Republika e Kosovës
ilepublika Kosova - Republic of Kosovo
Qeveria -Vlada - Govemment
Min'istriaePunëve të Jashtme-Ministarstvo lnostranih Poslova -Ministry ofForeign
Affairs
17April 2009
Sir,
With reference to the request for an ~dvisory opinion submitted to the Court by the
General Assembly of the United Nations on the question of the Accordance with
International Law of the Unilateral Declaration of lndependence by the Provisional
Institutions of Self-Government of Kosovo, I have the honour to submit herewith, in
accordance with Article 66 of the Statute of the Court and the Court's Ortler of
17October 2008, the Written Contribution of the Republic of Kosovo.
The Government of the Republic of Kosovo transmits thirty copies of its Written
Contribution and annexes, as well ·asan electronic copy.
I also transmit, for depositn the Registry, a full-scale photographie reproduction of the
Declaration oflndependence of Kosovo as signed on 17February 2008.
Accept, Sir, the assurances ofmy hiÎÏlconsid~
!Sken~dr yseni
Minister of oreign Affairs
Representative offlie"'.epublic of Kosovo before
the International Court of Justice
H.E. Mr. Philippe Couvreur
Registrar
International Court of Justice
Peace Palace
2517 KJ The Hague
The Netherlands 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)
WRITTEN CONTRIBUTION OF THE REPUBLIC OF KOSOVO
17APRIL 2009 TABLE OF CONTENTS
Table of Contents ........................................................................
...111..................................
Abbreviations ........................................................................
.......1x.....................................
Note on Languages, Place-Names and other Usages ..............................................xi..........
WRITTEN CONTRIBUTION
PARTI INTRODUCTION ....................................................................1...
.................
CHAPTER I INTRODUCTION .................................................................3......
....................
I. Adoption of General Assembly Resolution 63/3 ................................................... 4
II. Summary ofKosovo's Written Contribution .............................................5...........
CHAPTERII Kosovo TODAY ..............................................................9.........
..................
I. Overview ........................................................................
...9....................................
II. The Territory of Kosovo ............................................................13..........
...............
III. The People of Kosovo ...............................................................15.......
..................
IV. Constitution of the Republic of Kosovo ..............................................16...............
V. International Relations .............................................................18.........
.................
VI. Internal Developments ..............................................................25........
.................
VII. Presence of the International Community ............................................29..............
VIII. Serbia's Attitude towards Kosovo ....................................................35..................
-111-PART II HISTORY AND CONTEXT .......................................................................
39
CHAPTERIII FROMAUTONOMY TOETHNICCLEANSING .................................41.............
I. Kosovo before 1974 .................................................................42.....
......................
II. Kosovo under the 1974 SFRY Constitution ......................................47................
A. Overview of Constitutional Developments ........................................47.........
B. The 1974 SFRY Constitution .....................................................48.................
III. Illegal Removal of Autonomy (1989) .................................................51................
IV. Persecution and Repression through the 1990s .......................................54............
V. Diplomatie Efforts to Resolve the Crisis ...........................................58.................
VI. Crimes Against Humanity, War Crimes and Human Rights Violations
Committed Against Kosovo Albanians in 1998-1999 .......................................... 60
CHAPTERIV RESOLUTION 1244 (1999) ANDTHEINTERIM PERIOD................................. 69
I. Resolution 1244 (1999) ............................................................70..........
.................
II. The Promotion of Kosovo Self-Govemance .....................................78..................
III. The Transition to Independence ....................................................90..................
....
CHAPTERV FINALSTATUSPROCESS..........................................................93............
.....
I. Eide Reviews and Reports (2004-2005) .........................................95....................
II. Final Status Process Led by Martti Ahtisaari (November 2005-March 2007) ......96
III. Security Council Mission to Kosovo (April 2007) ..................................103........
IV. European Union/United States/Russian Federation Troika on Kosovo
(August-December 2007) ............................................................105.........
............
-IV-PART III THE DECLARATION OF INDEPENDENCE ...................................... 107
CHAPTER VI THEDECLARATION OFINDEPENDENC.E ..............................109..................
I. The Circumstances Surrounding the Signing of the Declaration ....................... 109
II. The Declaration of Independence was made by the Democratically-Elected
Leaders of the People of Kosovo ............................................113........................
III. The Content of the Declaration ...........................................116..........................
..
A. The Historical Elements of the Declaration .............................116................
B. Commitment to Core Principles Concerning the Political and Legal
Organization of the Future State of Kosovo ............................117.................
C. Commitments under International Law as an Equal Member of the
International Community ...............................................118......................
....
PART IV THE LAW ........................................................................
.......................... 123
CHAPTERVII THEQUESTION INTHEREQUESTFORANADVISORY OPINION................. 125
I. The Prejudicial and Argumentative Formulation of the Question ..................... 126
II. The Meaning of the Question ...............................................128......................
.....
III. The Power of the Court to Respond to this Question .......................130...............
IV. The Necessity to Take into Account the Context of the Declaration of
Independence 133
CHAPTERVIII THE DECLARATION OF INDEPENDENCE Dm NOT CONTRA VENEANY
APPLICABLE RULEOFGENERALINTERNATIONAL LAW........................... 137
I. For Kosovo's Declaration of Independence to be not "in Accordance with
International Law", there must Exist a Rule of International Law
Prohibiting its Issuance ...................................................137..................
..............
-V- Il. There Is No Rule of International Law Prohibiting the Issuance of a
Declaration of Independence ........................................................................
...... 140
A. The Issuance of a Declaration of Independence Is a Factual Event Not
Regulated by General International Law ..................................................... 140
B. Longstanding State Practice Confirms that the Issuance of a Declaration
oflndependence Is Not Regulated by General International Law ............... 142
C. State Practice Relating to the Break-up of the Former Yugoslavia
Confirms that the Issuance of a Declaration of Independence Is Not
Regulated by General International Law ..................................................... 148
III. The Court Need Not Reach the Issue of the Right of Self-Determination in
this Proceeding ........................................................................
............................ 157
IV. Kosovo's Ability to Exercise Inter-State Relations Is Now Part of aPolitical
Process of Recognition and Mernbership in International Organizations, a
Process to Which the Court Has Previously Deferred ........................................ 158
CHAPTER IX THE DECLARATION OF INDEPENDENCE DID NOT CONTRAVENE
SECURITY COUNCIL RESOLUTION 1244 (1999) ........................................ 161
I. Security Council Resolution 1244 Did Not Dictate the Terms of the Final
Political Settlernent, Nor Accord the FRY or Serbia a Veto .............................. 163
II. Resolution 1244 Launched a Political Process that Concluded When
Negotiations were Exhausted, the Status Quo Was No Longer Sustainable,
and the only Viable Option for Kosovo Was lndependence ............................... 168
III. Kosovo's Declaration of Independence Was Not Declared Null and Void, or
Without Legal Effect, by the Secretary-General' s Special Representative,
the Authorized Person Responsible for Monitoring Irnplernentation of
Resolution 1244 ........................................................................
.......................... 171
IV. Resolution 1244's Prearnbular Reference to "Sovereignty and Territorial
Integrity" Cannot Be Construed as an Obligation Not to Declare
Independence ........................................................................
.............................. 177
-VlPART V SUMMARY AND CONCLUSION .......................................................... 183
CHAPTER X SUMMARY ...........................................................185..........
........................
I. Key elements ...............................................................185......
..............................
II. Summary of Kosovo' s Legal Arguments ......................................191..................
CONCLUSION .......................................................................197............................................
List of Maps ........................................................................199............................................
ANNEXES
ANNEX1 Declaration oflndependence of Kosovo ...............................205..............
Photographie Reproduction ........................................................207.............
.................
Albanian Original ................................................................211.....
................................
English Translation ..............................................................215.......
..............................
French Translation ...............................................................219......
...............................
ANNEX2 Extraordinary Session of the Assembly of Kosovo, held on
17 February 2008 (Transcript) .......................................223......................
ANNEX3 Report of the International Civilian Office (ICO), Vienna,
27 Feburary 2009 ....................................................247.................
............
ANNEX4 Constitution of the Republic of Kosovo ..............................259................
Preamble and Table of Contents ...................................................261..................
..........
Summary of Principal Provisions ..................................................265...................
........
ANNEX5 Table ofLaws adopted by the Assembly of the Republic of Kosovo .... 271
ANNEX6 Draft Treaty of Friendship and Cooperation .......................................... 279
-vu- ABBREVIATIONS
Ahtisaari Plan ................Comprehensive Proposa! for the Kosovo Status Settlement
(S/2007/l 68/Add.l) (also referred to as "Ahtisaari Settlement"
or "CSP")
Ahtisaari Report.............Report of the Special Envoy of the Secretary-General on
Kosovo's Future Status (S/2007/168)
Contact Group ...............France, Germany, Italy, Russian Federation, United Kingdom,
United States of America
Dossier ........................... Dossier submitted on behalf of the Secretary-General pursuant to
Article 65, paragraph 2, of the Statute of the International Court
of Justice
EU.................................. European Union
EULEX .......................... European Union Rule of Law Mission in Kosovo
EUSR ............................. European Union Special Representative
FRY ............................... Federal Republic ofYugoslavia
G-7 (Group of Seven)....Canada, France, Germany, Italy, Japan, United Kingdom, United
States of America
G-8 (Group ofEight) .....Canada, France, Germany, Italy, Japan, Russian Federation,
United Kingdom, United States of America
ICO ................................ International Civilian Office
ICR ................................ International Civilian Representative
ICTY.............................. International Criminal Tribunal for the Former Yugoslavia
ISG................................. International Steering Group
JIAS ............................... Joint Interim Administrative Structure
KFO R ....................Kosovo Force (international military presence in Kosovo)
KLA ............................... Kosovo Liberation Army (see also UÇK)
KP ........................Kosovo Police
KPC ............................... Kosovo Protection Corps
KPS................................ Kosovo Police Service
-IX-KSC ............................... Kosovo Security Council
KSF................................ Kosovo Security Force
KVM.............................. Kosovo Verification Mission
MUP .............................. Ministarstvo Unutrasnjih Poslova (Ministry of Internai Affairs
of Serbia)
OSCE............................. Organization for Security and Co-operation in Europe
PISG .............................. Provisional Institutions of Self-Govemment of Kosovo
Quint.............................. France, Germany, Italy, United Kingdorn, United States of
America
SFRY............................. Socialist Federal Republic ofYugoslavia
SRSG............................. Special Representative of the Secretary-General
Troika ............................ European Union/United States of Arnerica/Russian Federation
Troïka on Kosovo
UÇK .............................. Ushtria Çlirirntare e Kosovës (Albanian for KLA)
UNMIK ......................... United Nations Interirn Administration Mission in Kosovo
UNOSEK....................... United Nations Office of the Special Envoy for the Future Status
Process for Kosovo
VJ .................................. Vojska Jugoslavije (Yugoslav Army)
-X- NOTE ON LANGUAGES, PLACE-NAMES AND OTHER USAGES
Article 5 of the 2008 Constitution of the Republic of Kosovo provides that the
official languages of the Republic are Albanian and Serbian; and that the Turkish, Bosnian
and Roma languages have the status of official languages at the municipal level or will be
in official use at all levels as provided by law.
In this Written Contribution, names are usually given using both the Albanian and
Serbian names. Occasionally, the most common use in English is employed. For example,
the English term "Kosovo" is used rather than the Albanian forms "Kosovë"/"Kosova";
and "Pristina" is used rather than the Albanian "Prishtinë"/"Prishtina" or the Serbian
"Pristina".
The word "Kosovo" is used to refer to the sovereign and independent State of
Kosovo (whose formai name is "Republic of Kosovo"), or, before 17 February 2008, to
Kosovo as under Security Council resolution 1244 (1999), the Autonomous Province
within the SFRY/FRY/Republic of Serbia, or before that to the territory now within the
borders of Kosovo.
Officiais from the Republic of Serbia refer to Kosovo as "Kosovo and Metohija" or,
in abbreviated form, "Kosmet". These terms are not used in Kosovo.
As the Court is well aware, the name of the State now known as the Republic of
Serbia has changed over the years, as has its claim to be or not to be the continuing State of
the Socialist Federal Republic of Serbia (SFRY). From 2000, when it applied for, and was
granted, admission to the United Nations, it was known as "Federal Republic of
Yugoslavia". This State changed its name to the (State Union of) Serbia and Montenegro
in 2003. When the Republic of Montenegro seceded in May 2006, the remainder of the
State became known as the "Republic of Serbia"*.
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v.
Serbia), Preliminary Objections, Judgment, paras. 23-34.
-Xl- The ethnie groups in Kosovo are referred to as "Kosovo Albanians", "Kosovo
Serbs", "Turks", "Bosnians", "Roma", "Ashkali", and "Egyptians".
The adjective for "Kosovo" is "Kosovo", but sometimes "Kosovar" is used.
"Albanian" generally refers to the language or to the citizens of the Republic of
Albania. "Kosovo Albanians" is used for the Albanian speaking citizens of Kosovo.
It is a convenient usage to distinguish between the terms "Serbian" (meaning of
Serbia) and "Serb" (referring to ethnicity). The name of the language, however, is Serbian.
The aim of the above usage is convenience and clarity. It is not intended to have
political significance.
-xn- PARTI
INTRODUCTION CHAPTERI
INTRODUCTION
1.01. The Republic of Kosovo submits this Written Contribution in accordance with
paragraph 4 of the Order made by the International Court of Justice on 17 October 2008.
1.02. By resolution 63/3 of 8 October 2008, the General Assembly of the United
Nations requested the Court to render an advisory opinion on the following question:
"Is the unilateral declaration of independence by the Provisional Institutions of Self
Government of Kosovo in accordance with international law?"
1.03. The Declaration of Independence was adopted by the representatives of the
people of Kosovo on 17February 2008. A reproduction of the Declaration, as signed, is at
Annex 1, together with a type-written text in Albanian, with English and French
translations. A verbatim transcript of the meeting at which the Declaration of
Independence was signed is at Annex 2. As will be seen, the Declaration was signed by
the President of the Republic, Dr. Fatmir Sejdiu, and by 109representatives, including the
Prime Minister, Mr. Hashim Thaçi, and the President of the Assembly, Mr. Jakup Krasniqi.
1.04. In its Order of 17October 2008, the Court decided that the United Nations and
its Member States were likely to be able to furnish information on the question submitted
to the Court for an advisory opinion, and fixed 17April and 17July 2009 as the time-limits
within which written statements and comments might be submitted to the Court.
Paragraph 4 of the Order reads as follows:
"The International Court of Justice,
4. Decides further that, taking account of the fact that the unilateral declaration of
independence by the Provisional Institutions of Self-Govemrnent of Kosovo of
17February 2008 is the subject of the question submitted to the Court for an advisory
opinion, the authors of the above declaration are considered likely to be able to furnish
information on the question; and decides therefore to invite them to make written
contributions to the Court within the above time-limits."
-3- 1.05. The Republic of Kosovo is grateful to the Court for this invitation, which
enables it to participate in the proceedings on an equal footing. Doing so is in the interests
of fairness and the proper administration of justice, a point made by a number of States
during the meeting of the General Assembly at which resolution 63/3 was adopted 1•
I. Adoption of General Assembly Resolution 63/3
1.06. In a letter dated 15August 2008, the Minister for Foreign Affairs of the
Republic of Serbia requested the inclusion in the agenda of the General Assembly of a
supplementary item entitled "Request for an advisory opinion of the International Court of
Justice on whether the unilateral declaration of independence of Kosovo is in
accordance with international law" 2• The General Committee considered this request on
17 September 2008. After a short debate, during which the usefulness of the request for an
advisory opinion was questioned, and the need for a full airing of the legal and political
considerations was stressed the Com,ittee decided, without a vote, to recommend to the
General Assembly the inclusion of the item on its agenda. On 19 September 2008, acting
on this recommendation, the General Assembly decided, without a vote4, to include the
item in its agenda, referring it direct to plenary 5• In due course, the Republic of Serbia (as
6
sole sponsor) submitted a draft resolution, which was circulated on 23 September 2008 .
1.07. On 8 October 2008, the General Assembly held a brief debate on the item, and
7
proceeded immediately to vote on the draft resolution submitted by Serbia • There were no
1 United Nations, Official Records of the General Assembly, Sixty-third Session, 22 ndplenary meeting,
8 October 2008 (A/63/PV.22), p. 3 (United Kingdom); p. 5 (United States of America); p. 7 (Panama);
p. 12(Canada, Peru, Germany); p. 13(Finland, Australia); p. 14 (Denmark, Norway) [Dossier No. 6].
2
A/63/195 [Dossier No. 1].
3
Ustted Nations, Official Records of the General Assembly, Sixty-third Session, General Committee,
1 Meeting, 17 September 2008, Summary Records (A/BUR/63/SR. l), para. 101 (France), paras. 103-104
(United Kingdom), paras. 105-106 (United States of America).
4 Ibid., 2ndplenary meeting, 19 September 2008 (A/63/PV.2), p. 4 [Dossier No. 3]. As it had done in the
General Committee, the United States of America expressed "serious reservations about the
appropriateness of the General Assembly considering this item", and dissociated itself from the
consensus (ibid.).
5 Ibid., pp. 4-6.
6 A/63/L.2 [Dossier No. 4].
7 United Nations, Official Records of the General Assembly, Sixty-third Session, 22 plenary meeting,
8 October 2008 (A/63/PV.22) [Dossier No. 6].
-4-co-sponsors. Resolution 63/3 was adopted by a vote of 77 in favour, six against,
74 abstentions and 35 Members not participating in the vote. The request for an advisory
opinion was supported by barely 40 % of the total membership of the United Nations.
Those voting against or abstaining on the resolution expressed strong doubts about its
propriety or usefulness and criticized the formulation of the question. They noted, among
other things, that the question was being asked out of context, that the Declaration of
8
Independence had to be considered as part of a much broader background , that it raised
"highly political" matters that are unsuitable for judicial review 9, that it represented a
10
"manipulative attempt to stall the process of recognition" ,and that it would not promote
11
peace and stability in the region • Moreover, no implication can be drawn that States
which voted for the resolution opposed the Declaration of Independence. Indeed, several
of those voting for resolution 63/3 had or have recognized Kosovo as a sovereign and
12
independent State •
1.08. As was pointed out during the General Assembly debate, and notwithstanding
the wishes of many States, resolution 63/3 requesting the advisory opinion was adopted
without serious consideration being given toits usefulness for the Assembly's work, to the
terms of the resolution, or to the formulation of the question. Many States pointed out that
the question was not well worded, and that the resolution failed to place the request in
context 13.
II. Summary of Kosovo's Written Contribution
1.09. This Written Contribution is divided into five parts comprising ten chapters.
8 nd
United Nations, Official Records of the General Assembly, Sixty-third Session, 22 plenary meeting,
8 October 2008 (N63/PV.22), p. 3 (United Kingdom), p. 4 (Albania) [Dossier No. 6).
9
Ibid., p. 11 (Canada).
10
Ibid., p. 4 (Albania); see also p. 2 (United Kingdom).
11
Ibid., p. 4 (Turkey), p. 12 (Germany), p. 13(Australia).
12
Costa Rica, Iceland, Liechtenstein, Montenegro, Norway and Panama. Panama expressly said that its
support for the resolution did "not affect or predetermine the political decision that Panama may or may
not take to recognize the independence of Kosovo" (ibid., p. 7). Panama recognized Kosovo on
17January 2009.
13 See paras. 7.04-7.10 and paras. 7.27-7.34 below.
-5- 1.10. Part I contains, besides this introductory chapter, in Chapter Il, a description
of the Republic of Kosovo today and of developments since the Declaration of
Independence.
1.11. Part II concentrates on the recent history of Kosovo and the final status
negotiations, which provide the immediate context for the Declaration of lndependence.
Chapter III covers briefly the history of Kosovo up to 1999, in so far as this may be
useful to the Court's consideration of the question put to it. In particular, it describes
Kosovo's position under the 1974 SFRY Constitution, the unlawful removal of Kosovo's
autonomy, and the massive human rights abuses, crimes against humanity and war crimes
perpetrated by the FRY and Serbian authorities against the people of Kosovo. This led to
Security Council resolution 1244 (1999), the exclusion of the FRY and Serbian authorities
from Kosovo, and almost a decade of United Nations administration during which there
was a transfer of extensive powers to self-goveming institutions in Kosovo, as explained in
Chapter IV. Chapter V describes the final status process that took place between
May 2005 and December 2007, ending with President Ahtisaari' s recommendation m
favour of independence, which was supported by the United Nations Secretary-General.
1.12. Part III consists of Chapter VI, which describes the Declaration of
Independence of 17 February 2008, the circumstances surrounding its signing, its authors,
and its contents.
1.13. Part IV addresses the legal aspects of the question contained in General
Assembly resolution 63/3. Chapter VII opens the legal analysis by addressing in detail
the question that has been asked to the Court. It shows that the question is narrow in
scope, but contains - brief as it is - prejudicial and argumentative assumptions. It also
points out that General Assembly resolution 63/3 did not indicate whether or how an
answer to the question would assist the General Assembly in its work.
1.14. Chapter VIII explains why the Declaration cannot be regarded as not "in
accordance with intemational law". lt shows that international law contains no prohibition
conceming the issuance of declarations of independence; rather, long-standing State
practice, as well as practice that occurred in the context of the break-up of the former
-6-Yugoslavia itself, confirms that the issuance of a declaration of independence is a factual
event not regulated by intemational law.
1.15. Chapter IX concludes the legal argument by explaining why the Declaration
cannot be seen as contravening Security Council resolution 1244 (1999). It shows that,
rather than prohibiting the 1ssuance of the Declaration of Independence,
resolution 1244 (1999) established a framework that fully contemplated the possibility of a
declaration of independence occurring. This is further supported by the fact that the
Special Representative of the Secretary-General (SRSG), having had the power to declare
the Declaration null and void in the event it was not in accordance with Security Council
resolution 1244 (1999), did not do so.
1.16. The Written Contribution of the Republic of Kosovo concludes with Part V.
Chapter X contains a summary of key contextual elements and of the legal arguments.
By way of conclusion, Kosovo requests the Court, in the event that it deems it appropriate
to respond to the request in General Assembly resolution 63/3, to find that the Declaration
of Independence of 17 February 2008 did not contravene any applicable rule of
international law.
7- CHAPTERII
KOSOVO TODAY
2.01. Developments in Kosovo since 17February 2008, the date of the Declaration
of Independence, are not directly relevant to the question before the Court, which concerns
the legality under international law of the Declaration itself. Nevertheless, it may assist the
Court to give, at the outset, an overview of developments in the Republic of Kosovo as of
the date of this Written Contribution, 14 months on from the Declaration oflndependence.
Much has been achieved in terms of state-building over this period. The Security
Council's objective of "a multi-ethnic and democratic Kosovo, which must reinforce
regional stability" 4, is well on the way to being achieved.
2.02. After a brief overview (Section 1), the present chapter describes the territory of
Kosovo (Section 11), its people (Section 111), Constitution (Section IV), international
relations (Section V), internal developments (Section VI) and the current international
presence in Kosovo (Section VII). Finally, Serbia's continuing uncooperative attitude will
briefly be mentioned (Section VIII).
I. Overview
2.03. The Republic of Kosovo is one of seven sovereign and independent States 15 to
16
emerge from the break-up of the Socialist Federal Republic of Yugoslavia (SFRY) •
Like the other six new States, Kosovo had been one of eight constituent parts of
14
Statement by the President of the Security Council, 24 October 2005, S/PRST/2005/51, p. 2 [Dossier
No. 195].
15
Bosnia and Herzegovina, Republic of Croatia, Republic of Kosovo, Republic of Macedonia (referred to
for all purposes within the United Nations under the designation "the former Yugoslav Republic of
Macedonia"), Republic of Montenegro, Republic of Serbia, and Republic of Slovenia.
16The Court has had occasion to refer to the dissolution/break-up and disappearance of the SFRY on a
number of occasions (see, most recently, Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Croatia v. Serbia), Preliminary Objections, Judgment, para. 75
(citing Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections, Judgment,
I.C.J. Reports 2004, pp. 310-311, para. 78)).
-9- the SFRY 17. The Kosovo settlement was "the last major issue related to Yugoslavia's
collapse" 18.
2.04. The Republic of Kosovo is today a "democratic and secular, multi-ethnic
republic, guided by the principles of non-discrimination and equal protection under
the law" 19. There have been many positive developments since the Declaration of
Independence on 17 February 2008. While it is neither practical nor necessary to give a
20
comprehensive account ,the Republic of Kosovo has taken its place as a sovereign and
independent State and a responsible member of the international community. Further, the
Republic of Kosovo is fully implementing its commitments under the Ahtisaari Plan, in
particular its commitments to human rights and fundamental freedoms and the rights of the
Communities and their members, as well as to good relations with its neighbours.
2.05. Important developments since the Declaration of Independence include the
adoption on 9 April 2008 of the Constitution of the Republic of Kosovo, its entry into force
on 15 June 2008, and its implementation; the adoption and implementation by the Republic
of Kosovo of the many laws envisaged in the Ahtisaari Plan; the recognition of Kosovo
by 56 States; and the continuing support of the international community, including the
International Steering Group (ISG) and the International Civilian Representative/
Office (ICR/ICO), as well as the successful deployment throughout Kosovo of the
European Union's Rule of Law mission (EULEX).
2.06. In exerc1se of its sovereignty, and upon the invitation of the Republic of
Kosovo, the implementation of Kosovo's commitments to the international community
under the Ahtisaari Plan is supervised by the ISG and the ICR/ICO, who also assist with
17
The constitutional history of Kosovo within the former Yugoslavia, including its position as an
Autonomous Province on an equal footing with the six Republics, as well as the dissolution of the former
SFRY, is considered in Chapter III below.
18
Report of the European Union/United States/Russian Federation Troika on Kosovo, S/2007/723,
10December 2007, Annex, para. 3 [Dossier No. 209]. Special Envoy Ahtisaari in his report referred to
"this last episode in the dissolution of the former Yugoslavia" (Report of the Special Envoy of the
Secretary-General on Kosovo's future status, S/2007/168, 26 March 2007, Annex, para. 16 [Dossier
No. 203]).
19Declaration oflndependence, paragraph 2 (Annex 1).
20An extensive account of developments in 2008 is given in the Annual Government Report 2008,
presented by the Prime Minister to the Assembly on 29 January 2009 (available on the Kosovo
Govemment website <http://ks-gov.net/pm>).
-10-implementation in many ways, as do other international partners, including international
and non-govemmental organizations.
2.07. The Foreign Minister of the Republic of Kosovo, addressing the Security
Council on 26 November 2008, referred to the progress made since the Declaration of
Independence, saying "we have laid the foundations for a democratic and multi-ethnic
State at peace with all its neighbours and firmly established on its path towards
21
integration into Euro-Atlantic structures" • In the debate of Security Council meeting on
23 March 2009, the Foreign Minister described recent achievements, including the
22
adoption of further laws and the launching of the Kosovo Security Force •
2.08. Assessing the position on the first anmversary of the Declaration of
Independence, at a special meeting of the Assembly of the Republic of Kosovo held on
17February 2009, the President of the Republic, Dr. Fatmir Sejdiu, said:
"One year after the declaration of an independent and sovereign state, Kosovo has
made cautious steps forward, but vital for building democratic institutions and full 23
confirmation that our state strongly helps peace and stability in the region."
And Prime Minister Hashim Thaçi said:
"The year which passed was a year of achievements and pride, a historie year of
success for Kosovo.
Within one year, we constructed and made functional all of the state institutions of the
Republic of Kosovo.
Working together, we have created a new feeling of optimism; a new feeling of faith;
of strength and unity; that there is no challenge which the citizens of Kosovo cannot
deal with and overcome." 23
2.09. In its report to the International Steering Group of 27 February 2009, reviewing
the first year of independence, the International Civilian Office noted that
21 Security Council, provisional verbatim record, sixty-third year, 6025h meeting, 26 November 2008,
S/PV.6025, p. 7 [Dossier No. 124).
22 Security Council, provisional verbatim record, sixty-fourth year, 6097 thmeeting, 23 March 2009,
S/PV.6097, pp. 7-9.
23Assembly of the Republic of Kosovo, meeting of 17February 2009, Transcript (available on the website
of the Assembly of the Republic of Kosovo <http://www.kuvendikosoves.org/>).
-11- Mapl
THE REPUBLIC OF Kosovo
()Sjen,ca
i
Leskovâcr:
MONTENEGRO
-12- "The past year witnessed much progress in Kosovo, progress in building institutions,
anchoring Rule of Law, in the creating and consolidating of the elements of statehood,
and in taking its place in the community of nations as a multi-ethnic democracy.
Through all its actions the state of Kosovo has proven its independence and shown that
independence is irreversible. Kosovo has also made strides, in partnership with the
International Civilian Office (ICO), in fulfilling the promises made to its citizens and
to the world when, in its Declaration of Independence, it committed itself to full
implementation of the Comprehensive Proposai for the Kosovo Status
Settlement (CSP)".
And looking forward, the ICO said that
"Through continued effort and vigilance, we believe that 2009 will be a year of
progress for Kosovo - progress in meeting its commitments to itself and to its
international partners to implement the CSP, and progress toward the destiny foreseen
in its Constitution, 'as a free democratic, and peace-loving country that will be a
homeland for all of its citizens'. "
II. The Territory of Kosovo
2.1O.Kosovo has a total area of 10,887 square kilometres. It has well-established
borders with each of its four neighbours: Macedonia (to the south); Albania (to the south
and west); Montenegro (to the north-west); and Serbia (to the north and east). Along some
of its borders, Kosovo is divided from its neighbours by high mountain ranges with
elevations of 2,000 to 2,500 metres. The central part of Kosovo is an extensive plain with
an elevation of 400-700 metres.
2.11. The capital of the Republic is Pristina (Prishtina/Pristina), with an estimated
population of 500,000. Other main towns include Prizren in the south-west, with
over 200,000 inhabitants, Ferizaj/Urosevac in the south with approximately 160,000,
Mitrovica in the north with approximately 130,000, Gjilan/Gnjilane in the south-east with
over 130,000, Gjakovë/Djakovica in the southwest with 90,000, and Pejë/Peé in the west
with 80,000.
2.12. Map 1 (p. 12) gives a general overview of the Republic of Kosovo.
24Report of the International Civilian Office, Vienna, 27 February 2009 (Annex 3) (hereafter "ICO
Report"), opening and closing paragraphs.
-13- Map2
ETHNIC COMPOSITION OF Kosovo
• Albanians Percentage of
minority populations
Kastriot 30-49%
Obilié 0
2 Fushë Kosovë
Kosovo. olje 0 15-30%:
Novobèrdë 5-15% j
3 NovoBrdo 0 1
0 <5% !
1Forillusirative_jrposesonly
-14- 2.13. Kosovo has no direct access to the sea, but negotiations are foreseen with
Albania conceming the use of the harbour of Shëngjin located on the northem part of the
Albanian coast.
2.14. The Ahtisaari Plan provided that
"[t]he territory of Kosovo shall be defined by the frontiers of the Socialist
Autonomous Province of Kosovo within the Socialist Federal Republic of Yugoslavia
as these frontiers stood on 31 December 1988, except as amended by the border
demarcation agreement between the Federal Republic of Yugoslavia and the former
Yugoslav Republic ofMacedonia on 23 February 2001" 25,
and went on to say that Kosovo shall engage with Macedonia to establish a technical
commission "to physically demarcate the border and address other issues arising from the
26
implementation of the 2001 agreement" • A Joint Kosovo-Macedonian Commission for
Demarcation and Marking the State Border was established in April 2008, and in
June 2008 a tripartite Protocol was signed with Albania conceming the placing of a border
marker at the Kosovo/Macedonia/Albania tri-point. In October/November 2008, the Joint
Commission signed protocols conceming main and auxiliary border columns along the
Kosovo-Macedonia border.
III. The People of Kosovo
2.15. According to the assessment of the Statistical Office of Kosovo
(December 2008), the number of habituai residents is 2.1 million. 92 % of the inhabitants
are Kosovo Albanians; 8 % are from other communities, including Serbs, Turks, Bosnians,
Gorani, Roma, Ashkali and Egyptians. Map 2 (p. 14) shows the ethnie composition of
Kosovo.
2.16. Kosovo Serb inhabitants are scattered throughout the territory of Kosovo.
About one third live in the area of Kosovo north of the lbar River (which flows through the
25
Comprehensive Proposal for the Kosovo Status Settlement, S/2007/168/Add.l, 26 March 2007,
Annex VIII, Article 3.2 [Dossier No. 204]; see also Statementhe President of the Security Council,
S/PRST/2001/7, 12 March 2001 [Dossier No. 177].
26
Comprehensive Proposal for the Kosovo Status Settlement, S/20071168/Add.l, 26 March 2007,
Annex VIII, Article 3.3 [Dossier No. 204].
-15-town of Mitrovica). There are other Kosovo Serb-majority areas south of the River Ibar.
About two thirds of Kosovo Serbs live south of the Ibar, including a sizeable number near
the southern border with Macedonia.
IV. Constitution of the Republic of Kosovo
2.17. The first 120days after the Declaration of lndependence, from 17 February to
14 June 2008, were a transition period, as foreseen in the Ahtisaari Plan. On 15 June 2008,
the Constitution of the Republic of Kosovo entered into force.
2.18. In the Declaration of Independence, the democratically-elected representatives
of the people of Kosovo undertook to
"adopt as soon as possible a Constitution that enshrines our commitment to respect the
human rights and fundamental freedoms of all our citizens, particularly as defined by
the European Convention on Human Rights. The Constitution shall incorporate all
relevant principles of the Ahtisaari Plan and be adopted through a democratic and
deliberative process." 27
2.19. The Ahtisaari Plan contained much of relevance to the drafting of the
Constitution, including general principles and provisions on human rights, protection of the
rights of communities, decentralization, the justice system, and a continued international
civilian and military presence.
2.20. A draft of the Constitution was published in February 2008. There followed an
intense period of informing members of the public and consultation, by Internet and at
meetings throughout Kosovo. Following the consultations, the Commission reviewed and
revised the draft, adopting it on 1April 2008. On 2 April, the International Civilian
Representative (ICR), Ambassador Peter Feith, reviewed the revised draft, and certified it
as in accordance with the terms of the Ahtisaari Settlement. The Constitution was then
28
adopted by the Assembly on 9 April 2008, and entered into force on 15 June 2008 .
27
Declaration oflndependence of Kosovo, 17 February 2008, paragraph 4 (Annex 1).
28The text of the Constitution is available on the Assembly's website, in Albanian, Serbian and English
(<http://www.assembly-kosova.org/common/docs/Kushtetuta_sh.pd±>(Albanian), <http:/www .assembly
kosova.org/common/docs/Ustavl Republike Kosovo Srpski .pd±> (Serbian), and <http://www.assembly-
-16- 2.21. The Constitution makes prov1s10n for the institutions of the Republic: a
29
unicameral Assembly with 120members ,a Head of State (President of the Republic)3°, a
Government consisting of a Prime Minister, one or more deputy prime ministers, and
ministers 31, and judicial institutions (Constitutional Court, Supreme Court, district courts,
2
municipal courts)3 •
2.22. Kosovo is a multi-party democracy. General elections have taken place in
2001, 2004 and 2007 and were found by the OSCE and the Council of Europe to be free
and fair.
2.23. The Constitution makes provision for the highest standards ofhuman rights. In
33
addition to an extensive catalogue of rights and freedoms , the Constitution provides for
the direct applicability of eight international human rights instruments: Universal
Declaration of Human Rights; European Convention for the Protection of Human Rights
and Fundamental Freedoms and its Protocols; International Covenant on Civil and Political
Rights and its Protocols; Council of Europe Framework Convention for the Protection of
National Minorities; Convention on the Elimination of All Forms of Racial Discrimination;
Convention for the Elimination of All Forms of Discrimination Against Women;
Convention on the Rights of the Child; Convention against Torture and Other Cruel,
Inhuman and Degrading Treatment or Punishment 34.
2.24. The Constitution contains special provisions for the benefit of Communities
which are not in the majority. An important matter in this regard is decentralization, that is
35
local self-government at the level of municipalities •
kosova.org/common/docs/Constitutionl of the Republic ofKosovo.pdt> (English)). The preamble and table
of contents, together with an informai summary of its principal provisions, are at Annex 4.
29 Constitution of the Republic of Kosovo, Chapter IV (Articles 63-82).
30 Ibid., Chapter V (Articles 83-91).
31 Ibid., Chapter VI (Articles 92-101).
32 Ibid., Chapters VII and VIII (Articles 102-118).
33 Ibid., Articles 23-54.
34
Ibid., Articles 22.
35
Ibid., Chapter III (Articles 57-62).
-17- 2.25. The official languages of the Republic are Albanian and Serbian. Turkish,
Bosnian and Roma languages have the status of official languages at the municipal level or
will be in official use at all levels as provided by law 36.
2.26. Kosovo has adopted its state symbols (flag, seal and anthem), all of which
37
reflect its multi-ethnic character . For example, the Flag of the Republic bears the
geographical shape of Kosovo in gold on a dark blue field, surmounted by six white, five
38
pointed stars .
V. International Relations
2.27. The Republic of Kosovo seeks good relations with ail of its neighbours,
including Serbia. As provided in its Constitution, it has no territorial daims against, and
39
shall seek no union with, any State or part of any State . During the final status
40
negotiations, the Kosovo side proposed a Treaty of Friendship and Cooperation , but this
was not accepted by the Serbian side.
2.28. Under the Constitution, the President of the Republic leads the foreign policy
of Kosovo 41 , assisted by the Minister for Foreign Affairs 42 • Since the Declaration of
lndependence, the President and Foreign Minister have represented Kosovo in numerous
international meetings, bilateral and multilateral, including meetings of the United Nations
General Assembly and Security Council. The Foreign Minister participated in the EU
Western Balkans Forum meeting at Hluboka nad Vltavou (Czech Republic) on
28 March 2009. Other Ministers have also been active internationally. The Assembly of
36
Constitution of the Republic of Kosovo, Article 5.
37
Ibid., Article 6.
38
Ibid., Article 6; Law No. 03/L-038 on the Use of State Symbols of the Republic of Kosovo,
20 February 2008, Official Gazette of the Republic of Kosova, No. 26, 2 June 2008, pp. 35-40.
39
Constitution of the Republic of Kosovo, Article 1(3).
40
Annex 6.
41
Constitution of the Republic of Kosovo, Article 84 (10).
42
The Foreign Ministry is organised in accordance with the Law on the Ministry of Foreign Affairs and
Diplomatie Service of the Republic of Kosovo (Law No. 03/L-044, 13March 2008, Official Gazette of
the Republic of Kosova, No. 26, 2 June 2008, pp. 50-53).
-18-the Republic of Kosovo is also involved in international relations, both in its day-to-day
activities3 and through contacts with the parliarnents of other States4 .
Recognition
2.29. As of the date of cornpletion of this Written Contribution, Kosovo had been
recognized as a sovereign and independent State by 56 States, frorn all geographical
reg10ns:
Africa Eastern Europe
Burkina Faso Albania
Liberia Bulgaria
Senegal Croatia
Sierra Leone Czech Republic
Estonia
Asia Hungary
Latvia
Afghanistan
Lithuania
Japan
Macedonia
Malaysia
Montenegro
Maldives
Poland
Marshall Islands
Slovenia
Micronesia
Nauru Latin America and Caribbean
Palau
Republic of Korea Belize
Samoa Colornbia
United Arab Ernirates Costa Rica
43
In addition to legislating in the field of foreign affairs and its role in relation to treaties, the Assembly
may adopt resolutions on foreign policy matters, such as the Resolution for Millennium Declaration
adopted on 17 October 2008 (available on the website of the Assembly of the Republic of Kosovo
<http://www.kuvendikosoves.or).>
44
For example, on 6 January 2009, the President of the Assembly, Mr. Jakup Krasniqi, signed a
Memorandum of Understanding with the Speaker of the Turkish Assembly, on co-operation between the
two Assemblies.
-19-Latin America and Caribbean (continued) Ireland
Italy
Panama
Liechtenstein
Peru
Luxembourg
Western Europe and Others Malta
Monaco
Australia
Netherlands
Austria
Norway
Belgium
Portugal
Canada
San Marino
Denmark
Sweden
Finland Switzerland
France Turkey
Germany United Kingdom
Iceland United States of America
2.30. It will be seen that the recognizing States corne from all parts of the world.
They include all of Kosovo's neighbours other than Serbia. Four of the other six States to
emerge from the disintegration of the SFRY (Croatia, Macedonia, Montenegro, and
Slovenia) have recognized Kosovo. The recognizing States include a majority of the
members of the Security Council in both 2008 (8 members) and 2009 (as of April,
9 members), as well as all of the Group of Seven (G-7) States, 22 of the 27 Members of the
European Union 45,24 of the 28 NATO Member States, 33 of the 47 Council of Europe
Member States, 35 of the 56 OSCE Member States. The recognizing States represent two
thirds of world Gross Domestic Product.
2.31. In addition, there have been practical moves by certain States which have not
yet formally recognized Kosovo. For example, among the five EU Member States that
45
ln paragraph 3 of its resolution of 5 February 2009 on Kosovo and the role of the EU, the European
Parliament "[e]ncourages those EU Member States which have not already done so to recognise the
independence of Kosovo" (availableat <http://www.europarl.europa.eu/sides/getDoc.do?type=TA&
reference=P6-TA-2009-0052&language=EN&ring=B6-2009-006).
-20-have not yet recognized Kosovo, Greece and Slovakia nevertheless accept passports issued
by the Republic of Kosovo, as do other States, such as Saudi Arabia.
2.32. The fact that some States have not yet recognized the Republic of Kosovo in no
way indicates that they have adopted a position opposed to recognition. In most cases,
especially with States that are distant from the region, recognition is likely to be simply a
matter of time. It is noteworthy that most States in Europe have recognized. The number
of States that have taken a positive decision not to recognize at the present time seems to
be rather limited. In addition, some States appear not to have a practice of according
recognition 46•
Diplomatie Relations and the Establishment of Embassies
2.33. Since independence, Kosovo has enacted vanous laws m the field of
international relations:
Law on the Status, Immunities, and Privileges of Diplomatie and Consular Missions
and Personnel in Kosovo and of the International Military Presence and
47
its Personnel ,
Law on the Foreign Service of the Republic ofKosovo 48,
Law on Consular Services of Diplomatie and Consular Missions of the Republic
9
of Kosovo 4 .
2.34. The Law on Status, Privileges and Immunities g1ves effect to the express
commitment in the Declaration of Independence to continue to be bound by the Vienna
50
Conventions on diplomatie and consular relations . In addition to diplomatie missions in
46This is the case with New Zealand. The Foreign Ministry is in contact with the Ministry of Foreign
Affairs and Trade of New Zealand, through standard diplomatie channels, over the modalities of
establishing diplomatie and consular relations.
47
Law No. 03/L-033, 20 February 2008, Official Gazette of the Republic of Kosova, No. 26, 2 June 2008,
pp. 46-49.
48
Law No. 03/L-122, 16December 2008, ibid., No. 46, 15January 2009, pp. 31-39.
49
Law No. 03/L-125, 16December 2008, ibid., pp. 45-48.
50
Declaration oflndependence of Kosovo, paragraph 9 (Annex 1).
-21- Kosovo, the law applies to the ICR and EUSR, EULEX, the United Nations and its
specialized agencies, the OSCE, and "any other international intergovernmental
organization as the Minister for Foreign Affairs may deem appropriate" 51• Sorne States
still maintain liaison offices, which are accorded by law the same privileges and
immunities as diplomatie missions.
2.35. As of the date of this Written Contribution, 17 States have Embassies in
Pristina (Albania, Austria, Croatia, Czech Republic, Bulgaria, Finland, France, Germany,
Hungary, Italy, Netherlands, Norway, Slovenia, Switzerland, Turkey, United Kingdom,
and the United States of America). Seven States have accredited non-resident
Ambassadors (Canada, Belgium, Denmark, Estonia, Ireland, Japan, and Sweden).
The Republic of Kosovo has diplomatie missions in Ankara, Berlin, Bern, Brussels,
London, Paris, Rome, Tirana, Vienna, and Washington, D.C. Another eight diplomatie
missions have been recently decreed by the President of the Republic of Kosovo
(Budapest, Ljubljana, Prague, Sofia, Stockholm, Tokyo, The Hague, and Zagreb). In
addition, high officiais of the Republic of Kosovo have engaged in extensive bilateral
diplomacy with many other States.
Treaties and International Law
2.36. The Constitution of the Republic of Kosovo provides that the Republic of
Kosovo shall respect international law 52, and that the Republic concludes international
53
agreements and becomes a member of international organizations . International
agreements relating to certain subjects are ratified by a two-thirds vote of all the deputies
of the Assembly. These include territory, peace, alliances, political and military issues, as
well as fundamental rights and freedoms and the participation of Kosovo in international
organizations. Other international agreements are ratified upon signature of the President
of the Republic 54. International agreements become part of the internai legal system upon
51
Law No. 03/L-033 on the Status, lmmunities, and Privileges of Diplomatie and Consular Missions and
Personnel in Kosovo and of the International Military Presence and its Personnel, Article 3.2,ficial
Gazette of the Republic of Kosova,o. 26, 2 June 2008, pp. 46-49.
52Constitution of the Republic of Kosovo, Article 16 (3).
53
Ibid., Article 17 (1).
54
Ibid., Article 18.
-22-publication in the Official Gazette. They are directly applied except where application
55
requires the promulgation of a law • International agreements and legally-binding norms
56
of international law have superiority over the laws of the Republic .
2.37. In the Declaration of Independence, the democratically-elected representatives
of the people of Kosovo gave the following commitment:
"We hereby undertake the international obligations of Kosovo, including those
concluded on our behalf by the United Nations Interim Administration Mission in
Kosovo (UNMIK) and treaty and other obligations of the former Socialist Federal
Republic of Yugoslavia to which we are bound as a former constituent part, including
the Vienna Conventions on diplomatie and consular relations. We shall cooperate
fully with the International Criminal Tribunal for the Former Yugoslavia. We intend
to seek membership in international organisations, in which Kosovo shall seek to
contribute to the pursuit of international peace and stability." 57
2.38. Article 145 (1) of the Constitution provides:
"International agreements and other acts relating to international cooperation that are
in effect on the day this Constitution enters into force will continue to be respected
until such agreements or acts are renegotiated or withdrawn from in accordance with
their terms or until they are superseded by new international agreements or acts
covering the same subject areas and adopted pursuant to this Constitution."
2.39. Kosovo is in the process of establishing with its treaty partners the status of
treaties to which Kosovo was bound as a former constituent part of the SFRY.
On 7 October 2008, the Ministry of Foreign Affairs addressed a Note Verbal to all
Embassies, Liaison and Diplomatie Offices accredited in the Republic of Kosovo asking
for a list and the texts of the treaties concerned. Replies have been received from a number
of States, and are being studied by the Ministry. Even before 7 October 2008, there had
already been contacts with certain States about treaty succession.
2.40. Kosovo is also beginning to enter into new bilateral treaties. Thus, for
example, on 13January 2009, Kosovo and Turkey signed an Agreement on the Mutual
Abolition of Visas. Another important treaty under negotiation concerns the State border
55
Constitution of the Republic of Kosovo, Article 19 (1).
56Ibid., Article 19(2).
57Declaration oflndependence, paragraph 9 (Annex 1).
-23- 58
between the Republic of Kosovo and the Republic of Macedonia • Three bilateral
agreements are currently under negotiation with Albania (on travel of citizens; on
readmission; and on cooperation between the two foreign ministries). Negotiations of
bilateral agreements in different areas are also under way with other European countries.
International Monetary Fund, World Bank
2.41. The procedure is in train for the Republic of Kosovo to join the International
Monetary Fund and the International Bank for Reconstruction and Development, as well as
the other organizations in the World Bank Group - International Finance Corporation
(IFC), International Development Agency (IDA), and Multilateral Investment Guarantee
Agency (MIGA). IMF staff visits to Kosovo have taken place regularly. A draft Law on
Membership of the Republic of Kosovo in the International Monetary Fund and the World
Bank Group Organizations has been finalized, approved by the Government, and sent for
final approval to the Assembly.
2.42. In early March 2009, the IMF sent a formal "quota letter" to Kosovo. The
Government sent a positive reply on 17March 2009. Kosovo's membership applications
will be submitted to the executive bodies of the organizations, and with their approval to
the respective boards of governors.
European Union
2.43. The Foreign Minister of the Republic of Kosovo, Mr. Skender Hyseni, stated in
the United Nations Security Council on 23 March 2009:
"We are committed also to pursuing the goal of full membership in the European
Union (EU) as soon as feasible and are implementing the reforms required. ... The
future of all nations of the Western Balkans li59 in European integration, and Kosovo
intends to pursue that goal very vigorously."
58
See para. 2.14 above.
59 th
Security Council, provisional verbatim record, sixty-fourth year, 6097 meeting, 23 March 2009,
S/PV.6097, p. 9.
-24- 2.44. In a Communication on Enlargement Strategy of 5November 2008, the
European Commission concluded:
"Kosovo has a clear European perspective, in line with the rest of the Western
Balkans. In the autumn of 2009, the Commission will present a feasibility study
evaluating means to further Kosovo's political and socio-economic development, and
examining how best Kosovo can progress as part of the region towards integration
with the EU in the context of the Stabilization and Association Process." 60
2.45. Among other things, the Commission's Communication noted that "[t]he
constitution adopted by Kosovo is in line with European standards and a considerable
amount of key legislation has been adopted" 6.
2.46. The EU Presidency Press Statement issued at the end of the EU-Western
Balkans Forum meeting at Hluboka nad Vltavou (Czech Republic) on 28 March 2009
included the following paragraph on Kosovo:
"The participants discussed ways of assisting the economic and political development
of Kosovo through a clear European perspective, in line with the European perspective
of the region. In this respect, they welcome the Commission's intention to present, in
the autumn of 2009, a study. Kosovo's full involvement in regional initiatives needs
to be ensured in a constructive manner." 62
2.47. The Agency for European Integration within the Office of the Prime Minister
has formulated proposais to reform reporting, implementation and coordination
mechanisms in relation to integration within the EU.
VI. Internai Developments
2.48. Important steps have been taken since 17February 2008, and especially since
15June 2008, to establish the institutions foreseen in the Constitution 63. These include in
particular security sector reform and the development of institutions connected with the
6°Communication from the Commission to the Council and the European Parliament, Enlargement Strategy
and Main Challenges 2008-2009, 5 November 2008, COM(2008)674 final, p. 14.
61Ibid., p. 5.
62Para. 7 (available at the EU Presidency website <http://www.eu2009.cz/>).
63
ICO Report, section II (Annex 3).
-25-rule of law. Kosovo has begun to issue its own passports, which are recognised in rnany
countries.
Adoption of laws
2.49. The ICO has certified that the draft laws in the "Ahtisaari package" are in
accordance with the Ahtisaari Plan. Among the 41 such laws that carne into force on
15 June 2008 were Laws on Diplomatie Privileges and Imrnunities 64; on Kosovo Police 65;
66 67
on Citizenship ; on the Rights of Cornrnunities and their Mernbers ; on Travel
Docurnents 68 ; on the Ministry of Foreign Affairs 69 ; on General Elections 70; and on the
Central Bank 71. Further "Ahtisaari package" laws were adopted in Decernber 2008.
2.50. A table of laws adopted and published in the Gazette since Independence is
at Annex 5.
Economie developments
2.51. The laws conceming the econorny foreseen in the Ahtisaari Plan have been
enacted, including legislation on publicly owned enterprises 72,the Privatization Agency of
73
Kosovo ,the Kosovo Property Agency, and the various independent econornic regulators
of Kosovo. These laws and their ongoing irnplernentation assure a cornprehensive
64 Law No. 03/L-033 on the Status, Immunities and Privileges of Diplomatie and Consular Missions and
Personnel in Republic of Kosova and of the International Military Presence and its Personnel, Official
Gazette of the Republic of Kosova, No. 26, 2 June 2008, pp. 46-49.
65
Law No. 03/L-035 on Police, ibid., No. 28, 4 June 2008, pp. 29-46.
66
Law No. 03/L-034 on Citizenship ofKosova, ibid., No. 26, 2 June 2008, pp. 28-34.
67
Law No. 03/L-047 on the Protection and Promotion of the Rights of Communities and their Members in
Kosovo, ibid., No. 28, 4 June 2008, pp. 65-73.
68Law No. 03/L-037 on Travel Documents, ibid., No. 27, 3 June 2008, pp. 69-75.
69Law No. 03/L-044 on Ministry for Foreign Affairs and Diplomatie Service of Republic of Kosovo, ibid.,
No. 26, 2 June 2008, pp. 50-53.
70Law No. 03/L-073 on General Elections in the Republic of Kosovo, ibid., No. 31, 15June 2008, pp. 1-38.
71Law No. 03/L-074 on the Central Bank of the Republic of Kosovo, ibid., No. 32, 15June 2008,
pp. 15-27.
72
Law No. 03/L-087, ibid., No. 31, 15June 2008, pp. 39-57.
73
Law No. 03/L-067, ibid., No. 30, 15June 2008, pp. 30-43.
-26-framework for rapid and sustainable econom1c growth. On 19 December 2008, the
74
Assembly adopted the budget for 2009 amounting to Euro 1.43 billion .
2.52. In a recent article, the Minister ofEconomy and Finance wrote:
"For a decade now, Kosovo has been at peace, working with the support of the
international community to build a modem, investment-friendly framework for
sustainable economic development.
Over these years, as a consequence of newfound freedom and extraordinary efforts, a
great deal has been achieved. A modem legal framework has been constructed,
consistent with EU directives and international best practices. Liberal market policies
have been implemented, including low tariffs, duties, and taxes. Progressive
govemment institutions have been built. A sound banking sector has developed under
the regulation and supervision of the Central Bank of Kosovo. Contemporary public
sector financial management systems have been implemented, which many consider
75
amongst 'the best in the Balkans."'
2.53. In his introduction to the 2008 End of Mission Report on UNMIK's Pillar IV
(European Union Pillar), the Deputy SRSG EU Pillar, Mr. Paul Acda, summarised the
economic progress in the following terms:
"Today Kosovo has the legal framework that a modem market economy needs: laws
favourable to business creation, an investor friendly tax system, and rules and
regulations that protect the entrepreneur as well as the consumer. Banking and
insurance supervision has been established. The private sector has received a boost
from a successful privatisation process. Market regulators are in place and public
utilities are on the sometimes painful path of modernisation. Kosovo can be proud of
one of the most modem and efficient Customs services in South East Europe. And a
number of agreements have integrated Kosovo's economy into the region's, thus
76
paving the way for a common European future."
Constitutional Court
77
2.54. The Law on the Constitutional Court was adopted by the Assembly in
December 2008, and promulgated by the President at the end of that month. It entered into
74Law No. 03/L-105 on Budget of the Republic of Kosovo for the Year 2009.
75 TheEconomist, 14February 2009.
76
UNMIK, European Union Pillar, The 10 Key Achievements, End of Mission Report, 1999-2008, p. 3
(published September 2008, available on the UNMIK website <http://www.unmikonline.org/>).
77
Law No. 03/L-121, Official Gazette of the Republic of Kosova, No. 46, 15January 2009, pp. 20-30.
-27- force on 19 January 2009. 41 candidates responded to the invitation to apply to become a
judge on the Court. The Special Committee to Review Candidates for Appointment to the
Constitutional Court has conducted interviews, and is expected to select a short-list of
candidates for submission to the Assembly for its approval in April or May 2009. In the
meantime, the Interim Secretariat of the Court has begun registering cases.
Security sector
2.55. A series of important measures have been taken in the security sector. The
Kosovo Police Service is highly regarded as one of the best in the region. The Kosovo
Security Council had its first meeting in February 2009. Also in February 2009, the
Assembly confirmed the first Director of the Kosovo Intelligence Agency, who is charged
with developing an agency that is multi-ethnic and apolitical. As foreseen in the Ahtisaari
Plan, and with guidance and support from KFOR, the Kosovo Security Force (KSF)
became operational in January 2009. The Kosovo Protection Corps (KPC) has been
disbanded.
Decentralization
2.56. An important matter for the protection of the rights of minority communities
and their members is the decentralization programme. The Assembly has adopted the Law
78 79
on Local Self-Govemment and the Law on Municipal Administrative Borders in
accordance with the Ahtisaari Plan. The second of these provides for the establishment of
five new municipalities, as well as extension of the Municipality ofNovobërdë/Novo Brdo.
According to this Law, out of 38 municipalities, ten will have a Serb majority, meaning
that over 95 % of the members of the Serb community will be able to govem themselves,
including competences in education, health, police, urban and economic planning, etc. The
Law on Local Self-Govemment provides that in those municipalities where at least 10 %
of the population cornes from a minority community there will be an additional vice
president position for minorities. Education is guaranteed in the language of the
78
Law No. 03/L-040, 20 February 2008, Official Gazette of the Republic of Kosova, No. 28, 4 June 2008,
pp. 47-64.
79Law No. 03/L-041, 20 February 2008, ibid., No. 26, 2 June 2008, pp. 1-17.
-28-community. There are already excellent cases of cohabitation in several municipalities, for
example in the municipalities of Kamenicë/Kamenica, Novobërdë/Novo Brdo and
Gjilan/Gnjilane.
2.57. Also vital is the protection of religious and cultural heritage. The Assembly
has passed the Law on the Establishment of Special Protective Zones 80, which sets up a
mechanism to protect Kosovo's religious and cultural patrimony, including the sites of the
Serbian Orthodox Church. In February 2009, the Kosovo Police assumed responsibility
1
for a 24-hour protection of these sites 8 .
VII. Presence of the International Community
82
2.58. As was foreseen in the Declaration of Independence , in accordance with the
83
provisions of the Constitution of the Republic of Kosovo , and at its invitation, an
international civilian presence and an international military presence are in Kosovo for the
time being to supervise and support implementation of various aspects of Ahtisaari Plan.
2.59. In addition to the international bodies in Kosovo, many States (including some
that have not yet recognised Kosovo) are generously and actively assisting Kosovo on a
bilateral and multilateral basis. For example, international donors pledged a total of
1.2billion Euros at the Kosovo Donors Conference in Brussels on 11 July 2008.
2.60. As provided in the Ahtisaari Report, the powers of the international presences
are focused in critical areas such as community rights, decentralization, the protection of
80 Law No. 03/L-039 on Special Protective Zones, Official Gazette of the Republic of Kosova, No. 28,
4 June 2008, pp. 74-76.
81 ICO Report, section 11.3(Annex 3).
82 Annex 1. Paragraph 5 of the Declaration read: "We welcome the international community' s continued
support of our democratic development through international presences established in Kosovo on the
basis of UN Security Council resolution 1244 (1999). We invite and welcome an international civilian
presence to supervise our implementation of the Ahtisaari Plan, and a European Union-led rule of law
mission. We also invite and welcome the North Atlantic Treaty Organization to retain the leadership role
of the international military presence in Kosovo and to implement responsibilities assigned toit under UN
Security Council resolution 1244 (1999) and the Ahtisaari Plan, until such time as Kosovo institutions are
capable of assuming these responsibilities. We shall cooperate fully with these presences to ensure
Kosovo's future peace, prosperity and stability."
83 Constitution of the Republic of Kosovo, Chapter XIV, especially Articles 146, 147 and 153.
-29-the Orthodox Churches in Kosovo and the rule of law, but at the same time "Kosovo's
authorities are ultimately responsible and accountable for the implementation of the
84
Settlement proposal" .
2.61. Central elements of the international civilian presence are the International
Civilian Representative (ICR), supported by the International Steering Group (ISG), and
the European Union's Rule of Law mission, EULEX. Other international bodies,
including the OSCE, continue to play a role. KFOR remains as the international military
presence. Details of the activities of these various bodies may be found in their
publications, including their websites. The following is only a brief introduction.
2.62. The International Steering Group (ISG), foreseen in the Ahtisaari Plan, has
85
been established comprising key international stakeholders . The principal tasks of the
ISO are to appoint the International Civilian Representative (ICR), to support and give
guidance to the ICR, to determine in due course that Kosovo has implemented the terms of
the Ahtisaari Plan, to provide direction on the ultimate phase-out of the ICR, and to
conduct one or more reviews of the mandate of the ICR, on the basis of the state of
6
implementation of the Ahtisaari Plan 8 .
2.63. The ISO meets regularly to discuss matters relevant to implementation of the
87
Plan. It has issued a series of statements •
2.64. As noted above, Kosovo is responsible for managing its own affairs. For an
initial period, an International Civilian Representative (ICR), supported by an
International Civilian Office (ICO), supervises the implementation of the Ahtisaari Plan
84Report of the Special Envoy of the Secretary-General on Kosovo's future status, S/2007/168,
26 March 2007, paras. 13-14 [Dossier No. 203].
85The ISG currently comprises 25 States: Austria, Belgium, Bulgaria, Croatia, Czech Republic, Denmark,
Estonia, Finland, France, Germany, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Netherlands,
Norway, Poland, Slovenia, Switzerland, Sweden, Turkey, United Kingdom, United States of America.
86Comprehensive Proposai for the Kosovo Status Settlement, S/2007/168/Add.l, 26 March 2007, Article 12
[Dossier No. 204].
87Available on the website of the ICO (<http://www.ico-kos.org/?id=3>).
-30-and supports the relevant efforts of the Kosovo authorities 88• The ICR's role is set out in
the Ahtisaari Plan inter alia at Article 12 (General Principles) and Annex IX. It is
summarized in the Ahtisaari Report as follows:
"The International Civilian Representative, who shall be double-hatted as the
European Union Special Representative and who shall be appointed by an
International Steering Group, shall be the ultimate supervisory authority over
implementation of the Settlement. The International Civilian Representative shall
have no direct role in the administration of Kosovo, but shall have strong corrective
powers to ensure successful implementation of the Settlement. Among his/her powers
is the ability to annul decisions or laws adopted by Kosovo authorities and sanction
and remove public officiais whose actions he/she determines to be inconsistent with
the Settlement. The mandate of the International Civilian Representative shall
continue until the International Steering Group determines that Kosovo has
89
implemented the terms of the Settlement."
