A.G. File No. 36/1969/Y.4/17
8 July 2009
The Registrar,
International Court of Justice
Peace Palace
Carnegieplein 2
2517 KJ The Hague
The Netherlands
.'.1
Dear R~gistrar,
Re: ACCORDANCE WITH INTERNATIONAL LAW OF THE UNILATERAL
DECLARATION OF INDEPENDENCE BY THE PROVISIONAL
INSTITUTIONS OF SELF-GOVERNMENT OF KOSOVO (REQUEST FOR
ADVISORY OPINION)
ln terms of paragraph 3 of the Court's Order of 17 October 2008 (in relation to
an advisory opinion by the Court on the accordance with International Law of the
unilateral declaration of independence by the Provisional Institutions of Self
Government of Kosovo) I submit the Republic of Cyprus's Written statement in terms
of paragraph 2 of their Order.
The original of this Written Statement, together with 30 copies and a CD-ROM
electronic copy, are hereby presented for filing - by way of persona! delivery to the
Registry by H.E. the Ambassador of the Republic of Cyprus.
Please accept, Mr. Registrar, the assurances of my highest consideration.
r1/L
i=>etrClerides
Attorney General of the Republic of Cyprus
Agent of the Government of the Republic of Cyprus
/MM
Law Office of the Republic, Apelli 1, 1403 NICOSIA
Tel.: 22889100, Fax.: 22665080, email: [email protected] INTERNATIONAL COURT OF JUSTICE
Re: ACCORDANCE WITH INTERNATIONAL LAW OF THE
UNILATERAL DECLARATION OF INDEPENDENCE BY THE
PROVISIONAL INSTITUTIONS OF SELF-GOVERNMENT OF
KOSOVO
(REQUEST FOR AN ADVISORY OPINION)
WRITTEN STATEMENT COMMENTING ON
OTHER WRITTEN STATEMENTS
SUBMITTED BY
THE REPUBLIC OF CYPRUS
--
JULY 2009 TABLE OF CONTENTS
Paras Page
1. INTRODUCTION
1-2 1
11. PRELIMINARY JURISDICTIONAL
POINT: THE DECLARATION WAS
MADEBYTHEASSEMBLY 3-7 2
111. INTERNATIONAL LAW GOVERNS
CLAIMS TO SECESSION OR
INDEPENDENCE 8-27 4
(a) Acts of the Provisional
Institutions of Self-Government
are governed by international
law 10-12 4
(b) International law is applicable
to the declaration 13-27 6
Contrary to principles of general
international law 14-18 6
Contrary to other legal instruments 19-21 8
State practice concerning secession 22-23 10
Occasional silence in the face of
secession does not alter the position 24-25 11
Conclusion regarding applicability of
international law to acts of purported
secession 26-27 12
IV. 'SUI GENERIS' 28-40 13 The law cannot be waived 30-32 14
The precedential effect of the Kosovo
episode cannot be avoided 33 14
Unsustainability of the sui generis
argument 34-40 15
V. INTERNATIONAL LAW GOVERNS
QUESTIONS OF STATEHOOD 41-44 17
VI. CONCLUSION 45 18
ii RE:KOSOVO
WRITTEN STATEMENT
I. Introduction
1. There is much in the Written Statements submitted by other States with which the
Republic of Cyprus agrees, and there are also points with which the Republic of
Cyprus disagrees. This additional Written Statement by the Republic of Cyprus
does not attempt either to identify all of the agreed points or to identify or respond
to all the points with which the Republic of Cyprus disagrees. On matters of fact,
the Republic of Cyprus notes that some of the Written Statements appear to be
based upon understandings of the facts which differ from those held by the States
most directly concemed with events in Kosovo and / or by the Republic of Cyprus.
The Republic makes no comment on these points, considering the fundamental
legal principles to be clear, and that the Court will take appropriate steps to satisfy
itself on questions of fact that have a decisive importance for the application of
those principles. On matters of law, the Republic of Cyprus seeks to set out in this
submission the few main issues of principle before the Court on which a range of
views have been expressed and to elaborate and clarify the Republic's position in
relation to them.
2. The Republic considers the main points of principle to be the following:
a Claims to independence and secess1on are addressed and govemed by
international law;
b The legal principle of crucial importance in the present context is the
principle of territorial integrity, which binds the Provisional Institutions in
particular by reason of their status under Security Council resolution 1244
(1999);
c A case-by-case treatment of allegedly sui generis situations is fundamentally antithetical to the rule of law and to the principle of the sovereign equality of
States; and
d Claims to Statehood must be assessed in the light of fondamental principles
of legality.
