Note Verbale dated 17 April 2009 from the Embassy of the
Grand Duchy of Luxembourg in the Netherlands
[Translation]
The Embassy of the Grand Duchy of Luxembourg presents its compliments to the Registry
of the International Court of Justice and has the honour to transmit to it herewith, in accordance
with the letter from the Registrar of the ICJ date d 20October2008, the Written Statement of the
Grand Duchy of Luxembourg in connection with th e Request for an Advisory Opinion concerning
the “Accordance with International Law of the Unilateral Declaration of Independence by the
Provisional Institutions of Self-Government of Kosovo”.
The Embassy of the Grand Duchy of Luxembourg avails itself of this opportunity to renew
to the Registry of the International Court of Justice the assurances of its highest consideration.
___________ NTERNATIONAL COURT OFJUSTICE
(REQUEST FORADVISORYO PINIO)
ACCORDANCE WITH INTERNATIONALL AW OF THEUNILATERALDECLARATION
OF NDEPENDENCE BY THEPROVISIONALINSTITUTIONS OF
SELF-GOVERNMENT OF KOSOVO
W RITTENSTATEMENT OF THEGRAND DUCHY OFL UXEMBOURG
30 March 2009
[Translation by the Registry] INTERNATIONAL C OURT OFJUSTICE
(REQUEST FOR ADVISORY OPINION)
ACCORDANCE WITH NTERNATIONAL LAW OF THEUNILATERAL DECLARATION
OFINDEPENDENCE BY THEP ROVISIONALINSTITUTIONS
OF SELF-GOVERNMENT OF K OSOVO
W RITTENSTATEMENT OF THE GRAND D UCHY OFLUXEMBOURG
Contents
I. troduction
II. The Kosovo case is sui generis
III. The limited scope of the question submitted to the Court
IV. The legal arguments
V. (a) No rule of international law prohibits the declaration of independence
VI. (b)Security Council resolution 1244 (1999) of 10June1999 does not prohibit the
declaration of independence by the people of Kosovo
V. onclusion I. Introduction
1. In its resolution 63/3 (A/63/L.2) of 8 Oc tober 2008, the United Nations General Assembly
requested the Court to render an advisory opinion on the following question:
“Is the unilateral declaration of independence by the Provisional Institutions of
Self-Government of Kosovo in accordance with international law?”
2. General Assembly resolution63/3, which was tabled by Serbia alone, was adopted by
77votes in favour to six votes against, with 74abstentions. A significant number of United
Nations Member States did not take part in the vote. Some 60 per cent of United Nations Member
States therefore preferred not to support resolution 63/3.
3. Luxembourg abstained in the vote on resolution63/3. Luxembourg, which maintains its
steadfast support for the International Court of Justi ce, continues to believe that this resolution is
unlikely to foster greater stability in Kosovo in pa rticular and the Western Balkans in general, a
region which is engaged in an active process of developing closer relations with the European
Union.
4. In its Order of 17October2008, the Court held that the United Nations and its Member
States were, in accordance with Article 66, paragraph 2, of its Statute, “likely to be able to furnish
information on the question submitted to the Court for its advisory opinion”. It fixed 17 April 2009
as the time-limit within which they could present writte n statements on the question to the Court.
These observations are presented pursuant to that decision.
II. The Kosovo case is sui generis
5. A combination of several factors peculiar to the Kosovo situation makes this a case which
is patently one of a kind. Consequently, assuming that the Court sees fit to reply to the question
put to it, and given the lack of comparable cases, such a reply can only relate to the situation in
Kosovo and cannot in any event create a legal precedent.
