ê
Embassyof the
ArgentineRepublic
Nro. 015/2009
The Hague, A17,2009
DeaMr.Registrar:
I have the honour to refer to your133310of Octob20, 2008,
regarding the request for an advisory opinion submitted to the International
Court of Justice by the General Assembly of the United Nations on the question
of the "Accordancewith InterLawiof the UnilateralDeclaration of
IndependencebytheProvisionalInstitutionsofSeltfKosovo".eno
In this regard and on behalf of the Government of the Argentine Republic I
hereby submit a written statement on the above mentioned question. Following
your recommendation, please find attached t(30)bound paperhirty
copies of the statement and one (1) CD-ROM containing its electronic version.
I avail myself of the opportunity to renew to you the assurances of my highest
consideration.
Santos GofliMarenco
Ambassador
Mr.Philippe COUVREUR
Registrar of the International Court of Justice
The Hague INTERNATIONAL COURT OF JUSTICE
ACCORDANCE WITH INTERNATIONAL LAW OF
THE UNILATERAL DECLARATION OF INDEPENDENCE BY
THE PROVISIONAL INSTITUTIONS OF SELF-GOVERNMENT
OF KOSOVO
REQUEST FOR AN ADVISORY OPINION
WRITTEN STATEMENT OF THE
ARGENTINE REPUBLIC
17 April 2009 3
TABLE OF CONTENTS
Introduction 5
Section I: Jurisdiction of the Court and the Propriety of Its Exercise 10
A. The Court has jurisdiction to give the advisory opinion requested 10
(1) The General Assembly has competence to request the advisory opinion 10
(2) By definition, the question raised is a legal one 12
B. There Are Not Compelling Reasons Preventing the Court to Exercise Its
Jurisdiction 13
(l)The matter has been of UN concern for a long time and the UN bears a special
responsibility thereto 14
(2) The Court's advisory opinion will have concrete consequences for the future
action of the UN and other international organisations, as well as UN member
States 15
(3) The directly interested State has given its consent 18
Section II: Principles and Rules Relevant to the Question Raised by General
Assembly Resolution 63/3 19
A. The critical date: 17 February 2008 20
(1) The unilateral declaration of independence must be analysed at the time
it was issued 21
(2) Events that occurred subsequent to the unilateral declaration of
independence have not modified the situation 22
B. The unilateral declaration of independence 24
C. The powers of the Provisional Institutions of Self-Government of
Kosovo do not include the declaration of independence of the territory 26
D. The framework established by SC Resolution 1244 (1999) 27
E. The principle of respect for the territorial integrity of States 28
F. The obligation to respect individual human rights and the rights
of minorities 33
G. The principle of self-determination is not applicable 34 4
H. The obligation to reach a settlement through negotiation 40
I. The corollary obligation not to adopt unilateral measures that
attempt to impose afait accompli 42
Section III: The Answer to the Question Raised by the General Assembly 45
A. The Provisional Institutions of Self-Govemment have no competence
to proclaim the independence of Kosovo 45
B. The unilateral declaration of independence infringes
SC Resolution 1244 (1999) 45
C. The unilateral declaration of independence violates the territorial
integrity of Serbia 47
D. The unilateral declaration of independence constitutes a breach of
the obligation to settle disputes through peaceful means 47
E. There are no legal grounds for the unilateral declaration of independence 48
Conclusions 50 5
Introduction
1. The present written statement is filed pursuant to the Court's Order of 17
October 2008 upon the request for an advisory opinion made by the General
Assembly of the United Nations in its resolution 63/3 of 8 October 2008.
2. The terms of the request made by the General Assembly are as follows:
"Is the unilateral declaration of independence by the Provisional
Institutions of Self-Government of Kosovo in accordance with
international law?"
3. The question put before the Court regards a wide range of issues of
particular importance not only for the maintenance of peace and security in
the region concerned but also with regard to fondamental principles of
international law and to the respect thereof, which are of general concern.
