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 Advisory Opinion)
Order of 17 October 2008
WRITTEN STATEMENT OF THE GOVERNMENT OF
THE REPUBLIC OF ALBANIA
April 2009 TABLE OF CONTENTS
PART I INTRODUCTION ........................................................................
....................4
PART II BACKGROUND ........................................................................
.....................5
A) Events Preceding the Violent Break-Up of the Socialist Federal Republic of Yugoslavia5
B) Post-1989 Developments in Kosovo........................................................................
..........7
C) The February-March 1999 Rambouillet Accords ............................................................16
D) NATO’s Military Intervention in Kosovo – Operation ‘Allied Force’ 24 March – 10 June
1999........................................................................
..................................................................17
E) Resolution 1244 (1999) and the Establishm ent of the United Nations Interim Mission in
Kosovo ........................................................................
.............................................................20
F) The Internationally Supervised Final Status Negotiation Process...................................21
G) The Declaration of Independence by Kosovo on 17 February 2008................................23
PART III OBJECTIONS TO JURISDICTION ..........................................................25
A) The Declaration of Independence is a Dom estic Matter not Regulated b y International
Law ....................................................................
......................................................................25
B) The General Assembly Was Prevented by Article 12, Paragraph 1 of the UN Charter to
Request the Advisory Opinion........................................................................
.........................27
PART IV PROPRIETY AND THE EXERCISE OF DISCRETION ...................30
A) The Court Should Exercise Its Discretion and Decline to Give the Advisory Opinion...30
B) There Must not Be a Contradiction between the Exercise of Jurisdiction of the General
Assembly and the Security Council........................................................................
.................30
C) The Security Council and the General Asse mbly Have Left it Open to States to
Recognise Kosovo........................................................................
............................................31
D) The Secretary-General of the United Nations and the Security Council Have Recognised
the New Situation in Kosovo ........................................................................
...........................32
E) The Advisory Opinion Concerns a Bilateral Dispute between Kosovo and Serbia.........35
F) The Advisory Opinion Cannot Contribute to the Exercise of Jurisdiction by the General
Assembly........................................................................
..........................................................36
PART V IS THE DECLARATION OF INDEPENDENCE BY KOS OVO IN
ACCORDANCE WITH INTERNATIONAL LAW? ................................................38
A) The Right to Self-Determ ination Is Firm ly Established in I nternational Law and in the
Case Law of the Court........................................................................
......................................40
B) The Institutionalised Policy of Repre ssion and Gross and W idespread Human Rights
Violations against Kosovar Albanians........................................................................
.............44
C) Prolonged Internationally Supervised Negotiations Failed to Produce an Agreement....48
D) Resolution 1244 of the Security Council Le ft Open the Form of the Final Status
Settlement and the Manner of Its Expression........................................................................
...50
E) The Declaration of Independence W as Adopted by the Freely and De mocratically
Elected Representatives of Kosovo........................................................................
..................52
F) Respect and Protection of the Human Rights of the Minorities in Kosovo’s Constitution
and Legal Framework........................................................................
.......................................53
2G) Kosovo’s Future and Friendly Relations Policies............................................................54
PART VI CONCLUSIONS AND SUBMISSIONS ..................................................56
3 PART II BACKGROUND
A) Events Preceding the Violent Brea k-Up of the Socialist Federal
Republic of Yugoslavia
4. The state entity known as Yugoslavia changed its nam e and its con stitutional
framework several times from the end of the Second World War to the start of its
violent break-up in the early 1990s. According to the 1946 Constitution of the
Federal People’s Republic of Yugosla via, Kosovo was part of the People’s
3
Republic of Serbia and was given th e status of an autonomous region. In 1963,
the country’s nam e was changed to Soci alist F ederal Repub lic of Yugoslavia
(hereinafter SFRY). According to the 1963 Constitu tion, Kosovo’s status was
transformed from that of an autonom ous region to that of an autonom ous
province.4
5. In 1974, th e Constitution of the Socialis t Federal Republic of Yugoslavia was
enacted to replace the 1963 Constitu tion. The SFRY was defined by the 1974
Constitution as a state community of voluntarily united nations and their socia list
republics, as well as the autonom ous provinces of Kosovo a nd Vojvodina, which
had representation in both federal level and in the level of the Socialist Republic of
5
Serbia. According to the 1974 Constitution, Kosovo had its own Constitution, the
Constitutional and Su preme Courts, its o wn Parlia ment and Executiv e
Committee. 6 It had its own representatives in both the SFRY Cham ber of
3Article 2 of the 1946 Constitution, in M. Weller, The Crisis in Kosovo 1989-1999, Documents and Analysis
Publishing Ltd, September 1999, p. 52.
4
See Articles 111 and 112 of the 1963 Constitution in M. Weller, The Crisis in Kosovo 1989-1999, Documents
and Analysis Publishing Ltd, September 1999, p. 53.
5Article 1 of Constitution of the Socialist Federal Republic of Yugoslavia, in H. Krieger, The Kosovo Conflict
and International Law: An An alytical Do cumentation 1974-1999: An Anal ytical Documentation 1974-1999
(Cambridge International Documents Series), Cambridge University Press, 2001, p. 2 (hereinafter Krieger) and
in M. Weller, The Crisis in Kosovo 1989-1999, Documents and Analysis Publishing Ltd, September 1999, p. 54
(hereinafter Weller). This Article reads: “The Socialist Federal Republic of Yugoslavia is a federal state h aving
the form of a state community of voluntary united nations and their Socialist Republics and of the Socialist
Autonomous Provinces of Vojvodina and Kosovo, which are constituent parts of the Republic of Serbia, based
on the power of self-management by the working class and all working people; it is at the same time a socialist
self-management democratic community of working people and citizens and of nations and nationalities having
equal rights.”
6Article 4 of the 1974 Constitution reads: “The Socialist Autonomous Province are autonomous socialist self-
managing democratic socio-political communities based on the power of self-management by the working class
and all working people, in which the working people, nations and nationalities realize their sovereign rights, and
5 Republics and Provinces and the Federal Chamber and was also represented in the
Federal Presidency.
6. As the International Criminal Tribunal for the Former Yugoslavia (ICTY) noted in
its judgment of 26 February 2009 in the Milutinović et al case, “This Constitution
gave the provinces a significant degree of autonomy, which included the power to
draft their own constitutions, to h ave their own constitutional courts, to have a
representative in the SFRY Presidency in Belgrad e, an d the righ t to initia te
proceedings before the Constitu tional Courts of Yugoslavia and S erbia. In
addition, they were represented, along with the republics, in the SFRY Chamber of
Republics and Provinces and the Federal Chamber, which was the legislative body
with the power to amend the SFRY Constitution.” 7
7. According to Article 245 of the 1974 Constitution the na tions and nationalities of
8
the SFRY had equal rights. Further, it is noteworthy th at under Article 5 of that
Constitution, the territory of a Republic could not be altered without the consent of
that Republic, and the territory of an Au tonomous Province – without the consent
9
of that Autonom ous Province. That was reinforc ed in the last parag raph of that
Article which reads: “B oundaries between the Republics m ay only be altered on
the basis of mutual agreement, and if the boundary of an Autonomous Province is
10
involved – also on the basis of the latter’s agreem ent.” That means that, among
other rights, the Autonomous Provinces enj oyed jurisdiction over their territory at
the same level as the Republics constituting the federal state.
when so specified by the Constitution of the Socialist Republic of Serbia in the common interest of the working
people, nations and nationalities of that Republic as a whole, they do so also within the Republic.”, in Krieger,
supra note 5, p. 3.
7ICTY, Prosecutor v. Mi lan Milutinović, Nikola Šai nović, Dragoljub Ojdanić, Nebrojša Pavković, Vladimir
Lazarević, Sreten Lukić (hereinafter Prosecutor v. Milutinović et al.), Case No. IT-05-87-T, Judgment of 26
February 20 09, Vo l. I , pp. 83 -84, par. 213 , av ailable on th e I CTY website:
http://www.icty.org/case/milutinovic/4#tjug (last accessed on 15 April 2009).
8See Krieger, supra note 5, p. 3.
9
Ibidem.
10Article 5 of the Constitution of the So cialist Federal Republic of Yugoslavia, Official Gazette of SFRY, No.
9/1974.
6 B) Post-1989 Developments in Kosovo
8. In 1989, the Serbian authorities revoked Kosovo’s autonomy against the will an d
the consent of the people of Kosovo. 11 The March 1989 am endments to th e
Constitution of the Socialist Republic of Serbia violated the letter and the spirit of
the 1974 C onstitution of the SFRY, especially the p rinciple of equality between
12
nations and nationalities. This was done notwithstanding Article 145 of the 1974
Constitution of the Socialis t Republic of Serbia which provided that nations and
nationalities within Serbia shall be equal. The actions undertaken by the Serbian
authorities to forcibly assim ilate Kosovo into Serbia marked the starting point of
13
the break-up of the SFRY. Besides triggering a strong public reaction in Kosovo,
expressed in widely attended dem onstrations, these ac tions aim ed at lim iting
Kosovo’s autonomous powers caused a feeling of uneasiness a mong the Yugoslav
14
Republics concerning issues of political power-sharing. That was reinforced by
other actions such as Serbia’s plan to im pose custom duties on goods entering
Serbia from other Yugoslav republics a nd to withhold Serbia’s payment to the
Federal Republic, and the demands of the Serbians living in South-Eastern Croatia
15
for an ‘autonomous state’.
9. On 3 June 1990 Serbia approved the law on the action of Republic bodies
in
16
special circum stances in Kosovo. On 5 July 1990 Serbia passed the law on
17
invalidation of the activity of the Assembly of Kosovo and its governm ent. On
11
See inter alia Krieger, supra note 5, p. 1. See al so ICTY, Prosecutor v. Limaj et al, Case N o. IT-03-66,
Judgment of 30 November 2005, pp. 16-17, pars. 38-40.
12The 1989 amendments and the laws passed afterwards with regard to Ko sovo by the Serb authorities went
against the basic principles of the 1974 Constitution of the SFRY, namely national freedom and independence,
the brotherhood and unity of th e nations and nationalities, a system of socio-economic relations and uniform
foundations for a political system which will ensure the common interests of the working class and all working
people and the equality of the nations and nationalities (emphasis added). Article 206 of the 1974 SFRY
Constitution stated that republican constitutions and the provincial constitutions may not be contrary to the
SFRY Constitution.
13Tho se actions w ere preceded by th e 1986 Memorandum of t he Serbian Academy of Arts and Sciences
(SANU), which was a blueprint for the aggressive policies which brought about the division and disintegration
of the SFRY. This memorandum contained highly inflammatory nationalistic rhetoric against ethnic Albanians.
14See R. Lukic and A. Lynch, Europe from the Balkans to the Urals: The Disintegration of Yugoslavia and the
Soviet Union, SIPRI, Oxford University Press: New York, 1996, p. 151-162.
15
16A. Cassese, Self-Determination of Peoples: A Legal Reappraisal, Cambridge University Press, 1995, p. 268.
Law on t he Actions of Republic Agencies under Special Circumstances, 26 J une 1990, Official Gazette of
Socialist Republic of Serbia, 33/90, in Weller, supra note 5, pp. 60-61.
17Law Terminating Work of the SAP of Kosovo Assembly and the Executive Council, 5 July 1990, in Weller,
supra note 5, p p. 61-62. See also Serb Assembly Regulation on Implementing Law Terminating Work of SAP
Kosovo Assembly and Executive Council, 13 July 1990, ibid., p. 62.
7 18
26 July 1990 Serbia passed the law on labour relations in special circumstances.
On the basis of that law, 135 000 Albani an workers were expelled from their
19
jobs. Taken togethe r, these laws had the ef fect tha t pu blic ac tivities in the
Albanian language were banned, starting from education, culture, science, and
media, while Kosovar Albanian employees working in institutions such as schools,
university, health institutions, media, police and other relevant sectors were fired
en masse.
10. Reacting to the revocation of the autonom y by the Serbian authorities, 114 out of
118 m embers of the Assem bly of Kos ovo approved the Declaration of the
Independence of Kosovo on 2 J uly 1990. 20 This declaration preceded the
Constitution of the Republic of Kosovo, adopted on 7 Septem ber 1990. An
independence referendum was also organized in Kosovo from 26 to 30 Septem ber
1991, following the abolition of Kosovo’s au tonomous status by Serbia in 1989.
Of 87 per cent of the popul ation that took part in the referendum, 99.87 per cent
voted for the independence of Kosovo. 21 Though the Serbian police did everything
it could to prevent this referendum, out of an estim ated number of 1 051 357
citizens of Kosovo with a right to vote, 914 802 or 87.01 per cent voted, and of
these 913 705 or 99.87 per cent voted in favour. 22
11. Two laws adopted in 1992 made Serbian the language of instruction in Kosovo for
both elementary and secondary schools. 23Serbia stopped financing education in
the Albanian language. By March 1991, 21 000 teachers had been sacked from
18
Law on Labour Relations under Special Circumstances, Official Gazette of the Republic of Serbia, No. 22/91,
in Weller, supra note 5, pp. 62-63.
19ICTY, Prosecutor v. Limaj et al, Case No. IT-03-66, Judgment of 30 November 2005, p. 16, par. 39.
20
21See inter alia Weller, supra note 5, pp. 17 and 64-65.
See inter alia D. Bethlehem and M. Weller (eds.), The ‘Yugoslav’ Crisis in International Law: General Issues
Part I, Cambridge International Documents Series Volume 5, C ambridge University Press, 1997, p. xxx; N.
Malcolm, Kosovo: A Short History, Macmillan Publishers Ltd.: London, 1998, p. 347 (hereinafter Malcolm). See
also ICTY, Prosecutor v. Limaj et al, Case No. IT-03-66, Judgment of 30 November 2005, p. 17, par. 42.
22See Weller, supra note 5, p. 72. The Central Board of Kosova for the Conduct of the Referendum noted that
on diverse grounds and for diverse reasons 136,555 citizens, i.e. 12.99% of the citizens of Kosova, with the right
to vote, did not come out in the Referendum.
23
See Elementary School Law, Official Gazette of the Republic of Serbia, No. 50/92 and Secondary School Law,
Official Gazette of the Republic of Serbia, No. 50/92, in Weller, supra note 5, p. 63. It is important to note also
the High School Law, ibidem.
8 24
their jobs. Similarly, 1885 doctors and other me dical staff also lost the ir jobs.
