EMBASSY OF JAPAN
THE NETHERLANDS
Mr.Philippe Couvreur
Registrar
International Court of Justice
Camegieplein 2
2517KJ The Hague
17April 2009
Dear Mr.Couvreur,
I have the honour to submit herewith to the International Court of Justice the
written statement of Japaneseernment in response to the Court's Ortler of 17
October 2008 in èonnection with a request from the General Assembly of the United
Nations for an advisory opinion on the "Accordance with International Law of the
Unilateral Declaration of Independence by the Provisional Institutions of
Self-Government of Kosovo".
I availmyself of this opportunity to renew to the International Court of Justice
the assurances of my highest consideration.
~/,Ju·~ ~~
Minoru SHIBUYA
Ambassador of Japan to the Netherlands Written Statement of the Government of Japan
On 8 October 2008, at its 63 rd session, the United Nations General
Assembly adopted resolution 63/3, whereby it requested the International Court of
Justice to give an advisory opinion on the question, "Is the unilateral declaration of
independence by the Provisional Institutions of Self·Government of Kosovo in
accordance with international law?" In its Ortler dated 17 October 2008, the Court
decided that the United Nations and its Member States may submit written
statements on the question and fixed 17April 2009 as the deadline for submission.
The Registrar of the Court notified Japan of said Ortler by a letter dated 20
October 2008 addressed to the Ambassador of Japan ta the Kingdom of the
Netherlands, in accordance with Article 66, paràgraph 2, of the Statute of the
Court.
The Government of Japan abstained from voting on the above·mentioned
General Assembly resolution because it considered this issue to have a strong
political aspect and was therefore doubtful that the request for an advisory opinion
of the Court would contribute to the stability of Kosovo and the region. The
Government of Japan nevertheless wishes to submit this Written Statement, in
order to make clear Japan's views on the legal question which is now before the
Court, as an expression of its trust in and commitment ta the Court and
international justice.
1. The question on which an advisory opinion is reguested
The Court should limit itself to giving an advisory opinion on the question
that has been posed by the General Assembly.
The question on which an advisory opinion is requested is: "Is the
unilateral declaration of independence by the Provisional Institutions of
Self·Government of Kosovo in accordance with international law?" It is very
specifi.c and strictly focused. Based on the wording of the question asked, what is
being requested of the Court concerns only the issue ofwhethe;r or not the issuance
1of Kosovo's declaration of independence itself is prohibited by any rule of
international law. We consider that the issue of the present and future status of
Kosovo, namely, whether or not Kosovo is a State, is essentially outside the scope of
the question, and that the Court would be going beyond the request if it were to
consider that issue.
On the other hand, in view of the political circumstances under which the
request for an advisory opinion was made, it is clear that the real question at stake
behind the request is the legal assessment on the act of secession and
independence of Kosovo, namely, whether Kosovo can be considered as a State or
not. Consequently, it would be neither sufficient nor useful to address only the
issue of the legality of the issuance of Kosovo's declaration of independence per se,
without providing our legal assessment on factual events pertaining to the
secession and independence of Kosovo.
In this Written Statement, we first address the legality of Kosovo's
declaration of independence itself, which is the substance of the main question
asked. We then move on to examine and state our views on how we assess the act of
secession and independence ofKosovo.
The question of the legality of the act of recognition by foreign States is
not a question pu,t to the Court for an advisory opinion. We thus do not take up that
issue in this Statement.
2. Declaration of independence as a factual event
A declaration of independence is a factual event. General international
law is silent on the legality of the declaration of independence. For the formation of
a State, international law generally requires that an entity shall meet the
conditions of Statehood, namely an entity holds an effective government which
governs a permanent population within a defined territory. The question of
whether an entity fulfils these requirements usually cornes into play in the context
and in the phase of recognition by other States. However, a declaration of
independence itself is neither a requirement of Statehood, nor does it presuppose
2 fulfillment of the above·mentioned requirements of Statehood beforehand. Thus, a
declaration of independence is in itself a factual event and is not legally relevant
under international law; nor does international law have any rule or principle
which governs the effectiveness of the issuance of a declaration ofindependence.
3. Legal assessment of the act of secession and independence of Kosovo
As mentioned above, the declaration of independence itself is a factual
event. However, it would not be a useful exercise to focus only on Kosovo's
declaration of independence itself as a factual event, and examine its legality
without taking account of the political circumstances which led to the request for
an advisory opinion. Therefore, Japan wishes to consider next how we can legally
assess the act of secession and independence of Kosovo, namely whether or not
Kosovo can be considered as a State.
