Islamic Republic of Iran
Written Statement of
The Islamic Republic of Iran
In thease concerning
Accordance with International Law of the
Unilateral Declaration of Independence by the
Provisional Institutions of Self-Government of Kosovo
before
The International Court of Justice
17 April 2009 In the name of God
Introduction
At the outset, the Islamic Republic of Iran would like to reaffirm its
strong commitment to and high respect for the principles of pacific
settlement of disputes and the rule of law at the international level as
embodied in the United Nations Charter.
Government of the Islamic Republic of Iran is pleased to submit to
the International Court of Justice (I.C.J.) its written observations with
regard to the case concerning "Accordance with International Law of
the Unilateral Declaration of Independence by the Provisional
Institutions of Self-Government of Kosovo", according to Article 66 of
the Court Statute and Article 104 of the Rules of the Court. This
statement is provided in reply to the Court’thOrder dated 17 October 2009
and the letter of the Court’s Registrar of 10 October 2009 in which the
UN Member States are permitted to furnish information on all aspects
related to the mentioned case.
This written statement will briefly deal with the question of
jurisdiction of the Court to entertain the present case and it will generally
comment on certain legal issues related to the question of the United
Nations General Assembly as specified in Resolution A/RES/63/3 dated 8
October 2008), namely:
"Is the unilateral declaration of independence by the Provisional
Institution of Self-Government of Kosovo in accordance with
international law?"
1. The ICJ has jurisdiction to render an advisory opinion as
requested by the GA of the U.N.
1.1. As to the validity of any requests for the advisory opinion of
the Court, reference shall be made to Article 96 of the Charter of the
United Nations which permits the General Assembly, the Security
Council and other organs of the United Nations or authorized specialized
agencies to request the Court to render an advisory opinion on any legal
1question. The Islamic Republic of Iran is of the view that the General
Assembly was duly authorized to request the present advisory opinion
and the relevant resolution has been adopted according to the rules of
procedure of the Assembly.
1.2. The consideration of the issues related to Kosovo before other
organs of the United Nations, in particular the Security Council, is not a
legal impediment for the General Assembly to request an advisory
opinion. Although in accordance with Article 24 of the United Nations
Charter “the primary responsibility” for the maintenance of international
peace and security has been conferred on the Security Council, but the
General Assembly has a clear role in this regard in accordance with the
United Nations Charter too. As the practice of the United Nations shows , 2
the Security Council and the General Assembly according to Article 12 of
the Charter, could deal in parallel with the same matter concerning the
maintenance of international peace and security.
1.3. The request of the General Assembly seeking the Court’s
opinion on the legality of the Unilateral Declaration of Independence by
the Provisional Institutions of Self-Government of Kosovo needs the
Court to consider the relevant rules and principles of international law, in
particular the relevant customary rules. In this respect, the Court shall
consider the state practices and practice of the Security Council and
General Assembly on relevant questions. Therefore, the question has
been "framed in terms of law and raises problems of international law"
3
and is "susceptible of a reply based on law". The issues that shall be
considered by the Court could be qualified as "legal" in the meaning
intended in Article 96 of the United Nations.
1.4. The political aspects of the question or political purposes of
the Drafters of the Resolution are not legitimate grounds for the Court to
decline to exercise its advisory jurisdiction in the present case. It is true
that the4Court possesses a judicial discretion in giving any advisory
opinion , but it could not apply such discretion in an arbitrary manner.
According to the established practice of the Court, only “compelling
reasons” might be considered as reasonable ground to decline to respond
to a request for an advisory opinion. The Islamic Republic of Iran is of
the view that no such ground is available in the present case.
1
2- A/RES/63/3, 8 October 2008.
- Legal Consequences of the Construction of a Wall in the Occupied Palestinian
3erritory, I.C.J. Reports 2004, pp. 149-150.
- I.C.J. Reports 1975, p. 18.
4- Paragraph 1, Article 65 of the Statute of the Court.
2 1.5. In light of what is stated above, the Islamic Republic of Iran
requests the Court to conclude that it has the competence to deliver its
opinion on the question posed by the General Assembly. The Court
through rendering its opinion will definitely contribute to the
maintenance of international peace and security and strengthen the rule of
law at the international level.