Systematic repression and violation of basic hum an rights and fundam ental
freedoms was a daily occurrence in Kos ovo. It is reported that between 1990 and
1995 over three hundred thousand Kosovar Alba nians had left Kosovo for fear of
persecution or lack of econom ic opportunities as a consequence of discrim inatory
state policies.25
12. From 1992 to 1998 the General Assem bly and the Security Council passed
numerous resolutions, acknowledging and condemning persistent hum an rights
26
violations that were taking place in Kosovo. In its Resolution 48/153 of 20
December 1993, while expressing grave con cern reg arding the human rights
situation in Kosovo, the General Assem bly strongly condemned: “[i]n particular
the measures and practices of discrimination and the violations of the human rights
of the ethnic Albanians of Kosovo, as well as the large-scale repression committed
by the Serbian authorities, including: (a) Police brutality against ethnic Albanians,
arbitrary searches, seizures and arrests, torture and il l-treatment during detention
and discrimination in the adm inistration of justice, which leads to a clim ate of
lawlessness in which crim inal acts, particularly agains t ethnic Alban ians, tak e
place with impunity; (b) The discriminatory removal of ethnic Albanian officials,
especially from the police and judiciar y, the m ass dismissal of ethnic Albanians
from professional, administrative and ot her skilled positions in State-owned
enterprises and public institu tions, including teachers from the Serb -run school
system, and the closure of Albanian high schools and universi ties; (c) Arbitrary
imprisonment of ethnic Alba nian journalists, the clos ure of Albanian-language
24See inter alia D. Kostovicova, Parallel Worlds: Response of Kosovo Albanians to Loss of Autonomy in Serbia,
1989-1996, Keele University Press, pp. 33-35.
25
See inter a lia In ternational Crisis Gro up, Kosovo Sprin g R eport, 20 M arch 1 998, p. 5, avai lable at :
http://www.crisisgroup.org/library/documents/report_archive/A400178_200… (last accessed on 15 April
2009); Minorities At Risk Project (University of Maryland’s Center for International Development and Conflict
Management) Chronology f or K osovo Al banians i n Yug oslavia, available at:
http://www.cidcm.umd.edu/mar/chronology.asp?groupId=34501 (last accessed on 15 April 2009). The relevant
paragraph reads: “Ethnic Albanians continued to be forced out of jobs controlled by State owned enterprises in
the month of March. Serbian militia, led by Zeljko Raznjatovic, increased harassment of Kosovo Albanians in
what was termed by Kos ovar leaders to be ‘ethnic cleansing in the quiet’. The resu lts were alleg ed Albanian
emigration from Kosovo reported to be up to 500,000.”
26
For the General Assembly Resolutions see inter alia Krieger, supra note 5, pp. 15-25, Weller, supra note 5,
pp. 1 25-132. For t he Sec urity C ouncil R esolutions see inter a lia Weller, pp . 185-193; Security Co uncil
Resolutions Co ncerning th e Situation Pursuant to Reso lution 116 0 ( 1998) av ailable at:
http://www.un.org/Docs/sc/committees/res1160/1160ResEng.htm (last accessed on 15 April 2009).
9 mass media and the discrim inatory removal of ethnic Albanian staff fr om local
radio and television stations; (d) Repression by the Serbian police and military.”
13. In that same resolution the Gene ral Assembly also urged the autho rities in the
Federal Republic of Yugoslavia” (a) To take all necessary measures to bring to an
immediate end the human rights violations inflicted on the ethnic Albanians in
Kosovo, including, in particular, discrim inatory measures and practices, arbitrary
detention and the use of torture and othe r cruel, inhuman or degrading treatm ent
and the occurrence of summary executions ; (b) To revoke all discrim inatory
legislation, in particular that which has entered into force since 1989; (c) To re-
establish the democratic institutions of Kosovo, includ ing the Parliament and the
judiciary; (d) To resume dialogue with the ethnic Albanians in Kosovo, including
under the auspices of the International Conference on the Former Yugoslavia.”
14. In its Resolution 49/204 of 23 Dec ember 1994, the General Assem bly noted the
police brutality against ethnic Albanians, the killing of ethnic Albanians resulting
from such violence, arbitrary searches, seizures and arrests, forced evictions,
torture and ill-treatm ent of detainees and discrim ination in the adm inistration of
justice; discriminatory and arbitrary dism issals of ethnic Albanian civil servants,
notably from the ranks of the police and the judiciary, mass dismissals of ethnic
Albanians, confiscation and expropriati on of their properties, discrim ination
against Albanian pupils and teachers, the closing of Al banian-language secondary
schools and university, as well as the closing of all Albanian cultural and scientific
institutions; the harassment and persecution of political parties and associations of
ethnic Albanians and their leaders a nd activities, m altreating and imprisoning
them; the in timidation and imprisonment of ethnic Alban ian journalists and the
systematic harassment and disruption of the news media in the Albanian language;
the dism issals f rom clinics and h ospitals of doctors and m embers of other
categories of the medical profession of Albanian origin; the elimination in practice
of the Albanian language, particularly in public adm inistration and services; the
serious and massive occurrence of discriminatory and repressive practices aimed at
Albanians in Kosovo, as a whole, resulti ng in widespread involuntary m igration;
and noting also that the Sub-Comm ission on Prevention of Discrim ination and
10 Protection of Minorities, in its reso lution 1993/9 of 20 August 1993, considered
that these measures and practices constituted a form of ethnic cleansing.
15. On 22 December 1995 the General Assem bly adopted Resolution 50/190, noting
various discrim inatory m easures taken in th e legisla tive, adm inistrative and
judicial areas, acts of viol ence an d arbitrary arres ts perpetrated ag ainst ethnic
Albanians in Kosovo and the continuing deterioration of the human rights situation
in Kosovo, including : Police bru tality agai nst ethnic Alb anians, the killing of
ethnic Albanians resulting from such viol ence, arbitrary s earches, seizures and
arrests, forced evictions, torture and ill-treatment of detainees and discrim ination
in the adm inistration of justice, includi ng th e r ecent trials of ethnic Albanian
former policemen; discriminatory and arbitrary dismissals of ethnic Albanian civil
servants, notably from the ranks of the police and the judiciary, mass dismissals of
ethnic Albanians, confiscation and expropriation of their properties, discrimination
against ethnic Albanian pupils and teac hers, the closing of Albanian-language
secondary schools and the university, as well as the closing of all Albanian cultural
and scientific institutions; the harassment and persecution of political parties and
associations of ethnic Albanians and their leaders and activities, their maltreatment
and im prisonment; th e intim idation a nd imprisonm ent of ethnic Albanian
journalists and the systematic harassment and disruption of the news m edia in the
Albanian language; the dism issals from clinics and hospitals of doctors and
members of other categories of the m edical profession of Albanian origin; the
elimination in practice of the Albani an language, particularly in public
administration and services; the serious a nd massive occurrence of discriminatory
and repressive practices aim ed at et hnic Albanians in Ko sovo, as a whole,
resulting in widespread involuntary migration.
16. On 12 Dece mber 1996 the General Assem bly adopted Resolution 51/111 on the
situation of hum an rights in Kosovo. In expressing its concern about the grave
human rights situation in Kosovo, the General Assembly stated that it:
“1. Condemns all violations of human rights in Kosovo, in particular repression of the
ethnic Albanian pop ulation and discri mination against them , as well as alacts of
violence in Kosovo; 2. Demands that th e authorities of the Federal Republic of
Yugoslavia (Serbia and Montenegro): ( a) Take all necessary measures to bring to an
11 immediate end all human rights violations against ethnic Alba nians in Kos ovo, in
particular the discriminatory measures and practices, arbitrary searches and detention,
the violation of the right to a fair tal and the practice of tort ure and other cruel,
inhuman or degrading tr eatment, and to re voke all discrim inatory legislation, in
particular that which has entered into force since 1989; (b) Release all political
prisoners and cease the persecution of political leaders and members of local human
rights organizations; (c) Allow the establishment of genuine democratic institutions in
Kosovo, incl uding t he parliam ent and the judiciary, and respect the will of its
inhabitants as the best means of prev enting the escalation of the conflict there; (d)
Allow the reopening of educational, c ultural and scientific institutions of the ethnic
Albanians; (e) Pursue constructive dialogue wit h the representatives of ethnic
Albanians of Kosovo […]”) .
17. In Resolution 52/139 of 12 Dece mber 1997 the General Assem bly expressed its
concern about all violations of human rights and fundamental freedoms in Kosovo,
in particular the repression of the et hnic Albanian population and discrim ination
against it, as well as acts of violence in Kosovo. It called upon the FRY
authorities: to take all necessary measures to bring to an immediate end all human
rights violations against ethnic Albanians in Kosovo, including, in particular,
discriminatory m easures and practices, arbitrary searches and detention, th e
violation of the right to a fair trial and the p ractice of torture and other cruel,
inhuman or degrading treatm ent, and to re voke all discrim inatory legislation, in
particular that which has entered in to force since 1989; to release all political
prisoners and to cease the persecution of political lead ers and m embers of local
human rights organizations; to allow the retu rn in safety and dignity of Albanian
refugees from Kosovo to their hom es; to allow the establishm ent of genuine
democratic institutions in Kosovo, including the parliament and the judiciary, and
to respect the will of its inhabitants as the best means of preventing the escalation
of the conf lict the re; to allow the reope ning of the educati onal, cu ltural and
scientific institutions of the ethnic Albanians.
18. In October 1997, the UN Special Rapporte ur on Hum an Rights in the form er
Yugoslavia, Elizabeth Rehn, visited Kosovo to investigate charges that Albanians
were being abused. At the end of her vi sit Rehn said she had found evidence that
Serbian police were guilty of “[b]rutalit y, with frequent use of torture” while
12 treating the arrested Albanians. On hearings held respectively on 6 May and 23
June 1998 the US President’s special e nvoy for the form er Yugoslavia, Robert
Gelbard told the Subcommittee on European Af fairs, Committee on International
Relations, that what Serbian forces were doing in Kosovo would amount to ethnic
cleansing. 28
19. Between 1989 and 1997 the situation in Kosovo continued to deteriorate. Ongoing
gross and widespread hum an rights violat ions and the dire econom ic conditions
facing the Kosovar Albanians had the effect of hardening their resistance towards
the Serb authorities. Against this background the liberation movement organised as
the Kosovo Liberation Army (KLA) started to gain ground. As the Tribunal for the
former Yugoslavia stated:
“Its activities aim ed at preparing the citizens of Kosovo for a liberation war, at
mobilizing the population throughout the entire territory, and at responding by armed
29
action to the acts of violence of the Serbian authorities.”
The KLA made its firs t public appearance in November 1997 and it continued its
armed resistance until the withdrawal of the Serb forces from Kosovo in June
1999. 30
20. On 27 Febr uary 1998 Serbian forces, incl uding armoured units and air support,
attacked several villages in the Dren ica region. A Hum an Rights Watch report
concluded that a large num ber of ci vilians, including dozens of wom en and
31
children, died in the attack. Many reports by UN organs and agencies provide
27Report of the High Commissioner for Human Rights on the Situation of Human Rights in Kosovo, Federal
Republic of Yugoslavia, UN Doc. A/52/490, in Weller, supra note 5, p p. 177-180. Based on that report the
Commission on Human Rights in its Resolution 1998/79 called upon the authorities of the FRY to put an end to
torture and ill-treatment of persons in detention as described in the reports of the Special Rap porteur, and to
bring those responsible to justice.
28For m ore details see D R 20 86 U75 19 98 U.S. C ongress, Sen ate Co mmittee on Fo reign Relatio ns:
Subcommittee on European Affairs, The Crisis in Kosovo, Hearings, 105 tCongress, 2 Session. Washington:
GPO, May 6 and June 24, 1998. See also KOSOVO: CURRENT SITUATION AND FUTURE OPTIONS, Hearing
before th e Co mmittee o n International Relations House of Represen tatives, 23 Ju ly 1998, Witnesses:
Ambassador Robert S. Gelbard, Special Representative of the President and the Secretary of State, Department
of State, The Honorable Walter B. Slocombe, Under Secretary of Defense for Policy, Department of Defense,
available at: http://commdocs.house.gov/committees/intlrel/hfa50674.000/hfa50674_0f.h… (last accessed on 15
April 2009).
29ICTY, Prosecutor v. Limaj et al, Case No. IT-03-66, Judgment of 30 November 2005, p. 18, par. 45.
30
Ibid., p. 19, par. 48.
31See Humanitarian Law Violations in Kosovo, Human Rights Watch Report, October 1998.
13 information about the scale and effect of the police and military operations carried
out by Serb police, m ilitary and param ilitary forces in Kos ovo. They provide a
detailed account of the serious hum an rights and hum anitarian law violations
32
against the civilian population.
21. Condemnation of the excessive and indiscri minate use of force during Serb police
actions in Kosovo, leading to the deaths of som e 80 persons over the previous
week the decision was adopted was expressed in a Decision 218 on the situation in
Kosovo, adopted at the special session of the Perm anent Council of the
33
Organization for Security and Cooperation in Europe, on 11 March 1998. The
UN High Commissioner for Refugees (hereinafter UNHCR) reported in early June
1998 that the operation forced m ore than 40 000 ethnic Albanians to leave their
34
homes and flee for their lives.
22. The deterioration of the hum anitarian situation in Kosovo triggered the Security
Council involvement. In Resolution 1160(1998) the Security Council acting under
Chapter VII expressed its concern over th e situation in Kosovo and decided to
impose an arms embargo, while at the same time calling for authorities in Belgrade
and the leadership of the Kosovar Albani an community urgently to en ter without
35
preconditions into a meaningful dialogue on political status issues. In a warning
32
For Reports of the UN Commission on Human Rights, the UN High Commissioner on Human Rights and the
Special Rapporteur for the Former Yugoslavia see inter alia Weller, supra note 5, pp. 158-185; Krieger, supra
note 5, pp. 25-45 and 46-65; for NGO Reports see Krieger, supra note 5, pp. 90-118.
33
Decision 218 on the situation in Kosovo, adopted at the special sessi on of t he Permanent Council of t he
Organization f or Security and C ooperation i n Eu rope, o n 11 M arch 1998, a vailable at :
http://www.un.org/peace/kosovo/s1998246.pdf (last accessed on 15 April 2009) . In t his decision the OSCE
called upon the authorities of the FRY Calls upon the authorities of the Federal Republic of Yugoslavia:
- To halt the excessive use of force in Kosovo, to vigorously inves tigate and t o accept the int ernational
investigation of reported summary executions and to bring to justice those found responsible;
- To initiate a meaningful dialogue with Kosovar Albanian representatives which will lead to concrete steps
towards the resolution of ongoing political problems in the region;
- To allow access to Ko sovo for th e In ternational C ommittee o f the Red Cro ss and other humanitarian
organizations;
- To implement without delay the Education Agreement and seek agreements on further confidence-building
measures;
- To accept without preconditions, an immediate return of the OSCE missions of long duration to Kosovo,
Sandjak and Vojv odina, with the understanding that t he return of t hese m issions is essential fofuture
participation in OSCE by the Federal Republic of Yugoslavia.
34
UN HCR, Kosovo Crisis Upda te, The Exod us, 7 April 1 999, av ailable at:
http://www.unhcr.org/news/NEWS/3ae6b80eb.html (last accessed on 15 April 2009).
35SC Res. 1160(1998) of 31 March 1998, pars. 4 and 8.
