CASE CONCERNING
ACCORDANCE WITH INTERNATIONAL LAW OF THE UNILATERAL
DECLARATION OF INDEPENDENCE BY THE PROVISIONAL
INSTITUTIONS OF SELF-GOVERNMENT OF KOSOVO
REQUEST BY THE GENERAL ASSEMBLY OF THE UNITED NATIONS
FOR AN ADVISORY OPINION
WRITTEN STATEMENT
OF THE REPUBLIC OF AZERBAIJAN
"17" April 2009I. Introduction
1. The Provisional Institutions of Self-Government of Kosovo - part of the
Republic of Serbia under the United Nations administration pursuant to resolution
1244 (1999) of 10 June 1999 of the United Nations Security Council (hereinafter
referred to as the "Security Council") - unilaterally declared independence on 17
February 2008.
2. On 8 October 2008 the United Nations General Assernbly (hereinafter
referred to as the "General Assernbly") adopted resolution A/RES/63/3 in which,
referring to Article 65 of the Statute of the International Court of Justice
(hereinafter referred to as the "Court"), it requested the Court to render an advisory
opinion on the following question:
"Is the unilateral declaration of independence by the Provisional
Institutions of Self-Government of Kosovo in accordance with
international law?"
3. This resolution was approved by recorded vote of 77 in favour, including the
Republic of Azerbaijan (hereinafter referred to as "Azerbaijan"), to 6 against, with
74 abstentions.
4. In its Ortler dated 17 October 2008, the Court decided that "the United
Nations and its Mernber States are considered likely to be able to furnish
information on the question subrnitted to the Court for an advisory opinion". The
Court has fixed 17 April 2009 as the tirne-lirnit within which written staternents on
the question rnay be presented to the Court and 17 July 2009 as the tirne-lirnit
within which States and organizations having presented written staternents rnay
subrnitwritten cornrnents on the other staternents.
5. Azerbaijan, having regard to the aforernentioned Ortler of the Court of 17
October 2008 and to the fact that it is a Mernber State of the United Nations and by
virtue of Article 93, paragraph 1, of the United Nations Charter (hereinafter
referred to as the "Charter") is ipso facto a party to the Statute of the Court,
subrnitsthe present written staternent.
Il. Cornpetence of the Court
6. In accordance with Article 96, paragraph 1, of the Charter, the General
Assembly "may request the International Court of Justice to give an advisory
opinion on any legal question".
27. On this basis the General Assembly was duly authorized to request the
present advisory opinion on the legal question which clearly falls within the scope
of its activitiesunder the Charter.
8. The question on which an advisory opinion has been requested is clearly a
legal question formulated in accordance with Article 96, paragraph 1, of the
Charter and article 65 of the Statute of the Court. The question is "framed in terms
of law and raise1s] problems of international law" and is "susceptible of a reply
based on law".
9. Therefore, the Court has jurisdiction to render an advisory opinion on the
question that is put before it. Furthermore, Azerbaijan considers that there are no
"compelling reasons" exist for the Court to decline to give the requested opinion.
At the sarne time, "[b]y lending its assistance' in the solution of a problem
confronting the General Assembly, the Court would discharge its functions as the
2
principaljudicial organ of the United Nations".
III. Applicable legal principles
10. The Security Council, acting under Chapter VII of the Charter, adopted on
10 June 1999 resolution 1244 (1999), according to which Kosovo is administered
by an international civil presence (UNMIK), while security is provided by an
international security presence (KFOR).
11. The resolution outlined explicit guidelines and future steps for determining
the final status of Kosovo on the basis of a political settlement, in a political
process and through negotiations.
12. According to the resolution, the Security Council decided that the main
responsibilities of the international civil presence would include, inter alia,
"promoting the establishment, pending a final settlement, of substantial autonomy
and self-government in Kosovo" (para. 11(c)).
13. While deciding on the international administration of Kosovo, the Security
Council reaffirmed "the cornrnitmentof all Member States to the sovereignty and
territorial integrity of the Federal Republic of Yugoslavia[/Republic of Serbia] and
the other States of the region" (preamble para. 10 of resolution 1244 (1999) and
Annexes 1and 2 thereto).
1
2Ibid., p. 21, para. 23.tern Sahara, ICJ Reports, 1975, p. 18, para. 15.
314. There are divergent interpretations of resolution 1244 (1999) and there is no
unanimity within the Security Council and among Member States of the United
Nations in general as to the issue under the examinationby the Court.
15. However, it is the view of Azerbaijan that the relevant legal regime
established for Kosovo by resolution 1244 (1999) can only be modified or
terminated by the Security Council.
