo by the Serbian authorities in 1989 is at the
root of the crisis in the region and regretting that even the rather weak agreement on education of 1996 has
not been implemented by the Serbian authorities".
34The only notable exception to such a position being Cedomir Jovanovié, leader of the Liberal Democratic
Party, which has won about 5-6% of the votes in the 2007 elections and has 12 seats in the Serbian
parliament.
17 territorial integrity of the Federal Republic of Yugoslavia and the other countries
35
of the region."
27. Reference is made to the FRY-UNMIK Common Document of 5 November 2001
with regard to clarifying the issue of a mutually accepted political settlement for
the status of Kosovo. It is beyond doubt that while a mutually acceptable political
settlement was the desired outcome, such a settlement had to be acceptable first
36
and foremost to the people of Kosovo. As the Special Representative Hans
Haekkerup clarified, the point of the FRY-UNMIK Common Document was "to
get the support of Belgrade for Serb participation in Kosovo institutions." 37 In
answering a question on whether the document meant a reassurance that Kosovo
will not get independence Mr. Haekkerup stated: 'As you know, this document and
1244 are neutral to what the final status is going to be and it does not rule out any
38
possibility.'
G) Kosovo's Status within the Project of Greater Serbia
28. The events which took place in or with regard to Kosovo within the FRY previous
to the 1989 revocation of autonomy and afterwards up to spring 1999 were
anything but random. Noting the developments preceding the dissolution of the
former Yugoslavia the Tadic Trial Chamber stated:
35
Statement by the Chairman on the conclusion of the meeting of the G-8 Foreign Ministers held at the
Petersberg Centre on 6 May 1999.
36Kosovo Contact Group Statement, London, 31 January 2006, par. 7 (emphasis added).
37Press Conference by SR-SG Hans Haekkerup to announce the signing of the UNMIK FRY Common
Document, November 5, 2001, available at: http://www.unmikonline.org/press/2001/trans/tr051 lpm.html
(last accessed on 14July 2009).
38Ibidem.
18 "In the mid to late 1980s, the Republic of Serbia had already begun measures to
deprive Yugoslavia's two autonomous provinces, Vojvodina and Kosovo, of
39
their separate identity and effectively to incorporate them into the Republic."
29. In the Celebici judgment, the Trial Chamber noted:
"By 1988, the Serbian government was seeking to achieve the full integration of
the two autonomous provinces into Serbia. In October of that year, the authorities
governing Vojvodina were removed and in March 1989 a new Constitution was
adopted in Serbia which removed the autonomy of the province ofKosovo." 40
30. Indeed, these efforts were part of the larger project of a Greater Serbia. As noted in
the Tadicjudgment:
"The concept of a Greater Serbia has a long history. It emerged at the forefront of
political consciousness in close to its modern-day form as early as 150 years ago
and gained momentum between the two World Wars. Kept in check during the
years of Marshal Tito's rule, it became very active after his death. Greater Serbia
involved two distinct aspects: first, the incorporation of the two autonomous
provinces of Vojvodina and Kosovo into Serbia, already referred to; and
secondly, the extension of the enlarged Serbia, together with Montenegro, into
those portions of Croatia and Bosnia and Herzegovina containing substantial
Serb populations.
Associated with the first of these aspects was the Serbian opposition to the equal
representation federally of each of the Republics, regardless of population size.
This, together with the existence of the two autonomous provinces, was the
subject of much agitation and received strong support in the second half of the
1980s from the Serbian Academy of Arts and Sciences in its widely distributed
39 ICTY, Prosecutor v. Tadic, Case No. IT-94-1-T, 7 May 1997, par. 69, available at:
http://www.un.org/ictyltadic/trialc2/judgement/index.htm (last accessed on 14July 2009).
40ICTY, Prosecutor v. Delalic et al, Case No. IT-96-21-T, 16November 1998, par. 97, available online at:
http://www.un.org/icty/celebici/trialc2/judgement/index.htm (last accessed on 14July 2009).
19 but not officially published memorandum urging major constitutional change. As
mentioned above, the two provinces were effectively incorporated into Serbia in
1990 but the move to achieve federal representation by population rather than by
Republics, with a resulting increased power for Serbia, was not achieved before
the breakup of the federation."41
31. The last chapter of those efforts was the campaign of ethnie cleansing carried out
by Serbian armed forces in 1998-1999, which lead to the military intervention by
the international community and the establishment of UNMIK under Security
Council Resolution 1244 (1999).
H) Concluding Remarks
32. The Kosovo conflict is a significant component of the dramatic events surrounding
the violent break-up of Yugoslavia. Among others, the project of a Greater Serbia
provided a significant drive for the armed con:flictswhich wreaked havoc in the
territory of Yugoslavia, resulting in extreme misery and untold human suffering. It
is well-documented that the rights of Kosovar Albanians were being violated with
impunity by the Serbian State authorities from early 1989 up until June 1999. The
cultural, economic and political apartheid which Kosovar Albanians were
subjected to was the driving force for the creation of their own parallel state
institutions. It is unfortunate that from the beginning of the Yugoslav crisis up to
1998, however, Kosovo was regarded as secondary to the overall situation in terms
of urgency and status.
33. Until 1998 when the situation precipitated into an armed con:flict,the international
42
community failed to take sufficient preventive action. In the face of a broad
41 ICTY, Prosecutor v. Tadic, Case No. IT-94-1-T, 7 May 1997, pars. 85, 86, 88 available at:
http://www.un.org/ictyltadic/trialc2/judgement/index.htm (last accessed on 14July 2009).
42
On this issue see generally The Kosovo Report: Conjlict, International Response, Lessons Learned, The
Independent International Commission on Kosovo, Oxford University Press, 2000, pp. 55-61. On pp. 55-56
this report notes 'Kosovo was not a priority for the international community before 1998. The province' s
20 campaign of ethnie cleansing, the international community finally intervened in
late March 1999 and by early June 1999 it forced the Serbian armed forces to
withdraw from Kosovo. Kosovo was placed under the interim administration of
UNMIK, which would establish and oversee the development of provisional,
democratic self-governing institutions, until a final solution for the status of
Kosovo was found. A political process under the lead of the United Nations was to
bring about such a solution. That long negotiation process launched in November
2005 and led by the Special Envoy of the Secretary-General, Mr. Ahtisaari,
resulted in the March 2007 Comprehensive Proposai for the Kosovo Status
Settlement, which was endorsed in the Declaration of the Independence adopted
by the democratically elected representatives of the people of Kosovo. More
details on this last issue are provided below in Part IV.
troubles almost appear to have been an inconvenience, adding further complications to negotiations about
the wars in Slovenia, Croatia and Bosnia. Kosovo seems to have been regarded as secondary to these
contlicts in terms of both urgency and status.'
21 Part III JURISDICTION AND PROPRIETY ISSUES
34. As already pointed out by Albania, there are a number of reasons why the Court
does not have jurisdiction in this case, or in the alternative should use its discretion
and not render an advisory opinion. Notably, in its written statement France has
43
also raised a number of objections to the jurisdiction of the Court in this case.
