M INISTRY OF FOREIGN AND E UROPEAN A FFAIRS
The Director for Legal Affairs
No. 758/DJ
Mr Philippe Couvreur
Registrar of the International Court of Justice
Peace Palace
2517 KJ The Hague
Netherlands
Paris, 7 April 2009
Within the deadline set by the International Court of Justice by its order of 17 October 2008,
I have the honour to send to you, enclosed, the written statement of the French Republic in the case
concerning the Accordance with International Law of the Unilateral Declaration of Independence
by the Provisional Institutions of Self-Government of Kosovo (request for an advisory opinion). As
you requested in your letter of 20 October 2008,original of this statement is accompanied by
30 copies. I am also enclosing an electronic version of the written statement on CD-ROM.
Yeoc.s
(Signed) EdwigeB ELLIARD .
___________ INTERNATIONAL COURT OFJUSTICE
R EQUEST FOA DVISORYOPINION
ACCORDANCE WITH INTERNATIONALLAW OF THEUNILATERAL DECLARATION
OFINDEPENDENCE BY THEPROVISIONALNSTITUTIONS OF
SELF-GOVERNMENT OFK OSOVO
W RITTENSTATEMENT BY THEFRENCH REPUBLIC
17 April 2009
[Translation by the Registry] INTERNATIONAL COURT OF USTICE
REQUEST FOR ADVISORYO PINION
ACCORDANCE WITH INTERNATIONAL LAW OF THE UNILATERAL DECLARATION
OF INDEPENDENCE BY THEPROVISIONAL NSTITUTIONS
OF SELF-GOVERNMENT OF KOSOVO
W RITTENSTATEMENT BY THEFRENCH R EPUBLIC
SUMMARY
Page
Introduction........................................................................
..................................................... 1
I. A Request for an advisory opinion that falls outside the Court’s ju12cial function.......
II. The limited scope of the question submitted to the Court ..........25.................................
Conclusion..............................................................
................................................................. 48
Table of contents........................................................................
............................................. 49 INTRODUCTION
1. On 8 October2008, the United Nations General Assembly adopted resolution63/3,
entitled “Request for an advisory opinion of the International Court of Justice on whether the
unilateral declaration of independence of Kosovo is in accordance with international law”. By this
resolution, the General Assembly addressed the following question to the Court:
“Is the unilateral declaration of independence by the Provisional Institutions of
Self-Government of Kosovo in accordance with International Law?”
2. This request for an advisory opinion w as transmitted to the Court on 9 October2008 by
the Secretary-General of the United Nations and wa s notified to all States with standing before the
Court by letter dated 10October. By an order of 17 October2008, the Court decided that “the
United Nations and its Member States are... lik ely to be able to furnish information on the
question submitted to the Court for an advisory opinion” and fixed 17 April 2009 as the time-limit
within which written statements could be put to th e Court in conformity with Article 662) of its
Statute. In response to this order, France considers it necessary to convey to the Court the
observations which, in its view, are required in re gard both to the request itself and to the question
that the request refers to the Court.
3. Before considering legal issues related to the request to the Court for an opinion, France
would like briefly to recall the sequence of events which led the United Na tions General Assembly
to adopt resolution 63/3 (1), and the more general context of that resolution (2).
1. The adoption of General Assembly resolution 63/3
4. Draft resolutionA/63/L.2, submitted by Se rbia on 23Septembe r2008, was adopted in
plenary on 8 October by 77 votes to 6 and 74 ab stentions without amendment and without referral
1
to a Main Committee . The draft resolution had been included under item 71 on the agenda of the
sixty-third session of the General Assembly, drawn up several weeks earlier at the initiative of
Serbia , entitled “Request for an advisory opinion of the International Court of Justice on whether
the unilateral declaration of independence of Kos ovo is in accordance with international law”, and
included under heading (F), “Promotion of justice and international law”.
5. France stated its conviction that, whether or not it led to the adoption of the resolution the
Republic of Serbia was seeking and then, possibly, to an advisory opinion, this initiative taken in
the General Assembly was not by nature capable of achieving Serbia’s objectives. France does not
consider that the artificial distinction that Serbia is trying to draw between analysing Kosovo’s
declaration of independence from the political point of view on the one hand, and in legal terms on
3
the other, is a way of averting the possible “destabilizing consequences” that Serbia fears.
1
See the verbatim record of the 22nd Plenary Meeting, A/63/PV.22, 8 October 2008, p.11.
2See the letter from the Permanent Representative of Serbia to the United Nations dated 15August2008,
A/63/195.
3See the explanatory memorandum attached to the request for the inclusion of item 71 on the agenda, ibid.,: “We
(Serbia) hold that the most principled, sensible way to ove rcome the potentially destabilizing consequences of Kosovo's
unilateral declaration of independence is to transfer the issue from the political to the juridical arena”. - 2 -
6. France, as it explains in this statemen t, does not believe that presenting Kosovo’s
declaration of independence from an exclusively legal point of view – even though it acknowledges
that this would be possible ⎯ can take proper account of so singular a question. In this connection,
it is not possible to tell from Serbia’s initiative how the General Assembly could take action on the
basis of an opinion of the Court, assuming that the Court was in a position to give such an opinion,
and whatever that opinion might be, given that it is a matter for each State to determine whether or
4
not it recognizes the existence of Kosovo . Nor, and for good reason, does resolution 63/3 indicate
how the General Assembly could rely on an opinion of the Court for the purposes of confirming or
altering the present situation of Kosovo.
7. In the opinion of France, it follows that, whether from a political or a legal point of view,
the present request for an advisory opinion does not appear to offer ways and means of achieving
the objectives that Serbia states it is pursuing, ho wever legitimate and incontestable the principles
that it cites may be: namely, the primacy of law in international relations and the preeminent role
of the International Court of Justice, in its cap acity as the principal judicial organ of the United
Nations.
8. The common desire to see the Balkans e xperience stability and for reconciliation between
the peoples of the region will be fully achieved onl y if they unite around a common future, not by
keeping open the scars of the past. France, as it has repeated on numerous occasions, including the
vote on resolution63/3, is guided by the essential objective of offering this common future to the
peoples of the western Balkans within the framework of the European Union. Thus France, while
respecting and commending Serbia’s commitment to act with the greatest possible restraint
5
“through diplomacy and international law” , entertains the greatest doubts as to any genuine effects
that an opinion of the Court could have.
2. The historical context of the request for an advisory opinion
9. By an irrevocable decision, France recognized the State of Kosovo on the day after the
declaration of independence, as did more than 55 Member States of the United Nations, including
22Member States of the European Union 6. By this act, France not only confirmed Kosovo’s
standing as a sovereign and indepe ndent State and the definitive conclusion of a political process
begun in 1999, but also wished to open for the future with a now independent Kosovo, as it has
with all the States of the region, a new page in its relations with the Balkans after the tragic events
of the 1990s. France’s intention was also to become more widely involved in the European
Union’s commitment to promote the stability of the region, and support the observance of human
rights and the principles of the rule of law .7
10. The declaration of independence of Kos ovo, officially approved on 17 February 2008 by
the Assembly of Kosovo, brought to a conclusion an unprecedented situati on which had its origin
in the dissolution of the former Yugoslavia, th e repression of the Albanian community in Kosovo
and the conflict which followed in 1999 (a). Nor, moreover, can the declaration of independence
be discussed without recalling the major efforts that have been, and continue to be, made by the
4
See below, para. 1.16.
5
See the verbatim record of the 22nd Plenary Meeting, A/63/PV.22, 8October2008, p.1. See also the
declaration of the President of Serbia, Mr Tadić, in the Security Council, S/PV.5839, 18 February 2008, p. 5.
6At the date of drafting of the present statement, 56 States have recognized Kosovo’s independence.
7See inter alia the conclusions of the Council of the EuropeUnion dated 18February2008, reproduced in
S/2008/105, Annex; see also below, paras. 28-29. - 3 -
international community, including the European Union, to guarantee peace, stability and the
promotion of the principles of the rule of law in Kosovo and the wider region (b).
(a) The crisis in Kosovo (1989-1999)
11. The wide autonomy that the Yugoslav constitution of 1974 had guaranteed to Kosovo
(for example, by giving it dual status as a component both of Serbia and of the Socialist Federative
Republic of Yugoslavia) had increasingly been called into question from 1981 onwards, and was
withdrawn in 1989, resulting in the forcible and complete integration of Kosovo into Serbia. In the
context of the break-up of the Yugoslav Federati on in 1991-1992, and subsequently, within the
Federal Republic of Yugoslavia (Serbia-and -Montenegro), (hereafter the FRY), the Kosovo
Albanian community was subject to discriminatory measures, including the deprivation of access to
public employment, in an economy which was at the time entirely State-controlled, the closure of
schools and universities, the prohibition of the u se of the Albanian language, and violence against
individuals. The latter claimed thousands of victims even before a guerrilla movement had
appeared, and contributed to massive outward migration. Within this community, these
discriminatory measures created a widespread movement demanding independence for Kosovo,
triggering a violent crisis which, following closely on events with tragic humanitarian implications
8
in the former Yugoslavia, once more threatened security in the Balkans .
12. The crisis in Kosovo reached its culmination at the end of the 1990s, after the first armed
confrontations broke out. These events led the in ternational community to multiply its efforts with
the aim, initially, of fostering dialogue with a vi ew to a political solution, and then, faced with a
deteriorating situation, to put an end to an excep tionally grave crisis in Kosovo and to prevent it
from having disastrous consequences.
13. In March 1998, as the conflict intensifie d, the Contact Group, bringing together the
Foreign Ministers of Germany, the United States, the Russian Federation, Italy and the United
Kingdom, the Organization for Security and Co-operation in Europe (OSCE) and the United
Nations Security Council, among others, swiftly condemned “the excessive use of force by Serbian
police forces against civilians and peaceful de monstrators in Kosovo”, as well as “all acts of
terrorism by the Kosovo Liberation A9my or any other group or individual, and all external support
for terrorist activity in Kosovo” . From that date until the deployment of the forces of the North
Atlantic Treaty Organization ( NATO), which began on 24 March 1999 1, the humanitarian
8
As the Interagency Needs Assessme nt Mission sent to the Federal Republic of Yugoslavia by the
Secretary-General of the United Nations was to recall, “The... crisis in Kosovo has complex historical, political and
socio-economic roots. Long-standing, systemic violation of civil, political and human rights led, in turn, to an escalating
pattern of violence and retaliation. In particular, a pattern of serious human rights abuses against Kosovo Albanians had
been documented by the Special Rapporteurs of the Commission on Human Rights, the Office of the High Commissioner
for Human Rights and other independent observers since 1993. ” (S/1999/662, 14 June 1999, A nn., p. 11, para. 12). See
the judgment of the Trial Division of the International Criminal Tribunal for the former Yugoslavia (ICTY) of
26 February 2009, Milutinović and Others, Case IT-05-87-T, Vol. 1, paras. 213-230.
9Resolution 1160, dated 31 March 1998, third recital of te Preamble. See also th e declaration on Kosovo
adopted by the Contact Group on 9 March2008 (S/1998/223), and Decision 218 adopted by the Permanent Council of
the Organization for Security and Co-operation in Europe on 11 March 1998 (S/1998/246).
10For an overview of the crisis between March 1998 andMarch 1999, see the Report of the Interagency Needs
Assessment Mission, op. cit ., footnote 8, pp.12-14, paras.13-17. ee also ICTY, judgment of 26 February 2009,
Milutinović and others, op. cit., footnote 8, particularly Vol. 1, para. 350. - 4 -
situation continued to deteriorat e, bringing with it a significant increase in the number of refugees
and displaced persons , and above all reflecting a generalization of the violence in Kosovo . 12
14. On 17 March 1999, the United Nations Secretary-General indicated that “the
humanitarian and human rights situation in Kosovo remain[ed] grave” and that the [...]
background investigations [by the Office of the United Nations High Commissioner for Human
Rights] of targeted violence further confirmed th e observations expressed in [his] previous report
that the nature of violent activity in Kosovo, which ha[d] now spread to urban areas, ha[d]
increased the number of 13ople who live[d] in fear of being directly affected by violence or
arbitrary treatment” . And the Secretary-General added, on the same date, that the proliferation of
violence against civilians in Kosovo “contributed to the climate of fear and insecurity, causing deep
14
distrust among communities and adding to humanitarian and social problems in Kosovo” .
15. During the same period, the United Nations Security Council fulfilled its principal
responsibility of maintaining international peace and security by adopting several resolutions under
ChapterVII of the United Nations Charter, including the imposition of an arms embargo on the
FRY . In addition, the Security Council consiste ntly supported the efforts of the Contact Group
aimed at achieving a peaceful solution to the cr isis and reaching agreement on a political solution
between the FRY authorities and the Kosovo Albanian leadership. Thus, in a statement by its
President of 29 January 1999, the Security Counc il welcomed a new initiative by the Contact
16
Group seeking to achieve a political settlement between the parties . This initiative culminated in
an international Conference, held at Rambouille t and Paris in February and March 1999, but the
17
FRY did not sign the agreements negotiated there , the Belgrade authorities categorically
1See the letter dated 20 February 1999 from the Chairm an-in-Office of the OSCE to the Secretary-General,
S/1999/214 (Ann.), p.7: “UNHCR estimates that the overall level of displacement within Kosovo is still at 210,000”.
The number estimated by OSCE, at 20 March 1999, was at least 230,000 people, see the report on the situation on
Kosovo in pursuance of Security Council resolutions 1160 ( 1998) and 1203 (1998), addressed to the Secretary-General
by the Chairman-in-Office of the OSCE, S/1999/315 (Ann.), 23 March 1999, p. 7. This report also draws attention to the
continuing “departure of Serbs and other minorities from Kosovo” ( ibid., p.6). The Interagency Needs Assessment
Mission sent to the FRY from 16-27 May 1999 reported that “by 24 March 1999, UNHCR estimated that there were
some . . . 260,000 displaced persons in Kosovo” (op. cit., footnote 8, p. 12, para. 16).
1On 29 January 1999, in his report to the Security Counc il, the United Nations Secretary-General indicated that
“the human rights situation in Kosovo ha s remained consistently grave for nearly 11 months... The most disturbing
new element is the spread of violence in Kosovo and the transformation of the nature of that violence” S/1999/99,
paras. 3 and 4).
1S/1999/293, 17 March 1999, para. 4.
1Ibid., para. 5.
1See resolutions 1160 (1998), 1199 (1998) and 1203 (1998). Se veral declarations by the President of United
Nations Security Council were also adopted, see S/PRST/1998/25 (24 August 1998), S/PRST/1999/2 (19January1999)
and S/PRST/1999/5 (29 January 1999).
1S/PRST/1999/5, 29 January 1999. In addition, the Security Council: “reiterates its full support for international
efforts, including those of the Contact Group and the Orga nization for Security and Co-operation in Europe Kosovo
Verification Mission, to reduce tensions in Kosovo and facilitate a po litical settlement on the basis of substantial
autonomy and equality for all citizens and ethnic communities in Kosovo and the recognition of the legitimate rights of
the Kosovo Albanians and other communities in Kosovo”.
17
“The Rambouillet Accords: Interim Agreement for Peace and Self-Government in Kosovo” are reproduced
under the official United Nations reference S/1999/648. - 5 -
rejecting, among other things, any deployment of foreign forces charged with implementing a
peace agreement . 18
16. Thus, in March 1999, the situation in Kos ovo reached a point of no return, as fears of a
19
new humanitarian disaster were realized . The mission sent by the Secretary-General to the FRY
in May 1999 summarized the impact of the crisis in Kosovo as follows: “The crisis in Kosovo has
resulted in the mass forced displacement and de portation of hundreds of thousands of civilians,
wholesale destruction of property and means of livelihood, wanton lawlessness and violence,
thousands of documented killings, countless as- yet undocumented deaths, and immeasurable
human suffering”, and stated that at the date of the report “more than 850,000 Kosovo Albanians
(had) fled the Province for neighbouring countries and into the Republic of Montenegro...” 20.
Moreover, the diplomatic measures taken as a whole had not succeeded in persuading the Belgrade 21
authorities to respect their specific obligations under Security Council resolutions . The NATO
Member States then decided that it was necessary to use force against Belgrade, in order to put an
end to the constantly escalating violence which gravely threatened the security of the civilian
population of Kosovo as a whole and was directly contrary to the decisions of the Security
22
Council .
(b) The contribution of the international commun ity to the cr23tion of “a multi-ethnic and
democratic Kosovo which must reinforce regional stability”
17. When that intervention ended, it was po ssible for the international community to lay
down the first foundations for a final settlement of the Kosovo question with the adoption by the
1See the report on the situation in Kosovo, prepared under resolutions 1160 (1998) and 1203 (1998) of the
Security Council, sent to the Secretary-General by the Chairman-in-Office of the OSCE, S/1999/315, 23 March1999,
Annex, pp.6-7. See also ICTY, judgment of 26 February 2009, Milutinović and others, op. cit., footnote 8, Vol.1,
paras. 353-401, para. 397 in particular.
1See, among others, the report on the situation in Kosovo referred to above, footnote 18, which noted that: “(the
Yugoslav Army) has since late February carried out preparations that would enable it to destroy infrastructure and block
roads into and out of Kosovo”, while the only independ ent mechanism for independent observation, the Kosovo
Verification Mission, had been forced to withdraw as the security situation deteriorated (ibid., pp. 6 and 11). The Kosovo
Verification Mission had been established on 25 October 1998 by decision 263 of the Permanent Council of the OSCE.
It was charged with monitoring the observance of the provisions of Security Council resolution1198 (1998) dated
23September 1998. See also the report prepared pursuant to Security Council resolution1203 (1999), from the
Secretary-General of NATO on 23 March 1999, S/1999/338, 25 March 1999, Annex, p. 2: “Following the withdrawal of
the Kosovo Verification Mission of the Organization for S ecurity and Co-operation in Europe (OSCE), the Federal
Republic of Yugoslavia has increased its military activities and is using excessive and wholly disproportionate force,
thereby creating a further humanitarian catastrophe”.
20
The Interagency Mission adds that: “all the arguments put forward by officials of the Federal Government of
Yugoslavia Government, however plausible and legitimate, cannot explain its failure to exercise its obligation to protect
its own citizens against genera lized acts of violence prohibited by and punish able under international law, believed to
have been largely committed by its own agents” op.cit., footnote 8, pp.5-6, para. 8. Serbia itself has recognized that
“violence has been a reality for too long in our southern province. That which took place under a dictatorship in the
1990s was terrible and should never be minimized.” S/PV.5850, 11 Marc h2008, p.3. See also the Milutinovi ć
judgement, op. cit., footnote 8, Vol. 2, paras. 1150-1178, in particular.