(1) General international law
International law provides that, in order to attain secess10n and
independence as a State, an entity shall meet the requirements of Statehood,
namely; an entity holds an effective government which governs a permanent
population within a defined territory. The issue of whether these requirements
are fulfilled in many cases becomes evident through recognition by other States or
admission into international organizations. The issue of recognition, however, will
not be ta.ken up in this Statement, as it is a subject which lies outside the scope of
the question put to the Court.
International law, in general, neither approves nor prohibits secession or
independence by an entity which meets the requirements of Statehood. What we
need to be mindful of is that in judging whether or not an entity fulfills the
requirements of Statehood under international law, not only should we assess the
existing facts concerning the entity, but we should also carefully _examine the
process by which the entity came to meet each requirement. For example, the
process of independence and secession may be considered as not being consistent
3 with international law if that process is accompanied by a violation of the legal
obligation of non·use of force.
Of particular relevance in this context is the so·called "right of peoples to
self·determination". It is stated in Article 1 of Part I of the "International
Covenant on Economie, Social and Cultural Rights" and in the corresponding
article of the "International Covenant on Civil and Political Rights", bath of 1966,
that by virtue ofthis right of self·determination, ail peoples freely determine their
political status and freely pursue their economic, social and cultural development.
Moreover, the Court has recognized this right of peoples to self·determination as
an established principle of international law 1.
At the same time, however, this so·called right of self·determination has
been interpreted in different ways. Its definition, content and scope thus remain
yet to be established, and interpretations of this right in State practice, as well as
in doctrine, vary. It is no longer clisputed that colonial peoples' right of
self·determination, to seek liberation from imperialist States governing them and
attain independence or separate political status, is legally established. However,
no provision in the above·mentioned International Covenants or other legal
documents provides the general right of a group ofpeople within a sovereign State,
outside the colonial context, to seek secession from the State to which they belong
and to create their own independent State. The doctrine is not unanimous as to
the relations between the right to self·determination and the principle of
territorial integrity of sovereign States.
The case of Kosovo can be regarded a case outside the colonial context,
and as inclicated above, we cannot arrive at an appropriate legal interpretation
simply by looking into the relevance of the right of self·determination. Rather,
what should be duly noted in the process leading up to Kosovo's declaration of
1 See, Legal Consequences for States of the Continued .Presence of South Africa in
Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970),
Advisory Opinion of 21 June 1971, ICJ Reports 1971, pp. 31·32, paras. 52·53 ; Western
Sahara, Advisory Opinion of 16 October 1975, ICJ Reports 1975, pp. 31·33, paras. 54·59;
East Ti.m.or(Portugal v.AustraliaJ, Judgment of 30 June 1995, ICJ Reports 1995, p. 102,
para. 29.
4 independence is the process of continuous engagement by the international
community, in particular the United Nations, as will be described in section (3)
below.
(2) Legal assessment in light of Security Council resolution 1244
Amongst the United Nations documents concerning Kosovo, United
Nations Security Council (UNSC) resolution 1244, adopted at the end of the
conflict in 1999, is most relevant.While focusing mainly on providing a legal basis
for the engagement of the United Nations in the administration of the territory of
Kosovo through the establishment of interim government institutions, UNSC
resolution 1244 contains no language indicating any conclusion on the future legal
status of Kosovo. Nor is there any language under which it may be understood that
Kosovo's independence is precluded.
The resolution states that the United Nations Interim Administration
Mission in Kosovo (UNMIK) "will provide transitional administration while
establishing and overseeing the development of provisional democratic
self·governing institutions" (para. 10), and that its responsibility primarily rests
with "facilitating a political process designed to determine Kosovo's future status,
taking into account the Rambouillet accords," "pending a final settlement" (para.
11). Accordingly, it is considered that the resolution applies only to the period of
transition until the final status of Kosovo is settled and does not preclude a
declaration of independence by Kosovo (followed by its secession and
independence).