Other countries have also expressed their reserves with regard to the rendering by
the Court of an advisory opinion in this case. 44
A) Issues Concerning the Jurisdiction of the Court
35. The Court should be mindful of the fact that the declaration of independence is an
internai, domestic matter, not regulated by international law. The mere insertion of
the phrase 'accordance with international law' in the question put before the Court
does not elevate the issue to one of international law. As an author has noted:
"Secession is a domestic matter, and therefore a legally neutral act in
international law... Although secession produces consequences in international
law when a new state is formed, the act of secession itself is essentially political
rather than legal in nature."5
The Dol is not prohibited by international law, unless there were a violation of a
peremptory norm. No such violation has been put forward by either the Security
Council or by the General Assembly and therefore the question of its legality is
essentially a matter of national law, which the Court has no jurisdiction to
pronounce upon.
43Written statement of France, pp. 15-35, pars. 1.1-1.42.
44
See written statement of the Czech Republic, pp. 3-5 expressing reserves based on the issue of judicial
propriety; written statement of the United States of America, pp. 41-45; written statement oflreland, pp. 2-
4, par. 8-12.
45T.D. Musgrave, Self Determination and National Minorities, Clarendon Press: Oxfiord, 1997,p. 210.
22 36. The whole discussion in Serbia's written statement simply confirms Albania's
position that the legal issue at hand is of a domestic nature and the Court would be
assuming the role of a domestic constitutional court, which is not this Court's
fonction. Clearly, from this perspective the dispute has little to do with
international law.
37. Another important consideration is Article 12, paragraph 1 of the UN Charter
which, in principle, prevents the General Assembly from asking a question for an
advisory to the Court while the Security Council remains actively seized of that
matter. 46 Albania submits that the General Assembly cannot ask for an advisory
opinion regardless of the limitations provided for under Article 12 and 10 of the
UN Charter. 47Instead, the Court should consider each case separately based on the
broader context of the case while keeping in mind the principle of functional
cooperation in the attainment of the common goals of the Organization. 48
Although the General Assembly has broad powers indeed, and Albania certainly
sympathizes with the idea of greater use being made of the Court, the Court's legal
procedures andjudicial integrity should be safeguarded from possible misuse.
38. The purpose of bringing this question before the Court by Serbia, as the sole
sponsor of the General Assembly Resolution 63/3, appears to be part of a strategy
to influence States in their decision whether to recognize the Republic of Kosovo.
This should be taken into consideration since the Court is the ultimate guardian of
its judicial integrity. As the Court itself noted long ago: "There may thus be an
incompatibility between the desires of an applicant, or, indeed, of both parties to a
case, on the one hand, and on the other hand the duty of the Court to maintain its
46See for more details the written statement of Albania, pp. 28-29, pars. 50-53.
47See written statement of Albania, pp. 27-29, pars. 48-53.
48
See for more details Vera Gowlland-Debbas in A. Zimmerman et al. (eds.), The Statute of the
International Court of Justice: A Commentary (Oxford Commentaries on International Law), Oxford
University Press, 2006, pp. 89-91.
23 judicial character. The Court itself, and not the parties, must be the guardian of the
Court's judicial integrity." 49
B) Issues Concerning Propriety
39. Albania would like to underline that Serbia described itself as the "interested
state".5° Further, the Court decided to invite the Kosovar authorities to make
written contributions in these legal proceedings. lt is obvious that in reality the
dispute is a bilateral one between the predecessor State, namely Serbia, and the
newly independent State of Kosovo. Kosovo has clearly not given its consent to
the jurisdiction of the Court. Therefore, the Court should use its discretion and not
render an advisory opinion in this bilateral dispute since that would amount to
allowing a dispute being submitted to judicial settlement without a State's consent,
in this case Kosovo's. 51
40. The matter is not "of particularly acute concem to the United Nations" as
contended in the Serbian written statement. 52 Indeed, had it been so the General
Assembly would have requested the Court to proceed with a degree of urgency.
That is clearly not the case in the present legal proceedings. Moreover, had the
Security Council deemed it useful for the exercise of its fonctions, it could have
asked for an advisory opinion from the Court. While the Security Council has
asked the Court for an advisory opinion on two occasions, it clearly chose not to
do so this time. Further, the Court is one of the main organs of the UN that can
advise other main organs and specialized agencies. At a time when the
independence of Kosovo has been recognised by all neighbouring States, save for
Serbia, it is rather clear that Kosovo' s declaration of independence is seen as
furthering peace and stability in the whole region of South-Eastern Europe.
49ICJ, Northern Cameroons Case, ICJ Reports 1963, pp. 29-30.
50See written statement of Serbia, p. 41.
51See written statement of Albania, pp. 35-36, pars. 65-67.
52See written statement of Serbia, par. 72.
24 Therefore, the claim by Serbia that Kosovo' s Dol is a cause for concern is without
53
any ground.
41. Serbia' s position is somewhat inconsistent when for purposes of justifying the
jurisdiction of the Court it states that the Dol is a significant challenge to the
authority of the UN and its administration in Kosovo, 54 but when dealing with the
issue of propriety of the exercise of such advisory jurisdiction it asserts that the
Republic of Kosovo is far from exercising independent governmental authority,
since Kosovo remains a territory governed by an international administration
which retains ultimate power in the province. 55Either one or the other is true. The
position of Albania is that the Dol poses no challenge to the presence and the
activity of the UN in Kosovo. lndeed, as the Secretary-General has noted:
"The Kosovo authorities have, however, welcomed the continued presence of the
United Nations in Kosovo. They have committed themselves to implementing in
full the Comprehensive Proposa! for the Kosovo Status Settlement prepared by
my then Special Envoy for the Kosovo Future Status Process, Martti Ahtisaari,
and conveyed to the Security Council on 26 March 2007 (S/20071168/Add. l)." 56
42. At the same time it is true that, since the Dol, the Kosovar authorities exercise the
sovereign prerogatives of a State, while inviting and accepting on their own accord
international support for so long as deemed necessary. With regard to some
contentions by Serbia regarding exercise of State authority it bears mentioning that
KFOR, EULEX, and UNMIK are in Kosovo on the invitation of the Kosovar
authorities and SC Resolution 1244. That invitation was clearly extended to them
in the Dol adopted by the democratically elected representatives of Kosovo on 17
February 2008.
53See written statement of Serbia, par. 74.
54See written statement ofSerbia, pars. 53, 87, and 92.
55See written statement of Serbia, par. 99.
56Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo of 15
July 2008, UN Doc. S/2008/458, par. 4.
25 43. As outlined in the statement of Albania there are additional reasons not to exercise
advisory jurisdiction in this case.57 In particular the advisory opinion cannot help
either the United Nations or member States in their subsequent actions. The
request does not indicate in what way the advisory opinion would guide future
actions by the General Assembly. lt should be kept in mind that it is for the
member States to decide on Kosovo' s recognition. In that regard it is worth
reemphasizing that 60 States have already recognised Kosovo, among them three
permanent members of the Security Council and a great number of member States
of the European Union.