2See S/PV.3988, 24 March 1999, p.9 (France). See also the report on the situation in Kosovo, drawn up in
accordance with Security Council resolutions 1160 (1998) and 1203 (1998), sent to the Secretary-General by the
Chairman-in-Office of OSCE, S/1999/315, 23 March 1999, p. 5: “developments on the ground and continued fighting
demonstrated a lack of political will for reconciliation”.
2The Court, having received applications from the FRY ch allenging the lawfulness of the use of force by France
and other NATO States, declared by judgments dated 15 De cember 2004 that it was without jurisdiction to entertain
them. See in particular, Legality of Use of Force (Serbia and Montenegro v. France), Preliminary Objections, I.C.J.
Reports 2004, p. 575. This question is not at issue ⎯ and nor could it be, given the judgments handed down in 2004 by
the Court ⎯ in the present advisory proceedings.
23
See the Statement by the President of the Security Council, S/PRST/2005/51, 24 October 2005. - 6 -
Security Council on 10 June 1999 of resolution 1244 (1999). Later in its observations, France will
return in more detail to the particular response which this resolution made to the crisis in Kosovo . 24
18. At this stage, it is sufficient, first, to recall that the Security Council, in adopting this
resolution, demanded that the FRY “put an immediate and verifiable end to violence and repression
in Kosovo”, by the withdrawal from Kosovo of all its military, paramilitary and police forces, and
that, in parallel, the Security Council authorized in the resolution the deployment by Member States
25
and the competent international organizati ons of an international security presence . This
international security force, called the Kosovo Force (KFOR), was set up with substantial
participation by NATO, in order to carry out the responsibilities conferred by paragraph9 of
resolution1244, and, more generally, in order to establish: “a safe environment for all people in
Kosovo and to facilitate the safe return to th eir homes of all displaced persons and refugees” 26. It
27
deployed in accordance with a military t echnical agreement reached with the FRY and will
continue with its mission until the Security Council decides otherwise . 28
19. Secondly, the Security Council decided to creat e an international civil presence in
Kosovo by:
“authoriz[ing] the Secretary-General, with the assistance of relevant international
organizations, to establish an international civil presence in Kosovo in order to
provide an interim administration for Kosovo under which the people of Kosovo can
enjoy substantial autonomy within the Federal Republic of Yugoslavia, and which will
provide transitional administration while establishing and overseeing the development
of provisional democratic self-governing institutions to ensure conditions for a
peaceful and normal life for all inhabitants of Kosovo” . 29
20. One of the principal responsibilities conferre d on the international civil presence, which
the Secretary-General was rapidly to put in place under the title of the United Nations Interim
Administration in Kosovo (UNMIK) 30, was that of “facilitating a political process designed to
determine Kosovo’s future status, taking into account the Rambouillet accords”, and “in a final
stage, overseeing the transfer of authority from Kosovo’s provisional ins titutions to institutions
established under a political settlement” . 31
21. Thus it is clear that resolution124 4 envisages three stages in relation to the
administration and status of Kosovo: the first consists in the direct administration of the territory of
Kosovo by the international civil presence, and the second in a provisional régime of
24See below, paras. 2.18-2.39.
25S/RES/1244 (1999), para. 19.
26Ibid., Ann. 2, point 4, referred to by para. 7 of the resolution.
27
This agreement is reproduced in S/1999/682, 15 June 1999, Annex.
28
S/RES/1244 (1999), para. 19.
29Ibid., para. 10. See also para. 11 (a).
30See, among others, the report presente d by the Secretary-General pursuant to para.10 of Security Council
resolution 1244 (1999), S/1999/672, 12 June 1999.
31S/RES/1244 (1999), para. 11 (e) and (f). - 7 -
32
self-government by autonomous Kosovan institutions, under the supervision of the civil presence .
As regards the third stage, in contrast, namely that of the anticipated “final settlement” 33, the
Security Council could do no more than envisage, support and seek to “facilitate a political
process” with a view to ensuring the stability of the region, as provided for by resolution 1244.
22. Almost six years after the adoption of resolution1244, it was possible for the
Secretary-General to initiate the process that was intended to lead to Kosovo’s future status, on the
basis of proposals from his Special Envoy 34 , and with the support of the Security Council, with
35
“the objective of a multi-ethnic and democratic Kosovo, which must reinforce regional stability” .
36
23. After “intensive negotiations with the leadership of Serbia and Kosovo . . . (and) . . .
more than one year of direct talks, bilate ral negotiations and expe rt consultations”, the
Secretary-General’s Special Envoy, Mr.Martti Ahtisaari, nevertheless had to conclude that “the
negotiations’ potential to produce any mutually agr eeable outcome... (was) exhausted”, and that
“the only viable option for Kosovo (was) independe nce, to be supervised by the international
37
community for an initial period” . Despite this, throughout 2007, the international community
pursued its efforts to reach an agreement between the parties, without ruling out any solution . 38
24. Kosovo’s declaration of independence on 17 February 2008 brought the political process
for determining the status of Kosovo to an irrevo cable close, without calling into question -- quite
the contrary -- the commitment of the international community to its stability and security.
25. The United Nations, the NATO, the Organization for Security and Co-operation in
Europe and the European Union, among others, took action on a massive scale in order to support
the objectives and meet the responsibilities set out by the Security Council in resolution1244.
Concerted action enabled UNMIK, to which the immediate task of reconstruction fell in 1999, to
32
These two stages correspond to the general principles stated in Annex 1 of the resolution, on which the Security
Council decided that “a political solution to the Kosovo crisis” should be based ( ibid., para.1), namely: the
“establishment of an interim administration for Kosovo ... to ensure conditions for a peaceful and normal life for all in
Kosovo”, then “the establishment of an interim poli tical framework agreement pr oviding for a substantial
self-government for Kosovo, taking full account of the Ra mbouillet accords and the principles of sovereignty and
territorial integrity of the Federal Republic of Yugoslavia and the other countries of the region, and the demilitarization of
the KLA” (ibid., Ann. 1).
3Ibid., para. 11 (a).
3See the report of Mr.KaiEide, addressed by the S ecretary-General to the Security Council, S/2005/635,
7 October 2005.
3See the statement by the President of the Security Council, S/PRST/2005/51, 24 October 2005.
36
The FRY took the official name of the State Union of Serbia and Montenegro after adopting a new constitution
in 2003. After the declaration of independence of the Republic of Montenegro on 3 June 2006, Serbia declared that it
would ensure the continuity of the State of Serbia and Montenegro, see I.C.J., Judgment of 18November2008,
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia),
Preliminary Objections, available at http://www.icj-cij.org/docket/files/118/14891.pdf, para. 23.
3Report of the Special Envoy of the Secretary-Gene ral on Kosovo's future stat us, S/2007/168, 26 March2007,
p.2, paras.1, 3 and 5. Mr.Ahtisaari presented a Comprehensive Proposal for th e Kosovo status settlement
(S/2007/168/Add.1, 26 March 2007), which “sets forth thes e international supervisor y structures, provides the
foundations for a future independent Kosovo that is viable, sustainable and stable, and in which all communities and their
members can live a peaceful and dignified existence” op. cit., p. 2, para. 5.
38
See below, paras. 2.40-2.62. - 8 -
39
establish a constitutional framework for provisional self-government , and thus pave the way for
the emergence of democratically elected institutions in Kosovo 40. On 17November2007, the
re-election of the members of the Kosovo’s Assembly marked a point at which “Kosovo ha[d] now
41
successfully held five sets of elections since UNMIK was established” .
26. It was in this context that the declaration of independence was approved in Kosovo’s
Assembly by 109 of the 120 representatives elected in November 2007 in conditions which were
42
perfectl43democratic , even though the ten deputies from the Serb community did not attend the
session . The declaration of independence clearly and unambiguously expresses commitment to
pursue the objectives that had been followed to this point by the international community and to
allow the efforts that had been undertaken to be followed through. In the declaration of
independence, the representatives of Kosovo stress th eir determination to respect human rights and
the rights of the ethnic communities of Kosovo: in it, they declare that they are:
“ Committed to confront the painful legacy of the recent past in a spirit of
reconciliation and forgiveness,
Dedicated to protecting, promoting and honouring the diversity of our people,
Reaffirming our wish to become fully integrat ed into the Euro-Atlantic family
of democracies,”
and, consequently, that
“1. We, the democratically elected leaders of our people, hereby declare . . .
2. 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
necessary conditions for their effec tive participation in political and
decision-making processes.
3. We accept fully the obligations for Ko sovo 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 AnnexXII, par ticularly those that protect and promote
the rights of communities and their members.
4. We shall adopt as soon as possible a Constitution that enshrines our commitment
to respect human rights and fundamental freedoms of all our citizens, particularly
39See UNMIK Regulation of 15 May 2001, UNMIK/REG/2001/ 9 (reproduced in the dossier presented to the
Court on behalf of the Secretary-General in accordance w ith Article 65(2) of the Statute of the Court, PartII-F,
item No. 156. See also the report of the Secretary-General on UNMIK, S/2001/565, 7 June 2001, p. 1, para. 2.
40The Secretary-General reported that “the election of the Kosovo Assembly on 17 November 2001 was generally
considered a great success” (S/2002/62, p.1, para.3), before going on to give details of the establishment of the
provisional institutions of sel f-government. See also the oral report Security Council by the Secretary-General's
Special Representative and Head of UNMIK, 27 November 2001, S/PV.4430.
41See the report of the Secretary General on UNMIK, S/2007/76 8, 3 January2008, p.1, para.3. “The elections
took place without incident following a generally fair and ca lm campaign period, and were confirmed by the Council of
Europe to have been in compliance with international and European standards” (ibid., p. 1, para. 3).
42See the report of the Secretary-General on UNMIK, S/2008, Ann. 1, 12 June 2008, para. 3.
43Although six of these deputies “ended their boycott of Assembly plenary sessions on 19 March” (report of the
Secretary-General on UNMIK, S/2008/458, 15 July 2008, Ann. I, para. 1). - 9 -
as defined by the European Convention on Human Rights. The Constitution shall
incorporate all relevant principles of th e Ahtisaari plan and be adopted through a
democratic and deliberative process.” 44
27. The Constitution, which was adopted on 9April2008 and came into force
on15 June 2008, incorporates and develops the principles stated in the declaration:
⎯ in the very first paragraph of the preamb le, the Kosovan people declare themselves
“Determined to build a future of Kosovo as a free, democratic and peace-loving country that
will be a homeland to all of its citizens”;
⎯ Article 3 proclaims the equality of all before the law;
⎯ Articles 21 to 62 specify in great detail the fundamental rights and liberties guaranteed to all
human beings ; 45
⎯ Articles 57 to 62, on the rights of communities and their members, provide in principle that:
“1. Inhabitants belonging to the same nationa l or ethnic, religious or linguistic group
traditionally present on the territory of the Republic of Kosovo (Communities)
shall have specific rights as set forth in th is Constitution in addition to the human
rights and fundamental freedoms provided in Chapter II of this Constitution.
2. Every member of a Community shall have the right freely to choose to be treated
or not to be treated as such and no discrim ination shall result from this choice or
from the exercise of the rights that are connected to that choice.
3. Members of Communities shall have the right freely to express, foster and develop
their identity and Community attributes.
4. The exercise of these rights shall carry with it duties and responsibilities to act in
accordance with the law of the Republic of Kosovo and shall not violate the rights
46
of others.”
44English version of the declaration of independence available at
http://www.assembly-kosova.org/?cid=2,128,1635
45See Article 22 in particular:
“[Direct Applicability of International Ag reements and Instruments] Human rights and
fundamental freedoms guara nteed by the following internationa l agreements and instruments are
guaranteed by this Constitution, are directly applicable in the Republic of Kosovo and, in the case of
conflict, have priority over provisions of laws and other acts of public institutions:
(1) Universal Declaration of Human Rights;
(2) European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols;
(3) International Covenant on Civil and Political Rights and its Protocols;
(4) Council of Europe Framework Convention for the Protection of National Minorities;
(5) Convention on the Elimination of All Forms of Racial Discrimination;
(6) Convention on the Elimination of All Forms of Discrimination Against Women;
(7) Convention on the Rights of the Child;
(8)Convention on Torture and Other Cr uel, Inhumane or Degrading Trea tment or Punishment.” (English
translation of the Constitution of Kosovo available at http://www.ustavkosova.i nfo/?cid=2,250 (site of
Kosovo Constitutional Commission).
46Ibid. Art. 57 [General Principles]. - 10 -
⎯ and the effective application of these principles is guaranteed by a modern judicial system, by a
constitutional court with extensive powers and by “independent institutions” (Ombudsman,
Auditor General etc.). At the date of th e present written statement, the objectives and
requirements specified in the Constitution have begun to be crystallized through the adoption
of laws and regulations that offer, within a democratic environment, substantial guarantees for
47
the stability, security and prosperity of Kosovo .
28. Since the declaration of independence, action has continued to be taken by the
international community 48⎯ despite divergences between States over the recognition of the State
49
of Kosovo ⎯ and has been reorganized, taking account of a “profoundly new reality” on the
ground. On 26 November 2008, the Security Co uncil: “welcome[d] the cooperation between the
United Nations and other international actors, within the framework of Security Council
resolution1244 (1999), and also welcome[d] the continuing efforts of the European Union to
advance the European perspective of the whole of the western Balkans, thereby making a decisive
50
contribution to regional stability and prosperity” .
29. France, in common with the Member States of the European Union as a whole, wishes to
continue its participation in these efforts, fo r example by strengthening co-operation with the
European Union in the area of the rule of law through the EULEX Mission that the latter is now
51
deploying in Kosovo . In keeping with the joint action taken by the Council of the European
Union on 4 February 2008 to institute this Mission 52, and as the United Nations Secretary General
subsequently recalled: “EULEX will fully r espect Security Council resolution1244 (1999) and
operate under the overall authority and within the status-neutral framework of the United
Nations).” 53
*
* *
30. France is persuaded that the higher interest of stability and prosperity for the whole of the
western Balkans, around which the international community has succeeded in uniting, cannot be
usefully furthered by posing artificial questions as to whether the declaration of independence of
Kosovo is in accordance with international law. On the contrary, that higher interest could well be
47See the list of laws adopted by the Kosovo Assembly at: http://www.assembly-
kosova.org/common/docs/ligjet/matrix_en.pdf
48On 12 June 2008, the Secretary-General stated that: “During those nine years, the international civil presence,
known as the United Nations Interim Ad ministration Mission in Kosovo (UNMIK ), helped Kosovo make significant
strides in establishing and consolidating democratic and accountable Provisional Institutions of Self-Government and in
creating the foundations for a functioning economy. While th ere has been substantial progress in the implementation of
standards, there remains scope fo r improvement in certain areas, in particular in the field of the return of refugees and
internally displaced persons. The full reconciliation and integration of Kosovo communities will be a long-term process
and remains an uphill challenge”, report of the Secretary-General on UNMIK, S/2008/354, 12 June 2008, p. 1, para. 2.
49
Report of the Secretary-General on UNMIK, S/2008/458, 15 July 2008, p. 1, para. 3.
50Statement by the President of the Security Council, S/PRST/2008/44, 26 November 2008.
51See the conclusions of the Council of the European Union, General Affairs and External Relations, of
4 February 2008, reproduced in S/2008/105, 18 February 2008, Annex.
52See Joint Action2008/124/CFSP of 4 February 2008 on the European Union Rule of Law Mission in Kosovo,
EULEX KOSOVO, Official Journal of the European Union, L.42, pp. 92-98.
53Report of the Secretary-General on UNMIK, S/2008/692, 24 November 2008, p. 12, para. 50. - 11 -
compromised by the intervention, in one way or another, of the Court and the General Assembly in
the question of the status of Kosovo. The main intention of France, with full confidence in the
wisdom of the Court and a deep commitment to th e contribution that it makes to the activities of
the United Nations, is to draw its attention to th e incompatibility of the request for an advisory
opinion with its judicial function (I) before indicating the considerations that the Court should take
into account in giving an advisory opinion, should it nevertheless decide to do so (II). I. A REQUEST FOR AN ADVISORY OPINION THAT FALLS
OUTSIDE THE COURT ’S JUDICIAL FUNCTION
1.1. “The power of the Court to give an a dvisory opinion is derived from Article65 of the
54
Statute” . In contrast with the provisions on the exercise of the Court’s function in relation to
litigation, the wording of Articles 96 of the Charter and 65 of the Statute is permissive: “[t]he
power granted is of a discretionary character” 55. It follows that the Court is not obliged to respond
to a request made to it:
“The Court has recalled many times in the past that Article 65, paragraph 1, of
its Statute, which provides that ‘[t]he Court may give an advisory opinion’ [...]
(emphasis added) should be interpreted to mean that the Court has a discretionary
power to decline to give an advisory opinion even if the conditions of jurisdiction are
met (Legality of the Threat or Use of Nucl ear Weapons, Advisory Opinion, I.C.J.
Reports 1996 (I), pp. 234-235, para. 14) . 56
1.2. Of course, “only ‘compelling reasons should lead the Court to refuse its opinion” 57.
However, the fact that the Court has only rarely exercised its discretion to decline to give an
advisory opinion does not “release the Court from the duty to satisfy itself, each time it is seised of
a request for an opinion, as to the propriety o58the ex ercise of its judicial function, by reference to
the criterion of ‘compelling reasons’ . . .” .
1.3. The Court must establish that no such compelling reasons exist, even if it is competent
to give an opinion on the question that has been posed. As a judicial organ, and,
“in accordance with Article 65 of its Statute, the Court can give an advisory opinion
only on a legal question. If a question is not a legal one, the Court has no discretion in
the matter; it must decline to give the opinion requested. But even if the question is a
legal one, which the Court is undoubtedly competent to answer, it may nonetheless
decline to do so. As this Court said in its Opinion of 30 March 1950, the permissive
character of Article 65 ‘gives the Cour t the power to examine whether the
circumstances of the case are of such a character as should lead it to decline to answer
the Request’ (Interpretation of Peace Treaties w ith Bulgaria, Hung59y and Romania,
First Phase, Advisory Opinion, I.C.J. Reports 1950, p. 72.” )
1.4. In this case, there are serious grounds for doubting the Court’s competence to rule on the
request set out in General Assembly resolution 63/3, as the question posed is clearly not of a “legal
54Certain Expenses of the United Nati ons (Article17, paragraph2, of the Charter), Advisory Opinion, I.C.J.
Reports 1962, p. 155.
