United States Department of State
Washington, D.C. 20520
July 17, 2009
Sir,
Pursuant to the Court's Ortler of 17 October 2008, I have the honor to enclose
thirty copies of the Written Comments of the United States of America concerning the
request of the United Nations General Assembly for an advisory opinion on the question
of the Accordance with International Law of the Unilateral Declaration of Independence
by the Provisional Institutions of Self-Government of Kosovo.so enclosed a
diskette containing the text of the Statement.
Accept, sir, the assurances of my highest consideration.
. #M1rP
Harold Hongju Koh __Jv
Legal Adviser
Enclosures:
As stated
Mr. Philippe Couvreur,
Registrar,
International Court of Justice,
Peace Palace,
The Hague. INTERNATIONAL COURT OF JUSTICE
ACCORDANCE WITH INTERNATIONAL LAW OF
THE UNILATERAL DECLARATION OF INDEPENDENCE BY THE
PROVISIONAL INSTITUTIONS OF SELF-GOVERNMENT OF KOSOVO
(REQUEST FOR AN ADVISORY OPINION)
WRITTEN COMMENTS OF
THE UNITED STATES OF AMERICA
JULY2009 TABLE OF CONTENTS
CHAPTERI
INTRODUCTION - 1-
CHAPTERII
RECENT DEVELOPMENTS ........................................................................
......................- 6 -
CHAPTERIII
HOW THE COURT MIGHT ADDRESS THE QUESTION
REFERRED ........................................................................
..................................................- 10-
CHAPTERIV
KOSOVO'S DECLARATION OF INDEPENDENCE IS IN
ACCORDANCE WITH GENERAL INTERNATIONAL
LAW -13 -
Section I. Kosovo's Declaration ofindependence Is In
Accordance With The Legal Principle of Respect for
Territorial Integrity, Which Operates Between States..................................................- 15 -
A. THE LEGAL PRINCIPLE OF TERRITORIAL
INTEGRITY DOES NOT PRECLUDE NON-STATE
ACTORS FROM DECLARING INDEPENDENCE ..................................-.16-..............
B. HISTORICAL EXAMPLES OF "INTERNAL"
CONFLICTS Do NOT ESTABLISH THAT THE LEGAL
PRINCIPLE OF TERRITORIAL INTEGRITY PRECLUDES
NON-ST ATE ACTORS FROM PEACEFULLY
DECLARING INDEPENDENCE ..............................................-.18-.....................
......
Section II. The Court Need Not Decide Whether Kosovo
Has Validly Exercised A Right Of Self-Determination To
Respond To The Question Referred By The General
Assembly ........................................................................
................................................ - 21
CHAPTERV
THE DECLARATION OF INDEPENDENCE IS IN
ACCORDANCE WITH RESOLUTION 1244 -24-
Section I. References To Territorial Integrity in Resolution
1244 And Related Documents Anticipated The Possibility
Of Kosovo' s Declaration Of Independence ................................................................. - 25 - Section II. Resolution 1244Referred To "Autonomy" and
"Self-Government" As ControllingPrinciples OnlyDuring
The Interim Period----------------------------------------------------- 31 ---------------
---------------------------------
Section III. Nothing In Resolution 1244Required That
Kosovo's Future StatusBe Determined Only By
Agreement_____________________________________________________________- 32 -_____
_______________________________________________
A. RESOLUTIO1 244NOWHERR EEFERS To AN
"AGREEMENT R"EGARDINK Gosovo's FUTURE
STATUS_____--_----------___-_-----------------------_-_-___-__--32 -
B. RESOLUTIO1 N244DOES NOTOTHERWISE
REQUIRE ANAGREEMEN _T_____________________________________-_3 __-_____________________________
_________
1.The Declarationof Independence DidNot
Prevent TheInternational Civil Presence
From Carrying Out Its Mandate____________________________-___-___________________________
2. Kosovo DidNot Negotiate in Bad Faith____________________36 -________________
Section IV. ArgumentsRelating To The Constitutional
Framework And Other UNMIK Regulations DoNot Show
Kosovo's Declaration To Be In Conflict With International
Law______________________________________________________________-_3 __-______
_________________________________________________________
A.Kosovo's ASSEMBLD Ym NOTEXCEED ITS
CONSTITUTIONA AULTHORITIYNVIOLATIOO NF
INTERNATIONL AAL ---------------------·--------------------------8-
---------------------·
B.THEDECLARATIO OFINDEPENDENI sENOT
INCONSISTEN W ITHUNMIK C0NTINUINT Go
HAVERESPONSIBILITU INSDERRESOLUTIO1 N244-------·--·-------··-·39 -----------·-·
-
C. THECONSTITUTIONF ALAMEWOR AKNDOTHER
UNMIKREGULT AIONSOPERA TEDAs DOMET SIC,
NOTINTERNATIONA LL,W------···-····--·-··-··----------
-----------------------------------------····-·
Section V. Efforts to Securea Security Council Resolution
in 2007DoNot Prove That Kosovo's Declaration Violated
International Law ---------------------------------·----------------··---2--------------------------
Section VI. The Court ShouldRespect the Decision of the
Responsible UnitedNations OfficiaisNot to Declare the
Declaration ofindependence Unlawful___________________________________-____-_________________________________
_
CHAPTERVI
CONCLUSION________________________________________________________-_4 __-____________
_____________________________________________
11 CHAPTERI
INTRODUCTION
Pursuant to the Ortler of this Court dated 17 October 2008, the United States
submitsthese WrittenCommentsregardingthe Written Statementssubmitted on 17April
2009.
In its Written Statement of 17 April, the United States explained, first, why
Kosovo's peaceful declaration of independencewas necessary, inevitable and stabilizing
and, second, why this Court-should it decide to opine on the question referred by the
General Assembly-should find that declaration fully in accordance with international
law. None of the argumentsput forward in the various Written Statementscast doubt on
that conclusion.
Since its declaration of independence on 17 February 2008, Kosovo has
functioned as an independent state, with steadily growing bilateral and multilateral
support. Most recently, 109 states supported Kosovo's admission as a member in the
World Bank, the International Monetary Fund, or both. The United States Written
Statement recounted how Kosovo's declaration of independence became both necessary
and inevitable:
• Kosovo's independencewas the last step in the decades-long disintegrationof the
former Yugoslavia. Belgrade had acted forcibly and unlawfully to deprive
Kosovo of its autonomy, forcing Kosovo to seek independence from Belgrade in
order to escape a brutal and intolerablerepression. Before finally breaking free of
that repression,the people of Kosovo endured a campaign of ethnie cleansing,the
likes of which had not been seen in Europe since the Second World War, save
perhaps by the people of Bosnia. The campaignultimately uprooted fully 90% of
the majority population, of whom a high proportion were expelled from the
country, leaving the rest to fend for themselves in harsh conditions. For all
practical purposes, these horrifie events destroyed the ability of both the
oppressors andthose oppressedto share a commonpolitical space.
• In June 1999, the Security Council recognized the reality of that fracture by a
foresighted decisionto adopt Resolution 1244,which played three vital functions.
First, the Council addressed the immediate political crisis by halting the armed
conflict in Kosovo and foreclosing resumption of the brutal campaign of ethnie
cleansing. Second, although Resolution 1244formally treated Kosovo as part of
the Federal Republic of Yugoslavia (FRY) for an interim period, the Security
Council created conditions in which the people of Kosovo could exercise self-
1
But not necessarily ofSerbia. See infra, Chapter V(I).
- 1 - government and autonomy, supported by the international community and
relieved of the FRY/Serbian control that had blocked their political development.
In so doing, the Council deliberately and comprehensively precluded Belgrade
from exercising governing authority over Kosovo, and substituted for it a new
internationaladministration. Third, and most important for purposes of this case,
Resolution 1244soughtto promote a long-termsolution to the "Kosovo question"
that would prevent conflicts in that territory from spawning :furtherthreats to
internationalpeace and security.Towardthis end, the SecurityCouncilauthorized
efforts to facilitate an internationally-overseen process designed to determine
Kosovo's future status,in which Belgradewas only one ofmany participants.
• Resolution 1244 worked. Within days of its adoption, the FRY/Serbian security
forces withdrew from Kosovo, the military campaign concluded and international
forces authorized by the SecurityCouncil assumed control over the situation.The
international security force has progressively reduced its numbers from as many
as 50,000 at its height in 1999to 14,000today (andto an anticipated2,500 within
two years). For over ten years, both under UnitedNations supervisionand now as
part of an independent state, Kosovo's political structures matured and have
conducted their daily activities without reference to Belgrade. Under the
transitional United Nations administration, supported by the Organisation for
Security and Co-Operationin Europe,the EuropeanUnion and other international
organizations, a full range of governmental bodies, both political and
administrative, were established, which enabled the people of Kosovo, of all
ethnicities,progressivelyto assumeresponsibilityfor their own governance.
• Finally, consistent with Resolution 1244,the stage was set for a durable solution
to the "Kosovo question," based on Kosovo's assumption of independence and
commitment to a multi-ethnic state arising out of the Comprehensive Proposai
developed by Special Envoy Ahtisaari and endorsed by the Secretary-General.
Although Serbia and Kosovo could not reach agreement on Kosovo's future
status, the process unfolded largely as envisioned by Resolution 1244. The
Special Envoy supervised a thorough and balanced political process, making
every effort to frame a solution that would be acceptable to both sides, and
ultimately concluded that "[n]o amount of additional talks, whatever the format,"
could overcomethe disagreementbetween Serbiaand Kosovo over independence.
The "potential to produce any mutually agreeable outcome on Kosovo's status
[having been] exhausted," the Special Envoy concluded that Kosovo's
independence had become the only viable solution for Kosovo, Serbia, and the
world.
• By February 2008, there was no viable alternativeto an independent Kosovo. As
even Serbia concedes, the ethnie Albanian population of Kosovo as a whole, as
- 2 - well as their leaders, had become irrevocably committed to independence.2 As
the UN Secretary-General put it, "a return of Serbian rule over Kosovo ... is
simply not tenable." 3 Moreover, by 2008, the international administration that
had served Kosovo well after 1999 was no longer sustainable. Kosovo's
Declaration of Independence brought new stability to a troubled region. The
Declaration freed not just Kosovo but also Serbia, which is liberated from an
illusory effort to retain control over Kosovo that had distorted its politics and
stunted its development for years. The transition has been peaceful, without the
widespread ethnie violence or population movements that some had feared.
Kosovo has assumed and is effectively exercising full govemmental functions,
and Kosovo' s mature and responsible actions since independence have both
demonstrated that it is a source of stability in the region and eamed ever-growing
acceptance of its statehood in the international community. These achievements
must be recognized as a signal success for the United Nations, and constitute a
legacy in which the Organization can tak:egreat pride. Both Kosovo and Serbia
are now free to pursue the European future that offers the most certain course to
the durable peace and security both seek.
Implementation of Resolution 1244 has been one of the most complex, prolonged,
intensive and ambitious efforts ever. undertaken by the United Nations. Its success
reflects exceptional vision on the part of the Organization, and exceptional commitment
by member states. The UN Secretariat-including two Secretaries-General, successive
Special Representatives and the Special Envoy, who structured and guided the political
process designed to determine Kosovo's status-demonstrated consistent determination,
resourcefulness and high professionalism in bringing about the achievement of the
Council's core objectives in adopting Resolution 1244.
In crafting its response to the request now before it, this Court is encouraged to
recall this history and recognize the potential its opinion might have either to cernent or
dissolve this important historical accomplishment. Those now challenging the legality of
Kosovo's declaration of independence would have this Court provide them fodder to roll
back the clock nearly a decade, undoing the progress fostered by Resolution 1244 and
seeking to retum the legal situation to where it was in 2005 before the political process
began. 4 In doing so, they provide no plausible suggestions for how accepting their
2See, e.g.Written Statement of the Government of the Republic ofSerbia ("Serbia Statement"), para. 339
(conceding that it was clear that a referendum in Kosovo "could lead to only one result, namely the
secession of Kosovo from the FRY and Serbia").
3
Letter dated 26 March 2007 from the Secretary-General addressed to the President of the Security Council
attaching the report of the Special Envoy of the Secretary-General on Kosovo's Future Status, S/2007/168,
26 March 2007, para. 7 [Dossier No. 203).
4 See, e.g.Serbia Statement, para. 775 (arguing that Security Council resolution 1244 (1999) requires
Kosovo now to return to negotiations with Serbia); Written Statement of the Republic of Cyprus ("Cyprus
Statement"), para. 98 (same); Written Statement of the Russian Federation ("Russian Federation
- 3 - position could better comport with or achieve the objectives ofResolution 1244, or result
in a better resolution of the situation in Kosovo. Nor do they explain why recommenced
talks would take any course different from that of the political process and subsequent
Troika effort from 2005 to 2007.
In the final analysis, this Court can contribute to the stabilizing effect of Kosovo's
emergence to statehood following a success:fulUN process by declining to answer the
question referred or, in accordance with well-established principles, confirm that the
declaration is in accordance with international law. The Court may acknowledge that
declarations of independence present matters of fact that are neither authorized nor
prohibited by international law, without undercutting fundamental principles of territorial
integrity, reducing the universally recognized rights of states, or disrupting the process
5
for making and applying international law. As explained in the US Written Statement
and in Chapter IV below, declarations of independence that are conjoined with other
events or acts that are serious international law violations will in the future (as in the past)
continue to be condemned. Dismissing the attack on Kosovo's declaration of
.independence will not promote such national disintegration. Kosovo's declaration of
independence was not conjoined with any violation of international law, but rather was
preceded by peaceful negotiations and extensive international consultations under the
administration of the United Nations, which resulted in a declaration that enshrined
Kosovo's commitment to, inter alia, "respect the human rights and fundamental
freedoms of all [its] citizens," to maintain "a democratic, secular and multiethnic
republic, guided by the principles of non-discrimination and equal protection under the
law," and to "act consistent with principles of international law and resolutions of the
Security Council of the United Nations, including resolution 1244 (1999)." 6 Because
both the backdrop to and content of Kosovo's declaration of independence fully respected
both international law in general and Resolution 1244 in particular, dismissing this attack
on Kosovo's declaration of independence and Kosovo's peaceful emergence as an
independent state will strengthen, not weaken, international law.
Statement"), paras. 59-64 (same).
5See, e.g., Cyprus Statement, para. 77.
6
Declaration oflndependence, paras. 1,4, 12 [Dossier No. 192].
-4- More than two hundred years ago, the United States of America broke from a
repressive colonial history by declaring independence, providing its reasons out of a
"decent respect to the opinions of mankind." That Declaration of Independence, which
brought forth a new nation, conceived in liberty and dedicated to the proposition that all
persons are created equal, has served as a beacon for freedom-loving people ever since.
By not disturbing the reality of Kosovo' s declaration of independence, backed by the
.unquestioned will of the people of Kosovo, the Court will similarly advance an essential
goal of international law and an essential purpose of Security Council Resolution 1244:
the restoration and maintenance of international peace and security.
- 5 - CHAPTERII
RECENTDEVELOPMENTS
The three-month period since the submission of Written Statements in this
proceeding has seen further international acceptance of Kosovo, advances in conditions
,tll on the ground, and reinforcement of Kosovo's course toward a multi-ethnic European
democracy integrated into regional and global institutions.