C) Concluding Remarks
44. Albania submits that either the Court does not have jurisdiction for the reasons
listed in its written statements, or that in the alternative it should use its discretion
and not render an advisory opinion in this case.
57For more details see the written statement of Albania, pp. 25-37, pars. 41-70.
26 Part IV ISSUES RELATING TO THE ACCORDANCE WITH
INTERNATIONAL LAW OF THE DECLARATION OF
INDEPENDENCE BY KOSOVO
A) The Issue of lndependence of Kosovo Is Not Before the Court, It Being
Completely Distinct from the Issue of Accordance with International Law of
the Declaration of Independence
45. It is to be noted at first that the caption of part III in Serbia's written statement is
completely misleading. It is stated there that "general international law provides no
ground for the independence of Kosovo". 58 The question before the Court,
however, is not whether international law provides any ground for Kosovo's
independence. The question is rather whether there 1s any rule of public
international law which could have been violated by the declaration of
independence of Kosovo. In its written statement Serbia noted that the present
request is confined to legal issues and concerns the legality of the unilateral
declaration of independence under applicable rules of international law, being 'no
59
more and no less than this'. It has already been shown in Albania' s written
statement both that the declaration of independence is in accordance with
international law and that the people of Kosovo are entitled to independence. This
will be explained further below.
B) The Principle of Territorial Integrity Is Not Applicable in This Case
46. Albania is fully agreed that the principle of territorial integrity is a cardinal
principle of international law. Indeed, it deems it both commendable and important
that, after having waged war either directly or through proxy against other
republics of the former Yugoslavia, Serbia has corne to accept the importance of
58See written statement of Serbia, p. 147.
59See written statement of Serbia, p. 26, par. 19.
27 the principle of territorial integrity. Article 2(4) of the UN Charter prohibits
member States from using or threatening force against the territorial integrity of
any State. This injunction applies only as between States. As pointed out by a
noted author:
"Secession, by contrast, usually occurs within the confines of a single state, and
60
therefore does not fall within the jurisdiction of Article 2(4)."
47. The issue at hand is not concerned with the principle of territorial integrity. The
sixth Guiding Principle for a settlement of the status of Kosovo reads:
"The settlement of Kosovo's status should strengthen regional security and
stability. Thus, it will ensure that Kosovo does not return to the pre-March 1999
situation. Any solution that is unilateral or results from the use of force would be
unacceptable. There will be no changes in the current territory of Kosovo, i.e. no
partition of Kosovo and no union of Kosovo with any country or part of any
country. The territorial integrity and internai stability of regional neighbours will
be fully respected."61
48. There is nothing in this guiding principle for the solution of the final status of
Kosovo which calls for the preservation of the territorial integrity of the FRY vis
à-vis the people of Kosovo. On the contrary, the territorial integrity of Kosovo is
ensured. Further, the principle clearly states that there would be no return to the
pre-March 1999 situation when NATO intervened militarily. The obligation to
respect the territorial integrity of the FRY was directed solely at States member of
the UN. Having clearly demonstrated that the principle of territorial integrity is not
applicable in this case, it is not necessary to deal with the question whether the
60
Thomas. D. Musgrave, Self Determination and National Minorities, Oxford Monographs in International
Law, Clarendon Press: Oxford, 1997,p. 181.
61 Contact Group, Guiding principles of the Contact Group for a settlement of the status of Kosovo,
November 2005, available at: http://www.unosek.org/unoseklen/docrefhtml (last accessed on 14 July
2009).
28 principle of territorial integrity does extend beyond States to bind also non-State
actors.
C) The Principle of Territorial Integrity in No Way Limits the Internai
Constitutional Process of a State
49. The caption of Chapter VI of the Serbian written statement and the following
discussion is misleading and irrelevant for the case at hand. lt is, as already stated,
fully correct that the principle of territorial integrity is one of the most important
principles of public international law. Territorial integrity plays an important role
as far as the exercise of sovereignty by States is concerned. However, the principle
of territorial integrity in no way limits the interna! constitutional process of a State.
50. The principle of territorial integrity does not guarantee the existence of a State or
its territory against developments which have their origin in processes taking place
within a State. As a distinguished author has put it:
"Again, however, the law of uti possidetis merely refutes Krajina's and Nagorno
Karabakh's claim to a legal right to secession: lt does not prohibit an effective act of
62
secession by the people of such a region. lt is neutral about that."
51. The principle of territorial integrity cannot be understood as a guarantee of the
State as against its own people or parts of that people. Therefore, the lengthy
observations relating to the principle of territorial integrity in the statement of
Serbia are without any relevance in the present context. 63 In particular the
discussion of the principle with regard to interna! conflicts does not at all address
the issue which is of relevance to these proceedings. 64 lt is correctly underlined
that many Security Council resolutions have confirmed the principle of territorial
62
Thomas M. Franck, Fairness in the international legal and institutional system, Recueil des Cours, 240
(1993-IIl),p.148.
63See inter alia written statement ofSwitzerland, p. 27, par. 98(c); pars. 46-48 ofthis written statement.
64See written statement of Serbia, pp. 158-170.
29 integrity of a specific State. However, these resolutions should be seen within the
context to which they relate. Each of them have a particular legal background and
they each relate to situations whereby the threat existed that third States, by
intervention, might wish to disintegrate a State and create a puppet State on part of
its territory. This is the background for the Security Council presidential statement
on the situation in Georgia. 65 The same is true for the situation concerning the
Democratic Republic of the Congo 66 and it is also true for the situation in Sudan 67.
52. It is of course correct that the Security Council can act under Chapter VII as soon
as a threat to the peace exists because of interventions by third States with the aim
to destabilise a particular State. 68 But the Security Council, in the present case, did
not see such a threat and did not take action on the basis of Chapter VII concerning
the Dol. This is of crucial importance since the Council was actively seized of the
matter since the adoption of Resolution 1244 (1999).
53. As already explained in the statement of Albania, there is consensus in the
literature on international law that secession is a matter for the interna! political
sphere of a State and is neither regulated nor limited by international law. 69 As
very clearly analysed in the most important French treatise on public international
law, secession is a political fact not regulated by international law. 70 As already
noted, in his seminal work on the creation of States Crawford states that, 'The
65
See written statement ofSerbia, pp. 163-164, pars. 457-458.
66See written statement of Serbia, par. 459 ff.
67See written statement of Serbia, par. 464 ff.
68For more details see inter alia J. Frowein and N. Krisch, 'Chapter Vll. Action with respect to Threats to
the Peace, Breaches of the Peace, and Acts of Aggression' and 'Article 39', in B. Simma et al. (eds.), The
Charter of the United Nations: A Commentary, Oxford University Press, 2002, pp. 701-739.
69
See inter alia written statement of Albania, pp. 38-39, pars. 73-74 and footnotes 101 and 102; A.
Tancredi, "A normative 'dueprocess' in the creation of States through secession", in M.G. Kohen (ed.),
Secession: International Law Perspectives, Cambridge University Press, 2006, p. 172 and footnote 3,
listing a number of sources.