55Ibid. See also Karin Oellers-Frahm, “Article 96 Un ited Nations Charter” in Andreas Zimmermann,
Christian Tomuschat and Karin Oellers-Frahm (eds.), The Statute of the International Court of Justice. A Commentary ,
Oxford University Press, 2006, pp. 187-188.
56Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory , Advisory Opinion,
I.C.J. Reports 2004, pp. 156-157, para. 44.
57Legality of the Threat or Use of Nuclear Weapon s, Advisory Opinion, I.C.J. Reports 1996 (I) , p. 235, para. 14
and the case law cited therein.
58Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory , Advisory Opinion,
cited in footnote 56, p. 157, para. 45.
59I.C.J. Advisory Opinion of 20 July 1962, Certain Expenses of the United Nations, cited in footnote 54, p. 155. - 13 -
60
nature”. As will be demonstrated below in greater detail , international law merely takes note of
the existence of an independent State, but is c oncerned neither with the conditions in which that
State was formed ⎯ at any rate provided it was not established as a result of the illegitimate use of
armed force ⎯ nor a fortiori the circumstances in which it was “proclaimed”.
1.5. That being the case, the question put to the Court is, at most, seemingly a legal question;
in reality, it cannot be answered within a genuinely legal framework and, consequently, the Court is
not competent to answer it. The Court would be competent only if the declaration of independence
were accompanied by the threat or use of force in breach of the United Nations Charter. From that
perspective, and that perspective alone, could the question put to the Court have been deemed to be
of a legal nature. A summary or prima facie an alysis of the circumstances in which Kosovo
declared its independence should, however, lead the Court to dismiss the question, as being 61
manifestly devoid of object and, since it cannot give a legal ruling or decision “on the merits” in
regard to other aspects of the question, to declare that it lacks jurisdiction.
1.6. Moreover, since, in this case, “compelling reasons” render the exercise of advisory
jurisdiction particularly inappropriate, it is probably unhelpful for the Court to rule, by way of
preliminary, on the question of its competence or the admissibility of the request for an opinion, or
to make a formal distinction between the two. In fact, not only would it appear that, whatever the
Court’s answer, it cannot as such have any legal effect on the question of Kosovo’s status (§1), but,
in addition, the General Assembly could not act upon it, because, in the light of the provisions
defining its authority, it does not in tend, and would, in any case, not be in a legal position, to draw
the slightest consequence from that answer (§2). For those two compelling reasons at least, the
Court should, in any event, decline to answer the question that has been put to it.
§1. Any opinion of the Court, whatever its nature, would
be without legal effect on Kosovo’s status
1.7. In its 1963 judgment concerning Northern Cameroon, the International Court of Justice
pointed out that:
“both the Permanent Court of International Justice and this Court have emphasized the
fact that the Court’s authority to give advisory opinions must be exercised as a judicial
function. Both Courts have had oc casion to make pronouncements concerning
requests for advisory opinions, which are equa lly applicable to the proper role of the
Court in disposing of contested cases; in both situations, the Court is exercising a
judicial function. That function is circumscribed by inherent limitations which are
none the less imperative because they ma y be difficult to catalogue, and may not 62
frequently present themselves as a conclusive bar to adjudication in a concrete case” .
60See II, §1, below.
61
As Judge Higgins pointed out in the context of the examination of preliminary objections, “[s]election of
grounds of claim that may proceed to the merits is a proper exercise of the compétence de la competence” (Oil Platforms
(Islamic Republic of Iran v. United States of Americ a), Preliminary Objections, Judgment, I.C.J. Reports 1996 , p.803,
separate opinion, p. 857, para. 36). To paraphrase that opinion, for the purposes of this case, “[t]he Court should thus see
if, on the facts as alleged by [Serbia], the actions [of Kosovo, i.e. the declaration of independence] [forming the subject of
the request] might violate [international law]” ( ibid., para.33). In the absence of any material provision on the matter,
the Court should conclude that there is no cause of action in relation to this request.
62Northern Cameroons (Cameroon v. United Kingdom), Preliminary Objections, Judgment , I.C.J. Reports 1963,
p. 30. - 14 -
1.8. The fact is that when it is exercising its advisory functions, the Court is still a judicial
organ and must respect the inherent limitations on its judicial function:
“In exercising its discretion, the International Court of Justice, like the
Permanent Court of International Justice, has always been guided by the principle
which the Permanent Court stated in its case concerning the Status of Eastern Carelia
on 23 July 1923: ‘The Court, being a Court of Justice, cannot, even in giving advisory
opinions, depart from the essential rules guiding its activity as a Court’ ( P.C.I.J.,
63
Series B, No. 5, p. 29)”.
1.9. In other words, the Court may answer the question put to it only in the absence of
circumstances likely to “render the giving of an advisory opinion incompatible with the Court’s
judicial character” . In this case, considerations of a compelling nature must lead the Court to
decline to give the advisory opinion that has been requested, quite apart from fact that the question
posed is not a legal question.
1.10. In the Northern Cameroons case, the Court pointed out that:
“[t]here are inherent limitations on the exercise of the judicial function which the
Court, as a court of justice, can never ignore . . . The Court itself, and not the parties,
must be the guardian of the Court’s judicial integrity.” 65
In that same judgment, the Court explained that “it is not the function of a court merely to provide a
basis for political action if no question of actual legal rights is involved” 66 and, to “safeguard the
judicial function”, it declined to hand down a judgment that, whatever the circumstances, could not
be effective and would be without object . 67
1.11. Similarly, in the Nuclear Tests cases, the Court pointed out that it:
“possesses an inherent jurisdiction enabling it to take such action as may be required,
on the one hand to ensure that the exercise of its jurisdiction over the merits, if and
when established, shall not be frustrated, a nd on the other, to provide for the orderly
settlement of all matters in dispute, to ensure the observance of the ‘inherent
limitations on the exercise of the judicial function’ of the Court, and to ‘maintain its
judicial character’ ( Northern Cameroons, Judgment, I.C.J. Reports 1963 , at p.29).
Such inherent jurisdiction, on the basis of which the Court is fully empowered to make
whatever findings may be necessary for th e purposes just indicated, derives from the
mere existence of the Court as a judicial organ established by the consent of States,
63
I.C.J Advisory Opinion of 20 July 1962, Certain Expenses of the United Nations, cited in footnote 54, p. 155.
64Western Sahara, Advisory Op inion, I.C.J. Reports 1975 , p.25, para.33; see also Advisory Opinion of
9 July 2004, cited in footnote 56, p. 157, para. 47.
65Judgment of 2 December 1963, Northern Cameroon, cited in footnote 62, p. 29; see also p. 30: “Nevertheless,
it is always a matter for the determination of the Court whether its judicial functions are involved”, and the Judgments of
20 December 1974, Nuclear Tests (Australia v. France), I.C.J. Reports 1974, p.259, para.23, and (New Zealand v.
France), I.C.J. Reports 1974, p. 463, para. 23.
66Ibid., p. 37.
67Ibid., p. 38. - 15 -
and is conferred68pon it in order that its basic judicial functions may be
safeguarded”.
With this in mind, the Court found that, as a resu lt of events subsequent to the application, the
object of the claims of Australia and New Zeala nd had disappeared and, consequently, there was
now nothing on which to give judgment . 69
1.12. No doubt the Court adopted those views in contested cases, and the purpose of an
opinion is different from that of a judgment. However, the Court itself has emphasized that the
problem of protecting its judicial integrity arises, in the same terms, in both instances, where there
is a need to avoid handing down a decision that cannot be effective 70, and, mutatis mutandis , the
same considerations must give rise to the same solutions. Moreover, in the Western Sahara case,
the Court held that it could not answer questions refe rred to in as part of a request for an advisory
opinion unless they had “a practical and contemporary effect” . 71
1.13. In this case, the question put to the Court is devoid of practical effect: whatever the
answer, it can have no practical result.
1W.14.ther ⎯ or not ⎯ the Kosovo’s declaration of i ndependence is compatible with
international law can have no effect on that entity’ s existence as a State, as that is a simple matter
of fact, as will be demonstrated in greater detail in the second part of this statement. Consequently
if, as France believes, it possesses the attributes of a State, then Kosovo constitutes a State; if it
does not possess those attributes, it is not a State, regardless of whether or not the declaration of
17 February 2008 was lawful. In any event, it plainly does not follow from the question put to the
Court that it would be for the Court itself to rule on the question of fact as to whether Kosovo is
now a State, or was a State on the date of the declaration of independence.
1.15. The situation would be different only if the declaration and consequent independence
had been imposed as a result of external armed intervention ⎯ which is not the case ⎯ since
“[e]very State has the duty to refrain in its intern ational relations from the threat or use of force
against the territorial integrity . . . of any State” .
1.16. As regards the possible impact of the an swer to the question, the same applies to the
recognition of Kosovo by the other States. It cannot be disputed that the recognition of a State “is a
discretionary act that other States may perform when they choose and in a manner of their own
68I.C.J., Judgments of 20 December 1974, cited in footnote 65, Nuclear Tests (Australia v. France), pp. 259-260,
para. 23, and (New Zealand v. France), I.C.J. Reports 1974, p. 463, para. 23.
69
Ibid., p. 272, para. 62, and p. 478, para. 65.
70
See para. 1.10 above.
71Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 37, para. 73.
72Declaration on principles of intern ational law concerning friendly relati ons and co-operation among States in
accordance with the Charter of the United Nations, a nnexed to General Assembly resolution2625 (XXV) of
24 October 1970, First Principle. - 16 -
73
choosing” , and is limited only by the prohibition on recognizing a situation that has arisen as a
result of a violation of the ban on the use of force in international relations . 74
Consequee nity,r:
⎯ the declaration of independence is adjudged to be compatible with international law, which
does not compel those States which have not recognized Kosovo to do so;
⎯ or, most improbably, the Court considers that the declaration is not compatible with
international law, which does not compel States to refrain from recognizing Kosovo (nor does
it compel States that have recognized it to withdraw that recognition ⎯ assuming that were
possible), since the situation is not one in wh ich a declaration of independence has resulted
from the illegal use of force, the only circumstan ce in which there would be an obligation to
75
refrain from according recognition .
Thus, during the debate that preceded the adoption of resolution 63/3, a number of States correctly
stated that voting in favour of the resolution in no way prejudged the attitude they would take to
recognizing Kosovo (regardless of the Court’s opinion, of which, moreover, they made no
76
mention) .
1.18. In both cases, the Court’s opinion would amount to a kind of theoretical and academic
legal consultation, which would have no real legal effect. The answer to the question posed would
not, nor could it, be “legally effective”, either now or in the future. However, it could have
regrettable political consequences, particularly in terms of aggravating the situation by prompting a
hardening of positions on both sides.
1.19. In the Nuclear Tests cases, the Court held that “[w]hile judicial settlement may provide
a path to harmony in circumstances of conflict, it i77none the less true that the needless continuance
of litigation is an obstacle to such harmony” . The same applies to the C ourt’s advisory role: its
opinions must provide “to the requesting organs the elements necessary for them in their action” 78,
but the Court can ⎯ and must ⎯ decline to give an opinion, if it is apparent, as in this case, that it
will have no effect, other than to jeopardize th e equilibrium that has been established on the
ground.
73
Arbitration Commission of the Peace Conference on the former Yugoslavia, Opinion No. 10, 4July1992,
para. 4,(International Law Reports, Vol. 92, 1993, p. 162).
74See Declaration 2625 (XXV), cited in footnote 72, First Principle: “No territorial acquisition resulting from the
threat or use of force shall be recognized as legal”. France notes that the International Law Commission has
acknowledged the existence of a customary-law obligation to refrain from recognizing a situation that has been brought
about by the illegal use of fo rce, see the commentary under Art. 41(2) of the I.L.C. Articles othe Responsibility of
States for internationally wrongful acts, annexed to General Assembly resoluti on 56/83 of 12 December 2001, paras. (6)
and (7), in ILC Report, Fifty-Third Session (2001) , Official Records of the General Assembly, Fifty-Sixth Session,
Supplement No. 10 (A/56/10), p. 309.
75See paras. 25-27 above and paras. 2. 63-2.69 below in regard to the circumstances in which the declaration of
independence was made. See also the letter dated 1 October 2008 addressed to the President of the General Assembly by
the United Kingdom’s Permanent Representative, A/62/461, Annex, para. 8.
76See, for example, th e declaration of Panama and Norway (A/63/ PV.22, 8 October2008, p.7 and p.15).
Montenegro recognized Kosovo’s independence the day after it voted in favour of Serbia’s draft resolution.
77I.C.J., Judgments of 20 December 1974, cited in footnote 65, Nuclear Tests (Australia v. France), p. 271,
para. 58, and (New Zealand v. France), p. 477, para. 61.
78
I.C.J Advisory Opinion of 9 July 2004, Legal Consequences of the Constr uction of a Wall in the Occupied
Palestinian Territory, cited in footnote 56, p. 162, para. 60. - 17 -
1.20. In exercising its discretion, the Court must ensure not only that any opinion it gives
will not worsen the divisions between the Member States, but that it will not complicate the process
of easing tensions or the European prospects of the western Balkans. However, as many
delegations stressed when General Assembly reso lution63/3 was being debated, far from helping
to ease tensions, the request for an opinion addr essed to the Court in this instance may “create
uncertainty as to the status of Kosovo and instabilities in the region” . 79
1.21. Pointless in itself and perhaps further reinforcing divisions between the States, the
question put to the Court is all the more doubtful because there is another reason why it fails to
meet the objectives that any request for an advisory opinion must pursue.
§2. An opinion from the Court would impinge on a political matter in relation to which the
General Assembly neither intends nor is in a position to make a recommendation
1.22. Other “compelling reasons”, if not, indeed, problems of jurisdiction, which it will be
for the Court, if necessary, to address of its own motion, must lead the latter to decline the request
for an opinion drawn up by the General Assembly. That must be the conclusion, first of all, in the
light of the ⎯ in many ways unprecedented ⎯ circumstances in which the General Assembly
adopted resolution 63/3 requesting an opinion the Court, which indicate that the request was made
exclusively at the instigation of and for the purpo ses of States(1). Furthermore, an opinion from
the Court would, of necessity, be devoid of any real significance, given the way in which Article 12
of the Charter organizes the functions of the General Assembly and the Security Council (2).
1. The request fails to meet the objectives wh ich any request for an opinion must seek to
further
1.23. As commentators on the Statute of the Court have rightly pointed out, the procedure
established under Article 96 of the Charter and Article 65 et seq of the Statute is based on a syste80
of “functional co-operation” between the Court and the other organs of the United Nations . Only
in its capacity as an organ of the United Nations is the Court in fact called upon, under that
procedure, to give an opinion to the organ of the United Nations which has requested it.
1.24. Since 1945, the Court has consistently and decisively drawn attention to the special
legal nature of advisory proceedings, which are designed solely to provide a channel for functional
co-operation between institutions attached to the United Nations Organization. As early as 1950, in
its Opinion of 30March concerning the Interpretation of Peace Trea ties with Bulgaria, Hungary
and Romania (first phase) , it held that “[t]he Court’s opinion is given not to the States, but to the
organ that is entitled to request it” 81. Indeed, a year later, in its Opinion of 28May1951 on the
Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, the
Court, more particularly, made it clear that “[t]he object of this request for an Opinion is to guide
79
A/63/PV.22, declaration by France, p.13. See al so the declarations by Albania (p.5), Turkey (ibid.),
Canada (p. 12), Germany (p. 13), Australia (p. 14), Denmark (p. 15) and Switzerland (ibid.).
80See Jean-Pierre Cot, “Article 68”, in The Statute of the International Court of Justice, A Commentary, op. cit.,
footnote 555, p. 1460: “Art. 96 UN Charter insists on the functional co-operation between the Court and the other organs
of the United Nations.”
81I.C.J. Reports 1950, p. 71. - 18 -
82
the United Nations in respect of its own action” . Again, according to the Court, “[t]he purpose of
the advisory function is not to settle ⎯ at least directly ⎯ disputes between States, but to offer
83
legal advice to the organs and in stitutions requesting the opinion” . The Court concluded from
this that its advisory role consists exclusively in “lending its assistance in the solution of a problem
84
confronting the [requesting organ]” .
1.25. The Court has never departed from th is definition of advisory proceedings as
proceedings which exclusively involve one organ seeking the advice of another 85, and this has
certain important legal consequences, such as the ci rcumstance that “the consent of States is not a
condition precedent to the competence of the Court” if the latter is seised of a request for an
opinion . Whether or not there are other limits on the authority of the General Assembly and
Security Council to ask the Court for an advisory opinion, it is, at least, perfectly clear that, by their
very nature, advisory proceedings require the existence of a link between the Court and the
requesting organ, and this is a two-way link: only an organ of the United Nations (including the
specialized agencies) may request an opinion from the Court; and, thereafter, the opinion may be
given to that organ only, and not to any other person or entity . 87
1.26. For a number of different of reasons, it is far from certain that this request for an
advisory opinion emanates from one organ to another:
(i) First, the request for an advisory opinion is based exclusively on the request made by a
State, Serbia, to the General Assembly on 22August2008, just a few weeks before the
matter was referred to the Court, without th e Assembly having discussed the question or
88
being previously or currently engaged in any activity in its regard ;
(ii) neither the request itself nor the explanatory memorandum attached to it provide any
indication of what exactly would be expected of the General Assembly once the opinion
has been given. The focus is entirely on the Member States, as the memorandum stresses
that “[m]any Member States would benefit from the legal guidance an advisory opinion of
the Court of Justice would confer. It w ould enable them to make a more thorough
judgment on the issue”;
82I.C.J. Reports 1951, p. 19 (emphasis added). As early as 1950, the Court had stated that advisory opinions are
addressed to the United Nations to enli ghten it “as to the course of action it should take” (Opinion of 30 March 1950,
cited in footnote 81, I.C.J. Reports 1950 , p.71). See also, to the same effect, the Advisory Opinion of 21 June 1971
Legal Consequences of the Continued Presence of South Africa in Namibia (Sout h West Africa) notwithstanding Security
Council resolution 276 (1970), I.C.J. Reports 1971, p. 24, para. 32; or Western Sahara, Advisory Opinion, I.C.J. Reports
1975, p. 27, para. 41.
83
Legality of the Threat or the Use of Nuclear Weapons , Advisory Opinion of 8 July 1996, cited in footnote 57,
p. 236, para. 15.
84
Western Sahara, Advisory Opinion of 16 October 1975, cited in footnote 82, p. 21, para. 23.
85
See also Legality of the Threat or the Use of Nuclear Weapons , Advisory Opinion of 8 July 1996, cited in
footnote 57, p. 235, para. 14.
