Peny6JIHKaCp6uja Republic of Serbia
MHHHCTAPCTBO CITOThH0X MINISTRY OF FOREIGN
ITOCJIOBA AFFAIRS
KHe3aM:m10ma24-26 Kneza Milosa 24-26
EEOrPA)]; BELGRADE
15 July 2009
Sir,
With reference to the request for an advisory oplllion submitted to the
International Court of Justice by the General Assembly of the United Nations on the
question of the Accordance with International Law of the Unilateral Declaration of
Independence by the Provisional Institutions of Self-Government of Kosovo and to
the Ortler of the Court dated 17 October 2008; I have the honour to present to the
Court the written comments of the Govemment of the Republic of Serbia on the
written statements of other States.
With reference to your communication dated 20 October 2008 (No. 133310), I
have the honour to inform you that the written comments of the Republic of Serbia are
being submitted to the Court in 30 written copies in English, as one of the official
languages of the Court, as well as in one electronic copy. In case of any discrepancy
between written and electronic version, the electronic version of the written comments
should be deemed authoritative.
Mr. Philippe Couvreur
Registrar
International Court of Justice
The Hague In accordance with Article 50, paragraph 1, and Article 51, paragraph 3, of the
Rules of Court, I now certify that four documents annexed to the written comrnents of
the Republic of Serbia are the genuine copies of the original documents, as well as
English is accurate. of the relevant part of the document no. 3 from Serbian into
Please accept, Sir, the assurances of my highest consideration.
Co) , i
Sasaübr~,
Head of the Legal Team 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 AN ADVISORY OPINION)
WRITTEN COMMENTS
OF THE GOVERNMENT OF THE REPUBLIC OF SERBIA
14 JULY 2009 TABLE OF CONTENTS
Chapter 1
INTRODUCTION 11
A. Importance of the Present Proceedings .................................................11....................
B. Summary oflssues before the Court ...........................................................14...........
....
I Introduction ........................................................................
...14....................................
II Arguments presented by Serbia ............................................................15.................
III Arguments presented in the written statements of those States that have
recognised the so-called "Republic of Kosovo" and in the written
contribution of the authors of the UDI ...................................................................
C. Outline of the Present Written Comments .....................................................19...........
Chapter 2
THE TERMS AND SCOPE OF THE QUESTION BEFORE THE COURT..................... 21
A. Introduction............................................................
....................21...................................
B. The "Authors" of the UDI Are the Provisional Institutions
of Self-Government of Kosovo ......................................................................................
C. The Meaning of the Question .................................................................27.....
................
D. Conclusion ........................................................................
.........28...................................
Chapter 3
JURISDICTION AND ADMISSIBILITY ....................................................................31..
.....
A. Jurisdiction ........................................................................
......31.....................................
B. There Are No Compelling Reasons to Decline Jurisdiction
in the Present Case ........................................................................
34..............................
I lnterest of the General Assembly and the United Nations
in the advisory opinion ...................................................................34...
.......................
II The purpose and effect of the advisory opinion ...........................................37.........
III Other reasons adduced should also not lead the
Court to decline jurisdiction .........................................................40.............
...........
C. Conclusion ..................................................................................42...................................
Chapter 4
THE LEGAL AND FACTUAL BACKGROUND ................................................................ 43
A. General Remarks ........................................................................
....43.............................
B. Kosovo as Part of Serbia and Yugoslavia .....................................................47.............
3 I Integration of Kosovo into Serbia and Kosovo as part
of Serbia and Yugoslavia after World War II..............................................47..........
II Constitutional amendments of 1989 ......................................................49................
.
C. Negotiations on the Future Status .........................................................53.............
........
I Introduction ........................................................................
.53......................................
II The circumstances in which the negotiations were conducted
and the attitude of Mr. Ahtisaari ......................................................54.....................
III The approaches taken by the parties ...................................................59.................
IV Conclusion .............................................................................63..................................
Chapter 5
THE CLAIM THAT KOSOVO ISA SO-CALLED "SUI GENERIS CASE"
IS AN ACKNOWLEDGEMENT OF THE LACK OF ANY LEGAL BASIS
FOR THE UDI ........................................................................
............65...................................
A. Introduction ........................................................................
...65.......................................
B. The Scope of the "Sui Generis" Argument .............................................66...................
C. None of the Alleged Features that Purport to Make Kosovo
a "Sui Generis Case" in Any Way Justify the Legality of the UDI ...........................68
I The status of Kosovo in the SFRY 1974 Constitution .................................70...........
II The non-consensual and violent break-op of the SFRY ....................................70...
III Hu man rights violations occurring between 1989 and 1999 .................................
IV The international administration of the territory since 1999 ........................72.....
V The fact that Serbia bas not administered the terri tory since 1999 .....................72
VI "Independence" bas been envisaged as an option .....................................73..........
VII "Negotiations were exhausted and there was no other option but
independence" ....................................................................73.................................
VIII The will of the majority of the population of Kosovo..................................74.....
IX The purported absence of any other solution ............................................75..........
X The invented and inexistent "support" to the "independent" Kosovo by
the United Nations and the European Union ..............................................75..........
D. The Sum of Ali the Non-Legal Grounds Does Not Amount to the Creation
of a Legal Basis for a Sui Generis Case for Kosovo .......................................76..........
E. The Attempt to Make from a Bad Political Precedent "Bad Law" ........................... 77
F. Conclusions ........................................................................
......80.....................................
4 Chapter 6
THE CREATION OF STATES IS NOT A MERE FACT AND INTERNATIONAL LAW DOES
NOT REMAIN "NEUTRAL" WITH REGARD TO THE UDI .......................................... 81
A. Introduction ........................................................................
...81.......................................
B. The Question of the Legal Nature of the UDI under International Law .................84
I The UDI is a unilateral act emanating from the Provisional Institutions
of Self-Government aiming at the creation of a sovereign State ..........................84
II States having recognised the "Republic of Kosovo" have treated the UDI
of 17 February 2008 as an act producing legal effects ..................................86........
III Conclusion ........................................................................
...88....................................
C. The UDI Can Be Examined under International Law in Many Ways ..................... 89
I Rebuttal of the argument that the UDI is governed by domestic law,
but not by international law ...........................................................90..........................
II The argument that international law does not prohibit the proclamation
of independence of a new State begs the real question ..................................91......
III The argument that the UDI is not governed by international law since
it cannot be attributed to a subject of international law neglects both
contemporary practice and Security Council resolutions on Kosovo ................. 94
IV The argument that international law does not prohibit persons
or entities from seeking independence is completely irrelevant ....................94....
V The argument that the creation of States is a matter of fact ignores more
than half a century of evolution of international law .................................95..........
D. The Acknowledgement by States Promoting the Secession of Kosovo That
International Law Does lndeed Deal With Secession ........................................96.......
E. Conclusions ...............................................................................99....................................
Chapter 7
THE UDI IS IN CONTRADICTION WITH THE PRINCIPLE OF RESPECT
FOR THE TERRITORIAL INTEGRITY OF STATES ..............................................101....
A. Introduction............................................................
.................101....................................
B. The Views Expressed in the Written Statement of the Republic of Serbia .............. 102
C. Support for Serbia's Position on Territorial Integrity ...................................106.........
D. Uncontested Issues .......................................................................108................................
E. Arguments Made Contrary to Serbia's Thesis on Territorial lntegrity ..............110..
I The non-application of the principle of territorial integrity
to internai situations .................................................................110...............................
5 (1) International law does inprinciple direct/y address non-State entities .............111
(2) Relevant international legal practice shows that the rule against non-consensual
secession binds non-State entities ..................................................114....................
(3) The territorial integrity of Serbia has been internationally affirmed in the specifzc
context of the Kosovo problem .......................................................118.........................
II The argument that the reference to territorial integrity in Security Council
resolution 1244 (1999) is "temporary" ...............................................121...................
III The argument that the principle of territorial integrity reaffirmed
in resolution 1244 (1999) applied to the FRY and not to Serbia .........................123
F. Conclusion..............................................................
...................129...................................
Chapter 8
NEITHER THE PRINCIPLE OF SELF-DETERMINATION NOR THE
SO-CALLED DOCTRINE OF "REMEDIAL SECESSION" PROVIDE ANY
SUPPORT FOR THE UDI ........................................................................
..............................
A. Introduction ........................................................................
....131.....................................
B. Relationship between the Right of Peoples to Exercise Self-Determination
and Respect for the Territorial lntegrity of States ........................................133..........
C. Meaning of "People" and Non-Existence of a Distinct "People" in Kosovo .....................134
I Neither the Rambouillet Accords nor any United Nations instrument
has recognised the applicability of self-determination
to a "Kosovar People" ........................................................................
........................
II lt is common knowledge that Kosovo is not a
"Non-Self-Governing Territory" ........................................................................
......
III Dangerous constructions of the definition of a "people" based on ethnie
considerations can lead to discrimination...............................................137........
....
D. Exercise by the Inhabitants of Kosovo of an
"Internai Right to Self-Determination" .................................................138....................
E. An "External Right to Self-Determination" Is Not Applicable to Kosovo................ 140
F. States Promoting Kosovo's Secession and the Authors of the UDI Have Not
Demonstrated the Existence of a "Right to Remedial Secession" ...........................142.
G. The Account of the Situation in Kosovo Used to Justify Kosovo's
"Remedial Secession" Is Not Accurate ......................................................146...............
H. lt Is Undisputed that at the Critical Date the Alleged Conditions for
"Remedial Secession" Were Not Present .....................................................147.............
I. Conclusions ................................................................................121...................................
6 Chapter 9
THE UDI IS CONTRARY TO THE INTERNATIONAL LEGAL REGIME
ESTABLISHED BY SECURITY COUNCIL RESOLUTION 1244 (1999) ...................151.
A.Introduction ........................................................................
.....151....................................
B. Security Council Resolution 1244 (1999) Is Still in Force ...................................152....
C. Security Council Resolution 1244 (1999) Imposes Obligations upon
Ali Relevant Actors ........................................................................152..............................
I Introduction ........................................................................
...152...................................
II The Provisional Institutions of Self-Government in Kosovo are bound by the
international legal regime established by Security Council resolution 1244(1999) ..... 153
III Ali other relevant actors in Kosovo are bound by the international
legal regime established by Security Council resolution 1244 (1999) .................. 155
(]) Security Council resolutions on Kosovo preceding resolution 1244 (1999)
were addressed ta al! relevant actors ....................................................................
(2) Security Council resolution 1244 (1999) created obligations
for al! relevant actors in Kosovo ........................................................................
...
(3) Subsequent practice of the Security Council .........................................158............
(4) Subsequent practice of the Secretary-General ........................................161..........
IV Conclusion ...............................................................................162...............................
D. The Interpretation of Security Council Resolution 1244 (1999) ............................163.
I General rule of interpretation .........................................................163........................
II The background of Security Council resolution 1244 (1999):
the military intervention against the FRY ...............................................164............
III The object and purpose of Security Council resolution 1244 (1999):
securing hum an rights for ail inhabitants of Kosovo ............................................
IV Drafting history of Security Council resolution 1244 (1999) ..............................167
V Security Council resolution 1244 (1999) and its predecessors .......................168.....
E. The Reaffirmation of the Territorial Integrity of the FRY/ Serbia ........................169
I The legal character of the reaffirmation of Serbia's territorial integrity .............169
II The reaffirmation of Serbia's territorial integrity is not limited
to the interim period ..................................................................................................
III Security Council resolution 1244 (1999) did not touch upon
Serbia's title to terri tory ............................................................173............................
IV The reference to the Rambouillet Accords in Security Council resolution 1244(1999) 173
V The notion of self-government ........................................................175.............
..........
7 F. Security Council Resolution 1244 (1999) Excludes Any Unilateral
Determination ofthe Future Status of Kosovo by the Provisional Institutions
of Self-Government ........................................................................
.................................
I The requirement of negotiations ..........................................................176...........
........
II The notion of "political settlement" .................................................177.....................
III The notion of "political settlement" and the overall system of collective
security set up by the Charter of the United Nations ...................................178.....
IV Subsequent interpretation of the notion of "political settlement" .................180...
(]) Further subsequent State practice ..................................................180...................
(2) Subsequent practice of organs of the United Nations.................................182.......
V The irrelevance of the "political" character of the process/solution ................184..
G. The "Political Process" Envisaged in Security Council resolution 1244(1999)
Was Not Bona Fide Exhausted ...........................................................185..........
.............
I The negotiation process on the final status ofKosovo was not conducted
in an open and unbiased manner ...........................................................185..................
II Future negotiations were and are not excluded ...........................................186........
III Only the Security Council itself may make a determination on a possible
conclusion of the political process foreseen in Security Council
resolution 1244 (1999) ........................................................................
.................................
IV In any event, any such alleged exhaustion of negotiations may not be relied
upon either by the authors of the UDI or by third parties given that it was
caused by the authors of the UDI themselves .........................................................
H. The Non-Action by the Special Representative of the Secretary-General,
the Secretary-General, and the Security Council, Does Not and Cannot
Amount to a Tacit Recognition of the Legality of the UDI ........................................
I Alleged tacit recognition of the UDI by the Secretary-General and bis
Special Representative ................................................................192.....
........................
II Alleged tacit recognition of the UDI by the Security Council ............................194.
I. The Alleged "Unsustainability" of the Interim Status Created by Security
Council Resolution 1244 (1999) .............................................................195.....................
J. Conclusion .................................................................................196...................................
Chapter 10
RECOGNITION AS SUCH DOES NOT GRANT RETROACTIVE LEGALITY
OR PURGE ILLEGALITY ........................................................................
............................
A. Introduction ........................................................................
....199.....................................
8 B. Statehood Requirements .......................................................................201.......................
C. Critical Date ................................................................................205................................
D. Conclusion ...................................................................................207................................
Chapter 11
CONCLUSIONS ........................................................................
..............................................
ANNEX 1 ........................................................................
..................213.........................
ANNEX2 ........................................................................
...................221........................
ANNEX3 ........................................................................
...................239........................
ANNEX4 ........................................................................
...................245........................
9 Chapter 1
INTRODUCTION
1. Pursuant to the Court' s Ortler of 17 October 2008, and in accordance with Article
66, paragraph 4, of the Statute, Serbia respectfully files these Written Comments
on the written submissions submitted in the present proceedings.
A. Importance of the Present Proceedings
2. In response to the Court's Ortler of 17 October 2008, a total of 36 member States
of the United Nations have submitted written statements in the present advisory
proceedings, and a dossier of documents has also been submitted on behalf of the
United Nations Secretary-General. 1
3. The authors of the unilateral declaration of independence (hereinafter "UDI") also
made a written contribution (hereinafter "WC Authors"), having been invited to
do so by the Court. However, this written contribution was deliberately marked as
a contribution of the so-called "Republic of Kosovo", in clear breach of the
Court's Ortler of 17 October 2008. As noted in Serbia's letter to the Court dated 7
May 2009, protesting against this behaviour and requesting the Court to ensure
respect for the Ortler by all participants, the authors of the UDI have "sought to
create an environment constituting unacceptable pressure upon the Court
essentially to prejudge the matter in dispute." Serbia reiterates that the
participation of the authors of the UDI in the present proceedings shall in no way
constitute recognition of the so-called "Republic of Kosovo" by Serbia.
4. The number of written submissions in the present proceedings attests to the
importance of the question submitted to the Court for an advisory opinion. As the
UDI raises questions concerning the principles of sovereignty and territorial
1Hereinafter referred to as "Dossier" together with the number of the relevant document contained therein.
11 integrity, principles that are at the cornerstone of the international legal order, this
case is not only about Kosovo, but about "Kosovos" - situations where violent and
armed secessionist movements attempt to separate by force parts of the territory
from a pre-existing State. This was emphasized by the President of Serbia, Boris
Tadic, in his address to the General Assembly plenary session in 2008:
"We all know that there are dozens of Kosovos throughout the
world, just waiting for secession to be legitimized, to be tumed
into an acceptable norm. Many existing conflicts could escalate,
frozen conflicts could reignite, and new ones could be instigated." 2
5. The response of the international community and the United Nations to Kosovo's
attempt at independence and unilateral termination of the United Nations
administration of the territory is not only going to have direct political repercussions
on the crisis in Kosovo itself, but on other existing and potential crises throughout
the world. This response is likely to determine the outlook of the international order
in the years to corne. Both prior to 1945, and since this time, the attitude of the
international community towards unilateral secession has been negative and the
principles of sovereignty and territorial integrity have clearly been upheld as pillars
of the international order. As noted by James Crawford, "[s]tate practice since 1945
shows the extreme reluctance of States to recognize or accept unilateral secession
3
outside the colonial context." This is not without reason. The principle of territorial
integrity of States both reflects and manifests the sovereign equality of States as a
foundation of the international order and, as such, is inextricably linked to State
4
sovereignty. The principles of territorial integrity and stability of international
borders serve as guarantors of the stability of the international order as a whole and,
as such, directly uphold international peace and security. If the international
community were now to accept secession from sovereign States in violation of the
principle of territorial integrity, this would have dramatic consequences.
2UN Doc. A/63/PV.5 (23 September 2008), p. 29.
3J. Crawford, The Creation of States in International Law ed. 2006), p. 415.
4For more see WS Serbia, paras. 414-428.
126. Moreover, if the UDI were tolerated in the case of Kosovo, this would have a
negative impact on the hard-won achievements of the United Nations and regional
organizations in the field of human rights and rights of minorities. Those holding
the views that aspirations for minority rights and autonomy are merely a pretext
for secession would feel vindicated. This could have negative consequences on
further acceptance and implementation of minority rights by States.
7. What is also at stake in the present proceedings is the authority of the United
Nations generally, and the Security Council in particular, in a situation where the
Organization is engaged in the fulfilment of one of its pre-eminent purposes - the
maintenance of international peace and security, as provided in Article 1 of the
Charter of the United Nations. According to the Secretary-General, the UDI has
presented a significant challenge to the authority of the United Nations and its
5
mission in Kosovo, UNMIK. Moreover, the authorities in Kosovo consider that
Security Council resolution 1244 (1999) is no longer relevant and that the
6
institutions of Kosovo "have no legal obligation to abide by it."
8. All this shows how important is the response of the international community and
the United Nations to the UDI and the attempt of its authors to terminate the
United Nations administration of the territory and to achieve independence from
Serbia. Needless to say, this response will be significantly influenced by the
Court's answer to the request for an advisory opinion in the present case.
9. The opinion of the Court will provide valuable guidance to all concerned in the
Kosovo situation. In particular, it will provide legal guidance to the United Nations
and its political organs. lt is striking that, in a situation in which Kosovo is
administered by the United Nations, neither its main political organs nor its mission
in Kosovo seem to have had the benefit of impartial legal advice from within the
United Nations structures, as is demonstrated by the fact that the Secretary-General
has refrained from making a written statement but has submitted a dossier
containing documentary evidence in which there is no legal analysis of the UDI.
5See UN Doc. S/2008/211 (28 March 2008), para. 30, Dossier No. 86.
6See Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, UN
Doc. S/2009/149 (17 March 2009), para. 4, as well as most recently Report of the Secretary-General on the
United Nations lnterim Administration Mission in Kosovo, UN Doc. S/2009/300 (10 June 2009), para. 2.
1310. The Court's opinion will also provide legal guidance to individual States in their
actions within and outside the United Nations. A question has been raised of the
Court's acting as a "legal adviser" to member States. However, in Serbia's
submission such an argument is entirely misplaced. The fonction of the advisory
opinion is to provide legal guidance to the General Assembly, which is concerned
with the powers and fonctions of other organs of the United Nations, in accordance
with Article 10 of the Charter. The General Assembly is composed of member
States and can only fonction by their concerted action which will be guided by the
Court's opinion. In that sense and to that extent, the advice of the Court will also be
usefol to member States, as were previous advisory opinions rendered by the Court.
11. Indeed, the fact that both the United Nations and individual member States will
benefit from the Court's opinion will contribute to strengthening the international
rule oflaw. Conversely, without the benefit of the Court's legal guidance, not only
would the approaches taken towards the situation in Kosovo vary, leading to great
uncertainty in international relations, but there would be a significant risk that a
policy offait accompli would prevail over applicable legal rules. This is exactly
the situation that the world organization has been designed to prevent by
providing a forum and a mechanism for the resolution of conflicts on the basis of
international law and equality of States.
B. Summary of Issues before the Court
I Introduction
12. Unsurprisingly, participants' submissions in the present proceedings can be
clearly divided into two groups, depending on their attitude towards the UDI and
its legality and the international legal status of the so-called "Republic of
Kosovo". In one group are the written statements by those States that consider the
UDI as not being in accordance with international law, and which have not
recognized the so-called "Republic of Kosovo". In the other group are the written
7See WS United States, p. 44.
14 statements by those States that recognised this so-called "State", as well as the
written contribution made by the authors of the UDI.
13. Before summarizing the main points made by the participants, it should be noted
that, despite their differences, all member States participating in the proceedings
agree that Security Council resolution 1244 (1999) is still in force. Even the
written contribution of the authors of the UDI analyses the latter's compatibility
8
with resolution 1244 (1999), thereby acknowledging its relevance, in contrast
with the position they take elsewhere that this resolution is no longer relevant and
9
binding on them.
II Arguments presented by Serbia
14. The essence of arguments presented by Serbia is that the UDI is in violation of the
principle of territorial integrity of States which is one of the fondamental
principles of international law, as well as in violation of the international legal
regime established by Security Council resolution 1244 (1999). In that sense, the
UDI can be viewed both as an attempt to illegally secede territory from Serbia, the
parent State, and an attempt to terminate the United Nations administration of
Kosovo established by the Security Council pursuant to Chapter VII of the
Charter.
15. As has been demonstrated in Serbia's Written Statement, the principle of
territorial integrity, which is an essential element of the international order,
extends beyond States and binds non-State entities in situations of non-consensual
attempts to violate the territorial integrity of independent States. This is confirmed
by Security Council practice in general and in relation to the situation in the
former Yugoslavia in particular. Moreover, the Security Council resolutions
dealing with Kosovo specifically confirm the territorial integrity of Serbia with
regard to this territory and reaffirm the binding force of this principle on all
8See WC Authors, para. 9.01. et seq.
9See Report of the Secretary-General on the United Nations lnterim Administration Mission in Kosovo, UN
Doc. S/2009/149 (17 March 2009), para. 4.
15 relevant actors, including the Kosovo Albanians. Thus, by adopting the UDI,
which constitutes a violation of Serbia's territorial integrity, the authors of the
UDI have clearly acted in blatant violation of binding norms of international law.
16. Additionally, the UDI constitutes a clear violation of the international legal regime
established by Security Council resolution 1244 (1999), which it openly seeks to
terminate. The UDI is not only an ultra vires act of its authors, the Assembly of
Kosovo that adopted it, and the President and Prime Minister of Kosovo that
endorsed it. lt is also a serious challenge to the authority of the United Nations in
Kosovo, again in violation of Security Council resolution 1244 (1999) and the
Constitutional Framework for Provisional Self-Government in Kosovo. ° Finally,
the UDI is a unilateral act which, if only temporarily, prevents the continuation of
the political process to determine the status of Kosovo, in violation of resolution
1244 (1999) and the elementary rules governing negotiations and the peaceful
settlement of disputes.
17. Serbia's Written Statement has also demonstrated that none of the justifications
that could possibly be of any relevance to the UDI under international law apply
in the present case. In particular, it has been shown that the principle of self
determination does not provide legal support in the present case; that effectiveness
alone is not a ground for statehood; and that the creation of a new State in
contemporary international law is also contingent on respect for the applicable
rules of international law, which clearly have not been respected in the case of the
UDI. In any case, as demonstrated by Serbia, there is no effective independent
government in Kosovo and the so-called "Republic of Kosovo" does not fulfil the
constituent requirements of a State.
18. The arguments made in Serbia's Written Statement are shared, in whole or in part,
by those member States that have also adopted the position that the UDI is
contrary to international law.
10
UNMIK Regulation No. 2001/9 (15 May 2001) (hereinafter: "Constitutional Framework"), Annex 3 in
Documentary Annexes accompanying WS Serbia, Dossier No. 156.
16 III Arguments presented in the written statements of those States that have
recognised the so-called "Republic of Kosovo" and in the written
contribution of the authors of the UDI
19. The written statements of those States that have recognized the so-called
"Republic of Kosovo" and the written contribution made by the authors of the
UDI make a number of different claims in order to support the legality of the UDI,
but the main points (not all of which are necessarily shared in all submissions)
may be summarized as follows:
(i) International law does not regulate declarations of independence, i.e., it
neither authorizes nor prohibits such declarations, and therefore the
UDI is not contrary to international law.
(ii) Security Council resolution 1244 (1999) does not preclude the
independence of Kosovo as the outcome of the political process to
determine Kosovo's future status, and therefore the UDI does not
contravene this resolution.
(iii) The UDI is an exercise of external self-determination which isjustified
by Serbia's repression over Kosovo Albanians.
(iv) In any event, developments after the UDI have cured any deficiency
that may have existed.
20. The first obvious problem with these arguments is that they fail to take into
account the fact that Kosovo is subject to the United Nations administration
established by a binding resolution of the Security Council, and that the UDI is an
attempt to terminate this international legal regime. In other words, even if all the
above mentioned claims in favour of the UDI's legality were accurate, quod non,
they still would not be able to justify the UDI as an attempt to terminate
unilaterally the United Nations administration of Kosovo.
21. Generally speaking, those argumg in favour of the legality of the UDI try to
confine their discussion of Security Council resolution 1244 (1999) to the
questions of whether it prohibits independence and in what manner it guarantees
the territorial integrity of Serbia. At the same time, they fail to address the impact
17 of the international legal regime for Kosovo, the binding rules of which include
Security Council resolution 1244 (1999) and regulations adopted by the UNMIK.
However, their awareness of this binding international legal regime transpires
from their claim that the UDI was adopted by "democratically-elected
representatives of the people of Kosovo" and not by the Provisional Institutions of
Self-Government, as if this could cure the UDI's illegality. But, as will be
demonstrated in Chapters 2 and 9, not only is this claim inaccurate but it is also
irrelevant, since Security Council resolution 1244 (1999) and its legal regime
apply to all relevant actors in Kosovo, not only to the Provisional Institutions of
Self-Government.
22. Moreover, this embarrassing lacuna in the submissions of those States that
recognized the so-called "Republic of Kosovo" and of the authors of the UDI
cannot be overcome by their claim that the Secretary-General and his Special
Representative did not declare the UDI null and void. As will be shown in Chapter
9, this claim is inaccurate because these officiais have not acquiesced to the UDI,
but rather have expressly taken a status neutral position while waiting for
guidance from the Security Council, the ultimate authority in implementation of
Security Council resolution 1244 (1999). In addition, the Security Council has
never acquiesced to the UDI.
23. As far as the argument that international law neither authorizes nor prohibits the
UDI is concerned, its essence has already been dealt with in Serbia's Written
Statement, in particular its Chapter 6 (B) and (E), as well as Chapter 10 (D). The
simple answer to it is that Kosovo is under an international legal regime
established by the Security Council and that, pursuant to resolution 1244 (1999),
any decision about its "future status" must be the result of a political process
involving both parties. No one party can unilaterally terminate or modify the
situation established by a resolution adopted by the Security Council under
Chapter VII of the United Nations Charter. In addition, the principle of respect for
the territorial integrity of States is applicable to non-State actors in secessionist
situations in general and with respect to the situation in Kosovo in particular. As
such, it clearly prohibits the UDI.
1824. The claim that the UDI is justified as an exercise of "remedial" self-determination
was fully refuted in Chapter 7 of Serbia's Written Statement. The same goes for
the claim that developments that have taken place following the UDI have cured
any deficiencies that may have existed, which was refuted in Chapter 10 of
Serbia's Written Statement. Apart from the questionable legal validity of these
claims, it should also be noted that they require particular factual matrices, which
do not obtain in the case of Kosovo. Thus, attempts to factually substantiate these
claims have resulted in one-sided and, at times, inaccurate presentations of facts,
as will be demonstrated in the present Written Comments.
C. Outline of the Present Written Comments
25. These Written Comments consist of 11 chapters. The present introductory Chapter
1 is followed by a discussion of the terms and scope of the question before the
Court in Chapter 2. Chapter 3 deals with jurisdiction and admissibility of the
present request for an advisory opinion.
26. Chapter 4 discusses the legal and factual background of the case. lt provides
certain general comments regarding presentations of facts in other written
statements and in the written contribution of the authors of the UDI, as well as
comments on specific questions conceming the status of Kosovo within Serbia
and Yugoslavia and the negotiations on the final status of Kosovo.
27. Chapter 5 deals with the claim that Kosovo is a so-called "sui generis" case, while
Chapter 6 addresses the argument that international law is "neutral" with regard to
the UDI.
28. This is followed by chapters that deal with various legal grounds relevant for the
assessment of the UDl's legality and refute claims made by those States promoting
the independence of the so-called "Republic of Kosovo" and the authors of the UDI.
Chapter 7 demonstrates that the UDI is in contradiction with the principle of respect
for the territorial integrity of States. Chapter 8 shows that neither the principle of
19 self-determination, nor the purported doctrine of "remedial secession" provide any
support for the UDI. Chapter 9 deals with the international legal regime applicable
to Kosovo established by Security Council resolution 1244 (1999) and the UDI's
illegality under this regime. Chapter 10 shows that recognition as such does not
grant retroactive legality or purge illegality of the UDI.
29. This is followed by Chapter 11, which summanzes the conclusions of these
Written Comments and reiterates the submissions made by the Written Statement
of the Republic of Serbia. Finally, these Written Comments also contain four
documentary annexes.
20 Chapter 2
THE TERMS AND SCOPE OF THE QUESTION BEFORE THE COURT
A. Introduction
30. Severa! written statements, as well as the written contribution of the authors of the
UDI, characterize the question posed by the General Assembly as prejudicial and
argumentative. 11They contest certain factual determinations made by the General
Assembly in the text of the question, most notably that the UDI was adopted by
the Provisional Institutions of Self-Government. In addition, some of them also
seem to understand the question before the Court in the narrowest possible terms -
as a question of legality of a purely verbal, declaratory act. 12These two issues will
each be dealt with in turn.
B. The "Authors" of the UDI Are the Provisional Institutions
of Self-Government of Kosovo
31. The written contribution by the authors of the UDI uses more than twelve pages to
argue that the UDI was not in fact an act of the Assembly of Kosovo and the
Provisional Institutions of Self-Government in Kosovo, but "an act of the
democratically-elected representatives of the people of Kosovo meeting as a
constituent body to establish a new State". 13 This same argument is also put
forward by some States that have recognized the so-called "Republic of Kosovo"
14
as an independent State.
11See, e.g., WC Authors, para. 7.04. et seq; WS Germany, pp. 7-8; WS Luxembourg, para. 9 et seq.; WS
United Kingdom, para. 1.10 et seq.
12 See, e.g., WS United States, p. 45 ("...the question... focused on the legality of the act of declaring
independence"); WS United Kingdom, para. 1.16 ("whether Kosovo's Declaration of lndependence, a
declaration on a given day, is compatible with international law.").
13WC Authors, para. 6.01. et seq.
14
See WS Albania, para. 40 and paras. 103-105; WS Austria, para. 16;WS Estonia, p. 3; WS Finland, paras.
17-18; WS Germany, p. 25; WS Netherlands, paras. 3.3-3.4; WS Norway, paras. 13-17; WS Poland, paras.
3.40-3.41; WS United Kingdom, paras. 1.12-1.13; WS United States, pp. 32-33.
2132. This argument clearly reveals the awareness of its proponents that the Provisional
Institutions of Self-Government acted ultra vires when adopting the UDI. It has
no merit for two reasons: first, it is incorrect, and second, it is irrelevant. It is
incorrect because evidence clearly shows that the UDI was adopted by the
Assembly of Kosovo and endorsed by the President and Prime Minister of
Kosovo, all of which are Provisional Institutions of Self-Government. It is
irrelevant because the international legal regime established by Security Council
resolution 1244 (1999) applies to everyone in Kosovo, and not only to the
Provisional Institutions of Self-Government, and precludes acts such as the UDI. 15
33. The claim that the UDI was not adopted by the Provisional Institutions of Self
Governmentdoes not correspondwith what actuallyoccurred.Firstly,this can be seen
from the evidence emanating from the Kosovo authorities themselves. The transcript
of the Assembly session held on 17 February 2008 shows that it was indeed the
Assembly of Kosovo, a Provisional Institutionof Self-Governmentin Kosovo, sitting
as theAssembly of Kosovo, and notas someconstituentbody,that adoptedthe UDI:
the President and the Prime Minister of Kosovo were greeted as guests
16
of the Assembly, along with others, by the President of the Assembly;
it was the Assembly that, by a vote of its members, adopted its agenda
containing two items: 1) the declaration of independence; and 2) the
approval of state symbols; 17
before the vote on the UDI took place, the President of the Assembly
18
determined the quorum;
19
it was the Assembly that adopted, by a vote of its members, the UDI;
15See infra paras. 372-389.
16"It is with great pleasure that on behalf of the Assembly of Kosovo and on my persona! behalf, I welcome
17 and thank you ail..." WC Authors, Annex 2, p. 227 (emphasis added).
ln that regard, Mr. Krasniqi, President of the Assembly, used the following words: "[t]he first item on our
agenda...[t]he second item on our agenda..." WC Authors, Annex 2, p. 227 (emphasis added).
18The transcript of the session (ibid., at p. 238), records the following
"PRESIDENT OF THE ASSEMBLY, JAKUP KRASNIQI:
Thank you, Mr. Prime Minister!
Honorable Assembly Members,
Iinform you that the vote will be cast electronically, Ipropose that 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 (...)"
19
Ibid.
22 at the time that the UDI was adopted and for months afterwards, the
official website of the Assembly featured the text of the UDI starting
with the words "The Assembly of Kosovo...." which was, at some point
after the commencement of the present proceedings, replaced with the
20
one that does no longer contain the words in question.
34. According to the transcript of the Assembly session of 17 February 2008, the
President and Prime Minister of Kosovo were guests at the Assembly session and
did not vote on the UDI. What they did was to "solemnly" sign the UDI after it
had already been adopted. They put their signatures on the UDI as an apparent
mark of endorsement, and did so in their official capacity - as the President and
Prime Minister of Kosovo, being the Provisional Institutions of Self-Government
in Kosovo. 21In this way the UDI, an act of the Assembly of Kosovo, also became
an act shared and supported by other Provisional Institutions of Self-Government,
so they can also be considered as the "authors" of the UDI.
35. Nevertheless, they continued to treat the UDI as an act of the Assembly of
Kosovo. This is evidenced by a letter of the President of Kosovo to the President
of Germany sent on the very day the UDI was adopted and informing that "... the
Assembly of Kosovo declared Kosovo's independence ..." This clearly shows the
understanding of the President of Kosovo that the UDI was an act of the Assembly
of Kosovo and not of a so-called "constituent body" as the authors of the UDI
contend in the present proceedings.
20 However, the original version of the text of theUDI is still available at the website of the Kosovo
Assembly-not at the "documents" page (http://www.assembly-kosova.org/?cid=2,l00) which features the
"corrected" version but as a news item posted on the day of the UDI's adoption, 17 February 2008, see
http://www.assembly-kosova.org/?cid=2,l28,l635 (visited on 24 June 2009) and Annex 1 to the present
Written Comments.
21See the photographie reproduction of the UDI on which the President and Prime Minister of Kosovo put
their signatures under the designations "Kryetari i Kosovës" (President of Kosovo) and "Kryeministri i
Kosovës" (Prime Minister of Kosovo), see WC Authors, Annex 1, p. 207. The term "Kryetari i Kosovës"
is used by the Constitutional Framework for Provisional Self-Govemment in Kosovo to refer to the
President of Kosovo, as an institution of self-government (see, e.g., Article 9.2.1). ln contrast to that, the
"constitution" of the so-called "Republic of Kosovo" uses the term "Presidenti i Republikës së Kosovës"
when referring to the "president" (see, e.g., Article 84, available at
http://www.assembly-kosova.org/common/ docs/Kushtetuta_sh.pdf ).
22WS Germany, Annex 2 (emphasis added).
2336. Further, the written contributionof the authors of the UDI daims that the adoption of
the UDI was accompanied by procedural irregularities and conclude that this shows
the UDI was not an act of the Assembly but "a particular act voted upon and signed
by the participants gathered together in a very special meeting." 23 In this regard, it
should first be noted that these procedural irregularitiesreveal additional elements of
the UDI's illegality, rather than curing it. Secondly, the evidence presented above
clearly showsthat the UDI was not adoptedby "participants" or a "constituent body",
but by the Assembly of Kosovo, while the Prime Minister and President of Kosovo
did not sign and endorse it as individuals or "participants" but in their official
capacity. By acting in their official capacity, a capacity that had been conferred on
them by the Constitutional Framework and by elections organized under the
ConstitutionalFramework and Security Council resolution 1244(1999),they acted as
the ProvisionalInstitutionsof Self-Governmentof Kosovo.
37. That the Assembly of Kosovo is the author of the UDI is also confirmed by the
United Nations Secretary-General. 24 His view is also shared by the European
Union, which, like the United Nations, has a field mission in Kosovo. 25
38. This is also confirmed by the views of various States that have recognized the
so-called "Republic of Kosovo", for example, Albania, 26 Denmark, 27
23WC Authors, para. 6.11.
24See Report of the Secretary-General on the United Nations lnterim Administration Mission in Kosovo, UN
Doc. S/2008/211 (28 March 2008), para. 3 ("On 17 February, the Assembly of Kosovo held a session
during which it adopted a "declaration of independence', declaring Kosovo an independent and sovereign
State"),Dossier No. 86; see, also, UN Doc. S.PV.5839, p. 2, Dossier No. 119.
25 Council of the European Union, Council Conclusions on Kosovo, 2851 stExternal Relations Council
meeting, Brussels, 18 February 2008: "On 17 February 2008 the Kosovo Assembly adopted a resolution
which declares Kosovo to be independent..." Available at:
http://www.auswaertiges-
amt.de/dipIo/de/AussenpoIitik/RegionaleSchwerpunkte/S uedosteuropa/Down Ioads-und-
Dokumente/080218- Ratsschluss folgerungen-Kosovo.pdf and
http://www.consilium.europa.eu/ueDocs/cms _Data/docs/pressData/en/gena/98818.pdf, p. 7.
26Albania, Recognition, Statement of Prime Minister: "Based on Declaration of Assembly of Albania, on
October 21, 1991, in compliance with decision of Assembly of Kosovo, on February 17, 2008 for
Declaration oflndependence ...", available at:
http://www.keshilliministrave.al/index.php?fq=brendaandm=newsandlid=7323
andgj=gj2; available also
via: http://www.kosovothanksyou.com/.
27Denmark, Recognition, Press Release: "On 17February 2008, the Assembly of Kosovo declared Kosovo's
independence." Available at:
http://www.um.dk/en/servicemenu/News/NewsArchives2008/DenmarkRecognizesK
osovoAsAnlndepende
ntState.htm.
24 Estonia, 28 Germany, 29 Ireland, 30 Latvia, 31 Lithuania, 32 Norway, 33 Poland, 34
Switzerland, 35and Sweden. 36
39. It follows that contemporaneous statements made by the authors of the UDI
themselves, by international organizations as independent observers, and by States
which accepted the UDI and recognized Kosovo, clearly confirm that the UDI was
adopted by the Assembly of Kosovo.
40. In addition, it should be noted in the present context that the Assembly of Kosovo
which adopted the UDI had been elected at parliamentary elections in November
37
2007 on which the overall voter turnout was a mere 42.8 %, and where Kosovo
status issues were deliberately removed from the electoral campaign by agreement
of the election participants. 38 This brings into question even the political
legitimacy of the Kosovo Assembly to deal with the status issues. It also shows
28 Estonia, Recognition, Press Release: "The Kosovo Assembly declared the province independent from
Serbia on 17February." Available at: http://www.vm.ee/eng/kat_l38/9350.htm1.
29 Pressemitteilung der Bundesregierung Nr. 51, Zustimmung des Kabinetts zur volkerrechtlichen
Anerkennung des Kosovo vom 20.02.2008: "Am 17. Februar 2008 hat die Parlamentarische
Versammlung in Pristina eine Unabhangigkeitserklarung verabschiedet." Available at:
http://www.bundesregierung.de/nn _1264/Content/DE/Pressemitteilungen/BP A/2008/02/2008-02-20-
anerkennung-des-kosovo.htm l.
30 lreland, Recognition, Press Release: "The recognition of Kosovo by Government decision follows a
resolution by the Kosovo Assembly on 17th February to declare Kosovo independent." Available at:
http://foreignaffairs.gov.ie/home/index.aspx?id=42938.
31
Latvia, Recognition, Press Release: ,,Respecting the declaration adopted by the Assembly of the Republic
of Kosovo on I7 February, the Republic of Latvia recognises the independence of the Republic of
Kosovo." Available at: http://www.mfa.gov.lv/en/news/press-releases/2008/february/20-4/.
32
Lithuania, Recognition, Resolution: "the declaration of independence of Kosovo adopted by the Assembly
of Kosovo on 17February 2008 and declaring Kosovo an independent and sovereign state..." Available at:
http://www3.lrs.lt/docs2/JISENYRJ.DOC.
33Norway, Recognition, Original Letter: "1 have the pleasure to refer to your letter of 17 February 2008 in
which you informed the Government of Norway of the decision taken by the Assembly of Kosovo to
declare Kosovo's independence." WS Norway, Annex 3.
34Poland, Recognition, Press Release: "On I7 February 2008, the National Assembly of Kosovo adopted a
declaration of independence..." Available at: http://www.premier.gov.pl/english/s.php?id=l 793.
35 Switzerland, Recognition, Media Release, "The Federal Council took note of the Declaration of
lndependence adopted by the Assembly of Kosovo on 17 February 2008..." Available at:
http://www.eda.admin.ch/eda/ en/home/recent/media/single.html ?id=17497.
36
Sweden, Recognition, Press Release: "On 17 February the Kosovo Assembly adopted a resolution which
declares Kosovo to be independent." Available at: http://www.sweden.gov.se/sb/d/10358/a/99714.
37See UN Doc. S/2007/768 (3 January 2008), p. 1,Dossier No. 84.
38See, e.g., Draft Report on Kosovo Municipal and Assembly Elections (Serbia) observed on 17 November
and 8 December 2007, CoE Doc. CG/BUR(l4)55 REV (14 January 2008), para. 10, available at
www.amai.ie/CLRAE/KOSOVO.doc ; see, also, U. Caruso, "Kosovo declaration of lndependence and the
International Community - an assessment by the Kosovo Monitoring Task Force", Journal on
Ethnopolitics and Minority Issues in Europe, vol. 7, no. 2 (2008), p. 14, available at
http://www.ecmi.de/jemie/download/2-2008-Caruso.pdf.
25 that the Kosovo Assembly was far from being a "constituent body" with the task
to establish a new State.
41. In conclusion, the claim that the "authors" were not acting as Provisional
Institutions of Self-Government when adopting (Assembly) and endorsing
(President and Prime Minister) the UDI is nothing more than a self-serving
construction designed to place the Kosovo authorities and the UDI outside the
mandatory international legal regime established by Security Council resolution
1244 (1999). According to this argument, a "constituent body" that purports to
establish a new State by the UDI would not be bound by general international law,
binding Security Council resolutions, and the regulations adopted by the Special
39
Representative of the Secretary-General. Consequently, according to this
argument, the authors of the UDI would be free (as in reality they are trying to be)
to terminate the international legal regime for Kosovo unilaterally, and then, again
unilaterally, to "invite" international civil and military presences to Kosovo and
40
define their mission.
42. In any case, however, this attempt is futile, since the mandatory effect of the
international legal regime established by Security Council resolution 1244 (1999)
is not confined in the scope of its application to the Provisional Institutions of
Self-Government, but applies to all actors in Kosovo, as will be discussed in more
detail in Chapter 9. Therefore, even if one were to accept, if only for the sake of
argument and contrary to the facts, the idea that the Provisional Institutions of
Self-Government were not the authors of the UDI, quod non, this could not
change anything in the final analysis as the authors of the UDI are in any case
bound by the international legal regime for Kosovo which the UDI violates.
39According to WC Authors, "... given that the declaration was not even an act of the PSIG but, rather, a
constituent act of the people of Kosovo expressed through their democratically elected representatives, the
Declaration was not even capable ofviolating resolution 1244." (para. 9.28).
40See UDI, para. 5, which states as follows:
"... 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."
26 C. The Meaning of the Question
43. As has already been noted, some written statements take the position that the
question before the Court is a question of the legality of a purely verbal,
41
declaratory act. However, the UDI is not merely a declaratory act; it is also an
attempt to create a new State. Indeed, in the view of its authors it was an act by
which an independent State, the so-called "Republic of Kosovo", was created.
This is illustrated by the words of Mr. Krasniqi, the president of the Assembly of
Kosovo, immediately after the Assembly adopted the UDI:
"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 of those who are watching us!
(applause)".42
44. All these different aspects of the UDI are relevant for the examination of its
legality. The UDI purports to be a legal act and, as such, needs to be analyzed in
the light of the applicable international legal regime and international obligations
of its authors. This involves an analysis of the UDI as an act aimed, inter alia, at
creating a new State and purporting to terminate Serbia' s sovereignty and the
United Nations administration of Kosovo, as well as the future status process. This
immediately mises the question of whether a State was indeed created - as
claimed by the authors of the UDI and the States that have recognized the so
called "Republic of Kosovo" - which leads to an examination that entails both
factual and legal elements: whether the so-called constituent elements of statehood
41See, e.g., WS United States, p. 45 ("...the question... focused on the legality of the act of declaring
independence"); WS United Kingdom, para. 1.16 ("whether Kosovo's Declaration of lndependence, a
declaration on a given day, is compatible with international law.").
42Annex 2 to WC Authors, p. 14. See, also, e.g., WS Albania, para. 47 ("... a Dol as the birth of a new
sovereign State...") and WS Slovenia, p.("[w]ith the Declaration of lndependence, the new state of
Kosovo was founded").
27 are present in the case of the so-called "Republic of Kosovo", and whether this
attempt at creating a new State was in accordance with applicable rules of
international law.
45. The question before the Courtis narrow in as muchas it deals only with the UDI
and does not address related issues, such as recognition. Nonetheless, the question
requires the Court to address various aspects of the UDI and the legality of these
aspects under international law. These, indeed, are the true legal questions that are
before the Court. Therefore, in Serbia's view, in order to fully consider the
question submitted by the General Assembly, the Court should deal with the UDI
in a comprehensive manner. Serbia's Written Statement has analyzed all
dimensions of the UDI and concluded that it not only breached the applicable
rules of international law, but also does not have as an effect the creation of a new
State.
D. Conclusion
46. In conclusion,
(i) The Provisional Institutions of Self-Government in Kosovo are the
authors of the UDI, as is clear from the evidence showing that the UDI
was adopted by the Assembly of Kosovo and endorsed by the
President and Prime Minister of Kosovo;
(ii) In any case, all actors in Kosovo, and not only the Provisional
Institutions of Self-Government, are bound by the international legal
regime established by Security Council resolution 1244 (1999), which
has been violated by the UDI;
(iii) The UDI should be viewed as a purported legal act, which, inter alia,
attempts to create a new State by terminating Serbia' s sovereignty and
the United Nations administration in Kosovo, as well as the future
status process;
(iv) The question asked by the General Assembly in the present
proceedings requires the Court to deal with various aspects of the UDI
and their legality under international law;
28(v) Serbia's Written Statement has shown that the UDI breached the
applicable rules of international law, and that the factual elements of
Statehood are not present in the case of Kosovo, and consequently the
UDI is not in accordance with international law, and does not have as
an effect the creation of a new State.
29 Chapter 3
JURISDICTION AND ADMISSIBILITY
47. A great majority of States participating in the present proceedings accept that the
Court has jurisdiction to deal with the request made by the General Assembly and
that there are no compelling reasons that prevent it from rendering an advisory
opinion. 43
48. However, there are still some States that question the jurisdiction of the Court or
the propriety of it giving an advisory opinion in the present proceedings. This
Chapter will first demonstrate that the claims objecting to the Court's jurisdiction
are not well founded. Second, it will be shown that the reasons adduced by the
States questioning the admissibility of the present request do not stand, and that
there are no compelling reasons that prevent the Court from exercising its
jurisdiction.
A. Jurisdiction
49. The Written Statement of France contends that since international law does not
govem the conditions for the creation of a new State, but only takes notice of its
existence, this means that the question before the Court is not a legal one, as it
44
cannot be answered "sur un terrain véritablement juridique."
43The following states expressly discuss the issue of the Court's jurisdiction and the propriety of its exercise,
and consider that the Court can and should render an advisory opinion: WS Argentina, pp. 10-18; WS
Azerbaijan, paras. 6-9; WS Cyprus, paras. 5-17; WS Egypt, paras. 13-25; WS Iran, paras. 1.1-1.5; WS
Russian Federation, paras. 6-17; WS Serbia, paras. 41-104; WS Spain, paras. 7-9; WS Switzerland, paras.
13-24.
Additionally, the following States do not in any way contest that the Court has jurisdiction, nor the
propriety of the Court exercising it, but only discuss the merits of the request: Austria, Bolivia, Brazil,
China, Denmark, Estonia, Finland, Germany, Japan, Latvia, Luxembourg, Libya, the Maldives, the
Netherlands, Norway, Poland, Romania, Sierra Leone, Slovakia, Slovenia, United Kingdom and
Venezuela.
44WS France, para. 1.5.
3150. This is an incorrect proposition that confuses the nature of the question before the
Court with a possible answer to that question. Even if international law were
"neutral" with regard to secession, quod non, this would not mean that the
question before the Court is not a legal one, but would only suggest one particular
(legal) answer to this legal question. Further, even if international law did not
govern questions of secession, quod non, any factual requirements of statehood
would nevertheless still be determined by international law.
51. This notwithstanding, the proposition that international law is "neutral" towards
45
secession is controversial, to say the least. Moreover, there are cases - Kosovo
being one of them - where international law is clearly not neutral towards
secession. In any case, this is a question of international law that the Court is able
to address in the advisory opinion in the present case.
52. Even more importantly, the UDI is not merely an isolated act attempting to create
a new State, but constitutes an act purporting to establish a new State by
46
terminating the United Nations administration of the territory. As such, the UDI
exists in the legal setting regulated by the international legal regime established by
the Security Council. With this in mind, the question of the possible "neutral"
stance of international law vis-à-vis the UDI does not even arise, which leaves the
jurisdictional claim made by France without any basis.
53. A similar argument has been made by Albania which contends that international
law does not regulate the UDI, which, according to Albania, is a matter essentially
within the domestic jurisdiction of the State in the sense of Article 2, paragraph 7,
of the Charter. For that reason, Albania claims, the General Assembly's request
"does not concern a legal question within the purview of its competences under
47
the UN Charter." However, this claim not only prejudices the question before
the Court as it starts from the proposition that Kosovo is a State, but is also, as a
matter of principle, unfounded. The situation in Kosovo has for a long time been a
45See WS Serbia, para. 1009 et seq.
46See supra paras. 43-45.