2. The principle of Territorial Integrity is recognized as a
peremptory norm (Jus Cogens) in International Law
2.1 International Law places great importance on the “territorial
integrity” of nation-states. Principle of territorial integrity shall be treated
as a "norm accepted and recognized by the international community of
States as a whole as a norm from which no derogation is permitted." The 5
principle of territorial integrity can be described as the cornerstone of the
United Nations Charter, and the main goal and raison d’être of the
concept of collective security enshrined in the Charter. The highly
respected nature and status of this principle in internatio6al law indicates
that no derogation from this principle is acceptable.
2.2. This principle has been repeatedly confirmed by international
instruments and decisions of international bodies both at international and
regional levels. There can be found numerous referrals to this principle in
7 8
many international and regional instruments and documents.
5
- Vienna Convention on the Law of Treaties 1969, Article 53, done at Vienna on 23
May 1969, entered into force on 27 January 1980, United Nations, Treaty Series, vol.
1155, p. 331.
6- Paragraph 2, Article 41 of the International Law Report (ILC) draft articles on
Responsibility of States for International Wrongful Acts stipulates that "no State shall
recognize as lawful a situation created by serious breach [of an obligation arising
under a peremptory norm of general international law] … , nor render aid or
assistance in maintaining that situation."
Report of the International Law Commission, 2001, A/56/10, p. at 286.
7- See: UN Charter, Article 2, paragraph 4; Declaration on Principles of International
Law concerning Friendly Relations and cooperation among states in accordance with
United Nations Charter, Annex to the General Assembly Resolution 2625, 24 th
October 1970; UN Millennium Declaration, General Assembly Resolution 55/2, 18
September 2000; the Declaration on the Occasion of the Fiftieth Anniversary of the
United Nations, General Assembly Resolution 50/6, 9 November 1995; resolution
on “Maintenance of International Security - Prevention of the Violent disintegration
of states, General Assembly Resolution 53/71, 4 December 1998; Vienna declaration
and Program of Action, Adopted by consensus by the representatives of 171 states at
the end of the World Conference on Human Rights, Vienna, 14-25 June 1993;
33. The Principle of Territorial Integrity also applies within states
3.1. The Islamic Republic of Iran believes that the principle of
territorial integrity prevails both between and within states. It might
falsely be argued that the principle of territorial integrity applies solely
between states in their relations, i.e. only states are obliged to respect
territorial integrity of the other states and not to encroach on the territory
of their neighbors and other states. In other words, the principle of
territorial integrity does not apply within states and therefore secession
does not violate the principle of territorial integrity and secessionist
activities have nothing to do with the aforesaid principle.
3.2. In many international legal instruments, one can find
examples of the strong belief of the international society in the
principle of territorial integrity, even during a non-international armed
conflict and in relation between the government and the rebellion.
Some exemplary instances of this approach can be found in the practice
of international organizations. For instance, the Security Council
practice shows the great degree of importance that this council attaches
to the principle of territorial integrity of states even in time of non-
international armed conflicts. 9
8
- See: Declaration on Principles Guiding Relations Between Participating States,
Final Act of the Conference on Security and Co-operation in Europe, Helsinki, 30
July to 1 August 1975 under the auspices of the Organization for Security and Co-
operation in Europe, Principle IV; Charter of Paris for a New Europe, 21 November
1990, section Friendly Relations among Participating States (with the participation of
the U.S. and Soviet Union).
9
- See for example Resolution 688 dated 5 April 1991 about Iraq. The Security
Council in this resolution while the Security Council “Gravely concerned by the
repression of the Iraqi civilian population in many parts of Iraq, including most
recently in Kurdish populated areas, which led to a massive flow of refugees towards
and across international frontiers and to cross-border incursions, which threaten
international peace and security in the region, Deeply disturbed by the magnitude of
the human suffering involved…”, it Reaffirmed “the commitment of all Member
States to the sovereignty, territorial integrity and political independence of Iraq and
of all States in the area”. The same position taken in the Security Council Resolution
dated 1287 dated 31 January 2000 about Georgia. The Council in the resolution
reiterated “its call for the parties to the conflict to deepen their commitment to the
United Nations-led peace process, continue to expand their dialogue, and display
without delay the necessary will to achieve substantial results on the key issues of the
negotiations, in particular on the distribution of constitutional competences between
Tbilisi and Sukhumi as part of a comprehensive settlement, with full respect for the
sovereignty and territorial integrity of Georgia within its internationally recognized
borders;”. See also Security Council Resolution 794 dated 3 December 1992 about
4 3.3. The General Assembly has taken the same approach wi10
respect to the principle of territorial integrity as well. For instance in
the case concerning Comorian Island of Mayotte, although there was a
non-international armed conflict going on within Comoros aiming at
separation of the island of Mayotte, and a referendum was held in
Mayotte the result of which was the will of the majority of inhabitants
of the island not to join the newly independent state of Comoros, the
General Assembly of the United Nations in many resolutions for nearly
two decades affirmed the unity and territorial integrity of the Comoros,
and the sovereignty of the Islamic Federal Republic of Comoros over
the Mayotte island.
