Written Comments of Argentina

Document Number
15688
Document Type
Date of the Document
Document File
Document

Embassy of the
A1gentine Republic

No. 01 48/2009

The Hague, July 15,2009

Dear Mr. Registrar:

I have the honour to refer to your note No. 133310 of October 20, 2008, regarding the request for

an advisory opinion submitted to the ~ternational 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".

In this regard and on behalf of the Government of the Argentine Republic I hereby submit

comments on the written statements on the above mentioned question included in your notes No.
134141 and No. 134178. Following your recommendation, please find attached to this letter thirty
(30) bound paper copies of those comments and one (1) CD-ROM containing the electronic

vers10n.

I avail myself of the opportunity to renew to you the assurances of my highest consideration.

Santos GofiiMarenco

Ambassador

Mr. PhilippeCOUVREUR

Registrar of the International Court of Justice
The Hague 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
ARGENTINE REPUBLIC

17 July 20092 3

TABLE OF CONTENTS

Introduction 5

Section I: Arguments advanced to deny the jurisdiction of the Court
and the judicial propriety of giving an advisory opinion are not justified 8

(A)The creation of States is a matter offact and law 9

(B) The General Assembly has a concrete interest in submitting

the question to the Court 10

(C) The advisory opinion will have important practical effects 11

Section II: Arguments invented with the purpose of avoiding a legal

analysis of the UDI must be rejected 15

(A) The authors of the UDI are undoubtedly the PISG 16

(B) The UDI is an act that aims at producing certain

legal effects and is subject to legal analysis 17
(C) The sui generis character of Kosovo is determined

by relevant UN resolutions, not by some particular powers 19

Section III: The UDI violates relevant international law rules and as

result it is void and does not produce its alleged effects 20

(A) All States and the PISG must respect Serbia's territorial
integrity and the UDI is a violation of this obligation 20

(B) The UDI by the PISG of Kosovo is ablatant infringement

ofUNSCR 1244 (1999) 24

(C) The UDI seriously contravenes the existing obligations

related to the negotiation process 25

(D) The principle of self-determination does not provide
support for the UDI 27

(E) Events subsequent to the critical date have not and

cannot supersede the illegality of the UDI 28

Conclusions 30 4

Introduction

1. The present Written Comments are filed pursuant to the Court's Order of 17

October 2008 upon the request for an advisory opinion made by the General

Assembly of the United Nations in its resolution 63/3 of 8 October 2008 on
the Accordance with international law of the unilateral declaration of

independence by the provisional institutions of self-government of Kosovo.

2. Pursuant to the same Order, the Argentine Republic (hereinafter "Argentina")

filed its Written Statement (hereinafter "AWS") on 17 April 2009. Thirty-five

other States also produced written statements. The authors of the unilateral

declaration of independence (hereinafter "UDI") by the provisional

institutions of self-government (hereinafter "PISG") of Kosovo of 17
February2008 also filed their written contribution, as authorised by the Court's

Order. However, the authors of that declaration presented themselves as the

"Republic of Kosovo", in a way that is not in conformity with international

law and with the Order itself. Argentina notices that the Court has not invited

any entity called the "Republic of Kosovo" to participate in these proceedings

and considers that no State called "Republic of Kosovo" exists. Consequently,

it is Argentina' s view that the participation of the authors of the UDI in these
proceedings must strictly be confined to the terms of the Court's Order, which

is in no way equivalent to the participation of States.

3. Predictably, some States advanced the idea that the UDI is not in conformity

with international law, whereas other States, as well as the authors of the UDI,

considered that it is. Nevertheless, a few points of agreement among the

participants of the first round of written pleadings can be identified.First, it

has generally been acknowledged that the principle of respect for the territorial
integrity of States is of paramount importance in international relations,

although some States advocate for its non-applicability to non-State actors and

others advance the idea of the sui generis and "non-precedent" character of 5

Kosovo in order to justify what would be a departure from its respect. Second,

with the sole exception of the authors of the UDI, Security Council Resolution

1244 (1999) (hereinafter "UNSCR 1244 (1999)") is considered to still be in

force and is regarded as a cornerstone for the legal analysis of the situation

under scrutiny. Third, it is generally accepted that the right to self­

determination only belongs to a 'people', as this term is narrowly construed

under international law. Noticeably, some States and also - conspicuously -

the authors of the UDI themselves, requested the Court not to analyse whether
the inhabitants of Kosovo constituted a people entitled to exercise self­

determination. Fourth, with the exception of Albania and France, no State has

challenged the clear jurisdiction of the Court to render an advisory opinion in

the current proceedings. Like Argentina, several other States have expressly

analysed and referred to the jurisdiction of the Court and the absence of

compelling reasons that would lead the Court not to respond to the General

Assembly's request, whereas other States directly analysed the merits of the

question without challenging the Court's jurisdiction.

4. However, clear points of disagreement emerge from the texts submitted in the

first round of written pleadings. These are:

(1) Who the authors of the UDI are;

(2) The scope and effect of the UDI;

(3) Whether international law applies to the UDI, including the relevance of
territorial integrity in cases of secessionist attempts;

(4) The argument that international law is allegedly "neutral" vis-à-vis the

creation of States in general and secession in particular;

(5) Whether the population of Kosovo is entitled to exerc1se self­

determination, particularly through the application of the so-called

doctrine of "remedial secession";

(6) Whether the UDI is or is not in accordance with UNSCR 1244 (1999),

both with regard to the regime established by this resolution as well as
with regard to the procedure contained therein for the purpose of

determining the future status of the territory; 6

(7) Whether the legal determination the Court is requested to make in the

question submitted by the General Assembly will have any concrete effect.

5. At the same time, it should be noted that in some written statements and in the

written contribution of the authors of the UDI considerable effort has been

exerted in attempts to avoid any legal analysis, or even worse, to replace legal

analysis with political considerations, in most cases presenting these as though

they were incontrovertible "evident truths" that are not susceptible to any kind
of analysis. Argentina, relying on the rule of law, strongly rejects this

perception and this approach, which presupposes the primacy of power over

law. What the General Assembly has requested is the Court's legal, not

political, analysis. Argentina has full confidence in the role of the International

Court of Justice as the principal judicial organ of the United Nations.