47WS Albania, para. 47.
32 matter of international concern, and the Security Council, acting under Chapter
VII of the Charter, has specifically regulated, inter alia, the interim administration
of the territory, a political solution to the Kosovo crisis and the political process
designed to determine Kosovo's future status. 48 Further, as emphasized in the
Interpretation of Peace Treaties advisory opinion, questions of international law
cannot be considered as being essentially within the domestic jurisdiction of a
State and lie within the competence of the Court. 49 Therefore, it is quite
astonishing to claim, as Albania does, that the UDI is a matter essentially within
the domestic jurisdiction and that the request of the General Assembly is not
within its competences under the Charter.
54. Albania contends that the General Assembly does not have jurisdiction due to the
effect of Article 12, paragraph 1, of the Charter. lt seems to contend that the
Court's scrutiny of relevant Security Council resolutions would interfere with
Security Council jurisdiction under Chapter VII and that the proper interpretation
of Article 12, paragraph 1, should prevent such a possibility. 50 However, this is
clearly contrary to the Court's well-established position that the said provision
does not prevent the General Assembly from requesting advisory opinions. 51 In
addition, the interpretation proposed by Albania would unduly extend the
application of Article 12, paragraph 1, to prevent the General Assembly from
requesting advisory opinions in cases in which the Court could, if only
hypothetically, touch upon matters that are dealt with by the Security Council
under Chapter VII of the Charter. This would lead to an unwarranted limitation of
the General Assembly's competences and the Court's judicial fonction. Indeed,
not only is the Court not precluded from interpreting Security Council resolutions,
including those adopted under Chapter VII, but as the principal judicial organ of
the United Nations it has a responsibility to do so when exercising its judicial
fonction.
48See resolution 1244 (1999), passim, especially paras. 1and 10,Dossier No. 34.
49See lnterpretation of Peace Treaties, Advisory Opinion: I.C.J Reports 1950, pp. 70-71. See, also, C.
Tomuschat, "Article 36",in A. Zimmermann et al. (eds.), The Statute of the International Court of Justice.
50A Commentary (2006), p. 637.
WS Albania, para. 52.
51See Legat Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory
Opinion, l.C.J. Reports 2004, para. 28 (hereinafter: "Wall").
3355. Finally, since Albania also uses this claim as an objection to the propriety of the
Court's opinion in the present case, it should be noted that a hypothetical
possibility of a con:flictbetween the opinion of the Court and eventual Security
Council action has never been regarded as a compelling reason for the Court to
52
decline issuing an advisory opinion. Other objections as to the propriety of the
Court exercising its jurisdiction in the present case are dealt with in the section
that follows.
B. There Are No Compelling Reasons to Decline Jurisdiction
in the Present Case
56. In a minority of written statements, it has been claimed that there are compelling
reasons for the Court to decline to give an advisory opinion in the present case,
which may be summarized as follows:
(i) that the General Assembly has no interest in the opinion;
(ii) that the opinion would serve no useful purpose;
(iii) that the opinion would concem a bilateral dispute;
(iv) that the opinion would have adverse political effects.
Each of these claims will be discussed in tum and it will be demonstrated that
none of them have any legal bearing and that the Court should not decline to give
its opinion in the present case.
I lnterest of the General Assembly and the United Nations
in the advisory opinion
57. Sorne States claim that the General Assembly has no interest in the advisory
opinion,53which is in fact sought "solely for the benefit of individual States." 54
This claim amounts to questioning the bona jide nature of the General Assembly
52See ibid, para. 53.
53See WS United States, pp. 41-45; WS France, paras. 1.23-1.42passim; WS Ireland, para. 12.
54WS United States, p. 44.
34 resolution 63/3, and for that reason it does not seem to be a proper matter for the
Court's consideration. As the Court stated in its first advisory opinion,
"[i]t is not concemed with the motives which may have inspired
this request, nor with the considerations which, in the concrete
cases submitted for examination to the Security Council, formed
the subject of the exchange of views which took place in that
55
body."
58. In the present case, the interest of the General Assembly in the question before the
Courtis evinced by the very fact that the General Assembly decided to request the
advisory opinion, which is indeed not a routine matter. It is not relevant that,
unlike most previous requests for advisory opinions, the present one did not
expound in detail on the need for the Court's advice or identify a specific problem
or cite relevant General Assembly resolutions. 56 In that regard, General Assembly
resolution 63/3 is quite similar, for example, to the General Assembly resolution
adopted on 16 November 1950 which requested the Court's advisory opinion in
the Reservations to the Convention on Genocide case. 57
59. Much of the argument behind the claim that the General Assembly has no interest
in the advisory opinion is based on the fact that the draft resolution was proposed
by Serbia individually and that Serbia, along with some other States, emphasized
the right of any State to seek an advisory opinion during the General Assembly
debate. However, all this meant was that any State might seek to persuade the
58
General Assembly to request an advisory opinion from the Court, and not that
the advisory opinion is requested solely for the benefit of one or more individual
55Admission of a State ta the United Nations (Charter, Art. 4), Advisory Opinion: I.C.J. Reports 1948, p. 61.
See, also,Competence of Assembly regarding admission ta the United Nations, Advisory Opinion: I.C.J.
Reports 1950, pp. 6-7; Certain expenses of the United Nations (Article 17, paragraph 2, of the Charter),
Advisory Opinion of 20 July 1962: I.C.J. Reports 1962, p. 155; lnterpretation of the Agreement of 25
March 1951 between the WHO and Egypt, Advisory Opinion, I.C.J. Reports 1980, para. 33; Legality of the
Threat or Use of Nuclear Weapons, Advisory Opinion, 1.C.J. Reports 1996 (hereinafter: "Legality of the
Threat or Use ofNuclear Weapons"), pp. 233-234, para. 13.
56See WS United States, p. 43.
57See Reservations ta the Convention on the Prevention and Punishment of the Crime ofGenocide, Advisory
Opinion, I.C.J. Reports 1951, pp. 16-17.
58See, also, WS United States, p. 44.
35 States. To contend otherwise is to reduce the General Assembly to a postal service
transmitting to the Court requests from States seeking advisory opinions. Indeed,
this argument minimizes the fondamental importance of the fact that it is the
General Assembly that adopted a decision to request an advisory opinion from the
Court and that the opinion is given to the Assembly, not to Serbia.
60. This argument is not diminished in the least by the fact that the General Assembly
currently does not have on its agenda a separate item specifically dealing with the
situation in Kosovo. There is nothing to preclude the Assembly from including
such an item at an appropriate time of its choice, in accordance with the Charter.
The long-standing interest of the General Assembly in the situation in Kosovo was
59
already noted in the Written Statement of Serbia.
61. Furthermore, the General Assembly's 63 rdsession does have the financing of
60
UNMIK on its agenda, which clearly relates to the question before the Court.
Those States that claim that the General Assembly has no interest in the present
61
advisory procedure try to diminish the importance of this fact. However, as
already discussed, 62 the UDI is an act purporting to terminate UNMIK and the
legality of the UDI must be of great relevance for the organ deciding on whether
and to what extent this mission should be financed.
62. In any case, the present proceedings are nota proper place to speculate whether or
not, and if so in what form, the General Assembly should or will discuss the
situation in Kosovo or its various aspects. This is a prerogative of the Assembly
itself. What is clear and indeed sufficient for the purpose of the present discussion
is that the General Assembly has expressed its interest in the question before the
Court by requesting the advisory opinion. As the Court stated in the Legality of
the Threat or Use of Nuclear Weapons advisory opinion:
59See WS Serbia, para. 54.
60See UN Doc. A/63/251 (19 September 2008), p. 13,agenda item 142.
61"A matter related to the financing of UNMIK is listed on the agenda, but there is no indication that the
Assembly needs the Court's legal advice in order to address this agenda item, nor was it suggested during
the debate that it does." WS United States, p. 42, note 173;see, also, WS France, para. l.37(ii).
62See supra para. 44.
36 "Nevertheless, it is not for the Court itself to purport to decide
whether or not an advisory opinion is needed by the Assembly
for the performance of its fonctions. The General Assembly has
the right to decide for itself on the usefolness of an opinion in
the light of its own needs." 63
63. For the sake of completeness it should be recalled that the General Assembly has
responsibilities under the United Nations Charter that are closely related to the
question before the Court, including considering any matters relating to the
maintenance of international peace and security (Article 11, paragraph 2); matters
relating to the powers and fonctions of any organs of the United Nations (Article
10); as well as the admission of new members (Article 4, paragraph 2). 64 Its
interest in an advisory opinion is apparent from the very fact that the opinion will
provide legal guidance necessary for the discharge of these responsibilities. In
particular, the General Assembly has a direct interest in all situations involving
challenges to the United Nations and violations of the Charter of the United
Nations and general international law. 65
II The purpose and effect of the advisory opinion
64. Another claim that is made is that the advisory opinion in the present case will
serve no usefol purpose or will have no effect. 66 At this point it is usefol to recall
what the Court said with regard to this question:
"It follows that the Court cannot decline to answer the question
posed based on the ground that its opinion would lack any
usefol purpose. The Court cannot substitute its assessment of
the usefolness of the opinion requested for that of the organ that
seeks such opm10n, namely the General Assembly.
63
64Legality of the Threat or Use of Nuclear Weapons, p. 237, para. 16.
WS Serbia, paras. 47-57.
65See ibid., para. 55.
66See WS France, paras. 1.7. et seq.; WS Albania, paras. 69-70; WS Czech Republic, p. 5; WS lreland, para.
12; WS United States, p. 42.
37 Furthermore, and in any event, the Court considers that the
General Assembly has not yet determined all the possible
consequences of its own resolution. The Court's task would be
to determine in a comprehensive manner the legal consequences
of the construction of the wall, while the General Assembly -
and the Security Council - may then draw conclusions from the
Court's findings." 67
65. As this pronouncement clearly shows, the Court cannot decline the advisory
opinion on the basis that it would serve no useful purpose, as it would otherwise
second-guess the requesting organ which is entitled to draw its own conclusions
from the Court's findings.
66. This is fully applicable to the present case and should dispose of the present
objection conclusively. Nevertheless, France claims that Article 12 of the Charter
"priverait un avis de la Cour de toute portée concrète" 68 and that General
Assembly cannot take any action in this situation without violating the Charter. 69
This claim is one of pure conjecture. In order to deal with it the Court would be
forced to speculate what actions the Assembly could take pursuant to the advisory
opinion and then to rule on hypothetical questions concerning compliance of these
hypothetical actions with the Charter. This would be clearly incompatible with the
Court's judicial fonction.
67. Further, and with reference to the Court's pronouncements in the Northern
Cameroons and Nuclear Tests cases, France contends that the Court in the present
case, as well, should avoid "un prononcé judiciaire dépourvu d'effet utile" for 70
the following reasons:
"1.13. Or, dans le cas présent, la question posée à la Cour est
dépourvue de tout effet pratique : quelle que puisse être la
réponse, rien, concrètement, ne pourra en résulter.
67
68Wall, p. 163,para. 62; see, also, Legality of the Threat or Use of Nuclear Weapons, p. 237, para. 16.
WS France, paras. 1.28-1.42.
69Ibid., para. 1.42.
70WS France, para. 1.12.
38 1.14. La conformité - ou non - de la déclaration
d'indépendance du Kosovo au droit international ne peut avoir
aucun effet sur l'existence de cette entité en tant qu'Etat qui est
71
une pure question de fait..."
68. Here, one should first note that the assumption behind this contention is that the
purported existence of the so-called "Republic of Kosovo" as a State is merely a
question of fact, an assumption which, as demonstrated in the written statements
of Serbia and other States, is not accurate. 72 Moreover, as already noted, the UDI
purports to be a legal act which, inter alia, purports to create a new State and is an
attempt to terminate the United Nations administration of Kosovo.
69. Secondly, the context of the Northern Cameroons case reveals that the Court
refused to act in a situation where no actual legal rights were involved because the
dispute concemed a Trusteeship Agreement which had been terminated by the
73
General Assembly and was no longer in force. This is wholly inapplicable to the
present case in which the question concems the legal regime established by
Security Council resolution 1244 (1999) which is still in force and is legally
binding on all relevant actors. Indeed, to accept the claim espoused by France is to
accept that this legal regime is no longer in force.
70. Moreover, advisory opinions are given in a completely different setting than the
one invoked by France. As the Court stated in the Western Sahara advisory
opm10n:
"Thus, to assert that an advisory opm10n deals with a legal
question within the meaning of the Statute only when it
pronounces directly upon the rights and obligations of the States
or parties concemed, or upon the conditions which, if fulfilled,
would result in the coming into existence, modification or
termination of such a right or obligation, would be to take too
71Ibid., paras. 1.13-1.14.
72For more, see infra paras. 215-216.
73Case Concerni~g the Northern Cameroons (Cameroon v. United Kingdom), Preliminary Objections,
Judgment o/2 December 1963: I.C.J. Reports 1963, p. 37.
39 restrictive a v1ew of the scope of the Court's advisory
jurisdiction. "74
71. Since the present advisory opinion is given to the General Assembly it should be
recalled that its responsibilities under the United Nations Charter are such that the
advisory opinion will have an important effect in their discharge. 75
72. Finally, one should also not forget the usefulness of the advisory opinion for other
organs of the United Nations. The Dossier submitted by the United Nations in the
present proceedings reveals that the Organization has had no benefit of impartial
legal advice on the matter, despite the fact that it is administering the territory and
that the UDI has presented a significant challenge to the authority of the United
Nations and its administration in Kosovo. 76 In particular, the authoritative legal
guidance from the Court will benefit the Security Council, as well as the
Secretary-General and his Special Representative who have taken a position of
strict neutrality towards the UDI pending further political guidance from the
Council. 77
III Other reasons adduced should also not lead the Court to decline
jurisdiction
73. Paradoxically, the same States that claim that an advisory opinion in the present
case will have no effect, also claim that it will actually have an effect, but an
78
adverse one. In essence, this is a claim that the Court should decline its advisory
opinion for political reasons and due to the potential adverse political effects of
the opinion. However, this simply cannot be the reason for the Court to abdicate
itsjudicial fonction, particularly since the United Nations' plenary political organ,
74Western Sahara, Advisory Opinion, I.C.J Reports 1975, p. 20, para. 19.
75For more, see WS Serbia, paras. 47-57 and 91-92.
76
See Report of the Secretary-General on the United Nations Interim Administration in Kosovo, UN Doc.
S/2008/211 (28 March 2008), para. 30, Dossier No. 86.
77See, e.g., Report of the Secretary-General on the United Nations Interim Administration in Kosovo, UN
Doc. S/2008/354 (12 June 2008), para. 12and Annexes 1-2, Dossier No. 88, as well as, more recently, UN
Doc. S/2009/149 (17 March 2009), para. 5.
78
See WS France, para. 1.18;WS Czech Republic, p. 5.
40 which is much better placed to assess the political aspects of the situation, did not
consider that the advisory procedure in the present case would have any such
adverse political effects. Finally, it should be recalled what the Court said on an
earlier occasion:
"The fact that this question also has political aspects, as, in the
nature of things, is the case with so many questions which arise
in international life, does not suffice to deprive it of its character
as a 'legal question' and to 'deprive the Court of a competence
expressly conferred on it by its Statute' (...) Whatever its
political aspects, the Court cannot refuse to admit the legal
character of a question which invites it to discharge an
essentially judicial task, namely, an assessment of the legality of
the possible conduct of States with regard to the obligations
imposed upon them by international law." 79
74. Another claim, made by Albania, is that since neither the General Assembly nor
the Security Council have requested that States should not recognize the so-called
"Republic of Kosovo" as a new State, "[a]n advisory opinion could not corne to
the conclusion that the recognition by these 57 States was in violation of
international law." 80 While it should be noted that the claim made by Albania
unduly limits the Court in the exercise of itsjudicial fonction, it is clear that in any
case the present advisory opinion does not concern the question of recognition as
such. The question before the Court concerns various aspects of the UDI and their
legality under international law.
75. Finally, a claim has been made that the advisory opinion concerns "a bilateral
dispute between Kosovo and Serbia." 81 As already discussed in the Written
Statement of Serbia, 82 its consent, as the interested State, is not required in the
present case, which raises issues of direct and acute concern to the United Nations
79
80Legality of the Threat or Use of Nuclear Weapons, p. 234, para. 13.
WS Albania, para. 58.
81WS Albania, Part IV, E).
82WS Serbia, paras. 76-80.
41 and the international system as a whole. 83In any case, Serbia has given its consent
to the present proceedings. At the same time, the consent of Kosovo is not
required, since it is nota State. Nevertheless, it should be noted that the authors of
the UDI are participating in the present proceedings and have submitted a written
contribution. 84
C. Conclusion
76. In conclusion, the Court is competent to exercise its advisory jurisdiction in the
present proceedings and there are no compelling reasons that should lead the
Court to decline to give an advisory opinion in response to the question submitted
by the General Assembly. As has been demonstrated, the claims made by a
minority of participants in the present proceedings, challenging either the
competence of the Court or the propriety of its exercise of advisory jurisdiction,
are unfounded and should be rejected in their entirety.
83
See Wall, p. 159,para. 50.
84lt has however been marked as a contribution of the so-called "Republic of Kosovo" in clear breach of the
Court's Order of 17 October 2008, seepra para. 3.
42 Chapter4
THELEGALANDFACTUALBACKGROUND
A. GeneralRemarks
77. The Written Statement of Serbia has provided a comprehensive summary of the
legal and factual background relevant for the question submitted to the Court.
Despite the conflicts of recent years still fresh in minds, the hardships currently
endured by a substantial number of inhabitants of Kosovo, and the continuing
flagrant violations of Serbia' s sovereignty and territorial integrity initiated by the
UDI, this summary was intended to be as objective, fair and comprehensive as
possible. This was so regardless of the light such a presentation of facts would
cast on the governmental authorities of the Federal Republic of Yugoslavia
(hereinafter: "FRY") and Serbia at the relevant times.
78. However, not all written submissions in the present proceedings have adopted this
approach. Instead, some of them have provided simplified and/or incomplete
presentations of facts designed purely to support their case for the independence
85
of the so-called "Republic of Kosovo." These inaccurate and sometimes
incorrect presentations of facts will be addressed as follows: first, a number of
general comments will be made; second, inaccuracies or misrepresentations of
facts which concern the status of Kosovo within Serbia and Yugoslavia, and the
negotiations on the final status, will be addressed.
79. In any event, Serbia expressly denies all claims that are contrary to the
presentation of the factual and legal background in its Written Statement and the
present Written Comments.
85See, in particular, WC Authors, passim; WS Albania, para. 4 et seq; WS United Kingdom, para. 2.1 et seq;
WS United States, p. 4 et seq; WS Germany, p. 8 et seq; WS Denmark, p. 6 et seq; WS Austria, para. 5 et
seq;WS Finland, para. 9 et seq; WS Estonia, p. 2 et seq; WS Switzerland, para. 81 et seq; WS Poland,
para. 3.1t seq; WS Norway, para. 30; WS Japan, p. 5 et seq; WS lreland, para. 33.
4380. With regard to factual statements made in the written submissions of the States
that have recognized the so-called "Republic of Kosovo," as well as in the written
contribution by the authors of the UDI, Serbia would respectfully like to make the
following general comments.
81. First, almost no information is given on the situation in Kosovo before 1989, in
particular with regard to the position of the ethnie Serb population in the province
in the period between 1974 (when a new constitutional structure was introduced in
the Socialist Federal Republic of Yugoslavia 86) and 1989. The evolution of the
crisis in Kosovo and the various positions of actors cannot be understood without
this information. 87
82. Second, descriptions of the position of the Kosovo Albanians in the period
between 1991 and 1997 are incomplete and fail to note two important facts. On
the one hand, human rights abuses were not confined to Kosovo, but were
88
committed against citizens in all parts of the FRY. On the other hand, due to
their radical secessionist political agenda and policy of disengagement - which is
also hardly mentioned - the Kosovo Albanian leadership missed a number of
opportunities to improve the position of their community and the human rights
situation in Kosovo as a whole. 89 Finally, in their description of this period, some
Written Statements contain gross factual inaccuracies such as that "public
activities in the Albanian language were banned, starting from education, culture,
90
science, and media..." However, the fact is that Albanian language media
91
operated in Kosovo throughout the period, and school education in the Albanian
language took place, albeit in "parallel" schools due to the Kosovo Albanian
boycott of the State educational system. 92 While it is true that the media in
Kosovo were exposed to repression, this was also the case with regard to
independent media elsewhere in the country.
86Hereinafter:"SFRY"
87This is discussed in WS Serbia, paras. 221-231.
88See, e.g., WS Serbia, para. 270.
89See ibid., paras. 268 and 271-272.
90WS Albania, para. 9.
91
92See, e.g., International Crisis Group, Kosovo Spring (1998), pp. 26-28
For more see WS Serbia, paras. 267-268.
4483. Third, there is almost no mention of the role played by the so-called "Kosovo
Liberation Army" (hereinafter: "KLA") in the period between 1997 and 1999, or
references to it are couched in neutral or positive terms. 93 However, this period
cannot be understood without taking into account the crucial role of the KLA in
the aggravation of the crisis through the introduction of terrorism as a modus
94
operandi of the Kosovo Albanian independence movement. Indeed, the United
95
States of America initially considered the KLA to be a terrorist organization, in
stark contrast to its current description of events:
"Having failed in supporting the secess10n of Serb-majority
areas from the territory of Croatia and Bosnia, Belgrade turned
to establishing full control over Kosovo, including through use
of force. In this context, some ethnie Albanians concluded that
the nonviolent policies of the Republic of Kosova would fail
and that only armed resistance could protect Kosovo from
Belgrade. The Kosovo Liberation Army ("KLA") began to
undertake significant armed operations in 1997." 96
84. This statement attempts to cast the KLA in a positive light by using the expression
"armed resistance" (a term also employed by Mr. Ahtisaari, the Special Envoy of
the Secretary-Generai9 7) to apply to what was a terrorist organization. It also
inaccurately implies that it was Belgrade that had to "establish full control over
Kosovo" which in turn had to be "protect[ed]... from Belgrade", as if Kosovo was
not already for decades part of Serbia. In this context, it should also be noted that
some written submissions, while extensively quoting from the ICTY first instance
judgment in Milutinovic et al. in relation to the atrocities committed by
individuals then being part of FRY authorities, fail to mention those parts of the
93
For example, the written contribution of the authors of the UDI mentions "the armed struggle of 1998-
1999," see WC Authors, para. 3.41; The United States uses the expression "armed resistance", see WS
United States, p. 13.
94See WS Serbia, para. 290 et seq.
95See WS Serbia, para. 297.
96
WS United States, p. 13(footnotes omitted).
97See UN Doc. S/2007/168 (26 March 2007), para. 6, Dossier No. 203.
45 same judgment dealing with the KLA 98 and, indeed, the ICTY judgments
specifically dealing with crimes committed by members of the KLA. 99
85. Fourth, not only are the cnmes against the ethnie Serb population in Kosovo
before June 1999 not mentioned, but there is also almost no mention of the human
rights situation in Kosovo after June 1999 or at present. 100The grave situation of
the non-Albanian population, in particular Serbs and Roma, is hardly discussed,
including the fact that there are almost no returns to Kosovo of displaced persons
of non-Albanian origin. 101 Similarly, there is hardly any mention of the well
documented organised pogrom against the Serbs in Kosovo that took place on 16-
102
18 March 2004. These facts must be mentioned, not only for the sake of
fairness, but because they are relevant and important, in particular when
discussing the fulfilment of the United Nations' task in Kosovo.
86. Fifth, no real evidence has been presented that would confirm that there is an
independent government in Kosovo exercising effective control over the territory.
While some of the written submissions, in particular the written contribution made
by the authors of the UDI, dedicate considerable space to describing the
functioning of the so-called "Republic of Kosovo", 103it should be noted that this
is mainly confined to quoting its "constitution" and "laws", as well as to
presenting the well-known statistics of its recognition. This 1s simply not
sufficient to prove the effective control of the so-called "Republic of Kosovo", in
98For example, see ICTY, Prosecutor v Milutinovic, IT-05-87-T, Judgment, 26 February 2009, paras. 797-
804 and 821-840. Similarly, extensive references to the OSCE reportuman Rights in Kosovo: As Seen,
As Told, Volume I (1999), fail to mention those parts dealing with the KLA and its crimes, see, e.g., ibid.,
pp. 25-26 and 136-138.
99ICTY, Prosecutor v. Fatmir Limaj et al., IT-03-66, Judgment, 30 November 2005; ICTY, Prosecutor v.
Ramush Haradinaj et al., IT-04-84, Judgment, 3 April 2008.
100
For more, see WS Serbia, paras. 365-387. See, also Human Rights in Kosovo: As Seen As Told, Volume Il
(I999), which is completely neglected by those extensively quoting the first volume of the report.
101According to a recent report of the Secretary-General "[a]ccording to UNHCR estimates, 137 displaced
community members, including24 Kosovo Albanians, 30 Kosovo Serbs and 54 Roma, Ashkali and Egyptians,
voluntarilyreturned to Kosovo between January and April [2009]",UN Doc. S/2009/300 (10 June 2009), para.
30. There are currently more than 200.000 internally displaced persons from Kosovo in Serbia. See UNHCR
Global Report 2008, p. 250, which also statesthat "[a]s a result of the unilateraldeclaration of independenceby
the Kosovo Assembly in February 2008, returns of minority groups from other parts of Serbia to Kosovo have
corneto anear halt."id, p. 249, availableat:
http://www.unhcr.org/cgi-bin/texis/vtx/search?page=searchanddocidl4ee2a…
102But see WS United States, p. 25.
103
See WC Authors,paras.2.01-2.74. See,also,WS United Kingdom,paras.4.12-4.27;WS United States,pp. 34-40.
46 the light of the extensive powers exercised by international civil and security
presences in Kosovo, as well as the lack of control by the so-called "independent"
authorities in parts of Kosovo. 104
B. Kosovo as Part of Serbia and Yugoslavia
I lntegration of Kosovo into Serbia and Kosovo as part of Serbia and Yugoslavia after
World Warll
87. A number of misrepresentations have been made with respect to various aspects of
the status of Kosovo as part of Serbia and Yugoslavia, which will be refuted in the
present section. For a comprehensive and detailed assessment of this topic the
Court is respectfully directed to the Written Statement of Serbia. 105
88. The first misrepresentation regards the integration of Kosovo into Serbia in 1912-
1913, which is termed as an "occupation" by the authors of the UDI. 106 Indeed,
according to the written contribution of the authors of the UDI,
"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 governments of the new
107
Kingdom were dominated by Serb interests."
104For more, see WS Serbia, especially paras. 974-985.
105
106WS Serbia, paras. 132-203.
WC Authors, paras. 3.02. and 3.05-3.06.
107WC Authors, para. 3.06.
4789. This is a drastic misrepresentation of facts. As is well-known, the integration of
the territory of present-day Kosovo into Serbia was intemationally recognised and
guaranteed by international treaties determining borders in the Balkans in 1913. 108
Therefore, there is no question of Kosovo being a Serbian occupied territory and it
is factually incorrect to say, as the authors of the UDI do, that "prior to [1918] the
territory of Kosovo had never been lawfully incorporated into the Kingdom of
Serbia." Further, since the territory ofpresent-day Kosovo was from 1913 legally
a part of Serbia, the legal personality of which was continued by the Kingdom of
the Serbs, Croats and Slovenes after World War I, it is inaccurate to state that
"when Kosovo first entered a modem Yugoslav State, it did not do so as an
integral part of any Serbian State."
90. A claim is also made that "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." 109However, the reason for this particular uncertainty
about the future of Kosovo in Yugoslavia by no means lies in any possible
specificity of Kosovo: the real reason is that Yugoslavia was occupied and
partitioned by Nazi Germany and other Axis powers. Once World War II was over
and the occupation had ended, Yugoslavia's international boundaries were re
established. The country was constituted as a federation, on the basis of the 1943
decisions of the Anti-fascist Council of National Liberation of Yugoslavia, 110with
Serbia as one of its federal units and the Serbs as one of its nations. In 1945, the
Presidency of the National Assembly of Serbia constituted Kosovo as an
111
autonomous region within Serbia. In 1946, the Yugoslav federal constitution
confirmed that Serbia included Kosovo and Vojvodina and their autonomous
status.112In any case, the status of Kosovo in Serbia and Yugoslavia was purely a
matter of the domestic constitutional structure.
108See Traité de Paix conclà Londres le dix-sept (trente) mai mil neuf cent treize entre la Turquie et les Alliés
balkaniques; Traité de Paix conclu et àBucarest le 28juillet 1913entre la Serbie, la Grèce, le Monténégro et
la Roumanie d'une part et la Bulgarie d'autre part; Accord intervenu entre le Royaume de Serbie et le Royaume de
Grèce concernant la frontière serbo-grecque [3/16 August 1913];Accord intervenu entre le Royaume de Serbie et
le Royaume de Monténégro concernant la frontière serbo- monténégrine [30 October 1913 (Julian calendar)]; ail
reprinted in Annexes 6-9 in Documentary Annexes accompanying WS Serbia.
109WC Authors, para. 3.10.
110See Annex 42 in Documentary Annexes accompanying WS Serbia.
111
112See WS Serbia, para. 147.
See ibid., paras. 148-150.
4891. It seems that these misrepresentations have apparently been made in order to
support a further misrepresentation that Kosovo has never been part of Serbia, but
only of Yugoslavia, and that the secession of Kosovo is just another step in the
dissolution of the former Yugoslavia. 113 This, however, is incorrect both in law
and in fact. First, the Arbitration Commission on former Yugoslavia determined
that the process of dissolution of the former Yugoslavia was completed more than
15 years before the UDI, i.e. by 4 July 1992 at the latest. 114 Secondly, and even
more importantly, the fact that Kosovo forms part of Serbia (and of Yugoslavia
when Serbia was in Yugoslavia) has been continuously reaffirmed ever since
Kosovo was integrated into Serbia:
- in 1913, by the international treaties determining the borders m the
Balkans;
- after World War I, by the recognition of the borders of the Kingdom of
the Serbs, Slovenes and Croats (the Kingdom of Yugoslavia) in a series
of international treaties and decisions; 115
- after World War II, by the recognition of the borders of Yugoslavia;
- in 1992, by the acceptance of the borders of the republics of the former
Yugoslavia as the basis for new State borders, as confirmed in Opinion
No. 2 of the Arbitration Commission on former Yugoslavia and
subsequently accepted by the international community;
- from 1998 until present, in Security Council resolutions 1160 (1998),
1199 (1998), 1203 (1999), 1239 (1999), 1244 (1999), and 1345 (2001).
II Constitutional amendments of 1989
92. Another series of misrepresentations is made with regard to the status of Kosovo
within the Yugoslav Federation after 1974 and, in particular, concerning the 1989
amendments to the Serbian Constitution. For a comprehensive description of the
113See, e.g., WC Authors, para. 3.31.
114Opinion No. 8, 31 ILM 1523 (1992), Annex 41 in Documentary Annexes accompanying WS Serbia,
115Dossier No. 235.
See Treaty of St. Germain-en-Laye (1919), Treaty of Trianon (1920), Treaty ofNeuilly-sur-Seine (1919),
as well as the decision of the Conference of Ambassadors, seetion of the Monastery of Saint-Naoum
(A/banian Frontier), Advisory Opinion of 4 September 1924, P.C.I.J., Series B, No. 9,ly pp. 9-15.
49 status of Kosovo in the 1974 constitutional system, the Court is respectfully
directed to the Written Statement of Serbia. 116At this point it is sufficient to note
that the autonomous provinces, while being an important part of the SFRY
constitutional structure, were not federal units. As stated by the (federal)
Constitutional Court of Yugoslavia:
"under the SFRY Constitution, the SAP [Socialist Autonomous
Province] of Vojvodina and the SAP [Socialist Autonomous
Province] of Kosovo are not federal units like the republics,
but... they are autonomous socio-political communities within
the SR [Socialist Republic] of Serbia." 117
93. As far as the 1989amendmentsto the Serbianconstitutionare concemed,it is claimed
that this was an "illegalremoval of autonomy"through coercion, 118or that the Kosovo
119
Assembly acceptedthem withoutthe requiredtwo-thirdsmajority. For example,the
authorsof the UDI dedicatetwo full pages to this issue and quote extensivelyfrom the
ICTY Trial Chamber's firstinstancejudgment in Prosecutor v. Milutinovic et al.120On
thisbasis,the authorsofthe UDI concludethat
"through a process of violence and intimidation, Serbia
unconstitutionally and illegally removed Kosovo's autonomy,
both within Serbia and within the SFRY." 121
94. However, the assessment arrived at by the ICTY Trial Chamber clearly does not
support such sweeping conclusion:
"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
122
that, in fact, this was their effect."
116WS Serbia, paras. 173-187.
117Constitutional Court of Yugoslavia, Decision of 19 February 1991, 11-U-broj 87/90, Sluzbeni list SFRJ
[Official Gazette of the SFRY], no. 37/1991, p. 618, for the Serbian original and English translation see
Annex 56 in Documentary Annexes accompanying WS Serbia.
118WC Authors, paras. 3.23. et seq.; WS United Kingdom, para. 2.5.
119WS United Kingdom, para. 2.5.
120
121See WC Authors, paras. 3.26-3.28.
See WS, para. 3.28.
122ICTY, Prosecutor v Milutinovic, IT-05-87-T, Judgment, 26 February 2009, para. 221.
5095. While Serbia does not agree with the Chamber's broad assessment that the effect
of the amendments was to remove "the substantial autonomy previously enjoyed
by Kosovo and Vojvodina", which is in any case a matter for legal assessment, it
is significant that the Chamber did not conclude that the amendments were
adopted either "unconstitutionally", "illegally" or "through a process of violence
and intimidation" as the authors of the UDI erroneously claim.
96. This cornes as no surprise, since the witnesses testifying in Milutinovic et al. about
the adoption of the 1989 amendments were either not present in Kosovo at that
time, or only had second-hand information about the circumstances in which the
123
amendments were adopted. In such circumstances, the Chamber rightfully
confined itself to concluding that the amendments were perceived by the Kosovo
Albanians as removing the autonomy and that "in fact, that was their effect" without
establishing that this was done illegally or by coercion or unconstitutionally.
97. In this regard, Serbia would respectfully like to draw attention to the following
additional facts which show that the decision of the Assembly of Kosovo, which
consisted predominantly of ethnie Albanians, to accept the 1989 amendments to
the Serbian constitution was neither unconstitutional nor coerced:
- Discussion and voting were free; indeed some members criticised the
amendments and their statements were reported in the press. 124 No
procedural irregularities in the work of the Kosovo Assembly were
raised or reported at the time. It should be noted that indeed a large
number of journalists was present at the session, 125 as well as the
highest-ranking Yugoslav federal officials, including those of ethnie
Alb · · · 126
aman ongm.
123See ibid., para. 219. These statements can be contrasted by the witness stMr.mVukasin
Jokanovic, who was the chairman of the Kosovo Assembly at the time, and who denied that any coercion
or illegality took place. See ICTY,ecutor v. Milosevic, IT-02-54-T, Transcript, 1December 2004,
e.g., p. 34044, Annex 2 to these Written Comments.
124See, e.g., BBC Summary of World Broadcasts, 28 March 1989, ICTY, Proseeutor v. Milosevic, IT-02-54-T,
125exhibit P796.3, available at: http://icr.icty.org/.
See ICTY, Prosecutor v. Milosevic, IT-02-54-T, Transcript, 1 December 2004, pp. 34052 and 34054-
34055, Annex 2 to these Written Comments.
126Ibid., pp. 34055-34056.
51 - The amendments to the Serbian constitution were reviewed by the
(federal) Constitutional Court of Yugoslavia, which found that some
of them were not in accordance with the federal constitution but
upheld the constitutionality of the amendments relating to the status
and competences of autonomous provinces. Only one judge raised
the question of the constitutionality of the procedure through which
the amendments were adopted by the Kosovo Assembly but his
motion was rejected by the Constitutional Court of Yugoslavia by a
vote of 11 against 2, its judges coming from all parts of the former
Y ugos avia. 127
98. Therefore, the 1989 amendments to the Serbian constitution were not adopted
either illegally or by coercion. This was also the view of the competent authority,
the Constitutional Court of Yugoslavia, which considered that it was not necessary
to examine the constitutionality of their adoption.
99. Moreover, the effect of the 1989 amendments to the Serbian constitution was to
modify the autonomy of Vojvodina and Kosovo, not to abolish it. After the
amendments entered into force, the Autonomous Province of Kosovo continued to
exercise its autonomous competences. For example, the Assembly elected
Kosovo's delegation to the Chamber of Republics and Provinces of the Yugoslav
federal Assembly, 128 and adopted amendments to the provincial constitution. 129
The same was the case with other institutions of Kosovo's autonomy which
continued their work until they were eventually suspended at a later stage in
response to their attempt to unconstitutionally assume powers that they did not
possess. As far as Vojvodina is concerned, it has continued to exercise its
autonomous powers until the present day, powers which are currently regulated by
the 2006 Constitution of Serbia.
127
See Minutes U-No. 105/1-89 of 18January 1990,reproduced in Annex 3 to these Written Comments; see,
also, Constitutional Court of Yugoslavia, Opinion of 18 January 1990, IU-broj 105/1-89,i list
Socijalisticke Federativne Republike Jugoslavijeial Gazette of the SFRY], No. 10/1990.
128See Sluzbeni list SAP Kosova [Official Gazette of the SAP Kosovo], No. 36/1989.
129Ibid., No. 24/1989.
52 C. Negotiations on the Future Status
I Introduction
100. Most written submissions presented to the Court discuss the negotiations on the
future status of Kosovo. In this regard, the proponents of Kosovo's
independence claim that all possibilities for further negotiations were exhausted
so, accordingly, the unilateral action taken by the Provisional Institutions of
Self-Government in Kosovo was inevitable. Thus, the United Kingdom refers to
the "multiple (unsuccessful) searches for a solution" which are in its Written
130
Statement divided into five phases. The United States' view is that "[t]he
political process ...was pursued with creativity and persistence, and was strongly
supported by the international community" but eventually the differences
between the parties were "simply too great to achieve a result that was
acceptable to both Belgrade and Pristina." 131Germany also refers to "the earnest
and intense, but ultimately unsuccessful search for a negotiated solution ... " 132
Mr. Ahtisaari, the Special Envoy of the Secretary-General, took the view 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 impasse." 133
101. However, these v1ews are not accurate. The negotiations were from the very
beginning fatally affected by the attitude of certain Powers, members of the
Contact Group, as well as the mediator himself, which was clearly in favour of
independence of Kosovo. In such circumstances, the Kosovo Albanian leadership
did not have any reason to consider, let alone accept, any compromise on the issue
of status. This will be demonstrated in the following sections which, in tum, will
deal with the circumstances in which the negotiations were conducted, and the
approaches of the parties.
130WS United Kingdom, para. 3.33 et seq. These five phases of the "searches for negotiated solution" even
include the "standards before status" policy as one phase. However, this policy preceded the negotiations
and was not an attempt to reach a final solution.
131WS United States, p. 32.
132WS Gennany, p. 27.
133UN Doc. S/2007/168 (26 March 2007), para. 3, Dossier No. 203.
53102. Serbia is aware that its submissions on this matter raise very serious concems. For
that reason it has decided to rely solely on public documents that speak for
themselves and not on its diplomatie archive. Serbia is confident that the Court
will give due consideration to these facts and will draw its conclusions
accordingly.
II The circumstances in which the negotiations were conducted and the attitude of
Mr. Ahtisaari
103. The Contact Group consisting of France, Germany, ltaly, the Russian Federation,
the United Kingdom and the United States adopted in November 2005 the guiding
principles for the future status process for Kosovo. 134 This document was
subsequently forwarded by the President of the Security Council to the Secretary
General, 135and served as a basis for the final status negotiations.
104. With respect to the final status of Kosovo, the Contact Group adopted the
following position:
"The settlement of Kosovo' s status should strengthen regional
security and stability. Thus, it will ensure that Kosovo does not
retum to the pre-March 1999 situation. Any solution that is
unilateral or results from the use of force would be unacceptable.
There will be no changes in the current territory of Kosovo, i.e.
no partition of Kosovo and no union of Kosovo with any country
or part of any country. The territorial integrity and internai
136
stability ofregional neighbours will be fully respected."
105. lt is clear from the foregoing that the Contact Group did not pre-determine
independence as the final status of Kosovo, but only set certain criteria for whatever
final status the parties might agree upon (such as: no retum to the pre-March 1999
134"Guiding principles of the Contact Group for a settlement of the status of Kosovo," UN Doc. S/2005/709
135(10 November 2005), Annex, Dossier No. 197.
UN Doc. S/2005/709 (10 November 2005), Dossier No. 197.
136"Guiding principles of the Contact Group for a settlement of the status of Kosovo," UN Doc. S/2005/709
(10 November 2005), Annex, para. 6,ossier No. 197.
54 situation; no unilateral solution; no solution by the use of force; no partition of
Kosovo; no union of Kosovo with other countries; respect for territorial integrity).
A subsequent statement of the Contact Group issued in January 2006 also did no
137
pre-determine the final status of Kosovo to be independence.
106. At the same time, however, Mr. Ahtisaari, who was the Special Envoy for the
future status process for Kosovo, from the very beginning of his mandate took the
view that independence was the only option for the final status of Kosovo and
conveyed this view to both parties. According to Mr. Ahtisaari himself:
"L'une des conditions formulées au départ était de ne surtout
pas revenir à la situation d'avant 1999. Lorsque j'ai rencontré [le
premier ministre] Kostunica en 2005, je lui ai dit que
j'interprétais cela comme la perte du Kosovo." 138
107. This is confirmed by Mr. Kostunica, who writes that Mr. Ahtisaari told him that
Kosovo shall be independent already on his first visit to Belgrade on 24
November 2005:
"On the occasion of his first visit to Belgrade already on 24
November 2005, Ahtisaari conveyed that he came to Belgrade to
see in what way he can help Serbia, i.e., to reduce the damage
that Serbia will suffer. When asked what damage he was talking
about, Ahtisaari responded that something goes without saying:
Kosovo shall be independent." 139
137Kosovo Contact Group Statement, London, 31 January 2006, available at:
http:/ue.eu.int/ueDocs/cms_Data/docs/pressdata/ en/declarations/8823 6.pdf.
138Le Temps, "Martti Ahtisaari: 'Le Kosovo est un casà part"', 5 March 2008, Annex 4 to these Written
Comments, available at: http://www.letemps.ch/Facet/print/U uid/79cb56ac-aa06- l ldd-bf59-
ad3d6l40ad87/Martti_Ahtisaari_Le_Kosovo_est_un_cas_ à_part.
139V. Kostunica, Odbrana Kosova [Defence of Kosovo] (2 rev. ed, 2009), p. 15.The Serbian original reads
as follows:
"Prilikom svoje prve posete Beogradu jos 24. novembra 2005. Ahtisari je saopstio da je dosao u
Beograd da vidi na koji nacin moze da pomogne Srbiji, odnosno da umanji stetu koju ée Srbija
pretrpeti. Na pitanje o kakvoj jeti rec, Ahtisari je odgovorio da se nesto podrazumeva: Kosovo ée
biti nezavisno".
55108. Moreover, Mr. Ahtisaari not only from the very beginning embraced
independence as his solution for the final status of Kosovo, but also took the
following view of the negotiations and his role in them:
"[Ahtisaari:] Let me give you an example how... how... how I
look at the Kosovo negotiations, because people have a totally
wrong impression that we simply sit there, I as a mediator, and
there's Serbia, and there's Kosovo delegation. But... and, and...
then we have to, people expect that the negotiations mean that
we have to find somehow a compromise between these two. But
situation very often in a negotiations is, that, let's take an
example, that Serbia is like a thief who has stolen the wallet
from Kosovo. And if I am a mediator, I am not advising them
that could the Serbian thief actually decide himself how much
money he wants to give to the fellow whose wallet he'd stolen ...
he has to give the whole damn wallet to you and then, most
probably, go to jail for what he did. So, this is what the
negotiations very often are. You have to do what is right. Things
went so much overboard, that the only solution was left, and
everyone, Belgrade, Pristina, Kosovo Serbs, knew from the first
quarter of 2006 when the five members of the Contact Group -
all the western members - told these two and the Kosovo Serbs,
the following (the private messages, there were eight of them, I
am not going to bother you and the audience for reading them
all, but I'll read the first one) 'The unconstitutional abolition of
Kosovo's autonomy in 1989 and the ensuing tragic events
resulting in the international administration of Kosovo have led
to a situation in which a return of Kosovo to Belgrade's rule is
not a viable option.' Everyone knew that independence was
coming. But Prime Minister Kostunica and company behaved
like they wouldn't have heard what was told to them.
56 [Question:] Well, you know, the Serbs think that Kosovo is
their wallet and you took it away from them and they, they... and
I won't bore people with this, I've got the UN resolution here,
the Supreme... the Security Council promising that Yugoslavia
would never be broken up. So, there are, I think, two sides to
this story...
[Ahtisaari:] No, it's, it's ... there's not - there's only one side
to story. Because, in 2005, the General Assembly accepted the
principle: responsibility to protect. If a dictatorial leadership in
any country behaves the way as Milosevic and company did vis
à-vis the Albanians in Kosovo, they lose the right to control
them any more.
[Question:] And that was it?
[Ahtisaari:] That was it."140
109. These statements patently show that Mr. Ahtisaari did not approach the final status
negotiations in a fair and unbiased manner, as was his duty. Instead, he clearly
favoured one party in the process, the Kosovo Albanians, and from the very
beginning consideredthat independencewas the only option forthe statusof Kosovo.
110. In addition, from the beginning of 2006 onwards, certain members of the Contact
Group startedto convey to both parties, Serbia and the Kosovo Albanians, a message
that the independenceof Kosovo would be the only solutionforthe final status.
111. In a press statement made on 10 March 2006, Mr. Jack Straw, the United
Kingdom Foreign Secretary, "called on Serbia to accept that independence for
Kosovo was almost inevitable." 141Previously, at the beginning of February 2006,
140Interview with Mr. Ahtisaari, CNN, 10 December 2008, available at:
http://www.youtube.com/watch?v=rHvpgj-ns-Mandfeature=related(visited on 17 June 2009).
141See http://news.bbc.eo.uk/2/hi/europe/4792372.sln response to this statement, Serbia protested to the
United Kingdom Ambassador in Belgrade on 11 March 2006.
57 a high-level British diplomat visited Kosovo and, according to the reports of the
Kosovo media, conveyed a message indicating that independence was the
1avoure opt10n. 142
112. Therefore, the final status negotiations were led by a mediator who was clearly
biased against one party and who came to the negotiating table with a ready
solution - independence for Kosovo. Moreover, during the first half of 2006,
when the status negotiations were in their early phase, high level representatives
of certain members of the Contact Group conveyed the message to the parties that
the only solution for Kosovo was independence. All this created a setting in which
the negotiations could not be conducted in an open and fair manner. One party, the
Kosovo Albanians, simply did not have any incentive to consider any compromise
solution to the future status but stuck to its position that independence was the
only option, and was indeed encouraged to do so by the mediator himself and
certain Powers.
113. This situation continued once Mr. Ahtisaari presented his final status proposal in
early 2007, which indeed envisaged independence for Kosovo. Once it became
obvious that the proposal would not be endorsed by the Security Council, there
were new efforts to achieve a negotiated solution acceptable to both parties.
However, support for independence was at this point in time no longer merely
voiced in diplomatie meetings and in oblique language, but came from the highest
places and was expressed in unequivocal terms. As the United States President
George W. Bush said on 10 June 2007 in Tirana:
"We also talked about Kosovo. I'm a strong supporter of the
Ahtisaari plan. I said yesterday in Rome, the time is now. A
fellow asked me a question, 'Well, when does this end? When
does the process end?' I said, 'The time is now.' In other words,
I put a sense of -- I made it clear that -- two things: One, that we
142See UNMIK media survey:
http://www.unmikonline.org/dpi/localmed.nsf/0/7F842356DE8ABIC 125710E0033CAEE/$FI LE/lmm0
70206.pdf.
58 need to get movmg; and two, that the end result is
independence." 143
114. Consequently, any further efforts to negotiate an agreed solution for the final
status of Kosovo were doomed from the very beginning. The Kosovo Albanian
side simply had no reason even to consider any proposa! that fell short of
independence, it only had to wait.
III The approaches taken by the parties
115. In the circumstances m which the negotiation process was from the very
beginning led in a biased manner and towards independence as the only solution,
the Kosovo Albanian leadership clearly had no incentive to consider any other
status options. Yet, some written submissions, including the written contribution
by the authors of the UDI, claim that Serbia was unwilling to compromise m
contrast to the Kosovo Albanian leadership. 144
116. A simple comparison of the positions of the two parties taken at the beginning and
at the end of negotiations, shows that the position of the Kosovo Albanian
leadership from the beginning to the end was only independence. According to the
Kosovo Assembly resolution adopted before the negotiations started, on 17
November 2005, will of Kosova people for Independence lS
"
Nonnegotiable". 145The Kosovo Albanian leadership stuck to the same position
after almost two years of negotiations and said to the Security Council mission on
the Kosovo issue that "Kosovo' s independence as outlined in the Kosovo
settlement proposa! now before the Security Council was the only acceptable
143The President's News Conference With Prime Minister Sali Berisha of Albania in Tirana, Albania, June 10,
2007 (emphasis added), available at: http://www.presidency.ucsb.edu/ws/index.php?pid=75342
144See WC Authors, paras. 5.15 and 5.18 (their approach "forward-looking and positive" while Belgrade's
approach "unconstructive"); see, also, e.g., WS United Kingdom, para. 3.52, and WS Germany, p. 22.
145
Dossier No. 200, para. 9. See, also, UNMIK Media Monitoring, 16 October 2005, which transmits the following
press report from Kosovo daily Sot: "Following the statementmade by US Under SecretaryNicholas Burns
that solutionto Kosovo status should be a result of compromise, Kosovo political parties stated that independence
of Kosovo isthe onlypossible compromise...", availableat:
http://www.unmikonline.org/dpi/localmed.nsf/0/9AB2D62F157EB1D5C125709D0…
59 option. Other solutions could not be contemplated." 146This remained the position
147
of the Kosovo Albanian leadership during the 2007 Troïka negotiations.
117. In contrast, Serbia' s position changed towards ever wider autonomy and self
government for Kosovo, as the negotiations progressed. From a general and open
minded starting position, which did not exclude any solution that would respect its
148
territorial integrity and sovereignty, Serbia moved to propose broad substantial
autonomy under international supervision. 149 Subsequently, it presented various
ideas for Kosovo's substantial autonomy, 150 none of which were accepted by the
Kosovo Albanian leadership, including the following model proposed by the
President of Serbia:
"Serbia offers to Kosovo most competencies and symbols that
are normally reserved only for sovereign countries.
Serbia maintains the right to associate herself with province's
foreign policy, defence, border control and the protection of
Serbian heritage. As such, Serbia also reserves the right to
exclusive representation in the United Nations, the OSCE and the
Council of Europe. Serbia also requires that there be no army but
accepts a gendarmerieto ensure domesticlaw and order in Kosovo.