70See P. Daillier, A. Pellet, Droit International Public, 7éd., Paris, LGDJ, 2002, p. 526 f.
30 position is that secession is neither legal nor illegal in international law, but a
legally neutral act the consequences of which are regulated internationally.' Only
where there is third State intervention, it is clear that international law is violated
and international organisations take measures to uphold the territorial integrity of
the State against which such an intervention takes place. This is shown by the
abstention of international organisations in relation to prolonged disputes of
secession, while in a case like Cyprus the United Nations clearly defended the
territorial integrity of the Republic of Cyprus against the intervention by Turkey. It
is quite telling that the statement by Serbia does not even deal with that issue.
54. During the lengthy process of secession concernmg the former Soviet Union
nobody ever argued that the principle of territorial integrity could be a limitation
for the secession of the Baltic States, of Armenia, of Georgia, of Azerbaijan as
well as others. This process of secession from the Soviet Union illustrates that
there is no principle of international law which outlaws in any way secession by a
part of a State. Therefore, it is clearly incorrect to state that the declaration of
independence of Kosovo could in any way be seen as a violation of the principle of
territorial integrity of Serbia.
D) The Treatment of Self-Determination in Chapter VII of the Statement of
Serbia Is Entirely Incorrect
55. The caption of Chapter VII of the Serbian statement is also misleading. The
question is not whether self-determination gives a basis for the declaration of
independence of Kosovo, but rather whether the principle of self-determination
could be seen as a limitation for the declaration of independence or whether this
declaration was in line with the principle of self-determination as recognised in
international law. The construction by Serbia of the right to self-determination
defies both reality and State practice.It is true that the right to self-determination
does not amount to a general rule legitimising secession from an independent
State. However, under exceptional circumstances, the right to self-determination
31 gives rise to secession. 71 It is abundantly clear that these circumstances have been
cumulatively met in the case of Kosovo. 72
56. The general discussion of the principle of self-determination conceming colonial
situations is without relevance in the present context. If it is stated that self
determination does not authorize secession, 73 the rule is correctly stated as
underlined also in the 1970 Declaration on Principles of International Law
Conceming Friendly Relations and Cooperation among States (Friendly Relations
Declaration) where the last paragraph, in principle, rejects the idea that secession
could be authorized by the principle of self-determination. This paragraph reads:
71See inter alia written statement of Albania, pp. 42-43, par. 81; Thomas. D. Musgrave, Self Determination
and National Minorities, Oxford Monographs in International Law, Clarendon Press: Oxford, 1997, pp. 76,
182-183 and 188-199; A. Buchanan, Justice, Legitimacy, and Self-Determination: Moral Foundationsfor
International Law, Oxford University Press, 2007, pp. 357-359; L. Buchheit, Secession: The Legitimacy of
Self-Determination, Yale University Press, 1978, pp. 92-97, Thomas M. Franck, 'Postmodern Tribalism
and the Right to Secede', in Peoples and Minorities, C.M. Bromann et al. (eds.), 1993, pp. 13-14. On the
issue of 'remedial secession' see inter alia C. Tomuschat, 'Secession and Self-Determination', in M.G.
Kohen (ed.), Secession: International Law Perspectives, Cambridge University Press, 2006, pp. 38-42; J.
Dugard and D. Raie, 'The role of recognition in the law and practice' in M.G. Kohen (ed.), Secession:
International Law Perspectives, Cambridge University Press, 2006, p. 176 and footnote 13 listing a vast
number of authors supporting this view.
72J. Dugard and D. Raie, 'The role of recognition in the law and practice' in M.G. Kohen (ed.), Secession:
International Law Perspectives, Cambridge University Press, 2006, p. 109 and footnote 42. As Dugard and
Raie note, within the framework of the qualified secession doctrine there is general agreement on the
constitutive parameters for a right of secession, namely, (a) there must be a people, which, though forming
a numerical minority in relation to the rest of the population of the parent State, forms a majority within a
part of the territory of that State; (b) the State from which the people in question wishes to secede must
have exposed that people to serious grievances (carence de souveraineté), consisting of either i) a serious
violation or denial of the right of interna! self-determination of the people concerned (through, for instance,
a pattern of discrimination), and/or ii) serious and widespread violations of fundamental human rights of
the members ofthat people; (c) there must not be (further) realistic and effective remedies for the peaceful
settlement of the conflict.
73See written statement ofSerbia, p. 203.
32 "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 to race, creed or colour."
However, this is not the end of the discussion. The question is rather whether
international law contains a rule which prohibits secession under the circumstances
of Kosovo. It is submitted that this is not the case.
57. As the 1970 Friendly Relations Declaration in its explanation of the principle of
self-determination of peoples declares, there are several ways in which the
principle can be exercised. The establishment of a sovereign and independent
State, the free association or integration with an independent State or the
emergence into any other political status freely determined by a people constitute
modes of implementing the right of self-determination by that people.
58. The penultimate paragraph of the principle then contains the disclaimer that the
foregoing paragraphs could not be construed as authorizing or encouraging action
against the territorial integrity of a sovereign State. This formula cannot be read as
containing an unconditional prohibition of secession by a people, which make up
part of the population of a State. The paragraph is not a guarantee for the territorial
integrity of any State against movements of secession by a specific constituent
people, which form part of the overall population.
59. Moreover, it is of the utmost importance that the last part of this clause recognizes
the possibility of remedial secession in situations where a government practices
systematic discrimination and is not representative of its entire population. There
is strong support in legal literature that such a right, though applicable under
33 exceptional circumstances, exists. 74 The argument that secess10n under those
circumstances could be seen as contrary to the principle of self-determination is
excluded by this part of the principle concerning remedial secession. By this
construction, the disclaimer paragraph excludes the possibility to be used against
secession in a situation as the one concerning Kosovo.
60. It is incorrect that a reading of the safeguard clause can in any way be used as an
argument against secession in a situation as Kosovo. This is exactly what the
paragraph wanted to avoid by limiting its applicability to situations where States
conduct themselves in compliance with the principle of equal rights and self
determination of peoples and are possessed of a government representing the
whole people without distinction as to race, creed and colour. In a situation such as
the one in Kosovo, where a system of officially sanctioned discrimination and
unequal treatment was put into place and maintained through force and
suppression of fondamental human rights there is no unconditional claim to
maintenance of the status quo, territorial or otherwise, and the safeguard clause
makes this abundantly clear.
E) The People of Kosovo Clearly Constitutes a People and a Self-Determination
Unit
61. It has already been pointed out that the United Nations have correctly recognised
that the people of Kosovo is a people in the sense of the rules of self
determination. But it is submitted that the ICJ need not determine the quality of the
people of Kosovo as a people in the sense of the rule of self-determination. This is
not what the General Assembly has requested. Rather, the General Assembly has
74See inter alia J. Dugard and D. Raie, 'The role of recognition in the law and practice' in M.G. Kohen
(ed.), Secession: International Law Perspectives, Cambridge University Press, 2006, p. 106 and footnote 36
listing a number of sources; F.R. Tes6n,'Ethnicity, Human Rights, and Self-Determination', in D.