6. The present Written Comments will be confined to a brief analysis of a

discreet number of issues. Since some of the arguments developed in written
statements and in the written contribution of the authors of the UDI have

already been answered in its own written statement, Argentina respectfully

refers the Court to its written statement of 17 April 2009. Argentina reserves

its position with regard to any aspect of the question submitted to the Court,

both of fact and law, which was addressed in other texts submitted in the first

round of the present written pleadings.

7. These Written Comments are divided into three parts.

8. The first part will briefly address those arguments advanced to deny

jurisdiction and propriety, even if some of these arguments are not of a

preliminary character. Evidence of this is the fact that the two States invoking

the lack of jurisdiction of the Court advance the same arguments that other

States rely upon for contending that the UDI is not in contradiction with 7

international law, i.e. that the creation of States is a pure matter of fact and

that the UDI is not regulated by international law 1.

9. The second part concerns some preliminary issues raised by some written

statements and the written contribution of the authors of the UDI, advanced

with the clear intention of avoiding the application of the relevant rules of

international law to the UDI and hence the situation created by it. These issues

are whether the PISG of Kosovo were or not the authors of the UDI, whether

the UDI should be subject to legal analysis based on its legal nature, and

whether Kosovo is or is not a so-called "special case".

10. The third part will focus on the relevant legal issues that have been raised by

the General Assembly's request for an advisory opinion. These issues are

whether the UDI is or is not in accordance with the principle of respect of the

territorial integrity of Serbia, with UNSCR 1244 (1999), and with the

international law rules concerning the peaceful settlement of disputes; whether

the UDI can or cannot be justified under international law on the basis of an

exercise of the right to self-determination, and consequently whether the

inhabitants of Kosovo are a "people" as this term is narrowly construed under

international law; and lastly, whether facts that have occurred after 17

February 2008 have altered the legal situation existing at the time of the

issuance of the UDI.

Section I: Arguments advanced to deny the jurisdiction of the Court and

the judicial propriety of giving an advisory opinion are not justified

11.Argentina considers that the competence of the General Assembly to request

the present advisory opinion, and the legal nature of the question submitted,

are well established. There are also no compelling reasons preventing the

Court to exercise its advisory jurisdiction 2 • This section will comment on the

1Cf. Albania WS (paras. 43-44) and France WS (para. 2.4) on the one hand, and UK WS (paras. 6.65)
and the USA WS (p. 52) on the other hand.
2
WSA, paras. 14-38. 8

following arguments raised by a minority number of States, to demonstrate

that they are not accurate:

(A) "The creation of States 1s a pure matter of fact not regulated by

international law";

(B) "The General Assembly does not have any interest and cannot act in this

matter";

(C) "The advisory opinion will not have any practical effect".

(A)The creation of States is a matter of fact and law

12. There is abundant regional and universal practice demonstrating that the

creation of new States is governed by international law. Suffice to mention the

examples of Katanga, Rhodesia, Biafra, the Bantustans, the so-called "Turkish

Republic of Northern Cyprus", Anjouan, "Somaliland", the Serb entities

within Croatia and Bosnia and Herzegovina, and the autonomous Republics

within Georgia, among others 3.Unilateral declarations of independence have

either been considered illegal or the groups wishing to secede territory have

been warned that any entity so declared would be in contradiction to the

territorial integrity of the State concerned, and would not be accepted4. On the

other hand, international law has recognised the right for new States to be

created where the principle of self-determination is applicable, as the title

itself of UNGAR 1514 (XV) clearly shows 5 •Consequently, the UN actively

promoted the creation of the independent State of Namibia, and it recognised

the validity of a unilateral declaration of independence in the case of the

Republic of Guinea-Bissau 6• This is enough to dispose of the argument that

the creation of States is an exclusive matter of fact or that international law

remains neutral with regard to the creation of States. Such an argument is inter

3
See UNSCR 169 (1961), 216 (1965), 541 (1983), 787 (1992), 1781 (2007), UNGAR 31/6A, 32/105N,
34/93G.
4See UNSCR 787 (1992), 1769 (2007), 1701 (2006).
5Declaration on the Granting of the lndependence to Colonial Peoples and Countries.
6UNSCR 435 (1978), 356 (1974) and UNGAR 3061 (XXVIII) of2 November 1973. 9

alia manifestly incompatible with the existence of UNSCR 1244 (1999),

which regulates Kosovo.

13.Moreover, it is noted in passing that many States promoting the secession of

Kosovo from Serbia and advancing the "factual" or "international legal
neutrality" argument have themselves identified in their written statements

situations where international law nevertheless intervenes and prevents the

creation of a new State, even where the factual constitutive elements for this

creation have been present. According to these States, this is the case when

rules concerning the prohibition of the use of force, racial discrimination, self­

determination, foreign intervention, respect for international agreements, and

more generally, the violation of peremptory norms, are at stake 7• Another

relevant rule that has not been explicitly mentioned by these same States is

respect for the territorial integrity of States. Equally, whilst some of these

States have mentioned binding international agreements, they have failed to

mention relevant UN resolutions, like UNSCR 1244 (1999) that applies to the

case of Kosovo.

(B) The General Assembly bas a concrete interest in submitting the question

to the Court

14.Article 10 of the UN Charter provides a large number of bases for the General

Assembly to have an interest in submitting the question of the UDI of Kosovo
to the Court. Argentina has emphasized the specific responsibility of the UN

with regard to a territory that has been placed under international

administration. The fact that the Secretary-General's and his Special

Representative's action in conformity with UNSCR 1244 (1999) is not being

fully implemented, due to the lack of legal determination of the situation, is a

matter of direct concern for the General Assembly. The same can be said with

regard to the lack of action by the Security Council on the issue, due to the

existence of opposing views among its permanent members. It can be recalled

that UNSCR 1244 (1999) established no time limits for this regime, which

7See Estonia WS (p. 4), Finland WS (pp. 2-3), France WS (paras. 1.5 and 1.15), Ireland WS (para. 22-
23), and Germany WS (pp. 29-30). 10

remams m place until the Security Council decides otherwise 8, in clear

contrast with the other UN operations that require the adoption of Security

Council resolutions explicitly prolonging the presence of an international

9
operation . By virtue of Article 10 of the Charter, the General Assembly "may

discuss any questions or any matters within the scope of the present Charter or

relating to the powers and fonctions of any organs provided for in the present

Charter". The General Assembly can consequently recommend action to the

other organs. This in no way contradicts Article 12, paragraph 1, of the

Charter, as has been argued 10.The Court has also already had the opportunity

to rebut similar reasoning 11• For the reasons mentioned in the WSA, the

General Assembly is perfectly entitled to request the advisory opinion on this

clear legal question.