14 to the Belgrade authorities the Security Council e mphasised that failure to m ake
constructive progress to wards the p eaceful resolution of th e situation in Kosovo
36
would lead to the consideration of additional measures.
23. By the time of the adoption of its next resolution, namely Resolution 1199(1998),
the situation in Kosovo had further deteri orated. The Security Council noted its
grave concern over the recent intense fight ing in Kosovo and in particular the
excessive and indiscrim inate use of fo rce by Serbian se curity force s and th e
Yugoslav Army which had resulted in numerous civilian casualties and, according
to the estimate of the Secretary-General, the displacement of over 230 000 persons
from their homes. 37 Deep concern was voiced als o over the rapid deterioration in
the hum anitarian situation throughout Kosovo, the im pending hum anitarian
catastrophe as described in the report of the Secretary-General and reports of
increasing violations of human rights and of international hum anitarian law
38
there. The Security Council dem anded inter alia that the Federal Rep ublic of
Yugoslavia im plement imm ediately the following concrete m easures towards
achieving a political solution to the situation in Kosovo:
“(a) cease all acti on by the security for ces affecting the civilian population and
order the withdrawal of security units used for civilian repression;
(b) enable effective and conti nuous international monitoring in Kosovo by the
European Community Monitoring Mission an d diplomatic missions accredited to the
Federal Republic of Yugoslavia, including access and complete freedom of movement
of such monitors to, from and within Kosovo unimpeded by government authorities,
and expeditious issuance o f appropriate tr avel documents to international personnel
contributing to the monitoring;
(c) facilitate, in agreement with the UNHCR and the International Committee of
the Red Cross (ICRC), t he safe retur n of refugee s and displa ced persons to their
homes and a llow free and unim peded acc ess for humanitarian organizations and
supplies to Kosovo;
(d) make rapid progress to a cl ear ti metable, in the dialogue referred to in
paragraph 3 with the Kosovo Albanian community called for in resolution 1160
36
Ibid., par. 19.
37SC Res. 1199(1998) of 23 September 1998.
38Ibidem.
15 (1998), with the aim of agreeing confidence-building measures and finding a political
39
solution to the problems of Kosovo;”
24. In view of the escalati on of the situation on th e ground, in Resolution 1203
adopted only one m onth later, namely on 24 October 1998, the Security Council
while noting its prim ary responsibility for the maintenance of international peace
and security under the UN Charter, affirm ed that the situation in Kosovo
constituted a continuing threat to peace and s ecurity in the region. 40 The Security
Council dem anded that the Federal Republic of Yugoslavia com ply fully and
swiftly with Resolutions 1160 (1998) and 1199 (1998) and cooperate f
ully with the
OSCE Verification Mission in Kosovo and the NATO Air Verification Mission
over Kosovo. 41 Addition ally, th e Security Counc il reaffirmed the righ t of all
refugees and displaced persons to return to their homes in safety, and underlined
the responsibility of the Federal Republic of Yugoslavia for creating the conditions
42
which allowed them to do so.
C) The February-March 1999 Rambouillet Accords
25. While the situation on the ground was critic al and gross hum an rights violations
were ongoing, an internationally-sponsor ed conference was convened in
Rambouillet, France, in February 1999. The aim of the conference was to provide
a political solution to the c onflict, or as the document itself suggests an interim
agreement for peace and self-governm ent in K osovo. 43 The m echanism for final
settlement contained in this document provided that three years after the entry into
force of the Accords, an international meeting would be convened to determ ine a
mechanism for a final settlement for Kosovo, on the basis of the will of the people,
opinions of relevant authorities, each party’s efforts regarding the implementation
of the Acco rds, and the Helsinki Final Act. 44On 18 March 1999 the agreem ent
was signed by the Albanian representatives, but not by their Serb counterparts. It
39Ibid., par. 4.
40
SC Res. 1203(1998) of 24 October 1998.
41Ibid., par. 3.
42Ibid., par. 12.
43Th e fu ll tex t o f t he Ra mbouillet Agreemen t is av ailable on line at:
http://www.state.gov/www/regions/eur/ksvo_rambouillet_text.html (last accessed on 15 April 2009).
44Article I: Amendment and Comprehensive Assessment, Rambouillet Agreement: Amendment, Comprehensive
Assessment, and Final Clauses.
16 should be noted that this Agreem ent was concluded under the auspices of the
members of the Contact Group and th e European Union and included an
undertaking with respect to these m embers and the European Union to abide by
this Agreement.
26. The Rambouillet Accords provided for a 3-year in terim agreement that would
provide democratic self-governm ent, peace, and security for everyon e living in
Kosovo. The agreement provides that the fina l settlement of the status of Kosovo
would be determined on the basis of the will of the people of Kosovo. Despite the
fact that this agreement was not signed by Serbia, Resolution 1244 of the Security
Council refers to it. T he relevant part of Annex 1 to the resolution, listing a
number of general principles for the political solution of the Kosovo crisis adopted
at the meeting of the G-8 Foreign Ministers held at the Petersberg Centre on 6 May
1999, reads:
“A political process towards the est ablishment of an interi m p olitical framework
agreement providing for a 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 Yugos lavia and the other countries of the region, and the
45
demilitarization of the KLA.”
The logical correlation between these international documents and the declaration of
independence by the democratic ally-elected representatives of the Kosovo people is
dealt with in Part V of this document.
D) NATO’s Military Intervention in Kosovo – Operation ‘Allied Force’ 24
March – 10 June 1999
27. As a means of last resort and in view of the unfolding humanitarian catastrophe in
Kosovo, an intervention by NATO star ted on 24 March 1999 after prolonged
international diplomatic efforts, including the Rambouillet conference, had failed.
Yugoslav forces had already driven m ore than 400 000 people away from their
homes, many of which they destroyed by shelling and arson. The UN Security
Council had passed Resolution 1199 (1998), invoking Chapter VII of its Charter,
45
Annex 1 to Resolution 1244 of the Security Council of 10 June 1999 (Statement by the Chairman on the
conclusion of the meeting of the G-8 Foreign Ministers held at the Petersberg Centre on 6 May 1999).
17 demanding a withdrawal of the forces “used for civilian repression,” and deciding,
“should the concrete m easures demanded in this resolution and resolution 1160
(1998) not be taken, to consider further action and additional measures to maintain
or resto re p eace and stability in the region.” In Resolution 1160 (1998), th e
Security Council already had em phasised that, “[f]ailure to m ake constructive
progress towards the peaceful resolution of the situation in Kosovo will lead to the
consideration of additional measures.”
28. The brutal cam paign of persecutio n against Kosovar Albanians by the Serbian
authorities continued throughout the pe riod o f the NATO m ilitary operations.
Many instances of sexual assaults and rape by Serb police, m ilitary and
paramilitary forces against women occurred during that campaign. 46Over 800 000
people were forcibly expelled or left their homes out of fear from Serbian police,
military an d param ilitary forces. “Under Orders: W ar Crim es in Kosovo”, a
Human Rights Watch Report states, “Deliberate and unlawful killings o f civilians
– extrajudicial executions – were a key part of the ‘cleansing’
cam paign.
Throughout the province, ci vilians who were clearl y non-combatants, including
women and som e children, were murdered by Serbian p olice, Yugo slav arm y
47
soldiers, and associated paramilitary forces in execution-style killings.”
29. According to an Internati onal Commission of Experts, these m ethods constituted
the policy known as “ethnic cleansing.” 48 Through a widespread and systematic
campaign of terror and violence, the Ko sovo Albanian population was to be
46See inter alia Human Rights Watch Report, Kosovo: Rape as a We apon of “Ethnic Cleansing, March 2000,
available at: http://www.hrw.org/legacy/reports/2000/fry/index.htm#TopOfPage (la st accessed on 15 April
2009); ICTY, Prosecutor v. Milutinović et al, Case No. IT-05-87, Judgment of 26 February 2009, Vol. 2, pp.
228, 251, and 318; The Kosovo Report: Conflict, International Res ponse, Lessons Learned, The Independent
International Commission on Kosovo, Oxford University Press, 2000, pp. 308-309, also available online at:
http://www.reliefweb.int/library/documents/thekosovoreport.htm (last accessed on 15 April 2009).
47H uman R ights Watch R eport, Under Or ders: W ar C rimes i n K osovo, 2 001, p. 6, available at:
48tp://www.hrw.org/legacy/reports/2001/kosovo/part_two.pdf (last accessed on 15 April 2009).
See The Kosovo Report: Conflict, International Response, Lessons Learned, The Independent International
Commission o n Koso vo, Ox ford University Press, 2 000, available on line at:
http://www.reliefweb.int/library/documents/thekosovoreport.htm (last accessed on 15 April 2009). Part of the
executive summary – main findings of the report reads: “The origins of the crisis have to be understood in terms
of a new wave of nationalism that led to the rise of Milosevic and the official adoption of an extreme Serbian
nationalist agenda. The revocation of Kosovo’s autonomy in 1989 was followed by a Belgrade policy aimed at
changing the ethnic composition of Kosovo and creating an apartheid-like society.”
18 49
forcibly displaced both within and without Kosovo. The common purpose was to
displace a number of them sufficient to tip the demographic balance more toward
50
ethnic equality and in order to cow the Kosovo Albanians into subm ission. The
intention to reduce the Albanian population in Kosovo to about 600 000 by killing
members of the group or forcefully expellin g them , were known to foreign
51
officials, and reportedly have been publicly uttered by Serbian officials.
30. The fact that some of the highest ranki ng Serb officials, namely Nikola Šainović,
Dragoljub Ojdanić, Nebojša Pavković, Vladimir Lazarević, and Sreten Lukić were
found guilty by the International Crim inal Tribunal for the For mer Yugoslavia
(ICTY) for crimes against humanity and war crimes committed in Kosovo between
1 January and 20 June 1999, shows that th e widespread cam paign of violence
against Kosovar Albanians was part of St ate policy to use violence and terror to
force a significant num ber of Kosovo Albanians from their homes and across the
borders, in order for the Serb state authorities to maintain control over Kosovo. 52
31. The Court itself in the Legality of Use of Force cases had expressed deep concern
over the human tragedy unfolding at that time in Kosovo. As noted in its Order on
Provisional Measures of 2 June 1999:
49ICTY, Prosecutor v. Milutinović et al, Case No. IT-05-87, Judgment of 26 February 2009, Vol. 3, p. 41, par.
95.
50Ibidem.
51See inter alia Steven Erlanger, Diplomat Says Serbs Want Some Albanians in Kosovo, New York Times, 25
52ril 1999, p. 14.
ICTY, Prosecutor v. Milutinović et al, Case No. IT-05-87, Judgment of 26 February 2009. During that time
Nikola Šainović was a Deputy Prime Minister of the Federal Republic of Yugoslavia, or FRY; Dragoljub
Ojdanić was the Chief of the General Staff of the Yugoslav Army, or VJ; Nebojša Pavković was the Commander
of the VJ 3rd Army; Vladimir Lazarević was the Commander of the VJ Priština Corps; and Sreten Lukić was the
Head of the Serbian Ministry of Interior Staff for Kosovo, referred to as the MUP Staff. For a summary of this
judgment see http://www.icty.org/x/cases/milutinovic/tjug/en/090226summary.pdf (last accessed 16 April 2009).
See also the testimony of General Wesley Clark gi ven in the Milosević trial on 15 and 16 December 2003,
referred to in transcript page number and rows, respectively p. 30407:13-19, p. 30506:1-25, p. 30507:1-6 and 19-
25, p. 30508:1-14, p. 30510:6-19, p. 30521:16-22, p. 30522:2-25, p.30524:1-20, p. 30525:24-25, p. 30526:1-5
and 21-25, p. 30 527:1-14, p. 3 0528:12-20, p . 3 0530:12-25, an d p. 30531:1-2. S uch sh ocking event s we re
reminiscent of the 1914 pogroms on the Kosovar Albanian population, when an international commission of
inquiry established by the Carnegie Endowment in 1914 reported: “Houses and whole villages reduced to ashes,
unarmed and innocent populations massacred…such were the means which were employed and are still b eing
employed by the Serb-Montenegrin Soldiery, with a view to the entire transformation of the ethnic character or
regions inhabited exclusively by Albanians.”, in Carnegie Endowment for International Peace, Report of the
International Commission to Inquire into the Causes and Conduct of the Balkan Wars, Washington DC 1914, as
quoted in Malcolm, supra note 21, p. 254.
19 “[…] the Court is deeply concerned with the human tragedy, the loss of life, and the
enormous suffering in Kosovo which form the background of the present dispute, and
53
with the continuing loss of life and human suffering in all parts of Yugoslavia.”
That human tragedy, loss of life and enor mous suffering represented the culm ination
of the Serb authorities’ repressive and discriminatory policies against ethnic Albanians
in Kosovo and formed the basis for the military intervention by NATO.
E) Resolution 1244 ( 1999) and the Esta blishment of the United Nations
Interim Mission in Kosovo
32. On 10 June 1999 the S erbian Government agreed to withdraw Serb forces from
Kosovo, opening the way to the adoption of Security Counc il Resolution 1244
(1999). Resolution 1244 authorized the esta blishment of a United Nations interim
administrative mission in Kosovo (UNMIK), and the deploym ent of a NATO-led
security force (KFOR). Kosovo was thus placed under a transitional United
Nations administration, pending a definite solution to its future political status.
33. Following the Security Council’s considera tion of the Secretary-General’s report
on the United Nations Interim Administration Mission in Kosovo (UNMIK), of 23
May 2005, the Secretary-General appointed Mr. Kai Eide (Norway) as his Special
54
Envoy to undertake a com prehensive review of the situation in Kosovo. In his
report Mr. Eide concluded that, the time had come to move to the next phase of the
55
political process. Based on the assessm ent provided in the report and further
56
consultations, the Secretary-Gen eral accep ted Mr. Eide’s co nclusion.
Furthermore, he expressed his intent to initiate preparations for the appointment of
a special envoy to lead the future status process.
34. In a statement of 24 October 2005 m ade by the President of the Security Council
on behalf of the Council, th e Security Council agreed with Am bassador Eide’s
53
ICJ, Case Concerning Legality of Use of Force (Yugoslavia v. Belgium), Request for the Indication of Interim
Measures, ICJ Rep. 1999, p. 131, par. 16. The sam e concern was e xpressed by the Court in the other nine
Legality of Use of Force cases.
54See UN Doc. S/2005/335 and Corr.1 of 23 May 2005.
55See UN Doc. S/2005/635 of 7 October 2005.
56Ibidem.
20 assessment and welcomed the Secretary-Ge neral’s readiness to appoint a Special
57
Envoy to lead the status process.