146Report of the Security Council mission on the Kosovo issue, U.N. Doc. S/2007/256 (4 May 2007), para.
26,Dossier No. 207.
147See Report of the European Union /United States/Russian Federation Troïka on Kosovo, UN Doc.
S/2007/723 (10 December 2007), Enclosure, para. 8,Dossier No. 209.
148
According to a resolution adopted on 21 November 2005 by the National Assembly of the Republic of
Serbia, the Government was authorized "to advocate modalities of a sustainable political, institutional and
legal solution for the future status of Kosovo and Metohija." Further, the National Assembly emphasised
that it"is aware of the fact that there can be different modalities of the future status of Kosovo and
Metohija that do not question the sovereignty and territorial integrity of the state." Sluzbeni glasnik RS
[Official Gazette of the Republic ofSerbia], No. 100/2005.
149
According to the 2007 Report of the Security Council mission on the Kosovo issue,
"The Coordinator of the Negotiating Team, Mr. Leon Kojen, outlined the Serbian proposai for broad
substantial autonomy under international supervision. This arrangement envisaged that Kosovo
would be vested with executive, legislative and judicial powers while Serbia would retain control
over foreign policy, defence, border control, monetary and customs policy, and the protection of
Serbian religious and cultural heritage and human rights. Such autonomy would be renegotiable
after a certain period. Serbia was willing to discuss Kosovo's access to international financial
institutions. Kosovo would have a choice: either special representation in Serbia's institutions, or
full participation in the political institutions at the central level."
U.N. Doc. S/2007/256 (4 May 2007), para. 14, Dossier No. 207; see, also, Annex 81 in Documentary
Annexes accompanying WS Serbia.
150See Letter of Ambassador Ischinger to European Union High Representative Solana, 5 December 2007,
Annex 4 to the WS Germany, p. 2.
60Agreements would exist between Belgrade and Pristina to
ensure the protection of the rights of ethnie communities and, in
the case of the Serbs, their relationship with the institutions in
Belgrade.
Within each of these competencies, the International
Community Representative would have his or her own
jurisdiction. And methods of joint cooperation between
Belgrade and Pristina would have to be elaborated.
In this model, there would be mutual concessions. The
implementation would be supervised and guaranteed by the
international community.
The benefits for Kosovo would be immediate and considerable:
1. Kosovo would be officially self-governing, with full consent
of Belgrade
2. Relations with Kosovo Serbs would improve, reversing the
current and potential reality of physical separation between the
communities,
3. Kosovo would have access to international financial
institutions and other international and regional organizations
except the UN, OSCE and Council of Europe. This would
provide Kosovo with legitimacy in international and other
lending institutions,
4. Kosovo would have trade and cultural representative offices
abroad,
5. Kosovo would have its own flag, anthem and national teams
as they are accepted by international sporting federations,
6. Relations with Serbia would be normalized thus enhancing
the prospects for stability and development of Kosovo,
61 7. Kosovo's integration into the network of official regional
relations and with Serbia would accelerate European integration.
Serbia is prepared to ask for benefits of its relationship with the
EU to be enjoyed by Kosovo." 151
118. As an illustration of Serbia's alleged inflexibility, some written submissions
mention the adoption of a new Serbian Constitution in 2006. However, while the
Constitution does not accept independence of Kosovo, it provides that the
"substantial autonomy" of Kosovo will be regulated by a constitutional law. 152
This means that the Constitution leaves the door completely open for any form of
"substantial autonomy" to be agreed by the parties and endorsed by the Security
Council. Since this agreed autonomy will be implemented by a constitutional law
- adopted in accordance with the procedure to be followed for the change of the
Constitution - every detail of Kosovo's status will be constitutionally entrenched
and, depending on what is the negotiated solution, will vary from the
constitutional regime applicable to other autonomous provinces. In that regard, the
concerns voiced by the Venice Commission that the Constitution does not
guarantee substantial autonomy for Kosovo 153must be, with respect, considered as
unfounded.
119. Further, the adoption of a new Constitution did not change much with respect to
the implementation of any negotiated solution endorsed by the Security Council,
because Serbia would in any event have to implement any such solution by a
constitutional amendment, both under the old and the new Constitution.
120. Finally, the process in which the new Constitution was adopted in 2006 did not
154
exclude the Kosovo Albanians as such. Rather, the voting requirements at the
referendum with regard to the voters in Kosovo were identical to those adopted at
151See address of Mr. Boris Tadic, President of the Republic of Serbia, on 27 November 2007 in Baden,
Austria, available at:
http://www.predsednik.rs/mwc/default.asp?c=303500andg=2007112710331 Sandlng=engandhs 1=O.
152
Constitution of Serbia, Article 182, para. 2, see Annex 59 in Documentary Annexes accompanying WS
Serbia.
153See, e.g., WS Germany, p. 22; WS United States, p. 28; WS United Kingdom, para. 3.51.
154See WS United States, pp. 27-28.
62 all previous elections since the first elections after the fall of Milosevic in 2000.
Simply, the referendum was held at those ballot stations in Kosovo where this was
possible, i.e. those that satisfied all legal requirements for voting, in particular the
providing full security to all participants and ballots. 155This solution has never
been criticized by international election observers and was introduced in 2000 to
prevent the manipulation of votes from Kosovo, which had been frequent before
2000. 156 The voters registered at the ballot stations where security and other legal
requirements were ensured could vote regardless of their ethnicity. However, the
Kosovo Albanians wilfully excluded themselves from participation in the political
process and from all elections in Serbia and the FRY ever since the early 1990s.
IV Conclusion
121. It has been shown above that the final status negotiations were predetermined by
the attitude of the mediator, Mr. Ahtisaari, and some members of the Contact
Group, according to whom independence was the only option for the final status
of Kosovo. For them, it seems that the main purpose of the negotiations was to
achieve the independence of Kosovo from Serbia and obtain, including by
pressure, Serbia's consent to such a solution. Mr. Ahtisaari clearly failed to actas
an impartial mediator, who would approach the negotiations in a fair and unbiased
manner, as was his duty.
122. Thus, from the very beginning of the negotiations, the Kosovo Albanian
leadership was given to understand that the independence of Kosovo was the only
solution on the table. In such circumstances, they had no reason whatsoever to
consider, let alone accept, any compromise on this issue. After the publication of
Mr. Ahtisaari's "Comprehensive Proposal for the Kosovo Status Settlement"
155See Uputstvo za obavljanje pojedinih radnji u postupuku sprovodjenja republickog referenduma radi
potvrdjivanja novog UstavaRepublikeSrbije napodrucju Autonomnepokrajine Kosovotohija [Instruction
for conducting certain activities in the procedure of implementation of the republican referendum to confirm
the new Constitution of the Republic of Serbia on the territory of the Autonomous Province of Kosovo and
Metohija],luzbeniglasnik RS [OfficialGazette of the Republic ofSerbia], No. 84/2006.
156See OSCE ODIHR, Republic of Serbia / Federal Republic of Yugoslavia / Parliamentary Election /
23 December 2000 /Final Report(20 February 2001), p. 7.
63 which proposed independence for Kosovo, and after the independence was
unequivocally supported in public statements of those States that hitherto had only
done so in diplomatie conversations, the negotiations appeared to lose any
prospect of success, despite the efforts of subsequent negotiators and their pledge
to "leave no stone unturned."
123. Therefore, it is inaccurate, if not cynical, to claim that all possibilities of
negotiations have been exhausted and that the UDI was the only option left. As
the above survey demonstrates, the negotiations that preceded the UDI were
conducted in a setting that was designed to pre-determine their outcome and to
push through only one solution, the independence of Kosovo. Today it is clear that
this "solution" was unacceptable not only for Serbia, but also for the Security
Council and the majority of the international community. What is now required is
the continuation of negotiations, on the basis of a bonajide approach to be taken
by all actors.57
157See, also, infra para. 464. et seq.
64 Chapter 5
THE CLAIM THAT KOSOVO ISA SO-CALLED "SUI GENERIS CASE" IS AN
ACKNOWLEDGEMENT OF THE LACK OF ANY LEGAL BASIS FOR THE UDI
A. Introduction
124. A number of States that submitted written statements have argued that the
purported secession of Kosovo can be justified on the basis of the sui generis
nature of the Kosovo case. 158 This argument amounts to conceding that although
the secession of Kosovo would not be in accordance with international law, an
exception should be allowed owing to the "exceptional" circumstances preceding
and surrounding the UDI. Or, viewed, from another perspective, that the secession
of Kosovo would be considered in accordance with international law just because
it is "exceptional". In short, this argument urges the Court to adopt reasoning that
is particular, rather than universal, and political, rather than legal. Such an
approach is simply not compatible with the fonction of law in general, nor with
the role of the Court as the principal judicial organ of the United Nations in
particular. The social fonction of law is to provide abstract patterns of conduct that
are applicable to all on an equal footing. Exceptions are provided by the law itself
and, again, they are not adopted on an ad hoc or individual basis. Equally, the
fonction of the Court is "to decide in accordance with international law such
disputes as are submitted to it",159 and in the exercise of its advisory jurisdiction,
to answer any legal question in the same manner. 160
125. As Cyprus has rightly pointed out about this argument made by those States
promoting Kosovo's secession: '"Special cases' do not merely dilute the quality
of legality of a system: they replace it with a political element, in which the
158See WS Albania, para. 95; WS Denmark, para. 2.4; WS Estonia, pp. 11-12; WS France, para. 2.17; WS
Germany, pp. 26-27; WS lreland, para. 33; WS Japan, pp. 5-8; WS Latvia, p. 2; WS Luxembourg, para. 6;
WS Maldives, p. l; WS Poland, para. 5.2; WS Slovenia, p. 2; WS United Kingdom, para. 0.22.
15Article 38 of the Statute of the International Court of Justice (emphasis added).
16Articles 65 and 68 of the Statute of the International Court of Justice.
65 power and commitment of individual actors becomes more significant than the
legal rights that they enjoy. Claims that situations are sui generis reduce the
universally recognised rights of States, and put them outside the ordinary
processes of the making and application of international law." 161
126. Although the alleged "sui generis case" of Kosovo, and the question of whether
Kosovo would constitute a precedent for other separatist phenomena, are not
matters that bear any legal weight for the task of the Court, this chapter will
address both points, taking into account the considerable emphasis laid on them
by States favouring Kosovo' s secession. After having determined the scope of
this argument in section B, it will be demonstrated that:
(i) Each of the circumstances mentioned to qualify Kosovo' s situation as
sui generis does not lead to the recognition of a right to independence
for the Serbian province.
(ii) The sum of various non-legal grounds does not amount to the creation
of a right.
(iii) The effort exerted by some States in trying to bring about the
secession of Kosovo from Serbia is a bad political precedent that, if
allowed to be encased in a legal veneer, would also create "bad law".
B. The Scope of the "Sui Generis" Argument
127. The use of the sui generis argument by those States promoting Kosovo's
secession could be interpreted in two ways: jirst, that the purported "unique"
character of the Kosovo case would render the situation in accordance with
international law; second, that even if it is not in accordance with international
law, Kosovo's purported independence should be permitted because it would not
constitute a "precedent" for other separatist cases in which the same international
legal rules are also at issue. Neither of these two alternatives can be accepted.
161WS Cyprus, para. 77.
66 128. It must be stressed from the outset that any situation that cornes before the Court
is "unique". At the same time, some cases share similarities with others. The task
of the Court, and indeed of any person analysing a concrete situation from the
legal standpoint, is to apply the relevant legal rules having by definition a general
character to a concrete - "unique" - situation. As the Court explained in a
different context, but which nevertheless remains applicable to other realms of
international law,
"each specific case is, in the final analysis, different from all the
others, [... ] it is monotypic and [... ] more often than not, the
most appropriate criteria, and the method or combination of
methods most likely to yield a result consonant with what the
law indicates, can only be determined in relation to each
162
particular case and its specific characteristics."
129. Sorne States rely heavily on the sui generis argument in the absence of substantial
legal reasons to justify the purported secession of Kosovo. Other States have
attempted to bolster their inherently weak legal arguments in favour of the
secession of Kosovo based on a purported exercise of (external) self-determination,
by also arguing that Kosovo is a so-called "sui generis case" and that secession of
the territory must accordingly be allowed under international law. 163 However, any
argument in favour of Kosovo' s self-determination simply concerns those rules
governing self-determination, and such arguments cannot be strengthened by taking
so-called sui generis elements into consideration. The Written Statement of
Serbia,164 among others, has demonstrated that this is not possible.
130. Those States that have invoked the sui generis character of Kosovo have failed to
explain what its genus would be. As it is known, in the field of the creation of
162De/imitation of the Maritime Boundary in the Gulf of Maine Area, Judgment, 1.C.J Reports 1984, p. 290,
para. 81. In the French authoritative text: "chaque cas concret est finalement différent des autres, [... ] il
est ununicum, et[ ... ] les critères les plus appropriés et la méthode ou la combinaison de méthodes la plus
apte àassurer un résultat conforme aux indications données par le droit, ne peuvent le plus souvent être
déterminés que par rapport au cas d'espèce et aux caractéristiques spécifiques qu'il présente"
163See WS Estonia, p. 11, and WS lreland, para. 34.
164WS Serbia, Chapter 7.
67 States, there are different genera: decolonisation, separation from an existing
State, dissolution of a State, unification. Each genus is made up of different cases,
i.e. the establishment of two States from a single colony, the establishment of a
single State from two different colonies, cases of devolution, dissolution by
agreement or with no agreement, among others. If Kosovo is really a sui generis
case, then it may be suggested that its genus would simply be defined as
"Kosovo". This seems to be the approach taken by those advancing that this case
cannot constitute a precedent. There would be just one case of "Kosovo" and no
other "Kosovos" able to achieve independence in the future. It would be a genus
containing only this one case. If this is indeed the case, then the genus of Kosovo
is not a legal category but rather an arbitrary political denomination established
for purely political reasons. To put it simply, Kosovo is considered a genus by
some Powers because they have chosen not to apply international law to the case
of Kosovo, and thus not to establish it as a precedent.
131. If, on the contrary, the genus of Kosovo is defined as "a case in which secession
is permitted if the following circumstances exist: previous human rights
violations, prolonged international administration, unsuccessful negotiations, lack
of agreement within the Security Council, etc", then this would look like a legal
category, although a convoluted one. However, if this is the case, then this genus
would not be confined to Kosovo and may also apply to other cases that arise in
the future.
132. The next section will demonstrate that none of the various "unique" features
invoked in order to justify the sui generis character of Kosovo provides a legal
ground for the UDI.
C. None of the Alleged Features that Purport to Make Kosovo a "Sui Generis
Case" in Any Way Justify the Legality of the UDI
133. Further evidence that the sui generis argument lacks any legal spine is the fact
that States favouring this assertion are unable to agree on the features of the
68 Kosovo case that make it unique and thus worthy of being allowed to violate
international law. They cannot even agree upon criteria that would assist in
identifying such unique features. France refers to the sui generis character of the
political process, 165 and lists in purported support of such a proposition France's
interpretation of a short history of Kosovo, including its constitutional status
within Serbia, the human rights violations during the Milosevic era, its being
placed under international administration, the possible outcome of independence
- one of many outcomes - foreseen by the Security Council, the (unilaterally
interrupted) negotiation process, the fact that the declaration of independence
purports to self-impose obligations to uphold human rights in the territory of
Kosovo, and the support that is claimed to be provided to the so-called "Republic
of Kosovo" by the United Nations and the European Union. 166
134. Other States have similarly constructed their short histories of Kosovo, and laid
them out in a numerated list as though they amount to some clear set of criteria.
Each such history varies, with each State laying stress on different issues it finds
of a particularly "sui generis character". In this respect, reference may be made to
the written statements of Germany (which considers that events of 1912
·b k. h f K · . )167 I l d 16s J 169
contn ute to ma mg t e case o osovo suz generis , re an , apan,
170 171 172
Luxembourg, Poland, and the United Kingdom. Other States, perhaps
overwhelmed by such a task, have simply declared the Kosovo case to be sui
generis, as though such a declaration on its own carries some legal weight. These
States are Latvia, 173 the Maldives, 174 and Slovenia. 175
165WS France, para. 2.17.
166
WS France, para. 2.18.
167WS Gennany, p. 27.
168WS lreland, paras. 33-34.
169
WS Japan, p. 5 et seq.
170WS Luxembourg, para. 6 et seq.
171WS Poland, para. 5.2.
172
WS United Kingdom, paras. 0.22-0.23.
173WS Latvia, p. 2
174WS Maldives, p. 1.
175WS Slovenia, p. 2.
69135. The present Written Comments will summarily address each of the different
features mentioned by the States purporting to demonstrate the sui generis
character. Serbia will show that none of them is really "unique" nor provides a
legal justification for the UDI.
I The status of Kosovo in the SFRY 1974 Constitution 176
136. First, the fact that Kosovo was an autonomous province within the Republic of
Serbia is rather an argument playing against any claim that the secession of
Kosovo is in accordance with international law. According to the 1974
Constitution, only the nations of the former SFRY were recognised as having a
right to secede. 177To this end, when the SFRY was in the process of breaking
down, neither the Peace Conference nor its Arbitration (Badinter) Commission
envisaged the independence of Kosovo. 178
137. Second, it is common knowledge that there exist within many States in the world
today autonomous units that occupy a clearly defined territorial area. However,
there exists no rule of international law applicable to such units that would
exclude them from the application of the principles of territorial integrity, self
determination, non-intervention, and their corollaries, which apply to these
territorial parts of a State as well as to any other part.
II The non-consensual and violent break-op of the SFRY I79
138. It is curious that an event that occurred nearly two decades ago, superseded since
then by the existence of different States, and considered definitely ended by the
international Peace Conference and its Arbitration Commission with the
176WS Ireland, para. 33; WS Japan, p. 6; WS Poland, para. 5.2.1
177
178WS Serbia, para. 174.
Ibid., paras. 279-283 and 263.
179WS Estonia, p. 12; WS Luxembourg, para. 6; WS United Kingdom, para. 0.22 (b) and (c).
70 establishment of the FRY (which included Kosovo as part of Serbia), 180 has been
invoked to justify Kosovo' s purported secession.
139. At any rate, if this argument were valid, it would apply equally to the entities
composing other successor States of the SFRY. The destabilising factor of this
argument is immediately evident, and no argument claiming that the Kosovo case
1snot a prece ent can cure t 1s." 181
III Human rights violations occurring between 1989 and 1999 182
140. There is no doubt that serious human rights violations occurred in the period between
1989 and 1999. However, this is but one aspect of a larger, more complex situation,
and unfortunately it is not unique to Kosovo. It must be remembered that from 1991
onwards the Kosovo Albanians had rejected participating in the Yugoslav and
Serbian State structures and had built their own parallel institutions. 183 States
promoting Kosovo's secession disregard the fact that for years this open defiance of
State authority was tolerated; moreover, negotiations leading to solve concrete issues,
184
such as education, were undertaken and agreements were reached.
141. Serious and persistent human rights violations related to minorities and violent
repressions of separatist attempts have sadly taken place in different regions of
the world other than in the territory of the former SFRY. This undisputable fact
has not lead the States favouring Kosovo' s secession in their written statements to
adopt the same policy in relation to these other parts of the world. The Court is
aware of recent events confirming this.
142. Certainly, human rights and humanitarian law violations must be addressed at the
State and individual levels. Nevertheless, international law does not grant a right
180WS Serbia, para. 279-283, and para. 263.
181WS Denmark, pp. 5-6; WS Maldives, p. l; WS Slovenia, p. 2.
182WS Estonia, p. 12; WS France, paras. 2.20-2.27; WS Germany, p. 27; WS Ireland, para. 33; WS
183Luxembourg, para. 6; WS Poland, para. 5.2.2; WS United Kingdom para. 6.21.
WS Serbia, para. 264-266.
184WS Serbia, para. 267-268.
71 to secess1on in these circumstances, as discussed elsewhere. 185 Human rights
violations are not "unique" to the Kosovo situation either.
IV The international administration of the territory since 1999 186
143. Sorne States that have recognised the so-called "Republic of Kosovo" have
argued that the fact that the territory has been and continues to be under
international administration since June 1999 is a distinct feature adding to the sui
generis character of the situation and justifying secession. This argument neglects
that Security Council resolution 1244 (1999) both established the international
administration and preserved the territorial integrity of the State that continued to
have sovereignty over the territory.
144. Moreover, Kosovo was not the first territory constituting part of a sovereign State
to be placed under international administration, and it will probably not be the
last. Other cases include territories from other successor States of the SFRY, such
as the United Nations Transitional Authority in Eastern Slavonia, Baranja and
Western Sirmium (UNTAES).
VThe fact that Serbia bas not administered the territory since 1999 187
145. This argument is the corollary of the immediately preceding argument, and it
equally flies in the face of Security Council resolution 1244 (1999). France argues
that the absence of Serbian administration on the territory has created an
"irreversible fact". 188Of course, this is only France' s perception of things. If this
was indeed the case, then there would have been no need to negotiate the future
status of the territory. Moreover, the "irreversible fact" would not be
185WS Serbia, paras. 589-638. These Written Comments, paras. 339-349.
186
WS Estonia, p. 12; WS France, paras. 2.20-2.27; WS Ireland, para. 33; WS Luxembourg, para. 6; WS
Poland, para. 5.2.4.
187WS Ireland, para. 33; WS Japan, p. 7; WS Luxembourg, para. 6; WS Poland, para. 5.2.4.
188WS France, paras. 2.20-2.27.
72 independence. France fails to distinguish secession, which amounts to a change of
sovereignty, from the simple administration of a territory.
146. Moreover, there have been other cases around the world where the sovere1gn
State has not administered part of its territory, including territory where
secessionist attempts have been made. This lack of administration has not in and
of itself provided a legal basis for secession.
VI "Independence" has been envisaged as an option 189
147. Leaving aside the exact accuracy of this assertion, the fact that independence is
one of a number of options cannot justify per se any actual independence. This is
nota peculiar case; there are other cases in the world where independence may be
an option to put an end to a con:flict, but other options are equally plausible
outcomes. Independence has no primacy.
VII "Negotiations were exhausted and there was no other option but
190
independence"
148. Sorne States have argued that the purported secession of Kosovo is in accordance
with international law because it was an ultima ratio way to resolve the situation.
These States argue that all other possible ways to resolve the situation had been
exhausted through negotiation. Again, this is petitio principii, which Serbia
strongly rejects. In any case, it is not up to one side of the negotiations to
191
unilaterally decide their outcome, and to impose it on the other.
149. The fact is that there are disputes over territory in the world which have not yet
been successfully resolved, despite decades of attempts to do so. Examples of
189
190WS Estonia, p. 12; WS France, paras. 2.28-2.39.
WS Estonia, pp. 9-10; WS France, paras. 2.40-2.62; WS Germany, p. 27; WS United Kingdom, paras.
6.35-6.38.
191WS Serbia, paras. 757-765; see also WS China, para. I (b); WS Romania, para. 98.
73 negotiations lasting much more than the less than two-years long negotiations led
by Mr. Ahtisaari, can be cited from all around the world. The same logic applies
to failure in the negotiation process. Such a failure cannot simply open the way
for one side to impose its unilateral solution on the other.
150. Kosovo is not alone in being a situation where the proposal put forward by the
Secretary-Generalof the United Nations was not acceptedby either side to a dispute.
Cyprus isjust another example. To accept such an argument would be tantamount to
accepting that if a mediator's proposal is not accepted by one side, the other can
simply impose it on the other. This is an unacceptabletransformation of the role and
scope of this peaceful settlementof disputemeans, and consequently an undermining
of the whole system of the peaceful settlementof disputes.
VIII The will of the majority of the population ofKosovo 192
151. The fact that the majority of the population of the territory is favourable to
independence does not per se constitute a ground for independence, unless this
population constitutes a people entitled to extemal self-determination. As
addressed elsewhere, this is not the case of the population of Kosovo, nor the
Kosovo Albanians. 193
152. As it is well known, Kosovo is not the unique region of a State inhabited by an
ethnie, religious or linguistic minority which in tum constitutes the majority of
the population of that region. That a minority population within a State
constitutes an ethnie, religious or linguistic majority in a clearly defined territory
does not mean that the same population amounts to a 'people' who have a right to
exercise self-determination. As Serbia has previously noted, minority rights
should not be confused with the right of peoples to self-determination. 194
192WS Japan, p. 7; WS Ireland, para. 33.
193WS Serbia, paras. 570-588; see, also, WS Cyprus, para. 136. Cf. WS Netherlands, para. 3.3; WS
Switzerland, paras. 75 and 77; WS Albania, paras. 75 and 79.
194WS Serbia, para. 533.
74 195
IX The purported absence of any other solution
153. The claim that there is no other "solution" than independence is a hollow claim.
As demonstrated above, 196 Serbian proposais to make the province of Kosovo a
very substantially autonomously govemed area were completely disregarded by
both the Special Envoy, Mr. Ahtisaari, and the Kosovo Albanian leadership. This
blinkered view of the latter two does not, however, mean that other solutions
were not available and, as mentioned, even explicitly proposed.
154. In any event, the fact that some States consider that independence is the best
solution for the province of Kosovo does not transform this political opinion into
a legal ground, no matter how powerful and rich these States are.
XThe invented and inexistent "support" to the "independent" Kosovo by
the United Nations and the European Union 197
155. It is well known that the United Nations Secretary-General, who has direct
responsibility for the administration of the territory, has adopted a neutral stance
on the matter. For its part, the European Union was unable to adopt a unified
policy with regard to the UDI, as written statements coming to opposite
conclusions filed by some of its member States in these proceedings eloquently
show. Moreover, EULEX has been deployed under the umbrella of Security
Council resolution 1244 (1999) and not on the basis of any agreement with the
purported authorities of the so-called "Republic of Kosovo".
156. Inexistent support by the United Nations cannot make Kosovo a "sui generis"
case. For its part, even if the European Union support were true, which is not the
case, this would not constitute a legal basis whatsoever. Regional organisations
cannot dispose the territory of their member States, all the more of non-member
States.
195WS France, paras. 2.40-2.62; WS United Kingdom, paras. 6.39-6.41.
196See supra paras. 103-114 and 117.
197WS France, para. 2.18.
75 *
* *
157. The fact is that none of these alleged features that would characterise the Kosovo
case leadto a qualificationofthe UDI as being in conformitywith internationallaw.
158. Indeed, there are other features that form integral parts of the Kosovo situation. It
is regrettable that States encouraging Kosovo' s secession have failed to take them
into consideration. They are:
(i) The fact that the majority of the Kosovo Albanians boycotted any
participation in the State apparatus of Yugoslavia and Serbia since the
1990s;
(ii) The fact that Kosovo Albanian leaders also bear responsibility for the
events that lead to the humanitarian crisis of 1999;
(iii) The fact that the standards set by the United Nations to be
implemented in Kosovo have not been achieved;
(iv) The fact that the situation of Kosovo Serbs and other groups has
degenerated since 1999 and that the UDI has had an even further
negative impact on these parts of the population: displaced persons
are not able to retum to their homes; the fate of missing persons is
still not being addressed; ethnie Serbs live in enclaves in the province
of Kosovo, and they cannot freely circulate in this territory;
(v) And certainly another feature that they cannot ignore: the fact that the
secessionist attempt was enthusiastically encouraged and is
vigorously supported by some Powers.
D. The Sum of Ali the Non-Legal Grounds Does Not Amount to the Creation of
a Legal Basis for a Sui Generis Case for Kosovo
159. If, as seen above, none of the alleged "unique" features that purport to make
Kosovo a sui generis case gives rise to a legal basis for its independence, the
addition of nil cannot result in the creation of a right or a legal justification for
Kosovo's independence.
76160. Poland contends that
"[i]f in a particular case only one or a few (but not all) of above
mentioned sui generis conditions were fulfilled, it could not be
legally assessed per analogiam to Kosovo's Declaration of
Independence." 198
Poland has not explained the rationale for its assertion. Indeed, precedents are
always constructed from cases that are all "unique". Analogy precisely means to
apply a solution envisaged for a situation, to situations that have some points in
common with the former, but are not identical to it. If the situation at issue would
fall within the pattern described by the rule, it would not be analogy but simple
application of the rule. More important, however, is the fact that Poland fails to
elicit an explanation why all the factors it has invoked would permit the Court to
conclude that the UDI is in conformity with international law.
161. The fact remams that Kosovo is, like every set of facts before the Court, a
particular case. This "particularity", however, per se entails no legal
consequences, as does not any other set of "unique" facts before the Court.
"Uniqueness" is not a legal argument.
E. The Attempt toMake from a Bad Political Precedent "Bad Law"
162. The same States that have invoked the sui generis character of Kosovo have also
advanced the idea that the secession of this territory from Serbia would not
constitute a "precedent". The UDI also contends "that Kosovo is a special case
arising from Yugoslavia's non-consensual breakup and is nota precedent for any
other situation".199
198WS Poland, para. 5.2.5.
19Annex 2 in Documentary Annexes accompanying WS Serbia.
77163. The purpose of this assertion is also clear. Conscious of the evident illegality of
the UDI, States in favour of Kosovo's secessionist attempt that have recognised
this so-called "State", claim that Kosovo is a "unique" case that cannot be used to
support separatist attempts elsewhere. In other words, their practice of recognition
of an illegal secessionist attempt would not be coupled with the opinio iuris
necessary for the case to constitute a precedent.
164. Cyprus has rightly observed that
"Where the Kosovo-recognising States see only difference,
other States might see other situations as identical and act
accordingly. The weakening of the protection of the principles
of territorial integrity and non-intervention could hardly be
avoided." 200
165. As Argentina stated,
"the mere invocation of the purported independence of Kosovo
as being a 'special case' and 'not a precedent', no matter
whether this is the case or not, cannot per se provide a legal
justification. It has not been advanced which particular rules of
international law would provide for a special outcome if Kosovo
would be a 'special case'. As to the nature of the case as a
'precedent', certainly if the declaration is in conformity with
international law, it would constitute a 'precedent'. If, on the
contrary, it is not in accordance with international law, it cannot
constitute either a 'precedent' or a 'special case' according to
the principle ex iniuria ius non oritur."01
166. There is a great risk of creating bad precedent and thus bad law by allowing the
"no precedent" argument to float. As Bolivia has noted,
200WS Cyprus, para. 79.
201WS Argentina, para. 60.
78 "if there is an acceptance of a unilateral declaration of Kosovo' s
independence without having a clear foundation of international
law to analyze and judge in every case, we would be
establishing a bad precedent."202
167. The mere assertion by its authors that a fact they produced is not a "precedent"
does not prevent it to be one. The bad precedent that would be created in this
instance would entail serious consequences. It would be a precedent of secession
without the consent of the parent State. It would be a precedent of enlarging the
definition of self-determination to extend its application to minorities. would be
a precedent of open disregard for a Security Council resolution adopted under
Chapter VII of the United Nations Charter. It would be a precedent that United
Nations guarantees accorded to a member State are not respected. It would be a
precedent that one side of a dispute can impose its views to the other if
negotiations fail.
168. Further, the value of the judicial precedent of the Court should also be re:flected
upon in the context of the claim under analysis. The Court's advisory opinions are
not binding, and itsjudgments and orders in contentious cases are binding only on
those States parties to the proceedings. However, its reasoning in both
contentious cases and advisory opinions assists in the ascertainment of
international law by creating clarity where there may be confusion, and by
precisely articulating the law where it may otherwise appear vague. This is the
power of its precedent. Moreover, as the Court has held in the Cameroon v.
Nigeria case with regard to a request by the Respondent not to follow its previous
jurisprudence,
"It is true that, in accordance with Article 59, the Court's
judgments bind only the parties to and in respect of a particular
case. There can be no question of holding Nigeria to decisions
reached by the Court in previous cases. The real question is
202
WS Bolivia, p. 1.
79 whether, in this case, there is cause not to follow the reasoning
and conclusions of earlier cases." 203
169. If the Court were to give any credence to the sui generis argument made in the
context of these advisory proceedings, it would amount to allowing the
particularities of any case to undermine the letter of the law, and ultimately to
undermine the whole international legal system.
F. Conclusions
170. The considerations above lead to the following conclusions:
(i) The claim that Kosovo is a "sui generis case" and that it creates no
precedent applicable to other situations is an implicit recognition of
the lack of any legal ground to justify the attempted secession.
(ii) Every case is unique, and this does not prevent the application of
international law to the particular facts: the purported sui generis
character of the Kosovo situation does not per se constitute a legal
basis for secession.
(iii) None of the alleged "unique" features of the Kosovo case amounts to
the existence of a case for secession recognised under international
law.
(iv) The addition of nil only amounts to nil: there is no legal case for
Kosovo' s unilateral independence.
(v) States invoking this plea have neglected important features that form
an integral part of the Kosovo case.
(vi) The UDI, openly encouraged and recognised by some States, is a bad
political precedent that, if accepted, would constitute a serious bad
legal precedent.
203Land and Maritime Boundary between Cameroon and Nigeria, Preliminary Objections, Judgment,I.C.J.
Reports 1998, para. 28.
80 Chapter 6
THE CREATION OF STATES IS NOT A MERE FACT AND INTERNATIONAL
LAW DOES NOT REMAIN "NEUTRAL" WITH REGARD TO THE UDI
A. Introduction
171. In an attempt to avoid the straightforward answer to the question raised by the
General Assembly, a number of States supporting Kosovo's secession, as well as
the authors of the UDI, have advanced two interrelated ideas in their respective
texts: 1) that international law remains "neutral" with regard to the creation of
States, including the case of secession, and 2) that the creation of a new State is
204
only a matter of fact. However, the States asserting these arguments do not
corne to the same conclusions as to the consequences to be attached to these two
propositions in the present proceedings. For some, like Albania and France, these
contentions should lead the Court to conclude that it lacks jurisdiction to render an
advisory opinion, since the UDI would not be a matter governed by international
law, and consequently the Court would not be able to answer the question raised
by the General Assembly. For other participants, like the United Kingdom and the
United States of America, these propositions would allow the Court to answer that
the UDI is in accordance with international law or did not contravene any
205
applicable rule of international law. None of these conclusions, nor the
premises on which they are based, is accurate.
172. In the Written Statement of Serbia, it has been demonstrated that many issues of
international law arise concerning the UDI by the Provisional Institutions of Self
Government of Kosovo. Indeed, there is perhaps no other case of a secessionist
attempt that is so specifically regulated by international law. For not only must the
204
WS Albania, paras. 43-44; WS Austria, para. 24; WS Czech Republic, p. 7; WS Estonia, p. 4; WS
Denmark, pp. 3-4; WS France, para. 2.8; WS Germany, pp. 29-30; WS lreland, paras. 18-19; WS Japan,
pp. 2-3; WS Luxembourg, para. 16; WS Norway, para. 10; WS Poland, para. 2.2; WS United Kingdom,
para. 5.13; WS United States, p. 50; WC Authors, paras. 8.08-8.10.
205WS United Kingdom, para. 6.65; WS United States, p. 52.
81 UDI of 17 February 2008 be considered in light of fondamental principles of
international law generally applicable with regard to the creation of States, but
also with respect to a specific resolution adopted by the Security Council under
Chapter VII of the UN Charter. Thus, the decision taken by the Provisional
Institutions of Self-Government of Kosovo on 17 February 2008 violates the
territorial integrity of Serbia and is contrary to the entire regime set out in
Security Council resolution 1244 (1999), including the mechanism leading to the
determination of the future status of the territory.
173. Serbia,206 as well as other States 207,has also demonstrated that the principle of
self-determination - which played a major role in the process of the creation of
numerous States during the UN era 208 - does not provide a legal ground justifying
the accordance with international law of the UDI of 17 February 2008.
174. Consequently, the Written Statement of Serbia has demonstrated that
contemporary international law does not remain neutral with regard to the creation
of new States. In some cases, international law recognises the existence of a right
to create a new State, and in other cases international law prevents the creation of
a new State, even where the material constitutive elements seem to be present.
This approach is supported by concrete international practice, particularly over the
last 60 years, in which the international community has witnessed the creation of a
considerable number of States, and prevented the emergence of other States where
such a creation would not have been in accordance with international law. There
is no place for asserting the "Lotus principle" in this domain in contemporary
international law, arguing that international law does not prohibit the creation of
States, and it is therefore permitted.209
175. Together with the argument of "neutrality", some States supporting the
secessionist attempt made by the Provisional Institutions of Self-Government
206WS Serbia, paras. 570-588.
207
WS Argentina, paras. 92-100; WS Cyprus, para. 123; WS Romania, para. 141; WS Russian Federation,
para. 91.
208Legat Consequences for States of the Continued Presence of South Africa in Namibia (South WestAfrica)
notwithstanding Security Council Resolution 276 (1970), Advisory Opinion,.J.Reports 1971, para. 52.
209WS Serbia, paras. 1017-1032.
82 have tried to minimise the importance of the UDI, in a further attempt to avoid its
legal analysis. They have presented the UDI as being a mere declaration of
intention not governed by international law; a pure political statement which in
any case would not per se create a State. Section B of this chapter will analyse the
exact nature of the UDI under international law. It will be shown, firstly, that the
UDI is a unilateral act emanating from the Provisional Institutions of Self
Government of Kosovo that purports to create a sovereign State. Secondly, it will
be demonstrated that the authors of the UDI considered that the legal effect of the
UDI was the creation of an independent State under international law. Third, and
lastly, it will be shown that States that have recognised the so-called "Republic of
Kosovo" have treated the UDI of 17 February 2008 as an act producing legal
effects.
176. Section C will then analyse and rebut in turn each of the arguments raised in the
written statements of some States and in the written contribution of the authors,
that attempt to provide reasons why the UDI cannot be examined under
international law or is not prohibited by it.
177. Section D will then demonstrate that in advancing the arguments outlined above,
some States have in their written statements acknowledged different ways m
which international law does in fact apply to unilateral declarations of
independence. This part will show that when these ways by which international
law applies to unilateral declarations of independence, proposed in the written
statements of different States, are viewed together as a whole, they are very
similar to the applicable international legal framework outlined in the Written
Statement of Serbia. Thus, despite arguments from some States that claim that
international law is "neutral" insofar as it does not apply to the UDI, there is clear
consensus evidenced in the written statements, that international law does apply,
and that there are many ways in which this occurs.
178. Clearly, contemporary international law plays arole in the process of creation of
States and consequently does not remain neutral or outside this problem.
83 B. The Question of the Legal Nature of the UDI under International Law
179. States supporting Kosovo's secession, as well as the authors of the UDI, have
invested a great deal of effort in their respective texts in attempting to play down
the effect of the UDI by the Provisional Institutions of Self-Government of
Kosovo. They refer to unilateral declarations of independence as being nothing
more than expressions of wishful thoughts made public having no legal effect, and
they have consequently tried to distinguish the UDI from the creation of the
"State" itself. At most, according to some States and the authors of the UDI, the
UDI is but one part of a larger process leading to the creation of a State. 210As
already discussed in these Written Comments, 211they have even tried to convince
the Court that the authors of the UDI are not the Provisional Institutions of Self
Government, in what is an evident last effort to escape the determination of the
non-conformity of the UDI with international law.
180. The Czech Republic, for example, argues that "[a]ny declaration of independence
is an expression of will of a people or merely of a group, and, as such, of a
political nature."212 This position of denying that the UDI in the present case
entails any legal effect can be rebutted not only through an analysis of its true
nature and scope, but also because what the authors of the UDI and those States
affirm in these proceedings is clearly contradicted by the position they have
adopted at the time of the issuance of the UDI and at the time that they recognised
Kosovo as a State.
I The UDI is a unilateral act emanating from the Provisional Institutions
of Self-Government aiming at the creation of a sovereign State
181. The UDI is an act adopted with the intention to produce legal effects, among
others the existence of a new State.
210
WC Authors, para. 8.11.
211See supra para. 31 et seq.
212WS Czech Republic, p. 6.
84182. The creation of a new State entails a change in the sovereignty and the
responsibility for the international relations of a territory. As the Russian Federation
rightly argues, because the UDI "aim[s] at producing legal effects in the form of
213
creation of a new State through secession from an existing State (Serbia)",
"[i]t thus relates to issues of State sovereignty and territorial
integrity, as well as to the right of peoples to self-determination
and the questions of secession. These matters are within the
realm of international law." 214
183. The fact that the UDI is an act that purports to produce legal effects is
corroborated by the alleged obligations assumed by the so-called "Republic of
Kosovo" in this UDI. Paragraph 12 of the UDI in particular, may be quoted:
"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 tous their support and friendship." 215
184. Thus, in the view of the authors, the UDI is a unilateral act that has a binding
effect(quod non, because of its lack of conformity with international law). Given
this intention of the authors, the analysis of its compatibility with applicable rules
of international law cannot be denied.
213
WS Russian Federation, para. 10.
214Ibid.
215Annex 2 in Documentary Annexes accompanying WS Serbia.
85 216
185. As quoted above, immediately following the adoption of the UDI by the
Assembly of Kosovo, the President of the Assembly declared that since its
adoption, Kosovo was "an independent and sovereign state", as provided in the
wording of the UDI itself.
186. The President and the Prime Minister of the Provisional Institutions of Self
Government, also immediately after the adoption of the UDI by the Assembly,
addressed letters to the governments of the States of the world communicating
that decision and requesting recognition as a sovereign State. 217They signed these
letters as President and Prime Minister of the alleged "Republic of Kosovo", in
what was the first change of their previous attitude of acting as organs of the
Provisional Institutions of Self-Government.
187. Clearly, for the authors of the UDI, this act had the effect of marking the creation
of a new State (quod non).
II States having recognised the "Republic of Kosovo" have treated the UDI
of 17 February 2008 as an act producing legal effects
188. Most of the States that are advancing the idea of the lack of any legal effect of the
UDI in these proceedings, responded the day after to this request by the President
and Prime Minister of the alleged new "State", either recognising it or announcing
the intention to do so in a near future, and explicitly referring ta the UDI and
attributing ta it legal consequences. Sorne eloquent examples follow.
189. In his letter of recognition, American President George W. Bush indicated without
any ambiguity that he considered the UDI as producing binding effects:
"I also note that, in its declaration of independence, Kosovo has
willingly assumed the responsibilities assigned to it under the
Ahtisaari Plan. The United States welcomes this unconditional
216See supra para. 43.
217As mentioned in the letters sent by heads ofState or government quoted below, para. 189et seq.
86 commitment to carry out these responsibilities and Kosovo's
willingness to cooperate fully with the international community
during the period of international supervision to which you have
agreed. The United States relies upon Kosovo's assurances that
it considers itself legally bound to comply with the provisions in
Kosovo's Declaration oflndependence." 218
190. Similarly, the French President Nicolas Sarkozy, in his letter of recognition of 18
February 2008, stated that France,
"tirant les conséquences de la résolution adoptée par
l'Assemblée du Kosovo le 17 février 2008,reconnaît dès à
présent le Kosovo comme un État souverain et indépendant." 219
191. Clearly,the French Written Statementdenying any legal consequenceto the UDI is at
odds with the opposite stance adoptedby President Sarkozyon 18February 2008.
192. Other States that deny in these advisory proceedings that the UDI of 17 February
2009 had any legal effect, nevertheless previously recognised that it had such an
effect in their instruments of recognition or in official information concerning
their recognition. This was the case inter alia of Albania, 220 Denmark, 221
Estoma, 222 N orway, 223 S wltzer an , 224 an t eU · dmte mg om. 22s In contrast,
218Letterof PresidentGeorge W. Bushto Mr. FatmirSejdiuof 18February2008, availableat:
http://georgewbush-whitehouse.archives.gov/news/releases/2008/02/200l8-….
219Letter of President Nicolas Sarkozyto Mr. Fatmir Sejdiu of 18February 2008 (emphasis added), available at:
http://www.diplomatie.gouv.fr/fr/pays-zones-_833/balkans_l056/kosovo_65…-
kosovo_460 l/proclamation-independance-du-kosovo-18.02.0_59650.html#sommaire _2. Translation by
Serbia: "[France,] accepting the consequences of the resolution adopted by the Kosovo Assembly on 17
February 2008, now recognises Kosovo as a sovereign independent State."
220Statement of Prime Minister of Albania Mr. Sali Berisha on Recognition of lndependence of Kosova.
Emphasis added, available at:
http://www. keshiiministrave.al/index.php?fq=brendaandm=n ewsand Iid=7323andgj=gj2.
221Denmark recognizes Kosovo as an independent State, available at:
http://www.um.dk/en/servicemenu/N ews/NewsArchives2008/DenmarkRecognizesKosovoAsAnlndepend
entState.htm.
222Estonia recognises Republic of Kosovo (emphasis added), 21 February 2008, available at:
http://www.vm.ee/eng/kat_ 138/9350.html.
223WS Norway, Annex 1.
224Statement by the President of the Swiss Confederation, Pascal Couchepin, 27 February 2008, available at:
http://www.eda.admin.ch/eda/ en/home/recent/media/single.htm l?id= 17497.
87 Slovenia does not have any problem in advancing in its Written Statement that,
"[w]ith the Declaration of Independence, the new state of Kosovo was
226
founded.".
III Conclusion
193. The fact is that the UDI is a unilateral act expressing the intention of its authors to
purportedly create a new State and hence to purportedly terminate both Serbia's
sovereigntyandthe UnitedNations administrationoverthe territory,to undertakecertain
obligationsforthisnew "State", andto providean allegednew basis forthe international
presence in Kosovo, i.e. on the basis of the "permission" of the new "State". The UDI
was an unlawful act by institutionscreated by the United Nations whose functions and
powersmustbe exercisedin accordancewiththe law ofthe UnitedNations.
194. Indeed, whether the UDI is or is not in accordance with international law can be
determined upon examination of the following:
(i) Whether the organs that issued the UDI had or did not have the right
to do so (i.e. under Security Council resolution 1244 (1999) and the
Constitutional Framework, or with respect to the principle of self
determination and other applicable rules).
(ii) Whetherthe procedure by which the UDI was issued followed or did not
follow any applicable rules (i.e. under Security Council resolution 1244
(1999)and the ConstitutionalFramework and other applicablerules).
(iii) The legality of the purported effects of the UDI, i.e. the creation of a
new State, and the termination of Serbia's sovereignty and the United
Nations administration over the territory (i.e. taking into account the
principle of respect for the territorial integrity of States, the
international legal regime set out by Security Council resolution 1244
(1999) and other applicable rules).
225Letter by Prime Minister Gordon Brown to Mr. Sejdiu of 19February 2008, available at:
http://www.president-ksgov.net/documents/presidenti_ fSejdiu_viti_pavaresise_Eng.pdf ("The President
of Kosovo on the year of lndependence, p. 11)
226WS Slovenia, p. 1.
88195. To sum up, it can be said that there can probably be no other UDI in the world that
is more susceptible to international legal analysis than the UDI by the Provisional
Institutions of Self-Government of Kosovo of 17 February 2008. As Serbia and
other States have demonstrated, this legal analysis inexorably leads to the finding
that the UDI by the Provisional Institutions of Self-Government was not in
conformity with international law.
C. The UDI Can Be Examined under International Law in Many Ways
196. Sorne States, as well as the authors of the UDI, advance the idea that for the UDI
not to be in accordance with international law there should be a rule prohibiting
227
its issuance. This is a peculiar way to understand the application of
international law to acts, facts and situations. It is a matter of common
understanding that there is not, nor can there be, a specific rule governing every
type of conduct under international law. The lack of a particular rule concerning
a particular matter does not mean that the matter cannot be treated from a legal
perspective. The authors of the UDI read the so-called Lotus principle
("everything which is not prohibited is permitted") as meaning "everything
which is not explicitly prohibited is permitted".228 As a matter of course, rules
having a broader or general character can be used to determine the way
international law (or any legal system) deals with a particular matter. This is the
traditional way the Court solves disputes, or addresses legal matters in the
exercise of its advisory jurisdiction. The Court looks for the existence of a lex
specialis, and if there is none, applies general international law.
197. Thus, after hearing arguments from States based on the Lotus principle, the Court,
in its advisory opinion on Legality of the Threat or Use of Nuclear Weapons,
simply noted that
227WS Albania, para. 43; WS Estonia, p. 4; WS France, paras. 2.3-2.10; WS Germany, pp. 27-32; WS
lreland, paras. 18-26; WS Poland, para. 2.2; WS Luxembourg, paras. 16-17; WS United Kingdom, paras.
5.12-5.13; WS United States, pp. 50-52; WC Authors, para. 8.03.
228WC Authors, para. 8.07.
89 "[i]n seeking to answer the question put to it by the General
Assembly, the Court must decide, after consideration of the
great corpus of international law norms available to it, what
might be the relevant applicable law." 229
198. It is quite obvious that there does not exista specific rule prohibiting the issuance
of unilateral declarations of independence: if it were so, no new State could
declare its existence in such a way. What the Court is requested by the General
Assembly to do is to examine the UDI by the Provisional Institutions of Self
Government of Kosovo in the light of the applicable rules of international law.
These are both of a general and a particular character: they are the fondamental
principles of international law, the UN Charter and the specific Security Council
resolution 1244 (1999), which govern the situation of the territory both at the
critical date, as well as thereafter.
199. It is not surprising that the authors of the UDI and some States supporting their
secessionist attempt explicitly request the Court not to analyse a general rule that
would be able to provide a legal foundation to the creation of a State: the
principle of self-determination. 230 Since this principle cannot be validly invoked
by the authors of the UDI, the Kosovo secessionist movement and its supporters
prefer to avoid addressing this issue.
I Rebuttal of the argument that the UDI is governed by domestic law,
but not by international law
200. It has been argued that secession can fall within the realm of domestic law, but not
within the realm of international law. Germany seems to have attempted to say
this, by stating in this regard that "the issue of the legality of a declaration of
independence may very well arise under domestic (not internationa[) law". 231
However, it then goes on to say that "[i]n international practice, declarations of
229Legality of the Threat or Use o/Nuclear Weapons, para. 23; see, also, Wall,para. 86.
230WC Authors, paras. 8.38-8.41.
231WS Gennany, p. 29 (emphasis in the original).
90 independence have only been held to violate international law if conjoined with
232
some other violation." It appears that, according to Germany, it is possible to
assess the legality of a unilateral declaration of independence both by domestic
and by international law.
201. With regard to domestic law, some constitutions provide for a right to secession,
as it was the case of the SFRY, only with regard to the six constituent nations of
Yugoslavia and hence not with regard to the Kosovo Albanians or the
Autonomous Province of Kosovo. Others remain silent or contain dispositions
that make secession impossible without a constitutional change. International law
does not simply remain "neutral" when confronted with acts that respect or are in
violation of domestic law.
202. An example demonstrating that international law is concerned with the role of
domestic law is provided by the attempt by the province of Katanga in the Congo
to secede. Security Council resolution 169 (1961) specifically
"[d]eclares that all secessionist activities against the Republic of
Congo are contrary to the Loi fondamentale and Security
Council decisions and specifically demands that such activities
which are now taking place in Katanga shall cease forthwith". 233
203. If international law were neutral vis-à-vis domestic law, there would not be any need
to refer to it and even less to demand that activities contraryto it should cease.