(C)The advisory opinion will have important practical effects

15.Leaving aside the fact that, as the Court has previously noted, it is for the

General Assembly "to decide for itself on the usefulness of an opinion in the

light of its own needs", 12the argument that the advisory opinion in the current

proceedings cannot have any practical effect is self-serving and - more

seriously - indicates that some States have intend to simply disregard the

advisory opinion if the Court does not provide an opinion that accords with

their views.

16.It has been argued that the advisory opinion will not have any effect because,

regardless of the legality of the UDI, an "independent State" called Kosovo

will continue to exist 13• This argument goes even further than the

"international law neutrality" theory. Indeed, it constitutes ablatant rejection

8UNSCR 1244 (1999), operative para. 19.
9E.g. UNSCR 1079 (1996) 1120 (1997) extended the United Nations Transitional Authority in Eastern
Slavonia, Baranja and Western Sirmium mandate; UNSCR 126 (1999) extended the United Nations

Transitional Adminsitration in East Timor mandate.
'0Albania WS, para.52 ; France WS, para. 1.28-1.42.
11 Cf. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
Advisory Opinion, I.C.J. Reports 2004, p. 150, para. 28.
12 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 237,

para. 16.
13France WS, para. 2.4. 11

of international law. If this were generally true, it would mean that the

international reaction to other secessionist attempts defying international law

in the past, would, at best, be superfluous, and at worse, illegal, since if a State

exists, it has rights and obligations that would have been denied by such

reactions. As a matter of course, the contrary is the case. If a unilateral act

which purports to create a State is illegal, the only possible legal consequence

is that it does not produce the effect desired by its authors. This is a basic

premise for the functioning of international law, and indeed of any legal

system. An illegal unilateral annexation of territory does not produce a

transfer of sovereignty, regardless of whether the annexing State is in control

of the territory. Similarly, a unilateral termination of a treaty which is not in

conformity with the law of treaties does not produce the termination of the

treaty concerned. Examples can continue.

17. Strikingly, this position adopted by States such as Albania, France, the United

Kingdom and the United States of America 1, is based on the assumption that

an independent State does exist, a claim which strikes at the core of the

question raised by the General Assembly. As it has been mentioned in the

AWS 15,neither the factual nor the legal conditions for the existence of a State

are present in the case of Kosovo.

18. The purported existence of a so-called "Republic of Kosovo" is not an

"irreversible fact", as some States contend, thereby evincing their political

desire to impose a given solution on a situation regulated by the UN. If the

UDI is not in conformity with international law, as indeed it is not, the

practical effect of the advisory opinion will be that the PISG of Kosovo will

continue to be treated by the UN in the manner prescribed by the

Constitutional Framework adopted by the Secretary-General's Special

Representative, that the Special Representative must entirely assume the tasks

delegated to him by the Secretary-General in accordance to UNSCR 1244

(1999), that the political process for determining the future status of Kosovo

will reassume, and in other words, that UNSCR 1244 (1999) - a binding

14Albania WS, paras. 43-44; France WS, para. 2.4; UK WS, paras. 6.65; USA WS. UK WS p. 52.
15AWS, paras. 115-131. See also Serbia WS, paras. 943-985. 12

resolution still in force, as acknowledged even by the States having recognised

the so-called "Republic of Kosovo" - will be effectively implemented in all its

aspects.

19. The fact that other unilateral declarations of independence not made in

accordance with international law which subsequently have been factually

reversed, proves that an attempt to create a new State in circumstances

contrary to international law does not create in turn an "irreversible fact", and

that arguments that the purported new State is a fait accompli are

fundamentally flawed. The cases of Anjouan and Aceh are illustrative.

20. The local government of Anjouan, one of the islands composing the Union of

the Comoros (formerly the Federal Islamic Republic of the Comoros),

unilaterally declared its independence on 3 August 1997. The declaration was

followed by a referendum in which 99.88 % of the participants voted in favour

of independence. The local government exercised effective control over the

island and even succeeded in expelling a military operation launched by the

central government to put an end to the separatist movement. This situation

lasted for four years, when under the auspices of the Organization of African

Unity, an interna! agreement was concluded between the central and the local

authorities, granting to Anjouan more autonomy that it enjoyed in the past 16•

21. The unilateral declaration of independence of Banda Aceh was proclaimed on

4 December 1974 17•The longstanding civil war that followed only ended with

18
the Memorandum of Understanding signed on 15 August 2005 , concluded

under the auspices of Mr. Martii Ahtisaari' s mediation, who proposed a large

autonomy for the region maintaining Indonesian sovereignty, although

Indonesian armed forces had withdrawn from the territory. A monitoring

16
See A. Oraison, 'L'obligation de non-reconnaissance de l'Etat d'Anjouan (Les problèmes posés par
la nouvelle balkanisation de la République fédérale islamique des Comores)', Revue de droit
international, de sciences diplomatiques et politiques, vol. 76 n° 2, pp. 159-183 ; F. Ouguergouz
and D.L. Tehindrazanarivelo, 'La problématique de la sécession en Afrique', in M.G. Kohen (ed),
Secession. International Law Perspectives (Cambridge : CUP, 2006), pp. 270-271.
17Text available at :~ http://acehnet.tripod.com/declare.htm
18
Text available at: http://www.cmi.fi/files/Aceh MoU.pdf 13

m1ss10n constituted by the European Union and ASEAN contributing

countries was also established.

22. To speak about Kosovo's situation as an "irreversible fact" is all the more

surprising since the concrete situation is characterised by a strong international

presence having paramount power, the legal origin of which is UNSCR 1244

(1999) and nota purported authorisation of a so-called "independent State". It

must be added that the majority of States does not recognise the existence of a

new sovereign State, that the international regime set out by UNSCR 1244

(1999) requires the adoption of a further resolution by the Security Council to

be terminated and that the sovereign State, Serbia, has consistently taken the

position that it will not consent to any unilateral declaration of independence.

To complete the picture, mention must be made of the two hundred thousand

displaced persons from Kosovo in other parts of Serbia, as well as other

countries, whose right to return home has been recognised by the UN, but has
not yet been implemented. Furthermore, in some parts of the Province of

Kosovo the PISG no longer exercise their authority since they began

purporting to actas though they were the organs of an independent State. This

is a far cry from an "irreversible fact". The UDI not only has not put an end to

the international regime established by UNSCR 1244 (1999), but has gravely

exacerbated the difficulties for reaching a lasting and just settlement to the

con:flict.