In conclusion, the case of Kosovo is governed by the principles of public
international law, and by the specific obligations arising under UN Security Council
resolution 1244 (1999); and the declaration of independence is not compatible with
those principles and obligations.
II. Preliminary iurisdictional point: the declaration was made by the Assembly
3. Before addressing these issues of principle, the Republic of Cyprus will dispose of
one preliminary point regarding the jurisdiction of the Court. Sorne of the
submissions to the Court assert that the unilateral declaration of independence was
an internai constitutional act, not made by the Assembly of the Provisional
Institutions of Kosovo but by the people of Kosovo, and that it was therefore not
governed by international law, so that the request for an Advisory Opinion does not
concern a legal question within thejurisdiction of the Court.
4. The Republic of Cyprus notes that all the indications are that in adopting the
declaration the Assembly of the Provisional Institutions of Self-Government was
acting as the Assembly of the Provisional Institutions of Self-Government. Whether
or not all of the procedures of the Assembly were followed exactly, the Assembly
was convened as the Assembly, albeit in special session. The _invitation to the
session was 'extended in accordance with the Kosovo Constitutional Framework' . 1
The declaration was tabled on the Assembly's agenda. The members of the
Assembly, elected in accordance with the procedures laid down by Chapter 9 of the
1 Page 4 of the transcript of the special plenary session of the Assembly of Kosovo, annexed at page 225 to the
submission of the authors of the unilateral declaration ofindependence.
21
t
1
Constitutional Framework, spoke of themselves as the elected representatives, thus
claiming for themselves the Iegitimacy conferred upon them by the democratic
process instituted under resolution 1244 (1999).
5. The question addressed to the Court refers to 'the Unilateral Declaration of
'
t Independence by the Provisional Institutions of Self-Govemment of Kosovo'. The
argument that the declaration did not issue from the Assembly but from Assembly
members, whose capacity was not limited to the powers delegated by resolution
1244 (1999), has appeared at a late stage. Not one of the speakers in the UN
General Assembly debate who opposed a request· to the Court for an advisory
opinion stated that the wording of the request was defective in this respect.
the United Kingdom, which made detailed arguments against the submission of the
request, including detailed drafting points on the wording of the resolution, did not
disagree with the assertion that the Assembly of the Provisional Institutions of Self
Government had made the declaration.
6. In any event, the Republic of Cyprus hopes that the Court will not base its opinion
on the finer points of the internai procedures followed by the Kosovo Assembly but
rather on the purported international aspect of the declaration. The declaration was
apparently issued by the Assembly, and accordingly was subject to the provisions of
Security Council resolution 1244 (1999), and therefore to international law. The
limitations on the powers of any entity to declare independence while Kosovo was
under UN administration was affirmed by the Special Representative of the
Secretary-General in 2002:
"Kosovo is under the authority of UN Security Council resolution 1244
(1999). Neither Belgrade nor Pristina can prejudge the future status of
Kosovo. Jts future status is open and will be decided by the UN Security
2 A/63/PV.22, UN dossier 6. See also the annex to the letter from the Permanent Representative of the United
3 Pages 2 and 11 of A/63/PV.22, UN dossier 6.
3
t Council. Any unilateral statement in whatever form which is not endorsed by
the Security Council has no legal effect on the future status of Kosovo. " 4
(emphasis added)
7. Furthennore, the assertion that the declaration is not governed by international law
gives rise to a controversial issue which is itself an aspect of the legal dispute on
which the Court is asked to pronounce. It is accordingly within the jurisdiction of
the Court.
III. International law governs claims to secession or independence
8. We turn to the question of the applicability of international law to claims of
secession. Two points arise. First, the submissions of some States have denied that
the declaration was the act of a body with any status in international law, so that
international law was not in any way applicable to it, and consequently the
declaration could not be said to be incompatible with international law.
9. Second, the submissions of some States have maintained that the declaration is an
act of secession to which international law is not applicable or is neutral. These two
assertions are addressed below.
(a) Acts of the Provisional Institutions of Self-Government are governed by
international law
1O. Questions regarding the identity and status of the entity making the declaration have
been dealt with in paragraphs 3 to 7 above. The declaration appears to emanate
from the Assembly of the Provisional Institutions of Self-Government. In any event,
no claim that it was made not by the Assembly as such but by the members of the
Assembly could render the declaration immune from the restraints imposed by
4 international law and by the provisions of resolution 1244 (1999) and instruments
made under it.
