EMBASSY OF BOLIVIA
THEHAGUE
EBPB-V- 82-09
The Hague, July 1 ih 2009
Mr. Registrar,
1 have the honour to refer to your note No. 134141 of April 21, 2009 regardiing the
request for an advisory opinion submitted to the Court by the General Assembly to the
question of the Accordance with International Law of the Unilateral Declaration of
lndependence by the Provisional Institutions of Self-Government of Kosovo.
ln this regard and on behalf of the Government of the Plurinational of Bolivia, 1 hereby
submit a written statement on the above mentioned question to be presented by 17
July 2009. Following your recommendation, please find attached to this letteffthirty
(30) bound paper copies of the statement and one (1) CD-ROM containing its
electronic version
Finally, Bolivia looks forward to consider closer, all statements of other States, as well
as the final advisory opinion of the International Court of Justice.
Please accept the assurances of my highest consideration.
Mr. Philippe COUVREUR
Registrar of the International Court of Justice
The Hague.-
Nassaulaan 5, 2514 JS TEL: (3/70) 361 6707
LaHaya, Paises Ba;os e-mail: embolllcd111'.n4a!l.nl FAX: (3170) 362 0039 WRITTEN COMMENTARY BY THE PLURINATIONAL STATE OF BOLIVIA
TO REQUEST FOR AN ADVISORY OPINION OF THE INTERNATIONAL
COURT OF JUSTICE ON WHETHER THE UNILATERAL DECLARATION OF
INDEPENDENCE OF KOSOVO IS IN ACCORDANCE WITH
INTERNATIONAL LAW
1. ln light of the initial statements submitted by several States, Bolivia consideit
necessary to stress in the first instance that the question that has been referred
to Court arises from the particular factual circumstances that pertain to the
situation of Kosovo. ln addressing the question, and in preparing these Written
Comments, Bolivia invites the Court to have careful regard to the potentially far
reaching normative consequences for international law of pronouncing on the
legality of a unilateral declaration of independence by a constituent part of a
sovereign and independent State such as Serbia.
1. PRELIMINARY FACTS.
2. The Plurinational State of Bolivia voted in favor of Resolution 63/3, approved by
the General Assembly ("GA"), request for an advisory opinion of the
International Court of Justice on whether the unilateral declaration of
independence of Kosovo is in accordance with international law. ln such
Resolution the following question was render:
"l ls the unilateral declaration of ïndependence by the Provisional
Institutions of Self-Government of Kosovo in accordance with
international law?"
3. The position of the Plurinational State of Bolivia, sent by the Bolivian Embassy
on April 17th, 2009, was within the respect that there should be to such
Resolution 1244, approved by the Security Council on its 4011th Sessions held
on Jun 10th, 1999.
14. ln addition, the principles of international law were considered along with the
jurisprudence of the Court and the concerned States positions in this case,
taking into account that from such positions the ICJ will begin the final face of
the legal analysis of the documentation.
s. By request of the ICJ, the Plurinational Bolivian State, among other States,
must submit its written commentaries on the other State's commentaries,
having as the time limit ~luly17th, 2009.
Il.LEGAL CONSIDERATIONS.
6. Regarding the written commentaries submitted by several States, the
Plurinational State of Bolivia considers that one of the United Nations purposes
is the international security and peace maintenance.
1. The United Nations Charter restricted the right of self-determination, in the form
of secession and independence, solely to the circumstances of "Non-Self
Governing Territories" or colonial territoriesthat had not yet attained
independence. By contrast, the right to self-determination of peoples living
within sovereign and independent States is exercised through democratic
participation in State institutions and, where appropriate, varying degrees of
autonomy within the territorial boundaries of the State. There is no right in
general international law for peoples to unilaterally declare their independence
and to secede from the State of which they form a part without the consent of
that State. Since very few States are ethnically homogeneous, recognition of
any right to unilateral secession is liable to have potentially catastrophic
consequences for the protection of human rights and international peace and
security. ln the event that the Court decides to engage with the merits of the
question presented by the General Assembly, therefore, its approach should
take into account the highly significant implications for the most fundamental
principles of the international legal order of recognizing any exception to respect
for the territorial integrity of States.