23. Clearly, a legal determination by the Court of the situation arising from the

UDI will help the UN organs to perform their duties, and will allow member

States to accommodate their political action towards Kosovo with due regard

for international law. In this sense, the claim that the Court's advisory opinion
"pourrait avoir des conséquences politiques regrettables, notamment celle

d'envenimer la situation en cristallisant les positions des uns et des autres" is

particularly unfortunate. On the contrary, what is lacking in the current

situation is legal guidance and the will of some actors to act in conformity

with international law. From the point ofview of the UN, the advisory opinion

19France WS, para. 1.18. 14

will help the UN political organs to put an end to the legal uncertainty with

which they are acting. The so-called UN policy of neutrality towards the UDI,

if it lasts, will contribute to maintaining a conflict without any prospect of

reaching a solution, in a situation in which the UN bears direct responsibility

on the basis of a resolution adopted under Chapter VII of the Charter.

24. The idea that an advisory opinion will "menacer l'équilibre trouvé sur le

terrain"20 cannot be sustained for two simple reasons:jirst, it is difficult to see

how an advisory opinion in which the Court provides a legal answer can

threaten anything (with the exception of the position of those embracing

illegality), and second, to call "équilibre" the current situation in Kosovo

sounds strange - to say the least - when major problems (factual impossibility

of return for displaced persons, ethnie separation, lack of a serious and fair

judiciary, the unknown fate of missing persons, and other issues mentioned in

the Secretary-General recent reports 21) still remain unresolved and were

exacerbated by the UDI.

Section II: Arguments invented for the purpose of avoiding a legal analysis of

the UDI must be rejected

25. This section addresses some arguments made with the intention of avoiding a

legal analysis of the UDI, but which implicitly acknowledge that the UDI is

not in conformity with international law. These arguments are:

(A) That the PISG of Kosovo are not the authors of the UDI;

(B) That the UDI is a mere statement of purpose without any legal

consequences;

(C) That Kosovo is a sui generis case.

2°France WS, para. 1.19.
21Report of the Secertary-General on the United Nations Interim Administration Mission in Kosovo,
UN doc. S/2009/300 (10 June 2009); Report of the Secretary-General on the United Nations lnterim
Administration Mission in Kosovo, UN Doc. S/2009/149 (17 March 2009); Report of the Secretary­
General on the United Nations Administration Mission in Kosovo, UN Doc. S/2008/6922 (4 November

2008); Report of the Secretary-General on the United Nations lnterim Administration Mission in
Kosovo, UN Doc. S/2008/458 (15 July 2008); Report of the Secretary-General on the United Nations
lnterim Mission in Kosovo, UN Doc. S/2008/211 (28 March 2008). 15

(A) The authors of the UDI are undoubtedly the PISG

26. Contrary to abundant evidence and the factual ascertainment made by the

General Assembly in the wording of the very question submitted to the Court,

some States, as well as the authors of the UDI, have advanced the idea that the

UDI was not issued by the PISG, but by "the representatives" of a purported

"Kosovar people" 22• This is clearly an attempt to avoid providing a

straightforward answer to question raised by the General Assembly, since it is

apparent that the PISG, created by the UN in the framework of the

international administration of a territory, cannot unilaterally put an end to the

regime established by Resolution 1244 (1999) and infringe the territorial

integrity of a member State of the Organisation.

23
27. Overwhelming evidence emanating from the UN , the authors of the UDI

themselves 24, and the States having recognised a so-called "Republic of

Kosovo" 25 shows that the UDI was adopted by the Assembly of Kosovo and

22Authors of the UDI WC, para. 6.01.
23 Report of the Secretary-General on the United Nations lnterim Administration Mission in Kosovo,
UN Doc. S/2008/211 (28 March 2008), para. 3.
24
Authors of the UDI WC, Annex 2, p. 227.
25Albania, 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 of Independence ...", available at:
http://www.keshilliministra ve.al/index.php?fg=brendaandm=newsandlid=73 23andgj=gj2; available
also via: http://www.kosovothanksyou.com/; Denmark, Recognition, Press Release: "On 17 February
2008, the Assembly of Kosovo declared Kosovo's independence." Available at:

http://www.um.dk/en/servicemenu/N ews/NewsArchives2008/DenmarkRecognizesKosovoAsAnlndepe
ndentState.htm; Estonia, Recognition, Press Release: "The Kosovo Assembly declared the province
independent from Serbia on 17 February." Available at: http://www.vm.ee/eng/kat 138/9350.html;
Pressemitteilung der Bundesregierung Nr. 5I, Zustimmung des Kabinetts zur vôlkerrechtlichen

Anerkennung des Kosovo vom 20.02.2008: "Am I7. Februar 2008 hat die Parlamentarische
Versammlung in Pristina eine Unabhangigkeitserklarung verabschiedet." Available at:
http://www.bundesregierung.de/nn I264/Content/D E/Pressemittei lungen/BPA/2008/02/2008-02-20-
anerkennung-des-kosovo.html; Ireland, 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=4293 8; Latvia,
Recognition, Press Release: ,,Respecting the declaration adopted by the Assembly of the Republic of
Kosovo on 17 February, the Republic of Latvia recognises the independence of the Republic of

Kosovo." Available at: http://www.mfa.gov. lv/en/news/press-re leases/2008/february/20-4/; Lithuania,
Recognition, Resolution: "the declaration of independence of Kosovo adopted by the Assembly of
Kosovo on 17 February 2008 and declaring Kosovo an independent and sovereign state..." Available
at: http://www3.lrs.lt/docs2/JISENYRJ.DOC; Norway, Recognition, Original Letter: "I have the

pleasure to refer to your letter of 17 February 2008 in which you informed the Government ofNorway
of the decision taken by the Assembly of Kosovo to declare Kosovo's independence." Norway WS, 16

was endorsed by the President and the Prime Minister, all of which comprised

the PISG. These organs purported to stop acting as the PISG and considered

themselves to be acting as the Assembly, the President and the Prime Minister

of an alleged "new independent State" immediately after the adoption of the

UDI. Noticeably, there were no elections held for the individuals taking up

positions in the Assembly, as the President or as the Prime Minister of this

purported "new State", for the simple reason that they had already been

elected as organs of the PISG and were acting in that capacity. Clearly, in the

opinion of the authors of the UDI, the adoption of the UDI resulted in a

change in their legal situation, and they henceforth considered themselves to

be the representatives of a new sovereign State, thereby putting an end to

Serbian sovereignty and UN administration of the territory.

