United States Department of State
Washington, D.C. 20520
April 17, 2009
Sir,
Pursuant to the Court' s Ortler of 17 October 2008, I have the honor to
enclose thirty copies of the Written Statement of the United States of
America concerning the request of the United Nations General Assembly for
an advisory opinion on the question of the Accordance with International
Law of the Unilateral Declaration of Independence by the Provisional
Institutions of Self-Government of Kosovo. I have also enclosed a diskette
containing the text of the Statement.
Accept, sir, the assurances of my highest consideration.
~crz.. ,; Î)VV"Jiv.-L
Joan E. Donoghue
Acting Legal Adviser
Enclosures:
As stated
Mr. Philippe Couvreur,
Registrar,
International Court of Justice,
Peace Palace,
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 STATEMENT OF
THE UNITED STATES OF AMERICA
APRIL2009 TABLE OF CONTENTS
CHAPTERI
INTRODUCTION ........................................................................
............................................-. 1-
CHAPTERII
OVERVIEW AND KEY FACTUAL CONSIDERATIONS BEARING
ON THE SITUATION IN KOSOVO ................................................................... 4 -.
.............-
Section 1. Kosovo' s Constitutional Position In The Former
Yugoslavia ........................................................................
............................- 5 -
Section Il. Repression And Response....................................................... 8 -.............
....-
Section III. Kosovo And The International Community After Dayton .........................- 13-
Section IV. UN Security Council Resolution 1244.........................................................- 19-
Section V. The Period of UN Administration ................................................................- 22 -
Section VI. The Political Process To Determine Kosovo's Future
Status - 24 -
Section VII. The Declaration of Independence .............................................. 32 -............-
Section VIII. Independent Kosovo........................................................................
............-. 34 -
CHAPTERIII
CONSIDERATIONS RELATING TO THE NATURE OF THE
QUESTION REFERRED AND HOW THE COURT MIGHT
ADDRESS IT........................................................................
...................................................-.41 -
Section 1. Questions Related To Whether Rendering An Opinion
Would Be A Proper Exercise Of The Court's Judicial
Function .................................................................... 41 -...............................-
Section Il. lfThe Court Does Decide To Render An Opinion, The
Importance Of Confining The Response To The
Question Posed............................................................... 45 -....
.....................-CHAPTERIV
THE DECLARATION OF INDEPENDENCE IS IN ACCORDANCE
WITH GENERAL PRINCIPLES OF INTERNATIONAL LAW......................................... - 50 -
Section I. International Law Does Not As A General Matter
Regulate Declarations Oflndependence .....................................................- 50 -
Section II. Confirmation From Recent State Practice Concerning
Dissolution Of Yugoslavia ........................................................................
..
Section III. The Situation May Differ When Declarations Of
Independence Are Conjoined With Actions That
Themselves Violate International Law .......................................................
Section IV. Kosovo's Declaration Ofindependence Is In
Accordance With International Law...........................................................
CHAPTERV
THE DECLARATION OF INDEPENDENCE IS IN ACCORDANCE
WITH RESOLUTION 1244.........................................................................61..........................-
Section I. The Fundamental Approach OfResolution 1244 Was To
Protect The People Of Kosovo, Create An Environment
In Which Kosovo Could Develop Politically And,
Subsequently, Facilitate A Process To Seek A
Resolution ofKosovo's Future Status ........................................................- 62 -
Section II. The References To The Rambouillet Accords In
Resolution 1244 Underscore That Independence Was
Recognized As A Legitimate And Possible Outcome
And That Serbia Had No Veto Over The Political
Process ........................................................................
..................................
A. The References in Resolution 1244 To The
Rambouillet Accords Confirm That Independence
Was A Possible Future Status For Kosovo..........................................
B. The References InResolution 1244 To The
Rambouillet Accords Also Confrrm That The
Outcome Did Not Require The FRY's Consent..................................-
Section III. The Qualified Reference In Resolution 1244 To the
'Territorial Integrity' Of the FRY Further Underscores
That Independence Was Seen As A Legitimate And
Possible Outcome........................................................................
.................- 68 -
11 A. Principles Of Territorial Integrity Do Not Preclude
The Emergence Of New States On The Territory
Of Existing States..................................................... 69 -..............
........-
B. Differences Between The Reference To Territorial
Integrity In Resolution 1244 And In Previous
Kosovo Resolutions Underscore That
Independence Was Considered A Legitimate And
Possible Outcome........................................................................
........- 69 -
Section IV. Resolution 1244 Refers Only To The Territorial
Integrity Of 'The Federal Republic Of Yugoslavia', Not
To That Of 'Serbia' -74-
Section V. The FRY ItselfRecognized That Resolution 1244 Left
Open The Possibility Oflndependence For Kosovo..................................- 78 -
Section VI. By The Time Of The Declaration Of Independence, The
'Political Process' Envisioned By Resolution 1244 Had
Run Its Course ........................................................................
......................- 79 -
Section VII. Neither The UN Secretary-General Nor His Special
Representative Denounced Or Sought To Annul The
Declaration of Independence .......................................................................-
84 -
A. The Secretary General And His Special
Representative Had Previously Exercised Their
Authority To Strike Down Actions That They
Considered Inconsistent With Resolution 1244................................- 85 -
B. The Secretary-General And The SRSG Did Not
Declare The Declaration Of Independence To Be
Void Or Unlawful.........................................................................
.......- 86 -
C. The Court Should Fully Take Into Account The
Appropriate Decisions Of The Responsible
Officers Of The United Nations Not To Declare
The Declaration Oflndependence Unlawful......................................- 89 -
CHAPTERVI
CONCLUSION........................................................................
.................................................-.90-
l1l CHAPTERI
INTRODUCTION
In its Ortler dated 17 October 2008, this Court invited States to submit written
statements on the question: "Is the unilateral declaration of independence by the
Provisional Institutions of Self-Government of Kosovo in accordance with international
law?" The United States appreciates the opportunity to submit this written statement, and
to present to the Court the bases for its conclusion that Kosovo' s declaration of
independence in February 2008 is fully in accordance with international law.
Ever since the dissolution of federal Yugoslavia, the issue of Kosovo has
confronted the Western Balkans region and the broader international community. "This
is a unique issue deriving from the unique autonomous province status of Kosovo within
the Yugoslav Federation," wrote the last holder of the presidency of the Socialist Federal
Republic of Yugoslavia on the eve of Kosovo's declaration of independence. "The
Federation fell apart. ... [T]he need to determine the new and final status of Kosovo
asserted itself precisely because the element of Kosovo' s tie with the former federation is
no longer there."1
The United States has maintained a longstanding and close engagement with the
states and the people of the Western Balkans region. Mindful that events in the region
ignited the First World War, and of the more recent violent conflicts stemming from the
breakup of the former Yugoslavia, the United States shares the strong interest of the
international community in assuring that such bloodshed and turmoil never retum. The
Court has previously addressed various aspects of the problems that have beset the region
in the last two decades, including in the Court' s conclusions about the atrocities that had
been committed in the course of the conflict in Bosnia during the mid-l990s. The tragic
and tumultuous recent history of the region, and the importance of not letting that history
repeat itself, has clearly shaped the way that the United States and others in the
international community have had to deal with events as they unfolded in Kosovo. It is
the hope of the United States that the resolution of this case will play a role in tuming the
page on this chapter of Balkans history.
The United States underscores that its support for Kosovo's declaration of
independence-in this advisory proceeding, and in other contexts-reflects no weakening
1 Stjepan Mesié,Kosovo -- problem koji ne trpi odgailanje ("KosoAoProblem that Tolerates No
Delay"),Vecemi List, 16 February 2008 [Annex 1]. Mesié was Prime Minister of Croatia from May to
August 1990, then Vice-President of the federal Presidency, serving as Yugoslavia's last President from
June to December 1991;he has been President ofCroatia since 2000.
- 1 -of the 127-yearbond between the United States and Serbia, or of its desire for close and
respectful relations with Serbia. The United States is proud to have nurtured a strong
friendship with Serbia and the Serbian people, marked by cooperation in two world wars
and longstanding successful economic and cultural ties, albeit disrupted by the actions of
the Milosevié regime in the 1990s. In recent years, the United States has supported
Serbia's Stabilization and Association Agreement with the European Union, supported its
bid for accession to the World Trade Organization, provided significant amounts of
bilateral assistance, promoted trade between the two countries, and conducted extensive
cultural and academic exchanges as well as a broad range of other programs with the
people of Serbia. Today, the United States approaches its relations with Serbia as it does
its relations with Kosovo: in a regional context, centered on promoting integration into
Euro-Atlantic institutions with a mission to foster peace, prosperity and human rights
across the continent.
Thus, consistent with United States policy toward the Western Balkans since the
end of the Cold War, and since Kosovo's independence, the United States hopes that its
written observations in this advisory opinion proceeding, and the proceeding' s ultimate
outcome, will contribute to the cause of preserving stability and safeguarding human
rights of citizens throughout the region. Kosovo's independence bas closed one of the
most tragic chapters of modem European history-the violent breakup of Yugoslavia.
Now, the time has corneto look to the future.
With these initial remarks in mind, the United States respectfully requests the
Court to considerits observations on the question referred by the General Assembly.
As explained in more detail below, the recent history of the region-including the
circumstances surrounding the violent dissolution of the former Yugoslavia, the massive
violence and :tepressionof the 1990s, the events that led to the adoption by the Security
Council of Resolution 1244, and the extended period of international administration
under that resolution-are important for understanding the circumstances surrounding
Kosovo's declaration of independence. Chapter II provides an overview of that recent
history. Chapter III then presents considerations relating to the nature of the question
presented to the Court about Kosovo's declaration of independence and how the Court
might address it.
Chapter IV of this submission next explains that international law does not as a
general matter regulate declarations of independence. It describes Kosovo's declaration
in considerable detail and concludes there is nothing about its declaration of
independence that would lead to a different conclusion in this case. Chapter V proceeds
to explain that Kosovo's declaration of independence was fully in accordance with
Resolution 1244. That resolution was designed to create an environment in which
Kosovo could develop politically and to facilitate a political process for seeking a
-2-resolution of Kosovo's future status; the resolution plainly anticipated that independence
might be the most appropriate future status for Kosovo and did not seek to preclude it.
As further discussed in that chapter, Kosovo declared independence only after the Special
Envoy authorized to lead that process, with the full support of the Secretary-General, had
concluded that the political proèess under Resolution 1244 had been exhausted and
specifically recommended that Kosovo's status should be independence, the only feasible
and reasonable outcome. This conclusion was embraced by key states which worked,
and continue to work, cooperatively with Kosovo to develop and implement the
necessary framework for Kosovo' s supervised independence.
Chapter VI concludes the United States submission.
- 3 - CHAPTERII
OVERVIEW AND KEY FACTUAL CONSIDERATIONS
BEARING ON THE SITUATION IN KOSOVO
The history of the relationship between Kosovo and Serbia over the past century
· is largely one of conflict between Kosovo's desire for self-rule and Serbia's wish to
control the territory and people of the region. As explained in this chapter, this tension
manifested itself in an increasingly destructive cycle between 1988 and 1999, a decade
which began with repressive actions in Kosovo by the Belgrade authorities that
precipitated the breakup of Yugoslavia, and ended with action by the international
community to protect Kosovo's ethnie Albanian majority population from forcible and
violent displacement. That decade concluded with the establishment of an international
administration in substitution for that of Belgrade. For almost another decade thereafter,
the United Nations and other international actors implemented the terms of Security
Council Resolution 1244 in Kosovo, including conducting a political process aimed at
producing a political solution to the ongoing question of Kosovo's status. Only after that
process had been exhausted-failing to produce a solution acceptable to all, despite
monumental diplomatie efforts---did Kosovo declare its independence. As of early April
2009, Kosovo's statehood had been recognized by 57 states, including nine members of
the SecurityCouncil, ail of its neighbors except Serbia, and 22 of 27 EU member states.
The background and history of the Kosovo issue is complex, but that background
and history are sufficiently important for understanding the legal issues involved that this
chapter goes into significant detail in describing key elements of it. As the Contact Group
agreed soon after the future status process was launched, the "character of the Kosovo
problem" has been "shaped by the disintegration of Yugoslavia and consequent conflicts,
ethnie cleansing . . . , and the extended period of international administration under
UNSCR 1244", all of which needed to be "fully taken into account in settling Kosovo's
status."
2
Statement by the Contact Group on the Future of Kosovo, London, 31 January 2006, available at:
http://pristina.usembassy.gov/press2006013la.Many of the events alluded to in this chapter are
described in greater detail in such general works as Noe! Malcolm,: A Short History (1998)
("Malcolm"); Miranda Vickers,ween Serb and A/banian: A History of Kosovo (1998) ("Vickers"); Tim
Judah, Kosovo: What Everyone Needs to Know (2008) ("Judah") and Marc Weller, Contested Statehood:
Kosovo 'sStrugglefor Independence (2009) ("Weller").
-4- Section I. Kosovo's Constitutional Position In The Former Yugoslavia
Kosovo, long home to an overwhelmingly ethnic-Albanian population, was
formally attached to an ethnically Serb state following Serbia's victory in the Balkan
Wars of 1912-13. Relations between Belgrade and Kosovo-and in particular, Kosovo's
ethnie Albanian majority-were troubled from 1912 until Yugoslavia's destruction in
World War II. 3
The architects of post-war Yugoslavia were acutely aware of the damage done to
the country during the period between the First and Second World Wars by ethnie
conflict, and sought to structure the new Yugoslavia to prevent its recurrence. 4 The first
post-World War II constitution, adopted in 1946, accordingly characterized the federation
both as a voluntary coming together of peoples and as a union of six republics (with
Kosovo and Vojvodina 5 expressly included as part of Serbia). 6 In succeeding
constitutions, Kosovo was treated both as an autonomous part of the Serbian republic and
as an entity with its own constitutional status under the federal Yugoslav constitution. 7
This dual legal status endured throughout the following quarter-century, although
Kosovo's legal autonomy was tempered by a disproportionate Serb role and influence in
its political, social and economic institutions.
In the late 1960s, relaxation of centralized political control and a more tolerant
approach by the federal authorities to ethnie diversity in Yugoslavia allowed greater
opportunity for ethnie Albanians to advance in both the political and the cultural spheres,
as well as for protests against poor economic and other conditions in Kosovo. A number
of steps followed, ranging from opening of the first full-fledged university in Pristina to a
3See, e.g., Vickers, pp. 103-08, 116-20.
4 See, e.g., Decision to Create Yugoslavia on Federal Principles, Jajce, 29 November 1943 (reprinted in
Snezana Trifunovska (ed.), Yugoslavia Through Documents: From its creation to its dissolution
("Trifunovska"), pp. 206-07); Vickers, pp. 146-47. See also Misha Glenny, The Balkans: Nationalism,
War and the Great Powers, 1804-1999 (2001), pp. 402-12, 428-36; Bogdan Denitch, The Legitimation ofa
Revolution (1976), pp. 105-48.
5
Vojvodina's Hungarian population shared the province with a larger Serb community and significant
other minority populations, and did not present issues of the same intensity as Kosovo.
6
Constitution of the Federal People's Republic ofYugoslavia, 1946, Part l, Chap. 1,Arts. 1-2 (reprinted in
Marc Weller, The Crisis in Kosovo 1989-1999: From the Dissolution of Yugoslavia to Rambouillet and the
Outbreak of Hostilities1999) ("Crisis"), pp. 51-52).
7
Constitution of the Federal People's Republic of Yugoslavia, 1953, Arts. 113-14 (reprinted in Crisis,
pp. 52-53); Constitution of the Socialist Federal Republic of Yugoslavia, 1963, Arts. 111-12 (reprinted in
Crisis, p. 53); Constitution of the Socialist Federal Republic of Yugoslavia ("1974 SFRY Constitution"),
Arts. 1, 2, 4 (Original on file with the International Criminal Tribunal for the former Yugoslavia, filed as
Exhibit P01623 in Prosecutor v. Milan Milutinovié, Nikola Sainovié, Dragoljub Ojdanié, Nebojsa
Pavkovié, VladimirLazarevié, and Sreten Lukié).
- 5 -series of constitutional amendments expanding the autonomy of Kosovo and its role
within the overall federal structure. Serbian control over the province began to give way
to a significant strengthening of the position of ethnie Albanians in Kosovo, and
8
concomitant decline in that of Kosovo Serbs.
This process led in 1974 to enactment of a new Constitution of the Socialist
Federal Republic of Yugoslavia ("SFRY"). Under the new Constitution, the two
autonomous provinces of Kosovo and Vojvodina, while remaining formally part of
Serbia, were direct participants in federal institutions virtually on a par with the six
republics, and held almost complete jurisdiction over their own internai affairs. The
Constitution referred to the "sovereign rights" of both nations and nationalities and stated
that a9l Yugoslavia's nations and nationalities had joined together on a free and equal
basis. The new 1974 Serbian and Kosovo constitutions likewise each specified that
Kosovo and Vojvodina had united both with Serbia and within Yugoslavia, on the basis
of "the freely expressed will" of the population, nations and nationalities of both the
provinces and Serbia. 10
Under the 1974 SFRY and associated new Serbian and Kosovo constitutions,
Kosovo enjoyed virtually complete self-government, and had full control over its11wn
educational system, judiciary, taxation and internai security and police. Kosovo had the
right to approve, and thus the right to block, changes in the federal and Serbian
12
constitutions that affected the province. lt had a right to conduct or participate in some
aspects of international affairs. 13 Under the federal constitution, Kosovo was also a full
and equal participant with the six republics and Vojvodina in the collective Presidency;
the autonomous provinces each possessed a representation equal to two-thirds of that of a
8See, e.g., Frederick Singleton, Twentieth-Century Yugoslavia (1976), pp. 234-36.
9 1974 SFRY Constitution, Basic Principles, Arts. 3, 4 and 245; 1974 Constitution of the Socialist Republic
of Serbia ("1974 Serbian Constitution"), Basic Principles, para. 2 (Original on file with the International
Criminal Tribunal for the former Yugoslavia, filed as Exhibit P01848 inosecutor v. Milan Milutinovié,
Nikola Sainovié, Dragoljub Ojdanié,Nebojsa Pavkovié, Vladimir Lazarevié, andSreten Lukié).
10 1974 Serbian Constitution, Introductory Part, Basic Principles, para. 6. Constitution of the Socialist
Autonomous Province of Kosovo, 1974 ("1974 Kosovo Constitution") (reprinted in Krieger, The Kosovo
Conflict And International Law - An Analytic Documentation 1974-99 (2001) ("Krieger"), p. 7).
11
Periodic report submitted by Ms. Elisabeth Rehn, Special Rapporteur of the Commission on Human
Rights, pursuant to paragraph 45 of Commission resolution 1996/71 of 25 October 1996, E/CN.4/1997/8
("Rehn Report"), para. 32.See also Prosecutor v. Milan Milutinovié, Nikola Sainovié, Dragoljub Ojdanié,
Nebojsa Pavkovié, Vladimir Laz.arevié,and Sreten Lukié ("Milutinoviéet al."), Trial Judgement, 26
February 2009, Vol. I, para. 221, available at http://www.icty.org/x/cases/milutinovic/tjug/en/jud090226-
elof4.pdf; Judah, p. 57; Weller, pp. 34-35.
12
1974 SFRY Constitution, Art. 398; 1974 Serbian Constitution, Art. 427; 1974 Kosovo Constitution, Art.
301 (reprinted in Krieger, p. 8).e also Rehn Report, E/CN.4/1997/8, para. 33.
13
1974SFRY Constitution, Art. 271.
- 6 -republic in each house of the federal legislature, with the result that the two autonomous
provinces together possessed more votes than Serbia itself. 14 Disputes between Kosovo
and the federal authorities or the republics were decided in the federal constitutional
court.15
Thus, while still a part of Serbia, after 1974Kosovo was acknowledged to possess
sovereign rights and to have joined Serbia and Yugoslavia of its own volition. Kosovo
enjoyed constitutional rights and legal powers and exercised governing authority at all
levels of governmentthat were largely (and in important ways entirely) identical to those
of the six republics. As later summarized by a figure deeply involved in Yugoslav and
post-Yugoslavpolitics:
Yugoslavia consisted of republics and provinces; accordingly, the
provinces were constituent elements of the Federation. Second, the
provinces were within Serbia, meaning that - in addition to their
constituent tie with the Federation - they were also connected with one of
its federal units. Third, the republics and provinces united in Yugoslavia
of their own free will, and this clearly implies that they could not be kept
within that state framework against their will. Where provinces are
concemed this regards both the federal framework and the framework of a
federal unit. And, finally, fourth, in the provinces the nations and
16
nationalities exercised their sovereign rights.
Kosovo both govemed itself and participated actively in federal affairs under the
1974 constitutional structure until the forcible overthrow of the constitutional order in
1989.
14
1974 SFRY Constitution, Arts. 291 and 292.
15
Ibid, Art. 375(5) ("The Constitutional Court ofYugoslavia shall: ... 3) decide disputes involving rights
and duties ...between the Republics and the Autonomous Provinces ...").
16 Stjepan Mesié,Kosovo -- problem koji ne trpi odgaâanje ("Kosovo -- A Problem that Tolerates No
Delay"),Vecemi List, 16 February 2008 [Annex l]. See also note 1,supra.
- 7 - Section II. Repression And Response
A series of actions beginning in the late 1980s catalyzed the violent break:upof
the Yugoslav state and the departure from the union of most of the republics whose
presence had hitherto helped protect Kosovo's autonomy within Serbia and separate
status within the SFRY. This opened the way for a decade of increasingly harsh
repressionagainstKosovothrough deliberate state policy.
Despite the increase in autonomy brought by the 1974 SFRY constitution, niany
ethnie Albanians continued to agitate for full republic status and greater local control.
Also, Kosovo's continuing poverty led to economic emigration by residents of all
ethnicities, and riots in 1981contributed to the further departure of many Kosovo Serbs
and Montenegrins. 17 By the late 1980s,the combination of nationalist agitation and the
declining place of Serbs in Kosovo led Serbian leaders to seek to re-establish Serbian
dominance over the province. Among those leaders was Slobodan Milosevié, whose
speech at Kosovo Polje in 1987 marked his decision to embrace the cause of Kosovo
18
Serbs. He then moved to purge Serbian political leaders who did not support a policy
of Serbiandomination,and was successful in ascending to the Serbianpresidency on that
platform. In 1988 and 1989, Milosevié engineered the modification of the SFRY and
Serbian constitutions to all but eliminate Kosovo's autonomy as a practical matter and
give Serbia control over Kosovo's internai affairs. In March 1989, under pressure of
intimidation and a di1J'layof force, the Kosovo Assembly nominally consented to the
Serbianamendments.
20
In June 1990, Serbian authorities closed the Kosovo Assembly altogether.
Nevertheless, the members of the Assembly met a week later and adopted a resolution
formally asserting Kosovo's "independence" and voiding the Assembly's vote on
21
removal of its autonomy. The Serbian Assembly then voted to close the Kosovo
17
Judah, pp. 57-61; Vickers, pp. 183-213.
18Malcolm, pp. 341-42.
19
Ibid, pp. 343-46. See also Milutinovié et al.Vol. I, paras. 219-220, available at: http://www.icty
org/x/cases/milutinovic/tjug/ en /jud090226-e 1of4.pdf.
20
Law on the Actions of Republic Agencies under Special Circumstances, 26 June 1990 (reprinted in
Crisis, pp. 60-6l); Decision about the Existence of Special Circumstances on the Territory of the SAP of
Kosovo, 26 June 1990 (reprinted inisis, p. 61).
21
Assembly ofKosova, Constitutional Declaration, 2 July 1990 (reprinted in Crisis, p. 64).
- 8 -Assembly permanently, seeking to end the last genuine vestige of the province's political
22
autonomywithin the Yugoslav constitutional system.
Once again, however, in July 1990,the members of the Kosovo Assembly met to
adopt a "constitutional declaration," emphasizing that they were doinî so as an "act of
political self-determination within the framework of Yugoslavia." 2 In adopting a
constitution for the "Republic of Kosova" two months later, they underscored the newly
proclaimed republic's "commitment to Yugoslavia" and "status ... as an equal member
within the Yugoslav Peoples community." 24 In September 1991,still withoutbreaking its
link to Yugoslavia, the members of the Assembly proclaimed Kosovo "a sovereign and
independent state, with the right to participate as a constituent republic in Yugoslavia",
declared Kosovo's "equality ... with all other federal units" and as25rted "all
constitutionalrights in relation with other Yugoslav republics." A referendumheld two
weeks later overwhelrningly confirmed this declaration of sovereignty and
26
independence.
By the end of 1991, four of Yugoslavia's original six republics-Slovenia,
Croatia, Bosnia and Herzegovina and Macedonia-had declared their independence from
the SFRY. Although Yugoslav forces continued to support separatists in both Croatia
and Bosnia and Herzegovina, the collapse of the SFRY led Serbia and Montenegro, the
only two republics that had not declared independence, to forma new state, the Federal
Republic of Yugoslavia ("FRY"), in April 1992. Suppression of Kosovo's autonomous
political status within Yugoslavia denied Kosovo any role in this decision, including the
veto it possessed under the 1974 SFRY Constitution. The resulting FRY constitution
described the new state as a "voluntary association between Serbia and Montenegro"
based on the "equality of its member republics" and made clear that only the two
republics had federal status; n27ther the autonomous provinces in general nor Kosovo
specificallywere mentioned.
22Law Terminating Work of SAP of Kosovo Assembly and the Executive Council, 5 July 1990 (reprinted
in Crisis, p. 61). The province's continuing nominal autonomy allowed Milosevié to control its vote (along
with those of Serbia, Vojvodina and Montenegro) in the Federal presidency.
23Assembly ofKosova, Constitutional Declaration, 2 July 1990 (reprinted in Crisis, pp. 64-65).
24Resolution of the Assembly ofKosova, 7 September 1990 (reprinted in Crisis, p. 65).
25Resolution of the Assembly of the Republic of Kosova on Independence, 22 September 199I (reprinted
in Crisis, p. 72).
26The margin was 99.87% in favor, on an 87.oI¾ turnout (914,802 out of a total electorate of 1,051,357).
Central Board ofKosova for the Conduct of the Referendum, Result, 7 October 1991 (reprinted in Crisis, p.
72).
27 Constitution of the Federal Republic of Yugoslavia, April 1992, Preamble and Art. 1, available at:
http://www.worldstatesmen.org/Yugoslav Const 1992.htm.
- 9 - Serbia's moves against Kosovo's political autonomy were paralleled by a series of
statutory and other actions discriminating against ethnie Albanians. Even before it
suspended the Kosovo Assembly, the Serbian Assembly adopted laws that effectively
prohibited property transfers that would result in the departure of Serbs from Kosovo 28
29
and required that university training be conducted only in the Serbo-Croatian language.
In 1992, it extended that same requirement to the high school and elementary levels as
well, and mandated the u30 of the Serbian curriculum rather than the Kosovo curriculum
previously employed.
Further, tens of thousands of teachers, health workers and other ethnie Albanians
were dismissed from employment in state institutions and enterprises. 31 Kosovo
Albanians responded with a general strike and other protests, which were met with police
violence. Confrontation and political conflict continued to build, and international
32
observers reported an escalation in human rights abuses. Belgrade authorities
exacerbated tensions by resettling Serb and Montenegrin refugees from Croatia and
33
Bosnia and Herzegovina in Kosovo, while encouraging ethnie Albanian emigration.
As early as 1991, barely a year after Serbia had suppressed Kosovo's autonomy,
the human rights situation in Kosovo had become "highly unsatisfactory", with reports of
torture and police mistreatment, according to a Special Rappor34ur appointed by the
Conference on Security and Cooperation in Europe. A CSCE fact-finding mission
reported in June 1992 the fear of ethnie Albanians that "the Serbs would eventually try to
create an armed conflict to force the Albanians out of Kosovo. If it started, it would
produce a massacre and vast numbers of refugees." 35 In November, the CSCE Mission in
Kosovo reported:
28
Law of the Restriction of Real Property Transactions, 1989, as amended, Art. 3 (reprinted in Crisis, p.
60). See a/so Malcolm, p. 346.
29
Amendment of the University Law, 1990, Art. 43 (reprinted in Crisis, p. 60).
30
Elementary School Law, 1992, Arts. 4 and 5 (reprinted in Crisis, p. 63); Secondary School Law, 1992,
Art. 5 (reprinted in Crisis, p. 63); High School Law, 1992, Art. 4 (reprinted in Crisis, p. 63).
31
Rehn Report, E/CN.4/1997/8, para. 35; Judah, pp. 72-73.
32
Malcolm, pp. 346-50. See a/sa documents cited in notes 36-40 below.
33Report on the Situation of Human Rights in the Territory of the Former Yugoslavia Submitted by Mr.
Tadeusz Mazowiecki, Special Rapporteur of the Commission on Human Rights, pursuant to Commission
Resolution 1992/S-1/1 of 14August 1992, A/48/92-S/25341, 26 February 1993; Krieger, pp. 25-27; CSCE
Mission in Kosovo, Report on Kosovo Stalemate, 16November 1992 (reprinted in Crisis, pp. 107-08). See
a/so Malcolm, pp. 352-53.
34Report of the Human Rights Rapporteur Mission to Yugoslavia, 24 January 1992, CSCE Communication
No. 41, Prague, 24 January 1992 (reprinted inisis, pp. 97-99).
35Report of the Conflict Prevention Centre Fact-finding Mission to Kosov5,June 1992, Sec. II (reprinted
in Crisis, pp. 102-03).
- 10 - Kosovo has settled into an uneasy stalemate. ... President Milosevic
intended to rebuild and stabilise Serbian influence in Kosovo, in particular
by shifting the population balance in favour of the Serbs and by replacing
the Albanians in ail positions of political, social and economic
significance. In part this was to be achieved by attracting large numbers
of Serbs to settle in the Province.... To make room for Serbs and reduce
Albanian influence, the Serbian administration initiated a policy of
removal of Albanians from all sectors except the private sector. ... This
process is reported to be virtually completed in the public service at the
central and township levels. ... Public funding of educational services in
Albanian has been discontinued. Albanian controlled radio and
television services have ceased to exist. The judiciary has been all but
cleansed of Albanian judges and magistrates. Albanians in the Kosovo
police force were early victims of the cleansing operation. ...
The parallel Federation of Free Trade Unions of Kosovo reports that at the
end of September 41 per cent of its membership of 240,000 had been fired
and 57% were unemployed. ... It is difficult to lend credence to the
Serbian claim that ail dismissals were undertaken to weed out surplus and
incompetent employees and to deal with massive insubordination. There
is no doubt about official intentions....36
The CSCE mission was ordered by Belgrade to leave the FRY in June 1993.
In December 1992, following reports by the United Nations High Commissioner
for Refugees (UNHCR), the General Assembly condemned "ethnie cleansing" both in
37
Bosnia and Croatia and within the FRY, including in Kosovo. lt continued to condemn
human rights violations in annual resolutions of increasing specificity through the end of
1998. 38 In early 1995, for example, the General Assembly took note of a UNHCR
39
Special Rapporteur' s report describing .
36 CSCE Mission in Kosovo, Report on Kosovo Stalemate, 16 November 1992 (reprinted in Crisis,
pp. 107-08).
37General Assembly resolution 47/147, AIRES/47/147, 14 December 1992 (Situation of human rights),
para. 14.
38General Assembly resolution 48/153, AIRES/48/153, 20 December 1993 (Situation of human rights in
Kosovo); General Assembly resolution 49/196, A/RES/49/196, 23 December 1994 (Situation of human
rights in Kosovo); General Assembly resolution 49/204, AIRES, 23 December 1994 (Situation of human
rights in Kosovo); General Assembly resolution 50/190, A/RES/50/190, 22 December 1995 (Situation of
human rights in Kosovo); General Assembly resolution 50/193, AIRES/50/193, 22 December 1995
(Situation ofhuman rights in Kosovo); General Assembly resolution 51/111, A/RES/51/111, 12 December
1996 (Situation of human rights in Kosovo); General Assembly resolution 51/116, A/RES/51/116, 12
December 1996 (Situation of human rights in Kosovo); General Assembly resolution 52/147,
- 11 - discriminatory measures taken in the legislative, administrative and
judicial areas, acts of violence and arbitrary arrests perpetrated against
ethnie Albanians in Kosovo and the continuing deterioration of the human
rights situation in Kosovo, including:
(a) Police brutality against ethnie Albanians ...;
(b) Discriminatory and arbitrary dismissals of ethnie Albanian civil
servants ...;
(e) The dismissals from clinics and hospitals of doctors and members of
other categories of the medical profession of Albanian origin;
(f) The elimination in practice of the Albanian language, particularly in
public administration and services;
(g) The serious and massive occurrence of discriminatory and repressive
practices aimed at Albanians in Kosovo, as a whole, resulting in
widespread involuntary migration.
The General Assembly then "Demande<! hat the FRY authorities:
(a) Take all necessary measures to bring to an immediate end all human
rights violations against ethnie Albanians in Kosovo ...;
(b) Revoke all discriminatory legislation ...;
(c) Establish genuine democratic institutions in Kosovo ....; 40
Kosovo Albanians, meanwhile, created their own governmental institutions,
headed by Dr. Ibrahim Rugova as president of the "Republic of Kosova." This parallel
government provided important government services, employing thousands of doctors,
teachers and others to run schools, health clinics and other services shut down or denied
to ethnie Albanians by the Serbian authorities. 41 The Kosovo authorities also conducted
elections for the Kosovo Assembly, which continued to function despite harassment and
arrests by the FRY authorities. The parallel government, supported by the vast majority
A/RES/52/147, 12 December 1997 (Situation of human rights in Kosovo); General Assembly resolution
52/139, A/RES/52/139, 1 December 1996 (Situation of human rights in Kosovo); General Assembly
resolution 53/163, A/RES/53/163, 9 December 1998 (Situation of human rights in Kosovo); General
Assembly resolution 53/164, A/RES/53/164, 9 December 1998 (Situation ofhuman rights in Kosovo).
39
Situation ofHuman Rights in the former Yugoslavia, A/49/641-S/1994/1252, 4 November 1992.
40
General Assembly resolution 49/204, AIRES/49/204, 13 March 1995 (Situation of human rights in
Kosovo).
41Judah, pp. 69-74; CSCE Mission in Kosovo, Report on Kosovo Stalemate, 16November 1992 (reprinted
in Crisis,pp. 107-08);Rehn Report, E/CN.4/1997/8, para. 37.
- 12 -of the population, pursued a policy of non-violence, while refusing to engage with the
Serbian authorities. From 1991 onward, the Serbian authorities thus continued to
exercise formai authority and coercive power, while significant fonctions of civil
govemment were performed by a "shadow" govemment democratically elected and
actively supported by the great majority of Kosovo's population.
Section III. Kosovo And The International Community After Dayton
The international community has engaged on issues associated with the break:up
of Yugoslavia from the moment Slovenia and Croatia declared independence in 1991.
These efforts initially focused on efforts to keep the SFRY intact, but soon evolved into a
search for ways to facilitate a peaceful and orderly break-up. These included an arms
embargo and a peacekeeping force in Croatia and Bosnia and Herzegovina following the
outbreak of hostilities in those two republics. A "Contact Group" made up of France,
Germany, Russia, the United Kingdom and the United States was formed in response to
the Bosnian conflict and was able, with the assistance of the North Atlantic Treaty
Organization ("NATO") and the strong backing of the Security Council, to persuade the
warring parties to conclude the 1995 Dayton Accords which brought peace to Bosnia and
42
Herzegovina. The Dayton Accords were, however, silent about the situation in Kosovo.
Having failed in supporting the secession of Serb-majority areas from the territory
of Croatia and Bosnia, Belgrade turned to establishing full control over Kosovo,
including through use of force. In this context, some ethnie Albanians concluded that the
nonviolent policies of the Republic of Kosova would fail and that only armed resistance
could protect Kosovo from Belgrade. 43 The Kosovo Liberation Army ("KLA") began to
44
undertake significant armed operations in 1997. A growing volume of KLA attacks
was met by extensive FRY/Serbian military campaigns and harsh and arbitrary measures
against the ethnie Albanian civilian population that increasingly took on the character of
ethnie cleansing. International observers recounted a lengthening litany of human rights
abuses, including police brutality, repression by the military and police, arbitrary
45
detention, torture and summary executions. As the humanitarian situation in Kosovo
42
Since 1995, a Peace Implementation Council (PIC) has supported a High Representative empowered by
the parties to the Dayton Accords to supervise the implementation of the Accords.
43Judah, pp. 78-79; Weller, pp. 67-68, 74, 77.
44 Milutinovié et al., Vol. 1, para. 793, available at: http://www.icty.org/x/cases/milutinovic
/tjug/en/iud090226-e 1of4.pdf.
45See, e.g., Report of the Special Rapporteur of the Commission on Human Rights, E/CN.4/1996/63, 14
March 1996; Report of the Special Rapporteur of the Commission on Human Rights, E/CN.4/1997/9, 22
October 1996; Report of the Special Rapporteur of the Commission on Human Rights, E/CN.4/1997/8, 25
October 1996; Report of the Special Rapporteur of the Commission on Human Rights, E/CN.4/1997/56, 29
January 1997; Report of the Special Rapporteur of the Commission on Human Rights, E/CN.4/1998/9, 10
- 13-worsened dramatically in the period 1997-1999, the international community
determined to forestall a repetition of the carnage that had tom apart Bosnia and
Herzegovina earlier in the decade, elements of which have previously been considered by
46
this Court in the Bosnia Genocide case -became increasingly engaged in seeking a
political solution to the conflict in Kosovo.