As previously mentioned, during voting by member states of the International
Monetary Fund and World Bank Group that took place during the three-month period, a
total of 109 states cast affirmative votes supporting Kosovo's full country membership in
one or both of the Bretton Woods institutions, in contrast to just 12 that cast negative
votes in one or the other ballot. 7 As a recent IMF mission to Pristina observed, Kosovo's
"rapid accession to these institutions is testimony to the authorities' tireless efforts and
8
commitment to improving the stability and welfare of this young state." On 29 June,
Kosovo signed and delivered its instruments of acceptance of the agreements with the
th 9
Fund and the Bank, becoming the 186 member of each institution.
Individual recognitions of Kosovo have continued, most recently by Saudi Arabia,
the Comoros, Bahrain, the Dominican Republic and Jordan. As of mid-July 2009, 62
states had formally recognized Kosovo. 10 There are other indicia of steadily growing
7 In the IMF vote, 96 countries voted to admit Kosovo, while 10 voted against. For the World Bank, 96
countries-including 13that had not voted for Kosovo in the IMF ballot- voted to admit Kosovo, against
7 negative votes. By similar votes, Kosovo also was accepted for membership in the other affiliates of the
World Bank Group-the International Finance Corporation (IFC), the International Development
Association (IDA), and the MultilateralInvestment Guarantee Agency (MIGA).
8 Republic of Kosovo-IMF Staff Visit Concluding Statement, Pristina, 24 June 2009, available at:
http://www.imf.org/external/np/ms/2009/062409.htm.
9
IMF Press Release No. 09/240, 29 June 2009, available at:
http://www.imf.org/external/country/UVK/index.htm; World Bank Press Release No. 2009/448/ECA, 29
June 2009, available at: http://www.worldbank.org/kosovo. Only countries are eligible for IMF
membership. See Articles of Agreement of the International Monetary Fund, Art. 2, 2 U.N.T.S. 39. The
IMF had already determined in the context of Kosovo's application for membership in July 2008 that
Kosovo was a new independent state. IMF Press Release No. 08/179, 15 July 2008, available at:
http://www.imf.org/external/np/sec/pr/2008/pr08l79.htm. World Bank eligibility is contingent on IMF
membership.
10Serbia has mischaracterized the position of countries that have not formally recognized Kosovo to date,
suggestingthat this exhibits a "refusai to recognise." Serbia Statement, Chapter 10-C-II. In a similar vein,
Foreign Minister Vuk Jeremié has stated that recognitions from 60 out of 192UN member states "means
that a vast majority of countries recognises Serbia's territorial integrity."stina will have to start
dialogue with Belgrade," 27 June 2009 (hereafter, "Jeremié Comments of 27 June"), available on the
Govemment of Serbia website: http://www.srbija.gov.rs/vesti/vest.php?id=56994. These views, however,
fail to acknowledge the nature of recognition-the absence of an affirmative expression of recognition does
not mean that a state has decided that an entity does not constitute a state or refuses to treat it as such. This
-6-acceptance of Kosovo as a member of the international community, including by
countries that as a matter of national policy do not issue formai recognition declarations.
In June, New Zealand became the latest country not counted among the formai
11
recognizers to accept standard and diplomatie passports issued by Kosovo. The 57-
nation Organisation of the Islamic Conference adopted a resolution on 25 May noting
"the progress made towards strengthening the democracy in Kosovo, serving peace and
stability in Kosovo and the whole region." 12
On the ground in Kosovo, UNMIK has continued to draw down and reconfigure
its presence to focus on fostering political dialogue and activities in specific areas, while
the European Union's rule-of-law mission (EULEX) has stepped uf: its activities
monitoring, mentoring and advising Kosovo's rule-of-law institutions. 3 The steady
improvement in security conditions overall prompted NATO ministers on 11 June to
endorse plans that would reduce the current 14,000-strong KFOR presence to 10,000 by
14
January 2010 and 2,500 within two years, provided a series of benchmarks is met.
In domestic governance, the one-year anniversary of the entry into force of the
Constitution of Kosovo was marked in Pristina on 15 June. The roster of the
Constitutional Court was completed in June with the appointment of three international
judges, joining six domestic counterparts named in May. The international judges were
appointed by the International Civilian Representative in Pristina, in accordance with the
Constitution of Kosovo and the relevant provisions of the Cornprehensive Proposai,
following close consultation with the Office of the President of the European Court of
15
Hum.an Rights. Municipal elections-the first nationwide poils throughout Kosovo
since independence-have been set for 15November. Kosovo authorities have continued
to encourage dis16aced Kosovo Serbs to retum to their homes, though the pace of retums
rernains slow.
is reflected in the overwhelming votes in the IMF and the World Bank, in which more than fifty states from
every region of the world in addition to those which had formally recognized Kosovo voted to accept the
Republic of Kosovo as a member.
11 See New Zealand Department of Labour, Immigration New Zealand, Internai Administration Circular
No. 90-03, 5 June 2009, available at: http://www.immigration.govt.nz/NR/rdonlyres/17997B01-AA5A-
42B3-B33F-D1A07FDC6C5E/0/1AC0903KosovoPassports.pdf.
12
Organisation of the Islamic Conference, Resolution No. 14/36-POL on the Situation in Kosovo, 23-25
May 2009, available at: http://www.oic-oci.org/36cfin/w/en/res/36CFM-POL-RES-FINAL.pdf.
13
See Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo,
S/2009/300, 10 June 2009, para. 18 and Annex1.
14See "NATO endorses drawdown of Kosovo force," Agence France Presse, 11 June 2009; see also
NATO news summary, available at: http://www.nato.int/cps/en/SID-6AAOOB76-1B5CEEOB/natolive/
news 55445.htm.
15 See ICO News Release 18/2009, 12 June 2009, available at: http://www.ico-
kos.org/d/090612 _CC_intemationaljudges.pdf.
16Security Council, 6144 Meeting, S/PV.6144, 17June 2009, p. 4 (Remarks of the Special Representative
- 7 - Kosovo's continuing progress has been affirmed in recent months by an array of
international actors, sounding the common themes of Kosovo' s contributions toward
regional stability, its European future, the need to maintain and advance the welfare of
the country's Serb and other ethnie minorities, and the irreversibility of its
17
independence. As United States Vice President Biden told Kosovo parliamentarians on
21 May in Pristina, "I believe in your effort to create a modem state, one that can propel
all its citizens toward a common European future. This is the future for all communities
in Kosovo." 18 In the view of the United States, this future for Kosovo is likewise the
future for Serbia and all countries of Southeast Europe. As Vice President Biden said
during that same trip, in remarks alongside Serbian President Boris Tadié in Belgrade, the
United States wishes to "deepen our cooperation with Serbia to help solve the problems
of the region, to help Serbia become a strong, successful democratic member of the Euro
Atlantic community." 19
With respect to the pending advisory proceedings, Serbia has claimed publicly
that an advisory opinion of this Court will force the reopening of negotiations that would
yield some form of "compromise" over Kosovo's status. 20 According to Foreign Minister
Jeremié, "[i]n order for the solution to be acceptable for Serbia the Kosovo Albanians
of the Secretary-General and Head of UNMIK); Report of the Secretary-General on the United Nations
Interim Administration Mission in Kosovo, S/2009/300, 10June 2009, paras. 30-33.
17 See, e.g.,Remarks by Vice President Joe Biden, 21 May 2009 (hereafter, "Vice President Biden
Remarks of 21 May"), available at: http://www .whitehouse.gov/the _press_office/Remarks-By-The-Vice
President-To-The-Assembly-Of-Kosovo/ ("Kosovo's independence was and remains today, in my view and
the view of my govermnent, the only viable option for stability in the region"); Statement issued at the
Eighth meeting of the International Steering Group for Kosovo, 15June 2009, available at: http://www.ico
kos.org/d/0906l5%20Eighth%20ISG%20meeting%20ENG.pdf ("In the past year the people of Kosovo
have made significant progress in building a democratic, multi-ethnic State on the principles of democracy
and human rights in accordance with its European perspective"); Remarks by Martti Ahtisaari on
anniversary of entry into force of the Constitution of Kosovo, 15 June 2009, available at:
http://www.setimes.com/cocoon/setimes/xhtml/en _GB/features/setimes/features/2009/06/17/feature-02
("Kosovo's independence is irreversible and this is evident from the recognitions that continue to arrive
from around the world. ... Acceptance of this reality by ail would go a long way toward ensuring stability
not only for Kosovo, but for the entire Western Balkans region and Europe as well").
18
Vice President Biden Remarks of21 May.
19 Remarks by the Vice President in Joint Statement to the Press, 20 May 2009, available at: http://www.
whitehouse.gov/the _press_office/Remarks-By-The-Vice-President-At-The-Palace-Of-Serbia/.
20
See, e.g.,"Government success in addressing foreign policy priorities," 24 June 2009, available at:
http://www.srbija.gov.rs/vesti/vest.php?id=56860 ("We expect that a solution for the Kosovo issue
acceptable for all sides will be reached after the ICJ gives its opinion.... explained Jeremic") (hereafter
"Jeremié Comments of24 June"); Jeremié Comments of27 June ("Serbian Minister of Foreign Affairs Vuk
Jeremic expressed assurance that the International. Court of Justice (ICJ) in The Hague will corne to a
conclusion that the unilateral declaration of independence by Kosovo is against international law and
stressed that Pristina will then have to start a dialogue with Belgrade if they want to clear out the unclear
situation").
- 8 -must state that their declaration of independence was illegitimate and accept Serbia as
their country.',21 While this position is neither reasonable nor realistic, it confirms that
there is no plausible option for reopening "negotiations" on Kosovo's status.
Nor would it serve the interests of the United Nations or the Court for an advisory
opinion to be used as·a tool to hinder Kosovo's econoinic development, stymie further
recognitions, block Kosovo's membership in international institutions, and possibly
redraw borders in Europe's most conflict-ridden region. 22 A more positive model is
available, however, as both Serbia and Kosovo have indicated a strong commitment to
joining the European Union, offering the prospect of finding a new identity and modus
vivendi, no longer as constituents of a federal Yugoslavia, but of a free and democratic
union of European states.
In sum, the picture of Kosovo that continues to emerge is of a new state steadily
strengthening its governing institutions, contributing to regional stability, and
consolidating its presence on the international scene. With a total of 115countries to date
either having recognized the Republic of Kosovo or having voted to accept it as a
member country of one of the global financial institutions, international acceptance of
Kosovo is widespread and growing. Developments over the past year and a half serve
only to reinforce that Kosovo's declaration of independence of 17February 2008 marked
a reasonable and ultimately irreversible outcome to the wrenching "Kosovo question"
that has afflicted the Balkans and beyond for the preceding two decades. For the reasons
outlined in the United States Written Statement of 17 April 2009, and in the chapters of
this Written Comment that follow, such an outcome is fully in accordance with
international law.
21 Jeremié Comments of24 June.
22
See Jeremié Comments of27 June ("We are sure that the court's verdict will show that international law
was violated in the case of Kosovo. Pristina will then be in a difficult position as no more recognitions will
be possible. After such a verdict, Kosovo will certainly w{sic]not be able to become [a] member of
certain international organisations. Pristina will have to start a dialogue and negotiations with Belgrade to
overcome that situation, said Jeremi9.") See also Branka Trivié, "Serbia Charts Kosovo Strategy Ahead of
ICJ Ruling," 4 May 2009, available at: http://balkaninsight.com/en/main/analysis/18496/ (registration
required) (mentioning comments of Serbian officiais regarding possible partition of Kosovo and the
domestic political considerations associated with the referral to the ICJ).
- 9 - CHAPTERIII
HOW THE COURT MIGHT ADDRESS THE QUESTION REFERRED
In its Written Statement, the United States (1) highlighted the narrowness of the
question that the General Assembly has referred, and (2) questioned whether this would
be an appropriate case for the Court to exercise its discretion to decline to render an
advisoryopinion. 23
As to the narrowness of the question, the Written Statements-including
Serbia's-are in general agreement that the question before the Court relates only to the
legality of the declaration of independence, and the record reflects that the question was
deliberately crafted in this way in order to find the "lowest common denominator" for
gamering sufficient support in the General Assembly to have the question referred.2 4
Thus, the Court is not being asked to resolve issues about whether states could recognize
Kosovo, whether activities undertaken by UNMIK to facilitate a smooth transition
following the declaration have been lawful, or whether Kosovo is today a state. Serbia
intimates that the answer to the question posed25y the General Assembly will
neverthelessbe "of considerable relevance" to states' decisions about recognition. This
is hard to square with the position of the Serbian govemment that it "will not recognize
26
Kosovo, at any cost, even in the event that the decision is in favor of Pristina." But the
key point is that the initial round of Written Statements confirms that a particularly
narrow question has been posed to the Court, and that any opinion rendered by the Court
shouldbe confinedto the question posed.
There remains, however, a genuine issue whether this would be an appropriate
case forthe Court to exercise its discretionto refrain from rendering an opinion.
The basic function of an Advisory Opinion is to "fumish[] to the requesting
27
organs the elements of law necessary for them in their action." The United States
described reasons to question whether the General Assembly in fact required legal
clarification of the question posed in order to perform its functions and, accordingly,
whether the Court would further the purpose of its advisoryjurisdiction by rendering an
23See Written Statement of the United States of America ("U.S. Statement"), pp. 41-49.
24
See ibid.p. 45. As Serbia states in its Written Statement, the question "concems the legality of the UDI
under applicable rules of international law. It is no more and no less than this." Serbia Statement, para. 19.
25Serbia Statement, para. 22.
26
"Jeremic: Whatever ICJ Decides, Serbia Will Not Recognize Kosovo," 22 April 2009, Daily Press
Summary, Ministry for Kosovo and Metohija, Republic of Serbia, available at:
http://www.kim.sr.gov .yu/cms/item/news/en.html?view=story&id= l l6l5§ionld= 11.
27 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory
Opinion,IC.J. Reports2004, p. 136, at p. 156,para. 60.
- 10- 28
opinion in this case. Where, as here, an opinion is sought to meet the desire of
particular member states for legal advice, the Court would be justified in not applying its
traditional presumption that providing a requested opinion is necessary as part of the
Court's "participation in the activities of the Organization." 29 In prior cases, member
states (or the resolutions themselves) often identified a concrete, future activity of the
General Assembly for which the Court's opinion would be useful. In this case, by
contrast, Resolution 63/3 does not indicate how the Court's opinion would relate to any
planned activity of the General Assembly. Nor did any state at the time identify a use to
which the Assembly might put an opinion. In fact, the record reveals that the purpose of
the question seems to have been solely to aid individual states in their capacity as states,
rath~rthan to aid the General Assembly in discharging its functions under the Charter.
·Serbia and its supporters, however, now daim that the Assembly needs such an
opinion to do its own work. But, in fact, the resolution appears to have been adopted on
the flawed assumption that, in the words of the resolution's sole sponsor, there is a "right
of any member State of the United Nations to pose a simple, elementary question" to the
Court. 30
It is perhaps most telling that Resolution 63/3 was not adopted in connection with
a substantive agenda item covering any of the issues for which Serbia's supporters now
speculate that the General Assembly needs the advisory opinion. Rather, it was adopted
under an agenda item created ad hoc for the sole purpose of requesting an advisory
opinion from the Court. 31 In this particular respect, the request appears to differ from
every pri32 occasion on which the General Assembly has requested an advisory
opinion. For example, in the Nuclear Weapons case, the Assembly debated the request
28See generally,U.S. Statement, pp. 41-45.