86
Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United
Nations, Advisory Opinion of 15 December 1989, I.C.J. Reports 1989, pp.188-189, paras. 31-32. Legal Consequences
of the Construction of a Wall in the Occupied Palestinian Territory , Advisory Opinion of 9 July 2004, cited in
footnote 56, pp. 157-158, para. 47.
87
See also Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory , Advisory
Opinion of 9 July 2004, cited in footnote 56, p.164, para . 64: “it was the General A ssembly which requested the
advisory opinion, and the opinion is to be given to the General Assembly, and not to a specific State or entity”.
88
A/63/195, Request for the Inclusion of a Supplementary Item in the Agenda of the Sixty-Third Session. - 19 -
(iii) that same approach ⎯ of a process between States rather than between organs ⎯ is to be
found in the draft resolution tabled by Se rbia on 23 September 2008. Adopted as it stood
89
by the General Assembly on 8 October 2008 , it again makes no mention of the General
Assembly’s attitude, past or future, merely stating that Kosovo’s declaration of
independenc90“has been received with varied reactions by the Members of the United
Nations” ,outside the General Assembly;
(iv)the Member States that supported the Serbian proposal when it was adopted by the
General Assembly on 8 October 2008 unequivocal ly accepted that this was an inter-State
initiative, at the risk of distorting the provisi ons governing advisory proceedings. On that
occasion, the right to refer to the Court was in fact construed not as a prerogative of the
General Assembly and necessary for its action, but as a direct right of the Member State
which it exercised in order to clarify the judgment of other Member States:
⎯ Serbia presented its request for an opin91n as “ its” request, which the General Assembly was
simply to “convey” to the Court ;
⎯ the opinion requested was envisaged by Serbia as being designed to be directly and exclusively
of use to the other States ;92
⎯ Serbia has also argued that
“[s]upporting 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 to deny the right of any country to seek ⎯ now or in the future ⎯
judicial recourse through the United Nations system” ; 93
⎯ in the course of the discussions, a number of States adopted this same view that a request for an
advisory opinion may be made on an inter-State basis, with the General Assembly being
considered merely as the body transmitting the request, apparently unable to exercise a power
of discretion of its own (each Member State having, according to those same States, “the right
94
to seek advisory opinions for the International Court of Justice”) .
89Resolution 63/3.
90
A/63/L.2, Draft resolution submitted by Serbia (emphasis added).
91
A/63/PV.22, 8 October 2008, p. 1: “ We have chosen to seek an advisory opi nion from the International Court
of Justice (ICJ) on the legality of the unilateral claration of independence. Toda y we are turning to the General
Assembly to convey that request to the Court, in fulfilment of its powers and functions under the UN Charter” (emphasis
added).
92
Ibid.: “We also believe that the Court’s advisory opinion would provide politically neutral, yet judicially
authoritative guidance to many countries deliberating still how to approach unilateral declarations in line with
international law” (emphasis added).
93Ibid.; emphasis added.
94
See, for example, ibid., p. 7 (Slovakia): “Slovakia, as a matter of principle, respects the right of every Member
State to seek advisory opinions from the International Court of Justice”; pp. 7-8 (Egypt): “every Member State has the
right to request an advisory opinion of the International C ourt of Justice and the General Assembly has the responsibility
to grant that request in accordance with Article96 of the Charter”; p.8 (Greece) “As a matter of principle, Greece
believes that every State has the prerogative to request an a dvisory opinion of the International Court of Justice on issues
of importance and relevance to international law”; p.10 (C uba): “Cuba supports the legitimate right of any Member
State to request an advisory opinion from th e International Court of Justice”; p. 11 (Algeria): “Algeria believes it to be
the prerogative of any State to request an advisory opinion othe Court, in conformity with Article96 of the Charter”;
see also p. 9 (Cyprus) and p. 15 (El Salvador). - 20 -
1.27. Even assuming that, in this case, the request for an advisory opinion satisfies the
requirement that it be made “from one United Nations organ to another”, and this is something for
the Court to ascertain, the fact remains that the Cour t will be able to give its opinion to the General
Assembly only. However, the allocation of powers between the General Assembly and the
Security Council, under Article12 of the Charter, would leave an opinion of the Court devoid of
any real significance.
2. Article 12 of the United Nations Charter would leave an opinion of the Court devoid of any
real significance
1.28. Respecting the powers of the Security Council and the balance which the Charter seeks
to achieve, it should be pointed out here that Article 12(1) of the Charter clearly states that
“While the Security Council is exercisi ng in respect of any dispute or situation
the functions assigned to it in the present Charter, the General Assembly shall not
make any recommendations with regard to that dispute or situation unless the
Secretary-General so requests.”
1.29. In its opinion of 9 July 2004, the Court adopted a very liberal interpretation of
95
Article12(1) of the Charter . However, that cannot have had the effect of rendering the
prohibition it contains meaningless. Without doubt, that prohibition continues to apply at least in
the special circumstances typical of this case. The circumstances surrounding the request for an
opinion of October2008 are in fact very different from those pertaining to the request for an
advisory opinion in relation to the Legal Consequences of the Construction of a Wall in the
Occupied Palestinian Territory, even if there are same parallels between the two.
1.30. As regards the points the two cases have in common, it should be pointed out that in
neither case did the Security Council ask the Gene ral Assembly to seise the Court or was a draft
request for an advisory opinion submitted to the S ecurity Council. In other words, the Security
Council had no involvement in the advisory initiativ e, even though it was, and remains, actively
seised of the situation in Kosovo, and Serbia is associated with the Security Council’s discussions
on the situation.
1.31. Moving on to the differences, there are several elements worth pointing out. They
enable a crucial distinction to be made between th e current request and the request to the Court in
2004, and, consequently, allow the solution adop ted on the occasion to be dismissed. A close
analysis of the Court’s reasons clearly demonstrates that, if applied to the present case, the
ratio legis for its 2004 opinion cannot be upheld here.
1.32. When the Court noted, in that opinion, the way in which the practice in relation to
Article 12 of the Charter had developed, it did not, in fact, consider it necessary to take account of
the extreme circumstance in wh ich the Security Council was actively seised of a matter but the
General Assembly entirely uninvolved with it. The Court simply took note, first of all, of the
practice whereby the General Asse mbly acts if the Security Council is not fulfilling its functions
“at this moment”, and, then, of the practice consisting in each organ considering the same situations
“in parallel” but from different perspectives (“while the Security Council has tended to focus on the
aspects of such matters related to international peace and security, the General Assembly has taken
95
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory , Advisory Opinion
cited in footnote 56, pp. 148 et seq, paras. 24 et seq. - 21 -
96
a broader view, considering also their humanitarian, social and economic aspects”) . In its 2004
opinion, the Court was, therefore, refe rring only to situations in which, prior to the moment when
the question of the application of Article 12 arises, the General Assembly has already been engaged
in activity in regard to the situation at issue, in parallel to the Security Council, but from a different
perspective. On the other hand, the Court has never contemplated the unusual circumstance in
which the General Assembly refers to the Court a request for an opinion relating to a situation
which the General Assembly has not previously dealt with and in relation to which the Security
Council is, in fact, exercising its functions.
1.33. Viewed in the light of those comments, the request for an opinion referred to the Court
by the General Assembly on 8 October2008 differs in three ways, in particular, from the request
made in the case concerning the Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory.
1.34. First, this request for an advisory opinion cannot imply any kind of division of
responsibilities between the Security Council, whic h would deal with peace-keeping aspects, and
the General Assembly, which would take a broade r view of the situation. The question posed
covers the situation in Kosovo only as far as aspects directly linked to maintaining international
peace and security are concerned. In its request for an opinion, Serbia in fact states that an opinion
by the Court “would go a long way towards cal ming tensions created by Kosovo’s unilateral
declaration of independence, avoiding further ne gative developments in the region and facilitating
efforts at reconciliation among all the parties involved” 97. During the debate which preceded the
vote on the request for an opinion, Serbia confirmed that a decision to seise the Court of the matter
98
would “reduce tensions in the region an d facilitate our efforts at reconciliation” . That, however,
is exactly what the Security Council has been actively engaged in since 31 March 1998, the date on
which it began to take action in regard to the situation in Kosovo, on the basis of Chapter VII of the
99
Charter .
1.35. Secondly, not only has the issue of Kosovo remained officially included on the
Security Council’s agenda since 1998, but the latter has remained actively seised of it up to the
present, despite the extremely complex nature of the situation on the ground, which has constantly
required the Security Council, the Secretary-Gene ral acting on its behalf and the Head of UNMIK
to exercise great caution in regard to the deci sions to be taken, within the framework of
Chapter VII of the Charter, in order to secure regional stability and maintain peace in Kosovo and
the wider region.
1.36. Since the declaration of independence of 17 February 208, the situation in Kosovo has
remained under close scrutiny.
(i) The Secretary-General of the United Nati ons has continued regularly to report to the
Security Council on developments in the s ituation on the ground and on the activities of
UNMIK, a subsidiary organ of the Security Council 100. Analysis of those reports reveals
the extent to which the Secretary-General, w ho is the Security Council’s representative in
96Ibid., p. 150, para. 27.
97A/63/195, 22 August 2008, Annex, p. 3.
98
A/63/PV.22, p. 1.
99Resolution 1160 (1998).
10See Reports S/2008/211 of 28 March2008; S/2008/354 of 12 June2008; S/2008/458 of 15 July2008;
S/2008/692 of 24 November 2008 and S/2009/149 of 17 March 2009. - 22 -
101
regard to Kosovo , as well as his Special Representative, the Head of UNMIK, have
continued to be very closely involved in th e situation of Kosovo, at both political and
102
operational level, and always with an eye to the very complex nature of their mission .
(ii) The Security Council has met just as regular ly to discuss the situation in Kosovo in detail,
103
particularly on the basis of the Secretary-General’s reports .
(iii) In addition, as happened on several occasions before February 2008, the Security Council
met in closed session and invited to that meeting a very large number of delegations from
States which are not Security Council members, so as to involve as many participants as
104
possible in its discussions .
(iv) Finally, on 26 November2008, the Security Council adopted a declaration, by the its
President on behalf of all of its members, approving the Secretary-General’s proposal that
the activities of the international civil presence in Kosovo be reconfigured in the light of
the declaration of independence of 17 Februa ry2008 and the consequent involvement of
the European Union in monitoring the guarantees recognized therein 105. Therefore, as the
principal organ of the United Nations, but, in addition, as a result of the different
operational missions established in succession on the ground, under its general authority,
the Security Council has never stopped being actively seised of the situation in Kosovo.
(v)The declaration of independence did not interrupt that activity, as the forms of
international presence established on the basis of Security Council resolution 1244 (1999)
106
remained, as indeed was requested by the new State of Kosovo, without any objection
from Serbia.
1.37. In absolute contrast to the activity of the Security Council, it is striking to note that
before the Serbian initiative of August2008 seeking to have a ques tion referred to the Court, and
except for the mere two hours of debate the Ge neral Assembly devoted to that initiative on 8
October 2008 107, the General Assembly has been totally uninvolved and disinterested in the
Kosovo question since 1999 (that is to say for nine years), with just one ⎯ inevitable but
contingent ⎯ exception, bearing in mind, in particular, and quite properly, that it could not make
recommendations concerning a situation in regard to which the Security Council was fulfilling its
functions 108.
10See para. 10 of resolution 1244 (1999).
10See, for example, S/PV.5917, 20 June 2008, p. 2 (Secretary-General):
“In almost 40 years of my diplomatic life, I ha ve never encountered an issue as divisive, as
delicate and as intractable as the Kosovo issue. Le gally, politically and mora lly, it is a landscape of
enormous complexity and sensitivity and requires the exercise of extraordinary objectivity and balance.”
103
See S/PV.5839, 18 February2008; S/PV.5850, 11 March2008; S/PV .5917, 20 June2008; S/PV.5944,
25 July 2008; S/PV. 6025, 26 November 2008; S/PV.6097, 23 March 2009.
104
See S/PV.5871, 21 April2008 (42 repr esentatives were invited to join the 15 members of the Security
Council).
105
106/PRST/2008/44.
See para. 5 of the declaration of independence, cited in footnote 44.
107
A/63/PV.22.
10In that connection, France would point out that, incidentally, in its 1996 Opin ion, the Court considered that it
did not need to answer and reserved its decision on the ques tion whether the General Assembly could put to the Court a
question unrelated to its activities (AdvisoryOpinion of 8 July 1996, cited in footnote 57, I.C.J. Reports 1996 (I) ,
pp. 232-233, paras. 11-12). In this case, there is no doubt that the question posed is a question of that kind. - 23 -
(i) The General Assembly actually adopted its most recent resolution on Kosovo, regarding
respect for human rights in that territory, on 17 December 1999 10. Adopted just a few
months after the vote on resolution1244 (1999) and the creation of UNMIK, General
Assembly resolution54/183 was a concrete indi cation that, in contrast to the Security
Council and its subsidiary bod y, the General Assembly w as definitively stepping aside
from the decisions and missions of which its resolution actually makes extensive
reference.
(ii) Since then, the General Assembly has di scussed Kosovo only as a very subsidiary matter,
in the form of the annual vote, based on its budgetary powers, of a resolution on UNMIK
funding 110. In those various resolutions, and as required of it under the Charter, the
General Assembly has always confined itself exclusively to the budgetary aspect of the
Mission, and has not encroached on the substantive matters that fall exclusively within the
sphere of responsibility of the Security Council and UNMIK.
(iii) In regard to those substantive matters, in those same resolutions , the General Assembly
initially recognized the “complexity of the activities envisaged in the Mission” 111, and
112
then the “complexity of the Mission” , stating that it was mindful of the fact “that it is
essential to provide the Mission with the necessary financial resources to enable it to fulfil
113
its responsibilities under the relevant resolutions of the Security Council” .
(iv)Those resolutions on funding were fina lly adopted, without debate, by the General
Assembly 114ting in plenary, and, therefore, a fortiori, without any debate on substantive
matters .
1.38. That entirely justified situation in which the General Assembly has completely
dissociated itself from the matter explains why, in response to the Serbian initiative of
August 2008 ⎯ and this is a precedent in relation to advisory proceedings ⎯ it was necessary to
create, from nothing, a new agenda item to enable the General A ssembly to consider the request to
put a question to the Court.
1.39. Moreover, the way in which this w as done clearly demonstrates that the General
Assembly had not been exercising its functions (other than in the strictly budgetary field) in
relation to Kosovo for nine years. Since the General Assembly had not been seised of any
substantive issue in relation to Kosovo since 1999, it was impossible to attach the request for an
opinion to the agenda items to which Kosovo c ould genuinely have been linked (namely item A
concerning the maintenance of international peace and security) 115. To circumvent that difficulty,
Serbia proposed that its request for an opinion be included under item F (“Promotion of justice and
109
Resolution 54/183 of 17 December 1999, “Situation of human rights in Kosovo”.
110
See resolutions 53/241 of 28 July 1999; 54/245A of 23 December 1999 and 54/245B of 15 June 2000;
55/227A of 23 December 2000 and 55/227B of 14 June 2001; 56/295 of 27 June 2002; 57/326 of 18 June 2003; 58/305
of 18 June 2004; 59/286A of 13 April 2005 and 59/286B of 22 June 2005; 60/275 of 30 June 2006; 61/285 of
29 June 2007 and 62/262 of 20 June 2008.
111Para. 3 in the preamble of resolution 53/241 of 28 July 1999.
112
Resolutions 54/245 to 62/262, cited in footnote 110.
113
Resolutions 53/241 to 62/262, cited in footnote 110 (emphasis added).
114See, for example, in relation to resolution 62/262, A/62/PV.109, 20 June 2008, p. 8.
115See A/63/251, Agenda of the Sixty-Third Session of the General Assembly, 19 September 2008. - 24 -
international law”) of the Assembly’s agenda, 116 and the General Assembly approved this, on the
recommendation of the General Committee .
1.40. It is sufficient to glance through the list of questions included in item F of the agenda to
comprehend just how artificial the inclusion of Ko sovo was. That item covers only consideration
of reports of United Nations courts and organs and the review of abstract general legal questions
such as “oceans and the law of the sea”, “nationality of natural persons in relation to the succession
of States” and “the rule of law at national and intern ational levels”. This is clearly blatantly out of
117
keeping with the very specific objective Serbia attached to its request for an opinion , as well as
the ⎯ very real ⎯ political effects the opinion would inev itably have, if provided, on peace and
security in the region.
1.41. There is one final respect in which resolution 63/3 (adopted, moreover, by the slimmest
118
of majorities) , by which the General Assembly seised the Court of this request for an opinion is
noteworthy: it is excessively cryptic in regard to the context of the request. The practice of the
General Assembly (and the Security Council) in advi sory proceedings has always been to state, in
the resolution making the request to the Court, if not the use to made of the opinion, at least the
specific link between its activities and the questio n posed, but resolution63/3 provides absolutely
no indication of this. This again reflects the la ck of real activity by the General Assembly in
relation to the situation in Kosovo, and that, in turn, must lead to the prohibition set out in
Article 12(1) of the Charter being declared fully applicable in this case.
1.42. Admittedly, in its most recent advisory opinion, the Court stated that for the purposes
of Article 12 of the Charter, “[a] request for an advisory opinion is not in itself a ‘recommendation’
119
by the General Assembly ‘with regard to [a] dispute or situation” . It further pointed out that the
Court “cannot decline to answer the question posed based on the ground that its opinion would lack
any useful purpose”, since it “cannot substitute its asses120nt of the usefulness of the opinion
requested for that of the organ that seeks such opinion” . However, the case in point is very
different. Not only has the General Assembly faile d to indicate of what use the opinion might be,
but it is also apparent from the wording of the request that it is of interest solely to the Member
States, to the exclusion of the Organization; th at it was adopted, moreover, in the absence of any
activity by the General Assembly in relation to Ko sovo; and, finally, that the Assembly cannot, in
any event, take act in this situation without undermining Article12 of the Charter. France
considers that, in the circumstances, the Court must to decline to answer the request for an opinion
that has been made to it.
116
See A/63/250, First Report of the General Committee, para. 61; A/63/PV.2, 19 September 2008, p. 4.
117See para. 1.34 above.
118Of the 192 Member States, 158 took part in the vote. Seventy-seven voted to refer the question to the Court;
7voted against (however, Liberia’s vote was not counted, pursuant to Art. 19 of the Chart⎯ see A/63/PV.22, p.11);
and there were 74 abstentions. The States that voted to refer the question to the Court therefore represented a minority of
77 States of the 192 States that make up the United Nations.
119Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory , Opinion cited in
footnote 56, p. 148, para. 62.