The Contact Group (now including Italy) reconvened in the latter half of 1997,
urging "peaceful dialogue" and stating the position of the Contact Group countries at that
time: "we do not support independence .... We support an enhanced status for Kosovo
7
within the FRY.',4 As the situation worsened, the Security Council adopted Resolution
1160, a Chapter VII resolution imposing an arms embargo on the FRY, encouraging
negotiations between FRY/Serbia and Kosovo and calling for "enhanced status for
Kosovo which would include a substantially greater degree of autonomy and meaningful
self-administration.',4 Six months later, the Security Council expressed its concern about
the intensified fighting in Kosovo, "in particular" the FRY's indiscriminate use of force
against civilians "which [has] resulted in ... the displacement of over 230,000 persons
from their homes", affirmed that the deterioration of the situation in Kosovo "constitutes
a threat to peace and security in the region" and demanded that the FRY authorities and
Kosovo Albanian leadership "take immediate steps to ... avert the impending
9
humanitarian catastrophe.,,4
The FRY's failure to comply with UN demands was followed by statements by
NATO that it was prepared to use force to avert a humanitarian catastrophe. An
intensive, two-pronged diplomatie initiative, led by United States Ambassador Richard
Holbrooke and United States Ambassador Christopher Hill, and supported by the
Security Council and the Contact Group, 50 resulted in agreement by the FRY to a
ceasefire and NATO overflights to confirm compliance with its terms. The FRY agreed
September 1997; Report of the Special Rapporteur of the Commission on Human Rights, E/CN.4/1998/15,
31 October 1997; Periodic Report of the Commission on the situation of human rights, A/51/652 -
S/1996/903, 4 November 1996; Periodic Report of the Commission on the situation of human rights,
A/52/490, 17 October 1997; Periodic Report of the Commission on the situation of human rights,
A/53/322, 11 September 1998.
46Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro).
47
Statement of the Contact Group Foreign Ministers, New York, 24 September 1997 (reprinted in K.rieger,
p. 121).
48
Security Council resolution l 160(1998), S/RES/1160, para. 5 [Dossier No. 9]. An earlier arms embargo
had been largely suspended following conclusion of the Dayton Accords. Security Council resolution 1021
(1995), S/RES/1021; Security Council resolution 1074 (1996), S/RES/1074.
49Security Council resolution 1199(1998), S/RES/1199 [Dossier No. 17].
50
Statement by the President of the Security Council, S/PRST/1998/25, 24 August 1998 [Dossier No. 14];
Contact Group Statement, Bonn, 8 July 1998(reprinted in Krieger, pp. 147-48).
- 14 -as well to an agreement with OSCE providing for significant withdrawal from Kosovo of
FRY/Serbian security forces and an OSCE observation mission in Kosovo to confirm
compliance with Security Council resolution 1199. The Security Council, acting under
Chapter VII, endorsed these arrangements, noting the "public commitment of the Federal
Republic of Yugoslavia to complete negotiations on a framework for a political
settlement by 2 November 1998 and calling for the full implementation of those
52
commitments."
In conjunction with this agreement, and through January 1999, Ambassador Hill
actively negotiated with FRY/Serbian and Kosovo representatives on a detailed ·
agreement on autonomy for Kosovo. While the negotiations did not result in final
agreement, the mediation efforts produced a text which reflected considerable back-and
forth between the parties; this text largely formed the basis for the text that would be
53
presented by the international mediators at Rambouillet a few months later. Among the
Hill text's most important elements was that the agreed arrangements were intended to be
in place only for an interim period. The question of Kosovo's ultimate status-on which
the Kosovo and FRY/Serbian positions were diametrically opposed-was to be left
unresolved, and revisited after a three-year interim period during which the situation in
54
Kosovo was to be stabilized and democratic institutions re-established.
The OSCE observer mission established under the arrangements worked out by
Ambassador Holbrooke began to function in November 1998. Its activities included not
only verification of the ceasefire and withdrawal of FRY/Serbian forces but also efforts
to head off armed conflict through negotiations and mediation. Nevertheless, fighting
continued in portions of Kosovo, as both FRY/Serbia and the KLA increased their forces
and military activity in the province. The OSCE mission was present in Kosovo to report
the discovery of the bodies of 45 ethnie Albanian civilians in the village of Racak on 15
January 1999. The Security Council "strongly condemn[ed] the massacre of Kosovo
55
Albanians in the village of Racak". Other groups, including the OSCE, the EU and the
Contact Group, reacted similarly. 56 The Islamic Group at the United Nations expressed
51
OSCE-FRY, Agreement on the OSCE Kosovo Verification Mission, 16 October 1998 (reprinted in
Krieger, p. 188). NATO-FRY, Agreement Providing for the Establishment of an Air Verification Mission
over Kosovo, Belgrade, 15 October 1998(reprinted in Krieger, pp. 291).
52
Security Council resolution 1203(1998), S/RES/1203, 24 October 1998,para. 2 (Dossier No. 20].
53
The four successive texts produced through these diplomatie efforts, and associated documents, can be
found in Krieger, pp. 155-87.
54
See, e.g.FinalHillProposai, 27 January 1999,Art. X(3) (reprinted in Krieger, p. 181).
55See, e.g.Security Council Presidential Statement, S/PRST/1999/2, 19January 1999 [Dossier No. 24].
56 OSCE Press Release, "OSCE Permanent Council Chairman shocked over killings in Kosovo", 18
January 1999, available at: http://www.osce.org/item/4807.html; EU, Statement of the Presidency of the
European Union on the Racak Massacre, PRES/99/)4, Brussels, 20 January 1999 (reprinted in Krieger, p.
- 15- deep shock and anger over the Racak massacre, which was reminiscent of
the widespread crimes of genocide and ethnie cleansing witnessed in
Bosnia and Herzegovina, and strongly condemns the massacre of innocent
civilians and the ongoing Serbian policy of ethnie cleansing in Kosova.
[and] [s]trongly condemn[ed] crimes against humanity being committed
57
by the Serbian security forces in Kosova.
58
Two weeks later, with the explicit support of the Security Council, the Contact
Group called the FRY and Serbian governments and representatives of the Kosovo
Albanians to meet at Rambouillet, France, for the purpose of negotiating and concluding
an interim agreement. The negotiation was to be based on a set of principles articulated
by the Contact Group, which provided, inter alia, for a "mechanism for a final settlement
after an interim period of three years"; self-government in Kosovo by democratically
accountable institutions including Kosovo legislative, executive, andjudicial bodies; and,
participation as necessary by the OSCE and other international entities. 59
The negotiations at Rambouillet were difficult, but on 23 February 1999, resulted
in a text containing the political elements of an "Interim Agreement for Peace and Self
Government in Kosovo" that provided for democratic self-government in Kosovo while
Kosovo remained part of Yugoslavia pending an international meeting that would address
the question of Kosovo' s future status. The interim agreement provided for an extensive
international civil presence in Kosovo with directive powers and final authority to
interpret the agreement, as well as for a NATO military force. The FRY was to retain a
defined security presence and limited but important federal powers in and over Kosovo.
Among the agreement's key provisions was that
[t]hree years after the entry into force of this Agreement, an international
meeting shall be convened to determine a mechanism for a final settlement
for Kosovo, on the basis of the will of the people, opinions of relevant
authorities, each party' s efforts regardin~ the implementation of this
6
Agreement, and the Helsinki Final Act, ....
195); Contact Group, Chairman's Conclusions, 22 January 1999 (reprinted in Krieger, p. 197).
57Letter dated 26 January 1999 from the Chargé d'affaires a.i. of the Permanent Mission of Qatar to the
United Nations addressed to the President of the Security Council, Annex (Statement of the Islamic Group
at the United Nations on the situation in Kosova), S/1999/76, 26 January 1999.
58Security Council Presidential Statement, S/PRST/1999/5, 29 January 1999 [Dossier No. 25].
59Contact Group Negotiators' Proposai, 30 January 1999 (reprinted in Krieger, pp. 256-57).
60Interim Agreement for Peace and Self-Government in Kosovo, Rambouillet, 23 February 1999, ch. 8, art.
- 16 - The parties and the Contact Group committed to reconvene in mid-March. On 15
March 1999, following consultations in Kosovo with both civilian and KLA leaders, the
chairman of the Kosovo delegation announced that "this delegation and I personally say
61
'yes' to this agreement." The FRY, however, returned with a radically revised
"Agreement for Self-Government in Kosmet" which eliminated key elements of the
agreed draft, including almost all international oversight as well as reference to the "will
of the people" of Kosovo, and which would have permitted changes to the agreement,
after three years, only with the unanimous agreement of the signatories. 62 The co-chairs
of the negotiations described this move as an effort to "unravel the Rambouillet Accords"
and adjoumed the negotiations, concluding that there was no purpose in extending the
63
talks any further.
Following the failure to reach a negotiated solution at Rambouillet, FRY/Serbian
forces immediately began a major offensive, ostensibly directed against the KLA but
including actions directed against the ethnie Albanian64opulation that forced thousands of
Kosovars from their homes in its first 24 hours. After a final diplomatie effort to obtain
FRY/Serbian agreement to sign the Rambouillet Accords failed, NATO commenced
military action on March 24. This was immediately followed by a massive intensification
of actions directed against the Kosovar population by FRY/Serbian forces. 65
The UNHCR reported in late May 1999 on the displacement of Kosovars both to
other countries and intemally:
1(3)(reprinted in Krieger, pp. 261-78).
61 Kosovo Delegation Letter of Agreement Addressed to the French and British Foreign Ministers, 15
March 1999(reprinted in Krieger, p. 280).
62FRY, Agreement for Self-Govemment in Kosmet, Paris, 18 March [sic]1999 (reprinted in Krieger, pp.
280-86). For a version of the document showing deleted and added text, see FRY Revised Draft
Agreement, 15March 1999 (reprinted in Crisis,pp. 480-90).
63 Declaration of the Co-Chairmen Hubert Vedrine and Robin Cook, Paris, 19 March 1999 (reprinted in
Krieger, p. 286).
64
UN Inter-Agency Update on Kosovo Humanitarian Situation Report 84, 22 March 1999, paras. 2-3,
available at: http://www.reliefweb.int/rw/rwb.nsf/db900sid/OCHA-64C89 A?OpenDocument&quezy=
21%20March%201999%20Kosovo; Statement by Mrs. Sadako Ogata, United Nations High Commissioner
for Refugees, at the Inter-Govemmental Consultations on Asylum, Refugee and Migration Policies in
Europe, North America and Australia (IGC), Bern, 23 March 1999, available at:
http://www.unhcr.org/admin/ADMIN/3ae68fbt2.html. See also U.S. Department of State, Erasing History:
Ethnie Cleansing in Kosovo, May 1999, available at: http://www.state.gov/www/regions/eur!I:pt 9905
ethnie ksvo l.html; U.S. Department of State, Ethnie Cleansing in Kosovo: An Accounting, December
1999, available at:ttp://www.state.gov/www/ global/human rights /kosovoii/ homepage.html.
65 See, e.g., Milutinovié et al., Trial Judgment, 26 February 2009, Vol. III, paras. 41-42, available at:
http://www.icty.org/x/cases/milutinovic/tjug/en/jud090226-e3of4.pdf.
- 17 - 13. Forced displacement and expulsions of ethnie Albanians from Kosovo
have increased dramatically in scale, swiftness and brutality.
14. A large number of corroborating reports from the field indicate that
Serbian military and police forces and paramilitary units have conducted a
well planned and implemented programme of forcible expulsion of ethnie
Albanians from Kosovo. More than 750,000 Kosovars are refugees or
displaced persons in neighbouring countries and territories, while
according to various sources there are hundreds of thousands of intemally
displaced persons (IDPs) inside Kosovo. This displacement appears to
have affected virtually ail areas of Kosovo as well as villages in southem
Serbia, including places never targeted by NATO air strikes or in which
the so-called Kosovo Liberation Army (KLA) has never been present. 66
The OSCE estimated that over ninety percent of the Kosovo Albanian population had
been displaced by early June, when the FRY/Serbian forces ended the military operations
and withdrew from Kosovo and that "only a small fraction of the Kosovo Albanian
population was not displaced by the conflict in some way." 67 A final UNHCR report in
September referred to "the mass exodus of more than 1 million ethnie Albanians from
Kosovo," virtually ail as a result of direct violence or intimidation by FRY/Serbian
forces.68
In May 1999, in response to these atrocities, the International Criminal Tribunal
for the former Yugoslavia (ICTY) indicted several high-ranking FRY and Serbian
civilian officiais and military officers, including former President Milosevié, for crimes
against humanity and violation of the laws and customs of war in Kosovo. 69 In February
2009, in the Milutinovié et al. case, an ICTY Trial Chamber concluded, in relation to
these events in Kosovo during 1999:
66 Report by the High Commissioner for Human Rights on the Situation of Human Rights in Kosovo,
Federal Republic of Yugoslavia, E/CN.4/2000/7, 31 May 1999,paras. 13-15.
67 OSCE: Kosovo/Kosova -- As Seen, As Told (1999), Ch. 14 (Forced Expulsion), p. 1, available at:
http://www.osce.org/publications/odihr/1999/11/l 7755 506 en.pdf.
68 Report by the High Commissioner for Human Rights on the Situation of Human Rights in Kosovo,
Federal Republic ofYugoslavia, E/CN.4/2000/10, 27 September 1999.
69
International Criminal Tribunal for the former Yugoslavia (ICTProsecutor v. Slobodan Milosevié,
Milan Milutinovié, Nika/a Sainovié, Dragoljub Ojdanié and Vlajko Stojiljkovié C,ase No. IT-99-37,
Indictment for Crimes Against Humanity and Violations of the Laws or Customs of War, 24 May 1999,
available at http://www.un.org/icty/indictment/english/mil-ii990524e.hMilosevié was tried by the
ICTY both for crimes committed in Kosovo and elsewhere, but died before the conclusion ofhis trial.
- 18 - [T]here was a broad campaign of violence directed against the Kosovo
Albanian civilian population ..., conducted by forces under the control of
the FRY and Serbian authorities ....
lt was the deliberate actions of these forces during this campaign that
caused the departure of at least 700,000 Kosovo Albanians from Kosovo
in the short ~eriod of time between the end of March and beginning of
0
June 1999... •
Concluding that there was "a common purpose to use violence and terror to force a
significant number of Kosovo Albanians from their homes and across the borders," the
ICTY convicted five FRY/Serbian defendants of participation in a "joint criminal
enterprise to modify the ethnie balance in Kosovo in order to ensure continued control by
the FRY and Serbian authorities over the province." 71
Section IV. UN Security Council Resolution 1244
Efforts to reach an agreement on Kosovo continued throughout the spring of
1999, largely on the basis of principles adopted by the G-8 and advanced by an EU-U.S.
Russia negotiating team. 72 These principles built on earlier diplomatie work, in particular
the Hill text and the texts developed at Rambouillet. Belgrade agreed to a modified
version of these principles (the "Ahtisaari-Chemomyrdin Principles" 73) in early June and
74
days later, in conjunction with conclusion of a Military Technical Agreement, the
Security Council adopted Resolution 1244.
Adoption of Resolution 1244 prevented FRY/Serbia from exerc1smg
govemmental authority in Kosovo, substituting for it, under the authority of the United
70 Milutinovié et al.,Trial Judgement, 26 February 2009, Vol. Il, paras. 1156, 1178, available at:
http://www.icty.org/x/cases/milutinovic/tjug/en/jud090226-e2of4.pdf.
71Summary of Judgement read from the bench by Judge Bonomy, in Milutinovié et al26 February 2009,
available at: http://www.icty.org/x/cases/milutinovic/tjug/en/090226summary.pdf.
72 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, S/1999/516, 6 May 1999 [Dossier No. 29]; Security Council resolution
1244(1999), S/RES/1244, Annex 1 [Dossier No. 34].
73 Security Council resolution 1244 (1999), S/RES/1244, Annex 2 [Dossier No. 34]. The principles are
named for the international negotiators who secured their agreement in Belgrade, former Finnish President
Martti Ahtisaari and former Russian Prime Minister Viktor Chernomyrdin.
74
Military Technical Agreement between the International Security Force ("KFOR") and the Governments
of the Federal Republic of Yugoslavia and the Republic of Serbia, concluded on 9 June 1999 [Dossier
No. 32].
- 19 -Nations, a political and legal framework to guide future developments m Kosovo.
Principal objectives of the resolution included:
• to end the hostilities in Kosovo and provide for its security;
• to establish an interim international administration in Kosovo in substitution
forthat of the FRY/Serbia;
• to establish provisional institutions of self-government and progressively
transfer governing responsibilities to them both before and after determination
of Kosovo's ultimate political status; and
• to conduct a political process that would culminate in definitive resolution of
Kosovo's political status.
Running through all of these objectives was the importance of ensuring that Kosovo
could develop free of coercion by the FRY/Serbia. To assist in accomplishing these
aims, Resolution 1244 provided for both an international security presence and an
international civil presence.
The international security presence was to be deployed in close coordination with
the completewithdrawal of FRY military, police, and paramilitary forces. The resolution
enumerated specific tasks for the international security presence, including demilitarizing
the KLA, maintaining a ceasefire, and ensuring public safety and order until the
international civil presence could take responsibility for the task. The security presence
was provided by the NATO-led "Kosovo Force" ("KFOR").
Two days after adoption of Resolution 1244, the Secretary-General announced a
concept of operations for an international civil presence, to be headed by a Special
Representative of the Secretary-General ("SRSG") and known as the United Nations
75
Interim Administration Mission in Kosovo ("UNMIK").
The framework set out by Resolution 1244 established successive responsibilities
for the international civil presence, to be carried out in phases:
• ·Following restoration of order in the immediate aftermath of the FRY/Serbian
withdrawal, UNMIK's first major task was to perform basic civilian
administrative functions and to establish provisional institutions for
democratic and autonomous self-government and oversee their development. 76
75See Report of the Secretary-General Pursuant to Paragraph 10 of Security Council Resolution 1244
(1999), S/1999/672, 12June 1999 [Dossier No. 35].
76Security Council resolution 1244 (1999), S/RES/1244, paras. 11(a)-(c) [Dossier No. 35].
-20- • As those institutions were established, UNMIK was charged with
progressive!r; transferring responsibility for civil administration to those
institutions. 7
• At a later time, UNMIK was to facilitate a political process designed to
determine 78sovo's future status, taking into account the Rambouillet
Accords.
• Finally, UNMIK was to oversee the transfer of authority from the provisional
institutionsto those created once Kosovo's status had been determined. 79
The resolution also established continuing responsibilities to be undertaken by UNMIK
throughout its existence, including supporting the reconstruction of key infrastructure and
other economic reconstruction; supporting, in coordination with international
humanitarian organizations, humanitarian and disaster relief aid; maintaining civil law
and order, both through the deployment of international police personnel to serve in
Kosovo and by establishing local police forces; protecting and promoting human rights;
and assuring the safe and unimpeded retum of all refugees and displaced persons to their
homes in Kosovo. 80
The political provisions of Resolution 1244 were particularly complex. The
preamble "reaffirm[ed] the commitment of all Member States to the sovereignty and
territorial integrity of the Federal Republic of Yugoslavia and the other States of the
region," but added a qualifying reference to the Helsinki Final Act and to annex 2 of the
resolution. The operative paragraphs, moreover, provided for the effectively complete
exclusion of the FRY/Serbia from any administrative role in Kosovo, while the civil
presence was to establish new institutions of self-government without any reference to
81
existing or earlier structures. Finally, the resolution
Decide[d] that a political solution to the Kosovo crisis shall be based on
the general principles in annex 1and as further elaborated in the principles
and other required elements in annex 2; 82
Both annexes referred in tum to the need to "tak[e] full account of the Rambouillet
accords." The civil presence was separately charged with "[f]acilitating a political
77Security Council resolution 1244 (1999), S/RES/1244, para. l l(d) [Dossier No. 35].
78Ibid., para. ll(e).
79
Ibid., para. 1l(t).
80
Ibid., paras. 11(g)-(k).
81Ibid., paras. 3, 4, 5, 6, 9, 10 and 11, and Annex 2, para. 6.
82Ibid., para. 1.
- 21 -process designed to determine Kosovo's future status, ta.king into account the
Rambouillet accords." 83
Section V. The Period of UN Administration
Implementation of Resolution 1244was undertaken by a range of UN organs and
responsible officiais as well as NATO, the EU and the OSCE. Between 1999 and 2008,
the international presences protected Kosovo's autonomy, while creating space and time
for provisional institutions of self-government to develop in Kosovo. The FRY,
however, strongly objected from the outset to central aspects of UNMIK's and KFOR's
implementation of Resolution 1244, inter alia asserting "illegal conduct and direct
violations of the key provisions of the resolution and its related documents by KFOR and
UNMIK" ,nd the failure of the Security Council to undertake the necessary measures to
84
ensure implementation "despite its clear obligations."
There was significant disorder in the immediate wake of the FRY/Serbian
withdrawal, including widespread violence by Kosovo Albanians directed, in particular,
against Kosovo Serbs and Serb cultural sites, and many thousands of Serbs departed the
province. After working with NATO to restore order, UNMIK turned to organizing local
government. In May 2000, it established the Joint Interim Administrative Structure
("JIAS"), including advisory bodies with membership drawn from the Kosovo Albanian
as well as Kosovo Serb and other communities; administrative departments (in effect,
ministries) jointly headed by UNMIK and Kosovo personnel; and municipal boards
headed by UNMIK personnel. 85 With the agreement of the ethnie Albanian political
parties, the JIAS expressly provided for the termination of the parallel governmental
structures of the "Republic of Kosova" that had been put in place following adoption of
the Kosovo Constitution in September 1990.
Although from the time of its arrivai the NATO-led KFOR exercised authority
throughout Kosovo, UNMIK and the institutions of self-government established by it
were less consistently successful in doing so. From the beginning, and continuing after
the fall from power of President Milosevié in September 2000, Belgrade actively sought
to discourage participation by Kosovo Serbs in structures intended to ensure them a full
voice in developing and working within Kosovo's governmental institutions, and "parallel
83Security Council resolution 1244(1999), S/RES/1244, para. l l(d) [Dossier No. 35].
84
Memorandum of the Government of the FR Yugoslavia on the Implementation of UN Security Council
Resolution 1244 (1 March 2000), available at: http://www.arhiva.serbia.sr.gov.yu/news/2000-
03/06/17631.html.
85
UNMIK Regulation 2000/1, 14January 2000 [DossierNo. 148].
-22 -structures" supported by Belgrade continued to exercise a measure of defacto authority
86
in the Serb-majority areas, in particular those in the north around Mitrovica.
After Kosovo-wide elections, in May 2001 the SRSG issued a Constitut87nal
Framework for the Provisional Self-Government of Kosovo. The Provisional
Institutions of Self-Government of Kosovo ("PISG") included an elected Assembly of
Kosovo with seats reserved for non-majority communities including Kosovo Serbs and
six other smaller communities, a president elected by the Assembly, a prime minister
nominated by the president and approved by the Assembly, a government and ministries,
and a judiciary nominated by the Assembly and appointed by the SRSG. Significantly,
the Constitutional Framework made no reference to the institutions and structures of the
pre-1999 FRY/Serbian administration. 88
Under the Framework, UNMIK also established municipal governments and a
Kosovo Police Force supervised by UNMIK. Four rounds of elections for either the
Assembly or local government were held. Kosovo was represented intemationally by
89
UNMIK, which entered into agreements on Kosovo's behalf. UNMIK also issued its
own identification and travel documents to Kosovo residents, destruction of whose
90
identification documents had been a particular focus of the ethnie cleansing in 1999.
86 Letter dated 7 October 2005 from the Secretary-General addressed to the President of the Security
Council attaching the report of his Special Envoy, Kai Eide, on "A comprehensive review of the situation
in Kosovo", S/2005/635, 7 October 2005, Annex, paras. 21, 23 [Dossier No. 193]. See also, e.g., Contact
Group Ministerial Statement, Vienna, 24 July 2006, available at: http://www.diplomatie.gouv.fr/
en/IMG/pdf/statement Vienne 24 juillet version finale.pdf; Contact Group Ministerial Statement, New
York City, 20 September 2006, available at: http://www.consilium.europa.eu/ueDocs/cms Data
/docs/pressData/en/declarations/91037 .pdf.
87
UNMIK Regulation 2001/9, 15 May 2001 [Dossier No. 156], subsequently amended by UNMIK
Regulations 2002/9, 3 May 2002 [Dossier No. 157], and 2007/29, 4 October 2007, available at:
http://www.unmikonline.org/regulations/unmikgazette/02english/E2007regs… 29.pdf.
88
UNMIK determined that the law applicable in Kosovo would not include Yugoslav legislation adopted
after 22 March 1989. UNMIK Regulation 1999/24, 12 December 1999 [Dossier No. 146]; UNMIK.
Regulation 2000/59, 27 October 2000. [Dossier No. 147].
89See Note Verbale from the Assistant Secretary-General for Legal Affairs of the United Nations to the
Permanent Mission of Germany conceming the treaty-making power of UNMIK dated 12 March 2004.
[Dossier No. 168]. The only new international obligation entered into by the authorities in Belgrade
accepted as binding on Kosovo was the May 2001 border demarcation agreement with Macedonia, which,
like the other elements of the Ahtisaari plan; Kosovo specifically accepted in its declaration of
independence and constitution. Declaration of lndependence, para. 8 [Dossier No. 192]; Constitution of the
Republic of Kosovo (2008), Art. 143, available at: http://www.assembly-kosova.org/common /docs/
Constitution! %20of%20the%20Republic%20of%20Kosovo.pdf.
90
Milutinovié et al., Vol. III, paras. 31-40, available at: http://www.icty.org/x/cases/milutinovic/tjug/
en/jud090226-e2of4.pdf; U.S. Department of State, Erasing History: Ethnie Cleansing in Kosovo, May
1999, available at: http://www.state.gov/www/regions/eur/r:pt 9905 ethnie ksvo l.html; ibid, Ethnie
Cleansing in Kosovo: An Accounting, December 1999, available at: http://www.state.gov/www/global/
-23 - Over the course of the following seven years, the SRSG progressively devolved
authority to the PISG. The pace of transfer increased in 2005, following the decision
described below to move toward initiation of the political process to determine Kosovo's
future status. By 2007 the PISG was exercising very extensive governmental power
within Kosovo, with the excep91on of certain authorities reserved by the SRSG under the
Constitutional Framework. These reserved powers included authority over the exercise
of Kosovo's foreign affairs powers and over the Kosovo Protection Corps, as well as
exercising closer oversight over and involvement in the working of the police andjudicial
systems. The SRSG also retained authority to annul any action of the PISG that in his
opinion was inconsistent with Resolution 1244; successive SRSGs employed this
authority on several occasions through 2005, including to annul actions by the Kosovo
Assembly, ministries or municipalities, 92 as well as threatening nullification in the event
93
certain actions, notably to declare independence, were taken.
Section VI. The Political Process To Determine Kosovo's Future Status
The UN administration of Kosovo was intended as an interim measure. UNMIK
temporarily assumed governmental authority in Kosovo, but Resolution 1244
contemplated that, following an "interim" period during which Kosovo's capacity for
self-government would be restored, a "political process" would be undertaken to seek a
resolution ofKosovo's future status.
human rights/ kosovoii/homepage.html. See also Report by the High Commissioner for Human Rights on
the situation of human rights in Kosovo, Federal Republic of Yugoslavia, E/CN.4/2000/7, 31 May 1999,
para. 19.
91 See, e.g., Report of the Secretary-General on the United Nations lnterim Administration Mission in
Kosovo, 28 September 2007, S/2007/582, para. 28 and Annex [Dossier No. 82]; Report of the Secretary
General on the United Nations Interim Administration Mission in Kosovo, 3 January 2008, S/2007/768,
para. 29 and Annex [Dossier No. 84].
92See, e.g., "Determination" by the Special Representative of the Secretary-General on the "resolution on
the protection of the territorial integrity of Kosovo" of 23 May 2002 [Dossier No. 179]; Report of the
Secretary-General on the United Nations Interim Administration Mission in Kosovo S/2008/458, 15 July
2008, para. 6 [DossierNo. 89].
93
UNMIK Press Briefing, 16 November 2005, pp. 4-5, available at: http://www.unmikonline.org/
dpi/transcripts.nsf/p0401?OpenPage; UNMIK Press Briefing, 21 November 2005, p. 3, available at:
http://www.unmikonline.org/DPVTranscripts.nsf/0/8E2671F635881CFFC12570Cl
002AF51A/$FILE/tr211
105.pdf. In 2002, in response to drafts of the 2003 Constitutional Charter of the State Union of Serbia and
Montenegro which expressly described Kosovo ("Kosovo and Metohija") as part of Serbia, the SRSG
stated that that draft "appears to prejudge the status of Kosovo." Letter dated 6 November 2002 from the
Special Representative of the Secretary-General to the President of the Assembly of Kosovo [Dossier No.
185]; "Pronouncement" by the Special Representative of the Secretary-General of 7 November 2002
[DossierNo. 187]. See a/son. 108below.
-24 - In April 2002, the SRSG proposed the development of a set of "benchmarks" to
be achieved by Kosovo before initiation of the political process to resolve its status-a
94
process which the Security Council adopted as the policy of "standards before status".
The original concise benchmarks evolved into a highly complex implementation plan that
95
it was anticipated would be reviewed periodically starting in mid-2005.
In March 2004, however, widespread anti-Serb riots in Kosovo that resulted in a
number of deaths, considerable destruction of property, and the flight of many Serbs
underscored the fragility of the existing political situation. The Secretary-General named
a Special Envoy, Norwegian Ambassador Kai Eide, to assess the situation and provide a
report that would serve as the basis for the Secretary-General's "political judgement on
96
whether the situation is conducive to the initiation of the future status process." In an
initial report, Eide reported a shared view that the international community in Kosovo,
led by UNMIK, was "in disarray, without direction and internai cohesion", that the
"'standards before status' policy lacks credibility" and that the main cause of frustration
and stagnation in Kosovo was "not of an inter-ethnie nature, but stems from what is
rightly seen as a serious lack of economic opportunities and an absence of a clear
political perspective." 97 In a later report, Eide noted that the international administration
was "increasingly being seen as engaged in a holding operation unwilling to address [the]
crucial issue [of future status]" and that frustration and stagnation were growing in
Kosovo. 98 Eide further noted the importance of resolving Kosovo's future status to
improving its "precarious" economic situation, the "diminishing" leverage of the United
Nations in Kosovo and expectations in both Kosovo and Serbia for a beginning of the
status resolution process. He concluded that the existing situation could not be
maintained indefinitely. 99 Eide recommended to the Secretary-General initiation of the
94 Statement by the President of the Security Council, S/PRST/2002/11, 24 April 2002 [Dossier No. 55];
Statement by the President of the Security Council, S/PRST/2003/1, 6 February 2003 [Dossier No. 61).
95 Kosovo Standards Implementation Plan, 31 March 2004, available at: ht1;p://www.unmikonline.org/
pub/misc/ksip eng.pdf; Statement by the President of the Security Council, S/PRST/2003/26, 12
December 2003 [Dossier No. 65).
96 Letter dated 7 October 2005 from the Secretary-General addressed to the President of the Security
Council, S/2005/635, 7 October 2005, Appendix (Terms ofreference of the Special Envoy of the Secretary
General for the comprehensive review of the situation in Kosovo), p. 23 [Dossier No. 193).
97 Letter dated 17 November 2004 from the Secretary-General addressed to the President of the Security
Council, S/2004/932, 30 November 2004, Annex I, Enclosure (Report on the Situation of Kosovo), pp. 2-4
[DossierNo. 71).
98
Letter dated 7 October 2005 from the Secretary-General addressed to the President of the Security
Council attaching the report of his Special Envoy, Kai Eide, on "A comprehensive review of the situation
in Kosovo," S/2005/635, 7 October 2005, Annex, para. 5 [Dossier No. 193).
99
Ibid., paras. 26, 32, 39, 26, 65-66, 79, 86.
-25 -future status process, while cautioning that "[oinc10the process has started, it cannot be
blocked and must be brought to a conclusion."
The Security Council endorsed this recommendation, welcomed the Secretary
General's decisionto name former Finnish President Martti Ahtisaari as Special Envoy to
lead the political process 101 encouraged the active involvement of the Contact Group in
support of the process. In response to this invitation, the Contact Group repeated
Eide's conclusion that the process could not be blocked and must continue to its
conclusion and during this process "call[ed] on the parties to engage in good faith and
constructively [and] to refrain from unilateral steps." 102 It adopted a set of "guiding
principles" that underscored the importance of strengthening regional security, ensuring
no return to the "pre-March 1999 situation", and avoiding either partition of Kosovo or
103
its union with any country.
In January 2006 the Contact Group further admonished Belgrade that the
"disastrous policies of the past lie at the heart of the current problems" and underscored
that "the settlement needs, inter alia, to be acceptable to the people of Kosovo," 104 a
formulation that had also been reflected in the reference to the "will of the people"
included in the Rambouillet Accords.
Over the course of the following fourteen months, Special Envoy Ahtisaari
arranged and participated in discussions of both political and technical issues between the
Belgrade and Pristina teams, engaged in extensive negotiations with the parties and
consulted widelywith UNMIK and other experts. The Contact Group was active as well,
repeatedly reminding the parties that "no one side" could prevent the process from
resolving Kosovo's status, and observing that
100Letter dated 7 October 2005 from the Secretary-General addressed to the President of the Security
Council attaching the report of his Special Envoy, Kai Eide, on "A comprehensive review of the situation
in Kosovo," S/2005/635, 7 October 2005, Annex, paras. 62, 70. [DossierNo. 193].
101Statement by the President of the Security Council, S/PRST/2005/51, 24 October 2005 [Dossier No.
195]; Letter dated 10 November 2005 from the President of the Security Council addressed to the
Secretary-General, S/2005/709, 10November 2005 [Dossier No. 197].
102Letter dated 10November 2005 from the President of the Security Council addressed to the Secretary
General, S/2005/709, 10November 2005, Annex, p. 2 [Dossier No. 197].
103Ibid., p. 3, para. 6.
104Statement by the Contact Group on the Future of Kosovo, London, 31 January 2006, available at:
http://pristina.usembassy.gov/press20060131a.html. No reference was made to the views of the people of
Serbia.
-26- Pristina has shown flexibility in the decentralisation talks. However,
Pristina will need to be even more forthcoming on many issues before the
status process can be brought to a successful conclusion. ...
Belgrade needs to demonstrate much greater flexibility in the talks than it
has done so far. Belgrade needs to begin considering reasonable and
workable compromises for many o105he issues under discussion,
particularly decentralisation.
Recognizing continuing differences between the parties over the question of
independence, in September the Contact Group invited Ahtisaari to prepare a
"comprehensive E06posal for a status settlement" as a basis for moving the negotiating
process forward.
On the fundamental question of status, however, the two sides began and ended
with diametricallyopposed positions-positions that had remained essentially unchanged
since Rambouillet. Kosovo insisted on independence, while Serbia was equally adamant
that Kosovo must remain part of Serbia albeit with some form of autonomy. As later
summarized by Ahtisaari, "Kosovo's development since [1999] ...has been accompanied
by an expectation among the vast majority of its population that Kosovo would become
independentbefore long", whereas "Serbian expectations were directed at an extension of
the existin1 7muddled legal status, with confirmed Serbian sovereignty over Kosovo as the
linchpin."
In October 2006, at the height of the negotiations, the Serbian government
abruptly proposed and conducted a referendum on a new draft constitution which
included a preamble that described Serbia expressly as "a state of the Serbian people." 108
In effect, the constitution made clear its tactical purpose ofbolstering Serbia's negotiating
position by precluding its negotiators from agreeing to any future status under which
Kosovo would not remain part of Serbia. Strikingly, Serbia made no effort to include
Kosovo Albanians in development of this constitution or to register Kosovo Albanians as
105
Contact Group Ministerial Statement, Vienna, 24 July 2006, available at: http://www.diplomatie.gouv.fr
/en/lMG/pdf/statement Vienne 24 juillet version fmale.pdf.
106 Contact Group Ministerial Statement, New York, 20 September 2006, available at: http://www
consilium. europa.eu/ueDocs/cms Datà/docs/pressData/en/declarations/91037.pdf.
107Martti Ahtisaari, "Kosovo ls Not the Problem - ls Serbia?", in The Ahtisaari Legacy: Resolve and
Negotiate (2008), pp. 19-20.
108
Constitution of Serbia, 30 September 2006, available at: http://www.mfa.gov.yuNugFrameset.The.
1990 Serbian constitution, by contrast, made no reference at all to KosovoThe 2003 Constitutional
Charter of the StateUnion of Serbia and Montenegro described Kosovo as part of Serbia. See n. 93 above.