2.65. EULEX-Kosovo (EULEX) is the European Security and Defence Policy
90
(ESDP) mission envisaged in the Ahtisaari Plan . The basis for the presence of EULEX
in Kosovo is the mandate foreseen in the Declaration of Independence, the Ahtisaari Plan,
the Constitution, the invitation from the institutions of the Republic of Kosovo, and the EU
Joint Action of 4 February 2008 91.
2.66. EULEX was set up by a Joint Action of the Council of the European Union. Its
Mission Statement is set out in Article 2, paragraph 1,of the Joint Action, as follows:
"EULEX KOSOVO shall assist the Kosovo institutions, judicial authorities and law
enforcement agencies in their progress towards sustainability and accountability and in
further developing and strengthening an independent multi-ethnic justice system and
multi-ethnic police and customs service, ensuring that these institutions are free from
political interference and adhering to internationally recognised standards and
European best practices." 92
88
Comprehensive Proposai for the Kosovo Status Settlement, S/2007/168/Add.l, 26 March 2007,
Annex IX, Article 1 [Dossier No. 204].
89
Report of the Special Envoy of the Secretary-General on Kosovo's future status, S/2007/168,
26 March 2007, Annex, p. 8 [Dossier No. 203]. For the ICO Report, see Annex 3.
9
°Comprehensive Proposai for the Kosovo Status Settlement, S/20071168/Add.l, 26 March 2007,
Articles 12.4 and 13;Annex IX, Article 2.3; and Annex X [Dossier No. 204].
91See point 3 of Kosovo's four points (Report of the Secretary-General on the United Nations Interim
Administration Mission in Kosovo, S/2008/692, 24 November 2008, Annex I [Dossier No. 90]).
92Council Joint Action 2008/124/CFSP of 4 February 2008 on the European Union Rule of Law Mission in
Kosovo, EULEX Kosovo, Official Journal of the European Union, L 42/92, 16.02.2008.
-31- 2.67. EULEX thus has an operational role in the field of police and the courts, with
judges and prosecutors, but in other areas its function is to monitor, mentor and advise.
In relation to the courts, basic provisions are the Law on Jurisdiction, Case Selection and
93
Case Allocation of EULEX Judges and Prosecutors in Kosovo and the Law on Special
94
Prosecution Office of the Republic of Kosovo (both adopted by the Assembly of Kosovo
as part of the "Ahtisaari package"). EULEX deployed throughout Kosovo with effect from
9 December 2008. A report by EULEX is annexed to the Secretary-General's latest report
on UNMIK.
2.68. The Ahtisaari Plan envisaged that an international military presence would be
established by NATO. KFOR, originally established pursuant to Security Council
resolution 1244 (1999), remained in Kosovo after independence in accordance with the
Declaration of Independence and the Constitution of the Republic of Kosovo 95,upon the
invitation of Kosovo and with its agreement. It carries out functions consistent with the
96
Ahtisaari Plan .
2.69. In the light of the changed circumstances following the Declaration of
Independence, UNMIK has been reconfigured by the Secretary-General (with the support
of the Security Council) and now has a much reduced role. Its chief remaining functions
(rule of law) came to an end in December 2008. It is foreseen that the number of persons
working for UNMIK will be reduced to around 500 by July 2009.
2.70. Following the Declaration of Independence, the Secretary-General informed
the Security Council "that UNMIK would continue to implement its mandate in the
97
light of the evolving circumstances" . A debate took place in the Security Council on
18February 2008, the day after the Declaration of Independence, at the request of Serbia
and the Russian Federation. The Council took no action at that stage or indeed at any time
93Law No. 03/L-053, Official Gazette of the Republic of Kosova, No. 27, 3 June 2008, p. 59.
94
Law No. 03/L-052, ibid, p. 47.
95
Constitution of the Republic of Kosovo, Article 153.
96
On I7 February 2008, the President of the Republic wrote to NATO on behalf of the institutions to invite
NATO to maintain KFOR in Kosovo.
97
Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo,
S/2008/354, 12 June 2008, para. 2 [Dossier No. 88].
-32- 98
before 26 November 2008 • In his report on UNMIK for the period 16December 2007 to
1March 2008, the Secretary-General said that UNMIK "has acted, and will continue to
act, in a realistic and practical manner and in the light of the changed circumstances" 99.
2.71. In his special report of 12 June 2008, the Secretary-General said that, on the
basis of extensive consultations and pending guidance from the Security Council, he
intended "to adjust operational aspects of the civilian presence in Kosovo" 100. The
Secretary-General's report on UNMIK of 24 November 2008 101 described the current
political situation in Kosovo, including the actions of the Kosovo institutions under the
102
Constitution of the Republic of Kosovo • The Secretary-General further described
progress with reconfiguration of UNMIK, the relationship between UNMIK and
103
EULEX , and how "UNMIK has begun to adapt its structure and profile in response to
the profoundly changed reality in Kosovo following Kosovo's declaration of independence
and the adoption of a Constitution" 104• He noted that "reconfiguration is both timely and
necessary, and is being accelerated in order to adapt it fully to the prevailing circumstances
on the ground. lt is taking place in a transparent manner with respect to all stakeholders
and is consistent with the United Nations position of strict neutrality on the question of
Kosovo's status." 105 The report described "a dialogue with the Govemment of Serbia"
conducted by the SRSG, but further recorded that the institutions of Kosovo "have clearly
expressed that they do not accept the results of the arrangements set out in the present
report". The Secretary-General was nevertheless "encouraged by Pristina's indication that
98 th
Security Council, provisional verbatim record, sixty-third year, 5839 meeting, 18 February 2008,
S/PV.5839 [Dossier No. 119]. Further debates were held in the Security Council, without action being
taken, on 30 March 2008 (S/PV.5850 [Dossier No. 120)); 21 April 2008 (closed meeting, S/PV.5871);
20 June 2008 (S/PV.5917 [Dossier No. 122]); and 25 July 2008 (S/PV.5944 [Dossier No. 123]).
99 Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo,
S/2008/211, 28 March 2008, para. 30 [Dossier No. 86]; see also paras. 31-33. See also the Secretary
General's report on UNMIK for the period 1 March to 25 June 2008 (S/2008/458, 15July 2008 [Dossier
No. 89]).
100 Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo,
S/2008/354, 12June 2008 [Dossier No. 88].
101 Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo,
S/2008/692, 24 November 2008 [Dossier No. 90].
102
Ibid., para. 2.
103
Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo,
S/2008/692, 24 November 2008, paras. 21-25 [Dossier No. 90].
104
Ibid., para. 48.
105
Ibid., para. 49.
-33-it is willing to cooperate with EULEX, and, inter alia, with the European Union and
NATO" 106.
2.72. On 26 November 2008, the Security Council held a debate on the Secretary
107
General's report on UNMIK . At the end of the debate, the Council, in a Presidential
108
statement , welcomed the report and
"taking into account the positions of Belgrade and Pristina on the report which were
reflected in their respective statements, welcomes their intentions to cooperate with the
international community".
The statement continued:
"The Security Council welcomes the cooperation between the UN and other
international actors, within the framework of Security Council Resolution 1244
(1999), and also welcomes the continuing efforts of the European Union to advance
the European perspective of the whole of the Western Balkans, thereby making a
decisive contribution to regional stability and prosperity."
2.73. The Security Council raised no objection to the developments on the ground in
Kosovo described in the Secretary-General' s reports, and in particular the role of the
institutions of Kosovo and of the international community, as well as the Secretary
General's proposals for the "umbrella" role of UNMIK. In so doing, the Security Council
took into account the position of the Republic of Kosovo. That position was reflected in
the statement of its Foreign Minister, Mr. Skender Hyseni, in the Security Council debate
on 26 November 2008, in the following terms:
"We are ... committed to the early deployment of EULEX throughout Kosovo, in
accordance with the mandate that derives from the Kosovo Declaration of
Independence, the Ahtisaari package, the Constitution of the Republic of Kosovo, the
laws of the Republic of Kosovo, the European Union joint action plan of
4 February 2008, and the invitations of 17February and 8 August 2008 for EULEX
deployment.
106
Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo,
S/2008/692, 24 November 2008, para. 52 [Dossier No. 90].
107 th
Security Council, provisional verbatim record, sixty-third year, 6025 meeting, 26 November 2008,
S/PV.6025 [Dossier No. 124].
108
Statement by the President of the Security Council, S/PRST/2008/44, 26 November 2008 [Dossier
No. 91].
-34- In a declaration of 18November, the institutions of the Republic of Kosovo made very
clear their rejection in its entirety of the six-point proposai contained in the Secretary
General's report (S/2008/354). Our position and response to the report remains the
same. We cannot permit any action that infringes upon the sovereignty and territorial
integrity of the Republic of Kosovo. We will cooperate with EULEX on its
deployment throughout Kosovo on the basis of the mandate deriving from the
aforementioned documents, fully respecting the soverei109y, territorial integrity and
unitary character of the Republic of Kosovo."
2.74. The Security Council held a further debate on 23 March 2009, on the
Secretary-General's latest report on UNMIK 110• That report indicated that UNMIK had
111 112
accelerated the process of reconfiguration ,and annexed the first report of EULEX .
VIII. Serbia's Attitude towards Kosovo
2.75. Serbia does not accept the independence of Kosovo. Indeed, Serbian officiais,
including President Boris Tadié, the current Foreign Minister, Mr. Vuk Jeremié and
"Minister for Kosmet", Mr. Goran Bogdanivié, repeatedly say that Serbia will "never"
recognize the independence of "Kosmet". The 2006 Constitution of the Republic of
Serbia, promulgated in an act of extraordinary bad faith in the middle of the final status
process, institutionalizes Serbian obstructionism, by referring to the "constitutional
obligations of all state bodies to uphold and protect the state interests of Serbia in Kosovo
and Metohija in all internai and foreign political relations"' 13.
2.76. In adopting this negative line on Kosovo, the Serbian leadership is out of line
with its public opinion. There is widespread acknowledgment in Serbia that the future lies
in Europe, not in fighting old and lost battles over Kosovo. But that is not acknowledged
by high officiais of that country.
109 th
Security Council, provisional verbatim record, sixty-third year, 6025 meeting, 26 November 2008,
S/PV.6025, pp. 8-9 [Dossier No. 124]; see also Security Council, provisional verbatim record, sixty
fourth year, 6097hmeeting, 23 March 2009, S/PV.6097, p. 8
110 Report of the Secretary-General on the United Nations Interim Mission in Kosovo, S/2009/149,
17March 2009.
111Ibid., para. 35.
112Ibid., annex 1.
113 Constitution of the Republic of Serbia (2006), preamble; see paras. 5.16-5.17 below.
-35- 2.77. Serbia constantly seeks to obstruct the development of Kosovo's international
relations. Serbia does whatever it can to discourage States from recognizing Kosovo,
and to block Kosovo's admission to international and regional organizations. Serbia's
initiative in pursuing the present advisory proceedings seems to be motivated, at least in
part, by the hope that States will delay recognizing Kosovo or admitting it to international
institutions while the proceedings are pending. The President of Serbia, Mr. Boris Tadié,
said in the Security Council debate on 23 March 2009:
"I believe that all United Nations Member States should respect the fact that the
International Court of Justice will decide the issue, and that no one should in any
way prejudge its deliberations. Therefore, we expect no encouragement for further
recognitions. I call on all United Nations Member States that have not recognized the
unilateral declaration of independence to stay the course while the Court conducts its
work."114
2.78. Serbia refuses to cooperate with efforts to integrate Kosovo Serbs into Kosovo
structures. It actively discourages Kosovo Serbs from participating at all levels. It has
ordered Kosovo Serbs to withdraw from the Kosovo Police. Such actions are potentially
highly detrimental to the interests of the Serb community and its members in Kosovo.
(Sorne Kosovo Serbs nevertheless do continue to participate in the institutions of the
Republic of Kosovo, including as Government Ministers.) Serbia engages in deliberately
provocative actions in the north of Kosovo. A particularly flagrant example was the
meeting of Serbian parliamentarians with the members of the so-called "Assembly of the
115
Association of Serb Municipalities" held at Zveçan/Zvecan on 17February 2009 .
2.79. As the Foreign Minister of the Republic of Kosovo said in the Security Council
debate on 23 March 2009,
"the Republic of Serbia ... has continued to encourage and support the illegal and
criminal structures in the north of Kosovo. Serbia is working actively to prevent Serb
citizens of Kosovo from cooperating with institutions that are seeking to protect their
rights and to help them solve their problems and improve their lives. The Serbian
114
Security Council, provisional verbatim record, sixty-fourth year, 609?1hmeeting, 23 March 2009,
S/PV.6097, p. 6
115Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo,
17March 2009, S/2009/149, para. 3.
-36- Government supports illegal parallel structures that exploit our Serb citizens but
never deliver appropriate assistance or any solutions to their problems." 116
2.80. Serbia continues to interfere in the north of Kosovo and elsewhere in areas
inhabited by members of the Kosovo Serb Community, in an effort to obstruct the
implementation of the Constitution and the Ahtisaari Plan in those areas (including
provisions which are for the benefit of the Serb community). This has a detrimental effect
on the well-being of the inhabitants. For their part, the institutions of Kosovo are doing
what they can, with the support of the international community, to ensure that the
Constitution and the laws of Kosovo, including those flowing from the Ahtisaari Plan, are
respected and applied throughout Kosovo.
2.81. The Republic of Kosovo looks forward to good neighbourly relations with the
Republic of Serbia. Its Foreign Minister, Mr. Hyseni, assured the Security Council on
23 March 2009:
"My Govemment stands ready to engage in talks with Serbia, as two independent and
sovereign States, on a wide range of issues of mutual interest. Dialogue would help to
117
ease tensions and normalize relations between our two countries."
116 th
Security Council, provisional verbatim record, sixty-fourth year, 6097 meeting, 23 March 2009,
S/PV.6097, p. 8.
117
Ibid., p. 9.
-37- PART II
HISTORY AND CONTEXT CHAPTERIII
FROM AUTONOMY TO ETHNIC CLEANSING
3.01. This Chapter describes the main historical developments in Kosovo leading up
to the deployment of UNMIK in June 1999. Chapter IV addresses govemance in Kosovo
from June 1999 onward, while Chapter V focuses on the final status process launched by
the United Nations in 2005. These three chapters set the historical context relevant to the
Court's consideration of the specific question before it. The period following 1974, when
Kosovo enjoyed a high degree of autonomy within the Socialist Federal Republic of
Yugoslavia (SFRY), and the period between 1988 and 1999, when Kosovo Albanians
suffered severe human rights violations, crimes against humanity and war crimes at the
hands of the FRY and Serbian authorities, are the most relevant to the eventual Declaration
oflndependence of 17February 2008, the subject of these proceedings 118•
3.02. The present Chapter deals briefly with Kosovo before its occupation by Serbia
in 1912, and then its existence within the Kingdom of Serbs, Croats and Slovenes, the
Yugoslav state formed in 1918 (Section 1). Next, it describes Kosovo' s dual constitutional
position under the 1974 SFRY Constitution, whereby Kosovo as a Federal unit was on
essentially the same footing within the Federation as the six Republics, with a balance
of political power within the Federation that in principle should have protected
Kosovo from Serbian domination (Section 11). However, in 1989, Serbia under President
Slobodan Milosevié illegally and brutally terminated Kosovo's dual constitutional position
by stripping it of the rights it had at the Federal level, and dismantling the extensive
autonomy Kosovo enjoyed within Serbia (Section 111). At the same time, discriminatory
measures were taken which severely restricted the rights of the Kosovo Albanians to
education, work and political representation (Section IV). This spurred several of the
other SFRY Republics to move to independence, sparking armed conflicts that raged in the
former Yugoslavia throughout the first half of the 1990s. After the conclusion and
implementation of the Dayton Accords (1995), FRY and Serbian attention tumed back to
118For greater detail on this and subsequent periods ofKosovo's history, see N. Malcolm, Kosovo. A Short
Hist01y(1998). For an account of more recent events, see M. Weller, Contested Statehood, Kosovo 's
Strugglefor lndependence (2009).
-41- Kosovo, leading to the tragic events of 1998-1999. Diplomatie efforts by the United
Nations, OSCE and NATO sought to forestall FRY and Serbian human rights violations
against the people of Kosovo, but did not succeed (Section V). Throughout the 1990s,
there were large-scale human rights abuses against the Kosovo Albanian majority,
culminating in the crimes against humanity, ethnie cleansing, war crimes and destruction
of 1998-1999, which saw over 1.45 million Kosovo Albanians (over 90 % of the
population) fleeing or forced from their homes, many driven across the borders into
neighbouring countries (Section VI).
I. Kosovo before 1974
3.03. For over four and a half centuries before 1912, Kosovo, like much of the
Balkan peninsula, was part of the Ottoman Empire, govemed not by Serbian authorities but
by the Porte. In the second half of the nineteenth century Kosovo was at the heart of the
Albanian national movement (Rilindja Kombëtare, or "national renaissance").
3.04. Serbia's independence from the Ottoman Empire was confirmed at the
Congress of Berlin in 1878. Kosovo was not part of Serbia at that time, and remained
within the Ottoman Empire. Serbia did, however, include an Albanian-inhabited area
around Nis, which still today remains within Serbia. In that area, in the nineteenth century,
in scenes reminiscent of more recent events, Serbian troops proceeded to hum villages and
expel more than 100,000 ethnie Albanians, many ofwhom fled to Kosovo.
3.05. Kosovo was first occupied by Serbia in the First Balkan War (October 1912),
some thirty-five years after Serbia's independence in 1878. In the course of this first
occupation, Serbia began to implement a programme of colonization; and Serbian
paramilitaries and elements of the Serbian army committed large-scale atrocities and
massacres, buming villages and forcing conversions to Orthodoxy in an effort to change
the ethnie composition of the territory 119• An international commission of enquiry set up
by the Carnegie Foundation reported that
119
N. Malcolm, op. cit. (fu. 118), pp. 253-256, who quotes an eye-witness, the joumalist Lev Bronshtein
(later known as Leon Trotsky): "The Serbs in Old Serbia, in their national endeavour to correct data in the
ethnographical statistics that are not quite favourable to them, are engaged quite simply in systematic
-42- "Bouses and whole villages reduced to ashes, unarmed and innocent populations
massacred ... such were the means which were employed and are still being employed
by the Serb-Montenegrin soldiery, with a view to the entire transformation of the
120
ethnie character ofregions inhabited exclusively by Albanians."
3.06. The territory of Kosovo was fought over and changed hands a number of times
during the Second Balkan War (1913) and World War I (1914-1918). It was absorbed into
the Kingdom of Serbs, Croats and Slovenes (later known as the Kingdom of Yugoslavia)
in December 1918; but, prior to that the territory of Kosovo had never been lawfully
incorporated into the Kingdom of Serbia, having merely been occupied territory. It should
therefore be noted that when Kosovo first entered a modem Yugoslav State, it did not do
so as an integral part of any Serbian State. Serbia itself ceased to exist as a political entity,
though the policies of successive govemments of the new Kingdom were dominated by
Serb interests.
3.07. Under a Treaty for the Protection ofMinorities, the new Kingdom undertook to
provide primary education in the local language in all areas where a considerable
proportion of the population had a language other than Serbo-Croat, and to allow other
educational and language rights. The Kingdom ignored these undertakings in respect of
Kosovo. The Albanian language was suppressed. In the period 1918-1941, Belgrade
continued Serbia's policy of colonization in Kosovo, with the forced emigration of Kosovo
121
Albanians to Turkey and other countries • In response to the colonization programme
and to other oppressive measures, there was widespread popular resistance by Kosovo
Albanians, especially in the years 1918 to 1927, when police and military actions are
estimated to have caused the deaths of more than 12,000 people and the imprisonment of
more than 22,000.
3.08. During World War II, Kosovo was again occupied by warring parties, with the
north under direct German control, the eastem districts allotted to Bulgaria, and the rest of
Kosovo attached to Italian-occupied Albania. Resistance movements of Communist
extermination of the Muslim population." (ibid., p. 253). ("Old Serbia" was a term used by some Serbs to
refer to Kosovo.)
1° Carnegie Endowment for International Peace, Report of the International Commission of Enquiry into the
Causes and Conduct of the Balkan Wars (1914), p. 151, quoted in N. Malcolm, op. cit. (fn. 118), p. 254.
121
N. Malcolm, op. cit. (fn. 118), pp. 267-269 (languagesand schools), pp. 278-282 (colonization),
pp. 283-286 (forced emigration).
-43- "Partisans" became active in both Yugoslavia and Albania. At the Bujan Conference
(December 1943 - January 1944) local representatives of the Communist movement from
Kosovo agreed on their policy for the future of the region, issuing a formal "Declaration"
which said that the Albanians of Kosovo should have "the possibility of deciding on their
own destiny, with the right to self-determination". This Declaration displeased the Partisan
leader, Joseph Broz "Tito", whose policy was to keep the territory within a Yugoslav State,
regardless of the wishes of the majority of its inhabitants; nevertheless, recognising that
any promise of self-determination would gain much support, he later wrote, in
March 1944, that "the question of which federal unit [Kosovo is] joined to will depend on
the people themselves, through their representatives, when the issue is decided by a
definitive ruling after the war" 12.
3.09. In July 1945, as World War II came to a close, a so-called "Regional People's
Council of Kosovo" (an unelected body representing the members of the Communist Party
in Kosovo) met in Prizren under conditions of military administration, imposed on Kosovo
in February of that year. Though its name suggests otherwise, this Council represented
only the 2,250 members of the Communist Party in Kosovo, with only 33 of its
142members being Albanian 12. At this meeting, it was agreed that Kosovo should
become a constituent unit within a "federal Serbia" (that is, a Serbia which was to be part
of a Yugoslav Federation). On the basis of this decision, the Presidency of the "People's
Assembly of Serbia" passed a law on 3 September 1945 establishing the "Autonomous
Region of Kosovo-Metohija" and declaring that it was a constituent part of Serbia.
3.10. There are three points to note about the events of 1943-1945. First, even as
recently as 1943, it was by no means clear that Kosovo would be part of Yugoslavia, for its
history was one of connections with various empires and States. Second, while the future
of Kosovo within Yugoslavia was said by Tito, who would become the SFRY's leader, to
depend on the will of the people, the question of that future was never actually put to the
people of Kosovo, but instead to an unelected and unrepresentative body, the "Regional
People' s Council of Kosovo", speaking for a tiny fraction of the population. As such, any
idea that the annexation of Kosovo by Serbia was based on the will of the people is a myth.
Yet this history demonstrates the importance of the idea that Kosovo' s destiny should be
122N. Malcolm, op. cit. (fn. 118), p. 315.
-44-decided by its own people, even if in fact they were not allowed to do so. Nevertheless,
any claim that the people of Kosovo had in fact freely chosen to join Serbia was spurious
at the time and remains so today. Third, the decision of the "Regional People's Council"
stated that Kosovo was to be part of afederal Serbia - that is, a Serbia which was a part of
the Yugoslav Federation- in which Serbian power would be balanced by the powers of the
other Republics and the Federation. Thus the acceptance by the "People's Council" of
Kosovo as a part of Serbia was predicated and conditioned upon Serbia itself being within
the Yugoslav Federation.
3.11. In August 1945, an organization known as the "Anti-Fascist Council for the
National Liberation of Yugoslavia" met to discuss Yugoslavia's future. This organisation
was formed as the collective of the various National Liberation Councils in Yugoslavia,
and ultimately became the constitutive body of the Federal People's Republic of
Yugoslavia formed the following year. For present purposes, it is important to note that
Kosovo was directly represented at this meeting - and was not represented by Serbia.
Thus, at this key stage in the formation of the new Yugoslav Federation, Kosovo acted not
as a part of Serbia, but as a political unit in its own right.
123
3.12. Under the 1946 Constitution of the Federal People's Republic ofYugoslavia ,
Yugoslavia was "a community of peoples equal in rights who, on the basis of the right of
self-determination, including the right of separation, have expressed their will to live
together in a federative state" 124• It was a federation, composed of six republics. One of
these, Serbia, included the autonomous provinces 125. The position was not much changed
under the 1953 Constitution of the Federal People's Republic of Yugoslavia, which
provided that "[t]he self-govemance of the autonomous province Vojvodina and of the
126
autonomous region of Kosovo is guaranteed" .
123 Constitution of the Federal People's Republic of Yugoslavia (1946). An English translation of the 1946
Constitution is at <http://www.worldstatesmen.org/Yugoslavia_1946.txt>.
124Ibid., Article 1.1.
125
Ibid., Article 2.
126
Constitution of the Federal People's Republic ofYugoslavia (1953), Article 113.
-45- 3.13. The 1950s and 1960s saw continued Serb persecution of Kosovo Albanians
combined with a policy of coercing the removal of Kosovo Albanians to Turkey, whilst
encouraging Serbs to settle in Kosovo. According to the London Times:
"The almost daily disclosures of brutal acts of repression, murder and torture by
members of Rankovic' s police against the Albanian minority there ... to intimidate
127
that minority, are astonishingly frank."
128
3.14. The 1963 Constitution of the Socialist Federal Republic of Yugoslavia
129
provided that the SFRY was "a federal state of voluntarily united and equal peoples" .
Articles 111 and 112 concemed the autonomous provinces, Article 112providing that their
rights would be determined by the relevant republic's constitution. The competences of
the autonomous provinces were set out in the 1963 Constitution of the Republic of Serbia
(Article 129), which further provided that "Republican law overrules provincial
regulation" (Article 131).
3.15. The year 1966 saw a policy change at the federal level, beginning with the
removal from power of Rankovié. Following Tito's visit to Kosovo in 1967, under
constitutional amendments adopted in 1968, legislative and judicial authority was
transferred to Kosovo, which was given direct representation in the Federal Parliament.
Kosovo passed its own Constitutional Law in 1969. Far from being merely a part of
130
Serbia, Kosovo was also a "fully fledged constituent element of the federation" ,a "legal
131
entity at the federal level" ,with Amendment VII of the Constitution stating that Kosovo
was both part of Serbia and part of the Federation. This fact that Kosovo was a federal unit
was of crucial constitutional importance, as a protection to Kosovo as against Serbian
encroachment on its very extensive autonomy.
127The Times, 22 September 1966, cited in M. Vickers, Between Serb and A/banian. A History of Kosovo
(1999), p. 164. Aleksandar Rankovié was the Serbian Vice-President of the SFRY.
128Constitution of the Socialist Federal Republic of Yugoslavia (1963), Official Gazette of the Socialist
Federal Republic of Yugoslavia, No. 14/1963.
129Ibid., Article 1.
130
M. Vickers, op. cit. (fn. 127), p. 170.
131
N. Malcolm, op. cit. (fn. 118), p. 324.
-46- II. Kosovo under the 1974 SFRY Constitution
A. ÜVERVIEW OF CONSTITUTIONAL DEVELOPMENTS
3.16. In considering the particular constitutional position of Kosovo within the SFRY
132
under the 1974 Constitution of the Socialist Federal Republic of Yugoslavia , five points
should be borne in mind:
(a) From 1944 onwards, Kosovo's participation in federal Yugoslavia (like that of the
other federal units) was, in theory at least, based on the will of its people. In 1945,
Kosovo' s decision to become part of Serbia - although taken by an unrepresentative
body - purported to be based on the will of the people, with all subsequent
Constitutions describing the SFRY as a voluntarily formed federation.
(b) Since 1944, and particularly under the 1974 SFRY Constitution, Kosovo had a
substantial degree of autonomy. This was not just autonomy within Serbia but,
crucially, autonomy within the SFRY, in all areas, including social, economic and
national policy. The various Constitutions refer consistently to Kosovo being a part of
Serbia within the framework of the federal state of Yugoslavia, not as a part of Serbia
outside that framework.
(c) Under the 1974 SFRY Constitution, Kosovo's constitutional position was virtually the
same as the six republics - Bosnia and Herzegovina, Croatia, Macedonia, Montenegro,
Serbia, and Slovenia. (It was sometimes suggested that the only difference was that
the republics had a constitutional right of secession, which Kosovo did not. Even
here, in reality there was no significant difference between Kosovo and the six
republics 13.)
(d) Kosovo had special rights and protections vis-à-vis Serbia under the 1974 SFRY
Constitution. For example, it was for the Federation, including the Federal
Constitutional Court, to resolve disputes between Serbia and Kosovo, just as that
Court did between republics. These special rights and protections were illegally
132Constitution of the Socialist Federal Republic of Yugoslavia (1974), Official Gazette of the Socialist
Federal Republic of Yugoslavia, No. 9/1974.
133See paras. 3.18-3.20 below.
-47- removed in 1989-1990, and could not be re-established once the SFRY had
disintegrated. Once that happened, there was no longer any framework within which
to ensure Kosovo's rights as against Serbia.
(e) The position of Kosovo under the 1974 SFRY Constitution was cancelled in
1989-1990 by the forcible and illegal actions of Serbia and the Serbia-dominated
SFRY.
B. THE 1974 SFRY CONSTITUTION
3.17. As an autonomous provmce, Kosovo's autonomy pnor to the 1974 SFRY
Constitution depended upon the Serbian Constitution, and came under the authority
of Serbia (within the constitutional structure of the federal State of Yugoslavia). Under
the 1974 Constitution of the SFRY, however, this changed radically. The statement of
Fundamental Principles referred to
"the principles of agreement among the Republics and Autonomous Provinces,
solidarity and reciprocity, equal participation by the Republics and Autonomous
Provinces in federal agencies, in line with the present constitution, and according to
the principle of responsibility of the Republics and Autonomous Provinces for their
own development and for the development of the socialist community as a whole".
3.18. The 1974 Constitution provided that the SFRY was "a federal state having the
form of a state community of voluntarily united nations and their Socialist Republics, and
of the Socialist Autonomous Provinces of Vojvodina and Kosovo, which are constituent
parts of the Socialist Republic of Serbia" 134. Like the Republics, Kosovo issued its own
Constitution 13, and had its own Constitutional Court. The territory of an Autonomous
134Constitution of the Socialist Federal Republic of Yugoslavia (1974), Official Gazette of the Socialist
Federal Republic of Yugoslavia,No. 9/1974, Article 1. For a brief but authoritative description of the
constitutional position of Kosovo, see the article by Stjepan Mesié, "Kosovo - problem koji ne trpi
odgadjanje" [Kosovo - a problem which cannot be postponed], VecernjiList, 16February 2008 (see also
the website of the Presidency of Croatia <http://www.predsjednik.hr/default.asp?ru=143&
gl=200802200000002&sid=&jezik=l>). Mesié, the President of Croatia, had been a member of the
Presidency of the former Yugoslavia. He emphasises that "the Provinces were constitutive elements of
the federation", and that "the Republics and Provinces voluntarily united themselves with Yugoslavia,
from which there follows the clear conclusion that they cannot be kept within those state frameworks
against their will. In the case of the Provinces, that applies in the same way both to the framework of the
federation and to the framework of a federal unit [se. Serbia]."
135
See para. 3.22 below.
-48- 136
Province, like the territories of the Republics, could not be altered without its consent .
Article 281 provided that "[t]he Federation shall through its agencies ... regulate matters
conceming the settlement of conflict of law between Republics and/or Autonomous
Provinces". The Constitutional Court of Yugoslavia decided disputes between the
Federation and the Republics and/or the Autonomous Provinces, between the Republics,
137
and between the Republics and the Autonomous Provinces • The Autonomous Provinces
were represented in both chambers of the SFRY Assembly, alongside representatives of
138
the Republics . The Federal Presidency was composed of one member from each of the
139
Republics and Autonomous Provinces • Most amendments to the SFRY Constitution
140
required the agreement of the Assemblies of the Autonomous Provinces •
3.19. In other words, the 1974 SFRY Constitution confirmed the dual status of
Kosovo -part of Serbia but at the same time also a constituent unit of the SFRY. Under it,
Kosovo had a status equivalent to that of the six republics, with direct representation in the
main federal bodies. Kosovo had equal status with the republics in economic and social
policy. It was also separately represented in the Federal Court and the Constitutional
Court. The 1974 Constitution prohibited Serbia from intervening in provincial affairs
against the will of the Kosovo Assembly. Kosovo had its own National Bank, Supreme
Court, and independent administration under the supervision of the Kosovo Executive
141
Council and Presidency, and the right to adopt its own Constitution • As it was
136
Constitution of the Socialist Federal Republic ofYugoslavia (1974), op. cit. (fn. 134), Article 5.
137 Ibid., Article 375.
138 Ibid., Articles 291 and 292.
139 Ibid., Article 321.
140 Ibid., Article 398.
141 It has been suggested that, under the 1974 Constitution, the Republics had the right to secede whereas the
autonomous provinces did not. (This, indeed, is sometimes said to have been the only constitutional
difference between republics and autonomous provinces.) The suggestion seems to be based on one of
the preambular "Basic Principles", which stated that "[t]he nations of Yugoslavia, proceeding from the
right of every nation to self-determination, including the right to secession, on the basis of their freely
expressed will." Earlier Constitutions (1946, 1953, and 1963) had referred to "peoples" rather than
"nations" having the right to self-determination, including the right to secede. Nevertheless, neither
"nations" nor "peoples" had any operational right to secede under any of these constitutions. There was
no provision in the various Constitutions, including in that of 1974, for the actual exercise of the "right"
mentioned in the preamble (compare the Constitution ofSerbia and Montenegro (2003), which set out the
procedure for secession). In any case, the 1974 SFRY Constitution described Yugoslavia as a federation
of "free and equal nations and nationalities" ("equal" here translates "ravnopravnih", which means
"having equal rights"), and declared that "the working people, the nations and the nationalities implement
their sovereign rights in the Socialist Republics and in the Autonomous Provinces" (Fundamental
Principles, Article 1). Thus, whatever these ill-defined "sovereign" rights might have been, they were
-49-represented in both Chambers of the SFRY Assembly, Kosovo also participated, alongside
the other Republics, in the formation and ratification of international agreements.
International agreements which affected individual federal units (Republics and
Autonomous Provinces) required the explicit consent of the units concerned. Article 301
of Kosovo' s own 1974 Constitution stated: "The Assembly of Kosovo ratifies agreements
which the Province concludes with organs and organizations of other states and
international organs and organizations."
142
3.20. In its judgment of 26 February 2009 in the Milutinovié et al. case , a Trial
Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY),
summarised the position of Kosovo under the 1974 Constitution in the following terms:
"213. Under the Constitution of the Socialist Federal Republic of Yugoslavia
('SFRY'), promulgated in February 1974, the SFRY comprised six republics and two
autonomous provinces. Both of these provinces - Kosovo and Vojvodina - formed
part of the Socialist Republic of Serbia. This Constitution gave the provinces a
significant degree of autonomy, which included the power to draft their own
constitutions, to have their own constitutional courts, to have a representative in the
SFRY Presidency in Belgrade, and the right to initiate proceedings before the
Constitutional Courts of Yugoslavia and Serbia. In addition, they were represented,
along with the republics, in the SFRY Chamber of Republics and Provinces and the
Federal Chamber, which was a legislative body with the power to amend the SFRY
Constitution." 143
3.21. The 1974 Constitution of the Socialist Republic of Serbia 144was adopted at the
same time as the 1974 SFRY Constitution. The preamble to the Constitution of Serbia
noted that the Autonomous Provinces "had united, on the basis of the freely expressed will
of the population, nations and nationalities of the provinces and Serbia, in the Socialist
Republic of Serbia within the SFRY". The Constitution laid down the respective
competences of the Republic and the Autonomous Provinces and provided that any
also attributed on an equal basis to the "nationalities" and to the Autonomous ProviMoreover,
Article 5 of the 1974 Constitution provided that "[t]he frontiers of the Socialist Federal Republic of
Yugoslavia may not be altered without the consent of all Republics and Autonomous Provinces".
142Prosecutor v. Milan Milutinovié, Nikola Sainovié, Dragoljub Ojdanié, ebojsa Pavkovié, Vladimir
Lazarevié, Sreten LukiéIT-05-87-T), Judgement, 26 February 2009 (available on the ICTY website:
http://www.icty.org/case/milutinovic/4#tjug). The Chamwas composed of Judge Iain Bonomy,
presiding, Judge Ali Nawaz Chowhan and Judge Tsvetana Kamenova.
143Ibid., vol. 1,paras. 213-216 (footnotes omitted here and in subsequent citations from the Judgment).
144Constitution of the Socialist Federal Republic ofYugoslavia (1974), op. cit. (fn. 134).
-50-amendment related to questions of interest to the Republic as a whole, the consent of the
145
Assemblies of the Autonomous Provinces was required .
3.22. The 1974 Constitution of the Autonomous Socialist Province of Kosovo was
adopted at the same time as the 1974 SFRY Constitution. It provided that Kosovo,
"proceeding from the freely expressed will of the population, the nations and
nationalities of Kosovo and the freely expressed will of the people of Serbia, has
associated itself with the Socialist Republic of Serbia within the framework of the
146
SFRY" •
III. Illegal Removal of Autonomy (1989)
3.23. Following Tito's death in 1980, the anti-Albanian policy pursued by Serbia
gradually led to general inter-ethnie conflict within the Federation as a whole, with Croatia
and Slovenia in particular voicing concems at Serbia's hegemony and domination. After
Slobodan Milosevié's provocative speech in Kosovo on 24 April 1987, Serbia edged closer
to confrontation not only with Kosovo, but also with the other Yugoslav republics.
From 1987 onwards, following Milosevié's rise to power in Serbia and seizure of power in
the provinces, Serbian domination of the Federal Presidency allowed Serbia to pursue its
nationalistic and confrontational policies.
3.24. In 1989 Serbia, under Milosevié, set out to destroy the autonomy of Kosovo as
part of the campaign to secure Serbia's domination over the Federation. At the same time
as removing the autonomy of Kosovo, Milosevié sought political change in the
Republics, especially in Montenegro, to ensure his and Serbia's control of the Federation.
These developments led to the break-up of the Federation.
3.25. Early in 1989, the Serbian Assembly began passmg amendments to the
Serbian Constitution attempting to restrict Kosovo's powers, which were guaranteed by the
1974 SFRY Constitution. However, while such amendments could be proposed by Serbia,
145
Constitution of the Socialist Federal Republic of Yugoslavia (1974), op. cit. (fn. 134), Article 427. See
Milutinovié et al., op. cit. 142), vol. 1,paras. 215-216.
146
Constitution of the Socialist Autonomous Province of Kosovo (1974), Article 1, Official Gazette of the
Autonomous Socialist Province of Kosovo, No. 4/1974.
-51-they required acceptance by the Kosovo Assembly before they could be considered as
having been adopted.
3.26. To obtain that acceptance, Serbia coerced widespread resignations of the
Kosovo leadership. Through pressure and intimidation, on 23 March 1989 Serbia forced
the Kosovo Assembly to accept changes to its Constitution, removing its autonomy.
Representatives hand-picked by Serbia accepted the changes to the Serbian Constitution,
and further approved changes to the Kosovo Constitution, initiating the disintegration of
the SFRY, and a sustained period of Serbian oppression and brutality in Kosovo.
3.27. The ICTY Trial Chamber's judgement in Milutinovié et al. describes the
extraordinary circumstances leading to the "approval" of the constitutional amendments by
the Assembly of Kosovo on 23 March 1989, sometimes referred to as the "Assembly of the
Tanks":
"217. This state of affairs [i.e., the position of Kosovo under the 1974 Constitution]
resulted in dissatisfaction amongst some constitutional experts in Serbia. They wrote
a confidential document in 1977, commissioned by the Presidency of Serbia, which
criticised the 1974 constitutional arrangement of the republic for giving an excessive
degree of power to the autonomous provinces.
218. Later, in the early 1980s, following the death of SFRY President Josip Broz
'Tito', demonstrations took place as the Kosovo Albanians sought full recognition for
Kosovo as a republic within the SFRY. Sorne of these demonstrations tumed violent,
and the police and the Yugoslav Army were deployed. On the other hand, there were
increasing calls by the Serbs for reduction of the autonomy of Kosovo. By
March 1989 these calls led to approval from the SFRY Assembly for amendment of
the Serbian Constitution in terms of 'conclusions' that identified a need to 'normalise'
the 'deteriorated situation' in Kosovo, and tointer alia 'take measures immediately for
establishing the criminal and other responsibility of those who have inspired or
organised counter-revolutionary activities in Kosovo,' and to stem the emigration of
Serbs and Montenegrins from Kosovo. These conclusions referred to 'special
measures' that had already been put in place in Kosovo, which were also described by
Human Rights Watch researcher Frederick Abrahams, who stated that the federal
authorities had assumed responsibility for security within the province. The SFRY
Assembly further concluded that the process for amending the Serbian Constitution
'should be finalised as soon as possible.'
219. Prior to their adoption by the Serbian Assembly, the proposed amendments to the
Serbian Constitution required approval from the Kosovo Assembly itself, which met
on 23 March 1989. Both Veton Surroi, a Kosovo Albanian joumalist, and Frederick
Abrahams testified that this session of the Kosovo Assembly was held while the
Assembly building in Pristina/Prishtina was surrounded by police and military
-52- vehicles, although Abrahams was not present at the time. Surroi also stated that he
had seen a photograph indicating that one person who participated in the vote was not
in fact a member of the Assembly. He further stated that he had heard that pressure to
support the measures was put on members of the Assembly prior to the vote, although
he had not spoken to any member of the Assembly who claimed to have voted in
favour of the amendments due to such pressure. The Chamber also received evidence
- by way of a witness statement and the transcript of his testimony in the Milosevié
trial of the deceased leader of the Democratic League of Kosovo (Lidhja Demokratike
e Kosovës, 'LDK'), Ibrahim Rugova that pressure was exerted to influence the
voting, and that the ten members of the Assembly who voted against the amendments
were later subjected to reprisals.
220. After receiving approval from the SFRY Assembly and positive votes in the
provincial assemblies, on 28 March 1989 the Serbian Assembly adopted the proposed
constitutional amendments. Ratko Markovié asserted throughout his evidence that the
amendments did not affect the autonomous status of the two provinces, as provided by
the SFRY Constitution, but rather simply effected a 'redistribution of competencies'.
Similarly Lukié, while accepting that these amendments changed the position of the
province of Kosovo within the republic by conferring power on the republican organs
to legislate and exert judicial control over laws in the province, and by removing
several powers from the provinces, also asserted that Kosovo' s autonomy was not
reduced by the changes. However, Lukié conceded that, following the constitutional
amendments of 1990, Kosovo no longer had full judicial autonomy because it did not
have legislative authority, but only an executive organ and it no longer had its own
Supreme Court or Constitutional Court.
221. The Chamber is in no doubt that the Kosovo Albanians perceived the
amendments as removing the substantial autonomy previously enjoyed by Kosovo and
Vojvodina, and that, in fact, that was their effect. For example, the regulation of
education and the taxation system was placed within the jurisdiction of the
Govemment of Serbia, and responsibility for the public security services was placed
under republican control. All were previously within the exclusive competence of the
provincial authorities. Two amendments were of particular significance: the removal
of the need for the consent of the provincial assemblies to further constitutional
amendments affecting the whole republic; and the greater power of the Serbian
147
Presidency to use MUP forces in Kosovo to 'protect the constitutional order' ."
3.28. Thus, through a process of violence and intimidation, Serbia unconstitutionally
and illegally removed Kosovo's autonomy, both within Serbia and within the SFRY.
147Milutinovié et al., op. cit.(fn. 142), vol. 1, paras. 217-221. See also the ICTY Trial Chamber's judgment
of 30 November 2005 in Prosecutor v. Limaj et al., paras. 40-4The Kosovo Constitutional Court
subsequently considered the events of 23 March 1989, and, on 27 June 1990, decided "to initiate a
procedure for verification of the constitutionality of the decision" by the Assembly. The initiative for the
Constitutional Court proceedings referred among many irregularities to the fact that "unprecedented
pressure was exercised on the Assembly of the SAP of Kosovo to declare itself in favour of
Amendments", as well as to the fact that the votes were not recorded properly (so it could not be known
whether the two-thirds majority required by the Constitution had been achieved, that non-members of the
Assembly took part in the voting, and that the Assembly's Decision was not published in the Official
Gazetteand so could not enter into force). Before the Court reached a substantive decision, in a further
act of illegality, Serbia dissolved it.
-53- IV. Persecution and Repression through the 1990s
3.29. Serbia's tactics against Kosovo were noted by the other Republics, who feared
that they too would fall prey to Serbian efforts at political dominance. Consequently,
in 1991 the Republics began issuing declarations of independence, sparking further
aggressive acts by Serbia that would plunge the former Yugoslavia into a series of armed
conflicts. The significance of these declarations of independence to the question now
before the Courtis considered in Chapter VIII below 14.
3.30. The removal of Kosovo's autonomy in March 1989 provoked widespread
public demonstrations and protests in Kosovo; martial law was declared, and at least
20 demonstrators were killed. The main demand of the demonstrators was the full
restoration of Kosovo's status under the 1974 Constitution. This demand was also
expressed by the Albanian members of the Assembly of Kosovo, who met on 2 July 1990
in front of the Assernbly building (the doors having been locked by the Serbian
authorities), and passed a resolution declaring Kosovo "an equal and independent entity
within the frarnework of the Yugoslav Federation". But when, with the declarations of
independence by Slovenia and Croatia, it became clear that the Federation was
disintegrating, this dernand for the restoration of the 1974 status becarne umealistic, and,
crucially, the continuation of Kosovo within Serbia becarne unsustainable.
149
3.31. As explained above ,under the 1974 SFRY Constitution, Kosovo had a dual
constitutional status. It was part of Serbia and at the sarne tirne it was a federal unit within
the SFRY. Kosovo was never, and was never intended to be, a part of an independent
Serbia existing outside the framework of the SFRY. This is clear in the 1974 SFRY
Constitution itself, in that it was the Federation that was to actas the arbiter of any disputes
between Serbia and Kosovo. It was the Federation that was to act as the protection for
Kosovo from Serbia. Thus, following the disintegration of the SFRY, Kosovo could not
sirnply be incorporated within Serbia. The actions of Serbia airned at doing just that were
illegal and contrary to the 1974 SFRY Constitution, contrary to the founding principles of
the SFRY, and contrary to the will of the people of Kosovo.
148
See paras. 8.22-8.37 below.
149See paras. 3.17-3.22 above.
-54- 3.32. After Serbia dissolved the Kosovo Assembly and Govemment in July 1990, a
majority of the Assembly representatives met in the town ofKaçanik/Kacanik, and issued a
resolution demanding status as an equal member in the Federation. When war broke out in
the former Yugoslavia, and the other Republics began declaring independence, the
Kaçanik resolution was revised on 22 September 1991, and a subsequent resolution on the
Independence and Sovereignty of Kosovo was put to popular vote between 26 and
30 September 1991. The referendum demonstrated overwhelming support of the people of
Kosovo for independence, which was declared on 19 October 1991.
3.33. The ICTY Trial Chamber described these events in its judgement of
26 February 2009 in Milutinovié et al.,as well as the situation in Kosovo in the 1990s:
"223. During 1990 the crisis in Kosovo intensified. On 26 June the Serbian Assembly
declared that 'special circumstances' existed in Kosovo due to 'activities directed at
overthrowing the constitutional order and the territorial integrity'. On 2 July the
members of the Kosovo Assembly were prevented from entering the Assembly
building and dramatically issued a 'constitutional statement' declaring Kosovo an
independent republic. The Serbian Assembly formally suspended the Kosovo
Assembly on 5 July. The unsanctioned Assembly proceeded to draft a new 'Kosovo
Constitution', which was subsequently endorsed in a local referendum. In
September 1990 a new Serbian Constitution further restricted the limited autonomy
exercised by Kosovo. The Kosovo Constitutional Court was later effectively
abolished by decree of the Serbian Assembly.
224. Frederick Abrahams characterised Kosovo at this time as like a 'police state'. In
a 1992 report the United Nations Special Rapporteur on human rights in the former
Yugoslavia expressed concem about discrimination against the Albanian population,
allegations of torture and mistreatment in detention, and restrictions on the freedom of
information. According to Veton Surroi and Ibrahim Rugova, Albanian radio and
television was restricted and newspapers were closed. The Special Rapporteur also
described how, from the early 1990s, Kosovo Albanians employed in public
enterprises and institutions, including banks, hospitals, the post office, and schools,
were sacked in large numbers.
225. The Chamber has heard from several witnesses that Kosovo Albanian teachers
refused to implement a new school curriculum introduced in 1990 or 1991, leading to
the dismissal of many.... Kosovo Albanian pupils, who wished to be schooled in the
Albanian language, were unable to attend classes. As a result, the LDK and other
Kosovo Albanian political parties developed an unofficial education system using
private dwellings to hold classes for Kosovo Albanian children. In June 1991 the
Serbian Assembly issued a decision which removed a number of officials and
professors at the University of Pristina/Prishtina, and replaced them with non
Albanians. The University's assembly and several faculty councils were dissolved and
replaced by provisional organs staffed predominantly by Serbs.... Kosovo Albanian
-55- students were unable to attend classes at the University at that time, and so a parallel
university education system was organised by the Kosovo Albanians, holding classes
in private homes.
227. The Serbian authorities continued to encourage immigration or retum to Kosovo
by Serbs and Montenegrins, while Kosovo Albanians began to leave the province in
large numbers. In November 1992 the Serbian Assembly issued a Declaration on the
Rights of National Minorities ... The tone of the entire Declaration seems designed to
inspire fear amongst the Serb population of Kosovo of their Kosovo Albanian
neighbours, who were portrayed as an ideologically homogeneous and dangerous
group.
228. The Chamber has heard evidence of a system of discrimination against Kosovo
Albanian workers through the 1990s. Sorne witnesses testified about mass dismissals
of Kosovo Albanians from positions in industry and the public sector and their
replacement by Serbs. Others stated that Kosovo Albanian workers were presented
with a document to sign to indicate their loyalty to the state authorities, and that those
who did not sign were dismissed ...
229. Several official documents support these accounts of organised, state-sanctioned
discrimination in the workplace. In July 1991, several Decisions from the Serbian
Assembly were adopted pertaining to the removal of predominantly Kosovo Albanian
officials in150rious business enterprises across Kosovo and their replacement by non
Albanians."
3.34. It is misleading to suggest, as does the United Nations Dossier 15, that "the
starting point for the UN's engagement in Kosovo" was March 1998. The discrimination
and human rights violations perpetrated against Kosovo Albanians attracted widespread
international condemnation, including from United Nations organs, from the early 1990s.
The General Assembly, the Security Council, the Commission on Human Rights and its
Sub-Commission, and the Committee under the Convention for the Elimination of All
Forms of Racial Discrimination, all took up the human rights abuses perpetrated in Kosovo
by Serbia. These bodies documented the openly discriminatory legislation applied by
Serbia in Kosovo, including in relation to property; programmes for resettlement and
demographic manipulation; the removal of Kosovo Albanians from public office and from
commercial enterprises; interference with the judiciary; the removal of press freedoms;
arbitrary arrests; torture and mistreatment; impunity for perpetrators; and the
disproportionate use of force, resulting in numerous violations of the right to life,
150
Milutinovié et al., op. cit.(fn. 142), vol. 1,paras. 223-229.
151Dossier, Introductory Note, para. 4.
-56-destruction of property and the displacement of large numbers of people, many of whom
152
were women and children •
3.35. As the ICTY Trial Chamber noted, the United Nations Special Rapporteur
for human rights in the former Yugoslavia had described many of these abuses in his report
of 17November 1992 153. The General Assembly adopted annual resolutions on the
154
"Situation ofhuman rights in Kosovo" between 1993 and 1999 .
3.36. The FRY Prime Minister from 1992-1993, Milan Panié, himself wrote to the
Security Council in August 1992 stating that his Govemment was "conducting its own
investigation into human rights violations of its citizens, particularly in Kosovo" and
promised careful and urgent examination of all laws, regulations and administrative
155
practices to ensure that human rights violations in Kosovo would cease . But nothing
came of these promises.
3.37. In its resolution 855 (1993) of 9 August 1993, the Security Council expressed
its deep concem "at the refusai of the authorities in the Federal Republic of Yugoslavia
(Serbia and Montenegro) to allow the CSCE missions of long duration to continue their
activities", bore in mind that these missions had "greatly contributed to promoting stability
and counteracting the risk of violence in Kosovo", and attached "great importance to ...
156
the continued ability of the international community to monitor the situation in Kosovo" .
The Council then called upon "the authorities in the Federal Republic of Yugoslavia
(Serbia and Montenegro) to reconsider their refusai to allow the continuation of the
157
activities of the CSCE missions in Kosovo ... " •
152 M. Weller, op. cit. (fn. 118), pp. 59-64 (with further references).
153 Milutinovié et al., op. cit.(fn. 142), vol. 1,para. 230.
154
General Assembly resolutions 48/153, 20 December 1993; 49/204, 23 December 1994; 50/190,
22 December 1995; 51/111, 12 December 1996; 52/139, 12 December 1997; 53/164, 9 December 1998;
and 54/183, 17 December 1999. In 1992, the situation ofhuman rights in Kosovo was dealt with in the
Assembly's resolution 47/147 on the "Situation ofhuman rights in the territory of the former Yugoslavia"
(18 December 1992, para. 14).
155
Letter dated 17August 1992 of the Prime Minister of the FRY to the President of the Security Council,
S/24454-A/46/960, Annex.
156 Security Council resolution 855 (1993), 6 August 1993, third, fourth and sixth preambular paragraphs.
157 Ibid., para. 2.
-57- V. Diplomatie Efforts to Resolve the Crisis
3.38. Efforts by the international community to resolve the crisis in Kosovo began
158
early in the 1990s . In 1992, the Helsinki Summit of the Conference on Security and
Co-operation in Europe (CSCE) urged the Belgrade authorities "to refrain from further
repression". In August 1992, the CSCE established a mission in Kosovo to monitor the
situation. In its report of December 1992, the mission expressed deep concem over the
increasing violence in Kosovo. In June 1993, the FRY refused to agree to a renewed
mandate for the mission. As noted in the previous section, the Security Council in its
resolution 855 (1993) of 9 August 1993 called on the authorities of the FRY to reconsider,
but to no avail.
3.39. At Dayton the international community dealt with the situation in Bosnia and
Herzegovina, but not with the deteriorating situation in Kosovo. After the conclusion of
the Dayton Accords in 1995, Serbia tumed its attention back to Kosovo, continuing a
policy of oppression that deliberately and deeply aggravated relations between Kosovo
Serbs and Kosovo Albanians.
3.40. From the time when Serbia abolished Kosovo's autonomy in 1989, the
existence of "parallel" institutions organized by the Kosovo Albanians clearly
demonstrated their rejection of the FRY and its illegal occupation. Throughout the 1990s,
the Kosovo Albanian population continued in their attempts to resist Serbian occupation
and persecution, leading eventually to the armed struggle by the Kosovo Liberation Army
(KLA/UÇK), which "developed in organisation and capacity from early 1998" 159. The
KLA's "evolution and growth in this period was linked to increasing perceptions within
the Kosovo Albanian community that it needed to protect itself from increasing attacks by
forces of the FRY and Serbia" 16.
3.41. Thus, despite the clear imbalance of power between the FRY and the Kosovo
Albanians, the Kosovo Albanians resisted the occupation and persecution. The "parallel"
158
Milutinovié et al., op. cit.(fn. 142), vol. 1,paras. 231-236.
159Ibid., para. 822.
160Ibid., para. 794.
-58-institutions established by the Kosovo Albanians, the armed struggle of 1998-1999, and
intervention by NATO, were a clear reaction to the massive human rights violations and
crimes against humanity committed by the FRY/Serbia.
3.42. As the crisis in Kosovo worsened in 1998, diplomatie efforts to resolve it
intensified. The diplomatie efforts are dealt with at length in the ICTY Trial Chamber's
161
judgement of 26 February 2009, in Milutinovié et al. ,and are not repeated in detail here.
3.43. The principal international body involved in the negotiations was the Contact
Group (France, Germany, Italy, Russian Federation, United Kingdom, United States of
America). US Ambassadors Christopher Hill and Richard Holbrooke spearheaded
unsuccessful efforts at mediation. A Kosovo Diplomatie Observer Mission (KDOM)
established from among diplomats stationed in Belgrade, with powers to observe and
monitor what was happening on the ground in Kosovo, was endorsed by Security Council
resolution 1199 (1998) of 27 September 1998 16.
3.44. Efforts to ensure FRY and Serbian compliance with Security Council
resolutions 1160 (1998) and 1199 (1998) led to the Holbrooke-Milosevié agreement of
October 1998, which provided for some FRY and Serbian forces (including MUP special
police) to be withdrawn from Kosovo, and for the OSCE to send a Kosovo Verification
Mission (KVM) to Kosovo 163. The principal purpose of the KVM was to verify
compliance by all parties with Security Council resolution 1199 (1998).
3.45. These diplomatie efforts eventually led to the Rambouillet Conference in
February/March 1999, co-chaired by the British and French Foreign Ministers. Two and a
half weeks of negotiations culminated in the "Rambouillet accords", entitled "Interim
Agreement for Peace and Self-Govemment in Kosovo", which were endorsed by Contact
Group Foreign Ministers on 23 February 1999. When the second round of talks took place
at Paris, the FRY/Serbian delegation submitted very substantial proposais to amend the
161Milutinovié et al., op. cit.(fn. 142), vol. 1,paras. 312-412.
162Dossier No. 17.
163
Dossier No. 19. For further details, see M. Weller, op. cit. (fn. 118), pp. 95-106.
-59-accords 164• In response, the EU, Russian, and US negotiators emphasised in a letter to the
FRY/Serbian delegation that "the unanimous view of the Contact Group" was that only
165
technical adjustments to the agreement endorsed at Rambouillet could be agreed •
The Interim Agreement was signed by the Kosovo party on 18 March 1999, at the resumed
166
Conference in Paris, but not by the FRY or Serbia •
3.46. The Rambouillet Interim Agreement only dealt with the arrangements for a
three-year interim period, with the exception of a single provision, Chapter 8, Article I,
paragraph 3, which touched on the question of the final settlement following the interim
period. This provision read:
"Three years after the entry into force of this Agreement, an international meeting
shall be convened to determine 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 this Agreement, and the Helsinki Final Act, and to
undertake a comprehensive assessment of the implementation of this Agreement and
to consider proposais by any Party for additional measures."
VI. Crimes Against Humanity, War Crimes and Human Rights Violations
Committed Against Kosovo Albanians in 1998-1999
3.47. It has been estimated that, by 9 June 1999, over 90 % of the Kosovo
167
Albanian population - over 1.45 million people - were forcibly displaced . In the period
1998-1999, numerous United Nations and other international agencies expressed dismay at
the atrocities being committed by Serbia in Kosovo and demanded that they cease
immediately. It should be noted that the mass expulsions of Albanian civilians from their
homes in Kosovo, involving the threat of force and the actual use of force (including
artillery bombardment and arson), began long before the start of the NATO military action
in March 1999. Figures compiled by the UNHCR showed that by August 1998, there were
164
H. Krieger, TheKosovo Conflict and International Law (2001), p. 149.
165
M. Weller, The Crisis in Kosovo (1999), p .470.
166The Interim Agreement was transmitted to the United Nations Secretary-General and is reproduced in
S/1999/648, Annex [Dossier No. 30]. For an account of Rambouillet/Paris Conference, see M. Weller,
op. cit. (fn. 118), pp. 107-154.
167
Kosovo/Kosova. As Seen, As Told, Executive Summary (available on the OSCE website
<http://www.osce.org/publications/odihr/l999/ll/l 7755_506_en.pdf>)As the KVM report explained
"Suffering in Kosovo in the period monitored by the OSCE-KVM [i.e., from October/December 1998-
June 1999] was overwhelmingly Kosovo Albanian, at the hands of Yugoslav and Serbian state military
and security apparatus" (Executive Summary).
-60-260,000 intemally displaced people inside Kosovo and 200,000 refugees outside Kosovo;
again, the UNHCR noted that between 150,000 and 200,000 new refugees were driven
from their homes in Kosovo between the beginning of January 1999 and mid-March 1999.
The Court itselfhad occasion to express its concem in the Legality of Use of Force cases:
"Whereas the Courtis deeply concemed with the human tragedy, the loss of life, and
the enormous suffering in Kosovo which form the background of the present dispute,
168
and with the continuing loss oflife and human suffering in all parts of Yugoslavia" .
169
3.48. The ICTY Trial Chamber, in its judgement in Milutinovié et al. , found five
of the six accused guilty. It found that there was a common purpose to modify the ethnie
balance in Kosovo in order to ensure continued control by the FRY and Serbian authorities
over the province. The five convicted were high-level officiais: Nikola Sainovié was a
FRY Deputy Prime Minister; Dragoljub Ojdanié, Chief of the General Staff of the
Yugoslav Army (VJ); Nebojsa Pavkovié, Commander of the VJ 3 Army; Vladimir rd
Lazarevié, Commander of the VJ Pristina Corps; and Sreten Lukié, Head of the Serbian
Ministry of the Interior Staff for Kosovo (MUP Staff).
3.49. Referring to the flight of hundreds of thousands of Kosovo Albanians between
Marchand June 1999, the Trial Chamber found that
"there was a broad campaign of violence directed against the Kosovo Albanian
civilian population during the course of the NATO air-strikes, conducted by forces
under the control of the FRY and Serbian authorities.... In all of the 13municipalities
the Chamber has found that forces of the FRY and Serbia deliberately expelled
Kosovo Albanians from their homes, either by ordering them to leave, or by creating
an atmosphere of terror in order to effect their departure. As these people left their
homes and moved either within Kosovo or towards and across its borders, many of
168Legality of Use of Force (Yugoslavia v. Belgium), Provisional Measures, Order of 2 June 1999, I.C.J.
Reports 1999, p. 131, para. 16; Legality of Use of Force (Yugoslavia v. Canada), Provisional Measures,
Order of 2 June 1999, I.C.J. Reports 1999, p. 265, para. 15; Legality of Use of Force (Yugoslavia v.