II The argument that international law does not prohibit the proclamation of
independence of a new State begs the real question
204. According to France, "Le droit international n'interdit pas par pnnc1pe la
proclamation de l'indépendance d'un Etat nouveau". France continues that,
taking into account the question raised by the General Assembly, the Court
232Ibid.
233Security Council resolution 169 (1961), para. 8.
91 "ne devrait, en particulier, pas décider si, d'une façon générale,
le peuple kosovar bénéficiait d'un droit à l'indépendance, ni
rechercher si le Kosovo remplit les conditions pour être
considéré comme un Etat mais elle devrait seulement déterminer
si la déclaration d'indépendance du 17 février 2008 est
conforme au droit international."34
205. With the ultimate purpose of avoiding any legal analysis of the UDI, France has
attempted to narrow the question raised by the General Assembly, which is not
one exclusively related to an analysis of illegality. Non-conformity would mean
illegality, as is the case here.tcan also mean that such a proclamation has no
international legal ground. Serbia has demonstrated why the UDI of 17 February
2008 is illegal. But the question put before the Court is not only limited to
determining the legality or illegality of the UDI, but more broadly its conformity
with international law. The Court, contrary to what France suggests, can examine
if the UDI by the Provisional Institutions of Self-Govemment has its legal ground
on the basis of a purported right to independence of a so-called "Kosovar people",
or whether the existence of the constitutive elements of the State allowed the
authors of the UDI to proclaim their existence as an independent State. Of course,
as already seen, both questions must be answered in the negative, which is
precisely the analysis France tries to avoid.
206. By way of example, when Guinea-Bissau and Cape Verde unilaterally declared
independence from Portugal on 24 September 1973, this was done in conformity
with international law, as noted by the General Assembly. After the issuance of
that declaration of independence, the General Assembly,
"[r]ecognizing the inalienable right of all peoples to self
determination and independence in accordance with the
principles of the Charter of the United Nations and the
Declaration on the Granting of Independence to Colonial
Countries and Peoples"
234
WS France, para. 2.3.
92 (...)
"[w]elcome[d] the recent access10n to independence of the
people of Guinea-Bissau, thereby creating the sovereign State of
the Republic of Guinea-Bissau". 235
207. If a province or region of a sovereign State proclaims its independence, it is
always possible to determine whether international law offers a ground for it or
not. Itis curious to see the same States arguing that international law is "neutral"
regarding secession, and at the same invoking a purported right of "remedial
secession" tojustify the secession of Kosovo.
208. Moreover, this will not be the first time in which a unilateral declaration of
independence will have been declared illegal. This occurred with respect to
Katanga, 236 Rhodesia, and the Turkish Republic ofNorthern Cyprus, among others.
209. The Security Council in its resolution 216 (1965) "[d[ecide[d] ta condemn the
unilateral declaration of independence made by a racist minority in Southern
Rhodesia". In resolution 541 (1983), the Security Council "[d]eplore[d] the
declaration of the Turkish Cypriot authorities of the purported secessionof part of the
Republicof Cyprus" and "[c]onsidere[d] the declaration [...] as legally invalid".
210. Other Security Council resolutions even anticipated that any unilateral
declarations of entities in contradiction with the territorial integrity of States
affected by internal con:flicts would not be recognised. Thus, resolution 787
(1992) states in its operative paragraph 3 that the Security Council
"[s]trongly reaffirms its call on all 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".
235General Assembly resolution 3061 (XXVIII) of2 November 1973.
236Security Council resolution 169 (1961), already quoted above.
93211. For its part, the General Assembly in resolution 31/6A "[r]eject[ed] the
declaration of 'independence' of the Transkei and declare[d] it invalid", in
resolution 32/105N, "[d]enounce[d] the declaration of the so-called
'independence' of the Transkei and that of Bophuthatswana [... ] and declare[d]
them totally invalid", and in resolution 34/93G, "[d]enounce[d] the declaration of
the so-called 'independence' of the Transkei, Bophuthatswana and Venda [... ]
and declare[d] them totally invalid".
III The argument that the UDI is not governed by international law since it cannot be
attributed to a subject of international law neglects both contemporary practice and
Security Council resolutions on Kosovo
212. Austria contends that unilateral declarations of independence are not addressed by
internationallaw because they cannot be attributedto a subjectof internationallaw. 237
It will be demonstrated below, 238that international law does address injunctions to
differentnon-state actors. In particular, internationallaw addressesthe need to respect
the territorial integrity of States involved in secessionist or other domestic conflicts.
Moreover, it is beyond any doubt that all relevant actors in Kosovo, and in particular
the ProvisionalInstitutionsof Self-Govemment,being an internationalcreationwithin
the United Nations framework, are bound by the international legal regime
establishedunder SecurityCouncilresolution 1244(1999).
IV The argument that international law does not prohibit persons or entities from
seeking independence is completely irrelevant
213. According to the authors of the UDI, international law "does not contain any rule
prohibiting persons or entities from seeking independence, nor from issuing a
declaration of independence." 239 These are two different questions. First, not only
does international law not prohibit persons or entities from seeking independence
237WS Austria, para. 24.
238See infra, para. 256 et seq.
239WC Authors, para. 8.08.
94 from a sovereign State, but - if they pursue their political goals in a way that
conforms to the legal requirements - it can be said that international law even
provides protective rules related to the respect of relevant civil and political rights
that would be at issue. A second, and completely different matter is the issuance
of a unilateral declaration of independence purporting to create a new State.
214. The Court is not requested to answer the question whether Kosovo Albanians can
seek to obtain an independent State and openly declare their intention to do so. As
mentioned above, the UDI was not a mere declaration of intention, it was an act
adopted with the purpose of creating a new independent State on the territory that
falls under the sovereignty of a pre-existing State and which also falls under the
international administration of the United Nations. Immediately, the authors of it,
the Provisional Institutions of Self-Government of Kosovo, began to act as though
they were the institutions not of the international administration of the territory,
but as though they were the institutions of a new sovereign State. It is against this
background that the UDI of 17 February 2008 can and must be analysed.
V The argument that the creation of States is a matter of fact ignores more than
half a century of evolution of international law
215. Sorne States supporting Kosovo' s secession argue that the creation of States is a
matter of fact and consequently, that the UDI is not governed by international law
or at least not prohibited by it. France thus argues that since the creation of States
is a matter of fact, whether the UDI is legal or illegal is completely irrelevant.240
This is ablatant rejection of the principle ex injuriajus non oritur and a seriously
wrong and disturbing message to give to other potential situations where illegal
attempts are or may be made purporting to create new States. France's message is
tantamount to saying that no matter whether a State was created in violation of
international law, the important point or rather the only point of concern, is
whether this entity succeeds in effectively establishing itself. This is in blatant
contradiction with the practice of the United Nations (although it is true that
240
WS France, para. 2.4.
95 France was the only member of the Security Council that abstained from voting
when this organ condemned the proclamation of the racist "State" of Rhodesia, all
the other members having voted in favour of the resolution). 241
216. Serbia agreesthat the creationof Statesis in part a matter of fact. There can be no State
if the material elements are not present. The law cannot create a State,even if a people
or an entity is entitled to create a new State on the basis of international law. The
example of Namibia is illustrative. In spite of the efforts deployed by the UN for
decades,the independent StateofNamibia could only corneinto being when the factual
situationallowedthis to happen. This does not mean, despitewhat some claim,that the
creationof Statesis a pure matter of fact. There can be no Statewithoutthe existenceof
some factualelements,but an entity createdin breach of internationallaw, even if it has
all the factual attributes of a State, is not a State. Examples are well known and have
been abundantlymentioned. The creation of Statesin the contemporaryworld is both a
matter of fact and law. The Written Statement of Serbia has already analysed this and
242
the Courtis respectfullyinvitedto referto it.
D. The Acknowledgement by States Promoting the Secession of Kosovo That
International Law Does lndeed Deal With Secession
217. States that have invoked the "neutrality" of international law, or the creation of
States as a pure matter of fact not governed by international law, are at pains to
remain coherent with this proposition. Many have ended up by recognising that
international law does deal with the question at issue. As mentioned below, this is
the case of Switzerland, Germany, Estonia and Finland. Other States, such as
Ireland and France, together with Germany and Finland, provide examples of
situations of secession that would be considered illegal from the international law
viewpoint.
241Security Council resolution 216 (1965).
242WS Serbia, paras. 964-973.
96218. Switzerland, whose open policy of promoting Kosovo's secession was inter alia
explained by the presence of a large Kosovo Albanian community on its
territory,243acknowledges that
"[c]e serait toutefois aller trop loin que de prétendre que le droit
international reste entièrement muet sur les déclarations
d'indépendance, et que ces dernières tombent par conséquent
dans un vide juridique total." 244
219. Germany also acknowledges that "[i]n international practice, declarations of
independence have only been held to violate international law if conjoined with
some other violation." 245 The "other violation" would be joined to that of the
domestic law of the State concerned.
220. Equally, Estonia considered that
"there are certain preconditions recognised by international law
that should be fulfilled to be entitled to make a declaration of
independence which, in consequence, accomplishes a secession.
Therefore, the declaration of independence could m
international practice be considered unlawful where certain
246
principles of international law have been disregarded."
221. After having invoked "the absence in international law of specified criteria on
how statehood may be conferred to an entity", 247 Finland states that
"[t]his does not, however, mean that international law would
have nothing to say about such statements of declarations. They
243
Answer by the Federal Council (Govemment) to a question raised by Mr. Daniel Vischer MP, 14 May
2008, para. 7 , available at:
http://www.parlament.ch/e/suche/pages/geschaefte.aspx?_id=20083032; Micheline Calmy-Rey (Swiss
Ministerof ForeignAffairs), "Pourquoila Suisseest engagée dans lesBalkans",de, 24 January2006.
244WS Switzerland, para. 28. Translation by Serbia: "It would be going too far to suggest that international
law remains completely deafto declarations of independence, and that these consequently fall into a total
245legal void."
WS Germany, p. 29 (emphasis added).
246WS Estonia, p. 4.
247WS Finland, para. 2.
97 must be examined on a case by case basis and by reference to
the general law concerning statehood." 248
222. Significantly, if one takes the "exceptions" mentioned by some States invoking
international law' s "neutrality", i.e. situations in which the creation of States
would be contrary to international law, the result of an accumulation of all these
"exceptions" is impressive:
(i) If a unilateral declaration of independence or a secessionist attempt
involves the use of force (position held by Germany, 249 France, 250 and
251
Ireland ).
(ii) If a unilateral declaration of independence violates an international
agreement (Germany 252).
(iii) If a secessionist attempt is carried out with external aid (Germany 253).
(iv) If a unilateral declaration of independence is coupled with racial
254
discrimination (Germany ).
(v) If a secessionist attempt violates peremptory norms of international
law (Ireland 255).
(vi) If a secessionist attempt 1s m violation of self-determination
(Ireland 256).
223. As demonstrated in Serbia's Written Statement, and further analysed in the
present Written Comments, the UDI by the Provisional Institutions of Self
Govemment violates the territorial integrity of Serbia, the international regime set
out by Security Council resolution 1244 (1999) and the mechanism designed to
determine the future status of the territory, and finds no justification in the
principle of self-determination or in any other rule of international law.
248WS Finland, para. 3.
249
WS Germany, p. 29.
250WS France, paras. 1.5 and 1.15
251WS Ireland, para. 22.
252WS Germany, p. 29.
253
WS Germany, p. 30.
254WS Germany, p. 30.
255WS lreland, para. 22.
256WS lreland, para. 23.
98 E. Conclusions
224. On the basis of the arguments set out above, it can be concluded that:
(i) Under contemporary international law, the creation of States is not
only a matter of fact, but also a question of law, i.e. the presence of
all the constitutive elements of the State must be coupled with the
conformity of that creation with international law.
(ii) International law does not remain neutral with regard to the case of
Kosovo, which is probably the secessionist attempt most regulated by
international law. Not only are the fondamental principles of
international law that normally apply to the creation of States at stake,
but a Security Council resolution adopted under Chapter VII of the
UN Charter, establishing an entire reg1me for the territory and a
mechanism for the determination of its future status, is also
applicable.
(iii) The UDI of 17 February 2008 is an act adopted by an organ created by
the United Nations, its purpose is the creation of a sovereign State,
putting an end to Serbia's sovereignty and the United Nations
administration of the territory and the assumption of certain
obligations at the international level. As such, it is subject to legal
analysis as regards its conformity with international law.
(iv) The authors of the UDI have acknowledged that the purpose of its
adoption was to assert that since that adoption there exists a new
sovereign State.
(v) States denying any legal effect to the UDI during these proceedings
have nevertheless attributed a legal nature to the UDI, endorsing the
purposes of its authors, at the time they recognised the so-called
"Republic of Kosovo".
(vi) The question at issue is not whether there exists a specific rule
prohibiting the issuance of unilateral declarations of independence,
but whether the UDI in the present case is or is not in conformity with
relevant international law rules, found in general international law,
99 the United Nations Charter, as well as Security Council resolution
1244 (1999).
(vii) lt is not necessary to determine whether the authors of the UDI are
subjects of international law, but whether they are bound by
resolution 1244 (1999) and general international law applicable to the
purpose of the UDI to secede territory from a pre-existing State.
(viii) International law does not remain indifferent towards domestic law
where there is an attempt to create a new State through the separation
of parts of a pre-existing State. Conformity or not with domestic law
also plays a role at the international level.
(ix) The question at issue is not whether individuals or entities can seek
independence, but how this independence can be achieved in a
particular case. In the case of Kosovo, the UDI did not respect either
the political process set out in Security Council resolution 1244
(1999), nor was consent obtained from the parent State, Serbia.
(x) The attempts made by States supporting Kosovo's secession and by
the authors of the UDI, that aim at avoiding any legal analysis of the
UDI, are groundless and must be rejected. Consequently, the Court
can and must examine the conformity of the UDI by the Provisional
Institutions of Self-Government of Kosovo with international law and
can and must answer that this UDI is not in conformity with
international law.
100 Chapter 7
THE UDI IS IN CONTRADICTION WITH THE PRINCIPLE OF RESPECT FOR
THE TERRITORIAL INTEGRITY OF STATES
A. Introduction
225. The principle of respect for the territorial integrity of States has been and remains
a critical component of contemporary international law. Its significance has not
been diminished with the growth of international law, rather enhanced as States
seek to construct a globalised world in keeping with national traditions and
interests. In these Written Comments, Serbia concludes that the principle of
territorial integrity, which has been accepted by all as a valid principle, continues
to apply and that the reaffirmation of its sovereignty and territorial integrity over
Kosovo in Security Council resolution 1244 (1999) has not been changed or
amended or contradicted in law. It further concludes that the principle of territorial
integrity, as a key principle in international law, applies to interna! situations and
applies not only to all States but also to non-State entities. International practice,
and Security Council resolutions in particular, demonstrate that this principle
applies not only generally, but also with regard to the con:flicts in the former
Yugoslavia and specifically with regard to the Kosovo problem.
226. Nothing contained in any of the written statements produced by States in this case
marks any doubt or hesitation concerning the relevance of territorial integrity. On
the contrary, many of the statements have emphasized the key nature of the
principle of territorial integrity, where doubts have been expressed these have
focused on particular issues and not on the importance of the principle itself. This
section will reply to those arguments that have been made that suggest that the
principle of respect for the territorial integrity of States has no application in the
current advisory proceedings. It will be shown that such arguments do not stand
up to analysis and that the essential point made by the Republic of Serbia that the
UDI contradicted a key norm of international law is correct in law.
101 B. The Views Expressed in the Written Statement of the Republic of Serbia
227. In its Written Statement, the Republic of Serbia submitted that:
(i) The principle of territorial integrity of States is one of the key
elements of international law;
(ii) lt guarantees the spatial definition of States in a way that is binding
on all members of the international community;
(iii) The principle is reflected in extensive international and regional
practice;
(iv) All States are bound to respect the territorial integrity of other States;
(v) The obligation to respect territorial integrity extends beyond States
and binds non-State actors in situations of non-consensual attempts at
breaching the territorial integrity of independent States;
(vi) The fact that non-State actors may be bound by the principle of
territorial integrity is illustrated by reference to a number of Security
Council resolutions;
(vii) In addition, the range of Security Council resolutions dealing
generally with the former Yugoslavia and specifically with the
Kosovo problem demonstrates clearly the intention that the Kosovo
Albanian leadership and community be bound by the principle of the
territorial integrity of Serbia.57
228. The following points m particular were made. First, territory is the essential
framework for the exercise of State sovereignty and constitutes the spatial context
for the very existence of the State and thus plays a determinative role at the very
heart of international law. 258 Second, the foundational norm of respect for the
territorial integrity of States is crucial with regard to the evolution of the
principles associated with the maintenance of international peace and security,
thus linking the very essence of international law as a State-focused system with
257WS Serbia, para. 413.
258Ibid., paras. 416-417.
102 the notion of binding international regulation of the most senous issues as
mandated by the Security Council of the United Nations. 259
229. These points have been reaffirmed by international jurisprudence on many
occasions. In the Island of Palmas case, for example, it was emphasized that:
"The development of the national organisation of States during
the last few centuries, and as a corollary, the development of
international law, have established this principle of the exclusive
competence of the State in regard to its own territory in such a
way as to make it the point of departure in settling most
260
questions that concern international relations",
while the Court declared in the Asylum case that, "derogation from territorial
sovereignty cannot be recognized unless its legal basis is established in each
particular case." 261
230. This obligation of a high order to respect the territorial integrity of other States
constitutes a paramount norm and it is one that goes beyond merely refraining
from, for example, intervening by force in the territory of another State. It
positively requires the international community to uphold as a key value judgment
the integrity of the territorial framework of independent States. There is, therefore,
a strong presumption against dismemberment of sovereign States and a powerful
emphasis upon the stability of agreed frontiers. 262This has an obvious application
to non-consensual secession attempts from recognized independent and sovereign
States, a fortiori where the international community has on many occas10ns
reaffirmed the territorial integrity of the State in question.
231. Thirdly, the Written Statement of the Republic of Serbia laid out in some detail
the reaffirmation of the principle of territorial integrity by the United Nations as a
259Ibid., para. 418.
260Island of Palmas case (Netherlands v. USA), 2 RIAA 829, 838 (1928).
261Colombian-Peruvian Asylum case, Judgment o/November 20 t, 1950, I.C.J Reports, 1950, p. 275.
262 nd
See, e.g., J. Crawford, The Creation of States in International Law (2 ed., 2006), p. 415. See, also,
Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, 1.C.J. Reports 1994, paras. 45 and 72.
103 263
general norm. It was noted in particular that point 6 of the Declaration on the
Granting of Independence to Colonial Countries and Peoples emphasized that:
"Any attempt aimed at the partial or total disruption of the
national unity and the territorial integrity of a country is
incompatible with the purposes and principles of the Charter of
the United Nations",
while article 46 of the United Nations Declaration on the Rights of Indigenous
Peoples 2007 provides that:
"Nothing in this Declaration may be interpreted as implying/or
any State, people, group or persan any right to engage in any
activity or to perform any act contrary to the Charter of the
United Nations or construed as authorizing or encouraging any
action which would dismember or impair, totally or in part, the
territorial integrity or political unity of sovereign and
independent States." (emphasis added)
232. This principle, it is submitted, is an authoritative formulation of the accepted
principle in international law to the effect that international law prohibits non
consensual secession from sovereign and independent States. And further, it is
maintained, such principle is not one that pertains exclusively to States, but
constitutes an obligation upon non-State actors as well.
233. Fourthly, the Republic of Serbia has demonstrated that the principle of territorial
264
integrity has been upheld continuously and consistently by regional treaties.
234. Fifthly, the Republic of Serbia emphasised the consistent and repeated
265
reaffirmation of its territorial integrity by relevant international bodies. This is
an important point. Not only is there a general international law principle
263See WS Serbia, para. 429 et seq.
264Ibid., at para. 477 et seq.
265Ibid., para. 498 et seq.
104 prohibiting non-consensual secess10n from independent States, there is also
binding international confirmation of the territorial integrity of Serbia in
particular. Further, this is phrased in such a way as to preclude any possible
legitimation of secession from Serbia. For example, Security Council resolution
1031 (1995) reaffirmed "its commitment to a negotiated political settlement of the
conflicts in the former Yugoslavia, preserving the territorial integrity of all States
there within their intemationally recognized borders." 266
235. Sixthly, the Republic of Serbia has noted that this consistent practice of the UN
Security Council, acting under Chapter VII of the Charter and thus binding on all
member States of the United Nations, with regard to the territorial integrity of
Serbia has been repeated in resolutions dealing specifically with the Kosovo
problem. While Security Council resolutions 1160 (1998), 1199 (1998) and 1203
(1998), for instance, reaffirmed the commitment of all member States to the
"sovereignty and territorial integrity of the Federal Republic of Yugoslavia", 267
resolution 1203 (1998) specifically demanded that "the Kosovo Albanian
leadership and all other elements of the Kosovo Albanian community comply
fully and swiftly with resolutions 1160 (1998) and 1199 (1998)". This established
clearly, therefore, that the territorial integrity obligation fell upon the Kosovo
Albanian community.
236. This process culminated in Security Council resolution 1244 (1999), as described
fully in Serbia's Written Statement 268 and below, 269 which reaffirmed the
sovereignty and territorial title of the FRY with regard to Kosovo. At no point in
these resolutions was the territorial integrity of the FRY, now the Republic of
Serbia, made conditional upon any event or circumstance and at no point was such
affirmation made contingent upon any non-consensual arrangement.
266See, also, Security Council resolutions 1088 (1996), 1423 (2002), 1491 (2003), 1551 (2004), 1575 (2004),
1639 (2005), 1722 (2006), 1785 (2007), and 1845 (2008), Annexes 15 and 21-28 in Documentary
Annexes accompanying WS Serbia.
267See also the Presidential Statements of 24 August 1998, Dossier No. 14, 19 January 1999, Dossier No. 24,
and 29 January 1999, Dossier No. 25, see WS Serbia, para. 504 and footnotes 478-480.
268
Ibid., Chapter 8.
269See infra para. 411 et seq.
105237. Further, at no point has the Security Council overturned, reversed, challenged or
modified its constant reaffirmations of the territorial integrity of Serbia, whether
made generally or with regard specifically to Kosovo.
C. Support for Serbia's Position on Territorial Integrity
238. Serbia's position on territorial integrity has been supported by a wide range of
States in their written statements in this request for an advisory opinion from the
Court. The following constitutes a representative sample.
239. The Argentine Republic noted that:
"[r]espect for the territorial integrity of States is a well
established principle of international law, without which the
very existence of international law, as a corpus of rules
governing primarily the relationship between sovereign entities,
could not be envisaged (...) As a corollary of the sovereign
equality of States, the principle of the respect of territorial
integrity is a fondamental principle of international law."270
240. Argentina forther emphasised that,
"[i]t is a legitimate common aspiration to see this fondamental
principle universally respected, as one of the main foundations
of the entire international legal system and as a concrete
manifestation of the sovereign equality of States." 271
241. Spain noted that,
"there can be no doubt that respect for the sovereignty and
territorial integrity of States is inscribed in the essential, non-
270WS Argentina, paras. 69-70.
271Ibid., para. 73.
106 derogable core of the basic principles of international law as set
out in the United Nations Charter and in Resolution 2625
(XXV)"
and concluded that:
"sovereignty and its inherent rights, those of territorial integrity,
political independence and formal equality, accurately represent
the legal status of States within the contemporary international
order. This legal status is long-lasting and substantial, and may
not be renounced in international relations. Accordingly, it must
be fully taken into account in the present consultative
procedure." 272
242. Slovakia declared that:
"[f]ew principles in present-day international law are so firmly
established as that of the territorial integrity of States. Though it
is an ancient principle, linked to the notion of the State itself, it
has been solemnly and particularly forcefully reaffirmed in the
last more than sixty years. The principle of territorial integrity of
States is widely proclaimed and accepted in practice and forms a
part of the corpus of international law." 273
243. Romania concluded that,
"[t]he principles of territorial integrity and of the inviolability of
frontiers have an absolute character. This means that no changes
to a State' s territory or to its frontiers can occur except in those
cases when the State concerned consents to that end." 274
272WS Spain, paras. 25 and 27 (footnote omitted).
273WS Slovakia, para. 3.
274WS Romania, para. 97.
107244. The Islamic Republic of Iran wrote that the principle of territorial integrity was
the "cornerstone of the United Nations Charter" and that it constituted a
peremptory norm (jus cogens) in international law, noting that "[t]he highly
respected nature and status of this principle in international law indicates that no
derogation from this principle is acceptable." 275
245. Cyprus declared that "the quality of the generality of the rules of international law
and the prominence of the rule of territorial sovereignty are at the heart of the
question which the Court has been asked to address", while "[t]he starting point
for the Court is the fondamental principle of Serbia' s sovereignty and territorial
integrity."276 In addition, it was noted that, "[t]he stability of title to territory has
always been a feature of international law and it has been bolstered as modern
international law has developed." 277
246. Azerbaijan emphasized that
"[t]erritorial integrity and State sovereignty are inextricably linked
concepts in international law. They are foundational principles.
Unlike many other norms of international law, they can only be
amended as a result of a conceptual shift in the classical and
278
contemporaryunderstandingof internationallaw."
D. Uncontested Issues
247. Before proceeding to discuss the points made in opposition to the thesis
maintained by the Republic of Serbia, it is important to note what is unchallenged
and thus not in issue in the current matter.
275WS Iran, para. .1.
276WS Cyprus, paras. 81 and 82.
277
278Ibid., para. 86.
WS Azerbaijan, para. 19.See, also, WS China, pp. 2-3; WS Russian Federation, paras. 76-78; WS Egypt,
paras. 26-9; and WS Bolivia, p. 1.
108248. First, no State has denied the existence of the principle of territorial integrity. The
United Kingdom, for example, declared that the principle of territorial integrity of
States was a principle in international law and indeed protected under international
law, while also admitting that, "international law favours the territorial integrity of
States in the interests of stability and the peaceful settlement of disputes, including
disputes arising within a State." 279 Other States have made comments about the
particular application of territorial integrity with regard to Kosovo, but none has
sought to argue that the principle is not a key norm of international law.
249. Secondly,no State has argued that the FRY did not have sovereignty over Kosovo in
1999.No attempt has been made to question or challenge the territorialtitle of Serbia
over Kosovo prior to the unilateral declaration of independence, nor has it been
suggestedthat Serbia's title was ambiguous or conditionalor contingent. Serbia's full
sovereigntyover Kosovo has only been questioned sinceFebruary2008.
250. Thirdly, no State has argued that Security Council resolution 1244 (1999)
transferred sovereignty from Serbia to any other possible candidate. There has been
no claim that this resolution removed Serbia's title to Kosovo. What the resolution
did in fact was to establish a framework for the exercise of international
administration upon the foundation of the reaffirmation of Yugoslavia' s sovereignty
and territorial integrity and therefore its continuing territorial title over Kosovo.
251. Fourthly, no State has denied that Security Council resolution 1244 (1999) indeed
reaffirmed the sovereignty and territorial integrity of the FRY (now Serbia). While
the argument has been made that such affirmation was only within the context of a
political process ("the interim status") and not for the purposes of any final
settlement (an argument that is dealt with below), none of the written statements
placed before the Court have argued that such reaffirmation did not take place nor
that it was totally without effect.
279
WS United Kingdom, paras. 5.8-5.11.
109 E. Arguments Made Contrary to Serbia's Thesis on Territorial Integrity
252. Several arguments have been made that challenge Serbia's approach to the meaning
and relevance of the principle of territorial integrity in this case. Such claims are
essentially that the principle of territorial integrity does not apply internally; that the
reaffirmation of territorial integrity in Security Council resolution 1244 (1999)
relates only to the process of reaching a settlement and not to the final settlement
itself; and that in any event the formulation of territorial integrity in this resolution
referred not to Serbia but to the composition of the FRY.
I The non-application of the principle of territorial integrity to internai situations
253. The United Kingdom put the issue as follows,
"The protection of the territorial integrity of States is a protection
in 'international relations'. Itis not a guarantee of the permanence
of a State as it exists at any given time. Nor does it apply to
280
secessionist movements within the territory of a State."
254. Each of these sentences requires comment. First, the view that territorial integrity is a
matter for 'international relations' is essentially correct (leaving aside the obvious fact
281
that domestic law of course also governs attempts to secede ). However, that begs
the question as to what is covered within the rubric of "international relations" and
United Nations practice is very clear in recent decades that such issues as civil
wars, 282 violations of international humanitarian law, 283 terrorism, 284 and internai
280
WS United Kingdom, para. 5.9.
281See, e.g., Reference re Secession of Quebec, [1998] 2 S.C.R. 217, para. 112.
282See, e.g., Security Council resolutions 713 (1991) with regard to the former Yugoslavia; 733 (1992) with
regard to Somalia and 788 (1992) with regard to Liberia.
283See, e.g., Security Council resolutions 808 (1993) with regard to the former Yugoslavia and 955 (1994)
with regard to Rwanda.
284
See,e.g., SecurityCouncilresolutions731 (1992)with regardto Libyaand 1070(1996)with regard to Sudan.
110 military seizure of power 285 may well fall within the purview of international threats
to peace and security and thus, of necessity, within the category of "international
relations" and no longer form part of "domestic jurisdiction" within the meaning of
Article 2, paragraph 7, of the United Nations Charter either. Secondly, the doctrine of
territorial integrity is not of itself a "guarantee of the permanence of a State as it exists
at any given time" since consensual change is always possible. However, it does
constitute a guarantee of the international permanence of the territorial delineation of
a State until it consents to change. If that were not so, the whole purpose of the
fundamental concepts of State sovereignty and territorial integrity in international law
would essentially dissipate. The fact that the United Kingdom has commented that
this principle "has not been extended to the point of providing a guarantee of the
integrity of a State's territory against internai developments which may lead over time
to the dissolution or reconfiguration of the State" 286 is correct insofar as consensual
re-arrangements may always take place, but it is not correct beyond this point.
255. Thirdly, the v1ew that the principle of territorial integrity does not apply to
secessionist movements within the territory of a State is not correct m
contemporary international law. The answer to this point, made also by some
other States, 287 needs to be taken in stages since it is linked to the argument that
international law does not essentially deal with non-State actors. 288
(1) International law does inprinciple direct/y address non-State entities
256. As the Authors of the UDI have written, "the question put to the Court is focused
on the international legality of a non-State entity declaring independence". 289
They then argue that insofar as independence is concerned, "treaties generally do
not seek to regulate non-State entities in such fashion". 29°Further, it is noted that
285
See, e.g., Security Council resolution 841 (1993) with regard to Haïti.
286WS United Kingdom, para. 5.10.
287See, e.g., WS Switzerland, paras. 55-56.
288See, e.g., WC Authors, paras. 8.06, 8.19 and 9.02.
289
Ibid., para. 8.10.
290Ibid., para. 8.19.
111 rules concerning territorial integrity are imposed upon States and not upon non
291
State actors.
257. The implicit suggestion that international law does not address non-State entities
is incorrect and needs to be restated briefly by way of introduction. This may be
accomplished by reference to two sets of Security Council resolutions. First, those
resolutions that deal with terrorism clearly and overtly address non-State entities
and in a way that demonstrates that they are subject to the rules of international
law. 292Security Council resolution 1822 (2008), for example, reaffirms that:
"that terrorism in all its forms and manifestations constitutes one
of the most serious threats to peace and security and that any
acts of terrorism are criminal and unjustifiable regardless of
their motivations, whenever and by whomsoever committed, and
reiterating its unequivocal condemnation of Al-Qaïda, Usama
bin Laden, the Taliban, and other individuals, groups,
undertakings, and entities associated with them",
and urges that:
"all Member States, international bodies, and regional
organizations to allocate sufficient resources to meet the
ongoing and direct threat posed by Al-Qaïda, Usama bin Laden
and the Taliban, and other individuals, groups, undertakings,
and entities associated with them, including by participating
actively in identifying which individuals, groups, undertakings
and entities should be subject to the measures referred to in
paragraph 1of this resolution". 293
291Ibid. and 8.20.
292
See, e.g., Security Council resolutions 1267 (1999), 1333 (2000), 1363 (2001), 1373 (2001), 1390 (2002),
1452 (2002), 1455 (2003), 1526 (2004), 1566 (2004), 1617 (2005), 1624 (2005), 1699 (2006), 1730
(2006) and 1735 (2006).
293Security Council resolution 1822 (2008), Preamble, paras. 2 and 1O.
112258. There then follow a range of actions to be taken, none of which make sense except
in the context of the direct application of international law to the groups in
question. It is true, as the authors of the UDI have pointed out, that these
resolutions impose obligations upon member States with regard to the treatment of
such groups, but to infer that this means that international law does not address
such groups directly is to confuse applicability of the law with its
. 1 . 294
1mpementatlon.
259. A second series of resolutions to the same effect concern non-proliferation of
nuclear, chemical and biological weapons and their means of delivery. Security
Council resolution 1540 (2004) provides inter alia the following:
"1. Decides that all States shall refrain from providing any form
of support to non-State actors that attempt to develop, acquire,
manufacture, possess, transport, transfer or use nuclear,
chemical or biological weapons and their means of delivery;
2.Decides also that all States, in accordance with their national
procedures, shall adopt and enforce appropriate effective laws
which prohibit any non-State actor to manufacture, acquire,
possess, develop, transport, transfer or use nuclear, chemical or
biological weapons and their means of delivery, in particular for
terrorist purposes, as well as attempts to engage in any of the
foregoing activities, participate in them as an accomplice, assist
or finance them".
295
260. This resolution, and the others that followed it, are only comprehensible on the
basis that the activities engaged in are contrary to international law and that the
non-State entities are directly addressed by international law. The fact that the
weight of implementation lies upon member States of the United Nations and the
relevant Security Council Committee established under resolution 1540 (2004) is
simply the pertinent implementation methodology and cannot detract from the fact
294See, e.g., WC Authors, para. 9.02.
295See, e.g., resolutions 1673 (2006); 1718 (2006); 1737 (2006); 1803 (2008) and 1810(2008).
113 that non-State entities are directly addressed by both the rules and the enforcement
mechanisms of international law.
261. This subsection may be concluded with a reference to Security Council
resolutions, for example, resolution 1845 (2008), which, invoking Chapter VII of
the Charter, impose an obligation upon "entities" to cooperate with the
International Criminal Tribunal for the former Yugoslavia.
(2) Relevant international legal practice shows that the rule against non-consensual
secession binds non-State entities
262. In a number of situations, the Security Council has adopted binding resolutions
which are only comprehensible in terms of recognising a rule prohibiting non
State entities from asserting secessionist claims. Cumulatively, they demonstrate
that international law now accepts that non-consensual secessions from
recognised, sovereign and independent States are unlawful.
Conflicts in the former Yugoslavia generally
263. The international community took the position early in the conflicts over the
former Yugoslavia that the independence of the former republics, achieved as a
result of the dissolution of the SFRY, 296 had to be resolved in the framework of
the uti possidetis borders of the new States. In particular, the Serb populations in
Bosnia and Herzegovina and in Croatia, while entitled to minority rights, were not
entitled to the exercise of self-determination in the sense of secession from those
two new States. 297Opinion No. 3 of the Arbitration Commission emphasised that,
"[e]xcept where otherwise agreed, the former boundaries become frontiers
protected by international law." 298
296
Opinion No. 1 of the Arbitration Commission on former Yugoslavia, 31 ILM 1497 (1992), Annex 38 in
Documentary Annexes accompanying WS Serbia, Dossier No. 233.
297Opinion No. 2 of the Arbitration Commission on former Yugoslavia, 31 ILM 1498 (1992), Annex 39 in
Documentary Annexes accompanying WS Serbia, Dossier No. 234.
298Opinion No. 3 of the Arbitration Commission on former Yugoslavia, 31 ILM 1500 (1992), Annex 40 in
Documentary Annexes accompanying WS Serbia.
114264. The Security Council also very clearly opposed any attempt at secession from the
new States emerging out of the dissolution of the former Yugoslavia. In a long
series of resolutions, the Council repeated the explicit and unambiguous
affirmation of the territorial integrity of all the successor States, including the
FRY (now the Republic of Serbia), and called in particular in resolution 1031
(1995) for a "negotiated political settlement of the conflicts in the former
Yugoslavia, preserving the territorial integrity of all States there within their
internationally recognized borders". 299 Security Council resolution 1845 (2008),
for example, specifically reaffirmed the Council's "commitment to the political
settlement of the conflicts in the former Yugoslavia, preserving the sovereignty
and territorial integrity of all States there within their internationally recognized
borders" and reaffirmed, in its operative clauses,
"once again its support for the Peace Agreement, as well as for
the Dayton Paris Agreement on implementing the Federation of
Bosnia and Herzegovina of 10 November 1995 (S/1995/1021,
annex) and call[ed] upon the parties to comply strictly with their
obligations under those Agreements".
265. The nature of these resolutions and their content, taken in the well-known context
of claims for secession from some of the new States, can only be interpreted as
imposing an obligation, not only on neighbouring States to respect the territorial
integrity of all the successor States, but also upon the relevant non-State entities
not to violate the territorial integrity of all the successor States. In the
circumstances and bearing in mind that the threats to territorial integrity were
coming essentially from particular groups within States, the international
community, operating through the Badinter Commission and the Security Council,
underlined that secession from these States would violate international law. It is
also to be noted that the phrase used in these resolutions, "political settlement of
the con:flictsin the former Yugoslavia", clearly includes the Kosovo situation.
299See, e.g., resolutions 1088 (1996), 1423 (2002), 1491 (2003), 1551 (2004), 1575 (2004), 1639 (2005),
1722 (2006), 1785 (2007) and 1845 (2008), Annexes 15 and 21 - 28 in Documentary Annexes
accompanying WS Serbia.
115266. This approach was also manifest in the Security Council's treatment of the Eastern
Slavonia issue. In resolution 1023 (1995), for example, the Council reaffirmed
"its commitment to the search for an overall negotiated
settlement of the conflicts in the former Yugoslavia, ensuring
the sovereignty and territorial integrity of all the States there
within their internationally recognized borders, and stressing the
importance it attaches to the mutual recognition thereof'
and further reaffirmed
"its commitment to the independence, sovereignty and territorial
integrity of the Republic of Croatia and emphasizing in this
regard that the territories of Eastern Slavonia, Baranja and
Western Sirmium, known as Sector East, are integral parts of the
Republic of Croatia". 300
267. In resolution 1120 (1997), the Security Council referred to these principles and
specifically called upon the
"Government of the Republic of Croatia and the local Serb
community to cooperate fully with UNTAES and other
international bodies and to fulfil all obligations and
commitments specified in the Basic Agreement and all relevant
Security Council resolutions, as well as in the letter of the
Government of the Republic of Croatia of 13 January 1997". 301
268. Again, the reaffirmation of territorial integrity took place in circumstances where
the essential challenge to it was by local entities, so that the Council effectively
underlined the prohibition of secession.
300Security Council resolution 1023 (1995), Preamble, paras. 2-3. See, also, resolutions 1037 (1996) and
1079 (1996).
301Security Council resolution 1120 (1997), para. 1.
116Southern Sudan
269. The Security Council has reaffirmed on a number of occasions "its strong
commitment to the sovereignty, unity, independence and territorial integrity of
Sudan" faced with a range of secessionist claims. 302 These resolutions have
included reference to the conflicts in southern Sudan and in Darfur, often in the
same instrument, thus reinforcing the same prohibition on secession.
270. In resolution 1841 (2008), for example, the Security Council in reaffirming the
territorial integrity of Sudan, stressed its firm commitment to the cause of peace
throughout Sudan; full implementation of the Comprehensive Peace Agreement of
9 January 2005 (CPA), by which the govemment of Sudan reached an agreement
with the Sudan People' Liberation Movement and the Sudan People's Liberation
Army concermng the secessionist struggles m southern Sudan; full
implementation of the framework agreed between the parties for a resolution of
the conflict in Darfur (the Darfur Peace Agreement), and an end to the violence
and atrocities in Darfur. In resolution 1870 (2009), adopted on 30 April 2009, in
operative paragraph 4, the Council stressed
"the importance of full, and expeditious implementation of all
elements of the CPA, implementation of the Abyei Roadmap,
agreements on Darfur, and the October 2006 Eastern Sudan Peace
Agreement, and call[ed] upon all parties to respect and abide by
303
their commitments to these agreements without delay".
271. Accordingly, with regard to Sudan, the Security Council has adopted a strong
stance in favour of the territorial integrity and national unity of the State and
supporting peace agreements between the government and rebel and secessionist
movements, even to the extent of sending troops. The relevant resolutions cannot
be read without understanding that the Council was positively opposing
secessionist attempts, thus reinforcing the view that international practice has
prohibited such attempts.
302See, e.g., Security Council resolution 1769 (2007). See WS Serbia, para. 464 et seq.
303See, also, resolutions 1828 (2008), 1779 (2007), 1769 (2007), 1713 (2006), 1672 (2006), 1665 (2006),
1651 (2005), 1591 (2005),1556 (2004) and 1812 (2008).
117272. This practice of reaffirming the territorial integrity of States faced with internal and
304
secessionist conflicts constitutes undeniable evidence that the international
community does not adopt a position of neutrality with regard to non-consensual
secessionist claims concerning independent States. On the contrary, it adopts a
position of positive disapproval and the range of practice further demonstrates that
the principle of territorial integrity binds not only States but also non-State entities.
273. The Written Statement of Spain puts it as follows:
"Vis-à-vis these situations [armed con:flicts of a non
international character], the Security Council has adamantly
defended, as an indisputable precondition, the sovereignty,
territorial integrity, political independence and unity of States
immersed in these con:flicts, and also of neighbouring States
when it has been necessary." 305
274. This general approach, whereby the international community does not stand
neutral with regard to secessionist attempts, but faced with them has repeatedly
endorsed the territorial integrity of the State concerned and thus strenuously
306
opposed such attempts, has been specifically applied by the Security Council in
relation to Serbia and the Kosovo problem. In other words, it is not necessary to
rely solely upon general practice. Particular relevant practice exists.
(3) The territorial integrity of Serbia has been internationally affirmed in the specific
context of the Kosovo problem
275. Faced with the increasing problems ansmg out of the Kosovo situation, the
Security Council has repeatedly reaffirmed the territorial integrity of the FRY
/Serbia. To put this another way, in the very precise context of secessionist
pressures from the Kosovo Albanian population, the Security Council underlined
304See for further examples WS Serbia, paras. 453-463 and 473-476.
305WS Spain, para. 31 (footnote omitted).
306See, also, e.g., Security Council resolutions 145 (1960), 169 (1961), 404 (1977) and 496 (1981).
118 the principle of the territorial integrity of Serbia. Such a reaffirmation was clearly
not directed only against other States, none of whom were actually challenging the
territorial integrity of the country at the relevant stage, but also with regard to
those internal forces seeking the secession of Kosovo from Serbia.
276. Resolution 1160 (1998), for example, which dealt specifically with the use of
force by the Serbian police forces and acts of terrorism by the Kosovo Liberation
Army, affirmed the commitment of all member States to the sovereignty and
territorial integrity of the FRY and declared in operative paragraph 5 that the
Security Council agrees that "the principles for a solution of the Kosovo problem
should be based on the territorial integrity of the Federal Republic of Yugoslavia
and ... that such a solution must also take into account the rights of the Kosovar
Albanians and all who live in Kosovo .... which would include a substantially
greater degree of autonomy and meaningful self-administration". 307
277. Resolution 1203 (1998) reaffirmed the territorial integrity of the FRY and
demanded that, "the Kosovo Albanian leadership and all other elements of the
Kosovo Albanian community comply fully and swiftly with resolutions 1160
(1998) and 1199 (1998)".
278. Resolution 1244 (1999) reaffirmed the sovereignty and territorial integrity of the
FRY and established an international presence to administer the territory. This
resolution also recalled and thus reaffirmed resolutions 1160 (1998), 1199 (1998),
1203 (1998) and 1239 (1999). In so doing, the Council was clearly doubly
underlining the twin principles of the territorial integrity of the FRY and
autonomy for Kosovo.
279. Serbia has analysed Security Council resolution 1244 (1999) in its Written
Statement 308and in these Written Comments. 309 Suffice it for present purposes to
307Annex 16 in Documentary Annexes accompanying WS Serbia. See, also, resolutions 1199 (1998), 1203
(1998) and 1239 (1999), Annexes 17 to 19 in Documentary Annexes accompanying WS Serbia,Dossier
Nos. 17, 20 and 28.
308WS Serbia, Part IV and para. 508 et seq.
" See supra Chapter 9.
119 make the following points. First, the territorial integrity and sovereignty of the
FRY was clearly reaffirmed. 310Secondly, at no point during the Security Council
debate on 10 June 1999 concerning the adoption of resolution 1244 (1999) was
the sovereignty and territorial integrity of the FRY challenged or questioned. No
State queried or denied the views expressed by, for example, the Russian
Federation, China and Argentina, that the resolution would reaffirm the
commitment to the sovereignty and territorial integrity of the FRY. 311
280. Thus, a whole senes of binding Security Council resolutions established and
repeated that any solution for the Kosovo problem would be contingent upon
respect for the sovereignty and territorial integrity of the FRY. There is no
condition to be found attached to this, nor any opposition to it manifested, nor any
hint of an amendment to this or questioning of it. The conclusion must be,
therefore, that the United Nations as a whole and member States and interested
parties (necessarily including the Kosovo Albanians) were and remain bound by
these resolutions.
281. This approach was indeed subsequently confirmed in the UNMIK-FRY Common
Document signed on 5 November 2001. 312This instrument specifically reaffirmed
resolution 1244 (1999) and Point 4 provided for:
"the protection of the rights and interests of Kosovo Serbs and
other communities in Kosovo, based on the principles stated in
UNSCR 1244, including the sovereignty and the territorial
integrity of the Federal Republic of Yugoslavia".
282. This instrument was further welcomed by the Security Council in a Presidential
313
Statement and indeed by the United States of America. Security Council
resolution 1345 (2001) also reaffirmed in operative paragraph 2 the commitment
310WS Serbia, Part IV and para. 508 et seq.
311See UN Doc. S/PV.4011 (10 June 1999), Annex 34 in Documentary Annexes accompanying WS Serbia,
312Dossier No. 33.
WS Serbia,para. 517 etseq. and Annex 12inDocumentaryAnnexes accompanyingWS Serbia,Dossier No. 171.
313UN Doc. S/PRST/2001/34 (9 November 2001), Annex 32 in Documentary Annexes accompanying WS
Serbia,Dossier No. 172, and Annex 67 in Documentary Annexes accompanying WS Serbia.
120 of the Council to the sovereignty and territorial integrity of the FRY and tellingly
referred in operative paragraph 10to "Kosovo, Federal Republic of Yugoslavia".
283. Indeed, as the Written Statement of Cyprus, for example, makes clear, until the
UDI the fact that Kosovo was part of Serbia "was uncontested by other States". 314
284. Powerful evidence would indeed be needed for the territorial integrity of a State to
be queried in international law, never mind compromised. No such evidence is
available with regard to Serbia in respect of Kosovo. On the contrary, the heavy
weight of evidence, both general and particular, is all in support of respect for the
territorial integrity of Serbia.
II The argument that the reference to territorial integrity in Security Council
resolution 1244 (1999) is "temporary"
285. The argument has been made that the principle of territorial integrity has
somehow been modified in Security Council resolution 1244 (1999) and
reinterpreted as a temporary or partial norm.
286. The written contribution of the authors has in a number of places sought to minimise
referencesto territorial integrityin resolution 1244(1999). They have attemptedto do
this by isolating each reference to territorial integrity and reinterpreting it
exceptionally narrowly in the context. For example, it is argued that the explicit
reference to the territorial integrity of the FRY in the preamble of resolution 1244
315
(1999), was oflittle effect sincethe preamble was a "non-binding clause". Further,
it is arguedthat the referencesto sovereignty and territorialintegrity in annexes 1and
2 "were solely in the context of an interim political settlement". 316 These issues will
be analysedin detail later inthese Written Comments. 317
'14
" WS Cyprus, para. 40.
" WC Authors, para. 9.05.
316Ibid., para. 4.07. See, also, WS United Kingdom, paras. 3.7 and 6.12; WS United States, p. 68 et seq.; and
WS France, para. 2.21.
317
See ùifra paras. 414-0.
121287. Suffice it to say in this section that the claim that the political process and interim
political framework must be govemed by the principle of territorial integrity while
the end product of this process may simply jettison this principle without the
consent of the State concemed is simply not logical. It is also curious in law.
288. Further, the implications of such an approach are deeply disturbing at a more
general level. It suggests that the principle of territorial integrity may be re
interpreted by way of a Security Council resolution in a phrase that is at best
controversial or indeed by unilateral non-State action. The respect for State
sovereignty, of which territorial integrity is a key component, is a rule of jus
cogens. Accordingly, it may be altered to the detriment of the State concemed
only by a similar rule, that is in such circumstances by the clear and explicit
consent of the State. Anything less than this has alarming implications for States
generally. The argument of the authors of the UDI that, "the preambular reference
in resolution 1244 (1999) marked a clear shift in the position of the Security
Council, one that now contemplated the possibility that a final status for Kosovo
would not entail maintenance of FRY territorial borders" 318is clearly wrong in its
understanding of the text of the preamble. It must also be clearly wrong in law in
its suggestion that a statement in a preamble of a Security Council resolution has
the capacity to render the foundational principle of the territorial integrity of a
State inapplicable in a given situation.
289. There is no practice to suggest that the principle of territorial integrity may be
emasculatedby way of a SecurityCouncil resolutionin the absence of the consent of
319
the State concemed. There is most certainly no practice that suggests that the
principleof territorialintegrity,explicitlyacknowledgedfor a relevantpoliticalprocess,
may be violatedby the actionsof secessionistentities,who unilaterallyclaimto put an
end to that Security Council mandated process, act contrary to the application of the
principle of territorial integrity and declare independence in opposition to the stated
positionofthe Stateconcemedand a significantnumberof otherStates.
" WC Authors, para. 9.30.
" See, e.g., WS Cyprus, para. 100.
122290. It was accepted by all relevant parties that the political process phase would be
governed by the principle of territorial integrity and that the principle of territorial
integrity (as a preambular reference) at the least informed the interpretation of the
pertinent resolution. No State and no other entity denied the applicability of the
principle of the territorial integrity of the FRY. To accepta major re-interpretation
of one of the key principles of international law whether by a controversial
reading of a Security Council resolution or by unilateral action by a non-State
entity would be contrary to the whole tenor of the international community and
gravely disturbing to the stability of international relations.
III The argument that the principle of territorial integrity reaffirmed in resolution
1244 (1999) applied to the FRY and not to Serbia
291. The authors of the UDI have claimed that since Security Council resolution 1244
(1999)
"was focused upon the status of the FRY as a whole and
Kosovo's position as a federal unit within the FRY [and] [g]iven
that the FRY radically changed in nature, it cannot be assumed
that commitments existing in 1999 stayed the same..."
and further that,
"[t]here 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, g1ven the fundamentally changed
320
circumstances that arose from the FRY's fragmentation ..."