-27 -voters. 109 The text of the constitution neither specified the content or extent of the
autonomy to be afforded Kosovo, nor provided any constitutionally embedded guarantee
of that autonomy. The Council of Europe's Venice Commission accordingly concluded
that the constitution "does not at ail guarantee substantial autonomy to Kosovo, for it
entirely depends on the willingness of the National Assembly of the Republic of Serbia
whether self-government will be realized or not." 110
In early February 2007, Special Envoy Ahtisaari provided a draft Comprehensive
Proposai for the Kosovo Status Settlement to Serbia and Kosovo. The document did not
directly address the status question, instead focusing on substantive protections to ensure
the rights of ail ethnie communities in Kosovo, including governmental structures
providing extensive protections for the interests of Kosovo Serbs and other non-majority
communities. Serbia, however, rejected the text on grounds that it "does not take into
consideration the sovereignty and territorial integrity of the Republic of Serbia in relation
to Kosovo-Metohija" and was therefore inconsistent with the requirement in the newly
adopted constitution that Serbia's negotiators defend its sovereignty over Kosovo. 111
The proposai itself contained elements for inclusion in a Kosovo constitution,
detailed provisions on protections for the various Kosovo communities, and provision for
wide-ranging decentralization providing extensive local control over many governmental
functions. It also provided for international civil and military presences to replace
UNMIK and to supervise Kosovo - at Kosovo's invitation- for an interim period as it put
the provisions of the proposai into effect. The international civil presence would be
guided by an International Steering Group made up of the countries included in the
Contact Group, as wellas the European Union, the European Commission and NATO, all
of which had increasingly participated in Contact Group deliberations. The international
civil presence would have authority (similar to that of the High Representative in Bosnia
109
Comments of Prime Minister Vojislav Kostunica, press release, govemment of Serbia, "New
constitution combines both state and national interests," available at: http://www.srbija.gov.rs/
vesti/vest.php?id=2723l. Barely 90,000 electors voted inosovo------lehan one-tenth the number who
reportedly participated in the 1991 vote on the Republic of Kosovo constitution. See Central Board of
Kosova for the Conduct of the Referendum, Result, 7 October 1991 (reprinted insis, p. 72). See a/so
Centre for Free Election and Democracy, Election Results Estimation: Referendum for Confirmation of
Proposition of Constitution of the Republic of Serbia, available at: http://www.cesid.org/eng
/rezultati/sr okt 2006/index.isp. As the overall tumout and proportion of ''yes" votes barely exceeded the
constitutional minimums, excluding Kosovo Albanians proved critical to adoption of the constitution.
110
European Commission for Democracy through Law (Venice Commission), Opinion 405/2006 on the
Constitution of Serbia, 19 March 2007, para. 8, available at: http://www.venice.coe.int/docs/2007/CDL
AD(2007)004-e.asp.
111
Serbian Parliament, Resolution on UN Special Envoy Martti Ahtisaari's "comprehensive proposai for
the Kosovo status settlement," 2 February 2007, available at: http://www.mfa.gov.yu/Foreinframel.htm.
-28 -and Herzegovina established by the Dayton Accords) to interpret the terms of the
ComprehensiveProposal andtake binding corrective action to preserve its integrity. 112
On 26 March 2007, Ahtisaari forwarded to the Secretary-General his
Comprehensive Proposai for the Kosovo Status Settlement ("Comprehensive Settlement
Proposai" or "CSP," also commonly referred to as the "Ahtisaari Plan"), under cover of a
recommendationon status. In an accompanying"Report", Ahtisaari concluded:
Upon careful consideration of Kosovo's recent history, the realities of
Kosovo today and taking into account the negotiations with the parties, I
have corne to the conclusion that the only viable option for Kosovo is
independence, to be supervised for an initial period by the international
113
community.
Among the reasons Ahtisaari cited for reaching this conclusion was that the other
two basic options for Kosovo's future status - Serbian rule and indefinite UN
administration- were either infeasible or unsustainable:
7. For the past eight years, Kosovo and Serbia have been governed in
complete separation. The establishment of the United Nations Mission in
Kosovo (UNMIK) pursuant to resolution 1244(1999), and its assumption
of all legislative, executive and judicial authority throughout Kosovo, has
created a situation in which Serbia has not exercised any governing
authority over Kosovo. This is a reality one cannot deny; it is irreversible.
A return of Serbian rule over Kosovo would not be acceptable to the
overwhelming majority of the people of Kosovo. Belgrade could not
regain its authority without provoking violent opposition. Autonomy of
Kosovo within the borders of Serbia - however notional such autonomy
may be - is simplynot tenable.
8. While UNMIK has made considerable achievements m Kosovo,
international administrationof Kosovo cannot continue.
9. Further, while UNMIK has facilitated local institutions of self
government, it has not been able to develop a viable economy. Kosovo's
uncertain political status has left it unable to access international financial
112
The text of the Comprehensive Proposai can be found inLetter dated 26 March 2007 from the
Secretary-General addressed to the President of the Security Council, Addendum, Comprehensive Proposai
for the Kosovo Status Settlement, S/2007/168/Add. 1,26 March 2007 [Dossier No. 204].
113
Report of the Special Envoy of the Secretary-General on Kosovo's Future Status, S/2007/168, 26 March
2007, para. 5 [Dossier No. 203].
-29- institutions, fully integrate into the regional economy or attract the foreign
capital it needs to invest in basic infrastructure and redress widespread
poverty and unemployment. Unlike many of its western Balkans
neighbours, Kosovo is also unable to participate effectively in any
meaningful process towards the European Union - an otherwise powerful
motor for reform and economic development in the region and the most
effective way to continue the vital standards implementation process.
Kosovo's weak economy is, in short, a source of social and political
instability, and its recovery cannot be achieved under the status quo of
international administration.
The Secretary-General forwarded Ahtisaari's report and recommendation to the
Security Council, stating that "I fully support both the recommendation of my Special
Envoy in his report on Kosovo's future status and the Comprehensive Proposai for the
Kosovo Status Settlement".11 4 Following the Special Envoy's presentation of his
proposai to the Security Council on April 3, the Kosovo Assembly and government
formally endorsed the proposai. Serbia demanded that negotiations be restarted under a
115
new mediator.
Subsequently, there were discussions in New York about developing a Security
Council resolutionon the situation in Kosovo. Proponents considered a new resolution as
the best way to provide clear mandates, under chapter VII, for the ICR and EU missions
envisioned in the Ahtisaari Proposai, and to phase out the mandate of the international
civil presence established in 1999, which paragraph 19 of Resolution 1244had provided
would continue until the Security Council decided otherwise. From a political
perspective, a6resolution was seen as a wayto help consolidate and build political support
for Kosovo.11
114Letter dated 26 March 2007 from the Secretary-General addressed to the President of the Security
Council attaching the Report of the Special Envoy of the Secretary-General on Kosovo's futureus;
S/2007/168,26 March 2007 [DossierNo. 203].
115
Address by Prime Minister Vojislav Kostunica to the UN Security Council, 3 April 2007, available at:
http://www.mfa.gov.yu/Foreinframel .htm.
116
Under the Ahtisaari Plan as drafted, there would have been a transition period after which UNMlK's
mandate would have expired. The absence at that time of a Security Council resolution to end UNMIK's
mandate complicated the arrangements for the transition to the international supervision regime
contemplated under the Ahtisaari report for an independent Kosovo, though as a practical matter there has
been coordination on the ground and on the whole the international supervision of Kosovo has proceeded
satisfactorily. ·
- 30 - When discussions in New York were unable to produce a political consensus, 117
the Contact Group then proposed the formation of a "Troïka" of senior negotiators to
explore, over a period of 120 days beginning in early August, whether any agreement
would be possible. Emphasizing again that "[t]he international community must find a
solution" and that "[t]he status quo is not sustainable", the Secretary-General welcomed
118
this proposai and requested a report in early December 2007. After a mid-September
meeting with the Troïka negotiators and the Secretary-General, the Contact Group
"endorsed fully the United Nations Secretary-General's assessment that the status quo is
not sustainable" and stated that "an early resolution of Kosovo's status is crucial to the
stability and security of the Western Balkans and Europe as a whole." 119 The Contact
Group "reiterated that striving for a negotiated settlement should not obscure the fact that
neither party can unilaterally block the status process from advancing." 120
121
Vowing to "leave no stone untumed", the Troïka conducted intensive
discussions with Kosovo and Serbia. These took the form of separate talks with each side
and no fewer than seven joint sessions, including a three-day final meeting that explored
a wide range of approaches to structuring their relationship in an effort to identify any
approach with the potential for reaching an agreement between the parties. The Troika's
search went so far as to broach the possibility of partition, an option that had been
expressly excluded by the Contact Group's Guiding Principles which formed part of the
Troika's mandate; both parties, as well as the Contact Group itself, rejected this
possibility. While these negotiations allowed the parties to engage in "the most sustained
122
and intense high-level direct dialogue since hostilities ended in Kosovo in 1999," the
Troika's efforts were unsuccessful. On December 10, the Secretary-General forwarded
to the Security Council the Troïka's report that the parties had been unable to reach an
agreement on Kosovo's status due to their continuing fundamental disagreement on the
123
basic question of sovereignty.
117
Letter dated 17 August 2007 from the Permanent Representative of China to the United Nations
addressed to the President of the Security Council, S/2007/473, Annex, p. 7.
118
Letter dated 10 December 2007 from the Secretary-General to the President of the Security Council,
S/2007/723, 10 December 2007, Annex I (Statement by the Secretary-General on the new period of
engagement on Kosovo 1August 2007), paras. 7-9 [Dossier No. 209).
119Ibid., Annex III (Statement on Kosovo by Contact Group Ministers, New York, 27 September 2007).
120
Ibid.
121
Ibid., enclosure (Report of the European Union/United States/Russian Federation Troïka on Kosovo, 4
December 2007), p. 2, para. 5.
122
Ibid.
123
Letter dated 10 December 2007 from the Secretary-General to the President of the Security Council,
S/2007/723, 10December 2007 [Dossier No. 209).
- 31 - Special Envoy Ahtisaari, with the full support of the Secretary-General, had
previously declared the political process provided for in Resolution 1244 to have
concluded without success. With the failure of the Troïka negotiations, it was clear that
all hope for achieving an agreement between Serbia and Kosovo on Kosovo's future
status had corne to an end. As the Troïka noted:
Throughout the negotiations both parties were fully engaged. After 120
days of intensive negotiations, however, the parties were unable to reach
an agreement on Kosovo's status. Neither side was willing to yield on the
basic question of sovereignty. 124
The political process that had been "designed to determine Kosovo's future status" 125was
pursued with creativity and persistence, and was strongly supported by the international
community. In the end, however, the differences between the parties were simply too
great to achieve a result that was acceptable to both Belgrade and Pristina.
Section VII. The Declaration of Independence
With the failure of the Troïka talks and the political process under Resolution
1244 to achieve an agreement between the two parties, it essentially became a matter of
when, not whether, a declaration of independence by Kosovo would occur. In the days
and weeks greceding 17 February 2008, Serbia lobbied intensively against
independence. 26 Kosovo' s elected leaders, meanwhile, consulted extensively with
UNMIK, interested govemments and others both in Pristina and elsewhere regarding its
intention to declare independence. A central goal was to ensure full coordination with
both the international presences created under Resolution 1244 and those to be put in
place as part of Kosovo' s implementation of the obligations laid out for it in the
Comprehensive Settlement Proposai. 127 Representatives of foreign liaison offices in
Pristina, including from the United States and members of the European Union, were
then invited to attend the extraordinary meeting in the Assembly of Kosovo on February
17,128 where Kosovo's president; prime minister, and parliamentarians-against a
124
Letter dated 10 December 2007 from the Secretary-General to the President of the Security Council,
S/2007/723, 10 December 2007, enclosure (Report of the European Union/United States/Russian
Federation Troïka on Kosovo, 4 December 2007), p. 4, para. 11 [Dossier No. 209].
125
Security Council resolution 1244(1999), S/RES/1244 [Dossier No. 34].
126Letter dated 12 February 2008 from the Permanent Representative of Serbia to the United Nations
addressed to the President of the Security Council, S/2008/92, 12February 2008.
127Judah, p. 142.
128 Transcript of the Special Plenary Session of the Assembly of Kosovo on the Declaration of
lndependence Held on 17February 2008 (Annex 2].
- 32 -backdrop of thousands celebrating in the center of Pristina-gathered to adopt and sign
the declarationof independence. ·
The declaration itself expressed "the will of our people" for independence and
129
declared Kosovo "to be an independent and sovereign state." Kosovo expressly
undertook to implement in full the obligations for it contained in the Ahtisaari Plan,
"particularly those that protect and promote the rights of communities and their
members." 13° Further provisions, inter alia, welcomed and invited the international
civilian and militarypresences established under Resolution 1244;aspired to accession to
Euro-Atlantic institutions; expressed gratitude to the United Nations for its work in
rebuilding from war and building institutions of democracy; and emphasized Kosovo's
acceptance of international obligations, its commitment to regional peace and131ability,
and its desire for friendship and cooperation with Serbia and all states. The declaration
concluded with an affirmation that Kosovo would be "legally bound to comply with the
132
provisions contained in this Declaration."
The declaration of independence was followed within days by recognition of
Kosovo's independence by the United States and four of the other five members of the
Contact Group, and within three weeks by most other members of the European Union.
Serbia, meanwhile, "demand[ed]" in a letter to the Secretary-General that the SRSG use
his powers to nullify the declaration as in violation of Resolution 1244. 133 At a meeting
of the UN Security Council on February 18, President Boris Tadié requested the
Secretary-General to instruct the SRSG to declare the declaration null and void; the
Russian permanent representative made a similar demand. 134 The SRSG, however, did
135
not take any such action.
By mid-April 2009, 57 countries, representing every continent, had announced
their recognitionof Kosovo.
129
Declaration of Independence, para. 1 [Dossier No. 192].
130Ibid., para. 3. See also Report of the Secretary-General on the United Nations lnterim Administration
Mission in Kosovo, S/2008/211, 28 March 2008, Annex 1 [Dossier No. 86] (assessing that the Declaration
of Independence "committed Kosovo to continuing the implementation of reforms required for European
integration, and noted Kosovo's obligation to protect and promote the rights of ail communities.").
131
See Declaration of Independence, paras. 5-12 [Dossier No. 192].
132See ibid.,para. 12 [Dossier No. 192];see a/so Chapter IV, Section IV, infra.
133Letter dated 17 February 2008 from the Permanent Representative of Serbia to the United Nations
addressed to the Secretary-General. A/62/703-S/2008/111, 19 February 2008, Annex (Letter of President
Boris Tadié), p. 2 [Dossier No. 202].
134Security Council, Sixty-third year, 5839 meeting, S/PV/5839, 18February 2008, pp. 5-7.
135Se~ infra Chapter V, Section VII.
- 33- Section VIII. lndependent Kosovo
Although the question before the Court does not concern itself with Kosovo's
status today, a brief survey of developments since the declaration of independence serves
to round out the story of Kosovo's recent history, from autonomy within the Socialist
Federal Republic of Yugoslavia in the 1970s and 1980s, to harsh repression in the 1990s,
to recovery under United Nations guardianship in the early/rnid-2000s, and finally to
stability and maturity in the context of independence today. This history confrrms the
reasonableness of Kosovo's having declared independence, and why Kosovo has
gamered such widespread international support.
These post-independence developments can be summarized by reviewing four
main factors that undergirded the United States' support for and recognition of Kosovo's
independenceon 18February 2008.
First, while the sequence and nature of events that led to Kosovo's independence
were exceptional, there were important sirnilarities between the situation facing Kosovo
in 2008 and that which had confronted th136epublics of the former Yugoslavia that gained
their independence in the early 1990s. The former federal state and the constitutional
checks and balances it provided had disappeared, and a campaign of violence directed by
Belgrade had created widespread human suffering. In choosing to accord recognition to
Kosovo, the United States thus had in mind fundamental considerations similar to those
that underlay its recognition of Slovenia, Croatia and Bosnia and Herzegovina in April
1992, and Macedonia in February 1994, when faced with ·the dissolution of the old
Yugoslavia.
Second, based on its assessment of Kosovo' s development during the period of
UNMIK administration, the United States was satisfied that Kosovo's viability as astate
was not in doubt and that it met the criteria of statehood outlined in Article 1 of the 1933
Montevideo Convention: (1) a permanent population, (2) a defined territory, (3) a
137
functioning govemment, and (4) the capacity to enter into foreign relations.
Consideration of these criteria had likewise been a cornerstone of U.S. recognition of
other states seeking independence in the former Yugoslavia in the early 1990s.
Third, the United States was influenced by the conviction both that the status quo
of international administration could not be maintained and that there was no viable
alternative to Kosovo's independence. The "political process" that Resolution 1244
136See StjepanMesié, "Kosovo-A Problem that Tolerates No Delay" [Annex l].
137
The lnter-American Convention on the Rights and Duties of States, 26 December 1933, LNTS, Vol.
165, p. 19. The Montevideo Convention is often regarded as a general codification of customary
internationallaw.ee David Raie,Statehood and the Law ofSelf-Determination (2002), p. 24, and n. 15.
- 34 - 138
envisioned had run its course. As the senior U.S. diplomat for European affairs stated
in testimony before Congress in March 2008, recognizing Kosovo' s independence "was
the only responsible decision to take. ... The status quo in Kosovo was unsustainable and
undesirable. ... If left unaddressed, Kosovo would have turned into an incubator for
frustrations, ex.tremi139and instability, which would then threaten to infect all of
southeast Europe."
Finally, the United States placed great weight on Kosovo's commitments,
assumed in its declaration of independence and subsequently in its constitution, to protect
140
the rights and interests of ail communities in Kosovo. As the U.S. President wrote to
President Sejdiu in recognizing Kosovo as an independent and sovereign state, the United
States "support[s] your embrace of multi-ethnicity as a principle of good governance and
your commitment to developing accountable institutions in which all citizens are equal
under the law." 141 The United States welcomed Kosovo's "unconditional commitment"
to fulfilling the obligations for it under the Ahtisaari Plan, and its willingness to
cooperate fully with the international community during the period of international
142
supervision to which Kosovo agreed. In view of the many supervisory responsibilities
accruing to the new International Civilian Office and the important responsibilities of the
138
See discussion supra in Chapter Il, Section IV and infra Chapter V, Secti1.
139
Testimony of Daniel Fried, Assistant Secretary of State for European and Eurasian Affairs before Senate
Committee on Foreign Relations, 4 March 2008 ("Fried Testimony"), pp. 5-6, available at:
http://foreign.senate.gov/testimony/2008/FriedTestimony080304a.pdf.
140
See, e.g., Declaration of Independence, para. 2 [Dossier No. 192] ("We declare Kosovo to be a
democratic, secular and multi-ethnic republic, guided by the principles of non-discrimination and equal
protection under the law. We shall protect and promote the rights of all communities in Kosovo and create
the conditions necessary for their effective participation in political and decision-making processes"); see
also http://www.assembly-kosova.org/common/docs/Constitution 1%20of>/o20the%20Republic%20of0/o20
Kosovo.pdf. These commitments correspond fully to the highest objectives reflected in the standards
applied by the Badinter Commission in its review of the "applications" for recognition by several Yugoslav
republics in 1991-92. Among those standards for recognition were respect for the UN Charter and the
Helsinki Final Act and "guarantees for the rights of ethnie and national groups and minorities in accordance
with the commitments subscribed to in the framework of the CSCE." The standards are found in the
Declaration on Yugoslavia, Extraordinary EPC Ministerial Meeting, Brussels, 16 December 1991
(reprinted in Danilo Türk, Recognition of New States: A Comment, Annex 2, 4 Eur. J.Int'lL. 63 (1993), p.
73), and the Declaration on the Guidelines on Recognition of the New States in Eastern Europe and in the
Soviet Union, 16 December 1991 (reprinted in Danilo Türk, Recognition of New States: A Comment,
Annex pp. l, 4 Eur. J. Int'l L. 63 (1993), p. 72).
141
Letter dated 18 February 2008 from United States President George W. Bush to President of Kosovo
Fatmir Sejdiu, 18 February 2008, Weekly Compilation of Presidential Documents, Volume 44, No. 7, 25
February 2008, p. 236, available at: http://fdsys.gpo.gov/fdsys/pkg/WCPD-2008-02-25/pdf/WCPD-2008-
02-25-Pg236.pdf.
142Ibid.
- 35 -EULEX rule-of-law mission, the United States has subsequently committed substantial
143
resources andpersonnel to both missions.
Beyond contributing to the effective and inclusive govemance of Kosovo today,
the United States believed attention to these priorities would lay the foundation for
Kosovo's eventual accession to European institutions. This in tum usefully reinforced
the commitments of the Govemment of Kosovo to human rights, democracy, and
peaceful relations with neighbors. The United States was persuaded that integration into
the EU and Euro-Atlantic structures is key to the long-term stability of Kosovo, Serbia
and the region, as well as the well-being of all their residents. "[T]he future of Kosovo,
144
the future of Serbia,the future of the region really lies in the European Union."
Kosovo has fully met the hopes and expectations that the United States had in
deciding to recognize its statehood. 145 Upon independence, Kosovo established
institutions for the few areas of govemmental responsibility in which ministries or other
bodies were not put in place and functioning under UNMIK administration, including
ministries of foreign affairs and security forces as well as an election commission. As of
1April 2009, Kosovo's executive branch included seventeen ministries, in addition to the
146
Presidency and the Office of the Prime Minister. As the Special Representative of the
Secretary-Generalin Kosovo recently observed, "UNMIK was really no longer needed to
147
exercise co-govemance with the Kosovo side."
143 To the ICO, Washington pledged to cover 25% of its operating costs, and to provide a senior U.S.
Foreign Service officer as a deputy, in addition to secondments of other State Department staff and
assignment of contractors to the operation. See Fried testimony, p. 7, available at:
htt_p://foreign.senate.gov/testimony/2008/FriedTestimony080304a.pdf. To EULEX, although the mission is
overwhelmingly European, Washington bas pledged to provide personnel for as many as 88 positions, in
addition to financial support. Daniel Fried, Signing of European Union Rule of Law Mission (EULEX)
Agreement, 22 October 2008, available at: htt_p://2001-20.state.gov/p/eur/rls/rm/111171.htm.
144
U.S. Ambassador to Kosovo Tina Kaidanow, interview with TV PULS, 19 March 2009, available at:
htt_p://pristina.usembassy.gov/03192009interview2.html.
145
For a general report on Kosovo's progress in meeting its obligations under the CSP, and its political
development more broadly, see Report of the International Civilian Office, ("ICO Report"), 27 February
2009, available at: htt_p://www.ico-kos.org/d/ISG%20report%20finalENG.pdf [Annex 3], as well as
International Civilian Office, International Steering Group for Kosovo, Implementation of the
Comprehensive Settlement Proposai - State of Implementation Matrix and Narrative, 27 February 2009
("ICO Implementation Matrix"), available at: htt_p://www.ico-kos.org/?id=3.
146
See Govemment of Kosovo website, available at: htt_p://www.ks-gov.net/portaVeng.htm.
147
See, e.g., Interview with Lamberto Zannier, Special Representative of the Secretary-General (reprinted
in Pristina newspaper Koha Ditore, 17 March 2009 ("Zannier Interview"), available at:
htt_p://www.unmikonline. org/ DPI/Loca1Med.nsf/0/76B1D2956FA6537DC125757C003 IAB3 l/$FILE
/lmml70309.pdO ("[W]hat bas happened is that UNMIK bas remained but the new tasks ofUNMIK have
been affected on the one band by the developments on the ground, by the fact that the Kosovo institutions
have developed, have taken root, and that UNMIK was really no longer needed to exercise co-govemance
with the Kosovo side" (emphasis added)).
- 36- A signal achievement in govemance in Kosovo' s first year of independence was
the adoption of its constitution, which entered into force on 15 June 2008, after a period
of public comment and adoption by the Kosovo Assembly. Among other things, the
constitution incorporates the obligations for Kosovo contained in the Comprehensive
Settlement Proposai 148 and undertaken in its declaration of independence. The
constitution made directly applicable, as supreme law, the human rights and fundamental
freedoms guaranteed by instruments such as the Universal Declaration of Human Rights,
the European Convention for the Protection of Human Rights and Fundamental Freedoms
and its Protocols, the International Covenant on Civil and Political Rights and its
Protocols, and the Council of Europe Framework Convention for the Protection of
149
National Minorities. The Assembly of Kosovo has adopted more than 90 laws. The
Assembly has enacted legislation on matters such as budget and tax issues, the
150
constitutional court, privatization and property, and economic regulation.
With respect specifically to protection for minorities, the Assembly has adopted
more than 50 laws directly related to implementation of the provisions of the Ahtisaari
Plan, including laws on decentralization and the rights and protection of members of all
151
of Kosovo's communities. Members of all non-majority communities, including
Kosovo Serbs, are represented in the Assembly and govemment ministries, including the
prime minister' s office. The Kosovo Police have successfully assumed responsibility for
guarding many Serbian Orthodox Church sites. The Kosovo Security Force recruits
among ail communities, and a member of the Serb community serves in the top
leadership of the Kosovo Police Force.
In the sphere of foreign relations, 57 states have recognized Kosovo, including 22
of the 27 members of the European Union, which both Kosovo and Serbia aspire to join.
Recognizing states include ail of Kosovo' s immediate neighbors, other than Serbia, and
152
ail of the other former Yugoslav republics except Bosnia and Herzegovina.
Montenegro, a recognizing state that is both a neighbor and a former republic, was one of
the two republics making up the Federal Republic of Yugoslavia at the time Resolution
148
Constitution of the Republic of Kosovo, Art. 143, available at: http://www.assembly
kosova.org/common/docs/Constitutionl %20of0/420the%20Republic%20of0/420Kosovo.pdf.
149
Ibid., Art. 22.
150
See "Evidence of the processed and adopted laws," 2 March 2009, pp. 7-12, available at:
http://www.assemblyofkosovo.org.See also ICO Report, p. 1, [Annex 3]; ICO Implementation Matrix,
available at:http://www.ico-kos.org/?id=3.
151
ICO Report, Secs. 11.1, 11.3 [Annex 3]; see a/so ICO Implementation Matrix, available at:
http://www.ico-kos.org/?id=3.
152
Bosnia and Herzegovina consists of two entities: the Federation of Bosnia and Herzegovina and the
Republika Srpska.
- 37 -1244 was adopted. Kosovo has already established ten embassies and is in the process of
establishing more. Kosovo' s passport is widely accepted, including by states that have
not yet formally recognized it diplomatically.
Additionally, Kosovo has applied for membership in the International Monetary
Fund, which has determined that it is a state eligible for membership and is now
153
reviewing its application on the merits. It also has applied for membership in the
World Bank, whose decisions follow those of the IMF. Kosovo has accepted as binding
on it obligations under applicable treaties entered into by the SFRY, as well as by
154
UNMIK on its behalf during the period between 1999 and 2008, and is now engaged in
negotiations with the United States and other countries on the applicability of treaties
under state succession principles. Working with UNMIK, Kosovo participates in the
Central European Free Trade Agreement ("CEFTA"), the Energy Community and the
South-East Europe Transport Observatory, and has participated in launching a treaty
15
establishing a transport community of the western Balkans. In addition to setting up its
Ministry of Foreign Affairs, Kosovo has adopted relevant legislation such as laws on
diplomatie immunities and a foreign service. Its president, prime minister, foreign
minister and other officiais have addressed UN bodies on behalf of Kosovo and engaged
actively in bilateral diplomacy. 156
While much has changed in Kosovo since February 2008, the international
civilian and military presences operating in Kosovo under Resolution 1244 remain, albeit
with modifications in light of the new conditions following the declaration of
independence, and complemented by the addition of important new international actors,
welcomed and invited by Kosovo in its declaration of independence. The chief
continuing presences include:
153International Monetary Fund, Statement on Membership of the Republic of Kosovo in the IMF, Press
Release No. 08/179, 15 July 2008, available at: http://www.imf.org/external/np/sec/pr/2008/pr08 l79.htm
("On July 10, 2008, the International Monetary Fund (IMF) received an application for admission to.
membership in the IMF from the Republic of Kosovo. In the context of this application, it has been
determined that Kosovo has seceded from Serbia as a new independent state and that Serbia is the
continuing state."). See also ICO Report, III [Annex 3].
154
Declaration of Independence, para. 9 [Dossier No. 192].
155Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo,
S/2008/692, 24 November 2008, para. 18 [Dossier No. 90]. See, e.g., Treaty Establishing the Energy
Community of 25 October 2005 with attached Declaration dated 4 October 2005 signed by the Special
Representative of the Secretary-General on the terms ofUNMIK's signature, and Statement of the Serbian
Delegation at the ceremony of signing of the Treaty on 25 October 2005 [Dossier No 175]. See generally
Dossier, Part 11.G.
156
See generally Ministry of Foreign Affairs of the Republic of Kosovo website, available at:
http://www.ks-gov.net/mpj/.
- 38.- • UNMIK, which has scaled back its operations in light of changed conditions
on the ground following Kosovo's assumption of full administrative
responsibilities and the EU's readiness to conduct rule of law programs.
Nevertheless, UNMIK continues to fulfill important functions under
Resolution 1244, including monitoring and reporting, and facilitating
Kosovo's engagementwith internationalinstitutions. 157
• KFOR, the NATO-led Kosovo Force, focusing on security issues, including
preservation of a safe and secure environment for all Kosovo 158izens, and
mentoringandtraining of Kosovosecurity institutions.
• OSCE, focusing on institution- and democracy-building, and promoting
humanrights andthe rule of law. 159
New presencesinclude:
• EULEX Kosovo, the European Union's rule-of-law m1ss10n,focusing on
"monitoring,mentoring, and advising" Kosovo authorities,judicial authorities
160
and law enforcement agencies. EULEX has taken over rule-of-law
functions formerly conducted by UNMIK. 161 Its activities are conducted
within the overall framework of Resolution 1244,and have been endorsed by
162
the SecurityCouncil.
• The International Civilian Office ("ICO"). established by the International
Steering Group ("ISG"), 163 to advise Kosovo's govemment and municipal
leaders on implementation of its obligations under the Comprehensive
157
Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo,
S/2008/354, 12 June 2008, para. 16. Annex I [Dossier No. 88). See a/so Zannier Interview, available at:
http://www.unmikonline. org/ DPI/LocalMed.nsf/0/76B 1D2956FA6537DC 125757C0031AB31/$FILE/
lmml70309.pdf; Report of the Secretary-General on the United Nations Interim Administration Mission in
Kosovo, S/2008/692, 24 November 2008, paras. 4, 18,21-25, 48-53 [Dossier No. 90).
158
See KFOR website, available at: http://www.nato.int/issues/kfor/index.html.
159
See OSCE website, available at: http://www.osce.org/kosovo.
160See Council of the European Union Joint Action 2008/124/CFSP of 4 February 2008, available at:
http://eulex-kosovo.eu/home/docs/JointActionEULEX EN.pdf; see also EULEX Programme Strategy,
available at: http://eulex-kosovo.eu/strategy/EULEX%20Programmatic%20Approach.pdf.
161Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, 12
June 2008, S/2008/354, para. 12 [Dossier No.).
162See Statement by the President of the Security Council, S/PRST/2008/44, 26 November 2008 [Dossier
No. 91); Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo,
S/2008/692, 24 November 2008 [Dossier No. 90).
163ICO Report, pp. l, 8 [Annex 3).
- 39 - Settlement Proposal, in particular its provisions related to protections for
communities and their members. The ICO is headed by an International
Civilian Representative ("ICR"), appointed by the ISG, who exercises
supervisory authority over Kosovo' s implementation of the CSP and certifies
legislation for consistency with the CSP. The ICR also serves as the European
Union Special Representative ("EUSR") in Kosovo. 164
Other than the ICO, these presences operate on the basis of a "status-neutral"
approach-neither accepting nor rejecting Kosovo's statehood--owing to the
participation of non-recognizing states in the missions or organizations. Nevertheless,
their activities, undertaken in close coordination with national and local authorities, are
intended to and in fact have the practical effect of strengthening Kosovo' s democratic
development and bolstering its governing institutions. As the ICO observed in its report
to the ISG on Kosovo's first year of independence:
The past year witnessed much progress in Kosovo, progress in building
institutions, anchoring Rule of Law, in the creating and consolidating of
the elements of statehood, and in taking its place in the community of
nations as a multi-ethnic democracy .... Through continued effort and
vigilance, we believe that 2009 will be a year of progress for Kosovo -
progress in meeting its commitments to itself and to its international
partners to implement the CSP, and progress toward the destiny foreseen
in its Constitution, "as a free, democratic, and peace-loving country that
will be a homeland to all of its citizens."165
164See ICO Report, pp. 1, 8 [Annex 3]; see also Council of the European Union Joint Action
2008/123/CFSP of 4 February 2008, available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ
do?uri=OJ:L:2008:042:0088:0091:EN:PDF.
165
ICO Report, pp. 1,8 [Annex 3].
-40- CHAPTERIII
CONSIDERATIONS RELATINGTO
THENATUREOFTHEQUESTIONREFERRED
ANDHOWTHECOURTMIGHTADDRESSIT
The question referred by the GeneralAssembly in Resolution 63/3 is:
"Is the unilateral declaration of independence by the Provisional Institutions of
Self-Governmentof Kosovo in accordancewith international law?"
This Chapterprovides the observations of the United States on the nature of the question
and how the Court might address it. Section I discusses the Court's jurisprudence
regarding advisory opinions and its implications for the rendering of an opinion in this
case. SectionII describes why, if the Court does decide to render an opinion in this case,
the response should be confined to the questionposed.
Section I. Questions Related To Whether Rendering An Opinion
Would Be A Proper Exercise Of The Court's Judicial Function
The Court's authority to issue an advisory opinion is discretionary.166 The Court
has, however,been mindful of the fact that-as the principaljudicial organ of the United
Nations-its "answer to a request for an advisory opinion 'represents its participation in
the activities of the Organization."'167The Court's advisory opinions "fumish[] to the
requesting organs the elements of law necessary for them in their action," and for this
reason the Court has stated that it should decline a request only for "compelling
reasons."168
The Court has also repeatedly "underlined its duty to reply - a duty arising from
its status as an organ of the United Nations - by referring to the interest which the
169
requesting organ has in having a reply to its request." As the purpose of the Court's
166
Legality of the Threat or Use ofNuc/ear Weapons,Advisory Opinion, /.C.J. Rep. 226, at pp.
234-35,para. 14.
167Lega/ Consequences of the Construction of a Wall in the Occupied Pa/estinian Territory, Advisory
Opinion, J.C.J.Reports 20p.136,atp. 156,para.44.
168Ibidparas.44, 60.
169
KennethKeith,The F,xtentof the Advisory Jurisdiction o(1970),p. 148.
-41 -advisory jurisdiction is to assist the other organs in the performance of their functions,
"its resultant obligation to reply is dependent at least to some extent on the presence of
170
that interest [bythe requesting organ]." The Court reiterated this point in Construction
of a Wall, stating that there should be a "relationship between the question[,]the subject
171
of a request for an advisory opinion and the activities of the General Assembly." For
this reason, the Court often looks to the interest that the requesting organ has in receiving
172
its guidance before deciding to issue an opinion.
The present case is unusual in that there is a genuine question whether the General
Assembly has a need for legal clarification on the question posed to perform any of its
functions, and accordingly whether the Court's opinion would contribute toits activities.
The question referred by the General Assembly concems Kosovo's declaration of
independence. The text of Resolution 63/3 does not offer a reason for the requested
opinion nor any background on the matter. The resolution does not refer to any issue
related to Kosovo before the General Assembly, and the General Assembly did not have 173
relevant items related to Kosovo on its agenda when the question was posed. This
17
°Kenneth Keith, TheExtent of theAdvisory Jurisdiction of the ICJ, p. 148(1970).
171
Construction of a Wall,Advisory Opinion, IC.J. Reports 2004, p. 136at p. 145,para. 16.
172In Threat or Useof Nuclear Weapons,the Court rejected the argument that it should decline the request
for an opinion, stating that "[t]he question putto the Court has a relevance to many aspects of the activities
and concerns of the General Assembly including those relating to the threat or use of force in international
relations, the disarmament process, and the progressive development of international law." Threat or Use
of Nuclear Weapons, Advisory Opinion, 1996 IC.J. Reports, p. 226, at p. 233, para. 12. In the Peace
Treaties case, the Court dismissed several parties' arguments thattshould refuse to issue an opinion after
noting that ''the sole object of [the requested opinion] is to enlighten the General Assembly as to the
opportunities which the procedure contained in the Peace Treaties may afford for putting an end to a
situation which has been presented to it." lnterpretation of Peace Treaties with Bulgaria, Hungary, and
Romania, Advisory Opinion, IC.J. Reports 1950, p. 65, at p. 72. Similarly, in the Namibia case, the Court
responded to an argument that it should decline to issue an opinion by noting that the request was "put
forward by a United Nations organ with reference toits own decisions and it seeks legal advice from the
Court on the consequences and implications of these decisions." Lega/ Consequences for States of the
Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Counci/
Resolution 276 (1970), Advisory Opinion, IC.J. Reports 1971, p. 16, at p. 24, para. 32. The Court also
noted the General Assembly's interest in receiving its opinion in the Reservations to the Convention on
Genocide case, stating: "The object ofthis request for an Opinion is to guide the United Nations in respect
of its own action. It is indeed beyond dispute that the General Assembly, which drafted and adopted the
Genocide Convention, and the Secretary-General, who is the depository of the instruments of ratification
and accession, have an interest in knowing the legal effects of reservations to that Convention and more
particularly the legal effects of objections to such reservations." Reservations to the Convention on
Genocide,Advisory Opinion, IC.J. Reports 1951, p. 15,at p.19.
173
See Agenda of the sixty-third session of the General Assembly, A/63/251, 19 September 2008. A
matter related to the financing of UNMIK is listed on the agenda, but there is no indication that the
Assembly needs the Court's legal advice in order to address this agenda item,nor was itsuggested during
the debate that it does.
-42 -omission contrasts with prior requests for advisory opinions from the General Assembly
that explicitly stated the need for the Court's advice, 174 identified a specific problem
175 17
confronting the Assembly, or cited to relevant General Assembly resolutions.
Nor can such a reason be gleaned from the circumstances under which the
question was formulated. During the diplomatie discussions and the debate in the
General Assembly leading to the adoption of Resolution 63/3, neither Serbia nor other
member states indicated that the General Assembly, as a body, needed this opinion.