(B)The UDI is an act that aims at producing certain legal effects and

is subject to legal analysis

28. It has been argued that the UDI alone produces no legal effects since it would

just be a part of a complex process leading to the creation of a new

independent State 26. This is, once again, an attempt to avoid analysing the

purported creation of so-called new States under international law. According

to the very wording of the UDI, the UDI constitutes the starting point of the

existence of a purported "new State". As mentioned above, after its adoption,

the PISG began to act as though they were the organs of a new State. If there

was a process attempting to lead to the creation of an alleged "new State",

then the UDI purports to constitute the end of such a process and,

consequently, a legal analysis of the UDI serves to determine whether the

proclaimed "independent State" does, nor does not, exist.

Annex 3; Poland, Recognition, Press Release: "On 17 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; 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.htm l?id=17497; Sweden, Recognition,
Press Release:"On 17 February the Kosovo Assembly adopted a resolution which declares Kosovo to
be independent." Avaitable at: http://www.sweden.gov.se/sb/d/10358/a/99714.
26
Czech Republic WS, p. 6; Authors of the UDI WC, para. 8.11. 17

29. States now claiming that the UDI has no legal effects nevertheless considered

the UDI ito mark the beginning of the existence of a new State, considering

that the so-called "Republic of Kosovo" was bound by the engagements it

assumed in the UDI.

30. Norway was aware in its WS of the contradiction of trying to deprive the UDI

of 17 February 2008 of any legal effect and at the same time considering that

the UDI had created binding engagements vis-à-vis the supposed new "State".

To escape from this contradiction, Norway produced a convoluted argument.

It considered that the UDI "as such was not considered to constitute any

legally binding unilateral declaration under international law. However, in so

far as it subsequently was referred to by authoritative representatives of a State

[i.e. the purported "new State" of Kosovo], it was considered part of a binding

unilateral declaration under international law under the prevailing
27
extraordinary circumstances described" . To put it simply, according to

Norway, the UDI by the PISG of Kosovo was not a binding act under

international law, but it created a new State, whose authorities immediately

referred to the UDI and then the engagements of the UDI became a binding

unilateral act under international law 28. This is just a self-serving analysis

made with the sole intention of avoiding any legal analysis of the very crux of

the UDI - the creation of the State - while at the same time treating the

remaining content of the UDI to be of a binding character.

31. In the same direction, Albania produced the extravagant argument that

"[w]hile a Dol [Declaration of Independence] produces effects at the

international level and has international consequences, it is not itself regulated

by international law. Therefore, the question cannot normally be answered

whether a Dol is in conformity with international law. In that respect a Dol as

27Norway WS, Annex I.
28The Norwegian Royal Decree adopted by the King in Council of 28 March 2008 recognising the
"Republic of Kosovo" itself contradicts the legal analysis made in the Norway's written statement.
According to the Royal Decree: "The declaration of independence was communicated to the
Norwegian Government, among others, by the Head ofState and Prime Minister [corr. ln transi.] of the
proclaimed state. Under public internationallaw, there are grounds for considering such a

communication, together with the enclosed document, as a binding unilateral declarationnection
with the recognition". Norway WS, Annex I (emphasis added). 18

the birth of a new sovereign State is a matter which is essentially within the

domestic jurisdiction of the State in the sense of Article 2, paragraph 7 of the

UN Charter" 29. If one follows the argument made by Albania, the

condemnation by the Security Council of Katanga, Rhodesia and Turkish

Republic of Northern Cyprus declarations of independence were wrong and

violated their "domestic jurisdictions". The same can be said, for example,

with regard to the position of the OAU adopted vis-à-vis Biafra, Anjouan or

Somaliland.

32. The UDI, being an act which in the view of its authors and those that have

recognised a so-called new independent "State" has produced legal effects,

can and must be examined in the light of its conformity or not with

international law.

(C) The sui generis character of Kosovo is determined by relevant UN

resolutions, not by some particular powers

33. Sorne written statements argue that Kosovo constitutes a sui generis case and

does not constitute a precedent 30•The UDI itself observes that Kosovo is "a

special case" and "is not a precedent for any other situation". It is apparent

from these statements that the purported independence of Kosovo has no legal

ground and, since their authors wish to impose an illegal situation, they are

trying to avoid further collateral effects of what would constitute a bad

precedent for the future.

34. It may be that Kosovo constitutes an "extraordinary", "special" or "sui

generis" case. However, it does not constitute such a case because a group of

States or the authors of the UDI qualified Kosovo in that way 31•It is the result

of the "extraordinary", "special" and "sui generis" determinations made by the

29Albania WS, para. 47.
30Albania WS, para. 95; Denmark WS, para. 2.4; Estonia WS, pp. 11-12; France WS, para. 2.17;
Germany WS, pp. 26-27; lreland WS, para. 33; Japan WS, pp. 5 & 8; Latvia WS, p. 2; Luxembourg
WS, para. 6; Maldives WS, p. 1;Poland WS, para. 5.2; Slovenia WS, p. 2; United Kingdom WS, para.
0.22.
'1
" For the 'non precedent' argument, see AAWS, para. 60. 19

United Nations through the establishment of the regime adopted by UNSCR

1244 (1999). This comprises first, the establishment of an international

administration on part of the territory of a member State while preserving its

territorial integrity; second, a political process the purpose of which is to

determine the future status of the territory; third, the end of this regime and

this process requires a further decision of the Security Council under Chapter
32
VII of the Charter .

35. The "sui generis" argument does not help Kosovo's secessionists and their

supporters. On the contrary, it commands strict respect for the "exceptional",

"special" and "unique" regime and conflict settlement means established by

the UN, something which the UDI precisely defies and deviates from.

Section III: The UDI violates relevant international law rules and as result it is

void and does not produce its alleged effects

36. This section will discuss some arguments advanced in some written statements

and the written contribution of the authors of the UDI concerning the merits of

the question raised by the General Assembly. It will stress the non-accordance

of the UDI with the principle of respect for the territorial integrity of Serbia

(A), with UNSCR 1244 (1999) (B),and with the rules concerning the peaceful

settlement of disputes (C). It will show that the UDI cannot be justified by the

principle of self-determination (D) and that facts that have taken place after 17

February 2008 have not and could not have altered the legal situation existing

at the time of the issuance of the UDI.