(3) Legal assessment in light of the sui generis nature of the case of Kosovo
The process leading to Kosovo'sfulfillment of the conditions for Statehood
is characterized, as detailed in paragraphs (a)·(d) below, by a continuous
engagement on the part of the international community, in particular the United
Nations. And it is this process that has made the issue of Kosovo a special case (sui
generis). The process of the secession and independence of Kosovo is justified in
5light ofits sui generis nature. Regardless ofthe divergent positions of States on the
secession and independence of Kosovo, the sui generis nature of the case of
Kosovo is widely recognized in the international community, as evidenced by the
Report of March 2007 by Mr. Martti Ahtisaari, the Special Envoy of the
Secretary·General for the Future Status Process for Kosovo 2,the Declaration of
Independence by Kosovo 3, the Conclusions on Kosovo by European Union Foreign
Ministers dated 18 February 2008 4,as well as statements of Member States of the
Security Council in its session held after the Declaration of Independence by
5
Kosovo •
(a) Under the 1974 Constitution of the Socialist Federal Republic of Yugoslavia,
which was comprised of six republics and two autonomous provinces, Kosovo
was an autonomous province within the Republic of Serbia, which enjoyed a
considerable degree of autonomy, almost equivalent to that of the six republics.
This situation continued until Serbia revoked the autonomy of Kosovo in 1989.
The dissolution of the former Yugoslavia began with the declarations of
independence by Slovenia and Croatia in 1991, followed by an intense ethnie
confl.ict and human rights violations in many parts of the region. The armed
confl.ictended in 1995 as a result of the mediation efforts by the international
community, _including the United Nations, and the former Yugoslavia was
divided into five independent States. In the course of the dissolution of the
former Yugoslavia, Kosovo Albanians, who constituted the majority of the
population in Kosovo and who had been harboring anti-Serbian feelings since
the revocation of Kosovo's autonomy, increased their demands for independence,
leading to the fierce ethnie conflict between Kosovo Albanians and Serbian
2
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 (UN S/2007/168 of 26 March 2007), p. 4, para.15.
3 Declaration of Independence by the Assembly of Kosovo, 17 February 2008, paragraph 6
ofthe preamble.
4
EU Council (External Relations), Conclusions on Kosovo, 18 February 2008, final
paragraph.
5 UN Doc. S/PV.5829, 18 February 2008.
6 forces whlch resulted in serious human rights violations and generated a large
number of refugees and internally displaced persans.
(b) In 1999, in response to the Serbian refusal to accept the peace proposal on
Kosovo proposed by the international community; an air campaign was begun
by NATO against Serbia, in an effort to prevent further expansion of the
humanitarian catastrophe in Kosovo. Subsequently, as a result of the
mediation efforts by the United Nations and other actors, the Serbian security
forces withdrew from Kosovo, and the United Nations Security Council adopted
resolution 1244, whlch for the maintenance of security in Kosovo, authorized
the establishment of a United Nations mission for an interim administration
and of an international security force led by NATO.
(c) Avoiding effective control by Serbia since 1999, Kosovo has established and
strengthened its interim government institutions by holding elections with the
assistance of the international community and establishing its own assembly,
presidency and government. The majority of the population has indicated that
they aspire to the early independence of Kosovo.
(d) In2005, the Secretary·General of the United Nations appointed Mr. Ahtisaari,
former President of Finland, as bis Special Envoy for the Future Status Process
for Kosovo. Mr. Ahtisaari mediated negotiations between the parties concerned,
including Kosovo and Serbia. In March 2007, he submitted to the United
Nations bis proposal, whlch recommended Kosovo's independence under the
supervision of the international community. Kosovo accepted thls proposal
recommending its independence, but Serbia rejected it. In the second half of
2007, after the Security Council failed to reach consensus on approval of the
proposal, a "troïka'' consisting of negotiators from the European Union, the
United States and Russia made renewed efforts to settle the status issue, but
they failed to produce any substantive progress. This deadlock led the EU to
conclude that a meaningful settlement through negotiations was longer
feasible. Following thls series of developments, Kosovo, considering that a
continuation of further negotiations would not produce any meaningful results,
7 proclaimed its independence in February 2008.
The legal assessment of the secession and independence of Kosovo, ta a
large extent, depends upon the sui generis nature of the case which has resulted
from the process of active and continuous engagement by the international
community, in particular the United Nations. Accordingly; we cannot, and should
not, deduce any general rule or principle of international law from the legal
assessment of the case of Kosovo.
4. Conclusion
As we have seen, the declaration of independence by Kosovo is a factual
event, and there exists no rule of international law which governs it, as it is not
legally relevant.
Furthermore, the secession and independence of Kosovo is justified in
consideration of itssui generis nature, and does not contravene any applicable rule
ofinternational law, including UNSC resolution 1244. Therefore, the declaration of
independence by Kosovo can be considered as being in accordance with the legal
assessment of the act of secession and independence of Kosovo.
On a final note, Japan wishes ta add that any advisory opinion on this
question which may be given by the Court should not be regarded as a precedent
establishing a general principle on the secession and independence of a State.
8
Written Statement of Japan