The United States recognizes this Court's previous opinions rejecting the
argument that the General Assembly should have made clear "what use it would make of
an advisory opinion", 177 and noting that "it is not for the Court itself to purport to decide
whether or not an advisory opinion is needed by the Assembly for the performance of its
functions." 178 But in those instances it was clear that the General Assembly was actively
179
considering matters related to the subject matter of the opinion requested. The same is
not true here.
Indeed, this case is striking because the debate in the General Assembly itself
reveals that the purpose of the question seems to have been solely to aid individual states
in their capacity as states, not to aid the General Assembly in a matter before it.
174 General Assembly resolution 3292, 13 December 1974 ("it is highly desirable that the General
Assembly, in order to continue the discussion of this question at its thirtieth session, should receive an
advisory opinion on some important legal aspects of the problem"); General Assembly resolution 42/229B,
2 March 1988 (explaining the dispute between the United Nations and a Member State and noting that
attempts "at amicable settlement were deadlocked"); General Assembly resolution 1731, 20 December
1961 ("Recognizing its need for authoritative legal guidance as to obligations of Member States ... in the
matter of financing the United Nations operations in the Congo and in the Middle East") (emphasis in
original).
175See General Assembly resolution 942, 3 December 1955 (explaining that the General Assembly bas
been requested to "decide whether or not the oral hearings of petitioners on matters relating to the Territory
of South West Africa is admissible before that Committee").
176
See General Assembly resolution ES-10/14, A/RES/ES-10/14, 8 December 2003.
177
Construction of a Wall, I.C.J. Reports 2004, p.136, para. 61.
178Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, J.C.J. Reports 1996, p. 236,
para. 6.
179
Construction of a Wall, Advisory Opinion, I.C.J. Reports 2004, p. 136, paras. 17, 49. For example, in
Construction of a Wal/, the Court was asked to state the "legal consequences arising from the construction
of the wall being built by Israel" in the West Bank. Although the General Assembly did not say how it
would use the Court's opinion, it was evident that the General Assembly was actively involved in issues
related to the Palestinian/lsraeli conflict.id at para. 49. Prior to requesting an advisory opinion, the
General Assembly had demanded that Israel hait construction of the wall, and the Secretary General had
issued a report on Israel's compliance with those demands. See Report of the Secretary-General prepared
pursuant to General Assembly resolution ES-10/13, A/ES-10-248, 24 November 2003.
-43 -Specifically, the diplomatie discussions and the debate in the General Assembly make
clear that Resolution 63/3 was not designed to refer a question to the Court because the
General Assembly as an institution needed such advice. Rather, the debate focused upon
the asserted right of any member state to seek an advisory opinion on matters of
importance toit. For example, the sponsor of the resolution, Serbia, circulated a letter to
missions in New York indicating that the proposed resolution was intended to
underline the fact that the issue that will be presented before the General
Assembly is about the right of any member State of the United Nations to
pose a simple, elementary question on a matter of international law; it is
about the fundamental right to seek an advisory opinion of the
International Court of Justice, consistent with the UN Charter, on a
principle of utmost importance to all. 180o country should be denied the
right to refer such a matter to the JCJ.
This point was renewed more strongly during the General Assembly debate on 8 October
2008: .
Supporting this draft resolution would also serve to reaffirm a fundamental
principle: the right of any Member State of the United Nations to pose a
simple, basic question on a matter it considers vitally important to the
Court. To vote against it would be in effect a vote to deny the right of any
country to seek - now 181in the future - judicial recourse through the
United Nations system.
lt is true that any member state can seek an advisory opinion on any legal issue
in the sense that any state can seek to persuade the General Assembly that it should
exercise its right to seek the Court's advice. What stands out in this situation, however, is
that the opinion appears to have been sought solely for the benefit of individual states-in
effect requesting the Court to serve as the Legal Adviser to those states. But the Court
has stated that its role is to advise the organs of the United Nations, not the individual
member states. lt has made clear that "[t]he Court's opinion is given not to the States,
182
but to the Organ which is entitled to request it." In Threator Use ofNuclear Weapons,
the Court emphasized that "[t]he purpose of the advisory function is not to settle ...
disputes between States, but to offer legal advice to the organs and institutions requesting
180Letter dated 22 August 2008 from Vuk Jeremié, Minister of Foreign Affairs of the Republic of Serbia
addressed to Condoleezza Rice, Secretary of State, United States of America, p.2 (emphasis added). Similar
letters were also written to other foreign ministers of states with missions in New York.
18122nd plenary meeting of the sixty-third session of the General Assembly, A/63/PV.22, 8 October 2008,
p.l (Remarks of Foreign Minister Vuk Jeremié) [Dossier No. 6].
182
lnterpretation of Peace Treaties, Advisory Opinion, I.C.J. Reports 1950, p. 65 at p. 71.
-44-the opinion." 183 The Court reiterated this principle in Construction of a Wall, stating that
its "opinion is to be given to the General Assembly, and not to a specific State or
entity."184 The fact that astate, or group of states, might desire an advisory opinion for
their own national purposes does not present the same institutional basis for Court action
as is presentedwhen an organhas requested an opinion in connection with its own work.
Such considerations well might not provide the Court sufficient reason to decline
a request where the record indicates that the Court's legal clarification is being sought for
the General Assembly to carry out its duties, rather than to vindicate the purported "right
of any member State" to refera question to the Court. In the present case, however,
there are significant questions as to whether the Court's providing an opinion would
further the purpose of its advisoryjurisdiction. These considerations thus take on added
weight, and the question whether the Court should proceed to render the requested
opinion warrants particular scrutiny.
Section II. If The Court Does Decide To Render Ail Opinion, The
Importance Of Confining The Response To The Question Posed
A great many questions, both political and legal, may bear upon the matter of
Kosovo's independence. But the General Assembly has not posed those questions to the
Court, and has not indicated-either in its question or in the context in which it was
formulated-that it is seeking answers from the Court to such questions. The record
reflects that this was not inadvertent. The sponsor of the resolution formulating the
185
question stated that it "should not be changed because it is precise and clear," that it
represented "the lowest common denominator of the positions of the member States on
186
this question, and hence there is no need for any changes or additions," and stressed
that "there is no room for maneuvering space for [] amendments" in the way it was
formulated. 187 There is no indication that the General Assembly actually sought an
answerto anythingother than the question as it was posed.
The most noteworthy aspect of the question is that it is focused on the legality of
the act of declaring independence. It does not address a broad range of other questions
183See also Kenneth Keith, The Extent of the Advisory Jurisdiction of the /CJ (1970), p. 142 ("The
opinions are, in theory, directed on/y to that organ") (emphasis in original).
184Construction of a Wall,Advisory Opinion, /.C.J. Reports 2004, p. 136,at p. 164, para. 64.
185
"Jeremié: Good Chances for Serbia at UN General Assembly," summary of interview withPolitika, 22
September 2008, available at Serbian Ministry for Kosovo and Metohija website:
http://www.kim.sr.gov.yu/cms/item/news/en.html? view=st01y&id=6290§ionld=l l.
186 rd
General Assembly, 63 Session, 8 October 2008, A/63/PV.22, p. 2 [Dossier No. 6].
187
Foreign Minister: Amendments to Resolution Unacceptable, 27 September 2008, available at Serbian
Ministry ofForeign Affairs website: http://www.mfa.gov.yu/Bilteni/Engleski/b29090e.html#N3.
-45 -that might have been asked about Kosovo's path to independence or the international
community's response.
The General Assembly, for example, could have asked about the legal
consequences of the declaration of independence, but it did not. In contrast, in the most
recent advisoryopinion, the Court was asked:
What are the legal consequences arising from the construction of the wall
being built by Israel, the occupying Power, in the Occupied Palestinian
Territory, including in and around East Jerusalem, as described in the
report of the Secretary-General, considering the rules and principles of
international law, including the Fourth Geneva Convention of 19188 and
relevant SecurityCouncil and General Assembly resolutions?
Similarly,in the Namibia case,the Courtwas asked:
What are the legal consequences for States of the continued presence of
South Af189ain Namibia, notwithstanding Security Council resolution 276
(1970)?
In both these cases, it was appropriate for the Court to examine-and the Court
did in fact examine-the "legal consequences" of particular acts, as opposed to
examining solely the lawfulness of the acts themselves. The General Assembly was
surely aware of both these cases when it referred the question to the Court in this case.
Yet, the question here was specifically framed to address solely the act of the declaration
of independenceand not its legal consequences.
The significance of this fact is reinforced by the prevalence of other aspects of
Kosovo's independence raised by individual states at the time the question was
formulated. Indeed, ·the resolution's sponsor, Serbia, had pointedly and publicly
complained about many of the actions that states and the United Nations had taken in
response to Kosovo's declaration of independence, including specific complaints about
the recognition of Kosovo by other states, the failu190of the Secretary-General (and the
SRSG) to annul the declaration of independence, and the activities being undertaken
by the United Nations Mission in Kosovo to facilitate a smooth transition following the
declaration of independence, including UNMIK's efforts to commence new security
18Constructionof a Wall,AdvisoryOpinion,J.C.J.Reports2004p. 136,at p. 141, para. l.
189
South WestAfrica,Advisory Opinion,l.C.J. Repor1971, p. 16,at p. 17,para. 1(emphasis added).
190See Letter dated 17 February 2008 from the Permanent Representative of Serbia to the United Nations
addressed to the Secretary-General, A/62/703-S/2008/119 February 2008, Annex pp. 2-3 [Dossier No.
202].
-46 - 191
measures in Kosovo. Despite this, the question was drafted to focus on the one issue
its text addresses- the lawfulnessof the declaration itself. 192
Reformulating the question to encompass other issues would therefore be
inconsistent with the decision of the General Assembly. The Court has previously re
formulated or broadened a question where "the wording of a request . . . did not
193
accurately state the question on which the Court's opinion was being sought" or where
the question cEresented did not correspond to the "true legal question" under
1 4
consideration. The present request does not raise any such concems.
This case is thus not like the Advisory Opinion in Jnterpretationof the Greco
Turkish Agreement of 1 December 1926, where the referral to the Permanent
International Court of Justice "[did] not exactly state the question upon which its 195nion
is sought" but simply referred to letters that were forwarded to the court. In that case,
the PCIJ found it necessary to reformulate the question "in order more particularly to
avoid dealingwith points of law upon which it was not the intention of the Council or the
191Letter dated 17April 2008 from the Permanent Representative of Serbia to the United Nations addressed
to the President of the Security Council, S/2008/260, 18April 2008, para. 15 [Dossier No. 87].
192 There are of course numerous other questions related to Kosovo that could have been, but were not,
referred by the General Assembly. These include:
-- questions about whether subsequent acts of Kosovo to adopt its new Constitution or to adopt
new laws, including those related to the commitments for it under the Ahtisaari Plan, are
permissible;
-- questions about whether Kosovo may be admitted as a member to the United Nations (or other
organizations and entities);
-- questions about proposais for partitioning Kosovo;
-- questions about whether (or in what form) further talks between Kosovo and Serbia should be
held, and how they might best be conducted; and
-- questions about the lawfulness of the 1999 NATO military campaign (which the FRY earlier
submitted separately to the Court via a contentious case).
Again, the fact that these questions were not encompassed by resolution 63/3 cannot be considered
accidentai.
193
Construction of a Wall, Advisory Opinion, J.C.J. Reports 2004, p. 136, at p. 154, para. 38 (citing
Interpretation of the Greco-Turkish Agreement of 1 December 1926, Advisory Opinion, 1928, P.C.J.J.,
Series B, No 16(1),p. 14-16).
194Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion,
J.C.J. Reports 1980,p. 73, at pp. 87-89, paras. 34-36. Subject to such considerations, however, the Court
bas concluded that its role is to provide an "answer to the question posed", leaving it to the requesting
body-here, the General Assembly-to "draw conclusions from the Court's findings." Construction of a
Wall,Advisory Opinion, J.C.J. Reports 2004,p. 136,para. 62.
195Greco-TurkishAgreement, Advisory Opinion, 1928, P.C.J.J.,Series B, No 16(1),p.14.
-47 -Commission to obtain [the court's] opinion." 196 Nor is this case like Application for
Review of Judgement No. 273 of the United Nations Administrative Tribunal, where this
Court determinedthat the question referred to it was
on the face of it, at once infelicitously expressed and vague; and in the
second place, the records and report of the Committee cast doubt on
whether the question as framed really corresponds to the intentions of the
Committee in seising the Court. 197
In that case, this Court concluded that the process by which the question was
formulated was "formally defective," which caused the question "not to correspond to the
intentions of the Committee in that it [was] worded in such a way that it [did] not disclose
the two grounds of objection ... which clearly lie at the basis of the question intended to
198
be referred to the Court by the Committee." Here, the question was referred to the
Court in precisely the form that its sponsor requested, both its sponsor and the General
Assembly as a whole were well aware of the range and type of questions that Resolution
63/3 did not pose, and there are no allegations that Serbia was deprived of any procedural
ability to formulatethe question in the manner it saw fit.
Finally, there is no indication that the question does not correspond to the "true
199
legal question" under consideration. This is in contrast to the advisory opinion in
Interpretation of Agreement, where this Court determined that although the request only
cited one section of the legal agreement in question, the factual and legal context in
which the request was made left no doubt that the true question under consideration could
not be answered without examining the entire agreement and other rules that would apply
to the situation at hand. In that instance, failing to address those questions would be "not
only ineffectual but actually misleading as to the le§al rules applicable to the matter
20
under consideration by the requesting Organization." The same is not true here, where
196Greco-Turkish Agreement, Advisory Opinion, 1928, P.C.I.J, Series B, No 16(1),p.14.
197 Application for Review of Judgment No. 273 of the United Nations Administrative Tribunal, Advisory
Opinion, J.C.J Reports 1982,p. 325, at p. 349, para. 46.
198 Ibid., paras. 41, 46.
199
lnterpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion,
I.C.J Reports 1980,p. 73, at pp. 87-89, paras. 34-36.
200
Jnterpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion,
J.C.J Reports 1980,p. 73, at pp88-89, para. 35. See a/so Certain Expenses of the United Nations (Article
17, Paragraph 2 of the Charter), Advisory Opinion o/20 July 1962, J.C.J Reports 1962, p. 151, at pp. 156-
57 (noting that rejection of an amendment posed in the General Assembly to add express sub-questions
conceming whether the expenses in question were adopted in conformity with the Charter did not ''preclude
the Court from interpreting Article 17 in light of the other articles of the Charter, that is, whole
context of the treaty").
-48 -the question inquires whether the declaration of independence is in accordance with
"internationallaw".
In sum,the General Assembly chose not to ask about the "legal consequences" of
the declaration of independence, nor did it ask other legal questions concerning the
situation in Kosovo, but instead adopted the wording of Serbia's question as Serbia
requested. There accordingly is no basis on which the General Assembly's question
could or should be expanded or reformulated. As the Court has noted in other cases, the
Court's role now-if it finds that providing an Advisory Opinion is appropriate-is "to
provide an answer to the question posed" and it is then up to the General Assembly to
201
"draw conclusionsfrom the Court's findings" that it believes appropriate.
201Construction of a Wall, Advisory Opinion, I.C. J. Reports 2004, p. 136, at p. 163,para. 62.
-49- CHAPTERIV
THEDECLARATIONOFINDEPENDENCEIS INACCORDANCE
WITHGENERALPRINCIPLESOFINTERNATIONAL LAW
As discussed in this chapter, international law does not as a general matter
regulate declarations of independence, nor is there anything about Kosovo's declaration
of independence in particular that would render it not "in accordance with international
law." ChapterV will then describe how Kosovo's declaration.of independence is also in
accordancewith Resolution 1244.
Section I. International Law Does Not As A General Matter
Regulate Declarations Of Independence
lt is widely accepted that declarations of independence, standing alone, present
202
matters of fact, which are neither authorized nor prohibited by international law.
Neither the United Nations Charter, nor other general international afeements, nor
20
customary international law regulate the act of declaring independence. The fact that
202
See, e.g., Théodore Christakis, "The State as a 'primary fact': some thoughts on the principle of
effectiveness", in Secession: International Law Perspectives, p. 145 (Kohen, ed. 2006) ("... une declaration
d'indépendence par une entité sécessionniste, qui constitue la manifestation on ne peut plus claire du rejet
de toute soumissionà l'ordre juridique de l'Etat prédécesseur, ne produit, en elle-même, aucun effect
juridique.").This is evidenced by the broad consensus among commentators that secession-which
frequently involves a declaration of independence as an earlyp-is a matter of fact, which occurs
outside the regulatory context of international law. e.g., Lauterpacht, Recognition in International
Law (1947) ("International law does not condemn rebellion or secession aiming at acquisition of
independence."); Daniel Thürer, "Secession", in Max Planck Encyclopedia of Public International Law
(Rüdiger Wolfrum, ed.), available to subscribers at: htt_p://www.mpepil.com, p. 2 ("International law, thus,
does not state conditions of legality of a secession, and neither does it provide for a general 'right for
secession'. It does not in general condemn movements aiming at the acquisition of independence, either.");
Antonello Tancredi, "A normative 'due process' in the creation of States through secession", in
International Law Perspectives,. 189; Christian Tomuschat, "Secession and self-determination"in
Secession: International Law Perspectives, p. 43 and n. 81 ("Internai strife, including initiatives for
secession from an existing State, is not prohibited as such by international law. On this issue, there exists
broad consensus in the legal literature.").
203 See Marcelo Kohen, "Introduction", in Secession: International Law Perspectives, p. 20 ("[No]
international rule prevents a political movement or an entity within a State from seeking secession through
non-forcible means."); John Dugard & David Raie, "The role of recognition in the law and practice of
secession", inecession: International Law Perspectives, p. 102 ("One will search in vain for an explicit
prohibition of unilateral secession in international instruments. The same is true for the explicit recognition
of such a right.").
- 50 -international law does not address declarations of independence is not surprising. As a
general rule, international law governs the relations between States, not the conduct of
204
entities within States. There are certain exceptions, such as those found in
international humanitarian law, 205 but declarations of independence do not by themselves
fall into these exceptions. "Events leading to the creation of a new State generally entail
matters within the domesticjurisdiction of a State." 206
It is certainly the case that declarations of independence may-and in their
nature often do--violate domestic law. However, that does not mean that there has been
a violation of international law. 207 As Oppenheim has observed in the context of
rebellion: "Although a rebellion will involve a breach of the law of the state concerned,
no breach of international law occurs through the mere fact of a rebel regime attempting
208
to overthrowthe govemment of the state or to secede from the state."
Thus, it is widely accepted that, from the standpoint of international law, the
209
process of State formation presents a matter of fact. A declaration of independence is
an expression of a will or desire by an entity to be accepted as a state by the members of
the international community. There may be other events associated with a particular
declaration of independence that can be regulated by international law, but as one
commentatorhas remarked:
204
See, e.g., 1 Oppenheim 's International Law § 6 (9th ed. 1992) ("[I]nternational law is primarily a law
for the international conduct of states, and not of their citizens.").
205
See, e.g., ibid. § 7 ("States may treat individuals and other persons as endowed directly with
international rights and duties and constitute them to that extent subjects of international law."); § 148
("[M]uch of the law ofwar is binding not only upon states but also upon their nationals, whether members
of their armed forces or not.... Individual criminal responsibility under international law has also, for
example, been affirmed or established in relation to genocide, grave breaches of the 1949 Geneva
Conventions (and of the 1977 Protocols to them) and apartheid.")
206
Thürer, Secession, in Max Planck Encyclopedia of Public International Law, available at:
http://www.mpepil.com, p. 2; see also Li-Ann Thio, "International Law and Secession in Asia and the
Pacifie Regions", in Secession: International Law Perspectives, p. 299 ("Positive international law neither
prevents nor prohibits secession, treating secessionist conflicts as matters of domestic jurisdiction.").
207See 1 Oppenheim's International Law § 21 ("From the standpoint of international law, a national law is
generally regarded as a fact with reference to which rules of international law have to be applied, rather
than as a rule to be applied on the international plane as a rule oflaw.").
208
See ibid. §49.
209Kohen, "Introduction", in Secession: International Law Perspectives, p. 4 ("The creation of States has
traditionally been perceived as a matter of fact. For most authors, international law does not impact upon
this process, and is limited to taking note of the existence of a new sovereign entity, with all the legal
consequences attached to it, i.e.,the existence ofrights and obligations in the international realm.").
- 51 - [T]he State in the contemplation of international law is not a mere legal or
'juristic' person(personne morale), whose process of coming into being is
prescribed by law. lt is rather a 'primary fact', i.e. a fact that precedes the
law, and which the law acknowledges only once it has materialised, by
attributing certain effects toit, including a certain legal status. 210
In this case, the question before the Court is·not whether any of these associated
events-such as the subsequent recognitions of Kosovo' s statehood by other States-are
permissible under international law, but rather whether the declaration itself was
consistent with international law. The fact that international law does not generally seek
to regulate the act of declaring independence means that this declaration must be deemed
to be in accordance with international law. 211
Section II. Confirmation From Recent State Practice
Concerning Dissolution Of Yugoslavia
One need look no further than the events surrounding the break-up of former
Yugoslavia for confirmation that declarations of independence--even where they are
rejected by the parent State-are consistent with international law. Croatia and Slovenia
adopted declarations of independence from the SFRY in June 1991, and Macedonia and
Bosnia212d Herzegovina issued similar declarations in September and October of that
year. Significantly, prior to these events, many in the international community had
opposed the independence of the republics 213 and, in each case, the declarations occurred
210
GeorgesAbi-Saab, "Conclusion", in Secession: International Law Perspectives, p. 470.
211
To some extent, the question posed to the Court may be founded on the misconception that a source of
positive international law must be identified to justify the Declaration. As discussed above, however,
international law does not regulate declarations of independence. In this respect, the legal backdrop is
somewhat different from the Nuc/ear Weapons case, where the Court's examination of state practice
revealed that there was no "principle or rule of international law which would make the [legal use of
weapons] dependent upon a specific authorization," but did find a broad set of specific prohibitions
applicable to weapons generally. Legality of the Threat or Use of Nuc/ear Weapons, Advisory Opinion,
J.C.J.Reports 1996, p. 226, para. 52; see also Case Concerning Military and Paramilitary Activities ln and
Against Nicaragua (Nicaragua v. UnitedStates), J.C.J.Reports 1986, p. 14,para. 269 ("in international law
there are no rules, other than such rules as may be accepted by the State concerned, by treaty or otherwise,
whereby the level of armaments of a sovereign State can be limited, and this principle is valid for ail states
without exception."). As to declarations of independence, however, no specific prohibitions exist, save the
one important-and in this case, inapplicable-distinction discussed in Section III below.
212
See Conference on Yugoslavia Arbitration Commission: Opinion l, 29 November 1991 (reprinted in
International Law Reports, Vol. 92, 1993, pp. 162, 165) [Dossier No. 233]. In particular, Macedonia
adopted a declaration of sovereignty and independence on 17 September 1991, and Bosnia and
Herzegovina adopted a resolution on sovereignty on 14October 1991. Ibid
213See, e.g., Letter dated 28 March 1991 from President Bush to the Yugoslav Prime Minister, quoted in
Suzanne Lalonde, Determining Boundaries in a Conjlicted World: The Role of Uti Possidetis, p. 174
- 52 -against the wishes of the federal government. Nevertheless, once confronted with the
facts of the actual declarations, the international community did not conclude that they
violated international law, or that they were regulated by international law.
Following the declarations of independence of Slovenia and Croatia, the
Presidency of the SFRY issued a statement characterizing the declarations as "anti
constitutional and unilateral acts lacking legality and legitimacy on the internai and
external plane," and stating that they "directly threaten the territorial integrity of
Yugoslavia, the country's state frontiers and its sovereignty according to international
214
law." The European Community called for a three-month moratorium on
independence in the hopes of negotiating a peaceful resolution to the conflict. 215 Yet,
significantly, the European Community's statements do not suggest that the declarations
of independence were unlawful under international law. 216 Slovenia and Croatia agreed
to the moratorium effective 7 July 1991, but reaffirmed their proclamations of
independence on October 8, once the moratorium lapsed. 217 Meanwhile, Macedonia had
declared independence on 17 September 1991, and Bosnia and Herzegovina's
sovereignty resolution followed soon thereafter. The SFRY government continued to
oppose the republics' declarations, and in early October issued another statement
asserting that the Slovenian and Croatian declarations of independence violated the
federal constitution and posed a direct threat to Yugoslavia's territorial integrity. 218
(2002) ("The United States ... will not encourage those who would break the country apart."); see a/so
State Department Declaration, May 1991, quoted in Lalonde, Determining Boundaries in a Conjlicted
World, p. 174("the United States will not encourage or reward secession"). In addition, an EC Delegation
issued a statement in late May 1991 expressing support for Yugoslavia's unity, and the EC foreign
ministers issued a statement on 23 June 1991 declaring that the European Community would not recognize
declarations of independence by Slovenia and Croatia. See Lalonde, Determining Boundaries in a
Conjlicted Wor/d,p. 174.
214Stands and Conclusions of the SFRY Presidency Concerning the Situation in Yugoslavia, 27 June 1991,
(reprinted inugoslavia Through Documents: From Its Creation to its Dissolution, p. 305 (Trifunovska, ed.
1994)("Trifunovska")).
215 See Weller, "The International Response to the Dissolution of the Socialist Federal Republic of
nd
Yugoslavia", 86 Am. J. /nt'/ L., p. 573 (1992); Declaration on Yugoslavia, Adopted at the 82 EPC
Ministerial Meeting, The Hague, 10July 1991(reprinted in Trifunovska, pp. 315-16).
216
See general/y Trifunovska, pp. 308-44.
217
See Conference on Yugoslavia Arbitration Commission: Opinion l, 29 November 1991,p. 165 [Dossier
No. 233].
218
See Assessments and Positions of the SFRY Presidency Concerning the Proclamation of the
Independence of the Republic of Croatia and Slovenia, 11 October 1991(reprinted in Trifunovska, p. 354)
("By their secessionist acts Slovenia and Croatia pose a direct threat to the territorial integrity of
Yugoslavia, which is the only subject recognized in international law, the constituent parts of which are
these Republics."); see also Position of the SFRY Presidency, 30 December 1991 (reprinted in
Trifunovska, p. 484) ("In view of the fact that the decisions of some Yugoslav republics proclaiming their
'sovereignty and independence' constitute acts of secession, from the standpoint of both the national law
- 53 -Statements by others in the international community during this period reflect concern
with the ongoing violence, but they do not include judgments on the le~ality of the
19
declarations of independence themselves as a matter of international law. When a
meeting of the UN Security Council was convened in late September 1991, the crisis in
Yugoslavia was still widely considered to be an internal conflict, not one governed by
international law. 220
Significantly,the Badinter Commission, which specifically considered "principles
of public international law" in its first opinion, did not treat the republics' declarations of
independence as prohibited or governed by international law. Instead, the Commission
221
described the declarations as facts indicating the republics' "desire for independence."
The Commission reiterated the well-established tenet that "the existence or disappearance
of the State is a question of fact." 222 When the Commission subsequently considered in
January 1992 whether each republic had met the European Community's legal and
political conditions for recognition, it made no mention of the permissibility of the earlier
223
declarations of independence under international law.
and the UN Charter and CSCE documents, and the fact that such decisions are not based on equal rights to
self-determination of constituent nations, the resulting transformation of administrative into state borders of
these republics has no legal grounds and their borders cannot be considered in terms of international public
law.").
219
See, e.g., Declaration on Yugoslavia issued by the European Community, the U.S.S.R., and the United
States, 18 October 1991 (reprinted in Trifunovska, p. 356) ("We call upon the Presidents of the
Republics ... to reaffirm their commitment to the peace process and to adhere absolutely to the
commitments they have already made.... Our common desire is to promote a speedy and complete hait to
all military activities as an essential precondition to a settlement."); Declaration on the Situation in
Yugoslavia issued by the European Community, 28 October 1991 (reprinted in Trifunovska, p. 369)
(condemning Serbian efforts to establish a Greater Serbia and stating that unless the Serbian reserve is
lifted "the Conference will proceed with the cooperative republics to obtain a political solution, in the
perspective of recognition of the independence of those republics wishing it, at the end of a negotiating
process conducted in good faith..."); Peace Conference on Yugoslavia: Treaty Provisions for the·
Convention, 1 November 1991 (reprinted in Trifunovska, pp. 370-78) (proposing that new relations
between the republics be based on "Sovereign and independent republics with an international personality
for those that wish it.").
220See Weller, "The International Response", pp. 577-81.
221See Conference on Yugoslavia Arbitration Commission: Opinion I, 29 November 1991, p. 165 [Dossier
No. 233).
222Ibid, p. 165; see also Thürer, Secession, in Max Planck Encyclopedia of Public International Law,
available at http://www.mpepil.com, p. 6 ("The commission thus pointed out the limited role of
international law in the crisis ...").
223
See Conference on Yugoslavia Arbitration Commission: Opinions 4-7, 11 January 1992 (reprinted in 31
I.L.M. 1488, pp. 1501-1517 (1992)).
- 54 - The Commission's failure to consider whether the declarations of independence
were internationally lawful cannot be explained on the basis that the SFRY had already
dissolved. The declarations occurred in June, September, and October of 1991,yet when
the Commission issued its first opinion in November 1991, it clearly still viewed the
SFRYas existing,noting that the SFRY had "retained its internationalpersonality." 224 (lt
was not until July 1992 that the Commission ultimately concluded that the SFRY had
25
dissolved.)2 In the end, the Commission simply viewed the declarations of
independence as factual events, which were part of a series of circumstances that
ultimately led to the final dissolution of the SFRY. As Dugard and Raie have
commented,the opinions of the Badinter Commission
leave no doubt that, according to the Commission, the SFRY was still in
existence on the date of the (reaffirmed) proclamations of independence
by Croatia and Slovenia on 8 October 1991.Therefore, the acts by Croatia
and Slovenia, first in June 1991 and later in October 1991, set in motion
the process of dismemberment of the SFRY, which eventually culminated
in the latter's extinction. Accordingly, the proclamations of independence
of these two republics - and also that of Macedonia on 17 September
1991, which was, as in the case of Slovenia, subsequently acquiesced in
by the SFRY - must be seen as acts of secession which, in combination
226
with other factors, led to the dissolution of the SFRY.
This recent State practice in the specific context of the former Yugoslavia
confirms that declarations of independence have not been viewed as regulated by or
inconsistent with international law. To the contrary, the international community
regarded such occurrences as facts, by themselves neither authorized nor prohibited by
nor subjectto international law.
224Conference on Yugoslavia Arbitration Commission: Opinion l, 29 November 1991,p. 165 [Dossier No.
233].
225 See Conference on Yugoslavia Arbitration Commission: Opinion 8, 4 July 1992 (reprinted in
International Law Reports, Vol. 92, 1993,pp. 199,202) [Dossier No. 235] ("[T]he process of dissolution of
the SFRY referred to in Opinion 1 of 29 November 1991 is now complete and ... the SFRY no longer
exists.").
226See Dugard & Raie, "The role of recognition in the law and practice of secession", in Secession:
International Law Perspectives, 129 (emphasis in original); see also Cassese, Self-Determination of
Peoples: A Legal Reappraisal, p. 270 (1995) (noting that Slovenia, Croatia, Macedonia, and Bosnia and
Herzegovina achieved independence in a process that occurred "beyond the regulation of the existing body
oflaws").
- 55 - Section III.The Situation May Differ When Declarations Of Independence
Are Conjoined With Actions That Themselves Violate International Law
Although declarations of independence do not by themselves violate international
law, they are at times conjoined with other events or acts in combination with which they
might be characterized as serions international law violations. This is an important
distinction. For exampie, where a declaration of independence is adopted in conjunction
with an effort to establish an apartheid regime-which would amount to a serions
violation of a peremptory norm of international law2 2-declarations of independence
have been characterized as unlawful. Thus, the United Nations Security Council adopted
a resolution that condemned the "usurpation of power" by the white supremacist leader of
the Southern Rhodesian govemment, Ian Smith, and stated the Security Council' s view
228
that his govemment's declaration of independence had "no legal validity." Even in
that case, however, the Security Council characterized the declaration of independence as
"legally invalid," rather than proclaiming that the declaration itself was a violation of
229
international law. Thus, it is possible to view this condemnation as focused on the
legal consequences of the declaration rather than the legality of the act of declaring
independence as such. In any event, as discussed in the next section, Kosovo' s
declaration of independence was not conjoined with any such violation of international
law.
Section IV. Kosovo's Declaration Of Independence
Is In Accordance With International Law
Kosovo's declaration of independence addressed a variety of issues in addition
to independence itself, but there is nothing in these other provisions that is not "in
accordance with international law." To the contrary, the provisions of Kosovo's
declaration of independence, including notably its emphasis on the protection of human
rights for the members of all communities within Kosovo, are consistent with the highest
international human rights protections. As the Secretary-General's Special Representative
indicated at the time, the declaration of independence "committed Kosovo to continuing
227See, e.g., Crawford, Fourth Report on State Responsibility, A/CN.4/517, 2 April 2001, para. 41.
228
Security Council resolution 217 (1965), S/RES/217.
229 th
Ibid.; see a/so Security Council Official Records, 1258 meeting, S/PV.1258, 12 November 1965, para.
19 (Statement by the Representative of Uruguay) ("The declaration of independence does not shock us
because it is unilateral; it shocks us, fundamentally, because it is made by a racist minority. Throughout
history declarations of independence have always been unilateral acts. The declaration we are considering
is therefore not evil because it is unilateral; it is evil because it has been made by a racist minority to
oppress and coerce a huge majority... Therefore, we point out that the legal aspect of the condemnation of
the declaration arises, not from the fact that the declaration was made unilaterally, but from the fact that it
was made by a racist minority in furtherance ofpolitical goal which should be condemned.").
- 56-the implementation of reforms required for European integration, and noted Kosovo's
230
obligation to protect and promote the rights of all communities." The rule that
declarations of independence are simply facts, neither specifically authorized nor
231
prohibitedunder internationallaw,therefore applies in this case.
Among other things, the declaration of independence provided that Kosovo will
be "a democratic, secular and multiethnic republic, guided by the principles of non
discrimination and equal protection under the law." 232 Through the declaration of
independence, Kosovo "fully accept[ed] the obligations for Kosovo contained in the
Ahtisaari Plan, and welcome[d] the framework it proposes for the years ahead." 233 It
committed Kosovo's leaders to adopt a Constitution-which they subsequently
adopted-"that enshrines our commitment to respect the human rights and fundamental
freedoms of all our citizens, particularly as defined in the European Convention on
234
Human Rights." The importance of reaching out to the members of all Kosovo's
communities, including in particular the Serb community, is at the core of the Ahtisaari
Plan. lt was emphasized not just in the declaration of independence itself but virtually
continuouslyin the political events and speeches surroundingthe Declaration, including
specifically at the session at which the declaration of independencewas adopted, 235 and
230
See Report of the Secretary-General on the United Nations lnterim Administration Mission in Kosovo,
S/2008/211, 28 March 2008, Annex 1,para. 2 [DossierNo. 86].
231
The text of the question referred to the Court refers to a declaration of independence "by the Provisional
Institutions of Self-Government of Kosovo." The wording suggests the possibility that the authors of the
question may be seeking to establish that the declaration was unlawful not for substantive reasons-this
to say, not because it would have been unlawful for Kosovo to declare independence as such-but because
those declaring independence were acting as the Provisional Institutions of Self-Govemment and yet lacked
a formai grant of positive authority from the SRSG to adopt the declaration. Such an argument would be
meritless. As described in Section VII of chapter V, the SRSG-the person whose authorization would be
lacking under this theory--did not, in fact, object to the adoption of the declaration of independence.
Beyond that, the declaration's own first paragraph makes clear that it was intended as an expression of the
''will of the people", not the exercise of a formai grant of authority from UNMIK. Indeed, if it were
seriously contended that the declaration of independence was unlawful simply because it was issued by the
"PISG" rather than by a body unrelated to the institutions of self-government created through the UN
administration, that technical flaw could easily have been remedied by convening a new constituent body
for the purpose of "re-declaring" independence.
232
Declaration of Independence, para. 1 [Dossier No. 192].
233Ibid,para. 3.
234Ibid, para. 4.
235See, e.g., Speech ofHashim Thaçi, 17 February 2008:
On this historical day, honorable assembly members, I wish to reaffirrn our political will to create
the necessary conditions for respecting and protecting the communities and for further improving
relations between them in Kosovo....
Our commitments will be embodied in three main elements:
- 57 -in the laws that have been adopted subsequently by Kosovo m furtherance of the
provisions of the Ahtisaari Plan.
The declaration of independence also welcomed the continued support of the
international community for Kosovo' s development through international presences
established in Kosovo on the basis of UN Security Council Resolution 1244; invited "an
international civil presence to supervise our implementation of the Ahtisaari Plan, and a
European Union-led rule of law mission"; welcomed KFOR's continued support;
committed to "cooperate fully with these presences to ensure Kosovo's future peace,
prosperity and stability"; expressed its gratitude for the work of the United Nations in
building democratic institutions after the 1999 conflict; and committed "to working
constructively with the United Nations as it continues its work in the period ahead." 236
The document reflects the intention of the new Kosovo state "to take all steps
necessary to facilitate full membership in the European Union as soon as feasible and
237
implement the reforms required for European and Euro-Atlantic integration." Kosovo
declared "its commitment to peace and stability in our region" and committed itself to
238
"work together with our neighbours to advance a common European future." Also of
particular note, the declaration expressed Kosovo' s desire to establish good relations with
The first, a strong and irreversible guarantee by law of equal rights of ail communities in Kosovo.
