[Translation]
M INISTRY OF FOREIGN AND E UROPEAN A FFAIRS
The Director for Legal Affairs
No. 1446/DJ
Mr. Philippe Couvreur
Registrar of the International Court of Justice
Peace Palace
2517 KJ The Hague
Netherlands
Paris, 6 July 2009
Within the deadline set by the International Court of Justice by its Order of 17 October 2008,
I have the honour to enclose herewith the Written Comments of the French Republic in the case
concerning the Accordance with International Law of the Unilateral Declaration of Independence
by the Provisional Institutions of Self-Government of Kosovo (Request for Advisory Opinion). As
requested in your letter of 20 October 2008, the original of this statement is accompanied by
30 copies. I am also enclosing an electronic version of the Written Comments on CD-ROM.
Yeoc.s
(Signed) EdwigeB ELLIARD .
___________ INTERNATIONAL COURT OFJUSTICE
R EQUEST FOA DVISORYOPINION
ACCORDANCE WITH INTERNATIONALLAW OF THEUNILATERAL DECLARATION
OFINDEPENDENCE BY THEPROVISIONALNSTITUTIONS OF
SELF-GOVERNMENT OFK OSOVO
W RITTENC OMMENTS OF THEFRENCH REPUBLIC
July 2009
[Translation by the Registry] TABLE OF C ONTENTS
Page
I. The conditions governing the exercise of the advisory function have not been fulfilled 1
1. The advisory procedure has been used in a way out of keeping with its object and
purpose........................................................................................................................... 1
2. The Court should refuse to take a position in a controversy in which the competent
organs of the United Nations have chosen to remain neutral...........................2.............
3. The question put to the Court does not lend itself to a legal response from the
perspective of international law ....................................................3...............................
4. The opinion requested is destined to have no practical impact on Kosovo’s current
position .......................................................................................................................... 3
II. The declaration of independence was not contrary to international law in any respect 7 1. By an Order dated 17 October 2008, and in accordance with Article 66, paragraph 4, of its
Statute, the International Court of Justice authorized those States and organizations which had
presented writt1n statements to submit written comments on the other written statements by
17 July 2009 . The present comments have been submitted pursuant to that Order.
2. Having acquainted itself with all of the written statements submitted to the Court, France
stands by its observations regarding the jurisdiction of the Court and the propriety of exercising it
in the present case (I). Further, it remains as certain as ever that, even if the Court were to decide
to respond to the request for an opinion, it could only conclude that the declaration of independence
of Kosovo is not contrary to international law (II).
I. The conditions governing the exercise of the advisory
function have not been fulfilled
4. A number of considerations all point, in France’s view, to the conclusion that the Court
should refuse the request addressed to it.
1. The advisory procedure has been used in a way out of keeping with its object and purpose
5. The request for an opinion submitted to the Court is, by the General Assembly’s own
admission, solely aimed, at the instigation of certain States, at shedding light on the action of other
States, or even at having the Court settle what appears to be an entirely inter-State dispute. In this
respect, the purpose underlying the request for an opinion does not correspond to that to be
achieved in advisory proceedings.
6. The only element of reasoning contained in resolution 63/3 refers solely to the existence
2
of a dispute between States . In the Western Sahara case, in order to determine whether it was
entitled to exercise its advisory jurisdiction, the Court satisfied itself that “[t]he object of the
General Assembly [in referring the matter to the Court] has not been to bring before the Court, by
way of a request for advisory opinion, a dispute or legal controversy” between States; and the
Court only laid aside that objection because the controversy in question “arose during the
3
proceedings of the General Assembly and in relation to mat4ers with which it was dealing” . That
is clearly not the case in the present instance . The Court has, moreover, emphasized the
necessarily accessory nature which the question put must possess in relation to the relevant
5
activities of the Assembly . Here again, this condition has not been satisfied in the present case, as
the Assembly was obliged to add a new item to its agenda for the sole purpose of putting an
inter-State dispute before the Court, which is a precedent in the realm of advisory proceedings 6.