F) The Internationally Supervised Final Status Negotiation Process
35. The Secretary-General appointed Mr. Ma rtti Ahtisaari as his Special Envoy in
November 2005 to lead the future status negotiation process envisioned in the UN
Security Council Resolution 1244 (1999). His mandate was to be carried out in
58
accordance with the ten guiding principles adopted by the Contact Gro up. In a
statement by the Contact Group Ministers of 31 January 2006 it was stated that
they looked to Belgrade to bear in mind that the settlement needs, inter alia, to be
57Statement by the President of the Security Council, S/PRST/2005/51, 24 October 2005.
58
See ‘Guiding Principles of the Contact Group for a Settlement of the Status of Kosovo’ of November 2005.
The three main points were no return of Kosovo to the pre-1999 situation, no partition of Kosovo, and no union
of Kosovo with any or part of another country. The Contact Group was composed of France, Germany, Italy,
Russia, the United Kingdom and the United States. The ten guiding principles were namely: “1. The settlement
of the Kosovo issue should be fully compatible with international standards of human rights, democracy and
international law and contribute to regional security; 2. The settlement of Kosovo’s Status should conform with
democratic values and European standards and contribute to realizing t he European perspective of Kosovo, in
particular, Kosovo’s progress in the stabilization and association process, as well as the integration of the entire
region i n Eu ro-Atlantic in stitutions; 3. Th e settle ment sh ould en sure multi-ethnicity th at is su stainable in
Kosovo. It sho uld provide effective con stitutional gu arantees and app ropriate m echanisms to en sure t he
implementation of human ri ghts f or al l ci tizens i n Kos ovo an d o f t he ri ghts o f m embers of al l Kos ovo
communities, including the right of refu gees and displaced pe rsons to return to thei r homes in safet y; 4. The
settlement should provide mechanisms to ens ure the participation of all Kos ovo communities in government,
both on the central and on the local level. Effective structures of local self government established through the
decentralization process should facilitate the coexistence of different communities and ensure e quitable and
improved access to public services; 5. The settlement of Kosovo’s status should include specific safeguards for
the protection of the cultural and religious heritage in Kosovo. This should include provisions specifying the
status of the Serbian Orthodox Church’s institutions and sites and other patrimony in Kosovo; 6. The settlement
of Kosovo’s status should strengthen regional security and stability. Thus, it will ensure th at Kosovo does not
return to the pre-March 1999 situation. Any solution that is unilateral or results from the use of force would be
unacceptable. There will be no changes in the current territory of Kosovo, i.e . no partition of Kosovo and no
union of Kosovo with an y country or part of any country. The territorial in tegrity and internal stability of
regional neighbours will be fully respected; 7. The Status settlement will ensure Kosovo’s security. It will also
ensure that Kosovo does not pose a military or security threat to its neighbours. Specific provisions on security
arrangements will be included; 8. Th e settlement of Kosovo’s status should promote effective mechanisms to
strengthen Kosovo’s ability to enforce the rule of law, to fight organized crime and terrorism and safeguard the
multi-ethnic character of the police and the judiciary; 9. The settlement should ensure that Kosovo can develop
in a su stainable way bo th economically and politically and that it can cooperate effectively with international
organizations and in ternational fin ancial i nstitutions; 10. Fo r so me time Ko sovo will co ntinue to n eed an
international civilian and military presence to exercise appropriate supervision of compliance of the provisions
of the Status settlement, to ensure security and, in particular, protection for minorities as well as to monitor and
support the authorities in the continued implementation of standards.”
21 acceptable to the people of Kosovo and that the disastrous policies of the past lay
59
at the heart of the current problems.
36. After fifteen-m onths of UN-sponsored negotiations, Mr. Ahtisaari prepared a
Comprehensive Proposal for the Kosovo Status Settlem ent, in which he
recommended that Kosovo’s status should be ‘supervised’ independence.
The
Special Envoy reported to the Secretary-General in mid-March 2007 that, although
he and his team had “held intensive negotiations with the leadership of Serbia and
Kosovo over the course of the past year” to achieve “a political settlem ent that
determines the future status of Kos ovo,” it had “becom e clear … that the parties
are not able to reach an agreem ent on Kosovo’s future status. ” 60The Special
Envoy noted that, “[B]oth parties have rea ffirmed their categorical, diam etrically
opposed positions,” further stating that, “[I]t is my firm view that the negotiations’
potential to produce any m utually agr eeable outcom e on Kosovo’s status is
exhausted. No amount of additional talks, whatever the format, will overcome this
61
impasse.”
37. Noting further that, “Kosovo’s state of limbo cannot continue,” since “uncertainty
over its future status has becom e a m ajor obstacle to Kosovo’s dem ocratic
development, accountability, econom ic recovery and inter-ethnic reconciliation,”
62
the Special Envoy stated that, “the tim e has come to resolve Kosovo’s status.”
Accordingly, he concluded: “Upon caref ul consideration of Kosovo’s recent
history, the realities of Kosovo today and taking into account the negotiations with
the parties, I have come to the conclusion that the only viable option for Kosovo is
independence, to be supervised for an initial period by the internationa l
community. My Comprehensive Proposal for the Kosovo Status Settlement, which
sets forth these international supervisory structures, provides the foundations for a
future independent Kosovo that is viable, sustainable and stable, and in which all
communities and their members can live a peaceful and dignified existence.” 63
59Kos ovo C ontact Gr oup Statement, Lo ndon, 3 1 Janua ry 20 06, available at :
http://ue.eu.int/ueDocs/cms_Data/docs/pressdata/en/declarations/88236.p… (last accessed on 15 April 2009).
60
61See UN Doc. S/2007/168, par. 1.
Ibid., par. 3.
62Ibid., par. 5.
63Ibidem.
22 38. The UN Secretary-Gen eral, in transm itting his Special E nvoy’s repo rt to the
Security Council, stated that, “I full y support both the recommendation m ade by
my Special Envoy in his report on Kosovo’ s future status and the Comprehensive
Proposal for the Kosovo Status Settlement.” 64
39. After discussions in the Security Counc il, the Contact Group (France, Germ any,
Italy, Russia, the United Kingdom and the United States) proposed that a “Troika”
of representatives from the EU, the United States and Russia undertake yet another
period of negotiations between Belgrade and Pristina on the future status of
Kosovo, “the last m ajor issue related to Yugoslavia’s collapse.” On 1 August
2007 the Secretary-Generally welcom ed this initiative, restated his belief that the
status quo was unsusta inable and requested that a repor t be subm itted by the
Contact Group on these efforts by 10 December 2007. Although the parties
engaged in “the m ost sustained and in tense high-level dire ct dialogue since
65
hostilities ended in Kosovo in 1999,” the Troika represen tatives reported that,
“[A]fter 120 days of intensive negotiations , however, the parties were unable to
66
reach an agreement on Kosovo’s status.”
G) The Declaration of Independence by Kosovo on 17 February 2008
40. In its ninth year under an UN-led transiti onal administration and after a series of
unsuccessful interna tionally-mediated ta lks, an extraor dinary m eeting wa s
convened on 17 February 2008 in which the democratically-elected representatives
of the people of Kosovo declared Kosovo to be an independent and sovereign
state. They noted that this act “reflects the will of our people and it is in f ull
accordance with the recomm endations of UN Special Envoy Martti Ah tisaari and
his Comprehensive Proposal for the Kosovo Status Settlement.” 67 As to the tim e
of the writing of this written statement, fifty-seven (57) independent and sovereign
64
See th e letter d ated 26 March 2007 from the Secreta ry-General addressed to the President of the Security
Council, UN Doc. S/2007/168.
65Report of the European Union/United States/Russian Federation Troika on Kosovo of 4 December 2007, UN
Doc. S/2007/723, p. 4, par. 12.
6Ibid. p. 4, par. 11.
67
See Decl aration o f I ndependence of Kosovo, A nnex 1, a vailable onl ine at : http://www.assembly-
kosova.org/common/docs/Dek_Pav_e.pdf (last accessed on 15 April 2009). The full paragraph rea ds: “We, the
democratically-elected leaders of our people, hereby declare Kosovo to be an i ndependent and sovereign state.
This declaration reflects the will of our pe ople and it is in full accorda nce with the recommendations of UN
Special Envoy Martti Ahtisaari and his Comprehensive Proposal for the Kosovo Status Settlement.”
23states hav e recogn ised the independence and sovere ignty of the R epublic of
Kosovo. It is subm itted that the legal fr amework of the independen t state of
Kosovo is compatible with the guiding principles of the status negotiation process
in general and respect f or human rights, the rig hts of the m inorities, democratic
participation and peace and security in the Balkans in particular.
24 PART III OBJECTIONS TO JURISDICTION
A) The Declaration of Inde pendence is a Domestic Matter not Regulated
by International Law
41. It follows from Article 96 of the UN Charter and Article 65 of the ICJ Statute that
the question submitted to the Court for an advisory opinion must satisfy a number
of requirements. The ICJ has noted that the question put before it must have a
practical and contem porary effect and, c onsequently, not be devoid of object or
68
purpose. In the present case, the request concerns an internal matter and ultimate
prerogative, lying solely with the parties concerned, i.e. on one side the expression
of the will of the people of Kosovo and on the other the recognition or not fr om
other Sta tes. It is sub mitted that exam ining the validity of an internal act,
expressing the sovereign will of the people of Kosovo, lies outside the scope of the
Courts’ jurisdiction.In the f ollowing paragraphs it will be explained why that is
the case.
42. While the General Assembly, as one of the main organs of the UN has the right to
request an Advisory Opinion, on any le gal question, the issue of whether a
question submitted fulfils the necessary criteria rests with the Court. One of those
criteria is that the request does not have an abstract character and it will assis t the
General Assembly in the exercise of its functions. However, the evaluation of the
DoI goes beyond the normal exercise of its functions.
43. The DoI adopted by the repr esentatives of the people of Kosovo on 17 February
2008, was an official act based on the sovereign will of the people of Kosovo. The
question put by the General Assembly concerning the DoI adopted on February 17,
2008 by the Kosovar authorities seem s to presuppose that there are rules under
international law circumscribing a DoI. It is submitted, however, that this is not the
case. Although throughout the development of international law DoIs have had an
important effect on the international legal order, international law does not contain
68
ICJ, Western Sahara, Advisory Opinion of 16 October 1975, ICJ Reports 1975, p. 37, par. 73.
25 essentially due to the decolonisation pr ocess carried out unde r the aegis of the
UN. The increase in this figure from 159 St ates in 1990 to 192 States at present
has been du e mainly to secession, whether unilateral or not, by former parts of
72
sovereign States. This has been shown by th e developm ents concerning
Yugoslavia as well as the development concerning the Soviet Union.
47. While a D oI produces effect s at the international le vel and has international
consequences, it is not itself regulated by international law. Therefore, the question
cannot normally be answered whether a DoI is in conform ity with i nternational
law. In that respect a DoI as the birth of a new sovereign State is a matter which is
essentially within the d omestic jurisdiction of the State in the sense of Article 2,
paragraph 7 of the UN Charter. An advisory opinion cannot be concerned with the
validity of an internal constitu tional act, expressed through the h ighest domestic
organs of a State. In answering the que stion asked the Court would be assum ing
the f unctions of a dom estic co nstitutional court. The DoI as a dom estic
constitutional a ct is no t regulated by international la w. T herefore, th e requ est
expressed by the General Assem bly does not concern a legal question within the
purview of its competences under the UN Charter.
B) The General Assembly Was Prevented by Article 12, Paragraph 1 of the
UN Charter to Request the Advisory Opinion
48. Article 12, paragraph 1 of the Charter provides that, “While the Security Council is
exercising in respect of any dispute or situ ation the function assigned to it in the
present Charter, the General Assembly shall not make any recommendation with
regard to that dispute or situation unless the Security Council so requests”.
71For a detailed description of the growth of UN m embership visit: http://www.un.org/members/growth.shtml
(last accessed on 15 April 2009).
72
For a det ailed list of t he creation of States and t heir UN admission from 1945 to 2005 see inter alia J.
Crawford, The Creation of States in International Law, 2tion, Oxford University Press: New York, 2007, p.
187. Since 2005 only one State has been admitted to the UN, bringing the overall number of States member to
the UN to 192. That State was Montenegro, admitted as a UN m ember on 28 June 2006. A complete list i s
available online on the UN official website at: http://www.un.org/members/list.shtml (last accessed on 15 April
2009).
27 49. As the Court has confirm ed a request for an advisory opinion is no t in itself a
recommendation by th e Genera l Assem bly. However, the Court f ound it
appropriate to exam ine the s ignificance of that ar ticle in th e advisory opinion
concerning the Construction of a Wall , having regard to the relevant text and
practice of the Unite d Nations. In that o pinion the Court f ound that the
interpretation of Article 12 had evolved in the practice of the organs of the United
Nations in such a way that the General Assem bly and the Security Council m ay
deal in parallel with the same matter concerning the m aintenance of international
74
peace and security. Therefore, the request by the General Assembly was not ultra
vires in that case.
50. However, the circum stances concerning the presen t re quest a re com pletely
different. T hat request concerning the DoI expressed b y the freely elected
representatives of Kosovo on 17 February 2008 could only ra ise a question under
international law concerning its compatib ility with Security Council Resolution
1244 of 10 June 1999 as to the adm inistration of Kosovo after the arm ed
intervention by NATO. This resolution is based on Chapter VII of the UN Charter
and the Council determined that the situation in the region continued to constitute
75
a threat to international peace and security. After having set out the fram ework
for the administration of Kosovo and the m ission of the international civilian and
military presence there, the Security Council decided to remain actively seized of
the matter. 76
51. The competence of the Security Council under Chapter VII is an expression of the
Security Council’s prim ary responsibility for the m aintenance of international
peace and security. Article 12 of the UN Charter serves to safeguard this primacy.
Due to the com pletely different structur e in composition of the Security Council
73ICJ, Legal Consequences of th e Construction of a Wall in the Occupied Palestinian Territory, Advisory
Opinion of 9 July 2004, ICJ Reports 2004, p. 148, par. 25 (hereinafter Construction of a Wall).
74Construction of a Wall, ICJ Reports 2004, pp. 149-150, pars. 27-28.
75
Security Council Resolution 1244 of 10 June 1999, UN Doc. S/RES/1244 (1999), p. 2. The full paragraph
reads: “Determining that the situation in the re gion continues to c onstitute a threat to international peace and
security”. The full text of the resolution is available online at: http://www.un.org/Docs/scres/1999/sc99.htm (last
accessed on 15 April 2009).
76Security Council Resolution 1244 of 10 June 1999, p. 5, par. 21.
28 and the General Assembly, they m ight well evaluate situations differently and
77
draw conflicting conclusions.
52. It is f or this reason that Article 12 trie s to avoid any contradictions between the
actions of the Security Council and the General Assembly. While a request for an
advisory opinion may not be s een directly as a possible contradiction it has to be
evaluated what the consequences of an advisory opinion could be in this resp ect.
