-:,
Internati.ônal Court ofJustice
Accordance with international law of the Umlateral
Declaratlon of Independence by the Provisional
Institutions ofSelfagove:rnment of Kosovo
(Request for an adviso:ry opinion)
WRJTTEN COMMENTS OFTHEKJNGDOM OFNORWAY
6July 2009 Introduction
1. Pursuant to the Court's Ortler of 17 October 2008, the Kingdom of Norway
offers the following written comments with regard to the written statements
subnûtted to the Court by other States concerning the request for an advisory
opinion on the question of the "Accordance with International Law of the Unilateral
Declaration of Independence by the Provisional Irtstitutions of Self-Government of
Kosovo". By the afotesaid Order, the.Court fixed 17July 2009 as the time-limi tithin
which States and organizations may submit such comments in accordance with
Article 66,paragraph 4, ofthe Statu.te.
General remarks
2. Several States have provided extensive expositions of their views on questions
conceming the principles of tenitorial integrity and the right to sern-determination.
3. In this regard, Norway generally a.grees with al1those States that have stressed
the importance of the two prindples, incl,uding Egypt.1 Therefore, under
international law, Norway cannot accépt the proposition made by the Islamic
Republic of Iran, which in effect seems to profess that the principle of territoriaJ
sovereignty is the only comerstone of the Charter of the United Nations and that it
has supremacy in a1regards over any other principleof internationallaw.2
4. Norway underlines that the principles of sovereignty, territorial integrity and
the right toself-determination are principles that haveto be considered in parallelas
cogently expressed by Secretary-General of the United Nations, Mr. Boutros-Ghali,
3
in .his report An Agendafor Peace in 1992; Norway recalls, in this regard, the
preliminary rematks contained in paragraphs 4 to 8 of its written statement
of 16April2009.
5. Norway shares the extremely restrictive view expressed in many writteh
statements submitted to the Court with regard to the existence of any right of
4
secession under international law.
1WrittenstatementbyEgypt,16April2009,p.13,paragraph51,andp. 1!:,aragraphs72-74.
2Writtenstatementbythe IslamicRèpublicofIran,17April2009,seinparticularp.3,paragraph2.1,
andpp. 6-7paragraph4.1.
:A/47/277 -S/2411117 Jtt)1992AnAgenda forPeace-Preventiveiplomacyp,eacemakinagndpeace
keeping, eportofthe Secretary-Generalpursuantto the statementadoptedby the SummitMeetingof
the SecurityCouncilon31January1992,atparagraphs17-19.
4Thisviewisnotablycon:firmedin the writtenstatementbythe RussianFederation,16April20093i-.
32,paragraphs87-88.
2 6. Norwaydoes therefore not see any reason to comment on or differwith a
number of assessments made interalia by the Republicof Cyp111a snd Spain that
maybe particularlypertinentin the contextofother situations.
7. However,Norwaynotes that none of the above questions, nor questions of
recognition,have been raised by the GeneralAssemblyofthe UnitedNationsin its
request for anadvisoryopinionfromthe Court.Asstated inparagraph 9 ofNorwais
written statement of 16 April 2009, the specific question asked by the General
Assemblyconcerns whether the issuance of Kosovo'sDeclatationofIndependence
of17February 2008constitutesaviolationofanyapplicablerule ofinternationallaw.
8. Norwayalsonotes, inthis context,that no generaldiscussionofthe prindple of
self-detenninationwould seem to be called for in responding to the question.
SecurityCouncilresolution1244 (1999)sets out inparagraph 1:
"Decidesthat a po1itica1 solutionto the Kosovocrisis shall be based on the
general principles in a:nnex1 and as further elaborated in the ptfucîplesand
other requiredelements irtannex 2;"
Both of the said annexes refer to a requirement of "taking full account of the
Rambouilletaccords",as paragraph l1 ofthe resolution also does. Th.eRambouillet
accordshad explicitlyidentifie.ctlhe "willofthe people"ofKosovoas oneof the key
relevant factors constituting the basis for conside:rationsof a final settlement for
Kosovo:
'Three years after the entry into force of this Agreement, an international
meetingshallbe convenedto determinea mechahismfor a :finalsettletnentfor
Kosovo,on the basis of the will ofthe people,opinionsofrelevant authorities,
each Partis effortsregarding the implementationof this Agreement, and the
Helsinki Final Act, and to undertake a comprehensive assessment of the
implementationof this Agreement and to consider proposals by any Party for
additionalmeasures."6
There canthereforebe littleor no doubtthatthis expressreference to the "willofthe
people' of Kosovo confirmed a broad spectrum of options. These had to be
considered in casu by the competent mechanism established in accordance with
SecurityCouncilresolution 1244to leadthe politicalprocess designed tô determine
Kosovo'sfuture status, bearing in minditsfundamèntalimportance for international
peaceandsecurity.Againstthis background,Norwayrespectfullysubmitsthat,while
confirmingthat general issues concerningthe principleof self-detenninationwould
falloutsidethe scopeofthe questionput tothe Court,this serves atthe Sàmetimeto
further underscore the particularcontextand ch-cumstancesprevailing inKosovo.
5SecurityCouncilresolution1244(199Annex 1sixthitemandAnnex 2 paragraph 8.