One State at least openly acknowledged in its written statement the use of the advisory procedure
for contentious ends, while groundlessly accusing those States which have recognized Kosovo of
1
Order of 17 October 2008, para. 3.
2“Aware that this act [the declaration of independence] has beereceived with varied reactions by Members of
the United Nations as to its compatibility with the existing international legal order”.
3I.C.J. Reports 1975, p. 26, para. 39 and p. 25, para. 34.
4See Written Statement of France, paras. 1.23-1.26 and paras. 1.37-1.41, and that of the United States of America,
pp. 41-45.
5Aforementioned Advisory Opinion of 1975, pp.26-27, para. 39; see also Advisory Opinion of 21 June 1971 in
the Namibia case, I.C.J. Reports 1971, p. 24, para. 32.
6See Written Statement of France, paras. 1.38-1.40. - 2 -
being guilty of an act characterized as “intervention” 7. This allegation, like the use of the advisory
8
function solely for the purposes of obtaining inter-State legal advice , does not fall within the
jurisdiction the Court derives under Article96 of the Charter. It is for the Court to draw the
conclusions from this by not acceding to the request for an opinion.
2. The Court should refuse to take a position in a controversy in which the competent organs
of the United Nations have chosen to remain neutral
7. It is clear that the question put to the Court by the General Assembly both is entirely
extraneous to any Assembly activity with respect to the situation in Kosovo and arises against a
backdrop of uninterrupted activity by the Security Council. This unprecedented situation not only
gives rise to a problem in terms of jurisdiction in view of the prohibition established in Article 12
9
of the United Nations Charter but also makes it inappropriate for the Court to exercise its advisory
jurisdiction .10
8. Any opinion issued is likely to break with the neutral stance unanimously taken to date by
11
all of the United Nations organs . As the Secretary-General recently recalled, the United Nations
has adopted and “will continue to adopt a position of strict neutrality on the question of Kosovo’s
status”, in accordance with “the status-neutral framework of Security Council resolution1244
(1999)” . The Special Representative of the Secretary-General has also emphasized the crucial
13
need, when dealing with a highly sensitive14olitical situation , to respect that neutrality to ensure
that peace is maintained in Kosovo . In that regard, nothing could be further from the truth than to
claim that an advisory opinion would help “the United Nations and Member States in their
15
subsequent actions” . Quite the opposite, the declaration of independence was not at all
understood to be a significant challenge to the authority of the United Nations 16; neither the
Security Council nor the Secretary-General, let alone the General Assembly, expressed the wish in
the course of their activities to obtain “legal guidance”, in so far as they are empowered to do so,
regarding the action to be taken with respect to the situation in Kosovo, to use the terms Serbia now
7Written Statement of Argentina, para. 112. See also Written Statement of Venezuela, p. 2, last paragraph.
8Kosovo quite rightly observed in its Written Contribution that the Court should not accede to the request for an
opinion “considering, in particular, that the request was not made to assist the General Assembly in its work but as ‘legal
advice’ for Member States” (para.7.21). See to the same effect and in greater detail Written Statement of the United
States of America, pp. 41-45.
9
See Written Statement of France, paras. 1.28 et seq.
10
See Written Statement of Ireland, para.12. See also the various points made by Albania in its Written
Statement, paras. 54-70.
11
That neutrality can, in particular, be explained by the fact that the UN has not been empowered to recommend
the collective recognition of new States: see Written Statement of the United Kingdom, para. 5.59, which quotes in this
respect the travaux préparatoires of the Charter and the Memorandum of the Secretary-General of 1950.
12
See the Report of the Secretary-General on UNMIK, S/2009/300, 10June2009, paras.6 and40. See also
paras. 36, 39 and 41. The current neutrality of the UN, like that of Resolution 1244 (1999), regarding the final status of
Kosovo was also reiterated at the Security Council meeting of 17 June 2009: see S/PV.6144, p. 2 (Special Representative
of the Secretary-General and Head of UNMIK), p.11 (Vietnam), p.14 (Russia), p.16 (China), p.20 (Mexico), p.21
(Uganda).
1The Kosovo question constitutes a “highly sensitive political issue” according to the Special Representative of
the Secretary-General, Mr. Eide (quoted in the Written Statement of Serbia, para. 395).