Assuming that on the basis of such a re quest a Security Council resolution under
Chapter VII would be scrutinized b y the Court as to its c ompatibility with th e
Charter and its effect o n a specific problem as the DoI, this could well create a
contradiction with the action of the Se curity Council. Therefore, a proper
interpretation of Article 12 m ust lead to the re sult that a r equest by th e General
Assembly concerning an advisory opinion m ay not interfere with the jurisdiction
78
of the Security Council under Chapter VII.
53. Even if one does not go as far as qualifying the request as ultra vires, the need to
avoid contradictory results m ust clearly be taken into account by the Court when
considering exercising its discretion under Article 65, paragraph 1 of the Statute.
That issue will be further clarified in the section below, which addresses the need
for the exercise of discretion by the Court in this case.
77See Hailbronner/Klein, in: Simma and others (eds.), The Charter of the United Nations, A Commentary, 2nd
ed., Oxford University Press, 2002, Vol. I, Art. 12, No. 1.
78
See inter alia R. Higgins, A Comment on the Current Health of Advisory Opinions, in: A.V. Lowe (ed.), Fifty
years of the International Court of Justice: Essays in Honour of Robert Jennings, Cambridge University Press,
1996, p. 577; M.S.M Amr, The Role of the International Court of Justice as the Principal Judicial Organ of the
United Nations, Kluwer Law International: The Hague/London/New York, 2003, p. 73 and footnote 101; M.M.
Aljaghoub, The Advisory Function of the International Court of Justice 1946-2005, Springer-Verlag: Berlin,
Heidelberg, 2006, pp. 76-86; G. Zyb eri, The Humanitarian Face of the International Court of Justice: Its
Contribution to Interpreting and Developing International Human Rights and Humanitarian Law Rules and
Principles, School of Human Rights Research Series Vol. 26, Intersentia: Antwerpen – Oxford – Portland, 2008,
pp. 34-41.
29 PART IV PROPRIETY AND THE EXERCISE OF DISCRETION
A) The Court Should Exercise Its Dis cretion and Decline to Give the
Advisory Opinion
54. The Court has held continuously that it has a discretionary power to decline to give
an advisory opinion even if the conditions of jurisdiction are m et. The Court
frequently underlined that it shou ld in pr inciple not declin e to give an advisory
opinion but only “com pelling reasons” should lead the C ourt to refuse such an
79
opinion. Although the Court has not listed reasons which would amount to
compelling reasons, it has been suggested that the Court should refuse givin
g an
opinion if it were to find that (i) rendering an opinion might complicate the matter
or create difficulties for the UN in discharging its duties; or (ii) that it would affect
the Court’s judicial character as a court of law; or (iii) the Court f inds that its
80
opinion would be ineffective or without object.
B) There Must not Be a Contradiction between the Exercise of Jurisdiction
of the General Assembly and the Security Council
55. In the present case there are indeed com pelling reasons why the Court should
decline to give an advisory opinion. Th e first important reason has already been
discussed above under objections to jurisdiction. An advisory opinion by the Court
would run the risk that a c ontradiction between the exercise of jurisdiction by the
Security Council with Resolution 1244 and the advisory opini on could occur.
Under those circum stances it m ust be left to the Security C ouncil to request an
advisory opinion if the Council so deci des. The General Assem bly should not
interfere with the Council’s prim ary responsibility to maintain international peace
and security.
79
The Court has emphasized several times that it considers itself under a duty to participate in the activities of
the Organisation and in principle should not refuse to give an advisory opinion unless there are ‘compelling
reasons’ for doing that. See respectively the Peace Treaties case, ICJ Reports 1950, p. 72; the UNESCO case,
ICJ Reports 1956, pp. 86-87; the Certain Expenses case, ICJ Reports 1962, p. 155; the Mazilu case, ICJ Reports
1999 (I), pp. 78-79, par. 29; and the Construction of a Wall case, ICJ Reports 2004, p. 156, par. 44.
80
M.S.M A mr, The Role of the International Court of Justice as t he Principal Judicial Organ of the United
Nations, Kluwer Law International: The Hague/London/New York, 2003, pp. 108-109 (footnotes omitted).
30 C) The Security Council and the Genera l Assembly Have Left it Open to
States to Recognise Kosovo
56. There is a second reason why the Court should not give an advisory opinion as
requested. Neither the General Assem bly nor the Security Council have, after the
DoI by Kos ovo, requested that States should not recognise the new State. They
have, thereby, shown that the situation is completely different compared with the
cases where puppet States have been crea ted and the General Assembly or the
Security Council have asked States not to recognise those States. A first case
where that happened was Katanga, where th e Security Council required all states
to refrain from any action which might unde rmine the territorial sovereignty and
the political independence of the Republic of Congo. 81Another such instance was
Southern Rhodesia’s declaration of independence in 1965. 82 The same attitude was
83
adopted after South Africa declared the independence of Transkei as a homeland.
When the Turkish Cypriot authorities proclaimed an independent State in Northern
Cyprus in 1983, the Security Council called upon all States not to recognise any
84
Cypriot State other than the Republic of Cyprus.
57. No other State present in the Security Council emergency session of 18 February
2008, besides Serbia and Russia, argued that the declaration of independence by
Kosovo constituted an internationally unlawful act that would need to be countered
85
through a collective policy of non-recognition. Furthermore, the request by the
Serbian representative that the Secretar y-General issue a clear and unequivocal
instruction to his Special Representative to declare the unilateral and illegal act of
the secession of Kosovo from Serbia nul l and void and to di ssolve the Kosovo
Assembly was not acted upon.
81See Secu rity C ouncil R esolutions 145 of 22 July 1 960 a nd 146 of 9 A ugust 19 60, avai lable at :
http://www.un.org/documents/sc/res/1960/scres60.htm (last accessed on 15 April 2009); and General Assembly
82solution 1474 (ES-IV) of 20 September 1960.
See Secu rity Council Resolutions 216 of 12 November 1965 and 217 of 20 November 1965, available at:
http://www.un.org/documents/sc/res/1965/scres65.htm (last accessed on 15 April 2009).
83See Security Council Resolution 402 of 22 Decem ber 1976, available at
http://www.un.org/documents/sc/res/1976/scres76.htm (last accessed on 15 April 2009).
84See Secu rity Co uncil Reso lution 541 of 18 November 1 983, avai lable at:
http://www.un.org/Docs/scres/1983/scres83.htm (last accessed on 15 April 2009).
85See inter a lia Sec urity C ouncil, 5839th M eeting, 1 8 Febr uary 20 08, U N D oc. SC /9252 a vailable at :
http://www.un.org/News/Press/docs/2008/sc9252.doc.htm (last accessed on 15 April 2009); Vera Gowlland-
Debbas, Collective responses to illegal a cts in in ternational la w: United Na tions action in th e question of
Southern Rhodesia, Nijhoff Publishers: Dordrecht, 1990.
31 58. It is clear that neither the Security Council nor the General Assembly felt, after the
DoI by Kosovo, that a similar situation to those mentioned above existed. They left
it entirely to member States whether to recognise or not the new State. At present,
57 UN m ember States have recognised Ko sovo as an independent State. An
advisory opinion could not come to the conclusion that the recognition by these 57
States was in violation of international law. Such a finding would not be possible
under the circum stances. Albania respectfu lly submits that th e Court should be
mindful of not interfering with the decision of sovere ign States to recognise
Kosovo as an independent State.
D) The Secretary-General of the United Nations and the Se curity Council
Have Recognised the New Situation in Kosovo
59. Since Kosovo’s declaration of independe nce on 17 February 2008 the Secretary-
General of the United Nations has reported five tim es to the Security Council
about the activities of UNMIK, a nd developments of the situation. 86 In the report
of 28 March 2008 the Secretary General stated:
“It is evident that Kosovo’s declaration of independence has had a profound impact on
the situation in Kosovo. T he declaration of independence and su bsequent events in
Kosovo have posed signif icant challenges to the abilit y of UNMIK to exercise its
administrative authority in Kosovo. To address these challenges, UNMIK, guided by
the i mperative need to ensure peace and security in Kosovo, has acted, and will
continue to act, in a realistic and practicalmanner and in the lig ht of t he evolving
87
circumstances.”
It was acknowledged by the Secretary Gene ral that the evolving reality in Kosovo
was likely to have significant operational implications for UNMIK. He indic ated
86
See respectively: Report of the Secretary-General on the United Nations Interim Administration Mission in
Kosovo of 28 March 2008, UN Doc. S/2008/211; Report of the Secretary-General on the United Nations Interim
Administration Mission in Kosovo of 12 June 2008, UN Doc. S/2008/354; Report of the Secretary-General on
the United Nations Interim Administration Mission in Kosovo of 15 July 2008, UN Doc. S/2008/458; Report of
the Secretary-General on the United Nations Interim Administration Mission in Kosovo of 24 November 2008,
UN Doc. S/20 08/692; and Rep ort o f t he Secretary-Gen eral on th e United Nations In terim Admin istration
Mission in Kosovo of 17 March 2009, UN Doc. S/2009/149.
87Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo of 28 March
2008, UN Doc.S/2008/211, p. 7, par. 30.
32 that pending Security C ouncil guidance, there m ight be a need for UNMIK to
adjust its operational deployment to developments and changes on the ground in a
manner consistent with the operational fram ework established under resolution
88
1244 (1999).
60. In his second report after the declaration of the independence, on 12 June 2008, the
Secretary-General noted an im portant de velopment, namely the passing of a
Constitution for Kosovo on 9 April by the Kosovar Assem bly, scheduled to come
into force on 15 June 2008. He informed the Security Council that the Constitution
was designed in such a way that it w ould effectively remove from UNMIK its
current powers as an interim civil administration. In this regard, he noted that the
government of Kosovo had indicated that it would welcome a continued United
Nations presence in K osovo provided that it carried out onl y lim ited residual
tasks. 89
61. The Secretary-General admitted that events in Kosovo have had and will continue
to have a significant operational impact on the functioning of UNMIK. 90He noted
that while UNMIK had made progress in fulfilling and completing tasks set forth
in paragraph 11 of resolution 1244 (1999), si nce the inception of the Mission in
1999, the scope of activities that it had performed had been reduced significantly.
In his view, following the entry into fo rce of the Kosovo constitution, UNMI K
would no longer be able to perform effectively the vast majority of its tasks as an
interim administration. 91A similar view was repeated in his third report submitted
92
to the Security Council on 15 July 2008.
62. In a letter dated 12 June 2008 addressed to His Excellency, Mr. Fatmir Sejdiu, the
Secretary-General stated:
88Ibid., p. 7, par. 32.
89Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo o12 June
2008, UN Doc.S/2008/354, p. 2, par. 7.
90Ibid., p. 5, par. 17.
91Ibidem.
92In that report the Se cretary-General stated: “it is my assessment that UNMIK can no longer perform as
effectively as in the past the vast majority of its tasks as an interim administration throughout all of Kosovo.”
See Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo of 15 July
2008, UN Doc. S/2008/458, p. 9, par. 29.
33 “In the absence of other g uidance from the Security Council, and following extensive
consultations, it is my intention to rec onfigure th e structure and profile of the
international civil presence to one th at corresponds to the ev olving situati on in
Kosovo and that enables the European Union to assume an enhanced operational role
in Kosovo, in accordance with resolution 1244 (1999).” 93
All of the a bove-mentioned documents indicate clearly that after the declaration of
independence the nature and scale of UNMIK’s activities was gradually scaled down.
63. The assertion of independe nce by the Kosovar authorities vis-à-vis U NMIK is
clearly noted in th e Secretary General’s report to the Security Council of 24
November 2008. In the words of the Secretary-General:
“With the entry into force of the “Constitution of the Republic of Kosovo” on 15 June,
the Kosovo authorities have continued to take st eps towards asserting Ko sovo’s
statehood. Following the establishment of a Ministr y of Foreign Affairs, the Kosovo
authorities annou nced the opening of diplom atic missions and the appointment of
mission heads to 1 0 countries. As at 31 October, Kosovo had been recognized as an
independent state by 52 c ountries. In i ts ongoing efforts to assume the prerogatives
and responsibilities of a sovereign state, Kosovo applied for mem bership in the
International Monetary F und and the Wo rld Bank Group, de cided to und ertake a
census of the population, established a Ministry for Security Forces and appoi nted a
new, 11-member Central Election Commissi on. The Assem bly of Kosovo continues
to pass legislation, which is now adopte d without reference to the powers of m y
Special Rep resentative under resol ution 1244 (1999) or the Const itutional
Framework.” 94
64. The last report of the Secretary-General to the Security Council, dated 17 March
2009, notes that the process of reconfiguration of UNMIK’s presence is expected
to lead to a signifi cantly restructured Mission, whose functions are being adapted
to respond to profoundly changed circumstances on the ground. 95 In addressing the
political situation the Secretary-General stated:
93
Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo o12 June
2008, UN Doc.S/2008/354, Annex 2, p. 8.
94Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo of 24
November 2008, UN Doc. S/2008/692, p. 1, par. 2.
95
Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo of 17 March
2009, UN Doc. S/2009/149, pp. 9-10, par. 35.
34 “During the reporting period, the Kosovo authorities continued to act on t he basis of
the “Constitution of t he Republic of Kosovo”. The Assembly of Kosovo, in plenary
sessions held on 15 and 16 December, passed laws on the Constitutional Court, on the
Foreign Service and on the Consular Service of Diplomatic and Consular Missions in
Kosovo. These laws make no reference to the powers of my Special Represen tative
under resolution 1244 (1999) or to the Constitutional Framework. Since my last report
to the Securi ty Council, of 24 Novem ber 2008 (S/ 2008/692), four additional States
96
have recognized Kosovo, bringing the total to 56.”
It is rather clear that since the entry into force of the Constitution of Kosovo, Kosovar
authorities do exert the preroga tives and responsibilities of a sovereign state. Such a
course of action has not been countered, c ondemned, or declared illegal either by the
Security Council and the Gene ral Assembly, or by any ot her organ of the United
Nations, including the Special Representative of the Secretary-General for Kosovo.
E) The Advisory Opinion Concerns a Bilateral Dispute between Kos ovo
and Serbia
65. There is an additional, yet very importa nt reason, why the Court should use its
discretion and decline to give an advi sory opinion. The issue brought before the
Court is, unlike all the other cases where advisory opinions were given, one which
concerns two States, namely Serbia and Kosovo. As in all cases where parts of a
State have declared their independence and have then been recognised by other
States as in dependent States the d ispute concerns th e relationship between the
former m other State and the newly independ ent State. This was so when the
United States declared th eir independence, when the Latin-Am erican States
became independent States as well as in many of the modern cases. Such a dispute
between the former mother State and the new State is of a b ilateral nature. It may
finally be solved by the genera l recognition of the international community that a
new State has come into being.
66. In light of the above, it is submitted that, to give an advisory opinion in the present
case would have the effect of circum venting the princip le th at a State is not
obliged to allow its disputes to b e submitted to judicial settlem ent without its
96
Ibid., p.1, par. 2.