2s. The Court has already had occasion to address issues of self-determination. ln
1 2
its Advisory Opinions in Namibia, Western Sahara, and Construction of a
Wall, the Court has confirmed that the right of self-determination up to and
including independence applies only to peoples under colonial rule or foreign
occupation. This is consistent with the approach taken by the United Nations
Declaration on the Granting of lndependence to Colonial Countries and
Peoples, which states in relevant part that:
"1. The subjection of peoples to alien subjugation, domination and
exploitation constitutes a denial of fundamental human rights, is
contrary to the Charter of the United Nations and is an impediment to
the promotion of world peace and co-operation.
2. Ali peoples have the right to se/f-determination; by virtue of that
right they free/y determine their politica/ status and freely pursue their
economic, social and cultural development."
9. The Declaration on Principles of International Law Concerning Friendly
Relations and Co-Operation Among States in Accordance with the Charter of
the United Nations also clarifies the legal situation, stating that:
"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 State administering it; and such separate and distinct status
under the Charter shall exist until the people of the colony or Non
Self-Governing Territory have exercised their right of self
determination in accordance with the Charter, and particularly its
purposes and principles."
rn. ln other words, the exercise of self-determination by a people under colonial
rule, up to and including unilateral secession and independence, does not
constitute a violation of the territorial integrity of a State because, under the
United Nations Charter, a colonial or Non-Self-Governing Territory enjoys "a
1legal Consequences féJrStateolthe Continued PresenceolSouth Afhca in Namihia (South West
Afi·ica) notwithstanding Security Council Resolution 276 (sory Opinion. 1971 ICJ Rep.. p. 16.
Western Sahara Advisory Opinion, 1975 ICJ Rep.. p. 12.
" legal Consequences of the Construction of a Wall in the Ocrnpied Palestinian Territory Advisory
Opinion, 2004 ICJ Rep., p. 136
3 status separate and distinct from the territory of the State administering it''. The
application of the right of unilateral secession and independence solely to
colonial territories is expressly stipulated in the Declaration on Friendly
Relations:
"Nothing in the foregoing paragraphs sha/1 be construed as
authorizing or encouraging any action which would dismember or
impair, total/y or in part, the territorial integrity or political unity of
sovereign and independent States conducting themselves in
compliance with the principle of equal rights and self-determination of
peoples as described above and thus possessed of a government
representing the whole people belonging to the territory without
distinctionas to race, creed or colour."
11. The potential abuse of a right of unilateral secession outside of the colonial
context and its grave consequences on human rights and international peace
and security is indeed reflected in the Declaration on Friendly Relations, which
recognises that:
"Every State shall refrain from any action aimed at the partial or total
disruption of the national unity and territorial integrity of any other
State or country."
12. The conclusion to be drawn, therefore, is that in all territories other than those
that are colonies or that are Non-Self Governing, or that are under foreign
occupation, the right of self-determination is be exercised within the territorial
boundaries of the State, and not by violating those boundaries through
unilateral secession or declaration of independence. The fact that a State
pursues a discriminatory policy against an ethnie group cannot, as such, give
rise to a right to unilateral secession. The remedy, to the extent that one may
be needed, is to be found in the law of human rights or in particular rules of
international law that protect the rights of minorities.
13. Consistent with this principle, in its General Recommendation No. 21 on the
Rights to Self-Determination, the Committee established under the International
4 Convention on the Elimination of Ali Forms of Racial Discrimination (GERD) has
expressed the view that:
"International law has not recognized a general right of peoples
unilaterally ta declare secession from a State. ln this respect, the
Committee follows the views expressed in An Agenda for Peace
(paras. 17 and following), namely, that a fragmentation of States may
be detrimental ta the protection of human rights, as well as to the
preservation of peace and security."
u. Bolivia considers it pertinent in view of the status of Kosovo as a constituent
entity within Serbia to recall the 1998 judgment of the Supreme Court of
Canada in Reference re Secession of Quebec, where the Court was asked to
address the question, amongst others:
"c:Does international law gives the National Assembly, legislature or
government of Quebec the right to effect the secession of Quebec
from Canada unilaterally? ln this regard, is there a right to self
determination under international law that would give the National
Assembly, legislature or government of Quebec the right ta effect the
secession of Quebec from Canada unilaterally?"