1See S/PV.6144 (17June2009), p.3: “Our status of neutrality allows us to use our efforts to nurture the
reconciliation of Kosovo’s communities and foster regional cooperation, for the benefit of all of Kosovo’s people and for
the stability and development of the region as a whole”.
15
Written Statement of Serbia, p. 44 (“The Advisory Opinion Will Help the United Nations and Member States in
Their Subsequent Actions”).
16
Written Statement of Serbia, para. 87. See also Written Statement of France, paras. 29 and 2.70-2.81. - 3 -
17
employs to describe the objective to be achieved by the proceedings before the Court ; an answer
by the Court to the question put to it would break with the neutral stance adopted by the United
Nations with respect to the final status of Kosovo, with all the resulting risks for the conduct of
missions by the authorities at work in Kosovo within the framework of Security Council
resolution 1244 (1999).
3. The question put to the Court does not lend itself to a legal response from the perspective
of international law
9. The question put to the Court — and the Court is bound to confine itself to the question as
phrased, without the possibility of broadening its terms 18 — is devoid of any legal substance or
scope. As international law does not, apart from exceptions which no-one would claim applied in
the present case, prohibit secessions as such, or a fortiori declarations of independence (see
SectionII below), the question which constitutes the subject-matter of the request for an advisory
opinion is inherently bereft of any legal object or significance and thus does not, despite the
misleading appearance of its wording, constitute a genuine legal question concerning genuine
issues of international law . 19
4. The opinion requested is destined to have no practical impact on Kosovo’s current position
10. Whatever the meaning attributed to it, the question put before the Court is in itself devoid
of any practical import. Indeed it is acknowledged, and rightly so, by all of the States which have
taken part in the proceedings, beginning with Serbia itself, that the question of the existence of the
State of Kosovo has not been put before the Court 20. The legality of the numerous decisions to
recognize that State, in particular by a large number of European States among those most directly
concerned with regional stability, is similarly not in question 21. While certain States, not without
co22radiction, discuss Kosovo’s independence and status as a State at length, in order to challenge
it , it is perfectly clear that that is not the object of the request submitted to the Court. General
Assembly resolution63/3, as its sponsor emphasized when it was adopted, “is amply clear” and
23
“entirely non-controversial” : it concerns, as is recalled in its preamble, the “act” by which, on
1Written Statement of Serbia, paras. 91-94.
1The Court “is, in principle, bound by the terms of the questions formulated in the request” and can only, when
the need really arises, interpret their terms in order to determine the meaning (seeAdvisory Opinion of 20July1982,
Application for Review of Judgment No.273 of the United Nations Administrative Tribunal, I.C.J. Reports1982 ,
pp. 349-350, paras. 47-48).
1See Written Statement of France, paras. 1.4-1.5.
2Written Statement of Serbia, paras. 23 and 964.
21
Ibid., para. 22.
22
Ibid. paras. 964-985 (“Effectiveness Alone Is Not a Ground for Statehood”); see also the Written Statement of
Cyprus, pp.41-49, paras.159-192 (“The unilateral declaration has not created a State”). Several Written Statements by
States which have refused to recognize the independence of Kosovo focus essentially on the question of the legality of
secession; see for example the Written Statements of Iran (“no derogat ion is permitted from [the principle of territorial
integrity]. [...] States practice since 1945 shows very clearly the opposition of states to recognition or accepting
unilateral secession outside the colonial context”, p.10, Conclusions), of China (“Secession is not recognized by
international law and has always been opposed by the international community of States”, p. 6) or of Russia (“outside the
colonial context, international law allows for secession of a part of a State against the latter’s will only as a matter of
self-determination of peoples”, Conclusions, p.39, para.4). See also the Written Statement of Argentina, in which it
asserts the importance of the Court dismissing “the position of the ‘irreversibility’ of the si tuation emerging from the
unilateral declaration of independence [. . .]”, para. 36.