120Ibid., p. 163, para. 62. II. THE FACTORS THE C OURT SHOULD TAKE INTO ACCOUNT SHOULD IT CONSIDER
ITSELF OBLIGED TO ANSWER THE REQUEST FOR AN OPINION
2.1. Were the Court nonetheless to decide to answer the request for an opinion, it would need
to take careful account of the fact that there is no provision that makes it possible to assess the
conformity with international law of Kosovo’s de claration of independence. That factor alone
should lead the Court to reply that the declaration of independence was not contrary to international
law (§1). However, France has no doubt that th e Court would not reach such a conclusion without
having fully informed itself about the unpreceden ted circumstances that led Kosovo to declare
independence. It therefore seems necessary to co mplete this written statement by highlighting, not
only the extent to which these circumstances make Kosovo a sui generis case, which can certainly
not be extrapolated to other situations that have arisen in international law, but also that they
confirm the only conclusion in law to which the question put to the Court should give rise, namely
that, in the absence of a material rule of intern ational law, the declaration of independence cannot
be subject to a theoretical test of legality, and, therefore, cannot be adjudged incompatible with
international law (§2).
§1. There are no grounds for claiming that the Kosovo’s declaratio
n of
Kosovo’s independence is not “in accord with international law”
2.2. As the French Republic has stated a bove, the question whether an entity constitutes a
State relies is a matter of purely factual assessment and, consequently, in exercising its exclusi121y
judicial functions, the Court cannot consider th e merits of the questi on that has been posed . If,
nonetheless, the Court were to decide to broach the matter, it would have to find that there was
nothing to stop Kosovo from declaring its independence since international law contains no rule
that either prohibits or permits a State’s acce ssion to independence as a result of its secession from
a pre-existing State (1), at least provided its indepe ndence is not the result of a violation of the ban
on the use of armed force in international relations pursuant to the United Nations Charter (2).
1. International law does not in principle pr ohibit a declaration of independence of a new
State
2.3. Were the Court to decide to give an a dvisory opinion, it would have, clearly, to confine
itself to answering the question posed by the Genera l Assembly. It should not, more particularly,
decide whether, in general terms, the Kosovar people had the right to independence or analyse
whether Kosovo fulfils the conditions that allow it to be deemed a State, but should simply
ascertain whether the declaration of independen ce of 17February2008 is compatible with
international law.
2.4. In making that assessment, it is necessary to start from the fundamental principle
according to which international law neither encour ages nor forbids secession: it takes note of it.
As the Arbitration Commission of the Conference on Yugoslavia pointed out “the principles of
international law define... the conditions in which an entity constitute[s] a State”, but “the
existence or disappearance of a State [is] a question of fact” 122. International law records that
“primary act” (in the same way as national law record s an individual birth), but although this is a
“juridical person” (“personne morale”), it does not create it; it records its existence and draws the
consequences in the sense that, simply as a resu lt of its existence and as soon as it comes into
existence, the State has all of the rights and obliga tions that international law attaches to statehood.
121
See para. 1.14 above.
122
Opinion No. 1, 29 November 1991, reproduced in International Law Reports, Vol. 92, 1993, p. 162. - 26 -
The conditions or criteria for its existence may be the subject of legal definition, but their
implementation remains a question of sheer fact of which the law takes note 123. “The formation of
124
a new State is... a matter of fact, and not of law” . “International law does not encourage
secession; however, it accepts successful secession. It takes note of the event, as in the case of
Bangladesh or former Yugoslavia. The law accepts the State act” 125.
2.5. A declaration of independence is only one of the elements of fact leading to the
establishment of a new State. Of itself, it is neither illegal nor is it legal. Save in exceptional cases,
the predecessor State will obviously not encourage secession and, in the great majority of cases, it
will seek to prevent it by peaceful me ans (as in this case) or by force: but it cannot be established
as a principle that international bows to the view of the predecessor State, since, otherwise, all
cases of secession would have to be regarded as condemned under international law, and that is not
the case: the principle is that internationa l law takes a neutral position in this respect ⎯
condemnation of the declaration of independen ce being the exception; however, as will be
demonstrated below (2), the exceptional circumstances which lead to a declaration of independence
being illegal are not present in this case. As Pr ofessor James Crawford has written, “[t]he position
is that secession is neither legal nor illegal in in ternational law, but a legally neutral act the
consequences of which are regulated internationa lly. As Lauterpacht pointed out ‘[i]nternational
law does not condemn rebellion or secession aiming at the acquisition of independence’ 126”127 .
2.6. However, there is no doubt, save in th e specific case of a colonial territory 128, that
secession calls into question the territorial ascenda ncy of the State at whose expense the secession
takes place. But in international law, the principl e of territorial integrity relates not to relations
between a State and its own population, but to rela tions between the States, as is clear from the
wording of Article2(2) of the United Nations Charter, a crucial provision establishing and
governing that principle: “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 . . .” 129
As Professor James Crawford points out, “[t] his position was affirmed by the International
Law Commission in its discussion of the principl e of non-recognition of territorial acquisition by
illegal force. Article 11 of the Draft Declarati on on Rights and Duties of States, which embodied
that principle, was amended by limiting it to acquisition ‘by another State’ so as to deal with 130 the
123
See Alain Pellet, “Le droit international à l’aube du XXIème siècle (La société international contemporaine ⎯
Permanences et tendances nouvelles)”, in Cours euro-méditerranéens Bancaja de droit international , Vol.I, 1997,
Aranzadi, Pamplona, 1998, p.55. See also, for example, Vladi mir-Djuro Degan, “Création et disparition de l’Etat (à la
lumière du démembrement de trios federations multiethniques en Europe”, Recueil des cours de l’Académie de droit
international, 1999, Vol. 279, p. 227.
124Oppenheim’s International Law (1st ed.), Vol. 1, p. 264, § 209; 8th ed., Vol. 1, p. 544, § 209. See also 9th ed.
by Sir Robert Jennings and Sir Arthur Watts, 1992, Vol. 1, p. 677, §241 (cited by James Crawford, The Creation of States
in International Law, Clarendon Press, Oxford, 2nd ed., 2006, p. 3).
125Alain Pellet, op. cit., footnote 123, p. 59.
126Recognition in international law , Cambridge University Press, 1947, p. 8, and “Revolutionary Activities
against Foreign States”, American Journal of International Law, 1928, p. 128.
127
James Crawford, op. cit., footnote 124, p. 390.
128
See the fourth principle of Declaration 2625 (XXV), cited in footnote 72: “The territory of a colony or other
Non-Self-Governing Territory has, under the Charter, a status separate and distinct from the territory of the State
administering it”.
129
Emphasis added.
130
In reality, to exclude the case of secession: “T he CHAIRMAN proposed the following text: ‘Every State has
the duty to refrain from recognizing any territorial acquisition made by another State through force or the threat of force.’
The addition of the words ‘by another State’ eliminated the case of secession” ( I.L.C. Yearbook 1949, Vol.I,
15th meeting ⎯ 4 May 1949, p. 113, para. 131; emphasis added). - 27 -
131
case of secession” . It follows that the principle of territorial integrity, as conceived by the
United States Charter, excludes any foreign intervention designed to break up a State, including by
providing armed support to a secessionist movement 132; but that certainly does not imply that
international law condemns (or, indeed, encourages) secession per se.
2.7. The most highly qualified public law speci alists also consider that this must be the
conclusion, as illustrated by the report by the “five experts”, which was prepared at the request of
the Quebec National Assembly. Stating the view that third States reserve a right of control by
means of recognition, which will be refused a new State if there is doubt concerning its existence or
if its owes its existence to the illegal use of arme d force, particularly if accompanied by help from
abroad 133, the five jurists conclude that the existing rules of international law do not made it
possible to judge the legality of a secession: th e right of peoples to self-determination does not
create a right to accede to independence outside col onial situations, but nor does the principle of
territorial integrity stand in the way of the accession to independence of non-colonial peoples 134.
2.8. In other words, while is entirely clear that there is no right to secession in international
law, it is equally apparent that international law does not prohibit secession, nor, consequently, a
declaration of independence by part of a State’s population. Any contrary view would be
tantamount to calling into question the legality of the accession to independence of very many
States whose existence is now undisputed and whic h have been all become members of the United
Nations, be they the successor States to “Gran Co lombia”, the “partition” of India and Pakistan,
Eritrea, Senegal (which withdrew from the Mali Fe deration), Syria (which triggered the break-up
of the United Arab Republic), Singapore or the Republics born of the dissolution of both the USSR
and former Yugoslavia.
2.9. In the absence of a rule of international law prohibiting the secession of part of the
territory and population of a pre-existing State ⎯ and, consequently, that territory’s declaration of
independence ⎯ the Court:
⎯ must decline to answer the question posed by resolution63/3 of the United Nations General
Assembly, which does not lend itself to an answer of a legal nature; and
⎯ could, if, despite everything, it were to respond, only find that Kosovo’s unilateral declaration
of independence is not contrary to international law.
2.10. The latter conclusion is required bot h because there is neither a ban nor an
authorization under international law concerning a territory’s accession to independence, and
because there are clearly no special circumstance s indicating a violation, on the occasion of
Kosovo’s declaration of independence, of certain ⎯ and, moreover, well-established ⎯ rules of
international law.
131
James Crawford, op. cit., footnote 124, p. 390.
13See para. 2.13 below.
13Case of the “Turkish Republic of Northern Cypr us”. See, in particular, Security Council
resolutions 541 (1983) and 550 (1984).
13Thomas M. Franck, Rosalyn Higgins, Alain Pellet, Malcolm N. Shaw and Chri stian Tomuschat, “The
Territorial Integrity of Quebec in the Event of the Atainment of Sovereinty”, Co mmission d’étude des questions
afferents à l’accession du Québec à la souverainté, Exposés et etudes, Vol. I, Les attributs d’un Québec souverain, 1992,
p. 383, pp. 428-430. - 28 -
2. No other rule of international law prohibited Kosovo’s declaration of independence
2.11. Although international law does not, on principle and generally, prohibit secession, it
nonetheless contains certain rules of a prohibitory nature, and the violation of those rules in
connection with a declaration of independence could result in that declaration being illegal.
2.12. It is not worth drawing up a list of these prohibitory rules for the purposes of this
written statement, since a prima facie review of the circumstances in which Kosovo declared its
135
independence must preclude any possibility of any of those rules having been breached .
2.13. There is, of course, no question that a declaration of independence and the constitution
of a new “State” in the territory of a pre-existi ng State may involve the threat or use of force
incompatible with the United Nations Charter, or be accompanied by large-scale breaches of
international law, requiring all parties without exception to refrain from recognizing the breaches
committed and the resultant situation as legal 136. For instance, it was because the declarations of
137
independen138of the “Bantustans” by South Africa or the “Turkish Republic of Northern
Cyprus” were contrary to such basic principles of international law as the prohibition of
apartheid and the use of force that they justifiably received a hostile reception from the
international community.
2.14. If Kosovo’s declaration of independence c ould be considered to be the consequence of
the violation of one of those fundamental princi ples or one aspect of a complex situation that
constituted a violation of that nature, it would certainly be within the discretion of the Court to find
the declaration to be contrary to international law. But the fact is that none of these prohibitory
rules is relevant in this case. No-one can claim 139 that Kosovo’s independe nce is the result of
illegal foreign armed intervention, when the decl aration of 17February2008 was made on the
conclusion of a lengthy political process, conducted under the auspices of the Secretary-General of
the United Nations and with the support of the Security Council, and during which all of the
options for Kosovo’s final status, including independence, were considered.
2.15. Consequently, in the opinion of France, there is no ground that would justify
concluding that Kosovo’s declaration of independence was not consistent with international law.
135See para. 2.5 above and paras. 2.63-2.69 below.
136In a different context, the Court took the view that “[ g]iven the character and the importance of the rights and
obligations involved”, namely the right of the Palestinian Pople to self-determination, as well as certain obligations
under international humanitarian law, “all States are under an obligation not to recognize the illegal situation resulting
from the construction of the wall in the Occupied Palestinian Territory” ( Legal Consequences of the Construction of a
Wall in the Occupied Palestinian Territory , Advisory Opinion, I.C.J. Reports 2004 , cited in footnote 56, p.200,
para.159). In its Advisory Opinion of 21 June 1971 concerni ng Namibia, cited in footnote 82, the Court declared that,
pursuant to the decisions taken by the Security Council, th e Member States of the United Nations were “under an
obligation to recognize the illegalit y and invalidity of South Africcontinued presence in Namibia” ( I.C.J. Reports
1971, pp. 53 and 54, paras. 115 and 119).
137See resolution 31/6A of 26 October 1976 in which the General Assembly “ rejects the declaration of
independence of the Transkei and declares it invalid”; s ee also, for example, Security Council resolution 417 (1977) of
31 October 1977.
138See Security Council resolution 541 (1983) of 18 November 1983: “[t]he attempt to create a ‘Turkish republic
of Northern Cyprus’ is invalid”.
139
And Serbia has never claimed this, see S/PV.6025, 26 November 2008, pp.4-5; S/PV.5917, 20 June 2008,
p.4; S/PV.5850, 11 March 2008, p.2; S/PV.5839, 18 February 2008, pp.4-5. Regarding the alleged violation of the
principles of sovereignty and territorial integrity, see para. 2.6 above. - 29 -
§2. The sui generis character of the political process that
led to Kosovo’s declaration of independence
2.16. Since the creation of a new State is a matter of fact, save only where an obligation not
to afford recognition applies ⎯ which it clearly does not in this case ⎯ the considerations set out
above are sufficient to settle the question referred to the Court by Serbia. From a legal perspective,
it is not necessary to give an account of the distinctive features of the political process that led to
Kosovo’s declaration of independence, as this concerns not the law but the facts (the circumstances
and political parameters that governed the way in which Kosovo’s final status was determined, how
they affected the creation of the new Kosova r State and the policy of the other States on
recognition, none of them issues which are predetermined by international law).
2.17. Nonetheless, it is probably helpful for the Court to be duly informed of the profoundly
sui generis character of this political process, in the ⎯ extremely unlikely ⎯ event that it should
decide that it must respond to the request for an opinion.
2.18. The unprecedented nature of this political process is bound up with a number of
inter-linked factors:
⎯ first, throughout the process, that is to say from 1999 until the day on which independence was
declared, that is over a period of no less than nine years, Kosovo enjoyed a status entirely
separate and distinct from that of Serbia. Th e extreme severity of the repressive measures
which Serbia directed against Kosovo in the 1990s resulted in a threat to international peace
and security, and, in June 1999, that led the Secu rity Council, to take the unusual decision to
place the territory under an interim international administration (1);
⎯ secondly, as early as 1999, the Security Council considered independence for Kosovo to be one
possible option for the territory’s final status, in the light, in particular, of the absolute need
(reiterated on many occasions) to respect the will of the people of Kosovo (2);
⎯ thirdly, independence, declared in February 2008, was not something that happened overnight,
but in the wake of intensive negotiations over a period of several years, under the auspices and
supervision and at the instigation of the Security Council, in order to achieve a mutually
acceptable solution. It was only because those negotiations came to a complete halt and were a
consummate failure that independence was fina lly declared, as the genuine expression of the
will of the people of Kosovo (3);
⎯ fourthly, independence was not declared without guarantees or control. Although
independence was achieved in a peaceful manner, it was accompanied by a firm commitment
from the State of Kosovo to comply with the mo st exemplary rules in relation to democracy,
human rights, the rights of minorities and the rule of law, enabling stability to be maintained in
the region (4);
⎯ fifthly, and bearing the above factors in mind, the United Nations, like the European Union,
entirely legitimately continued fully to suppor t and to assist Kosovo’s authorities, thereby
demonstrating, among other things, that they ne ver considered the declaration of independence
a threat to international peace and security in the region (5).
2.19. Taken as a whole, those different factors very clearly preclude the case of Kosovo from
establishing a precedent able to be cited in other situations. As France has had occasion to explain, - 30 -
140 141
to the Security Council and the General Assembly, in particular , the political process under
way in Kosovo since 1999 is clearly a sui generis case and, as such, not one able to be relied upon
elsewhere in the world. In its conclusions on Kosovo of 18February2008, the Council of the
European Union very correctly pointed out that
“[t]he European Union adheres to the principles of the United Nations Charter and the
Helsinki Final Act, inter alia, the principles of sovereignty and territorial integrity and
all UN Security Council resolutions. It unde rlines its conviction that in view of the
conflict of the 1990s and the extended period of international administration under
Security Council Resolution1244, Kosovo constitutes a sui generis case which does
not call into question these principles and resolutions.” 142
1. Kosovo was placed under international admini stration for nearly nine years, resulting
de facto in an irreversible situation
143
2.20. As France pointed out in the introduction to this written statement , the gravity of the
crisis in Kosovo during 1998-1999 led the Secu rity Council to take the decision, itself
unprecedented as a response to an unprecedented situation, to place Kosovo under the direct
administration of the United Nations, on the basis of Chapter VII of the Charter. The exceptional
nature of the crisis demanded an exceptional response. That was why resolution1244(1999)
placing Kosovo under international administration was adopted without a single vote against,
despite the fact that its provisions imposed major constraints on the FRY 144.
2.21. In its preamble, resolution1244(1999) reaffirms “the commitment of all Member
States to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia”, but that
reference has clearly to be construed in the light of the decisions taken by the Security Council in
the operative paragraphs of the resolution.
2.22. The resolution had a twofold effect on th e exercise of Serbia’s powers in the territory
of Kosovo.
2.23. As regards the provisional status of Kosovo , by placing Kosovo under international
administration in order to maintain interna tional peace and security, the Security Council de facto
made the territory independent in relation to the Serbian authorities, which ceased to be in a
position to exercise any authority over it from then on, for a period of nearly nine years, to the date
140
See, for example, S/PV.5839, 18 February 2008, p. 21.
141
See S/63/PV.22, 8 October 2008, p. 9.
142S/2008/105, 18 February 2008, Annex. See, to the same effect, Finland’ s declaration to the Security Council,
on behalf of the European Union, on 13 December 2006, S/PV.5588, p. 23: “[w]e would like to make it clear that we see
the question of Kosovo’s status as sui generis . The outcome of the status process will not set a precedent for other
regions because its current status is exceptional, being based on Security Council resolution 1244 (1999).
143See paras. 12-27 above.
144The resolution was adopted by 14 votes in favour, China abstained: see S/PV.4011, 10 June 1999, p. 10. - 31 -
of Kosovo’s independence. During that lengthy period, Kosovo therefore had a status that was
145
entirely separate and distinct from that of Serbia .