1s. ln addressing that question, the Court had little difficulty in reaching the
following conclusion:
"lt is clear that international law does not specifically grant
component parts of sovereign states the legal right ta sec:ede
unilaterally from their 'parent' state."
1<i.The Court clarified the scope of the right ta self-determination, stating that:
"The recognized sources of international /aw establish that the right
to se/f-determination of a people is normal/y fulfilled through internai
self-determination -- a people's pursuit of its political, economic,
social and cultural development within the framework of an existing
state. A right to externat se!f-determination (which in this case
potentially takes the form of the assertion of a right to unilateral
secession) arises in on/y the most extreme of cases and, even then,
under carefully defined circumstances."
511. Applying the jurisprudence of the Court, and the conclusion of Canada's
Supreme Court, Bolivia submits that international law does not grant Kosovo the
legal right to secede unilaterally from Serbia.
1s. Kosovo is neither a colony nor a Self-Governing Territory; nor is it occupied by a
foreign State. Bolivia recognizes that during the Government of President
Slobodan Milosevic in the Federal Republic of Yugoslavia, the ethnie Albanian
population of Kosovo suffered systematic discrimination and large-scale ethnie
cleansing. These facts have been established in the proceedings of the
International Criminal Tribunal for the former Yugoslavia.
t9. Following the military intervention of NATO, which began on March 24 th 1999,
the Security Council of the United Nations adopted Resolution 1244 of June
10th,in accordance to the purposes and principles of the Charter of the United
Nations, and the primary responsibility of the Security Council for the
maintenance of international peace and security, being the juridical and political
basis for the treatment of the Kosovo Statute question, with recognized
authority by the international community.
20. The Security Council Resolution 1244, clearly establish the legal and political
standards for a solution in Kosovo's situation in Serbia, former Federative
Republic of Yugoslavia.
21. The Plurinational State of Bolivia, adheres to such political and legal
parameters, taking into account that the referred Resolution 1244 establist1on
its 10th paragraph:
"Authorizes the Secretary-General, with the assistance of relevant
international organizations, to establish an international civil
presence in Kosovo in order to provide an interim administration for
Kosovo under which the people of Kosovo can enjoy substantial
6 autonomy within the Federal Republic of Yugoslavia, and which will
provide transitional administration while establishing and overseeing
the development of provisional democratic self-governing institutions
to ensure conditions for a peaceful and normal lite for all inhabitants
of Kosovo." [own underlining]
22. Also, the sixth paragraph of Annex 1 of Resolution 1244, Statement by the
Chairman on the conclusion of the meeting of the G-8 Foreign Ministers held at
the Petersberg Centre on 6 May 1999, ordain:
"political process towards the establishment of an interim political
framework agreement providing for a substantial self-government for
Kosovo, taking full account of the Rambouillet accords and the
principles of sovereignty and territorial integrity of the Federal
Republic of Yugoslavia and the other countries of the region..." [own
underlined]
23. For its part, Annex 2 of the Resolution 1244 notes on its fifth paragraph as
follows:
"Establishment of an interim administration for Kosovo as a part of
the international civil presence under which the people of Kosovo can
enjoy substantial autonomy within the Federal Republic of
Yugoslavia. to be decided by the Security Council of the United
Nations. The interim administration to provide transitional
administration white establishing and overseeing the development of
provisional democratic self-governing institutions to ensure
conditions for a peaceful and normal life for ail inhabitants in
Kosovo." [own underlined]
24. ln addition, paragraph 8 of the referred Annex 2 of the la Resolution 1244,
indicates:
"A politica/ process towards the establishment of an interim political
framework agreement providing for substantial self-government for
Kosovo, taking full account of the Rambouillet accords and the
principles of sovereignty and territorial integrity of the Federal
Republic of Yugoslavia and the other countries of the region ... "[own
underlined]
72:;.The sovereignty and territorial integrity are guiding principles of the United
Nation's Charter. Both are fundamental principles of international law, therefore,
should be respected and observed by the international community.