23
A/63/PV.22 (8 October 2008), p. 2, (Serbia). - 4 -
17February 2008, “the Provisional Institutions of Self-Government of Kosovo declared
independence from Serbia” . 24
11. In the same way that the question does not concern independence itself or the numerous
recognitions of that status that have been made 25, the Court’s answer to the only question put to it
cannot have any effect on that independence or those recognitions. Even if the Court, should it
accede to the request for an opinion, were to decide that the declaration of independence of Kosovo
was unlawful, that would not in any way affect the recognition of the State of Kosovo by numerous
States or its full and complete participation in several international organizations. Conversely,
were the Court to conclude that the declaration of 17February2008 was not contrary to
international law, nothing suggests that Serbia, or other States opposed to it, would26ecognize
Kosovo’s independence, as indeed they are in no way legally bound to do . The Court’s opinion,
whatever it may be, is in this respect devoid of any effect or useful purpose.
12. It is moreover completely pointless to imagine that use of the advisory procedure might
make it possible to alter in any away the current political status of Kosovo. Such an opinion could
not achieve what several years of negotiations have failed to obtain, whereas it could well endanger
the only political solution which has proven viable following those negotiations and one which has
27
not been criticized by any of the competent organs of the United Nations . Such an attitude is,
furthermore, highly significant, especially when compared with that prevailing before the process
aimed at determining Kosovo’s final status began in 2005. Prior to that, the Security Council and
the persons acting in its name showed no hesitation in condemning any attempt at independence.
The fact in itself that such condemnations were no longer reiterated after 2005 necessarily confirms
not only that the independence option had not been ruled out for the final status of the territory, but
that it had become an entirely viable solution. If not, such a sudden change in the position of the
organs concerned would be inexplicable . 28
13. As France indicated in its Written Statement, it would be both a pointless and a
counter-productive exercise at this point to try to establish any responsibility for the failure of the
political negotiations held on the final status of Kosovo. The fact is— as has been objectively
observed on a number of occasions — that those negotiations resulted in a deadlock considered by
all concerned to have become completely impossible by the end of 2007 to break by consensus. It
was also patently clear that maintaining the status quo was no longer tenable and would have
endangered regional stability. In those conditions, as the negotiation option had been completely
exhausted, the sole viable political alternative could only be independence, in the light, in
particular, of recent relations between Serbia and Kosovo and the need to respect the will of the
29
Kosovar people .
24
A/RES/63/3, third paragraph of the preamble.
25To date, Kosovo has been recognized by 60 States. Further, 96 States voted in favour of the application by
Kosovo to join the IMF and 95 in favour of its application to join the IBRD (see S/PV.6144, p. 10 (Kosovo)).
26See the declaration of Mr.Jeremi ü before the Security Council, 17June2009: “Serbia will never, under any
circumstances, implicitly or explicitly recognize the unilateral declaration of independence by the ethnic Albanian
authorities of our southern province. On this issue, we will not yield, come what may. We will continue to defend our
integrity in a non-confrontational manner, using all peaceful means at our disposal” (S/PV.6144, p. 6).
27See Written Statement of France, paras. 2.70-2.81.
28See in this respect the Written St atements of Austria, para. 41, the United States of America, pp. 24 and 85-86,
Germany, p. 42, and Spain, paras. 43, iv) and v), 44 and 67-71 (to the contrary), and the Written Contribution of Kosovo,
paras. 9.24-9.27.
29See Written Statement of France, paras. 2.40-2.62. - 5 -
14. Certain States, in their Written Statements, raised two objections in this respect.
15. First, the unilateral nature of the declaration of independence is alleged to have been
contrary to the process established by the Security Council, which is said to have necessitated a
negotiated settlement between the two parties concerned and a decision by the Security Council
validating it . France has never denied that a consensual settlement would have been the better
solution. The Contact Group itself, when talks on the final status of Kosovo opened, indicated that
this option was a “priority” and the “best way forward” to settle the dispute 31. But that did not
amount to making a negotiated settlement the only possible outcome. An alternative solution had
to be envisaged for the case where negotiations failed, which is what happened; and this cannot be
disregarded without ignoring the facts.