16. Both the divergences pertaining to the interpretation of resolution 1244
(1999) and the lack of progress in political negotiations between the parties
concerned cannot be introduced asjustifying unilateral actions.
17. Furthermore, neither the specific circumstances which obviously make
Kosovo a case sui generis or, in other words, unique, nor resolution 1244 (1999)
provide any ground for actions that are not based on a mutually-acceptable
settlement.
18. It is essential to emphasize that States are at the heart of the international
legal system and the prime subjects of international law, while the principle of the
protection of the integrity of the territorial expression of States is bound to assume
major importance.3
19. Territorial integrity and State sovereignty are inextricably linked concepts in
international law. They are foundational principles. Unlike many other norms of
international law, they can only be amended as a result of a conceptual shift in the
classical and contemporary understanding of international law.
20. The Court clearly underlined that "[b]etween independent States, respect for
4
territorial sovereignty is an essential foundation of international relations".
21. The juridical requirement, therefore, placed upon States is to respect the
territorial integrity of other States. It is an obligation flowing from the sovereignty
of Statesand from the equality of States.
22. It is, of course, important to note that this obligation is not simply to protect
territory as such or the right to exercisejurisdiction over territory or even territorial
3See, generally, J.Castellino and STille to Territory in International Law: A Temporal Aldershot,
2002; G.Distefano,'Ordre International entre Légalité et Effectivité: Le Titre Juridique dans le Contentieux
Territorial,ris, 2002; R.Y.JenningsThe Acquisition of Territory in InternationalManchester, 1963;
M.N.Shaw, "TerritoryinInternational Law", 13 Netherlands YIL, 1982, p. 61; NClaims to Territory in
International Law and RelatioLondon, 1945; J.GottmanThe Significance of TerriCharlottesville, 1973;
4nd S.P.Sharma,erritorialAcquisition, Disputes and InternatiThe Hague, 1997.
Corfu Channelcase, ICJ Reports, 1949,p. 35.
4sovereignty, the norm of respect for the territorial integrity of States imports an
additional requirement and this is to sustain the territorial wholeness or definition
or delineation of particular States. ltis a duty placed on all States to recognise that
the veryterritorial structure and configurationof a State must be respected.
23. The principle of respect for the territorial integrity of States constitutes a
foundational norm in international law buttressed by a vast array of international,
regional and bilateral practice. This norm is enshrined in international instruments,
binding and non-binding, ranging from United Nations resolutions of a general and
a specificcharacter to international multilateral,regional and bilateral agreements.
24. International law is unambiguous in not providing for a right of secession
from independent States. Otherwise, such a fundamental norm as the territorial
integrity of States would be of little value were a right to secession under
internationallaw be recognised as applyingto independent States.
25. International law does not create grounds and conditions for legitimizing
unilateral or non-consensual secession in any sense. Such secession from an
existing sovereign State does not involve the exercise of any right conferred in
international law and hence has no place within the generally accepted
international legal norms and principles which apply within precisely identified
limits.
26. The United Nations has always strenuouslyopposed any attempt at partial or
total disruption of the national unity and territorial integrity of a State. The United
Nations Secretary-General has emphasised that "as an international organisation,
the United Nations has never accepted and does not accept and I do not believe it
will ever accept the principle of secession of a part of a member State". As one 5
leading author has written, "[s]ince 1945 the international community has been
extremely reluctant to accept unilateral secession of parts of independent states if
the secession is opposed by the govemment of that state. In such cases the
principle of territorial integrity has been a significant limitation. Since 1945 no
state which has been created by unilateral secession has been admitted to the
UnitedNations against the declared wishes of the predecessor state". 6
27. Against this background, one should be seriously concerned about the
attempted unilateral solution of the Kosovo problem through the declaration of
independenceby its Provisional Institutions of Self-Govemment.
5UNMonthly Chronicle (February 19p.36.
6J.Crawford, Creation of States in International Laed., 2006, p. 390.
528. AH States are bound by the generally accepted nonns and principles of
international law, including in particular those related to respect for the sovereignty
and territorial integrity of States, inviolability of their internationally recognized
borders and non-interference in their internal affairs.
29. Azerbaijan believes that faithful observance of the generally accepted nonns
and principles of international law concerning friendly relations and cooperation
among States and the fulfillment in good faith of the obligations assumed by States
are of the greatest importance for the maintenance of international peace and
security.
Azerbaijan reserves the right to supplement this written statement as necessary and
to participate in the further proceedings.
"17" April 2009
Dr. Fuad Iskandarov
Ambassador of the Republic of Azerbaijan
to the Kingdom of the Netherlands
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Written Statement of Azerbaijan