29
Legat Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory
Opinion,LC.J. Reports 2004, p. 136,at p. 156,para. 44.
30See U.S. Statement, pp. 43-44.
31
Agenda of the 63rd Session of the U.N. General Assembly, N63/251, 19 September 2008.
32See Official Records of the Second Session of the General Assembly, Plenary Meetings of the General
Assembly, Vol. 2 (13 November - 29 November 1947), pp. 1043-80 (Admission of a State to the United
Nations) (discussing substantive matter of the admission of Ireland, Portugal, Transjordan, Finland, Italy
and Austria); Official Records of the Fourth Session of the General Assembly Plenary Meetings (20
September-10 December 1949), pp. 130-50 (lnterpretation of Peace Treaties with Bulgaria, Hungary, and
Romania) (discussing effort to have the disputants "appear before the General Assembly in order to state
their individual cases");bid.pp. 312-29 (Competence of Assembly Regarding Admission to the United
Nations) ("For the past three years the problem had been discussed in all its aspects.");,pp. 523-37
(International Status of South West Africa) (discussing "the question of South West Africa, with which the
General Assembly had already been concemed for four sessions"); Official Records of the General
Assembly, Vol. 1 (19 September - 15 December 1950), Fifth Session, Plenary Meetings, p. 383-88
(Reservations to the Convention on Genocide) (noting that the question had "acquired a certain practical
urgency in view of the special circumstances created by the entry into force of the Convention for the
Prevention and Punishment of the Crime of Genocide" and that "those circumstances made it imperative to
- 11 -for an advisory op1mon under the specific agenda item, "General and Complete
Disarmament." 33 Likewise, in the Construction of a Wall case, the immediate impetus
for the request for an advisory opinion was 34e Secretary-General's report on Israeli
compliance with Resolution ES-10/13. The fact that the request here relates to no item
on the General Assembly' s agenda underscores the degree to which the question was
referred not to secure advice for the General Assembly, but rather to meet the purported
need for legal advice of particular member states.
decide whether states which had made reservations to which objections had been raised were to be counted
among those whose accession was necessary for the entry into force of the convention."); General
Assembly, 42nd Session, 104th Meeting, A/42/PV.104, 2 March 1988 (Headquarters Agreement)
(discussing the dispute between the United Nations and the United States regarding the application and
interpretation of certain provisions of the United Nations Headquarters Agreement). For certain requests
for an advisory opinion, the resolution itself makes plain that the substance of the issue was under
consideration. See, e.g., General Assembly resolution 258, A/RES/258, 3 December 1948 (Reparation for
Injuries Suffered in the Service of the United Nations) (discussing a "series oftragic events" and noting a
desire to "ensur[e] that reparation be made for the injuries suffered"); General Assembly resolution 785,
A/RES/785, 9 December 1953 (Effect of Awards of Compensation) ("Considering the request for a
supplementary appropriation of $179,420 . . ."); General Assembly resolution 904, A/RES/904, 23
November 1954 (Voting Procedure on Questions relating to Reports and Petitions conceming the Territory
of South West Africa) (noting adoption of"special rule Fon the voting procedure to be followed"); General
Assembly resolution 942, A/RES/942, 3 December 1955 (Admissibility of Hearings of Petitioners by the
Committee on South West Africa) (discussing question raised "by the Committee on South West Africa"
with respect to procedures); General Assembly resolution 1731, A/RES/1731, 20 December 1961 (Certain
Expenses) (discussing "matter of fmancing the United Nations operations in the Congo"); General
Assembly resolution 3292, A/RES/3292, 13 December 1974 (Western Sahara) (noting statements by
various delegations and explicitly referring to "the discussion of this question at [the] thirtieth session").
33
See Report of the First Committee, General and Complete Disarmament, A/49/699, 7 December 1994;
General Assembly, 49th Session, 90th Meeting, A/49/PV.90, 15December 1994.
34See General Assembly, Emergency Special Session, 23rd Meeting, A/ES-10/PV.23, 8 December 2003.
- 12 - CHAPTERIV
KOSOVO'S DECLARATION OF INDEPENDENCE IS IN
ACCORDANCE WITH GENERAL INTERNATIONAL LAW
In its Written Statement, the United States explained that international law does
not as a general matter regulate declarations of independence, nor is there anything about
Kosovo' s declaration of independence in particular that would render it not "in
accordance with international law." This is confirmed by state practice relating to the
former Yugoslavia, where the declarations of independence by the republics were not
treated as violations of international law, regardless of whether they may have-as such
declarations often do-violated domestic law. 35 International law only governs situations
involving declarations of independence to the extent that international law would
otherwise regulate the circumstances, such as where the declaration is conjoined with the
establishment of an apartheid regime or foreign-armed intervention. 36 As one noted
commentator has summarized:
It is true that the international community is very cautious about
secessionist attempts, especially when the situation is such that threats to
international peace and security are manifest. Nevertheless, as a matter of
law the international system neither authorises nor condemns such
attempts, but rather stands neutral. Secession as such, therefore, is not
contrary to international law..... This conclusion, however, applies unless
and until certain other circumstances become manifest. If for example,
third parties intervene in the situation, international law becomes directly
involved and particular relevant norms apply. Rules relating to
aggression, intervention, use of force and humanitarian law will become
37
pertinent.
· Sorne of the Written Statements suggest that secessionist efforts generally are
38
illegal under international law because they violate the principle of territorial integrity.
They assert that this principle operates not only as between states (i.e., as a principle
prohibiting states from acts that violate the territorial integrity of other states) but also to
35
36U.S. Statement, pp. 50-55.
Ibid, p. 56; see also Georges Abi-Saab, "The Effectivity Requiretl of an Entity that Declares its
Intlepentlence in Ortler for it to be Consitleretl a State in International Law," inrmination in
International Law: Quebec and Lessons Learnedhereafter, "Quebec and Lessons Learnecf'), p. 72 (Anne
Bayefsky, etl. 2000).
37
Malcolm Shaw, "Re: Ortler in Council P.C. 1996-1497 of 30 September 1996," in Quebec and Lessons
Learned,p. 136(emphasis omittetl).
38 See, e.g., Serbia Statement, paras. 423-28, 524; Cyprus Statement, paras. 82-90; Russian Fetleration
Statement, paras. 76-78; Written Statement of the Kingtlom of Spain ("Spain Statement"), paras. 20-22, 27.
- 13 -actors within a state, so as to prevent actors within states from taking actions to seek or
assert independence. 39 Section I of this chapter explains why, in the view of the United
40
States, this is not correct. Section II addresses various assertions made in the Written
Statements about the right of self-determination, but explains that the Court need not
resolve these questions to conclude that Kosovo's declaration of independence was in
accordance with international law.
39Serbia Statement, paras. 412-524.
40
As a result, Serbia's attempt to articulate three "exceptional cases" in which a new state can legally be
created through secession (perhaps in order to accommodate the indisputable fact that other states have
emerged through secession in the post-colonial period), is founded on an erroneous premise. See Serbia
Statement, para. 943. Because declarations of independence are not, standing alone, prohibited by
international law, the Court need not find an "exception" in order to conclude that Kosovo's declaration of
independence was in accordance with international law.
That said, it is worth noting that the three categories are not obvious. For example, the assertion that
international law permits secession only if it is permissible under domestic law is itself subject to the
problemthat, at least in a case like this, it is quite difficult for the international community to assess what a
country's domestic law permits. Thus, while Serbia now suggests that the SFRY Constitution envisaged
the possibility of secession for the former SFRY republics, but not for Kosovo (see Serbia Statement, paras.
945-48), at the time, the SFRY vehemently argued that the declarations of independence by the former
republics did in fact violate the SFRY Constitution, were illegal under domestic law, and had no
constitutional or legal validity. See Stands and Conclusions of the SFRY Presidency Concerning the
Situation in Yugoslavia, 27 June 1991 (reprinted in Yugoslavia Through Documents: From lts Creation to
lts Dissolution (Snezana Trifunovska, ed. 1994) (hereafter, "Trifunovska"), p. 305) ("these were anti
constitutional and unilateral acts lacking legality and legitimacy on the internal and external plane and ...
as such they could have no constitutional and legal validity."). Among other things, in arguing against the
independence of Croatia and Slovenia, the SFRY pointed to Article 5 of the Constitution, which provided
that that any changes to the SFRY's frontiers or boundaries between republics and provinces must occur
through mutual agreement. Constitution of the Socialist Federal Republic of Yugoslavia, 21 February
1974, Art. 5 (reprinted in Trifunovska, p. 226). The SFRY asserted that "only collective decisions reached
by agreement on the realization of the right of peoples to self-determination is concordant with the concept
of our constitutional-legal system." Assessment and Positions of the SFRY Presidency Concerning the
Proclamations of the Independence of the Republic of Croatia and Slovenia, Belgrade, 11 October 1991,
para. 5 (reprinted in Trifunovska, p. 355). Moreover, despite its current position, Belgrade proceeded to
use significant armed force in an attempt to prevent the secession of the SFRY constituent republics and to
detach parts oftheir territory.
Serbia's suggestion that the SFRY Constitution forbade Kosovo's secession is similarly debatable. For
example, writing about Kosovo's status under the SFRY Constitution last year, the President of one of the
other successor states of the SFRY, Croatia, noted that "the republics and provinces united in Yugoslavia
of their own free will, and this clearly implies that they could not be kept within the state framework
against their will." Stjepan Mesié, "Kosovo -- problem koji ne trpi odgadanje" ("Kosovo -- A Problem that
Tolerates No Delay"), VecerniList, 16February 2008 [U.S. Statement, Annex 1](emphasis added).
- 14 -Section I. Kosovo's Declaration Of Independence Is In Accordance With The Legat
Principle Of Respect for Territorial Integrity, Which Operates Between States
Sorne of the Written Statements argue that the principle of territorial integrity
operates on non-state actors. within a state, and that this principle renders Kosovo' s
41
declaration of independence internationally unlawful. In its Written Statement, the
United States underscored that the principle of territorial integrity of states is axiomatic
42
and applies to all states. However, contrary to Serbia's assertions, territorial integrity is
a·principle of international law that governs conduct between and among states, not the
43
actions of non-state actors within states. As one commentator has explained:
... [I]t would be erroneous to say that secession violates the principle of
the territorial integrity of the State, since this principle applies only in
international relations, i.e. against other States that are required to respect
that integrity and not encroach on the territory of their neighbours; it does
not apply within the State. 44
Similarly, in a report prepared in response to questions related to the possible secession
of Quebec in 1992, five international legal experts concluded:
... [I]nternational law and, in particular, the principle of territorial
integrity does not preclude non-colonial peoples from gaining
. d d 45
m epen ence. ... .
41 See Serbia Statement, paras. 413, 476, 498; see also Russian Federation Statement, paras. 76, 82-88;
Written Statement of the Argentine Republic ("Argentina Statement"), paras. 75-82.
42U.S. Statement, p. 69.
43 th
See 1 Oppenheim 's International Law § 119 (6 ed. 1992) ("The duty of every state itself to abstain, and
to prevent its agents and, in certain cases, nationals, from committing any violation of another state's
independence or territorial integrity or personal authority is correlative to the corresponding right possessed
by other states.") (emphasis added); see also Corfu Channel Case, Judgment o/9 April 1949, I.C.J. Reports
1949, p. 4 at p. 35 ("[b]etween independent States, respect for territorial sovereignty is an essential
foundation of international relations") (emphasis added); Thomas Baty, The Canons of International Law
(1930), pp. 87-88 ("A nation, to be a nation, must be :free from foreign interference."); Montevideo
Convention on the Rights and Duties of States (1933), Art. 11 ("The territory of astate is inviolable and
may not be the object of military occupation nor of other measures of force imposed by another state
directly or indirectly or for any motive whatever even temporarily.") (emphasis added).
44Georges Abi-Saab, "Conclusion," in Secession: International Law Perspectives, p. 474 (Marcelo Kohen,
ed. 2006).
45
Thomas Franck, Rosalyn Higgins, Alain Pellet, Malcolm Shaw & Christian Tomuschat, "The Territorial
Integrity of Quebec in the Event of the Attainment of Sovereignty ," in Quebec and Lessons Learned, pp.
284-85. See also Alain Pellet, "Legal Opinion on Certain Questions of International Law Raised by the
Reference," in Quebec and Lessons Learned, p. 98 ("In the first place, the principle of territorial integrity
does not concern the relations between state and its own population, but rather the relations of states among
themselves. "); Malcolm Shaw, "Re: Ortler in Council P.C. 1996-1497 of 30 September 1996," in Quebec
- 15 - A. THE LEGAL PRINCIPLE OF TERRITORIAL INTEGRITYDOES NOT
PRECLUDENON-STATE ACTORS FROM DECLARING INDEPENDENCE
The documents that Serbia and others cite in their Written Statements serve only
to highlight that the principle of territorial integrity is a long-established principle of
customary international law governing the conduct of states, which has been codified in
numerous treaties and international and regional instruments, and is not in dispute in the
instant matter. For instance, the first instrument that Serbia cites is the Covenant of the
League of Nations. Following the First World War, the principles of territorial integrity
and non-intervention were formalized in Article 10 of the Covenant, which provided that
"Members of the League undertake to respect and preserve as against external aggression
the territorial integrity and existing political independence of all Members of the
League." 46 This is the classic articulation of the international legal principle of territorial
integrity but, as is clear from the text, it applies between states, and it prevents the use of
·force by a state against the territorial integrity of another state.
Serbia next cites the Charter of the United Nations, noting that Article 2(4) of the
Charter provides that "[a]ll Members shall refrain in their international relations from the
threat or use of force against the territorial integrity or political independence of any
47
State." As with the Covenant, the Charter· underscores that the principle of territorial
integrity is one that operates in "international relations," as against the threat or use of
force by another state. The General Assembly' s Declaration on Friendly Relations
similarly proclaims the commitment of member states to respect the territorial integrity of
other states, stating that"[e]very State shall refrain from any action aimed at the partial or
total disr48tion of the national unity and territorial integrity of any other State or
country."
Serbia then cites the General Assembly's Declaration on the Granting of
lndependence to Colonial Countries and Peoples (Resolution 1514), as evidence that the
principle of territorial integrity is not limited to relations between states. 49 Yet that
declaration, which was adopted in the context of decolonization, is directed at preventing
and Lessons Learned, p. 136 ("it must be recognized that international law places no analogous obligation
[of respect for territorial integrity] upon individuals or groups within states. The provisions contained in the
relevant international instruments bind states parties to them and not persons and peoples within states").
46Covenant of the League of Nations, Art. 10, available at: http://avalon.law.yale.edu/20th_century/
leagcov.asp (emphasis added).
47
Charter of the United Nations, Art. 2(4) (emphasis added) [Dossier No. 210]. See Serbia Statement, para.
430; Cyprus Statement, para. 87; Russian Federation Statement, para. 77.