35 consent. The Court has held in previous advisory opinions that the procedure to
97
request an advisory opinion m ay not be used to circumvent this principle.
Kosovo has clearly not given its consent to submit that dispute with S erbia to the
International Court of Justice. In that respect a s imilar situation exists as the one
existing when the Per manent Court of International Justice declin ed to give an
advisory opinion on the status of Eastern Karelia.
67. In that cas e the questio n directly concer ned an already existing dispute, one of
States’ parties to which was neither a part y to the Statute of the Permanent Court
nor a member of the League of Nations. This State objected to the proceedings and
refused to take part in any way. 98 In the sam e way in the present case Kosovo is
neither a m ember of the Unite d Nations nor a party to the S tatute of the
International Court of Jus tice. Kosovo having not clearly consented to such
jurisdiction, Albania strongly objects to the Court exercisi ng jurisdiction in a
matter of essential importance for Kosovo.
68. In this respect it is quite telling that the vote concerning the request for an advisory
opinion in the General Assem bly was 77 in favour against 6 votes, with 74
abstentions. This means that a majority of the States voting did not deem it either
necessary o r appropr iate to ask th e Inte rnational Court o f Justice to give an
advisory opinion on this issue. It is clear that the abstaining States did not find an
advisory opinion necessary or helpf ul. The Court should consider this f act when
deciding whether or not to render an advisory opinion in this case.
F) The Advisory Opinion Cannot Contribute to the Exercise of
Jurisdiction by the General Assembly
69. It should also be noted in that context that unlike all other requests for an advisory
opinion by the General Assembly it cannot be seen in the present case what use the
General Assembly could make of any advi sory opinion delivered by the Court. It
is not the General Assem bly which decides on recognition of Kosovo by other
97See Western Sahara, ICJ Reports 1975, p. 25, pars. 32 and 33; Construction of a Wall, ICJ Reports 2004, pp.
157-158, par. 47; comp. J. A. Frowein/K. Oellers-Frahm, in: A. Zimmermann a. o. (eds.), The Statute of the ICJ,
98Commentary, 2006, p. 1412 s.
Construction of a Wall, ICJ Reports 2004, pp. 156-157, par. 44.
36 States. 57 States, among them several permanent members of the Security Council,
have already exercised their right to recognise Kosovo as an independent State.
70. It may well be that one day the proce dure of admission of Kosovo to the United
Nations will be started. The adm ission requires a decision of the General
Assembly upon the recommendation of the Security Council. 99 Even assuming that
the Court could come to the conclusion that Kosovo’s declaration of independence
could raise issues under international law, this would be of no relevance in the
admission procedure. In the adm ission pr ocedure the d ecisive is sue would be
whether at the tim e of admission a State ex ists which fulfils the requirements of
Article 4 of the UN Charter. Even where at the time of the DoI there could be legal
problems, this would not have the effect that an admission procedure would not be
lawful. Therefore, the advisory opini on could not have any i mportance for the
practice of the General Assem bly at present, nor for the possibility of application
for admission to the UN at some indeterminate point in the future.
99See inter alia Article 4 of the UN Ch arter and ICJ, Conditions of Admission of a State to Membership in the
United Nations (Article 4 of the Charter), Advisory Opinion of 28 May 1948, ICJ Reports 1948, p. 64.
37PART V IS THE DECLARATION OF INDEPENDENCE BY KOSOVO
IN ACCORDANCE WITH INTERNATIONAL LAW?
71. The labeling of Kosovo’s Declaration of Independence as ‘unilateral’ is
misleading, since Kosovo consulted a num ber of international actors involved in
the status negotiation process before taking this step. Besides, in all his reports on
the situation in Kosovo submitted to the Security Council after 17 Febru ary 2008,
the Secretary-General of the United Na tions uses the term ‘declaration of
independence’. Moreover, on a technical level, ‘Uni lateral De claration of
Independence’ is not a term of art. It should also be noted that in adopting the
Declaration of Independence the Kos ovar authorities were not acting as
Provisional Institutions of Self-Government, but as th e democratically elected
representatives of the people of Kosovo.
72. It is respectfully submitted that the DoI by Kosovo, as an act of secession, is to be
considered in the overall context of the non-consensual break-up of the
for mer
Yugoslavia, 100the notor ious reco rd of institu tionalised discr imination and
suppression of ethnic Albanians in Kosovo in the period 1989-1999, the temporary
administration of the terri tory by the Unite d Nations for over 8 years, th e
deadlocked internationally supervis ed fi nal status negotiations and last but not
least the will of the people of Kosovo. A ll of these factors taken together m ake
Kosovo a clearly unique case; its declaration of independence does not violate any
relevant principle of international law. In fact, independence was the necessary and
logical outcome of an intense controvers y that has been raging between Kosovo
and Serbia for a long period of time.
73. It is not at all claimed that there is a general right of secession. However, under the
special circum stances of Kosovo, af ter the long period of international
administration of its territory, the DoI was not in any way in violation of
100For a ch ronology of th e conflict in Yugoslavia see inter alia D. Beth lehem and M. Weller (eds.), The
‘Yugoslav’ C risis i n I nternational Law: G eneral Iss ues Part I , Cam bridge International D ocuments Serie s
Volume 5, Cambridge University Press, 1997, pp. xix-lvii; for a chronology of events in Kosovo from 1990 to
1999 see Krieger, supra note 5, pp. xx-xxx; a general chronology is given by Weller, supra note 5, pp. 15-23.
38 international law. Albania would like to r eaffirm that international law does
not contain any rules concerning a DoI. As a recognised author has stated:
“The position is that secession is neith er legal nor illegal in international
law, but a legally ne utral act th e consequences of which are r egulated
internationally.”101
74. As noted in an amicus curiae brief to the Canadian Suprem e Court prepared by a
group of distinguished writers:
“[i]n a non-colonial context, the attainment of sovereignty by a territory is merely a
question of fact in the eyes of international law: the new State is considered as such if
its existence is effective. The recognition by third-party States (and by the State from
102
which the territory concerned was severed) is a test of this effectiveness.”
The recognition by 57 States so far of the Republic of Kosovo attests to the fact
that a new State exists. As a commentator has noted,
“international law does not ban secessio nism: the breaking away of a nation or ethnic
group is neither authorized or prohibited by legal rules; it is simply regarded as a fact
of life, outsi de the realm of law, and to which law can attach legal consequences
depending on the circu mstances of the case (f or instance, law may impose the
withholding of recognition of the new entity if this entity has come about in gross
breach of human rights; or may make its recognition conti ngent upon for mal an d
103
actual respect for the rights of individuals and minorities).”
Through the DoI the people of Kosovo exercised its right of self-determination.
101J. Crawford, The Creation of States in International Law, 2ndedition, Oxford University Press: New York,
2007, p. 390.
102See The Territorial Integrity of Quebec in the Event of the Attainment of Sovereignty, par. 4.01 (iv), available
online at: http://www.uni.ca/library/5experts.html (last accessed on 15 April 2009). The Group of Experts was
composed of Thomas M. Franck, Rosalyn Higgins, Alain Pellet, Malcolm N. Shaw, and Christian Tomuschat.
For the full (original) text of their report see: L’Integrite territoriale du Québec dans l’hypothese de l’accession
à la souveraineté, Commission d’Etude des Questions Afferentes à l’Accession du Quebec à la Souveraineté,
103emblée Nationale, Exposés et Etudes, Volume 1 (1992), pp. 377-461.
A. Cassese, Self-Determination of Peoples: A Legal Reappraisal, Cambridge University Press, 1995, p. 340.
39 A) The Right to Self-Determination Is Firmly Established in International
Law and in the Case Law of the Court
75. In terms of the num ber of population Kos ovar Albanians were the third nation in
104
the Socialist Federal Republic of Yugoslavia. However, their r ight to inte rnal
self-determination was continuously denied by the Serb aut horities after the
unilateral revocation of autonomy in 1989. The peoples’ right to self-determination
is an inalienable group right which enjoys an erga omnes character under
international law. Its importance is be st illus trated by its place in the United
Nations Charter, Article 1, paragraph 2 and its inclusion as a separate and the first
Article in both Internati onal Covenants of 1966, the Covenant on Civil and
Political Rights and the Covenant on Econo mic, Social and Cultural Rights. This
article reads: “All peoples have the right of self-determination. By virtue of that
right they freely determine their political status and freely pursue their economic,
social and cultural development.” Another two important international instruments
which address the right to self-determination in a similar manner as above are the
Final Act of the Conference on Security and Co-Operation in Europe of 1975 and
the African Charter on Hum an and Peoples’ Rights of 1981. 105A number of
international institutions have recogni sed and em phasised in their work the
importance of the right to se lf-determination for peace, security and the
maintenance of friendly relations among nations.
76. The International Court of Justice (ICJ), the principal judicial organ of the United
Nations, has on several occasions emphasised the erga omnes nature of this right,
which means that all States have an interest in and an obli gation to prom ote the
106
realisation of the right to self-determination. Thus, in its 1995 judgm ent in the
104
Although as of 31 March 1971 when the last census was taken, there were more than 1,300,000 Albanians in
all of Yugoslavia, which made them the third nation in terms of populations within Yugoslavia, they were denied
the right to statehood in the 1974 Yugoslav Constitution. Inform ation is ex tracted from Slobodan Stankovic,
Yugoslavia 19 74, p. 23, av ailable on line at: http://files.osa.ceu.hu/holdings/300/8/3/text/81-3-1.shtml (last
105essed on 15 April 2009).
See respectively Principle VIII ‘ Equal Rights and self-determination of peoplesthe Final Act of t he
Conference on Secu rity and Co-Operation i n Eur ope, avai lable at:
http://www.osce.org/documents/mcs/1975/08/4044_en.pdf (last accessed on 15 April 2009) and Article 20 of the
African Charter on Hum an and Peoples’ Rights, available at:
http://www.achpr.org/english/_info/charter_en.html (last accessed on 15 April 2009).
106See inter alia G. Zyberi, The Humanitarian Face of the International Court of Justice: Its C ontribution to
Interpreting and Developing International Human Rights and Humanitarian Law Rules and Principles, School
of Human Rights Research Series Vol. 26, Intersentia: Antwerpen – Oxford – Portland, 2008, pp. 102-134.
40 East Timor case the Court described as “irrep roachable” the assertion that “the
right of peoples to self-determ ination, as it evolved from the Charter and from
United Nations practice, has an erga omnes character”. 107It underlined that self-
determination “is on e o f the essen tial p rinciples of contemporary international
law”. 108
77. In the 2004 Advisory Opinion on the Construction of the Wall the C ourt noted:
“the principle of self-det ermination of peoples has been enshrined in the United
Nations Charter and reaffirm ed by th e General Assem bly in resolution 2625
(XXV), pursuant to which ‘Every State has the duty to refrain from any forcible
action which deprives peoples referred to [i n that resolution] . . . of their right to
self-determination.’ Article 1 common to the International Covenant on Economic,
Social and Cultural Rights and the Intern ational Covenant on Civil and Political
Rights reaffirms the right of all peoples to self-determ ination, and lays upon the
States parties the obligation to promote the realization of that right and to respect
109
it, in conformity with the provisions of the United Nations Charter”.
78. The Human Rights Committee, th e treaty-monitoring body of the International
Covenant on Civil and Political Rights (I CCPR) in its General Comment No. 12
entitled: “The right to self -determination of peoples (Art. 1)” of 13 March 1984
stated: “The right of self-determ ination is of particular im portance because its
realization is an essential condition fo r the effective guarantee and observance of
individual human rights and for the promotion and strengthening of those rights. It
is for that reason that States set forth th e right of self-determination in a provision
of positive law in both Covenants and placed this provision as article 1 apart from
and bef ore all of the other righ ts in the two Covenants.” This Comm ittee
concluded that General Comment by statin g that “h istory has p roved tha t the
realization of and respect for the right of self-determination of peoples contributes
to the establishm ent of friendly relations and cooperation between States and to
strengthening international peace and understanding.” 110
107ICJ, East Timor (Portugal v. Australia), Judgment of 30 June 1995, ICJ Reports 1995, p. 102, par. 29.
108
109Ibidem.
Construction of a Wall, Advisory Opinion of 9 July 2004, ICJ Reports 2004, pp. 171-172, par. 88.
110General Comment No. 12 of 13 March 1984, The Right to Self-Determination of Peoples (Art. 1), available at:
http://www.unhchr.ch/tbs/doc.nsf/0/f3c99406d528f37fc12563ed004960b4?Ope… (last accessed on 15
April 2009).
41 79. This General Comm ent by one of the m ost im portant hum an rights organs
emphasizes the im portance of re spect f or the righ t to se lf-determination a s a
condition for the full enjoym ent of hum an rights. There can be no doubt that a
pattern of deliberate and widespread human rights abuses or systematic policies of
oppression as experienced by Kosovar Albanians over the period of 1989-1999
surely fall below an order necessary for a dignified hum an existence. Hence, the
legitimacy of Kosovo’s declaration of i ndependence is further reinforced by the
years of op pression an d exclus ion f rom political and so cial lif e of Kosovar
Albanians culminating in the 1998-1999 campaign of ethnic cleansing.
80. As mentioned above, the duty of St ates to promote the realization of the peoples’
right to self-determ ination and to resp ect it has been reiterated on several
occasions by the International Court of Justice, the S ecurity Council, the General
Assembly of the United Natio ns, th e Human Rights Comm ittee and other
international organs.
81. It has been frequently observed that the part of the Declaration of 1970 on Friendly
Relations adopted by th e General Assembly dealing with se lf-determination was
formulated in a way whi ch excludes the ar gument that in a case of suppression a
people could not unilaterally secede from the oppressing State. Indeed, this
paragraph clearly recognises secessi on where no government representing the
whole people belonging to the territory w ithout distinction as to race, creed or
colour exists.111The last paragraph concerning equal rights and self-determination
of peoples reads:
“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 unit y of sovereign and independent States conducting themselves i n
compliance with the principle of equal rights and self-determination of
peo ples as
111See inter alia K. D oehring, Self-Determination, in: B. Simma (ed.), The Ch arter of th e United Nations, A
Commentary, 2n d e d., Vol. I, 2 002, p . 57 s; J . C rawford, l oc.cit. 118 ss; see a lso C . Tom uschat, Self-
Determination in a Post-Colonial World, in: C. Tomuschat (ed.), Modern Law of Self-Determination, 1993, 1, 8-
11 with references.
42 described above and thus possessed of a go vernment representing the whole people
belonging to the territory without distinction as to race, creed or colour.” 112
82. A similar position was adopted in the 1993 Vienna Declaration and Programme of
Action, adopted by consensus by the represen tatives of 171 States participating at
the second W orld Conferen ce on Hum an Rights. The relevant part of this
Declaration reads:
“2. All peoples have the right of self-determ ination. By virtue of that right they freely
determine their political st atus, and freely pursue their economic, social and cultural
development.