3.4. Even the Rome Statute of the International Criminal Court,
which is the first international instrument qualifying serious violation of
humanitarian law during non-international armed conflicts as war
crimes, upholds that the principle of territorial integrity of states can be
invoked against subversion during a non-international armed conflict.
The Statute of the Court, in concluding the definition of war crimes
affirms that “Nothing in paragraphs 2 (c) and (d) shall affect the
responsibility of a Government to maintain or re-establish law and order
in the State or to defend the unity and territorial integrity of the State, by
all legitimate means.” 11 The reason behind the inclusion of this
safeguard clause was to prevent any misperception that the fight against
impunity might undermine the principle of territorial integrity of the
states facing internal crises.
3.5. Furthermore, in all regional arrangements, the issue of
territorial integrity has been of paramount importance for the
participating countries. There are many examples of this approach taken
Somalia; Security Council Resolution 1484 dated 30 May 2003; and Resolution 1501
dated 26 August 2003 about Democratic Republic of Congo.
10- See for example these resolutions about the Comorian Island of Mayotte: 3161 of
December 14 1973, 3291 of December 13 1974, 31/4 of October 21 1976, 32/7 of
st th th
November 1 1977, 34/69 of December 6 1rd9, 35/43 of November 28 st980,
36/105 of December 1981, 37/65 of December 3 1982, 38/13 of November 21 1983,
39/48 of December 11 1984, 40/62 of December 9 1985, 41/30 of October 26 th
1988, 44/9 of October 1989, 45/11 of November 1990, 46/9 of October 1991, and 47/9
of October 28 1992.
11
- Rome Statute of the International Criminal Court, Article 8, Paragraph 3.
5 12
by regional forums and organizations in the constitutive instruments.
Practice of European countries regarding the dissolution of the former
Yugoslavia is another example of the importance of the principle of
territorial integrity in time of non-international armed conflicts. Members
of the European Communities in their Statement of Principles in London
Conference regarding the conflict in Bosnia – Herzegovina stated that “a
Political settlement in Bosnia Herzegovina must include respect for the
integrity of present frontiers unless changes by mutual agreement.” 13
3.6. Additionally, after the Proclamation of Independence of
Republika Srpska by Serb minority living in Bosnia-Herzegovina, the
EC’s Arbitration Commission (Badinter Commission) on 11 January th
1992 in its Opinion No. 2 specifically addressed the right to self-
determination of the Serbs within Bosnia Herzegovina. In response to the
question that “Does the Serbian population in Croatia and Bosnia and
Herzegovina, as one of the constituent peoples of Yugoslavia, have the
right to self-determination?” The Commission concluded that “the
Serbian population in Bosnia and Herzegovina and Croatia is entitled to
all the rights concerned to minorities and ethnic groups...” and “that the
Republics must afford the members of those minorities and ethnic groups
all the human rights and fundamental freedoms recognized in
international law, including, where appropriate, the right to choose their
nationality.” The Commission considers them as a minority and denied
that they had any right to form an independent state and secede from
Bosnia-Herzegovina (external self-determination was denied). On the
other hand, it affirmed that the Serbs had the right of self-determination at
the internal level (enjoying full rights granted to minorities by
international law).
4. Inviolability of the principle of Territorial Integrity even in case of
serious violations of Human Rights and Humanitarian Law
4.1. Even a large scale and systematic violation of international
humanitarian law and human rights law in some parts of the territory of
the state concerned, does not create a right of unilateral secession for the
victims. It might be argued that the safeguard clause to the Declaration on
Principles of International Law concerning Friendly Relations and
cooperation among states in accordance with United Nations Charter
12
- Cf: Constitutive Act of the African Union, Article 3 (b); Constitutive Act of the
African Union, Article 4 (h); Constitutive Act of the African Union, Article 4 (b); the
Pact of the Arab League of states (Arab League).