11. It has always been clear that any action by the Assembly of the Provisional
Institutions of Self-Government which attempted to change the status of Kosovo
would be subject to Security Council resolution 1244 (1999) and to the
international instruments issued by virtue of that resolution. For example, the
Assembly was warned in the following terms by the UN concerning an earlier
attempt by the Assembly to discuss a declaration of independence:
"consideration of this matter by the Assembly would be contrary to United
Nations Security Council resolution 1244 (1999), the Constitutional
Framework for Provisional Self-Government in Kosovo and to the
Provisional Rules of Procedure of the Assembly." 5
12. ln addition, Cyprus wishes to emphasise that the declaration itself purported to be a
document with effects in international law. The declaration seeks to establish a
claim to Statehood for Kosovo and to make commitments for that putative State on
matters such as its continued territorial identity, the commitment to human rights
obligations, and the establishment of measures for the protection of minorities. The
document also asserts explicitly that "all States are entitled to rely" on the
commitments given therein. Furthermore, it is evident that the intent of the
declaration was to deprive Serbia, a sovereign State, of part of its territory; and that
is an act which necessarily operates in the field of international law.
4 Statement by Michael Steiner, Special Representative of the Secretary-General; UN dossier 187.
5 Letter dated 7.2.2003 from the Principal Deputy Special Representative of the Secretary-General to the President of
the Assembly of Kosovo (UN dossier 189). See also the letter dated 6.11.2002 from the Special Representative of the
Secretary-General to a similar effect (UN dossier 185).
5 (b) International law is applicable to the declaration
13. Sorne States have suggested that the declaration does not give rise to questions of
international law upon which the Court can offer an opinion, either because
international law does not apply to acts of secession or because, while international
law may in principle apply to acts of secession, it is neutral in relation to them -
there is neither a right to secede nor a prohibition on secession under international
law. Whichever way the point is put, the Republic considers it to be fundamentally
incorrect, as contrary to the principle of territorial integrity and other legal
instruments such as Security Council resolutions; and it invites the Court to dismiss
this suggestion.
Contrary toprincip/es of genera/ international law
14. The principle of sovereign equality of States is the first of the Principles set out in
6 7
the UN Charter. Territorial integrity is one of the elements of this Principle. The
constitutive mies of the principle of territorial integrity include prohibitions on
intervention in any coercive form, the threat or use of force 8 and attempts at partial
or total disruption of national unity and territorial integrity of a State. 9
15. The 'Friendly Relations Declaration' 10 of the UN General Assembly underlines the
legal force of these mies:
6 Article 2.1 of the UN Charter reads: "The Organization is based on the principle of the sovereign equality of ail its
Members".
7 See the Declaration on Principles oflntematiLaw conceming Friendly Relations and Co-operation among States
in accordance with the Charter of the United Nations, General Assembly resolution 2625 (XXV). This states that an
element ofsovereign equality is that "The territorial integrity and political independence of the State are inviolable".
8 Art2.4 of the UN Charter reads: "Ail Members shall refrain in their international relations from the threat or use of
force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the
Purposes of the United Nations."
9 For example, the preamble of the Friendly Relations Declaration General Assembly resolution referred to at n7 above
states: "Convinced in consequence that any attempt aimed at the partial or total disruption of the national unity and
territorial integrity of a State or country or at its political independence is incompatible with the purposes and
principles of the Charter".
10 Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in
accordance with the Charter of the United Nations, General Assembly resolution 2625 (XXV).
6 "Nothing in the foregoing paragraphs shall be construed as authorizing or
encouraging any action which would dismember or impair, totally or in part,
the territorial integrity or political unity of. ...States..... (emphasis added)
The use of the word "authorizing" is significant. Itmakes clear that without such an
authorisation the action would be prohibited. ltindicates that there is a general
international legal rule - a rule which this clause precisely intends to preserve -
according to which any action dismembering or impairing the territorial integrity of
a State is prohibited, whether that action emanates from within or without the State,
unless it is specifically allowed by a pennissive rule of international law.
16. The rules implementing the principle of territorial integrity have been affirmed not
11
only in UN resolutions but also in regional instruments such as the Helsinki Final
12 13
Act 1975 and the Charter of Paris for a New Europe.