Wippman (ed.), International Law and Ethnie Conflict, Cornell University Press, 1998, pp. 86-111. See
also Reference re Secession of Quebec, [1998] 2 S.C.R. 217, par. 138; also in International Legal Materials,
1998, 1340, 1373.
34 requested an advisory opinion on the accordance with international law of the
declaration of independence of 17 February 2008. The principle of self
determination in no way outlaws a declaration of independence under the present
circumstances.
62. Albania submits additionally that the population of Kosovo has been recognised
and referred to as a people in several important instruments. References to this fact
are contained in the Rambouillet Accords. Chapter 8, entitled 'Amendment,
Comprehensive Assessment, and Final Clauses' in its relevant part reads:
"Three years after the entry into force of this Agreement, an international
meeting shall be convened to determine a mechanism for a final 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." 75
63. Clearly the reference to the will of the people was a reference to the will of the
people of Kosovo. Another clear reference to that is the Statement of 31 January
2006 by the Ministers of the Contact Group. That Statement reads:
"Ministers look to Belgrade to bear in mind that the settlement needs, inter alia,
to be acceptable to the people of Kosovo. The disastrous policies of the past lie at
the heart of the current problems. Today, Belgrade's leaders bear important
responsibilities in shaping what happens now and in the future. The Contact
Group, the EU and NATO stand ready to support Serbian democratic forces in
taking this opportunity to move Serbia forward." 76
75 Rambouillet Accords of 23 February 1999, available online at:
http://www.commondreams.org/kosovo/rambouillet.htm (last accessed on 14 July 2009).
76
Kosovo Contact Group Statement, London, 31 January 2006, par. 7 (emphasis added).
35 64. The Constitutional Framework of Kosovo adopted by UNMIK on 15 May 2001
reads:
"Kosovo is an entity under interim international administration which, with its
people, has unique historical, legal, cultural and linguistic attributes."
65. These references clearly indicate that the people of Kosovo has been recognised as
such on several instances, among others by the UN itself, through the SR-SG.
There can be no doubt that the population of Kosovo as a people is a unit entitled
to the right to self-determination.
F) Resolution 1244 (1999) Is No Guarantee for the Territorial Integrity of
Serbia and It Leff Open the Issue of the Final Status of Kosovo and the
Manner of Its Expression
66. It has already been explained that Resolution 1244 (1999) is no guarantee for the
territorial integrity of Serbia as against a declaration of independence by Kosovo.
This resolution was formulated in a manner not to prejudge the final outcome of
the development after the establishment of the international administration of the
territory. It envisaged a political process that would lead to a final status "taking
into account the Rambouillet accords" and thus acknowledging the possibility of
independence for Kosovo if that were the will of the people. This is clearly
confirmed by the use of different expressions such as: "final settlement", "political
78
settlement", and "future status of Kosovo".
67. Since the lengthy procedure of internationally supervised negotiations did not
corne to a mutually acceptable solution, the declaration of independence was the
only way to determine with finality the status of Kosovo. This declaration of
77 Constitutional Framework for Provisional Self-Government, UNMIK/REG/2001/9 - 15 May 2001,
Article 1.1, available at: http://www.unmikonline.org/constframework.htm#(last accessed on 14 July
2009).
78Written statement of Albania, p. 44. par. 85.
36 independence was the exerc1se of the 'pouvoir constituant' of the people of
Kosovo, which is an interna! matter of the newly founded State. A declaration of
independence does not violate any international law rule concerning the
sovereignty and the territorial integrity of the parent State. It may, however, be in
violation of the constitutional law of the parent State. This is, on the other hand,
without any relevance for the question put before the ICJ by the General
Assembly. Where a federated State or other territory declares its independence this
is not a violation of any principle of international law concerning sovereignty and
territorial integrity.
68. The well-known international jurist, George Abi-Saab, has pointed out that, save
for cases when a State is created in violation of a basic principle of contemporary
international law:
"[t]he State is considered a 'primary fact' to be acknowledged by international
law, once that fact has materialised, regardless of the process by which it came
into being. However, if that process results from a clear expression of will of the
people in question, the democratic character of that process may be a positive
factor later on, conferring greater political legitimacy on the new State, and thus
reinforcing its legal existence and facilitating its rapid recognition by other
States."79
G) Under Contemporary International Law Serbia's Consent 1s Not a Legal
Requirement for the Validity of the Act of Declaring lndependence
69. Part V of the written statement of Serbia tries to set the clock of international law
back to the eighteenth century when it argues the necessity of consent of the parent
State to secession. This problem was argued at length after the US had declared
their independence and by the early nineteenth century it was clear that third States
were free to recognise an effectively independent State. The idea that sovereignty
79George Abi-Saab in M.G. Cohen (ed.), Secession: International Law Perspectives, Cambridge University
Press, 2006, p. 473.
37 should be transferred from the former parent State to the newly independent State,
which had been a view held by many authors until about 1800, was then clearly
overruled by State practice and opinio juris.80The clock cannot be set back to the
phase before the development of contemporary international law. As the practice
of 62 States clearly shows, the recognition of Kosovo as an independent State is
seen by a growing number of States as clearly indicated by international law.
70. The Serbian statement tries to dispute the independence of Kosovo. However,
clearly this is legally incorrect. Independence is fully compatible with a certain
form of transitional or interim international legal guardianship established through
an international agreement or by the Security Council of the United Nations.
Prominent examples in this regard are Cambodia, East Timor and Bosnia
Herzegovina. Moreover, international assistance aimed at the establishment and
further consolidation of democratic institutions and the rule of law does not call
into question the independence of a State. Kosovo' s representatives have clearly
solicited and welcomed such assistance, including in the Declaration of
Independence.
71. It is not necessary that the former parent State should give its consent to secession.
On the contrary, secession refers to the situation where a new State is established
81
and recognised without the consent of the 'parent' State. It is true that State
practice shows that in most cases a parent State has at a later stage corne to accept
and recognise the existence of the new State. Absence or refusa! of consent by the
parent State does no preclude statehood. As Crawford notes:
"Where the territory in question is a self-determination unit it might be presumed
that any secessionary government possesses the general support of the people:
8
°Comp. J. A. Frowein, Transfer or recognition of sovereignty - some early problems in connection with
dependent territories, American Journal oflnternational Law, Vol. 65, 1971,p. 568-571.
81S. Wheatley, Democracy, Minorities and International Law, Cambridge University Press, 2005, pp. 85-
86 quoting Crawford, State practice and international law in relation to secession, British Yearbook of
International Law, I998, 85-86.
38 secess1on in such a case, where self-determination is forcibly denied, will be
presumed to be in furtherance of, or at least not inconsistent with, the application
of self-determination to the territory in question."82
72. It is correct that recognition by third States as such does not grant retroactively
legality or purge illegality. However, this is not the issue here. Where intervention
of third States has taken place recognition does not purge illegality. This is shown
by State practice in cases as Northern Cyprus, Abkhazia or South Ossetia. In those
cases the recognition was limited to the intervening State. Practically no other
State recognised these specific purported States as independent States.