13- Statement of Principles, London Conference regarding the conflict in Bosnia –
Herzegovina, 28 August 1992, point VIII.
6(1970) restricts the principle of territorial integrity of states to observance
of certain criteria:
“…states conducting themselves in compliance with the principle
of equal rights and self-determination of peoples as described
above and thus possessed of a government representing the whole
people belonging to the territory without distinction as to race,
creed or colour.”
Some might argue that the above mentioned phrase authorizes a
minority which is subject to large-scale violation of human rights and
humanitarian law to exercise the right to self-determination and secede.
But we believe that even in that case, the principle of territorial integrity
must be respected, and has been respected in all similar occasions. In
other words, the right to self-determination for minorities is an internal
one and means their entitlement to democracy and human rights and does
not involve any right to secession. This means that the right of self-
determination is not a principle of exclusion or separation but a principle
of inclusion.
4.2. In this regard, some explicit examples of the practice of the
international community towards the situations in which, during a non-
international armed conflict, the magnitude of the violations of human
rights and humanitarian law was a real concern can be observed. In all
these examples, the international community though strongly condemned
the violations and endeavored to stop them, never gave up the principle of
14
territorial integrity.
14- See for example the state practice with respect to the Chechnya declaration of
independence on 2 November 1991. The Security Council also has repeatedly
reaffirmed “its commitment to the sovereignty, unity, independence and territorial
integrity of Sudan…thin the case of Darfur. See the Security Council Resolutions
1841 of October 15 2008; 1828 of 31 July 2008; 1779 of 28 September 2007; 1769
of 31 July 2007; 1713 of 29 September 2006; 1672 of 25 April 2006; 1665 of 29
March 2006; 1651 of 21 December 2005; 1591 of 29 March 2005; 1574 of 19
November 2004; 1564 of 18 September 2004; 1556 of 30 July 2004 and 1547 of 11
June 2004. The practice of the United Nations in case of the non-international armed
conflict in Kosovo itself is another good proof to show that not only the principle of
territorial integrity extends beyond the relations between states and includes situations
of secessionism, but also even grave violations of human rights cannot cause any flaw
in the application of the principle of territorial integrity. See the Security Council
resolutions 1203 of 24 October 1998; 1239 of May 14 1999 and 1244 of 10 June th
1999. The same attitude has been followed by the Council in other resolutions on the
non-international armed conflict between the Yugoslavia/Serbia government and the
st
Kordvo Liberation Army, such as resolution 1160 of 31 March 1998 and 1199 of
23 September 1998.
75. Territorial Integrity and a clear difference between “minorities’
rights” and “right to secession”:
5.1. Sometimes it is argued that common article 1 of the human
rights covenants which states that “all peoples have the right of self-
determination. By virtue of that right they freely determine their political
status and freely pursue their economic, social and cultural development”
paves the way for the minorities to secede. In this regard, there needs to
be a clear understanding of the difference between right to self-
determination, minorities’ rights and secession. In international law and
international practice, all states are under the obligation to observe and
respect all rights of the minorities as affirmed in ar15cle 27 of the
International Covenant on Civil and Political Rights , but this obligation
in no way contradicts the principle of territorial integrity.
5.2. As stated in various instruments and declarations of competent
international authorities, there is no right to unilateral secession by
minorities recognized by international law. As quoted before, the EC
Arbitration Commission in its opinion on the question on Serb minorities
of Croatia and Bosnia Herzegovina, (Republika Srpska) denying anyright
to secession for them, affirmed their rights as a minority. The
Commission stated that:
"the Republics must afford the members of those minorities and
ethnic groups all the human rights and fundamental freedoms
recognized in international law, including, where appropriate, the
right to choose their nationality."
The same line has been followed in the United Nations Agenda for
Peace:
“…if every ethnic, religious or linguistic group claimed statehood,
there would be no limit to fragmentation, and peace, security and
economic well-being for all would become ever more difficult to
achieve.”
