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
Written Comments of Argentina