(A) Ali States and the PISG must respect Serbia's territorial integrity and

the UDI is a violation of this obligation

37. It is beyond doubt that the independence of part of the sovereign territory of

an existing State implies the loss of the sovereignty of the latter over that

'2
" AWS, para. 69. 20

territory. If this would occur without the consent of the State concerned, this is

tantamount to infringing its territorial integrity. Indeed, there could be no

greater violation of the obligation to respect the territorial integrity of States

than an attempt to deprive a State of its territory without its consent. Of

course, this does not apply to the creation of States through the decolonization

process, since "the territory of a colony or other non-self-governing territory

has under the Charter a status separate and distinct from the territory of the
33
State administering it" •

38. States supporting Kosovo's secession and the authors of the UDI reject the

principle of respect of the territorial integrity of Serbia, invoking in general

that this principle would not be applicable to non-State actors. They also

contend that respect of the territorial integrity of the FRY (now Serbia) is only

mentioned in the preamble of UNSCR 1244 (1999) and with regard to the

interim period, and not for the outcome of the process leading to the

determination of the future status of Kosovo. Moreover, they argue that the

explicit reference to the territorial integrity of the FRY in the Preamble of

resolution 1244 (1999), was of little effect since the Preamble was a "non­

binding clause". 34

39. Argentina reiterates here what it demonstrated in AWS: the UN practice of

invoking the principle of respect of the territorial integrity of States vis-à-vis
35
non-State parties to domestic conflicts .If the Security Council acted in that

manner, it is because it considers that the territorial integrity principle is

applicable in such circumstances.

40. The practice of the General Assembly also confirms that the principle of

territorial integrity is infringed in situations of purported creation of new

States from the territory of an existing one. The examples of the Bantustans

that follow are eloquent since they are in general presented as the illegality of

the purported creation of States on the exclusive basis of their contradiction

33 Declaration on Principles of International Law Concerning Friendly Relations, UNGAR 2625
(XXV).
34WC Authors, para. 9.05.
35
AWS, paras. 75-82. 21

with rules prohibiting apartheid and imposing respect for human rights. In

fact, this was not the only basis invoked by the General Assembly to consider

the declarations of independence of the Transkei, Bophuthatswana and Venda

as invalid. The General Assembly also denounced that the establishment of

Bantustans were designed "to destroy the territorial integrity of the country",
while reaffirming "the inalienable rights of the African people of South Africa

in the country as a whole" 36.

41. With regard to UNSCR 1244 (1999), the argument developed by some States

and the authors of the UDI is rather curious. It suggests that the Security

Council could have modified the scope of this fondamental principle. It also

suggests that the invocation of the respect for the territorial integrity of the

FRY (now Serbia) by the Resolution was made notas a guarantee, but on the

contrary, as a way to narrow its scope: it would only be applicable during the

interim period. This surprising interpretation flies in the face of the purpose of

the principle and leads to an absurd result, which was certainly not the

intention of its authors. Moreover, if what was in mind was the possibility that

the final outcome of the future status process could be independence, this in

no way requires an infringement to the principle of territorial integrity. Such a

result requires Serbia' s consent. If one State cedes part of its territory or

otherwise accepts the creation of a new State on its territory, there is no

infringement of its territorial integrity at all. But this is not the case here.

42. Indeed, what the Security Council did was to confirm the application of the

principle of the respect for the territorial integrity of States to the particular

situation of Kosovo. This confirmation was all the more necessary since an

international administration and a conflict settlement mechanism conceming

the territory of a member State was at stake.

43. The preamble of UNSCR 1244 (1999) described the grounds for the regime

established by it. As such, its probative value for the interpretation of the

object and purpose of the resolution is undeniable. The same that was

36UNGAR 34/93G. See also UNGAR 3l/6A and 32/105N. 22

remarked with respect to the Preamble of the UN Charter at the San Francisco

Conference applies to the Preamble of UN resolutions: "The provisions of the

Charter, being in this case indivisible as in any other legal instrument, are

equally valid and operative. The rights, duties, privileges, and obligations of

the Organization and its members match with one another and complement

one another to make a whole. Each of them is construed to be understood and

applied in fonction of the others". 37 .

44. The Court has in the past had occasion to use parts of a preamble of Security

Council and General Assembly resolutions for the determination of the scope
38
of international obligations . Equally, the Court also stressed the importance

of treaty preambles in a number of cases.

45. In the Rights of Nationals of the United States of America in Morocco case,

the Court stated:

"This principle, in its application to Morocco, was thus already well

established, when it was reaffirmed by that Conference and inserted in the
Preamble of the Act of 1906. Considered in the light ofthese circumstances, it
seems clear that the principle was intended to be of a binding character and

not merely an empty phrase" 39.

46. In the Case concerning Sovereignty over certain Frontier Land, the Court

considered that a mixed boundary commission had authority to demarcate the

areas under dispute on the basis of the Treaty of London of 19 April 1839.

And the Court continued:

"This is confirmed by the Preamble to the Boundary Convention of 8 August

1843, which recites that: ' ... The King of the Netherlands ... and ... the King
of the Belgians, taking into consideration the Treaty of 19 April 1839, and
wishing to fix and regulate all that relates to the demarcation of the frontier

[... ]." This statement represents the common intention of the two States. Any
interpretation under which the Boundary Convention is regarded as leaving in

37 Report of the Rapporteur of Committee 1 to Commission I, (1945) VI The United Nations
Conference on International Organization446, 13June 1945,Doc. 944, p. 447.
38 Genocide Convention (Bosnia), paras. 190, 275, 301, 302, 303; Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J Reports 2004,,

para. 118 ; Case Concerning Maritime elimitation in the Balck Sea (Romania v. Ukraine), Judgment of
3 February 2009, I.C.J Reports 2009,para. 63.
39Case Concerning Rights of Nationals of the United States of America in Morocco, Judgment of 27
August 1952, I.C.J. Reports 1952, pp. 183-4. See also the reference to the Preamble of the Special
Agreement concluded by the parties in the Case Concerning the Frontier Dispute (Burkina
republic/Republic of Mali), Judgment of 22 December 1986,I.C.J. Reports 1986, p. 564, para. 19. 23

suspense and abandoning for a subsequent appreciation of the status quo the

determination of the right of one State or the other to the disputed plots would
be incompatible with that common intention" 40•

47. In the Territorial Dispute (Libya/Chad), the Court also used the Preamble of

the Treaty of 1955 to determine its object and purpose and to confirm the

interpretation of the Treaty that the Court had reached 41.