6InterimAgi-eementfot Peace andSelf-GovemmeinKosovo,Rambouillët,2February1999,Chapter
8,ArticlI (3) (UNDocumëntS/1999/648, 7June 1999p. 85).
3 Considerations pertaining to the particu!ar circumstances in Kosovo
9. Norwayrecallsthat itdoes not considerthat the Dedaration ofIndependence
of 17 February 2008was issued by the Assemblyof Kosovoacting in an organic
capacity as a ProvisionalInstitution of Self..Governmen t.his was explainedin
paragraphs 13-15of Notway'swritten statement of 16April2009;where reference
was made to theparticularform, content,circumstancesand stated background for
the adoptionofthe declaration. Instead,the declarationhas been taken byNorway
to be a statementissuedby politicalleaderswhoseexplidtpurposewasto reflectthe
willoftheirpeople.
10. Against this background, Norway has taken careful note of the written
sfatement made by Serbia. In refer.tingto the adoption of the Declaration of
Independence(UDI),Serbiastatedthat:
'The 'authors' of the UDI are members of the Assembly of Kosovowho
adoptedthedocumenton 17 February2008.''7
This reference to ''members of the Assembly'1i,.e. an indeterminate number of
individuals,is a factual acknowledgementof the àbove.The dedaration wa:snot
issued, as such,bythe Assemblyactingin anyorganiccapacity. Indclentallyitmay
be notedthat the declarationwasalsosigned by other promineritinclividuals,amely
the President and thePrimeMinister.
11. Norway also wishes to refet to the written contribution of Kosovo,which
contains a photographie reproduction ofthe odginaldocument 8 Together withthe
translationsprovided, this unequivocallysupportsthe viewthat neither the authors
nor the document purported to enactorganic powers of the Provisiona1Institutions
of Self-governmentof Kosovo,as referredto in Security Council resolütion 1244
(1999)and the Constitutional Framewotk of 2001.Instead, the declarationhas a
number of characteristics commonly associated e.g.with extraordinary political
statementsmadebyconstituent assernblies.
12. Norwayfurther recalls that Security Council resolution 1244does not take a
position on the question of Kosovo'sfinal status. This issue was entrusted to the
politicaprocess designed to determine Kosovo'sfuture stalus. Refetenceis here
made to the assessments made in the report of the SpecialEnvoyofthe Secretary
General, whichwere analysedin Norway'swlitten statement. Althoughthe Slovak
Republic has suggested that, in its view,resolution 1244"seems to set fo1th the
framework for self-determination that does not include independence", it
7Writtenstatementbythe Governmentofthe RepublicofSerbia,15April2009,p.25,paragraph17.
8WrittencontributioftheRepublicofKosovo,17Apd]2009,Annex1.pp.207-209.
9WrittenstatemenofNorway,16April2009,pp.7-8paragraph23-27,andAnnexes1-2.
4 nevertheless acknowledges that "(r)esolution 1244 does not explidtly prohibit
secession or prohibit states from recognizing secession".1°Neither does resolution
1244 add.ress the question as to whether democratically elected representatives
couldissue a declaration expressing theirwillasto the :finstatus ofKosovo. Il
13. It could incidentally also be questioned, irrespective of the above
consideratiùns, whether resolution 1244actually could have in1posed international
legal obligations of this naturon such non-statèactors, pursuant to Articles 25and
103 of the Charter of the United Nations. StcJ,tesremain the primary subjects of
international law and have the legal obligations refetted to in the said provisions of
the Charter. Although individuals may be held responsible for bre.aches of
international humanitarian law, and although certàin other international legal rules
setting out obligations and responsfüilities may apply directly to individuals, the
emergence of such direct lega.1oblîgations and responsibilities under international
law incumbent on non·state actors is carefully circumscribed. Such obligations and
responsibilities cannot be assumed without a dear legalbm:iis.
Final remarks
14. In the light of the above background and the interventions made by a
considerable number ofStates that have use:fullylaidout in more detail historica1and
Jegal sources pertaining to the factual events relevant to the situation un.der
co.sideration, Norw.yreaffirms the observations made in itswritten statement of 16
April2009.
15. Notwaytrusts that the Court will exercise due caution in considering the issues
concerned. One and a halfyears have passed since the Dedaration ofindependence
was issued. The situation in the region is developingin ways that bear apromise ofa
füture ofprosperity and peace for allpopulations in the region.
16. This region was long marked by an impasse that threatened intemationalpeace
and security. Consîderable efforts are being made by the international community to
maintain peace and security and promote development and respect for human rights
for aU.As set out in the Royal Decree of 28 March 2008, which is attached to
Norway's written statement, Norway's fundamental concerns and approach are solely
dictated by the need to contribute to international peace and stability .intheregiont
and the protection of human rights and other guarantees, in accordance with
international law.
10W1ittenstatemenby the SlovakRepubli16April2009,paragraph27.
11WrittenStatementofNorway,16April2009,p.6paragraphs 16-17.
5 Conclusion
17. For the reasons set out in this statemenN,orway respectfuTiyupholds its
request that the CourtBnd that the Declarationof Independence issued on 17
February2008doesnotcontraveneanyapplicableruleofinternationallaw.
Oslo,6July2009
Direttor Gerteral
Departme;nftorLegalAffairs
MiI1istrofForeignAffairs
(Represéntativefthe
KingdomofNorwa.y)
6
Written Comments of Norway