The second, establishment of permanent mechanisms to guarantee that the communities play a
complete and active role in developing the future of our country, and
The third, is our responsibility to take effective and immediate measures to ensure that our
.commitments result with positive change, for ail those living in Kosovo, especially members of
minority communities. . . . There is no place for fear, discrimination or unequal treatment for
anyone. We are building Kosovo with equal rights for everyone, with equal opportunities for
everyone.
Transcript of Special Plenary Session, 17 February 2008, pp. 5-6 [Annex2].ee a/so ibid.p. 9 (Statement
of President Sejdiu) (speaking in Serbian):
I would once again like to take this solemn opportunity to again invite ail citizens of Kosovo,
above ail the citizens of the Serb community in Kosovo, to give their contribution in a common
building of a European Kosovo, where each citizen will feel like home. Kosovo is equally your
home and your homeland. Your rights and the rights of members of other communities in an
independent Kosovo will be a continuous obligation of our state institutions. Serb cultural and
religious heritage will be entirely protected. Your ethnie and language identity will be entirely
honored, and we will achieve this by working together in our daily lives and in the institutions of
Kosovo.
Ibid, p. 9.
236Declaration oflndependence, paras. 5, 7 [DossierNo. 192].
237
Ibid, para. 6.
238
Ibid, para. 10.
- 58 -its neighbors, including specifically Serbia, noting that it shares "deep historical,
239
commercial and social ties that we seek to develop further in the near future." The
declaration stated: "We shall continue our efforts to contribute to relations of friendship
and cooperation with the Republic of Serbia, while promoting reconciliation among our
240
people."
Kosovo also accepted "the duty of responsible membership in the international
comrnunity"; committed itself to "abide by the principles of the United Nations Charter,
the Helsinki Final Act, other acts of the Organization on Security and Cooperation in
Europe, and the international legal obligations and principles of international comity that
mark the relations among states"; and undertook to "refrain from the threat or use of
241
force in any manner inconsistent with the purposes of the United Nations." It
undertook to abide by international obligations concluded by UNMIK on its behalf, as
well as relevanttreaty obligations of the former Socialist Federal Republic of Yugoslavia,
and to cooperate fully with the International Criminal Tribunal for the former
Yugoslavia. 242
In its final paragraph, the declaration stated:
We hereby affirm, clearly, specifically, and irrevocably, that Kosovo shall
be legally bound to comply with the provisions contained in this
Declaration, including, especially, the obligations for it under the Ahtisaari
Plan. In all of these matters, we shall act consistent with principles of
international law and resolutions of the Security Council of the United
Nations, including resolution 1244 (1999). We declare publicly that all
states are entitled to rely upon this declaration, and appeal to them to
extend tous their support and friendship. 243
This final paragraph of the declaration of independence clearly represents
Kosovo's intent that its declarations be regarded as binding obligations under
internationallaw. This is consistent with the approach set forth in decisions of this Court
and the "Guiding Principles applicable to unilateral declarations of States capable of
creating legal obligations" that were adopted by the International Law Commission in
239Declarationoflndependence,para. 11.
240
Ibid
241
Ib~', para.8.
242Ibid, para.9.
243Ibid.,para. 12.
- 59 - 244
2006. As this Court is aware, the International Law Commission concluded that,
depending on the circumstances, states may by virtue of unilateral declarations bind
themselves to certain courses of action as a matter of international law, and adopted the
Guidelines to assist those attempting to formulate such declarations. This is particularly
important in light of the language in paragraph 1 of those Guiding Principles, which
provides that:
[T]he binding character of such [unilateral] declarations is based on good
faith; States concerned may then take them into consideration and rely on
them; such 245tes are entitled to require that such obligations be
respected.
A suggestion that the declaration of independence is not in accordance with
international law could thus affect the viability of the commitments made by Kosovo on a
broad range of important and sensitive issues beyond the issue of independence, and
could threaten the ability of the international community to rely on the assurances
contained in it, including the extent to which Kosovo is obligated to implement the
provisions aimed at guaranteeingprotections for members of its minority communities. 246
Appropriately in light of Kosovo's own history, the declaration of independence ties the
issue of independence to the protection of minorities, much in the way that the Ahtisaari
Report consideredthese principles as the basic foundation for a supervised independence.
Other states, including the United States, accordingly viewed their support for the
declaration of independence as consistent with the Ahtisaari approach and the overall
objective of ensuring the protection of members of minority communities in a new state,
while codifying and cementing support for such protections from the govemment. 247
244See Report of the International Law Commission, Fifty-eighth session, A/61/10, 1 May-9 June and 3
July-11 August 2006, Supplement No. 10, para. 176; Nuclear Tests (Austra/ia v. France; New Zea/and v.
France), I.C.J. Reports 1974, p. 252 at pp. 267-268, paras. 43, 46; Case concerning the Frontier Dispute,
Judgment, J.C.J.Reports 1986, p. 554 at pp. 573-574, para. 39.
245
Report of the International Law Commission, Fifty-eighth session, A/61/10, 1May-9 June and 3 July-11
August 2006, Supplement No. 10.
246
In this regard, one of the effects of Serbia's campaign to prevent the recognition of Kosovo is that it
hinders Kosovo's ability to join the Council of Europe and therefore to become a state party to the
European Convention on Human Rights. Although Kosovo is not formally a party to the Convention, it has
legally bound itself under international law to implement the provisions of the Convention through its
Declaration of lndependence. However, individuals within Kosovo, including ethnie Serbs, are prevented
from bringing cases against Kosovo before the European Court of Human Rights because Kosovo is not a
party to the Convention, which undermines the ability of individuals within Kosovo from fully availing
themselves of the protections offered by the European human rights system.
247Letter of President Bush to President Sejdiu, 18 February 2008, Weekly Compilation of Presidential
Documents, Volume 44, No. 7, 25 February 2008, p. 236, available at:
http://fdsys.gpo.gov/fdsys/pkg/WCPD-2008-02-25/pdf/WCPD-2008-02-25-Pg236
.pdf.
- 60 - CHAPTERV
THE DECLARATION OF INDEPENDENCE IS
IN ACCORDANCE WITH RESOLUTION 1244
As explained in this Chapter, Kosovo's declaration of independence in February
2008 was in accordance with Security Council Resolution 1244.
Chapter II described how Resolution 1244was an effortboth to address the most
urgent and pressing needs in Kosovo and to providean environmentin whichKosovocould
developpolitically,free of coercionfrom Belgrade.In adoptingthe resolution,the Security
Councilauthorizedestablishmentof a specialregime to deal wifüthe unique features of the
Kosovo situation,in recognitionthat Belgrade's actions over the previous decade and their
consequencesthreatenedinternationalpeaceand security. Kosovo would remain formally a
part of the FRY for an interim period, but Kosovo's status in the longer term would
remain open, to be determined later. Resolution 1244 anticipated that independence
might be most appropriate for Kosovo's future status and did not seek to preclude it.
This conclusion is supported by the overall approach of the resolution, the language used
in referring to the Rambouillet Accords ~d the territorial integrity of the FRY, the long
history of negotiations between Serbia and Kosovo that had been facilitated by the
international community, the nature of the future status process that was described in the
resolution itself, and the manner in which the United Nations administered that process.
By the time that Kosovo declared independence, there was agreement that the
status quo was unsustainable and that the future status process, led by the Secretary
General's Special Envoy, former Finnish President Martti Ahtisaari, had run its course.
Ahtisaari had concluded that "the only viable option for Kosovo is independence" and
that "Kosovo'248tatus should be independence, supervised by the international
community." The Secretary-General specifically supported Ahtisaari's
recommendation. 249 Even then, another round of negotiations, facilitated by a EU
Russian-U.S. "Troïka," was conducted, providing further confirmation of the Special
Envoy's view that "the negotiations' potential to produce any mutually agreeable
outcome on Kosovo's status is exhausted." 250 As explained in more detail below, it was
only after all this-with no viable alternatives left and facing an unsustainable status
quo-that Kosovo declared independence in February 2008.
248
Letter dated 26 March 2007 from the Secretary-General addressed to the President of the Security
Council, S/2007/168, 26 March 20p.2 [Dossier No. 203].
249Ibid.p.1.
250Ibid., p. 2.
- 61- Section I. The Fondamental Approach OfResolution 1244 Was
To Protect The People Of Kosovo, Create An Environment In Which Kosovo
Could Develop Politically And, Subsequently, Facilitate A Process To Seek
A Resolution of Kosovo's Future Status
The fundamental approach of Resolution 1244 was to protect the people of
Kosovo, create an environment in which Kosovo could develop politically and, at a later
stage, facilitate a process designed to determine Kosovo's future status. Four key
elements of this approach are apparent from the text of the resolution itself.
First, paragraph 1 sets forth the threshold decision made by the Council in
Resolution 1244 that "a political solution to the Kosovo crisis shall be based on the
general principles in annex 1and as further elaborated in the principles and other required
elements in annex 2." Annex 1 contained the Statement by the Chairman of the meeting
of the G-8 Foreign Ministers of 6 May 1999; Annex 2 contained the Ahtisaari
Chernomyrdin principles that were presented to, and accepted by, the govemment of the
Federal Republic of Yugoslavia as a basis for ending the immediate crisis in Kosovo.
Both Annex 1 and Annex 2 addressed the need for arrangements under which Kosovo
would be protected against rule from Belgrade for an interim period. The resolution
demanded the full cooperation of the Federal Republic of Yugoslavia in the rapid
implementation of the principles elaborated in the two annexes, and demanded in
particular that the FRY "put an immediate and verifiable end to violence and repression
in Kosovo." 251
Sec01ul, the resolution authorized the establishment of an international security
presenceto establisha safeenvironmentfor ail peoplein Kosovo. The internationalsecurity
presencewas establishedas the KosovoForce,or "KFOR". Paragraph9 of the resolutionset
outelementsofKFOR's mandate,includingitsresponsibilitiesto deterrenewedhostilitiesand
to ensurethe withdrawalandpreventthe returnof the military,police and paramilitaryforces
of the Federal Republic of Yugoslavia Thus, KFOR's responsibilities were directed at
excludingBelgradefromexercisingfurthergovemmentalauthorityin Kosovo.
Third,paragraph 10 of the resolution authorized the Secretary-General, with the
assistance of relevant international organizations, to establish an international civil
presence that could provide interim administration-in substitution of the FRY and
Serbian authority that was required to withdraw-and, subsequently, to establish
institutions of democratic self-government for Kosovo. Although the resolution gave the
Secretary-General broad discretion regarding how to organize the international civil
251
SecurityCouncilresolution1244(1999),S/RES/1244,paras.2-3 [DossierNo. 34].
-62 -presence, the main responsibilities of the civil presence are set out in paragraph 11 of 252
resolution. The Secretary-General responded at the time by establishing UNMIK.
Fourth, the responsibilitiesof the internationalcivil presence included "facilitating a
political process designed to determine Kosovo' s future status, taking into account the
Rambouillet Accords." 253 Resolution 1244 left the process undefined except to
characterize it as "political," but this language made clear the expectation that Kosovo's
autonomous status was for an interim period, and would at a subsequent point be
superseded by a "future status."
In sum, Resolution 1244described "an interim administrationfor Kosovo" that was
"a part of an international civil presence under which the peofsle of Kosovo can enjoy
54
substantialautonomy within the Federal Republic of Yugoslavia." To that end, the state of
a:ffaircontemplatedunder theresolutionwas one in which:
• The international civil presence would assist the people of Kosovo to develop their
own political institutions in an environment in which Kosovo would be free of the
influenceofthe FRY;
• Belgrade's governing authority would be displaced by the international civil
presence,and by the democraticinstitutionsof self-governmentthat the civil presence
would create to assist the people of Kosovo to develop and to which it would
progressivelytransferresponsibilities;
• KFOR would prevent the retum of Belgrade's security forces and apparatus, and
provide security intheir stead;
• Kosovo would as a formal matter remain "within the Federal Republic of
Yugoslavia,"but the period of time during which this would be the case would be an
"interim"period;
• The international civil presence would facilitate "a political process designed to
determine Kosovo's future status, taking into account the Rambouillet accords";
and
• There was no requirementthat the future statusbe "agreed," only an authorization for
the internationalcivilpresenceto facilitateapolitical process.
252See Report of the Secretary-General Pursuant to Paragraph 10 of Security Council Resolution 1244,
S/1999/672, 12 June 1999 [Dossier No. 35] and Report of the Secretary-General on the United Nations
Interim Administration MissioinKosovo, S/1999/779, 12July 1999 [Dossier No. 37].
253Security Council resolution 1244(1999), S/RES/1244, para. ll(e) [Dossier No. 34].
254Ibid,para. 10.
- 63 - Section II. The References To The Rambouillet Accords In Resolution 1244
Underscore That Independence Was Recognized As A Legitimate And Possible
Outcome And That Serbia Had No Veto Over The Political Process
The references to the Rambouillet Accords in paragraph 11 of Resolution 1244
were both intentional and important. When examined in light of the relevant prior
negotiations between Pristina and Belgrade, they support the conclusion that
independence was recognized as a possible future status for Kosovo, and that the future
status of Kosovo did not require the FRY's consent.
A. THE REFERENCES IN RESOLUTION 1244 TO THE RAMBOUILLET ACCORDS CONFIRM
.THAT INDEPENDENCE w AS A POSSIBLE FUTURE STATUS FOR Kosovo
The two references to the Rambouillet Accords ("Rambouillet Accords" or
"Rambouillet") in the body of Resolution 1244 confirm that independence was
contemplatedas a possible outcome of the future status process.
1. Rambouillet reference in paragraph ll(a). The first reference to the
Rambouillet Accords is contained in paragraph 1l(a) of the resolution and establishes
that, in promoting the establishment of substantial autonomy and self-government in
Kosovo, the international civil presence must "tak[e] full account" of the Rambouillet
255
Accords. This language indicated that the arrangements put in place during the interim
period would involve the kind of autonomy contained in the provisions for goveming the
interim period in the Rambouillet Accords; and furthermore that those arrangements
should be undertaken with an eye toward the arrangements for future status suggested
under Rambouillet. As described in Chapter II, the arrangements put in place during the
interim period involved the development of Kosovo' s own governmental institutions and
the progressive transfer of authority to these institutions, and thus prepared Kosovo well
for the independence that was to corne. On the day after Kosovo declared independence,
the Secretary-General of the United Nations summarized the situation in this way:
The United Nations has been instrumental in moving Kosovo away from
the humanitarian and emergency phase to peace consolidation and the
establishment of functional local self-government and administration.
Since 1999, the United Nations has overseen the creation and
consolidation of Provisional Institutions of Self-Government at the central
and municipal levels, with minority representation. The United Nations
has created a functionaljustice system and a multi-ethnic police force, and
has successfully organized and overseen five elections. Kosovo now has a
255Security Council resolution 1244 (1999), S/RES/1244, para. ll(a) and ND.e34].Dossier
-64- vibrant and diversified political party scene. Freedom of movement has
improved, and inter-ethnie crimes have been reduced. Kosovo has made
considerable progress through the years on the implementation of
standards, and the standards implementation process is now fully
integrated into the European approximation process.256
2. Rambouillet reference in paragraph ll(e). The second reference to
Rambouillet is in paragraph 1l(e) of Resolution 1244, and established the requirement
that the international civil presence take account of the Rambouillet Accords in
facilitating a political process designed to determine Kosovo's future status. This
reference further reinforces the conclusion that independence was a possible outcome
under Resolution 1244. While, as noted in Chapter Il, the provisions of the Rambouillet
Accords addressing the process for determining Kosovo's future status did not prejudge
the outcome of that process, they had identified the bases upon which a final settlement
257
for Kosovo would be determined, the first of which was the "will of the people."
Given the aspirations toward independence reflected by Kosovo's elected representatives
in July 1990 and September 1991, and the referendum in October 1991, as well as the
tragic events that took place during the remainder of the decade, the implication that the
phrase "will of the people" potentially encompassed independence was unmistakable.
Thus, just as independence would have been a possible outcome under the Rambouillet
Accords, so too was this anticipated under Resolution 1244.
B. THE REFERENCESIN RESOLUTION 1244 To THE RAMBOUILLETACCORDS ALso
CONFIRMTHAT THE ÜUTCOME Dm Nor REQUIRE THE FRY's CONSENT
The references to the Rambouillet Accords in Resolution 1244 also confirm that
the consent of the FRY was not a prerequisite in order for future status to betermined.
This is evident not only from the text of Rambouillet itself, but by comparing the
Rambouillet text with the texts of the four drafts of the earlier "Hill Agreement"
(described above in Chapter Il) upon which the relevant provisions of Rambouillet were
modeled.
The Rambouillet Accords and each draft of the Hill Agreement contemplated an
interim period in which Kosovo would have some version of autonomous status, and each
contained provisions for changes to that status at the end of the interim period. Under the
first three drafts of the Hill Agreement, however, FRY agreement would have been
required in order to make changes at the end of the interim period. (The relevant
256SecurityCouncil,provisionalverbatimrecord,sixty-thirdyear, 5839thmeeting,S/18February
2008,p. 3 [DossierNo. 119].
257
SeeChapterIl, SectionIsupra.
- 65 -language was placed in brackets in the fourth draft of the Hill Agreement.) In sharp
contrast, no similar requirement for Belgrade's approval would have been required under
the Rambouillet Accords. Like the Rambouillet Accords, Resolution 1244 similarly
included no requirement for Belgrade's approval. This is reflected both in the absence of
provisions of this type in the text of Resolution 1244, and by the reference to the
Rambouillet approach in the political process provision, paragraph ll(e). To illustrate
this more clearly, the following discussion considers the relevant provisions of the draft
Hill Agreements and the Rambouillet Accords in more detail.
Chapter 8(1) of the Rambouillet Accords contained provisions related to future
status. It provided:
1.Amendments to this Agreement shall be adopted by agreement of all the
Parties, except as otherwise provided by Article X of Chapter 1.
2. Each Party may propose amendments at any time and will consider and
consult with the other Parties with regard to proposed amendments.
3. Three years after the entry into force of this Agreement, an international
meeting shall be convened to determine a mechanism for a final settlement
for Kosovo, on the basis of the will of the people, opinions of relevant
authorities, each Party's efforts regarding the implementation of this
Agreement, and the Helsinki Final Act, and to undertake a comprehensive
assessment of the implementation of this Agreement and to consider
258
proposais by any Party for additional measures.
Chapter 8(1) was modeled on the draft Hill Agreements but differed significantly in that
it omitted the provision under which FRY consent would have been needed for changes
in Kosovo' s status following the interim period. 259
258
Rambouillet Accords, S/1999/648, 18February 1999,p. 85 [Dossier No. 30].
259
The wording of paragraphs 1 and 2 of Article VIII of the first draft Hill Agreement makes apparent that
Chapter 8(1) of Rambouillet was modeled upon it:
1.Amendments to the Agreement shall be adopted by signature of the parties.
2. Each signatory may propose amendments at any time and will consider and consult with the
other with regard to proposed amendments.
First Hill Proposai, 1 October 1998 (reprinted in Krieger, p. 155). Subsequent versions of the draft Hill
Agreements, containing similar language, were dated 1 November 1999 and 2 December 1999, and are
reproduced in Krieger at pages 158 and 169, respectively. The Final Hill Proposai, also containing similar
language, was dated 27 January 1999, and is reproduced in Krieger at page 176. Under these provisions,
the agreement of the parties would be needed to modify the arrangements applicableing the three-year
interim period.
ln contrast, the third paragraph of Chapter 8(1) of the Rambouillet Accords differed from the third
paragraph contained in the Hill Agreements in addressing what would happen at the end of the interim
period. Under the first three drafts of the Hill Agreement, there was to be an assessment at the end of the
-66- For its part, Kosovo had objeeted at Rambouillet that the earlier approach.of the
draft Hill Agreements-under which FRY consent would have been required-was
unacceptable. Kosovo's position had been that, in light of their fundamental differences
over the question of Kosovo's govemance, vesting each party with a veto at the end of
the three-year period precluded any change, in effect rendering the arrangements
permanent, and belying the proposition that the agreement was in fact of an interim
nature. Kosovo therefore issued a statement that talks should proceed on the basis that
Kosovo should be able to decide for itself on its future status. 260 Paragraph 10 of its
statementcontained its counter-proposal:
At the conclusion of the interimperiod, the future status of Kosovo will be
determined or con:firmed in accordance with the principle of self
determination of the people of the Republic of Kosovo. A referendum will
be conducted with international involvement.
By the time of the negotiations at Rambouillet, it was clear that Kosovo would not
agree to a provision under which Belgrade would have an ability to veto proposed
changes to Kosovo's status at the end of the interim period. 261 Thus, Rambouillet
dropped the language providing that further steps "will require mutual agreement for
adoption." In its place, it left the process for determining Kosovo's future status open
ended, describing factors that should be taken into account in a decision on future status,
but not addressing the substance of the outcome. There was no doubt that this approach
was inconsistent with the FRY's insistence that it should have a veto over any future
status arrangements. Indeed, the FRY/Serbian delegation sought to re-insert the language
from the Hill Agreements requiring their consent, but they were unsuccessful in their
262
attemptsto do so.
three-year period. At that point, as under Rambouillet, either side could put forward proposais for
additional steps. Unlike under Rambouillet, however, the Hill Agreements also provided that such
proposais for additional steps "will require mutual agreement for adoption." First Hill Proposai, l
October 1998, para. 3 of Article VIII (reprinted in Krieger, p. 158); Revised Hill Proposai, 1 November
1999, para. 3 of Article IX (reprinted in Krieger, p. 165); and Revised Hill Proposai, 2 December 1998,
para. 3 of Article XI (reprinted in Krieger, p. 175). The draft Hill Agreements thus specified a right of veto
for Belgrade over any proposais for modification ofKosovo's status at the end of the interim period as well
as during it. The Rambouillet Accords did not.
260See Statement on Fundamental Principles for a Settlement of the Kosovo Question Issued by the
Government of the Republic of Kosovo, 3 November 1998,para. 10(reprinted in Krieger, pp. 165-66).
261Ibid The evolution to the Rambouillet approach had begun in the fourth draft of the Hill Agreement of
29 January 1999. That draft contained language, in brackets, stating that the assessment of whether to
implementproposais for additional steps at the end of the three-year period would be made "by a procedure
to be determined taking into account the Parties' roles in and compliance with this Agreement."nal
Hill Proposai, 27 January 1999,Article X(3) (reprinted in Krieger, pp. 176, 181).
262
See Federal Republic of Yugoslavia Revised Draft Agreement, 15 March 1999, proposed changes to
-67 - This point is noteworthy not because of anything it says about the relative merits
of the positions taken by Belgrade and Pristina during the negotiations, but rather because
it highlights that the omission in the Rambouillet Accords (compared with the earlier
draft Hill Agreements) of any reference to a requirement for Belgrade's consent to
changes in Kosovo's status at the end of the interim period was deliberate and highly
significant. Thus, when Resolution 1244provided that the Rambouillet Accords shall be
taken into account in the status process that the international civil presence was mandated
to facilitate, it referred to arrangements that allowed for the possibility of a future status
outcome that did not have Belgrade's consent.
In the final analysis, to the extent Resolution 1244 speaks to future status, it
foresees that there will be a process, it authorizes the international civil presence to
facilitate that process, and it recognizes that the process will be political in nature. The
reference to the Rambouillet Accords in Resolution 1244, and the background of the
Accords, underscore that the result of the future status process was left open and that its
outcome was not made dependent upon the consent of Belgrade.
Section III. The Qualified Reference In Resolution 1244 To The
'Territorial Integrity' Of The FRY Further Underscores That
lndependence Was Seen As A Legitimate And Possible Outcome
Preambular paragraph 10 of Resolution 1244 reaffirmed the commitment of UN
Member States "to the sovereignty and territorial integrity of the Federal Republic of
Yugoslavia and the other States of the region, as set out in the Helsinki Final Act and
annex 2." The manner in which this language is framed underscores that the Security
Council was not requiring that the then-existing borders of the FRY were forever fixed,
regardless of other legal or political considerations or processes. Rather, the resolution
was drafted to reflect that independence following the interim period was a possible
outcome, and that territorial integrity needed to be viewed and understood in the totality.
of the circumstances surroundingthe situation in Kosovo. 263
Chapter 8, Article 1(reprinted in Crisis, pp. 480, 489-90).
263
To be clear, the United States recognizes that preambular paragraph 10 is not cast in the form of a
decision of the Security Council that would create binding legal obligations for member states under Article
25 of the Charter of the United Nations. The language is nevertheless suggestive that the Council
understood that Kosovo was for the time being, but might well not end up as, part of the FRY, and that
there were many principles and factors in play that would inevitably bear on Kosovo's final status.
- 68 - A. PRINCIPLEÜ SFTERRITORIAIL NTEGRITY Do NOTPRECLUDE
THEEMERGENCO EFNEWSTATES ONTHETERRITORY OFEXISTING STATES
The principle that states should respect the sovereignty and territorial integrity of
other states is axiomatic and applies to all states. The UN Charter, for example, addresses
the issue of territorial integrity in Article 2(4), stating that: "All Members shall refrain in
their international relations from the threat or use of force against the territorial integrity
or political independence of any state, or in any other manner inconsistent with the
Purposes of the United Nations." Under Article 2(1), "the Organization is based on the
principle of the sovereign equality of all members." But the fact that these principles are
axiomatic does not preclude entities from seeking to emerge or actually emerging as new
states on the territory of the original state.
Inthe early 1990s, authorities in Belgrade made arguments that the emergence of
new states on the territory of former Yugoslavia violated the principle of territorial
integrity.The SFRY asserted, for example, that the declarations of independence by
Slovenia and Croatia in 1991 "constitute a flagrant violation of the territorial integrity of
the Socialist Federal Republic of Yugoslavia" and that the SFRY "will consider every
attempt to recognize these acts of Slovenia and Croatia as . . . directed against its
265
international subjectivity and territorial integrity." assertions were unavailing.
Like every other state, the SFRY was entitled to respect for its sovereignty and territorial
integrity. But standing by itself, that entitlement no more meant that international law
prohibited the emergence of new states on the territory of the SFRY in the early 1990s
than it precluded the emergence of a new state on the territory of the FRY thereafter.
B.DIFFERENCEB SETWEEN THEREFERENCE To TERRITORIAIL NTEGRITY
INRESOLUTION 1244ANDINPREVIOUK Sosovo RESOLUTION USNDERSCORT EHAT
INDEPENDENCE WASCONSIDEREA DLEGITIMATA ENDPOSSIBLE ÜUTC0ME
In the particular case of Resolution 1244, whatever meaning might otherwise be
attributed to references to territorial integrity, the wording of preambular paragraph 10
underscores that eventual independence for Kosovo was considered a legitimate and
possible outcome.
264By its terms, preambular paragraph 10 refers to the commitment "of ail Member States." lt is not clear
how that could be relevant to the question that has been referred to the Court in this case, namely whether
Kosovo-which is not a Member State-actedin accordancwith international law in declaring
independence.
265Assessment and Positions of the SFRY Presidency Conceming the Proclamations of the Independence
of the Republic ofCroatia and Slovenia, Belgrade, 11 October 1991, paras. 1-2 (reprinted in Trifunovska,
pp. 353-54).
- 69- The reference to territorial integrity in Resolution 1244is tellingly different from
the resolutions that preceded it. Resolution 1244 followed a series of Security Council
resolutions regarding the political situation in Kosovo in the period preceding the 1999
military campaign: Resolution 1160 (31 March 1998), Resolution 1199 (23 September
1998), and Resolution 1203 (24 October 1998). Each of these resolutions contained a
preambular paragraph that used identical language to "affirm" or "reaffirm" "the
commitment of all Member States to the sovereignty and territorial integrity of the
FederalRepublicof Yu~oslavia." 266
In contrast,preambular paragraph 10of Resolution 1244reads as follows:
Reaffirming the commitment of all Member States to the sovereignty and
territorial integrity of the Federal Republic of Yugoslavia and the other
States of the region, as set out in the Helsinki Final Act and annex 2
(emphasis added).
Thus, unlike the language that appeared in the earlier resolutions, preambular
paragraph 10 speaks of the sovereignty and territorial integrity of the FRY as set out in
the two referenced documents - that is, as set out in the Helsinki Final Act and Annex 2
of the resolution. As explained in greater detail below, the reference to Annex 2
underscored that the Council was reaffirming the FRY's territorial integrity only with
respect to the interim period that is the subject of Annex 2. At the same time, the
reference to the Helsinki Final Act indicated that the principle of territorial integrity was
only one of a number of Helsinki principles to be balanced and applied, taking into
accounteach of the other Helsinki principles.
1. The reference to territorial integrity 'as set out in ... Annex 2'. Preambular
paragraph 10 refers to the commitment of all states to the FRY's sovereignty and
territorial integrity "as set out in Annex 2." Annex 2 contains the Ahtisaari
Chernomyrdin principles, agreed to by the SFRY in early June 1999, which paved the
way for the adoption of Resolution 1244. 267 The only part of Annex 2 that refers to
principlesof "sovereignty and territorial integrity" is paragraph 8. Paragraph 8 refers to
266See Security Council resolution 1160 (1998), S/RES/1160, preambular para. 7 [Dossier No. 9); Security
Council resolution 1199 (1998), S/RES/1199, preambular para. 13 [Dossier No. 17]; Security Council
resolution 1203 (1998), S/RES/1203, preambular para. 14 [Dossier No. 20). A further resolution adopted
during the military campaign addressed the humanitarian situation and used similar language "[r]eaffirming
the territorial integrity and sovereignty of ail States in the reSecurity Council resolution 1239
(1999), S/RES/1239, preambular para. 7 [Dossier No. 28). Similar language has also appeared in other
resolutions relating to the countries of the region. e.g.Security Council resolution 1174 (1998),
S/RES/1174,preambular para. 2 and subsequent Bosnia resolutions.
267Annex 2 contained a list of ten principles to which the FRY agreed and that provided the basis for
ending the immediate humanitarian crisis in Kosovo and the ending by NATO of the military campaign.
The list included, for example, "an immediate and verifiable end to violence and repression in Kosovo,"
- 70 - [a] political process towards the establishment of an interim political
framework agreement providing for substantial self-govemment 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, and the dem.ilitarization
of [the Kosovo Liberation Army]. Negotiations between the parties for a
settlement should not delay or disrupt the establishment of democratic
self-goveming institutions. 268
Thus, preambular paragraph 10 speaks of taking principles of sovereignty and
territorial integrity into account only in the arrangements designed to govem the interim
period. When contrasted with the language in the Kosovo resolutions that the Council
had adopted the previous year, the "as set out in Annex 2" language underscores that the
period referred to was only the interim period. Resolution 1244 thus expressed no
prejudgment as to how the principles of sovereignty and territorial integrity should be
taken into account in future status arrangements.
2. Thereference to territorial integrity 'as set out in the Helsinki Final Act'. At
the same time, the reference to the Helsinki Final Act underscored that the comm.itment
to territorial integrity should not be read in isolation, but rather in a broader context in
which other principles must be given equal consideration, and in which human rights and
other considerations are of particular importance.
The Helsinki Final Act, adopted by 35 states at the meeting of the Conference on
Security and Cooperation in Europe in Helsinki in 1975, dealt with three "baskets" of
issues, related generally to traditional European security issues; cooperation in
economics, science, and technology; and a broad range of human rights matters. The first
basket included a Declaration on Principles Guiding Relations between Participating
States. The declaration elaborated ten principles, including territorial integrity of states
(addressed in Principle IV), as well as principles related to respect for human rights and
fondamental freedoms; equal rights and self-determination of peoples; general provisions
based on the need to promote a stable security environment in Europe; and comm.itments
for states in exercising their sovereign rights to conform with their legal obligations under
international law and implement the provisions of the Helsinki Final Act itself. 269
verifiable withdrawal of Yugoslav security forces, deployment of an international security presence, and
deployment of an internationalilpresence.
268Security Council resolution 1244 (1999), S/RES/1244, para. 8 (emphasis added) [Dossier No. 34].
269 Helsinki Final Act, 1 August 1975, available at: http://www.osce.org/documents/mcs/1975/08/
4044 en.pdf.
- 71 - There are at least two reasons that the placement of the term "territorial integrity"
in the context of the Helsinki Final Act is important in understanding the language of
preambular paragraph 10of Resolution 1244.
First, the inclusion of the language on Helsinki highlighted that the principle of
territorial integrity should be understood not as an absolute, but as one of among many
considerations that were relevant in the approach to Kosovo. The concluding paragraphs
of the Helsinki Declaration on Principles contain specific language tying the various
strands of the Helsinki Final Act together and underscoring their inter-relationship.
Specifically, Principle X provides:
All the principles set forth above are of primary significance and,
accordingly, they will be equally and unreservedly applied, each of them
being interpreted taking into account the others.
The significance of the statement conceming the inter-relationship of the Helsinki
Principles has been recognized and reaffirmed repeatedly in the decades following its
270
adoption. Since its inception, a fundamental tenet of the Helsinki Final Act has 271
remained: "There is no hierarchy of principles and they are all inter-linked." The
270
Thus, the equal status of the principles was also explicitly reaffrrmed by all CSCE participating states in
the concluding document of the Vienna Meeting (1986-1989). Principle (1) of the Concluding Document
ofthat Meeting states:
The participating States reaffirm their commitment to all ten principles of the Final Act's
Declaration on Principles Guiding Relations between participating States and their
determination to respect them and put them into practice. The participating States
reaffrrm that all these principles are of primary significance and, accordingly, will be
equally and unreservedly applied, each of them being interpreted taking into account the
others.
Concluding Document of the Vienna Meeting 1986 of Representatives of the Participating States of the
Conference on Security and Cooperation in Europe, held on the basis of the provisions of the Final Act.
relating to the follow-up to the Conference, 19 January 1989, available at:
http://www.osce.org/documents/mcs/1989/0l/16059 en.pdf. It was also adopted by participating states as
part of an OSCE "Code of Conduct on Politico-Military Aspects of Security" in 1994. Thus, paragraph 7
of the Code ofConduct states:
The participating States recall that the principles of the Helsinki Final Act are all of
primary significance and, accordingly, that they will be equally and unreservedly applied,
each ofthem being interpreted taking into account the others.
Code of Conduct on Politico-Military Aspects of Security, 3 December 1994, OSCE DOC.FSC/1/95,
available at: http://www.osce.org/documents/fsc/1994/12/4270 en.pdf. It is highlighted today in the
"OSCE Handbook" alongside a summary list of the ten principles from the Declaration. See OSCE
Handbook, 2007, p. 3, available at: http://www.osce.org/item/22286.html.
271
Jan Kubis, "Management of Change in a Time of Transition," in proceedings of a conference entitled
"Democracy and Security in the 21stCentury and the Evolving Role of Regional Organizations," sponsored
-72-reference to the Helsinki Final Act thus served to underscore that-whatever one might
otherwise read into the principle of territorial integrity-it must be understood in the
context of other equally important principles.
Second, the reference to the Helsinki Final Act was important because principles
related to human rights lie at the heart of the Helsinki process. 272 Among other things,
the Helsinki Final Act underscored the commitment of participating states
-- to respect human rights and fundamental freedoms for all, without
distinction as to race, sex, language, or religion;
-- to promote and encourage the effective exercise of civil, political,
economic, social, cultural, and other rights and freedoms;
-- to recognize and respect the freedom of the individual to profess and
practice religion, alone or in community with others;
-- to respect the right of persons belonging to national minorities equality
before the law, and to afford them the full opportunity for the actual
enjoyment of human rights and fundamental freedoms; and
-- to recognize the universal significance of human rights and fundamental
freedoms, respect for which is an essential factor for the peace,justice and
well-being necessary to ensure the development of friendly relations and
co-operation among themselves as among ail States.
The human rights provisions of the Helsinki Final Act had particular salience with
respect to the FRY, which had been responsible for vast atrocities directed against ethnie
Albanians in Kosovo. The OSCE had issued numerous reports documenting those
273
atrocities. The FRY had been suspended from participation in the OSCE since 8 July
by the Austrian Center for International Studies in cooperation with the Organization for Security and Co
operation in Europe, 2005, available at: http://www.osce.org/documents/sg/2005/12/17389 en.pdf.
272See T. Buergenthal, D. Shelton, and D. Stewart, International Human Rights (2002), p. 206 (the OSCE
principles and process "gave human rights an important place on the political agenda" of Europe and have
enabled the OSCE to play such a major role "to influence the human rights policies of many of its
nations."). The Conference on Security and Cooperation in Europe (CSCE) was the primary vehicle for
carrying forward the results of the Helsinki Final Act; the CSCE became the Organization for Security and
Cooperation in Europe (OSCE) in 1995. For ease of exposition, the present name of the organization -
OSCE -- is used throughout the text here.
273
See, e.g., "Kosovo/Kosova -- As Seen, As Told" (1999), OSCE report, available at:
http://www.osce.org/publications/odihr/1999/l l/17755 506 en.pdf;ee also CSCE reports cited in
Chapter Il, Section Il.
- 73 - 274
1992, and the FRY had fueled fears that it would consider itself responsible for abiding
by OSCE human rights commitments only "assuming that the membership rights and
275
obligations of [theFRY] are renewed."
The reference to the Helsinki Final Act thus highlighted the central importance of
the human rights situation and the Helsinki human rights principles in Kosovo, affirmed
that the Helsinki principles remained relevant notwithstanding the fact that the FRY had
been suspended from participation in OSCE, and underscored that the reaffirmation of
276
the principle of territorial integrity was not intended to be understood in a vacuum.