France), Provisional Measures, Order of 2 June 1999, I.C.J. Reports 1999, p. 369-370, para. 15; Legality
of Use of Force (Yugoslavia v.Germany), Provisional Measures, Order of 2 June 1999, I.C.J. Reports
1999, p. 428, para. 15; Legality of Use of Force (Yugoslavia v. Italy), Provisional Measures, Order of
2 June 1999, I.C.J. Reports 1999, p. 488, para. 15; Legality of Use of Force (Yugoslavia v. Netherlands),
Provisional Measures, Order of 2 June 1999, I.C.J. Reports 1999, p. 549, para. 16; Legality of Use of
Force (Yugoslavia v. Portugal), Provisional Measures, Order of 2 June 1999, I.C.J. Reports 1999,
p. 663, para. 15; Legality of Use of Force (Yugoslavia v. Spain), Provisional Measures, Order of
2 June 1999, I.C.J. Reports 1999, p. 768, para. 15; Legality of Use of Force (Yugoslavia v. United
Kingdom), Provisional Measures, Order of 2 June 1999, I.C.J. Reports 1999, p. 833, para. 15; Legality of
Use of Force (Yugoslavia v. United States of America), Provisional Measures, Order of 2 June 1999,
I.C.J. Reports 1999, p. 922, para. 15.
169Milutinovié et al., op.cil. (fn. 142).
-61- them continued to be threatened, robbed, mistreated, and otherwise abused. In many
places men were separated from women and children, their vehicles were stolen or
destroyed, their bouses were deliberately set on fire, money was extorted from them,
and they were forced to relinquish their personal identity documents." 170
3.50. The Trial Chamber made detailed findings about each of the various crime sites
mentioned in the Indictment, including Peja/Peé, Deçan/Decani, Gjakova/Djakovica,
Prizren, Suhareka/Suva Reka, Rahovec/Orahovac, Ferizaj/Urosevac, Kaçanik/Kacanik and
Pristina 171. For example, on 26 March 1999 MUP personnel in Suhareka/Suva Reka
targeted members of the Berisha family, killing 45 men, women and children. The bodies
of most of these people were found in a mass grave near Belgrade. In the following days
many of the remaining Kosovo Albanian residents of Suhareka/Suva Reka left their homes
as the police set fire to bouses, stole money and valuables and ordered them to go to
172
Albania • In Pristina, many people were directly evicted from their homes, while others
fled out of fear of the violence around them caused by the FRY and Serbian forces.
The expulsion from Pristina was carried out in an organized manner, with hundreds of
Kosovo Albanians channelled to the train station and onto overcrowded trains that took
them to the Macedonian border 17.
3.51. In concluding a section on "the overall pattern of events", the Trial
Chamber said:
"The manner in which the VJ and MUP dealt with the KLA was often heavy-handed
and involved indiscriminate violence and damage to civilian persons and property,
further exacerbating rather than ameliorating the situation in Kosovo. The consistent
eye-witness accounts of the systematic terrorisation of Kosovo Albanian civilians by
the forces of the FRY and Serbia, their removal from their homes, and the looting and
deliberate destruction of their property, satisfies the Chamber that there was a
campaign of violence directed against the Kosovo Albanian civilian population, during
which there were incidents of killing, sexual assault, and the intentional destruction of
mosques. It was the deliberate actions of these forces during this campaign that
caused the departure of at least 700,000 Kosovo Albanians from Kosovo in the short
period of time between the end of March and beginning of June 1999. Efforts by the
MUP to conceal the killing of Kosovo Albanians, by transporting the bodies to other
170
Milutinovié et al., op. cit.(fn. 142), vol. 2, para. 1156.
171Ibid., vol. 2, passim.
172Ibid., vol. 2, paras. 534-555.
173
Ibid., vol. 2, paras. 885-890.
-62- areas of Serbia, as discussed in greater detail below, also suggest that such incidents
.. 1· ,,174
were cnmma m nature.
3.52. And the Trial Chamber concluded:
"The crimes that have been proved by the Prosecution and for which the Accused are
responsible include hundreds of murders, several sexual assaults, and the forcible
transfer and deportation ofhundreds ofthousands of people." 175
3.53. The findings of the ICTY Trial Chamber in its judgement of 26 February 2009
are based upon a great deal of carefully examined witness evidence 176. In addition, there
are numerous findings of United Nations principal and subsidiary organs, and the many
authoritative reports by international govemmental and non-govemmental bodies, which
have been taken into account by the Chamber, that attest to the crimes against humanity,
war crimes and massive violations of human rights committed by FRY and Serbian forces
in Kosovo between 1998 and June 1999 (when those forces were expelled following
NATO's intervention). Sorne of them are recalled briefly here.
3.54. The Security Council adopted a senes of resolutions and Presidential
statements addressing the atrocities in 1998-1999 177• In resolution 1160 (1998) of
178
31 March 1998 ,the Council condemned "the use of excessive force by Serbian police
forces against civilians and peaceful demonstrators in Kosovo". In a Presidential statement
179
of 24 August 1998 ,the Council expressed its grave concem at the recent intense fighting
in Kosovo, particularly the numbers of displaced persons. And in its resolution 1199
(1998) the Council expressed itselfto be
174Milutinovié et al., op. cit.(fn. 142), vol. 2, para. 1178.
175Ibid., vol. 3, para. 1172.
176 In the case concerning the Application of the Convention on the Prevention and Punishment of the Crime
of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), the Court stated that "it should in
principle accept as highly persuasive relevant findings of fact made by the Tribunal at trial, unless of
course they have been upset on appeal" (Merits, Judgment, para. 22).
177
Security Council resolution 1160 (1998), 23 March 1998 [Dossier No. 9]; Statement of the President of
the Security Council, S/PRST/1998/25, 24 August 1998 [Dossier No. 14); Security Council
resolutions 1199 (1998), 23 September 1998 [Dossier No. 17); 1203 (1998), 24 October 1998 [Dossier
No. 20]; Statements of the President of the Security Council, S/PRST/1999/2, 19 January 1999 [Dossier
No. 24]; S/PRST/1999/5, 29 January 1999 [Dossier No. 25]; Security Council resolution 1239 (1999),
14 May 1999 [Dossier No. 28).
178
Dossier No. 9.
179 S/PRST/1998/25, 24 August 1998 [Dossier No. 14).
-63- "Grave/y concerned at the recent intense fighting in Kosovo and in particular the
excessive and indiscriminate use of force by Serbian security forces and the Yugoslav
Army which have resulted in numerous civilian casualties and, according to the
estimate of the Secretary-General, the displacement of over 230,000 persons from
their homes,
Deeply concerned by the flow of refugees into northem Albania, Bosnia and
Herzegovina and other European countries as a result of the use of force in Kosovo, as
well as by the increasing numbers of displaced persons within Kosovo, and other parts
of the Federal Republic of Yugoslavia, up to 50,000 ofwhom the United Nations High
Commissioner for Refugees has estimated are without shelter and other basic
necessities,
Deeply concerned at the rapid deterioration in the humanitarian situation throughout
Kosovo, alarmed at the impending humanitarian catastrophe as described in the report
of the Secretary-General, and emphasising the need to prevent this from happening,
Deeply concerned also by reports of increasing violations of human rights and of
international humanitarian law, and emphasising the need to ensure the rights of all
180
inhabitants of Kosovo are respected" •
3.55. In its resolution 54/183 of 17 December 1999, the General Assembly
condernned
"the grave violations of human rights in Kosovo that affected ethnie Albanians ... , as
demonstrated in the many reports of torture, indiscriminate and widespread shelling,
mass forced displacement of civilians, summary executions and illegal detention of
ethnie Albanians in Kosovo by the Yugoslav police and military" 181•
3.56. The Special Rapporteur of the Commission on Human Rights, Mr. Jiri
Dienstbier, documented the atrocities in Kosovo in a series of letters and reports 182.
180Dossier No. 17. The Secretary-General had described the dire situation in Kosovo in a series of reports
presented to the Security Council (see for example Report of the Secretary-General prepared pursuant to
resolution 1160 (1998) of the Security Council, S/1998/712, 5 August 1998 [Dossier No. 13]; Report of
the Secretary-General prepared pursuant to resolution 1160 (1998) of the Security Council, S/1998/834,
4 September 1998,paras. 6-17, and Add.1, 21 September 1998 [Dossier Nos. 15 and 16]).
181Sixth preambular paragraph.
182
Report on the situation ofhuman rights in Bosnia and Herzegovina prepared by the Special Rapporteur of
the Commission on Human Rights on the situation of human rights in Bosnia and Herzegovina, the
Republic of Croatia and the Federal Republic of Yugoslavia, A/53/322, Annex, and A/53/322, Add.l,
Annex; Report of Mr. Jiri Dienstbier, Special Rapporteur of the Commission on Human Rights on the
situation ofhuman rights in Bosnia and Herzegovina, the Republic ofCroatia and the Federal Republic of
Yugoslavia, E/CN.4/1999/42, 20 January 1999,paras. 79-119, esp. paras. 83-96.
-64- 183
3.57. The Commission on Human Rights, in its resolution 1999/2 of 13April 1999 ,
strongly condemned
"the policy of ethnie cleansing against the Kosovars being perpetrated by the Belgrade
and Serbian authorities"
and condemned
"the massive military operations launched by the Serbian authorities against unarmed
civilians in Kosovo, resulting in large-scale killings, systematic and planned
massacres, destruction of homes and property, and forced mass exoduses to
184
neighbouring countries, as well as internai displacement" .
3.58. In May 1999, the United Nations High Commissioner for Human Rights
reported that
"[a]ccounts received by the High Commissioner and OHCHR staff ... provide
substantial evidence of gross human rights violations, ... including summary
executions, forcible displ185ment, rape, physical abuse, and the destruction of property
and identity documents" .
As regards forcible expulsions, she wrote:
"13. Forced displacement and expulsions of ethnie Albanians have increased
dramatically in scale, swiftness and brutality.
14.A large number of corroborating reports from the field indicate that Serbian
military and police forces and paramilitary units have conducted a well planned and
implemented programme of forcible expulsion of ethnie Albanians from Kosovo.
More than 750,000 Kosovars are refugees or displaced persons in neighbouring
countries and territories, while according to various sources there are hundreds of
thousands of internally displaced persons (IDPs) inside Kosovo. This displacement
seems to have affected virtually all areas of Kosovo as well as villages in southern
Serbia, including places never targeted by NATO air strikes or in which the so-called
Kosovo Liberation Army (KLA) has never been present.
15.This last fact strengthens indications that refugees are not fleeing NATO air
strikes, as is often alleged by the Yugoslav authorities. The deliberateness of the
programme to expel ethnie Albanians from Kosovo is further supported by statements
made by the Serbian authorities and paramilitaries at the time of eviction, such as
183E/CN.4/RES/1999/2.
184
See also Commission on Human Rights resolution 2000/26, E/CN.4/RES/2000/26, 18April 2000.
185
Report by the High Commissioner for Human Rights on the situation ofhuman rights in Kosovo, Federal
Republic ofYugoslavia, E/CN.4/2000/7, 31 May 1999, para. 12.
-65- telling people to go to Albania or to have a last look at their land because they will
never see it again.
18.Villages were emptied in house-to-house operations. Accounts indicate that, in
many cases, populations were grouped together or driven to certain assembly points
where transport had been pre-arranged, or from which they were escorted out of the
186
area ..."
3.59. The OSCE's Kosovo Verification Mission (OSCE-KVM), although withdrawn
from Kosovo on 19March 1999, was nevertheless able to prepare an impressive report,
based on many interviews, including with those forced to flee Kosovo. The report
"reveals a pattern of human rights and humanitarian law violations on a staggering
scale, often committed with extreme and appalling violence. The organized and
systematic nature of the violations is compellingly described ... It is evident that
human rights violations unfolded in Kosovo according to a well-rehearsed strategy".
The findings summarised in report include:
"Summary and arbitrary killing of civilian non-combatants occurred at the hands of
both parties to the conflict in the period up to 20 March [1999]. On the part of the
Yugoslav and Serbian forces their intent to apply mass killing as an instrument of
terror, coercion or punishment against Kosovo Albanians was already in evidence in
1998, and was shockingly demonstrated by incidents in January 1999 (including the
Racak mass killing) and beyond. Arbitrary killing of civilians was both a tactic in the
campaign to expel Kosovo Albanians, and an objective in itself.
Arbitrary arrest and detention, and the violation of the right to a fair trial, became
increasingly the tools of the law enforcement agencies in the suppression of Kosovo
Albanian civil rights and - accompanied by torture and ill-treatment - were applied as
a means to intimidate the entire Kosovo Albanian society.
Rape and other forms of sexual violence were applied sometimes as a weapon of war.
Forced expulsion carried out by Yugoslav and Serbian forces took place on a massive
scale, with evident strategic planning and in clear violation of the laws and customs of
war. It was often accompanied by deliberate destruction of property, and looting.
Opportunities for extortion of money were often a prime motivator for Yugoslav and
Serbian perpetrators of human rights violations." 187
186Report by the High Commissioner for Human Rights on the situation ofhuman rights in Kosovo, Ferlerai
Republic ofYugoslavia, E/CN.4/2000/7, 31 May 1999.
187Kosovo/Kosova: As Seen, As Told, op. cit. (fn. 167), Executive Summary.
-66- 3.60. The United Nations Secretary-General, addressing the High-level meeting on
the Balkans in Geneva on 14May 1999, said:
"Before there was a humanitarian catastrophe in Kosovo, there was a human rights
catastrophe. Before there was a human rights catastrophe, there was a political
catastrophe: the deliberate, systematic and violent disenfranchisement of the Kosovar
188
Albanian people."
188Cited by Malaysia in the Security Council on 10June 1999 (provisional verbatim record, fifty-fourth
year, 4011 meeting, S/PV.4011, p. 16 [Dossier No. 33]).
-67- CHAPTERIV
RESOLUTION 1244 (1999) AND THE INTERIM PERIOD
4.01. This Chapter deals with the adoption of Security Council resolution 1244
(1999) (Section 1), the interim period, which began in June 1999 and involved extensive
transfer of powers and responsibilities to Kosovo political institutions (Section 11),and the
transition to independence in 2008 (Section III). The final status process (May 2005-
December 2007) is covered in Chapter V.
189
4.02. Resolution 1244 (1999) provided for an interim period, during which the
United Nations would establish an international civil presence in Kosovo (UNMIK)
headed by a Special Representative of the Secretary-General (SRSG). The purpose of that
presence was to provide for an interim administration for Kosovo "under which the people
of Kosovo can enjoy substantial autonomy within the Federal Republic of Yugoslavia",
with gradual transfer of powers and responsibilities to Kosovo institutions of self
government. Following the period of interim administration, governance would be
assumed by the institutions under the final status settlement, for which independence was
one clear option.
4.03. For the initial period following June 1999, the efforts of the international
community, including the United Nations, the OSCE and the European Union,
concentrated first on the return to Kosovo of the refugees and displaced persons and the
rebuilding of their lives, and then on developing provisional institutions of self
government. It was only at a later stage, from 2004 onwards, that attention turned to the
political process for Kosovo's final status. As at Rambouillet, all options for final status
were open, though it was generally acknowledged that the will of the Kosovo people was
a fundamental premise of the status negotiations. These options ranged from the
continuation of substantial autonomy (already provided for during the interim period
without any FRY or Serbian presence in Kosovo) to the emergence of a sovereign and
independent State. Nothing was ruled in, nothing ruled out, though it was provided that the
189Dossier No. 34.
-69-process would be political in nature and that it would be overseen by the Secretary-General
and his representatives. Nothing in Security Council resolution 1244 (1999), or in its
implementation, was intended to prejudge the eventual final status, though it did indicate
that it must take into account the Rambouillet accords.
I. Resolution 1244 (1999)
4.04. Efforts to guarantee that the FRY's repression in Kosovo would end, and not
retum, began while the NATO intervention was ongoing, and were a condition for
termination of the armed conflict between NATO and Serbia.· On 6 May 1999, at a
meeting at the Petersberg Centre near Bonn, the Group of Eight (G-8) Foreign Ministers
adopted general principles on the political solution to the Kosovo crisis (which became
annex 1to resolution 1244). One of these principles called for
"[a] political process towards the establishment of an interim political 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 Yugoslavia and the other countries of the region, and the
demilitarization of the KLA." 190
Neither this nor any other principle in the Petersberg principles addressed the final status
process, nor did any other principle address the territorial integrity of the FRY.
4.05. In resolution 1239 (1999), adopted during the conflict on 14 May 1999 19, the
Security Council expressed "grave concem at the humanitarian crisis in and around
Kosovo", and urged all concemed to work towards the aim of a political solution
consistent with the principles adopted by the G-8.
4.06. On 3 June 1999, the FRY Govemment and the Serbian Assembly agreed to the
principles (peace plan) presented on 2 June by the President of Finland, Martti Ahtisaari,
representing the European Union, and Viktor Chemomyrdin, Special Representative of the
190Statement by the Chairman on the conclusion of the meeting of the G-8 Foreign Ministers held at the
Petersberg Centre on 6 May 1999,S/1999/516, Annex [Dossier No. 29].
191Dossier No. 28.
-70- 192
Russian Federation (which became annex 2 to resolution 1244 (1999)). Principle 8 was
virtually identical to the G-8 principle cited above and was likewise only concerned with
an "interim political framework agreement" 193. It read:
"A political process towards the establishment of an interim political framework
agreement providing for substantial self-government for Kosovo, taking full account
of the Rambouillet accords and the principles of sovereignty and territorial integrity of
the Federal Republic of Yugoslavia and the other countries of the region, and the
demilitarization of UCK. Negotiations between the parties for a settlement should not
delay or disrupt the establishment of democratic self-governing institutions."
Neither this nor any other principle in the peace plan addressed the final status process, nor
did any other principle address the territorial integrity of the FRY.
4.07. Thus the references to sovereignty and territorial integrity in what became
annex 1 (G-8 general principles) and annex 2 (Chernomydin/Ahtisaari peace plan) to
resolution 1244 (1999) were solely in the context of an interim political settlement.
4.08. On 9 June 1999, a Military Technical Agreement (MTA) was signed at
Kumanovo (Macedonia) between the international security presence (Kosovo Force -
KFOR) and the FRY and Serbian Governments. In accordance with the MTA and
resolution 1244(1999), the withdrawal of FRY and Serbian forces from Kosovo began
on 10 June 1999 and was completed by 20June 1999 19.
4.09. On 10 June 1999, the Security Council adopted resolution 1244 (1999) by
14 votes in favour, none against, and one abstention (China). As was also the case with the
G-8 principles and the Ahtisaari/Chernomyrdin peace plan, both of which were annexed,
the resolution addressed in detail the immediate issues and the governance of Kosovo in an
interim period. But, as is clear from its text, and from the debate that took place in the
Security Council when it was adopted 19, the resolution provided only limited guidance on
192
S/1999/649,Annex [DossierNo. 31].
193
lt will be recalled that the Rambouillet accords principally addressed the notion of an interim agreement,
as indicated by its title [Dossier No. 30].
194
Dossier No. 32. See Milutinovié et al., op. cit.(fn. 142), vol. 1,paras. 1215-1217.
195 Security Council, provisional verbatim record, fifty-fourth year, 4011 meeting, 10 June 1999, S/PV.4011
and S/PV.4011 (Resumption 1) [Dossier No. 33].
-71- the process for determining the final status of Kosovo. The resolution itself did not seek
to fix the timing or form of the process leading to future status, still less the substance
of an eventual solution. These matters were left largely open. Importantly, however, the
resolution characterized the process as "political" in nature, indicated that the process must
take into account the Rambouillet accords, decided that the international civil presence
would oversee the process of transferring authority to the final status institutions, and
requested that the Secretary-General appoint his Special Representative (SRSG) so as
"to control the implementation of the international civil presence".
4.1O.In the preamble to resolution 1244 (1999), the Security Council recalled its
previous resolutions on Kosovo 19, resolutions 1160 (1998), 1199 (1998), 1203 (1999) and
1239 (1999), and welcomed "the general principles on a political solution of the Kosovo
crisis adopted on 6 May 1999" and the FRY's acceptance of and agreement with "the
197
principles set forth in points 1to 9 of the paper presented in Belgrade on 2 June 1999" •
4.11. The Council reaffirmed, in the preamble, "the commitment of all Member
States to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia and
the other States of the region, as set out in the Helsinki Final Act and annex 2 [to the
198
resolution]" , while at the same time reaffirming the call in its previous resolutions for
199
"substantial autonomy and meaningful self-government for Kosovo" . As is explained in
200
more detail in Chapter IX below , the preambular reference to the FRY's territorial
integrity is conditioned by reference to an annex concerned solely with the interim
period, a change from such references in prior resolutions. As such, the preamble to
resolution 1244 (1999) was entirely without prejudice to the arrangements and terms of the
eventual final status of Kosovo. All possible solutions for final status were open; none was
excluded a priori, particularly not independence, which was known to be the demand of
the overwhelming majority of the people of Kosovo.
196 Security Council resolution 1244 (1999), 10 June 1999, second preambular paragraph [Dossier No. 34].
197Ibid., ninth preambular paragraph.
198Ibid., tenth preambular paragraph.
199
Ibid., eleventh preambular paragraph.
200
See paras. 9.29-9.36 below.
-72 4.12. The operative part of the resolution begins with a Council decision that "a
political solution to the Kosovo crisis shall be based on the general principles in annex 1
[i.e., the G-8 Petersberg principles of 6 May 1999] and as further elaborated in the
principles and other required elements in annex 2 [i.e., those presented in Belgrade on
2 June 1999 and agreed to by the FRY]". Again, the Council here is indicating that the
initial concern in resolving the crisis was to establish an interim period, built on the
principles set forth in the annexes, which would allow for the end of violence and
repression in Kosovo, the removal of all FRY and Serbian military and paramilitary forces,
and the deployment of international presences that would allow for the establishment of
peace, the return of refugees, and a move toward substantial self-government for Kosovo.
Neither the preamble nor the overall thrust of the resolution (as signaled in its paragraph 1)
establish FRY (or Serbian) territorial integrity as a condition for Kosovo's final status.
The principles in annexes 1and 2 did not touch on the content of the final status.
4.13. In the further operative paragraphs of resolution 1244 (1999), the Security
Council provided both for KFOR and for UNMIK, headed by the SRSG 201• The detailed
responsibilities of each were set out in paragraphs 9 and 11respectively.
4.14. Specifically, the Security Council authorized Member States and relevant
202
international organizations to establish the international security presence in Kosovo ,
and decided that its responsibilities were to include:
"(a) Deterring renewed hostilities, maintaining and where necessary enforcing a
ceasefire, and ensuring the withdrawal and preventing the return into Kosovo of
Federal and Republic military, police and paramilitary forces ... ;
(b) Demilitarization of the Kosovo Liberation Army (KLA) and other armed Kosovo
Albanian groups ... ;
201 Security Council resolution 1244 (1999), 10 June 1999,paragraphs 5-11 [Dossier No. 34].
202Ibid., paragraph 7. The composition of KFOR has varied over time. lt currently includes troops from 25
States: Belgium, Bulgaria, Canada, Czech Republic, Denmark, Estonia, France, Germany, Greece,
Hungary, ltaly, Latvia, Lithuania, Luxembourg, Netherlands, Norway, Poland, Portugal, Romania,
Slovakia, Slovenia, Spain, Turkey, United Kingdom and United States of America. KFOR has submitted
monthly report on its activities, a representative selection of which is included in the Dossier submitted
by the United Nations Secretariat (Dossier, p. 12, and Nos. 133-146).
-73- (c) Establishing a secure environment in which refugees and displaced persons can
return home in safety, the international civil presence can operate, a transitional
administration can be established, and humanitarian aid can be delivered;
(h) Ensuring the protection and freedom of movement of itself, the international civil
203
presence, and other international organizations."
4.15. The United Nations Secretary-General was to appoint, in consultation with the
Security Council, the SRSG "to control the implementation of the international civilian
204
presence" . The Security Council authorized the Secretary-General to establish, "with
the assistance ofrelevant international organizations", the international civil presence
"in order to provide an interim administration for Kosovo under which the people of
Kosovo can enjoy substantial autonomy within the Federal Republic of Yugoslavia,
and which will provide transitional administration while establishing and overseeing
the development of provisional democratic self-governing institutions" 205.
4.16. The Security Council decided in paragraph 11 of resolution 1244 (1999) that
the main responsibilities of the international security presence would include:
"(a) Promoting the establishment, pending a final settlement, of substantial autonomy
and self-government in Kosovo, taking full account of annex 2 and of the Rambouillet
accords ... ;
(b) Performing basic civilian administrative functions where and as long as required;
(c) Organizing and overseeing the development of provisional institutions for
democratic and autonomous self-government pending a political settlement, including
the holding of elections;
(d) Transferring, as these institutions are established, its administrative responsibilities
while overseeing and supporting the consolidation of Kosovo's local provisional
institutions ... ;
(e) Facilitating a political process designed to determine Kosovo's future status, taking
into account the Rambouillet accords;
(f) In a final stage, overseeing the transfer of authority from Kosovo's provisional
206
institutions to institutions established under a political settlement" .
203
Security Council resolution 1244 (1999), 10 June 1999, paragraph 9 [Dossier No. 34).
204
Ibid., paragraph 6.
205Ibid., paragraph 10.
206Ibid., paragraph 11.
-74- 4.17. Paragraph 11 (e) refers to a "political process" to determine final status, taking
into account the Rambouillet accords 207. It will be recalled that the only provision in those
accords that concemed final status envisaged a final settlement "on the basis of the will of
the people", and made no reference to approval by either the FRY or Serbia 208. As noted
in paragraph 3.46 above, Chapter 8, Article I, paragraph 3, of the Rambouillet accords
provided that the final settlement would be "on the basis of the will of the people,
opinions of relevant authorities, each Party's efforts regarding the implementation of this
Agreement, and the Helsinki Final Act ... ".
4.18. Moreover, as discussed in Chapter IX, this prov1s10n of the Rambouillet
accords consciously dropped any reference to "mutual consent" of the FRY and Kosovo,
which had existed in the analogous provision of the peace proposais drafted by
Ambassador Christopher Hill in the period immediately preceding Rambouillet 209.
4.19. Otherwise, resolution 1244 (1999) is silent on the form that the political
process would take, including whether it would conclude with a decision of the United
Nations, and if so which United Nations body, and on the content of final status.
However, paragraph 11 (e) clearly states that the political process is one of the
"main responsibilities" of UNMIK, headed and controlled by the SRSG. After adoption of
the resolution, the Secretary-General would regularly report to the Security Council on
developments as they unfolded in Kosovo, and on the appointment both of the SRSG and
of special envoys relating to the final status negotiations.
4.20. Paragraph 11 of resolution 1244 (1999) concluded by identifying further
responsibilities of the international civil presence: support for reconstruction; maintenance
of civil law and order; protection and promotion of human rights; and assurance of the safe
and unimpeded retum of all refugees and displaced persans to their homes in Kosovo 210.
Given the placement of these responsibilities after the sub-paragraphs (e) and (f) relating to
final status, it is clear that the role of UNMIK was envisaged as potentially straddling the
207 S/1999/648, Annex [Dossier No. 30].
208
See paras. 3.45-3.46 above.
209
See paras. 9.13-9.14 below.
210
Security Council resolution 1244 (1999), paragraph 11 (g), (h), (i), (j) and (k) [Dossier No. 34].
-75- interirn and post-interirn periods, depending on whether there existed continuing needs that
the international civil presence could address.
4.21. The Security Council went on to dernand "that all States in the region cooperate
211
fully in the irnplernentation of all aspects of this resolution" • It decided that the
international civil and security presences would continue "until the Security Council
decides otherwise" 212 . As described in Chapter II, those presences continue today in
Kosovo, with Kosovo's agreement. Further, the Council requested the Secretary-General
213
to report at regular intervals ,as he continues to do.
4.22. Sorne important points ernerged in the course of the Security Council meeting
at which resolution 1244 (1999) was adopted 214:
(a) The FRY representative (Mr. Jovanovié), opening the debate and speaking before
the draft resolution was put to the vote, objected strongly to rnany of the terms of
the draft (which was nevertheless adopted unchanged). He said that the draft
"should contain ... a firm and unequivocal reaffirmation of full respect for the
215
territorial integrity and sovereignty of the Federal Republic of Yugoslavia" (thus
acknowledging that it did not). He said that it should contain a provision for "a
political solution to the situation in Kosovo and Metohija that would be based on
broad autonorny" 216 (again acknowledging that the draft language, which was then
adopted by the Council, did not). He continued: "The solution for Kosovo and
Metohija must fall within the legal frarneworks of the Republic of Serbia and the
Federal Republic of Yugoslavia, which irnplies that all State and public services in the
province, including the organs of law and order, should function according to the
Constitutions and laws of the Federal Republic of Yugoslavia and the Republic of
211
Security Council resolution 1244 (1999), paragraph 18 [Dossier No. 34].
212
Ibid., paragraph 19.
213Ibid., paragraph 20. The Secretary-General's reports are included in Part 11.Cof the Dossier.
214Security Council, provisional verbatim record, fifty-fourth year, 4011 meeting, 10 June 1999, S/PV.4011
and S/PV.4011 (Resumption 1) [Dossier No. 33].
215Ibid., p. 5. As the United Kingdom representative said, "[t]he interpretation and conditions which the
delegation of the Federal Republic of Yugoslavia has attempted to propose have been rejected" (ibid.,
p. 18).
216
Ibid., p. 5.
-76- 217
Serbia" • Perhaps rnost irnportantly for the rnatter now before the Court, the FRY
representative stated that "operative paragraph 11 ... opens up the possibility of the
secession of Kosovo and Metohija frorn Serbia and the Federal Republic of
Yugoslavia" 218. He thus acknowledged that resolution 1244 (1999), as adopted,
permitted the very outcorne that Serbia now clairns the resolution prohibits.
(b) Sorne States attached importance to the resolution's reaffirmation of Member States'
commitrnent to the sovereignty and territorial integrity of the FRY (especially
219
China ). Others, however, spoke of the shift frorn absolute State sovereignty to
220
recognition of the importance of hurnan rights .
(c) Most speakers focused on the irnrnediate steps envisaged by resolution 1244 (1999).
Just as the resolution itself contained rather little about the final status negotiations, so
few speakers dwelt on what was then a rather distant aspect of resolving the Kosovo
crisis. No one (except perhaps the FRY representative) suggested that Kosovo would
have to rernain within the FRY in any future settlernent (as opposed to during the
interirn period). Indeed, it is clear that to rule out that option would have been
unacceptable to many Council mernbers. The representative of Malaysia, echoing the
resolution's reference to the Rambouillet accords, referred to
"the need to ensure one very fundarnental elernent in the peace settlernent: the
fulfilrnent of the legitirnate aspirations and expectations of the Kosovar Albanian
people, the rnajority inhabitants of Kosovo" 221.
217 Security Council, provisional verbatim record, fifty-fourth year, 4011thmeeting, 10 June 1999, S/PV.4011
and S/PV.4011 (Resumption 1), p. 5 [Dossier No. 33).
218 Ibid., p. 6.
219 Ibid.,p.9.
220 Ibid., pp. 12-13 (Netherlands), pp. 13-14 (Canada).
221 Ibid., p. 16.
-77- II. The Promotion of Kosovo Self-Governance
4.23. A comprehensive account of the establishment of UNMIK, its activities, and
events in Kosovo from June 1999 to February 2008 is set out in the quarterly reports of the
222
Secretary-General under paragraph 20 of Security Council resolution 1244 (1999) .
Its functions included the promotion of democracy, rule of law, human rights, multi-ethnic
relations, and institution building. Its mandate enabled it to develop institutions of local
self-government to which functions would be gradually transferred. While UNMIK is still
present in Kosovo, its principal functions have now either been fulfilled or been assumed
by others, notably by the institutions of the Republic of Kosovo and EULEX-Kosovo 223.
UNMIKpillars
4.24. UNMIK initially consisted of four "Pillars": Pillar I (Humanitarian Affairs),
with UNHCR in charge; Pillar II (Civil Administration), run by the United Nations;
Pillar III (Democratization and Institution-Building), under the OSCE; and Pillar IV
(Reconstruction), under the EU. UNHCR left the structure in June 2000, and in May 2001
a "new Pillar I" (Law Enforcement and Justice) was established, under the United Nations.
The SRSG was the head of UNMIK, and there were four Deputy SRSGs, one in charge of
each Pillar.
224
4.25. Successive SRSGs ensured the transfer of powers and responsibilities to
self-government institutions. There was a gradual transition from direct international
222Dossier, Part II.C. The reports "provide a detailed description of the full breadth of UNMIK's activities,
the structure of the Mission, its powers and competences, concept of operation and the relationship
between UNMIK and the international organizations that played a lead role in UNMIK's four Pillars,
namely the United Nations, the European Union and the Organization for Security and Cooperation in
Europe. These reports provide regular updates on, and assessments of, the security, political, economic,
and humanitarian situation, as well as on capacity and institution-building, in particular, the establishment
of a Constitutional Framework for Provisional Self-Government for Kosovo, the establishment and
functioning of Provisional Institutions of Self-Government of Kosovo (PISG) and other administrative
structures established pursuant to the Constitutional Framework, transfer of competences to the PISG,
municipal and Kosovo-wide elections, dialogue between Pristina and Belgrade and technical assessments
on the implementation of the 'Standards for Kosovo'." [Introductory Note, Dossier, p. 6]
223See paras. 2.69-2.74 above.
224
Sérgio Vieira de Mello of Brazil (Acting SRSG, 13June-15 July 1999); Bernard Kouchner of France
(15 July 1999-15 January 2001); Hans Haekkerup of Denmark (15 January-31 December 2001); Michael
Steiner of Germany (14 February 2002-8 July 2003); Harri Holkeri of Finland (25 August 2003-
-78-administration by UNMIK to govemance by democratic institutions representing the
people of Kosovo, namely the President, the Govemment (consisting of a Prime Minister
and other Ministers) and the Assembly of Kosovo.
UNMIK authority and applicable law
4.26. UNMIK had unprecedented authority m terms of the international
administration of territory 225. As foreshadowed in the Secretary-General' s report to the
Security Council on its establishment 226, UNMIK Regulation No. 1999/1, adopted on
25 July 1999, provided that
"All legislative and executive authority with respect to Kosovo, including the
administration of the judiciary, is vested in UNMIK and is exercised by the Special
Representative of the Secretary-General. " 227
Section 3 of UNMIK Regulation No. 1999/1 made prov1s10n for the domestic law
applicable in Kosovo in the following terms:
"The laws applicable in the territory of Kosovo prior to 24 March 1999 shall continue
to apply in Kosovo insofar as they do not conflict with the standards referred to in
section 2 [intemationally recognized human rights standards and non-discrimination],
the fulfilment of the mandate given to UNMIK under United Nations Security Council
resolution 1244 (1999), or the present or any other regulation issued by UNMIK."
4.27. However, the application of laws enacted after the unlawful removal of
Kosovo's autonomy in 1989 was unacceptable to the people of Kosovo. The SRSG
therefore, on 12December 1999, adopted UNMIK Regulation No. 1999/24 228, which
replaced the reference to the law applicable prior to 24 March 1999 with a reference to the
law in force in Kosovo on 22 March 1989, that is, the law in force immediately preceding
11June 2006); S0ren Jessen-Petersen of Denmark (16 August 2004-30 June 2004); Joachim Rücker of
Germany (1 September 2006-20 June 2008); Lamberto Zannier ofltaly (since June 2008).
225
Though it was rapidly followed by UNTAET in East Timor.
226
Report of the Secretary-General Pursuant to Paragraph 10 of Security Council Resolution 1244 (1999),
S/1999/779, 12July 1999, para. 35 [Dossier No. 37].
227Regulation No. 1999/1 on the Authority of the Interim Administration in Kosovo, Section 1.1 [Dossier
No. 138].
228Dossier No. 146. By section 3, Regulation No. 1999/24 was deemed to have entered into force as of
10June 1999.
-79- the unlawful and forceful abolition of Kosovo's autonomy on 23 March 1989 229•
Section 1.1ofRegulation No. 1999/24 read:
"The law applicable in Kosovo shall be:
(a) The regulations promulgated by the Special Representative of the Secretary-
General and subsidiary instruments issued thereunder; and
(b) The law in force in Kosovo on 22 March 1989.
In case of a conflict, the regulations and subsidiary instruments issued thereunder shall
take precedence." 230
4.28. UNMIK Regulation No. 1999/1 was further amended, also with effect from
10June 1999, by UNMIK Regulation No. 2000/54, which included a consolidated text of
231
the regulation •
Early andfar-reaching UNMIK legislation
4.29. The SRSG enacted a number of important regulations in the first few months of
the interim administration, which formed part of the domestic law of Kosovo and which
reinforced Kosovo's position as a territory no longer under the rule of the FRY or Serbia.
These included regulations "for the purpose of establishing customs and other related
services at the inland customs houses and international borders of Kosovo" 232; on the
233
currency permitted to be used in Kosovo ; and on the establishment of a court of final
appeal and the office of the public prosecutor "for the purpose of enhancing the
229
See paras. 3.23-3.28 above.
230
UNMIK Regulation No. 1999/24 of 12December 1999 on the Applicable Law in Kosovo [Dossier
No. 146]. On the same date, section 3 of Regulation No. 1999/1was repealed by Regulation No. 1999/25
[Dossier No. 139].
231Dossier No. 140. Another regulation on applicable law was Regulation No. 1999/10 on the Repeal of
Discriminatory Legislation Affecting Housing and Rights in Property [Dossier No. 141].
232UNMIK Regulation No. 1999/3 of 31 August 1999 on the Establishment of the Customs and Other
Related Services in Kosovo, Official Gazette of the United Nations Interim Mission in Kosovo (available
on the UNMIK website <http://www.unmikonline.org>). The citation is from the preamble to the
Regulation.
233
UNMIK Regulation No. 1999/4 of 2 September 1999 on the Currency to be used in Kosovo, Official
Gazette of the United Nations Interim Mission in Kosovo (available on the UNMIK website
<http://www.unmikonline.org> ).
-80-administration of justice in Kosovo pending a more thorough review" 234. The FRY/Serbia
made repeated protests about these and other "unlawful" regulations, saying that in
adopting them the SRSG had "violated the mandate established under Security Council
resolution 1244 (1999) and the related documents, in particular the principle of the
235
territorial integrity and sovereignty of the FR of Yugoslavia ... " • Neither the SRSG/
Secretary-General nor the Security Council took any action following these protests 236.
External relations
4.30. UNMIK's powers also included the conduct of external relations on behalf of
Kosovo and to the exclusion of the FRY/Serbia. To this end, UNMIK concluded a number
237
of international agreements on behalf of Kosovo . The position was described in a
March 2004 Note Verbale of the United Nations Office of Legal Affairs in the following
terms:
"While not expressly vested with treaty-making power, the power to conclude bilateral
agreements with third States and Organizations on behalf of Kosovo has in practice
been assumed by UNMIK with regard to matters falling within the scope of its
responsibilities under Security Council resolution 1244, and to the extent necessary for
the administration of the territory. A number of agreements have thus been concluded
over the years on a variety of practical matters relating to economic development
assistance and cooperation, road transport and police cooperation with the Republic of
Albania, Italy, the United States, Switzerland, Iceland, and the former Yugoslav
Republic of Macedonia, among others. Bilateral Agreements have also been
concluded between UNMIK and international organizations, and notably ICAO and
INTERPOL." 238
234UNMIK Regulation No. 1999/5 of 4 September 1999 on the Establishment of an Ad Hoc Court of Final
Appeal and an Ad Hoc Office of the Public Prosecutor, Official Gazette of the United Nations Interim
Mission in Kosovo (available on the UNMIK website <http://www.unmikonline.org>). The citation is
from the preamble to the regulation.
235
Memorandum of the Govemment of the FRY on the UN Security Council resolution 1244 (1999) of
5 November 1999, Part 2, (available on <http://www.arhiva.serbia.sr.gov.yu/news/l999-l l/05/l 5429.html>).
236
Such measures were in areas which, according to the FRY itself, went to the heart of sovereignty. The
FRY again protested, describing the SRSG's decision as "the so-called transformation of the terrorist
KLA into an allegedly civilian organization" and asserting that "a core of some future Albanian army in
Kosovo has thus been created" (ibid., Part 3, point 3 (available on <http://www.arhiva.serbia.sr.gov.yu/
news/l999-11/05/15431.html>).
237Dossier, Section II.G, includes a selection of such international agreements, bilateral and multilateral.
238Note Verbale from the United Nations Office ofLegal Affairs, 12March 2004 [Dossier No. 168].
-81-Institution building
4.31. There were early efforts to involve the people of Kosovo in govemance. Joint
civilian commissions (JCCs) were formed in areas such as health, universities, education
and culture, municipalities and govemance, post and telecommunications, and power 239.
240
A Kosovo Transitional Council (KTC) was established in July 1999 . This initially
included 12 representatives of political parties and communities, and could make
241
recommendations to UNMIK . At about the same time, a Judicial Advisory Council,
with 20 national and international legal experts, was established to review and comment on
draft legislation and to propose new legislation. A local Advisory Judicial Commission
advised the SRSG on the appointment of judges and was consulted on the removal of
judges and prosecutors.
4.32. UNMIK then moved quickly to establish a Joint Interim Administrative
Structure (JIAS) 242 , pursuant to an Agreement on a Kosovo-UNMIK Joint Interim
Administrative Structure (JIAS), signed on 15December 1999 by three Kosovo political
243
leaders . This provided for the transformation and progressive integration of existing
244
"Kosovo structures" , to the extent possible, into the JIAS. There was a high-level eight
member Interim Administrative Council, composed of the four Deputy SRSG's and four
members from Kosovo, including one Serb, to "make recommendations to the SRSG for
amendments to the applicable law and for new regulations", and to "propose policy
245
guidelines for Administrative Departments" . In addition, there were 20 Administrative
Departments, responsible for civil administration, jointly led by a Kosovo and UNMIK Co-
239 Report of the Secretary-General pursuant to paragraph 10 of Security Council resolution 1244 (1999),
S/1999/779, 12July 1999,para. 19 [Dossier No. 37].
240 Ibid., para. 20.
241 Its enlargement and integration into the JIAS was foreseen in UNMIK Regulation No. 2000/1 on the
Kosovo Joint Interim Administrative Structure, 14 January 2000, section 2 [Dossier No. 148].
242 UNMIK Regulation No. 2000/1 on the Kosovo Joint Interim Administrative Structure, 14January 2000,
section 2 [Dossier No. 148].
243
Report of the Secretary-General on the United Nations Interim Mission in Kosovo, S/1999/1250,
23 December 1999,paras. 5-6 [DossierNo. 40].
244
UNMIK Regulation No. 2000/1, 14 January 2000, Section 1(c) of which refers to "[c]urrent Kosovo
structures, be they executive, legislative or judicial (such as the 'Provisional Govemment of Kosovo',
'Presidency of the Republic of Kosovo')" [Dossier No. 148].
245 Ibid., Sections 3-6.
-82-Head of Department2 46. Provision was also made for Municipal Administrative Boards,
headed by an UNMIK official but including Kosovo members.
The Constitutional Framework
4.33. The next stage was to develop a basic document providing for "meaningful
self-government in Kosovo pending a final settlement" 247. The Constitutional Framework
for Provisional Self-Govemment in Kosovo (hereafter "Constitutional Framework") was
248
promulgated by the SRSG on 15 May 2001 • Just like any other UNMIK regulation, it
formed part of the domestic law applicable in Kosovo. lt was not a constitution for
Kosovo, and had no greater formal status than any other UNMIK regulation. lt could, for
example, be amended at any time by the SRSG 249. The Constitutional Framework was
nevertheless seen as important, because it created a framework within which the people of
Kosovo could govem themselves during the interim period. lt was described by the SRSG
as follows:
"lt is a truly historie document. lt will guide the people of Kosovo toward the
establishment of democratic structures, and its successful implementation will greatly
assist the process of determining Kosovo's final status." 250
4.34. The Constitutional Framework included the following preambular paragraph,
setting out the SRSG's basic understanding of the position then pertaining in Kosovo:
"Acknowledging Kosovo's historical, legal and constitutional development; and
taking into account the legitimate aspirations of the people of Kosovo to live in
251
freedom, in peace, and in friendly relations with other people in the region" .
Also in the preamble, the SRSG referred to the final status process, stressing the
importance of the will of the people. He said that responsibilities would be transferred to
246
UNMIK Regulation No. 2000/1, 14 January 2000, Section 7 [Dossier No. 148].
247
UNMIK Regulation No. 2001/9, 15 May 2001, preamble [Dossier No. 156].
248Ibid. The Constitutional Framework was attached to Regulation No. 2001/9. It was later amended by
UNMIK Regulation No. 2002/9, 3 May 2002, [Dossier No. 157].
249 Constitutional Framework, Chapter 14.3.
250UNMIK, Constitutional Frameworkfor Provisional Self-Government in Kosovo, Introduction (available
on the UNMIK website <http://www.unmikonline.org/pub/misc/FrameworkPocket_ENG_Dec2002.pdf>).
251 Constitutional Framework, third preambular paragraph [Dossier No. 156].
-83the PISG "which shall work ... with a view to facilitating the determination of Kosovo's
future status through a process at an appropriate future stage which shall, in accordance
with UNSCR 1244 (1999), take full account of all relevant factors including the will of the
people" 252.
Transfer ofpowers and responsibilities ta the PISG
4.35. As part of the domestic law of Kosovo, the Constitutional Framework made
provision for "Provisional Institutions of Self-Governrnent" (PISG). These were the
Assembly, the President of Kosovo, the Government, the Courts, and other bodies and
253
institutions set forth in the Framework • The PISG were to have extensive and open
ended responsibilities, set out in Chapters 5.1 (broad fields of domestic and
254
foreign policy ), 5.2 (local administration), 5.3 (judicial affairs), 5.4 (mass media),
5.5 (emergency preparedness), 5.6 (external relations), 5.7 (aligning legislation and
practices with European and international standards) and 5.8 (such other responsibilities as
are specified in the Constitutional Framework of in other legal instruments).
4.36. The Constitutional Framework contained detailed provisions on the institutions
of self-government, including on the procedure for the adoption of laws, which required
two or three readings. If approved by the Assembly, the laws were submitted to the
President of Kosovo for signature, who in turn submitted them to the SRSG for
promulgation. The Assembly could also adopt resolutions, which were non-binding
declarations 255•
4.37. By the time of the Declaration of Independence by the democratically-elected
leaders of Kosovo, Kosovo had "successfully held five sets of elections since UNMIK was
252Constitutional Framework, sixth preambular paragraph [Dossier No. 156).
253Ibid., Chapter 1.5.
254
Including, by way of example, economic and financial policy, fiscal and budgetary issues, customs,
education, health, environmental protection, labour and social welfare, transport, telecommunications,
agriculture, good govemance and human rights.
255Constitutional Framework, Chapter 9 [Dossier No. 156].
-84- 256
established" • Pursuant to the Constitutional Framework, free and fair elections were
successfully held on several occasions for the Assembly of Kosovo and at the local level.
The first general election was held on 17November 2001, and following somewhat
protracted coalition discussions a Govemment was formed by February 2002. A further
general election was held in 2004. A third was held on 17November 2007 257•
4.38. The Constitutional Framework provided that
"The SRSG shall take the necessary measures to facilitate the transfer of powers and
responsibilities to the Provisional Institutions of Self-Govemment." 258
4.39. Pursuant to this provision, from 2002 onwards, powers and responsibilities
were gradually transferred to the PISG and new ministries and bodies were formed, as is
59
fully described the reports of the SRSG under resolution 1244 ( 1999)2 .
4.40. Following the adoption the Constitutional Framework, "UNMIK made intemal
adjustments for the handover of significant powers to the provisional institutions of
260
self-govemment" . Chapter 5 of the Constitutional Framework set out those unreserved
powers and responsibilities which would gradually be transferred to the PISG, with
Chapter 8 listing those powers and responsibilities that were reserved to the SRSG.
The transfer of additional competencies from UNMIK to the PISG was a gradua} one,
continuing and accelerating during the years subsequent to the establishment of the PISG
in order to create, build and consolidate self-goveming institutions, in preparation for the
determination of the final status of Kosovo.
4.41. UNMIK completed the transfer of responsibilities under Chapter 5 of the
261
Constitutional Framework to the Provisional Institutions at the end of 2003 • Discussions
256
Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo,
S/2007/768, 3 January 2008, para. 3 [Dossier No. 84].
257
See para. 4.55 below.
258 Constitutional Framework, Chapter 14 (2) [Dossier No. 156].
259Dossier, Section II.C.
260Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo,
S/2002/62, 15January 2002, para. 2 [Dossier No. 53].
261Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo,
S/2004/71, 26 January 2004, para. 5 [Dossier No. 66].
-85- ensued in order to determine whether additional competencies could be handed over to the
PISG. By 2004, UNMIK sought to "involve the Provisional Institutions in an advisory and
consultative capacity within the specific areas reserved for [the] Special Representative in
chapter 8 of the Constitutional Framework" 262 , and in addition "identified a number of
responsibilities that [did] not impinge on sovereignty and [could] be transferred to the
263
Provisional Institutions" . During this period, UNMIK continued to examine the "ways
in which the functional engagement in reserved areas of the Provisional Institutions [could]
be further developed" 264.
4.42. In the early years, the PISG had relatively few competencies and it was felt that
Kosovo still had "some way to go in establishing representative and functioning
265
institutions" . But four years into UNMIK's mandate, Kosovo had made "significant
266
progress" , with the Secretary-General reporting in 2003 that of the non-reserved
responsibilities in Chapter 5 of the Constitutional Framework, 19 had been transferred,
17 had been identified for transfer in a graduai and controlled manner, and it was
267
anticipated that the remaining eight would be transferred by the end of 2003 . By his
report of 29 June 2007, the Secretary-General was able to state that
"[i]n eight years of interim administration by the United Nations, Kosovo has made
significant strides in the establishment and consolidation of democratic and
accountable Provisional Institutions of Self-Govemment and in creating the
foundations for a functioning economy. The Provisional Institutions have laid the
basis for a peaceful and normal life for all the people of Kosovo." 268
262 Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo,
S/2004/71, 26 January 2004, para. 5 [Dossier No. 66].
263Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo,
S/2004/907, 17November 2004, para. 11 [Dossier No. 70].
264Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo,
S/2005/335, 23 May 2005, para. 12 [Dossier No. 73].
265
Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo,
S/2003/421, 14April 2003, para. 4 [Dossier No. 62].
266
Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo,
S/2003/675, 26 June 2003, para. 60 [Dossier No. 63].
267
Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo,
S/2003/996, 15October 2003, para. 3 [Dossier No. 64].
268Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo,
S/2007/395, 29 June 2007, para. 30 [Dossier No. 80].
-86- 4.43. Over the course of its mission, UNMIK thus created, developed and nurtured
the Kosovo institutions through a process of gradual and increasing transfer of
competencies in order to prepare it for the final status. This process is shown by having
regard to the developments within the institutions themselves.
4.44. Throughout 2002 the Assembly, with the assistance of UNMIK, "formed the
rudimentary structures needed for a functioning parliament" with the formation of
269
18 committees , such that by 2006 the Secretary-General described the Assembly as
270
showing "political maturity" . UNMIK was central in forming the nine original
271
ministries in 2002, with the promulgation in December 2005 of an UNMIK regulation
establishing the new Ministries of Justice and Intemal Affairs, marking "a key step
forward" 272. According to the Secretary-General's report to the Security Council of
25 January 2006, "[i]n this first stage, the ministries are given legal, technical, financial
and administrative responsibilities in relation to police and justice. Transfer of more
important responsibilities, such as operational control over the Kosovo Police Service and
the Kosovo Correctional Service, will only take place after, and conditional upon, a
positive assessment by my Special Representative of the performance by the new
272
ministries in the first three months of their existence." The Ministry of Internai Affairs
"continued to make generally satisfactory progress towards full establishrnent" 273,creating
the Department of Borders, Boundaries, Asylum and Migration by 2007 274.
269 Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo,
S/2003/113, 29 January 2003, para. 11 [Dossier No. 60].
270
Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo,
S/2005/88, 14February 2005, para. 3 [Dossier No. 72].
271
The nine original ministries were: Agriculture, Foresting and Rural Development; Culture, Youth and
Sports; Education, Science and Technology; Labour and Social Welfare; Health, Environment and Spatial
Planning (which was subsequently split into two separate Ministries, for Health and for Environment and
Spatial Planning); Transport and Communications; Public Services; Trade and Industry; Finance and
Economy.
272
Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo,
S/2006/45, 25 January 2006, para. 13 [Dossier No. 75].
273
Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo,
S/2006/707, 1 September 2006, para. 17 [Dossier No. 77].
274
Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo,
S/2007/395, 29 June 2007, para. 17 [Dossier No. 80].
-87- 4.45. UNMIK "moved ahead with the transfer of further competencies to the
Provisional Institutions, particularly in the field of rule of law and security" 275. In relation
to policing activities, whilst retaining overall authority, UNMIK's role "shifted
increasingly to mentoring and monitoring the Kosovo Police Service as it assume[d]
276
additional operational functions" .
4.46. Summarising the position in 2007, the Secretary General stated:
"UNMIK has largely achieved what is achievable under resolution 1244 (1999). At
this stage, further progress depends on a timely resolution of the future status of
Kosovo. A further prolongation of the future-status process puts at risk the
achievements of the United Nations in Kosovo since June of 1999" 277.
Authority of the SRSG
4.47. Chapter IX of this Written Contribution addresses in some detail the
278
authority of the SRSG under the Constitutional Framework . His general authority was
acknowledged in Chapter 12of the Constitutional Framework, which provided as follows:
"The existence of the responsibilities of the Provisional Institutions of Self
Govemment under this Constitutional Framework shall not affect or diminish the
authority of the SRSG to ensure full implementation ofUNSCR 1244(1999), including
overseeing the Provisional Institutions of Self-Govemment, its officials and its
agencies, and taking appropriate measures whenever their actions are inconsistent with
UNSCR 1244 (1999) or this Constitutional Framework."
4.48. As discussed in Chapter IX 279, on several occasions the SRSG made use of his
power under Chapter 12to strike down acts of the PISG, and in particular of the Assembly.
For example on 23 May 2002 the SRSG made a Determination in the following terms:
275
Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo,
S/2006/45, 25 January 2006, para. 13 [Dossier No. 75].
276
Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo,
S/2006/707, 1 September 2006, para. 16 [Dossier No. 77].
277
Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo,
S/2007/582, 28 September 2007, para. 28 [Dossier No. 82].
278
See paras. 9.21-9.22 below.
279
See paras. 9.24-9.26 below.
-88- "By the powers vested in me by Security Council Resolution 1244 (1999) and the
Constitutional Framework I hereby declare null and void the 'resolution on
the protection of 280 territorial integrity of Kosovo' adopted by the Assembly of
Kosovo today."
4.49. On a more routine level, it was not uncommon for the SRSG to exercise his
power to make changes in legislation adopted by the Assembly before promulgating it in
the Official Gazette of UNMIK.
Standards for Kosovo
4.50. In his April 2002 report to the Security Council, the Secretary-General said that
he had asked the SRSG "to develop benchmarks against which progress can be measured
in the critical areas of the rule of law, functioning democratic institutions, the economy,
freedom of movement, the retum of intemally displaced persons and refugees
and contributions to regional stability" 281. For a time, the policy of the international
community was encapsulated in the term "Standards before Status" 282. In December2003
283
UNMIK published a document entitled "Standards for Kosovo" , and in March 2004 a
284
further more elaborate document was published . Pressures from within Kosovo,
however, were such that it soon became apparent that the policy of "Standards before
Status" was unsustainable in the longer term, leading the Secretary-General to request a
285
review from Ambassador Kai Eide ofNorway .
280Dossier No. 179. For reactions from the Republic of Macedonia, a State that has now recognized the
Republic of Kosovo, see Dossier Nos. 180 and 181. For further examples of action by the SRSG, see
paras. 9.24-9.26.
281
Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo,
S/2002/436, 22 April 2002, para. 54 [Dossier No. 54].
282
On 24 April 2002, the SRSG expressed the view in the Security Council that "[t]hese benchmarks should
be achieved before launching a discussion on status" (Security Council, provisional verbatim record,
fifty-seventh year, 4518hmeeting, 24 April 2002, S/PV.4518, p. 4 [Dossier No. 103]). The Security
Council endorsed this approach (Statement by the President of the Security Council, S/PRST/2002/11,
24 April 2002 [Dossier No. 55]). See also Statement by the President of the Security Council,
S/PRST/2003/1, 6 February 2003 [Dossier No. 61].
283
UNMIK Press Release, Standardsfor Kosovo, 10December 2003 [Dossier No. 59].
284
Kosovo Standards Implementation Plan, 31 March 2004 (available on the UNMIK website
<http://www.unmikonline.org/standardsd/ocs/ksipeng.pdf>)
285
The Eide review, which in effect initiated the final status process, is described in Chapter V (paras. 5.06
and 5.07 below).
-89- 4.51. In his mid-2005 report, Ambassador Eide, who had been requested by the
286
Secretary-General to conduct a general review of the Kosovo operation ,summarised
progress in the following terms:
"After the end of the conflict in 1999, there was a total institutional vacuum in
Kosovo. Today [i.e., 2005], a comprehensive set of institutions has been established
which includes executive, legislative and judicial bodies at the central as well as at the
local levels. Much progress has also been achieved in the development of a
sustainable legal framework. The legislative work of the Assembly, the Government
and UNMIK has been ambitious, covering essential areas of public life and the
economy. Systems providing public services have been put in place across most of
Kosovo. A civil service is taking shape. Over the recent period, a significant transfer
of competences has occurred." 287
III. The Transition to lndependence
4.52. In 2005, after the political process to determine Kosovo's final status had
commenced, UNMIK started to plan for its future transition of authority to the Kosovo
institutions that would exist under a final status and to successor international authorities.
The presentation of the Status Settlement Proposal by the United Nations Special Envoy
Martti Ahtisaari served as an important milestone in the transition planning process.
Indeed, the Ahtisaari Plan soon became a guiding tool for substantive transition planning.
4.53. Beginning in September 2006, preparations for transition became a priority for
UNMIK. A mission-wide Transition Planning and Implementation (TPI) team was
established. The TPI included all UNMIK departments and was chaired by the Strategy
Coordinator. The work was carried out in coordination with Kosovo's Unity Team and
with Kosovo's international partners. A comprehensive system of working groups was set
up covering all aspects of transition planning: elections, drafting of the constitution,
security, rule of law, legislation, property and economy, governance and civil
administration.
4.54. The working groups prepared detailed transition action plans for each field,
proposing amendments to existing legislation and drafting new laws. The groups also
286See paras. 5.06 and 5.07 below.
287"A comprehensive review of the situation in Kosovo", S/2005/635, 7 October 2005, p. 2 (Summary)
[DossierNo.193J;seealsoibid,p.9,paras.17-18.
-90-discussed a range of very practical matters, such as future issuance of identification cards
and travel documents, and the transfer of archives, UNMIK premises and assets.
4.55. Elections were held m Kosovo on 17November 2007 for the Assembly
of Kosovo, the 30 municipal assemblies, and the position of mayor of each of
288
the 30 municipalities • The elections "took place without incident following a generally
fair and calm campaign period, and were confirmed by the Council of Europe to have been
289
in compliance with international and European standards" • However, the participation
of Kosovo Serbs was "disappointingly very low". The authorities in Belgrade had called
for a boycott; there were reports of intimidation of candidates and voters, and several
political entities representing established political parties in Serbia withdrew, reportedly
under pressure. The SRSG's assessment was that "these incidents played a major part in
290
ensuring a low Kosovo Serb voter tumout" .
4.56. Following the elections, the Assembly of Kosovo met on 9 January 2008,
re-elected Dr. Fatmir Sejdiu as President of Kosovo, and voted into office a new coalition
govemment, led by Prime Minister Hashim Thaçi (PDK).
4.57. It was clear during the election campaign that a date for a declaration of
independence would be set quickly after 10 December 2008, the deadline for the Troika's
report. As the Secretary-General noted in his report to the Security Council covering the
period in question, "[p]ublic pressure on the new Govemment and Assembly to act swiftly
291
to declare independence following the period of engagement is high" • Neither the
Security Council nor the Secretary-General (or the SRSG) took any steps to prohibit
such action.
288
Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo,
S/2007/768, 3 January 2008, paras. 3-8 [Dossier No. 84].
289
Ibid., para. 3.
290
Ibid., para. 5.
291Ibid., para. 8.
-91- 4.58. On 17February 2008, the representatives of the people of Kosovo adopted the
Declaration of Independence 292 . The next day, the United Nations Secretary-General
summarized the United Nations' achievements in Kosovo in the following terms:
"The United Nations has been instrumental in moving Kosovo away from the
humanitarian and emergency phase to peace consolidation and the establishment of
functional local self-government and administration. Since 1999, the United Nations
has overseen the creation and consolidation of Provisional Institutions of Self
Govemment at the central and municipal levels, with minority representation. The
United Nations has created a functional justice system and a multi-ethnic police force,
and has successfully organized and overseen five elections. Kosovo now has a vibrant
and diversified political party scene. Freedom of movement has improved, and inter
ethnie crimes have been reduced. Kosovo has made considerable progress through the
years on the implementation of standards, and the standards implementation process is
293
now fully integrated into the European approximation process."
292See Chapter VI below.
293 th
Security Council, provisional verbatim record, sixty-third year, 5839 meeting, 18February 2008,
S/PV.5839,p. 3 [DossierNo. 119].
-92- CHAPTERV
FINAL STATUS PROCESS
5.01. This Chapter describes the political process that took place between May 2005
and December 2007, led by the United Nations Secretary-General, with - in the words of
the Security Council - "the objective of a multi-ethnic and democratic Kosovo, which must
294
reinforce regional stability" . Section I deals with the Eide review and report (May
August 2005). Section II describes the Ahtisaari talks (November 2005-March 2007).
Section III deals with the Security Council mission to Kosovo (April 2006). Section IV
covers the efforts of the Troïka (August-December 2007).