17. It is because of the force of the principle that States and the UN have considered
that any exceptions to the principle of territorial integrity and to the stability of
international borders need to be set out in and controlled by legal rules. The
development of the right of self-detennination in colonial situations is such an
express exception. 14 The Friendly Relations Declaration achieved this carve-out
from the principle of territorial integrity for the right of self-detennination by
stating that the territory of a non-self-governing territory has a separate and distinct
identity from the metropolitan State. 15 Thus, international law does address the
11 See for example paragraph 4 of the UN Millennium Declaration (General Assembly resolution 55/2 dated 8
September 2000) and paragraph 5 of the 2005 World Summit Outcome (General Assembly resolution 60/1 dated 24
October 2005).
12 See for example section 1(A) IV entitled "Territorial lntegrity of States". The Helsinki Final Act is referred to in the
preamble of resolution 1244 (1999).
13 See page 8: "We are determined to co-operate in defending democratic institutions against activities which violate
the independence, sovereign equality or territorial integrity of the participating States."
14 This development is discussed in more detail at paragraphs 124 to 129 of the Republic ofCfirst Written
Statement. The Supreme Court of Canada stated in the Quebec case [1998] 2 S.C.R. 217 at paragraph 112 that the right
of secession "arises in the exceptional situation of an oppressed or colonial people".
15 Jtstates: "The territory of a colony or other Non-Self-Goveming Territory has, under the Charter, a status separate
7 question of the dismembennent of States: there is no room for an argument that
international law says nothing against secession and must therefore be presumed to
pennit it.
18. That the relevant rules and principles concemmg territorial integrity have
application not only to the relations of States but also to entities which are seeking
to secede from a State is clear from UN and State practice. The history of the
struggle for self-detennination indicates that international law confers rights and
imposes obligations on national liberation movements and non-self-governing
territories.16 The Security Council's .resolutions are replete with references to
obligations on non-state entities. 17 International humanitarian law similarly imposes
18
obligations on entities struggling to secede or take over the govemment. The
application of Security Council resolution 1244 (1999) to the powers of the
Provisional Institutions of Kosovo strengthens this conclusion so far as the present
case is concemed. 19
Contrary to other legal instruments
19. It is not only principles of general international law which are applicable in this
context but also international agreements and other specific instruments. An
instructive case is that of the Republika Srpska. The National Assembly adopted a
resolution on 21 February 2008 claiming the right to organise a referendum on its
and distinct fi-omthe territory of the State administering it; and such separate and distinct status under the Charter shall
exist until the people of the colony or Non-Self-Governing Territory have exercised their right of self-determination in
accordance with the Charter, and particularly its purposes and principles".
I6 As the Supreme Court of Canada stated in the Quebec case [I998] 2 S.C.R. 2I7 at paragraph 1I3: "Wh ile
international law generally regulates the conduct of nation states, it does, in some specific circumstances, also
recognize the "rights" of entities other than nation states - such as the right of a people to self-determination."
17 See for example resolutions in relation to (i) Southern Rhodesia: SC res. 460 (1970) at para 6, 463 (1980) at para 2
and 455 (1979) at para I (ii) the former Yugoslavia: SC res. 942 (1994) at para 3 and 787 (1992) at para 3 (iii) Kosovo:
SC res. 1199 (1998) at para 6 and 1203 (1998) at paras 4 and 10 (iv) Somalia: SC res. 1814 (2008) at para 16 (v)
Sudan: S/PRST/2008/15 (v) Guinea-Bissau: SC res. 1233 (1999) at paras I1and 1216 (1998) at para 5.
18 For example, see the Additional Protocols to the Geneva Conventions of 1949 (I977).
I9 The continued application of the resolution has been repeatedly confirmed both by the Security Council and by the
Secretary-General in his reports to the Council; see paragraph 91 and footnote 83 of the Republic of Cyprus's first
Written Statement to the Court. See also the Report of the Secretary-General dated 10June 2009 (UN doc. S/2009/300,
paras 1,6 and 40).
8 legal status. The response from the High Representative was clear:
"The High Representative stresses that Bosnia and Herzegovina is an
internationally recognized state whose sovereignty and territorial integrity is
guaranteed by the Dayton Peace Agreement. Entities of Bosnia and
Herzegovina have no right to secede from Bosnia and Herzegovina under the
Dayton Peace Agreement. The constitutional structure of Bosnia and
Herzegovina, including the existence of the entities, can only be changed in
accordance with the amendment procedure prescribed in the Constitution of
BiH." 20
20. A further example is that of the purported secession from the Republic of Cyprus of
the "TRNC" when the so-called "Turkish Cypriot authorities" made a declaration
purporting to create an independent state in the northern part of Cyprus under
military occupation by Turkey. In this context, several States cited in their Written
Statements the example of Security Council resolution 541 (1983) of 18 November
1983 concerning Cyprus. That resolution referred to the declaration by the "Turkish
Cypriot authorities", a non-international entity. The declaration was incompatible
with the principle of territorial integrity and with the 1960 Treaty of Guarantee, and
its illegality was affinned by the Security Council. 21
21. These are examples where claims to secess1on by non-state entities have been
recognised as unlawful, because they are contrary to international instruments. This
is also the case with Kosovo, whose attempted secession is contrary to resolution
1244 (1999).