326. Since resolution 1244 (1999) did not require that a consensual solution be arrived at at all
costs , as it merely stipulated that the process would be conducted “under the auspices” of the
Security Council and UNMIK , and since it merely referred, by way of the Rambouillet Accords,
to respect for the will of the people of Kosovo, it is clear that secession, tolerated by general
international law, which neither encourages it nor forbids it, constituted a means of moving forward
in the process in the event of a complete failure of negotiations. Aware of the deadlock which
might arise in the negotiations, the Contact Group had moreover, as of September2006, asserted
that “neither party c[ould] unilaterally block the status process from advancing”, thus confirming
unambiguously that the negotiated settlement scenario (in which each party would have a right of
veto) was not the only conceivable option 34. The attitude adopted by the United Nations, and in
particular the Security Council and the persons acting under its authority, following the declaration
of independence bears this out once again beyond all possible dispute . 35
17. The second objection by those same States is made at a diffe rent level. According to
them, as the Serbia of 2008 was no longer the Serbia of 1999, it would have been entire36
conceivable simply to grant substantial autonomy to the Kosovar people . That is once again a
political determination upon which it is clearly not for the Court to rule, especially as the
negotiations did not indeed succeed in securing acceptance of the idea. France will confine itself to
stating on this matter that the reasons for concern were far from all having been dispelled at the
37
time when the people of Kosovo chose independence .
18. Whatever the political changes seen in Serbia since the fall of the Milosevi ü régime, the
trauma and scars of the past were (and still are) far from healed. The brutal repression— and
international crimes accompanying it— to which the Kosovar population was subjected in
30See Written Statements of: Cyprus, para.98; Russia, paras.59-64; Serbia, paras.751-775; Spain,
paras. 76-82; and Argentina, paras. 101-106.
31Written Statement of France, para. 2.45.
32Ibid., para. 2.34, last point.
33
See Written Statement of Serbia, para. 814.
34
See Written Statement of France, para. 2.62.
35
As recently emphasized by the Secretary-General’s Special Representative and Head of UNMIK, the neutral
stance taken by the United Nations on the question of the status of Kosovo originates in particular in resolution 1244
(1999) itself. Thus “EULEX continues to operate throughout Kosovo under the overall authority of the United Nations
and within the status-neutral framework of resolution 1244 (1999) ” (Security Council meeting of 17June2009,
S/PV.6144, p. 4 [emphasis added]); see also para. 8 above.
36See Written Statements of Russia, paras. 46 et seq. and paras. 98-101, and of Serbia, para. 646.
37
See Written Statement of France, paras. 2.56-2.57. - 6 -
1998-1999 38 could but prevent it from contemplating a future within the Serbian State, so deep did
the psychological wounds go (and still do) and so well entrenched in minds was (and still is) the
memory of the atrocities committed. There are crimes which cannot fade from the individual and
collective memory . 39
19. The behaviour of the Serbian authorities which have replaced the Milosevi ü régime has 40
not, moreover, been reassuring as to their intention to make a clean break with the past . This is
attested to in particular by the discriminatory policy maintained after 2000 and, more specifically,
41
by not including the Kosovar people in the referendum on the adoption of the 2006 Constitution .
20. Maintaining the status quo, in addition to creating major risks for the economy and
hampering the development of Kosovo 42, would also have aggravated an already unstable situation.
Independence, on the other hand, was the only outcome capable of preserving regional stability.
The international bodies directly engaged in Kosovo have repeatedly emphasized this in complete
objectivity and impartiality. While administrating Kosovo free from Serbian interference made it
possible to lay “the basis for a peaceful and normal life for all of the people of Kosovo” 43, “if its
future status remain[ed] undefined there [wa]s a real risk that the progress achieved by the Unit44
Nations and the Provisional Institutions in Kosovo c[ould] begin to unravel” . Any “further
prolongation of the future-status process put[] at risk the achievements of the United Nations in
45
Kosovo since June of 1999” and “there [wa]s a real risk of progress beginning to unravel and of
instability in Kosovo and the region” . The Contact Group said the same thing in July 2006, when
it recalled that “[t]he process must be brought to a close, not least to minimise the destabilizing
political and economic effects of continuing uncertainty over Kosovo’s future status” 47.