292. There are two essential legal arguments put forward here. First, that Serbia today
cannot be regarded as the continuation or continuator of the FRY as that existed in
1999, and, secondly, that "fundamentally changed circumstances" have altered the
commitments made in 1999 in resolution 1244 (1999).
320WC Authors, para. 9.33. See also, e.g., WS United States, p. 74 et seq.
123293. Both arguments are extraordinarily weak. To accept that the reaffirmation of the
territorial integrity of the FRY made in Security Council resolutions, including
resolution 1244 (1999), does not apply today to Serbia is to challenge that Serbia
is the legitimate continuation of the FRY. No State has made that claim.
Moreover, if one were to follow this line of reasoning it would also mean vice
versa that the obligations of the FRY contained in Security Council resolution
1244 (1999), such as those in paragraph 2, should no longer be interpreted as
applying to Serbia either.
294. The FRY, proclaimed on 27 April 1992, was renamed the State Union of Serbia
and Montenegro on 4 February 2003. Neither during the FRY nor during the State
Union was Kosovo "a federal unit", as the authors of the UDI erroneously
contend. 321
295. Article 60 of the Constitutional Charter of Serbia and Montenegro specifically
stated that in the case of the separation of Montenegro from the State Union, "the
international instruments pertaining to the Federal Republic of Yugoslavia,
particularly resolution 1244 of the United Nations Security Council, would
concern and apply in their entirety to Serbia." 322 The Preamble of the
Constitutional Charter also confirmed that Serbia included Kosovo. 323 This is a
fact that was well-known to the Security Council when it took note of the
324
constitutional transformation of the FRY.
296. Furthermore, when Montenegro did in fact separate in 2006, President Tadic
informed the United Nations that Serbia would continue to exercise all rights of
the State Union arising under the Constitutional Charter. His letter stated:
321See WC Authors, para. 9.33.
322
Ustavna povelja Drzavne zajednice Srbija i Crna Gara ["Constitutional Charter of Serbia and
Montenegro"], Sluibeni list Srbijerne Gore [Official Gazette of Serbia and Montenegro"], No. 1/2003,
text to be found in Annex 58 in Documentary Annexes accompanying WS Serbia.
323Ibid.
324See Statement of the President of the Security Council, UN Doc. S/PRST/2003/1 (6 February 2003),
Dossier No. 61. This is acknowledged by the Written Statement of the United States, see WS United
States, p. 78.
124 "[The] Republic of Serbia remains responsible in full for all the
rights and obligations of the state union of Serbia and
Montenegro under the UN Charter." 325
297. This notion of "rights and obligations (... ) under the Charter" clearly includes
rights contained in, and referred to, in binding Security Council resolutions,
including the reaffirmation of the territorial integrity of the FRY contained in
Security Council resolution 1244 (1999). 326
298. Shortly thereafter, the representative of Serbia, in a meeting of the Security
Council, specifically referred to the guarantee of the "sovereignty and territorial
integrity of our country" [i.e. the one of Serbia] as contained in preambular
paragraph 10 of Security Council resolution 1244 (1999)3 27 - an assumption that
328
was not contradicted by any of the Security Council members.
299. On 3 June 2006, Montenegro declared its independence. The State Union of
Serbia and Montenegro was renamed the Republic of Serbia, which declared its
continuity with the State Union and its responsibility for all the rights and
obligations of the former State Union. On 28 June 2006, the General Assembly of
the UN in resolution 60/264 admitted the Republic of Montenegro as a new
Member of the United Nations. Serbia continued the membership of the United
Nations and other international institutions of the former State Union.
300. No State challenged this. No State argued that Serbia was not the continuation of
the legal personality of the former State Union. The United Nations admitted
325See Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime
of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment of 26 February 2007, para.
67; Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Croatia v. Serbia), Judgment of 18 November 2008, para. 23 (emphasis added).
326
See mutatis mutandis Security Council resolution 670 (1990), as well as Questions of Interpretation and
Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab
Jamahiriya v. United States of America), Provisional Measures, Order of 14 April 1992, I.C.J Reports
1992, para. 42.
327
Mrs. Raskovic-Ivic (Serbia), UN Doc. S/PV.5470 (20 June 2006), p. 5: "We corne before the Security
Council with full confidence, with the expectation that it will make its crucial contribution in the spirit of
the documents it has previously adopted, primarily resolution 1244 (1999), of 10 June 1999, which
unambiguously reaffirms the sovereignty and territorial integrity of our country." (emphasis added)
328Those speakers included, inter alia, representatives of France, the United Kingdom, the United States,
Japan, Denmark, as well as Austria speaking on behalf of the European Union.
125 Montenegro as a new member and accepted Serbia as the continuation of the
former State Union of Serbia and Montenegro. The Court, in its judgment of 26
February 2007 in the Bosnia and Herzegovina v Serbia and Montenegro case,
noted that Serbia had accepted such continuity and thus remained the respondent
329
in that case.
301. Further, in the context of this request for an advisory opinion from the Court, the
Written Statement of Germany declared that,
"Security Council resolution 1244 (1999) does mention 'the
sovereignty and territorial integrity of the Federal Republic of
Yugoslavia' several times. As the FRY no longer exists, this
reference must now indeed be taken as a reference to Serbia". 330
302. Accordingly, there is no room for any challenge to the continuity of the Republic
of Serbia to the FRY (renamed the State Union of Serbia and Montenegro in
2003). It follows from this that the international legal principle of territorial
integrity, which was reaffirmed in Security Council resolution 1244 (1999) (and
other resolutions) with regard to the FRY, simply continued to apply to the State
Union of Serbia and Montenegro and thus to the Republic of Serbia (minus the
territory of Montenegro which had legitimately separated from the State Union,
with full consent, in 2006). Any other approach would, for example, constitute a
challenge to the territorial integrity of States in similar circumstances, such as the
Federal Republic of Germany, the Russian Federation, Yemen, Eritrea and
Ethiopia.
303. The fondamental change of circumstances argument put by the authors of the UDI
(but by none of the States producing written statements in this case) is similarly
flawed both in fact and in law. First, there has in reality been no "fondamental
329
Case Concerning the Application of the Convention on the Prevention and the Punishment of the Crime of
Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment of 26 February 2007,ra. 75.
This was reaffirmed in the Case Concerning the Application of the Convention on the Prevention and the
Punishment of the Crime ofGenocide (Croatia v Serbia), Judgment of 18 November 2008,. 32.
330WS Gennany, p. 37 (emphasis added). See also, e.g., WS Romania, para. 18 et seq.
126 change of circumstances" smce 1999. The FRY/Serbia continued to be the
acknowledged holder of the sovereign territorial title over Kosovo, while the UN
continued to administer that territory. Nothing fundamentally changed until the
UDI of 2008. The reference by the authors of the UDI to "the FRY's
.c: • ,,331 ·
1ragmentatlon 1s simply tendentious. The FRY did not "fragment".
Montenegro left the State Union with the full consent of the State Union and
Serbia. The reference to the "extensive UN-sponsored creation of institutions of
332
self-governance in Kosovo" does not constitute a fundamentally changed
circumstance since 1999 and resolution 1244 (1999), since it was provided for in
that resolution.
304. Similarly, in terms of the relevant law the argument of the authors of the UDI is
incorrect. Article 62, paragraph 1, of the Vienna Convention on the Law of
Treaties provides that:
"A fondamental change of circumstances which has occurred
with regard to those existing at the time of the conclusion of a
treaty, and which was not foreseen by the parties, may not be
invoked as a ground for terminating or withdrawing from the
treaty unless:
(a) the existence of those circumstances constituted an
essential basis of the consent of the parties to be bound
by the treaty; and
(b) the effect of the change is radically to transform the
extent of obligations still to be performed under the
treaty".
305. The doctrine of fondamental change of circumstances (rebus sic stantibus) was
examined by the Court in Fisheries Jurisdiction cases. The key to the application
of the doctrine, was that the change that has taken place was critical and that the
" WC Authors, para. 9.33.
332Ibid.
127 consequences of the change have been to destroy or significantly modify the basis
of the obligation in question and make impossible the actual or future realisation
of the objectives and goals of that obligation. The Court noted in the Fisheries
Jurisdiction case, there has to be a "radical transformation of the extent of the
obligations imposed" by it. 333The Court also specified what it meant by "radical
transformation" and accordingly explained that :
"The change must have increased the burden of the obligations
to be executed to the extent of rendering the performance
something essentially different from that originally
undertaken." 334
306. The Court returned to the doctrine in the Gabéfkovo-Nagymaros Projectcase. The
Court, which regarded Article 62 of the Vienna Convention as codifying existing
customary law, 335 noted that:
"The changed circumstances advanced by Hungary are, in the
Court's view, not of such a nature, either individually or
collectively, that their effect would radically transform the
extent of the obligations still to be performed in order to
accomplish the Project. A fondamental change of circumstances
must have been unforeseen; the existence of the circumstances
at the time of the Treaty's conclusion must have constituted an
essential basis of the consent of the parties to be bound by the
Treaty. The negative and conditional working of Article 62 of
the Vienna Convention on the Law of Treaties is a clear
indication moreover that the stability of treaty relations requires
that the plea of fondamental change of circumstances be applied
on y m except10na cases . " 336
333Fisheries Jurisdiction case (Federal Republic of Germany v. lceland), Judgment of 2 February 1973,
I.C.J Reports 1973, para. 36.
334Ibid., para. 43.
335
Gabcikovo-Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J Reports 1997, para. 46.
336Ibid., para. 104. See also D. F. Vagts, "Rebus Revisited: Changed Circumstances in Treaty Law", 43
Colum. J.Transnat'lL. (2004-5), p. 459; A. Vamboukos, Termination of treaties in international law: the
128307. Accordingly, the indispensable requirements of a successful application of the
doctrine are very high. The circumstances to which the change relates must have
been an essential basis of the consent of the parties to the obligation undertaken,
the change in question has to be unforeseen and fondamental, the consequences of
which would be to dramatically transform the extent of the obligations to be
performed. And in addition, the application of the doctrine must be exceptional.
308. No evidence has been put forward which is relevant to such conditions concerningthe
Kosovo situationbetween the adoptionof SecurityCouncilresolution 1244(1999) and
the UDI of 17 February 2008, still less that any fondamental change of circumstances
has indeedtak:enplace withinthe definitionprovidedby Article 62 andthe Court.
309. There has clearly and simply been no "radical transformation of the extent of
obligations".
F. Conclusion
310. The following conclusions have, therefore, been reached in addition to those laid
out in Serbia's Written Statement: 337
(i) The principle of territorial integrity of States has been acknowledged
by those participating in the present advisory proceedings as one of
the key and applicable elements of international law.
(ii) There has been no denial that the FRY/Serbia held sovereignty and
territorial title to Kosovo at the date of Security Council resolution
1244 (1999).
(iii) There has been no claim that resolution 1244 (1999) deprived
FRY/Serbia of sovereignty and territorial title to Kosovo.
(iv) There has been no denial that the preamble to resolution 1244 (1999)
reaffirmed the sovereignty and territorial title of FRY/Serbia over
Kosovo.
doctrines of rebus sic stantibus and desuetude (1985) and M.N. Shaw and C. Fournet, "Article 62" in
Olivier Corten and Pierre Klein (eds.), Les Conventions de Vienne de 1969 et de 1986 sur le droit des
traités: Commentaire article par article(2006), p. 2229.
337WS Serbia, para. 413.
129(v) There has been no denial that resolution 1244 (1999) affirmed that the
political process to resolve the Kosovo problem had to take account
of the fondamental principle of the territorial integrity of FRY/Serbia.
(vi) The obligation to respect territorial integrity applies beyond the inter
State context and applies as a general proposition to non-State entities
and that the effect of this is to render non-consensual secessions from
independent States unlawfol.
(vii) The principle of territorial integrity has been reaffirmed by Security
Councilresolutions as applyingto the conflictsinthe former Yugoslavia.
(viii) The principle of territorial integrity has been specifically reaffirmed
by Security Council resolutions as applying to the Kosovo problem
and binding upon all States and upon the Kosovo Albanians.
(ix) The references to territorial integrity in resolution 1244 (1999) are
binding and not to be seen as limited in time or substance.
(x) The references to the territorial integrity of the FRY in resolution
1244 (1999) apply to the territorial integrity of the Republic of Serbia
as its continuation.
(xi) There have been no fondamental changes of circumstances to justify
any modification in the application of the principle of territorial
integrity of Serbia with regard to Kosovo.
130 Chapter 8
NEITHER THE PRINCIPLE OF SELF-DETERMINATION
NOR THE SO-CALLED DOCTRINE OF "REMEDIAL SECESSION" PROVIDE
ANY SUPPORT FOR THE UDI
A. Introduction
311. In its Written Statement, Serbia has demonstrated that the principle of self
determination provides no legal justification for the UDI. In particular, it was
shown that the principle applies in its external aspect in the context of
decolonisation and occupation, and requires the existence of a "people" who are
recognised as the sole holder of this right. In this regard, Serbia recalled that
minorities are not entitled to exercise the external right to self-determination,
meaning that they cannot secede territory from a pre-existing State. Rather, they
exercise the internai aspect of this right, together with the rest of the people of the
State concerned. 338 This view was shared not only by other States that came to the
same conclusion as Serbia with regard to the question submitted by the General
Assembly, 339 but also by States that took the opposite position as well. 340 Japan,
for instance, stated that
"[t]he case of Kosovo can be regarded [as] a case outside the
colonial context, and as indicated above, we cannot arrive at an
appropriate legal interpretation simply by looking into the
relevance of the right of self-determination." 341
312. The Written Statement of Serbia has also demonstrated that the so-called doctrine
of "remedial secession" is untenable under international law. Serbia carefully
338WS Serbia, para. 544.
339WS Argentina, para. 94; WS Iran, para. 5.3; WS Romania, para. 142; WS Cyprus, para. 139.
340
WS Switzerland, para. 67.
341WS Japan, p. 4.
131 analysed the purported conditions required by those advancing its existence in
international law and has shown that in any event, these conditions would not be
met in the case of Kosovo. 342 Other States likewise shared this view. Those States
advancing the "remedial secession" doctrine have been unable to justify their
position in legal terms, and have simply taken the doctrine for granted and have
failed to explain how this doctrine forms part of positive international law. 343 The
simple reason for this is that it does not. Furthermore, they base the application of
this doctrine to the case of Kosovo upon repeated generalisations of only those
facts that purportedly support their argument, and that are not consequently
representative of all the relevant facts.
313. This chapter will rebut the positions adopted by those encouragmg Kosovo's
secession with regard to both the principle of self-determination and the doctrine
of "remedial secession". In particular, the following points will be addressed:
(i) The relationship between the right of peoples to self-determination
and the principle of territorial integrity.
(ii) The notion of "people" and the fact that this notion is not applicable
to the Kosovo Albanians nor to the entire population of Kosovo.
(iii) The scope of the internai exercise of the right to self-determination.
(iv) The impossibility to justify the UDI on the basis of the external
exercise of self-determination.
(v) The lack ofrelevance of the doctrine of "remedial secession".
(vi) The fact that the alleged conditions invoked to justify "remedial
secession" are not met in the case of Kosovo.
(vii) The date for the examination of the applicability of the principle of
self-determination and the doctrine of remedial secession is that of the
UDI, namely 17 February 2008.
342WS Serbia, paras. 639-649.
343WS Albania, para. 81; WS Estonia, p. 4; WS Finland, para. 7; WS Germany, p. 35; WS Ireland, para. 30;
WS Netherlands, paras. 3.6-3.7; WS Poland, para. 6.5; WS Slovenia, p. 2; WS Switzerland, para. 62; WC
Authors, para. 8.40.
132 B. Relationship between the Right of Peoples to Exercise Self-Determination
and Respect for the Territorial Integrity of States
344
314. As mentioned above, most of the written statements have generally
acknowledged the importance of the principle of respect for the territorial integrity
of States, no matter what their positions are with regard to the question raised by
the General Assembly. Even States advancing the doctrine of "remedial
secession" have accepted the general prevalence of territorial integrity over self
determination, the "remedial secession" doctrine being - according to them - an
345
exception, a m o u tzmaratzo. .
315. Just one isolated written statement contended that self-determination takes
precedence over territorial integrity. This was the case of Slovenia, based on what
it perceived to be the "democratic nature" of the principle of self-determination,
which it considered absent in the principle ofrespect of territorial integrity. 346
316. In the view of Serbia, the issue in the present case is not a conflict of norms,
where one principle takes precedence over the other under international law,
but rather the correct application of both principles. If, in a given situation, as
is the case with Kosovo, there is no unit of self-determination or a holder of
this right in its external aspect, 347 then the discussion about the prevalence of
respect of territorial integrity over the right of self-determination becomes
entirely obiter. The fact remains that there is no legal justification for failing to
respect the territorial integrity of Serbia and the UDI is an open violation of
this principle.
317. It will also be stressed below that the "exceptional" or "abnormal" situation or the
"ultima ratio" exception to respect for territorial integrity of Serbia invoked by
those supporting Kosovo' s secession, on the basis of an alleged but
undemonstrated doctrine of "remedial secession", lacks any substance.
" See supra para. 248.
345
WS Estonia, pp. 9-10; WS Finland, para. 7; WS Germany, p. 34; WS lreland, para. 30; WS Netherlands,
para. 3.7; WS Poland, para. 6.9; WS Switzerland, para. 67.
346WS Slovenia, p. 2.
347See WS Serbia, paras. 570-588, and infra paras. 318-329.
133 C. Meaning of "People" and Non-Existence of a Distinct
"People" in Kosovo
318. It is uncontroversial that the right to self-determination may only be exercised by
a "people", in the sense this term of art possesses in international law. According
to Serbia, and to many other States, there is no "Kosovar people". Furthermore,
Kosovo Albanians do not constitute a separate people entitled to self
determination either. 348
319. Sorne written statements, as well as the text submitted by the authors of the UDI,
nevertheless argue in favour of the existence in Kosovo of a "people" entitled to
extemal self-determination. The criteria to apply in order to determine who
constitutes the "Kosovar people", however, greatly vary among these texts. Sorne
of those States recognising Kosovo have supposed the existence of a people who
are the holder of the right of self-determination in Kosovo, simply because the
word "people" has been used in some texts, notably in the Rambouillet Accords.
Switzerland even goes so far as to consider Kosovo to be a "non-self-goveming
territory". Other States, as well as the authors of the UDI, embarked upon ethnical
considerations. Yet other written statements pleaded the transformation of a
minority into a "people" because of the sufferings the minority had endured.
Finally, some States have simply invoked or implied the existence of a "people"
without providing anyjustification for their assertion.
I Neither the Rambouillet Accords nor any United Nations instrument bas recognised
the applicability of self-determination to a "Kosovar People"
320. The Netherlands argues on the basis of wording in the Rambouillet Accords draft,
that there is a "people" on whose behalf the Declaration was made on 17 February
2008. 349France also relies upon the reference to "the will of the people" contained
348WS Serbia, para. 584; WS Argentina, para. 85; WS Cyprus, para. 136; WS Romania, para. 131; WS
Russian Federation, paras. 91 and 97; WS Slovakia, paras. 15-16.
349WS Netherlands, para. 3.3.
134 in the Rambouillet Accords draft to assert "la nécessité impérieuse, réaffirmé àe
350
de nombreuses reprises, de respecter la volonté du peuple du Kosovo".
321. This reading of the Rambouillet Accords is not accurate. France misinterprets the
wording of the Rambouillet Accords, which do not refer whatsoever to "the need
to respect" the will of the people. As demonstrated in the Written Statement of
351 352
Serbia, among others, there was no agreement that the use of the word
"people" in this document refers only to the population of Kosovo, and no
recognition of the existence of a people entitled to exercise self-determination.
Furthermore, the text of the Rambouillet Accords only once uses the term
"people" while otherwise it refers to the "Kosovo population". The only passage
in the Rambouillet Accords where the word "people" is used reads as follows:
"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 ... ".
322. Whereas France argues "the need to respect the will of the people", the text only
mentions that "the will of the people" will be just one of a number of elements to be
taken into considerationto convenean internationalmeetingto determinea mechanism
for the final settlement. The other elements include the opinion of the relevant
authorities (i.e. the Serbian govemment) and the Helsinki Final Act, which in tum
353
includesterritorialintegrityand inviolabilityofboundaries astwo coreprinciples.
323. Albania in its Written Statement goes even further. Itcontends that, from the
wording of the preamble of the Constitutional Framework for Kosovo
promulgated by the Special Representative of the Secretary-General,
350WS France, para. 2.18.
351WS Serbia, paras. 341-342.
352WS Argentina, para. 99.
353See, also, infra paras. 425-432.
135 "the United Nations system has clearly recognised that Kosovo
is a specific entity with a specific people. This has been
accepted for a long time since the identity of the majority
population is clearly different from the population of Serbia."54
324. Three comments can be made in relation to this extraordinary assertion. First,
it is true that the Special Representative employed the phrase "the people of
Kosovo" to refer to the inhabitants of Kosovo. However, the use of this term is
misleading. When discussing the future status of Kosovo that should be
determined by a future process, he mentioned that this would be "in
accordance with UNSCR 1244 (1999)" and stated that this process "shall take
full account of relevant factors including the will of the people". Clearly, the
"will of the people" is not paramount but simply one factor among others - as
it was in the text of the Rambouillet Accords. This is not so when self
determination is applicable. In this case, and contrary to what is mentioned
both in the Rambouillet Accords and in the Preamble of the Constitutional
Framework, the "will of the people" is the only factor that alone determines the
fate of a territory. Second, irrespective of the interpretation to be given to the
Preamble, this text cannot override resolution 1244 (1999), as this is the source
of the powers of the Special Representative and of the Secretary-General with
regard to Kosovo. Third, whatever the interpretation of the wording of the
Preamble might be, by no means can this Preamble prove that "the UN system"
has recognised anything with regard to Kosovo and its inhabitants. The Court
is an organ of the United Nations system, and of course it has not yet decided
anything in this respect.
325. The authors of the UDI were indeed more cautious when dealing with this issue.
They have merely argued that after 2004, "[a]s at Rambouillet, all options for final
status were open, though it was generally acknowledged that the will of the
Kosovo people was a fondamental premise of the status negotiations." 355
However, their written contribution fails to explain how this alleged "fondamental
354WS Albania, para. 84.
" WC Authors, para. 4.03.
136 premise" was ever "generally acknowledged". In addition, the authors mention the
use of the wording "people of Kosovo" in Security Council resolution 1244
(1999) to support their views. 356 Serbia's Written Statement, as well as others,
have demonstrated that this is not equivalent to the recognition of the existence of
a people entitled to exercise self-determination: Annex II of the said resolution
uses interchangeably the expressions "people of Kosovo" and "all people in
Kosovo", and later on "all inhabitants of Kosovo". 357
326. The truth is simple and well known: neither the Security Council nor the Contact
Group have ever accepted to apply external self-determination to the inhabitants
of Kosovo, in spite of the insistence of the Kosovo Albanian leadership for such
recognition.
II lt is common knowledge that Kosovo is nota "Non-Self-Governing Territory"
327. Switzerland relies on the writings of James Crawford to assert that the "people" of
Kosovo have a right to exercise self-determination, separate from the population
of the Serbian State, because they constitute a "non-self-governing territory". 358
As explained in Serbia's Written Statement, Kosovo does not constitute a non
self-governing territory and the United Nations has never inscribed Kosovo in the
359
list of non-self-governing territories. Chapter XI of the UN Charter, as well as
the developments in the field of customary law related to its application during
decolonisation, are clearly not applicable to Kosovo.
III Dangerous constructions of the definition of a "people" based on ethnie
considerations can lead to discrimination
328. The approach taken by Albania and by the authors of the UDI in identifying the
alleged "people" is a cause for serious concern. Albania seems to suggest that the
356Ibid., para. 4.17.
357Security Council resolution 1244 (1999), Annex 2, paras. 4 and 5, Dossier No. 34.
358WS Switzerland, paras. 75 and 77.
359
WS Serbia, paras. 535-539.
137 "people" in Kosovo do not include all the inhabitants of Kosovo, but only ethnie
36
Kosovo Albanians. ° Confusingly, however, Albania argues that there is a
"Kosovar people" based on a comment made by the Special Representative of the
Secretary-General of the United Nations on 15 May 2001, which is not limited to
361
Kosovo Albanians.
329. A similarly problematic definition of a "people" based on ethnicity stems from the
self-definition of the authors of the UDI, who claim to represent the so-called
"people of Kosovo", namely "a group of which 90 percent are Kosovo Albanians,
who speak the Albanian language, and who mostly share a Muslim religious
identity."362Itappears that for the authors of the UDI, the "people of Kosovo" are
essentially defined by the Albanian features. This is not the way the practice of the
United Nations has qualified peoples to be entitled to self-determination but rather
an attempt to transform an ethnic/linguistic/religious minority within a State into a
majority within its own new State, and by the same token to transform other parts
of the population of the province of Kosovo into minorities within the "new State
of Kosovo". This way of defining the "people" is further evidence of the
discriminatory stance taken by the Kosovo Albanian leadership. The unacceptable
situation of Serbs and other non-Albanian inhabitants of Kosovo today seems to
reflect the way that this leadership understands "self-determination".
D. Exercise by the Inhabitants of Kosovo of an
"Internai Right to Self-Determination"
330. Even assuming the existence of an identifiable "people" in Kosovo, quod non, this
would not automatically entail the affirmation of the existence of a right of
external self-determination. Many States recognise that a "people" have a right to
exercise "internai" self-determination, meaning that the exercise of the right of
self-determination does not necessarily imply secession from the territorial State.
360
WS Albania, paras. 75 and 79.
361WS Albania, para. 84.
"62WC Authors, para. 8.40.
138 For example, Egypt states that "the right to internai self-determination, in
accordance with national legislation, might be established in certain circumstances
in line with human rights norms." 363 Even States in favour of the secession of
Kosovo have recognised an "internai right to self-determination" that could be
applicable to a so-called "people of Kosovo": Albania, 364 Denmark, 365 Estonia, 366
367 368 369
Germany, Ireland, and the Netherlands. An exercise of internai self
determination logically bars an exercise of external self-determination, as the
former is, as a matter of fact, only applicable within the territory of the State
concerned.
331. States that argue in favour of a right to "internai self-determination" describe the
content of such a right as an internai exercise of political self-determination.
Germany argues that it "means enjoying a degree of autonomy inside a larger
entity, not leaving it altogether but, as a rule, deciding issues of local relevance on
a local level." 370 According to Cyprus, it is a right of the population of the
territory as a whole that "[... ] giv[es] people the right to choose the form of
government and have access to constitutional rights." 371
332. The authors of the UDI, as well as some of the written statements of those States
supporting the secession of Kosovo, contend that internai self-determination is no
longer a possibility because of its alleged denial in 1989 and the human rights
violations occurring between 1989 and 1999. 372 However, it is an unquestionable
fact that Kosovo enjoys internai self-determination through the Provisional
Institutions of Self-Government, established in conformity with Security Council
resolution 1244 (1999) and the Serbian Constitution.
'6'
" " WS Egypt, para. 73.
364WS Albania, para. 75.
365
WS Denmark, p. 12.
366WS Estonia, p. 4 et seq.
" WS Germany, p. 33.
368WS Ireland, para. 30.
369WS Netherlands, para. 3.6.
'70
" WS Germany, p. 33.
" WS Cyprus, para. 135.
" WC Authors, para. 8.40.
139333. Indeed, without denying the human rights violations that occurred in Kosovo
during the Milosevic regime, it must be mentioned for the sake of having a
complete picture, that parallel institutions organised by the Kosovo Albanian
leadership functioned in the territory at all times during the 1990s with the
tolerance of the Yugoslavian/Serbian authorities. Self-organised elections were
able to be held during those years. Agreements to solve practical issues were even
373
concluded between the central authorities and the Kosovo Albanian leadership.
The crucial point is that Kosovo Albanians excluded themselves from the political
process of Yugoslavia/Serbia. Significantly, at the critical date, 17 February 2008,
there were no human rights violations perpetrated against the population in
Kosovo as a group, and if a "people" in Kosovo exists, it was able at this time, as
it continues to be able, to exercise internal self-determination.
E. An "External Right to Self-Determination" Is Not Applicable to Kosovo
334. This section will address the positions taken in the first stage of these proceedings
with regard to the application of the external aspect of self-determination to
Kosovo.
335. For some States, outside the colonial context, there is no right to self
determination that results in the lawful secession of territory from a pre-existing
State. It is for this reason that Japan considers that self-determination cannot
provide an appropriate legal interpretation of the case of Kosovo. 374 China asserts
that self-determination has only ever applied to situations of colonial rule or
foreign occupation, 375and that "[e]ven after colonial rule ended in the world, the
376
scope of application of the principle of self-determination has not changed."
377 378
Romania, and Slovakia are of the understanding that outside the colonial
context, self-determination should only be exercised in its internal form.
373For example, the St. Egidi [St Egidio] Education Agreement of 1 September 1996,reproduced in Annex 79
in Documentary Annexes accompanying WS Serbia.
374WS Japan, p. 4.
375WS China, para. Ill (a).
376
Ibid., para. Ill (b).
377WS Romania, para. 123.
140336. Other States appear to argue that international law is "neutral" when it cornes to
the legality of the secession of territory from a pre-existing State, outside the
colonial context, on the basis of an exercise of self-determination. Latvia thus
argues that "no rule of International Law prohibits the issuing of declaration of
independence as an outcome of the fulfilment of the right of self
determination. "379This argument lacks coherence. Indeed, if independence is "the
outcome of the fulfilment of the right to self-determination" then it is in
conformity with international law. However, Latvia fails to demonstrate that this
is the case of Kosovo. As seen, 380it is not. Evidently, either the principle of self
determination provides for a legal justification for the independence of Kosovo, or
it does not. The principle as such cannot remain "neutral": it is either applicable or
it is not.
337. Other States have accepted the possibility of a people exercising their right to self
determination in circumstances other than colonial rule or foreign occupation. The
Russian Federation considers that this may occur when a "people" is identified,
and recognised in the national law of a State as having a right to exercise external
self-determination. In respect to Kosovo, the Russian Federation notes that there
is no "people" of Kosovo for the purposes of external self-determination, nor any
recognition in the national Constitution that this autonomous province could be
lawfully seceded. 381
338. For their part, neither the States that promote Kosovo's secess10n nor the
authors of the UDI were able to provide the slightest piece of evidence
demonstrating that Kosovo would fall within the scope of what can be
considered the "normal" application of the principle of external self
determination (i.e. not so-called "remedial secession"). This unsurprising
conclusion of the state of the law has led them to make two different and
contradictory arguments: 1) to argue that the principle of self-determination is
not relevant, and 2) to invoke what they consider to be an exceptional case of
378WS Slovakia, para. 6.
379WS Latvia, p. 1.
380WS Serbia, paras. 5.70-5.88.
381WS Russian Federation, para. 91.
141 external self-determination applicable to part of an existing sovere1gn State,
namely the doctrine of "remedial secession". 382The authors of the UDI do not
appear to be concerned about self-contradiction as they invoked both these
arguments at the same time. 383 They finish by arguing that the Court has no
need to address the issue of the applicability of the principle of self
determination, 384thereby demonstrating their clear lack of confidence in the
soundness of their legal reasoning about the purported right to self
determination of the so-called "people of Kosovo".
F. States Promoting Kosovo's Secession and the Authors of the UDI Have Not
Demonstrated the Existence of a "Right to Remedial Secession"
339. None of the arguments put forward in the Written Statement of Serbia that
demonstrate the absence of a purported "right to remedial secession" 385 in
international law have been rebutted in the statements of those States that support
the secession of Kosovo, nor in the written contribution of the authors of the UDI.
Similarly, no written statement has adequately addressed the factual analysis of
the situation in Kosovo set out in the Written Statement of Serbia, which shows
that even assuming the existence of such a right, the conditions advanced by this
386
doctrine would not be met. Indeed, no serious legal analysis is really put
forward that would rebut Serbia's arguments on any of these points. Instead, there
is a series of flawed generalisations of certain facts, and a taking for granted that
the doctrine of "remedial secession" exists in international law and that Kosovo
would be a concrete case for its application.
382
WS Albania, para. 81; WS Estonia, p. 4 et seq; WS Finland, para. 7; WS Germany, p. 35; WS Ireland,
para. 30; WS Netherlands, paras. 3.6-3.7; WS Poland, para. 6.5; WS Slovenia, p. 2; WS Switzerland,
paras. 62-63; WC Authors, para. 8.40.
383WC Authors, paras. 8.38-8.41.
384
"The Court is not obliged to reach the issue of whether the Declaration of lndependence by the
representatives of the people of Kosovo reflected an exercise of the internationally-protected right of self
determination for there is no need to determine whether international law authorized Kosovo to seek
independence", WC Authors, para. 8.38.
385WS Serbia, paras. 589-638.
386WS Serbia, paras. 639-653.
142340. Only a small number of States that submitted written statements asserted that such
a "right of remedial secession" exists: Albania, 387 Estonia, 388 Finland, 389
Germany, 390 Ireland, 391the Netherlands, 392 Poland, 393 and Switzerland. 394 They all
present the application of this "right" as being "exceptional", "abnormal" or as an
395
"ultima ratio". These States reason that the secession of part of a territory of a
State is purportedly justified under international law because of gross human
rights violations carried out on that territory against a "people" by the government
of the territorial State.
341. Those States in favour of a right to "remedial secession" ground this "right" on
different legal bases in their written statements. These alleged legal bases have
already been addressed in the Written Statement of Serbia, in which Serbia
demonstrates their lack of legal substance.
342. The first such argument is based on an a contrario reading of the "safeguard
clause" in the Friendly Relations Declaration. This is an argument put forward by
Albania, which considers secession to be lawful where a government
discriminates on the basis of "race, creed or colour". 396 Switzerland is also
attracted to this a contrario reading of the "safeguard clause". 397 The safeguard
clause is also quoted, but not explained by the United Kingdom. 398
343. Other States agree with Serbia that this a contrario reading of the "safeguard
399 400
clause" is erroneous. Cyprus and Iran challenge the outcome of the a
contrario reasoning, asserting that in the case of large-scale human rights abuses,
387WS Albania, para. 81.
388WS Estonia, p. 4 et seq.
389WS Finland, para. 7.
'90
'91S Gennany, p. 34.
" WS lreland, para. 30.
" WS Netherlands, para. 3.7.
393WS Poland, para. 6.12.
394
WS Switzerland, para. 67.
395WS Estonia, p. 4 et seq; WS Finland, paras. 7 and 9; WS Germany, p. 35; WS Ireland, para. 30; WS
Switzerland, para. 67.
396WS Albania, para. 81.
397
WS Switzerland, para. 63.
'99WS United Kingdom, para. 5.30.
" WS Cyprus, para. 142.
400WS Iran, para. 4. I.
143 the territorial integrity of a State must nevertheless be respected. The Russian
Federation considers the a contrario reasoning flawed because it notes that the
primary purpose of the "safeguard clause" is to guarantee the territorial integrity
401
of States. Similarly, Spain disagrees with the a contrario reading based on the
travaux préparatoires to the Friendly Relations Declaration and a contextual
interpretation of the safeguard clause. 402
344. Sorne States have not relied solely on an a contrario reading of the safeguard
clause to support their argument in favour of the secession of Kosovo, but have
used other arguments in an attempt to bolster their position. Thus, whilst the
Netherlands relies on the a contrario reading of the safeguard clause, 403 it also
adds a "procedural condition" to the exercise of external self-determination, to the
effect that "all avenues must have been explored" before secession can be resorted
to.404 The very fact of these advisory proceedings following the General Assembly
request shows that this "procedural condition" is not met.
345. Apart from the a contrario reading of the safeguard clause, other States have
argued in favour of the lawfulness of the secession of Kosovo on the basis of two
conditions being met. The international law and state practice that purportedly
support the existence of these two conditions are gravely lacking. According to
405 406
Estonia and Germany, these two conditions are (1) a severe and long-lasting
refusal of internal self-determination, and (2) secession being the ultima ratio. The
Netherlands advances a similar thesis. 407 Ireland argues for the existence of these
same two conditions to justify secession, based on partial quotations of the
decision of the Supreme Court of Canada, 408ignoring the doubts cast by this same
Court as to the existence of "remedial secession" in international law. As is well
known, the Court concluded that "it remains unclear whether this... proposition
401WS Russian Federation, para. 88.
402WS Spain, para. 24.
40" WS Netherlands, para. 3.1O.
404
WS Netherlands, para. 3.11.
405WS Estonia, pp. 6-1O.
406WS Gennany, p. 35.
407WS Netherlands, para. 3.12.
408
WS lreland, para. 30.
144 actually reflects an established international law standard." 409These States fail to
establish any firm legal basis for the requirement of these two conditions as a
justification in law for secession.
346. The lack of State practice and opinio juris with respect to a so-called "right of
remedial secession" cannot be overcome by these arguments. As Cyprus notes,
"[w]hile the claim that there is a 'right of secession of last resort'
has been supported by some writers and by a contrario reasoning
such as that above, it is without support in State practice. It has
not emerged as a rule of customary law. It is not found in any
treaty. And it has no support from the practice of the UN." 410
347. Another State, Finland, has argued in favour of external self-determination on the
basis of what it calls the "abnormal" situation in Serbia. It cites three references to
support its argument of "abnormality" as justifying secession: (1) comments made
by the Commission of Jurists on the Aaland Islands question in 1920, in which the
Commission held that self-determination may emerge as a criterion for future
territorial settlement, 411 (2) the "safeguard clause" of the Friendly Relations
Declaration, 412 and (3) a statement made by the Supreme Court of Canada in the
Reference re Secession of Quebec case. 413Finland then argues that the situation in
Serbia was "abnormal" owing to five aspects of its reading of the history of
414
Kosovo. Consequently, Finland does not argue that the existence of gross
human rights violations are sufficient to justify the secession of Kosovo, but that
other factors must also be present. In this respect, Finland's argument is a mixture
of an assertion of a right to "remedial secession", and an argument in favour of
secession based on the sui generis character of the situation. This latter sui generis
argument is addressed in these Written Comments above in Chapter 5. 415
409Reference re Secession ofQuebec [1998] 2 S.C.R. 217, para. 135.
410WS Cyprus, para. 143 (footnote omitted).
411
WS Finland, para. 7.
412WS Finland, para. 8.
413WS Finland, para. 8.
414WS Finland, para. 10.
415
See supra paras. 140-142.
145348. States other than Serbia have made clear that a violation of human rights enjoyed
by a minority on its territory, does not entail a remedy under international law of
secession of territory. Cyprus stresses that whilst a State would entail
responsibility for breaches of human and minority rights, "the remedy for any
such breach is not the splitting up of the State." 416 Slovakia similarly notes that a
State cannot be "punished" for past violations of human rights by the secession of
part of its territory, unlike individuals who have been "punished" after being held
individually criminally responsible by the International Criminal Tribunal for the
Former Yugoslavia. 417
349. In sum, States invoking the existence of a "right to remedial secession" have
presented different conditions for its exercise. None of them has demonstrated
how this doctrine has ever been incorporated into positive international law. None
of them explains where the conditions for the exercise of this so-called "right" are
depicted under international law. All of them have failed to establish its existence
in international law.
G. The Account of the Situation in Kosovo Used to Justify Kosovo's
"Remedial Secession" Is Not Accurate
350. Serbia's Written Statement has already discussed each of these alleged conditions
supposedly leading to remedial secession. 418 This has also been addressed in the
present Written Comments. While not denying the existence of human rights
violations, Serbia explained that the picture drawn by the States supporting
Kosovo's secession and by the authors of the UDI is not accurate and does not
even correspond with the requirements constructed by the doctrine of "remedial
secession" 419
416WS Cyprus, para. 139.
417WS Slovakia, para. 28.
418WS Serbia, paras. 589-638.
419See supra paras. 82-85.
146 H. It Is Undisputed that at the Critical Date the Alleged Conditions for
"Remedial Secession" Were Not Present
351. The date of the UDI, namely, 17 February 2008, is the critical date to ascertain the
existence of the alleged "remedial secession" requirements that some States have
put forward, outlined above in Section E, such as an inability to exercise internai
self-determination, or the occurrence of large-scale human rights abuses.
352. Other States share Serbia's views in this regard. Cyprus argues that the population
of Kosovo cannot exercise a so-called right to "remedial secession", even if such a
right did exist, because the human rights violations ended in 1999, and
"[a]llegations of ill-treatment several years ago cannot be a justification for
allowing the dismemberment of a State now." 420
353. The Russian Federation similarly notes that in response to the human rights
violations that occurred in Kosovo during the 1999 crisis, the response of the
421
international community was to confirm the territorial integrity of the FRY, and
there was no suggestion at that time that Serbia had somehow "forfeited its right
to govern Kosovo" or that "the return of Kosovo under Serbian rule [was] not a
· bl · ,, 422
via e opt10n .
354. Similarly, Romania argues that the analysis must be made at the moment of the
UDI. Romania concludes that
"the general situation of Serbia, in particular regarding human
rights and people's participation to the govemment, meets
presently the generally recognized universal and European
standards, and soit did at the moment of the DOL Consequently,
there is no reason to believe that Kosovo, at the moment of the
DOI, have been under Serbia's control and its population would
have been victim of oppression, brutal violation of human rights
420WS Cyprus, para. 146.
421WS Russian Federation, para. 102.
422WS Russian Federation, para. 92.
147 or unjust exclusion from the exercise of its right of internai self
determination together with the rest of people of Serbia - which
would havejustified a case of 'remedial secession'." 423
355. However, some States have asserted that evidence of gross human rights
violations preceding this date, and which were no longer present at the critical
date, are nevertheless relevant for consideration. Germany argues that the
"reality" of the situation prevents Kosovo from continuing to be part of Serbia due
to past human right abuses. Although it acknowledges that, "the Serbia of today is
not the Serbia of the past",424it nevertheless argues that
"the reality is that the very legacy of the conflict, in particular
the atrocities of the late 1990s, make a return of Serb rule in
Kosovo unthinkable. Certainly, in the eyes of the Kosovars, if
not in the eyes of the international community, the viability of a
solution that would maintain Serb sovereignty over Kosovo
could not be established." 425
356. If this were true, it can be asked why the international community did not move in
the direction suggested by Germany at the very moment that these events
occurred, and particularly when the Security Council established the international
regime set out by Security Council resolution 1244 (1999). Moreover, it is not
enough to assert that the passage of time is unable to erase the external right to
self-determination; it must also be shown that previously such right existed.
357. In fact, what Germany advances is a kind of perennial argument of "remedial
secession". Even if the "remedy" is no longer necessary, the right to secede will
remain. The contradiction of the outcome with the aim of the purported rule is
self-evident.
358. The argument has also been advanced by the authors of the UDI, as well as by
States, that the referendum leading to the adoption of the Serbian Constitution of
423WS Romania, para. 156 (original emphasis).
424WS Gennany, p. 36.
425WS Gennany, p. 36.
148 2006 demonstrates the failure of Serbia to take into account the internai self
426
determination of the Kosovo Albanians. First, this is in the circumstances an
astonishing argument which is difficult to reconcile with their systematic boycott
427
of all Yugoslav/Serbian elections for decades. Second, as explained above, at
ballot stations in Kosovo where security and other legal requirements for voting
were met, all registered voters could vote at the referendum, regardless of their
428
ethnicity.
359. Consequently, none of the alleged conditions for the application of the external
aspect of self-determination, either in the form of the doctrine of "remedial
secession" or otherwise, exists in the case of Kosovo.
I. Conclusions
360. The present chapter has shown the :flawedcharacter of the arguments advanced by
the authors of the UDI and the States supporting them based on the principle of
self-determination. It has been demonstrated that in this particular case the
principle of self-determination provides no justification not to respect the
territorial integrity of Serbia. The following conclusions can be drawn:
(i) The right to self-determination may only be exercised by a "people"
as this word is understood as a term of art in international law.
(ii) Neither the Rambouillet Accords nor any United Nations instrument
recognises the applicability of the principle of self-determination to
the inhabitants of Kosovo.
(iii) There is no "Kosovar people" and Kosovo Albanians do not
constitute a separate "people".
(iv) Kosovo does not constitute a self-determination unit.
(v) The inhabitants of Kosovo, like all inhabitants in Serbia, are entitled
to exercise internai self-determination and are exercising it.
426WC Authors, paras. 5.16-5.17.
427See WS Serbia, paras. 273-278.
428See supra para. 120.
149(vi) Consequently, the inhabitants of Kosovo enJoy individual and
collective human rights, but not the right to exercise external self
determination.
(vii) States promoting secession and the authors of the UDI, being aware
of this, have invoked a purported exceptional "right to remedial
secession" as a way to try to find legal justification for the purported
independence of the territory.
(viii) The participants in these proceedings invoking "remedial secession"
have failed to prove the existence of this doctrine in international law,
and moreover, are not even able to present a unified view of the
alleged conditions to be met in order to invoke "remedial secession".
(ix) They have drawn a picture of the situation of Kosovo either before or
after 1999 which does not correspond with reality.
(x) Even assuming that the right of "remedial secession" exists, the
different conditions advanced would not be met in the case of
Kosovo.
(xi) The applicability of the principle of self-determination must be
analysed in light of the situation existing at the critical date, 17
February 2008.
(xii) Even assuming the existence of the doctrine of "remedial secession"
(quod non), at the critical date, the conditions of this so-called "right"
are not met and it is not possible to find any legal justification for
Kosovo' s secession under international law and hence providing a
legal justification for the UDI; The new doctrine of "perennial
remedial secession", advanced for the first time in these proceedings,
has no legal foundation and is contrary to the very purpose of the
"remedial secession" doctrine.
150 Chapter 9
THE UDI IS CONTRARY TO THE INTERNATIONAL LEGAL REGIME
ESTABLISHED BY SECURITY COUNCIL RESOLUTION 1244 (1999)
A. Introduction
361. In its Written Statement, Serbia has already demonstrated that Security Council
resolution 1244 (1999) affirms its territorial integrity and excludes any unilateral
attempt to change the international legal status of Kosovo, by mandating that any
final status of Kosovo must be reached by way of negotiations, the result of which
must be endorsed by the Security Council. 429
362. It has been further demonstrated that the UDI constitutes an ultra vires act of the
Assembly of Kosovo; contravenes the paramount administrative authority in
Kosovo established by Security Council resolution 1244 (1999) and encroaches
upon the reserved powers of the Special Representative of the Secretary-General;
challenges the competences of the Security Council by unilaterally terminating
Kosovo' s interim status and the mandate of international presences established by
said resolution; and, finally, violates procedural and substantive requirements for
the conduct of negotiations and a final settlement set forth in Security Council
resolution 1244 (1999). 430
363. Serbia will now address the arguments submitted by a certain number of States, as
well as by the authors of the UDI, concerning Security Council resolution 1244
(1999) and the legal regime it has established. In particular, it will be
demonstrated, contrary to the written statements of some States, that:
(i) Security Council resolution 1244 (1999) imposes obligations upon all
relevant actors.
429See, generally, WS Serbia, Chapter 8.
430See, generally, ibid., Chapter 9.
151 (ii) Security Council resolution 1244 (1999) guarantees the territorial
431
integrity of Serbia.
(iii) Any final settlement has to be agreed upon by the parties under the
auspices of the Security Council by way of negotiations excluding
any form of non-consensual independence for Kosovo.
(iv) The process leading to a final settlement has not yet corne to an end.
(v) Only the Security Council may make binding determinations as to the
conclusion of the final status process.
(vi) The illegality of the UDI has not been remedied by any alleged form
of acquiescence of United Nations organs.
B. Security Council Resolution 1244 (1999) Is Still in Force
364. It should be first noted, however, that is has been generally accepted that Security
Council resolution 1244 (1999) continues to remain fully in force, the UDI
notwithstanding. The only exception to this international consensus are the
Kosovo local authorities, which have taken the position that they are under no
obligation to abide by this resolution adopted by the Security Council under
Chapter VII of the Charter, 432 thus challenging the authority of the Security
Council for the maintenance of international peace and security.
C. Security Council Resolution 1244 (1999) Imposes Obligations upon
Ali Relevant Actors
I Introduction
365. It has already been noted that the authors of the UDI and some States recognising the
so-called "Republic of Kosovo" have strenuously argued that the UDI was not
431
On the continuity between the FRY and the Republic ofSerbia, see WS Serbia, Chapter 1, Section E, and
supra paras. 293-309.
432As the Secretary-General put it in his latest report on the implementation of Security Council resolution
1244 (1999) dated 17 March 2009: "The Kosovo authorities (... ) have repeatedly stated during the past
months that resolution 1244 (1999) is no longer relevant and the institutions of Kosovo have no legal
obligation ta abide by it."ort of the Secretary-General on the United Nations lnterim Administration
Mission in Kosovo, UN Doc. S/2009/149 (17 March 2009), para. 4 (emphasis added).
152 adopted by the Assembly of Kosovo and Provisional Institutions of Self-Government,
but rather that the UDI was an act emanating from a so-called "constituent body"
which met "to establish a new State". 433 The claim that the UDI did not emanate from
the Provisional Institutions of Self-Government has apparently been made in an
attempt to place the UDI and its creators outside the international legal regime
established by Security Council resolution 1244 (1999), thereby purportedly enabling
the authors of the UDI to unilaterally modify the international legal status of Kosovo.
366. As has been discussed in Chapter 1, 434 first, this claim is erroneous as evidence
clearly shows that it was the Assembly of Kosovo that as the Assembly of Kosovo
adopted the UDI on 17 February 2008, while the UDI was subsequently endorsed
by the President and Prime Minister of Kosovo. This shows that the UDI is clearly
an act of the Provisional Institutions of Self-Government in Kosovo.
367. Secondly, the mandatory international legal regime established by Security Council
resolution 1244 (1999) applies to all in Kosovo, contrary to what is implied in the
written contribution submitted by the authors of UDI. 435 Therefore, as will be
demonstrated below, the question whether the UDI was adopted by the Provisional
Institutions of Self-Government or by some other entity does not change the fact
that the authors of the UDI were bound by the international legal regime for Kosovo
and that the UDI should be examined for its accordance with this regime.
II The Provisional Institutions of Self-Government in Kosovo are bound by the
international legal regime established by Security Council
resolution 1244 (1999)
436
368. As already discussed in the Written Statement of Serbia, the Provisional
Institutions of Self-Government are bound by Security Council resolution 1244
(1999) and UNMIK regulations governing their work, in particular the
433See, e.g., WC Authors, para. 6.01.
434
435See supra paras. 31-41.
See WC Authors, para. 9.02.
436See, e.g., WS Serbia, paras. 873-880.
153 Constitutional Framework. Indeed, these institutions were created as part of the
international legal regime established by Security Council resolution 1244 (1999),
and derive all their powers from this resolution and the Constitutional Framework.