26. According to the doctrine, State's sovereignty and territorial integrity has in
international law three main features: plenitude, exclusivity and inviolability.
- Plenitude: the territorial sovereignty's function is to, indeed, let the
State's fulfillment of its objectives. Consisting this on the insurance of the
permanent and general interests of the human community, it is
understood that the territorial sovereignty is full and that the limitations to
it are not presumed.
- Exclusivity: the territorial sovereignty is exclusive, in the way that in the
territory of a State the exercise of territorial competences by other State
is not allowed, unless there is an express consent toit by the first one.
- lnviolability: on international law there is an obligation to respect
sovereignty and territorial integrity of other States. As the Court of The
Hage stated in the Corfu case "between independent States, the respect
of territorial sovereignty is one of the fundamentals of international
relations. ln addiition,this principle is present in the Charter of the United
Nations Organization and the Declaration of the of the Principles of the
International Right which rule the cooperation and friendship relations
between states, adopted by the General Assembly on the 25 of October
st
of 1970. lt is the Resolution 2625(XXV) and in the Helsinky Act of 1 of
August of 1975, concluded in the framework of the Conference of
Security and Cooperation in Europe, which formulates the principles of
inviolability of frontiers and territorial integrity of States".
821. ln this context, the Court, in accordance with the rules and principles of
international law and relevant jurisprudence, found that the principle of territorial
integrity is the protection of an essential element of the State -the territory-,
where any modification to the territorial integrity of the State should be
conducted in accordance to international law, this is, mainly through the consent
of the concerned State.
2s. Similarly, Resolution 55/2 United Nations Millennium Declaration, approved by
the GA at United Nations Headquarters in New York, fifty fifth sessions carried
out from 6 to 8 September 2000, on paragraphs 3 and 4 provide:
"3. We reaffirm our commitment to the purposes and principles of the
Charter of the United Nations, which have proved timeless and
universal. lndeed, their relevance and capacity to inspire have
increased, as nations and peoples have become increasingly
interconnected and interdependent.
4. We are determined to establish a just and lasting peace al/ over
the world in accordance with the purposes and principles of the
Charter. We rededicate ourselves to support ail efforts to uphold the
sovereign eguality of ail States, respect for their territorial integritv
and politica/ independence, resolution of disputes by peaceful means
and in conformity with the principles of justice and international law,
the right to€~1f-determinatioo nf peoples which remain under colonial
domination and foreign occupation, non-interference in the internai
affairs of States, respect for human rights and fundamental
freedoms, respect for the equal rights of ail without distinction as to
race, sex, language or religion and international cooperation in
so/ving international problems of an economic, social, cultural or
humanitarian character." [own underlined]
Ill. CONCLUSIONS AND RECOMMENDATIONS.
29. The actions and efforts toward a solution on Kosovo' s regard should be within
the principles and purposes of the United Nation·s Charter and related
instruments, including relevant requirements of Resolution 1244 that guarantee
and preserve the sovereignty and territorial integrity of States.
930. Therefore, to adopt unilateral measures of secession or independence must be
considered as contrary to international law.
31. ln view of the above, the Plurinational State of Bolivia request the International
Court of Justice the following:
32. That the International Court of Justice, to the question on Resolution 63/3,
approved by the General Assembly, about the request for an advisory opinion of
the International Court of Justice on whether the unilateral declaration of
independence of Kosovo is in accordance with international law, declares that:
(1) General international law does not grant Kosovo the legal right to secede
unilaterally from Serbia.
(2)the right to self-determination may not be exercised by the Provisional
Institutions of Self-Government of Kosovo so as to justify the unilateral
declaration of independence under international law; and
(3)There are no other grounds in international law which would allow the
Provisional Institutions of Self-Government of Kosovo to unilaterally
declare independence.
The Hague, July 2009
PM/ZFD/LRM
10
Written Comments of Bolivia