4. Having in mind both the particular and the general relevance of the General
Assembly's request, the Argentine Republic (hereinafter Argentina) voted in
favour of Resolution 63/3. The representative of Argentina explained this
vote in the following terms:
"The pillar of the United Nations system is international peace and
security. The principal organ of the Organization with powers in this
area is the Security Council. The whole of the collective security
system is based on the fact that Members of the United Nations are
duty bound to abide by the relevant resolutions of the Organization.
In the case of Kosovo, Security Council resolution 1244 (1999), for
which Argentina voted in the affirmative, establishes clearly the legal
and political parameters for the solution to the situation of the Kosovar
minority in Serbia, ensuring the sovereignty and territorial integrity of
Serbia, as well as the settlement of the disputes through a negotiated
agreement that is mutually accepted by all parties. Argentina believes 6
that that resolution is clear. Nevertheless, we join with the majority in
agreeing to the request for an advisory opinion on this matter." 1
5. Argentina, as a member of the Security Council at that time, voted in favour
of Resolution 1244 (1999). Stressing the importance and the historie
transcendence of this Resolution, the Argentine representative stated:
"The resolution just adopted by the Security Council is of singular
importance for various reasons. First, it marks the end of a
humanitarian tragedy in which the main victims were thousands of
innocent civilians whose fondamental human rights were being
systematically and persistently violated.
Secondly, it lays the foundation for a definitive political solution to the
Kosovo crisis that will respect the sovereignty and territorial integrity
of the Federal Republic of Yugoslavia. The rights of minorities and of
all the inhabitants of Kosovo, without exception, to live in a climate of
peace and tolerance must also be unequivocally recognized.
Thirdly, this resolution confirms the central and irreplaceable role of
the United Nations, and in particular that of the Security Council and
the Secretary-General at times when there is a need to join efforts in
order to maintain international peace and security.
Lastly, it represents an interpretation of the Charter that reflects the
current recognition of human rights throughout the international
community." 2
6. Following the unilateral declaration of independence of 17 February 2008,
Dr. Jorge Taiana, Argentina's Minister of Foreign Affairs, International
Trade and Worship, made a declaration that was summarized as follows:
"Minister Taiana reaffirmed that the Argentine Republic does not
recognise the said unilateral declaration, and that [Argentina] endorses
the full force of United Nations Security Council Resolution 1244
(1999).
In this context, the Foreign Affairs Minister recalled the importance of
respect of the principles of sovereignty and territorial integrity as a
1 Mr. Argüello (Argentina), United Nations General Assembly, Sixty-third session, 22d plenary
meeting, 8 October 2008, UN Doc. A/63/PV.22, p. 12.
2 th
Mr. Petrella (Argentina), United Nations Security Council, Fifty-fourth Year, 4011 Meeting, 10 June
1999, UN Doc. S/PV.4011, pp. 18-19. 7
basis towards finding a political solution in the region, in accordance
with what is provided in the said resolution, signaling that a sustainable
solution for the status of Kosovo must be the result of a negotiated
3
agreement that is mutually acceptable to the Parties concerned" •
7. The legal status of Kosovo at the time that the unilateral declaration of
independence was made is beyond discussion. Kosovo is and was at that
time Serbian sovereign territory, under international administration and
enjoying substantial autonomy, in conformity with Security Council
Resolution 1244 (1999). It is also uncontroversial that the Provisional
Institutions of Self-Government, created as part of that international
administration, did not possess the legal capacity to declare the
independence of Kosovo. Even States having encouraged the independence
of the territory and that have subsequently recognised the so-called
"Republic of Kosovo", cannot deny these uncontroversial facts.
8. SC Resolution 1244 (1999) also envisaged a political process designed to
determine the future status of Kosovo. Negotiations were conducted with
that aim in mind. It is well known that some voices at the international level
favoured independence for Kosovo and have acted accordingly. The Special
Envoy Martti Ahtisaari made a proposal to that end, which did not result in
an agreement between the negotiating parties, and has not been endorsed by
the Security Council.