Section IV. Resolution 1244 Refers Only To The Territorial Integrity Of
'The Federal Republic Of Yugoslavia', Not To That Of 'Serbia'
Serbia has characterized Resolution 1244 as reaffirming the sovereignty and
territorial integrity of "Serbia". For example, writing to the United Nations Secretary-
274 See OSCE Handbook, p. 14, available at: http://www.osce.org/publications/sg/
2007/10/22286 952 en.pdf. The FRY was not finally admitted to membership until 10 November 2000.
See Organization for Security and Co-Operation in Europe, Vienna Dec/aration on the Role of the OSCE in
South-Eastern Europe, 8 th Meeting of the Ministerial Council, 27-28 November 2000, document
MC.DOC/2/00, para. 1,available at: http://www.osce.org/documents/mcs /2000/11/4170 en.pdf.
275Declaration by Milan Milutinovié, President of the Republic of Serbia on the Political Process Initiated
for Kosovo and Metohija, 11 March 1998 (reprinted in Krieger, p. 123); Letter dated 18 March 1998 from
the Chargé d'affaires, a.i., of the Permanent Representative ofYugoslavia to the United Nations addressed
to the Secretary-General, S/1998/250, Annex, 18March 1998.
276The treatment of territorial integrity in the Declaration on Principles in the Helsinki Final Act, 1August
1975, available at: http://www.osce.org/documents/mcs/1975/08/4044 en.pdf, also underscores that it is
considered as an element of relations among states. Specifically, Principle IV on territorial integrity of
states makes clear that the issue is being addressed in the context of relations between states, as opposed,
for example, to the context of whether there are conditions in which new states can emerge on the territory
of old ones. Principle IV reads as follows:
The participating States will respect the territorial integrity of each of the participating
States.
Accordingly, they will refrain from any action inconsistent with the purposes and
principles of the Charter of the United Nations against the territorial integrity, political
independence or the unity of any participating State, and in particular from any such
action constituting a threat or use of force.
The participating States will likewise refrain from making each other's territory the
object of military occupation or other direct or indirect measures of force in
contravention of international law, or the object of acquisition by means of such measures
or the threat ofthem. No such occupation or acquisition will be recognized as legal.
In addition to being reflected in the language of Principle IV itself, the notion that territorial integrity is an
element ofrelations among states is reflected in the fact that the document of which it is a part is named the
"Declaration on Principles Guiding Relations between Participating States."
-74 -General immediately following Kosovo's declaration of independence on 17 February
2008, Serbian President Tadié asserted that Resolution 1244 "explicitly reaffirms the
sovereignty and territorial integrity of the Republic of Serbia."277 In fact, the reference in
Resolution 1244 is to the sovereignty and territorial integrity of the "Federal Republic of
Yugoslavia,"and the distinction is quite important. As discussed in this section, even if
one assumes arguendo that Resolution 1244 addresses whether Kosovo should remain
within the borders of the "Federal Republic of Yugoslavia", this would not have required
Kosovo to remain inside "Serbia."
1. Theposition of FRY and Serbian leaders throughout the relevant period was
that Kosovo must remain part of Serbia, and notjust part of the FR Y. As described in
Chapter II, Kosovo had a dual status in the period before the break-up of the Socialist
Federal Republic of Yugoslavia. During that period, there had been consistent calls
within Kosovo for republic status -- a status that would match that of Serbia, Bosnia and
Herzegovina, Croatia, Macedonia, Montenegro, and Slovenia in form as well as
substance, under which Kosovo might exist under a common Yugoslav roof. In the late
1990s, a similar idea was discussed in another form: that Kosovo might exist under a
similar common roof, alongside Serbia and Montenegro, as a third republic within the
FRY. This would have been a way to maintain the FRY's extemal borders while
simultaneously acknowledging the fact that it was becoming increasingly untenable for
Kosovo to remain part of Serbia itself.
For their part, FRY and Serbian leaders were insistent in opposing this idea, and
on ensuring that Kosovo must remain part of Serbia itself. They maintained this position
before, during and a:fterthe adoption of Resolution 1244. The Yugoslav govemment and
then-FRY (not Serbian) President Milosevié repeatedly emphasized this distinction,
asserting that the issue was one of Serbia 's borders and of Serbia 's sovereignty, to be
dealt with by the Serbian rather than the federal govemment.
For example, in the period leading to the adoption of the Yugoslav arms embargo
under Security Council resolution 1160, the FRY submitted a "Declaration on the
Political Process in Kosovo and Metohija" by Serbian President Milutinovié avowing that
it was Milutinovié who would be the "guarantor" of talks on a political dialogue on
Kosovo's status, that he would do so "in [his] capacity of President of the Republic of
277Letter dated 17 February 2008 from the Permanent Representative of Serbia to the United Nations
addressed to the Secretary-General with an annexed letter from the Prime Minister of the Republic of
Serbia to the Secretary-General, S/20008/111, 19February 2008 [DossierNo. 202].lso Resolution of
the National Assembly of the Republic of Serbia on the confirmation of the Decision of the Government of
the Republic of Serbia on the annulment of the illegitimate acts of the Provisional Institutions of Self
Government in Kosovo and Metohija conceming the proclamation of unilateral independence, S/2008/260,
18 February 2008, Enclosure 2 [Dossier No. 87] (asserting that "United Nations Security Council
resolution 1244 (1999) explicitly stipulated that Kosovo and Metohija forms an integral part of the
Republieof Serbia").
- 75 -Serbia," and that the agenda of the talks was the status of Kosovo "within the framework
278
of Serbia." As another example, following the adoption of Resolution 1160, FRY
President Milosevié wrote a letterto his colleagues in the Serbian Government,noting his
rejection of the calls in Resolution 1160for international participation in what he ter279
"the problem in Kosovo and Metohija which is an internai issuefor Serbia." In the
debate on the resolution in the Security Council, the Yugoslav Permanent Representative
to the United Nations took specific aim against the idea of keeping Kosovo within the
FRY but not within Serbia as he criticized proposais by some "for solutions to be sought
outside Serbia - or, as they say, within the Federal Republic of Yugoslavia." He
maintained that such a solution "constitutes a violation of the territorial integrity of
280
Serbia."
2. The/ai/ure to includeprovisions in Resolution 1244 referring to Kosovo as
part of Serbia (even for the interim period) was signiflcant and deliberate. The
language of the G-8 principles, the Ahtisaari-Chemomyrdin principles and the body of
Resolution 1244 itself were drafted so as to characterize Kosovo as part of the FRY,
rather than Serbia. FRY and Serbian representatives raised this issue in the discussions
that former President Ahtisaari and former Prime Minister Chemomydrin conducted in
Belgrade in early June 1999 with FRY President Milosevié and Serbian President
Milutinovié. They challenged the idea that the language in the principles would refer to
Kosovo's having substantial autonomy "within the Federal Republic of Yugoslavia," and
not also "within Serbia." They were specifically concemed that "if Montenegro broke
away from Serbia, Kosovo would be in a position to argue that it was independent
278Declaration by Milan Milutinovié, President of the Republic of Serbia on the Political Process Initiated
for Kosovo and Metohija, 11 March 1998 (reprinted in Krieger, p. 123); Letter dated 18 March 1998 from
the Chargé d'affaires a.i. of the Permanent Mission of Yugoslavia to the United Nations addressed to the
Secretary-General, A/53/89, S/1998/250 Annex, 18 March 1998 (emphasis added). See a/so Declaration
of the National Assembly of the Republic ofSerbia, issued at Belgrade on 24 March 1998,A/53/91 Annex,
para. 2 ("The Serbian nation ... shall never agree to endangerment of the rights of the Serbian people, or of
the sovereignty and territorial integrity of Serbia, by anyone").
279Letter dated 2 April 1998 from the President of the FRY to the Presidents of the Republic of Serbia, of
the Serbian Government, and of the Assembly of Serbia, on the Referendum whether or not Foreign
Representatives Should be Involved in Dealing with the Problem of Kosovo, 2 April 1998 (reprinted in
Krieger, p. 137)(emphasis added).
280 th
Security Council, 3868 meeting, S/PV.3868, 31 March 1998, p. 18 [Dossier No. 8]. The distinction
between the FRY and Serbia continued to be observed in the negotiations of the Hill Agreements and the
Rambouillet Accords. Both the draft Hill Agreements and the Rambouillet Accords were structured so that
the FRY and Serbia would have signed as separate parties. Indeed, it has been reported that, to underscore
the lengths to which Belgrade went in insisting on the distinction, the stationery of the FRY/Serb delegation
at Rambouillet referred to the "Delegation of Serbia" to underscore Belgrade's view "that issues
conceming Kosovo would need to be principally addressed by the Serb Republic, according to the
constitutional changes which that entity had brought about unilaterally.". Weller, The Rambouillet
Conference on Kosovo, 75:2 International Affairs 211, at 226 (1999).
-76-because the Federal Republic of Yugoslavia no longer existed." 281 In the end, this is
precisely the situation that unfolded.
3. The issue took on added signijicance as negotiations began between Serbia
and Montenegro to reconstitute the FRY into a new "State Union." There were further
discussions related to this issue after the adoption of Resolution 1244, particularly in the
period of negotiations between Serbia and Montenegro to reconstitute the FRY into a
new "State Union," and the possibility that this would lead to the break-up of the two
republics. It was increasingly recognized that the possibility of such a break-up had
82
potentially important implications for the future status of Kosovo.2 In order to
reconstitute the FRY as the State Union of Serbia and Montenegro, the President of the
Federal Republic of Yugoslavia, the Deputy Federal Prime Minister, the President of the
Republic of Montenegro, and the Serbian and Montenegrin Premiers signed an agreement
on principles of relations between Serbia and Montenegro on 14 March 2002. 283 The
Agreement provided that, following the expiration of a three-year period, Montenegro
would be entitled to institute proceedings to withdraw from the Union and thereby
become independent. In light of its concems about the implications that Montenegro' s
withdrawal from the Union would have for Serbian arguments about Kosovo's status
under Resolution 1244, Serbia secured inclusion of a special provision into that
agreement, which stated:
Upon the expiration of a three-year period, the member states shall be
entitled to institute proceedings for the change of the state status, that is,
withdrawal from the state union. If Montenegro withdraws from the state
union, international documents related to the FRY, the U.N. Security
Council Resolution 1244 in particular, shall relate to and fully apply on
Serbia as its successor.
The substance of this provision was then incorporated into Article 60 of the
Constitutional Charter of the State Union of Serbia and Montenegro that was adopted in
281
J. Norris, Collision Course: NATO, Russia and Kosovo (2005), p. 185. The distinction between the
FRY and Serbia is also reflected in the Military Technical Agreement (MTA), agreed to just before the
Security Council adopted resolution 1244, with both the Government of the Federal Republic of
Yugoslavia andthe Government ofSerbia signingthe MTA as separateparties.
282
See, e.g., commentsby Dragoljub MiéunoviéR, adio Slobodna Evropa, 1April 2001 (cited in E. Hasani,
"Self-Determination Under the Terms of the 2002 Union Agreement Between Serbia and Montenegro:
Tracing the OriginsofKosovo's Self-Determination", 80hicago-Kent Law Review 305 (2005), p. 320, n.
70) (noting that Montenegro's secession from the FRY (Serbia and Montenegro) would make highly
probable the secession of Kosovo as well).
283
Proceeding Points for the Restructuring of Relations Between Serbia and Montenegro, signed at
Belgrade, 14 March 2002, available at: http://ue.eu.int/ueDocs/cms Data/docs/pressdata/EN/
declarations/73447.pdf.
- 77 - 284
February 2003, at which point the FRY was renamed "Serbia and Montenegro."
The transformation and re-naming of the Federal Republic of Yugoslavia as the
"State Union of Serbia and Montenegro" w285not considered by the Security Council to
affect the terms of Resolution 1244. But the situation changed when Montenegro
declared independence on 3 June 2006, Serbia declared independence on 5 June 2006,
and Montenegro and Serbia thereby broke apart. At that point, Kosovo could not as a
practical matter remain within the same country as Serbia without being part of Serbia
itself. But this result would not have been required even under a reading of preambular
paragraph 10 of Resolution 1244 that would have precluded Kosovo from separating
from the "FRY." Prospects of a viable solution other than Kosovo's independence
became that much more remote. With the break-up of Serbia and Montenegro in 2006,
any "inside Yugoslavia but outside Serbia" solutions to the future status question became
infeasible.
In sum, then, the reference to the FRY rather than Serbia in preambular paragraph
10 is highly significant. In the final analysis, even under a reading of that paragraph that
would have required Kosovo to remain part of the FRY, that would not have required
Kosovo to remain within "Serbia." Reading the resolution so as to require such a result
would not only disregard its terms, but significantly change its effect.
Section V. The FRY Itself Recognized That Resolution 1244 Left Open
The Possibility Of Independence For Kosovo
For its part, at the time of the adoption of Resolution 1244, the FRY-no doubt
concemed about inclusion of language that suggested future status might be decided
without its consent--objected to the terms of the resolution. Specifically, the FRY
complained that:
[I]n operative paragraph 11,the draft resolution establishes a protectorate,
provides for the creation of a separate political and economic system in the
284Constitutional Charter of the State Union of Serbia and Montenegro, available at: htt_p://www.mfa
gov.yu/Facts/const scg.pdf.
285See Statement by the President of the Security Council, S/PRST/2003/1, 6 February 2003 [Dossier No.
61]: "The Council notes the transformation of the Federal Republic of Yugoslavia into Serbia and
Montenegro and, in this context, reaffirms that resolution 1244 (1999) remains fully valid in ail its aspects."
- 78- province and opens up the possibility of the secession of Kosovo and
286
Metohijafrom Serbia and theFederalRepublic ofYugoslavia.
Thus, in addition to being inconsistent with the tenns of Resolution 1244, Serbia's
position today that Resolution 1244 consituted a guarantee against Kosovo's
independence flatly contradicts what the FRY said at the time Resolution 1244 was
adopted.
Section VI. By The Time Of The Declaration Of lndependence, The
'Political Process' Envisioned By Resolution 1244 Had Run Its Course
Resolution 1244 did not foreclose any of the possible options for future status of
Kosovo, but rather envisioned a political process that sought to determine Kosovo's
future status. It expressly authorized the international civil presence to facilitate that
process, giving wide discretion to the Secretary-Generalhow best to pursue these efforts.
As discussed in this section, at the time Kosovo declared its independence in February
2008, that political process had run its course. However, unlike in earlier periods during
which the Secretary-General was still planning or actively conducting the future status
process, neither the Secretary-General nor the SRSG denounced or annulled the 17
February2008 declaration of independence.
In 2002, with the support of the Security Council, UNMIK embarked upon the
policy of "standards before status." In briefing the Security Council in April 2002, the
Secretary-General's SpecialRepresentative described the situation as follows:
We are transferring our responsibilities to [the Kosovo] institutions in the
process of building substantial autonomy. This will bring us closer to a
stage at which it will be time to begin the political process designed to
determine Kosovo's future status. This will be one of my main
responsibilities, as foreseen in paragraph 11(e) ofresolution 1244(1999).
But let me say clearly that the time for this has not yet corne. Kosovo
society and institutions will have to show that they are ready for this
process -- without prejudging its outcome. We must make clear what is
expected from them. Therefore, I am embarking on a benchmarks process.
These benchmarks should be achieved before launching a discussion on
286Remarks of Mr. Jovanovié, Chargé d'affaires of the Permanent Mission of Yugoslavia to the United
Nations,in Security Council debate on adoption of resolution 1244, S/PV.4011, 10 June 1999, p. 6
(emphasis added) [DossierNo. 33].
- 79- 287
status, in accordancewith resolution 1244(1999).
UNMIK made clear that, at that stage, the SRSG would reject a declaration of
independence by Kosovo as inconsistent with Resolution 1244, noting specifically that
"moves to address the issue of final status of Kosovo are not supported at this time by the
International Community." 288
UNMIK pursued this "standards before status" approach until the Secretary
General, following the March 2004 riots, commissioned a comprehensive review of the
situation in Kosovo that found that "[t]oday's Kosovo is characterized by growing
dissatisfaction and frustration"; that there was a widespread belief that the existing policy
was a "policy of status quo, which can only lead to a further worsening of difficult
economic and social conditions"; and that UNMIK's credibility had deteriorated among
289
both Kosovo Albanians and Kosovo Serbs. In October 2005, the Secretary-General's
envoy, Norwegian Ambassador Kai Eide, reported that the commencement of the future
status process could not be delayed any longer, noting that the situation was such that
"once the process has started, it cannot be blocked and must be brought to a
290
conclusion." The Security Council's President issued a statement that the Council
agreed with this, that it supported the Secretary-General's intention to begin the status
291
process, and that it welcomed his intention to support a SpecialEnvoy to lead it.
As described in ChapterIl, the Secretary-General,with the support of the Security
Council, appointed former Finnish President Martti Ahtisaari to lead that process, with
the members of the Contact Group agreeing at the time that "once the process has started,
292
it cannot be blocked and must be brought to a conclusion." As the future status process
wàs about to commence, there was again talk about a possible declaration of
independence in Kosovo, and UNMIK again indicated that it would not accept such a
declaration of independence, though it had no objection to the Kosovo Assembly
287 th
Security Council, 4518 meeting, S/PV.4518, 24 April 2002, p. 4 [Dossier No. 103].
288
Letter dated 7 February 2003 from the Deputy Special-Representative of the Secretary-General to the
President of the Assembly of Kosovo, 7 February 2003 [Dossier No. 189].
289
See Letter dated 17 November 2004 from the Secretary-General addressed to the President of the
Security Council, S/2004/932, paras. 2-3, 30 November 2004 [Dossier No. 71].
290
Letter dated 7 October 2005 from the Secretary-General addressed to the President of the Security
Council, S/2005/635, Annex, 7 October 2005 [DossierNo. 193].
291
Statement by the President of the Security Council, S/PRST/2005/51, 24 October 2005 [Dossier No.
195].
292
Letter dated 31 October 2005 from the Secretary-General addressed to the President of the Security
Council, S/2005/708, 10 November 2005 [Dossier No. 196] and Letter dated 10 November 2005 from the
President of the Security Council addressed to the Secretary-General, S/2005/709, 10 November 2005
[DossierNo. 197].
- 80 -adopting a platform for the Kosov293eam that would engage with Special Envoy Ahtisaari
in support of independence. The Kosovo Assembly then proceeded to adopt a
294
resolution stating such a platform.
Special Envoy Ahtisaari thereafter held intensive negotiations but concluded that
the parties were entrenched in their "diametrically opposed positions." Regrettably,
despite an enormous devotion of resources over a protracted period of time by the United
Nations and others in the international community, including the United States, it became 295
clear that the parties were not able to reach an agreement on Kosovo's future status.
Ahtisaari reported to the Security Council as follows:
My mandate explicitly provides that I determine the pace and duration· of
the future status process on the basis of consultations with the Secretary
General, taking into account the cooperation of the parties and the
situation on the ground. lt is myfirm view that the negotiations 'potential
to produce any mutually agreeable outcome on Kosovo 's status is
exhausted. No amount of additional talks, whatever the format, will
296
overcome this impasse.
Ahtisaari concluded that, "nonetheless, resolution of this fundamental issue is urgently
needed" and that "the only viable option for Kosovo is independence, to be supervised
for an initial period by the international community." He presented a Comprehensive
Proposai and recommendation for independence. The Secretary-General then made clear
that
[h]aving taken into account the developments in the process designed to
determine Kosovo' s future status, I fully support both the recommendation
made by my Special Envoy in his report on Kosovo' s future status and the
297
Comprehensive Proposai for the Kosovo Status Settlement.
Thereafter, in a last-ditch effort to determine if an agreement could be reached, a
293
UNMIK Press Briefing, Transcript of Press Conference by SRSG S0ren Jessen-Petersen at UNMIK
Headquarters, 21 November 2005, available at: http://www.unmikonline.org/DPI/Transcripts.
nsf/0/8E2671F635881CFFC12570C1002AF51N$FILE/tr21 l 105.pdf.
294
Resolution, 21 November 2005, available at: http://www.assembly-kosova.org/common /docs/
Resolution.%20english,%20version.l7.11.05.pdf.
295Report of the Special Envoy of the Secretary-General on Kosovo's future status, S/2007/168, 26 March
2007, paras. 1-2 [Dossier No. 203].
296Ibid., para, 3 (emphasis added).
297
Letter dated 26 March 2007 from the Secretary-General addressed to the President of the Security
Council, S/2007/168, 26 March 2007 [DossierNo. 203].
- 81 -"Troïka" of diplomats from Russia, the European Union and the United States conducted
a final four months of negotiations between Belgrade and Pristina. The Troïka "vowed to
'leave no stone unturned' in the search for a mutually acceptable outcome" 298 but was
required at the end of the four month period to report that:
The Troïka was able to facilitate high-level, intense and substantive
discussions between Belgrade and Pristina. Nonetheless, the parties were
unable to reach an agreement on the final status of Kosovo. Neither party
was willing to cede its position on the fundamental question of
sovereignty over Kosovo. 299
Once the status process had run its course, the situation fundamentally changed.
While the international civil presence was actively engaged in efforts to facilitate final
status negotiations to reach agreement between Serbia and Kosovo, declarations by one
side or the other attempting to determine Kosovo' s status (either declarations of
independence such as those that were discussed but not actually adopted by Kosovo in
2005, or declarations by Serbia like those contained in its 2006 Constitution that Kosovo
was part of Serbia and barring "state bodies" from considering any alternative status for
300
Kosovo) might be seen as frustrating those efforts. Such declarations were seen as
inconsistent with the way that events were supposed to unfold under Resolution 1244,
and not conducive to the efforts of the international civil presence to "facilitat[e] a
political process designed to determine Kosovo's future status" as the resolution required.
298 Report of the European Union/United States/Russian Federation Troika on Kosovo, S/2007/723
enclosure, 10 December 2007, para.5 [Dossier No. 209].
299Ibid, para. 2. The Troika went to extraordinary lengths to try to develop alternative models that might
be appealing to the parties.
Under our guidance, the parties reviewed outcomes ranging from independence to
autonomy, as well as alternate models such as confederal arrangements, and even a
model based on an "agreement to disagree" in which neither party would be expected to
renounce its position but would nonetheless pursue practical arrangements designed to
facilitate cooperation and consultation between them. Other international models, such as
Hong Kong, the Aland Islands and the Commonwealth of Independent States, were
discussed. While it was broached, we did not dwell on the option of territorial partition,
which was deemed unacceptable by both the parties and the Contact Group. None of
these models proved to be an adequate basis for compromise.
Ibid, para. 10. For its part, Serbia characterized the work of the Troika far less charitably, asserting that
direct negotiations between Kosovo and Serbia "lasted nominally 120 days, but effectively only 13 hours."
Letter dated 17 April 2008 from the Permanent Representative of Serbia to the United Nations addressed to
the President of the Security Council, Comments on the report of the Secretary-General on the United
Nations Interim Administration Mission in Kosovo, S/2008/260 Annex, 18 April 2008, para. 6 [Dossier
No. 87].
300
See discussion supra in Chapter Il, Section V.
- 82 - At the point in February 2008 that Kosovo declared independence, however, there
was no longer an ongoing future status process. The Special Envoy had declared that
process over, and that there was no prospect of its successful resumption. Kosovo had
accepted the Comprehensive Proposai put forward by Ahtisaari and supported by the
Secretary General-a posture that was supportive of the Secretary-General's efforts to
301
implement Resolution 1244. There is no suggestion in the language of Resolution
1244 that the international civil presence was required at that point to initiate yet a further
status process-paragraph 11(e) of the resolution speaks about the international civil
presence facilitating "a" political process. More importantly, the absence of any prospect
of bridging the <livide between Serbia and Kosovo would have made further such
negotiations pointless, and there is no prospect of the Security Council-nine of the
members of which (including three permanent members) have already recognized
Kosovo-requiring further iterations of the political process.02
In adopting Resolution 1244, the Security Council envisioned a political process
that sought to determine Kosovo's future status, and charged the international civil
presence with responsibility for facilitating that process. However desirable an
agreement between Kosovo and Serbia might have been, the Council was well aware of
the difficulties of achieving one, and did not require it. Nor did the resolution provide
that the approval of the Council or the consent of Serbia was a prerequisite to the
conclusion of the status process. Nor did it prohibit Kosovo's independence as the
outcome of the process. As long as that process was alive and viable, it was considered
appropriate to preclude Kosovo from declaring independence; but this was no longer the
case by the point at which Kosovo declared independence. To conclude otherwise would
be to read into Resolution 1244 precisely the veto for Serbia that had been omitted from
the resolution.
301In briefing the Council, the Secretary-General described the declaration ofindependence as follows:
The declaration states that Kosovo fully accepts the obligations contained in the
comprehensive proposai for a Kosovo status settlement prepared by my Special Envoy,
Martti Ahtisaari.n his address to the Assembly, Prime Minister Thaçi stated that there
would be equal opportunities for all of Kosovo's inhabitants and that any discriminatory
practices against members of any of Kosovo's communities would be eliminated. The
declaration pledges continued adherence to resolution 1244 (1999), commits Kosovo to
continue to work constructively with the United Nations and expresses gratitude to the
United Nations for what it has done for Kosovo.
th
Security Council, 5839meeting, S/PV.5839, 18February 2008, p. 2 [Dossier No. 119].
302See discussion supra in Chapter II, Section VII.
- 83 - Section VII. Neither The UN Secretary-General Nor His Special Representative
Denounced Or Sought To Annul The Declaration of Independence
The decision by the Secretary-General and his Special Representative not to
challenge Kosovo's declaration of independence is highly significant, given the
responsibilities entrusted to them for implementing Resolution 1244, and their earlier
decisions to forestall such steps. The Court has made clear that itsjurisdiction over legal
issues is not impaired by the fact that the political organs of the United Nations may at
the same time be exercising their authority under the Charter. 303 Nonetheless, the Court
has given careful consideration to decisions taken in the exercise of authority under the
Charter by United Nations organs and by bodies or officiais to whom such authority has
been delegated.
For example, in the Certain Expenses case, the Court advised that there is a
presumptionthat action taken by UN organs is not ultra vires when it is "appropriate for
the fulfillment" of any of the purposes of the United Nations, and that this applied to the
exercise by the Secretary General of functions delêgated to him by the Council. 304 A
more recent example of such deference was the Court's extensive reliance in the Bosnia
Genocide case on the findings of the International Criminal Tribunal for the former
Yugoslavia, a body that the Council had created with authority to determine criminal
responsibility for persons accused of certain international crimes. 305 As Judge Lachs
said of the Court's decisionin the Lockerbie case to decline to grant provisional measures
that would be inconsistent with a decision of the Council under Chapter VII, such
deference is not "an abdication of the Court's powers" but simply "a reflection of the
system within which the Court is called u~on to render justice" and a means of ensuring
that the two organs "act in harmony .... " 06
Appropriate weight should likewise be given to the decisions of the Secretary
General and the Special Representative of the Secretary-General (SRSG) in their
administration of Kosovo. As discussed in this Section, they exercised broad authority
over the implementationof the "civil presence" and repeatedly struck clownor threatened
303
See, e.g., Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America), Jurisdiction andmissibility, Judgment, I.C.J. Reports p. 392atpp. 433-35.
304
Certain Ex.pensesof the United Nations, Advisory Opinion of 20 July 1962, I.C.J. Reporp. 1512,
atpp. 168,176-77.
305See Case Concerning the Application of the Convention on Genocide (Bosnia and Herzegovina v. Serbia
and Montenegro), Judgment of 26 February 2007, I.C.J. Reports 2007,77-78,paras.213-14.
306Questions of Jnterpretation and Application of the 1971 Montreal Convention Arising from the Aerial
Incident at Lockerbie (Libyan Arab Jamahariya v. United States of America), Provisional Measures, I.C.J.
Reports 1992,p. 138(SeparateOpinionof JudgeLachs).
- 84 -to strike down actions they believed were inconsistent with Resolution 1244, but they
declined to strike down the declaration of independence.
A. THE SECRETARY GENERAL AND HIS SPECIAL REPRESENTATIVE HAD PREVIOUSLY
EXERCISED THEIR AUTHORITY To STRIKE DoWN ACTIONS THAT THEY CONSIDERED
INCONSISTENT WITH RESOLUTION 1244
Resolution 1244 authorized the Secretary-General to establish the international
civil presence and to appoint a Special Representative "to control the implementation of
307
the international civil presence." As described earlier, the responsibilities of the
international civil presence included organizing and overseeing the development of the
provisional institutions of self-government, facilitating the political process to determine
Kosovo's future status, and overseeing the transfer of authority from the provisional
authorities upon completion of that process. 308 Pursuant to this authorization, the SRSG
exercised wide powers over the administration of Kosovo, including the appointment and
removal of all public officiais, the administration of ail public fonds and property, and the
promulgation of laws governing various aspects of life in Kosovo. 309 Chapter 12 of the
Constitutional Framework that the SRSG promulgated in May 2001 provided:
The exercise of the responsibilities of the Provisional Institutions of Self
Govemment under this Constitutional Framework shall not affect or
diminish the authority of the SRSG to ensure full implementation of
UNSCR 1244 (1999), including overseeing the Provisional Institutions of
Self-Govemment, its officiais and its agencies, and taking appropriate
measures whenever their actions are inconsistent with UNSCR 1244
(1999) or this Constitutional Framework. 310
The Secretary-General and the SRSG took seriously their responsibility to ensure
that actions by the various actors in Kosovo were consistent with Resolution 1244 and
declared void actions that they considered inconsistent. In the years following the
promulgation of the Constitutional Frfill!ework,the SRSG nullified a number of actions
307
Security Council resolution 1244 (1999), S/RES/1244, para. 6 [Dossier No. 34).
308Ibid.para. 11.
309See, e.g.UNMIK Regulation 1999/1 [Dossier No.138), UNMIK Regulation 1999/3, available at:
htt;p://www.unmikonline.org/regulations/l999/re99 03.pdf;K Regulation 1999/4, available at:
htt;p://www.unmikonline.org/regulations/I999/re99 04.pdf;K Regulation 1999/9, available at:
htt;p://www.unmikonline.org/regulations/l999/re99 09.pdf;K Regulation 1999/20 available at:
htt;p://www.unmikonline.org/regulations/l999/re99 20.pdf; UNMIK Regulation 1999/24 [Dossier
No. 46].
310
UNMIK Regulation 2001/9 [Dossier No. 156].
- 85 -by the Assembly, ministries and municipalities on the grounds that they were beyond the
311
competence of the entity in question or otherwise inconsistent with Resolution 1244.
For example, following adoption by the Kosovo Assembly of a resolution rejecting a
border demarcation agreement between the FRY and Macedonia, the SRSG in May 2002
rejected the resolution, saying that he was bound to do so by the Constitutional
Framework and that "I had no other choice than to declare, after the adoption of the
312
resolution, this resolution as null and void."
Similarly, as discussed above, the SRSG was particularly attentive to assertions
by the Assembly about the status of Kosovo, indicating in both 2002 and 2005 that
UNMIK would reject a declaration of independence by Kosovo while the future status
process was still pending. 313 This stands in stark contrast to his decision not to do soin
2008.
B. THE SECRETARY-GENERAL AND THE SRSG DID NOT DECLARE
THE DECLARATION ÜF lNDEPENDENCE To BE VOID ÜR UNLA WFUL
With the exhaustion of the future status process, the situation had changed, and
the Secretary-General and the SRSG refrained from any statement suggesting that the
February 2008 declaration was unlawful or void. The President of Serbia immediately
sent a letter to the Secretary-General demanding that such action be taken:
The Republic of Serbia demands that the Special Representative of the
Secretary-General take ail necessary measures, in accordance with
Resolution 1244(1999) and other Security Council decisions, as he has on
previous occasions, to abrogate, without delay, all acts and actions by
which unilateral independence has been declared, as well as prevent any
further violation of said resolution, and ail other Security Council
documents, the United Nations Charter, and all other existing norms and
regulations of international law. I, therefore, call upon you to ensure that
your Special Representative in Kosovo exercises his powers and
responsibilities by immediately declaring this illegal act null and void. I
311SeeB. Knoll,The Legal Status of Territories Subject to Administration by International Organizations
(Cambridge Univ. Press, 2008), p~. 345-46.
312See UNMIK Press Briefing, 23 May 2002, Press Conference by UNMIK SRSG, Michael Steiner
(emphasis added), available at: http://www.unmikonline.org/press/2002/trans/tr230502.htm.
313 UNMIK Press Briefing, 16 November 2005, pp. 4-5, available at: http://www.unmik
online.org/DPI/Transcripts.nsf/0/C944 l38l369BB4lBCl2570BC002D69D7/$FILE/tr161105.pdf; Letter
dated 7 February 2003 from the Principal Deputy Special Representative of the Secretary-General to the
President of the Assembly of Kosovo [Dossier No. 189].
- 86 - also expect him to act pursuant to the Constitutional Framework for
Provisional Self-Government in Kosovo ... and dissolve the Assembly of
Kosovo, since its "declaration of independence" is not in conformity with
314
Security Council resolution 1244 (1999).
The Secretary-General and the SRSG took none of these actions. Instead, the
Secretary-General said that "the position of the United Nations on the question of the
status of Kosovo has been one of strict status neutrality" and that "Security Council
resolution 1244 (1999) continues to be in force until the Security Council decides
otherwise." 315 He later reported to the Council that "UNMIK has begun to adapt its
structure and profile in response to the profoundly changed reality in Kosovo following
Kosovo's declaration of independence and the adoption of a Constitution" in light of the
"new roles assumed by the Kosovo authorities under the Constitution." 316
The Secretary-General's adoption of a position of "status neutrality" indicated
that the United Nations officers charged by the Security Council with overseeing the
situation in Kosovo had determined that the purposes of Resolution 1244 would best be
served by not taking a position on the desirability of Kosovo' s independence; the
Secretary-General stated that recognition of countries is a matter for individual Member
States.317 This is especially significant given the fact that the Secretary-General and the
SRSG had the responsibility for ensuring compliance with Resolution 1244 and had
firmly exercised their authority to act against such measures in the past.
In closing the February 18, 2008 Security Council meeting, the Secretary-General
highlighted that "[t]he situation today on the ground, as well as in the Security Council, is
very different from the earlier period of the United Nations Interim Administration
Mission in Kosovo (UNMIK)" and that, "[w]ithin the mandate provided by resolution
1244 (1999), elements of international civil presence have, over the years, evolved to
address differing needs and changing circumstances." He concluded that
314Letter dated 17 February 2008 from the Permanent Representative of Serbia to the United Nations
addressed to the Secretary-General, S/2008/11l, Annex, 17 February 2008 [Dossier No. 202]. Serbian
President Tadié made the same demand when he addressed the Security Council on February 18. Security
Council, provisional verbatim record, sixty-third year, 5839th meeting, S/PV.5839, 18 February 2008, p. 5
[DossierNo. 119].
315
Report of the Secretary-General on the United Nations lnterim Administration Mission in Kosovo,
S/2008/354, 12June 2008, Annex I [Dossier No. 88].
316
Report of the Secretary-General on the United Nations lnterim Administration Mission in Kosovo,
S/2008/692,24 November 2008, para. 48 [Dossier No. 90].
317
Interfax Information Service Interview, "UN Secretary-General Ban Ki-moon: I wish to note that
Kosovo is a highly distinctive situation," March 2008, available at: http://www.interfax.com/
17/373003/Interview.aspx.
- 87 - As we seek to manage the situation on the ground, I would like in closing
to underline to the members of this Council that my principal objectives
are to ensure the safety and security of the population in Kosovo, with
particular attention to the minority communities; to uphold international
peace and security and the overall stability in Kosovo and regional
stability; to ensure the safety of United Nations staff; and to safeguard the
achievements and legacy of the United Nations in Kosovo and the
318
Balkans.
Serbia argued that the actions of the Secretary-General and the SRSG were
inconsistent with Serbia' s position that the declaration of independence was unlawful. In
particular, Serbia complained that the UN position of neutrality on the status of Kosovo,
the SRSG's recognition of "a new reality on the ground", and its transfer of certain
competences to the "govemment of Kosovo" were all inconsistent with the Serbian
319
position that Kosovo's independence was contrary to Resolution 1244.
Serbia also brought its demands to the Security Council, but the Council likewise
declined to make any statements declaring or suggesting that the declaration was void,
contrary to Resolution 1244, or otherwise unlawful or inappropriate. Indeed, far from
disapproving of the SRSG's decision not to annul the declaration of independence, a
majority of states represented on the Council proceeded formally to recognize Kosovo
320
within the next ten weeks. The Council subsequently agreed to the appointment of a
new SRSG for Kosovo, and the new SRSG has similarly decided to take no action against
the declaration. 321
318 th
Security Council, provisional verbatim record, sixty-third year, 5839 meeting, S/PV.5839, 18 February
2008, p. 23 [DossierNo. 119].
319
Letter dated 17April 2008 from the Permanent Representative of Serbia to the United Nations addressed
to the President of the Security Council, S/2008/260, 18April 2008, pp. 3, 7 [Dossier No. 87].
32
°Costa Rica, France, the United Kingdom, and the United States recognized Kosovo on 18 February
2008; Italy recognized Kosovo on 21 February 2008; Belgium recognized Kosovo on 24 February 2008;
Croatia recognized Kosovo on 19March 2008; and Burkina Faso declared its recognition on 24 April 2008.
Most of these countries announced at the February 18 meeting of the Security Council that they had
th
recognized the independence of Kosovo or would initiate the process of doing so.e Record of the 5839
meeting of the Security Council, S/PV.5839, 18 February 2008, [Dossier No. 119].