20 Press release dated 22 February 2008: http://www.ohr.int/ohr-dcpt/prcsso/pressrid=4 342t.asp'?contrnt
21 SC res. 541 (1983) statecl that the Council "Deplores the cleclaration of the Turkish Cypriot authorities of the
purportecl secession of part of the Republic ofCyprus".
9 State practice concerning secession
22. Those States which say that declarations of secession generally fall outside the
purview of the law cite State practice in support. But much of the practice cited
relates to events occurring long before the development of modern international law
22
principles. Further, the citation of these episodes does not take into account the
significant body of practice indicating that secession is a matter regulated by
international law, and to which international law is in general opposed. 23 Indeed,
the Security Council frequently affirms the territorial sovereignty of States, 24 and
such statements illustrate the point that States and international organizations do
regard the principle of the territorial integrity of States as precluding the legality of
claims to secession.
23. The Quebec case makes this clear. The Supreme Court of Canada stated that:
" international law places great importance on the territorial integrity of
nation States and, by and large, leaves the creation of a new State to be
determined by the domestic law of the existing State of which the seceding
22 For example, reference is made to the United States Declaration oflndependence of 1776.
23 See for example practice in relation to (i) Georgia: S/PV.6143, 15.6.09; S/PV.5969, 28.8.08; the President of the
United States stated that "the territorial integrity and borders of Georgia must be respected....In accordance with the
United Nations Security Council Resolutions that remain in force, Abkhazia and South Ossetia are within the
internationally recognised borders of Georgia, and they must remain so" (White House News Release, 26 August
2008); the UK "recognises the sovereignty and territorial integrity of Georgia to include South Ossetia and Abkhazia.
We do not recognise the claims to independence of the separatist movements in these regions" ((2006) 77 BYIL,
UKMIL 2006) (ii) Somalia: "We (UK) do not recognise Somaliland as an independent state, neither does the rest of the
international community. The UK has signed up to a common position and to many UN Security Council Presidential
Statements, which refer to the territorial integrity and unity of Somalia" ((2006) 77 BYIL, UKMIL 2006) (iii) Iraq:
"the way in which we (UK) are dealing with those secessionist tendencies. Like every previous relevant Security
Council resolution, resolution 1546 reaffirms the territorial integrity of Iraq - its existing borders......International
borders, however, cannot be rewritten by any political party of any one country, and they will not be in this case. The
future of Iraq's constitution must lie within the existing international borders" ((2005) 76 BYIL, UKMIL 2005) (iv)
Chechnya: see (2006) 77 BYIL, UKMIL 2006 (HC Deb I November 2006 Vol 451 c466 W-467W) and Strobe
Talbott, Supporting Democracy and Economie Reform in the New lndependent States, 6 U.S. Dept. of State Dispatch
119, 120 (1995) (reporting remarks by Deputy Secretary of State Talbott before Subcommittee on Foreign Operations
of the Senate Appropriations Committee).
24 See for example (i) Georgia and Abkhazia: SC res. 896 (1994) at para 5, 1065 (1996) at para 3, 971 (1995) at para
4, 1716 (2006) at para 1, 1808 (2008) at para 1 (ii) Bosnia-Herzegovina: SC res. 787 (1992) at para 3 (iii) Afghanistan:
SC res. 1076 (1996) at para 3 (iv) Somalia: S/PRST/2006/11 (this resolution refers to S/2006/122 which addresses
Somaliland) (v) Cyprus: SC res. 353 (1974) at para 1, 774 (1992) at para 2, 1179 (1998), 1217 (1998) and 1251
(1999).
10 entity presently fonns a part. (R. Y. Jennings, TheAcquisition of Territory in
International Law (1963), at pp. 8-9). Where, as here, unilateral secession
would be incompatible with the domestic constitution, international law is
likely to accept that conclusion, subject to the right of peoples to self
detennination. " 25
26
As was discussed in Cyprus' earlier submission, there is no room for a claim to
self-detennination in the situation of Kosovo, and Cyprus notes that few
submissions before the Court claim that there is. Kosovo therefore falls within the
general rule referred to above, whereby any change in territory is determined by the
domestic law of the existing State.