9. It is against this background that the question submitted by the General
Assembly should be addressed. At the outset, Argentina stresses the
importance that all concerned actors - the United Nations, all member
States, the local autonomous institutions of Kosovo, and the different
communities constituting the population of Kosovo - act in plain conformity
with what is prescribed by international law. Only an outcome based on the
respect for international law will provide a lasting solution for Kosovo,
bringing stability to the region and allowing all parts of the population in
Kosovo to enjoy their human rights in the framework of a multiethnic
society. What is at stake is not only the future of Kosovo and the stability of
3Translation. Press Release No. 105/08, 14 April 2008, available at: www.mrecic.gob.ar. 8
the Balkans, but also, and more generally, respect for the rule of law at the
international level.
1O. Argentina's commitment to the maintenance of peace and security in the
region, and its involvement in United Nations action towards this goal, is
well established. In particular, it must be recalled that Argentina has
participated in UN peacekeeping and other UN authorized operations in the
territory of the former Socialist Federal Republic of Yugoslavia (hereinafter
SFRY) since 1992. Argentina has contributed forces in Croatia and Bosnia
and Herzegovina to the United Nations Protection Force (UNPROFOR), the
United Nations Confidence Restoration Operation (UNCRO), the United
Nations Transitional Authority in Eastern Slavonia, Baranja and Western
Sirmium (UNTAES), the United Nations Civilian Police Support Group
(UNPSG), the United Nations Mission of Observers in Prevlaka (UNMOP),
the United Nations Mission in Bosnia and Herzegovina (UNMIBH) and the
Multinational Stabilization Force (SFOR); in Macedonia, to the United
Nations Preventive Deployment Force (UNPREDEP). In the Federal
Republic of Yugoslavia (later on Serbia and Montenegro and presently
Serbia), Argentine military and civilian personnel participated in the Kosovo
Force (KFOR) and the United Nations Interim Administration Mission in
Kosovo (UNMIK) since July 1999. In particular, Argentine personnel
contributed to the creation of the new local police and the establishment of a
system of criminal justice. An Argentine diplomat acted as Mayor of
Mitrovica during 2002. Argentina participated in KFOR from 1999 to 2003.
Participation in UNMIK lasted until December 2008. Seven members of the
Argentine troops participating in these operations lost their lives
accomplishing the tasks decided by the Security Council.
11. Argentina vigorously promotes global respect of fondamental human rights
and compliance with the obligation to settle disputes through peaceful
means. In Argentina's view, respect for United Nations resolutions is also of
paramount importance if the international community wishes the
Organization to remain at the core of the international system.
12. Consequently, Argentina is convinced that the advisory opinion that the
Court will render with regard to the situation in Kosovo will be of practical
importance. As the Court has previously stated: "The jurisdiction of the 9
Court under Article 96 of the Charter and Article 65 of the Statute, to give
advisory opinions on legal questions, enables United Nations entities to seek
guidance from the Court in order to conduct their activities in accordance
with law". The United Nations and the whole international community are
in acute need of the Court's guidance in this respect.
13. This written statement is divided into three main sections. The first section
will address the competence of the General Assembly to request an advisory
opinion and the reasons for the Court to exercise its jurisdiction in this
regard. The second section addresses the principles and rules relevant to the
question raised by General Assembly Resolution 63/3. The third section is
devoted to the answer to be given to that question. Finally, a conclusion
states the submissions of Argentina.
4
Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the
United Nations, Advisory Opinion,.C.J. Reports 1989, p. 188, para. 31. 10
Section I
Jurisdiction of the Court and the Propriety of Its Exercise
14. In this section, it will be shown that the General Assembly has competence
to request the present advisory opinion, since it clearly raises a legal
question falling within the scope of its powers and fonctions. Likewise, this
section addresses the absence of compelling reasons that would lead the
Court to use its discretionary power not to exercise its advisory jurisdiction.
A. The Court has jurisdiction to give the advisory opinion requested
15. The competence of the General Assembly to request an advisory opinion of
the International Court of Justice is derived from Article 96 (1) of the
Charter of the United Nations, which reads as follows:
"The General Assembly or the Security Council may request the
International Court of Justice to give an advisory opinion on any legal
question."
16. Both the reference to the General Assembly as one of the two named
principal organs of the United Nations and the phrase "any legal question"
exemplify the broad competence of the Assembly to request advisory
opinions. Consequently, it is submitted that, by requesting the present
advisory opinion, the General Assembly rightly exercised this competence
(1) and that the question raised is a legal one (2).