48 General Assembly resolution 2625, A/RES/2625, 24 October 1970 (Declaration on Principles of
International Law Concerning Friendly Relations and Cooperation among States in Accordance with the
Charter of the United Nations) [Dossier No. 226].
49Serbia Statement, para. 431.
- 16 -colonial powers-i.e., states-from maintaining control of or dividing up ter50tories
under their administrationin connectionwith the decolonizationprocess, as opposedto
any duty of non-state actorsto respectthat principle. 51
Serbia's arguments based on regional treaties and arrangements all suffer the
same flaw-they simply confirmthat the well-establishedprinciple of territorial integrity
is one that applies as between states. For example, the Helsinki Final Act of 1975
provides that "[t]he participating States will respect each other 's sovereign equality and
individuality as well as all the rights inherent in and encompassed by its sovereignty,
50
See, e.g., Official Records of the General Assembly, Fifteenth 'Session(Part 1),Plenary Meetings, Vol. 2
(27 October- 20 December 1960), p. 1271 (Indonesian representative) ("When drafting this document my
delegation was one of the sponsors of paragraph 6, and in bringing it into the draft resolution we had in
mind that the continuation of Dutch colonialism in West Irian is a partial disruption of the national unity
and territorial integrity of our country.");id. p. 1284 (Morocco representative) (describing situations of
intervention by colonial powers and noting that "paragraph 6 explains very well what our delegation
understands by territorial integrity. When we discussed this document and agreed to become a sponsor, we
had in mind a long list of examples of the partitioning and disruption of the unity of national territories.");
Yearbook of the UnitedNations (1960), pp. 45, 47; see also Thomas Franck, Rosalyn Higgins, Alain Pellet,
Malcolm Shaw & Christian Tomuschat, "The Territorial Integrity ofQuebec in the Event of the Attainment
of Sovereignty," in Quebec and Lessons Learned, pp. 282-83 ("The concern for the simultaneous
preservation ofthe territorial integrity of'countries'i.e. the colonies themselves, can be explained by the
desire of a majority of the member States of the United Nations. to defeat attempts by certain colonial
powers to carve up, for their own benefit, the territories in their care.").
51
The other General Assembly resolutions cited by Serbia similarly reinforce the obligation of states under
the Charter to respect the territorial integrity of other states; none ofthese resolutions expand or modify this
obligation to apply to non-state actors. See, e.g., General Assembly resolution 55/2, A/RES/55/2, 18
September 2000 (United Nations Millennium Declaration), para. 4 [Dossier No. 229] (reaffirming the
commitment of all states to respect the "territorial integrity and political independence" of other states).
Serbia points to several resolutions of the General Assembly that note that nothing in the particular
document should be construed as authorizing or encouraging action that would impair or dismember the
territorial integrity of a state. See Serbia Statement paras. 430-39 (citing General Assembly resolution
2625, A/RES/2625, 24 October 1970) (Declaration on Principles of International Law Concerning Friendly
Relations and Cooperation among States in Accordance with the Charter of the United Nations) [Dossier
No. 226] ("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 govemment representing the whole
people belonging to the territory without distinction as to race, creed or colour"); General Assembly
resolution 61/295, A/RES/61/295, 13 September 2007 (Declaration on the Rights of Indigenous Peoples)
art. 46 [Dossier No. 231] ("Nothing in this Declaration may be interpreted as implying for any State, ·
people, group or person any right to engage in any activity or to perform any act contrary to the Charter of
the United Nations or 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.")).
In each case, these resolutions do nothing to add or subtract from the international legal landscape
concerning territorial integrity: they neither enunciate a rule of international law governing the conduct of
non-state actors, nor establish a legal rule preventing declarations of independence, but rather merely state
that the resolution in question does not confer rights or obligations in this regard beyond that which
previously existed.
- 17-including in particular the right of every State to juridical equality, to territorial integrity
and to freedom and political independence. " 52 The other such treaties and arrangements
53
cited by Serbia similarly confirm the principle. In short, a plain reading of the language
of the cited documents establishes no rule of international law that would prohibit non
state actors from declaring independence.
B. HISTORICAL EXAMPLES ÜF "INTERNAL" CONFLICTS Do NOT ESTABLISH
THA T THE LEGAL PRINCIPLE OF TERRITORIAL INTEGRITY PRECLUDES
NON-ST ATE ACTORS FROM PEACEFULLY DECLARING lNDEPENDENCE
Sorne of the Written Statements also cite a series of particular situations involving
internai armed conflicts (Bosnia and Herzegovina, Croatia, the Democratic Republic of
the Congo, Georgia, Somalia, and Sudan) to support arguments that the principle of
territorial integrity precludes non-state actors from peacefully declaring independence. 54
To the contrary, however, these cases prove nothing more than that the Security Council
has included language designed to promote the maintenance of the unity of particular
states where it has concluded that doing so will advance international peace and security.
None of the resolutions asserted that a secessionist entity had violated international law
by declaring independence, or announced a generally applicable rule of international law
that would prohibit non-state actors from peacefully declaring independence, or even
52
Helsinki Final Act, l August 1975,Declaration on Principles Guiding Relations Between Participating
States [DossierNo. 219].
53See, e.g.Charter of Paris for a New Europe, 21 November 1990[DossierNo. 219] ("Inaccordancewith
our obligationsunder the Charter of the United Nations andommitmentsunder the Helsinki Final Act, we
[the Heads of State or Government of the States participating in the Conference on Security and
Cooperation in Europe] renew our pledge to refrain from the threat or use of force against the territorial
integrity or political independenceof any State, or from acting in any other manner inconsistent with the
principles or purposes of those documents."); Charter of the Commonwealth of Independent States, 22
January 1993, art. III, available at: http://untreaty.un.org/unts/12000 l_144071/6/8/00004863 .pdf ("the
member states shall build their relations in accordance. with the following correlated and equivalent
principles: ... territorial integrity of states and refrain from any acts aimed at separation of foreign
territory"); Charter of the Organization of American States, 1948, art. 1, available at: http://www.oas.
org/juridico/English/charter.html ("The American States establish by this Charter the international
organizationthat they have developedto achieve an order of peace andjustice, to promote their solidarity,
to strengthen their collaboration, and to defend their sovereignty, their territorial integrity, and their
independénce."); Charter of the Organization of African Unity, 1963, art. III, available at:
http://www.africa-union.org/root/au/Documents/Treaties/text/OAU _Charter_ 1963.pdf ("The Member
States, in pursuit of the purposes stated in Article II solemnly affirm and declare their adherence to the
following principles... Respect for the sovereignty and territorial integrity of each State and for its
inalienable right to independent existence."); Charter of the Organisation of the Islamic Conference,
1972, available at: http://www.oic-oci.org/isl 1/english/Charter-en.pdf ("The Member States undertake
that in order to realize the objectives in Article 1, they shall... act in accordance with the following
principles ... All Member States undertake to respect national sovereignty, independence and territorial
integrityof other Member States").
54See Serbia Statement,paras. 440-76; see alsoArgentina Statement,para. 80.
- 18 -established that action by the Security Council to maintain the unity of a state wiH
necessarily be the most appropriate way to promote international peace and security in
other circumstances. 55
Serbia's reliance on Security Council resolutions adopted during the conflicts in
56
Bosnia and Herzegovina and Croatia in the 1990s is particularly telling. The situations
in Bosnia and Croatia were not simply internal conflicts. The Security Council adopted
these resolutions to meet the threat of concerted military efforts of the FRY itself to
detach, dominate, and perhaps annex parts of Bosnian and Croatian territory, in
campaigns accompanied by widespread ethnie cleansing and other grave human rights
violations. 57 Time and again the Security Council underscored that these were far more
58
than-as Serbia's Written Statement now attempts to characterize them -"civil·
war/secessionist situations." Indeed, the historical record is quite clear that it was not
internal conflicts, but rather the external interference of the FRY in these two countries,
that lay at the heart of the threat to international peace and security that prompted the
59
Security Council to act.
55 See Michael C. Wood, "The lnterpretation of Security Council Resolutions," Max Planck Yearbook of
United Nations Law, Vol. 2 (1998), pp. 77-78 (noting that the Security Council "may impose obligations
(which under Article 103 of the Charter prevail over any other treaty obligations), it may reaffirm existing
rules, it may apply existing rules, it may depart from or override existing rules in particular cases, but it
does not lay down new ru/es of general application.") (phasis added). ·
56
See Serbia Statement, paras. 442-49.
57 See, e.g., Case Concerning the Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment of 26 February 2007;
J.C.J. Reports 2007, para. 386 (''there is much evidence of direct or indirect participation by the official
army of the FRY, along with the Bosnian Serb armed forces, in military operations in Bosnia and
Herzegovina in the years prior to the events at Srebrenica. That participation was repeatedly condemned by
the political organs of the United Nations, which demanded that the FRY put an end toit (see, for example,
Security Council resolutions 752 (1992), 757 (1992), 762 (1992), 819 (1993), 838 (1993))"); ibid., para.
241 ("The Court finds it established that the [FRY] was thus making its considerable military and financial
support available to the Republika Srpska."); Marc Weller, "The International Response to the Dissolution
of the Socialist Federal Republic ofYugoslavia," Am. J. lnt'l L., Vol. 86 (1992), pp. 597,600 ("The two
Serbian interventions [in Bosnia and Herzegovina and Croatia] were somewhat analogous: in both
instances the armed forces formerly controlled by the Yugoslav central authorities were apparently used to
support a Serbian minority in gaining control over territory, possibly with the aim of integrating these areas
into a greater Serbia."); Noel Malcolm, Kosovo: A Short History (1998), p. 350 (noting "the launching of
Serbia's war of territorial expansion against Bosnia in April 1992").
58 Serbia Statement, para. 440.
59
See, e.g., Security Council resolution 752 (1992), S/RES/752, para. 3 ("demands that all forms of
interference from outside Bosnia and Herzegovina, including by units of the Yugoslav People's Army as
well as elements of the Croatian army, cease immediately, and that Bosnia and Herzegovina's neighbours
take swift action to end such interference and respect the territorial integrity ofBosnia and Herzegovina.");
Security Council resolution 787 (1992), S/RES/787, para. 5 ("Demands that all forms of interference
from outside the Republic of Bosnia and Herzegovina, including infiltration into the country of
irregular units and personnel, cease immediately ..."); Security Council resolution 757 (1992), S/RES/757
(condemning the failure of "authorities in the Federal Republic of Yugoslavia (Serbia and Montenegro),
- 19 - In sum, the international legal principle of territorial integrity-which has always
been formulated as a state-to-state principle-does not render unlawful under
internationallaw declarationsof independenceby non-stateactors. 60
including the Yugoslav People's Anny, to take effective measures to fulfil the requirements of resolution
752 (1992)" andndeciding to impose sanctions on the FRY and Yugoslav People's Anny); see also Security
Council, 3522 Meeting, S/PV/3522, 21 April 1995 (U.S. Ambassador) ("the authorities in Belgrade
should understand that suspension of additional sanctions will depend on their willingness to take further
steps towards peace, most notably by recognizing the Republic of Croatia and the Republic of Bosnia and
Herzegovina within their internationally recognized borders."); Security Council resolution 836 (1993),
S/RES/836 ("Condernning military attacks, and actions that do not respect the sovereignty, territorial
integrity and political independence of the Republic of Bosnia and Herzegovina, which, as a State
member of the United Nations, enjoys the rights provided for in the Charter of the United Nations").
60
Arguments about the principles of stability of boundaries and uti possidetis (see, e.g., Serbia Statement,
paras. 574-79; Cyprus Statement, paras. 82-89) also are unavailing, as those principles do not operate on
non-state actors, nor do they prohibit declarations of independence. The principle of uti possidetis juris
("as you possess, so you shall possess") is one which provides that "states accept their inherited colonial
boundaries." Rosalyn Higgins, Problems & Process: International Law and How We Use It, p. 125(1994)
(emphasis added); see also Marcelo Kohen, "Introduction," in Secession: International Law Perspectives,
pp. 14-15 (Kohen, ed. 2006) ("Uti possidetis, as a customary rule providing for the respect of territorial
limits as they exist at the moment of independence, does not corne into issue during the process of
secession."); Steven Ratner, "Drawing a Better Line: Uti Possidetis and the Borders of New States," Am. J.
Int'l L., Vol. 90, pp. 590-91 (1996) ("Thus, uti possidetis is agnostic on whether or not secessions or
breakups should occur and is not simply the legal embodiment of a policy condernning them.").
Commentators have seriously questioned the Badinter Commission's reliance on this principle, derived
from the decolonization process, to resist any redrawing of boundaries between the former republics of
Yugoslavia in the context of receiving applications from Croatia and Bosnia and Herzegovina for
recognition as new states. See, e.g., Hurst Hannum, "Self-Determination, Yugoslavia, and Europe: Old
Wine in New Botties?", Transnat'l L. & Contemp. Probs., Vol. 57, p. 66 (1993) ("This opinion is dubious
if it purports to identify a rule of international law which requires the maintenance of existing
administrative borders outside the colonial context."); Susan Lalonde, Determining Boundaries in a
Conjlicted World: The Rote of Uti Possidetis, p. 240 (McGill-Queen's 2002) ("In short, the territorial
solution adopted in Yugoslavia was the result of a policy decision that was quite possibly justified. It was
not, however, required by international law."); Peter Radan, "Post-Secession International Borders: A
Critical Analysis of the Opinions of the Badinter Arbitration Commission," Melb. U. L. Rev., Vol. 24, p. 62
(2000) ("The principle is not, as claimed by the Badinter Commission, recognised as a general principle
applicable to ail cases."). However, even the Badinter Commission acknowledged that the principle was
intended to apply only "once the process in the SFRY [led] to the creation of one or more independent
states." Conference on Yugoslavia Arbitration Commission: Opinion 3, 11 January 1992 (reprinted in 31
I.L.M 1488, pp. 1499-1500 (1992)).
-20- Section II. The Court Need Not Decide Whether Kosovo
Has Validly Exercised A Right Of Self-Determination
To Respond To The Question Referred By The General Assembly
Serbia argues that no right of self-determination exists outside of colonial,
61
mandate/trust territories, or foreign occupation contexts. Although Serbia then
contends that neither the population of Kosovo nor Kosovo Albanians could be "a
people" entitled to exercise such a right, 62 it daims that, even if they were, there can
63
never be a remedial/external right of self-determination tha64applies to any situation,
even under the most egregious of circumstances. These are difficult and highly
contested issues, 65 far afield from the question before the Court. Their complexity is
multiplied with respect to Kosovo, where the Security Council's actions under Chapter
VII not only affected the legal terrain but also reflected an international understanding
that the people of Kosovo have been treated in an especially egregious way, warranting
special measures by the international community to protect them, including assuming
international administration of Kosovo. lndeed, even some of Serbia's staunchest
supporters argue that there is, in fact, a right of remedial/external self-determination 66
under certain circumstances, in direct oppositionto Serbia'sposition in this case.
The United States continues to believe that the question referred to the Court can
be answered without addressing the contours of international law regarding self
determination. 67 This Comment offers no view on the issues of who is a "people,"
whether there is a remedial/external right of self-determination in certain egregious
situations, or to whom such a right could flow. Kosovo's declaration of independence
need not be an exercise of the right of externat self-determination to be consistent with
internationallaw. As Judge Higgins has stated:
61Serbia Statement, para. 557.