5.02. It is important to recall that, by contrast with the 1999 Rambouillet Conference
or the negotiations leading to Security Council resolution 1244 (1999), the United Nations
led process of 2005-2007 was not concemed with an interim period, but with the final
status of Kosovo. Sorne matters discussed in the final status process, such as the protection
of communities, were for good reason also considered in connection with the interim
period. But the distinction between the interim arrangements and the final status was clear
throughout. It was clear during the Hill negotiations of 1998, at Rambouillet in 1999,
during the negotiation of Security Council resolution 1244 (1999), and when the time
came, in 2005, to move on to settle the final status of Kosovo.
5.03. The United Nations Secretary-General, with the support of the Security Council
led the final status process. There was strong support, and indeed active participation,
from the Contact Group (France, Germany, Italy, Russian Federation, United Kingdom
and United States of America). Despite intense and prolonged efforts, the positions of
295
Belgrade and Pristina proved to be irreconcilable . The Secretary-General's Special
Envoy, President Ahtisaari, recommended independence as the only viable option, and this
recommendation was endorsed by the Secretary-General.
294Statement by the President of the Security Council, S/PRST/2005/51, 24 October 2005 [Dossier No. 195].
295
Ahtisaari put it bluntly, "Belgrade demands Kosovo's autonomy within Serbia, while Pristina will accept
nothing short of independence" (Report of the Special Envoy of the Secretary-General on Kosovo's
future status, S/2007/168, 26 March 2007, Annex, para. 2 [Dossier No. 203]).
-93- 5.04. By December 2007, there was widespread acceptance that all efforts to achieve
an agreed settlement between Belgrade and Pristina had been exhausted. At the same time,
it did not prove possible to secure a decision of the Security Council on the way forward.
It was, nevertheless, clear that independence, as recommended by the Special Envoy and
endorsed by the Secretary-General, was the only outcome acceptable to the overwhelming
majority of the people of Kosovo; and that to prolong the process would not bring results
but would merely serve to destabilise Kosovo and the entire Balkans region. Attention
therefore turned to the need to entrench protections for all of the people of Kosovo,
especially the Serb community, within the context of independence. This was
accomplished in the first half of 2008, on the basis of the Ahtisaari Plan and in close
coordination with interested members of the international community, through the
Declaration of Independence of 17February 2008 and in the Constitution of the Republic
of Kosovo, which was adopted on 9 April 2008 and came into force on 15 June 2008.
5.05. Sorne important themes run through the final status process:
(a) There was agreement among all major participants that the status quo in Kosovo was
unsustainable 296•
297
(b) There could be no return to the pre-March 1999 situation in Kosovo .
(c) Once the process had started, it could not be blocked and would have to be brought to
a conclusion 298. In other words, the process could not continue indefinitely and might
lead to a settlement in the absence of the consent of one of the parties.
296See, among many such statements, the second Eide Report ("A comprehensive review of the situation in
Kosovo", S/2005/635, 7 October 2005, Annex, para. 63 [Dossier No. 193]); the Report of the Security
Council Mission ("the current status quo was not sustainable", S/2007/256, 4 May 2007, para. 59
[Dossier No. 207]); the Contact Group Ministers on 27 September 2007, who "endorsed fully the United
Nations Secretary-General's assessment that the status quo is not sustainable" (Statement on Kosovo by
the Contact Group Ministers, New York, 27 September 2007, S/2007/723, 10December 2007, Annex III
[Dossier No. 209]). Ahtisaari said in his report, "Kosovo's current state of limbo cannot continue"
(Report of the Special Envoy of the Secretary-General on Kosovo' s future status, S/2007/168,
26 March 2007, Annex, para. 4 [Dossier No. 203]).
297
Contact Group Statement, London, 31 January 2006 (available on <http://www.unosek.org/docref/
fevrier/STATEMENTBY THE CONTACTGROUP ON THE FUTURE OF KOSOVO - Eng.pdf>).
298
"A comprehensive review of the situation in Kosovo", S/2005/635, 7 October 2005, Annex, para. 70
[Dossier No. 193]; Guiding principles of the Contact Group for a settlement of the status of Kosovo,
S/2005/709, 10November 2005, Annex [Dossier No. 197]; Contact Group Statement, Vienna,
24 July 2006 (available on <http://www.unosek.org/docref/Statement_ of_the_Contact_Group_after_first_
-94-(d) The Contact Group's guiding principles of November 2005 299 set the framework
for the final status process, which was based on Security Council
0
resolution 1244 (1999)3° .
(e) Any settlement needed to be acceptable to the people of Kosovo 301, ensure
implementation of standards with regard to Kosovo's multi-ethnic character, and
302
promote the future stability of the region .
I. Eide Reviews and Reports (2004-2005)
5.06. Following the March 2004 riots, the Secretary-General requested Ambassador
Kai Eide ofNorway to conduct a general review of the Kosovo operation. Until that time,
303
the policy had been "Standards before Status" , but this now came under question. Eide
presented an initial report in August 2004, in which he suggested that "[r]aising the future
304
status question soon seems - on balance - to be the better option" . In mid-2005 Eide
was requested by the Secretary-General to conduct a further comprehensive review of the
situation in Kosovo, in order to determine whether the conditions were in place to enter
into "a political process designed to determine the future status of Kosovo, in accordance
with Security Council resolution 1244 (1999) and relevant Presidential Statements" 305. In
his second report, transmitted to the Security Council on 7 October 2005, Ambassador
Bide said that "an overall assessment leads to the conclusion that the time has corne to
Pristina-Belgrade_High-level_meeting_held_inV_ienna.pdt>); Statement on Kosovo by the Contact Group
Ministers, New York, 27 September 2007, S/2007/723, 10 December 2007, Annex III [Dossier No. 209].
299
Guiding principles of the Contact Group for a settlement of the status of Kosovo, S/2005/709,
10November 2005, Annex [Dossier No. 197].
300
Statement on Kosovo by the Contact Group Ministers, New York, 27 September 2007, S/2007/723,
10December 2007, Annex III [Dossier No. 209].
301
Or, as it was put at Rambouillet, in Security Council resolution 1244 (1999), and in the preamble to the
Constitutional Framework of 2001, the final settlement would have to be on the basis of/take full account
of"the will of the people".
302 Statement on Kosovo by the Contact Group Ministers, New York, 27 September 2007, S/2007/723,
10December 2007, Annex III [Dossier No. 209].
303 See paras. 4.50 above.
304 Report on the situation in Kosovo, S/2004/932, 30 November 2004, Enclosure [Dossier No. 71].
305 Letter dated 7 October 2005 from the Secretary-General addressed to the President of the Security
Council, S/2005/635, 7 October 2005 [Dossier No. 193].
-95- commence [the final status] process" 306. As he put it, "Kosovo will either move forward or
slide backwards - having moved from stagnation to expectation, stagnation cannot again
307
be allowed to take hold there" .
5.07. In a Presidential statement of 24 October 2005, the Security Council agreed
with Ambassador Eide's assessment, welcomed the Secretary-General's readiness to
appoint a Special Envoy to lead the process, and reaffirmed "its commitment to the
objective of a multi-ethnic and democratic Kosovo, which must reinforce regional
308
stability" .
II. Final Status Process Led by Martti Ahtisaari
(November 2005-March 2007)3° 9
5.08. On 14November 2005, Martti Ahtisaari, former President of Finland, was
appointed by the Secretary-General as his Special Envoy to lead the final status process for
Kosovo. He was assisted by a deputy, Albert Rohan of Austria, and a Secretariat
(UNOSEK). Other international actors were involved, including from the OSCE High
Commissioner for National Minorities and the Venice Commission of the Council
of Europe.
5.09. The Secretary-General's letter of 14November 2005 appointing President
Ahtisaari as his Special Envoy stated that Ahtisaari would "lead the political process to
determine the future status of Kosovo in the context of resolution 1244 (1999) and the
relevant Presidential Statements of the Security Council" 310. The Terms of Reference
attached to the letter emphasised that the Special Envoy "will lead this process on behalf of
the Secretary-General". They went on to say that the Special Envoy would work closely
with the parties and also with Security Council members and other key players. They
further said that "[t]he pace and duration of the future status process will be determined by
306"A comprehensive review of the situation in Kosovo", S/2005/635, 7 October 2005, Annex, para. 62
[Dossier No. 193].
307Ibid., para. 63.
308Statement by the President of the Security Council, S/PRST/2005/51, 24 October 2005 [Dossier No. 195].
309
M. Weller, op. cit. (fn. 118), Chapter 12.
310
Letter from Secretary-General Kofi Annan to Mr. Martti Ahtisaari, 14November 2005 [Dossier No. 198].
-96-the Special Envoy on the basis of consultations with the Secretary-General, taking into
account the cooperation of parties and the situation on the ground". The Special Envoy
was to have "maximum leeway in order to undertake his task" and was "expected to revert
to the Secretary-General at all stages of the process".
5.10. It is clear from the Terms of Reference that the Special Envoy was acting
directly for the Secretary-General, and that he had very broad discretion as to the
modalities and timing of the final status process. There is no indication in the letter, or in
the Terms of Reference, that the settlement of the final status for Kosovo would only occur
if it had the consent of Serbia or if there were a further decision of the Security Council.
5.11. In anticipation of the commencement of the political process led by Martti
Ahtisaari, the Contact Group agreed upon "Guiding Principles", which were transmitted by
the President of the Security Council to the Secretary-General on 10November 2005 "for
311
your reference" • Among other things, the Contact Group's Guiding Principles repeated
that "[o]nce the process [to determine the final status of Kosovo] has started, it cannot
be blocked and must be brought to a conclusion". The Principles also stated that the
settlement should "ensure that Kosovo can develop in a sustainable way both economically
and politically and that it can cooperate effectively with international organizations and
international financial institutions".
5.12. In a further statement, dated 31 January 2006, the six-member Contact Group
recalled
"that the character of the Kosovo problem, shaped by the disintegration of Yugoslavia
and consequent conflicts, ethnie cleansing and the events of 1999, and the extended
period of international administration under UNSCR 1224, must be fully taken into
312
account in settling Kosovo's status" .
The Contact Group once again made clear that there should be "no return to the pre-1999
situation". They concluded that "[t]he disastrous policies of the past lie at the heart of the
311
Guiding principles of the Contact Group for a settlement of the status of Kosovo, S/2005/709,
10November 2005, Annex [Dossier No. 197].
312
Contact Group Statement, London, 31 January 2006, para. 2 (available on <http://www.unosek.org/docref/
fevrier/STATEMENTBY THE CONTACT GROUP ON THE FUTURE OF KOSOVO- Eng.pdf>).
-97- current problems". While emphasising "that a negotiated settlement 1s the best way
forward", the Contact Group did not exclude other routes.
5.13. There were fifteen rounds of negotiations in the course of 2006, held in Vienna.
Belgrade's position throughout was that independence was unacceptable. Belgrade even
made the wholly untenable claim that international law precluded a settlement involving
313
independence . Belgrade said that it was prepared to offer autonomy, but nothing more.
Kosovo's position was also clear. Pristina insisted that the settlement should result in the
independence of Kosovo. Within the framework of independence, there could be far
reaching protections for minority communities (including within the system of govemance
of Kosovo), religious and historie monuments, and human rights. A high-level meeting
involving both sides was held in Vienna on 24 July 2006, but positions remained far apart.
The ensuing Contact Group statement stressed that "Belgrade needs to demonstrate much
greater flexibility in the talks than it has done so far", and reiterated that
"once negotiations are underway, they can not be allowed to be blocked. The process
must be brought to a close, not least to minimise the destabilising political and
314
economic effects of continuing uncertainty over Kosovo's future status."
5.14. In their Statement of 20 September 2006, Contact Group Ministers said:
"Striving for a negotiated settlement should not obscure the fact that neither party can
unilaterally block the status process from advancing. Ministers encouraged the
Special Envoy to prepare a comprehensive proposai for a status settlement and on this
basis to engage the parties in moving the negotiating process forward." 315
In the same statement, Contact Group Ministers renewed "their call to Belgrade to cease its
obstruction of Kosovo Serb participation in Kosovo's institutions" 316•
313
See Serbia's opening "platform", 5 January 2006 (cited in M. Weller, op. cit. (fn. 118), p. 200); a line
repeated in the Assembly ofSerbia's resolution of 14 February 2007 (see note 323 below).
314
High-level meeting on the future status of Kosovo, Contact Group Statement, Vienna, 24 July 2006,
(available at <http://www.unosek.org/docref/Statement_of_the_Contact_Group_after_first…
High-level_meeting_held_in_Vienna.pdf>).
315
Contact Group Ministerial Statement, New York, 20 September 2006, para. 4 (available on
<http://www.unosek.org/docref/2006-09-20_-_CG _Ministerial_Statement_New _York.pdf>).
316
Ibid., para. 5.
-98- 5.15. Belgrade's approach continued to be unconstructive. Belgrade arranged the
suspension of cooperation between municipal authorities in northem Kosovo and
317
UNMIK •
5.16. On 30 September 2006, in an act of extraordinary bad faith in the middle of the
final status talks, Serbia adopted a new Constitution. The revealing preamble focused
almost exclusively on Kosovo. It consisted ofjust two paragraphs:
"Considering the state tradition of the Serbian people and equality of all citizens and
ethnie communities in Serbia,
Considering also that the province of Kosovo and Metohija is an integral part of the
territory of Serbia, that it has the status of a substantial autonomy within the sovereign
state of Serbia and that from such status of the Province of Kosovo and Metohija
follow constitutional obligations of all state bodies to uphold and protect the state
interests of Serbia in Kosovo and Metohija in all intemal and foreign political
318
relations".
5.17. This Constitution (replacing the Milosevié one of 1990) was drafted and
adopted in haste, without any involvement of the institutions or people of Kosovo. The
Venice Commission reported that "the Constitution itself does not at all guarantee
substantial autonomy to Kosovo, for it entirely depends on the willingness of the National
319
Assembly of the Republic of Serbia whether self-government will be realised or not" .
It has been suggested that "[t]he main purpose of the new constitution was to demonstrate
320
Serbian hostility to and create further legal barriers against, Kosovo independence" .
317
This led to the Contact Group Statement on the Situation in Northem Kosovo, 4 August 2006 (available
on <http://www.unosek.org/docref/2006-08-0_-_CG_Statement_on_the_situation_…-
english.pdf>).
318 Constitution of the Republic of Serbia, preamble. The Presidential oath commences with the words: "I do
solemnly swear that I will devote all my efforts to preserve the sovereignty and integrity of the territory of
Serbia, including Kosovo and Metohija as its constituent part... " (Constitution, Article 114). The
Constitution was narrowly approved by a referendum held on 28-29 October 2006, in which Kosovo
Albanians were ineligible to participate.
319
European Commission for Democracy through Law (Venice Commission), Opinion No. 405/2006 on the
Constitution of Serbia, 19 March 2007, para. 8 (available at the Venice Commission's website
<http://www.venice.coe.int/docs/20/CDL-AD(2007)004-e.pdf>). Article 182, para. 2, of the Constitution
provides: "The substantial autonomy of ... the Autonomous Province of Kosovo and Metohija shall be
regulated by the special law which shall be adopted in accordance with the proceedings envisaged for
amending the Constitution."
320
International Crisis Group, Europe Briefing No. 44, 8November 2006, Serbia 's New Constitution:
Democracy Going Backwards, p. 1. The referendum campaign "emphasised that defending Kosovo was
-99- 5.18. Kosovo's approach, by contrast, was forward-looking and positive. Among
other things, Kosovo proposed in the course of the negotiations a Treaty of Friendship and
Cooperation between Kosovo and Serbia 321, which recognized "that unique historical
circumstances and common interests will require an extremely close and friendly
relationship between Kosovo and Serbia for many years to corne", included commitments
to Euro-Atlantic integration, and provided for far-reaching cooperation, including through
working groups and a Kosovo-Serbia Permanent Cooperation Council to meet regularly at
the highest level.
5.19. Special Envoy Ahtisaari presented his draft comprehensive proposal to
Belgrade and Pristina on 2 February 2007. On that day, the Contact Group issued a
statement encouraging both parties "to engage fully and constructively with the Special
322
Envoy in this phase of the process" • The National Assembly of the Republic of Serbia
rejected Ahtisaari's Proposal on 15February 2007, in terms reminiscent of the
2005 "platform":
"The National Assembly of the Republic of Serbia concludes that the Proposa! of UN
Secretary-General's Special Envoy Martti Ahtisaari breaches the fundamental
principles of international law since it does not take into consideration the sovereignty
323
and territorial integrity of the Republic of Serbia in relation to Kosovo-Metohija."
5.20. Further direct negotiations took place, in the course of which Kosovo
essentially accepted the draft Proposal, while Serbia presented a whole new version of the
document, among other things referring to Kosovo throughout as "the Autonomous
Province of Kosovo and Metohija", which was to be govemed in accordance with the
32
Constitution of the Republic of Serbia and within its sovereignty 4,and hence in a manner
that left Kosovo exposed to future changes in Serbian national law. Serbia even claimed
the main point of the constitution" (ibid., p. 4), as did Party leaders when urging the Assembly to adopt
the constitution on 30 Septemberibid.).
321
Annex 6.
322Joint Contact Group Statement, 2 February 2007 (available on <http://www.unosek.org/docref/Joint Contact
Group Statement 2nd february 2007.doc>).
323Republic of Serbia, Assembly Resolution following UN Special Envoy Martti Ahtisaari's
"Comprehensive proposai for the Kosovo status settlement" and continuation of negotiations on the
future status ofKosovo-Metohija,14 February 2007 (available at <http://www.mfa.gov.yu/Policy/Priorities/
KIM/resolution kim e.html>.
324
M. Weller, op. cit. (fn. 118), pp. 210-211.
-100- 325
that the negotiations had not yet taken place, and should now commence • At the final
meeting on 10March 2007, both President Tadié and Prime Minister Kostunica rejected
the Special Envoy's Proposal 326.
5.21. The Secretary-General presented President Ahtisaari's Report on Kosovo's
Future Status, together with his Comprehensive Proposa! for the Kosovo Status Settlement,
327
to the Security Council on 26 March 2007 • The Special Envoy's recommendation was
as follows:
"Kosovo' s status should be independence, supervised by the international
· ,,328
commumty.
5.22. In his report, President Ahtisaari said, "[i]t is my firm v1ew that the
negotiations' potential to produce any mutually agreeable outcome on Kosovo's status is
exhausted. No amount of additional talks, whatever the format, will overcome this
329
impasse" . He was also of the view that
"Kosovo' s current state of limbo cannot continue. ... Pretending otherwise and
denying or delaying resolution of Kosovo' s status risks challenging not only its own
stability but the peace and stability of the region as a whole." 330
331
5.23. Ahtisaari explained that reintegration into Serbia was not a viable option ,
332
and that continued international administration was not sustainable . He concluded that
333
independence with international supervision was the only viable option :
325
M. Weller, op. cil. (fn. 118),p. 211.
326
Statement by the President of the Republic of Serbia, 10March 2007; Statement by the Prime Minister of
the Republic ofSerbia, 10March 2007 (cited in ibid., p. 211).
327
S/20071168and Add. l [Dossier Nos. 203 and 204]. Addendum 2 consists of a note about the availability
of certain maps.
328
Report of the Special Envoy of the Secretary-General on Kosovo's future status, S/2007/168,
26 March 2007, heading [Dossier No. 203].
329Ibid., para. 3.
330Ibid., para. 4. Ahtisaari introduced his report at a closed meeting of the Security Council on 3 April 2007
(S/PV.5654).
331Ibid., paras. 6-7.
332Ibid., paras. 8-9.
333Ibid., paras. 10-14.
-101- "5. Upon careful consideration of Kosovo's recent history, the realities of Kosovo
today and taking into account the negotiations with the parties, I have corne to the
conclusion that the only viable option for Kosovo is independence, to be supervised
for an initial period by the international community. My Comprehensive Proposai 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.
1O.Independence is the only option for a politically stable and economically viable
Kosovo. Only in an independent Kosovo will its democratic institutions be fully
responsible and accountable for their actions. This will be crucial to ensure respect for
the rule of law and the effective protection of minorities. With continued political
ambiguity, the peace and stability of Kosovo and the region remains at risk.
Independence is the best safeguard against this risk. It is also the best chance for a
sustainable long-term partnership between Kosovo and Serbia."
5.24. Ahtisaari continued:
"Kosovo is a unique case that demands a umque solution. It does not create a
precedent for other unresolved conflicts. In unanimously adopting resolution 1244
(1999), the Security Council responded to Milosevic's actions in Kosovo by denying
Serbia a role in its governance, placing Kosovo under temporary United Nations
administration and envisaging a political process designed to determine Kosovo' s
future. The combination of these factors makes Kosovo' s circumstances
extraordinary." 334
5.25. In his covering letter transmitting the Ahtisaari Settlement to the President of
the Security Council, Secretary-General Ban Ki-moon said:
"Having taken into account the developments in the process designed to determine
Kosovo's future status, I fully support both the recommendation made by my Special
335
Envoy in his report on Kosovo's future status and the Comprehensive Proposai for
the Kosovo Status Settlement."
5.26. Thus by May 2007, the position was that "Pristina accepted the Ahtisaari
336
Settlement in its entirety; Belgrade rejected it" .
334
S/PV.5654, para. 15.
335I.e., "Kosovo's status should be independence, supervised by the international community".
336Report of the European Union/United States/Russian Federation Troika on Kosovo, S/2007/723,
10December 2007, Annex, para. 5 [Dossier No. 209].
-102- 337
5.27. The main provisions of the President Ahtisaari's Settlement are summarized
338
in the annex to his Report • This describes the aim of the Settlement as:
"to define the provisions necessary for a future Kosovo that is viable, sustainable and
stable. It includes detailed measures to ensure the promotion and protection of
the rights of communities and their members, the effective decentralization of
government, and the preservation and protection of cultural and religious heritage in
Kosovo. In addition, the Settlement prescribes constitutional, economic and security
provisions, all of which are aimed at contributing to the development of a multi-ethnic,
339
democratic and prosperous Kosovo."
5.28. The Settlement, which is very detailed (some 60 pages, plus a map section)
consists of 15Articles, which in turn refer to 12Annexes and to the maps. The Settlement
covers a wide range of subjects, indicated by the headings of the 15Articles: General
Principles; Human Rights and Fundamental Freedoms; Rights of Communities and Their
Members; Rights of Refugees and Internally Displaced Persans; Missing Persans; Local
Self-Govemment and Decentralization; Religious and Cultural Heritage; Economie and
Property Issues; Security Sector; Constitutional Commission; Elections; International
Civilian Representative; International Support in the Area of Rule of Law; International
Military Presence; and Transitional Arrangements and Final Provisions.
III. Security Council Mission to Kosovo (April 2007)
5.29. Following the submission of Ahtisaari's proposa!, at the Russian Federation's
suggestion, a Security Council mission visited Kosovo between 25 and 28 April 200?3 40.
After a full round of briefings in Brussels, Belgrade and Pristina, and a series of visits, the
mission concluded that:
"The positions of the sides on the Kosovo settlement proposa! remain far apart. The
Belgrade authorities and the Kosovo Serb interlocutors who expressed themselves on
this issue ... rejected a solution that would entail any form of independence .... There
was recognition, however, that the current status quo was not sustainable. Kosovo
337Comprehensive Proposa! for the Kosovo Status Settlement, S/2007/l 68/Add.l, 26 March 2007 [Dossier
No. 204].
338Report of the Special Envoy of the Secretary-General on Kosovo's future status, S/20007/168,
26 March 2007, pp. 6-9 [Dossier No. 203].
339Ibid., p. 6.
34
°For the composition and terms of reference of the mission, see Letter dated 19 April 2007 from the
President of the Security Council to the Secretary-General, S/2007/220, Annex [Dossier No. 206].
-103- Albanian representatives and representatives of non-Serb communities, on the other
hand, expressed clear and unambiguous support for the Kosovo settlement proposai
and recommendation on Kosovo' s future status. Expectations among the majority
Kosovo Albanian population for an early resolution of Kosovo's future status were
very high." 341
5.30. The Security Council considered the mission's report on 10 May 2007 342• The
head of the mission, Ambassador Verbeke of Belgium, described the assessment in the
343
report • France noted that "the positions of the parties are irreconcilable. That was clear
during the entire mission. Unfortunately, that inescapable fact will not change with
344
time." The United Kingdom likewise noted that "there is no prospect of an agreement
345
between Belgrade and Pristina, as the mission demonstrated" • The United States
representative said
"there is no potential for the passage of time to change the polarization in the
foreseeable future. Therefore, delay, I believe, has no potential to help the situation.
I think, on the other hand, that delay has great potential to destabilize Kosovo and the
346
Balkans."
5.31. In July 2007, six co-sponsors, Belgium, France, Germany, ltaly,
United Kingdom, and the United States of America circulated a draft Security
Council resolution 347 . Among other things, echoing the Contact Group statement of
31 January 2006, the resolution would have recognized
"the specific circumstances that make Kosovo a case that is sui generis resulting from
the disintegration of the former Yugoslavia, including the historical context of
Yugoslavia's violent break-up, as well as the massive violence and repression that
took place in Kosovo in the period up to and including 1999, the extended period of
international administration under resolution 1244, and the UN-led process to
determine status, and that this case shall not be taken as a precedent".
341
Report of the Security Council mission on the Kosovo issue, S/2007/256, 4 May 2007, para. 59 [Dossier
No. 207].
342 rd
Security Council, provisional verbatim record, sixty-second year, 5673 meeting, 10 May 2007,
S/PV.5673 [Dossier No. 114]. The head of the Mission had already briefed the Security Council on
2 May 2007 (ibid., S/PV.5672 [Dossier No. 113]).
343Ibid., S/PV.5673, pp. 2-3 [Dossier No. 114].
344
Ibid., p. 6.
345
Ibid., p. 12.
346
Ibid., p. 13.
347The draft resolution was provisionally assigned the number S/2007/437, with a date of 17 July 2001.
That number was reassigned to a different document after the resolution was withdrawn.
-104-Further, the resolution would have acknowledged that the status quo in Kosovo was not
sustainable. While the resolution received broad support among Council members, it was
not possible to secure its adoption in the face of Russian opposition, so it was not put to a
348
vote .
IV. European Union/United States/Russian Federation Troïka on Kosovo
49
(August-December 2007)3
5.32. A final attempt to reach agreement on a settlement was made between
August and December 2007. The Contact Group proposed the establishment of a "Troïka"
of representatives of the European Union (Wolfgang Ischinger), the United States of
America (Frank Wisner), and the Russian Federation (Alexander Botsan-Harchenko).
The Secretary-General welcomed this initiative on 1August 2007, restating his belief
that the status quo was unsustainable and requesting a report on these efforts by
350
10 December 2007 .
5.33. Between August and December 2007, the Troïka undertook an intense schedule
of meetings with the parties, who were represented at the highest possible level. They
were fully supported by Contact Group Ministers, who reiterated that "striving for a
negotiated settlement should not obscure the fact that neither party can unilaterally block
the status process from advancing" 351• But the Troïka could not achieve an agreed
settlement. In their report, presented to the Security Council on 4 December 2007, they
concluded that
"the parties were unable to reach an agreement on the final status of Kosovo. Neither
party was willing to cede its position on the fundamental question of sovereignty over
Kosovo." 352
348Statement issued on 20 July 2007, Belgium, France, Germany, Italy, UK and USA.
349M. Weller, op. cit. (fn. 118), Chapter 13.
350Available on <http://www.un.org/apps/sg/sgstats.asp?nid=2692>.
351
Statement on Kosovo by Contact Group Ministers, 27 September 2007, S/2007/723, 10 December 2007,
Annex III [Dossier No. 209].
352Report of the European Union/United States/Russian Federation Troika on Kosovo, S/2007/723,
10 December 2007, para. 2.
-105- 5.34. It was thus widely accepted, by December 2007, that all efforts to achieve
an agreed settlement had been exhausted, that the status quo was not sustainable, and
353
that independence was inevitable • Only thus could the Council's objective be met -
354
"a multi-ethnic and democratic Kosovo, which must reinforce regional stability" .
353 th
Security Council, provisional verbatim record, sixty-third year, 5839 meeting, 18February 2008,
S/PV.5839,pp. 9-10 (ltaly) [DossierNo. 119].
354
Statement by the President of the Security Council, S/PRST/2005/51, 24 October 2005, p. 2 [Dossier
No. 195].
-106- PART III
THE DECLARATION OF INDEPENDENCE CHAPTERVI
THE DECLARATION OF INDEPENDENCE
6.01. On 17February 2008, the representatives of the people of Kosovo declared
Kosovo to be an independent and sovereign State. Contrary to the misleading language in
the question put to the Court, the Declaration of Independence was not an act of the
Provisional Institutions of Self-Govemment of Kosovo (PISG). According to the
Constitutional Framework, the PISG were the Assembly, the President of Kosovo, the
Govemment, the Courts, and other bodies and institutions set forth in the Constitutional
355
Framework . These institutions, however, did not issue the Declaration of Independence.
As the circumstances surrounding the approval of the Declaration indicate (Section 1), the
Declaration was an act of the democratically-elected representatives of the people of
Kosovo meeting as a constituent body to establish a new State (Section 11).
6.02. The content of the Declaration was not limited to affirming to the public
the independence of the Republic of Kosovo. It included obligations and commitments
publicly assumed by the people of Kosovo in the name of their newly independent State
before the entire international community (Section III).
I. The Circumstances Surrounding the Signing of the Declaration
6.03. The Declaration of Independence of Kosovo of 17 February 2008 was
described by the sole sponsor of General Assembly resolution 63/3, the Republic of Serbia,
as having been made by "the Provisional Institutions of Self-Govemment of Kosovo".
This is incorrect, as is demonstrated by the text and the circumstances of its approval.
6.04. Once all efforts to achieve an agreed settlement had been exhausted 356,the
option of independence in accordance with the Ahtisaari Plan was the only viable outcome.
The likelihood of a declaration of independence was no secret. Indeed, on
355Constitutional Framework, Chapter 1.5 [Dossier No. 156]; see also ibid., Chapter 9.
356See para. 5.34 above.
-109- 12February 2008, five days before the Declaration of Independence was issued, the
Permanent Representative of Serbia to the United Nations requested, upon instructions of
his Govemment,
"an urgent meeting of the Security Council to consider an extremely grave situation in
the Serbian province of Kosovo and Metohija, where we are witnessing the final
preparatory activities for a unilateral declaration of independence by the Provisional
357
Institutions of Self-Govemment" .
In Kosovo, the people were gathering in the streets of Pristina, and in front of the
Govemment and Assembly buildings, calling for independence on 15, 16 and 17February.
6.05. Barly on Sunday, 17February 2008, President Dr. Fatmir Sejdiu and Prime
Minister Hashim Thaçi requested the convening of an extraordinary meeting of the
Assembly in order to consider urgently the matter of declaring independence.
6.06. As demonstrated by the particular and exceptional circumstances of this
meeting, the Assembly was not convened and did not meet as one of the PISG undertaking
its responsibilities under the Constitutional Framework. Indeed, the Assembly, as one
of the PISG, could be convened under its Rules, but those rules were not followed
on 17February 2008. The request to the President of the Assembly, Mr. Jakup Krasniqi,
was made jointly by the President of Kosovo and the Prime Minister despite the fact that
the power to convene an extraordinary session was assigned, under Rule 23 (6) of the
Rules of Procedure of the Assembly, to the Presidency of the Assembly only upon its own
initiative or upon a request of the Prime Minister or at least 40 members of the
358
Assembly •
357
Letter dated 12February 2008 from the Permanent Representative of Serbia to the United Nations
addressed to the President of the Security Council, S/2008/92 [Dossier No. 116]. See also letter dated
4 January 2008 from the Permanent Representative of Serbia to the United Nations addressed to the
President of the Security Council, S/2008/7, Annex, in particular para. 4 [Dossier No. 85].
358Article 23 (6) of the Rules of Procedure of the Assembly provides:
"The Presidency shall, upon its own initiative or in response to a request by the Prime Minister or by one
or more parliamentary groups representing not less than one-third, respectively 40 (forty) Members of the
Assembly, convene the Assembly for an extraordinary session in order to deal with an urgent matter. The
request shall state the matter or matters to be considered, and the reasons why they are considered urgent
and important in such a way as to justify recalling the Assembly. In such cases, only the items of business
that form the basis of the request shall be considered." (available on the website of the Assembly of the
-110- 6.07. The extraordinary sess10n took place from 3 p.m. in the presence of the
President of Kosovo, the Prime Minister, 109 out of the 120 members of the Assembly
(including those from all the communities, except the Serb community whose members
chose not to attend), and guests, including those representing the international community.
6.08. The President of the Assembly, the President of Kosovo and the Prime Minister
each addressed the meeting. All of the speakers underlined that the 17 February 2008
meeting was more than a "usual" meeting of the Assembly. President of Kosovo,
359
Dr. Fatmir Sejdiu, underlined that it was a "historical session of the Kosovo Assembly"
and that that "day separate[d] the history of Kosovo in two: the times before and after
360 361
independence" • Prime Minister Thaçi described it as an "historical day" which
362 362
"br[ought] the end of a long process" , "the day of a new beginning" • President of the
Assembly Krasniqi said that these were "historical moments for the future of the people
of Kosovo" 363.
6.09. The Declaration oflndependence was read out to the assembled representatives
by the Prime Minister, voted upon and then signed by the President of Kosovo, the Prime
364
Minister and all the representatives present .
6.10. The procedure for the presentation of the text, the voting, and the signing
ceremony confirm the special nature of the 17February 2008 meeting and the Declaration
of Independence. It does not constitute an act of the PISG or of one of the PISG, given
that, contrary to the usual decision-making process established in the Assembly under the
365
Constitutional Framework ,
Republic of Kosovo <http://www.assembly-kosova.org/common/docs/Z-Rregullore e punes-anglisht-20 maj
2005-me ndryshime.pdt>).
359Assembly of Kosovo, Special Plenary Session on the Declaration of Independence, 17 February 2008,
Transcript, p. 9 (Annex 2).
360 Ibid., p. 8.
361 Ibid., p. 5.
362 Ibid.,p.6.
363 Ibid., p. 3.
364 Ibid., p. 14.
365
Constitutional Framework, Chapters 9.1.34-9.1.45 [Dossier No. 156].
-111- the Declaration of Independence was not submitted to a first and second reading, nor
was it considered by the relevant main or functional committees as was the case when
366
the Assembly acted as one of the PISG under the Constitutional Framework . It was
directly voted upon.
the Declaration of Independence was voted on by raising hands and subsequently
signed in a solemn procedure by the President of Kosovo, the Prime Minister and the
President of the Assembly, the members of the Presidency, the heads of the different
parliamentary groups, and all other members of the Assembly present, called one by
367
one by name to sign the Declaration • Under the Constitutional Framework, only the
368
President of the Assembly signed the texts approved by the Assembly .
the Declaration of Independence was signed immediately after the voting and not after
waiting for the expiration of the usual 48 hours time-frame within which a motion
369
against an approved text could be lodged • No such motion was lodged.
the Declaration of Independence was not transmitted to the SRSG as was the case with
all acts adopted by the Assembly acting as one of the PISG 368•
the Declaration of lndependence was not published in the Official Gazette of the
Provisional Institutions of Self-Government of Kosovo, as were acts of the Assembly
acting as one of the PISG.
6.11. All these elements demonstrate that the issuance of the Declaration of
Independence of 17February 2008 was not an act of the PISG, and was wholly different in
nature from the normal business and procedure of the Assembly acting as one of the PISG.
The Declaration of Independence was a particular act voted upon and signed by the
participants gathered together in a very special meeting.
6.12. The understanding that this event was special was shared by the people of
Kosovo. Once the holding of the extraordinary session was publicly announced by Prime
366
Constitutional Framework, Chapters 9.1.34-9.1.36 [Dossier No. 156].
367
Assembly of Kosovo, Special Plenary Session on the Declaration of Independence, 17February 2008,
Transcript, pp. 15-21 (Annex 2). See also the photographie reproduction at Annex 1.
368
Constitutional Framework, Chapter 9.1.44 [Dossier No. 156].
369
Ibid., Chapters 9.1.39 ff.
-112-Minister Thaçi, the people of Kosovo came together in the streets of Pristina and all over
the country to celebrate their Independence Day. The next day, the United Nations
Secretary-General commented on the celebrations in the following words:
"In much of Kosovo, there have 370n peaceful celebrations by tens of thousands
welcoming the declaration."
II. The Declaration of Independence was made by the
Democratically-Elected Leaders of the People of Kosovo
6.13. The exceptional nature of the Declaration of lndependence is not only shown
by the special circumstances of its adoption. The text and form of the Declaration also
indicate that it was not "the Provisional Institutions of Self-Govemment" that made the
Declaration, as suggested by the question contained in General Assembly resolution 63/3,
but the democratically-elected representatives of the people of Kosovo.
6.14. The English and French translations of the Declaration of Independence
371
included by the United Nations Secretariat in its Dossier do not reflect the actual
wording of the Declaration of Independence as read out (in Albanian), voted upon, and
signed on 17February 2008. In particular, the words "The Assembly of Kosovo ...
Approves ... " ("L 'Assemblée du Kosovo... Approuve ...") do not appear in the original
text. The Republic of Kosovo draws the attention of the Court to the photographie
reproduction of the original Declaration of Independence reproduced as Annex 1 and its
translation into English and French. This is the Declaration actually read out, voted upon,
372
and signed during the extraordinary session of the Assembly on 17February 2008 .
6.15. As stated in its paragraph 1, the Declaration of Independence was an act of the
"democratically-elected leaders of our people" ("les représentants de notre peuple,
370 Security Council, provisional verbatim record, sixty-third year, 5839h meeting, 18 February 2008,
S/PV.5839, p. 2 [Dossier No. 119].
371 Dossier No. 192.
372 Assembly of Kosovo, Special Plenary Session on the Declaration of Independence, 17 February 2008,
Transcript, pp. 11-14 (Annex 2). For a time, an incorrectly edited version of the Declaration appeared on
the Assembly's website, which now contains the correct version. The BBC had reproduced a correct
English translation from the Albanian version, as read out, on its website as from 17 February 2008 (see
<http://news.bbc.co.uk/2/hi/europe/7249677 .stm>).
113-démocratiquement élus"),i.e., the people of Kosovo, in the name of the people. The
preamble further made clear that these representatives acted in order to answer "the call of
the people to build a society that honors human dignity and affirms the pride and purposes
of its citizens". Paragraph 1 of the Declaration stated in the same sense that "[t]his
declaration reflects the will of our people". This understanding was also confirmed by the
representatives who addressed the meeting on 17February 2008. The President of Kosovo
373
affirmed in his speech that "[t]he declaration of independence is the will of the people" •
The people were indeed present in the streets and in front of the Assembly building days
before the extraordinary meeting, calling for independence 374.
6.16. Moreover, the entire Declaration was formulated in the first person plural
showing that the Declaration was not made by the Assembly acting as one of the PISG, but
by the representatives of the people of Kosovo. The first person plural was used
consistently throughout the text, in the preamble as well as in the operative part of
75
Declaration. Thus, the participles used in the preamble were in the plurai3 ,not in the third
person singular as would have been the case if the subject had been the Assembly and not
the "democratically-elected leaders of our people" 376. Similarly, the consistent use of the
377
possessive adjective "tonë" or "tanë" and of the first person plural tense for the verbs
378
in the main part of the Declaration shows that this act was drafted as a declaration of
the representatives of the people, referred to in paragraph 1 of the Declaration as
373
Assembly of Kosovo, Special Plenary Session on the Declaration of Independence, 17February 2008,
Transcript, p. 8 (Annex 2).
374
See para. 6.04 above.
375
Contrary to the English language, the Albanian language distinguishes between the singular and plural of
participles.
376
In the Declaration the following plural forms were used in the Albanian language: "të mbledhur" (first
preambular paragraph) (convened), "të zotuar" (third preambular paragraph) (committed), "të
përkushtuar" (fourth preambular paragraph) (dedicated) and "të vendosur" (thirteenth preambular
paragraph) (determined). In addition, the Albanian original text uses the plural of the past participle
"krenaré"'(ninth preambular paragraph) (proud), a difference which is apparent in the French translation
rendering the original by "fiers" instead of ''fière" as it would have been grammatically correct if the
subject had been the Assembly.
377The possessive adjectives "tonë" and "tané"are rendered in English by "our" and in French by "notre" ou
"nos": ''popullit tonë" (fourth and thirteenth preambular paragraphs, and paragraph 1 of the Declaration)
("our people"/"notre preuble"), "dëshirën toné"' (fifth preambular paragraph and paragraph 11 of the
Declaration) ("our wish/desire"/"notre souhait"), "qytetarëve tané"'(ninth preambular paragraph and
paragraph 4 of the Declaration) ("our citizens"/"nos citoyens"), "udhëheqësve tané"'(eleventh preambular
paragraph) ("our leaders"/"nos représentants"), "zotimin toné~'(Paragraph 4 of the Declaration) ("our
commitment"/"notre engagement"), etc.
378The original Albanian text consistently used the persona! pronoun "ne" ("we" or "nous").
-114-"ne, udhëheqësit e popullit tonë, të zgjedhur në mënyrë demokratike" ("we, the
democratically-elected leaders of our people" /"nous, les représentants de notre peuple,
démocratiquement élus").
6.17. The text of the Declaration thus confirms that the Declaration was made by the
representatives of the people of Kosovo, gathered together in a special and extraordinary
meeting, and not by the PISG.
6.18. The special form of the Declaration also demonstrates that it was not an act of
the PISG. As the photographie reproduction of the original Declaration shows clearly,
it is hand-written on two large sheets of papyrus 379. The Declaration bears more than
100 signatures, i.e., the signatures of the political leaders and all members of the Assembly
380
present . It is unlike anything that might have been issued by the PISG.
6.19. All these elements confirm that the representatives of the people who gathered
together in the extraordinary meeting did not perceive themselves as acting that day as "the
Provisional Institutions of Self-Government" under the Constitutional Framework.
Instead, they met in order to express the will of the people they were elected to represent
and by whom they were empowered to articulate such will. Even if in some respects they
physically were not distinguishable from the "normal" PISG Assembly, they acted this day
in a different way, in a different political and legal framework, as a constituent body giving
voice to the will of the people to be independent.
6.20. Contrary to what may be thought from the terms of the question put to
the Court, the Declaration oflndependence was made in the name of the people of Kosovo,
by their representatives meeting in an extraordinary session, as a constituent body
in Pristina.
379Annex 1(pp. 207 and 209).
380 See para. 6.10 above.
-115- III. The Content of the Declaration
6.21. The primary purpose of the Declaration of Independence was to express the
will of the people of Kosovo to attain independence and to declare an independent and
sovereign State. This was clearly expressed in paragraph 1 of the Declaration, which
unequivocally states:
"We, the democratically-elected leaders of our people, hereby declare Kosovo to be an
independent and sovereign state."
6.22. However, the content of the Declaration of Independence was not limited to
this proclamation. It also recalled the special historical circumstances that led to the
Declaration. Furthermore, the people of Kosovo committed, through this Declaration, to
core principles conceming the political and legal organization of the new Republic of
Kosovo. Finally, by this Declaration, the people of Kosovo assumed full responsibility
within the international community of States and undertook to fulfil their duties as one of
its members.
A. THE HISTORICAL ELEMENTS OF THE DECLARATION
6.23. The Declaration underlined the specific circumstances which made
independence inevitable. The preamble recalled that
"Kosovo is a special case arising from Yugoslavia's non-consensual breakup and is
not a precedent for any other situation" 381.
And the Declaration continued:
"Recalling the years of strife and violence in Kosovo, that disturbed the conscience of
all civilized people,
Honoring all the men and women who made great sacrifices to build a better future for
382
Kosovo" '
381
Sixth preambular paragraph, Annex 1.
382Seventh and fourteenth preambular paragraphs.
-116-and
"Recalling the years of intemationally-sponsored negotiations between Belgrade and
Pristina over the question of our future political status,
Regretting that no mutually-acceptable status outcome was possible, in spite of the
383
good-faith engagement of our leaders" •
6.24. In order to move forward and to overcome this tragic and painful past, the
representatives of the people of Kosovo decided to declare independence "[ d]etermined to
see our status resolved in order to give our people clarity about their future, move beyond
the conflicts of the past and realise the full democratic potential of our society" 384. This
solution is clearly seen by the people and in the terms of the Declaration as a step forward,
and not as a mere punishment of the former rulers of Kosovo who had brought so much
pain. Indeed, the representatives of the people committed themselves to "to confront the
385
painful legacy of the recent past in a spirit of reconciliation and forgiveness" •
B. COMMITMENT TO CORE PRINCIPLES CONCERNING THE POLITICAL AND LEGAL
ÜRGANIZA TION OF THE FUTURE STATE OF Kosovo
6.25. One of the principal elements of the Declaration was the commitment of the
people to core principles for the political and legal organization of the new State of
Kosovo. As recalled in the preamble, the Declaration was issued in order to respond to
"the call of the people to build a society that honors human dignity and affirms the pride
386
and purpose of its citizens" , a people "[d}edicated to protecting, promoting and
387
honoring [its] diversity" •
6.26. Consequently, paragraphs 2, 3 and 4 of the Declaration contained detailed and
substantial commitments of the people of Kosovo conceming its future political and legal
organization:
383
Tenth and eleventh preambular paragraphs.
384
Thirteenth preambular paragraph.
385
Third preambular paragraph.
386 Second preambular paragraph.
387 Fourth preambular paragraph.
-117- According to paragraph 2, the newly created State was to take the form of a
"democratic, secular and multi-ethnic republic, guided by the principles of non
discrimination and equal protection under the law". It should respect and promote the
rights of all communities.
Under paragraph 3, the people of Kosovo accepted fully, with regard to its internal
political and legal organization, the Ahtisaari Plan which should be fully implemented.
Finally, under paragraph 4, as under the Ahtisaari Plan, a constitution was to be
adopted "as soon as possible" and "through a democratic and deliberative process".
This constitution was to lay down the commitment of the people of Kosovo to the
respect for human rights as defined in the European Convention on Human Rights, as
well as all relevant principles of the Ahtisaari Plan.
C. COMMITMENTS UNDER INTERNATIONAL LAW AS
AN EQUAL MEMBER OF THE INTERNATIONAL COMMUNITY
6.27. The last set of provisions of the Declaration concerned the position of the
people of Kosovo and of the newly independent State with regard to the international
community.
6.28. The international community greatly assisted the people of Kosovo in recent
years. The representatives were aware of this fact and thankful for this assistance:
"Grateful that in 1999 the world intervened, thereby removing Belgrade's governance
388
over Kosovo and placing Kosovo under United Nations interim administration" .
6.29. It is not surprising that through the Declaration and in accordance with the
Ahtisaari Plan, the people of Kosovo invited the international community to continue to
exercise its various mandates in order to supervise the creation of the new State and the
implementation of its objectives. They accepted this continuing international presence in
the name of the newly sovereign State, the Republic of Kosovo, exercising its sovereignty
by accepting commitments:
388Eighth preambular paragraph.
-118- "We welcome the international community's continued support of our democratic
development through international presences established in Kosovo on the basis of UN
Security Council resolution 1244 (1999). We invite and welcome an international
civilian presence to supervise our implementation of the Ahtisaari Plan, and a
European Union-led rule of law mission. We also invite and welcome the North
Atlantic Treaty Organization to retain the leadership role of the international military
presence in Kosovo and to implement responsibilities assigned to it under UN Security
Council resolution 1244 (1999) and the Ahtisaari Plan, until such time as Kosovo
institutions are capable of assuming these responsibilities. We shall cooperate fully
with these presences to ensure Kosovo's future peace, prosperity and stability." 389
6.30. It was the declared objective, under paragraphs 6 and 7 of the Declaration, for
Kosovo to integrate into the European family of democracies, through membership in the
European Union and through Euro-Atlantic integration, as well as to participate in and to
collaborate constructively with the United Nations.
6.31. The representatives of the people also called for the Republic of Kosovo to
become a member of the international community as a fully sovereign State by assuming
international obligations and responsibilities. Under paragraphs 8 to 11, the people of
Kosovo committed to key international obligations, such as
to abide by the principles of the United Nations Charter, the Helsinki Final Act and
other acts and instruments of the OSCE 390;
390
to abide by international obligations concerning relations among States ;
to respect its international boundaries (as enshrined in the Ahtisaari Plan), and the
390
territorial integrity of all its neighbors ;
to respect and honour the international obligations concluded on behalf of Kosovo by
391
UNMIK and those resulting from the principles of State succession ;
391
to cooperate fully with the ICTY ;
389 Paragraph 5 of the Declaration.
390
Paragraph 8 of the Declaration.
391
Paragraph 9 of the Declaration.
-119- to participate actively as part of the international cornmunity through membership in
international organizations in order to contribute to the pursuit of international peace
and stability 392;
to commit to peace and stability in southeast Europe 393 and, in particular, in its
relations with the Republic of Serbia 394, on the basis of reconciliation and good
neighbourliness.
6.32. All these commitments constitute key obligations under international law and
demonstrate the firm will of the people of Kosovo to honour them as an independent and
sovereign State. lndeed, "with independence cornes the duty of responsible membership in
the international cornmunity" 395. This is underlined in paragraph 12 of the Declaration,
which provides:
"We hereby affirm, clearly, specifically, and irrevocably, that Kosovo shall be legally
bound to comply with the provisions contained in this Declaration, including,
especially, the obligations for it under the Ahtisaari Plan. In all of these matters, we
shall act consistent with principles of international law and resolutions of the Security
Council of the United Nations, including resolution 1244 (1999). We declare publicly
that all states are entitled to rely upon this declaration, and appeal to them to extend to
us their support and friendship."
6.33. As a result, the people of Kosovo, through their representatives, expressed their
intention to create a sovereign and independent State bound by specific commitments,
concerning the internai structure of the State as well as its international obligations. One
cannot express more clearly the intent to assume such international obligations vis-à-vis
the international community, and, by so doing, to join this community as an equal member.
As the President of Assembly, Jakup Krasniqi, proclaimed after the Declaration of
Independence was voted upon and signed:
392Paragraph 9 of the Declaration.
393Paragraph 10 of the Declaration.
394Paragraph 11 of the Declaration.
395
Paragraph 8 of the Declaration.
-120- "And from this point on, the political position of Kosovo has changed. Kosovo is:
A REPUBLIC, AN INDEPENDENT, DEMOCRATIC AND SOVEREIGN
396
STATE."
396
Assembly of Kosovo, Special Plenary Session on the Declaration of Independence, 17 February 2008,
Transcript, p. 14 (Annex 2).
-121- PARTIV
THE LAW CHAPTERVII
THE QUESTION IN THE REQUEST FOR AN ADVISORY OPINION
7.01. In resolution 63/3 of 8 October 2008, the General Assembly requested the
Court to respond to the following question:
"Is the unilateral declaration of independence by the Provisional Institutions of Self
Govemment of Kosovo in accordance with international law?"
7.02. The resolution containing the request and the question was adopted virtually
397
without debate in the General Assembly , though there were contrary views expressed in
the General Committee and in the plenary 398• Serbia "declined to seek a consensual way
forward" 399 and refused to countenance any amendments. The Foreign Minister of Serbia,
Mr. Jeremié, asserted that "[t]he question posed is amply clear and refrains from taking
political positions on the Kosovo issue". The draft resolution, he claimed, "is entirely non
controversial" and represented "the lowest common denominator of the positions of the
Member States". He even seemed to suggest that the drafting hardly mattered since "[w]e
are confident that the Court will know what to do" 400 . In these circumstances,
it is unsurprising that the drafting of the question is defective in a number of
respects (Section 1).
7.03. Despite being drafted in a prejudicial and argumentative manner, it is clear that
the question addressed to the Court was designed to be and is a narrow one (Section 11).
The function of the Court, as a court of law and as the principal judicial organ of the
United Nations, is to respond to the question posed (Section 111)taking into account the
context of the issuance of the Declaration (Section IV).
397 See paras. 1.06-1.08 above.
398United Nations, Official Records of the General Assembly, Sixty-third Session, General Committee,
1 meeting, 17 September 2008, Summary Records (A/BUR/63/SR. l), para. 101 (France), paras. 103-104
nd
(United Kingdom), paras. 105-106 (United States of America); ibid., 22 plenary meeting,
8 October 2008 (A/63/PV.22), p. 3 (United Kingdom) [Dossier No. 6]. See also ibid., pp. 3-4 (Albania).
399
Ibid., p. 3 (United Kingdom).
400
Ibid., pp. 1-2.
-125- I. The Prejudicial and Argumentative Formulation of the Question
7.04. The question as presented by the sole sponsor of resolution 63/3, i.e., the
401
Republic of Serbia , presents a prejudicial and argumentative approach to the legal issue
at the centre of these advisory proceedings. It contains several elements apparently
intended to advance Serbia's own viewpoint, such as:
the characterization of the Declaration of Independence as "unilateral";
the suggestion that the Declaration was made by "the Provisional Institutions of Self
Govemment of Kosovo"; and
the unnecessary, and unjustified, implication that there are rules of intemational law
goveming the issuance of declarations of independence.
7.05. On the first point, the qualification of the declaration of independence as
"unilateral" is superfluous and may have been intended to be prejudicial. Given the openly
asserted position of the Republic of Serbia on the status of Kosovo, the adjective
402
"unilateral" appears to have been intended to be merely a synonym for "illegal" . As the
Representative of Albania said in the General Assembly:
"On another technical matter, the wording 'unilaterally declared independence': the
word 'unilateral' is not a factual representation, but a biased interpretation. The legal
act of declaration of independence may have different qualifiers. As the General
Assembly is discussing an issue to be referred to the ICJ, biased rhetoric that deviates
from a factual representation of the circumstances on the ground is not a good
reflection on the competence of the General Assembly." 403
7.06. Furthermore, the adjective "unilateral" is particularly misleading in the present
circumstances. The Declaration of Independence was made by the democratically-elected
leaders of the people of Kosovo after extensive consultations and an extended process
401A/63/L.2 [Dossier No. 4)
402Republic of Serbia, Assembly Resolution following UN Special Envoy Martti Ahtisaari's
"Comprehensive proposal for the Kosovo status settlement" and continuation of negotiations on the future
status of Kosovo-Metohija, 14February 2007 (available at <http://www.mfa.gov.yu/Policy/Priorities/
KIM/resolution kim e.html>.
403United Nations, Official Records of the General Assembly, Sixty-third Session, 22d plenary meeting,
8 October 2008 (A/63/PV.22), p. 4 (Albania) [Dossier No. 6).
-126-involving States, international institutions and multilateral initiatives, which reached the
conclusion that independence was the only viable option to resolve the status problem and
404
to secure peace and stability in the region .
7.07. Second, in so far as the question refers to the "declaration of independence by
the Provisional Institutions of Self-Government of Kosovo" 405 , it is argumentative in its
characterization of those who issued the Declaration of Independence of Kosovo. The
Declaration of Independence was not an act of the Provisional Institutions of Self
Govemment of Kosovo, i.e., the Assembly, the President of Kosovo, the Govemment,
courts, and other bodies and institutions set forth in the Constitutional Framework 406 ,but,
as the text, the form and the circumstances of its adoption make clear, was an act of the
407
representatives of the people of Kosovo .
7.08. Despite the wording of the question, it is clear that only the Declaration of
Independence of 17February 2008 is at issue in the proceedings now before the Court.
First, only this declaration of independence exists as a matter of fact. Second, in the
letter of the Permanent Representative of Serbia to the United Nations Secretary-General
408
dated 15August 2008 , the sponsor of the resolution actually requested inclusion on the
agenda of the sixty-third session of the General Assembly of an item entitled "Request for
an advisory opinion of the International Court of Justice on whether the unilateral
409
declaration of independence of Kosovo is in accordance with international law" . The
item was included under this title in the General Assembly's agenda (item 71) and
discussed under this denomination 410 . The argumentative description of those who issued
411
the Declaration was only introduced later in the draft resolution presented by Serbia ,
404
See paras. 4.52-4.58 and 5.01-5.34 above. See also paras. 9.15-9.19 below.
405
Emphasis added.
406
Constitutional Framework, Chapter 1.5 and Chapter 9 [Dossier No. 156). See also para. 6.01 above.
407
See paras. 6.03-6.20 above.
408
A/63/195 [Dossier No. 1].
409
Emphasis added.
410 See United Nations, Official Records of the General Assembly, Sixty-third Session, 22 ndplenary meeting,
8 October 2008 (A/63/PV.22) [Dossier No. 6).
411
See fn. 401 above.
-127- apparently in order to advance Serbia's own arguments about the illegality of
the Declaration.
7.09. Concerning the third point, the question as formulated by the sponsor seems to
imply, wrongly, that there are rules of international law governing declarations of
independence. To ask whether such a declaration is "in accordance" with international law
appears to assume that international law regulates such declarations. This is not the case as
will be explained in Chapter VIII below. It is for the Court to "identify the existing
principles and rules" 412. If there are none, then the question of conformity becomes moot.
7.10. These three points show that the question as drafted is far from being "entirely
non-controversial" as was suggested by the Serbian Representative in the General
413
Assembly . Contrary to Serbia's assertions, the question does not "refrain[] from
413
taking political positions on the Kosovo issue" . It is respectfully submitted that these
prejudicial and argumentative elements should not affect the Court's approach to these
proceedings.
II. The Meaning of the Question
7.11. It is well established that the Court has the power, when facing lack of clarity
m the drafting of a question, to interpret the request or to provide the necessary
modifications 414 in order to "guide the United Nations in respect of its own action" 415in
a useful manner. However, the question formulated in General Assembly resolution 63/3
does not need to be reinterpreted, broadened or reformulated, as the Court has sometimes
416
done . It is not, "on the face of it, at once infelicitously expressed and vague", as was the
412Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J Reports 1996, p. 234,
para. 13.
413 nd
United Nations, Official Records of the General Assembly, Sixty-third Session, 22 plenary meeting,
8 October 2008 (A/63/PV.22), p. 2 (Serbia) [Dossier No. 6).
414
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory
Opinion, I.C.J. Reports 2004,p. 153-154, para. 38.
415
Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory
Opinion, I.C.J Reports 1951, p. 19; Western Sahara, Advisory Opinion, I.C.J Reports 1975, p. 27,
para. 41.
416
Jaworzina, Advisory Opinion, 1923, P.C.I.J, Series B, No. 8, p. 19; lnterpretation of the Greco-Turkish
Agreement of 1December 1926 (Final Protocol, Article IV), Advisory Opinion, 1928, P.C.I.J., Series B,
-128-case of the question in the advisory proceedings concerning the Application for Review of
17
Judgment No. 273 of the UnitedNations Administrative Tribunaf •
7.12. The question set forth in General Assembly resolution 63/3 is a narrow one.
The General Assembly requested the Court to advise on whether the Declaration of
Independence voted upon and signed on 17February 2008 was "in accordance with
international law", whether it is "coriforme au droit international". It is clear that the
Court is called to respond to the limited question whether the Declaration of Independence
of 17February 2008 contravened any applicable rule of international law 418. This is the
ordinary meaning to be given to the terms of the question forth in General Assembly
resolution 63/3.
7.13. In 1995, facing a comparable question of conformity with international law,
i.e., the compatibility of the threat or use of nuclear weapons with the relevant principles
and rules of international law, the Court explained that it
"must identify the existing principles and rules, interpret them and apply them to the
threat or use of nuclear weapons, thus offering a reply to the question posed based
on law" 419.
7.14. Concerning the present request, the Court's task is identical. It has been asked
to rule on the compatibility of the Declaration of Independence of Kosovo with
international law. Accordingly, it is for the Court to "identify the existing principles and
rules" of international law and, in case such rules exist, to "interpret them and to apply
420
them" to the Declaration of Independence, being mindful of context •
No. 16, pp. 15-16; Admissibility of Hearings of Petitioners by the Committee on South West Africa,
Advisory Opinion, I.C.J. Reports 1956, p. 25; Certain Expenses of the United Nations (Article 17,
paragraph 2, of the Charter), Advisory Opinion, I.C.J. Reports 1962, pp. 157-162; lnterpretation of the
Agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion, I.C.J. Reports 1980,
pp. 87-89, para. 34-36; Application for Review of Judgement No. 273 of the United Nations
Administrative Tribunal, Advisory Opinion, I.C.J. Reports 1982, p. 348, para. 46.
417
I.C.J. Reports 1982, p. 348, para. 46. See also Legat Consequences of the Construction of a Wall in the
Occupied Palestinian Territory, Advis01y Opinion, I.C.J. Reports 2004,. 154, para. 38.
418
See paras. 8.03-8.06 below.
419
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 234,
para. 13.
420
See paras. 7.27-7.34 below.
-129- 421
7.15. As such, and subject to the three points noted in Section I above , there is no
need to interpret the question.
III. The Power of the Court to Respond to this Question
7.16. As a court of justice and as the principal judicial organ of the United Nations,
the Court, when exercising its advisory function, shall "guide the United Nations in respect
422
of its own action" . This "represents [the Court's] participation in the activities of the
423
Organization" .
7.17. Resolution 63/3 did not specify in what respect the question put to the Court
would be useful to guide the General Assembly's actions 424. It merely asserts in its
preamble that the Declaration of Independence of 17February 2008 "has been received
with varied reactions by the Members of the United Nations as to its compatibility with the
existing international legal order". Nor was the intention of the sponsor ofresolution 63/3,
the Republic of Serbia, expressed clearly.
7.18. In this regard, it is noteworthy that the sole sponsor of the resolution had
previously tried to have the Declaration of Independence of Kosovo declared invalid by the
425
political organs of the United Nations, in particular by the Security Council . Only once
421
See para. 7.04.
422
Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory
Opinion, I.C.J Reports 1951, p. 19; Western Sahara, Advisory Opinion, I.C.J Reports 1975, p. 27,
para. 41.
423 lnterpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion,
I.C.J Reports 1950, p. 71; Difference relating to lmmunity from Legal Processif a Special Rapporteur of
the Commission on Human Rights, Advisory Opinion, I.C.J Reports 1999, p. 78, para. 29.