321
Letter dated 24 June 2008 from the Secretary General to the President of the Security Council,
S/2008/411, 24 June 2008.
- 88 - C. THE COURT SHOULD FULLY TAKE lNTO ACCOUNT THE APPROPRIA TE DECISIONS
OF THE RESPONSIBLE OFFICERS OF THE UNITED NATIONS
NOT To DECLARE THE DECLARATION OF lNDEPENDENCE UNLA WFUL
It is apparent from the sequence of events described above that the Security
Council, the Secretary-General and the SRSG refrained from declaring Kosovo's
declaration of independence to be unlawful or void. During earlier periods when status
negotiations were pending, firm action was taken to nullify actions by either party that
could have disrupted that process. However, the situation fundamentally changed once it
became clear that a negotiated resolution of the future status of Kosovo was no longer
feasible and the negotiating process had been exhausted. The Secretary-General's
Special Envoy recommended independence under initial international supervision;
Kosovo accepted and implemented this proposai; and the Secretary-General and SRSG
began adapting their operations to take account of what had happened. The Secretary
General and SRSG each had the authority to declare invalid any action by the parties if
doing so was necessary to implement Resolution 1244-a power they had exercised
many times in the past-but declined every demand to do so in the context of Kosovo's
declaration of independence in 2008. The Security Council itself declined to take action
against the declaration of independence, instead a~pointing a new SRSG who similarly
declinedto accedeto Serbia's demand to annul it. 32
Under these circumstances, the Court should give considerable weight to the
appropriate judgment of these responsible officiais. These were officiais to whom the
Security Council gave responsibility for making judgments about specific actions under
Resolution 1244. They are intimately familiar with the legal, operational and political
circumstances of Kosovo, including the complications any pronouncements to the
contrary could pose for international peace and security in the area, and the other
objectivesthat the Secretary-General described in addressing the Security Council on the
day after Kosovo's independence was declared.
322
Serbia itself recognized (and complained) that the failure of UNMIK to annul the declaration of
independence was a change in how it had acted in the past, arguing:
that the United Nations (UNMIK) failed to react to the unilateral proclamation of independence of
the province of Kosovo and Metohija. The Republic of Serbia expected the United Nations
representatives in Kosovo and Metohija to annul this illegal act. These expectations were based
upon previous UNMIK practice in line with its mandate. Contrary to that, the United Nations took
a neutral stance in regard to the "status of Kosovo."
Letter dated 17April 2008 from the Permanent Representative of Serbia to the United Nations addressed to
the President of the Security Council, S/2008/260, Annex, 18April 2008, para. 9 [Dossier No. 87].
- 89- CHAPTERVI
CONCLUSION
For the foregoing reasons, the United States respectfully submits that, if the Court
chooses to answer the question referred by the General Assembly, it should conclude that
Kosovo's declaration of independence is in accordance with international law.
Respectfully submitted,
Washington, D.C. Joan .Donoghue /
17April 2009 Acting Legal Adviser
United States Department of State
- 90 - I have the honor to certify that each of the Annexes is a true and
complete copy of the original.
Jo E. Donoghue 7
Acting Legal Adviser
United States Department of State ANNEX
1. Stjepan Mesié,Kosovo --problem koji ne trpi odgaâanje ("Kosovo -- A Problem that
Tolerates No Delay"), Vecerni List, 16 February 2008, available at:
http://www.predsjednik.hr/default.asp?ru=143&gl=200802200000002&sid=&jez
ik=l
(translation provided by Office of the President, Republic of Croatia).
2. Transcript of the Special Plenary Session of the Assembly of Kosovo on the
Declaration ofindependence Held on 17February 2008.
3. International Civilian Office, International Steering Group for Kosovo, Report of the
International Civilian Office, 27 February 2009, available at: http://www.ico
kos.org/d/ISG%20report%20fina1ENG.pdfANNEXl Kosovo - A Problem That Tolerates No Delay 1
Stjepan Mesié, President of the Republic of Croatia
As we are faced with the impending end of a long and not
infrequently toilsome process of defining the final status of Kosovo, I
would find it advisable to present, once more and as clearly as possible,
my views on this complex problem, on its roots and genesis, but also
indicate what the position of the Republic of Croatia could be, and I
would also say should be, at this point in time.
The mere repetition of the formula that we as an EU candidate
country shall behave like most of the members of the Union and follow
their example is simply not enough. One should also say why. Croatia is
a sovereign country and we will not follow anyone blindly and
unthinkingly, either today or in the future, while neglecting our own
interests and needs. This is precisely why I find it necessary to remind
the public - primarily the Croatian public but not only the Croatian
public - of certain things, to present the reasons guiding us in shaping
our position within the context of the Kosovo issue. Anything else would
mean shrinking from responsibility and I have never - as President of the
Republic of Croatia and constitutionally empowered co-creator of its
foreignpolicy - shrunk from responsibility.
In this case, we are faced with responsibility for peace and security
in the region and beyond. We are faced with the end of a long process of
disintegration of the former Yugoslav federation, but also with the final
stages in the establishment of an at least basic new architecture in South
Europe.
I shall not resort to historie arguments because this is a political
issue. Due knowledge ofhistory is required, of course, but any attempt to
seek the solution of a current problem based on the status of any people,
any ethnie community, in the distant or ancient past would take us
nowhere. Therefore, in my mind the argument about Kosovo as the
cradle of Serb national feeling is as worthless as the argument whereby
the Illyrians, the ancestors of the Albanians, settled present-day Kosovo
even before the ancient Romans, not to mention the Slavs and
specifically the Serbs. As far as history is concemed, we only need to go
1Translation provided by the Office of the President, Republic ofCroatia .
..back to the time of the former Yugoslav federation because the
resolution of the problem facing us is rooted in the status of Kosovo
within Yugoslavia and in the process of disintegration of the latter. But
let me make just one point in order to avoid any confusion: when I am
talking about Yugoslavia, I have in mind the Yugoslavia which existed
until the early nineteen-nineties, that is, the Socialist Federal Republic of
Yugoslavia.
Its 1974 constitution specified that Yugoslavia was"a federal state
and a state community of nations and their Socialist Republics, and
Socialist Autonomous Provinces of Kosovo and Vojvodina within the
Socialist Republic of Serbia, united of their own free will". The
constitution also specified that in the Socialist Autonomous Provinces
''working people and citizens, nations and nationalities exercise their
sovereign rights". Let me draw attention to several elements from the
above quotations. First, Yugoslavia consisted of republics and provinces;
accordingly, the provinces were constituent elements of the Federation.
Second, the provinces were within Serbia, meaning that - in addition to
their constituent tie with the Federation - they were also connected with
one of its federal units. Third, the republics and provinces united in
Yugoslavia oftheir own free will, and this clearly implies that they could
not be kept within that state framework against their will. Where
provinces are concemed this regards both the federal framework and the
framework of a federal unit. And, finally, fourth, in the provinces the
nations and nationalities exercised their sovereign rights. This requires
no comment.
Bearing all this in mind, we must arrive at the incontestable
conclusion that the Kosovo issue is a problem sui generis. This means
that its resolution is not and cannot be a precedent for subsequent action
in any of only apparently similar issues anywhere in the world.
Therefore, to make myself fully clear, the resolution of the Kosovo issue
is not prejudicial to the resolution of any other problem and cannot be a
model for such a resolution. This is a unique issue deriving from the
unique autonomous province status of Kosovo within the Yugoslav
Federation. The Federation fell apart. The constitutive element
associated with it disappeared, but that does not mean that it was
automatically transferred to the present-day Republic of Serbia just
because the province of Kosovo had been within the Republic of Serbia
in federal Yugoslavia.
2 Therefore, the need to determine the new and final status of
Kosovo asserted itself precisely because the element of Kosovo's tie
with the former federation is no longer there and only the element of its
tie with Serbia has been tetained.
In this context the Republic of Croatia proceeds from two
undeniable facts and insights.
First, no retum to the previous state of affairs is possible; I also
have in mind the time before Milosevié abolished all the elements of
autonomy and then tried to forcefully banish the Albanians from
Kosovo. Second, the current condition, that is, the one established after
the NATO military intervention prevented the expulsion of the
Albanians from Kosovo, cannot be sustained indefinitely either.
Past negotiations, let me say quite clearly, maybe even with
undiplomatic clarity, have more or less been reduced, good intentions
notwithstanding, to buying time, to postponing the inevitable, because
the two sides which were supposed to agree were firmly entrenched in
their opposite positions. Nevertheless, the negotiations did produce
certain ideas, certain models which must not be neglected and which
must be given their due in the determination of the final status, and in
defining the answer to the question of what tomorrow's Kosovo will be
like.
Of course, it would be ideal if the solution could be obtained
through direct negotiations of the parties directly involved, or under the
umbrella of the United Nations. Both have proved to be impossible and
no effort should be wasted in that regard. They simply did not work, and
we are faced with the current impasse.
We are very much aware that the Kosovo issue is very painful for
the Republic of Serbia. Therefore, I believe that Serbia should be helped
in every possible way, first of all by opening up realistic prospects of
accession to the European Union along with steps focused on promoting,
·developing and reinforcing democracy. This could help Serbia to face
reality with open eyes and avoid any confrontation that could involve
Serbia's self-isolation in the region and in Europe.
At the same time we are also aware of the legitimate aspirations of
the Kosovo Albanians. We neither want nor may deny to others the right
to self-determination which we claimed for ourselves and which we had
to win by force of arms in the process of disintegration of the Yugoslav
federation - when they tried to prevent us by force from exercising our
rights under the 1974Constitution while the international community did
3 not want to or could not identify the problem and make the right moves
at the right time. This is precisely why I am emphasizing, at this point in
time, that no one is entitled to repeat the already committed mistakes and
omissions. And the tessons learried must not be forgotten either. The
already manifested failure to act responsibly may not turn into a policy
of irresponsibility.
The starting point must be awareness of the specific features of the
Kosovo issue and the equally specific and unique way of its resolution.
And the target must be a clear definition of a democratic Kosovo, a
region in which the fundamental human and minority rights will be
respected, protected and exercised at all times and throughout, with the
assistance and under the supervision of the international community,
primarily the European Union. In this process the key word is
responsibility: responsibility for peace, security and stability,
responsibility for the achievement of the goals formulated in the United
Nations Charter by their founders more than sixty years ago.
Another point must be known, clearly stated and, if required,
reinforced as well. Neither the directly involved parties nor the region
are capable of coping with the problems on their own. They must resort
to the assistance of the international community. Within that context the
Republic of Croatia is prepared to offer help to the extent of its objective
possibilities. Kosovo cannot cope on its own: it is our responsibility to
help it along the first steps in its new life. Similarly, Serbia cannot cope
on its own either, and it is our responsibility to help it in facing new
circumstances and in finding its own place in the global community in
which a democratic and stable Serbia will always be welcome. Finally,
Southeast Europe.cannot cope on its own either, and it should be helped
on the track it has taken, the track of overcoming the aftermath of recent
wars and establishing good relations among the new states, the track
which will lead all the countries in the region to the destination to which
the Republic of Croatia has already drawn very close - the European
Union.
No one may escape these responsibilities: in the region, in Europe
and worldwide. Having said that, let me stress that there is no
justification for selfishness which would place the satisfaction of
individual, limited and short-term interests above the achievement of
long-term global interests. I sincerely believe that responsibility to one's
own people and state in the current globalized world cannot be expressed
4and achieved independently of responsibility for the community of
nations and states. This applies to small and large countries alike.
These are the views which will determine the position of the
Republic of Croatia with respect to the Kosovo issue. I would like to
believe that they will also be understood by those who (still) think
differently.
5 1
KOSOVO - PROBLEM KOJI NE TRPI ODGAJ>ANJE
Pise: Stjepan Mesié, predsjednik Repuhlike Hrvatske
U danima kada smo suoceni sa zavrsetkom dugog i nerijetko mukotrpnog
procesa definiranja konacnog statusa Kosova cini mi se uputnim jos jednom,
najjasnije sto je moguée, iznijeti svoje poglede na taj slozeni prohlem, na
njegove korijene i genezu, ali ujedno i naznaciti kako se Repuhlika Hrvatska
moze, a rekao hih i: mora, postaviti u sadasnjem trenutku.
Nije, naime, dovoljno ponavljati formulu da éemo se mi, kao zemlja
kandidat za clanstvo u Evropskoj uniji, ponasati kao veéina clanica Unije,
odnosno da éemo ih slijediti. Treha reéi i: zasto. Hrvatska je suverena zemlja i
mi neéemo ni danas, a ni u huduénosti, naprosto samo slijepo, hez razmisljanja,
slijediti hilo koga, zanemarujuéi pri tome vlastite interese i potrehe. Upravo zato
smatram potrehnim da javnost, u prvome redu hrvatsku, ali ne i samo hrvatsku,
podsjetim na neke stvari, odnosno da iznesem razloge kojima se vodimo pri
koncipiranju nasega stanovista u kontekstu kosovskoga pitanja. Sve drugo hilo
hi ravno hjezanju od odgovomosti, a ja - kao predsjednik Repuhlike Hrvatske i
kao Ustavom odredeni sukreator njezine vanjske politike - od odgovomosti
nikada nisam hjezao.
U ovome slucaju rijec je o odgovornosti za mir i sigumost - u regiji, ali i
sire. Rijec je o zavrsetku dugoga procesa dezintegracije nekadasnje
jugoslavenske federacije, ali u isto vrijeme i o dovrsetku uspostavljanja makar
osnovne konstrukcije nove arhitekture prostora jugoistocne Europe.
Neéu prihjegavati povijesnim argumentima, jer rijec je o politickome
pitanju. Povijest, naravno, treha poznavati, ali trazenje rjesenja prohlema
danasnjice na osnovi statusa ovoga ili onoga naroda, ove ili one etnicke
zajednice u daljoj ili dalekoj proslosti, ne vodi nikamo. Pa stoga smatram
argument o Kosovu kao kolijevci srpstva jednako malo vrijednim kao i onaj da
su Iliri, praoci Alhanaca, dosli na prostore danasnjega Kosova jos i prije
Rimljana, a da Slavene - konkretno: Srhe i ne spominjem. U povijest se moramo
vratiti samo do vremena hivse jugoslavenske federacije, jer razrjesavanje
prohlema s kojime smo suoceni ima svoje korijene u statusu Kosova unutar
Jugoslavije, kao i u procesu dezintegracije Jugoslavije. Da ne hi hilo nikakve
zahune: kada govorim o Jugoslaviji, mislim na onu Jugoslaviju koja je postojala
1Available at the website of the President of Croatia, at:
http://www.predsjednik.hr/defauI43&gl=200802200000002&sid=&jez1.=
1do pocetka devedesetih godina dvadesetoga stoljeée, dakle na Socijalisticku
Federativnu Republiku Jugoslaviju.
Njezin ustav iz godine 1974. kaze kako je ,,Jugoslavija savezna drzava
kao drzavna zajednica dobrovoljno ujedinjenih naroda i njihovih socijalistickih
republika, te socijalistickih autonomnih pokrajina Kosova i Vojvodine koje su u
sastavu Socijalisticke Republike Srbije". Taj ustav takoder precizira da u
socijalistickoj autonomnoj pokrajini ,,radni ljudi i gradani, narodi i narodnosti
ostvaruju svoja suverena prava".
Upozoravam na nekoliko elemenata iz ovih navoda. Prvo, Jugoslavija se
sastojala od republika i pokrajina, dakle pokrajine su bile konstitutivni elementi
federacije. Drugo, pokrajine su bile u sastavu Srbije, sto znaci da su - osim
konstitutivne veze s federacijom, bile povezane i s jednom od njezinih
federalnih jedinica. Treée, republike i pokrajine dobrovoljno su se ujedinile u
Jugoslaviju, iz cega proizlazi jasan zakljucak kako ih se protiv njihove volje u
tim drzavnim okvirima ne moze zadrzavati. U slucaju pokrajina to se odnosi
kako na okvir federacije, tako i na okvir federalne jedinice. I, napokon, cetvrto:
gradani, odnosno narodi i narodnosti u pokrajinama ostvaruju svoja suverena
prava. Tome nikakav komentar nije potreban.
Imajuéi sve to u vidu, moramo doéi do nepobitnoga zakljucka kako je
kosovski problem - problem sui generis. Sto znaci da njegovo razrjesavanje nije
i ne moze biti presedan za dalje postupanje u bilo kojemu od samo naoko slicnih
problema bilo gdje u svijetu. Dakle, da budem do kraja jasan: rjesavanje
problema Kosova ni na koji nacin ne prejudicira rjesavanje bilo kojeg drugog
problema, niti moze biti uzorom za takvo rjesavanje. Rijec je o jedinstvenom
problemu koji proizlazi izjedinstvenog statusa sto gaje Kosovo, kao autonomna
pokrajina, imalo u sklopu jugoslavenske federacije. Ta se federacija raspala.
Element konstitutivnosti vezan uz nju nestao je, ali to ne znaci da je on
automatski presao na danasnju Republike Srbiju - samo zato sto je pokrajina
Kosovo nekada bila i dijelom republike Srbije u federativnoj Jugoslaviji.
Upravo zbog toga sto je element povezanosti Kosova s nekadasnjom
federacijom otpao, a sto se zadrzao samo element povezanosti sa Srbijom,
nametnula se i potreba utvrdivanja novoga i konacnoga statusa Kosova.
Republika Hrvatska polazi u tome kontekstu od dvije neprijepome
cinjenice, odnosno spoznaje.
Prvo - nije mogué povratak na nekadasnje stanje, mislim pri tome i na ono
stanje prije nosto je Milosevié ukinuo sve elemente autonomije, a potom silom
pokusao prognati Albance sa Kosova. Drugo - nije moguée ni odrzavanje u
nedogled sadasnjega stanja, dakle onoga sto je uspostavljeno nakon sto je
Atlantski pakt vojnom intervencijom sprijecio izgon Albanaca s Kosova.
Dosadasnji pregovori, reéi éu krajnje jasno,mozda i nediplomatski jasno,
svodili su se, dobrim namjerama usprkos, manje-vise na kupovanje vremena, na
odgadanje neizbjeznoga ... Jer, dvije su strane sto su se trebale dogovoriti, bile
2 cvrsto ukopane na suprotnim poz1c1Jama.No, u pregovorima ipak su se
iskristalizirale i neke ideje, neki modeli sto ih nikako ne hi trebalo zanemariti i
koji moraju dobiti svoje zasluzeno mjesto pri utvrdivanju konacnoga statusa,
odnosno u definiranju odgovora na pitanje: kakvo ée biti sutrasnje Kosovo.
Naravno, idealno bi bilo da se do rjesenja moglo doéi u izravnim
pregovorima neposredno zainteresiranih strana, ili pak ,,pod kapom" Ujedinjenih
naroda. I jedno, i drugo pokazalo se nemoguéim i stoga je danas suvisno trositi
na to rijeci. Naprosto - nije islo. I sada smo tu, gdjejesmo.
Mi smo itekako svjesni toga da je kosovsko pitanje za Republiku Srbiju
vrlo bolno. Stoga smatram da bi Srbiji trebalo pomoéi na sve moguéenacine, u
prvome redu otvaranjem realne perspektive za ulazak u Evropsku uniju, uz
mjere poticanja, razvoja i daljeg jacanja demokracije, kako bi se s tim pitanjem
suocila na nacin koji neée biti ni zatvaranje ociju pred realnostima, niti
zauzimanje konfrontirajuéega stava koji bi u sebi nosio i opasnost samoizolacije
Srbijeu regiji, ali i u Evropi.
. U isto vrijeme svjesni smo i legitimnih teznji Albanaca na Kosovu. Mi niti
hoéemo, nitimozemo drugima poreéi pravo na samoopredjeljenje koje smo za
sebe trazili i morali soruzje u ruci izboriti u procesu raspada jugoslavenske
federacije, kada su nas pokusali silom sprijeciti u ostvarivanju prava sto smo ih
imali na osnovi Ustava iz godine 1974., dok medunarodna zajednica nije htjela,
ili mogla prepoznati problem i povuéi - onda kada je trebalo - prave poteze.
Zato upravo u sadasnjem trenutku naglasavam kako jednom ucinjene greske i
propuste nitko nema pravo ponavljati. Niti se jednom naucene lekcije smiju
zaboravljati. Jednom iskazana nesposobnost da se odgovomo djeluje ne moze se
pretvoriti u politiku neodgovomosti.
Polazisna tocka mora biti spoznaja o specificnosti kosovskoga problema,
pa slijedom toga i o specificnosti, dakle neponovljivosti nacina njegovoga
razrjesavanja. A ciljna tocka mora biti jasna definicija demokratskoga Kosova,
na kojemu ée se, uz pomoé i pod nadzorom medunarodne zajednice, u prvome
redu Europske unije, u svakome trenutku i na svakome pedlju postivati, stititi i
ostvarivati temeljna ljudska i manjinska prava. Pri svemu tome kljucni je pojam
- odgovomost; odgovomost prema miru, sigumosti i stabilnosti, odgovomost
prema ostvarivanju ciljeva sto su ih u Povelji Ujedinjenih naroda formulirali
njihovi osnivaci, prije vise od sest desetljeéa.
Ijos nesto treba znati, ali ijasno reéi, ako treba i ponoviti. Ni neposredni
akteri, ni regija ne mogu se s problemom uhvatiti u kostac sami. Upuéeni su na
pomoé medunarodne zajednice, au tome kontekstu Republika Hrvatska spremna
je pruziti ono i onoliko, koliko objektivno moze. Dakle: Kosovo ne moze samo
- nasaje odgovomost da mu pomognemo pri prvim koracima u novome zivotu.
lsto tako ni Srbija ne moze sama - nasa je odgovomost da joj pomognemo u
suocavanju s novim okolnostima i u pronalazenju njezinoga mjesta u svjetskoj
zajednici u kojoj ée demokratska, stabilna Srbija uvijek biti dobrodosla. I,
napokon, jugoistocna Evropa ne moze sama; treba joj, dakle, pomoéi na putu
3kojim je krenula, na putu prevladavanja posljedica nedavnih ratova i
uspostavljanja dobrih odnosa medu novim drzavama, na putu koji ée sve zemlje
regije odvesti prema odredistu kojemu se Republike Hrvatska veé prilicno
primakla, prema Evropskoj uniji.
Od tih odgovomosti nitko ne smije pobjeéi. Nitko u regiji, nitko u Europi,
ali ni u svijetu. Kada to kazem, zelim naglasiti kako nema opravdanja za
egoizam koji bi zadovoljavanje pojedinacnih, odnosno uskih, kratkorocnih
interesa htio pretpostaviti ostvarivanju dugorocnih interesa cijeloga svijeta.
Iskreno vjerujem da je odgovomost prema vlastitome narodu i drzavi u
danasnjem globaliziranom svijetu nemoguée iskazivati i ostvarivati nezavisno
od odgovomosti prema siroj zajednici naroda i drzava, sto vrijedi kako za male,
tako i za velike zemlje.
To su stanovista koja ée odredivati pozicioniranje Republike Hrvatske
prema kosovskome kompleksu. Volio bih vjerovati da ée ih razumjeti i oni koji
Gos)misle drugacije.
4ANNEX2Legislature III
TRANSCRIPT
OF THE SPECIAL PLENARY SESSION OF THE ASSEMBLY OF KOSOVO
ON THE DECLARATION OF INDEPENDENCE
HELD ON 17FEBRUARY 2008
FEBRUARY 2008
1Session opened at 15.00.
Session is chaired by Mr. Jakup Krasniqi, President of the Kosovo Assembly
Co-chairs were Mr. Xhavit Haliti and Mr. Sabri Hamiti, members of the Assembly Chairmanship
(applause)
PRESIDENT OF THE ASSEMBL Y, JAKUP KRASNIQI:
Today, Kosovo is opening a new page in history, and is changing the political map of Europe
Leaving behind bitter memories of hatred and tragic strife we went through, we are now entering the age
of independence, peace and prosperity of our country.
There can be real peace and freedom only between equals. An independent Kosovo will be the homeland
of equal and happy citizens, building upon foundations of the best values of its tradition as well as
principles of modem democracy.
lt is a special privilege for the present generation in Kosovo to experience this great historical turn, an
honor for them, but also a great responsibility for the democratic and European development of the home
country and the generations that will succeed us.
Our solemn oath for Kosovo, a democratic country, is a contract with its citizens and a partnership with
the international community; itis the promise for lifelong dedication towards the most prosperous
underlying values of today's society.
Kosovo has never in its life had as many friends as today. However, tomorrow there will be even more. A
democratic culture and society, rule of law, peacemaking commitment, friendly neighborhood and the
spirit of dialogue, respect and good faith - will be the basis for expanding friendships and cooperation and
partnership.
I wiUtake this solemn opportunity to express feelings of the people of Kosovo who humbly bow before
the ones who were sacrificed on the altar of freedom for Kosovo.
With special respect, I thankall our friends, who with great commitment helped Kosovo in its historical
and decisive moments.
The Albanian people and.the citizens of Kosovo will be grateful forever.
On this special day, I feel honored to welcome the representative of the great family Jashari- Mr Rifat
Jashari.
(applause)
The Jashari family represents ail sacrifices for freedom of the Albanian people, it is the institution of
morals for Kosovo now and forever.
2Honorable Mr. President of Kosovo
Honorable Mr. Prime Minister of Kosovo
Honorable Members of the Assembly of Kosovo
Honorable representatives of the international presence in Kosovo
Honorable friends and guests
Honorable citizens of Kosovo and compatriots, wherever you are
Ladies and Gentlemen,
lt is with great pleasure that on behalf of the Assembly of Kosovo and on my persona! behalf, I welcome
and thank you ail, and those who are following us anywhere in the world, on these historical moments for
the future of the people of Kosovo!
(applause)
Honorable Assembly Members,
Welcome to the special solemn plenary session on this day, February 17 t, 2008, at 15.00 hours
lt is an honor for me to present to you today's agenda
The first item on our agenda is:
DECLARATION OF INDEPENDENCE
(applause)
The second item on our agenda is:
APPROVAL OF STATE SYMBOLS
104 Assembly members are present,
I ask the assembly members, to cast their vote on the approval of this proposed agenda.
Thankyou!
Any votes "against"? None.
I declare that the Assembly has approved the agenda by unanimous vote
109 assembly members are now present
I would like to invite the Prime Minister of Kosovo,Mr. Hashim Thaçi, to provide justification for the
request for the special and solemn Assembly session.
3THE PRIME MINISTER OF KOSOVO, HASHIM THAÇI:
Honorable Mr. Chairman,
President of Kosovo,
Honorable ministers,
Honorable Assembly Members,
Leaders of Political Parties,
Honorable guests - internationals, locals
Honorable Jashari Family,
Honorable representatives, guests from religious communities,
Honorable contributors to the agenda for the present special Assembly session,
Today, the President of Kosovo and myself, as the Prime Minister of Kosovo, have officially requested
from the President of the Assembly, Mr Krasniqi; to call for a special session with two agenda items,
This invitation for a special session is extended in accordance with the Kosovo Constitutional
Framework, whereby we present two items on the agenda:
1. DECLARATION OF INDEPENDENCE FOR KOSOVO, and
2. PRESENTATION OF KOSOVO STATE SYMBOLS
Mr. Chairman, thank you for calling this urgent session and for prompt approval by the Chairmanship of
the Assembly, as well as for the approval of this agenda. Let us continue.
Honorable Assembly President,
Honorable Assembly Members
Honorable President,
Honorable guests, citizens of Kosovo,
We have waited too long for this day. Many people gave so much to make this a reality, this big day-the
Day of Kosovo Independence.
Today, we honor those who have honored us with their sacrifice for freedom and state. We forever
remember and respect their names and their deeds. We keep their memory forever in our hearts.
We are deeply grateful to our friends and allies in the country and beyond, who have assisted us tojointly
reach this point.
I welcome ail ofthose who are with us today, and I express my deepest gratitude, my highest respect to
those who are following us on these moments, on behalf of my institutions and my people.
This day has corne! From now on, Kosovo is proud, independent, sovereign and free!
My family, as well as your family and ail families throughout Kosovo, never hesitated and never lost faith
in us, we never lost faith in God, injustice and in power.
4Let me mention the brother who left his family to go to war, the farmer who left his land a waste, the
women and men who opened their doors to teach our children, and the students, who as always, raised
and said - enough!
To all of those who came back to build a better life for their children, we never lost faith on a dream that
one day, we will be among free and independent countries of the democratic world.
All of us together, brought Kosovo to this moment and we all need to be proud, very proud.
As my parents and my grandparents, who taught me about sacrifice and what it means to be free, I ask
you to talk to your children, to your nephews and nieces and to explain to them the meaning of today's
day. It was a long, difficult road, a road of sacrifice, but also a road of victory.
Carry on this story to the next generations, the story about the joy and pride we feel today, and never
forget to remind them to remember great sacrifice of the generations before us.
Kosovo will face many challenges in the coming years
However, no challenge will make us surrender our way forward, with one joint spirit as one united
people, with a clear, pro-western political vision.
Our challenges, including economy, education and health, infrastructure and European integration, are
important challenges, but they cannot resist the positive spirit of our citizens and our fate.
Kosovo, both people and territory are united today in a historical moment, to improve the lives of each
citizen within our borders, regardless of ethnie origin.
Our hopes have never been higher. Our faith has never been bigger. The people of Kosovo have never
been more united. Our dreams know no Iimit. Kosovo has never had more international support.
The challenges before us are great, but nothing can stop us from moving forward - towards new historical
moments, which a new history will give us and we are jointly making the new history.
Today, the whole world is with us, and we are becoming an equal part of the democratic world. We are
becoming an equal part of a world we deserve.
Until now, we did a great deal to guarantee our commitment towards communities
On this historical day, honorable assembly members, I wish to reaffirm our political will to create the
necessary conditions for respecting and protecting the communities and for further improving
relationships between them in a new Kosovo.
Our constitution and our laws will reflect this, together with an inter-institutional strategy at all levels of
our new country.
Our commitments will be embodied in three main elements:
The first, a strong and irreversible guarantee by law of equal rights of all communities in Kosovo
5 The second, establishment of permanent mechanisms to guarantee that the communities play a complete
and active role in developing the future of our country, and
The third, is our responsibility to take effective and immediate measures to ensure that our commitments
result with positive change, for ail those living in Kosovo, especially members of minority communities
Our Constitution states that Kosovo is astate of ail its citizens. There is no place for fear, discrimination
or unequal treatment for anyone. We are building Kosovo with equal rights for everyone, with equal
opportunities for everyone.
Each discriminatory practice will be eradicated from our state institutions. Each discriminatory practice
will be eradicated from our society. In Kosovo, there will only be tolerance, understanding, living
together, solidarity and progress.
We ail agree that diversity brings positive benefits for ail
Honorable Assembly Members,
[in Serbian language] Honorable co-citizens,
Today's day brings the end of a long process
This is the end of the last threats and blunders that Belgrade will ever rule Kosovo again,
Kosovars themselves, of ail ethnie, religious and language origins will together carry their responsibility
for their country.
We make Kosovo independent, aiming that ail citizens enjoy the freedom and other benefits of our
country.
Let this day be the day of a new beginning!
Let this day mark a beginning of a better future for ail citizens of the state of Kosovo
[continues in Albanian language]
Honorable President of the Assembly
Honorable President
Honorable Assembly members
Honorable guests
Honorable citizens of Kosovo, wherever you are, in the Diaspora,
Kosovo is bringing a historical decision. Kosovo is declaring its independence in accordance with the
comprehensive proposai of President Ahtisaari.
The independence of Kosovo marks the end of the dissolution of former Yugoslavia. Implementation of
the Ahtisaari provisions, which are incorporated in the Kosovo Constitution, are a national priority to us
6 ail, to the institutions and to the people of Kosovo. The Assembly of Kosovo will soon adopt ail the main
laws resulting from the Ahtisaari document, in the coming days.
Honorable Assembly Members,
Kosovo highly appreciates the role played by the United Nations Organization in reconstructing Kosovo
and in building our democratic institutions. We expect to work with the United Nations Organization to
promote ourjoint efforts for peace, security and democratic development.
In addition, we welcome the new international mission, led by the European Union, which will assist us
in our democratic development and supervise the implementation of Ahtisaari plan, which is already a
Kosovo plan.
On this occasion, I would like to assure ail ofyou, through the voice of Kosovo institutions, and I would
.like to send this message and to assure our neighbors that Kosovo will do the best possible to establish
and maintain good relationships with ail neighboring countries. We aspire to have good mutual
relationships at a mutual interest with Serbia as well, having faith that this is in our common interest and
that of investment of our friends for peace and stability in the region.
From today on, Kosovo will be a democratic and multi-ethnic country of ail of its citizens, in its fast
journey towards Euro-Atlantic integrations. Thank you!
Thank you Mr. Chairman!
(applause)
PRESIDENT OF THE ASSEMBLY, JAKUP KRASNIQI:
Thank you, Mr. Prime Minister! I give the floor to the President of Kosovo,r. Fatmir Sejdiu
PRESIDENT OF KOSOVO, FATMIR SEJDIU:
Honorable President of the Assembly of Kosovo,
Honorable Chairmanship
Honorable Mr. Prime Minister, Hashim Thaçi,
Honorable Assembly Members and Ministers
Honorable family of_President Rugova
Honorable Jashari family,
(applause)
Honorable representatives of Kosovo institutions
Representatives of Diplomatie missions
Representatives of science, culture, cuits
Honorable citizens of Kosovo
[in Serbian language]
Honorable ministers,
7Honorable citizens of Kosovo,
[continues in Albanian language]
Ladies and Gentlemen,
Today's day separates the history of Kosovo intwo: the times before and after independence
The independence of Kosovo was created by generations, with their works of life, with bard work and the
sacrifice they have made.
We are declaring our independence before the world, and with the blessing of the world, among friends
who stood by us through decades, especially one decade ago, when the atrocities had spread in this part of
the Balkans. The same friends stood by us during recovery after the war, during reconstruction after
destruction caused by war and occupation. They stand by us today; they will stand by us tomorrow.
Today, we remember the sacrifices which led to this extraordinary day. We remember the mothers and
fathers, who went through hardship that cannot be described so that their sons and daughters can live in
freedom. Today, we remember President Ibrahim Rugova, the great leader and establisher of our country,
who brought Kosovo out of chaos into a democratic order. Today, we remember Adem Jashari and the
Kosovo Liberation Army who brought forward the will of the people to live in freedom. We also
remember our neighbors of ail ethnie, ideological and religious backgrounds who helped us during the
years of repression and war. We remember ail of this, not as a token of revenge for our violent past, but to
build a future full of trust, which will offer an environment for reconciliation and forgiveness.
These great events of our history, our sacrifices and the hopes and achievements, have brought us here to
declare our independence. The declaration of independence is the will of the people. It is a moral and
logical consequeilce of our history and it is in full accordance with recommendations of the Special
Envoy - President Martti Ahtisaari.
The independence for Kosovo is the end of a long process of dissolution ofYugoslavia. After two years
of engagement in negotiations over status with Belgrade, and despite serious and constructive engagement
of the Kosovo Unity Team, achieving an acceptable solution for both parties was not possible. Therefore,
we had to act to offer our people a clear perspective with the aim of advancing our political, social and
economic development.
Our vision for Kosovo is very clear. We wish to build Kosovo on fundamental democratic principles.
This means that Kosovo will be a democratic, multi-ethnic state, well integrated in the region, with good
relationships with its neighboring countries, a state that moves fast towards full membership in the Euro
Atlantic community. The people of Kosovo are determined and desire a European future for their country.
The comprehensive proposai on a status settlement for Kosovo in March of last year has been supported
by the Assembly of Kosovo. This package gives the Serbs, as well as other minorities: Turks, Bosniaks,
Roma, Ashkali and Egyptians, a strong guarantee on the protection of their political and cultural rights,
which in many points even exceed the most advanced international standards on rights of the minorities.
8The Constitution of the Republic of Kosovo guarantees multi-faceted and meaningful participation of
minorities inthe decision making process.
Honorable participants of this historical session of the Kosovo Assembly,
A national priority for the Kosovo Republic in the coming weeks and months is the full implementation
of the Ahtisaari plan. Very soon, we aim to adopt the laws and the new Constitution of Kosovo, which
also embodies Ahtisaari principles. Ali this will be followed with actual actions in the field in terms of
implementation of provisions contained in the Ahtisaari plan.
With today's act, Kosovo also assumes responsibilities as astate. At the same time, Kosovo reaffirms its
dedication for close cooperation with the international community to build a country in accordance with
the most advanced norms and principles of democracy. For this reason, Kosovo welcomes the deployment
of an international civilian presence, which will support further democratic development of our country,
as well as supervise the implementation of the Ahtisaari plan. Specifically, we value the willingness of the
European Community to assume a greater role in Kosovo. In addition, we welcome the continuous
military presence of the NATO troops. We are committed to cooperating closely with the civilian and
military representatives in Kosovo.
We are aware that members of minority communities in Kosovo see independence with a degree of fear
and skepticism. We will do ail that is possible to ensure that the rights, the culture and their property are
strictly honored in the independent Kosovo.
[in Serbian language]
Honorable citizens of Kosovo,
Honorable representatives,
I would once again like to take this solemn opportunity to again invite ail citizens of Kosovo, above ail
the citizens of the Serb community in Kosovo, to give their contribution in a common building of a
European Kosovo, where each citizen will feel like home. Kosovo is equally your home and your
homeland. Your rights and the rights of members of other communities in an independent Kosovo will be
a continuous obligation of our state institutions. Serb cultural and religious heritage will be entirely
protected. Your ethnie and language identity will be entirely honored, and we will achieve this by
working together in our daily lives and in the institutions of Kosovo.