369. This is not a controversial point, so it will suffice to mention briefly that the
Constitutional Framework, which was adopted by the Special Representative of the
Secretary-General "pursuant to the authority given to him under United Nations
Security Council resolution 1244 (1999) of 10June 1999", 437 provides that:
"Kosovo shall be govemed democratically through legislative,
executive, and judicial bodies and institutions in accordance
with this Constitutional Framework and UNSCR 1244
(1999)."438
It further specifies that
"[t]he Provisional Institutions of Self-Govemment and their
officiais shall:
(a) Exercise their authorities consistent with the provisions of
UNSCR 1244 (1999) and the terms set forth in this
Constitutional Framework; [...]" 439
370. The Security Council confirmed the obligation of the Provisional Institutions of
Self-Govemment to fully comply with Security Council resolution 1244 (1999)
and the Constitutional Framework, not only by endorsing the Constitutional
440
Framework, but also by directly addressing Kosovo institutions. For example,
in April 2002, the Security Council
"encourage[d] the Provisional Institutions of Self-Govemment,
in full cooperation with the Special Representative and in strict
437Constitutional Framework, preambular para. 2.
438
Constitutional Framework, Article 1.1 (emphasis added).
43Ibid., Article 2 (a).
440See, e.g., UN Doc. S/PRST/2001/27 (5 October 2001), Dossier No. 52.
154 compliance with resolution 1244 (1999), to take on the tasks
assigned to them by the constitutional framework." 441
371. It is clear therefore that the Provisional Institutions of Self-Government, which
were created under the international legal regime established for Kosovo, are
legally bound by Security Council resolution 1244 (1999) and the Constitutional
Framework.
III Ali other relevant actors in Kosovo are bound by the international legal regime
established by Security Council resolution 1244 (1999)
372. The international legal regime for Kosovo created by Security Council resolution
1244 (1999) does not bind only the United Nations, its member States and the
Provisional Institutions of Self-Government in Kosovo. It also binds all other
relevant actors, as will be demonstrated in the following section.
(1) Security Council resolutions on Kosovo preceding resolution 1244 (1999) were
addressed to all relevant actors
373. The Security Council addressed the Kosovo Albanians from the very beginning
of its involvement in the Kosovo crisis, as is clear from its resolutions 1160
(1998), 1199 (1998), and 1203 (1998). Thus, in resolution 1160 (1998), the
Security Council emphasized that "all elements in the Kosovar Albanian
community should pursue their goals by peaceful means only" and "call[ed]
upon the authorities in Belgrade and the leadership of the Kosovar Albanian
community urgently to enter without preconditions into a meaningful dialogue
on political status issues". 442 This was repeated in the subsequent resolution
1199 (1998), 443 where, in addition, the Security Council strongly "demand[ ed]
that all parties, groups and individuals immediately cease hostilities and
441UN Doc. S/PRST/2002/11 (24 April 2002), p. 1.(emphasis added), Dossier No. 55.
442
Security Council resolution 1160 (1998), paras. 2 and 4, Dossier No. 9.
443Ibid., paras. 3 and 6.
155 444
maintain a ceasefire." Finally, the obligation of the Kosovo Albanians to
comply with Security Council resolutions on Kosovo could not be made clearer
in resolution 1203 (1998) in which the Council
"4. Demands also that the Kosovo Albanian leadership and all
other elements of the Kosovo Albanian community comply fully
and swiftly with resolutions 1160 (1998) and 1199 (1998) and
cooperate fully with the OSCE Verification Mission in
445
Kosovo".
374. In its resolution 1244 (1999), the Security Council recalled its previous resolutions
on Kosovo 446 and thereby expressly incorporated them, and the obligations they
impose on all relevant actors, into the international legal regime applicable to
Kosovo. Even more importantly, resolution 1244 (1999) itself created obligations
for all relevant actors in Kosovo.
(2) Security Council resolution 1244 (1999) created obligations
for all relevant actors in Kosovo
375. One of the main purposes of Security Council resolution 1244 (1999) is to create
conditions in which a political solution to the Kosovo crisis would be possible.
This by definition requires the involvement not only of Serbia, as the sovereign
territorial State, as well as the Security Council and other parts of the international
community, but also all other relevant actors in the crisis, viz. Kosovo Albanians.
The Security Council has both regulated the interim administration of Kosovo
pending a political settlement and determined the basic principles of a political
solution to the Kosovo crisis. In this regard, the Security Council created legal
obligations binding on all relevant actors by virtue of Chapter VII of the United
Nations Charter.
th
376. This is clear from the debate at the Security Council's 4011 meeting on 10 June
1999, when resolution 1244 (1999) was adopted. The obligations of the KLA
444Ibid., para. 1.
445Security Council resolution 1203 (1998), para. 4, Dossier No. 20.
446Security Council resolution 1244 (1999), preambular para. 2, Dossier No. 34.
156 under the resolution were mentioned by the Russian Federation, the United States,
Japan and Belarus, 447while the representative of the United Kingdom said that
"[t]his resolution applies also infull ta the Kosovo A/banians,
requiring them to play their full part in the restoration of normal
life to Kosovo and in the creation of democratic, self-governing
institutions. The Kosovo Albanian people and its leadership
must rise to the challenge of peace by accepting the obligations
of the resolution, in particular to demilitarize the Kosovo
Liberation Army (KLA) and other armed groups." 448
377. The ambassador of Germany, speaking on behalf of the European Union, as well
as on behalf of Bulgaria, the Czech Republic, Estonia, Hungary, Latvia, Lithuania,
Poland, Romania, Slovakia, Cyprus, Iceland and Liechtenstein, made the
following statement:
"The European Union affirms its full support for the solution to
the Kosovo crisis outlined in the resolution and calls upon the
authorities of the Federal Republic of Yugoslavia and all
Kosovo Albanians fully and unconditionally to cooperate with
the international security presence and the international civil
presence to that end." 449
378. Sorne of the obligations under Security Council resolution 1244 (1999) are couched
in very specific terms, while some are more general, depending on the subject
matter of the obligation in question. Thus, when it needed to ensure swift
disarmament of the KLA, the Security Council was very precise in demanding that
"the KLA and other armed Kosovo Albanian groups end immediately all offensive
actions and comply with the requirements for demilitarization ..." 450 Similarly, due
447Mr. Lavrov (Russian Federation), UN Doc. S/PV.4011 (10 June 1999), p. 8, Dossier No. 33; Mr. Burleigh
(United States),bid., pp. 14-15; Mr. Satoh (Japan), UN Doc. S/PV.4011 (Resumption 1) (10 June 1999),
p. 3,ossier No. 33; Mr. Sychov (Belarus), ibid., p. 6.
448Mr. Greenstock(United Kingdom),UN Doc. S/PV.4011(10June 1999),p. 18(emphasisadded), Dossier No.33.
449
Mr. Kastrup (Germany), UN Doc. S/PV.4011 (Resumption 1) (10 June 1999), p. 2, Dossier No. 33.
450Security Council resolution 1244 (1999), para. 15, Dossier No. 34.
157 to the need for the rapid early deployment of international civil and security
presences, the Security Council "demand[ ed] that the parties cooperate fully in their
deployment." 451 In contrast, by deciding that a political solution to the Kosovo crisis
shall be based on the general principles outlined in annexes 1 and 2 to the
resolution, the Security Council imposed general - but not less binding - obligations
on the parties. For example, these include the obligation to participate in "a political
process towards the establishment of an interim political framework agreement
providing for a substantial self-government for Kosovo". 452 The facilitation of this
political process is one of the tasks of the international civil presence.453
379. The obligations set forth by the Security Council have been further developed and
specified in the practice of implementing resolution 1244 (1999). In this context, it
should also be noted that in addition to obligations directly imposed by resolution
1244 (1999), all relevant actors also have obligations that flow from decisions and
regulations adopted by UNMIK. As already discussed in the Written Statement of
Serbia,454 resolution 1244 (1999) provided UNMIK, headed by the Special
Representative of the Secretary-General, with the supreme administrative authority
over Kosovo. This means that the binding force of UNMIK decisions and regulations
upon all persons in Kosovo has its source in Security Council resolution 1244 (1999).
380. The binding character of the international legal reg1me created by Security
Council resolution 1244 (1999) and its applicability to all relevant actors,
including the Kosovo Albanian community, was repeatedly confirmed by the
Security Council and the Secretary-General.
(3) Subsequent practice of the Security Council
381. When in April 2000 a mission of the Security Council visited Kosovo, its terms of
reference clearly showed an understanding that all relevant parties are bound by
451Ibid., para. 8.
452
Ibid., Annex 1,para. 6.
453Ibid., para. 11 (e).
454WS Serbia, para. 705 et seq.
158 Security Council resolution 1244 (1999). The objectives of the m1ss10nwere
defined as follows:
"2. The Council has therefore decided to send a mission there
headed by Ambassador A. Chowdhury on 28 and 29 April 2000,
with the following objectives:
(a) To look for ways to enhance support for the implementation
ofresolution 1244 (1999);
(b) To observe the operations of the United Nations Interim
Administration Mission in Kosovo (UNMIK) and its activities
and to gain a greater understanding of the situation on the
ground in order to comprehend better the difficult challenges
faced by UNMIK;
(c) Ta convey a strong message ta all concerned on the need ta
reject all violence; ensure public safety and order; promote
stability, safety and security; support the full and effective
implementation of resolution 1244 (1999); and Jully cooperate
with UNMIK ta this end;
(d) To review ongoing implementation of the prohibitions
imposed by Security Council resolution 1160 (1998) of 31
March 1998." 455
382. The Security Council conducted a further mission to Kosovo in June 2001, the
terms of reference of which were worded almost identically as those of the
previous mission. 456
383. In October 2001 the Security Council adopted a presidential statement, which in
the relevant part stated:
"The Security Council welcomes the elections to be held on 17
November as a basis for the establishment of democratic self-
455UN Doc. S/2000/320 (17 April 2000) (emphasis added), Dossier No. 42.
456UN Doc. S/2001/600 (19 June 2001), Dossier No. 50.
159 governmg institutions as specified in the Constitutional
Framework for Provisional Self-Government, under which the
people of Kosovo, Federal Republic of Yugoslavia, will enjoy
substantial autonomy in accordance with resolution 1244
(1999). It emphasizes the responsibility of Kosovo's elected
leaders ta respect Jully the final status provisions of resolution
1244 (1999). It reaffirms its commitment to the full
implementation of resolution 1244 (1999), which remains the
basis for building Kosovo's future." 457
384. This was reaffirmed in the Security Council presidential statement issued m
November 2001, with the following words:
"The Security Council reaffirms the statement of its President of
5 October 2001 (S/PRST/2001/27). It encourages the further
development of a constructive dialogue between the United
Nations Interim Administration Mission in Kosovo (UNMIK)
and the authorities of the Federal Republic of Yugoslavia. It
emphasizes the responsibility of the provisional institutions of
self-government and all concerned to respect fully the final
status provisions of resolution 1244 (1999). It underlines its
continued commitment to the full implementation of resolution
1244 (1999), which remains the basis for building Kosovo's
future."458
385. Subsequently, in response to the adoption by the Kosovo Assembly of a resolution
affirming Kosovo's "territorial integrity" and the nullification of that resolution by
459
the Special Representative of the Secretary-General, in May 2002, the Security
Council adopted a presidential statement which inter alia stated that
"The Security Council calls on Kosovo 'selected leaders tafocus
their attention on the urgent matters for which they have
457UN Doc. S/PRST/2001/27 (5 October 2001) (emphasis added), Dossier No. 52.
458UN Doc. S/PRST/2001/34 (9 November 2001) (emphasis added).
459WS Serbia, paras. 701-702.
160 responsibility, in accordance with resolution 1244 (1999) of 10
June 1999 and the Constitutional Framework. Concrete
progress in those areas is of paramount importance to improve
460
the life of the people."
386. In February 2003, the Security Council called upon all communities to work
towards the goal of a multiethnic and democratic Kosovo, and "actively
participate in public institutions as well as decision-making process, and integrate
into society" and condemned "all attempts to establish and maintain structures and
institutions as well as initiatives that are inconsistent with resolution 1244 (1999)
and the Constitutional Framework." The Council also called for the authority of
UNMIK "to be respected throughout Kosovo". 461
(4) Subsequent practice of the Secretary-General
387. The binding character of the obligationsunder Security Council resolution 1244(1999)
and UNMIK regulations upon all relevant actors and their duty to cooperate in the
implementation of this international legal regime has been repeatedly emphasized by
the United Nations Secretary-General.For example, his first report on implementation
of SecurityCouncilresolution 1244(1999) interaliastatesthe following:
"I strongly encourage all ethnie communities and parties in Kosovo
to demonstrate restraint and tolerance and fully cooperate with the
international community in the implementation of tasks defined by
the Security Council in its resolution 1244(1999). I wish to remind
them that the only legitimate path to any future political settlement
for Kosovo is through the mechanisms envisioned in Council
resolution 1244 (1999). I also urge the Govemment of the Federal
Republic of Yugoslavia to cooperate fully with the provisions of
462
that resolution."
460UN Doc. S/PRST/2002/16 (24 May 2002) (emphasis added), Dossier No. 56.
461UN Doc. S/PRST/2003/1 (6 February 2003), Dossier No. 61.
462Report of the Secretary-General on the United Nations lnterim Administration Mission in Kosovo, UN
Doc. S/1999/779 (12 July 1999), para. 119,sier No. 37.
161388. Even more explicit 1s his April 2003 report which contains the following
statement:
"The tendency of local Kosovo Albanian leaders and the
Provisional Institutions to focus on symbols and image and to
publicly promote positions contrary to resolution 1244 (1999) is
a cause for concern, as well as the action taken by the Kosovo
Assembly on higher education and its refusal to take into
account vital interests of minority communities. This amounts to
a direct challenge to resolution 1244 (1999) and the
Constitutional Framework, as well as to UNMIK's authority
under those documents.
All local leaders should adhere strictly to resolution 1244
(1999) and the Constitutional Framework. They should also
keep their political differences separate from the activities of the
Provisional Institutions, and work together to consolidate these
institutions by focusing on substance and practical results,
instead of holding institutional development hostage to political
or ethnie differences. The Provisional Institutions and
municipalities need to focus on their areas of responsibility and
on what matters directly to all the people of Kosovo, including
463
those waiting to return."
IV Conclusion
389. In conclusion, Security Council resolution 1244 (1999) created an international
legal regime for Kosovo that binds all relevant actors. The binding international
obligations for all relevant actors are contained in the resolution itself but also in
documents implementing it, most notably regulations adopted by the Special
463Report of the Secretary-General on the United Nations lnterim Administration Mission in Kosovo, UN
Doc. S/2003/421 (14April 2003), paras. 53-55 (emphasis added), Dossier No. 62.
162 Representative of the Secretary-General in Kosovo. This international legal
regime is applicable not only to the Provisional Institutions of Self-Government
(which are specifically bound by it by the Constitutional Framework) but also to
all other actors of relevance for the solution of the Kosovo crisis. In particular, as
is clear from the practice of the Security Council and the Secretary-General, this
international regime applies, without exception, to the political leaders of all
communities in Kosovo.
D. The lnterpretation of Security Council Resolution 1244 (1999)
390. At this point it is pertinent to deal, as a preliminary matter, with some general
issues of interpretation of Security Council resolution 1244 (1999). More
specifically, it will be demonstrated that limitations on the sovereignty of States
concerned cannot be presumed; that Security Council resolution 1244 (1999) has
to be interpreted in light of the then ongoing military action; that its primary goal
is to secure human rights for the inhabitants of Kosovo; and, finally, that the
drafting history of Security Council resolution 1244 (1999) excludes the
possibility of a unilateral secession of Kosovo.
I General rule of interpretation
391. Under Chapter VII of the Charter, the Security Council has broad powers to
provide for enforcement measures which may significantly encroach upon the
sovereign rights of member States, including limiting the right of a member State
to exercise the full range of sovereign rights over its own territory for a certain
period, such as in the case of Serbia's right to govern Kosovo.
392. In such cases, Security Council resolutions must be narrowly construed since there
is a presumption against limitations of the rights of States, in particular where a
given resolution is ambiguous. As put by two learned commentators on the Charter:
" Chapter VII resolutions should, in general, be interpreted
narrowly. If their wording is ambiguous, this most often reflects
163 a compromise and therefore indicates that no agreement has
been reached on a certain measure. Such agreement of nine
members and the absence of objection by the permanent
members, however, constitute the sole authority upon which this
measure rests. In their absence, the basis of such a far-reaching
encroachment upon the rights of a member State as caused by
enforcement action is doubtful. For SC resolutions under
Chapter VII, it seems therefore warranted to have recourse to the
old rule of interpretation according to which limitations of
sovereignty may not be lightly assumed." 464
393. Applied to the case at hand, this means that the temporary restrictions on the
administration of Serbia over Kosovo imposed by Security Council resolution
1244 (1999) must be interpreted narrowly. Itwould be astonishing to use them as
the basis for an interpretation that would result in a right of Kosovo to secede.
Moreover, Security Council resolution 1244 (1999), unlike other Security Council
resolutions, 465 including resolutions adopted during the very same period of
time, 466 does not contain any reference whatsoever to the right of self
determination,467 and even less a reference to a right of secession. 468 To the
contrary, it instead explicitly refers to and reaffirms the territorial integrity of
Serbia, and this is the context in which the temporary restrictions on the
administration of Serbia over Kosovo must be interpreted. 469
II The background of Security Council resolution 1244 (1999):
the military intervention against the FRY
394. Security Council resolution 1244 (1999) was drafted while the military
intervention against the FRY was ongoing, which intervention blatantly violated
the prohibition of the use of force, as contained in Article 2, paragraph 4 of the
464J. Frowein & N. Krisch, "Introduction to Chapter VII", in B. Simma (ed.), The Charter of the United
nd
465Nations: A Commentary, Vol. I (2ed., 2002), p. 713, MN. 35 (footnote omitted).
466See WS Serbia, para. 785 et seq.
WS Serbia, para. 788.
467See, also, WS Slovakia, para. 24.
468See generally WS Serbia, Chapters 8 and 9.
469See, also, infra para. 41 1et seq.
164 Charter of the United Nations. Even more important in the current context, this
unilateral use of force also seriously challenged the primary responsibility of the
Security Council for the maintenance of international peace and security, since it
was undertaken without any form of Security Council approval or endorsement.
395. Given this background, the very first preambular paragraph of Security Council
resolution 1244 (1999) not only referred to the purposes and principles of the
Charter of the United Nations, but also firmly recalled "the primary responsibility
of the Security Council for the maintenance of international peace and security".
The Security Council also determined that the situation in the region continued to
constitute a threat to international peace and security.470
396. These two paragraphs of Security Council resolution 1244 (1999), when read
together, confirm that the Security Council decided to take all necessary steps to
deal with the situation and keep it fully under control and subject to its authority.
This shows that Security Council resolution 1244 (1999) excludes any form of
unilateral action without the Security Council's endorsement or approval.
397. Erroneously interpreting Security Council resolution 1244 (1999) as containing or
endorsing a unilateral right of secession contrary to general international law would
establish a causal link between the illegal use of military force that preceded this
resolution and a non-consensual territorial change attempted by the UDI.
398. The interpretationthat Security Council resolution 1244 (1999) excludes any right of
secessionis further supportedby the positiontaken by Stateshaving participatedin the
aerial bombing of the FRY. Prior to their military campaign, they themselves had
merelyadvocatedan enhancedautonomystatusof Kosovo within the FRY.Besides,the
self-proclaimedgoal of the operationwas not to bring abouta secessionof Kosovo,but
471
ratherto solelyavoidan alleged"humanitariancatastrophe". For example,the Berlin
EuropeanCouncilof24/25 March 1999 expressis verbishad stated:
470See preambular para. 12.
471NATO Press release 1999 (040), 23 March 1999.
165 "The international community's only objective is to find a
political future for the Kosovo, on the basis of the sovereignty and
territorial integrity of the Federal Republic ofYugoslavia ... ". 472
III The object and purpose of Security Council resolution 1244 (1999):
securing human rights for ail inhabitants of Kosovo
399. The understanding that Security Council resolution 1244 (1999) aims at protecting
the human rights of all ethnie groups in Kosovo underlies the whole text of the
resolution. This is also evidenced by the preamble of the resolution, which assists in
its interpretation by giving guidance as toits abject and purpose. 473 Security Council
resolution 1244 (1999) specifically provides that it was adopted "to resolve the
grave humanitarian situation in Kosovo, Federal Republic of Yugoslavia". 474
400. As already discussed, as a general rule of interpretation, it cannot be presumed that
the Security Council wanted to further encroach upon the sovereignty of the FRY
than that which was considered necessary to prevent future human rights
violations in Kosovo. Accordingly, only measures which are necessary and
required to resolve this situation fall within the ambit of the resolution.
401. Moreover, by recalling the mandate of the International Tribunal for the Former
475
Yugoslavia, the Security Council further underlined that it wanted to focus on
the individual responsibility for crimes committed in Kosovo during the con:flict.
This again underlines the aim of Security Council resolution 1244 (1999), namely
to prevent the repetition of any form of serious human rights violations, and, in the
long term, to provide for a final status where such acts were to be excluded.
472Berlin European Council, 24 and 25 March 1999, Presidency Conclusions, Part Ill - Statements on Kosovo,
available at: http://www.europarl.europa.eu/summits/ber2 _en.htm#partlll. This is also confirmed by statements
made during these very proceedings. Thus, for example, France states: "les Etats membres de l'Otan ont alors
jugé devoir recourir la force contre Belgrade, afin de mettre un tàune escalade continue de la violence
menacant gravement la sécurité de l'ensemble de lapopulation civile au Kosovo (... )",WS France, para. 16.
473M. C. Wood, "The Interpretation of Security Council Resolutions", 2 Max Planck Yearbook of the United
Nations (1998), p. 86.
474
475Preambular para. 4.
See preambular para. 8.
166402. In this regard, a final status guaranteeing substantial autonomy and self
government of Kosovo within the FRY was considered a sufficient guarantee for
the protection of human rights of the population of Kosovo.
403. It is in line with this, that the Security Council not only excluded any form of
unilateral secession by:
"Reaffirming the commitment of all Member States to the
sovereignty and territorial integrity of the Federal Republic of
Yugoslavia ... "
but also reaffirmed its call:
"for substantial autonomy and meaningful self-administration
for Kosovo"
which again a contrario excludes any possibility of a unilateral secession against
476
the will of the territorial State, i.e. Serbia.
IV Drafting history of Security Council resolution 1244 (1999)
404. Serbia has already demonstrated that the drafting history of Security Council 1244
(1999) does not provide support for the proposition that the resolution provides for
477
a unilateral right of secession for a minority of the population of the FRY. At
the time, none of the members of the Security Council mentioned or even alluded
to the possibility of independence for Kosovo and even less to the possibility of a
unilateral secession.
405. Still, attempts have been made to interpret the statement of the then representative
of the FRY as an acknowledgment that this resolution contains a right of
secession, 478which is a deliberate misreading of his statement.
476Asto the temporal scopeof applicationofthis guarantee ofSerbia's territorialintegrityseeinfrapara. 414 etseq.
477See WS Serbia, Chapters 8 and 9, and, in particular, para. 757 et seq. and para. 913 et seq.
478WS United States, p. 78-79; WC Authors, para. 4.22.
167406. At the time, Mr. Jovanovic stated:
"Furthermore, in operative paragraph 11, the draft resolution
establishes a protectorate, provides for the creation of a separate
political and economic system in the province and opens up the
possibility of the secession of Kosovo and Metohija /rom Serbia
and the Federal Republic ofYugoslavia." 479
407. As becomes clear from the first part of the quotation, Mr. Jovanovic was merely
describing the defacto situation provided for by Security Council resolution 1244
(1999) as a "protectorate". This was a political statement. It merely served to
describe, in non-technical terms, the exercise of governmental authority in Kosovo
by the United Nations, as already outlined in Serbia's Written Statement. 480
408. Similarly, the reference to the "possibility" of secession by Kosovo could only be
understood also as a political statement and a warning that the formula used in
paragraph 11 might be misused for a future attempt to secession. Even more
importantly, nothing in Mr. Jovanovic's statement can be understood as a
renunciation of Serbia' s sovereignty over Kosovo.
VSecurity Council resolution 1244 (1999) and its predecessors 481
409. It must also be pointed out that Security Council resolution 1244 (1999) recalled
previous resolutions of the Security Council dealing with the situation in Kosovo.
All of them provided for an autonomous status of Kosovo as part of the FRY, and
also provided for a negotiated solution, as was inter alia admitted by the United
K . d 482
mg om.
410. It is true that Security Council resolution 1244 (1999) was different in nature, as
compared to resolutions 1160 (1998), 1199 (1998), 1203 (1998) and 1239 (1999),
479
UN Doc. S/PV.4011 (10 June 1999), p. 6, Dossier No. 33.
480WS Serbia, Chapter 8.
481For a further analysis see WS Romania, paras. 26-40.
482WS United Kingdom, para. 6.24.
168 in that it provided for international civilian and military presences in Kosovo.
However, there is absolutely no hint of a suggestion in this resolution that it
constituted a departure from the long-standing goal and requirement of the
Security Council to bring about a negotiated settlement to the situation in Kosovo,
which would respect the territorial integrity of the FRY, and be endorsed by the
Security Council.
E. The Reaffirmation of the Territorial lntegrity of the FRY/ Serbia
411. It has been further argued that the references to the territorial integrity of the FRY
contained in Security Council resolution 1244 (1999) are, on the one hand, not
legally binding as such, 483 and on the other hand, only applicable to the "interim
phase" until a final settlement has been reached. 484 Finally, it has also been argued
that the protection of Serbia's territorial integrity is of limited duration, given the
situation prevailing during the current interim phase. 485All of these propositions
are unfounded.
I The legal character of the reaffirmation of Serbia's territorial integrity
412. As already shown, the notion of territorial integrity fundamentally underpins the
entire system of international law. 486 It is thus not a right that is granted by the
Security Council but is inherent in sovereignty and, as such, is protected by the
United Nations Charter. Accordingly, there was no need for the Security Council
to decide that Serbia's territorial integrity must be safeguarded, given that its
487
territorial integrity is already protected under general international law. This is
483WS Austria, para. 31; WS Czech Republic, p. 9; WS Denmark, pp. 10-11; WS France, para. 2.28; WS Poland,
para. 7.2; WS Switzerland, para. 43; WS United Kingdom, para. 6.12; WC Authors, para. 9.29.
484
WS Albania, paras. 101-102; WS Austria, para. 32; WS Czech Republic, p. 10; WS Denmark, p. 11; WS
France, para. 2.31; WS Poland, para. 7.2; WS Switzerland, para. 45; WS United Kingdom, para. 6.12; WC
Authors, para. 9.30.
485WS Germany, pp. 38 and 40; WS Ireland, para. 24; WS Luxembourg, para. 26; WS United States, pp. 68-74.
486WS Serbia, Chapters 6 and 8. See, also, supra para. 228 et seq.
487
WS Serbia, Chapters 6 and 8.
169 the reason why the Security Council simply reajjirmed Serbia' s territorial integrity
488
- a fact acknowledged by various written statements.
413. This is also confirmed in Security Council practice with regard to other situations
where the Council has similarly reafjirmed the territorial integrity of a given
member State. 489
II The reaffirmation of Serbia's territorial integrity is not limited
to the interim period
414. It has also been argued that the effect of the reaffirmation of Serbia's territorial
integrity is limited in time and that it does not extend to the issue of the final status
490
ofKosovo.
415. In that regard it has to be noted that the UDI does not and cannot amount to a final
settlement within the meaning of Security Council resolution 1244 (1999) - a
question that has already been addressed, 491 and that will also be further dealt with
below. 492 Accordingly, the interim status has not yet corne to an end and could not
have been brought to an end unilaterally. Thus, the reaffirmation of Serbia's
488 WS United States, p. 69; see also WS Argentina, paras. 81-82; WS Cyprus, para. 97; WS Russian
Federation, para. 58; WS Spain, para. 31 et seq; WC Authors, para. 9.29.
489
As one commentator put it with regard to the Council's practice conceming Iraq:
"Many resolutions conceming Iraq also reaffirm the commitment of ail member States to the
sovereignty and territorial integrity of Iraq. Thatmust mean that it is impossible ta unilaterally
disregard the territorial integrityf Iraq by military action. One may read theformai confirmation
of the territorial integrity of Iraq ta show that the Security Council had no intention ta question the
existing territory of the State of Iraq.wever, territorial integrity is a term of art in international
law. (... )herefore, a state particularly concerned by resolutions of the Security Council adopted
under Chapter VII must be able ta rely on the clear wording of that guarantee of territorial
integrity.raq would be able to argue that the Security Council has confirmed the territorial integrity
against any use of force and only the Council itself, by a specific decision taken under Chapter VIL
may authorize the disregard of territorial integrityrough the use of force."
See J.A. Frowein, "Unilateral lnterpretation of Security Council Resolutions - a Threat to Collective
Security?" in V.Gotz et al. (ed.), Liber amicorum Günther Jaenicke (1998), pp. 97, I08 (emphasis added;
footnote omitted).
490WS Albania, paras. 101-102; WS Austria, para. 32; WS Czech Republic, p. I0; WS Denmark, p. 11; WS
France, para. 2.31; WS Germany, pp. 38, 40; WS lreland, para. 24; WS Luxemburg, para. 26; WS Poland,
para. 7.2; WS Switzerland, para. 45; WS United Kingdom, para. 6.12; WS United States, pp. 68-74; WC
Authors, para. 9.30.
491WS Serbia, para. 913 et seq.
492See infra para. 436 et seq.
170 territorial integrity would continue to be fully applicable, even if one were to
consider that it does not cover the future status of Kosovo, which it does.
416. Besides, the guarantee of Serbia' s territorial integrity also refers to and
encompasses the determination of Kosovo's future status. In Security Council
resolution 1244 (1999), Serbia' s territorial integrity is reaffirmed "as set out in the
Helsinki Final Act and annex 2". Yet, there is no hint whatsoever in the Helsinki
Final Act that its principles are, in one way or the other, limited in time or not
applicable to specific types of situations.
417. The authors of the UDI, in a clear acknowledgment of its incompatibility with the
Helsinki Final Act, try to deprive the latter of any binding effect. 493 However, the
Helsinki Final Act has been widely recognised as an instrument of fondamental
importance,as it declaresand interpretsthe major principles of internationallaw. 494
418. It is also a truism that the Helsinki Final Act does not contain a general prohibition
to change boundaries 495 - yet any such change, in order to be in line with the
Helsinki Final Act, must necessarily take place "in accordance with international
496
law, by peaceful means and by agreement". This, in particular, presupposes the
agreement of the State which has title over the territory in question, i.e. Serbia.
419. With regard to the reference to Annex 2 in Security Council resolution 1244
(1999), it must be noted that it is contained in the paragraph of the resolution's
preamble that reaffirms Serbia's territorial integrity and which does not contain
any temporal limitation. Moreover, the reference to Annex 2 cannot incorporate a
temporal limitation because such a limitation would contradict the concomitant
reference to the Helsinki Final Act in the same provision; the plainly absurd result
of applying a temporal limitation is that the territorial integrity of Serbia would be
reaffirmed on a permanent basis by the reference to the Helsinki Final Act, and at
4" WC Authors, para. 9.30.
494Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports 1994, p. 23.
495
WC Authors, para. 9.30.
496Emphasis added.
171 the same time, for a limited duration, by the reference to Annex 2. This cannot be
the case.
420. Furthermore, the relevant provision in Security Council resolution 1244 (1999)
reaffirms the sovereignty and territorial integrity "of the Federal Republic of
Yugoslavia and the other States in the region". 497 If this guarantee were limited in
time, it would be limited not only with respect to Serbia, but also with respect to
"the other States in the region" which certainly could not have been the intention
of the Security Council.
421. Therefore, the guarantee of the sovereignty and territorial integrity of Serbia in
Security Council resolution 1244 (1999) incorporates the substantive content of
Annex 2, and in particular its para. 8, without at the same time also incorporating
its temporal limitations. This is confirmed by the fact that paragraph 1 of
resolution 1244 (1999) also makes a reference to Annexes 1 and 2 when it
provides that a political solution to the Kosovo crisis shall be based on the general
principles contained therein. This reference would make no sense if it were read as
including the same temporal limitations that apply to the content of the annexes,
because it cannot be that the Security Council intended the political solution to the
Kosovo crisis to be provisional.
422. The fact that the reaffirmation of Serbia's territorial integrity is not limited to the
interim status is also confirmed by yet another consideration. Limitations of
Serbia's sovereignty with regard to Kosovo are expressly mentioned in Security
Council resolution 1244 (1999), such as e.g. the obligation to withdraw military
forces from Kosovo. It would be surprising, to say the least, to consider a
fondamental limitation of Serbia's territorial integrity, namely the obligation to
surrender permanently a substantial part of its national territory, to be provided
only in a mere cross-reference to an Annex. 498
497Emphasis added.
498See, also, with regard to the more general dangers of accepting limitations to territorial integrity supra
para. 391-393.
172 III Security Council resolution 1244 (1999) did not touch upon
Serbia's title to territory
423. It has also been argued that the reaffirmation of Serbia's territorial integrity and
sovereignty contained in Security Council resolution 1244 (1999) must be
interpreted in light of the fact that by virtue of Security Council resolution 1244
(1999) the FRY had been denied defacto control over Kosovo in recent years. 499
This is plainly wrong, considering the fact that Security Council resolution 1244
(1999) deliberately decided not to detach Kosovo from the FRY, but only to
provide for its administration by the United Nations. Accordingly, Serbia has
retained full title with regard to Kosovo - a fact the Security Council specifically
reaffirmed by referring to and reiterating the notions of sovereignty and territorial
integrity of the FRY.
424. This was acknowledged, inter alia, by the Government of the United Kingdom in
the Behrami case before the European Court of Human Rights:
"The legal status of Kosovo was not, however, changed by
resolution 1244. It remained part of what was then the Federal
Republic of Yugoslavia. ,,soo
IV The reference to the Rambouillet Accords in Security Council
resolution 1244 (1999)
425. Much has been made in various written statements of the reference in Security
Council resolution 1244 (1999) to the Rambouillet Accords, 501 and in particular,
the reference to the "will of the people" contained therein, a matter that Serbia has
502
already addressed. Further to that, Serbia wishes to now add the following
comments.
499WC Authors, para. 9.31.
500European Court of Human Rights, Behrami and Behrami v. France, (Application No. 71412/01),
Observations of the Government of the United Kingdom, 22 September 2006, para. 8 (emphasis added).
501WS Albania, para. 98; WS Denmark, p. 10; WS Estonia, p. 14; WS France, paras. 2.31 et seq.; WS
Germany, pp. 39 et seq.; WS Luxembourg, para. 21; WS Switzerland, para. 47; WS United Kingdom,
para. 3.7; WS United States, pp. 64 et seq.; WC Authors, paras. 9.12 et seq.
502WS Serbia, paras. 340 et seq.
173426. The relevant part of the Rambouillet Accords, i.e. Chapter 8, Article 1, paragraph
3 thereof, contains several important features which have not been dealt with by
those States which merely refer to the "will of the people" mentioned therein. The
provision reads:
"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 thepeople, 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.,.so 3
427. First, said provision does not provide for a final settlement as such, but rather only
for a mechanism for a final settlement, i.e. it only provides how an eventual final
settlement should be reached, but not what its content would be.
428. Second, the very term "international meeting" presupposes the involvement of
international actors, as well as the participation of the State most directly
concerned, namely Serbia, thus per se excluding any form of unilateral action by
any of the parties to the conflict.
429. Third, Chapter 8, Article 1, paragraph 3 of the Rambouillet Accords is the only
place where the text uses the notion of "people", while otherwise always referring
to the "population of Kosovo". Thus, it may be inferred that the "people" referred
to in Chapter 8, Art. 1,paragraph 3 is not identical to the population ofKosovo. 504
503Chapter 8, Art. I, para. 3 (emphasis added).
504It is therefore misleading to state that the Rambouillet Accords "prévoient explicitement que le réglement
défintif de la question du statut devra respecter la volonté depulation du Kosovo", but see WS
Switzerland, para. 46 (emphasis added). The same consideration applies,is mutandis, with regard to
the blunt assumption, made by Albania, that under the agreement the final status of Kosovo "would be
determined on the basis of the will of the people of Kosovo" (sic!), which assumption, besides, disregards
the other factors to be also taken into account. is telling that, inter alia, Denmark in its Written
Statement on the one hand uses the term "will of the people" as used in the Rambouillet Accords, while
on the other refers to theulation of Kosovo", see WS Denmark, p. 10 (emphasis added).
174430. Fourth, the text provides that any such determination of a possible mechanism
shall by based on all these factors taken together, namely the will of the people,
opinions of relevant authorities, each Party's efforts regarding the implementation
of this Agreement, and finally the Helsinki Final Act. lt does so without setting up
any form of hierarchy among these four factors, which therefore have all to be
taken into consideration on an equal footing. Given the inclusion of these four
relevant factors (including the reference to the guarantee of territorial integrity as
contained in the Helsinki Final Act), it must be concluded that neither the
Rambouillet Accords nor Security Council resolution 1244 (1999) allow a
unilateral decision to be taken by one of the parties on the outcome of this process.
431. Fifth, the Kosovo Albanian side formally proposed during the Rambouillet
negotiations an explicit reference to the principle of self-determination and further
a proviso providing that the final status would be unilaterally determined or
confirmed by way of a referendum, which would have paved the way for a
unilateral declaration of independence after the three-year interim period provided
for in the Rambouillet Accords. 505 These Kosovo Albanian proposals were
rejected and were, on purpose, not included in the text. 506
432. Given this drafting history, the reference to the Rambouillet Accords in Security
Council resolution 1244 (1999) cannot now be interpreted as providing for the
possibility of unilateral action without endorsement by the Security Council.
VThe notion of self-government
433. lt has also been claimed that the reference to "self-government", as contained in
507
Security Council resolution 1244 (1999), encompasses both "self-government"
505See "Statement on Fundamental principles for a Settlement of the Kosovo Question lssued by the
Government of the Republic of Kosovo, 3 November 1998", para. 10, reprinted in H. Krieger, The
Kosovo conjlict and international law: an analytical documentation 1974-1999), pp. 165-166.
506
This fact was acknowledged in the Written Statement of the United States, see WS United States, p. 67.
507See op. paras. 11 (a), (c), as well as Annex 1, principle 6 and Annex 2, para. 8 of Security Council
resolution 1244 (1999), Dossier No. 34.
175 508
of Kosovo within Serbia, and the creation of an independent State. Yet, as has
already been demonstrated in detail in Serbia's Written Statement, the very term
"self-government"/"auto-administration" in the English and French versions of
Security Council resolution 1244 (1999), as well as the context within which it is
used, preclude any possibility of a unilateral declaration of independence by the
509
Provisional Institutions of Self-Government.
F. Security Council Resolution 1244 (1999) Excludes Any Unilateral Determination of
the Future Status of Kosovo by the Provisional Institutions of Self-Government
434. Serbia's Written Statement has already demonstrated that Security Council
resolution 1244 (1999) excludes any unilateral determination of the future status
of Kosovo and that, in particular, the notion of "political settlement" per se
excludes any attempt to unilaterally create a fait accompli. Sorne written
statements have clearly neglected this important point, as will be demonstrated
below.
I The requirement of negotiations
435. Paragraph 8 of Annex 2 clearly establishes that negotiations are to take place
between the parties. 510 In accordance with Annex 2, it is these negotiations, and
only these negotiations, that will lead to a final settlement and thereby also
provide for the final status of Kosovo to be agreed upon by the parties. It follows
that the references to the Helsinki Final Act and Annex 2 of Security Council
resolution 1244 (1999) in the preambular clause of Security Council resolution
1244 (1999) reaffirming Serbia's territorial integrity, must be understood as
precluding unilateral secession.
508WS United Kingdom, para. 6.15.
509WS Serbia, para. 732 et seq.
510WS Serbia para. 755 et seq.
176 II The notion of "political settlement"
436. Under paragraph 11 (a) of Security Council resolution 1244 (1999), UNMIK shall
exercise its competences "pending a final settlement". It has been argued that the
UDI constitutes such a "political settlement". 511
437. Yet, as was already demonstrated in various written statements, 512 the ordinary
meaning of "settlement" precludes a unilateral act such as the UDI as constituting
a "settlement". Furthermore, it must also be noted that the term
"settlement"/"règlement", as used in paragraph 11 (a) of Security Council
resolution 1244 (1999), is identical to the term "settlement", as used in Article 2,
paragraph 3, as well as Article 33, of the Charter of the United Nations, which
both preclude methods leading to any kind ofunilateral/ait accompli.
438. This requirement for both sidesto participate in order for a "settlement" to be reached
was also confirmed as early as 1999 in a statement by the Contact Group. 513 The
Chairman's Conclusions underlined the mandatory interlinkagebetween negotiations
and a political settlement by calling upon both parties to commit themselves "to a
process of negotiation leading to apolitical settlement". 514
439. As a matter of fact, such a link had previously been established in a more general
context in the Manila Declaration on the Peaceful Settlement of International
Disputes. 515 It has also to be noted that international practice commonly uses the
notion of "settlement" or "political settlement" in the context of agreed solutions
which have been reached, or are envisaged as being reached, by way of
511
WC Authors, para. 9.10; WS Austria, para. 29 et seq.; WS Albania, para. 98; see, based on the respective
conclusions, also WS France, para. 2.28 et seq. and para. 2.40 et seq.; WS Estonia, p. 14; WS Czech
Republic, p. 11; WS Latvia, para. 4; WS United Kingdom, para. 6.39 et seq.
512WS Russian Federation, para. 59 et seq.; WS Cyprus, para. 98; WS Romania, paras. 38 and 53 et seq.; WS
Spain, para. 76 et seq.; WS Argentina, para. 118; see also WS Germany, p. 40.
513For further relevant practice see also WS Serbia, para. 336 et seq. and para. 757 et seq.
514Contact Group, Chairman's Conclusions, London, 29 January 1999, reprinted in H. Krieger, The Kosovo
conjlict and international law: an analytical documentation 1974-1999 (2001), p. 254 (emphasis added).
515UN Doc. A/RES/37/10 (15 November 1982) (emphasis added): "10. States should, without prejudice to the
right of free choice of means, bear in mind that direct negotiations are a flexible and effective means of
peaceful settlement oftheir disputes.When they choose to resort to direct negotiations, States shouldnegotiate
meaningfully, in order to arrive at an early settlement acceptable to the parties. States should be equally
preparedto seekthe settlementoftheir disputesby the other means mentioned inthe present Declaration."
177 negotiations. In this regard, one could mention the "Agreement on a Comprehensive
Political Settlement of the Cambodia Conflict", 516the "Declaration on Measures for
a Political Settlement of the Georgian/Abkhaz Conflict", 517 or the "Treaty on the
Final Settlement with Respect to Germany of September 12, 1990". 518
440. Accordingly, had the Security Council wanted to provide for the possibility of a
unilateral solution, thereby deviating from common practice, it would have used
different wording or indicated in some other manner that a non-consensual
solution, neither agreed upon with the territorial State nor endorsed by the
Security Council, had also been contemplated.
III The notion of "political settlement" and the overall system of collective security
set up by the Charter of the United Nations
441. Further, any interpretation of a "political settlement" that would allow unilateral
steps, such as the UDI, would be incompatible with the overall system of
collective security set up by the Charter of the United Nations. Under the Charter,
it is for the Security Council to deal with threats to international peace and
security by taking measures under Chapter VII.
442. Specifically with regard to Security Council resolution 1244 (1999), its preambular
paragraph 1 underlined the primary responsibility of the Security Council for the
maintenance of international peace and security. When this paragraph is read
together with the determination in preambular paragraph 12that the situation in the
region did constitute a threat to international peace and security and the fact that the
Security Council acted under Chapter VII of the Charter, this means that it is the
Security Council's sole prerogative to definitely settle the situation.
443. Itwould be surprising, to say the least, to assume that the Security Council had
granted the parties the right to unilaterally provide for any form of alleged "final
516Agreement on a Comprehensive Political Settlement of the Cambodia Contlict (23 October 1991),
reprinted in 31 ILM 183 (1992).
517Declaration on Measures for a Political Settlement of the Georgian/Abkhaz Conflict (4 April 1994), UN
Doc. S/1994/397 (5 April 1994), Annex 1.
518Treatyonthe FinalSettlementwith Respectto GermanyofSeptember 12,1990,reprintedin29 ILM 1186(1990).
178 settlement", even more so since the Council had decided to remain "actively" seized
of the matter. 519As a matter of fact, any such alleged carte blanche that would have
allowed a unilateral change of the international legal status of a territory subject to
Security Council administration, either for the territorial State or the population
concemed, would carry the inherent risk of again destabilizing the region and
thereby necessitating renewed Security Council action under Chapter VII.
444. Moreover, acknowledging a unilateral right of secession that could be exercised
with regard to a territory currently under the United Nations administration would
also run the risk that in the future the Security Council and its permanent members
would be less able to agree on measures that would involve the United Nations'
administration of a territory. Even more problematic would be the risk that the
respective territorial States concerned would, unlike the FRY in case of Security
520
Council resolution 1244 (1999), no longer accept any such administration for
fear of it leading to a secession of a part of their territory.
445. Even the authors of draft Security Council resolution of 17 July 2007 - Belgium,
France, Germany, Italy, the United Kingdom, and the United States - considered
that "the unresolved situation in Kosovo continues to constitute a threat to
international peace and security." 521
446. It is for this reason that they themselves, contrary to their current position before
522
the Court in these proceedings, had still considered in July 2007, i.e. only seven
months before the issuance of the UDI, that a further Security Council resolution
was necessary in order to move the situation forward. 523This necessarily implies
that from their viewpoint, too, a unilateral secession was not in line with Security
519
520See Security Council resolution 1244 (1999), para. 21, Dossier No. 34.
The agreement of the FRY to the international regime for Kosovo was acknowledged in preambular
paragraph 8, as well as in operative paragraphs 2 and 5 of Security Council resolution 1244 (1999).
521S/2007/437 (17 July 2007) (Provisional), preambular paragraph 14; text to be found in Annex 36 in
Documentary Annexes accompanying WS Serbia.
522See WS United States, p. 83; WS France, para. 2.70 et seq; see, also, WS Germany, p. 40, simply stating
that "the Security Council took up the matter but was itselfunable to make a decision", thus deliberately
keeping silent on the legal requirement of another Security Council resolution. The Written Statement of
the United Kingdom, para. 6.16 et seq., refers to the non-action of the Security Council after the UDI
rather than underscoring the need for a new resolution to provide for a final settlement.
523See WS Serbia, paras. 818-821.
179 Council resolution 1244 (1999). It is also noteworthy that the said draft resolution,
if adopted, would have itself referred back to Security Council resolution 1244
(1999), thereby providing for an interlinkage with the current interim status
created by Security Council resolution 1244 (1999). It was accordingly the view
of the drafters that only such a new resolution, if adopted, could have changed the
current status quo created by Security Council resolution 1244 (1999).
IV Subsequent interpretation of the notion of "political settlement"
447. Serbia has already demonstratedthat, contrary to the position adopted by some States,
SecurityCouncil resolution 1244(1999) generally,and with regard to the necessity of a
"political settlement" more specifically,excludes - and was continuously perceived to
exclude- any unilateral solutionto the Kosovo crisis.It is indeed quite telling that this
view was also shared by States which now talŒa different position, as well as by the
United Nations Special Representative for Kosovo. Apart from the practice already
referred to in Serbia's Written Statement,this is also confirmed by the practice of both
Statesand organsofthe UnitedNations.
(1) Further subsequent Statepractice
448. For example, the United States, the United Kingdom, Canada and Germany, have in
the past consistently talŒn the unqualified position during Security Council debates
that any "final settlement" would necessarily require the consent ofboth sides.4
449. Already in 2001, US Ambassador Holbrooke made the following remark about the
final status process:
"I think we should be clear about two points before this process
begins. First, the terms of any eventual settlement must be
mutually acceptable to bath sides and backed by the
international community. No other approach will result in a
524
For further details, see WS Spain, para. 78.
180 stable, long-term solution. No other approach will permit a
significant drawdown in external forces." 525
450. The Ambassador of the United Kingdom stated in 2003:
"The United Kingdom condemns unilateral statements on
Kosovo's final status from either side. We will not recognize any
move to establish political arrangements for the whole or part of
Kosovo, either unilaterally or in any arrangement that does not
have the backing of the international community." 526
451. The Ambassador of Greece, speaking on behalf of the European Union, as well as
on behalf of Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania,
Malta, Poland, Slovakia, Slovenia, Bulgaria, Romania, Turkey, Iceland and
Liechtenstein, stated the following:
"Building effective, transparent and accountable institutions for
the benefit of all the communities, while at the same time
adhering to the obligations stemming from Security Council
resolution 1244 (1999) and the Constitutional Framework and not
prejudging thefinal status, should be the goal of our actions." 527
452. This view was also shared by other States. Thus, at the 4430 th meeting of the
Security Council, e.g. the Ambassador of Mauritius remarked:
"Any attempt to change the status of Kosovo would go against
the commitments made under the relevant Security Council
resolutions and other agreements, the most recent one signed in
528
Belgrade earlier this month."
453. It is quite telling that Germany now attempts to modify its own previous position
by submitting in its Written Statement that Security Council resolution 1244
525
526Mr. Holbrooke (United States), UN Doc. S/PV.4258 (18 January 2001), p. 9 (emphasis added), Dossier No. 96.
Mr. Harrison (United Kingdom), UN Doc. S/PV.4742 (23 April 2003), p. 16, Dossier No. 107.
527Mr. Vassilakis (Greece), ibid., p. 21, (emphasis added).
528Mr. Gokool (Mauritius), UN Doc. S/PV.4430 (27 November 2001), p. 11,(emphasis added), Dossier No. 101.
181 (1999) "prohibited unilateral steps of either side regarding the status of Kosovo
before the beginning of the political process and while the political process was
ongoing and had still some prospect of success". 529
454. There is no hint of a suggestion, however, in the text of Security Council resolution
1244 (1999) that would confirm this conclusion. Furthermore, as will be
demonstrated below, the possibility of negotiations had not been exhausted. 530
Moreover, any such determination of an alleged "lack of any prospect of success" of
future negotiations had to be made, if at all, by the Security Council, since it
established the regime laid down in the resolution 1244 (1999). Such a
determination cannot be made by other organs as they are not empowered to do
so,531and even less so by one party to the conflict - nemojudex in sua causa. Given
the overriding powers of the Security Council, there was no danger that the parties
would Iockthemselves in a frozen con:flict,as has already been submitted. 532
(2) Subsequent practice of organs of the United Nations
455. Relevantorgansofthe UnitedNationstookthe sameposition.In additiontothe practice
already referredto in Serbia's Written Statement, 533 it should be noted that already in
2001,thethen SpecialRepresentativeofthe Secretary-GeneralHaekkerupstated:
"Although there will be a clear functional and organizational
separation between UNMIK and the provisional institutions of
self-government, procedures will be in place to ensure that the
Assembly and the Government fully respect Security Council
resolution 1244 (1999) and the Constitutional Framework for
Provisional Self-Government. The issue of an eventual
declaration of independence would hence be obsolete, since this
is by no means within the authority of the self-government." 534
529WS Germany, p. 40.
530See infra para. 467 et seq.
531See infra para. 477 et seq.
532WS Germany, p. 40.
533
WS Serbia, para. 816 et seq.
534Mr. Haekkerup, UN Doc. S/PV.4387 (5 October 2001), p. 6, (emphasis added), Dossier No. 100.