Occasional silence in theface of secession does not alter theposition
24. The Republic of Cyprus does not dispute that the international community will
sometimes have nothing to say about a claim to secession by part of the territory of
a State. Such claims may, at least initially, be the actions of individuals and other
non-State actors; and it is for the territorial State to respond to them, taking
whatever action is necessary to assert its authority in the areas claimed by the
secessionists. 27 It is not surprising that States are often silent in the face of such
attempts at secession within neighbouring States. But it cannot be inferred from
such silence that secession is regarded as being a matter entirely beyond the reach
of international law or consistent with it.
25 Paragraph 112.
26 Paragraphs 123-148.
27 Cyprus observes that ordinarily, the local State is not precluded from using force to exercise its authority over
secessionists in the contested area (subject only to the law of human rights and international humanitarian law about
the manner in which it does so), and it is appropriate for other States not to interfere in the matter. In the case of
Kosovo, however, the situation was very different. Serbia was precluded from using the full powers of the State to
respond to the declaration, both by the terms of Security Council resolution 1244 (1999) and by agreements which
Serbia had made with the UN. The Government of Serbia nonetheless made it clear in February 2008 lhat it would use
whalever measures remained lawfully available toit to preserve ils tille over Kosovo and it has done so.
11 25. In the submissions of some States, there are suggestions that it is significant that
there was no resolution by the Security Council or the Special Representative of the
Secretary-General declaring Kosovo's declaration unlawful. There are of course
examples where the Council failed to react to assertions of independence which
were widely condemned. 28 But failure by the Council to react to the Kosovo
declaration is not relevant to the fact that ail such claims must be assessed by
reference to international law; and the inaction of the Council cannot in any event
change the legal position of States or the rules of international law.
Conclusion regarding applicability of international law to acts ofpurported secession
26. The Republic of Cyprus accordingly submits that international law is applicable to
acts of purported secession, and that the legal effectiveness of such acts is
detennined by their consistency with rules of international law. lt cannot be the
case, as has been suggested by some States in their submissions, that the dicta
referred to as 'the Lotus principle' (the 'presumption of freedom') are applicable
here. These dicta cannot have relevance to an entity whose powers are limited by
international instruments and which only has such powers as are conferred upon
29
it. Even if the so-called Lotus principle were applicable it would not assist the
argument in favour of the declaration because, as was explained above, there is a
legal prohibition on secession which is implicit in one of the most fundamental
principles of international law, the principle of territorial integrity, and explicit in
resolution 1244 (1999).
28 For example, Biafra unsuccessfully attempted to secede from Nigeria. The UN did not address the atternpted
secession and it was dealt with on a regional level by the Organisation of African Unity. However, the then UN
Secretary-General did state that "so, as far as the question of secession of a particular section of a Member State is
concerned, the United Nations' attitude is unequivocable [sic]. As an international organisation, the United Nations has
never accepted and does not accept and I do not believe it will ever accept the principle of secession of a part of its
Member State" ((1970) 7:2 UN Monthly Chronicle 34 at 36).
29 The Supreme Court of Canada stated in the Quebec case [1998] 2 S.C.R. 217 at paragraph 143 that "The notion that
what is not explicitly prohibited is implicitly permitted has little relevance where (as here) international law refers the
legality of secession to the domestic law of the seceding state and the law of that state holds unilateral secession to be
unconstitutional".
12 27. It may also be noted that States which have made submissions to the Court arguing
that the Kosovo situation is sui generis (arguments with which the Republic of
Cyprus disagrees for the reasons given below) indicate thereby that they recognise
that international law governs the situation and that they must justify some
exception to the principle of territorial integrity. There are indeed exceptions to the
principle (such as the principle of self-determination) but none of these apply to the
case of Kosovo.
IV. 'Sui generis'
28. Numerous States have submitted that the claimed independence of Kosovo is 'sui
generis' and is accordingly a special case. Of course, in a political sense Kosovo is
a special case, because it is subject to a UN administration. But all cases have their
own particular facts. 30 The logic of the argument that the Court must consider
Kosovo to be a sui generis case is that the general rules of international law do not
apply to Kosovo. This argument does not purport to apply the rules of international
law to special facts; on the contrary, it attempts to exempt the situation of Kosovo
from the rules.