In accordanc e with the D eclaration on Principles of International Law concerning
Friendly Relations and Coope ration Among States in accordance with the Charter of
the United N ations, this s hall not be c onstrued as authorizing or encouragin g any
action which would dismember or impair, totally or in part, the territorial integrity or
political unit y of sovereign and independent St ates conducting themselves in
compliance with the principle of equal rights and self-determination of peoples and
thus possessed of a Government representi ng the whole people belonging t o the
territory without distinction of any kind.”113
83. In the cas e concerning a possible sece ssion of the province of Quebec, the
Supreme Court of Canada clearly recognise d the right of secession in th e case of
oppression. This court stated:
“In summary, the international law right to self-determination only generates, at best,
a right to external self-det ermination of former colonies; where a people is oppressed
as for example under f oreign m ilitary occupation; or where a definable gr oup is
denied meaningful access to the government to pursue their political, economic, social
and cultural development. In all three situations the people in question are entitled to
right to external self-determination because they have been denied the ability to exert
internally their right to self-determination.”114
112General Assembly Resolution 2625 (XXV) of 24 October 1970, 1883rd plenary meeting (emphasis added). In
th
113. Evans, International Law Documents, 6 edition, Oxford University Press: New York, 2003, pp. 161-162.
See Vienna Declaration and Programme of Action, adopted at the World Conference on Human Rights in
Vienna, Austria on 25 June 1993, UN Doc. A/CONF.157/23 (emphasis added).
114
Reference re Secession of Quebec, [1998] 2 S.C.R. 217, par. 138; also in International Legal Materials, 1998,
1340, 1373.
43 Thereby, the Supreme Court of Canada clea rly recognised the right of a people to
secede unilaterally when denied the right to exert internally th eir right to self-
determination as in the case of Kosovo.
84. The constitutional fram ework for provi sional self-governm ent of Kosovo
promulgated by the Special Representative of the Secretary-General of the United
Nations on 15 May 2001 proclaim s that “Kosovo is an entity und er interim
international administration which, with its people, has unique historical, legal,
115
cultural and linguistic attributes”. This shows that the United Nation system has
clearly recognised that Kosovo is a specific entity with a specific people. This has
been accepted for a lo ng time since the id entity of the majority population is
clearly different from the population in Serbia.
85. Resolution 1244 uses different notions indica ting that the final status of Kosovo
has not been decided by the resolution. The resolution speaks of “final settlement”,
“political settlement”, and “future status of Kosovo”. It is clear that for such a final
settlement the will of th e people of Kosovo had to be taken into account.
Therefore, the declaration of indepe ndence by the dem ocratically elected
representatives of Kosovo on 17 Februa ry 2008 was in fu ll accordance with
international law.
B) The Institutionalised Policy of Repr ession and Gross and Wid espread
Human Rights Violations against Kosovar Albanians
86. Throughout history DoIs have been jus tified by suppression by the State from
which secession takes place. 116The people of the Netherla nds justified its actions
in the Declaration of 1581 by referring to the tyranny exercised against them by
the Spanish kings. Another exam ple consists of a sim ilar declaration about 40
years later when the catholic valley of the Valtelin in Northern Italy declared their
115
Article 1.1 of the Constitutional Framework for Provisional Self-Government, UNMIK/Reg/2001/9 - 15 May
1161, available online at: http://www.unmikonline.org/constframework.htm (last accessed on 15 April 2009).
As the United States Declaration of Independence reads: “[W]henever any Form of Government becomes
destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government,
laying its foundation on such principles and organizing its powers in such form, as t o them shall seem most
likely to effect their Safety an d Happiness.” American Declaration of Independence of 4 J uly 1776, available
online at: http://www.archives.gov/exhibits/charters/declaration_transcript.html (last accessed on 15 April
2009).
44 independence from the protestant Grisons who, according to them, suppressed the
117
people in a tyrannical way. When the United States declared their independence
from Britain a famous exchange of notes developed between Britain and France as
to the lawfulness, under international law, of the decision to recognise the United
States taken by France. The French argum ents are an inte resting mixture. They
referred to the effectiveness of the inde pendence established by the United S tates.
However, they also r eferred to the unjust oppression exercised by the King of
England in the American colonies. 118
87. From 1981 to 1988 measures undertaken by the Serb author ities enabled the
Serbian m inority in Kosovo to take c ontrol of the m ost im portant econom ic
resources in the province: the m ining cen tres at Obilic and Titov a Mitrov ica
119
(Mitrovica) and agri-businesses in Kosovo-Polje (Fushë-Kosovë). The above-
mentioned firing en masse and the disenfranchisem ent of the Kosovar Albanians,
starting with those which took place during 1990-1991, created a de facto regime
of apartheid. Since the summ er of 1990 th e Serbian minority in Kosovo with the
support of the Serbian authorities seized total power in Kosovo. The official policy
of the SFRY of ‘unity and brotherhood’ was abandoned in favour of divisive and
extreme nationalist policies.
88. The legal acts adopted by the Serbian authorities during the period 1990-1992,
totalling 36 laws and 470 decisions, are proof of the intense attempts to influence
every aspect of the public life of eth nic Albanians, with devastating consequences
for their integrity, human dignity and prosperity. These acts were preceded by the
120
Program for Kosovo. Despite the proper title, this Program envisaged a series of
discriminatory measures aimed at forcing Albanians to leave Kosovo, and on the
other hand, encouraged Serbs and Montenegri ns to install them selves in Kosovo.
117
J. A. Frowein, Self-determination as a limit to obligations under international law, in: C. Tomuschat (ed.),
Modern Law of Self-Determination, 1993, pp. 211-223.
118J. A. Frowein, loc.cit.
119See inter a lia R . L ukic a nd A . Ly nch, Europe fro m th e Ba lkans to th e Ura ls: The Disintegration o f
Yugoslavia and the Soviet Union, SIPRI, Oxford University Press: New York, 1996, p. 148, Malcolm, supra note
21, pp. 345-346.
120Program for Realization of Peace, Freedom, Equality, Democracy and Prosperity of SAP Kosovo, Official
Gazette of the Socialist Republic of Serbia, No.15/90, 30 March 1990.
45 In summary, these d iscriminatory legal m easures and the consequences there to
were as follows:121
▯ The Law on Job Relations in Special Circumstance of 26 July 1990 resulted in
the subsequent expulsio n of 15 0 0 00 Kosovar Albanians from their jobs,
representing 80 percent of the employed Albanians in Kosovo;
▯ Renewed colonisation atte mpts consisting in providing farming land free of
charge or favourable long-term loans for Serbs or other non-Albanians, were
designed in the Law on Conditions, Manner and Procedure of Distribution of
Farming Land of 20 July 1991;
▯ The Law on Special Conditions for Real Estate Transfer of 18 April 1998
effectively prohibited the selling of r eal estate and possession of property by
Albanians;
▯ The banking sy stem of Ko sovo, the fi nancial funds of the Nation al Bank of
Kosovo and of all commercial banks we re completely undermined, and all
Kosovo and municipality budget funds were usurped, as a consequence of the
approval of the Law on Transmission of Financial Funds of 29 March 1991;
▯ Notwithstanding the demographic m ake up of the Kosovo po pulation (90
percent ethnic Albanians), the Albanian language was officially banned by the
Law on the Official Use of Language and Scripts of 27 July 1991;
▯ Names of streets, squares, schools and cult ural centres in Kosovo were
changed to Serbian names, with the requirement that they be in Serbian and in
the Cyrillic alphabet;2
▯ The Public Prosecutor of Kosovo was suspended, likewise the S upreme and
municipal courts, Legal Office, and Provinc ial Secretariat of Internal Affairs.
Subsequently, all ethnic Albanian judg es, public prosecutors, lawy ers, and
123
police personnel were discharged and replaced by Serbs and Montenegrins;
▯ Kosovo’s mass media consisting of Prishtina Radio and Television, six local
radio station s, newspapers and maga zines, was de stroyed after placing it
under total Serbian control.
121See inter alia D. K umbaro, The Kosovo Crisis in an International Law Perspective: Self-Determination,
Territorial Integrity and t he N ATO In tervention, 2001, pp. 45 -46, av ailable at:
122p://www.nato.int/acad/fellow/99-01/kumbaro.pdf (last accessed on 15 April 2009).
The Deci sion stipulating these changes is published in 12 subsequent issues of the Official Gazette of t he
Republic of Serbia,92.
123
See respectively Law on Abrogation of the Criminal Law, Law on Public Prosecutor, Law on Legal Office,
and Law on Internal Affairs.
46 89. These measures, coupled with the aboliti on of autonomy, had as their overriding
purpose the com plete exclusion of the Ko sovo Albanians from the public life of
Kosovo. This resulted in systematic oppression and gross discrimination and in the
clear denial of the Kosovo Albanians right to intern al self-determ ination. The
above-mentioned measures taken by the Serb authorities were in clear violation of
international law. As the Court itself has acknowledged:
“To establis h instead, a nd to enforce, distinctions, exclusions, restrictio ns and
limitations exclusively ba sed on the ground of race, colour, de scent or national or
ethnic origin which constitute a denial of fundamental human rights is a flagrant
124
violation of the purposes and principles of the Charter.”
90. During the period 1998-1999 over 700 000 t housand persons were forcibly
displaced, or fled under direct threat of attack. The number of the persons killed or
disappeared is estimated at about 15 000. D eep concern about the pattern of State
violence against Kosovar Albanians was expressed in numerous reports by well-
known human rights organisations. 125 Those gross and system atic human rights
violations were ascertai ned on the ground by internatio nal observers from the
OSCE Verification Mission 126 and the KDOM - the Kosovo Diplom atic Observer
Mission. During those years the Secretary-General of the United Nations presented
several reports to the Secu rity Council on the grave hum anitarian situation on the
ground. The escalation of the conflict in Kosovo and its consideration as a threat to
international peace and security was acknowledged and reiter ated in several
Security Council Resolutions.
91. Thus, in resolution 1203, of 24 October 1998, the Security Council expressed its
deep alarm and concern at the continui ng grave humanitarian situation throughout
124
ICJ, 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, p. 57, par. 131.
125Amnesty International Report 1998: FRY: For the Period January – December 1997; Human Rights Watch:
FRY: Humanitarian Law Violations in Kosovo, October 1998; Medecins Sans Frontieres: Survey Data on Mass
Expulsions from Kosovo, A Survey of the Kosovar Refugees at Rosaye, Montenegro, Vincent Brown, Rosaye,
27 April 1999, in Krieger, supra note 5, pp. 90 -118. See also a nu mber of reports by the International Crisis
Group, available at: http://www.crisisgroup.org/home/index.cfm?l=1&id=1243&sr=3 (last accessed on 15 April
1269).
The OSCE Kosovo Verification Mission operated in Kosovo from October 1998 to June 19, Human Rights in
Kosovo: As Seen, As Told, Vol. I, October 1998 - June 1999, available at: http://www.osce.org/item/17755.html
(last accessed on 15 April 2009).
47 Kosovo and the impending humanitarian catastrophe, and re-emphasised the need
127
to prevent this from happening. In Resolution 1239 (1999) the Security Council
emphasised that the h umanitarian situa tion will con tinue to de teriorate in the
absence of a political soluti on to the crisis consistent with the principles adopted
by the Foreign Ministers of Canada, Fr ance, Germany, Italy, Japan, the Russian
Federation, the United Kingdom of Great Britain and No rthern Ireland and the
United States of America on 6 May 1999 (S/1999/516), and urged all concerned to
128
work towards this aim. The Security Council called for the prompt and complete
investigation, including international supervision and participation, of all atrocities
committed against civilians and full cooperation with the International Tribunal for
the former Yugoslavia (ICTY), including co mpliance with its orders, requests for
129
information and investigations. A num ber of cases f or cr imes committed in
Kosovo have been brought before the ICTY. Suffice it to mention the cases against
the highest leaders of Serbia, nam ely Milošević (IT-02-54) and Milutinovi ć et al.
(IT-99-37). 130
92. That deplor able situation trigger ed th e m ilitary inte rvention on hum anitarian
grounds by NATO in 1999. Due to this intervention the direct assault on
the ethnic
Albanian population was ended and the fo rcibly displaced population was able to
return to their homes immediately thereafter.
C) Prolonged Internationally Supervised Negotiations Fa iled to Produce
an Agreement
93. As mentioned above the constitutional framework for provisional self-government
of Kosovo recognises that “Kosovo is an entity under interim i nternational
administration which, with its people, ha s unique historical, legal, cultural and
linguistic attributes.” It is clear that this recogni tion was of considerable
127
SC Res. 1203 (1998) of 24 October 1998.
128SC Resolution 1239 (1999) of 14 May 1999, p. 2, par. 5.
129Ibidem.
130The so-calle d Kosovo cases are: Prosecutor v. Miloše vić (Case No. IT-0 2-54, Ca se Inf ormation Sheet
available at: http://www.icty.org/x/cases/slobodan_milosevic/cis/en/cis_milosevic_slo…, last accessed on
15 April 2009), Prosecutor v. Milutinović et al . (Case No. IT-05-87, Case Inform ation Sheet ava ilable at:
http://www.icty.org/x/cases/milutinovic/cis/en/cis_milutinovic_al_en.pdf, last accessed on 15 April 2009), and
Prosecutor v. Đorđević (Case No. IT-05-87/1, Case In formation Sheet a vailable at:
http://www.icty.org/x/cases/djordjevic/cis/en/cis_djordjevic_en.pdf, last accessed on 15 April 2009).
48 importance for any political settlement as envisaged in resolution 1244. A political
settlement had to respect the right to se lf-determination of the people of Kosovo.
This means that no final political sett lement could be bro ught about without a
participation of the people of Kosovo. Eith er by a referendum or by elections the
people of Kosovo had to give its consent to any political settlement. 131The United
Nations organs tried to bring about a poli tical settlement respecting the right to
self-determination of the people of Ko sovo. However, this proved to be
impossible.
94. As mentioned above on 17 February 2008 the representatives of the people of
Kosovo which were elected on 17 Nove mber 2007, declared the independence of
the country under the nam e: “The Republic of Kosovo”. That step was taken by
Kosovar leaders in close cooperation and consultation with a large num ber of
international actors, after failure to reach an agreem ent with Serbia and the
impossibility of reach ing a solu tion inside the Security Council. The m ajority of
the international community has rea cted with if not voiced at leas t tacit general
approval, towards the declaration of independence.
95. Sometimes the fear is expressed that th e case of Kosovo can be used by separatist
movements. That fear is based on mi sconceptions and a non-acknowledgement of
the sui gen eris (specific) nature of the Kosovo case. Since the declaration of
independence Kosovo has been recognised by 57 countries, with the recognition
procedure underway in other countries. From these countries 22 are m embers of
the European Union, and three are perm anent members of the Security Council of
the United Nations, namely the USA, the UK, and France.