48. These considerations are plainly applicable to the assertion of the respect of

the territorial integrity of the Federal Republic of Yugoslavia (now Serbia).

49. Consequently, the principle of the respect for the territorial integrity of States

applies in the case of Kosovo and UNSCR 1244 (1999) confirms and

guarantees this application. The UDI is a :flagrantviolation thereof.

(B) The UDI by the PISG of Kosovo is a blatant infringement of UNSCR

1244 (1999)

50. The AWS already sets out the reasons why the UDI constitutes a grave

violation of UNSCR 1244 (1999)which seriously disregards the fonctions and

responsibilities of the Security Council 42. The attempt to avoid this

straightforward conclusion by contending that the authors of the UDI were not

the PISG is wrong and futile. The UN regime established by UNSCR 1244

(1999) applies to everybody in Kosovo, and the PISG, as indeed any

community, political party, group or individual, did not possess the power to

make a UDI and is subject to the 1244 (1999) regime.

51. It is clear that a unilateral decision by one of the parties to the con:flictcannot

modify the regime established by the Security Council (UNMIK/KFOR

administration and security force) nor decide the outcome of negotiations.

Serbia could not unilaterally put an end to the international presence in

4
°Case concerning Sovereignty over certain Frontier Land, Judgment of 20 June 959: I.C.J. Reports
1959, pp. 221-222. See also Territorial Dispute (Libyan Arab Jamahiriya/Chad),Judgment, I.C.J.
reports 1994, p. 24, para. 47.
41Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. reports 1994, pp. 25-26, para.
52.
42
AWS,paras.117-120. 24

Kosovo established by virtue of a SC resolution. Similarly, the PISG and any

other entity in Kosovo cannot put an end to this administration and to Serbian

sovereignty over the territory.

(C) The UDI seriously contravenes the existing obligations related to the

negotiation process

52. It has been argued that negotiations within the framework established by

UNSCR 1244 (1999) were exhausted and there would be no sense to continue

them. Even if this contention were correct ( quod non, see AWS, para.124),

this would not lead to a justification of the accordance of the UDI with

international law. It would be for the Security Council to determine the further

steps to be taken. A deadlock in negotiations in no way authorises one party to

impose its position on the other, nor the termination of the obligation to settle

the dispute through peaceful means.

53. It has been argued that "[w]here the avenues for a bilateral, negotiated

settlement have been exhausted, and no renewed injunction to negotiate has

been issued, for example by the Security Council, there exists no general

international law rule requiring negotiations to continue" 43. This assertion is

incorrect both as a general statement and specifically in relation to the case of

Kosovo.

54. Argentina has already quoted what the Manila Declaration on the Peaceful

Settlement of International Disputes states generally:

"In the event of failure of the parties to a dispute to reach an early
solution by any of the above means of settlement, they shall continue

to seek a peaceful solution and shall consult forthwith on mutually
agreed means to settle the dispute peacefully" 44.

55. Clearly, any failure in a negotiation process does not release the parties from

the obligation to continue to seek settlement through the same or other

43
44United Kingdom WS, para. 6.37.
GA Resolution 37/10 of 15 November 1982. See also the Declaration of Principles of International
Law annexed to Resolution 2625 (XXV). 25

peaceful means. Even less, such a failure does not authorise one party to

decide unilaterally the nature of the settlement and to impose it on the other.

Such an approach would be precisely contrary to the obligation to settle

disputes by peaceful means.

56. To require a "renewal" of the injunction to negotiate by the Security Council

is equally wrong. It was for the Security Council to open the process for the

45
settlement of the future status of Kosovo •It is also for the Security Council
46
to decide when this process has corne to an end . And it is also for the

Security Council and not for one of the negotiating parties - nor even the

Secretary General or his Special Envoy - to decide whether the process has

reached a deadlock, and which new avenues should be explored. The Security

Council has neither ascertained the exhaustion of the negotiations nor declared

the process for the determination of the future status of Kosovo to be at an

end. The obligation to reach a consensual settlement for that determination

only ends when such settlement is reached or when the Security Council

decides to implement other mechanisms. Neither of these alternatives is

present in the case of Kosovo 4 .

57. Furthermore, in the particular case of Kosovo, the exclusion of a unilaterally

imposed solution has been explicitly mentioned by the Contact Group in its

guiding principles governing these negotiations, stating that "[a]ny solution

48
that isunilateral or results from the use of force would be unacceptable" .

58. As a result of the above, by making the UDI, the PISG attempted to

unilaterally put an end to the process for the settlement of the future status of

Kosovo, by attempting to impose a given outcome on Serbia and to the UN,

45
AWS,paras. 117-118.
46Ibid.
47The examples furnished by the United Kingdom to allegedly support its contention concern treaty­
based provisions which envisage not only negotiations but also other means of settlement of disputes
(ArticleXXI, para. 2 of the treaty of Amity, Economie and Consular Rights between the United States

of America and Iran, and Articles 74 and 83 of the United Nations Convention on the Law of the Sea).
(United Kingdom WS, para. 6.37). Failure of negotiations opens the way to other ways of peacefully
settling the dispute. Thus, these examples in no way support the British contention.
48Annex to Letter dated 10 November 2005 from the President of the Security Council addressed to
the Secretary-General, 10November 2005, UN Doc. S/2005/709, p. 3, para.6 (emphasis added). 26

thereby seriously contravening the obligation to determine the status of

Kosovo through the process decided by the Security Council, as well as the

rules applicable to this process of settling the dispute by peaceful means.

(D) The principle of self-determination does not provide support for the

UDI

59. The authors of the UDI, as well as other States supporting Kosovo's secession,

have requested the Court not to examine the applicability of the principle of

self-determination to the case of Kosovo 49. Other States that also support the

secessionist forces in Kosovo have simply referred to a "people" allegedly

entitled to self-determination, without providing any support for this

assertion 50. Yet others have invoked the purported doctrine of "remedial

secession" 51 . Argentina respectfully refers the Court to the AWS, where

Argentina has established that the principle of self-determination of peoples
52
does not provide support for the UDI •In particular, Argentina has asserted

that only "peoples", in the narrowly constructed notion that this term of art

possesses in international law, are entitled to self-determination; that the

United Nations plays an essential role in determining the units entitled to

exercise self-determination; and that grave violations of human rights do not

transform a group of individuals into a "people" entitled to self-determination,

although other important rights are granted to minorities and other groups.