62
Ibid.,paras. 588, 653, 654(v).
63Ibid, paras. 589-625.
64
Ibid, paras. 626-633.
65 See, e.g.,James Crawford, "The Right of Peoples: 'Peoples' or 'Governments'?" in The Rights of
Peoples, p. 58 (James Crawford, ed. 1988).
66
See, e.g.Russian Federation Statement, para. 88 ("It is also true that the ["safeguard"] clause may be
construed as authorizing secession under certain conditions. However, those conditions should be limited
to truly extreme circumstances, such as an outright armed attack by the parent State, threatening the very
existence of the people in question.").
67
See also Written Statement of the United Kingdom ("United Kingdom Statement"), paras. 5.33, 6.65;
Expose Ecrit de la Republique Français ("France Statement"), para. 23; Written Contribution of the
Republic of Kosovo ("Kosovo Contribution''), paras. 8.38-8.41.
- 21 - Even if, contrary to contemporary political assumptions, self
determination is not an authorization of seèession by minorities, there is
nothing in international law that prohibits secession or the formation of
68
new states.
Therefore, to answer the question posed to the Court, it is sufficient to find that
international law did not prohibit the declaration of independence-which does not
requireresolving issues of self-determination.
Nonetheless, should the Court find it necessary to examine Kosovo's declaration
of independence through the lens of the right of self-determination-including for
example whether Kosovo is a "self-determination unit" for purposes of applying self
determination principles-then the Court should consider Kosovo's specific legal and
factualcircumstances,includingthat:
• Multiple Chapter VII Security Council resolutions acknowledgedthe gravity
of the situation in Kosovo;
• A Chapter VII Security Council resolution established a United Nations
Administration in Kosovo to ensure an end to the serious abuses for which
there was no clear end in sight because of continued concernsfor the safety of
the population;
• Security Council resolution 1244 (1999) itself refers to the "people of
Kosovo," and the Constitutional Framework that was promulgated by the
Secretary-General's Special Representative recognized Kosovo as a distinct
entity and as having "an undividedterritory," and recognizedthat Kosovo and
69
its people had "unique historical,legal, cultural and linguisticattributes;"
• Judgments from the International Criminal Tribunal for the former
Yugoslavia, such as the Milutinovié et al. judgment of 26 February 2009, 70
71
confirm that Kosovo was stripped of its substantial autonomy, culminating
in large-scaleatrocities againstthe population of Kosovo;
68 See Rosalyn Higgins, Problems and Process: International Law and How We Use It (1994), p. 125
69mphasis in original).
UNMIK Regulation No. 2001/9, On a Constitutional Framework for Provisional Self-Government in
Kosovo, UNMIK/REG/2001/9, 15 May 2001, Art. 1.1 [Dossier No. 156].
70 Prosecutor v. Milan Milutinovié, Nicola Sainovié, Dragoljub OjdaniéN ,ebojsa Pavkovié, Vladimir
Lasarevié, Sreten Lukié, Judgement, 26 February 2009, available at: http://www.icty.org/
71se/milutinovic/ 4#tjug.
The Tribunal's version of the revocation of Kosovo's autonomous status is starkly different than
Serbia's. Serbia describes the events as unfolding in a very ordinary manner, as ifno different than the kind
of mundane activity routinely addressed by legislatures:
[T]he 1974 Constitution ofSerbia, was modified in 1989. This was done through amendments to
the Constitution of Serbia, in the constitutionally prescribed procedure and with the consent of
-22- • The representatives of Kosovo's population participated in good faith in an
internationally-ledpolitical process, conducted in accordance with Resolution
1244 and the Security Council's direction, until it was declared by the
responsible international officiais to have corne to an end and that
maintenance of the status quo would be unacceptable;
• Democratically-elected leaders of Kosovo, supported by the population,
peacefully declared independence, committing themselves to respect prior
Security Council resolutions and international legal protections for all of its
inhabitants; and
• Neither the Security Council nor its authorized representatives invoked their
powers to modify or set aside Kosovo's move to independence.
Kosovo and another Serbian autonomous province, Vojvodina. Their status of autonomous
provinces remained under both the federal and Serbian constitutions, but they enjoyed less
autonomous powers, particularly in the legislative realm. At no time was the Albanian minority,
either in Kosovo or elsewhere in Serbia, excluded or discriminated from the participation in the
public affairs of the State.".
Serbia Statement, para. 641. The Tribunal's description is of these events is quite different.cites the
evidence of extreme duress under which the Kosovo Assembly was placed at its meeting on 23 March 1989
when the amendments were "adopted" and concludes:
The Chamber is in no doubt that the Kosovo Albanians perceived the amendments as removing
the substantial autonomy previously enjoyed by Kosovo and Vojvodina, and that, in fact, that was
their effect. For example, the regulation of education and the taxation system was placed within
the jurisdiction of the Government of Serbia, and responsibility for the public security services
was placed under republican control. Ail were previously within the exclusive competence of the
provincial authorities. Two amendments were of particular significance: the removal of the need
for the consent of the provincial assemblies to further constitutional amendments affecting the
whole republic; and the greater power of the Serbian Presidency to use MUP forces in Kosovo to
'protect the constitutional order.' Following these constitutional amendments the situation in
Kosovo deteriorated, with public protests leading to street violence.
Prosecutor v. Milutinovié, et al., Judgement, 26 February 2009, Vol. 1, pp. 86-87, available at:
http://www.icty.org/case/milutinovic/4#tjug. It is not coincidental that UNMIK chose 22 March 1989-the
day before the Kosovo Assembly "adopted" the amendments-as the date after which laws adopted by
Belgrade would not apply in Kosovo. See UNMIK Regulation 1999/24(12 December 1999).
- 23 - CHAPTERV
THE DECLARATION OF INDEPENDENCE IS
IN ACCORDANCE WITH RESOLUTION 1244
In its Written Statement, the United States explained how Kosovo's declaration of
independence was in accordance with the text, overall purpose and approach of Security
Council resolution 1244 (1999). At its heart, Resolution 1244 was designed to protect the
people of Kosovo, to create an environment in which Kosovo could develop its own
political institutions, and at a later stage to facilitate a process designed to determine
Kosovo's future status. In developing its own political institutions, Kosovo would be
free of the influence of the FRY, whose authority would be replaced by an international
civil presence to assist the people of Kosovo in establishing new institutions of
govemment, and which would progressively transfer responsibilities to these institutions.
At the same time, an international security presence, in the form of KFOR, would prevent
the retum of Belgrade's security forces and apparatus, and provide security in their place.
Kosovo would as a formai matter remain within the FRY, but the time during which this
would be the case would be an "interim" period.
Resolution 1244 clearly anticipated that independence might be the most
appropriate outcome for Kosovo's future status, and did not seek to preclude it. The
resolution authorized the international civil presence to "facilitat[e] a political process
designed to determine Kosovo' s future status, taking into account the Rambouillet
Accords," but there was no requirement for the future status to be "agreed" between
, Serbia and Kosovo-only an authorization for the international civil presence to facilitate
a process. By the time that Kosovo declared independence in February 2008, the future
status process had run its course, "the negotiations' potential to produce any mutually
agreeable outcome on Kosovo's status [was] exhausted," 72 it was universally recognized
that the status quo was unsustainable, and Special Envoy Ahtisaari-with the Secretary
General' s support-had recognized that "the only viable option for Kosovo [was]
independence." 73
The Written Statements submitted by Serbia and its supporters challenge this
view, contending that Resolution 1244 precluded independence. But their key points are
either in error or do not disturb the conclusion that Kosovo' s declaration of independence
was in accordance with Resolution 1244.
72Letter dated 26 March 2007 from the Secretary-General to the President of the Security Council attaching
the Report of the Special Envoy of the Secretary-General on Kosovo's future status, S/2007/168, 26 March
2007, p. 2 [Dossier No. 203].
73
Ibid
-24- Section I. References To Territorial lntegrity in Resolution 1244 And Related
Documents Anticipated The Possibility Of Kosovo's Declaration Of lndependence
Sorne of the Written Statements raise arguments based upon references to
"territorial integrity" in Resolution 1244 and various other documents. In large part, the
United States positions with respect to these arguments are set forth in the Written
Statement it submitted to the Court in April. The United States provides additional
information here, however, to respond to some of the arguments made in other Written
Statements.
References to Territorial Integrity in Resolution 1244 and Preceding
Resolutions. Serbia's Written Statement describes Security Council resolutions related
to Kosovo that preceded Resolution 1244 and argues that, "against this background," the
reference to the sovereignty and territoriality of the Federal Republic of Yugoslavia in
preambular paragraph 10 of Resolution 1244 "guarantees the territorial integrity of the
FRY and contradicts any right of the so-called 'Republic of Kosovo' to unilaterally
declare independence." 74 The "background"-the resolutions related to Kosovo that
preceded Resolution 1244-is indeed important in understanding the resolution, but in
the view of United States the implications of that background are quite different than
what Serbia contends.
As explained in Chapter IV, the principle of territorial integrity does not preclude
entities from seeking to emerge or actually emerging as new states on the territory of an
existing state, and thus no more prohibits the emergence of a new state on the territory of
the FRY than it precluded the previous emergence of new states on the territory of the
SFRY in the early 1990s. Rather, the principle of respect for territorial integrity is a
principle that applies as between states. Indeed, preambular paragraph 10 is itself crafted
as a statement of the commitment of "member states" to these principles, and does not
on its face say anything about any commitment of non-state entities (or, for that matter,
non-member states) to the FRY's territorial integrity. 75 Preambular paragraph 10 thus
cannot stand as a legal bar to Kosovo' s declaration of independence. The fact that the
statement is preambular, and does not purport to create international legal obligations
even for member states, makes it all the more difficult to see how the inclusion of this
phrase could constitute a "guarantee" by the Security Council of the territorial integrity of
the FRY.
Even if there were residual questions about this point, the very resolutions to
which Serbia refers as important for understanding the resolution demonstrate precisely
74Serbia Statement,p. 249.
75
The text of preambular paragraph 10 is: "Reaffirming the commitment of ail Member States to the
sovereignty and territorial integrity of the Federal Republic of Yugoslavia and the other States of the
region, as set out inthe Helsinki Final Act and annex2."
- 25 -the opposite of what Serbia daims. It is indeed correct that earlier Security Council
resolutions on Kosovo contained language reaffirming 76e commitment of member states
to the FRY's sovereignty and territorial integrity. But as discussed in the United States
Written Statement, 77 the fact that preambular paragraph 10 of Resolution 1244 qualifies
that reaffirmation so that it applies only "as set out in the Helsinki Final Act and annex 2"
is a critically'important difference.
With respect to Annex 2, the only part of it that refers to principles of sovereignty
and territorial integrity is paragraph 8, which describes:
8. A political process towards the establishment of an interim political
framework agreement providing for substantial self-government for
Kosovo, taking full account of the Rambouillet accords and the principles
of sovereignty and territorial integrity of the Federal Republic of
Yugoslavia and the other countries of the region, and the demilitarization
ofUCK.
Thus, paragraph 8 describes a political framework agreement that would apply to an
interim period, and it is the agreement covering this interim period that should take into
account the principles of sovereignty and territorial integrity. Thus, quite unlike the
earlier Security Council resolutions on Kosovo, when preambular paragraph 10 refers to
the FRY's territorial integrity, it does so only in the context of an interim period.
The reference to territorial integrity in preambular paragraph 10 was further
qualified·by the fact that the principles were being referred to only "as set out in the
Helsinki Final Act." As explained in more detail in the United States Written Statement,
this reference to the Helsinki Final Act underscored the central importance of the human
rights dimension to the situation in Kosovo and the fact that those principles continued to
be relevant even though the FRY's right to participate in the OSCE had been suspended.
Moreover, this reference highlighted the fact that the principle should be understood not
as an absolute, but as one among many considerations that-in accordance with Principle
X of Helsinki-were to be applied equally with "each of them being interpreted taking
into account the others." 78
In sum, even though the preambular language of paragraph 10 creates no binding
obligations under international law, the fact that its references to territorial integrity were
qualified shows how the Security Council viewed the situation at the time: that Kosovo
76See Security Council resolution 1160 (1998), S/RES/1160 [Dossier No. 9]; Security Council resolution
1199 (1998), S/RES/1199 [Dossier No. 17]; Security Council resolution 1203 (1998), S/RES/1203 [Dossier
No. 20].
77
U.S. Statement, pp. 68-74.
78Ibid.,p.72.
-26-was forthe time being-but mightnot remain-part of the FRY, and that 79merous other
principleswould appropriatelybear on Kosovo's future status.
References to Territorial Integrity in Contemporaneous Documents. In addition
to referring to language in previous SecurityCouncil resolutions on Kosovo, Serbia also
refers to other documents related to Resolution 1244: the Ahtisaari-Chemomyrdin
principles (Annex 2 to Resolution 1244);the G-8 Foreign Ministers Statement of 6 May
1999 (Annex 1 to Resolution 1244); and the Military Technical Agreement of 9 June
1999 (MTA). 80 The references in Annex 2 have already been discussed above, and the
language in Annex 1 is in fact identical to that in Annex 2. In both cases, these
documents refer to the territorial integrity of the FRY only in the context of an interim
period. Serbian arguments based upon passages in the MTA-notably what it calls
references to '"Kosovo' on one side, and 'locations in Serbia outside Kosovo' on the
other"-are similarlyunavailing. There is no disputethat Kosovowas not independentat
81
that time the MTAwas concluded. The relevant point is not the situationthat existed at
the outset of the interim period, but rather that the Council limited its language not to
extendbeyondthe interim period. 82
References to Territorial Integrity in the Rambouillet Accords. Serbia makes
similar arguments about the references to territorial integrity in preambular paragraph 4
of the Rambouillet Accords, which Serbia's Written Statement describes "as the
document which should be taken into account in the political process that would
79
Serbia also refers to resolutions adopted by the Security Council on Bosnia and Herzegovina that include
preambular language that reaffinns the commitment of the Council "to the political settlement of the
conflicts in the former Yugoslavia, preserving the sovereignty and territorial integrity of ail States there
within their intemationally recognized borders." In particular, it cites the adoption of the latest of these
resolutions, Resolution 1845 of 20 November 2008, to suggest that the Security Council considered
Kosovo's independence to be unlawful. See Serbia Statement, para. 825. If anything, the inclusion ofthis
language-both before and after Kosovo's independence-stands as further evidence that the principle of
territorial integrity is axiomatic and does not preclude entities from seeking to emerge or actually emerging
as new states on the territory of an original state. Any argument that the language suggests that Kosovo's
declaration of independence was illegal seems particularly strained in that nine of the members of the
Security Council when resolution 1845was adopted are states that have recognized Kosovo.
80See Serbia Statement, paras. 656-74.
81
Military Technical Agreement between the International Security Force ("KFOR") and the Govemments
of the Federal Republic of Yugoslavia and the Republic of Serbia, concluded on 9 June 1999 [Dossier No.
32].
82
Serbia makes a similar argument with respect to language in preambular paragraph 4 ofResolution 1244.