21. Certainly, a consensual settlement would have been the ideal solution to resolve a
situation which for too long had posed a threat to international peace and security. But given what
had proven to be the absolute impossibility of arriving at a consensual settlement and given the risk
which maintaining the status quo posed for peace and stability in the region, independence—
which had not been condemned by the competent organs of the United Nations from either the
legal or peace-keeping perspectives — emerged as the only political outcome in which the will of
3Ibid., paras. 11 et seq.
3See Written Statement of Germany, p.20: while it is true that “[t]he Serbia of today is not the Serbia of
1998/1999”, “there can be no doubt that the events of 1998/1999 have left an indelible mark on the collective memory of
the Kosovo Albanians”.
40
The Court itself found in 2007 that Serbia had still not fulfilled its obligation to pursue the perpetrators of the
acts of genocide committed in Bosnia and Herzegovina (Application of the Convention on the Prevention and Punishment
of the Crime of Genocide, Judgment of 26 February 2007, paras. 448-450).
41
See Written Statements of Switzerland, para.86, and of the United States of America, pp.27-28, and the
Written Contribution of Kosovo, end of para.8.40, as well as Serbia’s unconvincing argument, para.202 of its Written
Statement.
42
Written Statement of the United Kingdom, para. 6.33.
43
Report of the Secretary-General on UNMIK, S/2007/395, 29June2007, para.30: “In 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-Government and in creating the foundations for a functioning
economy. The Provisional Institutions have laid the basis for a peaceful and normal life for all of the people of Kosovo.”
4Ibid., para. 33.
45
Report of the Secretary-General on UNMIK, S/2007/582, 28 September 2007, para. 28.
46
Ibid., para. 29.
47
Statement of the Contact Group of 24July2006. See the Written Statement of France, para.2.46 and
footnote 158. - 7 -
the Kosovar people could be respected and peace maintained in the region. In that respect too, an
opinion of the Court will be devoid of any practical value.
22. As international law does not govern declarations of independence and (therefore) leaves
States an entirely discretionary power regarding State recognition (unless an obligation of
non-recognition exists, and no political organ of the United Nations has laid down any such in the
present case), ultimately the following conclusions must be drawn:
first, it is impossible for the Court to play its judicial role, which would require it, in Serbia’s
words, “to assess the compatibility of the unilateral declaration of independence with relevant
principles and rules of international law” 48, when, precisely, there are no such principles and
49
rules ;
second, any legal opinion, in whatever terms (if, quod non, it could be given), would serve no
useful purpose since a finding of illegality would not prevent States from recognizing Kosovo
any more than a finding of legality would oblige them to do so . 50
23. Examining whether or not the declaration of independence of Kosovo is in conformity
with international law is thus a question devoid of any object. Yet, as the Court observed in its
Opinion on the Western Sahara, its advisory function “is to give an opinion based on law, once it
has come to the conclusion that the questions put to it are relevant and have a practical and
51
contemporary effect and, consequently, are not devoid of object or purpose” .
II. The declaration of independence was not contrary
to international law in any respect
24. France has no doubt that if the Court were, in spite of everything, to exercise its advisory
function in the present case, its answer could only be confined to stating that the declaration of
independence was not contrary to international law. None of the States supporting the opposite
conclusion (just ten of the 192 Member States of the United Nations entitled to submit a written
statement) has succeeded in showing that there is any rule proscribing the act of declaring
independence or any precedent in which the mere act of declaring independence or proclaiming the
existence of a State has, in itself, been ruled to be contrary to international law. Neither analysis of
the wording of resolution1244(1999) nor of general international law has provided them any
support for their submissions.
25. There is hardly any need to return to that resolution to recall that, far from prohibiting
independence and requiring that a consensual solution be reached at any cost, it merely asked the
international civil presence to facilitate “a political process designed to determine Kosovo’s future
48Written Statement of Serbia, para. 61.