73. In such cases it has been argued that there is a collective duty of non-recognition.
That duty is incumbent upon every State when the coming into being of a new
State contravenes peremptory norms of international law. 83 Since its Declaration
of Independence Kosovo has been recognised as a State by 62 members of the
United Nations. That is a clear indication that a considerable number of States see
the Dol of Kosovo as being in accordance with international law. It is also clearly
indicative of the fact that no collective non-recognition is being practised in
relation to Kosovo.
H) The Kosovar Authorities Exert the Sovereign Prerogatives of a State Entity
74. In noting developments subsequent to the Declaration of Independence of Kosovo
the Secretary-General has noted:
82 J. Crawford, The Creation of States in International Law, 2ndedition, Oxford University Press: New
York, 2007, p. 384.
83
See inter alia written statement of Albania, pp. 31, par. 57; J. Dugard, Recognition and the United
Nations, Cambridge: Grotius Publications Limited, 1987, p. 135; Vera Gowlland-Debbas, Collective
responses to illegal acts in international law: United Nations action in the question of Southern Rhodesia,
Nijhoff Publishers: Dordrecht, 1990; J. Dugard and D. Raie, 'The rote of recognition in the law and
practice' in M.G. Kohen (ed.), Secession: International Law Perspectives, Cambridge University Press,
2006, pp. 100-101.
39 "In addition to the adoption of the constitution and connected legislation, on 10
June the Kosovo Assembly adopted a national anthem and on 17 June the
Kosovo Government authorized the establishment of nine "embassies" m
Member States that have recognized the declaration of independence." 84
75. No regulations have been published in the UNMIK Legal Gazette after 14 June
2008, that is, since the Constitution of Kosovo entered into force on 15 June 2008.
From 15 June 2008 on Kosovar institutions fonction on the basis of their
democratic Constitution adopted by the Assembly of Kosovo after a broad
campaign of public consultations. This latter fact has been acknowledged by the
Secretary-General in his reports to the Security Council.
76. Additionally, Albania would like to draw attention to new developments which
have occurred since the closure of the first phase in these legal proceedings. Thus,
there have been new recognitions, and new bilateral and international agreements
have been entered into by the Kosovar Government. Itshould also be noted that on
8 May 2009 the International Monetary Fund offered membership to the Republic
of Kosovo. 85 Kosovo participates in this international institution with a share
which is even bigger than the two neighbouring States, namely Albania and
Montenegro. Further, on 29 June 2009 the Republic of Kosovo became the newest
member of the five World Bank Institutions. 86Each of these events on their own
and in their entirety show that the Kosovar authorities are exercising prerogatives
of a sovereign State and that Kosovo is a separate State entity, entirely
independent from the Republic of Serbia.
84
Report of the Secretary-General on the United Nations lnterim Administration Mission in Kosovo of 15
July 2008, UN Doc. S/2008/458, par. 4.
85 Press Release No. 09/158, /MF Of/ers Membership ta Republic of Kosovo, available at:
http://www.imforglexternal/np/sec/prl2009/pr09158.ht(last accessed on 14 July 2009).
86 See inter alia Press Release No: 2009/448/ECA, available at: http://go.worldbank.org/K2KVNDA7ZO
(last accessed on4 July 2009).
40 77. Kosovo has been recognized by 62 States this far. 87 Fourteen States have
recognised Kosovo' s independence after the case was referred to the Court, while
5 of these States recognised Kosovo after 17 April 17 2009, the deadline for the
submission of the first written submissions by States in the present case.
1) Kosovo's Declaration of Independence 1s In Conformity with International
Law
78. Kosovo's declaration of independence is in full conformity with the purposes and
principles of the UN Charter. In the course of their activities the Kosovar
authorities have shown utmost respect for the organs of the United Nations, despite
Kosovo not being a State member of this organization at this point. Further, the
Kosovar authorities have acted in accordance with international law norms and the
principles of friendly relations among nations. On their own accord they have
accepted a considerable number of international legal obligations, especially in the
field of international human rights law.
79. It should be emphasized that the SR-SG did not act upon either prior to, during or
after the adoption of the Declaration of Independence of Kosovo. Thus, neither did
he declare the Declaration null and void, nor did he move to dissolve the Kosovo
Assembly. It bears mentioning that not only was he entitled to do so under the
Constitutional Framework, but he was explicitly asked by the Serbian government
to do so. It can reasonably be inferred that he deemed that the Dol was not
inconsistent with SC Resolution 1244 (1999) and that it was not issued by a
Provisional Institution of Self-Government as the Kosovo Assembly acting under
powers conferred to it under the Constitutional Framework, but it was issued by
the democratically elected representatives of the people of Kosovo in a special
meeting, as part of the legitimate exercise of their 'pouvoir constituant'.
87 The full list is available online at: http://www.ks-gov.net/MPJ/Njohjet/tabid/93/Defa(lastspx
accessed on 14July 2009).
41 80. Considering the overall context of the non-consensual break-up of the former
88
Yugoslavia (including the dissolution of the FRY itself in 2006), the notorious
record of institutionalised discrimination and suppression of ethnie Albanians in
Kosovo in the period 1989-1999, the temporary administration of the territory by
the United Nations for over 8 years, the deadlocked internationally supervised
final status negotiations and last but not least the will of the people of Kosovo, the
Declaration of Independence, while being a lawful exercise of the right of the
people of Kosovo to self-determination was in fact a means of last resort. As a
distinguished author has noted:
"There may corne a point where international law may be justified in regarding as
done that which ought to have been done, if the reason it has not been done is the
serious default of one party and if the consequence of it not being done is serious
prejudice to another. The principle that a State cannot rely on its own wrongful
conduct to avoid the consequences of its international obligations is capable of nove)
applications, and circumstances can be imagined where the international community
would be entitled to treat a new State as existing on a given territory, notwithstanding
89
the facts."
J) Minority Guarantees and the Treatment of Ethnie Albanians in the Republic
of Serbia
81. Although the Republic of Albania does not consider this point put forward in the
written submission of Serbia as being relevant to the current legal proceedings
before this Court, it nevertheless deems it important to clarify its position on the
issue of minority rights of ethnie Albanians in the Republic of Serbia. Improving
the situation of the Albanian minority in Presevo (Preshevë), Bujanovac
88 For a chronology of the contlict in Yugoslavia see inter alia D. Bethlehem and M. Weller (eds.), The
'Yugoslav' Crisis in International Law: General Issues Part 1,bridge International Documents Series
Volume 5, Cambridge University Press, 1997, pp. xix-lvii; a general chronology is given by Weller, supra
note 2, pp. 15-23.
89 J. Crawford, The Creation of States in International Law, 2dedition, Oxford University Press: New
York, 2007, pp. 447-448.
42 (Bujanovc) and Medvedja (Medvegjë) is part and parcel of the international legal
obligations incumbent upon the government of Serbia. Unfortunately, up to the
present time the rights of the Albanian minority within Serbia are far from being
fully respected and implemented.