182456. He later continued:
"Finally, I would like to underline that, as the Yugoslav
Ambassador clearly said, provisional self-government does not
prejudice the final status. It is very clear, in how we have defined
the powers of the provisional self-government, that questions about
thefinal status or the sovereignty are notpart of the mandate. That
is a reserved power and will be dealt with when we corne to the
final political settlement. I want to underline that point so that there
535
is no doubt about what is the position in that regard."
457. On 6 November 2002, the Special Representative of the Secretary-General
addressed a letter to the President of the Kosovo Assembly, the relevant part of
which stated the following:
"The future status of Kosovo is open and it will be decided
solely by the Security Council. No third party or parties can
536
prejudge it."
458. On 7 November 2002, i.e. only one day later, he reiterated his view by stating:
"Neither Belgrade nor Pristina can prejudge the future status of Kosovo. Its
future status is open and will be decided by the UN Security Council. Any
unilateral statement in whatever form which is not endorsed by the Security
Council has no legal effect on the future status of Kosovo. 537
459. It is also relevant to note that in relation to the appointment of the Special Envoy of the
Secretary-General, Mr. Ahtisaari, the President of the Security Council had
communicated to the Secretary-General the "Guiding principles of the Contact Group"
which provided that "any solution that is unilateral ... would be unacceptable". 538
535
536Ibid., p. 27 (emphasis added).
Letter dated 6 November 2002 from the Special Representative of the Secretary-General to the President
of the Assembly of Kosovo,Dossier No. 185.
537"Pronouncement" by the Special Representative of the Secretary-General of7 November 2002, (emphasis
added),Dossier No. 187.
538UN Doc. S/2005/709 (10 November 2005), Annex, Dossier No. 197.
183460. And as late as 2006, the then Secretary-General's Special Representative for
Kosovo. Mr. Jessen-Petersen stated:
"UNMIK is not a player in the status process. Our job is to fulfil
our mandate as set forth in resolution 1244 (1999). But having
said that, from the start it has been important to me that the
activities of UNMIK in Kosovo should be consistent with and
supportive of the status process being conducted out of Vienna.
With that process gaining momentum, it is clear that we are
moving towards the end of the UNMIK mandate. Much work
has already been done on what will follow it. Of course, this
539
work cannot prejudge what this Council might decide."
461. Similarly, a 2006 opinion of the European Commission for Democracy through
Law has also excluded the possibility of unilateral action determining Kosovo's
future status.540
462. Besides, it is also worth noting that the vast majority of those members of the
Security Council approving, in principle, the proposal submitted by the Special
Envoy of the Secretary-General Mr. Ahtisaari, similarly took it for granted that his
proposal must be endorsed by the Security Council in order to be able to provide
for a final settlement.541
VThe irrelevance of the "political" character of the process/solution
463. Sorne written statements have implied that the political character of the process of
negotiations for a final status of Kosovo is indicative of the fact that it could be
539Mr. Jessen-Petersen, UN Doc. S/PV.5470 (20 June 2006), p. 4.
540The Venice Commission stated: "As regards the future status of Kosovo, it is not up to the Venice
Commission to interfere with the political process designed to determine Kosovo's future status under
Resolution 1244 (1999) of the Security Council. As a member of the United Nations, Serbia will have to
respect the respective decisions by the Security Council", Venice Commission, Comments on the
Constitution ofSerbia, Opinion No. 405/2006, CDL-AD (2007) 004, 19 March 2007, para. 105, available
at: http://www.venice.coe.int/docs/2007 /CDL-AD(2007)004-e.asp.
541See UN Doc. S/PV.5673 (10 May 2007), p. 3 (Belgium), p. 5 (Peru), p. 6 (France), p. 8 (Ghana), p. 9
(Panama), p. 11 (ltaly), as well as p. 12 (United Kingdom),er No. 114.
184 considered at one point "to have run its course". 542Yet, as the Court has reiterated
time and again, the political nature of any given question does not deprive it of its
legal nature, which must still be answered in accordance with international law. 543
Indeed, in particular where political considerations are prominent, it may be
particularly necessary to scrupulously apply the relevant legal principles
544
applicable with regard to the matter.
G. The "Political Process" Envisaged in Security Council resolution 1244 (1999)
Was Not Bona Fide Exhausted
464. It has frequently been argued in various written statements, 545 as well as in the
546
written contribution by the authors of the UDI, that the "political process"
provided for in Security Council resolution 1244 (1999) had been exhausted and
that accordingly any further negotiations would thus have been in vain. 547 This
assumption is erroneous, both on substantive and on procedural grounds. Further,
and in any event, the authors of the UDI cannot rely on any such alleged
exhaustion because they themselves are the reason for the alleged deadlock.
I The negotiation process on the final status of Kosovo was not conducted in an open
and unbiased manner
465. As demonstrated above, 548 Security Council resolution 1244 (1999) required a
bonafide negotiation process between the parties aiming at a mutually acceptable
542WS United States, pp. 79-83; see, also, WS Czech Republic, p. 10;WS Denmark, p.9.
543
Legality of the Threat or Use of Nuclear Weapons, para. 13;Application for Review of Judgement No. 158
of the United Nations Administrative Tribunal, Advisory Opinion, I.C.J. Reports 1973, para. 14;
Admission of a State to the United Nations (Charter, Art. 4), Advisory Opinion,C.J. Reports 1948, pp.
61-62; Competence of Assembly regarding admission to the United Nations, Advisory Opinion, I.C.J.
Reports 1950, pp. 6-7; Certain Expenses of the United Nations (Article 17,paragraph 2, of the Charter),
Advisory Opinion of20July 1962, I.C.J. Reports 1962, p. 155.
544See mutatis mutandis lnterpretation of the Agreement of 25 March 1951 between the WHO and Egypt,
Advisory Opinion, I.C.J. Reports 1980, para. 33.
545WS Netherlands, para. 2.9; WS United Kingdom, para. 6.36 et seq.; WS United States, p. 81; WS
Germany, p. 40; WS Albania, para. 99; WS Austria, para. 34.
546WC Authors, para. 9.17.
547WS Gennany, p. 35,40; WS United States,p. 83; WS United Kingdom,para. 6.38; WS Czech Republic,p. 10.
548See supra para. 434 et seq.
185 solution. This process was supposed to be facilitated by interested third States,
sitting as the Contact Group, and, since 2006, by the Special Envoy of the
Secretary-General Ahtisaari. However, as outlined above in detail, 549 from the
very beginning of the status process, Mr. Ahtisaari and certain members of the
Contact Group opted for independence of Kosovo as the only possible solution.
Consequently, the final status negotiations were not conducted in an open and
unbiased manner. In such circumstances, the Kosovo Albanian leadership did not
have any incentive to consider any compromise solution for the future status, and
throughout the whole status process continuously rejected any form of solution
that fell short of independence. 550
466. In these circumstances, it is not surprising that the final status process conducted
before the UDI did not yield any result. At the same time, however, it cannot be
argued, given the circumstances prevailing throughout the process, that the
process has been exhausted. Furthermore, as will now be demonstrated, future
negotiations are not excluded.
II Future negotiations were and are not excluded
467. It should be first noted that Serbia, in contrast to the authors of the UDI, has never
excluded future negotiations on the international legal status of Kosovo. To the
contrary, Serbia has time and again reiterated its continued willingness to enter
into negotiations on the final status of Kosovo, offering a wide range of possible
models of autonomy and self-government based on internationally accepted
models and examples. 551
468. It is also of particular relevance that the Special Envoy had already in 2007
predicted that "the potential [for negotiations] to produce any mutually agreeable
outcome on Kosovo's status [was exhausted]". His view was however not shared
by the international community. Rather, the negotiations between the parties
549
See supra para.103et seq.
550See supra paras.116-117.
551See supra para.117.
186 continued, his evaluation notwithstanding, under the auspices of the so-called
"Troïka", representing the European Union, the United States, as well as the
Russian Federation.
469. Even more importantly, before the negotiations under the auspices of the Troïka
had even started, some members of the Troïka had already publicly declared that
the only possible outcome would be independence for Kosovo anyhow, thus from
the outset seriously jeopardizing any possible compromise. 552
470. Itis obvious that such statements necessarily did not move the negotiation process
forward, but rather fostered the long-standing view of the Kosovo Albanians that
third parties would eventually support unilateral action, even if this was in violation
of Security Council resolution 1244(1999) and general international law.
471. It is worth noting that even after the conclusion of the Troika's mandate, the
Parliamentary Assembly of the Council of Europe on 22 January 2008, i.e. less than
four weeks prior to the UDI, adoptedthe position that talks between the parties should
continue on the basis of SecurityCouncil resolution 1244(1999) and stressedthe role
ofthe SecurityCouncil in this regard. The relevantresolutionprovided:
"...the Assembly concludes that, as the most recent stage in the
negotiations has not resulted in compromise, alternative ways
should be envisaged to secure the continuation of the talks on
the basis of the UNSC Resolution 1244 and the attainment of a
compromise solution in the near future, with a view to
preventing Kosovo from becoming a powder-keg and
ultimately a frozen con:flictin the Balkans. In this context, the
Assembly calfs on UNSC members to do everything in their
power to overcome the differences and tofind the way to reach
a timely compromise as the only guaranteed basis for peace
and stability in the region."553
552See supra paras. 110-114.
553Council of Europe, Parliamentary Assembly, resolution 1595 (2008) on developments as regards the
future status of Kosovo, 22 January 2008, available at:
http://assembly.coe.int/Main.asp?link=/Documents/ AdoptedText/ta08/ERES 1595.htm#1.
187472. Furthermore, international practice and expenence demonstrates that even
conflicts concerning the status of territories which may have seemed unsolvable
for significant periods of time, sooner or later become ripe for a negotiated
solution. Such was the case with the question of Northern Ireland, where a final
settlement was reached in 1998 after decades of conflict.
473. Frequent examples also confirm that the international community is not willing to
accept unilateral attempts to alter a given status quo, and, in particular, has been
determined in pushing for negotiated and mutually acceptable solutions by the
parties even after the lapse of significant periods of time, in the cases of Cyprus, 554
Western Sahara 555 and Palestine 556 among others.
474. It should also be noted in passing that certain States that recognize the so-called
"Republic of Kosovo" have, be it only inadvertently, accepted the very possibility
of future negotiations. Thus, Denmark for example, has argued that the Court is
not competent to deal with the parameters of future negotiations to take place
557
between Kosovo and Serbia. By doing so, Denmark has implicitly accepted that
such negotiations are indeed possible, not in vain and, in particular, not excluded
either dejure or defacto.
475. Similarly, the Netherlands accepted that the UDI was made "without the
agreement of all stakeholders", but contemplated that a solution could still be
found be way of negotiation when stating:
"A political solutionon the statusof Kosovo that has the agreement
558
of all stakeholdershas, therefore, yet to be achieved."
554
See Report of the Secretary-General on the United Nations operation in Cyprus of 28 November 2008,
UN Doc. S/2008/744 (28 November 2008), para. 3 where the Secretary-General referred to thereement
of21 March 2008, aimed at "a comprehensive settlement of the Cyprus problem" (emphasis added).
555See most recently Report of the Secretary-General on the situation concerning Western Sahara of 13 April
2009, UN Doc. S/2009/200 (13 April 2009), in particular para. 7 et seq. as to the current status of
negotiations between Morocco and the Frente Polisario.
556It is particularly worth noting that the Court itself, in its Advisory opinion in the Wall case, at para. 162,
has stressed the necessity to "achiev[ e] as soon as possible, on the basis of international law, a negotiated
solution to the outstanding problems" related to the status of Palestine, the longstanding character of the
contlict notwithstanding.
557WS Denmark, p. 2.
558WS Netherlands, para. 2.9.
188476. As a matter of fact, the Court's opinion will shed new light on the question whether
the UDI was in accordancewith internationallaw. It will accordingly give the parties,
as well as the Security Council and the United Nations at large and its membership,
guidance on how to further proceed. Indeed, it may be presumed that all actors
involved will act in accordance with the Court's authoritative legal determination,
which may provide new impetus for a renewal of the negotiationprocess.
III Only the Security Council itself may make a determination on a possible
conclusion of the political process foreseen in Security Council
resolution 1244 (1999)
477. It has been argued that several actors, including the Special Envoy of the
Secretary-General, the Special Representative of the Secretary-General, the so
called Troïka, as well as the Secretary-General made, in one way or another,
determinations that the negotiations had allegedly been exhausted, which allegedly
lead to the conclusion of the political process foreseen in Security Council
resolution 1244 (1999).
478. It has to be noted, however, that it is only the Security Council which has the
power to determine whether all possibilities for negotiations have been exhausted
and whether a final settlement has been reached. This is confirmed by the Written
Statement of the United Kingdom which itself referred to paragraph 19 of Security
Council resolution 1244 (1999) as "underscoring the authority of the Security
Couneil to discontinue the situation".559
479. Security Council resolution 1244 (1999) leaves no doubt that the Security Council
did not want to entrust the Secretary-General or his Special Representative, and
even less so the Secretary-General's Special Envoy, with any form of authority to
make determinations as to the outcome of the negotiations between the parties.
Rather, under paragraph 6 of Security Council resolution 1244 (1999), the
Security Council merely requested the Secretary-General to appoint, in
consultation with the Security Council, a Special Representative "to control the
559WS United Kingdom, para. 6.30 (emphasis added).
189 implementation of the international civil presence" but not to make any
determinations as to a final settlement. Instead, paragraph 11, lit. (e) of Security
Council resolution 1244 (1999) only entrusted the international civil presence with
the task of facilitating a political process designed to determine Kosovo' s future
status. Given the ordinary meaning of "facilitating", it is clear that the Special
Representative of the Secretary-General was not to make determinations
pertaining to the status or outcome of this political process.
480. This result is also confirmed by paragraph 19 of Security Council resolution 1244
(1999). It provides that:
"the international civil and security presences are established for
an initial period of 12 months, to continue thereafter unless the
Security Council decides otherwise".
481. This implies that the Security Council would have to adopt, once the goals of
Security Council resolution 1244 (1999) have been reached and a final settlement
has been agreed upon, a new resolution bringing to an end the international
civilian and military presences in Kosovo. The very fact that the Security Council
has not yet adopted such a resolution proves that the Security Council does not yet
consider that a final settlement has been reached, and more specifically, that the
UDI does not amount to this envisaged final settlement.
482. Moreover, and specifically with regard to statements made by Special Envoy Mr.
Ahtisaari, it is importantto note that he himself took the position, as already noted,0
that it would be up to the Security Council to make determinations and reach
decisions as to a possible final settlement.Moreover, under his terms of reference and
in accordance with Security Council resolution 1244 (1999), the purpose of his
engagement was simply tofacilitate the political process designed to determine the
future statusof Kosovo, subjectto controlby the Security Council.It is forthis reason
that the Council, by way of a presidential statement, requested that the Secretary
General was to "provide regular updates on progress in determining Kosovo's Future
560
WS Serbia, para. 523.
190 561
Status, as defined by Security Council resolution 1244 (1999)", thus leaving no
doubt that any final determination and decision arising under Security Council
resolution 1244 (1999) would be exclusively made by the Security Council itself.
Accordingly, the proposal by the Special Envoy was nothing more than a proposal
submittedto the SecurityCouncilthat was in tum freeto either adopt it or not to adopt
it.As is well known,this proposal was not acceptedby the SecurityCouncil.
483. It is also particularly relevant that the Secretary-General himself formally
acknowledged the prerogatives of the Security Council with regard to the proposal
submitted by his Special Envoy Mr. Ahtisaari by stating:
"On 3 April 2007, I submitted to the Security Council the
Comprehensive Proposal for the Kosovo Status Settlement
(S/20071168/Add.l), prepared by my Special Envoy for the
Future Status Process for Kosovo, Martti Ahtisaari. The Council
did not, however, endorse theproposal." 562
IV In any event, any such alleged exhaustion of negotiations may not be relied upon
either by the authors of the UDI or by third parties given that it was caused by the
authors of the UDI themselves
484. In any case, it has to be noted that it was the authors of the UDI who unilaterally
decided to no longer participate in future negotiations on the final international
legal status of Kosovo. It is thus due to their behaviour that such negotiations are
currently not taking place.
485. In other words, the authors of the UDI and the States supporting them have
themselves created a situation which, in their view, proves the futility of further
negotiations in which they did not wish to participate. They have thus been acting
in bad faith. More specifically with regard to the post-1999 situation, it must be
561Statement by the President of the Security Council, UN Doc. S/PRST/2005/51 (24 October 2005), p. 2,
Dossier No. 195.
562Report of the Secretary-General on the United Nations lnterim Administration Mission in Kosovo, UN
Doc. S/2008/354 (12 June 2008), para. 3,sier No. 88.
191 also reiterated that the Kosovo Albanian side has - right from the very beginning
and until the end of the Troïka process - continuously rejected any form of
solution short of independence, including proposed solutions where Serbia would
not have had effective defacto control over the territory. 563
H. The Non-Action by the Special Representative of the Secretary-General, the
Secretary-General, and the Security Council, Does Not and Cannot Amount
to a Tacit Recognition of the Legality of the UDI
486. Attempts have also been made to argue that the UDI should be considered lawful
due to the simple fact that it was not nullified by the Special Representative of the
Secretary-General, nor considered illegal by the Secretary-General, 564 nor
addressed by the Security Council. 565 This argument warrants several remarks.
I Alleged tacit recognition of the UDI by the Secretary-General and bis Special
Representative
487. First, following the UDI, the Special Representative has amended draft laws
adopted by the Assembly of Kosovo so as to counter any perception of
independence contained in such draft laws. 566
488. Second, and as outlined above, in implementing Security Council resolution 1244
(1999), the Secretary-General and his Special Representative act under the overall
authority of the Security Council. Yet, it is common knowledge that the positions
within the Security Council (including among its permanent members) vary as to
563This was confinned by the Special Envoy of the Secretary-General M. Ahtisaari, see WS Serbia, para. 400.
564WS United States, pp. 84 et seq.; WS Estonia, p. 14; WS Germany, p. 42; WS Albania, para. 100; WS
Austria, para. 41 et seq.; WS France, para. 2.72 et seq.; WS Luxembourg, para. 25; WS Netherlands, para.
2.10; WS United Kingdom, para. 6.45; see also WC Authors, para. 9.23 et seq.
565WS United Kingdom, paras. 6.1.6-6.17, 6.70; WS Albania, para. 100; WS Czech Republic, p. 11; WS
France, para. 2.72 et seq.; WS Netherlands, para. 2.10; WS United States, p. 88 et seq.; see, also, WC
Authors, para. 9.27.
566 See in particular UNMIK/REG/2008/10 (19 February 2008); UNMIK/REG/2008/14 (17 March 2008);
UNMIK/REG/2008/15 (17 March 2008), UNMIK/REG/2008/23 (15 May 2008); UNMIK/REG/2008/25 (16
May2008), Dossier No. 167, as well as UNMIK/REG/2008/33(14 June 2008); see, also, WS Spain,para.42.
192 the question whether the UDI was legal or illegal. Accordingly, for political
reasons the Security Council has not provided guidance to the Secretary-General
or his Special Representative. It is for this reason that both the Secretary-General
and his Special Representative have taken a status neutral approach. Indeed, such
an approach does not amount to acquiescence because it clearly does not accept
the UDI. As the Secretary-General himself put it unequivocally in a letter to
President Tadic dated June 12,2008:
"The position of the United Nations on the question of the status
of Kosovo has been one of strict status neutrality."67
It would clearly run counter to this position to now interpret the behaviour of
either the Secretary-General or his Special Representative as a tacit acceptance of
the UDI.
489. Third, Kosovo authorities have seriously challenged the de facto exercise of the
mandate of the Special Representative of the Secretary-General. As the Secretary
General put it in his November 2008 report:
"As a consequence of the deeply diverging paths taken by
Belgrade and the Kosovo authorities following Kosovo's
declaration of independence, the space in which UNMIK can
operate has changed. As is evident from the developments on
the ground, my Special Representative is facing increasing
difjiculties in exercising his mandate owing ta the conjlict
between resolution 1244 (1999) and the Kosovo Constitution,
which does not take UNMIK into account. The Kosovo
authorities frequently question the authority of UNMIK in a
Kosovo now being governed under the new Constitution. While
my Special Representative is stillformally vested with executive
authority under resolution 1244 (1999), he is unable ta enforce
this authority. In reality, such authority can be exercised only if
567Letter dated 12 June 2008 from the Secretary-General to His Excellency Mr. Boris Tadié, UN Doc.
S/2008/354 (12 June 2008), Annex I, Dossier No. 88.
193 and when it is accepted as the basis for decisions by my Special
Representative. Therefore, very few executive decisions have
568
been issued by my Special Representative since 15 June."
490. Fourth, as can be deduced from the list of relevant documents contained in the
dossier prepared by the Secretariat of the United Nations pursuant to the Court's
Order of 17 October 2008, the Secretary-General does not appear to have yet
received legal guidance from the Undersecretary-General for Legal Affairs of the
United Nations, the Legal Counsel, concerning the legality of the UDI. This is yet
another reason why no action has yet been taken by either the Secretary-General
or his Special Representative.
491. Similar considerations apply, mutatis mutandis, with regard to the fact that the
Special Representative had, in 2005, taken note of the negotiation mandate
adopted by the Assembly of Kosovo which provided for the goal of
independence. 569On the one hand, the Special Representative had only taken note
of the platform for the then starting status talks, and not of any kind of purported
decision on independence. On the other hand, and even more importantly, Serbia
as the State possessing title to territory with regard to Kosovo may at any point
renounce its rights concerning the territory. Accordingly, there was nothing that
hindered the Kosovo Albanian side to strive for a consensual separation from
Serbia as part of the overall negotiation process and even less was there any
reason why the Special Representative of the Secretary-General should hinder
them from pursuing this political goal as part of their negotiation strategy.
II Alleged tacit recognition of the UDI by the Security Council
492. As mentioned, and as is public knowledge, the Security Council was not and is not
in a position to either welcome or condemn the UDI, due to the divergent views
within the membership of the Council, including its permanent members. Yet, it is
568Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, UN
Doc. S/2008/692 (24 November 2008), para. 21 (emphasis added),ier No. 90.
569See UNMIK/PR/1445 (17 November 2005), Dossier No. 199.
194 misleading to draw the conclusion from the ensuing Security Council' s inaction
that it might have thereby indicated that the UDI was not in breach of international
law. As the Court has rightly noted:
"The fact that a particular proposai is not adopted by an
international organ does not necessarily carry with it the
inference that a collective pronouncement is made m a sense
opposite to that proposed." 570
493. The argumentthatthe non-actionofthe SecurityCouncilsupportsthe UDl's lawfulness
also runs counter to the fact that Security Council resolution 1244 (1999) does not
oblige the Security Council to positively decide on the existence of a breach of its
resolution(1244).Otherwise,the verypowers ofthe SecurityCouncilat largewould be
circumventedby enablingany oneof itspermanentmembersto defacto allowpartiesto
a conflictto violatebinding SecurityCouncilresolutionsby simplyvetoing any further
resolutiondeterminingthe breachofthe relevantpriorresolution. 571
494. In conclusion, inaction of the Security Council, the Secretary-General and his
Special Representative cannot be perceived or interpreted as a tacit recognition of
the alleged legality of the UDI. As a matter of fact, "to give legal significance to
572
an omission of an organ to condemn is problematical".
I. The Alleged "Unsustainability" of the lnterim Status Created by Security
Council Resolution 1244 (1999)
495. Several written statements 573have also attempted to persuade the Court that the
status created by Security Council resolution 1244 (1999) is allegedly
570Legal Consequencesfor States of the Continued Presence of South Africain Namibia (South West Africa)
notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J Reports 1971, para. 69.
571To bring the acquiescence argument to its logical conclusion, accepting that the Council has acquiesced in
Kosovo's independence would be tantamount to saying that the Council has acquiesced in any use of
force that it fails to condemn.
572I. Brownlie, Princip/es of Public International Law (6 ed., 2003), p. 664 (footnote omitted).
573WS United Kingdom, para. 6.28; WS Denmark, p. 9; WS Estonia, p. 11("ultima ratio");WS France, para. 2.56
et seq.; WS Czech Republic, p. 12; WS Gennany, p. 36; WS lreland, p. 11; WS Luxemburg, para. 23; WS
Poland,para. 7.7 ("loss of control over the situationin Kosovo"); see also WC Authors,para. 9.18.
195 "unsustainable". It should be first noted that in any event an acceptance of broad
autonomy, as proposed by Serbia, would bring to an end this alleged uncertainty.
It should be also noted that the vast majority of member States of the United
Nations have not recognized "Kosovo" as an independent State despite the recent
and on-going pressure to do so emanating from some States that support Kosovo
independence. Accordingly, the UDI has, contrary to the above-mentioned
assumption, not brought to an end the uncertainty with regard to the international
legal status of Kosovo, but has rather lead to an extension thereof sine die.
496. Furthermore, the Security Council, when adopting Security Council resolution
1244 (1999), was well aware that reaching an agreement on a final status may take
time. It is notably for this reason that it deliberately decided not to limit in time
the mandates of the civilian and the military presences. Moreover, it is up to the
relevant organs of the United Nations, and notably the General Assembly, in
exercising its rights concerning the budget of the organisation, to reach
conclusions and make decisions on the size and format of the international civilian
presence in line with any future decisions the Security Council might make, and in
light of the guidance provided by the Court's advisory opinion on the matter.
Pending such decisions, any such allegations of "unsustainability" cannot serve as
a pretext for unilateral action.
J. Conclusion
497. Accordingly, the UDI runs counter to the legal regime established by the Security
Council in Security Council resolution 1244 (1999), given that no mutually
acceptable solution has yet been reached nor endorsed by the Security Council.
Pending a final status agreement, Kosovo remains subject to the regime
established by Security Council resolution 1244 (1999) and continues to form part
of the territory of Serbia, the territorial integrity of which has been reaffirmed by
this very resolution.
196498. In conclusion of this part, it should be stressed once again that Security Council
resolution 1244 (1999) brought to an end a unilateral military action in violation
of international law and reinstated the role and primacy of the Security Council
with regard to the maintenance of international peace and security, as provided in
the United Nations Charter. This would be reversed by accepting the legality of
the UDI adopted by one side without Security Council endorsement.
499. Doing so would also amount to awarding actors who are unwilling to further bona
fide continue with a negotiation process, be it only because they knew they were
supported by a certain number of States (including those that had unilaterally used
military force in 1999) that were willing to disregard both the principle of
territorial sovereignty, as reaffirmed in Security Council resolution 1244 (1999),
and the Council' s pivotai role under the Charter.
500. Moreover, doing so would also amount to approving unilateral acts which has in
the past, on several occasions, given rise to serious abuses and cannot, regardless
of the present defects in international organization, find a place in international
law.574
574See mutatis mutandis Corfu Channel Case, Judgment of April ,1949, I.C.J. Reports 1949, p. 35.
197198 Chapter 10
RECOGNITION AS SUCH DOES NOT GRANT RETROACTIVE LEGALITY OR
PURGE ILLEGALITY
A. Introduction
501. The issue before the Court relates to and is limited to the UDI adopted by the
Provisional Institutions of Self-Government in Kosovo on 17 February 2008. The
request for the advisory opinion does not ask the Court to characterise those
recognitions that have occurred as being either lawful or unlawful or at all.
However, the question of recognition is important to the extent that any such
recognition or recognitions cannot as such affect the unlawful nature of the UDI.
In its Written Statement, the Republic of Serbia submitted that:
(i) Recognition as such is, as a matter of general international legal
principle, not constitutive of statehood.
(ii) Recognition is essentially a political and discretionary act of a State
with determinative effects only within its own domestic legal system
and with regard to bilateral relations with the recognised State.
(iii) Accordingly, recognition cannot determine the legal nature of the
asserted independence of a purported State in any binding way in
international law.
(iv) An illegal act, such as the UDI, cannot as a matter of general
principle be creative of legal rights.
(v) Recognition as such cannot legitimate an illegal act nor may it re
characterise that unlawful act as legal.
(vi) As a matter of fact, the long list of States not recognising Kosovo and
their global distribution undermines any thesis as to the legitimation
of the legally flawed declaration of independence by the Provisional
Institutions of Self-Government of Kosovo.
199 (vii) The fact that the United Nations has not accepted Kosovo as a
member adds to the range of international conduct demonstrating the
unacceptability of the proposition that a new State has been validly
575
created.
502. It was particularly emphasised that an illegal unilateral act cannot produce legal
consequences, ex ï-njuriajus non oritur, so that the attempt made by some States to
support the creation of a new State on the territory of Serbia through recognition is
devoid of any legal relevance for the present advisory proceedings. 576 In order for
the ex injuria principle to have any real meaning, it must be understood as
preventing the validation of unlawful situations.
503. The Canadian Supreme Court in the Quebec Secession case emphasised that:
" international recognition 1s not alone constitutive of
statehood and, critically, does not relate back to the date of
secession to serve retroactively as a source of a 'legal' right to
secede in the first place( ...)
It may be that a unilateral secess10n by Quebec would
eventually be accorded legal status by Canada and other states,
and thus give rise to legal consequences; but this does not
support the more radical contention that subsequent recognition
of a state of affairs brought about by a unilateral declaration of
independence could be taken ta mean that secession was
achieved under colour of a legal right. (...)
Such recognition, even ifgranted, would not, however, provide
any retroactivejustification for the act of secession, either under
577
the Constitution of Canada or at international law."
504. The Canadian Supreme Court particularly stressed that whatever role recognition
by third States may play within international relations, it cannot as such alter the
legality or otherwise of the initial act of independence or secession. Recognition in
57WS Serbia, para. 1008.
576Ibid., paras. 996 and 1033 et seq. See, also, the Gabéikovo-Nagymaros Project (Hungary/Slovakia),
Judgment, I.C.J Reports 1997, para. 133 and Judge Elaraby's Separate Opinion in Wall, para. 3.1.
57Reference re Secession of Quebec case, [1998]2 S.C.R. 217, paras. 142, 144and 155 (emphasis added).
200 international law concerns the conduct of international relations and not the
modification of existing legal rules and juridical situations. The Supreme Court
also made the point that recognition cannot retroactively legitimate in law what is
already an established illegality. Recognition does not, and cannot, reach back into
the domestic legal system of an individual State in order to alter its legal norms
and their application, nor can it retroactively re-classify the status of an illegal act
578
either in domestic or in international law.
505. Accordingly, whatever the political impact of the recognitions, it is submitted that
they cannot have the effect of altering such a foundational principle of
international law such as the principle of territorial integrity and thus render lawful
an unlawful unilateral and non-consensual secession.
506. Further, for the purposes of this request for an advisory opinion, recognition is
relevant only from the negative point of view, that is its inability to validate an
unlawful act.
507. It is to be noted that no State has argued that the effect of those recognitions that
have taken place is to have created a new State of Kosovo. It is also to be noted
that no State has argued that the question of lawfulness or not of these
recognitions as such is one that is before the Court.
508. In any event, it is clear that the "Republic of Kosovo" has not complied with the
factual requirements laid down in international law for Statehood, something
which constitutes a logical precursor to recognition.
B. Statehood Requirements
509. In its Written Statement, Serbia has pointed out that even if the so-called
"Republic of Kosovo" were to have had a legal basis for its claim of Statehood
(which is denied), it would not conform with the requirements laid down in
578
See WS Serbia, para. 1000 et seq.
201 international law for such status, particularly in view of the fact that there is no
effective independent government in Kosovo. In brief, it was noted that:
(i) UNMIK continues to act within the territory, together with EULEX.
(ii) KFOR continues to be the ultimate military and security authority in
the territory.
(iii) Serbia continues to retain its sovereign rights over Kosovo insofar as
they are compatible with Security Council resolution 1244 (1999).
(iv) The Provisional Institutions of Self-Government, purporting to have
become the organs of an independent State, in fact substantially
exercise the same authority that they have performed previously, on
the basis of Security Council resolution 1244 (1999). 579
510. The United Nations Secretary-General has emphasised that UNMIK continues to
be deployed in Kosovo within the framework of Security Council resolution 1244
(1999). 580 The same situation applies with regard to KFOR. 581 Further and
contrary to the wishes of the so-called "independent" authorities, 582 EULEX was
deployed within the framework of Security Council resolution 1244 (1999) and
with the support of Serbia. 583 In addition, it is very clear that the purported
"independent government" does not have political control over the whole territory
of Kosovo, nor is it recognised by the entire population of Kosovo as having the
authority to exercise such control. While the Assembly of Kosovo claims to adopt
legislation without reference to the powers of the Secretary-General's Special
Representative under Security Council resolution 1244 (1999), it has been pointed
out that the:
"majority of Kosovo Serbs continue to recogmze UNMIK as
their sole and legitimate civilian international interlocutor... This
579WS Serbia, para. 966 et seq., particularly para. 974 et seq.
580See reports of the Secretary-General on the United Nations lnterim Administration Mission in Kosovo,
UN Doc. S/2008/692 (24 November 2008), Dossier No. 90, and UN Doc. S/2009/149 (17 March 2009).
581
Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, UN
Doc. S/2008/692 (24 November 2008), pp. 2 and 12,Dossier No. 90.
582"Kosovo again opposes EULEX plan; Albania airs doubts", Thomson Reuters Foundation, 25 November
2008. Available at: http://www.alertnet.org/thenews/newsdesk/LP686l74.htm. See Annex 82 in
Documentary Annexes accompanying WS Serbia.
583See letter by President of the Republic of Serbia sent to Mr. Javier Solana, Secretary-General of the
Council of the European Union and High Representative for the Common and Foreign Policy, dated 28
November 2008, reproduced in Annex 83 in Documentary Annexes accompanying WS Serbia.
202 has had significant implications, including in the police, customs
and judicial sectors, where UNMIK continues to play a
prominent role." 584
511. It is also to be noted that many of the normal fonctions of government cannot be
carried out by the "independent government". It is well known that corruption and
crime of all kinds are rampant in the areas supposed to be under the control of this
government. 585These are all issues that have not been addressed by those making
written statements in favour of the UDI, nor indeed in the written contribution of
the authors of the UDI, who tellingly confine themselves to discussing legal and
586
constitutional issues.
512. In this context, one may also mention the serious state of human rights observance
in the territory today and in the very recent past. The Written Statement of Serbia
has addressed these issues. 587 Interestingly, the written contribution of the authors
of the UDI makes no reference to such critical issues as the pogrom against the
Serb inhabitants of Kosovo in March 2004, 588 the situation of the non-Albanian
displaced persons and the situation of the disappeared.
513. Ominous indications of what may occur in the future were seen in March 2004.
According to a report by the Organization of Security and Cooperation in Europe,
"The campaign of ethnie violence lasted for three days and left
19 dead, 954 injured, 4100 displaced, 550 houses and 27
Orthodox churches and monasteries burnt and an additional 182
589
houses and two churches/monasteries damaged."
584Report of the Secretary-General on the United Nations lnterim Administration Mission in Kosovo, UN
Doc. S/2008/692 (24 November 2008), para. 4, Dossier No. 90.
585Commission of the European Communities, Commission Staff Working Document, "Kosovo (Under UNSCR
1224/99)2008 Progress Report", Brussels, 5November 2008, SEC(2008) 2697, pp. 13, 15,and 53-54.
586See, e.g., WC Authors, paras. 2.01-2.74. See, also, WS United Kingdom, paras. 4.12-4.27 and WS United
States, pp. 34-40.
587WS Serbia, para. 365 et seq.
588But see, e.g., WS United States, p. 25.
589 OSCE, Human Rights Challenges - following the March riots, 25 May 2004, p. 4, available at:
http://www.osce.org/ documents/htm 1/pdftohtm1/2939_en.pdf.htm.
203514. In its report on the events, the International Crisis Group concluded that:
"The Kosovo Provisional Institutions of Self-Government
(PISG) cannot bring themselves to give direction to the society
they purport to represent ... Kosovo's provisional institutions of
self-government (PISG), media and civil society afforded the
rioters licence for mayhem .... The violent explosion revealed
Kosovo Albanian society to be deeply troubled, lacking
institutions, leadership and the culture to absorb shocks and
contain its violent, criminal minority... 33 major riots, 51,000
590
rioters, some using military weapons [were involved]."
515. This traumatic period demonstrated that the Kosovo Albanian leadership was not
able to exercise the necessary degree of effective control over its own population.
This view has been reinforced since the UDI. With regard to this, the Minority
Rights Group has recently concluded that:
"in the period since Kosovo unilaterally declared independence
on 17 February 2008, the actions of the new Kosovo authorities
and the international community have instead created
uncertainty, confusion and increasingly complex, multi-layered
executive governance structures in Kosovo." 591
Further:
"A lack of political will among majority Albanians and poor
investment in protection mechanisms have resulted in minority
rights being eroded or compromised in the post-independence
period." 592
516. This pattern of human rights abuses, whether deliberate or resulting from lack of
effective control from the purported government, is important not only in itself, but
590
International Crisis Group, CollapseinKosovo,ICG Europe ReportNo. 155,22 April 2004, pp. 1,i and 19.
591Minority Rights Group International, Filling the Vacuum: Ensuring Protection and Legat Remedies for
Minorities in Kosovo(2009), 6, available at www.minorityrights.org/download.php?id=635.
592Ibid. at p. 3. See, also, OSCE ODIHR, Human Rights in Kosovo: As Seen As Told, Volume Il (14 June -
31 October 1999), available at http://www.osce.org/odihr/item _l l_l7756.html
204 also within the framework of claimed Statehood. Itis relevant in two ways. First, it
goes to the heart of the requirement of effective governmental control. Second, it is
relevant in that it has been argued that respect for human rights, or perhaps the
593
absence of seriousabuse of human rights, is an additionalcriterionof Statehood.
517. With regard to the first point, the concept of effective government is meaningless
if that government will not or cannot ensure at least minimum levels of human
rights protection. The situation in Kosovo today falls below that minimum level
and thus reinforces the already existing perception that the purported government
is either simply not in control in any real sense or that it is actively pursuing a
policy of human rights violations against its minority population.
C. Critical Date
518. Although the request before the Court is very specific in both space and time, so
that the legality and effect of those recognitions that have taken place are not
relevant for the purposes of the case, the United Kingdom has sought to finesse
this principle so as to bring in the purported impact of the recognitions in a way
that contradicts the question posed by the General Assembly. The UK's Written
Statement declares that:
"If, contrary to this view [of the United Kingdom], the Court
concludes that the Declaration of Independence was in some
manner inconsistent with international law at the point that it
was made, the United Kingdom considers that developments
since 17 February 2008 have crystallised Kosovo independence
and cured any deficiency that might initially have existed." 594
519. As well as contradicting the ex irifuria principle and opening the door to a reckless
attitude to international illegality by positing the curing of illegality by recognition
593See, also, The European Community's Declaration on the Guidelines on the Recognition ofNew States in
Eastern Europe and the Soviet Union, 31 ILM 1485 (1992), pp. 1486-7.
594WS United Kingdom, para. 0.15. See, also, ibid., paras. 5.54 and 6.73.
205 by a minority of States, this approach also runs counter to the international law
principle of the critical date. This doctrine establishes that an act must be analysed
for its legal application and lawfulness in the light of the legal situation as at the
date it was carried out. The doctrine is founded upon the need for stability of legal
relations and is intended to prevent the retroactive overthrow of hitherto lawful
situations and, conversely, the retroactive validation of illegal acts.
520. Since the request before the Court for an advisory opinion is so specific and relates
to the need for a characterisation in law of a particular event, the date of the
unilateral declaration of independence must constitute the critical date, as that term
in understood in international law. 595The importance of this concept is that where a
determining moment can be identified, as in this case, the rights of the parties must
be taken to have crystallised at that moment, so that no act subsequent to that date
can alter the legal position. While the doctrine has been used primarily with regard
to territorial disputes, it is clearly relevant analogically here since the question of
valid sovereign territorial title is at issue. The Court has emphasised that:
"it cannot take into consideration acts having taken place after
the date on which the dispute between the Parties crystallized
unless such acts are a normal continuation of prior acts and are
not undertaken for the purpose of improving the legal position
of the Party which relies on them." 596
521. The task before the Court currently, therefore, is to assess the legality of the UDI
of 17 February 2008 in the light of the law applicable on that date and having
established and confirmed the legal position to sustain that position by declaration.
It cannot thereafter undermine its own determination of the legalities by accepting
that subsequent events (specifically and deliberately excluded from the question
595See, e.g., Island of Palmas case (Netherlands v. USA), 2 RIAA 829, 845 (1928); the Eastern Green/and
case, P.C.I.J, Series AIE, No. 53, p. 45; Sovereignty over Pulau Ligitan and Pulau Sipadan
(lndonesia/Malaysia), Judgment, I.C.J Reports 2002, para. 135; Case Concerning Territorial and
Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v Honduras),
Judgment of 8 October 2007, para. 117 and the Case Concerning Sovereignty over Pedra Branca/Pulau
Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore ), Judgment, I.C.J. Reports 2008, paras.
32-36. See also e.g. L.F.E. Goldie, "The Critical Date", International and Comparative Law Quarter/y,
vol. 12 (1963), p. 1251; M.G. Kohen, Possession contestée et souveraineté territoriale(1997), pp. 169-
183 and M.N. Shaw, International Law (6 ed., 2008), p. 509 et seq.
596Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), I.C.J. Reports 2002, para. 135.
206 posed in the request) have remedied in law established illegality. Information
subsequent to the critical date can only be taken into account insofar as it reflects
the situation at the date and cannot be used for the purposes of rectification or
altering that legal situation.597
522. As the Court noted in the Western Sahara advisory opinion:
"Although the Court has thus been asked to render an opinion
solely upon the legal status and legal ties of Western Sahara as
these existed at the period beginning in 1884, this does not mean
that any information regarding its legal status or legal ties at
other times is wholly without relevance for the purposes of this
Opinion. It does, however, mean that such information has
present relevance only in sa far as it may throw light on the
questions as ta what were the legal status and the legal fies of
Western Sahara at that period. " 598
D. Conclusion
523. Accordingly, the Republic of Serbia reaffirms the submissions made in its Written
Statement, and concludes:
i) The critical date for the purposes of the request for the advisory
opinion is 17 February 2008, the date of the unilateral declaration of
independence by the PISG.
ii) The legality or illegality of the unilateral declaration must be
determined in the light of the law applicable at that moment.
iii) Subsequent events, such as the recognitions made by the minority of
States that have occurred, cannot retroactively purge the illegality of
the UDI.
597See e.g. WS Argentina, para. 43 et seq. and WS Spain, para. 6 (iii).
598Western Sahara, Advisory Opinion, I.C.J. Reports 1975, para. 78 (emphasis added).
207iv) Subsequent acts may only be considered insofar as they reflect the
legal position at the critical date.
v) The view that, as expressed by the Written Statement of the United
Kingdom, that, "developments since 17 February 2008 have
crystallised Kosovo independence and cured any deficiency that
might initially have existed" is both legally incorrect and politically
dangerous.
vi) In any event, the "Republic of Kosovo" has failed to satisfy the
criteria of Statehood. lt does not possess an effective independent
government as a matter of fact, and the abuses of human rights in the
territory it claims demonstrates both that and the failure to adhere to
the criterion of Statehood requiring respect for human rights.
208 Chapter 11
CONCLUSIONS
523. The present Written Comments have rebutted the claims made in the written
statements of the States that promote the independence of the so-called "Republic
of Kosovo" and in the written contribution of the authors of the UDI. In particular,
it has been demonstrated that the UDI is not only regulated by international law
but is contrary to international law.
524. The UDI is a purported legal act which, inter alia, attempts to create a new State by
terminating Serbia's sovereignty and the United Nations administration in Kosovo,
as well as - at least for the time being - the process of negotiations to determine the
future status of Kosovo. In all these respects, the UDI is contrary to applicable rules
of international law. Moreover, as has been demonstrated by Serbia, the UDI did
not have as an effect the creation of a new State, since the necessary legal and
factual requirements of Statehood are not fulfilled in the case of Kosovo.
525. As already discussed, 599there is probably no other unilateral declaration of
independence in the world that is more susceptible to international legal analysis
than the UDI of 17 February 2008. Its authors - the Provisional Institutions of
Self-Government in Kosovo - are organs that were created under international
law, with competences that are fully regulated by international law. In that regard,
it has been demonstrated that they did not have the authority to issue the UDI
which was ultra vires their competences under Security Council resolution 1244
(1999) and the Constitutional Framework for Kosovo. Moreover, by issuing the
UDI, they violated, inter alia, the following rules of international law:
(i) the general international law principle of respect for the territorial
integrity of States which precludes non-consensual secessions from
independent States;
599
See supra Chapter 6.
209 (ii) the international legal reg1me established by Security Council
resolution 1244 (1999), guaranteeing the territorial integrity of Serbia,
as well as providing for the United Nations administration as the
supreme administrative authority in Kosovo which can be modified or
terminated solely by the Security Council;
(iii) the international legal regime established by Security Council
resolution 1244 (1999), which provides for a negotiation process to
determine the future status of Kosovo that must not be terminated
unilaterally or undermined by any of the parties concerned.
526. Since the foregoing rules of international law are not only applicable to the
Provisional Institutions of Self-Government, but to all relevant actors in Kosovo,
they would be violated even if the UDI was not an act of the Provisional
Institutions of Self-Government in Kosovo (quod non), as claimed by some States
and the authors of the UDI.
527. It has also been demonstrated that the principle of self-determination does not
provide support for the UDI, since neither the Kosovo Albanians nor the "Kosovar
people" constitute a separate "people" entitled to exercise the right to self
determination, and Kosovo does not constitute a self-determination unit.
Furthermore, the so-called "right to remedial secession" does not provide support
for the proposition that the UDI is in accordance with international law. First, its
proponents have failed to prove the existence of this doctrine in international law.
Second, even assuming that such a right exist (quod non), its various requirements
advanced by its proponents have not been met in the case of Kosovo.
528. Contraryto whathasbeenclaimedin somewrittenstatements,therecognitionsofthe so
called "Republic of Kosovo" by a rninority of States cannot retroactivelypurge the
illegalityof the UDI which must be deterrninedin light of the law applicable at the
momentthe UDI was issued,namely 17February2008. Further,the so-called"Republic
ofKosovo"doesnotpossessaneffectiveindependentgovemmentasamatteroffact.
529. Finally, the flagship argument advanced by those States promoting the
independence of Kosovo is that Kosovo is a sui generis case. This is not a legal
210 argument but rather only a policy consideration. The very idea that Kosovo is a sui
generis case evinces that there are no sufficient legal grounds that can otherwise be
relied upon to justify its attempted secession from Serbia. Obviously, every case is
unique, but this does not prevent the application of international law. When rules of
international law are applied to the case of the UDI, it clearly follows that the UDI
is not in accordance with international law. In any case, the various "unique"
features of the Kosovo case, taken individually or together, do not provide a legal
justification for the UDI and the purported secession of Kosovo from Serbia.
530. On the basis of the reasons set out in its Written Statement and in the present
Written Comments, the Republic of Serbia respectfully reiterates the submissions
it has made in its Written Statement, namely
(i) that the Court is competent to give the advisory opinion in the present
case and that there are no compelling reasons that should lead it to decline
to give its opinion; and
(ii) that the UDI of 17February2008 is not in accordancewith internationallaw.
Sasa Obradovié
Head of the Legal Team of the Republic of Serbia
Belgrade, 14 July 2009
211212 ANNEXl
"News: Kosovo Declaration of Independence",
Sunday, 17.02.2008 17:20
http://www.assembly-kosova.org/?cid=2128,1635
213214Republic of.Kosovo - Assembly - News Page 1of2
News
Kosovo Declaratlon of Jndependence February 2008
Sundav, 17.02.2008 17:20
NTWTFSS
[ Msembly ofKosovo, 1 2 3
Çonvened tn an extraordlnary meetino on 4 S 6 '7 8 9 10
February 17, 2008, ln Prtstlne, the e.apital of 11 12 13 14 15 16 17
Kosovo, 18 19 20 21 22 Î..3 24
Answering the call of the people to build a society 2:; ]fj 27 28 29
that honon human dlgnlty and afflrms the prlde
and purpose of lts citlzens,
CDmmltted to confront the palnful legacy of the
rec:ent past ln a spirit of recondllatand
f'orgtveness,
Oedlcated to protectlng, prornotlng and honorlng
the dlverslty of oor people,
Reafflrming our wish to become fully integrated
lnto the Euro-Atlantic famllof democracles,
Observing tlu1tKosovo 1s a special case arising
from Yugoslavia"s non-consensual breekup and is
not a precedent for anv other situation,
Recalllnpthe years of strffe and violence ln
Kosovo, that disturbed the conscience of al1
clvlltsed people,
Gra~f that ln 1999 the work:I lntervened,
thereby removing Belgrade's governance over
Kosovo and placlng Kosovo under United Nations
lntertm administration,
Proudthat Kosovo has since developed
functlonal, multl-ethnlcinstitutions of democracy
that express freely the wlll of our cltizens,
Recalling the years of lnternatlonally-sponsored
negotlatlons between Belgrade and Pristlniil over
the questlon of our future politlcal status,
Regrettfng that no mutually-acceptable status
outcome was possible, ln spite of the good-falth
engagement of our leaders,
Confirmlng that the recommendatlons of UN
Spec;:lalEnvoy Marttl Ahtlsaari provlde Kosovo
wlth a comprehenslve framework for lts future
development and are ln Une with the highest
European standards of human rights and good
govemance,
Determlned to see our status resotved ln orderto
glve our people clarlty about their future, move
beyond the confflcts of the past and reallse the
full democratie potential of our soclety,
Honorlng all the men and women who made
great saalflces tobulld a better future for
KO$OYD,
Approve•
KDSOYA DECU.RAnON OP INDIPENDENCE
l, We, the democratically-elected leaders of our
people, hereby declare Kosovo to be an
lndependent and soverelgn state. This declaration
reflects thewm of our people and lt ls in full
accordanΠwlth the recommendatlons of UN
Speclal Envov Martti Ahtisaart and hls
Comprehenslve Proposai for the Kosovo Status
Settlement.
2. We declare Kosovo to be a democratlc, secular
and multi-ethnlc republlc, gulded by the
prlndples of non-diScrimlnatlon and equal
protection under the law. We shall protect and
promote the r1ghts of all communltles ln Kosovo
and create the conditions necessary for thelr
effective participation in polltical and declslon
maklng processes.
3. We accept fully the obligations for Kosovo
contained in the Ahtlsaari Plan, and welcome the
frilmework it proposesto guide Kosovo in the
years ahead. We shall lmplement in full those
obligations lncluding through priority adoption of
the leglslatlon lncluded in lts Annex XII,
particularly those that prntect and promote the
rlghts of communlties and thelr members.
4. We shall adoptas soon as possible a
Constitution that enshrines our commltment to
respect the human rights and fundamental
freedoms of all our cltlzens, partieulariy as
defined by the European Convention on Human
Rlghts. The Constitution shall lncorporate all
relevant prtnciplesfthe Ahtlsaarl Plan and be
adopted through a democratlc and deliberatlve
procHs.