49Serbia explains that the exercise by the Court of its advisory jurisdiction on a question of law entails “the
identification of the relevant principles and rules of international law, their interpretation and, finally, their application to
the UDI” (idem.). Since international law is neutral on the question of the legality of secessions as such, it is clear that
the Court cannot engage in that judicial exercise in the present case. If there were to exist a legal answer to the question
put before the Court, it could only, at best, take up a single sentence: “Given the formulation of the question, there is a
simple answer to the question posed, namely, that international law does not address the legality of declarations of
independence per se and, accordingly, the Declaration of Independence by Kosovo is not incompatible with international
law” (Written Statement of the United Kingdom, para. 0.24).
50See Written Statement of the Czech Republic, p. 5; and that of France, paras. 1.7-1.18.
51Western Sahara, p. 37, para. 73 (emphasis added). - 8 -
status”, wording characterized by a neutrality and flexibility which faithfully reflect the purely
factual nature of the process of State formation in international society.
26. The only condition laid down by resolution 1244 (1999) was that of respect for the will
52
of the Kosovar people . In contrast, neither the consent of Serbia nor the adoption of a Security
Council decision on the final status of Kosovo was required by the Council 53. This, moreover,
explains why Serbia sought to modify the draft resolution which became resolution 1244 (1999) 54
write into it the principle that independence should be categorically ruled out and why, having
failed to achieve this, it interpreted resolution1244, with a view to challenging it, as paving the
55
way to the possible independence of Kosovo . It also explains why the various authorities
overseeing the negotiations (particularly Mr.Ahtisaari and the Troika) were able to make
independence one of the options for negotiation without the Security Council, the
Secretary-General, his Special Representative to Kosovo or the Contact Group ever indicating that
that option was prohibited by resolution 1244. The lack of any condemnation of the declaration of
56
independence by the Security Council points to the same conclusion .
27. The arguments mustered to the contrary offer no basis for now reading into the resolution
something which it did not say in 1999. Thus, the fact that, as things stood prior to
resolution 1244 (1999), independence was not includ ed among the57ptions considered desirable by
the Security Council and the international community provides no support for the argument that
independence was excluded in the situation which followed the serious crisis of 1999 and the
adoption of that resolution. Similarly, resolution1244(1999) cannot be given a forced reading
which goes so far as to confuse the principles which the Security Council intended to apply to the
interim status of Kosovo with the solutions that its final status might bring: here again i58is not
possible to rely on the former in order to assess the latter, as these States do once more .
28. In not prohibiting the independence option, resolution1244(1999) in reality merely
aligned itself with general international law, which does not prohibit secessions as such nor,
consequently, the act of declaring independence. In this respect, Serbia itself acknowledges the
principle of the neutrality of international law concerning secessions, as it frames the debate in
52
See Written Statement of France, paras. 2.28-2.39.
5As moreover Spain acknowledges in its Written Statement: “[...] Resolution1244(1999) does not expressly
mention the need for agreement” (p.50, footnote154). This silence is entirely intentional in the Rambouillet Accords
and resolution1244(1999), which refers to them, as is demonstrated a contrario by an analysis of earlier drafts which
expressly required the consent of Serbia (see the Written Statement of the United States of America, p. 17 and pp. 65-68,
and the Written Contribution of Kosovo, paras. 9.13-9.14).
54
See Written Statement of Switzerland, paras. 49-50.
55
See Written Statement of France, para. 2.26, and the Written Contribution of Kosovo, para. 4.22.
5See Written Statement of France, paras.2.70 et seq . See also the Report of the Secretary-General of
17 March 2009, S/2009/149, para. 34. The European Union did not condemn the declaration of independence either (see
for example the information provided in the Written Contribution of Kosovo, paras. 2.44-2.45).
57
See, for example, the Written Statements of Romania, paras.26 et seq. and para.41, of Slovakia, para.22, of
Russia, para.44, of Serbia, paras.728 et seq., and of Spain, para.51. The fact that a consensual solution, or one taking
account of the territorial integrity of the Federal Republic of Yugoslavia of that time, was called for by numerous States,
including France, as was noted by Serbia (para.661), even when resolution1244 was adopted and afterwards, plainly
does not mean that that resolution barred Kosovo’s accession to independence.