82. According to the census held by Serb authorities in 2002 there were 61 647 ethnie
Albanians living in Serbia. A different figure is given however in the 2002 report
of the Humanitarian Law Center, where it is claimed that the total number in these
three municipalities is estimated at over 100 000. 90 The South Serbia
municipalities of Presevo, Bujanovac and Medvedja are inhabited by 90% of the
ethnie Albanians living in Serbia. 91 Serbia has failed to ensure respect for basic
human rights of ethnie Albanians living in these municipalities. Moreover, the
rhetoric adopted by the Serb government has aggravated relations between Serbs
and Albanians.
83. In its 2004 report the Helsinki Committee for Human Rights in Serbia noted:
"Taking into account the nature of Milosevic's reg1me, minorities can be
classified in the context of repression against them. Namely, the then regime has
not treated all minority communities in the same way - some were used as
instruments of its legitimacy (such as Slovaks), while repression against others
(Croats, Albanians or Bosniaks) has been either encouraged or tolerated. War,
violence, ethnically motivated persecution, massive poverty and meager
prospects forced a number of citizens - from majority and minority communities
alike - to leave Serbia. This brain drain particularly affected minority
90Humanitarian Law Center, Albanians in Serbia Presevo, Bujanovac and Medveda, Report of 2002, p.2,
available at: http://www.hlc-rdc.org/uploads/editor/Albanians%20in%20Serbia.(last accessed on 14
July 2009)
91See Report by the Commissioner for Human Rights, Thomas Hammarberg, on his visit to Serbia (13-17
October 2008), CommDH(2009)8, 11 March 2009, p. 31, par. 165.
43 communities, as it deprived them of their "organic intellectuals" whose role in
the safeguard and development of a minority culture is extremely important." 92
84. In highlighting the double standards Serbia uses in the treatment of minorities the
Helsinki Committee for Human Rights in Serbia noted:
"There is yet another institution the members of minority communities perceive
as a major legal instrument of advancernent and protection of their rights. This is
about autonomy, i.e. various forms of autonomy - cultural, persona! and
territorial - or an adequate special status. Relevant proposais have already been
put forth by representatives of some minority communities such as Croat,
Hungarian or Bosniak. However, the state bodies have ignored them, to put it
mildly. Serbian authorities, though on their guard when it cornes to a territorial
autonomy based on ethnicity, have proposed this model as the most appropriate
one for the protection of the Serbian minority in Kosovo. True, the situation in
Kosovo can hardly be compared with the one in Vojvodina. However, one cannot
93
get rid of the impression that this is about double standards."
85. In his March 2009 Report on the human rights situation in Serbia, the Council of
Europe Commissioner for Human Rights, Mr. Thomas Hammarberg, pointed out
that in practice, respect for and protection of minority rights appears to be
94
inadequate. While the Law on the Protection of Rights and Freedoms of National
Minorities provides for the establishment of national councils for minorities, the
Albanian minority was the only minority community who had not formed such a
council at the time of his visit. 95 This report notes that, 'The law regulating the
92Helsinki Committee for Human Rights in Serbia, National Minorities in Serbia: ln Conjliet with a State
Ethnie Identity, Annual Report 2004, pp. 2-3.
93Helsinki Committee for Human Rights in Serbia, National Minorities in Serbia: In Conjliet with a State
Ethnie ldentity, Annual Report 2004, pp. 5-6.
94
See Report by the Commissioner for Human Rights, Thomas Hammarberg, on his visit to Serbia (13-17
October 2008), CommDH(2009)8, 11 March 2009, p. 29, par. 157. For the activities of the Commissioner
see inter alia: http://www.eoe.int/t/eommissioner/default_en.asp (last accessed 14 July 2009).
95Ibid., p. 29, par. 158.
44 election of these councils, their competences and financing has not yet been
96
passed, and is now approximately 6 years overdue'.
86. The 2007 Report by the European Commission against Racism and Intolerance
(ECRI) noted with concern that the Albanian minority in Presevo (Preshevë),
Bujanovac (Bujanovc) and Medvedja (Medvegjë) suffers from discrimination in
areas such as access to education and the civil service, particularly the police and
97
the judiciary. The Serb government has failed to protect the Albanian minority
living in Serbia from violence after the declaration of independence from Kosovo.
87. The Human Rights Watch Report of November 2008 noted that four years after a
wave of anti-minority violence, Serbia's response to violence against minorities in
February 2008 was again inadequate and it was hard to avoid the conclusion that
the authorities still do not take attacks on minorities and their property sufficiently
98
seriously. As this report noted:
"The attacks on embassies and rioting in Belgrade were widely covered by
national and international media. What largely escaped attention, however, were
acts of harassment and intimidation against ethnie Albanians that took place
across Serbia, but particularly in the province of Vojvodina, in the days that
followed. In February and March 2008, the police registered 221 incidents
relating to the protests over Kosovo, including those with no ethnie motivation,
of which 190 took place in Vojvodina. Predominantly affecting Albanian-owned
businesses and homes, many involved criminal damage-the smashing of
windows and attempted arson, the spraying of hate graffiti, intimidating protests
in front of homes and businesses, and in one case an organized boycott of an
Albanian-owned business and the distribution of inflammatory leaflets. Sorne
96
Ibid., p. 29, par. 159.
97European Commission against Racism and Intolerance (ECRI), Report on Serbia CRl(2008)25, 2007, p.
18, par. 43. There were 4 Albanianjudges in total in Serbia, from whom 1 in Bujanovac (Bujanovc) and 3
in Presevo (Preshevë)- see Charton pp. 47-48.
98Human Rights Watch, Hostages of Tension: Intimidation and Harassment of Ethnie Albanians in Serbia
after Kosovo ·sDeclaration of Independence, Report ofNovember 2008, p. 4.
45 incidents took place during or immediately after public protests, and others
occurred over subsequent days, sometimes repeatedly, the vast majority after
dark."
This kind of violence against minorities is not new in Serbia. Ethnie Albanians have been
particularly vulnerable, particularly when developments in Kosovo inflame tension. They
were targeted, for example, in 1999 during the NATO bombing campaign. A wave of
violence which included attacks on minority-owned businesses and on masques took
place between late 2003 and 2005, reaching a peak in March 2004 as nationalist
sentiment reacted to anti-Serbian and anti-Roma riots in Kosovo.' 99
88. Systemic problems with ensuring respect for the rights of the minorities and the
protection of their life and property were also noted in an earlier report by the
Human Rights Watch. 100Amnesty International appealed to the highest officiais of
the Serbian government to take measures to protect the Albanian minority and
99 The Report reads: 'The government must demonstrate a stronger commitment to investigate and
prosecute ethnically motivated crimes, condemn violence, and act to protect minorities and their property
from attack. The authorities must also assist victims obtain the protections and remedies to which the law
entitles them, including for civil claims against perpetrators. Until the authorities cooperate adequately to
prevent, investigate, and, where appropriate, prosecute the attacks on minorities such as those described in
this report, minorities in Serbia will remain hostages of societal tensions, feeling threatened, intimidated
and unwelcome.'