[continues in Albanian language]
Honorable Assembly Members
We want to strongly point out that Kosovo wishes to have good neighboring relations with Serbia as well,
on a basis of mutual respect. We hope that our aim to normalize relations with Belgrade as soon as
possible will be supported by Serbia.
We are grateful for the role and the work cloneby the Organization of United Nations in reconstructing
post-war Kosovo. The United Nations Organization shall continue to have arole in Kosovo, for as long as
9UN Resolution 1244 will be in force. We will continue to cooperate with the UN in order to make
progress in our common goals of peace, security and democratic development for Kosovo, until full
membership of Kosovo in this prestigious organization.
Our integration will flow naturally, as with its values, Kosovo has always culturally belonged to this
family, but now, under new circumstances, Kosovo needs political integration to create new
opportunities, such that human and natural resources are put at the service of overall social and economic
development of our country.
Ladies and Gentlemen
The Republic of Kosovo today asks for the world' s embrace. As we await recognition by many countries
of the world, with a special piety we remember many worldly personalities who stood by the people of
Kosovo through decades, especially in its most difficult hours
Our people will be etemally grateful to the United States of America, the countries of the European
Union, NATO and other countries of the democratic world for the extraordinary support to our dear
country- Kosovo.
God bless Kosovo and its people!
God bless the Republic of Kosovo!
God bless ail friends of Kosovo!
(applause)
PRESIDENT OF THE ASSEMBLY, JAKUP KRASNIQI:
Thank you, Mr. President!
I invite the Prime Minister of Kosovo, Mr. Hashim Thaçi, to present the Draft Declaration of
Independence
(applause)
I invite the participants to stand up!
PRIME MINISTER OF KOSOVO, HASHIM THAÇI:
Honorable President of the Assembly
Honorable President,
Honorable Members of the Assembly
Honorable guests,
Honorable Jashari family
Honorable Rugova family
Thank you, United States of America, European Union and NATO! Respect!
10Now allow me to, by feeling the heartbeats of our ancestors, with the highest honor and privilege, read the
Declaration of Independence of Kosovo
(applause)
DECLARATION
OF INDEPENDENCE OF KOSOVO
Convened in a solemn extraordinary plenary session, on February 17,2008, in the capital of Kosovo,
Answering the call of the people to build a society that honors human dignity and affirms pride and
purpose of its citizens;
Committed to confront the painful legacy of the recent past and in the spirit of forgiveness and
reconciliation;
Dedicated to protection, promotion and honoring the diversity of our people;
Reaffirming our wish to be fully integrated in the Euro-Atlantic family of democracies;
Observing that Kosovo is a special case arising from the non-consensual dissolution of Yugoslavia and is
no precedent to any other situation;
Recalling the years of strife and violence in Kosovo, that disturbed the conscience of ail civilized people;
Grateful to the whole world that intervened in 1999, thereby removing Belgrade's govemance over
Kosovo and placing Kosovo under interim administration of the United Nations;
Proud that Kosovo has since developed functional multi-ethnic institutions of democracy, which freely
express the will of our citizens;
Recalling the years of negotiations sponsored by intemationals between Belgrade and Prishtina over the
question of our future political status;
Regretting that no mutually acceptable outcome was possible, in spite of the good-faith engagement of
Kosovar leadership and the important international role;
Confirming that recommendations of the Special Envoy of the United Nations, President Martti Ahtisaari,
provide a comprehensive framework for its future development, are in line with the highest European
standards on human rights and good govemance;
Determined to see our status resolved in such a way as to provide to our people clarity about their future
and to move beyond conflicts of the past, and to achieve full democratic potential of our society;
Honoring ail the men and women who made great sacrifice to build a better future for Kosovo
11 1. We, the democratically elected leaders of our people, through this
DECLARATION
HEREBY DECLARE KOSOVO AN INDEPENDENT AND DEMOCRA TIC STATE
(applause)
This declaration reflects the will of our people and is in full accordance with recommendations of the
Special Envoy of the United Nations, Martti Ahtisaari, and his comprehensive proposai for the Kosovo
Status Settlement.
We declare Kosovo to be a democratic, secular and multiethnic republic, guided by the principles of non
discrimination and equal protection under the law.
We shall protect and promote the rights of ail communities in Kosovo and create the conditions necessary
for their effective participation in political and decision-making processes.
We fully accept the obligations for Kosovo contained in the Ahtisaari Plan, and welcome the framework
it proposes to guide Kosovo in the years ahead.
We shall implement those obligations in full, including through priority adoption of the legislation
included in its Annex XII, particularly those that protect and promote the rights of communities and their
members.
We shall adopt as soon as possible a Constitution that enshrines our commitment to respect the human
rights and fondamental freedoms of ail our citizens, particularly as defined by the European Convention
on Human Rights.
The Constitution shall incorporate ail relevant principles of the Ahtisaari Plan and be adopted through a
democratic and deliberative process.
We welcome the international community's continued support of our democratic development through
international presences established in Kosovo on the basis of UN Security Council Resolution 1244 in
1999.
We invite and welcome an international civilian presence to supervise our implementation of the
Ahtisaari Plan, and a European Union-led rule of law mission.
We also invite and welcome the NATO to retain the leadership role of the international military
presence in Kosovo and to implement responsibilities assigned to it under UN Security Council
resolution 1244 from year 1999and the Ahtisaari Plan, until such time as Kosovo institutions are
capable of assuming these responsibilities.
We shall cooperate fully with these presences to ensure Kosovo's future peace, prosperity and stability
For reasons of culture, geography and history, we believe our future lies with the European family.
12We therefore declare our intention to take ail steps necessary to facilitate full membership in the
European Union as soon as feasible and implement the reforms required for European and Euro-Atlantic
integration.
We express our deep gratitude to the United Nations for the work it has done to help us recover and
rebuild from war and build institutions of democracy.
We are committed to working constructively with the United Nations as it continues its work in the
period ahead.
With independence cornes the duty ofresponsible membership in the international community. We fully
accept this duty and shall abide by the principles of the United Nations Charter, the Helsinki Final Act,
other acts of the Organization on Security and Cooperation in Europe, and the international legal
obligations and principles of international comity that mark the relations among states.
Kosovo shall have its international borders as set forth in Annex VIII of the Ahtisaari Plan, and shall
fully respect the sovereignty and territorial integrity of ail our neighbors.
Kosovo shall also refrain from the threat or use of force in any manner inconsistent with the purposes of
the United Nations.
We hereby undertake the international obligations of Kosovo, including those concluded on our behalf
by the United Nations Interim Administration Mission in Kosovo (UNMIK) and treaty and other
obligations of the former Socialist Federal Republic ofYugoslavia to which we are bound as a former
constituent part, including the Vienna Conventions on diplomatie and consular relations.
We shall cooperate fully with the International Criminal Tribunal for the Former Yugoslavia.
We intend to seek membership in international organizations, in which Kosovo shall seek to contribute
to the pursuit of international peace and stability.
Kosovo declares its commitment to peace and stability in our region of southeast Europe.
Our independence brings to an end the process ofYugoslavia's violent dissolution. While this process
has been a painful one, we shall work tirelessly to contribute to a reconciliation that would allow
southeast Europe to move beyond the conflicts of our past and forge new links of regional cooperation.
We shall therefore work together with our neighbors to advance a common European future.
We express, in particular, our desire to establish good relations with al! our neighbors, including the
Republic of Serbia with whom we have deep historical, commercial and social ties that we seek to
develop further in the near future.
We shall continue our efforts to contribute to relations of friendship and cooperation with the Republic
of Serbia, while promoting reconciliation among our people.
We hereby affirm, clearly, specifically, and irrevocably, that Kosovo shall be legally bound to comply
with the provisions contained in this Declaration, including, especially, the obligations for it under the
13Ahtisaari Plan.
In ail of these matters, we shall act consistent with principles of international law and resolutions of the
Security Council of the United Nations, including resolution 1244 (1999).
We declare publicly that ail states are entitled to rely upon this declaration, and appeal to them to extend
to us their support and friendship.
Thank you! Thank you very much!
(frenetic applause)
PRESIDENT OF THE ASSEMBLY, JAKUP KRASNIQI:
Thank you, Mr. Prime Minister!
Honorable Assembly Members,
I inforrn you that the vote will be cast electronically, thus I propose we proceed.
I declare that 109assembly members are present.
Are there any members who do not have their cards with you?
If any of you have no cards, you may vote by raising your hand.
I ask you, shall we vote electronically, or by raising our hand.
(from the hall: Let us vote by raising hand)
Who is "in favor"? Thank you!
This was the explanation on the voting method.
Who is in favor of the Declaration presented by the Prime Minister of Kosovo?
Thankyou!
Any votes "against"? None.
(applause)
I state that with ail votes "in favor" of the present members, Members of the Assembly of Kosovo,
today, on February 17, 2008, have expressed their will and the will of the citizens of Kosovo, for
Kosovo an independent, sovereign and democratic state.
(applause)
And from this point on, the political position of Kosovo has changed. Kosovo is:
A REPUBLIC, AN INDEPENDENT, DEMOCRA TIC AND SOVEREIGN STATE
(applause)
Congratulations to you and ail ofthose who are watching us!
(applause)
14CHAIRMAN, XHAVIT HALITI:
Honorable Assembly Members, please take your seats so we can proceed.
We proceed with solemn signature of the Declaration.
I invite the President of Kosovo, Mr. Fatmir Sejdiu, to sign the Declaration oflndependence!
I invite the Assembly President and the Prime Minister of Kosovo, to sign the Declaration of
Independence together!
(the invitees sign the declaration)
(applause)
CHAIRMAN, IBRAHIM GASHI:
I invite members of the Chairmanship, Mr. Xhavit Haliti and Mr. Sabri Hamiti to sign the Declaration
of Independence.
(signature follows)
I invite the member of Chairmanship, Mr. Eqrem Kryeziu, to sign the Declaration.
(signature follows)
CHAIRMAN, XHAVIT HALITI:
I invite the member of Chairmanship, Mr. Ibrahim Gashi, to sign the Declaration.
(signature follows)
I invite the member of Chairmanship, Mr. Nexhat Daci, to sign the Declaration
(signature follows)
I invite the member of Chairmanship, Naim Maloku.
(signature follows)
I invite the member of Chairmanship, Xhezair Murati.
(signature follows)
I invite the member of Chairmanship, Slobodan Petrovic. Absent.
I invite the Head of the Kosovo Democratic Party Parliamentary Group, Rame Buja
(signature follows)
I invite the Head of New Kosova Alliance Parliamentary Group, Ibrahim Makolli
(signature follows)
I invite the Head of Dardania Democratic League Parliamentary Group, Lulzim Zeneli
(signature follows)
I invite the Head of Kosovo Future Alliance Parliamentary Group, Ardian Gjini
(signature follows)
15I invite the Head of"7+" Parliamentary Group, Zylfi Merxha
(signature follows)
I invite the Head of SLS Parliamentary Group, Bojan Stojanovic. Not present!
I invite the member of Kosovo Assembly, Adem Grabovci.
(signature follows)
I invite the member of Kosovo Assembly, Adem Hajdaraj.
(signature follows)
I invite the member of Kosovo Assembly, Adem Salihaj.
(signature follows)
I invite the member of Kosovo Assembly, Agim Veliu.
(signature follows)
I invite the member of Kosovo Assembly, Ahmet Isufi.
(signature follows)
I invite the member of Kosovo Assembly, Ali Lajçi.
(signature follows)
I invite the member of Kosovo Assembly, Alush Gashi.
(signature follows)
I invite the member of Kosovo Assembly, Anita Morina-Saraçi.
(signature follows)
I invite the member of Kosovo Assembly, Armend Zemaj.
(signature follows)
I invite the member of Kosovo Assembly, Arsim Bajrami.
(signature follows)
I invite the member of Kosovo Assembly, Arsim Rexhepi.
(signature follows)
I invite the member of Kosovo Assembly, Bahri Hyseni.
(signature follows)
I invite the member of Kosovo Assembly, Bajram Kosumi.
(signature follows)
I invite the member of Kosovo Assembly, Behxhet Pacolli.
(signature follows)
I invite the member of Kosovo Assembly, Berat Luzha.
(signature follows)
I invite the member of Kosovo Assembly, Berim Ramosaj.
(signature follows)
I invite the member of Kosovo Assembly, Besa Gaxherri.
(signature follows)
I invite the member of Kosovo Assembly, Branislav Grbié. Not present!
I invite the member of Kosovo Assembly, Bujar Bukoshi.
(signature follows)
I invite the member of Kosovo Assembly, Donika Kadaj.
(signature follows)
I invite the member of Kosovo Assembly, Dragisa Mirié. Not present!
I invite the member of Kosovo Assembly, Drita Kadriu.
(signature follows)
I invite the member of Kosovo Assembly, Drita Maliqi.
(signature follows)
I invite the member of Kosovo Assembly, Driton Tali.
16(signature follows)
I invite the member of Kosovo Assembly, Edita Tahiri.
(signature follows)
I invite the member of Kosovo Assembly, Elheme Hetemi.
(signature follows)
I invite the member of Kosovo Assembly, Emrush Xhemajli.
(signature follows)
I invite the member of Kosovo Assembly, Enis Kervan.
(signature follows)
I invite the member of Kosovo Assembly, Enver Hoxhaj.
(signature follows)
I invite the member of Kosovo Assembly, Esat Brajshori.
(signature follows)
I invite the member of Kosovo Assembly, Etem Arifi.
(signature follows)
I invite the member of Kosovo Assembly, Ethem Çeku.
(signature follows)
I invite the member of Kosovo Assembly, Fatmir Limaj.
(signature follows)
I invite the member of Kosovo Assembly, Fatmir Rexhepi.
(signature follows)
I invite the member of Kosovo Assembly, Fatmire Berisha.
(signature follows)
I invite the member of Kosovo Assembly, Fehmi Mujota.
(signature follows)
I invite the member of Kosovo Assembly, Flora Brovina.
(signature follows)
I invite the member of Kosovo Assembly, Gani Buçinca.
(signature follows)
I invite the member of Kosovo Assembly, Gani Geci.
(signature follows)
I invite the member of Kosovo Assembly, Gani Koci.
(signature follows)
I invite the member of Kosovo Assembly, Gjylnaze Syla.
(signature follows)
I invite the member of Kosovo Assembly, Hafize Hajdini.
(signature follows)
CHAIRMAN, IBRAHIM GASHI:
I invite the member of Kosovo Assembly, Hajdin Abazi.
(signature follows)
I invite the member of Kosovo Assembly, Hajredin Hyseni.
(signature follows) .
I invite the member of Kosovo Assembly, Hajredin Kuçi.
(signature follows)
I invite the member of Kosovo Assembly, Haki Shatri.
(signature follows)
I invite the member of Kosovo Assembly, Heset Cakolli.
(signature follows)
17I invitethememberof KosovoAssembly,HydajetHyseni.
(signaturefollows)
I invitethememberof KosovoAssembly,IbrahimSelmanaj.
(signaturefollows)
I invitethememberof KosovoAssembly,IsmetBeqiri.
(signaturefollows)
I invitethememberof KosovoAssembly,KaçushaJashari.
(signaturefollows)
I invitethe memberofKosovoAssembly,Kolë Berisha.
(signaturefollows)
CHAIRMAN,XHAVIT HALITI:
I invitethememberof KosovoAssembly,KosaraNikolié.Absent!
I invitethememberofKosovoAssembly,LjubisaZivié.Absent!
I invitethememberof KosovoAssembly,LuljetaShehu.
(signaturefollows)
I invitethememberofKosovoAssembly,Lutfi Haziri.
(signaturefollows)
I invitethe memberof KosovoAssembly,MahirYagcilar.
(signaturefollows)
I invitethememberof KosovoAssembly,MarkKrasniqi.
(signaturefollows)
I invitethe memberof KosovoAssembly,MelihateTërmkolli.
(signaturefollows)
I invitethememberof KosovoAssembly,MemliKrasniqi.
(signaturefollows)
I invitethememberofKosovoAssembly,Mihajlo Scepanovié.Absent!
I invitethememberof KosovoAssembly,MimozaAhmetaj.
(signaturefollows)
I invitethememberof KosovoAssembly,MurselHalili.Absent!
I invitethememberof KosovoAssembly,MuferaShinik.
(signaturefollows)
I invitethe memberofKosovoAssembly,MyrvetePantina.
(signaturefollows)
18I invite the member of Kosovo Assembly, Myzejene Selmani.
(signature follows)
I invite the member of Kosovo Assembly, Naim Rrustemi.
(signature follows)
I invite the member of Kosovo Assembly, Nait Hasani.
(signature follows)
I invite the member of Kosovo Assembly, Naser Osmani.
(signature follows)
I invite the member of Kosovo Assembly, Naser Rugova.
(signature follows)
I invite the member of Kosovo Assembly, Nekibe Kelmendi.
(signature follows)
I invite the member of Kosovo Assembly, Nerxhivane Dauti.
(signature follows)
I invite the member of Kosovo Assembly, Numan Balié.
(signature follows)
I invite the member of Kosovo Assembly, Nurishahe Hulaj.
(signature follows)
I invite the member of Kosovo Assembly, Njomza Emini.
(signature follows)
I invite the member of Kosovo Assembly, Qamile Morina.
(signature follows)
I invite the member of Kosovo Assembly, Radmila Vujovié. Absent!
I invite the member of Kosovo Assembly, Ramadan Avdiu.
(signature follows)
I invite the member of Kosovo Assembly, Ramadan Gashi.
(signature follows)
I invite the member of Kosovo Assembly, Ramë Manaj.
(signature follows)
I invite the member of Kosovo Assembly, Rasim Selmanaj.
(signature follows)
I invite the member of Kosovo Assembly, Rita Hajzeraj.
(signature follows)
I invite the member of Kosovo Assembly, Riza Smaka.
19(signature follows)
I invite the member of Kosovo Assembly, Rrustem Mustafa ..
(signature follows)
I invite the member of Kosovo Assembly, Sabit Rrahmani.
(signature follows)
I invite the member of Kosovo Assembly, Sadik Idriz.
(signature follows)
I invite the member of Kosovo Assembly, Safete Hadërgjonaj.
(signature follows)
I invite the member of Kosovo Assembly, Sala Berisha-Shala.
(signature follows)
I invite the member of Kosovo Assembly, Sanije Aliaj.
(signature follows)
I invite the member of Kosovo Assembly, Selvije Halimi.
(signature follows)
I invite the member of Kosovo Assembly, Skender Hyseni.
(signature follows)
I invite the member of Kosovo Assembly, Slavisa Petkovié. Absent!
I invite the member of Kosovo Assembly, Suzan Novobërdaliu.
(signature follows)
I invite the member of Kosovo Assembly, Synavere Rysha.
(signature follows)
I invite the member of Kosovo Assembly, Shkumbin Demalijaj.
(signature follows)
I invite the member of Kosovo Assembly, Shpresa Murati.
(signature follows)
I invite the member of Kosovo Assembly, Teuta Hadri.
(signature follows)
I invite the member of Kosovo Assembly, Vezira Emrush.
(signature follows)
I invite the member of Kosovo Assembly, Vladimir Todorovié. Absent!
I.invite the member of Kosovo Assembly, Vlora Çitaku.
20(signature follows)
I invite the member of Kosovo Assembly, Xhevdet Neziraj.
(signature follows)
I invite the member of Kosovo Assembly, Zafir Berisha.
(signature follows)
I invite the member of Kosovo Assembly, ZefMorina.
(signature follows)
I invite the member of Kosovo Assembly, Zylfije Hundozi.
(signature follows)
Honorable Ladies and Gentlemen,
I declare that we have fulfilled our obligation by each of us signing the Declaration of Independence.
I invite the Chairman of the Parliament to resume chairmanship of the Assembly.
(applause)
PRESIDENT OF THE ASSEMBLY, JAKUP KRASNIQI:
Honorable Assembly members,
Let us continue with the second item on the agenda:
ADOPTION OF KOSOVO STATE SYMBOLS - THE FLAG AND SEAL
You, honorable assembly members, have before you the symbols - Flag and Sea!
To shorten the procedure, let us immediately proceed with voting
As we agreed to vote by band, I invite you to vote.
Who is "in favor"? Thank you!
(applause)
(At this point the flag is brought and placed in the hall)
(applause)
Honorable assembly members,
This is the flag of the youngest state in Europe and the world, of the state of Kosovo!
May we ail enjoy it! Congratulations!
21(applause)
Honorable assembly members
By congratulating you again on the Republic of Kosovo, independent and sovereign, and on the
approval of the flag of Kosovo, I hereby declare the session adjoumed.
(applause)
Prepared by:
The Transcript Unit within the Assembly of Republic of Kosovo
22ANNEX3Report of the International Civilian Office
27 February 2009
Vienna, Austria Report of the International Civilian Office
27 February 2009
1. Introduction
II. Meeting its Commitments-Kosovo's Progress in CSP Implementation
III. The Republic of Kosovo's GrowingNetwork of International Relations
N. The Year Ahead Reportof theInternationalCivilianOffice
27February2009
1. INTRODUCTION
February 2009 marks several significant milestones for the Republic of Kosovo and its
international partners. Just days ago, Kosovo completed its first year as an independent,
sovereign state, and 27 February, marks the completion of the first year of the mandate of the
International Civilian Representative (ICR). The past year witnessed much progress in Kosovo,
progress in building institutions, anchoring Rule of Law, in the creating and consolidating of the
elements of statehood, and in taking its place in the community of nations as a multi-ethnic
democracy. Through all its actions the state of Kosovo bas proven its independence and shown
that independence is irreversible. Kosovo bas also made strides, in partnership with the
International Civilian Office (ICO), in fulfilling the promises made to its citizens and to the
world when, in its Declaration of Independence, it committed itself to full implementation of the
Comprehensive Proposai for the Kosovo Status Settlement (CSP).
The ICO has successfully assumed the role assigned toit by the CSP and enshrined in Kosovo's
Constitution. We have forged strong ties with a range of Kosovo's leaders, both in the capital
and in the municipalities. To supervise and support CSP implementation, we work closely with
them as they prepare decisions. A spirit of cooperation prevails. Our approach is to hold frank
and confidential talks early on, rather than to pass judgment after they act.
Several moments stand out in the ICR's exercise of bis responsibilities: bis certification in April
2008 of the Constitution as in accordance with the terms of the CSP; bis certification, over a
period of months, of some 50 Ahtisaari-related laws as consistent with the CSP; his endorsement
of the President' s decision in January 2009 to allow Assembly mandates to continue and not to
terminate them to force new elections this year; and bis speech in the Assembly in February 2009
reflecting on the first anniversary of Kosovo's independence. These moments illustrate the range
of ICR activities, including political and ceremonial aspects.
The member states of the International Steering Group (ISG) have invested and continue to
invest significant resources, both financial and human capital, in Kosovo's future, directly and
through the ICO and other international organizations. Moreover, the ISG and ICO share an
ambitious vision for a rapid and thorough implementation of the CSP. Such a vision conforms to
the CSP itself, which requires a review of the ICR's powers and mandate within two years of the
CSP' s entry into force, with a view toward "reducing the scope of the powers of the ICR and the
frequency of intervention." Cognizant of this ambitious time horizon and grateful for theresources that ISG states have committed, the ICO offers this report to apprise ISG member
states both of the progress that has been achieved and the challenges that lie ahead.
IL MEETING ITS COMMITMENTS - KOSOVO'S PROGRESS IN CSP
IMPLEMENTATION
Whenon 17February2008thedemocratically-electedleadersof thepeopleof Kosovotook the stepof
declaringKosovoanindependentandsovereignstate,theycommittedthemselveswithoutreservationto
the implementationof the CSP,embeddingthesecommitmentsintothe Declarationof Independence
itself. Bydoingso,theyreflectedthewill ofthepeopleof Kosovo.
"We accept fully the obligations for Kosovo contained in the Ahtisaari Plan, and
welcome the framework it proposes to guide Kosovo in the years ahead. We shall
implement in full those obligations including through priority adoption of the
legislation included in its Annex XII, particularly those that protect and promote the
rights of communities and their members."
Declaration of Independence of the Republic of Kosovo
Just weeks after independence, on 1 April, the Constitutional Commission of Kosovo adopted a
draft constitution, which incorporated, inter alia, Kosovo's obligations to comply with the CSP
as well as the authority of the ICR as the final interpreter of the CSP into the domestic legal
sphere. One day after its approval by the Commission, the ICR certified that the draft text was in
accordance with the terms of the CSP and on 9 April 2008 it was adopted by the Assembly of
Kosovo. The Constitution of Kosovo entered into force 15 June 2008 together with 41 laws
promulgated by the President of the Republic the same day.
In the first ten months of its existence as the supreme legislative body, the Assembly of Kosovo
passed over 50 laws directly related to the implementation of the provisions of the CSP. Included
among these legislative provisions were acts to decentralize goveming authority to Kosovo's
municipalities; to build Kosovo's goveming capacity; and to safeguard the rights and freedoms
of Kosovo's communities, including through the protection of religious and cultural heritage.
1. Decentralization
Among the earliest CSP implementing laws were those conceming the vitally important process
of decentralization. Laws on Local Self-Government, Boundaries of Municipalities, Local
Government Finance, Local Education and Local Health not only establish the framework for the
new municipalities to be formed under the CSP, butjust as importantly codify the central
principle of decentralization itself - that the interests of democracy and efficacy are best served
by moving governing capacity doser to citizens. Consistent with these laws, EUR 3.9 million
has been set aside for the expenses of the new municipalities to be formed according to the CSP;
the Ministry of Local Self-Government has led a nationwide publicity campaign on the benefits
of decentralization; and the ICO is working closely with the Govemment of Kosovo's Inter
Ministerial Working Group on Decentralization to determine the modalities for the formation ofthe Municipal Preparation Teams that will be tasked with building the goveming infrastructure
of the new municipalities. The first transfer of competencies took place in January 2009. The
ICO has worked closely with both the Govemment and the Assembly in order to ensure the
timely adoption of relevant legislation and its implementation.
Establishing aMitrovica North municipality, as foreseen by the CSP, still remains a challenge
for the overall perception of the decentralization process.
2. Institution Building
Security Sector Reform
Another set of CSP-implementing legislation passed early on by the Assembly concemed laws
designed to establish the institutions needed to exercise the full measure of sovereignty. The Law
on the Kosovo Security Council, the Law on the Ministry for the Kosovo Security Force, the
Law on Service in the Kosovo Security Force, the Law on the Civil Aviation Authority, and the
Law on the Establishment of the Kosovo Intelligence Agency are just a few that have been
passed in the framework of a coherent reform of the security sector, according to the principles
and provisions of the CSP.
Minister Fehmi Mujota was named Kosovo's first Minister for the Kosovo Security Force
(KSF); he has played an important role - consistent with his position and the principle of civilian
control of security bodies - in the selection of the KSF commander and KSF officers. Though
not without difficulties, this process permitted the deactivation of the Kosovo Protection Corps
on 20 January 2009, and the beginning of KSF training.
In September 2008, the Govemment of Kosovo named Driton Gjonbaljaj as the Director General
of Kosovo's Civil Aviation Authority. The KCAA has taken the lead in assuring the safety of
civil aviation in Kosovo and represented Kosovo in regional civil aviation fora.
On 6 February 2009, the Assembly of Kosovo confirmed Bashkim Smakaj as the füst Director of
the Kosovo Intelligence Agency, and he has been charged with the development of an agency
that is multi-ethnic and apolitical. The Kosovo Security Council held its first meeting 11
February 2009 and efforts are underway to build a KSC Secretariat that will permit this body to
take its proper role in coordinating Kosovo's national security and safety policy, while not
duplicating the fonctions of govemment ministries.
In accordance with provisions of the CSP, the Republic of Kosovo has undertaken to demarcate
its border with the former Yugoslav Republic of Macedonia. Both countries named
representatives to a Joint Technical Commission (JTC), which has held numerous sessions.
Together, the JTC has agreed on the location of the placement of all of the primary border
stones. A small section of the border, near the villages of Debellde/Debelde and Tanusevci,remains to be demarcated. The ICO has been closely involved in the process of border
demarcation, both in the JTC and along the border.
Rule of Law
One major element for the future development of a functioning Rule of Law sector was to deploy
the largest ESDP mission to date, EULEX, throughout the country in late 2008. Its police,
judges, prosecutors and customs officiais will provide indispensable support to Kosovo's efforts
to strengthen the rule of law. Efforts to establish a Constitutional Court also made important
progress in the course of the last twelve months. A Law on the Constitutional Court was adopted
in late 2008, and an interim mechanism for registering prospective cases for this court has been
established. The process of the selection ofjudges, both international and national, is now
underway. International judges will be appointed in coordination with the President of the
European Court of Human Rights.
The Constitution of Kosovo has established the Kosovo Judicial Council (KJC), an independent
body responsible, inter alia, for ail decisions on the proposai of candidates for judicial office.
Kosovo has, since then, adopted implementing legislation in order to regulate further the
composition and organization of the KJC.
Efforts are also underway regarding the comprehensive Kosovo-wide review and reappointment
process of alljudges and prosecutors foreseen by Annex IV of the CSP and the Constitution. The
President of the Republic of Kosovo has appointed all members on the Independent Judicial and
Prosecutorial Commission in January (JJPC). The UPC has recently launched the reappointment
process for alljudges and prosecutors.
Economy
A comprehensive set of CSP-implementing legislation passed by the Assembly concerned laws
designed to establish the institutions needed to define the legal framework for thè economy as
defined and prescribed by CSP. This included legislation on publicly-owned enterprises; on the
Privatization Agency of Kosovo (PAK); the Kosovo Property Agency (KPA); and on the various
independent econornic regulators of Kosovo. Following the adoption of the laws, the PAK
successfully started to work last summer and KPA accelerated the settlement of daims.
Furthermore the ICR made key appointments in the area of econornics as foreseen by the CSP,
including the Auditor-General of Kosovo, a member of the board of the Kosovo Pensions
Savings Trust (KPST) and members of the Board of PAK.
3. Community Rights and Religious and Cultural Heritage
The protection of community rights and of religious and cultural heritage are at the very heart of
the CSP and central to the Kosovo Constitution's inclusion of rights for this multi-ethnic,
secular, democratic state. Among the first of such laws passed by the Kosovo Assembly was theLaw ontheProtectionand Promotionof Rightsof Communitiesand their Membersandthe Law
on theEstablishmentof SpecialProtectiveZones.The first piece of legislationprovidesthe legal
frameworkfor communityrightsin the constitution,includingin therealms of education,
identityandtheuse of Kosovo's officiallanguages.The rights of communitiesandtheir
members,andtheirinclusionin Kosovo's public life are also the workof the Communities
ConsultativeCouncil(CCC).The CCC wasestablishedin accordancewiththe Kosovo
Constitutionandwasformedby a decreeof the President of Kosovo.lt held its first sessionin
December2008.
The LawontheEstablishmentof SpecialProtectiveZones sets up a mechanismtoprotect
Kosovo'srichreligiousandculturalpatrimony,includingbut not limitedto the sites of the
SerbianOrthodoxChurch (SOC).These protectionsaim to prohibitland use that would detract
fromthecharacteror appearanceof the sitesor disturbthe monasticlife of the clergy.While
SpecialProtectiveZones aredesignedto protectsome SOC sitesfrom development,the Kosovo
authoritieshavetaken practicalstepsto supportthe physical protectionof SOCsitesand the
economicsustainabilityof the Church.The Govemment of Kosovo,through itsMinistryof
CultureYouthand Sport,contracteda privatesecurityfirm to provide round-the-dock protection
to SOCsitesconsideredtobe in the greatestdanger.In February 2009,this contractwas
suspendedandthe KosovoPoliceassumeditsresponsibilitywith a 24-hour-a-dayprotection of
these sites.
The KosovoPolice's implementationof their OperationalOrder for protectionof SOC holy sites
willpermitinternationalpartners,like KFOR,to proceed withplans to withdrawfrom such
tasks,withoutplacingthese churchesand monasteriesin additionaldanger.The implementation
of the OperationalOrder is donein close collaborationwith the ICO.As for theeconomic
sustainabilityof the SOC,the KosovoCustomsCode,passed in late 2008,includedCSP-related
provisionsexemptingthe SOCfrom the paymentof certain customs duties. Similarexemptions
willhaveto be adoptedto implementotherCSP provisions on SOC self-sustainability.
lt bas beena challengefor the Govemment of Kosovoto addressthe needs of the Kosovo Serb
communityappropriatelydueto lack of dialoguebetween the majoritycommunityand the
KosovoSerbcommunity.The ICR,primarilyin bis capacity as EUSR,is facilitatinga Round
Tablebetweenkey govemmentministersand Kosovo Serb representatives.Its goalis to discuss
an effectiveimplementationof the CSP withregardto the needs of the KosovoSerbcommunity.
For a completepictureof theprogressmadeto date on CSP implementation,pleaserefer to the
mostrecentversionof ICO's CSP ImplementationMatrix.III. THE REPUBLIC OF KOSOVO'S GROWING NETWORK OF INTERNATIONAL
RELATIONS
17 February 2008 witnessed the declaration of Kosovo'.s independence, and hence its entry into
the family of independent, sovereign states; the year that followed bas seen Kosovo' s leadership,
together with its international partners, consolidate its statehood through the establishment of a
growing network of international relations.
Since its Declaration of Independence, 55 states have formally recognized Kosovo' s statehood,
including 22 of the 27 member states of the European Union, and states from every continent. lt
bas also been recognized by three of the four states with which it shares common borders.
Kosovo bas issued its citizens with identity documents, including passports. These passports
have been recognized as valid for travel by other states.
In March 2008, the Assembly of Kosovo passed a Law on the Ministry of Foreign Affairs and
Diplomatie Service of Kosovo. Skender Hyseni was named Kosovo' s first Foreign Minister and
was charged with building both bis ministry and Kosovo's diplomatie representations abroad.
Laudable efforts are underway on both fronts. The initial legislation was followed by a Law on
the Foreign Service of the Republic of Kosovo and a Law on the Consular Service in Diplomatie
and Consular Missions of the Republic of Kosovo. These laws provided the legal basis for the
establishment of Kosovo' s first diplomatie and consular presences abroad. Kosovo' s first foreign
missions, to be headed by ten Chargés d'affaires, were announced in August 2008. The ICO bas
supported the build-up of the Ministry of Foreign Affairs by establishing the Extemal Relations
Working Group, which includes officiais from the Ministry and ISO representatives.
The Govemment of Kosovo bas received numerous diplomatie delegations including several
Heads of State and Government, and numerous ministers including ministers of foreign affairs.
The Kosovo Prime Minister, Foreign Minister and other Ministers have also been invited abroad
to further cooperation.
In July 2008, the Republic of Kosovo submitted official applications for membership in the
International Monetary Fund and the World Bank. These applications have the full support of the
ICO, and the ICR bas lobbied for their acceptance. The IMF membership committee bas been
formed and is about to start its work.IV. THE YEAR AHEAD
Kosovo and the ICO now enter their second year. ICO's partnership with the Kosovo
Govemment and institutions remains strong. It would be irresponsible, however, to assume that
the progress achieved to date ensures a successful conclusion. Much work lies ahead, particularly
in monitoring the implementation of CSP laws.
Our strategic priorities for the coming months are to:
• help ensure a successful completion of the reform of the security sector;
• keep our focus on decentralization;
• help strengthen the rule of law, in close cooperation with EULEX;
• attend to good govemance and economic reform.
Of all sectors, that involving public security and safety has seen the most institutional progress
over recent months. All security institutions set forth in Annex VIII of the CSP and Chapter XI
of the Constitution are now moving ahead. But some are untried in practice and incomplete in
personnel. Resource needs will continue. The ICO and the international community will have to
offer steady support to ensure that the fledgling institutions, given their central role in society,
will develop.
As in 2008, ICO will continue its work with the Govemment of Kosovo to advance the process
of decentralization, both the creation of the five-plus-one municipalities foreseen in the CSP and
the transfer of competencies to all of Kosovo's local govemments. A successful decentralization
process, which will allow all communities to determine their own affairs on the local and
municipal level, will be a key element for a sustainable reconciliation in Kosovo.
Further efforts to enhance good govemance and the Rule of Law are needed. The ICO will
continue to work closely with the EULEX mission, in order to foster the rule of law in Kosovo.
The challenges range from enabling the operations of Customs throughout the territory; efficient,
fair and competent courts; as well as a competent multiethnic police throughout the entire
territory of Kosovo.
Finally, the accelerated reform of the economy must include several elements, all of which touch
on CSP responsibilities. The ICO will continue to encourage fiscal responsibility from the
Govemment of Kosovo, mainly by enhancing the sustainability and the quality of the budget,
through CSP-mandated budget consultations. ICO will also encourage its Kosovo partners to
keep their pledge to complete quickly, through the Privatization Agency of Kosovo, the
privatization of socially-owned enterprises and the assessment of creditor and ownership daims
over them. Kosovo also needs to start privatizing large publicly owned enterprises in atransparent manner, as well as to improve standards of the governance of all publicly-owned
enterprises, with a view toward their eventual privatization. The ICO will work together closely
with the Kosovo authorities to push for a transparent and objective process of selecting and
appointing members of boards and other key positions, as foreseen in the CSP. The ICR will also
support the reform of the energy sector in order to help establishing a viable economic
development.
Through continued effort and vigilance, we believe that 2009 will be a year of progress for
Kosovo -- progress in meeting its commitments to itself and to its international partners to
implement the CSP, and progress toward the destiny foreseen in its Constitution, "as a free
democratic, and peace-loving country that will be a homeland to all of its citizens."
Written Statement of the United States of America