6. The factors which combine to make the case of Kosovo manifestly sui generis are as
follows:
⎯ the background to the conflict of the 1990s, especi ally the late 1990s, in the context of the
violent break-up of Yugoslavia, as evidenced for example by numerous documents of the
1
United Nations and other international organizations ;
⎯ the nature and scope of the events which took place in 1998 and 1999: crimes against
humanity, wholesale repression in Kosovo, mass ethnic cleansing, massacres, looting and the
need for intervention by the international community to put an end to these events;
1Document CSCE/HS/1, 10July1992; General Asse mbly resolutions 47/147 of 18December1992, 48/153 of
20December1993, 49/196 of 23December1994, 50/193 of 22December1995, 51/116 of 12December1996 and
52/147 of 12December1997; Security Council resolutions 1160 (1998) of 31March1998, 1199 (1998) of
23 September 1998 and 1203 (1998) of 24 October 1998, and the reports of the Secretary-Ge neral following the adoption
of these resolutions; OSCE reports “Kosovo/Kosova. As Seen, As Told. An analysis of the human rights findings of the
OSCE Kosovo Verification Mission, October1998 to June1999” and “OSCE Background Paper— Human Rights in
Kosovo, 1999”; Report of the High Commi ssioner for Human Rights on the Situ ation of Human Rights in Kosovo,
Federal Republic of Yugoslavia, 27 September, United Nations doc. E/CN.4/2000/10. - 2 -
⎯ the involvement of the international community , under the auspices of the United Nations, and
the extended period of international admi nistration pursuant to Security Council
resolution 1244 (1999);
⎯ the process of determining its status, under the auspices of the United Nations.
7. The Secretary-General’s Special Envoy fo r the Kosovo status process, MarttiAhtisaari,
wrote the following in his report of March 2007:
“Kosovo is a unique case that demands a unique solution. It does not
create a precedent for other unresolved conflicts. In unanimously adopting
resolution1244(1999), the Security Council responded to Milosevic’s actions in
Kosovo by denying Serbia a role in its governance, placing Kosovo under temporary
United Nations administration and envisaging a political process designed to
determine Kosovo’s future. The combin ation of these factors makes Kosovo’s
circumstances extraordinary.” (Para. 15.)
8. The characterization of the Kosovo case as sui generis does not, moreover, depend on the
attitudes of the States currently supporting or rejec ting Kosovo’s independence. Thus, while there
remain some European Union Member States wh ich have not recognized the independence of
Kosovo, the Ministers for Foreign Affairs of the Member States of the European Union
unanimously acknowledged the Kosovo case as sui generis in the conclusions of the European
Council of 18 February 2008:
“[The Council] underlines its conviction that in view of the conflict of the 1990s
and the extended period of internationa l administration under SCR1244, Kosovo
constitutes a sui generis case which does not call into question these principles and
resolutions.”
III. The limited scope of the question submitted to the Court
9. The phrasing of the question submitted to the Court is the product of lengthy preparatory
work and consultations carried out by the one State which proposed resolution63/3. Any
coincidence or lack of precision in its wording can thus be ruled out. The specific phrasing of the
preamble of resolution63/3 bears out this analysis. It follows from this that the drafters of the
question are seeking an answer to precisely that question alone.
10. In these circumstances, the Court, should it see fit to reply to the question put to it, must
confine itself to that question, which should be narrowly interpreted, and refrain from extending,
interpreting or reformulating it.
11. The question submitted to the Court refers solely to the declaration of independence and
its accordance with international law. When the draft resolution was presented to the General
Assembly, the Serbian Minister for Foreign Affairs stated that:
“The question posed is amply clear a nd refrains from taking political positions
on the Kosovo issue.” (General Assembly, 8 October 2008, A/63/PV.22.)
Serbia itself has moreover ruled out any rephrasing of the question: - 3 -
“We believe that the draft resolution in its present form is entirely
non-controversial. It represents the lowest common denominator of the positions of
the Member States on this question, and he nce there is no need for any changes or
additions.”
12. The question posed therefore does not relate to the present or future status of Kosovo or
to the issue of recognition. Consequently, the reply which the Court may be required to furnish
cannot determine the present or future status of Kosovo or the effect of the recognition of Kosovo’s
independence by third States.
13. The question posed implies that the declaration of independence comes from the
“Provisional Institutions of Self-Government of Kosovo”. However, the text of the declaration of
independence, and the statements made when it w as adopted by the representatives of the Kosovar
people, show that those who adopted and signed the declaration did not do so in their capacity as an
organ of the provisional institutions of self-government of Kosovo, but indeed as representatives of
the Kosovar people, expressing the will of the people of Kosovo.
14. The question posed characterizes the declar ation of independence as “unilateral”. While
any declaration of independence is by nature unila teral to some extent, this reference in the
question is clearly designed to prejudge the Court’s decision. The public statements by numerous
representatives of third States at the time of the de claration of independence and the statements by
numerous representatives of third States at the time of the vote on resolution63/3, as well as the
significant number of swift recognitions of Kosovo’s independence, confirm that this declaration of
independence had the support of the international community.