(1) The General Assembly has competence to request the advisory opinion
17. The Court has noted that Article 10 of the Charter "has conferred upon the
General Assembly a competence relating to 'any questions or any matters'
within the scope of the Charter."5
5
legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 233,
para. 11;legal Consequences of the construction of a Wall in Occupied Palestinian Territory,
Advisory Opinion,.C.J. Reports 2004, p. 145, para. 17. 11
18. The request for an advisory opinion by the General Assembly concerns a
declaration of independence by provisional institutions of self-government
created by the UN in a territory which is under the administration of the UN.
This declaration raises questions concerning respect for the Charter, in
particular its purposes and principles, and for decisions of the United
Nations organs, as well as compliance with fondamental principles of
international law. In conformity with Chapter IV of the Charter, the General
Assembly has the competence to deal with these issues.
19. It should be noted that the General Assembly has specifically dealt with the
6
situation in Kosovo for over a decade. Equally, during the discussion of
Resolution 63/3, no State has challenged the competence of the General
Assembly to request the present advisory opinion.
20. It could be argued that since it was the Security Council which was the
United Nations organ that adopted the core resolution setting out the
international regime for Kosovo (Resolution 1244 (1999)), the question
could not be addressed by the General Assembly. This is not the case for
many reasons.
21. First, according to Article 10 of the Charter, "[t]he General Assembly may
discuss any questions or any matters within the scope of the present Charter
or relating to the powers and fonctions of any organs provided for in the
present Charter". Second, Article 12 of the Charter limits the authority of the
General Assembly to making recommendations with regard to a dispute or
situation in respect of which the Security Council is exercising the fonctions
assigned to it by the Charter. When interpreting this provision, the Court
noted that "there has been an increasing tendency over time for the General
Assembly and the Security Council to deal in parallel with the same matter
6 See General Assembly resolutions 54/62 ('Maintenance of international security - stability and
development of South-Eastern Europe', 10 January 2000]; 55/27 ('Maintenance of international
security - good-neighbourliness, stability and developmement in South-Eastern Europe', 20 December
2000]; 56/18 ('Maintenance of international security- good-neighbourliness, stability and development
in South-Eastern Europe', 9 January 2002); 57/52 ('Maintenance of international security - good
neighbourliness, stability and development in South-Eastern Europe', 30 December 2002); 59/59
('Maintenance of international security - good-neighbourliness, stability and development in South
Eastern Europe', 16 December 2004); and 61/53 ('Maintenance of international security - good
neighbourliness, stability and development in South-Eastern Europe', 19 December 2006). 12
concerning the maintenance of international peace and security". 7 Third, in
any case, the limitation of Article 12 does not apply to a request for an
advisory opinion, since this request is not a "recommendation". 8
22. Furthermore, the General Assembly has also dealt with conflicts emerging
from other attempts at creating States in contradiction with fondamental
principles of international law in the past, such as the Bantustans and the so
9
called "Turkish Republic of Northern Cyprus.
23. Clearly, the General Assembly has a direct interest in ensuring respect for
international law in general, and all the more so if the matter is of direct
concern to the Organisation, as is the case of the challenge posed by the
unilateral declaration of independence. Consequently, Argentina considers
that the competence of the General Assembly to request this advisory
opinion is well established.
(2) By definition, the question raised is a legal one
24. The second requirement for granting advisory jurisdiction to the Court
through the General Assembly is that the question raised is a legal one.
According to the Court, questions "framed in terms of law and rais[ing]
problems of international law... are by their very nature susceptible of a
10
reply based on law... [and] appear. ..to be questions of a legal character".
25. The question in the present case submitted to the Court for advice is clearly
a legal one, relating as it does to the accordance with international law of
the unilateral declaration of independence by the Provisional Institutions of
Self-Government of Kosovo. To some extent, it can be said that nothing falls
more squarely into the category of a "legal question" than the determination
of the accordance of an act, fact or situation with the applicable law. To use
the words of the Court itself, the request for the present advisory opinion
requires "an assessment of whether [the unilateral declaration of
7
Legat Consequences of the construction of a Wall in Occupied Palestinian Territory. Advisory
Opinion. I.C.J. Reports 2004, 149, para. 27.