96. All possible m eans were used before the Kosovar authorities declared th e
independence of the country. The Special Re presentative of the Secretary General
for the final status talks on Kosovo, Mr. Martti Ahtisaari, stated in March 2007
that the parties had made it clear that they were not able to agree upon the status of
Kosovo. After that a troika com posed of representatives of the United States, the
European Union, and Russia tried to m ediate in shuttle diplom acy talks for 90
days. Again, no rapprochement of the positions taken by the parties was reached.
131
See J. A. Frowein, The Protection of Human Rights in Europe and the Right to Self-Determination, Studime
10, 2003, Academia Scientiarum et Artium Kosoviensis, 9, 16 s.
49 The Ahtisaari plan was presented to the Security Council, which took note of it,
but did not approve it.
D) Resolution 1244 of the Security Council Left Open the Form of the
Final Status Settlement and the Manner of Its Expression
97. It is som etimes claim ed that under resolution 1244 Kosovo’s declaration of
independence is precluded. Resolution 1244 authorised the Secr etary-General to
establish an interna tional c ivil p resence und er United Nations ausp ices, the
functions of which included nurturing and prom oting the developm ent o f
democratic institutions of self-govern ment of Kosovo, and prevented Belgrade
from exercising governmental authority in Kosovo.
98. As mentioned above, resolution 1244, par. 11 (e) envisaged a political process that
would lead to a final status “taking in to account the Ram bouillet accords,” and
thus acknowledged the possibility of i ndependence for Kosovo, if that was the
will of the people. This is also confirmed by the use of different expressions such
as: “final settlement”, “political settlement”, and “future status of Kosovo”.
99. After extensive negotiations conducte d through the UN Spec ial Envoy involving
both Serbian and Kosovar authorities, the Special Envoy reaffirmed that the status
quo was not sustainable, that the negotiations’ potential to produce any mutually
agreeable outcome on Kosovo’s status was ex hausted, and that the o nly viable
132
option was for Kosovo to be an independent state. After the UN Secretary
General indicated full support for the Special Envoy’s position, and, after one
final effort by the Troika to determine if there was any basis for agreement failed,
Kosovo declared its independence, thus fully respecting and honouring the status
process launched by resolution 1244.
100. At no point thereafter did the Secretary-General’s Special Representative (SRSG)
in Kosovo or any other organ of the UN declare the DoI invalid, or null and void.
In fact, neither the Security Council no r the G eneral Assembly took any action
against the DoI. Further, no United Nations organ recommended that States should
132
Report of the Special Envoy of the Secretary-General on Kosovo’s Future Status, UN Doc. S/2007/168, 26
March 2007.
50 not recognise the newly independent Kos ovo. This shows that the situation is
completely different compared with cases where the Security Council or the
General Assembly recommended or decided that States should not recognise a new
entity as an independent state.
101. Resolution 1244’s preambular reference to “sovereignty and territorial integrity of
the FRY” as se t out in the Hels inki Final Act and A nnex 2 reaffir med a
commitment of Mem ber States, an d di d not address the que stion whether the
representatives of the people of Kosovo could declare independence. Indeed, the
language includes the possibility of inde pendence as an outco me; among others,
Annex 2 is focused solely on the period of interim adm inistration, and this
preambular reference d oes not relate to the iss ue of final status. It is true tha t
Resolution 1244 does not m ention the right to self-determination. However, the
reference to the Helsinki Final Act clearly covers the right of self-determination,
which is set out in detail in Principle VIII of the Helsinki Final Act.
102. As one commentator has noted, “On bala nce, it app ears that Resolution 124 4
neither promotes nor prevents Kosovo’ s secession. Although operative paragraph
1 of Resolution 1244 states that a political solution shall be based on the principles
of Annexes 1 and 2, those a nnexes are silent as to th e governmental form of the
final status. The annex es only s tate that an “inter im political f ramework” shall
afford substantial self-governance for Kosovo and take into acc ount the territorial
integrity of Federal R epublic of Yugoslavia. Paragrap h 11(a), states that the
international civil p resence will prom ote “the establishm ent, pending a final
settlement, of substantial autonom y and self-governm ent in Kosovo...” The
substantial autonomy language is thus addr essed to the interi m status of Kosovo.
Moreover, the referen ces to the te rritorial inte grity of Ser bia ar e only in th e
preambular language and not in the ope rational language. The docum ent is
133
therefore silent as to what form the final status of Kosovo takes.”
133
C.J. Borgen, Kosovo’s Declaration of Independence: Self-Determination, Secession and Recognition, ASIL
Insights, Volume 12, Issue 2, February 29 , 2008, available at: http://www.asil.org/insights080229.cfm (last
accessed on 15 April 2009).
51 E) The Declaration of Independence Was Ado pted by the F reely and
Democratically Elected Representatives of Kosovo
103. It is commonly accepted that sov ereignty rests with the people and it can and
should be expressed through their duly elec ted representatives. The D oI of 17
February 2008 was adopted with 109 votes in favour out of the 120 mem bers of
the Kosovo Asse mbly. This Assembly was democratically elected in Nove mber
134
2007, as confirm ed by international observers. Their vote represents an
overwhelming majority of the representatives of the people of Kosovo.
104. While it was expected that the proposal put forward by the Special Envoy
of the
Secretary General of the UN, Mr. Martti Ahtisaari, would be endorsed by the
Security Council that did not happen. In declaring the independence of the country
the Assembly of Kosovo was exercising the powers vested in it as the duly elected
body of representatives of the people of Kosovo. Kosovo’s President a
nd
Kosovo’s Prime Minister joined that speci al session of the Assem bly and signed
the Declaration. The fact that the DoI was signed by all of them shows that they
were acting in concert in expressing the sovereign will of the people of Kosovo.
105. Already after 4 years of United Nations administration of the territory of Kosovo it
was held that no final solution cou ld be adopted against th e will of the people of
135
Kosovo. It could also be stated th at the United Nations organs have to bring
about a political settlement respecting the right to self-determination. It would not
be in line with the rig ht of self-determination to have a period of international
administration without any expectation for a proper solution. It was clearly the aim
of Resolution 1244 to fa cilitate a political pr ocess designed to determ ine Kosovo
136
future status. After the attempts to negotiate a final settlement during more than
8 years a DOI was the only possibility to arrive at a solution.
134See inter alia Preliminary Statement by the Council of Europe Election Observation Mission in Kosovo
(CEEOM V) available on: http://www.coe.int/t/dc/files/events/2007_kosovo/prelim_statement_en.asp (last
accessed on 15 April 2009); Statement of the Europea n Union on elections in Kos ovo (17 November 2007),
available on: http://www.osce.org/documents/pc/2007/11/28258_en.pdf (last accessed on 15 April 2009)
135J. A. Frowein, loc.cit. 16-18.
136Frowein, loc.cit. 17, compare also A. Zimmermann/C. Stahn, Yugoslav Territory, United Nations Trusteeship
or Sovereign State? Ref lections o n t he C urrent a nd F uture Legal Status of K osovo, N ordic Journal of
International Law 70, 423-460, 2001, 423, in particular 454-460.
52 F) Respect and Protection of the Huma n Rights of the Minorities in
Kosovo’s Constitution and Legal Framework
106. Kosovar leaders have adopted a policy of inclusion of the Serb population of
Kosovo in the decision-m aking and the pol itical processes of the country. On
several occasions prime m inisters and ot her Kosovar officials have addressed
Kosovo’s Parliament in both Albanian a nd Serbian. From the standpoint of the
existing legal framework the recently adopted Constitution of Kosovo creates the
necessary conditions for the representati on of the ethnic minorities in Kosovo in
the political life of the country and their full enjoyment of the highest human rights
standards.
107. This Constitution has a separa te chapter on “Rights of Communities and Their
Members”, namely Articles 57-62. 137Through them additional righ ts have been
acknowledged to ethnic m inorities with the en suing duty on the governm ent of
Kosovo to ensure appropriate conditions enabling communities, and their members
to preserve, protect and develop their identities. Further, the Republic of Kosovo is
bound to prom ote the preservation of the cultural and religious heritage of all
communities as an integral p art of the heritage of Kosovo. Extra p rovisions are
included to accomm odate the participation of the ethnic m inorities in the local
government. Thus, in municipalities wher e at least ten per cent (10%) of the
residents belong to communities not in the majority in those municipalities, a post
of Vice President of th e Municipal Assembly for Communities shall be reserved
for a representative of these communities. 138
108. Besides upholding the highest hum an rights standards, by creat ing the necessary
protection for the rights of the minori ties, Kosovo’s DoI com plies with the
Guidelines on Recognition of New States in Eastern Europe and the Soviet Union
(“Guidelines on Recognition”). Those Guidelines laid down various preconditions
for recognition of new States in Eastern Europe and the Soviet Union, including
137For the full text of t hese articles, the basic provisions, and those on fundamental rights and freedoms visit:
http://www.kosovoconstitution.info/repository/docs/Constitution.of.the… (last accessed on
138April 2009).
Article 62 of the Constitution of Kosovo.
53 139
respect for m inority rights and m aintenance of existing boundaries. Further,
Kosovo has indicated that it considers itself bound by the international obligations
arising under the main international human rights instruments. A large number of
the most important international human rights instruments are directly applicable
in Kosovo and have priority over provisions of laws and other acts of public
140
institutions.
G) Kosovo’s Future and Friendly Relations Policies
109. In its Cons titution Kos ovo has renounced an y territo rial claim s against oth er
States, which should placate any concerns by the authorities of FYROM , or even
Serbia. Moreover, the Republic of Kosovo has also undertaken that it shall seek no
union with, any State or part of any State. Those undertakings are in line with the
November 2005 Guiding principles of the Contact Group f or a settlem ent of the
status of Kosovo.
139Guidelines on Recognition of New States in Eastern Europe and t he Soviet Union of 16 Decem ber 1991.
[T]hey [i.e. European Council State Members] adopt a common position on the process of recognition of these
new St ates, which re quires: - respect fo r th e pro visions of th e C harter of th e United Nations an d th e
commitments subscribed to in the Final Act of Helsinki and in the Charter of Paris, especially with regard to the
rule of law, democracy and human ri ghts; - guarantees f or t he ri ghts of et hnic a nd n ational g roups and
minorities in accordance with the commitments subscribed to in the framework of the CSCE (emphasis added).
It is noteworthy to mention Articles 1 and 3 of t he Kosovo Constitution. Article 1 (Definition of State) of the
Constitution of Kosovo reads:
“1. The Republic of Kosovo is an independent, sovereign, democratic, unique and indivisible state.
2. The Republic of Kosovo is a state of its citizens. The Republic of Kosovo exercises its authority based on the
respect for human rights and freedoms of its citizens and all other individuals within its borders.
3. The Republic of Kosovo shall have no territorial claims against, and shall seek no union with, any State or
part of any State. (emphasis added)” Article 3 (Equality before the Law) of the Kosovo Constitution reads:
“1. The Republic of Kosovo is a multi-ethnic society consisting of Albanian and other Communities, governed
democratically with full respect for the rule of law through its legislative, executive and judicial institutions.
2. The exercise of public authority in the Republic of Kosovo shall be based upon the principles of equality of all
individuals before the law and with full respect for internationally recognized fundamental human rights and
freedoms, as well a s protection of the rights of and participation by all Communities and their members.
(emphasis added)”
140See A rticle 2 2 of Kosovo’s Con stitution. Th is article read s: “H uman righ ts an d fundamental f reedoms
guaranteed by the following international agreements and instruments are guaranteed by this Constitution, are
directly applicable in the Republic of Kosovo and, in the case of conflict, have priority over provisions of laws
and other acts of public institutions: (1) Universal Declaration of Human Rights; (2) European Convention for
the Protection of Human Rights and Fundamental Freedoms and i ts Protocols; (3) International Covenant on
Civil and Political Rights and its Protocols; (4) Council of Europe Framework Convention for the Protection of
National Minorities; (5) Convention on the Elimination of All Fo rms of Racial Discrimination; (6) Convention
on the Elimination of All Forms of Discrimination Against Women; (7) Convention on the Rights of the Child;
(8) Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment.”
54 110. Kosovar authorities have often declared that Kosovo is firm ly oriented towards
NATO and European Union mem bership. They have expressed Kosovo’s
commitment to peace, security, respect for hum an rights, and econom ic
development of the region and to developing friendly relations with its neighbours,
including S erbia. As reit erated several tim es by Kosovar au thorities the
government of Kosovo em braces the values of the European Unio n: peace,
economic development and freedom of movement for all. On their part, European
Union representatives h ave on sev eral o ccasions expres sed their sup port of a
141
European future for Kosovo. Since the beginning of its existence the R epublic
of Kosovo has expressed its firm co mmitment towards developing friendly
relations with all its neighbours, including Serbia.
141
See inter alia European Commission, A European Future for Kosovo, Doc. Reference IP/05/450, 20 April
2005; Mr Olli Reh n, EU Commissioner for Enlargement, European In stitutions’ rea ctions on Ko sovo
independence, Doc. R eference SPEEC H/08/91, 2 0 Fe bruary 2 008; Kosovo (Un der U NSCR 1244 /99) 2 008
Progress Report , Doc. Refer ence SEC(20 08) 269 7, 5 No vember 2008; Co mmission of th e European
Communities, Enlargement Strategy and Main Challenges 2008-2009, COM(2008) 674 final, 5 November 2008,
p. 5.
55 PART VI CONCLUSIONS AND SUBMISSIONS
111. In view of the foregoing the Republic of Albania respectfully requests the Court to
decline to render an advisory opinion in this case. As argued above, the declaration
of independence is not a m atter regulated by international law. Moreover, such an
opinion would not assist the General Asse mbly in exercising its functions, and
would not be conducive to furthering friendly relations among States.
112. Should the Court, nevertheless, find it proper and necessary to render an advisory
opinion, Albania respectfully requests the Court to reply to the question put by the
General Assembly in the following manner: Kosovo’s declaration of independence
is in full accordance with international law, it b eing an expression of the right of
self-determination of the people of Ko sovo, or in the alternative Kosovo’s
declaration of independence does not contradict any applicable rule of
international law.
113. The people of the Republic of Kosovo are determ ined to build a better future for
generations to com e and live in p eace with their neighbours. The Kosovar
authorities have expressed their firm co mmitment to a society which re spects the
human rights and fundam ental freedom s of all Kosovo’s citizens. Kosovo’s
independence is, and will rem ain, a realit y. Serbia needs to decide on how it
wishes to c ome to ter ms with that. The Republic of Albania would like to
emphasise that trying to undermine the development and progress of the people of
Kosovo by im pinging upon their rightful choice s, as Serbia has been doing thus
far, is not conducive to peace and security in the Balkans. For that reason, Albania
respectfully requests the C ourt to indicate that Serbia should respect Kosovo’s
right to self -determination and conduct itse lf in confor mity with the generally
accepted principles of friend ly relations and co operation among States for the
benefit of the two peo ples and in the in terest of maintaining and con solidating
peace and security in the Balkan region.
56
Written Statement of Albania