5. We welcome the International community"s
continued support or our democratlc development
http://www.assembly-kosova.org/?cid=2,128,1635 24.6.2009
215Republic ofKosovo - Assembly - News Page 2 of2
Kosovo on the basls of UN Securlty CouncU
resolutton 1244 (1999). We invite and welcome
an lntematlonal clvlllan presence ta supervise our
implementatlon of the Ahtlsaarî Plan, and a
European Unlon-led rule of law mission. We also
Invite iiilndwelcttme the North Atlantlc Treaty
Organliatlon to retaln the leadership rQle of the
International mllltary presenΠln Kosovo itnd to
lmplement responslblHtles asslgned to lt under
UN Securlty Councll resolution 1244 (1999) and
the Ahtlsaarl Plan, untll such tlme as Kosovo
Institutions are capable of assumlng these
responsiblNttes. We shall coaperate f1,1llywlth
these presences to ensure Kosovo's future peace,
prosperity and stablllty.
6. For reasons of culture, geography and hlstory,
we belleve our future lies wlth the Eun:ipean
famlly. We therefore declare our Intention to take
all steps necessary to facllitate full membership in
the European Union as soon as feasible and
implement the refonns required for European and
Euro-Atlantic integration.
7. We express our deep gratitude to the United
Nations for the work lt has done to help us
recover and rebuikt ftom war and bulld
institutions of democracy. We are commltted to
worlclng constructivety with the United Nations as
itcontinue! its work ln the period ahead.
8. Wlth lndependence cornes the duty of
responslble membership ln the International
community. We accept fully this duty and shall
abide by the prtnciples of the United Nations
Charter, the Helsinki Anal Act, other acts of the
Organizatlon on Security and Cooperation ln
Europe, and the lntematlonal legal obligations
and prlnclples of International comlty that mark
the relations among states. Kosovo shall have lts
Internationalborders as set forth ln Annex VIII of
the Ahtisaari Plan, and shall fully respect the
sovereignty and territoriallntegrity of ail our
neighbors, Kosovo shall also refrain from the
threat or use of force ln any manner lnconslstent
wlth the purposes of the United Nations.
9.We herebv undertake the lntemational
obligations of Kosovo, lndudlng those concluded
on our behalf by the United Nations Interlm
Administration Mission ln Kosovo (UNMIK) and
treaty and other obligations of the former
Soclallst Federal Republic of Yugoslavia to whlch
we are bound as a former constituent part,
including the Vienna Conventions on diplomatie
and consular relations. we shall cooperate fully
with the JntematiOnal Criminal Tribunal for the
Former Yugoslavla. We lntend to seek
membershlp ln International organisations, ln
whlch Kosovo shall seek tg contribute t<the
pursult of intemationalpeace and stablllty.
10. Kosovo declares lts commltment to peace and
stabîllty in our reglon of southeast Europe. Our
independence brlngs to an end the process of
Yugoslavla's violent dissolution. Whlle this
proces5 has been a painful one, we shall work
tlrelessly to contribute to a reconciliation that
would alklw southeast Europe to move beyond
the confllcts of our past and forge new Unks of
regional cooperatlon. We shall therefore work:
together with our nelghbaurs to advance a
cummon European future.
11. We e)(press, ln particular, our desire to
establlshgood relatlons with all our nelghbours,
including the Republic of Serbla wlth whom we
have deep hlstorical, commercial and social tles
that we seek to develop further ln the near
future. We shall continue our efforts to contrlbute
to relations of friendship and cooperatlon wlth the
Republic of Serbia, while promoting reconclliatiDn
among our people,
12. we hereby afflrm, clearty, spec:ifically, and
irrevocably, that Kosovo shall be legally bound to
comply wlth the provisions contained ln this
Declaratlon, including, especlally, the obligations
forit under the Ahtlsaarl Plan.In all of these
matters, we shallact consistent wlth prlnciples of
international law and resolutions of the Security
Councll of the United Nations, including resolution
1244 (1999), We declare publicly that all states
are entltled to rely upon thls declaratlon, and
1ppeal to them to extend to us thelr support and
friendship.
D-- 001
Priatlna, 17 February 2008
Pre•ldent of the Al:Hmbly of Kosova
l11kup KRASNIQI
http://www.assembly-kosova.org/?cid=2, 128,1635 24.6.2009
216Republika e Kosovës - Kuvendi - Lajmet
Pagel of3
Lajmet e fundit
Deklarata • Pavarlallll •• Kosavi• Shlmrt 2008
E Diel, 17.02.200817:2D
HMaMIEPShO
r Kuvendî I KOSOVês, 1 2 3
l mbledhur nêseancêtêjashtfzakonshme mê17 45678910
shkurt 2008, nêkryeqytetin e Kosovês, nê 11 12 13 14 15 16 17
Prishtinl,
18 19 20 21 22 J3 24
Duke lu pêrgjigjur thlrrjes sfl popullit pf,r tê 25 26 27 28 29
ndêrtuar njê5hoqêriqêrespekton dinjltetln
njertzor dhe anrmon krenarinê dhe synlmet e
qytetarive tt saj,
Tl!zotuar pflr t'u pll"Wllur ml trashêglmlnêe
dhembshme têsêkaluan!is si afërt nêfrymê tê
pajtimit dhe faljes,
T! pi!rkushtuarndaJ mbrojtjes, promovlmlt dhe
respektimit têdlversltetitêpapulllt tonê,
Duke rlaflrmuardêshlr'!n tonêpêrt'u integruar
plothlsht nêfamlljen euroatlantlke tê
demokracive,
Duke v~r se Kosava t!shtênjêrast speclal qê
del nga sh~rb!rja jokonsensuale e Jugosllavlsê
dhe nuk êshtêpresedan pAr dlêndo sttuatl!: tjetl!:r,
Duke rlkujtuar vltet e konfllkdhe dhunêsnê
Kcsovl qêshqetisuan ndêrgjegjen e te gjlthê
popujve têtlvillzuar,
Hfrtmjoh~s ql bota lntervenol mê1999 duke
hequr ni kêtêmênyrêqevertsjen e Beogradit mbl
Kosovtn, dhe vendosur Kosovênnên
admlnlstrimln e pêrkohshêmti Kombeve tê
eashkuara,
Krenarl! qêKosova ql! atêherêka zhvllluar
lnstttuelOne funkslonale, multletnitê
demokratisê qêshprehln lirisht vullnetine
qytetarêve tanê,
Duke rlkujtuar vltet e negoclatave tê
sponsorlzuara ndlrkombêtarlsht ndêrmjet
Beogradit dhe Ptishtinês mbi çêshtjen e statuslt
tonl têardhshêm potitlk,
Duke shprehur keqardhje qênuk u arrît asnjê
rezultati pranueshêm pir têdyja palêt pêrkundêr
angazhimit têmlrêfllltl t! udhêheqêsvetanê,
Duke konffrmuar se rekomandlmet e têDêrguarlt
Special têKombeve têBashkuara, Martti
Ahtlsaarl, i ofrojnê Kosovêsnjêkomiz!
gjlthl!pêrfshirêsepêrzhvilllmin e saj ti!
ardhshêm, dhejanê ne vljême standardet mêtê
larta europlane pêrtl drejtat tl njeriut dhe
qeverlsjen e mlrê,
T~ vendosur qêta shohim statusln tonêtê
zgjldhur nêmênyrl (If t'I jlpet populllt tonê
qart!slmbl têardhmen e vet,têshkohet pêrtej
konfllkteve têsêkaluares dhe têreallzohet
potenciall i plotêdemokratikI shoqêrlsêsone,
Duke nderuar têgjlthê burrat dhe gratl!: qêbf:nê
Hkrifica têmêdhapêr ~ ndêrtuar njêtêardhme
mêtêmlrêpêrKosoven,
Mlr•toi
DIKLARATl!N E PAVAR!SJS! s@KOSOVl!:S
1. Ne, udhêheqêslt epopulllt tonê,têzgjedhur nê
mênyrt demokratike, nêpên'njetkê!iajDeklarate
shpalllm Kosovênshtet t6 pavarur dhe savran.
KJoshpallje pasqyron vullnetln e populllt tanêdhe
êshtêne paJtueshmêrite plotême rekomandlmet
e têOêrguarlt Speclal te Kombeve têBashkuara,
Marttl Ahtisaarl,he Propozlmln e tij
Gjithêpêrfshirts pêrZgJldhjene Statuslt tê
Kosaves.
2. Ne shpalllm Kasovênrepubllkê demokratike,
lalke dhe mu1tiemlke, têudhêhequr ngaparimet
e jOdiskrlminimltdhe mbrojtes se barabartê sipas
ligjlt.e do têmbrojmê dhe promovoJmê tê
drejtate te gjitha komunlteteve ne Kosovêdhe
krljajmê kushtet e nevojshme pêrpjesêmarrjen e
tyre efekl_lve nêproceset politike dhe
vendlmmarrêse.
J. Ne pranojmê ploti!sliiht obligimet pêrKosovên
têpêrmbajtura nêPlanln e Ahtisarit, dh@
mlrêpreslm komlzln ql al propozon pêrtê
udhêhequr Kosovênni vltet nê vijlm. Ne dotê
zbatojmê plotêslsht ata obllgime, pêrtshlrê
miratlmln priorltali leo,Jislacionit têpêrfShlrênê
Aneksln XII tltU, veçanêrisht atêqêmbron dhe
promovon te drejtat e kamunlteteve dhe
pjesêtarlvc:tê tyre,
4. Ne do têmlratojmê samêshpejt qêtêJetêe
mu~ds~lllll!! njêk~shtetu!' ..lshê~,_zot~~ln
http://www.assembly-kosova.org/?cid= 1,128,1635 24.6.2009
217Republika e Kosovës - Kuvendi - Lajmet Page 2 of3
liritêthemelotê têgjlthê qytetarêve tan!,
posaçêrisht ashtusiç definohen me Konventên
Europlane pêrtêDrejtat e NJeriut. Kushtetuta do
têinkorporojê têgjitha parlmet relevtênte
PlanltlAhtisaarit dhe do têmlratohet nêpêrmjet
njêprocesl demokratikhe têkujdess~m.
5. Ne mln!preslm mbêshtetjen e vazhdueshme tê
bashkêsisêndêrkombêtarepêrzhvillimin tonê
demokratlk nêpêrmJettêpranlve ndêrkombêtare
têthemeluara ni Kosovi ni bazti Rezolutis
1244 têKêshllllttêSlgurimlt têKombeve tê
Bashkuam (1999). Ne ftojmê dhe mi~presimnjë
pranl ndêrkombêtarecivile pêrtê mblkêqyrur
zbatimln e Planlt têAhtlsaarit dhe nJêmlsîon tê
sundlmlt têllgjlt têudhêhequr nga Bashklml
Eun;,plan. Ne, pa ashtu, ft;ojmêdhe mirêpresim
NATO-n qêtêmbaji rotin udhiheqês nêpraninê
ndërkombêtare ushtarake dhe têzbatojê
~rgjegj!sltêqêijanê dhi!!nêsipas Rezolutês
1244 têKêshlllitti Sigurimit të Kombeve tê
Bashkuara(1999) dhe Planit têAhtisaartt, deri nê
atêkohl: kur lnstltuclonet e Kosovêsda têjenê
nê gjendje ti!: man1n kêtopêrgjegjêsl.Ne do tê
bashkêpunojmêplotêslsht më këto prani nê
Kosovêpêrtê slguruar paqen, prosperitedhe
stabilitetin nêtêardhmen ne Kosovê.
6. Pêrarsye têkutturês, gjeografisê dhe hlstorisê,
ne besoJmê se e ardhmjaoni!:êshtêni!:famllJen
europlane. Pêrkêtêrsye, ne shpallim synimin
tonêpër têmarri têgjltha hapat e nevoJshêm
pêrtêslguruar anêta~slm têplotênêBashkimln
Europlan sapo qêtêjetê e mundshme dhe pêrtê
zbatuar reformat e kêrkuara pi!:r integrlm
europian dhe: e:uroatlantik.
7, Ne I shprehkn mlrênjohje Organlzatêssë
Kombeve të Bashkuara pêrpunênqêka bêrêpêr
têna ndihmuar nil!iriml!,kêmbje:ndhe: rlndêrtimin
pH luftl! dhe ndêrtlmln e lnstitucloneve ti!:
dl!mokracîsê. Nejeml têpêrkushtuar têpunoJmê
nêmênyrêkonstruktlve me Organlzatên e
Kombe11etêBashkuara gjersa ajo vazhdon punên
e saj nêperiudhên nêvljlm.
8. Me:pavarêslnAvie detyra e anêtarêsisêsë
pêrgjegjshme nêbashkêsini!:ndêrkombêtare.Ne
e pranojmê plotêsisht kêtêdetyrê dhe do t'I
p,êrmbahemlparlmeve têKartêssêKombeve tê
Bashkuara, Aktin Final têHelslnkit, akteve tjera
têOrganizatês~r Sigurl dhe Bashkëpunimnë
Europê,obllglmeve ligjare ndii!irkombêtaredhe
parlmeve têmarrêclhênlevetêmira
ndêrkombêtareqêshênojnêmarri!:dhênlet
ndêrmjet shteteve. Kosava do têketêkufljtê e
saj ndërkombêtarêashtu slç janê paraparênê
Aneksln VIII têPlanttAhtisaarit, dhe do tê
respektojê plotësisht sovranîtetin dhe inte:gritetln
territorial têtêgjifqlnJve tanê.Kasova, po
ashtu, do têpêrmbahet nga kêrcênlmlapo
përdorlml I forcêsnêc:ilêndamênyrêqêêshtê
Jokonsistente me ql!lllmet e Kombeve tê
Bashkuara.
9. Ne, nêpêrmjetkêsajDeklarate, marrim
obligimet ndêrkombêtare tKasovês,pêrfshir!
atote arrltura nêemrin tonê nga Misianii
Admlnistratês sêPêrkohshmetêKombeve tê
Bashkuara nêKosovê{UNMIK), si dhe abll!illmet e
traktateve dhe obligimet tjera têish-Republikës
Socialiste Federatlve têJugosllavlsê ndaj têcilave
obllgohemi si ish-pjesê konstltul11e,irê
konve:ntat e Vj@nil!ispêrmarTêdhênietomatike
dhe konsullore. Ne do têbashkêpunoJmê
plotêslsht me Trlbunalin Penal Ndêrkombêtarpêr
lsh-Jugosllavlnê. synojmê t6 kirkojmê
anêtareslm nêorganlzatat ndirkombêtare, në tê
cilat Kosava da tênojêtê kontribuojê pêr
qi!:llime têpaqe:sdhe:stabilndêrkombêtar.
10. Kosova zotohet pêrpaqêdhe stabllltenêt
rajonin tonteEuropêsJugtindore. Pavarêsla
jonêe sjell nêfund proŒsln e shpêrbêrjessê
dhunshme têJugo5llavlsê.Gjersa ky proŒs ka
qenêi dhembshêm, ne dote punajmê pa pushlm
pêrt'l kontribuar njêpajtlml qêdo têlejonte
EuropênJuglindore têshkojê pêrtej konfliktevetê
sêkaluarêsdhe têfarkojê lidhjete reJa raJonale
te ba:.hkëpunlmlPêrkêtêarsye, do ti punojmê
sê bashku me fqlnjtê tanê~rtêavansuar tê
ardhmen tonêtêpêrbashkêteuropiane.
11. Ne shprehim, nêeçanti, dêshirêntanêpêrtê
vendosur marrêdhênletê mira me têgjithê
fqlnjtê tanê,pêrfshlrêRepubllkên e Serblsê, me
têcHênkeml marrtdhenie hlstorike, tregtare dhe
shoqêrore,têcilat synojmê t'iihvillojmê mê tej
nêtê an:lhmene afêrt. Ne do tê11azhdojmê
. përpjekjetona p!r t'I kantribuar marTêdhênleve
ti! fqlnji!sisê dh@bashkêpunimitepublikêne
Serblsêduke promovuar pajtlmln ndêrmjet
popujve tanê.
12,Ne, nêpêrmjetkhaj,afirmojmê nêmênyrêtê
qartë, speclflke dhe têpare:vokueshme se Kosova
do til!iJete ligjêrisht e obllguar têplOtêSOjê
dlspozitatat e pêrmbajtura nêkêtêDeklaratê,
përshlrê kêtuve~nêri5ht obligknet e saj nga
Piani I Ahtlsaarit. N6 têgjitha kêtoçêshtje, ne do
~~~~fro!~~: .~~e~ !~..~.au ~~~~1~!
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218Republika e.Kosovës - Kuvendi - Lajmet Page3 of3
Slgurtmlttf: Kmnbeve tf: Balhlwma, plrflhlrl
.. - ... 1244 (1999), No""""llm puHllldlht
~l kftfl De~,adhe I bljml aptlafroJnla
plrknlhJen dhe mb&hlllljlen e lyre.
D-001
Kryetarl I Kuvendlt d: lloNvlill
Jalwp KRASNIQI.
http://www.assembly-kosova.org/?cid= 1,128,1635 24.6.2009
219220 ANNEX2
ICTY, Prosecutor v. Milosevic, IT-02-54-T, Transcript,
1 December 2004, pp. 33983 & 34043-34056
http://www.icty.org//ases/slobod_milosevic/tranen/04120IIT.htm
221222 04120IIT Page 1 of 1
Page 33983
l going to ask you to admit that book into evidence as well, this book of
2 Mr. Primakov that he mentioned yesterday.
3 If you wish, if you accept this, I will prepare it and submit it
4 to the Chamber.
5 JUDGE ROBINSON: Submit it tous, and we'll consider it.
-
6 THE ACCUSED: [Interpretation] Thank you. I call witness Vukasin
7 Jokanovic.
8 JUDGE ROBINSON: Mr. Milosevic, I'm reminded that of course it's
9 only the parts of the book that are relevant that were adverted to that we
10 would consider admitting, so that you should identify those parts.
11 THE ACCUSED: [Interpretation] Very well.
12 MR. NICE: And of course the obvious point is that I wasn't
13 alerted toit and may have had several questions to ask arising out of it,
14 but perhaps I could see the book when it is admitted.
15 JUDGE ROBINSON: Very well, yes.
16 [The witness entered court]
17 JUDGE ROBINSON: Let the witness make the declaration.
18 THE WITNESS: [Interpretation] I solemnly declare that I will speak
19 the truth, the whole truth, and nothing but the truth.
20 JUDGE ROBINSON: Please be seated.
21 WITNESS: VUKASIN JOKANOVIC
22 [Witness answered through interpreter]
23 JUDGE ROBINSON: You may begin, Mr. Milosevic.
24 Examined by Mr. Milosevic:
25 Q. [Interpretation] Good morning, Mr. Jokanovic.
(. .. )
·(pages 33984-34042 omitted)
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2230412011T Page l of 14
Page 34043
1 Mr. Jokanovic, for the Assembly of Serbia to be able to pass these
2 amendments, it was necessary to receive the approval of both provinces; is
3 that so?
4 A, Yes.
5 Q. Was it necessary to have the approval of the Republic of Serbia
6 for provincial assemblies to pass amendments?
7 A. No. Serbia's approval was not necessary. Provinces could change
8 their constitutions independently.
9 Q. Mr. Jokanovic, we will now move on to very specific issues,
10 questions, because as you just confirmed, you were at the time president
11 of the Assembly of Kosovo.
12 A. Correct.
13 Q. When did the Assembly of Kosovo and, if you know, the Assembly of
14 Vojvodina meet to give this approval?
15 A. For Vojvodina it was the 10th of March, and for Kosovo it was the
16 23rd of March.
17 Q. I thought Vojvodina's Assembly met on the 21st of March, but what
18 you say is true. The session of the Assembly of Kosovo over which you
19 presided took place on the 23rd of March.
20 Tell me, was it a public session?
21 A. The session of the Kosovo parliament was a public one. It was
22 attended by a great number of journalists. Never in my life, although I
23 occupied various posts, had I spoken before a greater number of the
24 press. There were 180 journalists accredited from all over Yugoslavia and
25 even from abroad. The interest was huge in the course and the work of
Page 34044
24.6.2009
http://www.icty.org/x/cases/slobodan _milosevic/trans/en/04120 IIT.htm
2240412011T Page2 of 14
1 that particular session of the Assembly of Kosovo.
2 Q. Tell me, Mr. Jokanovic, was this parliament session held in a
3 regular way?
4 A. This parliament session was held quite regularly, in keeping with
5 the constitution of Kosovo and in keeping with the Rules of Procedure of
6 that parliament.
7 Q. You were the speaker of that parliament. What was the ethnicity
8 of other high officials in the parliament?
9 A. I was president, the vice-president was Albanian, general
10 secretary was also Albanian. Since the parliament had three Chambers, in
11 two Chambers there were Albanians, and in the third one there was a
12 Montenegrin at the top. And my in my previous posts I also had a lot of
13 Albanian colleagues. I think I explained that already.
14 Q. Please tell us, was any pressure exerted on the delegates?
15 A. To vote or not to vote?
16 Q. Were they pressured into accepting the proposal to consent to
17 these constitutional amendments?
18 A. We functioned in the system of delegates. Delegates voted in
19 accordance with their constituency. Their constituency were the municipal
20 assemblies, and the delegates of social political Chambers and various
21 political organisations. Pressures in the sense of threats or any other
22 kinds of pressure did not exist. It was the duty of the delegates to vote
23 in accordance with the position of those organs who sent them to the
24 Assembly of Kosovo.
25 Q, Actually to vote in accordance with the position of their
Page 34045
l constituency?
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225041201IT Page3 of 14
2 A. Yes, that's right.
3 Q. Please tell me, on the 3rd of May, 2002, Ibrahim Rugova stated
4 here, I'm quoting his words, I took this off the transcript: "The Kosovo
5 Assembly had to decide on the suspension of the status of Kosovo from the
6 federation and the Assembly delegates were pressured into voting on this.
7 The public was against this. They used violence to pressure them. There
8 were tanks in the streets, and there were secret agents inside the
9 Assembly building so that the rnembers voted under pressure. I rernernber
10 that ten members voted against, and these rnembers were punished,
11 convicted. Sorne were sent to prison, and some were fired."
12 All right. So you were the president of the Assembly. Let us
13 clear up sorne things. Were there any tanks around the Assembly building?
14 A. No, there were no tanks around the Assembly building.
15 Q. Did you see any tanks? How did you corne to the Assernbly building
16 from your house? Did you walk there or did you corne with an escort or
17 something like that?
18 A. Well, the distance is relatively short. I lived in what was then
19 called Beogradska Street. I went there on foot. I saw no tanks on the
20 streets, no tanks around the Assembly building.
21 Q. Mr. Jokanovic, please have in mind the warning of the
22 interpreters. As both of us speak Serbian, we have to rnake a pause in
23 order to allow the interpreters to interpret what both of us say.
24 So there was no pressure, and there were no tanks. But the fact
25 that ten members of the Assembly voted against is an accurate one that can
Page 34046
l be confirrned by the minutes?
2 A. Yes, that's right.
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226041201IT Page4 of 14
3 Q. How many members of the Kosovo Assembly attended that session
4 where amendments were passed?
5 A. Hundred and 87.
6 Q. What was the total number?
7 A. Hundred and ninety.
8 Q. So only three members of the then-Kosova Assembly did net attend
9 the session?
10 A. Yes, that's right.
11 Q. And out of thase 187, Rugova himself stated that ten voted
12 against, and haw many refrained fram voting?
13 A, Ten voted against, and two delegates abstained from voting.
14 Q. So everybody else voted for?
15 A. Yes. Everybody else voted for. This was a vast majority, and the
16 decisian was followed by an applause. Everybody stood up, because in
17 addition ta working nature, this was also a forma!, solemn Assembly
18 session.
19 Q. Please tell me, did anybody from Serbia have an influence over the
20 election of the members of the Kosovo Assembly?
21 A. The Republic of Serbia and its organs had no influence aver the
22 personnel policy in Kosovo. The personnel policy in Kosovo was something
23 that was dealt with by Kosovo organs and other institutions in Kosovo.
24 Q. Well, there are documents to confirm all of these facts that you
25 are testifying about. There were 187 delegates attending out of a total
Page 34047
1 number of 190, ten voted against, 2 abstained from voting.
2 How would you characterise the claim contained in paragraph 86 of
3 this so-called indictment which reads as follows, I'm quoting --
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4 JUDGE ROBINSON: I'm stopping you. The indictment is proper as to
5 form and to substance. Challenges were made at a preliminary stage, and
6 they were dealt with. The indictment is a reality. It is entirely proper
7 and should not be referred to in that way. Continue.
B THE ACCUSED: [Interpretation] Mr. Robinson, the indictment is an
9 act of insolence, because everything in it is turned upside down. Not a
10 single count --
11 JUDGE ROBINSON: I have eut you off. If you are going to proceed
12 in that manner concerning issues that have already been dealt with, I will
13 not allow you to do so. I want to hear nothing more about the indictment.
14 That issue has been dealt with, was dealt with from over two years ago.
15 Proceed with your questions,
16 THE ACCUSED: [Interpretation] All right. Well, here is an example
17 of how it has been dealt with, Mr. Robinson. You don't need a greater
18 example from this testimony of this witness. So paragraph 86 reads as
19 follows: "The Kosovo Assembly met in Marchin Kosovo, and they voted on
20 the proposed amendments," which is correct again. And I will quote on:
21 "And most of the Kosovo Albanian delegates abstained from voting," which
22 is ablatant lie, because only two of them abstained from voting. And
23 then I continue quoting: "Although lacking the required two-thirds
24 majority in the Assembly --" which again is ablatant lie, because only
25 ten delegates voted against --
Paga 34048
1 JUDGE ROBINSON: Mr. Milosevic, there will corne a time when you
2 will be allowed to make a speech. That time is not now. The evidence is
3 to be elicited through the witness.
4 THE ACCUSED: [Interpretation] Very well. Very well, Mr. Robinson.
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5 JUOGE KWON: Check the paragraph number again. I couldn't follow.
6 You said 86.
7 THE ACCUSED: [Interpretation] Yes. I said 86. 86, yes.
8 Then it goes on to say: "Although the majority of Kosovo Albanian
9 delegates abstained from voting. Although lacking the required two-thirds
10 majority in the Assembly, the president of the Assembly nonetheless
11 declared that the amendments --"
12 THE INTERPRETER: Interpreters note that Mr. Milosevic is reading
13 out of paragraph 81.
14 THE ACCUSED: [Interpretation] Thank you, Ms. Anoya.
15 Perhaps I had an old version, but the text is identical, and the
16 new number is paragraph 81. I have it in English, and what I quoted is
17 accurate, even in this new paragraph number. And it says here: "On 23rd
18 March, [In English] Assembly of Kosovo met in Pristina and with the
19 majority of Kosovo Albanian delegates abstaining, voted to accept the
20 proposed amendments to the constitution. Although lacking the required
21 two-thirds majority in the Assembly, the president of the Assembly
22 nonetheless declared that amendments had passed."
23 [Interpretation] And then in the end there's another sentence. It
24 is not important for this witness: "[In English] Assembly of Serbia voted
25 ta approve the constitutional change, effectively revoking the autonomy
Page 34049
1 granted in the 1974 constitution."
2 [Interpretation] This is precisely what I read out verbatim.
3 MR. MILOSEVIC: [Interpretation]
4 Q. Therefore, out of 187 delegates, two voted against -- two
5 abstained, ten voted against, and 174 voted for; is that right?
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6 A. Yes, that's right.
7 Q. All of these delegates who had some reservations and who voted
8 against, were they given an opportunity to speak publicly in the Assembly?
9 A. The session was held in a democratic atmosphere. All of those who
10 wanted the floor were granted the right to speak, and you can see that in
11 the tape recording. All of those who wanted were able to discuss
12 publicly. I think that a lot of those who voted for also spoke up
13 publicly. I think that there were a total of 34 people taking the floor.
14 Q. How many?
15 A. I think 34. I have it here in a press excerpt, because the press,
16 on the following day, wrote about all of these facts that I'm describing
17 here. It wrote about the debate, about those who attended, and so on.
18 And there is also a videotape which is not complete because our technical
19 facilities were not very modern at the time.
20 JUDGE ROBINSON: What was the ethnie distribution of the
21 membership of the Assembly?
22 THE WITNESS: [Interpretation] The ethnie composition was in
23 accordance with the ethnie composition of the population. Therefore,
24 there were over 70 percent of Albanian delegates in the Assembly, and at
25 the time there were 77 percent of Albanians living in Kosovo and
Page 34050
1 Metohija, and in the Assembly over 70 percent of the delegates were
2 Albanian. If I remember well, there were 140 and something -- 142 or 143
3 Albanian delegates in the Assembly.
4 And then we had Serbs, Montenegrins, Turks, Muslims, and sa on,
5 again in numbers corresponding the ethnie composition of the population,
6 because we had to satisfy the requirement for representation both as far
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7 as the ethnie composition was concerned and the social composition. That
8 was very important in our then-system.
9 MR. MILOSEVIC: [Interpretation]
10 Q. All right, Mr. Jokanovic. I have here the English translation and
11 the Serbian text, so there are no problems with translations here. I also
12 have the tape recording from the session of the Assembly held on the 23rd
13 of March, 1989. I marked certain portions. You received this text in
14 English. This is Exhibit 963. And I ask that this be admitted into
15 evidence.
16 You will be surprised to hear that even those who voted against
17 did not have very firm views, were not firmly opposed to the
18 constitutional amendments. However, it is their democratic right to vote,
19 sa there is no problem there.
20 JUDGE KWON:I don't follow the number you said 963 is coming
21 from.
22 THE ACCUSED: [Interpretation] This is the number indicated on the
23 list. It says here "DPK 963, tape recording," and so on.
24 JUDGE KWON:65 ter number, yes.
25 JUDGE ROBINSON: Proceed, Mr. Milosevic.
Page 34051
1 MR. MILOSEVIC: [Interpretation]
2 Q. Therefore, my question was, Mr. Jokanovic -- in view of the
3 significance, I have to repeat this question. In view of these facts that
4 you are testifying about, and in view of these documents, how can you
5 qualify the claims in paragraph 81 - and I thank Mr. Kwon for helping me
6 with this - this claim that on the 23rd of March, 1989 the Assembly of
7 Kosovo met in Pristina and, with the majority of Kosovo Albanian delegates
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8 abstaining, voted to accept the proposed amendments even though the
9 required two-thirds majority was lacking, and the president of the
10 Assembly - meaning you - declared that the amendments had passed, full
11 stop.
12 On the 28th of March, 1989 the Assembly of Serbia voted to approve
13 the constitutional changes effectively revoking the autonomy granted in
14 the 1974 constitution. So this is paragraph 81 of the English version.
15 So please tell me, in view of these facts that you told us here, how do
16 you assess this paragraph?
17 A. This is not correct. This is fabricated. This fabrication is an
18 attempt to justify what was going on in Kosovo.
19 I think that the Office of the Prosecution received this
20 information which they deemed to be reliable. They received this -- these
21 facts from those who use such fabrications to strengthen their separatist
22 objectives of breaking Kosovo away from Serbia and transforming it into an
23 independent state.
24 I don't think that something like this, a claim like this, is even
25 logical. I don't think that it would even be possible, realistic, because
Page 34052
1 as a speaker of the parliament, I'm nota magician, so I could not, in the
2 presence of 187 delegates, and in the presence of 180 journalists, in a
3 situation where all leaders, the most prominent leaders from Kosovo and
4 from the federation were present, how could I, under those circumstances,
5 say the amendments have been passed when, in fact, they have not? The
6 press reporting both in Serbian and Albanian will clearly show that the
7 situation was, as will the tape.
8 Q. Mr. Jokanovic --
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9 THE ACCUSED: [Interpretation) Could we play the tape,
10 Mr. Robinson? And this will allow you to gain an impression. We have a
11 videotape, a very brief one.
12 JUDGE ROBINSON: Yes. Yes.
13 THE ACCUSED: [Interpretation] Could you please play the tape.
14 [Videotape played]
15 JUDGE ROBINSON: Stop the tape. Mr. Milosevic, was it your
16 intention ta have the tape played without there being any translation?
17 Because we're not getting any translation, sa it's -- it's of no use ta
18 us.
19 THE ACCUSED: [Interpretation] It was not my intention ta play it
20 without interpretation, because I assumed that it could be translated
21 because it's very brief when you play the tape. Sa I thought that what is
22 being spoken and what is being seen about all the organs supporting the
23 Assembly session, that there was major interest in that, I thought that
24 several of these key things could be interpreted. But we can continue.
25 You can see what the atmosphere at the Assembly session itself was like.
Page 34053
1 JUDGE ROBINSON: Well, before we continue, let me find out whether
2 the interpreters are in a position to translate, to interpret.
3 THE INTERPRETER: Your Honours, it's very fast.
4 JUDGE ROBINSON: Mr. Milosevic, I just heard that. The
5 interpreters say the speech is very, very fast. It's very difficult for
6 them.
7 THE INTERPRETER: Without a transcript, Your Honour.
8 THE ACCUSED: [Interpretation] The following clip is not very fast,
9 and it's pretty indicative, and I think it will show the actual place
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233041201IT Page 11 of 14
10 where the Assembly was held and the declaration of the adoption of the
11 amendments. We do not have to interpret this very fast clip, but let's
12 look at the next one.
13 JUDGE ROBINSON: Very well, yes.
14 JUDGE KWON: And if you could also indicate the relevant page
15 number of this transcript. It's not interpreted?
16 THE ACCUSED: [Interpretation] This next clip, you will see now and
17 then I will try with the help of the witness to identify when it was taken
18 and so on.
19 [Videotape played]
20 THE INTERPRETER: [Voiceover] "There is the Socialist Republic of
21 Serbia became astate throughout its territory after the decision of the
22 republican -- after the parliament on Kosovo the constitution of the
23 Socialist Republic of Serbia will be announced on the 28th of March. It
24 is well known that the provincial parliament of Kosovo gave its approval
25 to the wording of the amendments."
Page 34054
1 MR. MILOSEVIC: [Interpretation]
2 Q. Very well. Mr. Jokanovic --
3 JUDGE ROBINSON: Before you proceed, let me ask the witness, just
4 to clarify this. There's a reference to paragraph 81 of the indictment to
5 which Mr. Milosevic referred. You say it is -- it does not reflect the
6 factual situation because the reference to the required two-thirds
7 majority not being present is wrong because there was a two-thirds
8 majority. Please answer that.
9 THE WITNESS: [Interpretation] There was a two-thirds majority and
10 agreement was reached by an overwhelming majority, much greater than a
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234 Page 12of 14
0412011T
11 two-thirds majority. A two-thirds majority was required, however, under
12 the constitution.
13 JUDGE ROBINSON: So that in declaring the amendments as having
14 passed, you acted entirely properly.
15 THE WITNESS: [Interpretation] I acted completely properly, in
16 accordance with my agenda and in the way I conducted the meeting, asked
17 who was for, who was against, how many abstained, and I declared that
18 agreement was reached on the amendments to the constitution of Serbia, and
19 this was followed, as you could see, by applause. All the deputies who
20 were present got to their feet.
21 This happened before 180 journalists and TV crews who happened to
22 be accredited for that event that day. I have the original newspapers
23 with me where what I'm saying now was published at the time. These are
24 both newspapers in Serbian. I also have a newspaper in the Albanian
25 language, Jedinstvo Politika in Albanian. It's the newspaper Rilindja
Page 34055
1 Komunist. There are pictures and so on.
2 JUDGE ROBINSON: You've answered the question.
3 MR. MILOSEVIC: [Interpretation]
4 Q. Mr. Jokanovic, at the moment when you declared the amendments
5 adopted and when the Assembly session got toits feet and the applause
6 began, we could see on this brief clip many figures who were sitting
7 there. Can you please remember and tell us who we can see. Who was
8 sitting in the front row? Who were those who were present as special
9 guests and who also applauded and got to their feet and so on?
10 A. The session was attended by leaders and officials from the
11 federation who were representing Kosovo in the federation. The member of
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12 the Presidency of Yugoslavia was there. The mernber of the Presidency of
13 the Central Cornmittee of Yugoslavia.
14 Q. I apologise for interrupting you, Mr. Jokanovic, but it would be
15 useful, if you remernber, if you could also tell us their names and not
16 only just their posta.
17 A. Member of the Presidency of Yugoslavia who was before the
18 vice-president and the president of the Presidency, his name is Sinan
19 Hasani.
20 Q. And what is his ethnicity?
21 A. He's an Albanian from the village of Pozharanje from my own
22 municipality Kosovska Vitina. He's also a writer, an author, who
23 published the first novel in the Albanian language. He's a very
24 prominent, respected figure. He's a novelist called "Rrushi ka filluar me
25 u pjek." That's in Albanian. In Serbian the title is The Grapes are
Page 34056
1 Beginning to Ripen.
2 Next to him was Ali Shukrija, who was a member of the Presidency
3 of the Central Cornmittee of Yugoslavia. Remzi Koleci, the president of
4 the Presidency of Kosovo.
5 Q. Remzi Shukrija [sic] Was also an Albanian?
6 A. Yes, an Albanian from Kosovska Mitrovica. He participated in
7 World War II and was decorated for that, and he was in the political life
Bof Kosovo and the federation for many years.
9 Q. Continue. Remzi Koleci, what about him?
10 A. Remzi Koleci was the president of the Presidency of the Autonomous
11 Province of Kosovo. This is the top function in Kosovo.
12 Rrahman Morina, the president of the Presidency of the Provincial
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2360412011T Page14 of 14
13 Committee of Kosovo.
14 Q. All Albanians?
15 A. Albanian. Daut Jasanica, the president of the Presidency of the
16 Socialist Alliance of the Albanians. The president of the Executive
17 Council, also an Albanian, Nazmi.
18 Q. Was that Jusuf Zejnullahu who was the person at the time?
19 A. Jusuf Zejnullahu at the time actually -- actually, at the time it
20 was either Nazmi Mustafa or Jusuf Zejnullahu. There are many years that
21 have gone by since then and there were people always changing in those
22 functions. I think it was Jusuf Zejnullahu.
23 Q. Well, I'm not sure either. I'm trying to remember.
24 JUDGE KWON: Excuse me, Mr. Milosevic.
25 Mr. Jokanovic, at the last page of this transcript I notice you
( ... )
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237238 ANNEX3
The Constitutional Court of Yugoslavia,
Minutes U-No. 105/1-89 of 18 January 1990
[original and translation]
239240CONSTITUTIONAL COURT OF YUGOSLAVIA
Ref: U-No. 105/1-89
18 January 1990
Belgrade
LLJ
MINUTES
of the sittings deciding and voting in the procedure to render an opinion of the
Constitutional Court of Yugoslavia on the incompatibility of Amendments IX to XLIX to
the Constitution of the SR of Serbia with the Constitution of the SFRY
(..)
Judge Dr. Ivan Kristan made a proposai to additionally examine the question of the
adoption of the amendments to the Constitution of the SR of Serbia while emergency
measures were still in place in the SAP of Kosovo.
Two judges voted in favour of Judge Dr. Ivan Kristan's proposai and 11 (eleven)
judges were against it.
Judge Kristan proposed to study the matter, especially with regard to law by the
scientists concerning restricting the transfer of immovable property, although he agreed
with the arguments advanced by Judge Rapporteur Milovan Buzadzic.
Further, Judge Kristan made an oral proposai, at the sitting on deciding and voting of
5 January 1990, to additionally study the status of autonomous provinces and submitted
his proposai in writing. In this written proposai, Judge Kristan challenged, that is brought
into doubt, three amendments to the Constitution of the SR of Serbia, namely: Amendment
XXIX, point 1;Amendment XLIV, point 5; Amendment XLVII.
The Judge Rapporteur reported on these issues and stated the reasons why he deemed
that Amendment XXIX, point 1; Amendment XLIV, point 5; and Amendment XLVII to
the Constitution of the SR of Serbia were not incompatible with the SFRY Constitution.
The Constitutional Court accepted the reasoning of Judge Buzadzic and determined that
the said Amendments to the Constitution of the SR of Serbia were not in contravention of
the SFRY Constitution.
(..)
241 YCTABH!,i CY/1 JYïOCJlA.BHJE
USTAVNI SUD JUGOSLAVIJE
USTAVNO SOO!SèE JUGOSLAVIJE
YCTABEH CY~ HA JYrocnABHJA
5p Br. stU.:::?E<.?.l)._;?(l-89
l 8 • j él._n\1"'.19..~?.-ro.!1./god./let:
5EOïPA,[l-8EOGRA0-6EJ!r PA/J.
LLJ
Z A P I S N I K
sa sednica o veéanju i glasanju u postupku utvrdjivanja mis
ljenja Ustavnog suda Jugoslavije o suprotnosti Amandmana IX
- XLIX na Ustav SR Srbije sa Ustavom SF~J
Ustavni sud Jugoslavije odrzao je sednice o veéanju
i glasanju u postupku·utvrdjivanja rnisljenja o suprotnosti Am
andmana IX - XLIX na Ustav SR Srbije sa Ustavom SFRJ 9, 12.
i 18. januara 1990. godine.
Svirn sednicama o veéanju i glasanju prisustvovalo
je dvanaest sudija, i to: predsednik Ustavnog suda Jugoslavije
Dusan Strbac i sudije Hrvoj~ Bacié, Bozidar Bulatovié, Milo7
van Buzadzié, mr Krste Calovski, dr Aleksandar Fira, dr Omer
Ibrahimagié, dr Branislav Ivanovié, Dim~e Kozarov, Veljko Mar
kovié, Radko Mocivnik i Milosàv Stijovié.
Sud.ija dr Ivan Kristan prisustvovao je samo na sed
nici o veéanju i glasanju odrzanoj 9. januara 1990. godine.
Sud je prihvatio predlog Radka Mocivnika da moze da glasa i
u ime sudije dr Ivana Kristana.
Sednicama o veéanju i glasanju prisustvovali sui
sekretar Ustavnog suda Jugoslavije Krcun Dragovié i strucni
saradnici Suda. ·
Sednice o veéanju i glasahju vodio je predsednik
Ustavnog suda Jugoslavije Dusan strbac.
Sudija izvestilac Milovan Buzadzié predlozio je
da Ustavni sud Jugoslavije utvrdi da su sledeée odredbe Am-
242 - 2 -
andmana IX - XLIX na Ustav SR Srbije u suprotnosti sa Ustavom
SFR.J:
1. Odredba taèke 5. stav 1. Amandmana XIV na Ustav
SR Srbije, u delu kojim je utvrdjeno da se zakonom, odnosno
na zakonu zasnovanorn odlukorn skups~ine drustveno-politicke
zajednice utvrdjuje oblik samoupravnog organizovanja u kom~
se zadovoljavaju potrebe i interesi u odgovarajuéoj oblasti.
Za predlog sudije izvestioca glasalo je cetiri su
dije, a. protiv predloga glasalo je devet sudija, sto inaci da
predlog sudije_Jzvestioca nije prihvaéen.
2. Odredba tacke ·3. Amandmana XX na Us:tav SR--Srbije,···
u delu kojim je utvrdjeno da se zakonorn moze ograniciti pro
met nepokretnosti.
Za prediog sudije izvestioca glasalo je svih 13 (tri-
naest) ·sudija Ustavnog suda. · ··· ·-'
3. Odredbe atava ·3_ Amandmana XXVII na Ustav SR Sr-
bije.
Za predlog sudije izvestioca glasalo je 8 (osarn) su
dija, a protiv je glasalo 5 (pet) sudija. Sudija dr Aleksandar
Fira, Veljko Markovié i Milosav Stijovié izdvojili su mislje~
nje.
4. Odredba tacke 4. stav 2. Arnandmana XXXIX na Us
tav SR Srbije, u delu kojim je utvrdjeno da delegatsku izbornu
jedinicu za delegate u Veéu opstina Skupstine SR Srbije èine
radni ljudi i gradjani u drustveno-politièkim organizacijama.
Za predlog sudije izvestioca glasalo je svih 13 (tri
naest) sudija Ustavnog suda.
Sudija dr Ivan Kristan dao je predlog da se dodatno
prouci pitanje donosenja Arnandmana na Ustav SR Srbije u vreme
trajanja vanrednih mera u SAP Kosovo.
243/
- 3 -
Za predlog sudije dr Ivana Kristana glasala su dvo~,
jica sudija, a protiv je glasalo 11 (jedanaest) sudija.
Sudija Kristan je predlozio izu?avanje stvari, a
narocito u vezi zakona od strane nauke u pogledu ogranicava
nja prometa nepokretnosti iako se slozio sa iznetom argumen
tacijom sudije izvestioca Milovana Buzadziéa.
Takodje je sudija Kristan predlozio usmeno na sed
nici o veéanju i glasanju 5. I 1990. godine da se dodatno
prouci polozaj autonornnih pokrajina i dao pisrneni predlog.
U pismenom predlogu sudija Kristan je osporio - odnosno doveo
u sumnju tri Arnandmana na Ustav SR Srbije,. i-to: Arnandman XXIX
tacka 1, Arnandrnan XLIV tacka 5, Arnandman XLVII.
Sudija izvestilac je referisao po ovirn pitanjima i
izneo razloge zbog kojih srn~tra da nema suprotnosti amandmana
XXIX tac. l, XLIV -tac. 5. i XLVII na Ustav SR Srbije sa Usta
vom SFRJ. Ustavni sud je prihvatio argumentaciju sudije Buza
dziéa i utvrdio da Arnandmani na Ustav SR. Srb~je nisu u s_u_prot- 1
nosti sa Ustavorn SFRJ~ __J
Ceo tok sednice o veéanju i glasanju stenografski je
belezen i magnetofonski sniman.
Magnetofonske beleske prilazu se ovorn zapisniku i
cine njegov sastavni deo~
SUDIJA IZVESTILAC PREDSEDNIK
Milovan Buzadzié USTAVNOGSUDA JUGOSLAVIJE
Dus.an strbac
SAMOSTALNI SAVETNIK
Ljubica, Pavlovié-Trgovcevié
244 ANNEX4
Le Temps, "Martti Ahtisaari: 'Le Kosovo est un cas à part"',
5 March 2008
http://www.letemps.ch/Facet/print/Uuid/79cb56ac-aa06-11dd-bf59-
ad3d6140ad87 /Martti_ Ahtisaari_ Le_Kosovo_ est_un_casà_part
245246Chargement de« LeTemps.ch I Martti Ahtisaari: «Le Kosovoest un cas à part•,. 15.06.09 22:50
LE TEMPS
-------------------------------------· ----------
BALKANS Mercredi5 mars 2008
Martti Ahtisaari: «Le Kosovo est un cas à part»
Par Caroline Stevan, envoyée spécialeà Helsinki
Artisan du plan d'indépendance de l'ex-province serbe, l'ancien
président finlandais revient sur la naissance du nouvel Etat.
Nommé fin 2005 émissaire des Nations unies pour le Kosovo, l'ancien président finlandais Martti
Ahtisaari (1994-2000) a supervisé les négociations concernant le statut de la province serbe
pendant des mois. En mars 2007, il rend un rapport qui prône l'indépendance et fournit une
ossature au futur Etat kosovar. Sans surprise, Pristina s'est officiellement affranchi de Belgrade le 17
février dernier. Interview.
Le Temps: Le Kosovo vient de déclarer son indépendance selon votre plan. Comment vous sentez
vous?
Martti Ahtisaari: En réalité, je suis déçu que le Conseil de sécurité des Nations unies n'ait pu réaliser
ce plan. Le Kosovo a autoproclamé son indépendance, mais il n'y avait pas d'autres options. Pristina
l'a fait sur la base du rapport que j'ai rendu en 2007 et c'était une condition pour une
reconnaissance par les autres Etats.
- Etes-vous surpris par la réaction de Belgrade?
- Ce qui m'étonne dans cette affaire, c'est que la Serbie savait depuis le début ce que j'allais
proposer. Il a tout de suite été question d'indépendance lors des réunions avec les négociateurs
français, britanniques, italiens, allemands, américains et russes. L'une des conditions formulées au
départ était de ne surtout pas revenira situation d'avant 1999. Lorsque j'ai rencontré [le premier
ministre) Kostunica en 2005, je lui ai dit que j'intercela comme la perte du Kosovo. C'était
très clair et à cette époque, la population serbe partageait ce sentiment. J'aurais normalement dû
rendre mon rapport fin 2006, mais cela a été reportéause des élections. Ma position était donc
connue depuis longtemps. Les autorités serbes ont sciemment préparé leur populatiàun autre
scénario et je trouve cela extrêmement grave. La Russie a aussi sa part de responsabilité dans
l'attitude affichée par Belgrade mais je suppose que leur irresponsabilité n'ira pas plus loin que des
déclarations.
- Craignez-vous, comme certains l'avancent, que l'indépendance du Kosovo ne déclenche des
revendications en chaîne?
- Le Kosovo est un cas à part et nulle autre région n'a une histoire comparable. L'OTAN y est
intervenue en 1999 pour mettre un termeà la guerre lancée par Slobodan Milosevic. Le territoire est
ensuite passé sous administrationdes Nations unies. Depuis 1999, le Kosovo était de facto un
protectorat onusien et non plus une province serbe.
- Que pensez-vous de la situation en Republika Srpska, où les Serbes ont des velléités
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247Chargement de« LeTemps.IMarttlAhtlsaari: «Le Kosovo est un cas à part»» 15.06.09 22:50
d'indépendance vis-à-vis de la Bosnie?
- Je n'en pense rien.
- Belgrade veut saisir la Cour internationale de justice au motif que l'indépendance du Kosovo
violerait la résolution 1244 des Nations unies affirmant le principe de l'intégrité du territoire serbe.
Est-ce légitime?
- Les choses ont tellement mal tourné dans les années 1990, entrainant la fuite de milliers de
réfugiés et l'intervention armée de l'OTAN... Toute autre option que l'indépendance est de la
littérature. Enoutre, la Serbie n'a jamais rien fait pour intégrer les Kosovars. Ceux-ci ont été
empêchés de participer à la vie politique, de développer leur région au niveau économique ... La
province, dès lors, n'était pas considérée comme partie prenante de la Serbie.
- Le Kosovo a-t-il les moyens de son indépendance?
- Dans un monde idéal, l'indépendance aurait dû intervenir en 1999. Le Kosovo a donc eu le temps
de s'y préparer. C'est un pays qui a des ressources, comme le lignite ou les minéraux, mais le
chômage y atteint des proportions gigantesques - entre 40 et 60% de la population. Il est, dès lors,
très important de l'intégrer au plus vite au concert des nations. La Banque mondiale et le Fonds
monétaire international doivent apporter leur aide, notamment pour la construction d'une centrale
thermique qui pourrait, à terme, permettre au Kosovo d'exporter de l'énergie. L'Union européenne a
évidemment un rôle primordial àjouer.
- Allez-vous vous investir encore pour la construction du Kosovo?
- Non, mon mandat s'est achevé fin février, j'ai fait mon travail. Le Kosovo est maintenant un
problème européen.
- La Finlande devrait reconnaitre l'indépendance du Kosovo vendredi. Etes-vous déçu que votre pays
n'ait pas figuré parmi les premiers Etats à soutenir Pristina?
- La présidente était en vacances! Le plus important était d'annoncer cette reconnaissance.
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Written Comments of Serbia