29. It is inconsistent to assert, first, that the present case is not regulated by
international law and then in the same breath to rely on an argument that seeks to
establish an exception to an otherwise applicable rule of international law. Since
international law does indeed govern the situation, the attempts to classify Kosovo
as a special case falling outside the law must also be assessed by reference to the
law. In rejecting the notion that Kosovo can be labelled 'sui generis' in the sense of
excepting it from the ordinary mies of law, the Republic of Cyprus reiterates two
points made in its first Written Statement. 31
30 For example, the Conclusion of the Council of the European Union of 18 February 2008 that Kosovo constituted a
sui genericase was a political assessment not a legal statement which, in any event, expressly reaffirmed the EU's
adherence to principles of sovereignty and territorial integrity, and the right of each State to decide in accordance with
its national policies and international law what relations it would have with Kosovo.
31 See the Republic of Cyprus's first Written Statement: paragraphs 75 to 81.
13 The law cannot be waived
30. First, the generality and binding quality of the rules regulating the basic substance
of international law are absolutely fundamental. To allow for 'special cases' results
in an unacceptable dilution of the quality of legality of the international legal
system of sovereign States, a system which protects certain essential and universally
recognised rights. There can be no right to waive the obligation to conform to the
principles of international law on an issue so central to the rule of law and the
international system.
31. Those States which submit that, in the interests of international stability, the
independence of Kosovo must be treated as sui generis may well be basing their
views on political factors. Such political interests cannot, and should not,
undermine the application of general and binding fundamental rules of international
law. Indeed, it is through adherence to key principles, such as territorial integrity,
that the stability of international relations is ensured. To allow the application of
fundamental rules of international law to be a matter for political discretion would
be contrary to the requirements of certainty and clarity which are central to the mie
oflaw.
32. The sui generis exception would, in effect, pennit States to base decisions on
whether or not a new State has emerged from a purported secession upon wholly
political factors. The appropriate place for political decisions, however, is in
connection with recognition once the criteria for Statehood have been met; and such
recognition is declaratory, not constitutive, of Statehood.
Theprecedential effect of the Kosovo episode cannot be avoided
33. Second, it is not possible for international law to provide for the labelling of
decisions or situations so as to limit their precedential effect. The international legal
14 system does not have anything akin to a common law notion of judicial precedent
and it is always open to a State to identify one situation with another.If some States
declare a case 'sui generis', that cannot obviate, or even circumscribe, the danger
that other entities will rely on that case to support a claim for Statehood.
Unsustainahility of the sui generis argument
34. In addition, the Written Statements before the Court serve only to demonstrate the
complete unsustainability of the sui generis argument in practice, for the following
reasons.
35. First, there is no consistency regarding which factors, or which combination of
factors, are necessary for Kosovo's characterisation as sui generis. Sorne States rely
on a long list of factors, while other States reduce the distinguishing factors to just
three or four points. There are factors that appear on some lists which are omitted
from others: for example, the significance of the text of the declaration. These
inconsistencies demonstrate the subjective nature of the alleged test. Such an ad hoc
characterisation of a case as sui generis is wholly at odds with the requirements of
clarity and predictability that are central to the Rule of Law.
36. Second, many of the factors identified are inconclusive. For example, at what point
are negotiations 'exhausted' and at what stage is independence the 'only
alternative'? And who or what body is to make this determination? These factors
are not of a kind that can be incorporated in any legal system which values the Rule
of Law. On the contrary, their application can lead only to divergence and
inconsistency in approach.
37. Third, to pennit a sui generis 'exception' based on the various factors identified
would have potentially disastrous consequences on the international plane. For
example, the alleged criterion that 'negotiations are exhausted' would undennine
15 incentives to continue with good faith discussions despite an initial Jack of success
and offer the ultimate reward for obstinacy. Similarly, to rely on prior human rights
abuses as a factor would radically alter the entire architecture of international law
which, while imposing State responsibility for such conduct and providing national
and regional mechanisms for the enforcement of human rights norms, does not
32
provide a sanction of territorial dismemberment. In addition, much reliance is
placed in the Written Statements on the involvement of the UN in Kosovo.
Identification of a UN presence as a relevant factor could discourage States from
consenting to such arrangements, fearful that it would trigger a slide towards the
severance or secession of part of its territory.
38. The Republic of Cyprus submits that the Court should be very wary of relying on
such factors as these to justify any kind of an exception to the general principles of
international law. There are other situations around the world in which some or all
of these factors might be said to exist. The consequences which would flow, alrnost
inevitably, from the advice that the Court may give cannot be wholly ignored, and
weigh in favour of the exercise of considerable caution.