2.24. That was bound to produce consequences in relation to the effective exercise of State
authority in the territory of Kosovo. In its First Opinion of 29November1991, the Arbitration
Commission of the Peace Conference on the Former Yugoslavia stated that it was necessary to take
into consideration “the form of internal politi cal organization146 in order to determine the
Government’s sway over the population and the territory” . In this case, as soon as an
international administration had been set up in th e territory of Kosovo and a new “internal political
organization” followed, Serbia was unable to exercise any State authority whatsoever over the
territory of Kosovo from 1999. State authority was gradually transferred to the Kosovar
authorities, with the result that Serbia’s sway over Kosovar territory and its population was
irreversibly transferred to the Kosovar authorities.
2.25. As regards Kosovo’s final status, resolution 1244 (1999) did not preclude the option of
independence. By not precluding it, the Secur ity Council accepted in advance that the possible
creation of a new State, on conclusion of the political process that the Security Council itself was to
facilitate was not to be construe d as undermining the principle of Serbia’s territorial integrity
(see (2) below).
2.26. As soon as resolution1244(1999) w as adopted, the Federal Republic of Yugoslavia
was fully cognizant of its exceptional implications in relation to both Kosovo’s provisional and its
final status. Before the resolution was put to th e vote, the Federal Republic of Yugoslavia made a
declaration stating that
“in operative paragraph 11, the draft resolu tion establishes a protectorate, provides for
the creation of a separate political and economic system in the province and opens up
the possibility of the seces147n of Kosovo and Metohija from Serbia and the Federal
Republic of Yugoslavia” .
2.27. That was in fact the correct interpreta tion of the decisions which the Security Council
was preparing to take by adopting the resolution. The fact that the FRY itself underscored their ⎯
in every respect ⎯ exceptional implications for the provisional and final status of Kosovo
demonstrates the lack of ambiguity in the decision taken by the Security Council solely in order to
maintain international peace and security. It is one thing for the FRY to have disputed the
appropriateness of these decisions ⎯ and, clearly, it is not for the Court to review them from that
perspective ⎯ but quite another matter that they should have had the above-mentioned
implications and that the representatives of the RF Y undeniably realized this at the time of their
adoption.
145
With all of the legal consequences that flow from th at. For example, the European Court of Human Rights
found in Behrami v. France and Saramati v. France, Germany and Norway that Serbia could no longer be considered to
have been exercising its “jurisdiction” over the terriof Kosovo since 10 June 1999 and was therefore no longer
accountable in terms of respect for the European Convention of Human Rights in relation to the territory (Judgment of
31 May 2007, Applications Nos. 71412/01 and 78166/01, paras. 66-72).
146
Opinion No. 1, 29 November 1991, reproduced in International Law Reports , Vol.92, 1993, p.162,
para. 1 (c).
14S/PV.4011, 10 June 1999, p. 6. - 32 -
2. Pursuant to resolution 1244 (1999), independence was one possible option for the
territory’s final status
2.28. By referring, in its preamble, to Serbia’s sovereignty and territorial integrity, the effect
of resolution 1244 (1999) was not to prohibit Kosovo’s accession to independence, far from it. The
resolution was careful to draw a distinction be tween provisional and final status. Under the
resolution, independence was precluded as far as Ko sovo’s provisional status was concerned, but
not in relation to its final status.
2.29. At a time when the serious levels of violence of 1999 had yet to occur, the Contact
Group and the Security Council both expressed their preference for a status for Kosovo that both
respected Serbia’s territorial integrity and o ffered Kosovo “a substantially greater degree of
autonomy . . . and meaningful self-administration” 148. At the time, the Contact Group in fact took
the view that it should support “neither independen ce nor the maintenance of the status quo” but
meaningful self-administration 14. The 1999 conflict was radically to change the situation by
making it impossible for the territory of Kosovo to be reintegrated into the Serbian fold without the
agreement of the Kosovar people, because of the terrible repression that they had suffered and the
irrevocable split that was bound to produce.
2.30. The solution adopted at the time involved setting in place a two-phase political process:
⎯ first, the temporary institution of a substantial degree of autonomy and self-administration for
Kosovo; this did not formally call into question the principle of Serbian sovereignty over the
territory but, at the same time, it removed the territory temporarily and completely from
effective Serbian authority by establishing an interim international administration;
⎯ those measures were set in place until the question of Kosovo’s status could be finally settled
on the basis of a political process that could, in the long term and among other things, result in
the territory’s independence. While some conditio ns were certainly laid down, they no longer
included respect for Serbia’s territorial integrity.
2.31. That approach was fully implemented, first of all, in the draft Rambouillet Agreement
of 18March199, which described itself as an interim agreement for peace and autonomy in
Kosovo. In its various provisions, the Rambouille t Agreement established, on a temporary basis, a
substantial degree of autonomy for Kosovo within the framework of the FRY, as clearly indicated
by the very title of Kosovo’s (“interim”) Constitution included in Chapter 1 of the Agreement. The
Rambouillet Agreement changed the parameters to be taken into consideration in two ways; it no
longer mentioned the principle of territorial integr ity and referred simply to the “opinion” of the
relevant authorities while, at the same time, intr oducing the criterion of respect for the “will of the
people” of Kosovo. According to Article 1 (3) of Chapter 8 of the Agreement:
“Three years after the entry into force of this Agreement, an interim meeting
shall be convened to determine a mechanis m for a final settlement for Kosovo, on the
basis of the will of the people, and opinions of relevant authorities, each Party’s efforts
regarding the implementation of this Agreement, and the Helsinki Final Act, and to
148
See resolutions 1160 (1998), para.5; 1199 (1998) 12th and 13th recitals in the preamble; 1203 (1998),
8th recital in the preamble.
14See the statements by the Contact Group reproduced in S/1998/223, 12 March 1998, para. 9; S/1998/272,
27 March 1998, para. 13, and S/1998/657, 16 July 1998, para. 7.
14S/1999/648, 7 June 1999. The original version of the agreem ent, in English, is attached to the English version
of document S/1999/648. - 33 -
undertake a comprehensive assessment of th e implementation of this Agreement and
150
to consider proposals by any Party for additional measures.”
2.32. On 10 June 1999, resolution 1244 (1999) ad opted that two-phase approach. In regard
to the immediate measures to be taken to reso lve the crisis in Kosovo, the Security Council
referred, in paragraph(1) of the resolution, to the general principles and the more detailed
principles and elements set out in Annexes(1) and (2) of the resolution, which governed only
Kosovo’s provisional status. Annexes(1) and (2) in fact envisaged the establishment of an
“interim political framework agreement” only. Once again, this was to be based on the principles
of a substantial degree of autonomy for Kosovo and the territorial integrity of the FRY, specifying
that it was for an international civil presence , which was to become UNMIK, to provide an
administration, again an “interim” administration, for Kosovo, in order to secure the establishment
151
of a substantial degree of autonomy and “provisional” self-government for Kosovo . However,
neither of the annexes makes any mention of the territory’s final status.
2.33. The operative paragraphs of resolu tion1244(1999) meet the latter concern.
Paragraph11 of the resolution, which was desi gned to define the main responsibilities of the
international civil presence, divided the issu e of status between two subparagraphs. The
international civil presence was to:
(a)[Promote] the establishment, pending a final settlement, of substantial autonomy and
self-government152 Kosovo, taking full account of Annex2 and of the Rambouillet accords
(S/1999/648) ;
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(e) [Facilitate] a political process designed to determine Kosovo’s future status, taking into account
the Rambouillet accords (S/1999/648)”.
2.34. Those two subparagraphs prompt three comments:
⎯ by the very fact of making a distinction between the two phases in Kosovo’s status (provisional
and final status), resolution1244(1999) implied that the c onditions framing one phase in its
status could not necessarily be invoked in relation to the other;
⎯ in fact, according to resolution1244 (1999) itself, the determination of Kosovo’s future status
was not to reflect the detailed principles and c onditions set out in Annex2 of the resolution,
which is mentioned only in subparagraph (a) and not subparagraph (e). It was merely to “take
account” of the Rambouillet accords. Now, the only conditions set by the Rambouillet
Agreement of 18March1999 were that the “opinions of the relevant authorities” were to be
153
sought and the “will of the people of Kosovo” respected . Far from barring the way to
independence, resolution1244(1999), very cl early, therefore, accepted the possibility of
independence, in negative terms, by not making the outcome of the political process dependent
on respect for the principle of Serbia’s territorial integrity and consent, and, in positive terms,
by requiring that the will of the “people” of Kosovo be respected;
15S/1999/648, 7 June 1999. The original version of the agreem ent, in English, is attached to the English version
of document S/1999/648.
15See para. 10 of resolution 1244 (1999).
152
Subparagraphs (c) and (d) are subdivisions of the task set out in subparagraph (a).
15See para. 2.31 above. - 34 -
⎯ finally, under subparagraph (e), the role of the United Nations consisted in “facilitating a
political process”, which presupposed that the Security Council and those acting on its behalf
would, on the one hand, remain neutral in rega rd to which of the options on the table were
championed, subject to compliance with the requirements laid down in the Rambouillet
Agreement, and, on the other, ensure that the process was conducted without threat to
international peace and security. A political process of that kind naturally presupposed that the
path of negotiation would first be attempted; it should, however, be noted that, in the
resolution, the Security Council was careful not to make the achievement of a consensual
solution an absolute prerequisite. From that poi nt of view, the deliberate reference to the more
flexible expression of “political process” was better attuned to the very particular and
154
eminently factual objective of a process designed to establish a territory’s final status in
relation to statehood.
2.35. The principles drawn up by the Contact Group as of 2005, when the final status process
was to be launched 155, entirely confirm that independence was one of the options available under
156
resolution 1244 (1999). In its Guiding Principles of 2 November 2005 , and Principle No. 6 more
specifically, the only options the Contact Group rule s out are “partition of Kosovo” and the “union
of Kosovo with any country or part of any country”, but it makes no mention of independence.
Similarly, while there was reference to territorial integrity, this was solely in regard to
“neighbours”, but not, and this is very significant, Serbia’s territorial integrity. Finally, the same
guiding principle specified that “Kosovo [will] not return to the pre-March 1999 situation”.
2.36. The Contact Group confirmed its positio n and clarified it in a manner still more
favourable to the independence option, on 31 January 2006:
“The Contact Group Guiding Principles of November 2005 make clear that
there should be: no return of Kosovo to the pre-1999 situation, no partition of
Kosovo, and no union of Kosovo with any or part of another country... Ministers
look to Belgrade to bear in mind that the settlement needs, inter alia, to be acceptable
to the people of Kosovo. The disastrous polic ies of the past lie at the heart of the
current problems.” 157
2.37. The Contact Group reiterated the need for the final settlement to be “acceptable to the
158
people of Kosovo” on 24July, a nd then again on 20September2006 , but again without
requiring respect for Serbia’s territorial integrity.
2.38. As early as 15 May 2001, moreover, the preamble to the Constitutional Framework for
Provisional Self-government in Kosovo, adopted in the form of UNMIK Regulation2001/9, had
154See para. 2.4 above.
155See para. 2.40 ff below.
156
The English text of the Guiding Principles is available at the following internet address:
http://www.unosek.org/docref/Contact Group Ten Guiding principles for Ahtisaari.pdf. A French version may be
accessed at: http://www.diplomaatie.gouv.fr/fr/pays -zones-geo_833/kosovo_650/colonne-droite_2743/
texts-reference_2741/principes-directeurs-du-groupe-contact-vue-un-reglement-du-statut-du-
kosovo-02.11.05_29390.html.
157Declaration accessible athttp://www.unosek.org/docref/fevrier/statement by the contact group on the future
of Kosovo-Eng.pdf.
158
Declarations accessible at the following internet addreshttp://www.unosek.org/docref/Statement_of_the_
Contact_Group_after_first_Pristina-Belgrade_High-level_meeting_held_in_Vienna.pdf and http://www.unosek.org/
docref/2006-09-20_CG Ministerial_Statement_New_York.pdf. - 35 -
stated that meaningful self-government was to be established only “pending a final settlement” and
the process that was to result in Kosovo’s final status “in accordance with UNSCR1244(1999)
take[s] full account of all relevant factors including the will of the people ” 159. Similarly, legal
writers have clearly interpreted resolution1244 (1999) as leaving open the question of Kosovo’s
160
final status, including the option of independence .
2.39. Therefore, resolution 1244 (1999) and th e subsequent declaration of the Contact Group
certainly did not prohibit the option of independence, since they made it a requirement that the will
of the “people of Kosovo” should be respected, but nor did they require that Serbia’s territorial
integrity or the consent of its authorities should be taken into account. From that perspective,
Kosovo’s independence is not really a classic example of secession. Its unique features make it
more akin to situations in which the right of peoples to self-determination is being applied,
although it is not the same as this. At any rate, the fact remains that Kosovo’s declaration of
independence must be viewed in the light of the requirement consistently laid down, as part of the
political process set in place by the Security Council, to respect the will of the people of Kosovo, at
the possible cost of Serbia’s territorial integrity.
3. On conclusion of the negotiation process, independence emerged as the only political option
that was both viable and met the requirements laid down by the Security Council and the
Contact Group
2.40. The fact that independence was an optio n on the table and, therefore, accepted by the
Security Council on the basis of resolution 1244 (1999), which cited the Rambouillet accords, did
not, of course, imply that it was the only possible outcome. It was, in the first instance, for the
parties concerned to identify a mutually accepta ble solution through negotiation. Nonetheless,
there could be no question of allowing the failure of the negotiations to block the final status
process.
2.41. From those different perspectives, the political process that resulted in Kosovo’s
declaration of independence is again unique:
⎯ between 2005 and 2007, lengthy negotiations we re instigated, driven and steered by the
Security Council, acting under Chapter VII of the Charter;
⎯ those negotiations failed, and there was no hope of reconciling the differences between the
parties, but nor was it possible to maintain the status quo;
⎯ in the light of the special ci rcumstances of Kosovo, independence then emerged as the only
viable political option among the various options opened under the political process.
15Regulation of 15 May 2001, cited in footnote 39, p. 4; emphasis added.
160
See, for example, Marcelo Kohen, “Le Kosovo: un test pour la communauté international”, in Vincent Chetail
(ed.), Conflits, sécurité et cooperation Liber amicorum Victor-Yves Ghébali , Bruylant, 2007, p.372: “La
Résolution 1244 (1999) ne prejudge rien sur le ‘réglement définitif’, autrement dit, sur la solution à trouver une fois finie
l’étape proviso ire d’administration international fondée r une ‘autonomie substantielle’ ”; Stefan Oeter, “The
Dismemberment of Yugoslavia: An Update on Bosnia and Herzegovina, Kosovo and Montenegro”, German Yearbook of
International Law, 2007, p.506: “Should the territory be reintegraed into the Serbian State, or should Kosovo be
granted independence as a sovereign State? Resolution 1244 left open this question deliberately. It stressed the
persisting territorial sovereignty of Serbia over the territory, but had at the same time reserved a different status solution
to future negotiations” (footnotes omitted). - 36 -
2.42. Before revisiting these different elements, France wishes to make it clear that it is not
in any way seeking here to attribute blame for the failure of the negotiations. That approach would
be both pointless and counter-productive in regard to peace in the region and its future, its future in
Europe, in particular. The fact is that the nego tiations failed, after everything was done to try to
make them succeed. That is a fact, and all th at matters for the present purposes is an objective
analysis of the consequences.
2.43. In 2005, the Security Council launched the political process designed to result in the
determination of Kosovo’s final status. In a statem ent by its President of 24 October, the Security
Council expressed the view that “the time [had] come to move to the next phase of the political
process”. With that in mind, it approved the Secretary-General’s appointment of a new Special
Envoy “to lead the Future Status process”, welc omed the fact that the Contact Group remained
closely engaged “in the political process” and, fi nally, reaffirmed its “commitment to the objective
161
of a multi-ethnic and democratic Kosovo, which must reinforce regional stability” .
2.44. That decision of the Security Council was taken on the basis of the report submitted a
few weeks earlier by the Secretary-General’s Special Envoy, Mr.KaiEide 162. After analysing in
detail the current situation in Kosovo, Mr.Ei de had recommended that the political process
designed to determine the territory’s future status should be launched as soon as possible, because
the status quo was no longer sustainable 163. The Secretary-General’s Special Representative and
164
Head of UNMIK took absolutely the same view, saying a few days later : “it must . . . be clear to
all of us that continuing with the status quo is not a viable option”, and reiterating this still more
plainly in February of the following year:
“As the Security Council has acknowledged in the past, the status quo in
Kosovo is not sustainable. It follows that the status process should not become a
continuation of the status quo. The acceleration of the status process is the best
contribution that can be made now to ensuring political stability in Kosovo and in the
wider region.” 165
2.45. As the negotiations were set to begin, it was, naturally, hoped that the parties would
reach a mutually acceptable solution, and, consequently, it was necessary, to encourage them to
reach that ideal solution. In its Guiding Principles of 2November2005, the Contact Group
therefore pointed out that “[a] negotiated solution should be an international priority” (a “priority”,
not an “obligation”), and that the parties should, therefore “refrain from unilateral steps” at that
stage 166. On 31 January 2006, the Contact Group again st ressed the fact that “all efforts should be
made to achieve a negotiated settlement in the c ourse of 2006” and that “167egotiated settlement is
the best way forward” (there again, the “best”, not the “only”) . At the same time, the Contact
161S/PRST/2005/51, 24 October 2005.
162
S/2005/635, 7 October 2005.
163
Ibid., paras. 5-10 in particular.
164S/PV.5289, 24 October 2005, p. 5. See also the earlier S/PV.5188, 27 May 2005, p. 7.
165S/PV. 5373, 14 February 2006, p.3: idem in S/PV.5588, 13 December 2006, p.2 and p.4. See also, among
other examples, Finland’s statement to the Security Council on behalf of the European Union of 13 September 2006
(S/PV.5522, p. 24): “Resolving the status issue is necessary in order to maintain stability in the Western Balkans region.
The status quo is unsustainable and must be replaced by a so lution that provides lasting peace and stability in the region
and promotes Kosovo’s European integration.”
166Principles cited in footnote 156.
167Declaration cited in footnote 157. - 37 -
Group drew a168ntion to the fact that it was, in any event, important to respect the will of the people
of Kosovo .
2.46. On 24 July 2006, the Contact Group again declared that
“all possible efforts should be made to achieve a negotiated settlement in the course of
2006 that is, inter alia , acceptable to the people of Kosovo and promotes a
multi-ethnic society with a future for all of its citizens. As set out in the Guiding
Principles, once negotiations are under way, th ey cannot be allowed to be blocked.