That paragraph states the Security Council's determination to "resolve the grave humanitarian situation in
Kosovo, Federal Republic of Yugoslavia, and to provide for the safe and free retum of ail refugees and
displaced persons to their homes." Again, however, there is no dispute that Kosovo remained part of the
FRY at the outset of the interim period; rather, the relevant point is that the Council's language was limited
to the interim period, and reflected that Kosovo's status in the longer term remained open.
-27 - 83
determine Kosovo's future status." But like the other such references in Resolution
1244, the G-8 Foreign Ministers Statement, and the Ahtisaari-Chemomyrdin principles,
the Rambouillet references to territorial integrity are also limited to the interim period.
Indeed, Serbia itself emphasizes this point-that Rambouillet was designed to
apply only to an (nterim period-when attempting to strengthen its arguments about the
meaning of various terms. In this connection, Serbia highlights the importance of the fact
that "the official name of the so-called Rambouillet Accords was 'Interim Agreement for
Peace and Self-Govemment in Kosovo."' 84 The United States has described the broader
implications of the references in Resolution 1244 to the Rambouillet Accords in its
85
Written Statement. The key point for present purposes is that the very structure of the
Accords, as well as its title, make clear that they were designed to apply only during an
interim period, and that the reference to territorial integrity in its preamble should not be
read more broadly.
While Serbia in its Written Statement now argues for an interpretation of
Rambouillet that would preclude secession, at the time it read the language in precisely
the opposite way. Just days after the final negotiations broke down, the FRY explained
in the Security Council that it had rejected the Rambouillet Accords because they were "a
crude and uni8ecedented attempt to impose a solution clearly éndorsing the separatists'
objectives." The FRY went on to state specifically that it could not agree to the
Accords because "we cannot agree to the secession of Kosovo and Metohija, either
87
immediately or after the interim period of three years." In a subsequent Security
Council meeting, the FRY described the Rambouillet Accords even more bluntly, as
requiring it to give up Kosovo:
[Yugoslavia] has been offered two alternatives: either voluntarily to give
up a part of its territory or to have it taken away by force. This is the
essence of the 'solution' for Kosovo andMetohiJa that was offered by way
8
of an ultimatum at the 'negotiations' in France.
It is difficult in light of these statements to see how Serbia now can credibly assert
before this Court that the reference to Rambouillet in Resolution 1244 is important
83
See Serbia Statement, paras. 781-84. The language of preambular paragraph 4 of the Rambouillet
Accords is "Recalling the commitment of the international community to the sovereignty and territorial
integrity of the Federal Republic ofYugoslavia."
84
Serbia Statement, para. 739 (emphasis added).
85U.S. Statement, pp. 64-68.
86 th
Security Council, 3988 Meeting, S/PV.3988, 24 March 1999,p. 14(emphasis added).
87Ibid. (emphasis added).
88 th
Security Council, 3989 Meeting, S/PV.3989, 26 March 1999,p. 11.
- 28 -because it "clearly adopt[ed] the princi~leof t9e continuedterritorial integrity and
sovereigntyof the FRY over Kosovo."
References to the Territorial Integrity of the "FRY" (as Distinct From the
TerritorialIntegrity of "Serbia'?. Serbia's Written Statement points out, correctly, that
"Serbia continues the international legal personality of the Federal Republic of
Yugoslavia." 90 Serbia is not correct, however, in asserting that "any reference to the
territorial integrity of the [FRY] in the practice of United Nations organs and of
individual states must be understood as referring to the territorial integrity of Serbia." 91
In particular, it is not correct that the reference to the territorial integrity of the FRY in
preambular paragraph 10now "must be understood as referring to the territorial integrity
92
of Serbia.
The law and practice of state succession involves many difficult questions, but
one point is clear: while there may be a presumption that legal provisions remain
applicable to a "continuation" statè, the application of this presumption to a particular
93
right or obligation depends on the particular circumstances.
89 Serbia Statement, para. 784. Serbia also argues that the reference to the "will of the people" should be
understood as a reference to something other than the ·will of the people of Kosovo. The "will of the
people" is a phrase derived at least in part from the historical traditions of the United States, including
notably the famous statement by United States President Thomas Jefferson in an 1801 letter that "the will
of the people... is the only legitimate foundation. of any government, and to protect its free expression
should be our first object." Letter from Thomas Jefferson to Benjamin Waring (reproduced in The Writings
of Thomas Jefferson, Memorial Edition, Vol. 10 (Lipscomb and Bergh, eds. 1904), p. 236). Serbia's
argument is based on the fact that other provisions in the Rambouillet Accords refer to the "population of
Kosovo" and thus the different phrase "people" must refer to something other than the "population of
Kosovo." Beyond the fact that the context in which Rambouillet refers to the "Kosovo population" is so
different (e.g., references in various provisions to certain percentages of the "population of Kosovo," in
which substitution of the word "people" would not be normal English phrasing) the inference Serbia seeks
to draw simply does not follow, and the people of Kosovo are indeed the very people that the Rambouillet
Accords are about. See Rambouillet Accords, S/1999/648, 18February 1999 [Dossier No. 30].
90
Serbia Statement, para. 24.
91Ibid., para. 30.
92
Ibid.
93 Different authorities formulate the scope of the exception-that is, the circumstances in which the
presumption will not apply-in different ways. For example, in the context oftreaty obligations, see D.P.
O'Connell, "Reflections on the State Succession Convention," Zeitschrift für ausliindisches offentliches
Recht und Vo/kerrecht, Vol. 39 (1979), p. 725, at p. 737 (treaty obligations inapplicable if"the situation is
so changed that the purpose behind the treaty could not be realised, or would be distorted"); Rein
Müllerson, "New Developments in the Former USSR and Yugoslavia," Va. J. /nt'/ L., Vol. 33 (1993), p.
299, at p. 317 ("most treaties cannot be automatically applied unchanged" when state succession occurs,
"because of changed circumstances"); Vienna Convention on Succession of States in Respect of Treaties
(1978), art. 35(c), available at: http://untreaty.un.org/ilc/texts/instruments/english/conventions/
3_2_1978.pdf (treaty inapplicable if its application to successor state would "be incompatible with the
object and purpose of the treaty or would radically change the conditions for its operation").
- 29- With respect to Resolution 1244, even if preambular paragraph 10 could be
interpreted as requiring Kosovo to remain part of the FRY indefinitely, the situation
would have been fundamentally changed when Serbia and Montenegro became separate
states. A reading of preambular paragraph 10 that simply substituted Serbia for the FRY
would disregard the underlying logic of the situation and the historical context in which
Resolution 1244 was adopted.
Resolution 1244 embodied a deliberate rejection of any principle that Kosovo
94
need remain part of "Serbia." As discussed in more detail in the U.S. Statement,
preambular paragraph 10 was deliberately formulated to avoid an implication that
Kosovo would need to remain within "Serbia," so as not to foreclose what were referred
to as "third republic" or "inside FRY, outside Serbia" solutions. The possibility of such
solutions was discussed extensively at the time as perhaps the only plausible way to
maintain the extemal borders of the FRY while simultaneously acknowledging the fact
that it was becoming increasingly untenable for Kosovo to remain part of Serbia. 95
To be sure, the FRY and Serbia vehemently objected to such proposais, including
96
formai objections by the FRY at the United Nations. FRY and Serbian leaders also
objected in public comments, demanding, for example, deletion of "third republic"
proposais as a condition for re-starting the negotiations that they had broken off after
Rambouillet. 97 According to the FRY and Serbia,negotiators, "making Kosovo-Metohija
94U.S. Statement, pp. 74-78.
95
See, e.g., "Hungarian Envoy Suggests Yugoslavia Should Become a 'Loose Federation,"' BBC
Monitoring Europe - Political,10 May 1999 (quoting Hungarian Radio, Budapest, on 9 May 1999) (noting
Hungary's interest in a third republic solution); "First International Protectorate, Then Independence for
Kosovo," Turkish Dai/y News, 11 April 1999 (interview with Enver Hasani, a legal adviser to the Kosovo
delegation at Rambouillet) ("[t]he idea [of the proposed Rambouillet accords] appears to be that Kosovo
becomes a third republic within the federation"); Paul Williams, "Hour 2: Professor Paul Williams of
American University, Legal Adviser to the Kosovo Delegation, Talks of the Referendum and the Possible
Reactions in the Upcoming Three Years," Ali Things Considered, National Public Radio, 25 February 1999
(Kosovo Albanians "might find that their long-term interests lie in becoming a third republic within the
federal republic of Yugoslavia"); "Foreign Ministry Spokesman Reiterates Russian Position on Kosovo,"
BBC Monitoring Former Soviet Union - Political, 6 February 1999 (quoting Ekho Moskovy radio report
on interview with Vladimir Rakhmanin, director of the press and information directorate of the Russian
Foreign Ministry) (describing that Russian desire to maintain external borders did not preclude third
republic options); "Hungary ready to back military intervention in Balkans - Minister," BBC Summary of
World Broadcasts, 26 September 1998 (quoting Hungarian TV2 Satellite Service, Budapest, in Hungarian,
24 September 1998) (quoting Albania's foreign minister arguing that "[t]he best solution now would be for
Kosovo to be the third republic ofYugoslavia"); International Crisis Group, New Kosovo Protectorate,
ICG Balkans Report No. 69, 20 June 1999, p. 6, available at: http://www.crisisgroup.org/home/
index.cfm?id=l594&1=1 (describing a third republic scenario as one ofthree possible solutions); "Outrage
in Kosovo," The Economist, 23 January 1999, p. 16 (arguing that the best outcome for Kosovo would be to
turn it into a third Yugoslav republic).
96See Security Council, 3868th Meeting, S/PV.3868, 31 March 1998, p. 18 [Dossier No. 8].
97
See, e.g., Statement of Deputy Prime Minister Draskovié,BBC Monitoring Europe - Political, 27 March
- 30 -a separate federal unit [was] the most perfidious fraud Serbia has ever been exposed to"
and "'Serbia must decisively refuse' such proposals." 98
Against this background, the language on territorial integrity of the "FRY" that
was included in the resolution represented a clear rejection of the position of the FRY and
Serbia. As described in the U.S. Statement, 99FRY and Serbian negotiators raised their
objections when Ahtisaari and Chemomyrdin presented the principles for ending the
1999 conflict and adopting Resolution 1244 in Belgrade in early June 1999, but any
attempts to secure language to preclude "third republic" or "inside FRY, outside Serbia"
solutions failed, understandably so given the fate that had befallen the people of Kosovo
within Serbia. With the separation of Serbia and Montenegro, however, the possibility of
Kosovo remaining within the extemal borders of a common state, but not within Serbia
itself, became untenable. In the final analysis, while the United States has no quarrel
with the general assertion that Serbia continues the international legal personality of the
FRY, it simply does not follow that the meaning of preambular paragraph 10 could
thereby be radically transformed to now require that Kosovo remain part of "Serbia."
Section II. Resolution 1244 Referred To "Autonomy" And "Self-Government" As
Controlling Principles Only During The lnterim Period
Serbian arguments that the references in Resolû.tion 1244 to "autonomy" and
"self-government" "exclude any form of independence, and even more so exclude a
unilateral declaration of independence" 100are contradicted by the wording and structure
of the resolution itself. Just as was described in Section I, the relevant references in each
case are to the situation that would apply in the interim period, not the ultimate political
solution that might develop. 101
1999 (quoting Tanjug News Agency, Belgrade, in English, 26 March 1999) (statement by FRY Deputy
Prime Minister that talks can continue any time upon deletion of "the provisions granting to Kosovo
Metohija the status of a third republic or independent state").
98See Statement ofDeputy Prime Minister Markovié, head of the Serbian negotiating team, "Accepting US
Plan for Kosovo Would be 'Political Suicide' for Milosevic," BBC Summary of World Broadcasts, 28
November 1998 (quoting Beta News Agency, Belgrade, in English, 26 November 1998).
99
U.S. Statement, pp. 76-77.
100Serbia Statement, paras. 728et seq.
101
See, e.g.,Security Council resolution 1244 (1999), S/RES/1244, Annex I [Dossier No. 34] (referring to
"substantial self-government" as an element to be provided for in the interim political framework
agreement); Ibid, Annex 2, para. 8 (same); Ibid Annex 2, para. 5 (same with respect to self-government
and autonomy); Ibid, para. 11 (referring to "institutions for democratic and autonomous self-government"
as ''provisional institutions"Ibid, para. 10 (referring to "substantial autonomy" as something to be
enjoyed by the people of Kosovo in an interimadministration).
- 31 - Section III.Nothing In Resolution 1244 Required That
Kosovo's Future Status Be Determined Only By Agreement
As the United States explained in more detail in its Written Statement, Resolution
1244 contained no requirement for Serbia and Kosovo to agree to a future status. Serbia
had fought hard for a provision guaranteeing it a right of veto in the negotiations on the
agreements preceding Rambouillet and in Rambouillet, but failed, and no such provision
102
was included in Resolution 1244. Serbia's arguments that somehow the wording of
particular parts of paragraph 11 implicitly provide such a right of veto are unavailing.
A. RESOLUTION 1244 NüWHERE REFERS Tü AN "AGREEMENT"
REGARDING Kosovo's FUTURE STATUS
Paragraph 11(e) of Resolution 1244 states that the responsibilities of the
international civil presence would include "facilitating a political process designed to
determine Kosovo' s future status, tak:inginto account the Rambouillet Accords." Serbia
argues that the use of the phrase "political process" means that the Council required an
agreement between Serbia and Kosovo:
The very term 'political process' implies that all parties concerned shall be
involved and that they·have to find a mutually·agreeable solution through
103
negotiation.
While this was undoubtedly the outcome for which the Security Council (and the
international community at large) hoped, the Council was also well aware of the
fundamental differences of view between Kosovo and Serbia and of the failed efforts
over the years to achieve such an agreement. It did not include such a requirement in
Resolution 1244, and no explanation is offered, nor is one apparent, why the fact that the
Council authorized the international civil presence to facilitate a "political process"
would mean or even suggest a requirement that any solution be mutually agreed.
Serbia next argues that the use of the word settlement in paragraph 11 of
Resolution 1244 is equivalent to the word agreement, contending that "[i]t is obvious that
'settlement' cannot but mean agreement, not a unilateral measure tak:en by one of the
parties" and that Resolution 1244 thus required "that a solution as to the final status of
Kosovo must be reached by agreement between the parties." 104 But this argument is
wrong for at least two reasons.
102
See U.S. Statement, pp. 65-68.
103Serbia Statement, para. 753.
104Ibid., para. 754.
- 32 - First, the word agreement was not the word used. This fact is all the more
noteworthy in that other provisions in Resolution 1244 do indeed refer to agreements,
including agreements by the FRY. Specifically, this is the case with respect to paragraph
4 of the resolution, referring to the possibility of a return of only an "agreed" number of
Yugoslav and Serb personnel to Kosovo for certain specific purposes, thus reflecting that
the Council was quite capable of speaking clearly about the need for agreement when that
was its intent.