39. In short, there is no possibility of departing from the rules of international law by
relying on an argument that there is a special case without calling in question
fundamental principles of the rule of law. As a distinguished commentator has
noted: 'The term 'sui generis', often used to describe situations not readily
categorized, tends to pre-empt analysis; it is used to end discussion, not to advance
it.'33
40. Cyprus notes that many States that rely on a sui generis argument also expressly
accept that the argument cannot lead to a State being created as a result of a
violation of a fundamental nonn of international law, such as the prohibition on the
would bear State responsibility; but the remedy for any such breach is not the splitting up of the State." Serbia
33 James Crawford, The Creation of'Stares in International Law (2nd ed, 2006) p.l97, n.3.
16 use of force. The Republic of Cyprus is in full agreement with that position.
V. International Jawgoverns questions of Statehood
41. Sorne States have asserted that because of the factual situation of Kosovo following
the declaration, as well as recognition by a number of States (and the membership
of Kosovo in international organisations), the Court should accept that it is
irrelevant whether or not the declaration was unlawful at the time it was made. The
Republic of Cyprus recalls its earlier submissions that the process of acquiring
Statehood is more than a factual question and that the criteria for Statehood are not
solely of a factual nature but also depend upon international law. 35 International law
is not indifferent to the way in which any facts have been created.
42. For example, if the facts relating to the assertions of Statehood have been
established because of third-party intervention, most particularly by the use of
force, then no State may be lawfully founded, and no title to territory lawfully
changed. This proposition has indeed been accepted even by States which argue that
international law is irrelevant to the Kosovo declaration.
43. A further example arises where the claimant entity threatens to act incompatibly
with fundamental rules of international law. The unilateral attempt to seize
independence by the authorities in Southern Rhodesia in 1965 was condemned by
the Security Council as "the usurpation of power by a racist settler minority in
Southern Rhodesia"; and the Council regarded the declaration of independence "as
having no legal effect". 36
44. It is important to underline the fact that the invalidity of claims to independence of
this sort derives from the general rules of international law and the principles of
34 For example, see the Written Statement of UK (paras 5.34-35, 5.48), France (para 2.13), Germany (p 30) and
Ireland (paras 22 and 23). These Written Statements expressly refer to the example of the 'TRNC".
35 See paragraphs 184 to 191 of the Republic ofCyprus's first Written Statement.
17 territorial integrity and the non-use of force and non-intervention. It does not derive
from the tenns of any Security Council resolution. The State which is the abject of
the use of force has the legal right not to have its title to any part of its territory
affected as a result of the use of force, whatever the reaction of the Security
Council. Although in some circumstances the Security Council has responded to
situations of this kind by adopting resolutions which address the legality of
37
declarations of Statehood, in the final analysis it is not for the Council to decide
what will be regarded as unlawfulness and what legal consequences to ascribe to it:
that is a matter for international law and, as appropriate, for the Court.
VI. Conclusion
45. The Republic of Cyprus is aware of both the importance and of the diversity of the
political interests of States in the handling of the Kosovo situation. Sorne may judge
that acceptance of Kosovo as a State will create stability in the region: others may
take the very opposite view, and regard it as a trigger for instability in many areas of
the world. These are the circumstances that make it, in the view of the Republic of
Cyprus, essential that the Court hold to its particular role within the UN structure
and give an authoritative /egal ruling, setting out plainly the rules of international
law which are in principle applicable to all States and unifonnly apply in all
relevant situations. Jt is that unifonnity of applicability which enables the law to
protect the interests of strong and weak alike. Political leaders and institutions may
agree upon practical compromises: but it is essential that the law retains its integrity
and objectivity.
36 SC res. 217 (1965).
37 For example, see (i) its reaction to the invasion of Kuwait by Iraq and the attempted incorporation of Kuwait's
territory into Iraq. The Council decided that the annexation "has no legal validity and is null and void" (SC res. 662
(1990) 9 August 1990) and (ii) its response to the 'TRNC". SC res. 541 (1983) stated that the Council "Deplores the
declaration of the Turkish Cypriot authorities of the purported secession of part of the Republic of Cyprus". SC res.
550 (1984) stated the Council "Condemns ail secessionist actions ... declares them illegal and invalid and calls for their
immediate withdrawal...Reiterates the call upon ail States not to recognise the purported state of the "Turkish Republic
of Northern Cyprus" set up by secessionist acts and calls upon them not to facilitate or in any way assist the aforesaid
secessionist entity".
18 Petros Clerides
(-L/l
'Attorney-General of the Republic of Cyprus
Agent of the Government of the Republic of Cyprus
19
Written Comments of Cyprus