The process must be brought to a close, not least to minimize the destabilizing
political and economic effects of contin uing uncertainty over Kosovo’s future
status.” 169
2.47. However, as the intense negotiations continued, the initial hope gradually faded, so that
it became necessary to accept the id ea of a solution that was not necessarily consensual, as long as
it was realistic, respected the will of the people of Kosovo and was capable of guaranteeing
regional stability and the rights of the different communities. On 20September2006, meeting at
ministerial level, the Contact Group therefore declared:
“Ministers reaffirmed their commitment that all possible efforts be made to
achieve a negotiated settlement in the course of 2006 . . . Ministers express their deep
appreciation to the UN Special Envoy for conducting eight months of intensive
negotiations . . . Regarding Kosovo’s political status, Ministers recognize that
distance remains between the positions of Belgrade and Pristina, as was made clear at
the high-level meeting in Vienna on 24July. Ministers support the Special Envoy’s
efforts to work with the parties in co-ope ration with the Contact Group to arrive at a
realistic outcome that enhances regional stability, is acceptable to the people of
Kosovo and preserves Kosovo’s multi-ethnic character. Striving for a negotiated
settlement should not obscure the fact that neither party can unilaterally block the
status from advancing. Ministers encouraged the Special Envoy to prepare a
comprehensive proposal for a status settlement and on this basis to engage the parties
in moving the negotiating process forward.” 170
2.48. After more than a year of negotiations, including 17sessions of direct discussion and
visits by 26 expert missions to Belgrade and Pristina 171, it became clear that a mutually acceptable
solution was not possible, while the status quo was becoming still less sustainable. The
Secretary-General’s Special Envoy, MarttiAhtisaar i, drew the inevitable conclusions when, on
26 March 2007, he submitted a Comprehensive Proposal for the Kosovo Status Settlement, the very
172
purpose of which was to achieve an independent Kosovo . As the Special Envoy explained in his
Report on Kosovo’s Future Status, the recommendations were “fully supported” by the United
Nations Secretary-General:
“after more than one year of direct ta lks, bilateral negotiations and expert
consultations, it has become clear to me th at the parties are not able to reach an
16See paras. 2.36-2.39 above.
16Declaration cited in footnote 158 above.
170
Declaration cited in footnote 158 above.
17See Stefan Oeter, op. cit. , footnote 160, p.507. See also the Report of the Special Envoy of the
Secretary-General on Kosovo’s future status, S/2007/168, 26 March 2007, para. 1.
17S/2007/168/Add.1, 26 March 2007. - 38 -
agreement on Kosovo’s future status... It is my firm view that the negotiations’
potential to produce any mutually agreeable outcome on Kosovo’s status is exhausted.
No amount of additional talks, whatever the format, will overcome this impasse...
Nevertheless, resolution of this fundamenta l issue is urgently needed. Almost eight
years have passed since the Security C ouncil adopted resolution 1244 (1999) and
Kosovo’s current state of limbo cannot continue. Uncertainty over its future status has
become a major obstacle to Kosovo’s de mocratic development, accountability,
economic recovery and inter-e thnic reconciliation. Such uncertainty only leads to
further stagnation, polarizing its communities and resulting in social and political
unrest. Pretending otherwise and denying or delaying resolution of Kosovo’s status
risks challenging not only its own stability but the peace and stability of the region as
a whole... The time has come to r esolve Kosovo’s status. Upon careful
consideration of Kosovo’s recent history, the realities of Kosovo today and taking into
account the negotiations with the parties, I have come to the conclusion that the only
viable option for Kosovo is independence, to be supervised for an initial period by the
173
international community.”
2.49. The assessment of the Special Envoy,174hose authority was enhanced by his neutrality
and direct involvement in the negotiations , was not open to question. Anxious not to lose even
the slightest opportunity of nonetheless reaching a consensual settlement, on 19April2007, the
Security Council decided to send a fact-finding mission to Kosovo, in response to a formal
proposal from Russia 175. In late April2007, that fact-finding mission travelled to the region and
consulted all of the parties involved in the situation in Kosovo. It emerged very clearly that Serbia
and Kosovo continued to take opposing and irreconcilable positions, while the status quo was less
sustainable than ever 176.
2.50. When the report was submitted to them, the members of the Security Council endorsed
those two conclusions and confirmed the resulting deadlock: the two parties had “stro177y opposed
positions”, but both considered that “the status quo [was] not sustainable” . Even among the few
delegations which still expressed the hope, despit e everything, that fresh negotiations might
succeed, it was recognized, and not without contradiction, that “[t]he Kosovo issue is quite
involved and convoluted” and that “[m]aintaining the status quo is not a solution” 178.
2.51. Although it had been apparent for several years that the status quo could not continue,
and the resolutions tabled at the Security Coun cil to secure the latter’s approval for 179 Special
Envoy’s Proposal for the Kosovo Stat us Settlement had not been successful , the Contact Group
173
S/2007/168, 26 March 2007, paras. 1-5.
174See, by analogy, the rules applicable to evidence, I.C.J., Judgment of 26 February 2007, Application of the
Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and
Montenegro), available at the following internet address: http://www.icj.cij.org/docket/files/91/13684.pdf., paras.213
and 227 ff.
175
Report of the Security Council mission on the Kosovo issue, S/2007/256, 4 May 2007, para. 1.
176Ibid., in particular paras. 6, 12, 23, 24, 26 and 59.
177S/PV.5673, 10 May 2007, p. 3 (Belgium, as head of the Security Council mission).
178Ibid., p. 9, China.
179
See the declaration of 20 July 2007 by Belgium, Fran ce, Germany, Italy, the United Kingdom and the United
States, available at the following internet addresshttp://www.unosek.org/docref/2007-07-20-Statement issued by the
co-sponsors of the draft resolution.doc. - 39 -
nonetheless proposed a final attempt at negotiation in late July 2007, even though this was clearly
not essential, in the light of past failures 180.
2.52. The Secretary-General announced this on 1 August, and stated that the negotiations
would be conducted by a Troika made up of representatives of the European Union, Russia and the
United States. On that occasion, the Secretary- General specified that “[t]he international
community must find a solution that is timely, addresses the key concerns of all communities living 181
in Kosovo and provides clarity for Kosovo’s status. The status quo is not sustainable.”
2.53. On 10December2007, the Troika was, however, compelled to acknowledge that the
latest negotiations had failed, even though they ha d been conducted intensively for more than four
182
months .
2.54. The Troika’s report of its work is very telling in many respects:
(i) indicating that the negotiations were c onducted “within the framework of the Security
Council resolution1244(1999) and the guiding principles of the Contact Group”, and
specifying that the parties had “discussed a wide range of options, such as full
183
independence” , the Troika confirmed that resolution1244(1999) had acknowledged
the possibility of independence for Kosovo and, consequently, had certainly not prohibited
it;
(ii) the Troika had also informed the parties that “the Ahtisaari Settlement was still on the
184
table” ;
(iii) the negotiations were once again very in tensive (“10sessions, six of which consisted of
face-to-face dialogue, including a final intensive three-day conference in Baden, Austria,
as well as two trips to the region”); moreover, they were conducted at the highest possible
185 186
level (presidential and ministerial) , and not at the traditional diplomatic level ;
(iv) despite that, and even though all of the possible options had been considered, including
187
the minimum option of “agreement to disagree” , “[n]one of these models proved to be
an adequate basis for compromise”, “[a]fter 120 days of intensive negotiations, the parties
18The scale of the negotiations which had been held since 2005 far exceeded the criterion laid down by the
Permanent Court of International Justice in the Mavrommatis Palestine Concessions case. In that case, the Court in fact
held that: “the question of the importance and chances of success of diplomatic negotiations is essentially a relative one.
Negotiations do not of necessity always presuppose a more or less lengthy series of notes and despatches; it may suffice
that a discussion should have been commenced, and this discussi on may have been very short; this will be the case if a
deadlock is reached, or if finally a point is reached at whih one of the parties definitely declares himself unable, or
refuses, to give way . . .” (Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 13). See also South West Africa (Ethiopia v.
South Africa; Liberia v. South Africa), Preliminary Objections, Judgment, I.C.J. Reports 1962, pp. 345-346.
18Statement by the Secretary-General of 1 August 2007, S/2007/723, 10 December 2007, Ann. I.
182
S/2007/723, 10 December 2007, attached.
183
Ibid., para. 1.
18Ibid., para. 5.
18Ibid., para. 7.
18See Sir Robert Jennings, Sir Arthur Watts (eds.), Oppenheim’s International Law, Vol.I, Peace, Parts2 to 4,
Longman, 9th edition, 1992, p. 1182.
187
Report cited in footnote 175, para. 10. - 40 -
were unable to reach an agreement on Kosov188 status. Neither side was willing to yield
on the basic question of sovereignty” ;
(v) as the Troika stressed, that deadlock was extremely problematical since “the resolution of
Kosovo’s status is crucial to the stability a nd security of the western Balkans and Europe
as a whole” 189.
2.55. From that point on, it became glaringly obvious to all neutral observers who had had an
involvement in the situation in Kosovo over several years that independence was now the only
viable option.
2.56. There was in fact no alternative:
(i) maintaining the status quo was impossible, not only because this would have been based
on a sham (re-launching formal negotiations which had no hope of succeeding), but also
because it would have meant failing to respect the will of the people of Kosovo and
would, moreover, have resulted, as pointed out, on several occasions, by all of the players
involved in the political process, in the dest abilization of Kosovo and the wider region,
and, consequently, would have posed a threat to international peace and security;
(ii) furthermore, the international administration could not remain in place indefinitely, again
because this would have compounded the uncerta in status of Kosovo, producing negative
effects, particularly at political and economic level 190, but also because, under
resolution 1244 (1999), it had been envisaged solely as a provisional authority;
(iii) Serbia clearly could not force the people of Kosovo to join its territory, as this would have
been directly contrary to the consistently stipulated requirement that the will of the people
of Kosovo had to be taken into account. In the light of past relations between Kosovo and
Serbia, the use of force that this would have implied would have tipped the region into a
fresh cycle of violence which had, at all costs, to be avoided 191;
(iv) as far as Kosovo joining Serbia on a consensual basis was concerned, this was all the more
unlikely to secure the agreement of the people of Kosovo because Serbia had, in the past,
proved disinclined to accept a substantial degree of autonomy for Kosovo (for whatever
reasons). That reluctance was confirmed by the adoption in 2006, right in the midst of the
negotiations, of a new Constitution refusi ng to accord Kosovo lasting and genuine
autonomy. On 12July2007, the European Commission for Democracy through Law
(Venice Commission) of the Council of Europe noted this, in complete impartiality, as
follows:
“6. The text of the Preamble [of th e 2006 Constitution] considers the Province
of Kosovo and Metohija as an integral part of the territory of Serbia enjoying the
status of substantial autonomy . . .
7. With respect to substantial autono my, an examination of the Constitution,
and even more specifically of Part VII, makes it clear that this substantial autonomy of
188Ibid., paras. 10-11.
189
Ibid., para. 14.
190See the Report of the Special Envoy of the Secr etary-General on Kosovo’s future status, S/2007/168,
26 March 2007, paras. 8-9 and 10.
191Ibid., paras. 6-7. - 41 -
Kosovo is not at all guaranteed at the constitutional level, as the Constitution delegates
almost every important aspect of this autonomy to the legislature. In PartI on
Constitutional Principles, Article12 deals with provincial autonomy and local
self-government. It does so in a rather ambiguous way: on the one hand, in the first
paragraph it provides that State power is limi ted by the right of citizens to provincial
authority and local self-government, yet on the other hand it states that the right of
citizens to provincial autonomy and local self-government shall be subject to
supervision of constitutionality and legality. Hence it is clear that ordinary law can
restrict the autonomy of the Provinces.
8. This possibility of restricting the autonomy of the Provinces by law is
confirmed by almost every article of Part 7 of the Constitution, and more specifically
by:
⎯ Article182, para.2: ‘The substantia l autonomy of the Autonomous Province of
Kosovo and Metohija shall be regulated by the special law which shall be adopted
in accordance with the process envisaged for amending the Constitution.’
⎯ Article 182, para. 4: ‘The territory of autonomous provinces and the terms under
which borders between autonomous provin ces may be altered shall be regulated
by the law . . .’
⎯ Article183, para.2: ‘Autonomous provinces shall, in accordance with the law,
regulate matters of provincial interest in the following fields . . .’
⎯ Article183, para.3: ‘Autonomous provinces shall see to it that human and
minority rights are respected, in accordance with the Law.’
⎯ Article 183, para. 5: ‘Autonomous provinces shall manage the provincial assets in
the manner stipulated by the Law.’
⎯ Article183, para.6: ‘Autonomous provinces shall, in accordance with the
Constitution and the Law, have direct revenues.’
⎯ Article 184, paras. 1 to 3: ‘An autonomous province shall have direct revenues for
financing its competences. The kind and amount of direct revenues shall be
stipulated by the Law . The Law shall specify the share of the autonomous
provinces in the revenues of the Republic of Serbia.’
Hence, in contrast with what the preamble announces, the Constitution itself
does not at all guarantee substantial autonomy to Kosovo, for it entirely depends on
the willingness of the National Assemb192of the Republic of Serbia whether
self-government be realized or not.”
2.57. Independence, on the other hand,
(i) was compatible with resolution 1244 (1999), which had made provision for that option;
(ii) mirrored political reality (it was the only viable political option, and had already largely
existed in practice for several years);
192
Opinion No. 405/2006, Opinion on the Constitution of Serbia , Strasbourg, 12 July 2007, CDL-AD(2007)004,
paras. 6-8; emphasis in original. - 42 -
(iii)finally, as the conditions in which inde pendence was declared on 17February2008
showed, it made it possible to guarantee th e existence of a multi-ethnic Kosovo that
respected human rights and the rights of mi norities, in accordance with the requirements
that had been placed at the core of the political process set under way under the auspices
of the Security Council 193.
2.58. Of course, as Serbia was anxious to str ess in the way in which it drafted its request for
an advisory opinion, independence was, in the en d, declared “unilaterally”. But one must be
careful to avoid misinterpreting the significance to be attached to that term.
2.59. First of all, the declaration of indepe ndence is less significant than the reality of
194
independence. A State is or is not independent , it is not “unilaterally” independent.
2.60. It is then necessary to bear in mind th e special nature of the political process set in
place, in 1999, to determine Kosovo’s final status. The rationale of the process clearly required
that the parties concerned should start by negotiatin g. In parallel, however, it was stipulated, by
way of fundamental requirement, that the will of the people of Kosovo had, in fact, to be taken into
account. On the other hand, Serbia’s consent was not a condition that had definitely to be met in
determining Kosovo’s final status 195. Viewed in conjunction with one another, as they should be,
these different criteria therefore implied that the route of negotiation had to be exhausted before
there could be independence but also that the failure of the negotiations could not result in the will
of the Kosovar people being entirely left out of account. In other words, the “obligation” to
negotiate did not preclude Kosovo from acceding to independence without Serbia’s consent, at
least once the negotiations had failed 196.
2.61. From the latter perspective, it had become blatantly clear in late 2007 that the parties
197
had pursued the negotiations “as far as possible”, as required by the Court’s case law . Indeed,
“[s]o long as both sides remain adamant... ther e is no reason to think that the dispute can be
198
settled by further negotiations between the Parties” ; the prolonged deadlock in the negotiations
19See para. 2.63 ff below.
19See para. 2.4 above.
19See paras. 2.34-2.39 above.
196
Mutatis mutandis, since we are dealing here with a political process that is not predetermined by international
law, the situation is comparable to one in which a State is accorded a right unilaterally to refer to the International Court
of Justice only if it has tried to resolve the dispute beforehand. In such circumstances, the existence of a requirement to
negotiate certainly does not mean that it is impossible to acunilaterally, it merely defers the exercise of the unilateral
right to refer the matter to the Court, by requiring that throute of negotiations be first exhausted (see, for example,
Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at
Lockerbie (Libyan Arab Jamahiriya v. United States of America), Preliminary Objections, Judgment, I.C.J. Reports
1998, pp. 121-122, paras. 16-20).
19See North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of
Germany/Netherlands), Judgment, I.C.J. Reports 1969 , pp.47-48, para.87: “Defining the content of the obligation to
negotiate, the Permanent Court, in its Advisory Opinion in the case ofRailway Traffic between Lithuania and Poland ,
said that the obligation ‘was not merely to enter into negotia tions but to pursue them as far as possible with a view to
concluding agreements’, even if an obligation to negot iate did not imply an oblig ation to reach agreement (P.C.I.J.,
Series A/B, No. 42, 1931, p. 116)”.
198
South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Preliminar y Objections, Judgment,
I.C.J. Reports 1962, p. 346. - 43 -
“compel[s] a conclusion that no reasonable probabilit y exists that further negotiations would lead
to a settlement” 199.
2.62. In accordance with those principles, th e Contact Group informed the parties on several
occasions that the lack of a negotiated solution should certainly not prevent the status determination
process from moving forward. In their statement of 27September2007, the Contact Group
ministers reaffirmed, for instance, the point th ey had already made in their statement of
20 September 2006, namely “[s]triving for a negotia ted settlement should not ob200re the fact that
neither party can unilaterally block the status process from advancing” .
Unilaterally blocking the process of determining Kosovo’s status was the only thing
prohibited. Thus, the Contact Group specifically recognized that it was possible, and even
necessary, were the negotiations to fail, to advan ce towards determining Kosovo’s final status in
such a way that the will of the people of Kosovo was respected, provided that regional stability and
the rights of the difference communities were maintained 201-- all requirements which the
declaration of independence met in full.
4. Independence was achieved with respect for exemplary principles in relation to democracy,
the rule of law, human rights and the rights of minorities, and without jeopardizing
regional stability
2.63. The circumstances in which independence was declared, on 17 February 2008, after the
complete failure of the most recent negotiations, made it possible to reconcile respect for the will of
the people of Kosovo with the two requirements placed at the forefront throughout the political
process, namely maintaining regional stability an d protecting the rights of minorities within the
framework of a multi-ethnic and democratic Kosovo.
2.64. First of all, there is no doubt that Kosovo’s declaration of independence genuinely
expressed the will of the people of Kosovo, and met the highest standards of democracy. The
declaration was in fact adopted practically unanimously by Kosovo’s Assembly, just after it had
202
been elected in accordance with the hi ghest international electoral standards . Consequently,
there can be no doubt that, through the declarati on, the people of Kosovo gave valid expression to
their will to accede to independence, thereby meeting the key criterion placed at the forefront of the
political process.