424
See also the statements of the United Kingdom (Letter dated I October 2008 from the Permanent
Representative of the United Kingdom of Great Britain and Northem Ireland to the United Nations
addressed to the President of the General Assembly, A/63/461, Annex, para. 4 [Dossier No. 5]; United
nd
Nations, Official Records of the General Assembly, Sixty-third Session, 22 plenary meeting,
8 October 2008 (A/63/PV.22), p. 11 [DossierNo. 6]) and Germany (ibid., p. 12). See also Australia (ibid.,
p. 13) and Denmark (ibid., p. 14).
425 See, e.g., Letter dated 12February 2008 from the Permanent Representative of Serbia to the United
Nations addressed to the President of the Security Council, S/2008/92 [Dossier No. 116] and Letter dated
17 February 2008 from the Permanent Representative of Serbia to the United Nations addressed to the
President of the Security Council, S/2008/103 [Dossier No. 117]. See also Serbia's intervention in the
Security Council meetings (5839 thmeeting, 18 February 2008, S/PV.5839, pp. 4-6 [Dossier No. 119],
th th
5850 meeting, 11March 2008, S/PV.5850, pp. 2-5 [Dossier No. 120], 5917 meeting, 20 June 2008,
-130-these atternpts failed, did the Republic of Serbia decide to adopt an alternative route, "to
transfer the issue frorn the political to the juridical arena" 426.
7.19. The Republic of Serbia has chosen the way of advisory proceedings in order to
influence the actions of Mernber States rather than the activities of the General Assernbly.
According to its Permanent Representative:
"The Republic of Serbia believes that an advisory opinion of the principal judicial
organ of the United Nations - the International Court of Justice - would be
particularly appropriate in the specific case of determining whether Kosovo' s
unilateral declaration of independence is in accordance with international law.
Many Mernber States would benefit frorn the legal guidance an advisory opinion of
the International Court of Justice would confer. It would enable thern to rnake a more
· d h · ,,427
thoroughJU grnent on t e issue.
7.20. The Courtis certainly nota - or the - legal adviser of United Nations Mernber
States. It is, according to Article 92 of the United Nations Charter, the principal judicial
organ of the Organization, not of its Mernbers. Describing its special function under the
advisory jurisdiction, the Court pointed out in 1950:
"The Court's Opinion is given not to the States, but to the organ which is entitled to
request it; the reply of the Court, itself an 'organ of the United Nations', represents its
428
participation in the activities of the Organization ... " .
7.21. Even if the General Assernbly has, under Article 96, paragraph 1, of the
Charter, the power to request an opinion on "any" legal question, the Court needs to
consider whether, in the circurnstances of the present request, it should exercise its
discretionary power to accede to the request, considering, in particular, that the request was
S/PV.5917, pp. 4-6 [Dossier No. 122], 5944 th meeting, 25 July 2008, S/PV.5944, pp. 5-7 [Dossier
No. 123]).
426 Explanatory Memorandum, A/63/195, Annex [Dossier No. 1].
427
Letter dated 15August 2008 from the Permanent Representative of Serbia to the United Nations
addressed to the Secretary-General, A/63/195, Annex [Dossier No. 1].
428
Jnterpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion,
I.C.J. Reports 1950, p. 71; Applicability of Article VI, Section 22, of the Convention on the Privileges and
Immunities of the United Nations, Advisory Opinion, I.C.J. Reports I989, p. 188, para. 31; Legal
Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
J.C.J. Reports 2004, p. 158, para. 47.
-131-not made to assist the General Assembly in its work but as "legal advice" for Member
States.
7.22. In the event the Court deems it appropriate to accede to the request of the
General Assembly, it needs to bear in mind the specific and limited terms of the question.
It is solely directed at the conformity of the Declaration of Independence with international
law and cannot be used to broaden the issue before the Court, such as to submit, through
the General Assembly, a dispute of the Republic of Serbia with the Republic of Kosovo
or with each and every State that has recognized the Republic of Kosovo
since 17February 2008, that is, at the time this submission was completed, 56 States 429.
7.23. Moreover, the General Assembly did not consider it appropriate to ask the
Court to resolve a pending dispute, to rule on any consequences of the conformity or the
absence of conformity of the Declaration with international law, still less to consider
430
the question, which has been put to the Court in other advisory proceedings , of the
consequences for Member States of the lack of conformity of certain actions with
international law.
7.24. The Court is equally not asked to advise on the legal status of the Republic of
Kosovo as it exists at the time of the request, or at the time of the delivery of the advisory
opinion. The General Assembly did not ask the Court whether the Republic of Kosovo
was a State and if so when it became a State, or whether any of the subsequent recognitions
(made on various dates from 18February 2008 to the present) were contrary to
international law. These are all different questions, which are not before the Court.
7.25. While the Court has the power to reformulate the question it is called to answer
in advisory proceedings, it can only respond to the actual question put. The Court is not
empowered, either under the United Nations Charter or under its own Statute, to pronounce
itself, proprio motu, on any legal question it considers "interesting" or "relevant" for the
429See para. 2.29.
430
Legal Consequencesfor States of the Continued Presence of South Africa in Namibia (South WestAfrica)
notwithstanding Security Council Resolution 276 (1970), Advisory Opinion,.J. Reports 1971, p. 16,
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory
Opinion,I.C.J. Reports 2004, p. 136.
-132-conduct of international relations, nor to issue political advice such as calling for
negotiations of one kind or another. The Court is not a general advisory body, and
"being a Court of Justice, cannot, even in giving advisory opinions, depart from the
431
essential rules guiding their activity as a Court" .
7.26. It follows that if, despite doubts relating to the propriety of the exercise of its
advisory fonction in the present case 432, the Court accedes to the request of the General
Assembly, it can only answer the question in its ordinary meaning as formulated by the
General Assembly, the requesting body, in resolution 63/3.
IV. The Necessity to Take into Account the Context
of the Declaration of lndependence
7.27. In the General Assembly debate on the draft resolution proposed by the
Republic of Serbia, several delegations expressed concerns related to the succinct
formulation of the request and the lack of reference to the factual circumstances that led to
the Declaration of Independence of 17 February 2008. The representative of Albania
suggested in this regard:
"The intentional reduction of the complex issue of Kosovo into a simple aspect,
namely, the legal one, is an attempt to establish a situation outside of its context,
cutting it away from its root causes. In oth433words, it attempts to establish a false
connection between cause and effect."
7.28. Canada also submitted that
"the referral put before us in resolution 63/3 and the frame of reference it purports to
set for the International Court of Justice are unlikely to result in an advisory opinion
that could usefully contribute to fostering stability in the region. At a minimum, the
resolution would have benefited from the inclusion of additional context to reflect the
· · f h ,,434
umque circumstances o t e case.
431
Status of Eastern Carelia, Advis01y Opinion, 1923, P.C.J.J. Series B, No. 5, p. 29. See also Certain
Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion, I.C.J.
Reports 1962, p. 155.
432
See para. 7.21 above.
433 nd
United Nations, Official Records of the General Assembly, Sixty-third Session, 22 plenary meeting,
8 October 2008 (A/63/PV.22), p. 3 (Albania) [Dossier No. 6].
434
Ibid., p. 11 (Canada).
-133- 7.29. The sponsor of resolution 63/3, the Republic of Serbia, however, did not
consider it necessary to include any further explanations or guidance in the text of the
request. lts Foreign Minister claimed during the debate that
"[t]he question posed is amply clear and refrains from taking political positions on the
Kosovo issue".
And the Foreign Minister continued:
"We believe that the draft resolution in its present form is entirely non-controversial.
It represents the lowest common denominator of the positions of the Member States on
this question, and hence there is no need for any changes or additions. Let us adopt it
and allow the Court to act freely and impartially within the framework of its
competencies. We are confident that the Court will know what to do, and that it will
take into account the opinions of all interested Member States and international
organizations. We hold that the most prudent way to proceed today is to adopt our
draft resolution without opposition, in the same way that it was decided at the General
Committee to include this item in the agenda." 435
7.30. However, the question formulated by the General Assembly is not an abstract
one. The General Assembly asks the Court to evaluate the conformity with international
law of the Declaration of Independence of Kosovo made on 17February 2008, and not,
abstractly, of any declaration of independence voiced by whatever entity. The present
proceedings consequently do not involve an exercise of legal doctrine or a theoretical
examination of legal rules and principles. If any relevant rules concerning declarations of
independence exist, they will have to be applied to the particular factual and political
situation of Kosovo, which led to the Declaration oflndependence of 17February 2008.
7.31. In its 1962 Advisory Opinion on Certain Expenses of the United Nations, the
Court itself considered that the absence of certain elements in the request of the General
Assembly, despite the wording of Article 65, paragraph 2, of the Statute, did not
necessarily mean that the Court could not or must not take into account the context. On the
contrary,
"[i]t is not to be assumed that the General Assembly would thus seek to fetter or
hamper the Court in the discharge of its judicial functions; the Court must have full
435United Nations, Official Records of the General Assembly, Sixty-third Session,plenary meeting,
8 October 2008 (A/63/PV.22), p. 2 (Serbia) [Dossier No. 6].
-134- liberty to consider all relevant data available to it in forming an opinion on a question
436
posed to it for an advisory opinion."
7.32. In its 2005 judgment in the Armed Activities on the Territory of the Congo
(Democratic Republic of the Congo v. Uganda) case, the Court pointed out that even if its
task "must be to respond, on the basis of international law" to the legal dispute, in
contentious proceedings, or to the question put by the General Assembly, in these advisory
proceedings, "[a]s it interprets and applies the law, it will be mindful of context" 437.
7.33. Consequently, the Court will need to address the question, as the representative
of the United Kingdom emphasized in the General Assembly,
"against the background of the full context of the dissolution ofYugoslavia in so far as
it affects Kosovo, starting with Belgrade's unilateral decision in 1989 to remove
Kosovo's autonomy through to events of the present day" 438.
7.34. The representative of the United States of America stressed that
"the Court will, understandably, have to look at the referred question with extreme
care, taking into account the particular context in which the events leading to
Kosovo' s declaration occurred. Kosovo must be viewed within the context of the
violent dissolution of the former Yugoslavia in the 1990s. The policies of that period
led the Security Council to adopt resolution 1244 (1999), which authorized the United
Nations to administer Kosovo and called for a political process to determine Kosovo's
status. After intensive negotiations, the United Nations Special Envoy recornrnended
439
to the Secretary-General that Kosovo become an independent State."
7.35. In summary, the question contained in General Assembly resolution 63/3 is in
some important respects prejudicial and argumentative in its drafting, and was intended by
the sole sponsor to present a one-sided view of the underlying legal issues. This should be
disregarded by the Court. Nevertheless, the question is clear, and limited in scope:
436
I.C.J. Reports 1962, p. 156.
437
Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda),
Judgment, I.C.J. Reports 2005, p. 190, para. 26.
438 nd
United Nations, Official Records of the General Assembly, Sixty-third Session, 22 plenary meeting,
8 October 2008 (A/63/PV.22), p. 3 [Dossier No. 6]. See also Letter dated 1October 2008 from the
Permanent Representative of the United Kingdom of Great Britain and Northem Ireland to the United
Nations addressed to the President of the General Assembly, A/63/461, Annex, para. 6 [Dossier No. 5].
439 United Nations, Official Records of the General Assembly, Sixty-third Session, 22 ndplenary meeting,
8 October 2008 (A/63/PV.22), p. 5 [Dossier No. 6].
-135-whether the Declaration of Independence of 17February 2008 contravened any applicable
rule of international law. The Court has the power to respond to this question as it has
been formulated, if it considers it proper to do so. In so doing, it should assess the
conformity of the Declaration of Independence rnindful of the context that led to the
issuance of the Declaration.
-136- CHAPTER VIII
THE DECLARATION OF INDEPENDENCE DID NOT CONTRA VENE
ANY APPLICABLE RULE OF GENERAL INTERNATIONAL LAW
8.01. Chapter VII demonstrated that the question asked by the General Assembly
1s directed at the action of a particular entity on a particular day - the Declaration
of Independence voted upon and signed by the representatives of Kosovo
on 17 February 2008. The question put to the Court asks whether the Declaration was
"in accordance with international law", meaning whether the act of declaring independence
is in violation of any applicable rule of international law.
8.02. As a threshold matter, the Court should conclude that for Kosovo's Declaration
to be not "in accordance with international law", there would have to be a rule of
international law prohibiting the issuance of a declaration of independence (Section 1).
Yet international law contains no such prohibition; rather, long-standing State practice, as
well as practice in the context of the break-up of the former Yugoslavia itself, confirms
that the issuance of a declaration of independence is viewed by States as a factual event not
regulated by international law (Section 11). That factual event, in combination with other
events and factors may or may not over time result in the emergence of a new State. Given
that international law contains no prohibition on the issuance of a declaration of
independence, the Court need not reach the issue of whether the Declaration of
Independence by the representatives of the people of Kosovo reflects an exercise of the
internationally-protected right of self-determination, for there is no need to determine
whether international law has authorized the people to seek independence (Section 111).
I. For Kosovo's Declaration of lndependence to be not
"in Accordance with International Law", there must Exist
a Rule of International Law Prohibiting its Issuance
8.03. The presumption is that conduct is permissible unless it is prohibited by a rule
of international law. In answering the question now before the Court, it is thus necessary
to identify a prohibition in international law against the issuance of a declaration of
-137- independence; in the absence of such a prohibition, it cannot be said the Declaration of
Independence of 17February 2008 is not "in accordance with international law".
440
8.04. From the Lotus case to the present, the Court' s jurisprudence indicates that
when assessing the international legality of a contested action, the starting point is a
presumption of permissibility, overcome only if it can be shown that the action is
prohibited by treaty or customary international law. The Court reaffirmed this basic
principle in the context of obligations imposed by the United Nations Charter, when it
stated in the Certain Expenses advisory opinion that the purposes of the United Nations
"are broad indeed, but neither they nor the powers conferred to effectuate them are
unlimited. Save as they have entrusted the Organization with the attainment of these
441
common ends, the Member States retain their freedom of action." In the Nicaragua
case, the Court reaffirmed this principle in the context of whether international law
regulated a State's possession of armaments. There, the Court stated:
"in international law there are no rules, other than such rules as may be accepted by
the State concerned, by treaty or otherwise, whereby the level of armaments of a
sovereign State can be limited, and this principle is valid for all States without
exception" 442.
8.05. Similarly, in the Nuclear Weapons advisory opinion, even though the General
Assembly asked the Court whether the threat or use of nuclear weapons was "permitted"
under international law, the Court conducted an analysis that principally looked for a
prohibition, not an authorization, to possess or use nuclear weapons. Among other things,
the Court noted that "State practice shows that the illegality of the use of certain weapons
as such does not result from an absence of authorization but, on the contrary, is formulated
443
in terms of prohibition" . The Court's conclusion that the threat or use of nuclear
weapons would generally be contrary to international law did not turn on the lack of an
authorization in international law; rather, it turned on "strict requirements" concerning the
440
S.S. "Lotus" (France/Turkey), 1927, P.C.I.J, Series A, No. 10, p. 18.
441Certain Expenses of the United Nations (Article 17, Paragraph 2 of the Charter), Advisory Opinion,
J.C.J. Reports 1962,. 168.
442Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Merits,
Judgment, I.C.J Reports 1986,p. 135, para. 269.
443Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, J.C.J Reports 1996, p. 247,
para. 52.
-138-conduct of warfare emanating from conventional and customary rules of international
humanitarian law. Such reasoning is in accord with the general attitude of States. For
example, in the Nuclear Weapons advisory opinion proceedings, the Russian Federation
observed that "in virtue of the principle of sovereignty, we treat as generally admitted the
presumption that the State may accomplish any acts which are not prohibited under
international law. Basically, international law is a system of limitations, rather than
permissions." 444
8.06. While such precedents speak principally to the residual freedom of States to act
in the absence of a prohibition under international law, the same applies afortiori to those
that are not States, since the system of international law is primarily directed at the
regulation of State activity. Indeed, it would be quite extraordinary to assert that a
permissive rule of international law must be found before acts by individuals, corporations,
non-govemmental organizations, international organizations, or other non-State entities
can be regarded as internationally lawful. International law simply does not seek to
regulate most of the countless acts or omissions of non-State entities that occur on a daily
basis, either directly or by judging the scope of their authority under national law. The
Court itself acknowledged this in the Barcelona Traction case when addressing the
conduct of the shareholders of a company, finding that "[i]nternational law may not, in
some fields, provide specific rules in particular cases" 44. Consequently, for the Court to
find that the Declaration of Independence of 17 February 2008 was "not in accordance
with international law", it would be necessary for the Court to identify a prohibition in
international law, applicable to and binding on the authors of the Declaration, that the
issuance of the Declaration contravened.
444 Written Comments of the Russian Federation (19 June 1995), Legality of the Threat or Use of Nuclear
Weapons, Advisory Opinion, p. 5. The views of scholars are also in accordance with this principle. For
instance, Kelsen stated that "[i]f there is no norm of conventional or customary international law
imposing upon the state ... the obligation to behave in a certain way, the subject is under international law
legally free to behave as it so pleases; and by a dndision to this effect existing international law is
applied." (H. Kelsen, Princip/es of International Law (2, 1966), pp. 438-439).
445
Barcelona Traction, Light and Power Company, Limited, Judgment, 1.C.J.Reports 1970, p. 38, para. 52.
-139- II. There Is No Rule of International Law Prohibiting
the Issuance of a Declaration of Independence
8.07. General international law does not prohibit the issuance of a declaration of
446
independence, regardless of the circumstances under which that declaration occurs .
Numerous declarations of independence have been issued over hundreds of years, even in
circumstances where a group is seeking to separate from the State to which it belongs
without its consent, without those declarations being qualified as violations of international
law. Indeed, State practice in the context of the Balkans during the 1990s confirms that
international law generally does not prohibit the issuance of a declaration of independence,
even in the face of a disapproving central govemment. There have been very rare and
specific cases in which a declaration of independence was part of a broader effort
to systematically deny fundamental rights, leading to condemnation by the Security
Council or the General Assembly, but such circumstances are not present with respect to
the 17February 2008 Declaration of Independence now before this Court. Consequently,
the Declaration did not contravene any applicable rule of international law and was in that
sense "in accordance" with international law, since international law generally is not
concerned with the legality of such a declaration.
A. THE ISSUANCE OF A DECLARATION OF INDEPENDENCE IS A FACTUAL EVENT
NOT REGULATED BY GENERAL INTERNATIONAL LAW
8.08. International law on the creation of States regards an entity as meeting the
requirements of statehood when certain factual conditions have been met, but does not
contain any rule prohibiting persons or entities from seeking independence, nor from
1ssmng a declaration of independence. Rather, international law identifies factual
predicates by which an entity can become a State; it does not impose obligations
until statehood is achieved. The factual conditions relating to the persons or entities prior
446An entity may become independent from a predecessor State in many ways: by operation of national law
allowing separation, sometimes referred to as "devolution"; by dissolution or dismemberment of a
predecessor State, resulting in the establishment of two or more new States; or by departure of the entity
from the parent State without the latter's consent, sometimes referred to as "secession".
-140-to State formation, including a declaration of independence, are, m essence, pre
447
international law •
8.09. The factual criteria for statehood are a defined territory, a permanent
448
population, an effective government, and a capacity to enter into international relations .
An important component is the desire to be regarded as a State, often expressed through a
declaration of independence or other act signifying a move toward statehood, one that may
occur before, as, or after the "Montevideo" criteria are satisfied. The reactions of other
States through the process of "recognition" are an important part of this process of State
formation; other factors (a commitment to democracy, human rights, and the rule of law)
have in recent times been regarded as significant for many States when considering
whether, as a matter of political appreciation, to recognize a new State or not.
8.10. It is clear from the circumstances of Kosovo today that the Republic of Kosovo
449
satisfies the factual criteria required for statehood . But the Court is not called upon in
these advisory proceedings to confirm Kosovo' s statehood, nor to advise more generally
on the nature and scope of the factual conditions considered important when assessing a
daim to statehood. As explained in Chapter VII, the question before the Court is directed
exclusively at the issuance of the Declaration of Independence of 17February 2008.
Likewise, the Court is not asked to pass upon the legality of the Declaration of
Independence under applicable national law. Rather, the question put to the Court is
focused on the international legality of a non-State entity declaring independence, which
may be answered by noting that a declaration of independence is one of many factual
events along a factual continuum that can lead to State formation - an event which is not,
by itself, regarded as lawful or unlawful under international law. Just as the extra
constitutional formation of a new government is generally neither prohibited nor
447 See, e.g., Conference of Yugoslavia, Arbitration Commission, Opinion No. 1, 29 November 1991,
para. 1 (a) [Dossier No. 233] ("the existence or disappearance of the State is a question of fact."); G. Abi
Saab, "Conclusion", in M. Kohen (ed.), Secession. International Law Perspectives (2006), p. 471 ("the
creation of the State from the standpoint of international law is always a legal fact and not a legal act,
even when this fact is based on a legal act such as a treaty").
448
Inter-American Convention on the Rights and Duties of States, 26 December 1933, Article 1, League of
Nations, Treaty Series (LNTS), vol. 165,p. 19 ("Montevideo Convention").
449
See Chapter II above.
-141-authorized by international law 45, so too a declaration of independence is not prohibited
by, and therefore does not contravene, general international law.
B. LONGSTANDING STATE PRACTICE CONFIRMS THAT THE lSSUANCE OF A DECLARATION
OF lNDEPENDENCE 1SNOT REGULATED BY GENERAL INTERNATIONAL LAW
8.11. State practice confirms that there is no rule of international law prohibiting the
issuance of a declaration of independence. Historically, numerous bodies have declared
independence as a means of signaling their intention to create a new State. Sorne
declarations of independence have succeeded over time, while others have failed. Yet the
issuance of such declarations generally have not been regarded as either violating
or not violating international law; they are instead treated as a factual development that,
in conjunction with other circumstances, may or may not result in the emergence of
a new State.
8.12. Thus, when the Second Continental Congress of the thirteen American colonies
declared independence from Britain in July 1776, that act was not regarded by States,
including Britain, as a violation of the law of nations 451• Rather, it was the fact of the
declaration in conjunction with other facts, such as the colonial victories at Saratoga and
Yorktown, that over time led to the conditions by which a State was formed and
recognized as such by other States, thus conferring upon the United States rights and
obligations under the law of nations. Other States, such as France in 1778, ultimately
began recognizing the new State, as Britain did some seven years after the event upon
452
conclusion of the Revolutionary War with the 1783 Treaty of Paris • Rad the facts
developed differently after the issuance of the declaration, the American move toward
450See, e.g., Tinoco Claims Arbitration (Great Britain v. Costa Rica), United Nations, Reports of
International Arbitral Awards (RIAA),vol. I, p. 381 (1923) (sole arbitrator William Howard Taft) ("To
hold that a government which establishes itself and maintains a peaceful administration, with the
acquiescence of the people for a substantial period of time, does not become ato government unless
it conforms to a previous constitution would be to hold that within the rules of international law a
revolution contrary to the fundamental law of the existing government cannot establish a new
government. This cannot be, and is not, true.")
451In lieu of an official response, the British Government secretly commissioned a lawyer and pamphleteer,
John Lind, to publish a response entitled Answer to the Declaration of the American Congress (1776),
which makes no argument that the declaration violated international law.
452
D. Armitage, "The Declaration of Independence and International Law", William and Mary Quarter/y,
vol. 59, January 2002, p. 60.
-142-statehood rnight have been no different than other failed independence rnovernents of the
late eighteenth century.
8.13. Throughout the nineteenth century, other declarations of independence were
also not seen as regulated by international law. For exarnple, in Septernber 1810, Hidalgo
y Costilla declared independence for Mexico frorn Spanish rule. Though the declaration
sparked a decade of war, the reaction by Spain and other States evinces no evidence that
the declaration as such was regarded as violating international law. Instead, as was the
case with the United States, other States began recognizing the new State of Mexico,
453
including Spain by the 1821 Treaty of C6rdoba . Likewise, when the Brazilian regent
prince Pedro declared Brazil' s independence frorn Portugal in Septernber 1822, and
thereafter established a constitutional rnonarchy, that declaration was also not regarded by
other States as violating international law. Other States proceeded to recognize the new
State of Brazil, including Portugal itself by treaty in 1825 454. New Zealand's independence
frorn Britain occurred over an extended period, but for present purposes the point is that
the 1835 declaration of the independence, signed by the United Tribes of New Zealand,
was not regarded as an unlawful act under international law by either Britain or
55
other States 4 . Likewise, the 1847 Liberian declaration of independence, proclairning that
the Republic of Liberia was "a free, sovereign, and independent state", was not regarded as
unlawful, rnarking the ernergence of one of the earliest States in Africa 456•
8.14. The sarne reactions to declarations of independence, m terms of
their relationship to international law, rnay be seen in State practice throughout the
twentieth century. For exarnple, the 1918 declaration of independence of the
Czechoslovak Nation 457 was not seen by States as a violation of international law.
Sirnilarly, in April 1959, the Republic of the Mali Federation was formed by a union
453 See A.H. Chavez, Mexico: A Brief History (2006), pp. 104-16; B. Kirkwood, The History of Mexico
(2000), pp. 80-88.
454 See R.J. Barman, Brazil: The Forging of a Nation, 1798-1852 (1988), pp. 96-129; R. Cavaliero, The
Independence of Brazil (1993), pp. 145-155.
455K. Sinclair, A History of New Zealand (4 ed., 2000), pp. 53-58.
456Ch.H. Huberich, The Political and Legislative History of Liberia, vol. I (1947), pp. 828-832; N. Azikiwe,
Liberia in World Politics (1934), p. 67 ("Great Britain was the first great power to recognize ... [o]ther
nations followed suit.")
457G.J. Kovtun, The Czechoslovak Declaration of Independence: A History of the Document (1985),
pp. 46-48.
-143-between Senegal and French Sudan, which then achieved independence as a State from
France in June 1960. In August of that year, authorities in Senegal declared their
independence, thus seceding from the Federation and creating the Republic of Senegal 458.
Other States did not regard Senegal's declaration of independence as a violation of
international law; instead, Senegal was ultimately admitted to the United Nations in 1960.
Similarly, in March 1971, Sheikh Mujibur Rahman, a Bengali politician and leader of the
Awami League (the largest East Pakistani political party), signed a declaration stating that:
"Today Bangladesh is a sovereign and independent country". Although Pakistan viewed
the declaration as unlawful under Pakistani law, States generally did not view
this declaration as a violation of international law. The armed conflict that ensued,
however, was of considerable concern to other States; the General Assembly adopted a
resolution calling for an "immediate cease-fire and withdrawal of ... armed forces", but
issued no statement that the declaration of independence was not in accordance with
international law 459. Ultimately, the People's Republic of Bangladesh was recognized by
many other States and admitted to the United Nations in September 1974.
8.15. More recently, in July 1992, the Slovak National Council declared Slovakia a
sovereign State, beginning with the words: "We, the democratically elected Slovak
National Council, hereby solemnly declare that the 1,000-year efforts of the Slovak nation
are herewith successfully accomplished. In this historie moment, we declare the natural
right of the Slovak nation to its own self-determination ..." 460 That declaration was
issued before the conclusion of negotiations with officiais of the Czech and Slovak Federal
Republic concerning the dissolution of the Federation. Indeed, only in November
of 1992 did the Federal Parliament vote to dissolve the country, which occurred on
31 December 1992. During the period between the issuance of the Slovak National
Council's declaration of independence and the conclusion of the "velvet divorce", no State
461
regarded the Council's declaration as being unlawful under international law .
458
R. Higgins, "Legal Problems Arising From the Dissolution of the Mali Federation", in Themes and
Theories: Selected Essays, Speeches, and Writings in International Law9), vol. 2, p. 747. One month
later, Mali declared its own independence as the Republic of Mali.
459
General Assembly resolution 2793 (1971); see also J. Crawford, The Creation of States in International
Law (2006), pp. 140-143.
46
°CCPR/C/81/Add.9 (1996), para. 12.
461See S.K. Kirschbaum, A History of Slovakia: The Struggle for Survival (2005), pp. 269-270.
-144- 8.16. In short, in many instances, declarations of independence have been issued,
even without the consent of existing governmental authorities, and such an act was not
regarded by other States or the United Nations political organs as having violated
international law. Rather, in such circumstances, over time and based on a sometimes
lengthy continuum of facts, the entity was often established as an independent State if the
relevant factual conditions were fulfilled.
8.17. Sorne of the examples mentioned above occurred in the context of "secession,"
in which a State is formed by breaking away from a parent State without the latter' s
consent. Though the circumstances under which other States will accept such a claim to
statehood may be contentious, it remains the case that the attempt at secession, including
any issuance of a declaration of independence, is simply not regulated by international law.
As Professor Hersh Lauterpacht observed: "International law does not condemn rebellion
462
or secession aiming at the acquisition of independence" . More recently, Professor James
Crawford noted that "secession is neither legal nor illegal in international law, but a legally
463
neutral act the consequences of which are regulated internationally" . According to
Professor Georges Abi-Saab, "if international law does not recognise a right of secession
outside the context of self-determination ... , this does not mean that it prohibits secession.
Secession thus remains basically a phenomenon not regulated by international law." 464
The Supreme Court of Canada stated in its Succession of Quebec decision, "[i]nternational
law contains neither a right of unilateral secession nor the explicit denial of such
465
a right" •
8.18. In very rare circumstances the Security Council or the General Assembly may
condemn a broad effort aimed at State creation when it involves a systematic denial of
fundamental rights or other egregious behavior, such as creating a State based upon
462
H. Lauterpacht, Recognition in International Law (1947), p. 8.
463J. Crawford, op. cit. (fn. 459), p. 390.
464G. Abi-Saab, op. cit. (fn. 447), p. 474; see also T. Franck, "Opinion Directed at Question 2 of the
Reference", in Commission d'étude des questions afférentes à l'accession du Québec à la souveraineté,
Projet de Rapport (1992), reprinted in, Self-Determination in International Law: Quebec and Lessons
Learned (2000), p. 78, para. 2.9 ("while there may ordinarily be no right to secede, international law has
long recognized a privilege of secession and has not in any way prohibited secession ... "), and p. 79,
para. 2.11 ("lt cannot seriously be argued today that international law prohibits secession.")
465Secession ofQuebec, [1998) 2 S.C.R. 217 (Can.), para. 112, reprinted in I.L.M, vol. 37, 1998, p. 1340.
Though a national tribunal, the Supreme Court was also construing international law.
-145-apartheid or racial discrimination 466• In the course of doing so, the political organs may
denounce a declaration of independence as one part of that broad effort 467. In those
exceptional circumstances, the political organs may determine that the declaration is
regarded by the United Nations as having no legal effect and may call upon other States
not to recognize the emergence of a new State. The circumstances surrounding these rare
incidents, however, bear no relationship to the circumstances of the 17February 2008
Declaration of Independence, which provoked no condemnation from either the General
Assembly or the Security Council. As discussed in detail in Chapters IV, V, and IX,
Kosovo's Declaration occurred in the context of a lengthy period of United Nations
administration of Kosovo and the UN-led final settlement process, which contemplated as
one possibility the emergence of an independent State of Kosovo.
8.19. Given the lack of State practice supporting any prohibition in international law
on the issuance of a declaration of independence, it is no surprise that relevant global and
regional treaties contain no such prohibition. For example, there is no explicit or implied
prohibition on the issuance of a declaration of independence in the United Nations Charter.
While Article 2 (4) of the Charter prohibits Member States from using force against the
territorial integrity of other Member States, that prohibition by both its ordinary meaning
and its context is not addressing the issuance of a declaration of independence by a non
State entity. Likewise, the constituent instruments of the European Union, the African
Union, the Organization of American States, and the League of Arab States contain no
provisions prohibiting declarations of independence. Indeed, treaties generally do not seek
to regulate non-State entities in such fashion; rather, they set out the rights and obligations
of States that are parties to the treaty.
466See, e.g., General Assembly resolution 2024 (1965), Security Council resolution 216 (1965) and Security
Council resolution 217 (1965) (condemning efforts of a "racist minority" in southern Rhodesia); General
Assembly resolution 31/6 (A) (1976); and Security Council resolution 402 (1976) (condemning efforts to
create ten ethnically and linguistically divided homelands (bantustans) for black South Africans, as a
means of implementing a policy of apartheid).
467
Even in these circumstances, the political organs do not find that the declaration of independence itself
violated or was not in accordance with international law, nor are they required to do so. As Rosalyn
Higgins has observed, the political organs react to a variety of circumstances that may threaten peace, but
that do not necessarily entail a violation of the United Nations Charter, customary international law, or
even general international law (R. Higgins, The Development of International Law Through the Political
Organs of the United Nations (1963), p. 204; see also J.E. Alvarez, International Organizations as Law
makers (2005), p. 187 ("The Charter leaves its enforcement arm with considerable discretion to act
whenever the 'international peace' is threatened, regardless of whether the threatening act violates
international law ...")).
-146- 8.20. Similarly, non-binding instruments, such as the Helsinki Final Act, do not
identify a commitment, legal or political, to permanent, unchanging territorial boundaries.
Rather, the principles expressed in the Helsinki Final Act on "inviolability of frontiers" and
"territorial integrity of States" are expressed in terms of States not "assaulting" each
other's frontiers and not using, or threatening to use, force against each other's territory 468•
The principles are silent on the issue of whether and under what circumstances an entity
within a member of the CSCE (now OSCE) might seek and acquire independence. Indeed,
to the extent that the Helsinki Final Act speaks to the issue of Kosovo's Declaration of
Independence, the salient language is found in Principle VIII, which reads in part:
"By virtue of the principle of equal rights and self-determination of peoples, all
peoples always have the right, in full freedom, to determine, when and as they wish,
their internai and external political status, without external interference, and to pursue
as they wish their political, economic, social and cultural development.
The participating States reaffirm the universal significance of respect for and effective
exercise of equal rights and self-determination of peoples for the development of
friendly relations among themselves as among all States; they also recall the
importance of the elimination of any form of violation of this principle."
Thus, the principles expressed within the Helsinki Final Act recogmze a variety of
competing concepts - ones that seek to protect territory from external uses of force, but
that also seek to promote human rights and the rule of law. As such, it is not possible to
ascribe to the Helsinki Final Act a single fixed notion disfavoring the legality of a
declaration of independence.
8.21. In sum, while rare circumstances can arise involving condemnation of heinous
behaviour one part of which is an issuance of a declaration of independence, as a
general matter States view declarations of independence as simply one fact in a series of
factual circumstances, the totality of which over time may or may not result in the creation
of a new State under international law. No individual fact in this continuum is
generally regarded as being either authorized or prohibited by international law. Hence, a
declaration of independence, such as that issued by the representatives of Kosovo
on 17February 2008, cannot be regarded as contravening international law.
468Helsinki Final Act, Declaration on Principles Guiding Relations between Participating States,
principles III and IV [Dossier No. 217].
-147- C. STATE PRACTICE RELATING TO THE BREAK-UP OF THE FORMER YUGOSLAVIA
CONFIRMS THAT THE ISSUANCE OF A DECLARATION OF INDEPENDENCE
Is NOT REGULATED BY GENERAL INTERNATIONAL LAW
8.22. As discussed in Chapter V, the Declaration of Independence by the
democratically-elected representatives of Kosovo and the emergence of Kosovo as a State
was the final step in the process of break-up of the Socialist Federal Republic of
Yugoslavia (SFRY). The Contact Group recognized in 2006 that Kosovo represents "the
last major issue related to the breakup of Yugoslavia" 469. Further, it found that the
"character of the Kosovo problem" was shaped in part "by the disintegration of
Yugoslavia", and hence "must be fully taken into account in settling Kosovo's status" 470.
That break-up resulted in the issuance of a series of declarations, none of which were
regarded by other States or by this Court as inconsistent with international law,
notwithstanding the claim by Serbia (or, depending on the relevant date, by the Belgrade
based SFRY or the FRY) that such entities remained a part of the SFRY.
8.23. Chapter III recounted how Slobodan Milosevié, who had served as the
Chairman of the Central Committee of the League of Communists of Serbia since 1986,
in 1989 became President of Serbia. Milosevié adhered to centralism and one party rule
through the Yugoslav Communist Party, and he effectively ended the autonomy of the
Kosovo and Vojvodina provinces. That action, in tum, served as the catalyst for the
disintegration of the SFRY, since the other Republics regarded themselves as now clearly
threatened by Serbian efforts to dominate the SFRY. When Belgrade began repressing
Kosovo Albanian's political and cultural rights, dismissing them from public positions,
closing down their Albanian-speaking schools, and changing street signs into the Serbian
Cyrillic alphabet - all as a part of abolishing Kosovo's autonomous status and removing
the rights of the people forming the majority - the other parts of the SFRY glimpsed their
own future under Serbian dominance. Moreover, seizing control of Kosovo's political
institutions in 1989 was an important element in Serbia securing dominance over half the
SFRY Federal Presidency's eight votes (Serbia, Kosovo, Montenegro, and Vojvodina).
469
Contact Group Ministerial Statement, New York, 20 September 2006, para. 2 (available on
<http://www.unosek.org/docref/2006-09-20_-_CG_ Ministerial_Statement_New_ York.pdt>).
47
° Contact Group Statement, London, 31 January 2006, para. 2 (available on <http://www.unosek.org/
docref/fevrier/STATEMENT BY THE CONTACT GROUP ON THE FUTURE OF KOSOVO - Eng.pdt>).
See also para. 2.03 above.
-148- 8.24. As a direct consequence of these actions against Kosovo, Slovenia proposed
amendments to the SFRY Constitution so as to secure greater autonomy from Belgrade,
including an amendment that would expressly grant Slovenia the right to secede from the
SFRY. When such proposals foundered, both Slovenia and Croatia moved instead toward
independence.
8.25. On 25 June 1991, the Slovenian Assembly, meeting in Ljubljana, adopted "The
Basic Constitutional Charter on the Sovereignty and Independence of the Republic of
Slovenia", which in Article I stated: "The Constitution of the SFRY is no longer in force in
471
the Republic of Slovenia." Further, the Assembly issued a declaration of independence,
which began as follows:
"On the basis of the right of the Slovene nation to self-determination, of the principles
of international law and the Constitution of the former SFRY and of the Republic of
Slovenia, and on the basis of the absolute majority vote in the plebiscite held on
December 23, 1990, the people of the Republic of Slovenia have decided to establish
an independent state, the Republic of Slovenia, which will no longer be part of the
Socialist Federal Republic of Yugoslavia.
On the basis of an unanimous proposal of all parliamentary parties and groups of
delegates and in compliance with the plebiscitary outcome, the Assembly of the
Republic of Slovenia has adopted the Basic Constitutional Charter on the Sovereignty
and Independence of472e Republic of Slovenia at the sessions of all its chambers held
on June 25, 1991."
The next day, 26 June 1991, President Milan Kucan declared Slovenia to be an
independent State at a ceremony held in Trg Revolucije square, Ljubljana. The Serbian
dominated SFRY govemment then moved units of the Yugoslav People's Army (JNA)
against Slovenia, resulting in a ten-day war between the JNA and Slovenian military and
paramilitary forces.
8.26. In similar fashion, on 25 June 1991, the newly-reorganized Parliament in
Croatia adopted a "Constitutional Decision on the Sovereignty and Independence of the
Republic of Croatia", which established that by "this act, the Republic of Croatia initiates
proceedings for disassociation from the other republics and from the SFRY. The Republic
471
S. Trifunovska (ed.), Yugoslavia Through Documents: From its Creation toits Dissolution (1994), p. 291.
472Ibid., p. 286.
-149-of Croatia is initiating proceedings for international recognition." 473 At the same session of
all the three chambers, the Parliament also passed the declaration of independence, entitled
"Declaration on the Establishment of the Sovereign and Independent Republic of
474
Croatia" . In response, the Belgrade-based SFRY government moved its forces against
Croatia, with full-scale fighting continuing until November 1991, when the United Nations
Protection Force (UNPROFOR) deployed to Croatia.
8.27. The Serbian-dominated SFRY declared that the two declarations of
independence violated both the law of the SFRY and its "territorial integrity" 475,a pattern
that would repeat itself with respect to declarations issued by the other parts of the former
Yugoslavia, including ultimately Kosovo. Specifically, the SFRY Presidency stated
"that the Republics of Slovenia and Croatia declared independence and sovereignty by
unilateral unconstitutional acts that cannot produce immediate constitutional-legal
consequences. These acts constitute a flagrant violation of the territorial integrity of
the SFR of Yugoslavia and its State borders and as such are liable to all the
consequences envisaged in the constitutional-legal system of the protection of the
territorial integrity....
By their secessionist acts Slovenia and Croatia pose a direct threat to the territorial
integrity of Yugoslavia, which is the only subject recognized in international law, the
constituent parts of which are these Republics.
The Presidency of the SFR of Yugoslavia therefore warns that the SFR ofYugoslavia
will consider every attempt to recognize these acts of Slovenia and Croatia as flagrant
interference into its internai affairs, as an act directed against its international
subjectivity and territorial integrity. In such a case it will resort to all available means
recognized in international law." 476
Thus, from Belgrade's perspective, these declarations were "secessionist" acts that
threatened the SFRY as a territorial unit "recognized under international law." Yet other
States did not react to the declarations of independence by condemning them as violations
of the SFRY's territorial integrity or as violations of international law generally. This
confirms the practice of States in not regarding such declarations per se as violating
international law.
473S. Trifunovska, op. cit. (fn. 471), p. 300.
474
Ibid.,p. 301.
475
Ibid.,p. 353.
476Ibid.,pp. 353-354; see also ibid.p. 305 (SFRY Presidency statement that the two declarations of
independence directly threaten SFRY's "territorial integrityand "its sovereignty according to
international law").
-150- 8.28. Further confirmation that international law does not generally speak to the
legality of such declarations may be seen in the circumstances surrounding the conclusion
477
of the 7 July 1991 Joint Declaration at Brioni (Brioni Agreement) , a result of
negotiations sponsored by the European Union and involving representatives from
Slovenia, Croatia, and the SFRY. The Brioni Agreement was successful in ending armed
conflict between the SFRY forces and Slovenia. Though it also sought to secure the
withdrawal of SFRY forces from Croatia, the Agreement failed in that respect. However,
in exchange for the SFRY's promises to remove its forces from both Slovenia and Croatia,
the Brioni Agreement adopted a three-month suspension of the Slovenian and Croatian
declarations of independence. Nothing in the Agreement characterizes these declarations
as unlawful under international law. When the three-month period of negotiations
envisaged by the Brioni Agreement came to an end, Slovenia and Croatia announced the
reassertion of their independence. Again, instead of asserting the illegality under
international law of such declarations, States viewed the resumed declarations as factual
events that needed to be assessed in conjunction with other events and factors in order to
determine whether in fact two new States existed.
8.29. A similar reaction occurred with respect to Macedonia's declaration of
478
independence on 18 September 1991 and Bosnia and Herzegovina's declaration of
"sovereignty" of October 1991 (followed by its declaration of independence of
March 1992). Here, too, issuance of these declarations was opposed by the SFRY and
Serbia. Indeed, before this Court, the FRY argued in 1995 that Bosnia and Herzegovina
was not qualified to become a party to the Genocide Convention because it had not
obtained its independence in conformity with an "imperative rule of international law" -
the "principle of equal rights and self-determination of peoples',4 79•Rather, the FRY stated
to the Court that it "believes that the acts whereby the Applicant State was constituted as
an indepent (sic) state are in contravention of the rules of international law" 480. Yet other
477
S. Trifunovska, op. cit. (fn. 471), p. 311.
478
Ibid., p. 345.
479Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Yugoslavia), Preliminary Objections of the Federal Republic of Yugoslavia, June 1995,
p. 4.
480
Ibid., p. 111.
-151- States did not regard the declarations as violating international law, instead seeing them as
factual events to be assessed in conjunction with other events and factors.
8.30. The reaction of European States to these declarations by Bosnia and
Herzegovina, Croatia, Macedonia, and Slovenia is instructive. Rather than regarding the
declarations of independence as per se unlawful under international law (or even the
issuance of such a declaration as an event that must be determined as either lawful or
unlawful), European States instead initiated a political process for assessing whether new
States should be recognized. On 16December 1991, the European Council adopted
Guidelines to be applied in considering the emergence of new States in Eastern Europe and
481 482
in the Soviet Union and issued a Declaration on Yugoslavia . Neither instrument
indicated any belief that the existing declarations of independence by the Republics were
unlawful; instead, they demonstrate a belief that the declarations were simply factual
events that must now be considered as a political matter by European States. Under the
political process established by the Declaration, "all Yugoslav Republics" were invited to
file "applications" by 23 December 1991, to indicate whether they wished to be regarded
as independent States, and to state whether they accepted the commitments contained in
the EC Guidelines. Notably, the EC Guidelines made reference to the provisions of the
United Nations Charter, the Helsinki Final Act, and the Charter of Paris, but those
references did not indicate a rigid adherence to pre-existing international boundaries, let
alone a prohibition on declarations of independence. Rather, the reference to those
instruments expressed a range of European concerns, including promoting the rule of law,
democracy, human rights, and stability ofborders. Indeed, such principles ultimately were
not the basis for denying statehood to new entities, but the touchstone for those entities
in expressing their commitment to international legal principles as part of their passage
into statehood.
8.31. This process unfolded under the direction of the European Community
Conference on Yugoslavia (ECCY) (which in August 1992 became the International
Conference on the Former Yugoslavia (ICFY)), under the chairmanship of Lord
481European Community, Declaration of the European Council on the Guidelines on the Recognition of New
States in Eastern Europe and in the Soviet Union, 16December 1991 [Dossier No. 232].
482European Community, Declaration on Yugoslavia, 16 December 1991, reprinted in M. Welleop. cit.
(fn. 165), p. 81; E.JI.L., vol. 4, 1993, p. 73.
-152-Carrington. Over the course of time, European (and non-European) States came to a
political judgment that Bosnia and Herzegovina, Croatia, Macedonia, and Slovenia were
entities that had emerged as new States. The paths of these new States in consolidating
their statehood and securing admission to the United Nations were not identical, but the
overall proposition - that their declarations of independence were viewed as factual events
and notas actions regulated by international law-was true for each ofthem. For example,
the first recognitions of Slovenia and Croatia came from Germany, Iceland, Ukraine, and
the Vatican in late 1991, followed in mid-January 2002 by the recognition of some thirty
other countries in Europe. In April 1992, the United States recognized the two new States,
and ultimately they were admitted to the United Nations in May 1992.
8.32. In short, during the period between the issuance of Slovenia's and Croatia's
declarations of independence in June 1991 and their admission to the United Nations
almost a year later, there was no suggestion in the practice of States that those declarations
and their issuance constituted a violation of international law, nor that they were even acts
that international law sought to regulate. Rather, taking into account the fact of the
declarations, in conjunction with other facts, States over time viewed Slovenia and Croatia
as having emerged as independent States. A similar overall result occurred with respect to
Bosnia-Herzegovina and Macedonia.
8.33. The representatives m the Kosovo Assembly issued a declaration in
September 1991 proclaiming Kosovo "as a sovereign and independent state, with the right
to participate as a constituent republic in Yugoslavia, on a basis of freedom and
483
equality" . The 16December European Council Declaration on Yugoslavia, however,
indicated a political decision on the part of European States only to invite "Yugoslav
Republics" to apply for recognition as independent States, given the focus at that time on
the armed conflict that had occurred in Croatia and Slovenia, and that would soon
break out in Bosnia and Herzegovina. Consequently, when the Kosovo Assembly in
December 1991 requested that Lord Carrington include Kosovo in the European political
484
process for recognition , he did not act upon that request. As noted, the European
483Resolution of the Assembly of the Republic of Kosova on lndependence, 22 September 1991, in
M. Weller, op. cit. (fn. 165),p. 72. That factual event was also not regulated by international law.
484
Letter from Dr. Rugova to Lord Carrington, Peace Conference on Yugoslavia, 22 December 1999, in
M. Weller, op. cit. (fn. 165),p. 81.
-153- Council Declaration had limited the political process to applications by existing republics,
of which Kosovo was not one. Of course, the vast array of commitments that have now
been made by Kosovo in its Declaration of Independence of 17February 2008 485 and the
Constitution of the Republic of Kosovo in fulfillment of the Ahtisaari Plan 486fully meet
the standards set in the European Council Guidelines, as evidenced by the recognition that
Kosovo has received from most European Union Member States.
8.34. To assist m the political process of determining whether new States had
emerged, European States in 1991 established a commission composed of the presidents of
some of their Constitutional Courts, under the chairmanship of Robert Badinter (commonly
referred to as the "Badinter Commission"). Over the course of many months, the ICFY
asked the Badinter Commission a series of specific questions, resulting in several opinions
from the Commission providing legal guidance on the formation of States in the former
487
Yugoslavia. For the reason indicated above , none of the questions asked by the ICFY to
the Commission related to Kosovo and consequently the Commission issued no opinions
on Kosovo's status. Nevertheless, two key elements of the Badinter Commission opinions
may be of assistance to the Court when answering the question currently before it.
8.35. First, in Badinter Commission Opinion 1, issued in November 1991, the
Commission' s advice on the nature of the changes in sovereignty that were occurring in the
SFRY did not view the declarations of independence as acts capable of being
internationally wrongful. The Commission noted that it was informed of the positions of
Bosnia and Herzegovina, Croatia, Macedonia, Slovenia, Serbia, and the SFRY, and that the
Commission's advice "should be based on the principles of public international law
488
which serve to define the conditions on which an entity constitutes a state ..." . The
Commission noted that "the Republics have expressed their desire for independence", and
expressly listed the declarations of independence as part of the acts conveying that desire:
485See paras. 6.25-6.33 above.
486See paras. 2.17-2.57 above.
487
See para. 8.33 above.
488
Conference of Yugoslavia, Arbitration Commission, Opinion No. 1, 29 November 1991, preamble and
para. 1(a) [Dossier No. 233].
-154- "- in Slovenia, by a referendum in December 1990, followed by a declaration of
independence on 25 June 1991, which was suspended for three rnonths and confirmed
on 8 October 1991;
- in Croatia, by a referendum held in May 1991, followed by a declaration of
independence on 25 June 1991, which was suspended for three rnonths and confirmed
on 8 October 1991;
- in Macedonia, by a referendum held in September 1991 in favour of a sovereign and
independent Macedonia within an association ofYugoslav States;
- in Bosnia and Herzegovina, by a sovereignty resolution adopted by Parliament on
14October 1991 ... " 489
Although the Belgrade-based SFRY had maintained that such declarations of independence
violated international law, the Badinter Commission made no such finding, nor even saw
the declarations as acts that might be found wrongful under international law. Instead, the
Commission took the approach that "in this respect, the existence or disappearance of the
State is a question offact", one that other States would acknowledge through the process of
recognition 490. The Commission essentially reiterated this point in Opinion 3, when it
stated that "Croatia and Bosnia-Herzegovina, inter alia, have sought international
recognition as independent States" and that this fact was part of "a fluid and changing
491
situation" . Ultimately, in making its recommendations as to whether these entities
should be recognized by States, the Commission issued a series of opinions which in no
respect characterized the declarations of independence as acts that per se might be
492
internationally wrongful .
8.36. Second, the Commission's unwillingness to v1ew the declarations of
independence as capable of being internationally wrongful cannot be explained on the
basis that the SFRY had dissolved, since at the time of Opinions 1 to 3, the Commission
did not regard the SFRY as having dissolved (nor did the SFRY authorities in Belgrade).
Rather, the Commission regarded the SFRY as still existing, since it "has until now
489
Conference of Yugoslavia, Arbitration Commission, Opinion No. 1, 29 November 1991, para. 2 (a)
[Dossier No. 233].
490
Ibid., para. 1 (a) (emphasis added).
491Conference of Yugoslavia, Arbitration Commission, Opinion No. 3, 11 January 1992, para. 1, I.L.M,
vol. 31, 1992,p. 1499;E.J.I.L., vol. 3, 1992, p. 185.
492Those opinions - Opinion No. 4 (Bosnia and Herzegovina), Opinion No. 5 (Croatia), Opinion No. 6
(Macedonia), and Opinion No. 7 (Slovenia) - were published on 11 January 1992, and appear at I.L.M,
vol. 31, 1992,p. 1501; E.JI.L., vol. 4, 1993,p. 74.
-155- 493
retained its international personality" • Though the SFRY was "in the process of
dissolution", it was still possible for "those Republics that so wish, to work together to
494
form a new association endowed with the democratic institutions of their choice" •
Hence, even though the SFRY was not yet dissolved, there was still no consideration that
the declarations of independence might be unlawful under the "principles of public
international law" being applied by the Commission. Instead there was an implicit
acceptance by the Commission that there existed an ongoing continuum of facts that had to
develop in order, eventually, to resolve issues of statehood.
8.37. The practice of States in assessing the declarations of independence in the
early 1990s by the Republics of the former Yugoslavia confirms the overall proposition
that general international law does not prohibit the issuance of a declaration of
independence. Kosovo's Declaration of Independence represents the final stage in this
series of declarations of independence by the constituent units of the SFRY. As discussed
in Chapter III, Kosovo's status under the 1974 Constitution of the SFRY was one in which
Kosovo as a Federal unit had the same fundamental governance rights as the several
republics-such as the ability to veto constitutional amendments, the right for its territory
not to be altered without its consent, the right to be represented in the SFRY Assembly,
and the right to have a member on and preside over the Federal Presidency on a rotating
basis. The extraordinary events from 1988 onward led those Republics to declare
independence, just as those events in conjunction with the catastrophe of 1998-1999 and its
aftermath ultimately led Kosovo to declare independence as well. In none of these
instances was the declaration of independence an act the legality of which was regulated by
international law. International law provided a framework for considering whether certain
factual conditions were present for the creation of a State, and provided certain important
principles relating to democracy, rule of law, and human rights that guided other States in
recognizing the new entities, but international law was not seen as specifically addressing
the legality of the declarations of independence. Such practice confirms that, in the matter
now before this Court, Kosovo' s Declaration of Independence did not contravene
international law.
493Conference of Yugoslavia, Arbitration Commission, Opinion No. 1, 29 November 1991, para. 2 (a)
[DossierNo. 233].
494Ibid., para. 3.
-156- III. The Court Need Not Reach the Issue of the Right of Self-Determination
in this Proceeding
8.38. The Court is not obliged to reach the issue of whether the Declaration of
Independence by the representatives of the people of Kosovo reflected an exercise of the
intemationally-protected right of self-determination, for there is no need to determine
whether international law authorized Kosovo to seek independence.
8.39. The right of self-determination has been articulated in various United Nations
495
resolutions and human rights treaties . In its jurisprudence, this Court has acknowledged
the existence of a right of self-determination 496 , including in situations unrelated to
decolonization 497 . Other international bodies have also acknowledged the existence of
498
such a right in appropriate circumstances . None of these sources views a declaration of
independence asperse a violation of international law.
8.40. While the exact contours of any right of self-determination have not been
articulated by this Court, the authorities noted above may be read as identifying two key
components that permit the exercise of the right: the existence of a "people"; and the
demonstrated inability of that people to be protected within a particular State, given prior
abuses and oppression by that State's government. The people of Kosovo are distinct,
being a group of which 90 percent are Kosovo Albanians, who speak the Albanian
495 See, e.g., General Assembly resolution 2625 (1970), "Declaration on Principles of International Law
concerning Friendly Relations and Co-operation among States in accordance with the Charter of the
United Nations" (principle of equal rights and self-determination of ail peoples) [Dossier No. 226];
International Covenant on Civil and Political Rights, 1966, Article 1 (1) [Dossier No. 211]; International
Covenant on Economie, Social and Cultural Rights, 1966, Article 1 (1) [Dossier No. 212].
496 See Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West
Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, J.C.J Reports 1971,
p. 31; Western Sahara, Advisory Opinion, I.C.J. Reports 1975, pp. 31-35; East Timor (Portugal v.
Australia), Judgment, I.C.J Reports 1995, p. 102, para. 29.
497
Legat Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory
Opinion, I.C.J Reports 2004, pp. 182-183, para. 118; see also Separate Opinion of Judge Higgins, ibid.,
p. 214, para. 29 (referring to the "substantial body of doctrine and practice on 'self-determination beyond
colonialism' .")
498 See, e.g., Report of the International Committee of Jurists upon the Legal Aspects of the Aaland Islands
Question, League of Nations, O.J. Spec. Supp. 3, p. 5 (1920); African Commission on Human and
Peoples' Rights, Communication 75/92, Katangese Peoples' Congress v. Zaire, para. 26 (1995);
Secession ofQuebec, [1998] 2 S.C.R. 217 (Can.), paras. 122, 126, 133, 134 and 138 (finding a right of
"external self-determination" in situations "where a definable group is denied meaningful access to
government to pursue their political, economic, social, and cultural development.")
-157- language, and who mostly share a Muslim religious identity. The Security Council itself
has referred to the "people of Kosovo" 499. Further, the prior infliction of massive human
rights abuses and crimes against humanity by the Serbian authorities upon the people of
Kosovo, are well-known and well-documented, as demonstrated by the February 2009
500
ICTY Judgment in Milutinovié et al. , and have been condemned by the General
501 502 503
Assembly , the Security Council , and many other international bodies . The
continued denial by Serbia of representative government to Kosovo was recently
demonstrated by the failure of Serbia to invite Kosovo-Albanian representatives to the
drafting of the 2006 Constitution of Serbia, nor to give them a chance to express
themselves upon it (only Kosovo Serbs were allowed to participate in the referendum). In
these circumstances there can be no doubt that the people of Kosovo were entitled to the
right of self-determination.
8.41. Yet, as indicated above, to answer the General Assembly's question, it is
sufficient for the Court to confirm that international law does not prohibit the issuance of a
declaration of independence, and instead leaves the emergence of statehood to certain
factual developments. Consequently, the General Assembly's question may be answered
by finding that Kosovo's Declaration did not contravene international law, without passing
upon whether the people of Kosovo were authorized by international law to exercise a right
of self-determination by seeking independence.
IV. Kosovo's Ability to Exercise Inter-State Relations Is Now Part of aPolitical
Process of Recognition and Membership in International Organizations,
a Process to Which the Court Has Previously Deferred
8.42. The Declaration of lndependence of 17February 2008 is a fact that, standing
alone, is neither lawful nor unlawful under international law. As noted in Chapter VII
above, the Declaration and only the Declaration is the subject of the question addressed to
the Court. The political process of recognitions and other developments since the
499Security Council resolution 1244 (1999), para. 10 [Dossier No. 34].
500See paras. 3.29-3.37 and paras. 3.47-3.60 above.
501
See, e.g., General Assembly resolutions 49/204, 23 December 1994, and 50/190, 22 December 1995.
502
See, e.g., Security Council resolutions 1160 (1998) [Dossier No. 9] and 1199 (1998) [Dossier No. 17).
503
See paras. 3.34, 3.55-3.60 above.
-158-Declaration, outlined in Chapter II above, are not before the Court in these proceedings.
States individually and through international organizations are now in the process of
deciding what further legal effect to give to Kosovo's claim to statehood. This Court has
previously extended considerable deference to such processes, seeing them as political
ones that are left by international law to the individual judgment of States and international
organizations, not one that calls for judicial intervention. Thus, in the Court's Advisory
Opinion on Admission of States, the Court spoke of the Charter entrusting to the political
organs the ability to make judgments on matters of admission, subject to the conditions
504
laid down in the Charter .
8.43. Indeed, even in the context of declarations of independence in the Balkans, the
Court has previously stated that the political decision of admitting a State to membership in
the United Nations in essence cures any possible prior defects in the declaration. In
Section II (C) above 505, it was noted that in 1995 the FRY argued before this Court that
Bosnia and Herzegovina had not obtained its independence in conformity with an
"imperative rule of international law" - the "principle of equal rights and self
determination of peoples" - all for the purpose of establishing that Bosnia and
Herzegovina was not qualified to become a party to the Genocide Convention 506. The
Court considered the FRY's position, but then found that since Bosnia and Herzegovina
had been admitted to the United Nations, "the circumstances of its accession to
507
independence are of little consequence" . This finding is consistent with the views of the
Supreme Court of Canada, which stated that a unilateral secession, even if it were regarded
8
as illegal, could be successful if recognized by the international community5° •
8.44. In sum, rather than viewing a declaration of independence as a single moment
of either legality or illegality, the Court has allowed subsequent political processes to
504
Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter),
Advisory Opinion, J.C.J. Reports 1948, p. 57.
505
See para. 8.29.
506 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Yugoslavia), Preliminary Objections of the Federal Republic of Yugoslavia, June 1995,
pp. 4, 81-82, 89 and 103-116.
507
1.C.J. Reports 1996, p. 6Il, para. 19.
508Secession ofQuebec, [1998] 2 S.C.R. 217 (Can.), para. 141,reprinted in J.L.M, vol. 37, 1998, p. 1340.
-159-unfold, in which States and international organizations investigate, assess, and react to
factual daims of statehood, and thereby through those processes determine the long-term
legal effects of such a declaration. The Court should follow the same approach here.
-160- CHAPTERIX
THE DECLARATION OF INDEPENDENCE DID NOT CONTRAVENE
SECURITY COUNCIL RESOLUTION 1244 (1999)
9.01. In vanous public statements, the Govemment of Serbia has asserted that
the Declaration of Independence of 17February 2008 by the democratically elected
representatives of Kosovo contravened Security Council resolution 1244 (1999) of
10June 1999. Yet there is no language within either the preamble or the operative
paragraphs of resolution 1244 that prohibits the issuance of such a declaration; rather, the
resolution envisages the unfolding of a political process in which either Kosovo's
independence or autonomy within Serbia might result.
9.02. That resolution 1244 (1999) did not prohibit the issuance of a declaration of
independence is understandable given that the Security Council, in exercising its
509
Chapter VII powers, normally issues resolutions that impose obligations upon States .
On some occasions, the Security Council has tumed its attention to the conduct of persons
or non-state entities, but it always does so in express and clear terms, and even then, as a
legal matter, the resolution imposes obligations not directly upon the person or entity, but
upon States to take steps against or impose sanctions upon those concemed 51.