60. Argentina has also explained that the Rambouillet Accords do not apply the

principle of self-determination to the population of Kosovo and that the

reference to "the will of the people", is but one element to be taken into

consideration among other things, and is not tantamount to the recognition of a

"people".

49Authors of the UDI WC, para. 8.38.
50Albania WS, paras. 75, 79, and 84; Netherlands WS, para. 3.3; France WS, para. 2.18; Switzerland

WS, paras. 75 and 77; Authors of theDI WC, para. 4.03 and 8.40.
51Albania WS, para. 81; Estonia WS, p. 4 et seq; Finland WS, para. 7; Gennany WS, p. 35; lreland
WS, para. 30; Netherlands WS, paras. 3.6-3.7; Poland WS, para. 6.5; Slovenia WS, p. 2; Switzerland
WS, paras. 62-63; Authors of theUDI WC, para. 8.40.
52ASW, paras. 87-100. 27

61. It has been argued that as a result of UNSCR 1244 (1999), "the future of the

territory of Kosovo ceased to be a matter for Serbia alone to decide upon. It

became a matter to be resolved having regard to the interests and wishes of the
53
inhabitants of Kosovo" .This contention is deliberately misleading and does

not make clear who would be in a position to determine the future status of the

territory. It neglects that there are two sides participating in the negotiating

process. Moreover, it is uncontroversial that the territory in question is an

integral part of Serbia 54. The inhabitants of Kosovo do not possess the

decisional power over the fate of the territory. The UN has not recognised the

existence of a "Kosovar people" entitled to self-determination. Consequently,

the UDI cannot be justified on the basis of an exercise of the right of a people

to self-determination.

(E) Events subsequent to the critical date have not and cannot supersede

the illegality of the UDI

62. It has been advanced that even if the UDI was illegal, developments that have

taken place after 17 February 2008 cured this illegality, precluding any

possibility to return to the pre-existing situation 55. This contention is wrong

both in fact and law.

63. From the factual viewpoint, the situation on the ground has not substantially

changed, with the exception that many fonctions fulfilled by MINUK were

transferred to EULEX and this has been done by virtue of UNSCR 1244

(1999) and not by any kind of invitation of the so-called "Republic of

Kosovo". The strong international presence remains in Kosovo. The Security

Council has not taken any decision putting an end to this presence and all

member States and the UN organs that have dealt with the matter (i.e. the

Security Council and the Secretary General) consider that UNSCR 1244

(1999) remains in force 56•Those parts of the territory of the Province which

decided not to obey the PISG, since these institutions now consider

53United Kingdom WS, para. 0.25 (1).
54For the States having recognised the so-called "Republic of Kosovo", at least until 17 February 2008.
55France WS,
56
AWS, para. 67. 28

themselves to be acting as an independent State, still remam outside any

exercise of their powers. Recognition cannot cure the illegality of the UDI. To

say that "developments since that point [the issuance of the UDI] have

crystallized Kosovo' s independence, resolving any doubt as to the position

57
and curing any deficiency that may have existed " is at the most the

expression of wishful thoughts. The facts are very far from any crystallisation

of the existence of a sovereign State.

64. More important, however, is the inaccuracy of this contention from a legal

perspective. This assertion implies that an illegal act challenging the very

foundations of international law and that of the United Nations could be

ultimately being cured without the consent of the main injured State or

without any further decision of the Organisation. There is nothing m

contemporary international law that lends any merit to this assertion and the

State invoking this argument does not provide any explanation supporting its

assertion.

65. It must be stressed that in the particular case of Kosovo, the armed operation

by NATO in 1999 was explained by their authors as "necessary to avert a

humanitarian catastrophe" 58. The same States now invoke the existence of an

"irreversible fact" which would result in the loss of part of the territory of the

sovereign State against which they resorted to an armed intervention. This

cannot but raise serious concerns with regard to the respect for the

fondamental principles of international law. The outcome of this intervention

cannot in any way be used to modify any existing legal situation, particularly

when what is at stake is the territorial integrity and the national unity of States.

66. As explained in AWS, events subsequent to the critical date have not modified

the illegality of the UDI 59. Moreover, the situation on the ground has not

substantially evolved. Serbia has not given its consent to the creation of a new

57United Kingdom WS, para. 0.26.
58NATO Press release 1999 (040), 23 March 1999. Available at :
http://www.nato. intidocu/pr/1999/p99-040e.htm
59
AWS, paras. 47-53. 29

State through the separation of part of its territory. By no means can the

assertion invoking any cure of the original illegality be accepted.

Conclusions

67. With these Comments, Argentina wishes to contribute to the present advisory

proceedings, on the basis of its support for the rule of law at the international

level. Respect for international law in general and for United Nations
resolutions in particular are essential features of an international community

based on the sovereign equality of its members.

68. On the basis of the arguments developed both in its Written Statement and in

the present Written Comments, Argentina respectfully submits that:

(a) The Court has jurisdiction to answer the question raised by the General

Assembly;

(b) There are not compelling reasons preventing the Court from exercising its

advisory jurisdiction;

(c) The unilateral declaration of independence by the Provisional Institutions of

Self-Government of Kosovo is not in accordance with international law, since:

(i) It is an act which did not fall within the competences of its authors, as

stemming from Resolution 1244 (1999) and the Constitutional

Framework adopted by UNMIK Regulation 2001/9;

(ii) It infringes the competences and responsibilities of the Security

Council under Chapter VII of the Charter of the United Nations;

(iii) It infringes Resolution 1244 (1999) in a way described in paragraph
118 of AWS;

(iv) It constitutes a violation of the territorial integrity of Serbia: 30

(v) It constitutes a breach to the obligation to settle disputes through

peaceful means, in particular the obligation to reach settlement for

the future status of Kosovothrough negotiations.

July 17,2009

Susana Ruiz Cerutti
Ambassador

Legal Adviser
Ministry of Foreign Affairs,
International Trade and Worship
ARGENTINE REPUBLIC

Document file FR
Document
Document Long Title

Written Comments of Argentina

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