And
1- Article 27: “In those States in which ethnic, religious or linguistic minorities exist,
persons belonging to such minorities shall not be denied the right, in community with
the other members of their group, to enjoy their own culture, to profess and practice
their own religion, or to use their own language.”
8 “One requirement for solutions to these problems lies in
commitment to human rights with a special sensitivity to those of
minorities, whether ethnic, religious, social or linguistic.” 16
5.3. To guarantee the minorities rights doesn’t imply a right to
secede and the distinction between minority rights and the right of
peoples to self-determination should be kept in mind, the latter does not
apply to the groups and minorities within states. In this regard, reference
has to be made to general comment n. 23 of Human Rights Committee in
which the Committee states that:
“…In some communications submitted to the Committee under the
Optional Protocol, the right protected under article 27 has been
confused with the right of peoples to self-determination proclaimed
in article 1 of the Covenant…
…the Covenant draws a distinction between the right to self-
determination and the rights protected under article 27…
… The enjoyment of the rights to which article 27 relates does not
prejudice the sovereignty and territorial integrity of a State
17
party.”
5.4. The same pattern was followed by the United Nations Security
Council when dealing with the situation of ethnic Albanian minorities in
Kosovo. The solution envisaged by Resolution 1244 regarding the
situation in Kosovo though providing for a substantial self-government
for Kosovo, takes full account of the principle of sovereignty and
territorial integrity of Serbia.
16- Paragraph 17 Agenda for Peace – 30 June 1992, An Agenda for Peace, Preventive
diplomacy, peacemaking and peace-keeping, Report of the Secretary-General
pursuant to the statement adopted by the Summit Meeting of the Security Council on
31 January 1992. See also: International Law as a Langue for International Relations,
United Nations Proceedings of the United Nations Congress on Public International
Law, New York, 13-17 March 1995, p. 596.
17
- General Comment No. 23: The rights of minorities, Art. 27, 08/04/94,
CCPR/C/21/Rev.1/Add.5, General Comment No. 23. (General Comments)
9Conclusion
Principle of territorial integrity has a great position in international
law. The practice of states and international organizations indicates that
no derogation is permitted from this principle. States practice since 1945
shows very clearly the opposition of states to recognition or accepting
unilateral secession outside the colonial context. In fact, the only
exceptions in this general rule are either dissolution of a federation or
consensual secession, i.e. with the consent of mother-state.
One of the former Secretary Generals of the United Nations, in his
declaration of 9 January 1970 articulates the same:
“…as an international organization the U.N. has never accepted
and does not believe that it will ever acce18 the principle of
secession of a part of its member states.”
Finally, the Islamic Republic of Iran would like to stress that the
International Court of Justice, as the principal judicial organ of the United
Nations, has the duty to guarantee the integrity of the United Nations
Charter, Article 2 paragraph 4 of which considers the principle of
territorial integrity as one of the main objects and purposes of the UN
Charter.
The case-law of the International Court of Justice manifests that
the Court, through its comprehensive legal attitude towards the cases, has
always played an important role in maintaining international peace and
security. This was the main reason the Islamic Republic of Iran voted in
favor of the General Assembly’s resolution requesting an advisory
opinion from the Court.
The response by the International Court of Justice in this case to
the question raised by the General Assembly should not send a wrong
signal. To neglect the principle of territorial integrity of states by the
Court might rather encourage some separatist groups to act violently so to
provoke the government authorities to respond violently in return in order
to cause and then take advantage of a situation of humanitarian law
violations. This vicious circle of violence will not only endanger the
territorial integrity of states, but also will threaten the international peace
and security.
18- U Thant, Interview on 9 January 1970, UN Monthly Chronicle, Feb 1970
10 At the end, the famous remarks by the then Secretary General of
the United Nations in closing session of the United Nations Congress on
International Law seems to be of relevance today:
“…On peut respecter les minorités, comprendre les
particularités, accepter la diversité sans céder pour autant a
l’émiettement et au fractionnisme. Ce serait la une
interprétation fort perverse du droit des peuples a disposer
d’eux mêmes qui de considérer que chaque entité sociale ou
ethnique qui s’estime différente de son voisin pour des
raisons souvent ambiguës et parfois condamnables19eut
accéder a la reconnaissance internationale.”
19 th
- Boutros Boutros Ghali, March 13 1995, United Nations Headquarters, New York.
11
Written Statement of the Islamic Republic of Iran