9.03. The Court need look no further than the Security Council's practice with
respect to the Balkans in the 1990s to see that resolution 1244 (1999) did not address itself
to, let alone prohibit, the issuance of a declaration of independence. In 1992, the Security
Council issued a decision in the context of Bosnia and Herzegovina in which it directly and
expressly addressed the possibility of the issuance of a declaration of independence that
would promote an independent state of Republika Srpska. Specifically, Security Council
resolution 787 (1992) provided that the Security Council "strongly reaffirms its call on all
509
See United Nations Charter, Article 25 ("The Members of the United Nations agree to accept and carry
out the decisions of the Security Council in accordance with the present Charter.") (emphasis added).
By way of contrast, European Community law provides for a "decision" (defined in Article 249 EC) as a
means by which Community institutions directly bind the particular addressee, which can include an
individual.
510See, e.g., Security Council resolutions 1373 (2001), 28 September 2001, and 1540 (2004), 28 April 2004.
- 161-parties and others concerned to respect strictly the territorial integrity of the Republic
of Bosnia and Herzegovina, and affirms that any entities unilaterally declared or
arrangements imposed in contravention thereof will not be accepted' 511• Even in this
context, the Security Council did not assume the power of rendering such a declaration
unlawful but, rather, simply indicated that the Security Council would not accept such
an act.
9.04. The Security Council adopted no such language just seven years later,
m resolution 1244 (1999), even though resolution 787 (1992) was well known to the
members of the Council, especially in the context of state formation in the Balkans.
Resolution 1244 makes no reference of any kind to the possibility of a "unilateral
declaration" by an "entity" within the Federal Republic of Yugoslavia (FRY), even though
the hope for independence by the leaders and people of Kosovo would have been well
known to Council members. Rad the Council intended to declare unacceptable a Kosovo
declaration of independence, or the issuance of such a declaration without FRY,
Serbian, or Security Council consent, the Council was fully capable of saying as much.
Yet it did not.
9.05. Drawing upon the factual background set forth in Chapters IV and V,
this Chapter explains that, rather than prohibit the issuance of a declaration of
independence, resolution 1244 (1999) established a framework that included the possibility
of a declaration of independence occurring. The resolution accorded very broad powers to
the United Nations Secretary-General and his Special Representative (SRSG) to establish
an United Nations interim administration in Kosovo, so as to foster extensive Kosovo self
governance without FRY or Serbian military, police or other interference. Moreover, the
resolution accorded to the Secretary-General and his representatives broad power to pursue
political negotiations toward a final settlement (and to determine the pace and duration of
those negotiations), without in any fashion predetermining the outcome of that settlement
or requiring that the settlement be approved by the FRY, by Serbia, or by the Security
Council itself (Section 1). Those negotiations then culminated with a determination
by the SRSG, endorsed by the Secretary-General, that the "potential to produce any
mutually agreeable outcome on Kosovo's status is exhausted" and that "the only viable
511Security Council resolution 787 (1992), 16November 1992, para. 3 (emphasis added).
-162-option for Kosovo is independence" (Section II). Thereafter, the democratically elected
representatives of the people of Kosovo declared independence, a step that was
not declared null and void by the SRSG, though he had previously taken steps to avert
moves by Kosovo toward independence (Section 111). Though Serbia at times points to
resolution 1244's preambular reference to "sovereignty and territorial integrity" as a basis
for finding a violation of international law, that non-binding clause on its face and in
context cannot be construed as prohibiting the issuance of a declaration of independence
(Section IV). All told, given the terms of resolution 1244, the process that unfolded based
on those terms, and the reaction of the SRSG after the issuance of Kosovo' s Declaration of
Independence, there is no basis for concluding that the February 2008 Declaration
contravened resolution 1244.
I. Security Council Resolution 1244 Did Not Dictate the Terms of the Final
Political Settlement, Nor Accord the FRY or Serbia a Veto
9.06. Resolution 1244 established an interim administration in Kosovo to promote a
transition to a final status, and launched a political process for resolving the Kosovo crisis,
one likely outcome of which was Kosovo's independence. As such, the resolution was
crafted to create conditions of interim stability in which Kosovo institutions could emerge,
and could lead to a final political outcome, but not to dictate as a legal matter what that
outcome should be. Four key elements of the resolution clarify its purpose.
9.07. First, the resolution identified the FRY and especially Serbia as a threat to the
people of Kosovo. The preamble of resolution 1244 recalls earlier Security Council
resolutions in which the Council had condemned "the use of excessive force by Serbian
police forces against civilians and peaceful demonstrators in Kosovo", expressed grave
concem at "the excessive and indiscriminate use of force by Serbian security forces and the
Yugoslav army which have resulted in numerous civilian casualties and, according to the
estimate of the Security Council, the displacement of over 230,000 persons from their
homes", and expressed deep concem at the closure by FRY authorities of independent
media outlets 512. Resolution 1244 itself then noted in its preamble the "grave humanitarian
512See Security Council resolution 1160 (1998), preamble [Dossier No. 9]; resolution 1199 (1998), preamble
[Dossier No. 17]; and resolution 1203 (1998), preamble [Dossier No. 20]. For further discussion of these
resolutions, see para. 3.54 above.
-163-situation" in Kosovo and condemned "all acts of violence against the Kosovo population".
In the operative part of the resolution, the Council demanded "that the Federal Republic of
Yugoslavia put an immediate and verifiable end to violence and repression in
Kosovo ..." 513.
9.08. Second, the resolution incorporated general principles to guide an interim
administration of Kosovo. Paragraph 1 of the resolution provides that a "political solution
shall be based on the general principles" set forth in annex 1 (statement of the G-8 Foreign
Ministers adopted at the Petersberg Centre on 6 May 1999) and annex 2 (the list of
principles agreed by the Serbian Parliament and Belgrade Government on 3 June 1999,
known as the "Kosovo Peace Accords"). Those principles envisaged an "interim
administration for Kosovo" designed to permit a retum to "peaceful and normal life for all
inhabitants in Kosovo", but did not indicate the terms of a final political resolution 514.
Under this period of interim administration, Kosovo would enjoy substantial self
govemment within the FRY, but without prejudice to whether a final political solution
would continue that status or result in Kosovo as an independent State. Consistent with the
reference to those principles, the Security Council in paragraph 10 of the resolution
authorized the Secretary-General to establish an international civil presence to provide an
"interim administration for Kosovo under which the people of Kosovo can enjoy
substantial autonomy" within the FRY, a presence that commenced in June 1999, as
discussed in detail in Chapter IV above.
9.09. Third, the resolution denied to the FRY and Serbia governmental authority in
Kosovo during the interim period. In paragraph 3 of the resolution, the Council demanded
the "complete verifiable phased withdrawal from Kosovo of all military, police and
513Security Council resolution 1244(1999), preamble and para. 3 [Dossier No. 34].
514
See, e.g., A. Zimmerman and C. Stahn, "Yugoslav Territory, United Nations Trusteeship or Sovereign
State? Reflections on the Current and Future Legal Status of Kosovo", Nordic Journal of International
Law, vol. 70, 2001, pp. 452-453 ("it is a common feature of the G-8 statement, the Kosovo Peace Accords
and the Rambouillet Accords that they only refer to the conclusion of 'an interim agreement' between the
FRY and the international community leaving room for a variety of solutions conceming Kosovo's final
status."); W. Benedek, "Implications of the Independence of Kosovo for International Law", in
International Law between Universalism and Fragmentation: Festschrift in Honour of Gerhard Hafner
(2008), p. 394 (in resolution 1244, "the final status was not pre-determined in any way. In particular,
Resolution 1244 did not say that Kosovo had to remain under Serb sovereignty.")
-164- 515
paramilitary forces according to a rapid timetable" • As such, from June 1999 until the
Declaration of Independence of 17 February 2008, Serbian governrnental authority was
completely absent from Kosovo pending a political solution. Such an approach strongly
implies the possibility of an ultimate political solution in which Kosovo would obtain
independence, for resolution 1244 envisaged wide-ranging Kosovo legislative, executive
and judicial institutions being established, nourished, and protected by the United Nations
without any FRY or Serbian involvement.
9.10. Fourth, the resolution called for a "political process" to determine Kosovo's
final status, without specifying the modalities of that process or prejudicing its outcome.
Nor did it grant to the FRY or Serbia a veto over the terms of any settlement. Specifically,
the resolution states that the tasks of the international civil presence established under the
direction of the Secretary-General included "[f]acilitating a political process designed to
determine Kosovo's future status" and "[i]n a final stage, overseeing the transfer of
authority from Kosovo's provisional institutions to institutions established under a political
settlement" 516. There was no legal requirement in either the resolution itself or its annexes
that at the end of the process, Kosovo authorities must refrain from issuing a declaration of
independence. Further, there was no legal requirement that Kosovo remain a part
of the FRY or of Serbia. Lastly, there was no legal requirement that the final political
settlement must be approved through any particular process, such as after obtaining the
consent of Serbia or further decision by the Security Council. While a further Security
Council decision was doubtless viewed as politically desirable, resolution 1244 (1999) did
not require any such decision. Indeed, the process and substance identified in the
resolution for guiding this process were consciously open-ended and identified as
' 1·. l" . 517
'po 1tica m nature .
515 While the resolution contemplated the possibility of a retum of "Yugoslav and Serbian personnel" for
activities such as clearing minefields (Security Council resolution 1244 (1999), annex 2, para. 6 [Dossier
No. 34]), full resumption of control in Kosovo by Yugoslav or Serbian military, police, or paramilitary
forces is nowhere mentioned or implicated in any part of the resolution.
516
Security Council resolution 1244 (1999), paras. 11 (e) and (f) [Dossier No. 34].
517 See, e.g., Zimmerman and Stahn, op. cit. (fn. 514), p. 451 ("Perhaps the most difficult problem that
remains to be solved is the question of the final status of Kosovo. Any discussion of this problem must
necessarily begin with an analysis of Security Council Resolution 1244. This Resolution, however, is
remarkable vague on this important issue.")
-165 9.11. By contrast, in the same time frame that resolution 1244 (1999) was adopted,
the Security Council adopted resolutions relating to Georgia that were quite explicit about
the need for a mutual agreement of the two parties to the conflict and about the essential
outcome expected in that agreement. In Security Council resolutions 1225 (1999) and
1255 (1999), which were adopted, respectively, five months before and one month after
resolution 1244, the Council underlined in the operative part of the resolutions the
"necessity for the parties to achieve an early and comprehensive political settlement, which
518
includes a settlement on the political status of Abkhazia within the State of Georgia ... " .
In resolution 1244, the same members of the Council did not specify that Kosovo and the
FRY must be parties to a final status settlement, nor indicate that the settlement should be
based upon a status of Kosovo within the State of the FRY.
9.12. Resolution 1244, however, contained an important component that did speak to
the process by which the final status would be determined - the resolution calls for
"[f]acilitating a political process designed to determine Kosovo' s future status, taking into
519
account the Rambouillet accords" . As discussed at paragraph 3.46 above, those accords
state that "[t]hree years after the entry into force of this Agreement, an international
meeting shall be convened to determine 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 this Agreement, and the Helsinki Final Act" 520. At a
minimum, this reference to the Rambouillet accords shows that resolution 1244 (1999)
did not envisage that Kosovo would necessarily remain a part of the FRY or Serbia in the
final settlement. Yet more importantly for the task of this Court, the reference to the
Rambouillet accords demonstrates that the final political settlement was to be driven by the
"will of the people". Indeed, even after the adoption of the resolution, the members
of Contact Group, including the Russian Federation, continued to regard as a key
521
principle that any settlement "be acceptable to the people of Kosovo" . Given that
the 17February 2008 Declaration of Independence, which was voted upon and signed by
518Security Council resolution 1225 (1999), 28 January 1999, para. 3; Security Council resolution 1255
(1999), 30 July 1999,para. 5.
519Security Council resolution 1244(1999), para. 11 (e) [Dossier No. 34].
520Rambouillet accords, Chapter 8, Article I, para. 3 (emphasis added), S/1999/648 [Dossier No. 30].
521
Contact Group Statement, London, 31 January 2006 (available on <http://www.unosek.org/docref/
fevrier/STATEMENT BY THE CONTACT GROUP ON THE FUTURE OF KOSOVO - Eng.pdf>).
-166-the democratically-elected representatives of Kosovo, was an expression of "the will of the
people", the Declaration was entirely consistent with the terms of resolution 1244, not a
contravention thereof.
9.13. Further, the reference to the Rambouillet accords is significant because of
what those accords do not say. The negotiating process that preceded the Rambouillet
Conference was conducted under the leadership of US Ambassador Christopher Hill.
The terms of Hill' s proposals provide insight into the meaning of the Rambouillet accords.
At the outset of the Hill negotiations, direct negotiations with Milosevié resulted in
Belgrade agreeing on 2 September 1998 to pursuit of
"an agreement on the basis of which it would be possible to establish [an] adequate
level of self-govemance, which presumes equality of all citizens and national
communities living in Kosovo and Metohija. Being committed to mutual
understanding and tolerance, the participants of the dialogue, i.e., the state delegation
as well as representatives of all national communities living in Kosovo and Metohija,
should express their readiness to make [an] assessment after a certain period, e.g.,
three to five years, of the implementation of the achieved agreement and to achieve
522
improvement, about which mutual agreement would be reached."
9.14. This statement began the process of viewing the solution to the Kosovo crisis
as two-step in nature: an interim agreement with considerable detail about self-governance
in Kosovo and protections for minorities, to be followed at a later time by a second stage at
which a final resolution of Kosovo's status could be achieved. Ambassador Hill's first
523
draft Agreement for a Settlement of the Crisis in Kosovo on 1 October 1998 , second
draft on 1November 1998 524,and third draft on 2 December 1998 525 all followed this basic
structure; their principal focus was on the details of the interim period. A particularly
salient feature of each of these drafts was a final clause stating: "In three years, the sides
will undertake a comprehensive assessment of the Agreement, with the aim of improving
its implementation and considering proposals by either side for additional steps, which will
526
require mutual agreement for adoption" . As such, it was anticipated in these drafts that
522 Reprinted in W. Petritsch, K. Kaser and R. Pichler, Kosovo, Kosova (1999), p. 229.
523 First [Hill] Draft Agreement for a Settlement of the Crisis in Kosovo, 1 October 1998, in M. Weller, op.
cit. (fn. 165), p. 356.
524 Revised Hill Proposa!, 1November 1998, ibid., p. 362.
525
Third Hill Draft Proposa! for a Settlement of the Crisis in Kosovo, 2 December 1998, ibid., p. 376.
526
Emphasis added.
-167-the shift to a final resolution of the crisis would require "mutual" agreement of the FRY,
527
Serbia, and Kosovo. By the final Hill proposai on 27 January 1999 , this language
appears in brackets, and in the comparable language of the Rambouillet accords - "[t]hree
years after the entry into force of this Agreement, an international meeting shall be
convened to determine a mechanism for a final settlement for Kosovo, on the basis of the
will of the people, ..." - the language of "mutual consent", by which the FRY, Serbia and
indeed Kosovo would be able to veto a final resolution of Kosovo's status, has been
completely dropped. Hence, the reference in resolution 1244 to the Rambouillet accords
was important notjust for what those accords say, but for what they did not say.
II. Resolution 1244 Launched a Political Process that Concluded When
Negotiations were Exhausted, the Status Quo Was No Longer Sustainable, and the
only Viable Option for Kosovo Was Independence
9.15. Instead of indicating a particular legal outcome, resolution 1244 (1999) placed
extensive authority in the Secretary-General to oversee a process designed to determine
Kosovo's final status, a process that ultimately determined that the only viable option for
Kosovo was independence. As recounted in greater detail in Chapter V, in May 2005 the
Secretary-General first appointed Ambassador Kai Eide as his Special Envoy for the
Comprehensive Review of the Situation in Kosovo. Eide conducted a review and reported
528
in October 2005 that the situation in Kosovo was no longer sustainable , a conclusion
with which the Security Council agreed, stating:
"The Security Council agrees with Ambassador Eide's overall assessment that,
notwithstanding the challenges still facing Kosovo and the wider region, the time has
corne to move to the next phase of the political process. The Council therefore
supports the Secretary-General's intention to start a political process to determine
Kosovo's Future Status, as foreseen in Security Council resolution 1244 (1999). The
Council reaffirms the framework of the resolution, and welcomes the Secretary
General' s readiness to appoint a Special Envoy to lead the Future Status process." 529
527Final Hill Proposal, 27 January 1999, in M. Weller, op. cit. (fn. 165),p. 383.
528Letter dated 7 October 2005 from the Secretary-General addressed to the President of the Security
Council, S/2005/635, 7 October 2005, Annex [Dossier No. 193].
529Statement by the President of the Security Council, S/PRST/2005/51, 24 October 2005 [Dossier No. 195].
-168- 9.16. The Secretary-General then proposed the appointment of President Martti
Ahtisaari as his Special Envoy for negotiation of a final status for Kosovo, stating that the
"future status process will be carried out in the context of resolution 1244 (1999) and the
530
relevant presidential statements of the Security Counci1" • The President of the Security
Council welcomed this proposal 531,and in doing so provided to the Secretary-General "for
your reference" certain "guiding principles" for the final status talks that had been
developed by the Contact Group, including the Russian Federation. Those principles
called for the "launch" of a "process to determine the future status of Kosovo in
accordance with Security Council resolution 1244", a process that the Special Envoy
would "lead", and that "[o]nce the process has started, it cannot be blocked and must be
532
brought to a conclusion" . The Secretary-General then appointed President Ahtisaari,
conveying to him Terms of Reference stating that the Special Envoy would lead the
process for determining Kosovo's final status, and in the course of doing so "will consult
closely with inter alia Security Council members, Contact Group Members, relevant
regional organizations, relevant regional actors, and other key players" 533• Further, the
Terms of Reference indicated that the "pace and duration" of the process "will be
determined by the Special Envoy on the basis of consultations with the Secretary-General,
533
taking into account the cooperation of the parties and the situation on the ground" • Most
importantly, the Terms of Reference stated that the process "should culminate in a political
settlement that determines the future status of Kosovo" 533• Nowhere in the Secretary
General's recommendation and appointment of the Special Envoy, or in his Terms of
Reference, is it stated that the final status could only be determined with the approval of
534
Serbia and Montenegro (now Serbia) or by a further decision of the Security Counci1 •
530 Letter dated 31 October from the Secretary-General addressed to the President of the Security Council,
S/2005/708, 10November 2005 [Dossier No. 196].
531 Letter dated 10 November 2005 from the President of the Security Council addressed to the Secretary
General, S/2005/709, 10November 2005 [Dossier No. 197].
532 Ibid., Annex. While those Contract Group principles welcomed an endorsement of a final decision on
status by the Security Council, it did not envisage the final decision itself being taken by the
Security Council.
533
Letter of Appointment, Annex [Dossier No. 198].
534
The Contact Group's Guiding Principles, transmitted to the Secretary-General by the President of the
Security Council solely for his "reference", also did not require a Security Council decision on final
status, although these guidelines did note the Contract Group's view that, as a political matter, the final
status decision reached outside the Council "should" be "endorsed" by the Council. The Council itself,
however, was silent on this issue, both in resolution 1244 (1999) and at the time of launching the
Ahtisaari process.
-169- 9.17. President Ahtisaari conducted extensive negotiations with all relevant parties,
culminating in 2007 when he determined: "It is my firm view that the negotiations'
potential to produce any mutually agreeable outcome on Kosovo' s status is exhausted.
535
No amount of additional talks, whatever the format, will overcome this impasse" .
Further:
"Upon careful consideration of Kosovo's recent history, the reality of Kosovo today
and taking into account the negotiations with the parties, I have corne to the
conclusion that the only viable option for Kosovo is independence, to be supervised
for an initial period by the international community." 536
To that end, he advanced a Comprehensive Proposa! for the Kosovo Status Settlement for
achieving Kosovo's independence (the Ahtisaari Plan) 537. After reviewing the report
and recommendation, the Secretary-General stated that "[h]aving taken into account
the developments in the process designed to determine Kosovo's future status, I fully
support both the recommendation made by my Special Envoy in his report on
Kosovo's future status and the Comprehensive Proposa! for the Kosovo Status Settlement".
Efforts thereafter to secure Serbian cooperation failed, notwithstanding extensive efforts
by the Security Council and through the European Union/United States/Russian
Federation Troïka.
9.18. Only then, in the face of the Secretary-General's acknowledgment that the
538
status quo could not be sustained and that independence was the only viable option, did
Kosovo almost a year later (and after further efforts by the Troïka) declare independence
on 17February 2008. As explained in Chapter VI, the authors of the declaration of
independence were not the Provisional Institutions of Self-Govemment (PISG) but, rather,
the democratically-elected representatives of Kosovo, expressing the will of the people of
Kosovo. As such, the authors of the Declaration were not even an entity subject to the
535Report of the Special Envoy of the Secretary-General on Kosovo's future status, S/2007/168,
26 March 2007, para. 3 [Dossier No. 203].
536Ibid., para. 5.
537Comprehensive Proposa! for the Kosovo Status Settlement, S/20071168/Add.l, 26 March 2007 [Dossier
No. 204].
538In addition to endorsing the President Ahtisaari's conclusion that the status quo was no longer
sustainable, the Secretary-General reported in September 2007 to the Council that "there is real risk of
progress beginning to umavel and of instability in Kosovo and the region" (Report of the Secretary
General on the United Nations Interim Administration Mission in Kosovo, S/2007/582 (2007),
28 September 2007, para. 29 [Dossier No. 82]).
-170-direction and control of UNMIK, and were not operating under the Constitutional
Framework enacted by UNMIK as part of the applicable law in Kosovo. Yet even if the
entity declaring independence were to be seen as one of the PISG, quod non, its conduct
was fully in accordance with the political process initiated under Security Council
resolution 1244 (1999).
9.19. In sum, when adopting resolution 1244 (1999), the Security Council called
upon the Secretary-General, directly and through his representatives, to facilitate a political
process for Kosovo's final status. The outcome of that political process was a
recommendation by the United Nations Special Envoy appointed by the Secretary-General
that independence was the only viable option. That recommendation provided for a
detailed settlement, one that accommodated the concerns expressed by Serbia during the
negotiations (e.g., Serbian demands for decentralization and for the protection of cultural
heritage). Given the acceptance by the Secretary-General that the status quo was
unsustainable, that further negotiations would be fruitless and that independence
was the only viable option, it is not the case that the Declaration of Independence voted
upon and signed by the democratically elected representatives of Kosovo contravened
resolution 1244. Rather, the Declaration was an obvious and necessary next step in the
process of achieving a final settlement of Kosovo' s status, one that flowed directly from
the conclusions by the very authorities (the Secretary-General and his Special Envoy)
charged by the Security Council with leading the final status process.
III. Kosovo's Declaration of lndependence Was Not Declared Null and Void, or
Without Legal Effect, by the Secretary-General's Special Representative, the
Authorized Person Responsible for Monitoring Implementation of Resolution 1244
9.20. Resolution 1244 (1999) called upon the Secretary-General to appoint, m
consultation with the Security Council, "a Special Representative to control the
implementation of the international civil presence ... "539. As recounted in Chapter V, the
SRSG was responsible for overseeing the United Nations Mission in Kosovo (UNMIK).
Further, resolution 1244 stated that the main responsibilities of the international civil
presence included "in a final stage, overseeing the transfer of authority from Kosovo's
539Security Council resolution 1244 (1999), para. 6 [Dossier No. 34].
- 171- provisional institutions to institutions established under a political settlement" 540 . In
pursuance of this mandate, the SRSG has promulgated a wide range of regulations as
applicable law in Kosovo, allowing for UNMIK's administration of Kosovo, including its
powers and competencies, and the means by which authority would be transferred to
541
Kosovo legislative, executive, andjudicial institutions •
9.21. On 15May 2001, the SRSG promulgated a regulation establishing the
Constitutional Framework for Provisional Self-Government "for the purposes of
developing meaningful self-government in Kosovo pending a final settlement, and
establishing provisional institutions of self-government in the legislative, executive and
judicial fields through the participation of the people of Kosovo in free and fair
542 543
elections" • Based on this regulation, the PISG were established . As is made clear in
the preamble to the Constitutional Framework, the PISG would be given responsibilities
"within the limits defined by UNSCR 1244 (1999)" and "shall work constructively towards
ensuring conditions for a peaceful and normal life for all inhabitants of Kosovo, with a
view to facilitating the determination of Kosovo' s future status through a process at an
appropriate future stage which shall, in accordance with UNSCR 1244 (1999), take full
544
account of all relevant factors including the will of the people" • Moreover, the SRSG
would supervise this transfer of authority to ensure consistency with resolution 1244; the
preamble to the Constitutional Framework stated "that the exercise of the responsibilities
of the Provisional Institutions of Self-Government in Kosovo shall not in any way
affect or diminish the ultimate authority of the SRSG for the implementation of
UNSCR 1244 (1999)" 545.
9.22. In its operative provisions, the Constitutional Framework stated that the SRSG
had the exclusive power to dissolve the Kosovo Assembly "in circumstances where the
Provisional Institutions of Self-Government are deemed to act in a manner which is not in
540Security Council resolution 1244(1999), para. 11 (f) [Dossier No. 34].
541For a compendium of UNMIK regulations, see Dossier Nos. 138-167. For a discussion of selected
regulations, see paras. 4.23-4.46 above.
542UNMIK Regulation No. 2001/9, 15May 2001, preamble [Dossier No. 156].
543
Constitutional Framework, para. 1.5[Dossier No. 156].
544
Ibid., preamble; see also ibid., Chapter 2 (a).
545
Ibid., preamble.
-172-conformity with UNSCR 1244 (1999), or in the exercise of the SRSG's responsibilities
546
under that Resolution" . Further, the Constitutional Framework reiterated that the SRSG
was empowered to oversee "the Provisional Institutions of Self-Government, its officiais
and its agencies" and to take "appropriate measures whenever their actions are inconsistent
with UNSCR 1244 (1999) or this Constitutional Framework" 547 . In his report to the
Security Council after promulgation of the Constitutional Framework, the Secretary
General stated that it contained "broad authority for my Special Representative to
intervene and correct any actions of the provisional institutions of self-government that are
inconsistent with Security Council resolution 1244 (1999), including the power to
veto Assembly legislation, where necessary" 548. Severa! members of the Council then
549
expressed support for the Constitutional Framework and the role of the SRSG .
9.23. As such, it would be expected that in implementing resolution 1244, the SRSG
would declare null and void acts by the PISG, including the Kosovo Assembly, that were
regarded as inconsistent with resolution 1244, in particular during the interim period but
also with respect to transition to a final status. Any mission deployed under the direction
of the Secretary-General is expected faithfully to execute the tasks assigned to it, in close
consultation with United Nations officiais in New York if important issues ofinterpretation
anse. As such, the SRSG would have been expected to annul the Declaration of
Independence of 17February 2008 if it had been regarded as breaching resolution 1244.
9.24. On several occasions, the SRSG did declare as having no legal effect acts by
550
the PISG that he regarded as inconsistent with resolution 1244 . Moreover, prior to the
546 Ibid., para. 8.1.
547
Constitutional Framework, Chapter 12 [Dossier No. 156].
548
Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo,
S/2001/565, 7 June 2001 [Dossier No. 49].
549
For example, speaking on behalf of the European Union, Sweden endorsed the Constitutional Framework
as"a landmark step in the implementation ofresolution 1244 ..." (Security Council, provisional verbatim
record, fifty-sixth year, 4335hmeeting, 22 June 2001, S/PV.4335, p. 21 [Dossier No. 99]). Similarly, a
Security Council mission to Kosovo commended the SRSG's action, noting that the Constitutional
Framework was "an important step in the implementation of resolution 1244" (Report of the Security
Council Mission on the implementation of Security Council resolution 1244 (1999), S/2001/600,
19June 2001, para. 30 [Dossier No. 50]).
550 See B. Knoll, "Kosovo's Endgame and its Wider Implications in Public International Law", Finnish
Yearbook of International Law, vol. 20, 2009 (forthcoming) ("In practice, it has not been uncommon for
[the SRSG] to intervene in the legislative process of the PISG and refuse to promulgate laws that, upon
advice from UN Headquarters in New York, were deemed to be in violation of the Constitutional
-173-launching of the Ahtisaari process, the SRSG took such action with respect to resolutions
by the Kosovo Assembly that he regarded as inconsistent with resolution 1244 because
they called for or implied Kosovo's independence. Thus, on 22 May 2002, the SRSG
expressed concems to the Assembly relating to a proposed resolution objecting a
FRY/Macedonia border agreement that purported to protect "the territorial integrity of
551
Kosovo" . When on 23 May, the Assembly nevertheless adopted the resolution, the
SRSG immediately declared the resolution null and void because in his view it exceeded
the powers of the Assembly under resolution 1244.
9.25. Similarly, in November 2002, the SRSG again became aware that the Kosovo
Assembly had drafted a resolution rejecting language contained in a draft Serbia and
552
Montenegro Constitution, which indicated that Kosovo was a part of Serbia . When, on
553
7 November, the Kosovo Assembly nevertheless adopted the resolution , the SRSG
declared that this unilateral statement "has no legal effect" 554. Clearly, at this point in the
interim period, the SRSG viewed acts oriented toward Kosovo independence as premature
under and therefore inconsistent with resolution 1244, and that a further step by the
Security Council, such as launching what would become the Ahtisaari final status process,
must first occur.
9.26. In February 2003, a draft "Declaration on Kosovo Independence" was prepared
within the Kosovo Assembly 555, but intervention by the SRSG precluded further action 556 •
Framework and thus Resolution 1244. Powers of intervention were also exercised through executive
decisions to set aside inter-ministerial agreements with other states as well as decisions of municipalities
and decisions of the local executive taken within the scope of their competence. ... Furthermore, the
SRSG has also nullified 'statements' and 'resolutions' of the Kosovo Assembly- political pronunciations
which would not have had any direct legal consequences within Kosovo's legal order - which he
considered to have been passed ultra vires.")
551
Letter dated 22 May 2002 from the Special Representative of the Secretary-General to the President of
the Assembly of Kosovo [Dossier No. 184].
552
Letter dated 6 November 2002 from the Special Representative of the Secretary-General to the President
of the Assembly of Kosovo [Dossier No. 185].
553Resolution of the Assembly of Kosovo, 7 November 2002 [Dossier No. 186].
554
Pronouncement by the Special Representative of the Secretary-General, 7 November 2002 [Dossier
No. 187].
555Declaration on Kosova - A Sovereign and Independent State, draft declaration by the Assembly of
Kosova, 3 February 2003 [Dossier No. 188].
556Letter dated 7 February 2003 from the Principal Deputy Special Representative of the Secretary-General
to the President of the Assembly of Kosovo [Dossier No. 189]. Leaders of the Assembly decided to keep
the matter under review (Common Declaration, Kosovo Assembly, 13February 2003 [Dossier No. 190]).
-174-Likewise, in November 2005, the Kosovo Assembly contemplated a declaration of
independence, but again the SRSG intervened and succeeded in having the matter held
back, indicating to the Assembly that the resolution would have been contrary to
557
resolution 1244 . At the same time, the SRSG found acceptable a modified version of
the resolution - entitled "Resolution on Reconfirmation of the Political Will of Kosova
558
People for Kosova an Independent and Sovereign State" - because it took the form of
guidelines for the Kosovo negotiating team that would participate in the Ahtisaari final
status talks 559. This shows already the beginnings of a shift in the SRSG' s understanding
of what types of action by the Kosovo Assembly were viewed as consistent with the
political process contemplated by resolution 1244.
9.27. By contrast with these earlier incidents, after completion of the Ahtisaari
process in 2007, which found that Kosovo's independence was the only feasible option,
and that maintaining the status quo was impossible, the SRSG issued no statement of any
kind setting aside or declaring null and void, or of no legal effect, the Declaration of
Independence of 17 February 2008. The SRSG was certainly aware that the Declaration
had been voted upon and signed by the democratically elected representatives of Kosovo
560
since he immediately informed and sought guidance from Secretary-General • Serbia
immediately asked the Secretary-General to take steps to have the declaration set aside
since it allegedly contravened resolution 1244. Specifically, Serbia requested:
"the Secretary-General, Mr. Ban Ki-Moon, to issue, in pursuance of the previous
decisions of the Security Council, including resolution 1244 (1999), a clear and
unequivocal instruction to his Special Representative for Kosovo, Joachim Rücker, to
use his powers within the shortest possible period of time and declare the unilateral
and illegal act of the secession of Kosovo from the Republic of Serbia null and void.
We also request that Special Representative Rücker dissolve the Kosovo Assembly,
because it declared independence contrary to Security Council resolution 1244 (1999).
557 See UNMIK Press Briefing, 16November 2005, pp. 4-5.
558Kosovo Assembly, Resolution "On Reconfirmation of Political Will of Kosova People for Kosova an
Independent and Sovereign State", 17November 2005 [Dossier No. 200].
559 Special Representative of the Secretary-General's Statement on the resolution passed by the Assembly of
Kosovo, UNMIK Press Release UNMIK/PR/1445, 17November 2005 [Dossier No. 199].
560 See Security Council, provisional verbatim record, sixty-third year, 5839 meeting, 18February 2008,
S/PV.5839, p. 2 [Dossier No. 119].
-175- The Special Representative has binding powers, and they have been used before.
561
I request that he use them again."
Yet, despite this request from Serbia, at no time did the Secretary-General take any steps to
instruct the SRSG to set aside or declare null and void, or of no legal effect, the
February 2008 Declaration of Independence. Instead, the Secretary-General noted in the
Security Council that "recent developments are likely to have significant operational
implications for UNMIK," and urged all parties to cooperate to ensure peace and stability
562
in the region . Nor did the Security Council, either by resolution or through a statement
of its President, take any steps to instruct the Secretary-General or his representative to set
aside the Declaration.
9.28. In sum, the issuance of the Declaration of Independence was fully consistent
with the political process that was contemplated by resolution 1244 (1999), launched
in 2005 with the appointment of President Ahtisaari, and concluded in 2007 with President
Ahtisaari's determination that further negotiations were fruitless and the only viable option
was independence for Kosovo. Further, given that the declaration was not even an act of
the PISG but, rather, a constituent act of the people of Kosovo expressed through their
democratically elected representatives, the Declaration was not even capable of violating
resolution 1244. Finally, the fact that the SRSG did not take any action to declare the
Declaration as null and void, or otherwise inconsistent with resolution 1244 - especially in
light of prior occasions where acts of the Kosovo Assembly had been set aside by the
SRSG and in light of the SRSG's duty to faithfully execute his mandate under
resolution 1244 - demonstrates that the Declaration did not contravene resolution 1244 563.
561 th
Security Council, provisional verbatim record, sixty-third year, 5839 meeting, 18February 2008,
S/PV.5839, p. 5 [Dossier No. 119).
562 th
Security Council, provisional verbatim record, sixty-third year, 5839 meeting, 18 February 2008,
S/PV.5839, p. 3 [Dossier No. 119].
563
See, e.g., W. Benedek, op. cit. (fn. 514), p. 403 ("The Special Representative of the Secretary-General did
not use his powers to declare the Declaration of Independence null and void, which can only be
interpreted as acquiescence in or tacit consent given to the declaration. Again, legally relevant practice
has to be taken into account in a current interpretation of international instruments."); B. Knoll,. cit.
(fn. 550) ("Since the only authority that could have declared, within Kosovo's normative order, the
Declaration null and void remained silent on the issue--despite the formai request of Serbia to the UN
Secretary-General-, its omission of annulment can be interpreted as tacit consent to or, at a minimum,
acquiescence of, the course of action taken by Kosovo' s legislature. may therefore be presumed that the
Declaration was passed in line with Resolution 1244.")
-176-Rather, the implication and effect of the SRSG's not acting leads to the opposite
conclusion: the Declaration oflndependence was not in contravention ofresolution 1244.
IV. Resolution 1244's Preambular Reference to "Sovereignty and Territorial
Integrity" Cannot Be Construed as an Obligation Not to Declare Independence
9.29. In its arguments against Kosovo' s declaration of independence, Serbia has at
times noted the tenth preambular paragraph of resolution 1244, which "reaffirmed" the
commitment of all United Nations "Member States" to the "sovereignty and territorial
integrity" of the "Federal Republic of Yugoslavia", "as set out in the Helsinki Final Act
and Annex 2". According to Serbia, this reaffirmation of an existing commitment of
Member States to sovereignty and territorial integrity, in some manner imposed a legal
obligation upon the Kosovo authorities to refrain from issuing a declaration of
independence. For various reasons, Serbia is wrong.
9.30. First, aside from the fact that it is a preambular reference to a pre-existing
commitment of Member States (without any reference to other persons or entities), the
most distinguishing feature of this clause is the qualification "as set out in the Helsinki
Final Act and annex 2". Whatever meaning might otherwise be ascribed to a clause of this
type in any other Security Council resolution, this particular clause is unique in
its incorporation by reference to annex 2 to the resolution (the so-called Ahtisaari
Chemomyrdin principles). The issue of territorial integrity is addressed in annex 2 of the
resolution sole/y in the context of a principle that should apply during the period of the
564
"interim political framework", existing prior to the point of a final status . Annex 2
focuses on the conditions that must exist during the interim period and contains no
provisions setting the terms for a final status, including within the one principle in annex 2
(no. 8) that mentions territorial integrity. As such, and unlike resolutions that preceded
resolution 1244 and that addressed territorial integrity, the preambular reference in
resolution 1244 marked a clear shift in the position of the Security Council, one that now
564Security Council resolution 1244 (1999), Annex 2, Principle 8 [Dossier No. 34]. The one reference in
resolution 1244, Annex 1 (in the sixth principle) to "territorial integrity" is also focused exclusively on
the interim period. By contrast, in resolutions relating to Georgia adopted within the same time frame as
resolution 1244(1999), the Security Council adopted language that clearly associated with a
"comprehensive" political settlement "full respect for the sovereignty and territorial integrity of Georgia
within its intemationally recognized borders" (Security Council resolution 1225 (1999), para. 3; Security
Council resolution 1255 (1999), para. 5).
-177- contemplated the possibility that a final status for Kosovo would not entail maintenance
of FRY territorial borders. As such, it cannot be said that the preambular reference
precludes or prohibits the issuance of a declaration of independence. Similarly, the
reference's referral to the Helsinki Final Act 565 does not establish a prohibition on the
issuance of a declaration of independence. That non-binding instrument does not identify a
commitment, legal or political, to permanent, unchanging territorial boundaries 566.
9.31. Second, viewing this reference as a blanket protection of FRY (or Serbian)
"sovereignty and territorial integrity" is especially unwarranted, given that resolution 1244
(1999) represented an unprecedented intrusion into the FRY's sovereignty and territorial
integrity. In resolution 1244, the Security Council decided to shape actively the system of
political governance within the FRY, denying all FRY govemment authority over the
people of Kosovo and creating the conditions for establishing new government authorities
there. All the references in resolution 1244 to the need for Kosovo self-governance and the
extensive framework built toward that end, envisaged either very significant constitutional
change in the FRY or Kosovo independence. To assist in creating these conditions,
resolution 1244 allowed for the deployment of both military forces (KFOR) and civilian
personnel (UNMIK) into Kosovo, thus establishing a highly intrusive regime of
international administration. This included the power not just to administer Kosovo
internally, but to represent Kosovo externally, such as by UNMIK's conclusion during the
interim period of international agreements with Kosovo's neighbouring States in the field
of economic cooperation, as well as agreements with third parties on repatriation of
Kosovars 567. Immediately after the adoption of resolution 1244, many States and
international organizations opened liaison offices in Pristina. In doing so, they did not seek
FRY consent. Further, UNMIK Regulation No. 2000/42 granted those offices a status
functionally identical to that of embassies under the Vienna Convention on Diplomatie
Relations. Taken as a whole, resolution 1244 cannot be seen as directed at protecting the
sovereignty and territorial integrity of the FRY.
565Dossier No. 217.
566See para. 8.11 above.
567
Constitutional Framework, Chapter 8, para. 8.1, confirmed this extemal role by providing that the SRSG
remains exclusively responsible for "[c]oncluding agreements with states and international organizations
in ail matters within the scope ofUNSCR 1244 (1999)" [Dossier No. 156].
-178- 9.32. Third, any reference to sovereignty and territorial integrity of the Federal
Republic of Yugoslavia in 1999 is simply not speaking to the issue of the Declaration of
Independence by Kosovo from Serbia in 2008, for the preambular language is addressing a
State that underwent significant changes over the course of a decade. As the Court is well
aware, the name of "Federal Republic ofYugoslavia" was changed in 2003 to "Serbia and
Montenegro". When Serbia and Montenegro broke apart in 2006, the name of the
predecessor State was changed to "Republic of Serbia". More importantly, the territory
in 1999 of the State named the "Federal Republic of Yugoslavia" was no longer the same
territory of any State as of 2008 and, above all, its Federal nature, which had been so
important, had disappeared with the 2006 secession of Montenegro from Serbia. While
Montenegro may have agreed, for purposes of international rights and obligations, that
Serbia would be the continuation of Serbia and Montenegro, that alone is not sufficient
for imputing any commitment in 1999 of Member States (or of the Security Council) to
very different circumstances of February 2008. Even if the preambular language of
resolution 1244 were construed (incorrectly) as a binding commitment to maintain in 1999
a single State consisting of Serbia, Montenegro, and Kosovo, that is not the same as a
commitment in 2008 to maintain a single State consisting solely of Serbia and Kosovo.
Indeed, an expression of support for a territorial unit that would comprise Serbia,
Montenegro, and Kosovo as single State, with the political authorities of each able to
participate in, and balance each other over, the govemance of the FRY, is quite different
from supporting a territorial unit in which Montenegro and the federal structure are absent.
9.33. The preambular language itself supports the proposition above, g1ven its
reference to annex 2 to the resolution. That annex calls for the establishment during the
interim period of conditions "under which the people of Kosovo can enjoy substantial
autonomy within the Federal Republic of Yugoslavia" 56• The resolution did not call for
substantial autonomy for Kosovo within Serbia, thereby confirming that the resolution was
focused upon the status of the FRY as a whole and Kosovo's position as a federal unit
within the FRY. Given that the FRY radically changed in nature, it cannot be assumed that
commitments existing in 1999 stayed the same. Further, these changed circumstances
arose not just with respect to the FRY, but also from activities pursued by the United
568Security Council resolution 1244 (1999), annex 2, para. 5 (emphasis added) [Dossier No. 34]. The same
language appears in paragraph 10 of the resolution, also solely in the context of the interim period.
-179-Nations itself in Kosovo, which saw in the period after resolution 1244 a rapid movement
toward Kosovo self-government, without any Serbian involvement 569. There is simply no
basis for assuming that any position taken in 1999 with respect to the FRY remained the
same in 2008 with respect to Serbia, given the fundamentally changed circumstances that
arose from the FRY's fragmentation and the extensive UN-sponsored creation of
institutions of self-governance in Kosovo.
9.34. Finally, the context in which references of this sort arose in the Balkans during
the 1990s should be kept in mind, for they do not support the categorical position now
being pressed upon this Court by Serbia. For example, the 1992 Brioni Agreement
contained a similar reference to "territorial integrity" and to the Helsinki Final Act as
guiding the negotiations over the future status of Slovenia and Croatia. Yet the reference
there was not viewed as a basis for finding the declarations of Slovenia and Croatia
contrary to international law; indeed, those Republics ultimately emerged as States
notwithstanding the SFRY's resistance. Specifically, in the context of negotiations on
whether those declarations should or should not remain suspended, the Brioni Agreement
stated that
st
"negotiations should begin urgently, no later than August 1 1991, on all aspects of the
future of Yugoslavia without preconditions and on the basis of the principles of the
Helsinki Final Act and the Paris Charter for a new Europe (in particular respect for
Human Rights, including the rights of peoples self-determination in conformity with
the Charter of the United Nations and with the relevant norms of international law,
including these relating to territorial integrity of States" 570.
Notably, these references to the Helsinki Final Act, the Paris Charter, and "territorial
integrity" occur at a time when Slovenia and Croatia have already declared independence;
yet there is no indication in the Brioni Agreement, or in any of the discussions between
States at Brioni, that these international instruments or principles forbade such declarations
of independence, let alone any requirement that such declarations be terminated. Rather,
569See, e.g., W. Benedek, op. cit. (fn. 514), p. 403 ("the UN-led process of determination of the future status
of Kosovo has resulted in a clear recommendation: 'supervised independence.' Therefore, to go back to
the original text of Resolution 1244 to prove that Kosovo could only realize its right to self-determination
in the form of internai self-determination as part of Serbia, neglects the entire status process, conducted
under the aegis of the United Nations and the Contact Group. This is not to say that UNMIK deliberately
prepared Kosovo for separation from Serbia, but rather that fulfilling its mandate, including legal and
institutional reforms as well as provided for a democratic process, eventually had this effect.")
570
Brioni Agreement, 7 July 1991, in S. Trifunovska, op. cit. (fn. 471), p. 312.
-180-the Brioni Agreement calls for negotiations to move forward based on those principles
while allowing the two declarations of independence to remain inforce, albeit suspended
for a period of time.
9.35. As such, even at this early stage in the break-up of the SFRY, references to
principles existing in the Helsinki Final Act or relating to "territorial integrity" are not
regarded by any of the relevant actors as necessarily precluding a declaration of
independence. Instead, such principles were regarded as providing guideposts for
negotiations that might lead to independence or to a reconfigured SFRY, ones that
emphasized not just the importance of the stability of existing borders, but also the
importance of respecting human rights and other factors.
9.36. In sum, the tenth preambular paragraph of resolution 1244 - like all the other
provisions of the resolution - simply does not support the proposition that the Security
Council had prohibited a declaration of independence. Rather, by resolution 1244 the
Security Council established an interim administration of Kosovo for the duration of which
territorial borders would be retained, but also created the means for a political process that
would result in a final status for Kosovo that contemplated the possibility of a new and
independent State of Kosovo. That final status process was entrusted by the Security
Council to the Secretary-General and his Special Envoy, who ultimately concluded in 2007
that the status quo in Kosovo was no longer sustainable and that the only viable option was
for Kosovo to be an independent State. The democratically elected representatives of the
Kosovo people thereafter declared independence, an act that was fully consistent with the
process that unfolded based on resolution 1244 and the further decisions reached by the
Security Council, the Secretary-General and his special representatives. That declaration
was not declared null or void, or without legal effect, by the authority charged by the
Security Council and the Secretary-General with monitoring the implementation
of resolution 1244 in Kosovo, the SRSG. The SRSG had intervened prior to
the completion of the Ahtisaari process to set aside acts of the Assembly that he
considered inconsistent with resolution 1244. In the aftermath of the Declaration of
Independence of 17February 2008, however, he did not do so. For all these reasons,
the Declaration of Independence of 17 February 2008 cannot be regarded as having
contravened resolution 1244.
- 181- PART V
SUMMARY AND CONCLUSION CHAPTERX
SUMMARY
10.01. This concluding Chapter begins by drawing together key elements that
emerge from earlier chapters that help to illuminate the context in which the
representatives of the people of Kosovo signed the Declaration of Independence on
17February 2008 (Section 1). These elements include the following: the final status of
Kosovo was the last major issue related to the non-consensual dissolution of the Socialist
Federal Republic of Yugoslavia (SFRY); Kosovo's position within the former Yugoslavia
was for all practical purposes the same as that of the republics of the SFRY, until it was
unlawfully changed in 1989; by the end of 2007, the final status negotiations had reached
the end of the road and prolongation would have been highly destabilising, in Kosovo and
in the region; the aspiration of the people of Kosovo to independence was strong and of
long-standing, and was reinforced by the events of 1998-1999; today, Kosovo has been
recognized as a sovereign and independent State by a large section of the international
community; the commitments in the Declaration of Independence are being implemented
and honoured; and the future of Kosovo and other States in the region lies in Europe.
10.02. The Chapter then draws together the conclusions of the legal arguments set
out in Chapters VII, VIII and IX (Section II).
I. Key elements
Final Statusfor Kosovo was the Last Part of the Dissolution of the SFRY
10.03. Kosovo's Declaration of Independence needs to be seen in the context of the
non-consensual dissolution of the SFRY, which began in the early 1990s. The final status
of Kosovo was rightly described by the Troïka as "the last major issue related to
Yugoslavia's collapse" 571. Serbia's destruction ofKosovo's autonomy in 1989, as part of a
571Letter dated 10 December 2007 from the Secretary-General to the President of the Security Council,
S/2007/723, 10December 2007, Annex, para. 3 [Dossier No. 209]. The Contact Group had earlier spoken
of "the last major issue related to the break-up of Yugoslavia" (Contact Group Statement, New York,
20 September 2006 (available on <http://www.unosek.org/docref/20_-_CG _Ministerial_Statement_
-185-concerted effort to dominate the SFRY, was an important element in the chain of events
leading to Yugoslavia's collapse. The break-up of the Federation, which had consisted of
eight federal units, fundamentally undermined the basis for Kosovo's autonomy within
Serbia. Before the break-up, Kosovo had had a dual nature: it was a constituent unit of the
Federation (in all but name on an equal footing with the six republics), and it was an
autonomous province within Serbia. With the disintegration of the SFRY, the
constitutional safeguards could not be re-established. The unacceptability of any solution
other than independence was confirmed by the brutal way in which Serbia destroyed
Kosovo's autonomy in 1989, by the events of the 1990s, and by the terms of the 2006
Constitution of the Republic of Serbia.
Kosovo 's constitutional position under the SFRY Constitution of 1974, until it was
removed illegally, was in all but name identical to that of the six republics
10.04. As explained in Chapter III, under the 1974 Constitution of the SFRY,
Kosovo's status as an autonomous province accorded to it the same rights as the six
republics. As a constituent unit of the SFRY, like the republics, Kosovo was entitled to
appoint a member to the Federal Presidency, who, based on a rotation system, was able to
assume the office of Federal President. Kosovo was directly represented in the Federal
Assembly, and protected by a right of recourse to the Federal Constitutional Court when
disputes arose with the other Republics, including Serbia. There was no legal reason
(though in the early 1990s some may have considered there were reasons of policy) to treat
Kosovo any differently from other constituent units of the Federation.
Thepeople of Kosovo have long made clear their overwhelming desirefor independence
10.05. The desire of the people of Kosovo for an independent State oftheir own goes
572
back for many years • This desire was clear to all the participants in the 1999
Rambouillet Conference, which is why the "will of the people" clause appears in the
New _York.pdt>). And President Ahtisaari, in his report, referred to "this last episode in the dissolution
of the former Yugoslavia" (Report of the Special Envoy of the Secretary-General on Kosovo's future
status, S/2007/168, 26 March 2007, Annex, para. 16 [Dossier No. 203]).
572As was acknowledged by the President of Serbia in the Security Council on 23 March 2009 (S/PV.6097,
p. 25).
-186-Rambouillet accords as the key element in resolving Kosovo' s final status. It was clear
immediately after the 1999 conflict when resolution 1244 (1999) expressly referred to the
Rambouillet accords, was clear throughout the period of UNMIK administration, and was
fully discussed and considered throughout the final status negotiations. Key participants in
those negotiations, such as the Contact Group, repeatedly said that the final status must be
acceptable to the people of Kosovo.
The crimes against humanity and human right abuses suffered by the people of Kosovo
in 1998/1999 reiriforced their demandsfor independence, and their unwillingness to return
to Serbia
10.06. By 1999, as a result of widespread and large-scale crimes against humanity
and war crimes, over half of the Kosovo Albanians had been driven from their homes or
fled the onslaught from Serbia. They had suffered human rights abuses in 1912, in the
1920s and 1930s, between 1945 and 1966, and even worse throughout the 1980s and
1990s, culminating in the 1998-1999 ethnie cleansing, and the massive refugee and IDP
crisis. All this suffering was the result of a deliberate policy of the authorities of Serbia, as
was confirrned by the Trial Chamber in its 26 February 2009 judgment in Milutinovié et al.
Final status negotiations had reached an impasse by the end of 2007; prolongation would
have been highly destabilisingfor Kosovo and the region
10.07. The Minister for Foreign Affairs of the Republic of Serbia, Mr. Vuk Jeremié,
has repeatedly and publicly suggested that the outcome of the present advisory proceedings
573
should be a resumption of final status negotiations between Kosovo and Serbia . Yet it
is wholly unrealistic to suggest that final status negotiations should be resumed.
By December 2007, at the latest, these negotiations had reached a dead-end, and it was
573
By way of example, the following is taken from an interview given by Mr. Jeremié toThe Economist of
16 January 2009: "We believe that, after the court states its opinion in a manner that we expect, it will be
clear that the path which institutions in Pristina chose on February 17th cannot bring a sustainable
solution. With the verdict from the International Court of Justice, which stipulates that the unilateral
proclamation of independence was in disproportion to the international law, we expect that Kosovo will
not be recognized by any other country and that it will be relatively simple to prevent that the so-called
state of Kosovo joining any international institutions. Kosovo will find itself in a semi-defined state, "not
here or there", and by that it will be forced to return to the negotiation table with Belgrade, in order to
find a compromise, which both Belgrade and Pristina will accept and which will be confirmed at the UN
Security Council."
-187-clear that their continuation would serve no purpose. This was the considered position of
those most closely involved in the negotiations, including Special Envoy Ahtisaari 574,the
575 576
Troika , and the United Nations Secretary-General . It was also the considered view of
many in the international community that to prolong the uncertainty caused by the
protracted negotiations would be destabilising within Kosovo, given the expectations of the
people of Kosovo, and within the region 577. There can be no obligation to negotiate in
such circumstances 578. More than one year later, there can be no question of resuming
final status negotiations. This would be pointless and destabilizing, and doomed to failure.
The Declaration of Independence of 17 February 2008, the adoption, entry into force and
implementation of the Constitution of the Republic of Kosovo, and above all the will of the
people of Kosovo make clear that Kosovo's independence is irreversible.
10.08. In any event, in these proceedings for an advisory opinion, it would not be
appropriate for the Court to call upon the two States to resume final status negotiations. In
fact, were the issue before the Court to be seen as essentially a bilateral dispute over which
the Court does not have contentious jurisdiction, then the Court should decline to address
the matter through these advisory proceedings.
10.09. The Republic of Kosovo hereby reaffirms its wish for good neighbourly
relations with the Republic of Serbia. It repeats that it would welcome talks with the
Republic of Serbia on practical issues of mutual concem, such as those foreseen in
the Ahtisaari Plan. Such talks would be normal between neighbouring sovereign and
independent States but must be held on an equal basis, between two sovereign States. On
the other hand, the Republic of Kosovo is not willing to enter into negotiations that could
bring into question its status as a sovereign and independent State. Given the past history,
status issues cannot be papered over by formulae such as "sovereignty umbrella" or "status
neutrality".
574
See para. 5.22 above.
575
See para. 5.33 above.
576 See para. 5.34 above.
577See paras. 5.11-5.14 above.
578It will, for example, be recalled that the Badinter Arbitration Commission did not suggest, despite
Serbia's insistence, that Slovenia, Croatia, Bosnia and Herzegovina, or Macedonia should negotiate their
independence with Serbia.
-188-Kosovo has been recognized as a sovereign and independent State by many States,
including almost ail States in the region
10.1O.Since 17 February 2008, the day on which the representatives of the people of
Kosovo voted upon and signed the Declaration of Independence, many States have
recognized Kosovo as a sovereign and independent State. Indeed, most European States
have recognized the Republic of Kosovo, including all of its immediate neighbours, with
the exception of Serbia. Within Europe, it is widely agreed that Kosovo's status as an
sovereign and independent State is an important factor for peace and security in the region.
10.11. Since the Declaration of Independence, many steps have been taken by
Kosovo to implement the commitments made to the international community regarding
protections for communities, rule of law, respect for international agreements, and
cooperation with international institutions. Importantly, these steps include the adoption
and entry into force of the Constitution of the Republic of Kosovo, with its strong
protections of human rights and the rights of communities and their members.
10.12. Kosovo has received much help from the international community, including
from many States that have not yet taken the step of recognising it. They thus make
important contributions to Kosovo's future, and clearly do not feel inhibited by the current
proceedings in this Court.
The situation of Kosovo entailed special characteristics that are unlikely to be replicated
in other cases
10.13. The emergence into statehood of the Republic of Kosovo occurred under
circumstances that are most unlikely to be replicated elsewhere. Kosovo is best seen not as
an example of secession, but as the final step in the process of a disintegrating Federation
(the former SFRY). Other former units of that Federation have become independent
States, and their independence is universally accepted. Within that Federation, Kosovo
had a dual status: it was a constituent unit of the Federation and a province within Serbia.
Kosovo's status within the Federation gave Kosovo important protections against unilateral
actions by Serbia. Those protections, however, could not survive the dissolution of
-189 the SFRY, as was amply demonstrated throughout the 1990s, culminating in Serbia's
devastating crimes against the Kosovo Albanian population in 1998 and 1999, 90 percent
of whom were forced from or fled their homes. The crimes against humanity and massive
human rights violations of the 1998-1999 resulted ultimately in the intervention of the
international community. Under Security Council resolution 1244 (1999), Serbia was
excluded from any role in the governance of Kosovo, replaced instead by UNMIK and
institutions established and nurtured by UNMIK beginning in 1999. The political process
on final status was led by the United Nations Secretary-General and his Special Envoy.
The process was based upon the will of the people. So it is understandable why any return
of Kosovo to Serbia would be wholly unacceptable.
The commonfuture for the States of the Western Balkans lies in Europe
10.14. In its Presidential statement of 26 November 2008, the Security Council
welcomed "the continuing efforts of the European Union to advance the European
perspective of the whole of the Western Balkans, thereby making a decisive contribution to
579
regional peace and stability" •
10.15. The common future for Kosovo and Serbia lies in eventual membership in the
European Union. As described in Chapter II, the European Commission is preparing a
study to examine and evaluate how Kosovo can progress towards integration in the
European Union. In the meantime, the development of good-neighbourly relations, as
is normal between neighbouring States 580,should proceed hand-in-hand with progress
towards full integration within European institutions, including the EU and the Council of
Europe. This is a positive prospect, one looking toward the future, not rooted in the past.
579Statement by the President of the Security Council, S/PRST/2008/44, 26 November 2008 [Dossier
No. 91].
5° Kosovo's proposai for a Treaty ofFriendship and Cooperation between Kosovo and Serbia was described
in Chapter V, para. 5.18, above.
-190- II. Summary of Kosovo's Legal Arguments
The question posed to the Court is narrow in scope, but does not indicate how an answer
would assist the General Assembly in its work, and consequently may not beproper
10.16. The question that has been putto the Court is narrow in scope, with a focus on
the issuance of a particular statement - a declaration of independence - by particular
persons on a particular day. Nevertheless, despite its brevity and specificity, there are
certain problems with the question.
10.17. First, the process by which the question was formulated, considered, and then
adopted provides no indication as to how the Court's opinion will assist the General
Assembly in its work. Rather, the purpose of the question appears to be part of a strategy
by Serbia to influence States in their political decision whether to recognize the Republic
of Kosovo. Yet in the course of exercising its advisory jurisdiction, the Court is not
charged with providing general legal advice on any question of international law to
whoever might solicit it; the Court is charged with providing advice to the political organs
of the United Nations and the specialized agencies on matters within their competence. To
the extent that answering this question is intended as a vehicle for giving legal advice to
Serbia, or to resolve a dispute between Serbia and Kosovo, or even to provide legal advice
to States considering whether to recognize Kosovo, that function is not properly to be
exercised in advisory proceedings.
The question asked to the Court is argumentative and prejudicial: it needs to be
approached in an objective manner
10.18. Second, because the question was sponsored by a single State that declined
to entertain any modifications, the question - brief as it is - contains prejudicial
and argumentative assumptions. The question is argumentative by characterizing the
Declaration of Independence as "unilateral", a term that at best is superfluous and at worst
intended as a synonym for "illegal". In fact, the Declaration was the end product of an
extensive multilateral process involving the Security Council, the Secretary-General, their
representatives, a massive deployment of multinational personnel to Kosovo for almost a
-191- decade frorn the United Nations, NATO, and other organizations, and painstaking efforts
by nurnerous States, groups of States and international organizations, including the
European Union, the Contact Group, and the Troika.
10.19. Further, the question incorrectly suggests that the Declaration was adopted by
the "Provisional Institutions of Self-Governrnent of Kosovo", when it was an act voted
upon and signed by the dernocratically elected representatives of the people of Kosovo,
acting in a rnanner wholly different frorn the PISG.
10.20. Finally, the question appears unjustifiably to assume that there are rules of
international law governing the issuance of declarations of independence, when in fact
general international law does not regulate such declarations.
There is no rule of international law prohibiting the issuance of a declaration of
independence
10.21. International law contains no prohibition on the issuance of declarations of
independence. Rather, the issuance of a declaration of independence is understood as a
factual event that, in cornbination with other events and factors over tirne, rnay or rnay not
result in the ernergence of a new State. Only at that point do those who forrned the new
State becorne exposed to rights and obligations cognizable under international law.
Nurnerous declarations of independence have been issued for over two hundred years,
often in circurnstances where a group is seeking to separate frorn a State without its
consent, without those declarations being regarded as violations of international law.
10.22. State practice in the context of the Balkans during the 1990s confirrns that
international law does not prohibit the issuance of a declaration of independence, even in
the face of a disapproving central govemrnent. Slovenia, Croatia, Bosnia and
Herzegovina, and Macedonia all declared independence in the face of opposition by the
SFRY, and yet other States (and this Court, with respect to Bosnia and Herzegovina) did
not view those declarations as contrary to international law. Rather, over tirne and in
conjunction with other factors, those States were ultirnately recognized and adrnitted to
rnernbership in international organizations.
-192- 10.23. Consequently, the Declaration of Independence of 17 February 2008 did not
contravene any applicable rule of international law and in that sense was "in accordance"
with intemational law. Given that intemational law contains no prohibition on the issuance
of a declaration of independence, the Court need not reach the issue of whether the
declaration of independence by the people of Kosovo reflected an exercise of the
intemationally-protected right of self-determination (though it clearly did), for there is no
need to determine whether intemational law bas authorized Kosovo to seek independence.