100 Human Rights Watch, Dangerous Indijference, October 2005, available online at:
http://www.hrw.org/en/reports/2005/J0/09/dangerous-indifference (last accessed on 14 July 2009). The
Report notes that 'Analysis of the government's response to anti-minority violence in Serbia since 2003
indicates that the authorities have failed to take the phenomenon seriously. Rather than tackle the problem
head-on, the authorities have sought to minimize it. While some incidents with alleged ethnie motivation
were later established to have taken place for reasons unrelated to ethnicity, authorities have been quick to
deny ethnie motivation even before any meaningful investigation into the incidents was completed. The
failure of the government to take these incidents seriously alienates minority communities and heightens
fears in those communities that the government will not provide protection should there be a future
outbreak of violence.'
46 human rights activists from attacks after the declaration of independence of
Kosovo. 101
K) Concluding Remarks
89. In light of the above it can be concluded that, contrary to what is contended in the
written submissions by Serbia, the Serb government still does not ensure the rights
of the Albanian minority in Serbia. To that aim concrete measures need to be taken
to ensure that the rights of the Albanian minority in Serbia are respected. It is
Albania's firm belief that the respective minorities in Kosovo and Serbia cannot
and should not be used for political gain or quarrel, but should be nurtured and
serve as bridges for building friendly relations among the two nations. While no
National Council has been created for ethnie Albanians according to Article 75 of
the Serbian Constitution of 2006, 102Serbia should enter into a bilateral agreement
with both the Republic of Kosovo and Albania on minority protection for ethnie
Albanians living in Serbia.
101See Press Release by Amnesty International entitled 'Serbia: Stop attacks on human rights activists and
on minorities', available at:http://www.amnestyusa.org/document.php?id=ENGUSA20080220003&lang=e
(last accessed on 14July 2009).
102See written statement of Serbia, par. 217.
47 Part V CONCLUSIONS AND SUBMISSIONS
A) Conclusions
90. In declaring the independence of Kosovo the Kosovar authorities acted in
accordance with the principles guiding the negotiating process towards the final
status. These authorities were acting not as Provisional Institutions of Self
Government, but as a constituent assembly of the democratically elected
representatives of the people of Kosovo expressing the will of the people of
Kosovo, that is exercising their 'pouvoir constituant' to be independent from
Serbia.103
91. Kosovo' s Declaration of Independence should be seen in its context, since the
circumstances of its issuance, the character of the Kosovo problem, shaped by the
disintegration of Yugoslavia and consequent conflicts, ethnie cleansing and the
events of 1999, and the extended period of international administration under
Security Council Resolution 1244 (1999) constitute a clearly exceptional case.
92. Kosovo's independence is a factor of peace and stability in the Balkans. In its
Declaration of Independence Kosovo formally recognised a number of important
international obligations regarding human rights and fondamental freedoms for all
its citizens. Kosovo affirmed that it will abide by the principles of the United
Nations Charter, the Helsinki Final Act, other acts of the OSCE, and the
international legal obligations and principles of international comity that mark the
relations among States.
93. Instead of accepting responsibility for the gross and systematic human rights
violations against Kosovar Albanians, Serbia has tried to minimize them and
portray them as normal, while in fact they amount to serious violations of
103See written statement of Albania, p. 38, par. 71, written statement of the Kingdom ofNorway, pp. 5-6,
pars. 13-15.
48 international human rights and humanitarian law. Moreover, Serbia's recalcitrant
and obstructionist attitude vis-à-vis the Kosovar authorities and institutions still
represents a serious impediment for stability in the Balkans. Moreover, Serbia has
failed to heed calls from the international community to cease its obstruction of
Kosovar Serbs' participation in Kosovo's institutions, despite having signed
agreements to this aim with UNMIK and the Kosovar Provisional Institutions of
Self-Government. 104 Albania would like to draw the Court's attention to these
facts. At a time when Serbia has openly discouraged participation by the Serb
minority in the conduct of public affairs in Kosovo, to complain before this Court
that such participation is at a low level amounts to abusing this legal process.
94. It is telling that the former American Ambassador to the former Yugoslavia, Mr.
Zimmermann, in his book quoted in the Serbian written statement notes that
Serbian abuses against Albanians were never conceded by Serb officials. 105 That
attitude is expressed throughout the written statement prepared by the present
Serbian government too. Glossing over the humanitarian catastrophe and untold
human suffering which befell the Kosovar Albanians at the hand of the Milosevic
regime since 1989 demonstrates that Serbia still views as normal the long period of
systematic abuse of their rights. Albania would like to emphasize that such an
inconsiderate attitude is not conducive to friendly relations among nations.
95. The people of the Republic of Kosovo are determined to build a better future for
generations to corne and to establish good relations with their neighbours,
including Serbia. The Kosovar authorities have expressed their firm commitment
to a society which respects the human rights and fondamental freedoms of all
Kosovo's citizens. Kosovo's independence is, and will remain, a reality. Serbia
needs to decide for itself on how it wishes to corne to terms with that.
104See inter alia Contact Group Ministerial Statement, New York, 20 September 2006, par. 4, available at:
http://www.unosek.org/unosek/en/docrefhtm(last accessed on 14 July 2009); FRY-UNMIK Common
Document of5 November 2001.
105See Serbian written statement, par. 226.
4996. The Declaration of Independence of Kosovo in no way violates international law,
whose overarching aims are the maintenance and the furthering of peace and
stability in the conduct of international relations among States. Rather, it is in
conformity with the principle of self-determination as set out among others in the
authoritative General Assembly Resolution 2625 (XXV) of 24 October 1970. The
Kosovar authorities are exercising the prerogatives and fonctions of a lawfully
constituted government, representative of the Kosovo population in full
conformity with the UN Charter and international law.
B) Submissions
97. Albania is of the view that the statements submitted by Serbia and a few other
States taking a similar position do not in any way change the position supported by
many other States that the declaration of independence of Kosovo was fully in
accordance with international law.
98. As indicated above, the Republic of Albania maintains that the Court does not have
jurisdiction, or in the alternative it should use its discretionary power and decline
to render an advisory opinion in this case. As argued above, the declaration of
independence is not a matter regulated by international law. Moreover, such an
opinion would not assist the General Assembly in exercising its fonctions, and
would not be conducive to furthering friendly relations among States.
99. Should the Court, nevertheless, find it proper and necessary to render an advisory
opinion, Albania respectfully requests the Court to indicate that Kosovo' s
declaration of independence is in full accordance with international law, it being an
expression of the right of self-determination of the people of Kosovo, or in the
alternative that Kosovo' s declaration of independence does not contradict any
applicable rule of international law.
100.Finally, it bears mentioning that trying to undermine the development and
progress of the people of Kosovo by impinging upon their rightful choices, as
50Serbia has been doing thus far, is not conducive to peace and security in the
Balkans. For that reason, Albania respectfully requests the Court to indicate that
Serbia should respect Kosovo' s right to self-determination and conduct itself in
conformity with the generally accepted principles of friendly relations and
cooperation among States for the benefit of the two peoples and in the common
interest of maintaining and consolidating peace and security in the Balkan region.
51
Written Comments of Albania