IV. The legal arguments
15. The Court will have to consider whethe r there exists in international law a rule
prohibiting the declaration of independence. Luxembourg maintains that no such rule exists.
(a) No rule of international law prohibits the declaration of independence
16. Generally speaking, a declaration of indepe ndence is a factual event which can give rise
to the creation of a State only in combination with other factual elements (including a defined
territory, a settled population and an effective governme nt). The Court has been asked to consider
solely the compatibility of the declaration of inde pendence with international law. However, it is
established that international law does not govern declarations of independence. These can
therefore not be contrary to international law.
17. This is confirmed by the break-up of Yugoslavia, given that the declarations of
independence by the former Federal Republics were not disputed under international law by the
international community, despite the lack of prio r authorization by the Socialist Federal Republic
of Yugoslavia. - 4 -
(b) Security Council resolution 1244 (1999) of 10 June 1999 does not prohibit the declaration of
independence by the people of Kosovo
18. Security Council resolution 1244 (1999) of 10June1999 does not prohibit the
declaration of independence by Kosovo and does not require that any such declaration should be
subject to prior approval by the former Yugoslav Republic, Serbia or the Security Council.
19. On the contrary, resolution1244 authori zed the Secretary-General to establish, under
United Nations auspices, an international civil presence. The duties of that presence included the
encouragement and development of democratic institutions of self-government for Kosovo.
Resolution1244 prevented Serbia from exercising any government authority whatsoever over
Kosovo.
P2ar.gr1ph (a) of resolution1244 mentions among the “main responsibilities” of the
international civil presence that of “promoting the establishment, pending a final settlement, of
substantial autonomy and self-government in Kos ovo, taking full account of Annex2 and of the
Rambouillet accords (S/1999/648)”. It is apparent fro m the wording of this provision that it is to
apply only for a transitional period, and that a “final settlement” is expected.
Par1a.r1ph (e) of resolution 1244 refers to “facilitating a political process designed to
determine Kosovo’s future status, taking into account the Rambouillet accords” as one of the “main
responsibilities of the international civil presen ce”. Hence resolution1244 contemplated the
2
possibility of the independence of Kosovo “on the basis of the will of the people” .
22. Resolution1244 therefore points to the need for a “final settlement” of the question of
Kosovo’s status and for a political process that will determine it. Resolution 1244 does not contain
any provision prejudging the outcome of that politi cal process. The independence of Kosovo is
neither explicitly aspired to nor ruled out in it. According to the terms and the spirit of
resolution 1244, such independence therefore remains entirely possible.
23. Following the detailed negotiations carri ed out by the Special Envoy of the United
Nations Secretary-General, which included both the Serbian and Kosovar authorities, the Special
Envoy reaffirmed that the status quo was unten able, that it was pointless to continue the
negotiations and that the only viable option for Kosovo was to become an independent State.
24. After the Secretary-General had expressed his full support for the Special Envoy’s
position, and after the failure of a final effort by the Troika to explore whether any chance of
finding an agreement still remained, Kosovo declared itself independent, thus fully complying with
the process initiated by resolution 1244.
25. At no time did the Special Representativ e of the Secretary-General for Kosovo describe
the declaration of independence as unlawful.
26. The reference in the preamble of reso lution1244 to the sovereignty and territorial
integrity of the “Federal Republic of Yugoslavia”, as set out in the Helsinki Final Act and Annex 2
2
Rambouillet accords, Chap. 8, Art. I, para. 3. - 5 -
of resolution 1244, does not mention the question of a possible declaration of independenc
e by the
representatives of the Kosovar people. Annex 2, moreover, refers only to the period of temporary
administration. The reference in the preamble th erefore has no connection with the question of the
final status of Kosovo.
V. Conclusion
27. For the reasons set out in this Written Statement, the Grand Duchy of Luxembourg asks
the Court, should it see fit to reply to the Requestfor an Advisory Opinion contained in General
Assembly resolution 63/3, to find that the declaration of independence by the Kosovar people dated
17 February 2008 does not breach any rule of international law.
Luxembourg, 30 March 2009
(Signed) Georges F RIDEN ,
Agent of the Government of the
Grand Duchy of Luxembourg.
___________
Written Statement of Luxembourg (translation by the Registry)