2.65. Secondly, the declaration of independen ce contains a firm commitment on the part of
Kosovo to respect the recommendations contained in the proposal of the Secretary-General’s
Special Envoy, Martti Ahtisaari. As a result, it incorporates (as would Kosovo’s Constitution a few
203
months later) the very binding guarantees which it contains. As the declaration of independence
rightly emphasizes, those guarantees are “in line wi th the highest European standards of human
204
rights and good governance” . Exemplary in many respects, these guarantees go far beyond the
199Ibid., p. 345.
200
Report of the Contact Group ministers on Kosovo of 27 September 2007, S/2007/723, 10 December 2007,
Ann. III, p. 9.
201
See, to that effect, the Contact Group declaration of 20 September 2006.
202
See para. 26 above.
203See para. 28 above.
204Recital 12 in the preamble to the Declaration of independence, cited in footnote 44. - 44 -
principles, compliance with which some States have, in the past, made a political condition for
recognizing new States 205; they, in comparison, are far more binding in scope and in terms of the
detail of the requirements placed on Kosovo’s author ities. In that regard also, Kosovo is a unique
case.
2.66. Moreover, the commitment to respect the Ahtisaari proposal is all the more remarkable
since the State of Kosovo
“affirm[s], clearly, specifically, and irrevocably, that Kosovo shall be legally bound to
comply with the provisions contained in th is Declaration, including, especially, the
obligations for it under the Ahtisaari Plan. In all of these matters, we shall act
consistently with principles of internati onal 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 d eclaration, and appeal to them to extend to
us their support and friendship.” 206
2.67. As a result, although, formally, a un ilateral declaration, the declaration of
independence does not mark a break with or depa rture from the earlier process: far from it, in
referring to it, it adopts the approach based on compromise and a balance between the interests of
207
all sides that was central to the “Ahtisaari Proposal” 208 . Moreover, many of the States that
recognized Kosovo took note of those undertakings .
2.68. Thirdly, bearing in mind specifically the undertakings which it contains, in particular
continued international supervision, the declarati on of independence did not trigger an increase in
tensions. Serbia’s constructive approach must be we lcomed in that regard. It firmly undertook to
refrain from the use of force against Kosovo and from imposing economic sanctions against it in
the wake of the declaration of independence 209. There is also no doubt that that the substantial
contribution of those countries most actively involv ed in stabilizing the Balkans, as well as “[t]he
common European prospects offered to Kosovo and to Serbia [which] are also a very specific
210
characteristic of the situations” , significantly contributed to securing a peaceful political
205
See, in particular, the Guidelines on the Recognition of New States in Eastern Europe and the Soviet Union,
adopted by the Member States of the European Union on 16 December 1991, A/46/804, 18 December 1991.
206
Declaration of independence, cited in footnote 44, para. 12.
207
When presenting his Comprehensive Proposal fo r the Kosovo Status Settlement in March 2007,
Martti Ahtisaari said: “My Settlement proposal, upon which such independence will be based, builds upon the positions
of the parties in the negotiating process and offers comp romises on many issues to achieve a durable solution”
(S/2007/168, 26 March 2007, para. 16).
208
See also the declarations of recognition of the Unite d States, France, Albania, the United Kingdom, Latvia,
Denmark, Estonia, Switzerland, Ireland, Sweden, Iceland, Japan, Finland and Norway.
209
As early as January 2008, the President of Serbia stated before the Security Council that “Serbia will not resort
to violence or war” (S/PV.5821, p.4). The day afte r Kosovo’s declaration of independence, PresidentTadi ć reaffirmed
that Serbia would not resort to the use of force (S/PV.5839, 18 February 2008, p.5). On 8 October 2008, Serbia’s
Foreign Minister told the General Assembly that “[o]ur de mocracy responded with maximal restraint. We ruled out the
use of force and the imposition of sanctions against the breakaway province” (A/63/PV.22, p. 1).
21A/63/PV.22, 8 October 2008, p. 9 (France). - 45 -
transition. All of that helped the situation on th e ground remain relatively calm, at any rate given
the special nature of the circumstances 211.
2.69. In the light of those different factors, there is no doubt that the circumstances in which
Kosovo declared its independence satisfied in every way all of the fundamental requirements which
the Security Council has always placed at the heart of the political process designed to secure
Kosovo’s final status. As the Security Council has consistently stated, “[t]he establishment of a
multi-ethnic, tolerant, democratic society in a stable Kosovo rema ins the fundamental objective of 212
the international community in implementing Security Council resolution1244(1999)” ; the
Security Council “reaffirms its commitment to the objective of a multi-ethnic and democratic
213
Kosovo which must reinforce regional stability” . Kosovo’s independence, in the special
circumstances in which it was attained, made it possible to satisfy those different requirements.
Moreover, independence alone was capable of achieving this.
5. The United Nations has continued to support Kosovo’s authorities
2.70. In the light of the foregoing, it is no surprise that the Security Council, like the
Secretary-General and the Head of UNMIK, as well as the General Assembly or, indeed, the
European Union, have not condemned Kosovo’s decl aration of independence in any way. That is
entirely justified. The formation of a new State is actually a matter of fact, and the United Nations
has no specific jurisdiction in regard to the recognition of States, which is a matter for the
214
discretion of the States, provided there is no obligation not to accord recognition . Since the
declaration of independence was consistent with the will of the people of Kosovo; was the only
viable option after the negotiations had failed; did not breach any of the basic principles of the
political process drawn up since 1999; and was made without posing a threat to international peace
and security, the Security Council, the Secretary- General and the Head of UNMIK rightly took the
view that their responsibility could only be to fac ilitate the political transition, by ensuring that it
did not threaten international peace and security, while retaining their traditionally neutral stance in
regard to Kosovo’s final status.
2.71. That attitude is extremely significant, from a number of points of view.
2.72. First of all, it marks a departure from the situations in which the political organs of the
United Nations felt compelled to condemn, exp licitly and unequivocally, certain attempts at
secession 215 because they violated a fundamental principle of international law or threatened
211See S/PV.5839, 18 February 2008, p. 3 (Secretary-General): “The s ituation has remained calm throughout
Kosovo”; Report of the Secretary-General of 28 March 2008, S/2008/211, para.11: “Des pite a number of serious
security incidents, the overall security situation in Ko sovo during the reporting period remained calm though tense”;
S/PV.5917, 20 June 2008, p. 10 (France): “an objective assessment shows that over the four months since independence
the pessimistic scenarios predicted by some have not come to pass. On the contrary, what we see is a security situation
that is generally calm and institutions that are working ina satisfactory manner within a democratic framework”;
S/PV.6025, 26 November 2008, p.3 (Special Representative of the Secretary-General and Head of UNMIK): “it has
been encouraging that the overall atmosphere in Kosovo was generally calm throughout the summer, that there have been
no major security incidents and that a series of minor problems have been managed and contained by low-level
intervention”.
212
Declaration by the President of the Security Council of 18 March 2004, S/PRST/2004/5.
213
Declaration by the President of the Security Council of 24 October 2005, S/PRST/2005/51.
214See paras. 1.16 and 2.13 above.
215See para. 2.13 above. - 46 -
216
international peace and security 217 , with the dramatic consequence that relations with the entity
concerned were now prohibited . The absence of any condemnation by any of the organs of the
United Nations of Kosovo’s declaration of independence confirms a contrario that they clearly did
not regard it as involving a violation of international law or as posing a threat to international peace
and security.
2.73 The fact that the organs of the United Nations refrained from expressing condemnation
is all the more significant in the light of the speci al authority that both the Security Council and the
Head of UNMIK have to condemn any breach of the principles flowing from
resolution 1244 (1999).
2.74. Had it deemed the declaration to be contrary to resolution1244(1999), the Security
Council, as the arbiter of compliance with its own resolutions, would clearly have had the authority
to condemn the terms of the declaration. In the past, the Security Council has not hesitated to
exercise that authority. In 2002, at a time when the process intended to determine Kosovo’s future
status had, for instance, yet to be launched, the Security Council
“deplore[d] the adoption by the Assembly of Kosovo, in its session of 23May 2002,
of a ‘resolution on the protection of the territorial integrity of Kosovo’. It concu[rred]
with the Special Representative of the Secr etary-General that such resolutions and
decisions by the Asse218y on matters which do not fall within its field of competence
are null and void.”
However, the Security Council refrained from declar ing “null and void” or even just “deploring”
the declaration of independence of 17February2 008, and was right to exercise that restraint,
because the declaration is in no way contrary to paragraph11 (e) of resolution1244(1999), and
actually fits into the framework of the political process defined therein and fully satisfies the
central requirements of that process.
2.75. The Secretary-General’s Special Representative also had the power to decide, on his
own authority, that the declaration of independence was possibly contrary to
resolution1244(1999). Under the second subpa ragraph of Chapter8.1 of the Constitutional
Framework for Provisional Self-Government, the Speci al Representative had, in fact, retained the
power of “[d]issolving the assembly and calling for new elections in circumstances where the
Provisional Institutions of Self-Government are deemed to act in a manner which is not in
conformity with UNSCR 1244(1999), or in the exercise of the SRSG ’s responsibilities under that
resolution” 21. The Special Representative did not exercise that responsibility, because he, rightly,
considered that the declaration of independence was in no way contrary to resolution1244 (1999)
and did not pose a threat to international peace and security.
216
But not the violation of an alleged rule of intern ational law prohibiting secession: see James Crawford, The
Creation of States in International Law, op. c, footnote 124, pp.389-390: the language of the resolutions of the
Security Council condemning certain inst ances of secession “does not imply theexistence of an international rule
prohibiting secession... Any international concern associaed with secession movements relates to the existence of
foreign intervention (as in Katanga) or the existence of a threat to international peace and security (as in Rhodesia)”.
217
In its Opinion of 21 June 1971 concerning Namibia, cited in footnote 82, the Court detailed the various
implications of the obligation not to accord recognition: see I.C.J. Reports 1971, pp. 54 et seq, paras. 119 ff. See, more
generally, James Crawford, The Creation of States in International Law, op. cit., footnote 124, pp. 157-173.
218
S/PRST/2002/16, 24 May 2002.
21See the UNMIK regulation of 15 May 2001, cited in footnote 39, p. 12. - 47 -
2.76. In the exercise of their responsibilities, the Security Council, the Secretary-General and
the Head of UNMIK did, however, ensure that the political transition consequent on the declaration
of independence did not undermine progress achiev ed since 1999, both by continuing to support
the strengthening of democracy and the rule of law in Kosovo and by reconfiguring the
international civil presence to t220 account of the reality on the ground as a result of Kosovo’s
declaration of independence .
2.77. In relation to that first point, it was cons istent with the Ahtisaari Proposal, to which the
declaration of independence refers, that the international presence called upon to remain
provisionally in Kosovo should continue to support Kosovo in strengthening its democratic
structures and the rule of law. On 15July2008 , the Secretary-General clearly reaffirmed that
Kosovo’s independence had not brought an end to that support: “UNMIK will continue to support
Kosovo in its effort to consolidate democratic governance institutions, advance economic growth
and move towards a future in Europe as part of the western Balkans.” 221
2.78. In relation to the second point, the Secretary-General first stated in his Report to the
Security Council of 28 March 2008 that in order to meet the “challenge” of the repercussions of the
declaration of independence, “UNMIK, guided by the imperative need to ensure peace and stability
in Kosovo, has acted and will 222tinue to act, in a realistic and practical manner in the light of the
evolving circumstances” . A few weeks later, he was to consider it a “pressing need” to
“preserve . . . international peace and security and stability in Kosovo”, to reconfigure UNMIK 223,
224
“in accordance with resolution1244(1999)” . According to the Secretary-General, that
reconfiguration meant handing over to the European Union’s “Rule of Law” Mission (EULEX) 225,
226
while remaining “status-neutral” . In two letters addressed to the Serbian and Kosovar authorities
respectively, the Secretary-General again pointed out that the United Nations maintained “strict
status-neutrality” in relation to Kosovo 227. This neutrality, which is expected of the United
Nations, was reaffirmed by many States that spoke during the Security Council’s discussions,
including some States that voted to refe r to the Court for an advisory opinion 228 -- again
demonstrating that229e request for an advisory opinion is not a request channelled between United
Nations organs .
2.79. In any event, it was, clearly, necessary to reconfigure UNMIK. Its continued presence
was not called into question, and this was something that Kosovo had committed to in its
220
As regards the “substantially changed situation in Kosovo”, brought about by the declaration of independence,
the United Nations Secretary-General cons idered, on 20 June 2008, that “[t]hat needs to be acknowledged as a fact of
life” (S/PV.5917, 20 June 2008, p. 3).
221
S/2008/458, 15 July 2008, para. 32.
222
S/2008/211, 28 March 2008, para. 30.
22S/2008/354, 12 June 2008, paras, 10 et seq.
22S/2008/458, 15 July 2008, para. 30.
22Established by Council Joint Action 2008/124/CFSP, of 4 February 2008, on the European Union Rule of Law
Mission in Kosovo, EULEX KOSOVO, Official Journal of the European Union, 16 February 2008, L. 42, pp. 92-98.
226
S/2008/354, 12 June 2008, paras. 10 et seq.
227
Ibid., Anns. I and II.
228
See also S/PV.6025, 26 November 2008, p.6 (Serbia); p.13 (South Africa); pp.15-16 (Russia); p.17
(Vietnam); p.18 (China); p.19 (Libya). See also S/PV.6097, 23 March 2009, p.7 (Ser bia); p.15 (Russia); p.21
(China); p. 22 (Vietnam).
229
See para. 1.26 above. It is in fact impossible to reconcile the desire to see the United Nations remain neutral on
the matter of Kosovo’s status with asking the General Assembly to request the Court to help it exercise its functions in
regard to Kosovo. - 48 -
230
declaration of independence , which could not have the effect of terminating
resolution1244(1999). It was, however, necessary to appreciate the implications of Kosovo’s
independence for the operation of the international presence.
2.80. In his report of 24 November 2008, the Secretary-General noted that
“all parties have accepted the reconfigurati on of the structure and profile of the
international presence, as envisaged in paragraph16 of my report 231, to one that
corresponds to the evolving situation in Ko sovo and enables the Eu232ean Union to
assume an enhanced operational role throughout Kosovo . . .” .
2.81. Two days later, the Security Council “welcomed the Secretary-General’s report” and
“[took] into account the positions of Belgrade and Pristina” and “their intention to co-operate with
233
the international community” . It also welcomed the co-operation between the different
international players and the European Union’s efforts “to advance the European perspective of the
whole of the western Balkans, thereby making a decisive contribution to regional stability and
234
prosperity” . With that same end in view, by remaining neutral in regard to Kosovo’s status, each
of the organizations involved lent its full support and assistance to the Kosovar authorities in their
efforts to consolidate democratic structures and th e rule of law. Yet again, it would be very
difficult to explain that approach if the declar ation of independence had to be regarded as a
violation of international law.
2.82. Finally, it is clear that Kosovo’s decl aration of independence cannot in any way be
seen as “incompatible with international law”. Since international law is silent as to the legality of
the emergence of a new State, save for exceptions that clearly do not apply in this case, it is
impossible to apply to the declaration of independence a test of legality or illegality. Analysis of
the many factors which make the process that resulted in Kosovo’s independence a sui generis case
prompt the same conclusion.
CONCLUSION
For all of the above reasons, the French Gove rnment considers, principally, that the Court
should decline to answer the request for an opi nion. In the alternative, should the Court
nonetheless decide to answer the question that has been put to it, France considers that the Court
should conclude that the declaration of independe nce of 17February2008 is not contrary to any
rule of international public law.
On behalf of the Minister of Foreign and European Affairs,
(Signed) EdwigeB ELLIARD .
___________
23See para. 5 of the declaration of independence, cited in footnote 44.
231
Para. 16 of his Report of 12 June 2008, S/2008/354, in which the Secretary-General planned the handover from
UNMIK to the European Union’s operational mission.
232
S/2008/692, 24 November 2008, para. 28.
23S/PRST/2008/44, 26 November 2008.
23Ibid. - 49 -
T ABLE OF C ONTENTS
Page
INTRODUCTION ........................................................................
........................................................... 1
1. The adoption of General Assembly resolution 63/3 ............................................................ 1
2. The historical context of the request for an advisory opinion.............................................. 2
(a) The crisis in Kosovo (1989-1999)........................................................................
......... 3
(b) The contribution of the internationa l community to the creation of “a
multi-ethnic and democratic Kosovo which must reinforce regional stability”........... 5
I. A REQUEST FOR AN ADVISORY OPINION THAT FALLS OUTSIDE THE COURT ’S JUDICIAL
FUNCTION ........................................................................
............................................................ 12
§1. Any opinion of the Court, whatever its nature, would be without legal effect on
Kosovo’s status........................................................................
.............................................. 13
§2. An opinion from the Court would impinge on a political matter in relation to which
the General Assembly neither intends nor is in a position to make a recommendation ........ 17
1. The request fails to meet the objectives which any request for an opinion must seek
to further ........................................................................
................................................... 17
2. Article 12 of the United Nations Charte r would leave an opinion of the Court
devoid of any real significance........................................................................
................. 20
II. THE FACTORS THE C OURT SHOULD TAKE INTO ACCOUNT SHOULD IT CONSIDER ITSELF
OBLIGED TO ANSWER THE REQUEST FOR AN OPINION ................................................................. 25
§1. There are no grounds for claiming that the Kosovo’s declaration of Kosovo’s
independence is not “in accord with international law”..............................................
........... 25
1. International law does not in principle prohibit a declaration of independence of a
new State........................................................................
................................................... 25
2. No other rule of international law prohibited Kosovo’s declaration of independence ...... 28
§2. The sui generis character of the political process that led to Kosovo’s declaration of
independence ........................................................................
................................................. 29
1. Kosovo was placed under international administration for nearly nine years,
resulting de facto in an irreversible situation.................................................................... 30
2. Pursuant to resolution 1244 (1999), i ndependence was one possible option for the
territory’s final status........................................................................
................................32
3. On conclusion of the negotiation pr ocess, independence emerged as the only
political option that was both viable and met the requirements laid down by the
Security Council and the Contact Group........................................................................
.. 35 - 50 -
4. Independence was achieved with respect for exemplary principles in relation to
democracy, the rule of law, human rights and the rights of minorities, and without
jeopardizing regional stability ........................................................................
.................. 43
5. The United Nations has continued to support Kosovo’s authorities.................................. 45
C ONCLUSION ........................................................................
............................................................ 48
___________
Written Statement of France (translation by the Registry)