The Declaration did not contravene Security Council resolution 1244 (1999), which
envisaged a political process that included the possibility of Kosovo 's independence if it
was the "will of thepeople"
10.24. The Declaration of Independence of 17February 2008 also cannot be seen as
having contravened Security Council resolution 1244 (1999). Rather than prohibit the
issuance of a declaration of independence, resolution 1244 established a framework that
fully contemplated the possibility of Kosovo's emergence as an independent State. The
resolution accorded very broad powers to the United Nations Secretary-General and bis
Special Representative (SRSG) to establish a United Nations interim administration in
Kosovo, so as to foster Kosovo self-govemance without FRY or Serbian interference.
Moreover, the resolution accorded to the Secretary-General and bis representatives broad
power to pursue political negotiations toward a final settlement (and to determine the pace
and duration of those negotiations), without in any fashion predetermining the outcome of
that settlement or requiring that the settlement be approved by the FRY, by Serbia, or by
the Security Council itself.
10.25. On the issue of Kosovo's final status, the resolution called for "[f]acilitating a
political process designed to determine Kosovo's future status, taking into account the
Rambouillet accords". Those accords stated that the final settlement for Kosovo should be
achieved "on the basis of the will of the people", a reference that clearly did not require
that Kosovo remains a part of the FRY or Serbia. Yet more importantly for the work of
this Court, the reference to Rambouillet demonstrates that the final political settlement was
to be driven, in the first instance, by the "will of the people". While a further Security
Council decision was no doubt viewed as politically desirable, resolution 1244 did not
-193-require any such decision. Indeed, the process and substance identified in the resolution
for guiding this process were consciously open-ended and identified as "political" in
nature.
The political process envisaged by resolution 1244 (1999) ended in 2007 when the
authorized representatives of the United Nations determined that independence was the
only viable option
10.26. In 2005, the Secretary-General, after consulting the Security Council,
launched the political process for the determination of Kosovo's final status. The outcome
of that process was a determination by the United Nations Special Envoy appointed by the
Secretary-General, President Ahtisaari, that the "potential to produce any mutually
agreeable outcome on Kosovo's status is exhausted" 581 and that "the only viable option for
Kosovo is independence" 582. Thereafter, the democratically elected representatives of
Kosovo declared independence on behalf of the people of Kosovo. Given the acceptance
by the Secretary-General that further negotiations would be fruitless and that independence
was the only viable option, it cannot be said that a declaration of independence by the
democratically elected representatives of Kosovo contravened resolution 1244 (1999).
Rather, the declaration was an obvious and necessary next step in the process of achieving
a final settlement of Kosovo' s status, one that flowed directly from the conclusions by the
very persons (the Secretary-General and his Special Envoy) charged by the Security
Council with leading the final status process.
The Declaration was not declared unlawful by the SRSG, the United Nations official
authorized to monitor implementation of resolution 1244 (1999)
10.27. Under the mandate assigned to the SRSG by resolution 1244 (1999), as well
as the terms of the Constitutional Framework promulgated by the SRSG, it would be
expected that the SRSG would declare null and void any acts of the Kosovo Assembly that
were regarded as inconsistent with resolution 1244 (1999). Any United Nations mission
581
Report of the Special Envoy of the Secretary-General on Kosovo's future status, S/2007/168,
26 March 2007, para. 3 [DossierNo. 203].
582Ibid., para. 5.
-194-deployed under the direction of the Secretary-General is expected faithfully to execute the
tasks assigned to it, in close consultation with United Nations officiais in New York if
important issues of interpreting that mandate arise. As such, the SRSG would have been
expected to annul a declaration of independence if it was regarded as being contrary to
resolution 1244 (1999), just as he had taken steps at earlier stages against actions of that
nature prior to the completion of the Ahtisaari process. The fact that the SRSG did not do
so demonstrates that the Declaration did not contravene resolution 1244 (1999).
Resolution 1244'spreambular reference to "sovereignty and territorial integrity" cannot
be construed as an obligation not to declare independence
10.28. Though Serbia at times points to resolution 1244's preambular reference to
"sovereignty and territorial integrity" as a basis for finding a violation of international law,
that non-binding clause on its face and in context cannot be construed as prohibiting the
issuance of a declaration of independence by the democratically elected representatives of
Kosovo. While there are several reasons why this is the case, the most distinguishing
feature of that clause is the qualification "as set out in the Helsinki Final Act and annex 2".
Whatever meaning might otherwise be ascribed to a clause of this type in any other
Security Council resolution, this particular clause is unique in its incorporation by
reference of Annex 2, which addresses "territorial integrity" solely in the context of a
principle that should apply during the period of the "interim political framework", not with
respect to Kosovo's final status. Similarly, the reference in annex 2 and in paragraph 10 of
the resolution itself to Kosovo being "within the Federal Republic of Yugoslavia" was
expressly in the context of the interim period.
10.29. In short, given the terms of resolution 1244 (1999), the process that unfolded
based on those terms, and the reaction of the SRSG after the issuance of Kosovo's
declaration of independence, there is no basis for concluding that the February 2008
declaration contravened resolution 1244 (1999) or any other any applicable rule of
international law.
-195- CONCLUSION
For the reasons set out in this Written Contribution, the Republic of Kosovo
respectfully requests the Court, in the event that it deems it appropriate to respond to the
request for an advisory opinion contained in General Assembly resolution 63/3, to find that
the Declaration of Independence of 17February 2008 did not contravene any applicable
rule of international law.
Skender H)1seni
Minister of Foreign Affairs of the Republic of Kosovo
Representative of the Republic of Kosovo before the
Pristina, 17April 2009 International Court of Justice
-197- LISTOFMAPS
Map 1 THE REPUBLIC OF Kosovo ........................................................................
............ 12
Map 2 ETHNIC COMPOSITION OF Kosovo ........................................................................
14
-199ANNEXES CERTIFICATION
I hereby certify that the documents annexed to this Written Contribution are true
copies of and conform to the original documents and that the English and French
translations provided by the Republic of Kosovo are accurate.
Skender .}iyseni
Minister of Foreign Affairs of the Republic of Kosovo
Pristina, 17April 2009 Representative of the Republic of Kosovo before the
International Court of Justice
-203- Annex 1
DECLARATION OF INDEPENDENCE OF Kosovo
Photographie Reproduction, Albanian Original,
English and French Translations207209 Deklarata e Pavarësisë së Kosovës
Të mbledhur në mbledhje të jashtëzakonshme më 17 shkurt 2008, në kryeqytetin e
Kosovës, në Prishtinë,
Duke iu përgjigjur thirrjes së popullit për të ndërtuar një shoqëri që respekton dinjitetin
njerëzor dhe afirmon krenarinë dhe synimet e qytetarëve të saj,
Të zotuar për t'u përballur më trashëgiminë e dhembshme të së kaluarës së afért në frymë
të pajtimit dhe faljes,
Tëpërkushtuar ndaj mbrojtjes, promovimit dhe respektimit të diversitetit të popullit tonë,
Duke riafirmuar dëshirën tonë për t'u integruar plotësisht në familjen euroatlantike të
demokracive,
Duke vërejtur se Kosova është një rast special që del nga shpërbërja jokonsensuale e
Jugosllavisë dhe nuk është presedan për cilëndo situatë tjetër,
Duke rikujtuar vitet e konfliktit dhe dhunës në Kosovë që shqetësuan ndërgjegjen e të
gjithë popujve të civilizuar,
Mirënjohës që bota intervenoi më 1999 duke hequr në këtë mënyrë qeverisjen e Beogradit
mbi Kosovën, dhe vendosur Kosovën nën administrimin e përkohshëm të Kombeve të
Bashkuara,
Krenarë që Kosova që atëherë ka zhvilluar institucione funksionale, multietnike të
demokracisë që shprehin lirisht vullnetin e qytetarëve tanë,
Duke rikujtuar vitet e negociatave të sponsorizuara ndërkombëtarisht ndërmjet Beogradit
dhe Prishtinës mbi çështjen e statusit tonë të ardhshëm politik,
Duke shprehur keqardhje që nuk u arrit asnjë rezultat i pranueshëm për të dyja palët
përkundër angazhimit të mirëfilltë të udhëheqësve tanë,
Duke konfirmuar se rekomandimet e të Dërguarit Special të Kombeve të Bashkuara, Martti
Ahtisaari, i ofrojnë Kosovës një komizë gjithëpërfshirëse për zhvillimin e saj të ardhshëm,
dhe janë në vijë me standardet më të larta europiane për të drejtat të njeriut dhe qeverisjen
e mirë,
Të vendosur që ta shohim statusin tonë të zgjidhur në mënyrë që t'i jipet popullit tonë
qartësi mbi të ardhmen e vet, të shkohet përtej konflikteve të së kaluarës dhe të realizohet
potenciali i plotë demokratik i shoqërisë sonë,
Duke nderuar të gjithë burrat dhe gratë që bënë sakrifica të mëdha për të ndërtuar një të
ardhme më të mirë për Kosovën,
211 1. Ne, udhëheqësit e popullit tonë, të zgjedhur në mënyrë demokratike, nëpërmjet
kësaj Deklarate shpallim Kosovën shtet të pavarur dhe sovran. Kjo shpallje pasqyron
vullnetin e popullit tonë dhe është në pajtueshrnëri të plotë me rekomandimet e të
Dërguarit Special të Kombeve të Bashkuara, Martti Ahtisaari, dhe Propozimin e tij
Gjithëpërfshirës për Zgjidhjen e Statusit të Kosovës.
2. Ne shpallim Kosovën një republikë demokratike, laike dhe multietnike, të
udhëhequr nga parimet e jodiskriminimit dhe mbrojtes së barabartë sipas ligjit. Ne do të
mbrojmë dhe promovojmë të drejtat e të gjitha komuniteteve në Kosovë dhe krijojmë
kushtet e nevojshrne për pjesëmarrjen e tyre efektive në proceset politike dhe
vendimmarrëse.
3. Ne pranojmë plotësisht obligimet për Kosovën të përmbajtura në Planin e Ahtisarit,
dhe mirëpresim komizën që ai propozon për të udhëhequr Kosovën në vitet në vijim. Ne
do të zbatojmë plotësisht ato obligime, përfshirë miratimin prioritar të legjislacionit të
përfshirë në Aneksin XII të tij, veçanërisht atë që mbron dhe promovon të drejtat e
komuniteteve dhe pjesëtarëve të tyre.
4. Ne do të miratojmë sa më shpejt që të jetë e mundshme një kushtetutë që mishëron
zotimin tonë për të respektuar të drejtat e njeriut dhe liritë themelore të të gjithë qytetarëve
tanë, posaçërisht ashtu siç definohen me Konventën Europiane për të Drejtat e Njeriut.
Kushtetuta do të inkorporojë të gjitha parimet relevante të Planit të Ahtisaarit dhe do të
miratohet nëpërmjet një procesi demokratik dhe të kujdesshëm.
5. Ne mirëpresim mbështetjen e vazhdueshme të bashkësisë ndërkombëtare për
zhvillimin tonë demokratik nëpërmjet të pranive ndërkombëtare të themeluara në Kosovë
në bazë të Rezolutës 1244 të Këshillit të Sigurimit të Kombeve të Bashkuara (1999). Ne
ftojmë dhe mirëpresim një prani ndërkombëtare civile për të mbikëqyrur zbatimin e Planit
të Ahtisaarit dhe një mision të sundimit të ligjit të udhëhequr nga Bashkimi Europian. Ne,
po ashtu, ftojmë dhe mirëpresim NATO-n që të mbajë rolin udhëheqës në praninë
ndërkombëtare ushtarake dhe të zbatojë përgjegjësitë që i janë dhënë sipas Rezolutës 1244
të Këshillit të Sigurimit të Kombeve të Bashkuara (1999) dhe Planit të Ahtisaarit, deri në
atë kohë kur institucionet e Kosovës do të jenë në gjendje të marrin këto përgjegjësi. Ne do
të bashkëpunojmë plotësisht më këto prani në Kosovë për të siguruar paqen, prosperitetin
dhe stabilitetin në të ardhrnen në Kosovë.
6. Për arsye të kulturës, gjeografisë dhe historisë, ne besojmë se e ardhrnja jonë është
në familjen europiane. Për këtë arsye, ne shpallim synimin tonë për të marrë të gjitha hapat
e nevojshëm për të siguruar anëtarësim të plotë në Bashkimin Europian sapo që të jetë e
mundshme dhe për të zbatuar reformat e kërkuara për integrim europian dhe euroatlantik.
7. Ne i shprehim mirënjohje Organizatës së Kombeve të Bashkuara për punën që ka
bërë për të na ndihmuar në rimëkëmbjen dhe rindërtimin pas lufte dhe ndërtimin e
institucioneve të demokracisë. Ne jemi të përkushtuar të punojmë në mënyrë konstruktive
me Organizatën e Kombeve të Bashkuara gjersa ajo vazhdon punën e saj në periudhën në
VlJim.
8. Me pavaresme vie detyra e anëtarësisë së përgjegjshrne në bashkësinë
ndërkombëtare. Ne e pranojmë plotësisht këtë detyrë dhe do t'i përmbahemi parimeve të
Kartës së Kombeve të Bashkuara, Aktin Final të Helsinkit, akteve tjera të Organizatës për
Siguri dhe Bashkëpunim në Europë, obligimeve ligjore ndërkombëtare dhe parimeve të
212marrëdhënieve të mira ndërkombëtare që shënojnë marrëdhëniet ndërmjet shteteve.
Kosova do të ketë kufijtë e saj ndërkombëtarë ashtu siç janë paraparë në Aneksin VIII të
Planit të Ahtisaarit, dhe do të respektojë plotësisht sovranitetin dhe integritetin territorial të
të gjithë fqinjve tanë. Kosova, po ashtu, do të përmbahet nga kërcënimi apo përdorimi i
forcës në cilëndo mënyrë që është jokonsistente me qëllimet e Kombeve të Bashkuara.
9. Ne, nëpërmjet kësaj Deklarate, marrim obligimet ndërkombëtare të Kosovës,
përfshirë ato të arritura në emrin tonë nga Misioni i Administratës së Përkohshme të
Kombeve të Bashkuara në Kosovë (UNMIK), si dhe obligimet e traktateve dhe obligimet
tjera të ish-Republikës Socialiste Federative të Jugosllavisë ndaj të cilave obligohemi si
ish-pjesë konstituive, përfshirë konventat e Vjenës për marrëdhëniet diplomatike dhe
konsullore. Ne do të bashkëpunojmë plotësisht me Tribunalin Penal Ndërkombëtar për ish
Jugosllavinë. Ne synojmë të kërkojmë anëtarësim në organizatat ndërkombëtare, në të cilat
Kosova do të synojë të kontribuojë për qëllime të paqes dhe stabilitetit ndërkombëtar.
1O. Kosova shpall zotimin e saj ndaj paqes dhe stabilitetit në rajonin tonë të Europës
Juglindore. Pavarësia jonë e sjell në fund procesin e shpërbërjes së dhunshme të
Jugosllavisë. Gjersa ky proces ka qenë i dhembshëm, ne do të punojmë pa pushim për t'i
kontribuar një pajtimi që do të lejonte Europën Juglindore të shkojë përtej konflikteve të së
kaluarës dhe të farkojë lidhje të reja rajonale të bashkëpunimit. Për këtë arsye, do të
punojmë së bashku me fqinjtë tanë për të avansuar të ardhmen tonë të përbashkët
europiane.
11. Ne shprehim, në veçanti, dëshirën tonë për të vendosur marrëdhënie të mira me të
gjithë fqinjtë tanë, përfshirë Republikën e Serbisë, me të cilën kemi marrëdhënie historike,
tregtare dhe shoqërore, të cilat synojmë t'i zhvillojmë më tej në të ardhmen e afërt. Ne do
të vazhdojmë përpjekjet tona për t'i kontribuar marrëdhënieve të fqinjësisë dhe
bashkëpunimit me Republikën e Serbisë duke promovuar pajtimin ndërmjet popujve tanë.
12. Ne, nëpërmjet kësaj, afirmojmë në mënyrë të qartë, specifike dhe të parevokueshme
se Kosova do të jetë ligjërisht e obliguar të plotësojë dispozitatat e përmbajtura në këtë
Deklaratë, përshirë këtu veçanërisht obligimet e saj nga Plani i Ahtisaarit. Në të gjitha këto
çështje, ne do të veprojmë në pajtueshmëri në parimet e së drejtës ndërkombëtare dhe
rezolutat e Këshillit të Sigurimit të Kombeve të Bashkuara, përfshirë Rezolutën 1244
(1999). Ne shpallim publikisht se të gjitha shtetet kanë të drejtën të mbështeten në këtë
Deklaratë, dhe i bëjmë apel të na ofrojnë përkrahjen dhe mbështetjen e tyre.
213 Kosovo Declaration of Independence
Convened in an extraordinary meeting on February 17, 2008, in Pristina, the capital of
Kosovo,
Answering the call of the people to build a society that honours human dignity and affirms
the pride and purpose of its citizens,
Committed to confront the painful legacy of the recent past in a spirit of reconciliation and
forgiveness,
Dedicated to protecting, promoting and honouring the diversity of our people,
Reaffirming our wish to become fully integrated into the Euro-Atlantic family of
democracies,
Observing that Kosovo is a special case arising from Yugoslavia's non-consensual breakup
and is not a precedent for any other situation,
Recalling the years of strife and violence in Kosovo, that disturbed the conscience of all
civilised people,
Grateful that in 1999 the world intervened, thereby removing Belgrade's govemance over
Kosovo and placing Kosovo under United Nations interim administration,
Proud that Kosovo has since developed functional, multi-ethnic institutions of democracy
that express freely the will of our citizens,
Recalling the years of intemationally-sponsored negotiat1ons between Belgrade and
Pristina over the question of our future political status,
Regretting that no mutually-acceptable status outcome was possible, in spite of the good
faith engagement of our leaders,
Conjirming that the recommendations of UN Special Envoy Martti Ahtisaari provide
Kosovo with a comprehensive framework for its future development and are in line with
the highest European standards of human rights and good govemance,
Determined to see our status resolved in order to give our people clarity about their future,
move beyond the conflicts of the past and realise the full democratic potential of our
society,
Honouring all the men and women who made great sacrifices to build a better future for
Kosovo,
215 1. We, the democratically-elected leaders of our people, hereby declare Kosovo to be an
independent and sovereign state. This declaration reflects the will of our people and it is in
full accordance with the recommendations of UN Special Envoy Martti Ahtisaari and his
Comprehensive Proposai for the Kosovo Status Settlement.
2. We declare Kosovo to be a democratic, secular and multi-ethnic republic, guided by the
principles of non-discrimination and equal protection under the law. We shall protect and
promote the rights of all communities in Kosovo and create the conditions necessary for
their effective participation in political and decision-making processes.
3. We accept fully the obligations for Kosovo contained in the Ahtisaari Plan, and
welcome the framework it proposes to guide Kosovo in the years ahead. We shall
implement in full those obligations including through priority adoption of the legislation
included in its Annex XII, particularly those that protect and promote the rights of
communities and their members.
4. We shall adopt as soon as possible a Constitution that enshrines our commitment to
respect the human rights and fundamental freedoms of all our citizens, particularly as
defined by the European Convention on Human Rights. The Constitution shall incorporate
all relevant principles of the Ahtisaari Plan and be adopted through a democratic and
deliberative process.
5. We welcome the international community's continued support of our democratic
development through international presences established in Kosovo on the basis of UN
Security Council resolution 1244 (1999). We invite and welcome an international civilian
presence to supervise our implementation of the Ahtisaari Plan, and a European Union-led
rule of law mission. We also invite and welcome the North Atlantic Treaty Organization to
retain the leadership role of the international military presence in Kosovo and to implement
responsibilities assigned to it under UN Security Council resolution 1244 (1999) and the
Ahtisaari Plan, until such time as Kosovo institutions are capable of assuming these
responsibilities. We shall cooperate fully with these presences to ensure Kosovo's future
peace, prosperity and stability.
6. For reasons of culture, geography and history, we believe our future lies with the
European family. We therefore declare our intention to take all steps necessary to facilitate
full membership in the European Union as soon as feasible and implement the reforms
required for European and Euro-Atlantic integration.
7. We express our deep gratitude to the United Nations for the work it has done to help us
recover and rebuild from war and build institutions of democracy. We are committed to
working constructively with the United Nations as it continues its work in the period
ahead.
8. With independence cornes the duty of responsible membership in the international
community. We accept fully this duty and shall abide by the principles of the United
Nations Charter, the Helsinki Final Act, other acts of the Organization on Security and
Cooperation in Europe, and the international legal obligations and principles of
international comity that mark the relations among states. Kosovo shall have its
international borders as set forth in Annex VIII of the Ahtisaari Plan, and shall fully
respect the sovereignty and territorial integrity of all our neighbors. Kosovo shall also
216refrain from the threat or use of force in any manner inconsistent with the purposes of the
United Nations.
9. We hereby undertake the international obligations of Kosovo, including those concluded
on our behalf by the United Nations Interim Administration Mission in Kosovo (UNMIK)
and treaty and other obligations of the former Socialist Federal Republic of Yugoslavia to
which we are bound as a former constituent part, including the Vienna Conventions on
diplomatie and consular relations. We shall cooperate fully with the International Criminal
Tribunal for the Former Yugoslavia. We intend to seek membership in international
organisations, in which Kosovo shall seek to contribute to the pursuit of international peace
and stability.
1O. Kosovo declares its commitment to peace and stability in our region of southeast
Europe. Our independence brings to an end the process ofYugoslavia's violent dissolution.
While this process has been a painful one, we shall work tirelessly to contribute to a
reconciliation that would allow southeast Europe to move beyond the conflicts of our past
and forge new links of regional cooperation. We shall therefore work together with our
neighbours to advance a common European future.
11. We express, in particular, our desire to establish good relations with all our neighbours,
including the Republic of Serbia with whom we have deep historical, commercial and
social ties that we seek to develop further in the near future. We shall continue our efforts
to contribute to relations of friendship and cooperation with the Republic of Serbia, while
promoting reconciliation among our people.
12. We hereby affirm, clearly, specifically, and irrevocably, that Kosovo shall be legally
bound to comply with the provisions contained in this Declaration, including, especially,
the obligations for it under the Ahtisaari Plan. In all of these matters, we shall act
consistent with principles of international law and resolutions of the Security Council of
the United Nations, including resolution 1244 (1999). We declare publicly that all states
are entitled to rely upon this declaration, and appeal to them to extend to us their support
and friendship.
217 Déclaration d'indépendance du Kosovo
Réunisen session extraordinaire le 17 février 2008,à Pristina, capitale du Kosovo,
Répondant aux vŒux du peuple de bâtir une société qui respecte la dignité de l'homme et
garantit la fierté et la volonté de ses citoyens,
Résolus à affronter l'héritage douloureux du passé récent dans un esprit de réconciliation et
de pardon,
Résolus à protéger,à favoriser et à respecter la diversité de notre peuple,
Réaffirmant notre souhait de nous intégrer pleinement dans la famille euro-atlantique des
démocraties,
Observant que le Kosovo est un cas spécifique résultant de l'éclatement non consensuel de
la Yougoslavie et ne constitue aucunement un précédent pour une quelconque autre
situation,
Rappelant les années de conflit et de violence au Kosovo, qui ont troublé la conscience de
tous les peuples civilisés,
Exprimant notre gratitude envers la communauté internationale qui est intervenue en 1999,
mettant ainsi fin à la gouvernance de Belgrade sur le Kosovo et plaçant le Kosovo sous
l'administration intérimaire des Nations Unies,
Fiers que, depuis lors, le Kosovo ait développé des institutions démocratiquesà la fois
multiethniques et opérationnelles qui expriment librement la volonté de nos citoyens,
Rappelant les années de négociations sous l'égide de la communauté internationale entre
Belgrade et Pristina sur la question de notre futur statut politique,
Déplorant qu'aucun accord n'ait pu être trouvé concernant un statut acceptable pour les
deux parties, en dépit de l'engagement de bonne foi de nos représentants,
Confirmant que les recommandations de l'Envoyé spécial des Nations unies, Martti
Ahtisaari, offrent au Kosovo un cadre complet pour son développement futur et sont
conformes aux normes européennes les plus élevées en matière de droits de l'homme et de
bonne gouvernance,
Résolus à trouver un règlement à notre statut afin de donner à notre peuple une vision
claire de son avenir, de dépasser les conflits du passé et de réaliser pleinement le potentiel
démocratique de notre société,
Rendant hommage à tous les hommes et femmes qui ont fait de grands sacrifices pour bâtir
un avenir meilleur pour le Kosovo,
219 1. Nous, les représentants de notre peuple, démocratiquement élus, déclarons par la
présente que le Kosovo est un État indépendant et souverain. Cette déclaration reflète la
volonté du peuple et est en pleine conformité avec les recommandations de l'Envoyé
spécial des Nations unies, Martti Ahtisaari, et avec sa Proposition globale de Règlement
portant statut du Kosovo.
2. Nous déclarons que le Kosovo est une république démocratique, laïque et
multiethnique, guidée par les principes de non-discrimination et de protection égale devant
la loi. Nous protégerons et promouvrons les droits de toutes les communautés du Kosovo
et créerons les conditions nécessaires à leur participation effective aux processus politique
et de prise de décisions.
3. Nous acceptons intégralement les obligations du Kosovo découlant du plan
Ahtisaari et approuvons le cadre qu'il propose pour guider le Kosovo dans les années à
venir. Nous mettrons pleinement en Œuvre ces obligations y compris l'adoption prioritaire
des lois figurant dans son annexe XII, notamment celles qui protègent et promeuvent les
droits des communautés et de leurs membres.
4. Nous adopterons dès que possible une constitution qui proclame notre engagement
à respecter les droits de l'homme et les libertés fondamentales de tous nos citoyens, tels
qu'ils sont définis notamment par la Convention européenne des droits de l'homme. La
Constitution intégrera tous les principes pertinents du plan Ahtisaari et sera adoptée dans le
cadre d'un processus démocratique réfléchi.
5. Nous saluons le soutien continu à notre développement démocratique manifesté par
la communauté internationale par le biais des présences internationales établies au Kosovo
sur la base de la résolution 1244 (1999) du Conseil de sécurité de l'Organisation des
Nations unies. Nous invitons et accueillons une présence internationale civile chargée de
superviser la mise en Œuvre du plan Ahtisaari et une mission polir l'État de droit menée par
l'Union européenne. Nous invitons et accueillons également l'OTAN à garder un rôle
dirigeant dans la présence militaire internationale et à assumer les responsabilités qui lui
ont été confiées par la résolution 1244 (1999) du Conseil de sécurité de l'Organisation des
Nations Unies et le plan Ahtisaari jusqu'à ce que les institutions du Kosovo soient capables
d'assumer ces responsabilités. Nous coopérerons pleinement avec ces présences au Kosovo
pour assurer la paix, la prospérité et la stabilité à venir au Kosovo.
6. Pour des raisons culturelles, géographiques et historiques, nous sommes convaincus
que notre avenir ne se conçoit que dans la famille européenne. Par conséquent, nous
proclamons notre intention de prendre toutes les mesures nécessaires pour assurer notre
adhésion à l'Union européenne dès que possible et mettre en application les réformes
requises pour l'intégration européenne et euro-atlantique.
7. Nous exprimons notre profonde gratitude envers l'Organisation des Nations Unies
qui nous a aidés à rétablir et à reconstruire le pays après la guerre et à bâtir des institutions
fondées sur la démocratie. Nous sommes résolus à coopérer utilement avec l'Organisation
des Nations Unies pour assurer la poursuite de sa mission dans les années à venir.
8. L'indépendance implique les devoirs inhérents à notre appartenance responsable à
la communauté internationale. Nous acceptons pleinement ces devoirs et nous respecterons
les principes de la Charte des Nations Unies, l'Acte final d'Helsinki, les autres actes de
l'Organisation pour la sécurité et la coopération en Europe (OSCE), les obligations
220juridiques internationales et les principes de courtoisie internationale inhérents aux
relations entre États. Le Kosovo aura comme frontières internationales celles que fixe
l'annexe VIII du plan Ahtisaari et respectera pleinement la souveraineté et l'intégrité
territoriale de tous nos voisins. Le Kosovo s'abstiendra de tout usage ou menace de la force
incompatible avec les buts des Nations Unies.
9. Nous assumons par la présente les obligations internationales du Kosovo, y compris
celles conclues pour notre compte par la Mission d'administration intérimaire des Nations
unies au Kosovo (MINUK) et les traités et autres obligations de l'ex-République socialiste
fédérale de Yougoslavie auxquels nous sommes liés en tant qu'ancienne partie
constituante, y compris les Conventions de Vienne sur les relations diplomatiques et
consulaires. Nous coopérerons pleinement avec le Tribunal pénal international pour l'ex
y ougoslavie. Nous entendons adhérer aux organisations internationales, au sein desquelles
le Kosovo s'efforcera de contribuer à la poursuite de la paix et de la stabilité dans le
monde.
1O. Le Kosovo déclare être attaché à la paix et à la stabilité dans notre région de
l'Europe du Sud-est. Notre indépendance met un terme au processus de dissolution
violente de la Yougoslavie. Bien que ce processus ait été douloureux, le Kosovo
s'efforcera inlassablement de contribuer à une réconciliation qui permettrait à l'Europe du
Sud-est de dépasser les conflits du passé et de bâtir de nouvelles relations de coopération
régionale. Nous Œuvrerons avec nos voisins pour avancer vers un avenir européen
commun.
11. Nous exprimons, en particulier, notre souhait d'établir de bonnes relations avec
tous nos voisins, y compris la République de Serbie, avec laquelle nous avons des liens
historiques, commerciaux et sociaux que nous chercherons à développer davantage dans un
proche avenir. Nous poursuivrons nos efforts visant à établir des relations d'amitié et de
coopération avec la République de Serbie, tout en favorisant la réconciliation entre nos
peuples.
12. Nous affirmons clairement, explicitement et de manière irrévocable, par la présente,
que le Kosovo sera tenu juridiquement de respecter les dispositions contenues dans cette
déclaration, y compris en particulier les obligations qui lui incombent aux termes du plan
Ahtisaari. Dans tous ces domaines, nous agirons en accord avec les principes du droit
international et avec les résolutions du Conseil de sécurité de l'Organisation des Nations
Unies, y compris la résolution 1244 (1999). Nous déclarons publiquement que tous les
États sont en droit de se prévaloir de cette déclaration et nous les invitonsànous offrir leur
soutien et leur amitié.
221 Annex2
EXTRAORDINARY SESSION OF THE ASSEMBLY OF Kosovo,
HELD ON 17FEBRUARY 2008
(TRANSCRIPT)
English Translation*
*The Albanian Original is available on the website of the Assembly of the Republic of Kosovo
(<http://www.assembly-kosova.org/common/docs/proc/trans_s_2008_02_l7_al.p…;).Legislature III
TRANSCRIPT
OF THE SPECIAL PLENARY SESSION OF THE ASSEMBLY OF KOSOVO
ON THE DECLARATION OF INDEPENDENCE
HELD ON 17 FEBRUARY 2008
FEBRUARY 2008
1
225 Session opened at 15.00.
Session is chaired by Mr. Jakup Krasniqi, President of the Kosovo Assembly
Co-chairs were Mr. Xhavit Haliti and Mr. Sabri Hamiti, members of the Assembly Chairmanship
(applause)
PRESIDENT OF THE ASSEMBLY, JAKUP KRASNIQI:
Today, Kosovo is opening a new page in history, and is changing the political map of Europe
Leaving behind bitter memories of hatred and tragic strife we went through, we are now entering the age
of independence, peace and prosperity of our country.
There can be real peace and freedom only between equals. An independent Kosovo will be the homeland
of equal and happy citizens, building upon foundations of the best values of its tradition as well as
principles of modem democracy.
lt is a special privilege for the present generation in Kosovo to experience this great historical tum, an
honor for them, but also a great responsibility for the democratic and European development of the home
country and the generations that will succeed us.
Our solemn oath for Kosovo, a democratic country, is a contract with its citizens and a partnership with
the international community; it is the promise for lifelong dedication towards the most prosperous
underlying values oftoday's society.
Kosovo has never in its life had as many friends as today. However, tomorrow there will be even more. A
democratic culture and society, rule oflaw, peacemaking commitment, friendly neighborhood and the
spirit of dialogue, respect and good faith - will be the basis for expanding friendships and cooperation and
partnership.
I will take this solemn opportunity to express feelings of the people of Kosovo who humbly bow before
the ones who were sacrificed on the altar of freedom for Kosovo.
With special respect, I thank all our friends, who with great commitment helped Kosovo in its historical
and decisive moments.
The Albanian people and the citizens of Kosovo will be grateful forever.
On this special day, I feel honored to welcome the representative of the great family Jashari - Mr Rifat
Jashari.
(applause)
The Jashari family represents all sacrifices for freedom of the Albanian people, it is the institution of
morals for Kosovo now and forever.
2
226Honorable Mr. President of Kosovo
Honorable Mr. Prime Minister of Kosovo
Honorable Members of the Assembly of Kosovo
Honorable representatives of the international presence in Kosovo
Honorable friends and guests
Honorable citizens of Kosovo and compatriots, wherever you are
Ladies and Gentlemen,
It is with great pleasure that on behalf of the Assembly of Kosovo and on my personal behalf, I welcome
and thank you all, and those who are following us anywhere in the world, on these historical moments for
the future of the people of Kosovo!
(applause)
Honorable Assembly Members,
Welcome to the special solemn plenary session on this day, February li\ 2008, at 15.00 hours
ltis an honor for me to present to you today's agenda
The first item on our agenda is:
DECLARATION OF INDEPENDENCE
(applause)
The second item on our agenda is:
APPROVAL OF STATE SYMBOLS
104 Assembly members are present,
I ask the assembly members, to cast their vote on the approval of this proposed agenda.
Thank you!
Any votes "against"? None.
I declare that the Assembly has approved the agenda by unanimous vote
109 assembly members are now present
I would like to invite the Prime Minister of Kosovo, Mr. Hashim Thaçi, to provide justification for the
request for the special and solemn Assembly session.
3
227 THE PRIME MINISTER OF KOSOVO, HASHIM THAÇI:
Honorable Mr. Chairman,
President of Kosovo,
Honorable ministers,
Honorable Assembly Members,
Leaders of Political Parties,
Honorable guests - internationals, locals
Honorable Jashari Family,
Honorable representatives, guests from religious communities,
Honorable contributors to the agenda for the present special Assembly session,
Today, the President of Kosovo and myself, as the Prime Minister of Kosovo, have officially requested
from the President of the Assembly, Mr Krasniqi; to call for a special session with two agenda items,
This invitation for a special session is extended in accordance with the Kosovo Constitutional
Framework, whereby we present two items on the agenda:
1. DECLARATION OF INDEPENDENCE FOR KOSOVO, and
2. PRESENTATION OF KOSOVO STATE SYMBOLS
Mr. Chairman, thank you for calling this urgent session and for prompt approval by the Chairmanship of
the Assembly, as well as for the approval of this agenda. Let us continue.
Honorable Assembly President,
Honorable Assembly Members
Honorable President,
Honorable guests, citizens of Kosovo,
We have waited too long for this day. Many people gave so much to make this a reality, this bigday- the
Day of Kosovo Independence.
Today, we honor those who have honored us with their sacrifice for freedom and state. We forever
remember and respect their names and their deeds. We keep their memory forever in our hearts.
We are deeply grateful to our friends and allies in the country and beyond, who have assisted us to jointly
reach this point.
I welcome all of those who are with us today, and I express my deepest gratitude, my highest respect to
those who are following us on these moments, on behalf of my institutions and my people.
This day has corne! From now on, Kosovo is proud, independent, sovereign and free!
My family, as well as your family and all families throughout Kosovo, never hesitated and never lost faith
in us, we never lost faith in God, injustice and in power.
4
228Let me mention the brother who left his family to go to war, the former who left his land a waste, the
women and men who opened their doors to teach our children, and the students, who as always, raised
and said - enough!
To all ofthose who came back to build a better life for their children, we never lost faith on a dream that
one day, we will be among free and independent countries of the democratic world.
All of us together, brought Kosovo to this moment and we all need to be proud, very proud.
As my parents and my grandparents, who taught me about sacrifice and what it means to be free, I ask
you to talk to your children, to your nephews and nieces and to explain to them the meaning oftoday's
day. It was a long, difficult road, a road of sacrifice, but also a road ofvictory.
Carry on this story to the next generations, the story about the joy and pride we feel today, and never
forget to remind them to remember great sacrifice of the generations before us.
Kosovo will face many challenges in the coming years
However, no challenge will make us surrender our way forward, with one joint spirit as one united
people, with a clear, pro-western political vision.
Our challenges, including economy, education and health, infrastructure and European integration, are
important challenges, but they cannot resist the positive spirit of our citizens and our fate.
Kosovo, both people and territory are united today in a historical moment, to improve the lives of each
citizen within our borders, regardless of ethnie origin.
Our hopes have never been higher. Our faith has never been bigger. The people of Kosovo have never
been more united. Our dreams know no limit. Kosovo has never had more international support.
The challenges before us are great, but nothing can stop us from moving forward - towards new historical
moments, which a new history will give us and we are jointly making the new history.
Today, the whole world is with us, and we are becoming an equal part of the democratic world. We are
becoming an equal part of a world we deserve.
Until now, we did a great deal to guarantee our commitment towards communities
On this historical day, honorable assembly members, I wish to reaffirm our political will to create the
necessary conditions for respecting and protecting the communities and for further improving
relationships between them in a new Kosovo.
Our constitution and our laws will reflect this, together with an inter-institutional strategy at all levels of
our new country.
Our commitments will be embodied in three main elements:
The first, a strong and irreversible guarantee by law of equal rights of all communities in Kosovo
5
229The second, establishment of permanent mechanisms to guarantee that the communities play a complete
and active role in developing the future of our country, and
The third, is our responsibility to take effective and immediate measures to ensure that our commitments
result with positive change, for all those living in Kosovo, especially members of minority communities
Our Constitution states that Kosovo is a state of all its citizens. There is no place for fear, discrimination
or unequal treatment for anyone. We are building Kosovo with equal rights for everyone, with equal
opportunities for everyone.
Each discriminatory practice will be eradicated from our state institutions. Each discriminatory practice
will be eradicated from our society. In Kosovo, there will only be tolerance, understanding, living
together, solidarity and progress.
We all agree that diversity brings positive benefits for all
Honorable Assembly Members,
[in Serbian language] Honorable co-citizens,
Today' s day brings the end of a long process
This is the end of the last threats and blunders that Belgrade will ever rule Kosovo again,
Kosovars themselves, of all ethnie, religious and language origins will together carry their responsibility
for their country.
We make Kosovo independent, aiming that all citizens enjoy the freedom and other benefits of our
country.
Let this day be the day of a new beginning!
Let this day mark a beginning of a better future for all citizens of the state of Kosovo
[continues in Albanian language]
Honorable President of the Assembly
Honorable President
Honorable Assembly members
Honorable guests
Honorable citizens of Kosovo, wherever you are, in the Diaspora,
Kosovo is bringing a historical decision. Kosovo is declaring its independence in accordance with the
comprehensive proposai of President Ahtisaari.
The independence of Kosovo marks the end of the dissolution of former Yugoslavia. Implementation of
the Ahtisaari provisions, which are incorporated in the Kosovo Constitution, are a national priority to us
6
230all, to the institutions and to the people of Kosovo. The Assembly of Kosovo will soon adopt all the main
laws resulting from the Ahtisaari document, in the coming days.
Honorable Assembly Members,
Kosovo highly appreciates the role played by the United Nations Organization in reconstructing Kosovo
and in building our democratic institutions. We expect to work with the United Nations Organization to
promote ourjoint efforts for peace, security and democratic development.
In addition, we welcome the new international mission, led by the European Union, which will assist us
in our democratic development and supervise the implementation of Ahtisaari plan, which is already a
Kosovo plan.
On this occasion, I would like to assure all ofyou, through the voice of Kosovo institutions, and I would
like to send this message and to assure our neighbors that Kosovo will do the best possible to establish
and maintain good relationships with all neighboring countries. We aspire to have good mutual
relationships at a mutual interest with Serbia as well, having faith that this is in our common interest and
that of investment of our friends for peace and stability in the region.
From today on, Kosovo will be a democratic and multi-ethnic country of all of its citizens, in its fast
journey towards Euro-Atlantic integrations. Thank you!
Thank you Mr. Chairman!
(applause)
PRESIDENT OF THE ASSEMBLY, JAKUP KRASNIQI:
Thank you, Mr. Prime Minister! I give the floor to the President of Kosovo, Mr. Fatmir Sejdiu
PRESIDENT OF KOSOVO, FATMIR SEJDIU:
Honorable President of the Assembly of Kosovo,
Honorable Chainnanship
Honorable Mr. Prime Minister, Hashim Thaçi,
Honorable Assembly Members and Ministers
Honorable family of President Rugova
Honorable Jashari family,
(applause)
Honorable representatives of Kosovo institutions
Representatives of Diplomatie missions
Representatives of science, culture, cuits
Honorable citizens of Kosovo
[in Serbian language]
Honorable ministers,
7
231Honorable citizens of Kosovo,
[continues in Albanian language]
Ladies and Gentlemen,
Today's day separates the history of Kosovo in two: the times before and after independence
The independence of Kosovo was created by generations, with their works of life, with bard work and the
sacrifice they have made.
We are declaring our independence before the world, and with the blessing of the world, among friends
who stood by us through decades, especially one decade ago, when the atrocities had spread in this part of
the Balkans. The same friends stood by us during recovery after the war, during reconstruction after
destruction caused by war and occupation. They stand by us today; they will stand by us tomorrow.
Today, we remember the sacrifices which led to this extraordinary day. We remember the mothers and
fathers, who went through hardship that cannot be described so that their sons and daughters can live in
freedom. Today, we remember President Ibrahim Rugova, the great leader and establisher of our country,
who brought Kosovo out of chaos into a democratic order. Today, we remember Adem Jashari and the
Kosovo Liberation Army who brought forward the will of the people to live in freedom. We also
remember our neighbors of al! ethnie, ideological and religious backgrounds who helped us during the
years ofrepression and war. We remember al! ofthis, notas a token ofrevenge for our violent past, but to
build a future full of trust, which will offer an environment for reconciliation and forgiveness.
These great events of our history, our sacrifices and the hopes and achievements, have brought us here to
declare our independence. The declaration ofindependence is the will of the people. lt is a moral and
logical consequence of our history and it is in full accordance with recommendations of the Special
Envoy - President Martti Ahtisaari.
The independence for Kosovo is the end of a long process of dissolution of Yugoslavia. After two years
of engagement in negotiations over status with Belgrade, and despite serious and constructive engagement
of the Kosovo Unity Team, achieving an acceptable solution for both parties was not possible. Therefore,
we had to act to offer our people a clear perspective with the aim of advancing our political, social and
economic development.
Our vision for Kosovo is very clear. We wish to build Kosovo on fundamental democratic principles.
This means that Kosovo will be a democratic, multi-ethnic state, well integrated in the region, with good
relationships with its neighboring countries, a state that moves fast towards full membership in the Euro
Atlantic community. The people of Kosovo are determined and desire a European future for their country.
The comprehensive proposal on a status settlement for Kosovo in March of last year bas been supported
by the Assembly of Kosovo. This package gives the Serbs, as well as other minorities: Turks, Bosniaks,
Roma, Ashkali and Egyptians, a strong guarantee on the protection of their political and cultural rights,
which in many points even exceed the most advanced international standards on rights of the minorities.
8
232The Constitution of the Republic of Kosovo guarantees multi-faceted and meaningful participation of
minorities in the decision making process.
Honorable participants ofthis historical session of the Kosovo Assembly,
A national priority for the Kosovo Republic in the coming weeks and months is the full implementation
of the Ahtisaari plan. Very soon, we aim to adopt the laws and the new Constitution of Kosovo, which
also embodies Ahtisaari principles. All this will be followed with actual actions in the field in terms of
implementation of provisions contained in the Ahtisaari plan.
With today's act, Kosovo also assumes responsibilities as astate. At the same time, Kosovo reaffinns its
dedication for close cooperation with the international community to build a country in accordance with
the most advanced norms and principles of democracy. For this reason, Kosovo welcomes the deployment
of an international civilian presence, which will support further democratic development of our country,
as well as supervise the implementation of the Ahtisaari plan. Specifically, we value the willingness of the
European Community to assume a greater role in Kosovo. In addition, we welcome the continuous
military presence of the NATO troops. We are committed to cooperating closely with the civilian and
military representatives in Kosovo.
We are aware that members of minority communities in Kosovo see independence with a degree of fear
and skepticism. We will do all that is possible to ensure that the rights, the culture and their property are
strictly honored in the independent Kosovo.
[in Serbian language]
Honorable citizens of Kosovo,
Honorable representatives,
I would once again like to take this solemn opportunity to again invite all citizens of Kosovo, above all
the citizens of the Serb community in Kosovo, to give their contribution in a common building of a
European Kosovo, where each citizen will feel like home. Kosovo is equally your home and your
homeland. Your rights and the rights of members of other communities in an independent Kosovo will be
a continuous obligation of our state institutions. Serb cultural and religious heritage will be entirely
protected. Your ethnie and language identity will be entirely honored, and we will achieve this by
working together in our daily lives and in the institutions of Kosovo.
[continues in Albanian language]
Honorable Assembly Members
We want to strongly point out that Kosovo wishes to have good neighboring relations with Serbia as well,
on a basis ofmutual respect. We hope that our aim to normalize relations with Belgrade as soon as
possible will be supported by Serbia.
We are grateful for the role and the work done by the Organization of United Nations in reconstructing
post-war Kosovo. The United Nations Organization shall continue to have arole in Kosovo, for as long as
9
233 UN Resolution 1244 will be in force. We will continue to cooperate with the UN in order to make
progress in our common goals ofpeace, security and democratic development for Kosovo, until full
membership of Kosovo in this prestigious organization.
Our integration will flow naturally, as with its values, Kosovo has always culturally belonged to this
family, but now, under new circumstances, Kosovo needs political integration to create new
opportunities, such that human and natural resources are put at the service of overall social and economic
development of our country.
Ladies and Gentlemen
The Republic of Kosovo today asks for the world's embrace. As we await recognition by many countries
of the world, with a special piety we remember many worldly personalities who stood by the people of
Kosovo through decades, especially in its most difficult hours
Our people will be eternally grateful to the United States of America, the countries of the European
Union, NATO and other countries of the democratic world for the extraordinary support to our dear
country - Kosovo.
God bless Kosovo and its people!
God bless the Republic of Kosovo!
God bless all friends of Kosovo!
(applause)
PRESIDENT OF THE ASSEMBLY, JAKUP KRASNIQI:
Thank you, Mr. President!
I invite the Prime Minister of Kosovo, Mr. Hashim Thaçi, to present the Draft Declaration of
Independence
(applause)
I invite the participants to stand up!
PRIME MINISTER OF KOSOVO, HASHIM THAÇI:
Honorable President of the Assembly
Honorable President,
Honorable Members of the Assembly
Honorable guests,
Honorable Jashari family
Honorable Rugova family
Thank you, United States of America, European Union and NATO! Respect!
10
234Now allow me to, by feeling the heartbeats of our ancestors, with the highest honor and privilege, read the
Declaration of Independence of Kosovo
(applause)
DECLARATION
OF INDEPENDENCE OF KOSOVO
Convened in a solemn extraordinary plenary session, on February 17, 2008, in the capital of Kosovo,
Answering the call of the people to build a society that honors human dignity and affirms pride and
purpose of its citizens;
Committed to confront the painful legacy of the recent past and in the spirit of forgiveness and
reconciliation;
Dedicated to protection, promotion and honoring the diversity of our people;
Reaffirming our wish to be fully integrated in the Euro-Atlantic family of democracies;
Observing that Kosovo is a special case arising from the non-consensual dissolution ofYugoslavia and is
no precedent to any other situation;
Recalling the years of strife and violence in Kosovo, that disturbed the conscience of all civilized people;
Grateful to the whole world that intervened in 1999, thereby removing Belgrade's governance over
Kosovo and placing Kosovo under interim administration of the United Nations;
Proud that Kosovo has since developed functional multi-ethnic institutions of democracy, which freely
express the will of our citizens;
Recalling the years of negotiations sponsored by internationals between Belgrade and Prishtina over the
question of our future political status;
Regretting that no mutually acceptable outcome was possible, in spite of the good-faith engagement of
Kosovar leadership and the important international role;
Confirming that recommendations of the Special Envoy of the United Nations, President Martti Ahtisaari,
provide a comprehensive framework for its future development, are in line with the highest European
standards on human rights and good governance;
Determined to see our status resolved in such a way as to provide to our people clarity about their future
and to move beyond conflicts of the past, and to achieve full democratic potential of our society;
Honoring all the men and women who made great sacrifice to build a better future for Kosovo
11
235 1. We, the democratically elected leaders of our people, through this
DECLARATION
HEREBY DECLARE KOSOVO AN INDEPENDENT AND DEMOCRATIC STATE
(applause)
This declaration reflects the will of our people and is in full accordance with recommendations of the
Special Envoy of the United Nations, Martti Ahtisaari, and his comprehensive proposal for the Kosovo
Status Settlement.
We declare Kosovo to be a democratic, secular and multiethnic republic, guided by the principles of non
discrimination and equal protection under the law.
We shall protect and promote the rights of all communities in Kosovo and create the conditions necessary
for their effective participation in political and decision-making processes.
We fully accept the obligations for Kosovo contained in the Ahtisaari Plan, and welcome the framework
it proposes to guide Kosovo in the years ahead.
We shall implement those obligations in full, including through priority adoption of the legislation
included in its Annex XII, particularly those that protect and promote the rights of communities and their
members.
We shall adoptas soon as possible a Constitution that enshrines our commitment to respect the human
rights and fundamental freedoms of all our citizens, particularly as defined by the European Convention
on Human Rights.
The Constitution shall incorporate all relevant principles of the Ahtisaari Plan and be adoptèd through a
democratic and deliberative process.
We welcome the international community's continued support of our democratic development through
international presences established in Kosovo on the basis of UN Security Council Resolution 1244 in
1999.
We invite and welcome an international civilian presence to supervise our implementation of the
Ahtisaari Plan, and a European Union-led rule oflaw mission.
We also invite and welcome the NATO to retain the leadership role of the international military
presence in Kosovo and to implement responsibilities assigned to it under UN Security Council
resolution 1244 from year 1999 and the Ahtisaari Plan, until such time as Kosovo institutions are
capable of assuming these responsibilities.
We shall cooperate fully with these presences to ensure Kosovo's future peace, prosperity and stability
For reasons of culture, geography and history, we believe our future lies with the European family.
12
236We therefore declare our intention to take all steps necessary to facilitate full membership in the
European Union as soon as feasible and implement the reforms required for European and Euro-Atlantic
integration.
We express our deep gratitude to the United Nations for the work it has done to help us recover and
rebuild from war and build institutions of democracy.
We are committed to working constructively with the United Nations as it continues its work in the
period ahead.
With independence cornes the duty ofresponsible membership in the international community. We fully
accept this duty and shall abide by the principles of the United Nations Charter, the Helsinki Final Act,
other acts of the Organization on Security and Cooperation in Europe, and the international legal
obligations and principles of international comity that mark the relations among states.
Kosovo shall have its international borders as set forth in Annex VIII of the Ahtisaari Plan, and shall
fully respect the sovereignty and territorial integrity of all our neighbors.
Kosovo shall also refrain from the threat or use of force in any manner inconsistent with the purposes of
the United Nations.
We hereby undertake the international obligations of Kosovo, including those concluded on our behalf
by the United Nations Interim Administration Mission in Kosovo (UNMIK) and treaty and other
obligations of the former Socialist Federal Republic ofYugoslavia to which we are bound as a former
constituent part, including the Vienna Conventions on diplomatie and consular relations.
We shall cooperate fully with the International Criminal Tribunal for the Former Yugoslavia.
We intend to seek membership in international organizations, in which Kosovo shall seek to contribute
to the pursuit of international peace and stability.
Kosovo declares its commitment to peace and stability in our region of southeast Europe.
Our independence brings to an end the process ofYugoslavia's violent dissolution. While this process
has been a painful one, we shall work tirelessly to contribute to a reconciliation that would allow
southeast Europe to move beyond the conflicts of our past and forge new links of regional cooperation.
We shall therefore work together with our neighbors to advance a common European future.
We express, in particular, our desire to establish good relations with all our neighbors, including the
Republic of Serbia with whom we have deep historical, commercial and social ties that we seek to
develop further in the near future.
We shall continue our efforts to contribute to relations of friendship and cooperation with the Republic
of Serbia, while promoting reconciliation among our people.
We hereby affirm, clearly, specifically, and irrevocably, that Kosovo shall be legally bound to comply
with the provisions contained in this Declaration, including, especially, the obligations for it under the
13
237Ahtisaari Plan.
ln all ofthese matters, we shall act consistent with principles of international law and resolutions of the
Security Council of the United Nations, including resolution 1244 (1999).
We declare publicly that all states are entitled to rely upon this declaration, and appeal to them to extend
to us their support and friendship.
Thank you! Thank you very much!
(frenetic applause)
PRESIDENT OF THE ASSEMBL Y, JAKUP KRASNIQI:
Thank you, Mr. Prime Minister!
Honorable Assembly Members,
I inform you that the vote will be cast electronically, thus I propose we proceed.
I declare that 109 assembly members are present.
Are there any members who do not have their cards with you?
If any of you have no cards, you may vote by raising your hand.
I ask you, shall we vote electronically, or by raising our hand.
(from the hall: Let us vote by raising hand)
Who is "in favor"? Thank you!
This was the explanation on the voting method.
Who is in favor of the Declaration presented by the Prime Minister of Kosovo?
Thankyou!
Any votes "against"? None.
(applause)
I state that with all votes "in favor" of the present members, Members of the Assembly of Kosovo,
today, on February 17, 2008, have expressed their will and the will of the citizens of Kosovo, for
Kosovo an independent, sovereign and democratic state.
(applause)
And from this point on, the political position of Kosovo has changed. Kosovo is:
A REPUBLIC, AN INDEPENDENT, DEMOCRATIC AND SOVEREIGN STATE
(applause)
Congratulations to you and all ofthose who are watching us!
(applause)
14
238CHAIRMAN, XHAVIT HALITI:
Honorable Assembly Members, please take your seats so we can proceed.
We proceed with solernn signature of the Declaration.
1invite the President of Kosovo, Mr. Fatmir Sejdiu, to sign the Declaration oflndependence!
1invite the Assembly President and the Prime Minister of Kosovo, to sign the Declaration of
lndependence together!
(the invitees sign the declaration)
(applause)
CHAIRMAN, IBRAHIM GASHI:
1invite members of the Chairmanship, Mr. Xhavit Haliti and Mr. Sabri Hamiti to sign the Declaration
of lndependence.
(signature follows)
1invite the member of Chairmanship, Mr. Eqrem Kryeziu, to sign the Declaration.
(signature follows)
CHAIRMAN, XHAVIT HALITI:
1invite the member of Chairmanship, Mr. Ibrahim Gashi, to sign the Declaration.
(signature follows)
1invite the member of Chairmanship, Mr. Nexhat Daci, to sign the Declaration
(signature follows)
1invite the member of Chairmanship, Naim Maloku.
(signature follows)
1invite the member of Chairmanship, Xhezair Murati.
(signature follows)
1invite the member of Chainnanship, Slobodan Petrovic. Absent.
1invite the Head of the Kosovo Democratic Party Parliamentary Group, Rame Buja
(signature follows)
1invite the Head of New Kosova Alliance Parliamentary Group, Ibrahim Makolli
(signature follows)
1invite the Head of Dardania Democratic League Parliamentary Group, Lulzim Zeneli
(signature follows)
1invite the Head of Kosovo Future Alliance Parliamentary Group, Ardian Gjini
(signature follows)
15
239I invite the Head of"7+" Parliamentary Group, Zylfi Merxha
(signature follows)
I invite the Head of SLS Parliamentary Group, Bojan Stojanovic. Not present!
I invite the member of Kosovo Assembly, Adem Grabovci.
(signature follows)
I invite the member of Kosovo Assembly, Adem Hajdaraj.
(signature follows)
I invite the member of Kosovo Assembly, Adem Salihaj.
(signature follows)
I invite the member of Kosovo Assembly, Agim Veliu.
(signature follows)
I invite the member of Kosovo Assembly, Ahmet Isufi.
(signature follows)
I invite the member of Kosovo Assembly, Ali Lajçi.
(signature follows)
I invite the member of Kosovo Assembly, Alush Gashi.
(signature follows)
I invite the member of Kosovo Assembly, Anita Morina-Saraçi.
(signature follows)
I invite the member of Kosovo Assembly, Armend Zemaj.
(signature follows)
I invite the member of Kosovo Assembly, Arsim Bajrami.
(signature follows)
I invite the member of Kosovo Assembly, Arsim Rexhepi.
(signature follows)
I invite the member of Kosovo Assembly, Bahri Hyseni.
(signature follows)
I invite the member of Kosovo Assembly, Bajram Kosumi.
(signature follows)
I invite the member of Kosovo Assembly, Behxhet Pacolli.
(signature follows)
I invite the member of Kosovo Assembly, Berat Luzha.
(signature follows)
I invite the member of Kosovo Assembly, Berim Ramosaj.
(signature follows)
I invite the member of Kosovo Assembly, Besa Gaxherri.
(signature follows)
I invite the member of Kosovo Assembly, Branislav Grbié. Not present!
I invite the member of Kosovo Assembly, Bujar Bukoshi.
(signature follows)
I invite the member of Kosovo Assembly, Donika Kadaj.
(signature follows)
I invite the member of Kosovo Assembly, Dragisa Mirié. Not present!
I invite the member of Kosovo Assembly, Drita Kadriu.
(signature follows)
I invite the member of Kosovo Assembly, Drita Maliqi.
(signature follows)
I invite the member of Kosovo Assembly, Driton Tali.
16
240(signature follows)
I invite the member of Kosovo Assembly, Edita Tahiri.
(signature follows)
I invite the member of Kosovo Assembly, Elheme Hetemi.
(signature follows)
I invite the member of Kosovo Assembly, Emrush Xhemajli.
(signature follows)
I invite the member of Kosovo Assembly, Enis Kervan.
(signature follows)
I invite the member of Kosovo Assembly, Enver Hoxhaj.
(signature follows)
I invite the member of Kosovo Assembly, Esat Brajshori.
(signature follows)
I invite the member of Kosovo Assembly, Etem Arifi.
(signature follows)
I invite the member of Kosovo Assembly, Ethem Çeku.
(signature follows)
I invite the member of Kosovo Assembly, Fatmir Limaj.
(signature follows)
I invite the member of Kosovo Assembly, Fatmir Rexhepi.
(signature follows)
I invite the member of Kosovo Assembly, Fatmire Berisha.
(signature follows)
I invite the member of Kosovo Assembly, Fehmi Mujota.
(signature follows)
I invite the member of Kosovo Assembly, Flora Brovina.
(signature follows)
I invite the member of Kosovo Assembly, Gani Buçinca.
(signature follows)
I invite the member of Kosovo Assembly, Gani Geci.
(signature follows)
I invite the member of Kosovo Assembly, Gani Koci.
(signature follows)
I invite the member of Kosovo Assembly, Gjylnaze Syla.
(signature follows)
I invite the member of Kosovo Assembly, Hafize Hajdini.
(signature follows)
CHAIRMAN, IBRAHIM GASHI:
I invite the member of Kosovo Assembly, Hajdin Abazi.
(signature follows)
I invite the member of Kosovo Assembly, Hajredin Hyseni.
(signature follows)
I invite the member of Kosovo Assembly, Hajredin Kuçi.
(signature follows)
I invite the member of Kosovo Assembly, Haki Shatri.
(signature follows)
I invite the member of Kosovo Assembly, Heset Cakolli.
(signature follows)
17
241I invite the member of Kosovo Assembly, Hydajet Hyseni.
(signature follows)
I invite the member of Kosovo Assembly, Ibrahim Selmanaj.
(signature follows)
I invite the member of Kosovo Assembly, Ismet Beqiri.
(signature follows)
I invite the member of Kosovo Assembly, Kaçusha Jashari.
(signature follows)
I invite the member of Kosovo Assembly, Kolë Berisha.
(signature follows)
CHAIRMAN, XHAVIT HALITI:
I invite the member of Kosovo Assembly, Kosara Nikolié. Absent!
I invite the member of Kosovo Assembly, Ljubisa Zivié. Absent!
I invite the member of Kosovo Assembly, Luljeta Shehu.
(signature follows)
I invite the member of Kosovo Assembly, Lutfi Haziri.
(signature follows)
I invite the member of Kosovo Assembly, Mahir Yagcilar.
(signature follows)
I invite the member of Kosovo Assembly, Mark Krasniqi.
(signature follows)
I invite the member of Kosovo Assembly, Melihate Tërmkolli.
(signature follows)
I invite the member of Kosovo Assembly, Memli Krasniqi.
(signature follows)
I invite the member of Kosovo Assembly, Mihajlo Scepanovié. Absent!
I invite the member of Kosovo Assembly, Mimoza Ahmetaj.
(signature follows)
I invite the member of Kosovo Assembly, Mursel Halili. Absent!
I invite the member of Kosovo Assembly, Mufera Shinik.
(signature follows)
I invite the member of Kosovo Assembly, Myrvete Pantina.
(signature follows)
18
242I invite the member of Kosovo Assembly, Myzejene Selmani.
(signature follows)
I invite the member of Kosovo Assembly, Naim Rrustemi.
(signature follows)
I invite the member of Kosovo Assembly, Nait Hasani.
(signature follows)
I invite the member of Kosovo Assembly, Naser Osmani.
(signature follows)
I invite the member of Kosovo Assembly, Naser Rugova.
(signature follows)
I invite the member of Kosovo Assembly, Nekibe Kelmendi.
(signature follows)
I invite the member of Kosovo Assembly, Nerxhivane Dauti.
(signature follows)
I invite the member of Kosovo Assembly, Numan Balié.
(signature follows)
I invite the member of Kosovo Assembly, Nurishahe Hulaj.
(signature follows)
I invite the member of Kosovo Assembly, Njomza Emini.
(signature follows)
I invite the member of Kosovo Assembly, Qamile Marina.