58
See Written Statement of Serbia, for example paras. 697 et seq., or that of Spain, paras. 35 et seq. - 9 -
59
terms of a gradual reduction of that neutrality in contemporary international law . However, at
present international law limits the obligation of non-recognition to situations not involving
secession as such, and, moreover, there has never yet been any thought of including secession with
them .60
29. Several written statements, in contrast, very rightly point to the precedents, among
others, of Slovenia, Croatia and Macedonia, which declared themselves independent at a time when
the Yugoslav predecessor State still existed and did so, moreover, contrary, to the will of Serbia,
without that ever 61ving been perceived as a violation of international law or even as a matter
governed by it . Serbia itself acknowledges, not without inconsistency, that the consequences of
the principle of territorial integrity are to be drawn in relation to the principle of the non-use of
62
force and non-intervention, rather than the prohibition of secession as such .
30. Finally, while in some situations the Security Council, for the purpose of maintaining
international peace and security, has indeed enforced respect for territorial integrity on non-State
entities and thereby prevented a secession, that cannot be sufficient in itself, as certain States
argue , to demonstrate the existence of an “erga omnes” , “absolute” international rule
safeguarding territorial sovereignty and applying “not only to neighbouring and other Stat64, but
also to those groups within the State in question that seek non-consensual secession” . The very
fact that the Security Council did not lay down such a prohibition in resolution 1244 (1999) shows
precisely that, on the contrary, it did not seek to extend the scope of the principle of territorial
integrity beyond its ordinary meaning, that of a rule applying solely between States by virtue of all
the major conventions and declarations—the Charter of the United Nations first and foremost—
that have adopted that principle . 65
31. For want of any legal rule whatsoever prohibiting Kosovo’s declaration of independence
perse— a situation which renders pointless the discussion of the circumstances which might
justify a possible right to secede — and for all of the compelling reasons recalled above, the Court
can only conclude in the present case that it is impossible to answer the request for an opinion
which has been put to it. If, nonetheless, it were to consider that it could exercise its judicial
59
Written Statement of Serbia, para. 1019: “international law plays an increasing role in prohibiting the creation
of a State [. . .]” (emphasis added); see to the same effect the Written Statement of Argentina, which claims to describe
international law as it is applied “these days” or “today”, without indicating when international law changed in its
orientation or which factor in particular prompted such a change (para. 129).
6In its commentary on Article41 of the 2001 Articles on the Responsibility of States for Internationally
Wrongful Acts, the International Law Commission only addresses the cases where the territorial integrity of one State has
been violated by the use of force by another State or where the right of peoples to self-determination has been violated
(A/56/10, para. 77, Commentary on Article 41, paras. 6-10).
6See the treatment of those precedents by the United States of America in its Written Statement (pp. 52-55). See
also the Written Contribution of Kosovo, paras. 8.28-8.29 and 8.35-8.36; the Written Statement of Austria, para. 24. On
the neutrality of international law concerning secession, see also the Written Statement of Germany, pp. 27 et seq. and the
Written Contribution of Kosovo, paras. 8.07 et seq. See also the precedent in the Genocide (Bosnia and Hervegovina v.
FRY) case cited by Kosovo in para. 8.43 of its Written Contribution, in which the Court found that “the circumstances of
[Bosnia and Herzegovina’s] accession to independence [we]re of little consequence” ( I.C.J. Reports1996 , p.611,
para. 19).
6Written Statement of Serbia, paras. 492-497.
63
See Written Statements of Romania, paras.80, 97-98 and 108, of Serbia, paras.440-476 and 501, and Iran,
paras. 3.1-3.6.
64
Written Statement of Serbia, para. 476.
65
See Written Statement of France, para. 2.6. These instruments are discussed at length in the Written Statement
of Serbia, paras. 477 et seq. - 10 -
function, it would behove the Court to find a manifest lack of anything contrary to international law
in the declaration of independence of Kosovo.
On behalf of the Minister for Foreign and European Affairs,
(Signed) EdwigB e ELLIARD ,
Director for Legal Affairs.
___________
Written Comments of France (translation by the Registry)