Second, the terms on which the United Nations conducted the future status
negotiations did not assume such a right of a veto by Serbia at the conclusion of that
process. Thus, the Guiding Principles adopted by the Contact Group when the future
status negotiations were launched, and included when the Security Council welcomed the
105
appointment of President Ahtisaari as Special Envoy in November 2005, state
specifically that "[oJnce the process has started, it cannot be blocked," and the Contact
Group reaffirmed in the course of t106future status process itself that negotiations "can
not be allowed to be blocked." Indeed, the Contact Group statements make clear that
any settlement must "be acceptable to the people of Kosovo," but include no such
statement with respect to Belgrade or the people of Serbia, specifically noting instead the
fact that Belgrade's "disastrous policies of the past lie at the heart of the current
107
problems:"
105Letter dated 10 November 2005 from the President of the Security Council to the Secretary-General,
S/2005/709, 10November 2005 [DossierNo. 197].
106Contact Group Ministerial Statement, Vienna, 24 July 2006, availablè at: http://www.unosek.org/docref/
Statement of the Contact Group after first Pristina-Belgràde High-level meeting held in Vienna.pdf.
107
Contact Group Statement on the Future of Kosovo, London, 31 January 2006, available at:
http://www.unosek.org/docref/fevrier/STATEMENT%20BY%20THE%20CONTACT%20GR
OUP%200
N%20THE%20FUTURE%20OF%20KOSOVO%20-%20Eng.pdf. Serbia's reliance on statements in the
Guiding Principles to the effect that the parties should refrain from unilateral steps misses the point that
these were political statements intended as rules of conduct for the parties to follow in the future status
negotiations themselves. The essential point was that both Serbia and Kosovo should not take steps during
the process that would undermine whatever prospects the negotiations would have for success. The idea
that this was intended as a rule granting or recognizing a veto for Serbia if the negotiations failed to
produce an agreement is fundamentally inconsistent both with the terms ofResolution 1244 itself, and with
the many other Contact Group statements, including those cited above, that affirmed that the process could
not be blocked. Kosovo participated in that political process in good faith, and the declaration of
independence was issued only after that political process had run its course. also U.S. Statement, pp.
79-83. Serbia's reliance on the Contact Group statement about unilateral acts is particularly unconvincing
in view of Serbia's own actions at the height of the political process. Mere weeks after the Contact
Group's September 2006 statement, Serbia adopted a new constitution which-unilaterally-pronounced
Kosovo as "an integral part of the territory of Serbia" and sought to preclude even discussion of
independence. Contemporary accounts make clear that a hastily-conducted referendum to approve the
constitution was both intended and in fact seen as turning entirely on this provision of the new constitution.
"Kosovo referendum results strengthens [sic] Serbia: PM," Agence France Presse, 29 October 2006,
available at http://www.kosovo.net/news/archive/2006/ October_31/l.html. See also U.S. Statement, n.
109 and associated text; Report of the Secretary-General on the United Nations Interim Administration
- 33 - Time and again the Contact Group encouraged Kosovo and Serbia to reach a
mutually agreed solution as the most desirable outcome, and this might well have been
crystallized in the form of a bilateral agreement of some sort. But consistently the
Group's statements also reflected that Belgrade's agreement might not be possible, and
each time it refrained from indicating that any such agreement was required. For
example,the Contact Group's statementof 20 September2006 described the situation in
this way:
Regarding Kosovo's political status, Ministers recognize that distance
remains betweenthe positions of Belgrade and Pristina, as was made clear
at the high-level meeting in Vienna on 24 July. Ministers support the
Special Envoy's efforts to work with the parties in cooperation with the
Contact Group to arrive at a realistic outcome that enhances regional
stability, is acceptable to the people of Kosovo and preserves Kosovo's
multiethnic character. Striving for a negotiated settlement should not
obscure the fact that neither party can unilaterally black the status
process from advancing. 108
B. RESOLUTION 1244 DOES NOT ÛTHERWISE REQUIRE AN AGREEMENT
Serbia's argument that an agreement was required on Kosovo's future status
would be wrong even if paragraph 11 in fact had authorized the international civil
presence to facilitate a political process designed to determine Kosovo's future status
solely pursuant to an agreement between Kosovo and Serbia. Authorization for the
international civil presence to facilitate a process designed to reach such an agreement
wouldnot have meant that Kosovoand Serbiawould have been requiredto reach such an
agreement, or that the situation would have remained without a solution indefinitely in
the absenceof one.
1. TheDeclaration of Independence Did Not Prevent TheInternational
Civil Presence From Carrying Out Its Mandate
Article 25 of the Charter of the United Nations is the basic source of the
requirement under international law to abide by decisions of the Security Council. It
providesthat:
Mission in Kosovo, 20 November 2006, S/2006/906, para. 6 [Dossier No. 78].
108
Contact Group Ministerial Statemeqt, New York, 20 September 2006, available at:
http://www.unosek.org/docref/2006-09-20 _-_CG%20_Ministerial Statement New%20 York.pdf (emphasis
added).
- 34 - The Members of the United Nations agree to accept and carry out the
decisions of the Security Council in accordance with the present ·
Charter. 109
Though not free from doubt, for present purposes it can be assumed arguendo that
the same obligation under Article 25 applies to non-UN member states, and to entities
that are not states (which is how Serbia would characterize Kosovo both now and at the
time independence was declared).11° In that case, it might be claimed that Kosovo's
issuance of its declaration of independence violated its international legal obligations if it
prevented the international civil presence from facilitating "a political process designed
to determine Kosovo's future status" under paragraph 11(e) or overseeing the transfer of
authorityto institutions establishedunder a political settlementùnder paragraph 1l(f).
But by the time Kosovo declared independence in February 2008, the
international civil presence had already completed its "facilitat[ion] [of] a political
process," as contemplated by Resolution 1244. The extensive efforts of Special Envoy
Ahtisaari, followed by the last-ditch effort of the "Troïka" to determine if an agreement
could be reached, made clear that "the negotiations' potential to produce any mutually
agreeable outcome on Kosovo's status is exhausted"m and that "[n]o amount of
additional talks, whatever the format, will overcomethis impasse." 112 In short, there was ·
no longer an ongoing political process to determine Kosovo's future status. Kosovohàd
accepted the Comprehensive Proposai put forward by Ahtisaari and supported by the
Secretary-General-a posture that was supportive of the Secretary-General's efforts to
109
See also Article 48 of the Charter: "The action required to carry out the decision of the Security Council
for the maintenance of international peace and security shall be taken byil the Members of the United
Nations or by some of them,as the Security Council may determine" (emphasis added).
110The proposition accepted arguendo above-that the requirement to accept and carry out the decisions of
the Security Council applies equally to non-UN member states or to non-state entities-is not obvious.
Indeed, there have been widely differing views about whether Security Council decisions create legal
obligations for states that are not UN members in connection with Article 2(6) of the Charter.ee, e.g.,
The Charter of the United Nations: A Commentary, Vol. I, p. 141 (Bruno Simma, et al., eds. 2002) ("It is a
controversial issue whether Art. 2(6), which refers to states which are not members of the UN, is capable of
having any legal effect on those states"). Moreover, even if Article 2(6) is read as reflecting that non
member states have international legal obligations to carry out the decisions of the Council, questions
would remain whether such decisions create international legal obligations for non-state actors, at least in
the absence of some kind of specific indication from the Security Council that it intends such a result. If
the obligation to "accept and carry out" the decisions of the Security Council does not apply to non-state
actors, then it would be difficult to see how Kosovo's declaring independence could be seen by Serbia
whose fundamental position is that Kosovo was and today remains a non-state actor-as having violated
international law, even ifits actions were inconsistent with Resolution 1244.
111 Letter dated 26 March 2007 from the Secretary-General to the President of the Security Council
attaching the Report of the Special Envoy of the Secretary-General on Kosovo's future status, S/2007/168,
26 March 2007, para. 3 [Dossier No. 203].
llz Ibid
- 35 -implement Resolution 1244. Nothing in Resolution 1244 required the international civil
presence to initiate yet a further status process-paragraph 11(e) of the resolution speaks
about the international civil presence facilitating "a" political process-and the absence
of any prospect of bridging the divide between Serbia and Kosovo would have made
further such negotiations pointless. Indeed, nine of the members of the Security
Council-including three of the five permanent members-have already recognized
Kosovo, and there is no prospect of the Security Council authorizing a new political
process.
The contrast between the situation in February 2008 and earlier periods-notably
in 2005, when the SRSG had indicated it would have been prepared to nullify a
declaration of independence by Kosovo-is thus striking. A declaration of independence
by a group might amount to a violation of the resolution only if it prevented the
international civil presence from facilitating "a political process designed to determine
Kosovo's future status." So long as the United Nations was planning or actively engaged
in efforts to foster an agreement between Kosovo and Serbia, a declaration of
independence might be seen as preventing that process from proceeding, and in this
manner be seen as inconsistent with the requirement to accept and carry out the decisions
of the Security Council. By February 2008, however, the United Nations was no longer
engaged in such efforts. That is why it was appropriate for the Secretary-General and the
SRSG to ·reject Serbian demands to annul Kosovo's declaration of independence in
February 2008, even though they had clearly indicated they would have annulled such a
declaration in the period before the status process had run its course.
2. Kosovo Did Not Negotiate in Bad Faith
Serbia argues that Kosovo' s position during the negotiations was always to seek
independence,113like what it contrasts as the good faith that Serbia displayed throughout
the process. lt characterizes Kosovo' s position of advocating for independence as
being "in sharp contrast to" the fact that Resolution 1244 requires that "the sovereignty
114
and territorial integrity of Serbia should be safeguarded."
In fact, the record shows that it was the FRY and Serbia whose conduct was
subject to criticism at the time, as reflected in statements of the Contact Group about the
posture it assumed. Thus, it was Belgrade that the Contact Group said "needs to
demonstrate much greater flexibility in the talks than it has done so far;" 115Belgrade that
the Contact Group statements affirm "needs to begin considering reasonable and
113Serbia Statement, para. 917 ("Serbia has always negotiated in good faith with the representatives of
Kosovo Albanians and international mediators in order to find a mutually acceptable solution").
114Ibid., para. 919.
115Contact Group Ministerial Statement, Vienna, 24 July 2006, available at: http://www.unosek.org/docref/
Statement of the Contact Group after first Pristina-Belgrade High-level meeting held in Vienna.pdf.
- 36 -workable compromises;" 116Belgrade that was told "to bear in mind that the settlement
needs, inter alia, to be acceptable to the people of Kosovo;" 117and Belgrade that was
admonished that the "disastrous policies of the past lie at the heart of the current
problems." 118
The·ideathat itwas in somemannerimproperor in "bad faith" for Kosovo to seek
independence is, in any event, baseless. No other participant in the process suggested
that Kosovo's position in the negotiations constituted bad faith. Indeed, in November
2005, when the Kosovo Assembly adopted a resolution providing a mandate for
Kosovo's representatives in the future status negotiations to seek independence, the
SRSGsaid specificallythat in providing such a mandate "the Assemblyhas appropriately
assumed its responsibility." 119 Ifanything, the fact that Serbia views Kosovo's position
in the negotiations as bad faith is further testament to the futility of attempting further
negotiations.
Section IV. Arguments Relating To The Constitutional Framework
And Other UNMIK Regulations Do Not Show Kosovo's Declaration
To Be In Conflict With International Law
Serbia argues that the declaration of independence was not in accordance with
international law because it was an ultra vires act by the Kosovo Assembly and
inconsistent with the role of UNMIK and its regulations. These arguments also lack
merit. The declaration of independence itself makes clear that it was intended as an
expression of the will of the people, not the exercise of a formal grant of authority from
UNMIK. Moreover, UNMIK regulations had the character of domestic law, such that
failure to comply with them would not in any event have constituted a violation of
international law.
116Contact Group Ministerial Statement, Vienna, 24 July 2006, available at: http://www.unosek.org/docref/
Statement of the Contact Group after first Pristina-Belgrade High-level meeting held in Vienna.pdf.
117
Contact Group Statement on the Future of Kosovo, London, 31 January 2006, available at:
http://www.unosek.org/docref/fevrier/ST ATEMENT%20BY%20THE%20CONT ACT%20GROUP%20O
N%20THE%20FUTURE%20OF%20KOSOVO%20-%20Eng.pdf.
118Ibid.
119SRSG Statement on the Resolution Passed by the Kosovo Assembly, UNMIK/PR/1445, 17 November
2005 [Dossier No. 199].
- 37 - A. Kosovo's ASSEMBLY DID NOT EXCEED ITS CONSTITUTIONAL AUTHORITY
IN VIOLATION ÜF INTERNATIONAL LAW
Serbia argues that:
the Assembly acted ultra vires under the Constitutional Framework when
it declared that Kosovo is a sovereign and independent State. The
Constitutional Framework does not provide the Assembly with any
authority to deal with matters relating to the international legal status of
Kosovo, let alone to declare its independence. 120
The heart of these arguments is not that the declaration of independence is impermissible
as such, but rather that it is impermissible because it was adopted by the Kosovo
121
Assembly. However, these contentions fail to take account of the extensive
documentation put forward by the authors of the declaration that it was not made by the
Kosovo Assembly acting in its capacity as one of the Provisional Institutions of Self
Govemment but, rather, by the representatives of the people of Kosovo. 122 In the view of
the United States, the central point is that the declaration was an expression of the "will
of the people," not the exercise of a formai grant of authority from UNMIK. 123
Moreover, as the United States further pointed out in its Written Statement, if it were
seriously contended that the declaration of independence was unlawful simply because it
was issued by the "PISG" rather than by a body unrelated to the institutions of self
govemment that the international civil presence had helped to develop, that technical
flaw could easily have been remedied by convening a new constituent body for the
124
purpose of re-declaring independence. The fact that the declaration of independence in
fact represents the will of the great majority of the people of Kosovo is beyond
125
peradventure.
120Serbia Statement, para886.
121
Serbia appears to be making essentially the same arguments with respect to the UNMIK-FRY Common
Document, paragraph 5 of which reaffinned "that the position on Kosovo's future status remains as stated
in UNSCR 1244, and that this cannot be changed by any action taken by the Provisional Institutions of
Self-Government." Ibid., para. 519. It was of course clear at that time-ithe very early stages of the
process, and well before the future status had even commenced-that the SRSG would not accept a
declaration of independence. In any case, it is worth noting that the Common Document simply says that
the "position on Kosovo's status remains as stated in UNSCR 1244" (without elaborating what that status
is) and that "this".e., the fact that the position on Kosovo's status remains as stated in UNSCR 1244, as
opposed to the particular status that Kosovo at that time had) cannot be changed by the PISG.
122
Kosovo Contribution, Chapter VI.
123U.S. Statement, p. 57, n. 231.
124
Ibid.
125Nowhere in its Written Statement does Serbia suggest that the declaration does not reflect the will of the
people of Kosovo and, indeed, it appears to concede the point.ee, e.g., Serbia Statement, para. 339 (it
was clear that a referendum in Kosovo "could lead to only one result, namely the secession of Kosovo from
- 38 - B.THEDECLARATIOO NFlNDEPENDENC lENOTINCONSISTEN WTITHUNMIK
CONTINUING To HAVERESPONSIBILITIU ESNDERRESOLUTION 1244
Serbia appears to claim that, whether or not the declaration of independence is in
accordance with Resolution 1244, it nevertheless violated international law because it
was inconsistent with the regulations that UNMIK had put in place or because, as Serbia
puts it, the declaration of independence "challenged and contravened the supreme
administrative authority ofUNMIK."126
But, in fact, UNMIK has continued to operate in Kosovo after adoption of the
declaration of independence, and continues to operate there today.reover, while it
is quite clear that Kosovo was declaring independence from Serbia, the declaration of
independence did not repudiate either UNMIK or Resolution 1244, and in fact the
declaration contains specific language committing Kosovo to act consistent with the
128
resolution. There is no incompatibility between Kosovo's independence from Serbia
and UNMIK's continuing to have responsibilities under Resolution 1244. The Security
Council clearly may authorize subordinate bodies such as UNMIK to function in fully
independent states like Kosovo (as, indeed, it has functioned there for a decade in the
context of Serbian daims to sovereignty). The refusal of the SRSG -the head of
UNMIK-and the Secretary-General to annul the declaration of independence is
particularly significant in this context, insofar as it is the supposed challenge to their
authority that is claimed to have invalidated the declaration of independence .