(signature follows)
I invite the member of Kosovo Assembly, Radmila Vujovié. Absent!
I invite the member of Kosovo Assembly, Ramadan Avdiu.
(signature follows)
I invite the member of Kosovo Assembly, Ramadan Gashi.
(signature follows)
I invite the member of Kosovo Assembly, Ramë Manaj.
(signature follows)
I invite the member of Kosovo Assembly, Rasim Selmanaj.
(signature follows)
I invite the member of Kosovo Assembly, Rita Hajzeraj.
(signature follows)
I invite the member of Kosovo Assembly, Riza Smaka.
19
243(signature follows)
I invite the member of Kosovo Assembly, Rrustem Mustafa.
(signature follows)
I invite the member of Kosovo Assembly, Sabit Rrahmani.
(signature follows)
I invite the member of Kosovo Assembly, Sadik Idriz.
(signature follows)
I invite the member of Kosovo Assembly, Safete Hadërgjonaj.
(signature follows)
I invite the member of Kosovo Assembly, Sala Berisha-Shala.
(signature follows)
I invite the member of Kosovo Assembly, Sanije Aliaj.
(signature follows)
I invite the member of Kosovo Assembly, Selvije Halimi.
(signature follows)
I invite the member of Kosovo Assembly, Skender Hyseni.
(signature follows)
I invite the member of Kosovo Assembly, Slavisa Petkovié. Absent!
I invite the member of Kosovo Assembly, Suzan Novobërdaliu.
(signature follows)
I invite the member of Kosovo Assembly, Synavere Rysha.
(signature follows)
I invite the member of Kosovo Assembly, Shkumbin Demalijaj.
(signature follows)
I invite the member of Kosovo Assembly, Shpresa Murati.
(signature follows)
I invite the member of Kosovo Assembly, Teuta Hadri.
(signature follows)
I invite the member of Kosovo Assembly, Vezira Emrush.
(signature follows)
I invite the member of Kosovo Assembly, Vladimir Todorovié. Absent!
I invite the member of Kosovo Assembly, Vlora Çitaku.
20
244(signature follows)
I invite the member of Kosovo Assembly, Xhevdet Neziraj.
(signature follows)
I invite the member of Kosovo Assembly, Zafir Berisha.
(signature follows)
I invite the member of Kosovo Assembly, ZefMorina.
(signature follows)
I invite the member of Kosovo Assembly, Zylfije Hundozi.
(signature follows)
Honorable Ladies and Gentlemen,
I declare that we have fulfilled our obligation by each ofus signing the Declaration oflndependence.
I invite the Chairman of the Parliament to resume chainnanship of the Assembly.
(applause)
PRESIDENT OF THE ASSEMBLY, JAKUP KRASNIQI:
Honorable Assembly members,
Let us continue with the second item on the agenda:
ADOPTION OF KOSOVO STATE SYMBOLS -THE FLAG AND SEAL
You, honorable assembly members, have before you the symbols - Flag and Seal
To shorten the procedure, let us immediately proceed with voting
As we agreed to vote by hand, I invite you to vote.
Who is "in favor"? Thank you!
(applause)
(At this point the flag is brought and placed in the hall)
(applause)
Honorable assembly members,
This is the flag of the youngest state in Europe and the world, of the state of Kosovo!
May we all enjoy it! Congratulations!
21
245(applause)
Honorable assembly members
By congratulating you again on the Republic of Kosovo, independent and sovereign, and on the
approval of the flag of Kosovo, I hereby declare the session adjoumed.
(applause)
Prepared by:
The Transcript Unit within the Assembly of Republic of Kosovo
22
246 Annex 3
REPORT OF THE INTERNATIONAL CIVILIAN OFFICE (ICO),
VIENNA, 27FEBURARY 2009
Source: http://www.ico-kos.org/d/lSG report finalENG.pdfReport of the International Civilian Office
27 February 2009
Vienna, Austria
249 Report of the International Civilian Office
27 February 2009
I. Introduction
II. Meeting its Commitments - Kosovo's Progress in CSP lmplementation
III. The Republic of Kosovo's Growing Network of International Relations
IV. The Year Ahead
250 Report of the International Civilian Office
27 February 2009
I. INTRODUCTION
February 2009 marks several significant milestones for the Republic of Kosovo and its
international partners. Just days ago, Kosovo completed its first year as an independent,
sovereign state, and 27 February, marks the completion of the first year of the mandate of the
International Civilian Representative (ICR). The past year witnessed much progress in Kosovo,
progress in building institutions, anchoring Rule of Law, in the creating and consolidating of the
elements of statehood, and in taking its place in the community of nations as a multi-ethnic
democracy. Through all its actions the state of Kosovo has proven its independence and shown
that independence is irreversible. Kosovo has also made strides, in partnership with the
International Civilian Office (ICO), in fulfilling the promises made toits citizens and to the
world when, in its Declaration of Independence, it committed itself to full implementation of the
Comprehensive Proposal for the Kosovo Status Settlement (CSP).
The ICO has successfully assumed the role assigned toit by the CSP and enshrined in Kosovo's
Constitution. We have forged strong ties with a range of Kosovo's leaders, both in the capital
and in the municipalities. To supervise and support CSP implementation, we work closely with
them as they prepare decisions. A spirit of cooperation prevails. Our approach is to hold frank
and confidential talks early on, rather than to pass judgment after they act.
Several moments stand out in the ICR' s exercise of his responsibilities: his certification in April
2008 of the Constitution as in accordance with the terms of the CSP; his certification, over a
period of months, of some 50 Ahtisaari-related laws as consistent with the CSP; his endorsement
of the President' s decision in January 2009 to allow Assembly mandates to continue and not to
terminate them to force new elections this year; and his speech in the Assembly in February 2009
reflecting on the first anniversary of Kosovo's independence. These moments illustrate the range
of ICR activities, including political and ceremonial aspects.
The member states of the International Steering Group (ISG) have invested and continue to
invest significant resources, both financial and human capital, in Kosovo's future, directly and
through the ICO and other international organizations. Moreover, the ISG and ICO share an
ambitious vision for a rapid and thorough implementation of the CSP. Such a vision conforms to
the CSP itself, which requires a review of the ICR's powers and mandate within two years of the
CSP' s entry into force, with a view toward "reducing the scope of the powers of the ICR and the
frequency of intervention." Cognizant of this ambitious time horizon and grateful for the
251resources that ISG states have committed, the ICO offers this report to apprise ISG member
states both of the progress that has been achieved and the challenges that lie ahead.
II. MEETING ITS COMMITMENTS - KOSOVO' S PROGRESS IN CSP
IMPLEMENTATION
When on 17 February 2008 the democratically-elected leaders of the people of Kosovo took the step of
declaring Kosovo an independent and sovereign state, they committed themselves without reservation to
the implementation of the CSP, embedding these commitments into the Declaration of Independence
itself. By doing so, they reflected the will of the people of Kosovo.
"We accept fully the obligations for Kosovo contained in the Ahtisaari Plan, and
welcome the framework it proposes to guide Kosovo in the years ahead. We shall
implement in full those obligations including through priority adoption of the
legislation included in its Annex XII, particularly those that protect and promote the
rights of communities and their members."
Declaration of Independence of the Republic of Kosovo
Just weeks after independence, on 1 April, the Constitutional Commission of Kosovo adopted a
draft constitution, which incorporated, inter alia, Kosovo' s obligations to comply with the CSP
as well as the authority of the ICR as the final interpreter of the CSP into the domestic legal
sphere. One day after its approval by the Commission, the ICR certified that the draft text was in
accordance with the terms of the CSP and on 9 April 2008 it was adopted by the Assembly of
Kosovo. The Constitution of Kosovo entered into force 15June 2008 together with 41 laws
promulgated by the President of the Republic the same day.
In the first ten months of its existence as the supreme legislative body, the Assembly of Kosovo
passed over 50 laws directly related to the implementation of the provisions of the CSP. Included
among these legislative provisions were acts to decentralize goveming authority to Kosovo's
municipalities; to build Kosovo's goveming capacity; and to safeguard the rights and freedoms
of Kosovo's communities, including through the protection ofreligious and cultural heritage.
1. Decentralization
Among the earliest CSP implementing laws were those conceming the vitally important process
of decentralization. Laws on Local Self-Govemment, Boundaries of Municipalities, Local
Govemment Finance, Local Education and Local Health not only establish the framework for the
new municipalities to be formed under the CSP, but just as importantly codify the central
principle of decentralization itself - that the interests of democracy and efficacy are best served
by moving goveming capacity doser to citizens. Consistent with these laws, EUR 3.9 million
has been set aside for the expenses of the new municipalities to be formed according to the CSP;
the Ministry of Local Self-Government has led a nationwide publicity campaign on the benefits
of decentralization; and the ICO is working closely with the Government of Kosovo's Inter
Ministerial Working Group on Decentralization to determine the modalities for the formation of
252the Municipal Preparation Teams that will be tasked with building the goveming infrastructure
of the new municipalities. The first transfer of competencies took place in January 2009. The
ICO has worked closely with both the Govemment and the Assembly in order to ensure the
timely adoption of relevant legislation and its implementation.
Establishing a Mitrovica North municipality, as foreseen by the CSP, still remains a challenge
for the overall perception of the decentralization process.
2. Institution Building
Security Sector Reform
Another set of CSP-implementing legislation passed early on by the Assembly concemed laws
designed to establish the institutions needed to exercise the full measure of sovereignty. The Law
on the Kosovo Security Council, the Law on the Ministry for the Kosovo Security Force, the
Law on Service in the Kosovo Security Force, the Law on the Civil Aviation Authority, and the
Law on the Establishment of the Kosovo Intelligence Agency arejust a few that have been
passed in the framework of a coherent reform of the security sector, according to the principles
and provisions of the CSP.
Minister Fehmi Mujota was named Kosovo's first Minister for the Kosovo Security Force
(KSF); he has played an important role - consistent with his position and the principle of civilian
control of security bodies - in the selection of the KSF commander and KSF officers. Though
not without difficulties, this process permitted the deactivation of the Kosovo Protection Corps
on 20 January 2009, and the beginning of KSF training.
In September 2008, the Govemment of Kosovo named Driton Gjonbaljaj as the Director General
of Kosovo' s Civil Aviation Authority. The KCAA has taken the lead in assuring the safety of
civil aviation in Kosovo and represented Kosovo in regional civil aviation fora.
On 6 February 2009, the Assembly of Kosovo confirmed Bashkim Smakaj as the first Director of
the Kosovo Intelligence Agency, and he has been charged with the development of an agency
that is multi-ethnic and apolitical. The Kosovo Security Council held its first meeting 11
February 2009 and efforts are underway to build a KSC Secretariat that will permit this body to
take its proper role in coordinating Kosovo's national security and safety policy, while not
duplicating the fonctions of govemment ministries.
In accordance with provisions of the CSP, the Republic of Kosovo has undertaken to demarcate
its border with the former Yugoslav Republic of Macedonia. Both countries named
representatives to a Joint Technical Commission (JTC), which has held numerous sessions.
Together, the JTC has agreed on the location of the placement of all of the primary border
stones. A small section of the border, near the villages of Debellde/Debelde and Tanusevci,
253remains to be demarcated. The ICO has been closely involved in the process of border
demarcation, both in the JTC and along the border.
Rule of Law
One major element for the future development of a functioning Rule of Law sector was to deploy
the largest ESDP mission to date, EULEX, throughout the country in late 2008. lts police,
judges, prosecutors and customs officials will provide indispensable support to Kosovo' s efforts
to strengthen the rule of law. Efforts to establish a Constitutional Court also made important
progress in the course of the last twelve months. A Law on the Constitutional Court was adopted
in late 2008, and an interim mechanism for registering prospective cases for this court has been
established. The process of the selection of judges, both international and national, is now
underway. International judges will be appointed in coordination with the President of the
European Court of Human Rights.
The Constitution of Kosovo has established the Kosovo Judicial Council (KJC), an independent
body responsible, inter alia, for all decisions on the proposa! of candidates for judicial office.
Kosovo has, since then, adopted implementing legislation in order to regulate further the
composition and organization of the KJC.
Efforts are also underway regarding the comprehensive Kosovo-wide review and reappointment
process of all judges and prosecutors foreseen by Annex N of the CSP and the Constitution. The
President of the Republic of Kosovo has appointed all members on the Independent Judicial and
Prosecutorial Commission in January (IJPC). The IJPC has recently launched the reappointment
process for all judges and prosecutors.
Economy
A comprehensive set of CSP-implementing legislation passed by the Assembly concerned laws
designed to establish the institutions needed to define the legal framework for the economy as
defined and prescribed by CSP. This included legislation on publicly-owned enterprises; on the
Privatization Agency of Kosovo (PAK); the Kosovo Property Agency (KPA); and on the various
independent economic regulators of Kosovo. Following the adoption of the laws, the PAK
successfully started to work last summer and KPA accelerated the settlement of daims.
Furthermore the ICR made key appointments in the area of economics as foreseen by the CSP,
including the Auditor-General of Kosovo, a member of the board of the Kosovo Pensions
Savings Trust (KPST) and members of the Board of PAK.
3. Community Rights and Religious and Cultural Heritage
The protection of community rights and of religious and cultural heritage are at the very heart of
the CSP and central to the Kosovo Constitution's inclusion of rights for this multi-ethnic,
secular, democratic state. Among the first of such laws passed by the Kosovo Assembly was the
254Law on the Protection and Promotion of Rights of Communities and their Members and the Law
on the Establishment of Special Protective Zones. The first piece of legislation provides the legal
framework for community rights in the constitution, including in the realms of education,
identity and the use of Kosovo's official languages. The rights of communities and their
members, and their inclusion in Kosovo' s public life are also the work of the Communities
Consultative Council (CCC). The CCC was established in accordance with the Kosovo
Constitution and was formed by a decree of the President of Kosovo. It held its first session in
December 2008.
The Law on the Establishment of Special Protective Zones sets up a mechanism to protect
Kosovo's rich religious and cultural patrimony, including but not limited to the sites of the
Serbian Orthodox Church (SOC). These protections aim to prohibit land use that would detract
from the character or appearance of the sites or disturb the monastic life of the clergy. While
Special Protective Zones are designed to protect some SOC sites from development, the Kosovo
authorities have taken practical steps to support the physical protection of SOC sites and the
economic sustainability of the Church. The Government of Kosovo, through its Ministry of
Culture Youth and Sport, contracted a private security firm to provide round-the-dock protection
to SOC sites considered to be in the greatest danger. In February 2009, this contract was
suspended and the Kosovo Police assumed its responsibility with a 24-hour-a-day protection of
these sites.
The Kosovo Police's implementation of their Operational Ortler for protection of SOC holy sites
will permit international partners, like KFOR, to proceed with plans to withdraw from such
tasks, without placing these churches and monasteries in additional danger. The implementation
of the Operational Ortler is done in close collaboration with the ICO. As for the economic
sustainability of the SOC, the Kosovo Customs Code, passed in late 2008, included CSP-related
provisions exempting the SOC from the payment of certain customs duties. Similar exemptions
will have to be adopted to implement other CSP provisions on SOC self-sustainability.
It has been a challenge for the Government of Kosovo to address the needs of the Kosovo Serb
community appropriately due to lack of dialogue between the majority community and the
Kosovo Serb community. The ICR, primarily in his capacity as EUSR, is facilitating a Round
Table between key government ministers and Kosovo Serb representatives. Its goal is to discuss
an effective implementation of the CSP with regard to the needs of the Kosovo Serb community.
For a complete picture of the progress made to date on CSP implementation, please refer to the
most recent version of ICO' s CSP Implementation Matrix.
255III. THE REPUBLIC OF KOSOVO'S GROWING NETWORK OF INTERNATIONAL
RELATIONS
17 February 2008 witnessed the declaration of Kosovo' s independence, and hence its entry into
the family of independent, sovereign states; the year that followed has seen Kosovo' s leadership,
together with its international partners, consolidate its statehood through the establishment of a
growing network of international relations.
Since its Declaration oflndependence, 55 states have formally recognized Kosovo's statehood,
including 22 of the 27 member states of the European Union, and states from every continent. It
has also been recognized by three of the four states with which it shares common borders.
Kosovo has issued its citizens with identity documents, including passports. These passports
have been recognized as valid for travel by other states.
In March 2008, the Assembly of Kosovo passed a Law on the Ministry of Foreign Affairs and
Diplomatie Service of Kosovo. Skender Hyseni was named Kosovo's first Foreign Minister and
was charged with building both his ministry and Kosovo's diplomatie representations abroad.
Laudable efforts are underway on both fronts. The initial legislation was followed by a Law on
the Foreign Service of the Republic of Kosovo and a Law on the Consular Service in Diplomatie
and Consular Missions of the Republic of Kosovo. These laws provided the legal basis for the
establishment of Kosovo's first diplomatie and consular presences abroad. Kosovo's first foreign
missions, to be headed by ten Chargés d'affaires, were announced in August 2008. The ICO has
supported the build-up of the Ministry of Foreign Affairs by establishing the Extemal Relations
Working Group, which includes officiais from the Ministry and ISG representatives.
The Govemment of Kosovo has received numerous diplomatie delegations including several
Heads of State and Govemment, and numerous ministers including ministers of foreign affairs.
The Kosovo Prime Minister, Foreign Minister and other Ministers have also been invited abroad
to further cooperation.
In July 2008, the Republic of Kosovo submitted official applications for membership in the
International Monetary Fund and the World Bank. These applications have the full support of the
ICO, and the ICR has lobbied for their acceptance. The IMF membership committee has been
formed and is about to start its work.
256IV. THE YEAR AHEAD
Kosovo and the ICO now enter their second year. ICO's partnership with the Kosovo
Government and institutions remains strong. It would be irresponsible, however, to assume that
the progress achieved to date ensures a successful conclusion. Much work lies ahead, particularly
in monitoring the implementation of CSP laws.
Our strategic priorities for the coming months are to:
• help ensure a successful completion of the reform of the security sector;
• keep our focus on decentralization;
• help strengthen the rule of law, in close cooperation with EULEX;
• attend to good governance and economic reform.
Of all sectors, that involving public security and safety has seen the most institutional progress
over recent months. All security institutions set forth in Annex VIII of the CSP and Chapter XI
of the Constitution are now moving ahead. But some are untried in practice and incomplete in
personnel. Resource needs will continue. The ICO and the international community will have to
offer steady support to ensure that the fledgling institutions, given their central role in society,
will develop.
As in 2008, ICO will continue its work with the Government of Kosovo to advance the process
of decentralization, both the creation of the five-plus-one municipalities foreseen in the CSP and
the transfer of competencies to all of Kosovo' s local governments. A successful decentralization
process, which will allow all communities to determine their own affairs on the local and
municipal level, will be a key element for a sustainable reconciliation in Kosovo.
Further efforts to enhance good governance and the Rule of Law are needed. The ICO will
continue to work closely with the EULEX mission, in order to foster the rule of law in Kosovo.
The challenges range from enabling the operations of Customs throughout the territory; efficient,
fair and competent courts; as well as a competent multiethnic police throughout the entire
territory of Kosovo.
Finally, the accelerated reform of the economy must include several elements, all of which touch
on CSP responsibilities. The ICO will continue to encourage fiscal responsibility from the
Government of Kosovo, mainly by enhancing the sustainability and the quality of the budget,
through CSP-mandated budget consultations. ICO will also encourage its Kosovo partners to
keep their pledge to complete quickly, through the Privatization Agency of Kosovo, the
privatization of socially-owned enterprises and the assessment of creditor and ownership daims
over them. Kosovo also needs to start privatizing large publicly owned enterprises in a
257transparent manner, as well as to improve standards of the govemance of all publicly-owned
enterprises, with a view toward their eventual privatization. The ICO will work together closely
with the Kosovo authorities to push for a transparent and objective process of selecting and
appointing members of boards and other key positions, as foreseen in the CSP. The ICR will also
support the reform of the energy sector inorder to help establishing a viable economic
development.
Through continued effort and vigilance, we believe that 2009 will be a year of progress for
Kosovo -- progress in meeting its commitments to itself and to its international partners to
implement the CSP, and progress toward the destiny foreseen in its Constitution, "as a free
democratic, and peace-loving country that will be a homeland to all of its citizens."
258 Annex4
CONSTITUTION OF THE REPUBLIC OF Kosovo
Preamble, Table of Contents (English translations), and
Summary of Principal Provisions (unofficial)*
* The full Albanian and Serbian text of the Constitution of the Republic of Kosovo and an English
Translation are available on the website of the Assembly of the Republic of Kosovo
(http://www.assembly-kosova.org/common/docs/Kushtetuta_sh.pdf (in Albanian), http://www.assembly
kosova.org/common/docs/Ustavl Republike Kosovo Srpski .pdf (in Serbian) and http://www.assembly
kosova.org/common/docs/Constitution 1 of the Republic of Kosovo.pdf (in English)). CONSTITUTION OF THE REPUBLIC OF KOSOVO
We, thepeople of Kosovo,
Determined to build a future of Kosovo as a free, democratic and peace-loving country
that will be a homeland to all of its citizens;
Committed to the creation of a state offree citizens that will guarantee the rights of every
citizen, civilfreedoms and equality of all citizens before the law;
Committed to the state of Kosovo as a state of economic wellbeing and social prosperity;
Convinced that the state of Kosovo will contribute to the stability of the region and entire
Europe by creating relations of good neighborliness and cooperation with ail neighboring
countries;
Convinced that the state of Kosovo will be a dignified member of the family of peace
loving states in the world;
With the intention of having the state of Kosovo Jully participating in the processes of
Euro-Atlantic integration;
In a solemn manner, we approve the Constitution of the Republic of Kosovo.
CHAPTER 1 CHAPTER Il
BASIC PROVISIONS FUNDAMENTAL RIGHTS AND FREEDOMS
Art. 1 Definition of State Art. 21 General Principles
Art. 2 Sovereignty Art. 22 Direct Applicability of International
Art. 3 Equality before the Law Agreements and Instruments
Art. 4 Form ofGovernment and Separation of Art.23 Human Dignity
Power Art. 24 Equality before the Law
Art. 5 Languages Art. 25 Right to Life
Art. 6 Symbols Art. 26 Right to Persona! Integrity
Art. 7 Values Art. 27 Prohibition of Torture, Cruel, Inhuman or
Art. 8 Secular State Degrading Treatment
Art. 9 Cultural and Religious Heritage Art. 28 Prohibition ofSlavery and Forced Labor
Art. 10 Economy Art. 29 Right to Liberty and Security
Art. 11 Currency Art. 30 Rights of the Accused
Art. 12 Local Government Art. 31 Right to Fair and Impartial Trial
Art. 13 Capital City Art. 32 Right to Legal Remedies
Citizenship Art. 33 The Principle ofLegality and
Art. 14
Art. 15 Citizens Living Abroad Proportionality in Criminal Cases
Art. 16 Supremacy of the Constitution Art. 34 Right not to Be Tried Twice for the Same
Art. 17 International Agreements Criminal Act
Art. 18 Ratification of International Agreements Art. 35 Freedom of Movement
Art. 19 Applicability of International Law Art. 36 Right to Privacy
Art. 20 Delegation of Sovereignty Art. 37 Right to Marriage and Family
261Art. 38 Freedom of Belief, Conscience and CHAPTER V
Religion PRESIDENT OF THE REPUBLIC OF Kosovo
Art. 39 Religious Denominations
Art. 40 Freedom of Expression Art.83 Status of the President
Art. 84 Competencies of the President
Art. 41 Right of Access to Public Documents Art.85 Qualification for Election of the President
Art. 42 Freedom of Media Art. 86 Election of the President
Art. 43 Freedom of Gathering
Art. 44 Freedom of Association Art. 87 Mandate and Oath
Art. 88 Incompatibility
Art. 45 Freedom of Election and Participation Art. 89 Immunity
Art. 46 Protection of Property
Art. 47 Right to Education Art.90 Temporary Absence of the President
Art. 48 Freedom of Art and Science Art. 91 Dismissal of the President
Art. 49 Right to Work and Exercise Profession CHAPTER VI
Art. 50 Rights of Children
Art. 51 Health and Social Protection GOVERNMENT OF THE REPUBLIC OF Kosovo
Art. 52 Responsibility for the Environment
Art. 92 General Principles
Art. 53 Interpretation of Human Rights Art.93 Competencies of the Govemment
Provisions Art. 94 Competencies of the Prime Minister
Art. 54 Judicial Protection ofRights Art. 95 Election of the Govemment
Art. 55 Limitations on Fundamental Rights and
Art. 96 Ministries and Representation of
Freedoms Communities
Art. 56 Fundamental Rights and Freedoms during Art. 97 Responsibilities
a State ofEmergency Art. 98 Immunity
CHAPTERIII Art. 99 Procedures
RIGHTS OF COMMUNITIES AND THEIR MEMBERS Art. 100 Motion of No Confidence
Art. 101 Civil Service
Art. 57 General Principles
Art. 58 Responsibilities of the State CHAPTER VII
Art. 59 Rights of Communities and Their JUSTICE SYSTEM
Members
Art. 60 Consultative Council for Communities Art. 102 General Principles of the Judicial System
Art. 103 Organization and Jurisdiction of Courts
Art. 61 Representation in Public Institutions Art. 104 Appointment and Removal of Judges
Employment
Art. 62 Representation in the Institutions of Local Art. 105 Mandate and Reappointment
Govemment Art. 106 Incompatibility
Art. 107 Immunity
CHAPTERIV Art. 108 Kosovo Judicial Council
ASSEMBL y OF THE REPUBLIC OF Kosovo
Art. 109 State Prosecutor
Art. 63 General Principles Art. 110 Kosovo Prosecutorial Council
Art. 111 Advocacy
Art. 64 Structure of Assembly
Art. 65 Competencies of the Assembly
Art. 66 Election and Mandate CHAPTER VIII
Art. 67 Election of the President and Deputy CONSTITUTIONAL COURT
Presidents Art. 112 General Principles
Art. 68 Sessions Art. 113 Jurisdiction and Authorized Parties
Art. 69 Schedule of Sessions and Quorum Art. 114 Composition and Mandate of the
Art.70 Mandate of the Deputies
Constitutional Court
Art. 71 Qualification and Gender Equality Art. 115 Organization of the Constitutional Court
Art. 72 Incompatibility Art. 116 Legal Effect of Decisions
Art. 73 Ineligibility Art. 117 Immunity
Exercise of Function
Art. 74 Art. 118 Dismissal
Art.75 Immunity
Art. 76 Rules of Procedure CHAPTERIX
Art. 77 Committees
ECONOMIC RELATIONS
Art. 78 Committee on Rights and Interests of Art. 119 General Principles
Communities
Art. 79 Legislative Initiative Art. 120 Public Finances
Art. 80 Adoption of Laws Art. 121 Property
Art. 122 Use of Property and Natural Resources
Art.81 Legislation of Vital Interest
Art. 82 Dissolution of the Assembly
262 CHAPTERX CHAPTER XIII
LOCAL GOVERNMENT AND TERRITORIAL FINAL PROVISIONS
ÜRGANIZATION
Art. 143 Comprehensive Proposa! for the Kosovo
Art. 123 General Principles Status Settlement
Art. 124 Local Self-Government Organization and Art. 144 Amendments
Operation Art. 145 Continuity of International Agreements
and Applicable Legislation
CHAPTERXI
SECURITY SECTOR CHAPTER XIV
TRANSITIONAL PROVISIONS
Art. 125 General Principles
Art. 126 Kosovo Security Force Art. 146 International Civilian Representative
Art. 127 Kosovo Security Council Art. 147 Final Authority of the International
Art. 128 Kosovo Police Civilian Representative
Art. 129 Kosovo Intelligence Agency Art. 148 Transitional Provisions for the Assembly
Art. 130 Civilian Aviation Authority of Kosovo
Art. 131 State of Emergency Art. 149 Initial Adoption ofLaws of Vital Interest
Art. 150 Appointment Process for Judges and
CHAPTER XII Prosecutors
INDEPENDENT INSTITUTIONS Art. 151 Temporary Composition of Kosovo
Art. 132 Role and Competencies of the Judicial Council
Art. 152 Temporary Composition of the
Ombudsperson Constitutional Court
Art. 133 Office of Ombudsperson Art. 153 International Military Presence
Art. 134 Qualification, Election and Dismissal of
the Ombudsperson Art. 154 Kosovo Protection Corps
Art. 155 Citizenship
Art. 135 Ombudsperson Reporting Art. 156 Refugees and Internally Displaced
Art. 136 Auditor-General of Kosovo
Art. 137 Competencies of the Auditor-General of Persans
Art. 157 Auditor-General of Kosovo
Kosovo Art. 158 Central Banking Authority
Art. 138 Reports of the Auditor-General of Kosovo Art. 159 Socially Owned Enterprises and Property
Art. 139 Central Election Commission
Art. 140 Central Bank of Kosovo Art. 160 Publicly Owned Enterprises
Art. 161 Transition of Institutions
Art. 141 Independent Media Commission Art. 162 Effective Date
Art. 142 Independent Agencies
263 Principal Provisions of the Constitution (Summary)
This informai summary describes the principal provisions of the Constitution of the
Republic of Kosovo that may be of particular interest in the present proceedings.
CHAPTER I:BASIC PROVISIONS
The Republic of Kosovo is an independent, sovereign, democratic, unique and
indivisible State (art. 1(1)). It shall have no territorial claims against, and shall seek no
union with, any State or part of any State (art. 1(3)). The Republic of Kosovo is a secular
State (art. 8).
The Constitution is the highest legal act of the Republic of Kosovo (art. 16 (1)). The
Republic of Kosovo shall respect international law (art. 16 (3)). The Republic of Kosovo
concludes international agreements and becomes a member of international organizations
(art. 17 (1)). International agreements relating to certain subjects are ratified by two thirds
vote of all Deputies of the Assembly (art. 18 (1)). Other international agreements are
ratified upon signature of the President of the Republic (art. 18 (2)). International
agreements become part of the internai legal system upon publication in the Official
Gazette. They are directly applied except where application requires the promulgation of a
law (art. 19 (1)). International agreements and norms of international law have superiority
over the laws of the Republic (art. 19 (2)).
CHAPTER II:FUNDAMENT AL RIGHTS AND FREEDOMS
Various provisions of the Constitution emphasise the commitment to human rights.
In addition to the catalogue of rights and freedoms in Chapter II (articles 23 to 52), these
include articles 1(2) (respect for human rights and freedoms), 3 (Equality Before the Law),
5 (Languages), 7 (Values), 9 (Cultural and Religious Heritage), and 144 (3) (constitutional
amendments may not diminish rights and freedoms).
The opening provisions of Chapter II include General Principles (art. 21), and
provision for the direct applicability of eight international human rights instruments,
including the European Convention for the Protection of Human Rights and Fundamental
Freedoms and its Protocols and the International Covenant on Civil and Political Rights
and its Protocols (art. 22).
The catalogue of fundamental rights and freedoms goes beyond those contained in
the European Convention and the International Covenant. It includes, for example, Right
of Access to Public Documents (art. 41), Freedom of Art and Science (art. 48), Right to
Work and Exercise Profession (art. 49), Health and Social Protection (art. 51) and
Responsibility for the Environment (art. 52).
Human rights and fundamental freedoms shall be interpreted consistent with the
decisions of the European Court ofHuman Rights (art. 53).
265 Provision is made for the judicial protection of rights (art. 54) and for limitations on
rights only in accordance with law and to the extent necessary for the fulfilment of the
purpose of the limitation in an open and democratic society (art. 55). Many of the rights
are non-derogable even during a State of Emergency (art. 56).
CHAPTER IIIRlGHTS OF COMMUNITIES AND THEIR MEMBERS
Chapter III contains specific provisions relating to the rights of the various
Communities in the Republic (art. 57 (1)), based on the principle of non-discrimination
(art. 57 (2)). It is the duty of the State to ensure appropriate conditions enabling members
of Communities to preserve, protect and promote their identities (art. 58 (1)).
Provision is made for the establishment of a Consultative Council for Communities
containing representatives of all Communities to reflect their various interests (art. 60).
addition, Communities are to be represented in Local Government (art. 62).
CHAPTER IV: ASSEMBL y OF THE REPUBLIC OF Kosovo
The Assembly consists of 120 Deputies elected by secret ballot on the basis of open
lists (art. 64 (1)), with ten seats guaranteed for candidates representing the Kosovo Serb
Community (art. 64 (2) (1)), and another ten reserved for other Communities
(art. 64 (2) (2)).
The Assembly can make constitutional amendments only with a two-thirds majority
vote of all its Deputies, including a two-thirds majority of all Deputies who hold reserved
seats as representatives of Communities (art. 65 (2)).
The Assembly elects, and may dismiss, the President of the Republic (art. 65 (7)) and
the Government (art. 65 (8)), and proposes judges for the Constitutional Court
(art. 65 (11)).
The Assembly is elected for a mandate of four years (art. 66(1)), which may only be
extended in a State ofEmergency (art. 66(4)).
Legislation is adopted by a majority vote of Deputies present and voting (art. 80 (1)),
unless it is of vital interest, which includes legislation conceming municipalities,
implementing the rights of Communities and their members, the use of language, local
elections, protection of cultural heritage, religious freedom, education or use of symbols.
Such legislation requires both the majority of Deputies present and voting, and the majority
of Deputies present and voting holding seats reserved or guaranteed for representatives of
Communities that are not in the majority (art. 81 (1)).
CHAPTER V: PRESIDENT OF THE REPUBLIC OF Kosovo
The President is the head of state and represents the unity of the people of the
Republic of Kosovo (art. 83).
266 His competencies include: guaranteeing the constitutional functioning of the
institutions set out in the Constitution (art. 84 (2)); leading foreign policy (art. 84 (10));
being the Commander-in-Chief of the Kosovo Security Force (art. 84 (12)); appointing
judges to the Constitutional Court upon the proposai of the Assembly (art. 84 (19)); and
declaring a State of Emergency (art. 84 (22)).
The President is elected by the Assembly in a secret ballot (art. 86 (1)), by a two
thirds majority of Deputies (art. 86 (4)). The term of office is five years (art. 87 (2)), and
re-electable only once (art. 87 (3)).
CHAPTER VI:GOVERNMENT OF THE REPUBLIC OF Kosovo
The Govemment consists of the Prime Minister, Deputy Prime Minister(s) and
Ministers (art. 92 (1)).
The competencies of the Govemment include: proposing and implementing internai
and foreign policy (art. 93 (1)) and proposing laws to the Assembly (art. 93 (3)).
The President of the Republic proposes to the Assembly a candidate for Prime
Minister, who then presents the composition of the Govemment to the Assembly for
approval (art. 95 (1) and (2)).
At least one Minister and two Deputy Ministers must be from the Kosovo Serb
Community, and at least one Minister and two Deputy Ministers must be from other
Kosovo non-majority Communities (art. 96).
The Govemment is accountable to the Assembly regarding its work (art. 97 (1)).
The composition of the civil service shall reflect the diversity of the people of
Kosovo and take into account intemationally recognized principles of gender equality
(art. 101 (1)).
CHAPTER VII: JUSTICE SYSTEM
Judicial power is unique, independent, fair, apolitical and impartial and ensures equal
access to the courts (art. 102 (2)).
The Supreme Court of Kosovo is the highestjudicial authority (art. 103 (2)). At least
15 % of judges, but no fewer than three, shall be from non-majority Communities
(art. 103 (3)).
The President of the Republic shall appoint, reappoint and dismiss judges upon the
proposai of the Kosovo Judicial Council (art. 104 (1)).
267 The composition of the judiciary shall reflect the ethnie diversity of Kosovo and the
intemationally recognized principles of gender equality (art. 104 (2)), and the composition
of the courts shall reflect the ethnie composition of the territorial jurisdiction of the
respective court (art. 103 (3)).
The Kosovo Judicial Council shall ensure that the Kosovo courts are independent,
professional and impartial and fully reflect the multi-ethnic nature of Kosovo and follow
the principles of gender equality (art. 108 (2)). It is responsible for recruiting and
proposing candidates for appointment and reappointment to judicial office (art. 108 (3)),
and the general administration of the judiciary (art. 108 (5)). It is to be composed of 13
members: five elected by members of the judiciary, four elected by the Deputies of the
Assembly, two elected by Deputies of the Assembly holding guaranteed seats for the
Kosovo Serb community, and two elected by Deputies of the Assembly holding guaranteed
seats for other Communities (art. 108 (6)).
CHAPTER VIII: CONSTITUTIONAL COURT
The Constitutional Court is the final authority for the interpretation of the
Constitution and the compliance of laws with the Constitution (art. 112 (1)).
Judges are appointed by the President of the Republic upon the proposai of the
Assembly and serve for a non-renewable mandate of nine years (art. 114 (2)).
Seven of the nine judges are proposed with a two-thirds majority of the Deputies
present and voting in the Assembly. The remaining two are proposed with a majority vote
of the Assembly, but only upon the consent of the majority of the Deputies holding seats
guaranteed for the representatives of the Communities not in the majority in Kosovo
(art. 114 (3)).
CHAPTER IX: ECONOMIC RELATIONS
The Republic is to ensure a market economy, freedom of economic activity and
safeguards for public and private property (art. 119 (1)).
Equal rights are ensured for all domestic and foreign investors and enterprises
(art. 119 (2)), with foreign investors entitled to freely transfer profit and invested capital
outside the country (art. 119 (6)).
Public expenditure and the collection of public revenue shall be based on the
principles of accountability, effectiveness, efficiency and transparency (art. 120 (1)).
CHAPTERX: LOCAL ÜOVERNMENT AND TERRITORIAL ÜRGANIZATION
The right to local self-government is guaranteed (art. 123 (1)), with local self
govemment exercised by representative bodies (art 123 (2)). The Republic shall observe
268and implement the European Charter on Local Self-Government to the same extent as that
required of a signatory State (art. 123 (3)).
CHAPTER XI: SECURITY SECTOR
Security institutions in the Republic are to protect public safety and the rights of all
people in the Republic. Security institutions are to reflect the ethnie diversity of the
population of the Republic (art. 125 (2)).
The Kosovo Security Force is the national security force and may send members
abroad in full conformity with its international responsibilities (art. 126 (1)).
The Police of the Republic are responsible for the preservation of public order and
safety throughout the territory of the Republic (art. 128 (1)), and shall reflect the ethnie
diversity of the Republic (art. 128 (2)). The Police of the Republic are responsible for
border control in direct cooperation with local and international authorities (art. 128 (5)).
The President of the Republic may declare a State of Emergency when: there is a
need for emergency defence measures; there is internal danger to the constitutional order
or to public security; or there is a natural disaster affecting all or part of the territory of the
Republic (art. 131 (1)). During the State of Emergency, the Constitution is not suspended
(art. 131 (1)). Detailed provisions are included concerning a State of Emergency
CHAPTER XII: INDEPENDENT INSTITUTIONS
An independent Ombudsperson monitors, defends and protects the rights and
freedoms of individuals from unlawful or improper acts or failures to act of public
authorities (art. 132 (1)).
Provisions is made for the Auditor-General (art. 136), the Central Election
Committee (art. 139), the Central Bank of Kosovo (art. 140), the Independent Media
Commission (art. 141), and other independent agencies (art. 142).
CHAPTER XIII: FINAL PROVISIONS
All authorities in the Republic of Kosovo shall abide by all of Kosovo's obligations
under the Ahtisaari Settlement, and take all necessary actions for their implementation
(art.143 (1)). The provisions of the Settlement take precedence over all other legal
provisions in Kosovo (art. 143 (2)). The Constitution, laws and other legal acts shall be
interpreted in compliance with the Settlement; if there are inconsistencies the provisions of
the Settlement prevail (art. 143 (3)).
Amendments to the Constitution require the approval of two thirds of all Deputies,
including two thirds of all Deputies holding reserved or guaranteed seats for
representatives of non-majority Communities (art. 144 (2)). Before adoption, the
269Constitutional Court has to assess that the proposed amendment does not diminish any of
the rights and freedoms set forth in Chapter II (art.144 (3)).
Article 145 provides for the continuity of international agreements and applicable
legislation.
CHAPTER XIV: TRANSITIONAL PROVISIONS
The Constitution provides that the International Civilian Representative and other
international organizations and actors mandated under the Ahtisaari Settlement have the
mandate and powers set forth under the Settlement; and all authorities in Kosovo shall
cooperate fully with them, and shall give effect to their decisions or acts (art. 146).
The International Civilian Representative is the final authority in Kosovo regarding
interpretation of the civilian aspects of the Settlement (art. 147).
The international military presence (KFOR) has the mandate and powers set forth
under the relevant international instruments including Security Council
resolution 1244 (1999) and the Ahtisaari Settlement. The Head of the international military
presence is the final authority in theatre regarding the interpretation of those aspects of the
Settlement that refer to the international military presence (art. 153).
All legal residents of the Republic as the date of the adoption of the Constitution
have the right to citizenship (art. 155 (1)). The Republic recognizes the right of all citizens
of the former Federal Republic of Yugoslavia habitually residing in Kosovo on
1January 1998 and their direct descendents to Republic of Kosovo citizenship regardless
of their current residence and of any other citizenship they may hold (art. 155 (2)).
The Republic of Kosovo shall promote and facilitate the safe and dignified return of
refugees and internally displaced persons and assist them in recovering their property and
possession (art. 156).
270 Annex 5
TABLE OF LAws ADOPTED BY THE ASSEMBLY OF THE REPUBLIC Kosovo Laws Adopted by the Assembly of the Republic of Kosovo
No. Name Date of Publication
approval
03/L-033 Law on the Status, Immunities, and 20.02.2008 Official Gazette of the Republic
Privileges of Diplomatie and Consular of Kosova, No. 26, 2 June 2008,
Missions and Personnel in Kosovo and of the p.46
International Military Presence and its
Personnel
03/L-034 Law on Citizenship ofKosova 20.02.2008 Ibid., No. 26, 2 June 2008, p. 28
03/L-035 Law on Police 20.02.2008 Ibid., No. 28, 4 June 2008, p. 29
03/L-036 Law on Kosova Police Inspektorate 20.02.2008
Ibid., No. 26, 2 June 2008, p. 18
03/L-037 Law on Travel Documents 20.02.2008 Ibid., No. 27, 3 June 2008, p. 69
03/L-038 Law on the Use of Kosovo State Symbols 20.02.2008 Ibid., No. 26, 2 June 2008, p. 35
03/L-039 Law on Special Protective Zones 20.02.2008 Ibid., No. 28, 4 June 2008, p. 74
03/L-040 Law on Local Self Govemment 20.02.2008 Ibid., No. 28, 4 June 2008, p. 47
03/L-041 Law on Administrative Municipal 20.02.2008 Ibid., No. 26, 2 June 2008, p. 1
Boundaries
03/L-044 Law on Ministry for Foreign Affairs and 13.03.2008 Ibid., No. 26, 2 June 2008, p. 50
Diplomatie Service of Republic of Kosovo
03/L-045 Law on Ministry for the Kosovo Security 13.03.2008 Ibid., No. 26, 2 June 2008, p. 54
Force
03/L-046 Law on the Kosovo Security Force 13.03.2008 Ibid., No. 27, 3 June 2008, p. 76
03/L-047 Law on The Protection and Promotion of the 13.03.2008 Ibid., No. 28, 4 June 2008, p. 65
Rights of Communities and their Members in
Republic of Kosovo
03/L-048 Law on Public Financial Management and 13.03.2008 Ibid., No. 27, 3 June 2008, p. 1
Accountability
03/L-049 Law on Local Govemment Finance 13.03.2008 Ibid., No. 27, 3 June 2008, p. 34
03/L-050 Law on Establishment of the Kosovo 13.03.2008 Ibid., No. 26, 2 June 2008, p. 41
Security Council
03/L-051 Law on Civil Aviation 13.03.2008 Ibid., No. 28, 4 June 2008, p. 1
03/L-052 Law on Special Prosecution Office of the 13.03.2008
Ibid., No. 27, 3 June 2008, p. 47
Republic of Kosovo
03/L-053 Law on Jurisdiction, Case Selection and Case 13.03.2008 Ibid., No. 27, 3 June 2008, p. 59
Allocation of EULEX Judges and
Prosecutors in Kosovo
03/L-005 Law on Civil Use of Explosives 16.05.2008 Ibid., No. 33, 15 Jul. 2008, p. 56
03/L-063 Law on the Kosovo Intelligence Agency 21.05.2008 Ibid., No. 30, 15 June 2008, p. 17
273 No. Name Date of Publication
approval
03/L-065 Law on Integrated Management and Control 21.05.2008 Ibid., No. 30, 15June 2008, p. 44
of the State Border
03/L-066 Law on Asylum 21.05.2008 Ibid., No. 30, 15June 2008, p. 1
03/L-067 Law on the Privatization Agency of Kosovo 21.05.2008 Ibid., No. 30, 15June 2008, p. 30
03/L-068 Law on Education in the Municipalities of 21.05.2008 Ibid., No. 30, 15 June 2008, p. 51
the Republic of Kosovo
03/L-064 Law on Official Holidays in Republic of 23.05.2008 Ibid., No. 30, 15 June 2008, p. 56
Kosovo
03/L-008 Law on Executive Procedure 02.06.2008 Ibid., No. 33, 15July 2008, p. 1
03/L-072 Law on Local Elections in the Republic of 05.06.2008 Ibid., No. 32, 15June 2008, p. 35
Kosovo
03/L-073 Law on General Elections in the Republic of 05.06.2008 Ibid., No. 31, 15June 2008, p. 1
Kosovo
03/L-074 Law on the Central Bank of the Republic of 05.06.2008 Ibid., No. 32, 15June 2008, p. 15
Kosovo
03/L-075 Law on the Establishment of the Office of 05.06.2008 Ibid., No. 32, 15June 2008, p. 42
the Auditor General of Kosovo and the Audit
Office of Kosovo
03/L-076 Law on Railways in the Republic of Kosovo 05.06.2008 Ibid., No. 32, 15June 2008, p. 1
03/L-079 Law on amending UNMIK Regulation 13.06.2008 Ibid., No. 32, 15June 2008, p. 47
2006/50 on the Resolution of Claims
Relating to Private Immovable Property,
Including Agricultural and Commercial
Property
03/L-080 Law on Amending Kosovo Assembly Law 13.06.2008 Ibid., No. 32, 15June 2008, p. 55
No. 2004/9 on the Energy Regulator
03/L-081 Law on Amending UNMIK Regulation 13.06.2008 Ibid., No. 32, 15June 2008, p. 59
No. 2005/2 on the Establishment of the
Independent Commission for Mines and
Minerais
03/L-082 Law on Service in the Kosovo Security Force 13.06.2008 Ibid., No. 32, 15 June 2008, p. 28
03/L-083 Law on Dissolution of the Kosovo Protection 13.06.2008 Ibid., No. 31, 15June 2008, p. 58
Corps
03/L-084 Law on Amending UNMIK Regulation 13.06.2008 Ibid., No. 32, 15June 2008, p. 50
2005/20 Amending UNMIK Regulation
2001/35 on Kosovo Pensions Trust
03/L-085 Law on Amending UNMIK Regulation No. 13.06.2008 Ibid., No. 32, 15 June 2008, p. 53
2003/16 on the Promulgation ofa Law
adopted by the Assembly of Kosovo on
Telecommunications
274 No. Name Date of Publication
approval
03/L-086 Law on Amending UNMIK Regulation 13.06.2008 Ibid., No. 31, 15 June 2008, p. 61
2004/49 on the Activities of Water,
Wastewater and Waste Services Providers
03/L-087 Law on Publicity Owned Enterprises 13.06.2008 Ibid., No. 31, 15 June 2008, p. 39
03/L-088 Law on Amendment ofUNMIK Regulation 13.06.2008 Ibid., No. 32, 15 June 2008, p. 57
No. 2008/13 on the approval of the Kosovo
Consolidated Budget and Authorizing
Expenditures for the period 1January to
31 December 2008
03/L-089 Law on Amendments to the Law on 13.06.2008 Ibid., No. 31, 15 June 2008, p. 63
Administrative Municipal Boundaries, Law
on the Privatization Agency of Kosovo, Law
on Education in the Municipalities of the
Republic of Kosovo, Law on Official
Holidays in Republic of Kosovo, Law on the
Kosovo Intelligence Agency, Law on
Asylum and Law on Integrated Management
And Control of the State Border
03/L-001 Law on Benefits to Fonner High Officials 19.06.2008 Ibid., No. 33, 15 July 2008, p. 67
03/L-006 Law on Contentious Procedure 30.06.2008 Ibid., No. 38, 20 Sep.. 2008, p. 1
03/L-054 Law on Stamps of the Republic of Kosovo 30.07.2008 Ibid., No. 38, 20 Sep. 2008, p. 77
Institutions
03/L-093 Law on Amendment to Law No. 03/L-088 on 30.07.2008
the Approval of the Kosovo Consolidated
Budget and Authorizing Expenditures for the
period from I January to 31 December 2008
03/L-057 Law on Mediation 18.09.2008 Ibid., No. 41, 1Nov. 2008, p. 6
03/L-099 Law on Identity Card 03.10.2008 Ibid., No. 41, 1Nov. 2008, p. 1
03/L-004 Law on the Amending and Supplementing 03.10.2008 Ibid., No. 41, 1Nov. 2008, p. 12
and of the Law No. 2003/9 on Fanner's
Cooperatives
03/L-100 Law on the pensions for Kosovo Protection 10.10.2008 Ibid., No. 41, 1Nov. 2008, p. 13
Corps members
03/L-010 Law on Notary 17.10.2008 Ibid., No. 42, 25 Nov. 2008, p. 5
03/L-031 Law on Amending and Supplementing Law 17.10.2008 Ibid., No. 42, 25 Nov. 2008, p. 1
No. 02/L-5 on Supporting the Small and
Medium Enterprises
03/L-002 Law on Supplementing and Amending of the 06.11.2008 Ibid., No. 44, 22 Dec. 2008, p. 4
Criminal Code of Kosovo
03/L-003 Law on Supplementing and Amending of the 06.11.2008 Ibid., No. 44, 22 Dec. 2008, p. 1
Kosovo Code of Criminal Procedure
03/L-018 Law on Final and State Matura Exam 06.11.2008 Ibid., No. 44, 22 Dec. 2008, p. 5
275 No. Name Date of Publication
approval
03/L-056 Law on National State Song and Dance 06.11.2008 Ibid., No. 44, 22 Dec. 2008, p. 40
Ensemble "Shota" and other Ensembles
03/L-110 Law on Tennination of Pregnancy 06.11.2008 Ibid., No. 48, 6 Feb. 2009, p. 1
03/L-060 Law on National Qualifications 07.11.2008 Ibid., No. 44, 22 Dec. 2008, p. 33
03/L-077 Law on Amendments and Supplementing of 07.11.2008 Ibid., No. 44, 22 Dec. 2008, p. 46
the Law No. 2003/7 on Archives and
Archive Materials
03/L-042 Law on Protection Products 07.11.2008 Ibid., No. 44, 22 Dec. 2008, p. 13
03/L-106 Law Amending the Law on Spatial Planning 10.11.2008 Ibid., No. 42, 25 Nov. 2008, p. 35
No. 2003/14
03/L-107 Law Amending the Law on the Ministry of 10.11.2008 Ibid., No. 42, 25 Nov. 2008, p. 34
the Kosovo Security Force No. 03/L-045
03/L-108 Law Amending the Law on the Kosovo 10.11.2008 Ibid., No. 42, 25 Nov. 2008, p. 33
Security Force No. 03/L-046
03/L-109 Customs and Excise Draft Code of Kosovo 10.11.2008 Ibid., No. 43, 11Nov. 2008, p. 1
03/L-007 Law on Out Contentious Procedure 20.11.2008 Ibid., No. 45, 12 Jan. 2009, p. 21
03/L-029 Law on Agriculture Inspection 20.11.2008 Ibid., No. 45, 12Jan. 2009, p. 1
03/L-116 Law on Central Heating 20.11.2008 Ibid., No. 45, 12Jan. 2009, p. 7
03/L-117 Law on the Bar 20.11.2008 Ibid., No. 49, 25 Mar. 2009, p. 37
03/L-069 Law on Accreditation 20.11.2008 Ibid., No. 45, 12 Jan. 2009, p. 17
03/L-118 Law on Public Gatherings 04.12.2008
03/L-071 Law on Amendments and Supplements to the 04.12.2008 Ibid., No. 47, 25 Jan. 2009, p. 18
Law No. 2004/48 on Tax Administration and
Procedures
03/L-101 Law on Pardon 12.12.2008 Ibid., No. 46, 15 Jan. 2009, p. 57
03/L-120 Law for Amending and Supplementing the 12.12.2008 Ibid., No. 46, 15Jan. 2009, p. 51
Law No. 2003/11 on Roads
03/L-121 Law on the Constitutional Court of the 16.12.2008 Ibid., No. 46, 15Jan. 2009, p. 20
Republic of Kosovo
03/L-122 Law on Foreign Service of the Republic of 16.12.2008 Ibid., No. 46, 15Jan. 2009, p. 31
Kosovo
03/L-123 Law on the Temporary Composition of the 16.12.2008 Ibid., No. 46, 15 Jan. 2009, p. 40
Republic of Kosovo Judicial Council
03/L-124 Law on Amending the Law on Health 16.12.2008 Ibid., No. 46, 15 Jan. 2009, p. 49
03/L-125 Law on Consular Services of Diplomatie and 16.12.2008 Ibid., No. 46, 15 Jan. 2009, p. 45
Consular Missions of the Republic of
Kosovo
276 No. Name Date of Publication
approval
03/L-126 Law on Foreigners 16.12.2008 Ibid., No. 46, 15 Jan. 2009, p. 1
03/L-019 Law on Vocational Ability, Rehabilitation 18.12.2008 Ibid., No. 47, 25 Jan. 2009, p. 9
and Employment of People with Disabilities
03/L-027 Law on Accommodation Tax in Hotel- 18.12.2008 Ibid., No. 47, 25 Jan. 2009, p. 7
Tourist Facilities
03/L-112 Law on Excise Tax Rate in Kosova 18.12.2008
Law on Corporate Income Tax
03/L-113 18.12.2008
03/L-114 Law on Value Added Tax 18.12.2008
03/L-115 Law on Persona! Income Tax 18.12.2008
03/L-105 Law on Republic of Kosovo Budget for 2009 19.12.2008
03/L-094 Law on the President of the Republic of 19.12.2008 Ibid., No. 47, 25 Jan. 2009, p. 1
Kosovo
03/L-015 Law on Environmental Strategic Assessment 12.02.2009 Ibid., No. 49, 25 Mar. 2009, p. 9
03/L-016 Law on Food 12.02.2009 Ibid., No. 49, 25 Mar. 2009, p. 19
03/L-092 Law for Replenishment and Amendment of 12.02.2009 Ibid., No. 49, 25 Mar. 2009, p. 35
Law No. 02/L-20 Technical Demands for
Products and Valuation of Confonnation
03/L-134 Law on Freedom of Association in Non- 12.02.2009 Ibid., No. 49, 25 Mar. 2009, p. 1
Govemmental Organizations
03/L-024 Law on Environmental Impact Assessment 26.02.2009
03/L-025 Law on Environmental Protection 26.02.2009
03/L-091 Law on Use Management and Maintenance 12.03.2009
of Building Joint Ownership
03/L-131 Law on Amendment and Supplementation of 12.03.2009
Law No. 2004/17 on Consumer Protection
03/L-043 Law on Integrated Prevention Pollution 26.03.2009
Control
03/L-139 Law on Expropriation of Immovable 26.03.2009
Property
277 Annex 6
DRAFT TREATY OF FRIENDSHIP AND COOPERATION
(proposed by Kosovo during the Final Status talks) DRAFT TREATY OF
FRIENDSHIP AND COOPERATION
BETWEEN KOSOVO AND SERBIA
The Contracting Parties of Kosovo and Serbia:
Acknowledging the deep ties between the peoples of Kosovo and Serbia,
including long-standing historie, cultural, ethnie and economic bonds;
Regretting the periods of conflict and war that have divided us, especially the tragic
events related to the violent collapse ofYugoslavia in the 1990s;
Declaring a sincere desire to confront the legacy of the recent past in a spirit of
reconciliation and forgiveness, even as we bring to justice those who have
committed crimes in warfare;
Believing that both Kosovo and Serbia share the common destiny of closer integration
into the Euro-Atlantic community of democracies, which will lead to a more secure,
democratic and prosperous future for all;
Hoping that the process of Euro-Atlantic integration will bring all the peoples of
southeast Europe closer together and will continue to eliminate the barriers that have
divided our nations;
Recognizing that unique historical circumstances and common interests will require an
extremely close and friendly relationship between Kosovo and Serbia for many years to
corne;
Convinced that regular, institutionalised mechanisms of cooperation and dialogue on
issues of mutual concem can help reduce tensions, enhance regional stability and advance
the common interests ofboth Kosovo and Serbia;
Solemnly agree to enter into a Treaty of Friendship and Cooperation as follows:
CHAPTERI
PURPOSE AND PRINCIPLES
ARTICLE 1
The purpose of this Treaty is to promote peace, friendship and cooperation between
Kosovo and Serbia in order to promote stability, democracy and prosperity for all.
ARTICLE2
In their relations with one another, the Parties shall be guided by the following principles:
a) Mutual respect for each other' s sovereignty and territorial integrity;
b) Renunciation of the use or threat of use of force in solving disputes;
c) Respect for human rights and fundamental freedom of all clt1zens without
discrimination of any kind, including, in particular the full protection of the national or
281 ethnie, linguistic, cultural, and religious identity of all minority communities and their
members;
d) The free movement of people, goods and capital;
e) Cooperation and dialogue on issues of mutual concem.
CHAPTERII
COMMITMENT TO EURO-ATLANTIC INTEGRATION
ARTICLE 3
The Parties confirm their desire to integrate their societies and economies fully into the
Euro-Atlantic community of democracies, in particular to take all measures necessary to
achieve membership in the European Union and NATO at the earliest possible date.
ARTICLE4
The Parties shall collaborate and assist each other wherever possible in the achievement of
the high standards and other requirements for integration into the EU and NATO. The
Parties shall take no actions that would undermine the achievement of these requirements.
CHAPTERIII
SECURITY AND THE PEACEFUL SETTLEMENT OF DISPUTES
ARTICLES
In line with the principles of the UN Charter, the Parties affirm their commitment to the
peaceful settlement of all disputes between them, and shall not use or threaten to use force
in their relations in any manner inconsistent with the Purposes of the United Nations.
ARTICLE6
The Parties shall undertake measures to enhance security cooperation, including the
development of new confidence- and security-building measures across their common
border. The Parties shall request the assistance of NATO and the Organization for
Security and Cooperation in Europe (OSCE) to develop and implement such measures as
soon as feasible. The Parties shall strive for maximum transparency in the placement and
operations of their security personnel, especially along their common border.
CHAPTERIV
COOPERATION ON PRIORITY ISSUES OF MUTUAL CONCERN
ARTICLE 7
The Parties shall undertake to intensify and deepen cooperation on all issues of mutual
concem. The Parties shall initially focus their efforts on the following priority areas:
a) Economie issues, including energy, trade and harmonization with EU standards and
development of a joint economic growth and development strategy in line with
regional economic initiatives;
282 b) Anti-crime efforts, particularly in the areas of terrorism, narcotics, trafficking m
persons, weapons smuggling, organized crime and ethnie crime;
c) Protection and preservation of religious and other cultural heritage;
d) The health and welfare of our minority communities, including the implementation of
special measures to protect and promote their rights, security and livelihood;
e) The fate of all persons missing from the war of the 1990s;
j) Public health;
g) Transportation;
h) Facilitation of cross-border movement of people and goods;
i) The return of refugees and displaced persons of all ethnicities;
j) Environmental issues.
ARTICLE 8
The Parties shall form issue-specific working groups, composed of both political and
technical specialists, to develop and advance common priorities in all of these priority
issues of mutual concern. Where appropriate, these working groups shall include
representatives of civil society groups and relevant international organizations.
CHAPTER V
KOSOVO-SERBIA PERMANENT COOPERATION COUNCIL
ARTICLE 9
Within six months of this Treaty entering into force the Parties shall establish a Kosovo
Serbia Permanent Cooperation Council. This Council shall consist of ten members, five of
whom shall be appointed by Serbia and five of whom shall be appointed by Kosovo. This
Council shall operate by consensus and have responsibilities to:
a) Oversee and facilitate cooperation in all areas of mutual concem;
b) Meet regularly to exchange information and consult on all matters that may affect the
interests of either Party;
c) Support, as required, the regular meeting of the working groups referred to in Article
8, including assistance in setting the meeting agenda and providing logistics aid as
required;
d) Assess the results of cooperation initiatives and recommend new areas for enhanced
cooperation between Kosovo and Serbia;
e) Request and facilitate third-party mediation on particularly sensitive issues of mutual
concern, such as missing persons or the retum of refugees and displaced persons.
ARTICLE 10
The Council shall convene a High-Level Meeting of the Parties at least every six months,
which shall include the Presidents, Prime Ministers and Foreign Ministers of Kosovo and
Serbia. Either Party may propose any matter for consideration or action at the High-Level
Meeting.
283 ARTICLE 11
The Council shall explore the possibility of establishing a secretariatto facilitate
cooperation and dialogue between Kosovo and Serbia.
ARTICLE 12
The Council shall facilitate dialogue among members of the Parliament of Serbia and the
Kosovo Assembly, including the creation of inter-parliamentary working groups to
enhance legislative cooperation.
CHAPTER VI
REQUEST OF WITNESSING STATES
ARTICLE 13
In the event of any dispute between the Parties, the Parties request that France, Germany,
Italy, the Russian Federation, the United Kingdom and the United States provide neutral
mediation and make other efforts to assist in the peaceful settlement of the dispute.
CHAPTER VII
FINAL PROVISIONS
ARTICLE 14
This Treaty shall be signed by leaders of Kosovo and Serbia and ratified in accordance
with thé constitutional procedures of each state. It shall enter into force upon ratification
by both Parties and be deposited with the United Nations.
ARTICLE 15
This Treaty shall be translated into Albanian, Serbian and English. The English version
shall be authoritative.
284
Written Contribution of the authors of the unilateral declaration of independence