8Ibid., p. 148, para. 25.
9 General Assembly Resolutions 31/6 ('Policies of apartheid of the Govemment of South Africa') of
26 October 1976, and 37/253 ('Question ofCyprus') of 13 May 1983.
10See Western Sahara, Advisory Opinion, ICJ Reports 1975, p. 18,para. 15 and legality of the Threat
or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, 233, para. 11. 13
independence] is or is not in breach of certain rules and principles of
11
international law." As such, "it is by its very nature susceptible of a reply
based on law; indeed it is scarcely susceptible of a reply otherwise than on
the basis oflaw." 12
B. There Are No Compelling Reasons Preventing the Court to Exercise lts
Jurisdiction
26. Having established the jurisdiction of the Court to render the present
advisory opinion, it is argued in this section that there are no compelling
reasons for the Court to use its discretionary power to decline to give an
advisory opinion. 13 Taking into account the implications of the question on
the activities of the United Nations, the Court's answer to the request for an
advisory opinion will represent its participation in the activities of the
14
Organization as its principal judicial organ. Thus, there are compelling
reasons to render the advisory opinion requested. These are: the fact that the
matter has been of UN concern for a long time and that the UN bears a
special responsibility thereto (1); the concrete consequences that the
advisory opinion will have on future action taken not only by the UN and
other international organisations, but also by UN member States (2); lastly,
the issue of whether the consent of the interested State is required for the
exercise of the advisory jurisdiction is not relevant here, since the interested
State, the Republic of Serbia, has at any rate given its consent (3).
11 Legal Consequences of the construction of a Wall in Occupied Palestinian Territory, Advisory
Opinion, I.C.J. Reports 2004,p. 154, para. 39.
12Ibid., p. 153, para. 37.
13
Certain Expenses of the United Nations (Article 17,paragraph 2, of the Charter), Advisory Opinion,
I.C.J. Reports 1962, Application for Review ofjudgment no. 333 of the UN Administrative Tribunal,
Advisory Opinion, ICJ Reports 1987, p. 31; Western Sahara, Advisory Opinion, ICJ Reports 1975, p.
21, para. 23; Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996,
p. 235, para. 14.p. 155; Difference Relating to lmmunity from Legal Process of a Special Rapporteur of
the Commission of Human Rights, Advisory Opinion, I.C.J. Reports 1999, pp. 78-79, para. 29; Legal
Consequences of the construction of a Wall in Occupied Palestinian Territory, Advisory Opinion, I.C.J.
Reports 2004, p. 157, para. 45.
14 lnterpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory
Opinion, I.C.J. Reports 1950,p. 71; Certain Expenses of the United Nations (Article 17,para. 2, of the
Charter), Advisory Opinion, I.C.J. Reports 1962,p. 155; Difference Relating to Immunity from Legal
Process of a Special Rapporteur of the Commission of Human Rights, Advisory Opinion, I.C.J. Reports
1999 (!), pp. 78-79, para. 29; Legal Consequences of the construction of a Wall in Occupied
Palestinian Territory, advisory opinion, I.C.J. Reports 2004,156, para. 44. 14
(1) The matter has been of UN concern for a long time and the UN bears
a special responsibility thereto
27. The United Nations plays a core role in the situation in Kosovo. This
involvement began with the participation of the Organization in, and the co
presidency of, the Conference of Peace for Yugoslavia, originally held by
the then European Communities at the time of the collapse of the former
SFRY in 1991. The International Conference was conceived as a permanent
body "until a final solution to the problem of former Yugoslavia [was]
found". 15 This process ended with the transformation of the former
Republics composing the SFRY into new States. At not time was the
transformation of entities within the Republics into States at issue, such as
existing autonomous regions like Kosovo and Vojvodina in Serbia, or new
entities created within Bosnia and Herzegovina or Croatia. Consequently,
the participation of the Kosovo Albanians was limited to one of the six
16
Working Groups on ethnie and national communities and minorities.