.C. THECONSTITUTIONA FRAMEWORA KNDÜTHER UNMIK REGULATIONS
ÜPERA TEDAs DOMESTIC N,OTINTERNATIONA LL, W
The Constitutional Framework, like the other regulations that UNMIK adopted,
was designed to operate as domestic law, not international law. That fact is critical for
purposes of this case because the question referred to the Court is whether the declaration
of independence "is in accordance withternational law."
The nature of UNMIK's regulations is reflected in the practice and the record.
Thus, the first regulation adopted by UNMIK in 1999 provided:
theFRY and Serbia").
126Serbia Statement, para. 895.
127
See, e.gReport of the Secretary-General on the United Nations Interim Administration Mission in
Kosovo, S/2009/300, 10 June 2009, para. 40ne with the parameters contained in my reports of 12
June and 24 November 2008 (S/2008/354 and S/2008/692), and pursuant to the Security Council's
presidential statement of 26 November 2008, UNMIK has moved forward with its reconfiguration within
the status-neutral framework ofresolution 1244(1999).").
128Declaration oflndependence, paras. 5, 7 [Dossier No. 192].
- 39 - All legislative and executive authority with respect to Kosovo, including
the administration of the judiciary, is vested in UNMIK and is exercised
129
bythe SpecialRepresentativeof the Secretary-General.
The "legislative and executive authority" to which this refers is clearly of domestic
authority, of an inherently domestic nature, as is the administration of the judiciary,
which isthe one specific elementthat the regulation mentions.
The Secretary-General's first report on UNMIK described that he had decided
that the authority vested in UNMIK would be exercised by a Special Representative
("SRSG"), and that:
In doing so, he may change, repeal or suspend existing laws to the extent
necessary for the carrying out of his functions, or where existing laws are
incompatible with130e mandate, aims and purposes of the interim civil
administration.
The reference to "existing laws" that the Secretary-General authorized the SRSG to
change is clearly a reference to the law otherwise in place in Kosovo at that time, which
was Yugoslavia's domestic law, and the law into which it would be changed would
similarlyoperate as domestic law. The Secretary-General's report specified that UNMIK
would utilize this authority to "initiate a process to amend current legislation in Kosovo"
and that this would include "criminal laws, the law on internai affairs and the law on
public peace and order"-once again making clear the domestic law nature of the
regulations that UNMIK would promulgate. UNMIK regulations thereafter operated on
the same level as and alongside pre-existing domestic law so as, together with that pre
existing law, to form the domestic legal regime applicable in Kosovo. Thus, UNMIK
Regulation 1999/24specificallyprovided that:
The law applicable in Kosovo shall be:
(a) The regulations promulgated by the Special Representative of
the Secretary-Generaland subsidiary instrumentsthereunder; and
(b) The law in force in Kosovo on 22 March 1989. 131
The FRY itself viewed the decision to vest legislative and executive authority in
129 Regulation No. 1999/l On the Authority of the lnterim Administration in Kosovo,
130IK/REG/1999/l, 25 July 1999, sec 1.1 (emphasis added) [Dossier No. 138].
Report of the Secretary-General on the United Nations Interim Administration in Kosovo, S/1999/779,
12 July 1999, para. 39 [Dossier No. 37].
131Regulation No. 1999/24 On the Applicable Law in Kosovo, UNMIK/REG/1999/24, 12 December 1999,
section 3 [Dossier No. 146] (This regulation replaced Regulation No. 1999/1, so as to change the relevant
date from 24 March 1999 to 22 March 1989).
-40-UNMIK as a decision-in its v1ew m contravention of Resolution 1244-to vest
domestic authority in UNMIK. Thus, the FRY complained that the decision to vest
legislative and executive authority:
takes over from the legitimate governmental bodies and authorities in the
Federal Republic of Yugoslavia their inviolable sovereignty over the
executive, legislative and judicial authority in Kosovo and Metohija. 132
Put plainly, the FRY objected to the vesting of legislative and executive authority in
UNMIK precisely because it was usurping the domestic authority that-in its view-the
FRY should have continued to enjoy.
133
As has been noted by others, the Constitutional Framework was itself
promulgated as a regulation, given a number (2001/9) like other regulations, and put into
force by signature of the SRSG precisely because it was being treated by UNMIK in the
same manner as other regulations. 134 The very name "Constitutional Framework" echoes
the understanding that it would operate in the way that a Consti~tion would normally
operate under domestic law. UNMIK regulations govemed activities in every walk of
ordinary life, including for example banking ("No person shall engage in the business of
a bank or financial institution without an effectivelicense"), 135registration and operation
of non-governmental organizations ("[a]n NGO shall not distribute any net earnings or
profits."),136 collection of value added tax (a person subject to the tax "shall apply to be
registered for value added tax purposes with the Tax137ministration within 30 days of the
entry into force of the present regulation"), and motor vehicle registration ("only
vehicles with valid registration and license plates will be permitted to operate in
132Letter dated 16 July 1999 from the President of the Federal Government of the Federal Republic of
Yugoslavia to the Secretary-General, Annex to Letter dated 19 July 1999 from the Chargé d'Affaires A.I.
of the Permanent Mission of Yugoslavia to the United Nations to the Secretary-General, S/1999/800, 19
July 1999,p. 3.
133See, e.g., Kosovo Contribution, para. 4.33.
134
See Briefmg by SRSG Hans Haekkerup, 3 May 2001, available at:
http://www.unmikonline.org/press/2001/trans/tr030501a.html (explaining that Kosovo representatives
would not sign the Constitutional Framework because it had the same status as any other UNMIK
Regulation: "The only one who will sign this document is me. The plan has never been anything else. This
is a regulation...").
135UNMIK Regulation 1999/21, On Bank Licensing, Supervision and Regulation, UNMIK/REG/1999/21,
15 November 1999, section 3.1, · available at: http://www.unmikonline.org/regulations/
unmikgazette/02english /E1999regs/RE1999_21.pdf.
136UNMIK Regulation 1999/22,On the Registration and Operation ofNon-Governmental Organizations in ·
Kosovo, UNMIK/REG/1999/22, 15 November 1999, section 1.3, http://cso-ks.com/repository/
docs/UNMIK_reg_99_22_eng.pdf.
137UNMIK Regulation 2001/11, On Value Added Tax in Kosovo, UNMIK/REG/2001/11, 31 May 2001,
section 3.1, available at: http://www.unmikonline.org/regulations/2001/regl 1-01.pdf.
- 41 - 138
Kosovo"). Clearly a person who engaged in banking without a license, or an NGO that
distributed earnings, or a company that failed to register for the value added tax, or a
motorist who operated a vehicle with expired license plates-all might be subject to
penalty under domestic law because they had violated provisions in UNMIK regulations.
But because UNMIK regulations we:i;edesigned to operate as domestic law, none of them
would be considered to have acted in a manner that is not "in accordance with
international law."
Thus, even if one accepted arguendo Serbia's proposition that Kosovo's
declaration of independence was inconsistent with the Constitutional Framework or other
UNMIK regulations, it would not follow that those actions were not "in accordance with
international law."
Section V. Efforts To Secure A Security Council Resolution In 2007
Do Not Prove That Kosovo's Declaration Violated International Law
There is no question that it would have been preferable if a new Security Council
resolution on Kosovo could have been adopted. For its part, Serbia argues that the fact
that various states pursued such a resolution "confirms" that independence was
139
impermissible without a ·newSecurity Council resolution.
Serbia's argument does not withstand scrutiny. Nothing in Resolution 1244
requires the approval of the Security Council for Kosovo's independence or any other
future status for Kosovo. As described above, the resolution simply authorized the
international civil presence to facilitate a political process designed to determine
Kosovo's future status. The central legal purpose of a new resolution would have been to
end the mandate of the international civil presence established in 1999 and to have
UNMIK complete its operations in Kosovo. Indeed, the end of the mandate was clearly
140
contemplated under the Ahtisaari Proposal, but under paragraph 19 of Resolution 1244
could not occur until the Security Council so decided. A new resolution would have
provided for the termination of UNMIK's mandate, and was also seen as the best way to
provide clear mandates, under Chapter VII, for the International Civilian Representative
and EU missions envisioned in the Ahtisaari Proposal.
138
UNMIK Regulation 1999/15, On Temporary Registration of Privately Operated Motor Vehicles in
Kosovo, UNMIK/REG/1999/15, 21 October 1999, section 3, available at:
http://www.unmikonline.org/regulations/1999/re99_l5.pdf.
139Serbia Statement, para. 820.
140
See, e.g.,Letter dated 26 March 2007 from the Secretary-General to the President of the Security
Council, Addendum, Comprehensive Proposai for the Kosovo Status Settlement, S/2007/168/Add.l, 26
March 2007, art. 15.l(g) [Dossier No. 204].
- 42 - At no time, however, would the draft resolution have decided that Kosovo was
independent. Thus, the draft resolution contained no provision that would have purported
to make Kosovo an independent state, no provision calling upon states as a political
matter to recognize Kosovo or to treat it as a state, and not even a provision endorsing the
recommendation for independence made by Ahtisaari and supported by the Secretary
General. The resolution would have allowed the regime for international supervision of
Kosovo' s 141ependence to proceed in the manner provided for in the Ahtisaari
Proposai, but it was not a prerequisite for independence itself. It is undoubtedly true
that a new resolution could also have had symbolic and political importance in helping to
consolidate political support for an independent Kosovo, but this was a political rather
than a legal consideration.
In the absence of a resolution, adjustments in the regime for international
supervision were in fact necessary after Kosovo' s leaders declared independence,
including an appropriate role for UNMIK under Resolution 1244. As the United States
indicated in its Written Statement, as a practical matter coordination on the ground has
proven successful in ensuring appropriate adjustments. 142 Of particular note, the ability
to develop satisfactory alternative arrangements has been due in significant part to the
efforts of the Secretary-General, including his decision following the declaration of
independence to reconfigure UNMIK in order to reduce its operations and to allow for
143
the European Union to take on an increasing role in the rule of law sector. For its part,
Kosovo has unequivocally accepted the obligations for it set out in the Ahtisaari
Proposai. The fact that the regime for supervising Kosovo' s independence has been
successfully modified without adoption of a new resolution or repeal of Resolution 1244
only underscores that Kosovo's declaration of independence did not contravene
Resolution 1244, and thus is fully in accordance with international law.
Section VI. The Court Should Respect The Decision Of The Responsible United
Nations Officiais Not To Declare The Declaration Of Independence Unlawful
As all parties that addressed the point in their April submissions agreed, neither
the Secretary-General nor the SRSG took steps to challenge Kosovo's declaration of
141The draft resolution would have contained two sets of operative decisions or authorizations regarding
the mechanisms for supervising Kosovo's independence. First, paragraph 5 of the draft resolution would
have set forth a Security Council decision under which the mandate of UNMIK would have been
terminated. Second, paragraphs 6 and 7 would have provided mandates for the international civil presences
described in the Ahtisaari Plan.ee Serbia Statement, Annex 36. In the absence of the adoption of the
resolution, arrangements for these presences have been undertaken pursuant to a combination of the
continuing authority ofResolution 1244and the invitation of the Govemment of Kosovo.
142U.S. Statement, p. 30, n. 116.
143
Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo,
S/2008/458, 15July 2008, para. 3 [Dossier No. 89].
- 43 -independence when it was adopted. The Secretary-General and the SRSG declined to
take such action notwithstanding specific demands to do so from the President of Serbia,
and notwithstanding clear authority to declare invalid any action by the parties if doing so
was necessary to implement Resolution 1244 (authority they had exercised many times in
the past).144 The situation on the ground has evolved considerably since the declaration,
and the Secretary-General has worked diligently to take appropriate action in light of
these changes, including by his decision to adjust operational aspects of the international
civil presence and reconfigure UNMIK for the European Union to take on an increasing
role in the rule of law sector through its EU Rule of Law Mission (EULEX). All of this
has been undertaken in order to achieve the over-arching mandate of UNMIK, described
in the Secretary-General's April 2009 report, "to help the Security Council achieve an
overall objective, namely, to ensure conditions for a peaceful and normal life for all
inhabitants of Kosovo and advance regional stability and prosperity in the western
Balkans." 145
There is no question that a resolution mutually acceptable to Kosovo and Serbia
would have been desirable. But this goal proved impossible, and the Secretary-General,
the SRSG and the other United Nations officiais to whom the implementation of
resolution 1244 was entrusted had to address the situation as it actually developed. As
events unfolded these officiais were charged with·making the necessary decisions on how
best to proceed in pursuit of the maintenance of international peace and security within
the framework ofresolution 1244. Their decisions-including notably the decision not to
strike down Kosovo' s declaration of independence-were taken in the context of the
declaration's specific reaffirmation of Kosovo's acceptance of Resolution 1244 and the
international presences established by it, and Kosovo's pledge to act consistently with all
requirements of international law and all resolutions of the Security Council. 146 There
could be no doubt of what was at stake in making these decisions, given the Balkans
legacy as the site of Europe's most devastating wars and atrocities since the Second
World War.
In previous cases, the Court has given careful consideration to such decisions
taken by United Nations organs or officiais in the exercise of their authority under the
Charter. Such deference is not an abdication of the Court's role, but a means of ensuring
a proper relationship between the Court and other components of the United Nations
system. Here, those United Nations officiais called upon each day to deal with a volatile
and evolving situation determined not to challenge Kosovo' s declaration of
independence. This, in tum, has led to an increasingly stable situation in which both
14See U.S. Statement, pp. 85-88.
145
Report of the Secretary-General (Budget for the United Nations Interim Administration Mission in
Kosovo for the period from l July 2009 to 30 June 2010), A/63/803, 2 April 2009, para 2.
14Declaration oflndependence, paras. 5, 7 [Dossier No. 192].
-44-Kosovo and Serbia can focus their attention on pursuing a common future in the
European community. It is the hope of the United States that the Court can contribute to
these developments by either exercising its authority to decline to answer the question
referred or, in accordance with well-established legal principles, confirming that the
declaration is in accordance with international law.
-45 - CHAPTERVI
CONCLUSION
Fortheforegoingreasons,theUnitedStatesrespectfullysubmithat, theCourt
choosesto answerthequestionreferredbytheGeneralAssembly,it shouldconcludthat
Kosovo'sdeclarationofindependenceisinaccordancewithinternationallaw.
Washington,D.C. HaroldHongjuKoh
17July2009 LegalAdviser ·
UnitedStatesDepartmentofState
-46-
Written Comments of the United States of America