28. A second stage in the UN involvement in Kosovo occurred in 1998, when
the Security Council declared that the situation in Kosovo constituted a
threat to international peace and security, and adopted measures under
Chapter VII of the Charter. 17
29. As is well known, after the aggravation of the civil strife and the violations
of human rights committed in Kosovo, NATO undertook an armed operation
on 24 March 1999, which in the words of the Court, "raise[d] very serious
18
issues of international law". As a result of the end of this armed
intervention, a third step in the UN involvement in Kosovo was the adoption
of Security Council Resolution 1244 (1999) of 10 June 1999, which
established an international civil presence and authorised a security
15
See: The International Conference on the Former Yugoslavia. Official Papers (ed. By B.
16mcharan, The Hague: Kluwer, 1997), p. 3.
Weller, Marc, The Crisis in Kosovo 1989-1999 (Cambridge: International Documents & Analysis,
1999), pp. 89-90.
17Resolution 1160(1998)of31 March 1998.
18legality of the Use of Force (Yugoslavia v. Belgium), Provisional Measures, Order of 2 June 1999,
I.C.J. Reports 1999, p. 132,para. 17. 15
presence, "for an initial period of 12 months, to continue thereafter unless
the Security Council decides otherwise". 19 Both presences continue until
today, since the Security Council has not decided otherwise. The unilateral
declaration of independence seriously challenges this regime.
30. Bearing in mind the UN administration of the territory, what happens in
Kosovo is not only of UN concern; it is a matter concerning the direct
responsibility and the role of the UN. This involves the responsibility of the
Secretary-General with regard to the administration of the territory, the role
and responsibility of the Security Council as the organ that has the exclusive
capacity to decide upon both presences in Kosovo, and the role of the
General Assembly as the organ that may discuss the fonctioning of the other
organs and addressing issues related to the principles and purposes of the
Organisation. In relation to the Court, it can be advanced that there would be
no more specific case in which the exercise of its advisory jurisdiction
"should not be refosed", 20since "[b]y lending its assistance in the solution
of a problem confronting the General Assembly, the Court would discharge
its fonctions as the principal judicial organ of the United Nations." 21 As
such, it is for the Court to provide legal guidance to the other UN organs in
this particular matter of direct UN concern.
(2) The Court's advisory opinion will have concrete consequences for the
future action of the UN and other international organisations, as well
as UN member States
31. When explaining the purpose of the exercise of its advisory jurisdiction, the
Court has stated:
"The fonction of the Court is to give an opinion based on law, once it
has corne to the conclusion that the questions put to it are relevant and
have a practical and contemporary effect and, consequently, are not
devoid of object or purpose." 22
19SC Res. 1244 (1999), para. 19.
20Ibid.
21Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 21, para. 23.
22
Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 37, para. 73. 16
32. This is the case with the present request of advisory opinion. The question
put by the General Assembly is not one of pure academic interest. The
ascertainment of the legality or otherwise of the unilateral declaration of
independence plays a pivotal role in the determination of the concrete action
to be followed by the organs of the United Nations, as well as member States
and other relevant actors. What is at stake is the credibility of the binding
decisions of the Security Council as the UN organ charged with the principal
responsibility for the maintenance of international peace and security; the
respect of the sovereignty and territorial integrity of a UN member State;
and the capacity of the Organisation to conduct negotiations between the
parties concerned in a manner by which these negotiations have real value
and cannot be unilaterally brought to an end by one of the parties that
attempts to impose its own views on the other party.
33. Although continuing to exercise his duties under SC Resolution 1244
(1199), the Secretary-General has announced a policy of "neutrality" with
regard to the unilateral declaration of independence, due to the fact that the
Security Council is unable to provide him with guidance concerning his role
23
and responsibilities. This position creates serious legal and practical
problems and in the long-term undermines the functioning and the
credibility of the Organisation and its organs. The advisory opinion will
undoubtedly contribute to overcoming these difficulties.
34. Of particular importance is the impact of the advisory opinion in helping the
activity of the Special Representative of the Secretary-General in Kosovo
(SRSG). According to the Constitutional Framework for Provisional Self
Government in Kosovo, adopted under the authority vested to him in
accordance with Security Council resolution 1244 (1999):
"The exercise of the responsibilities of the Provisional
Institutions of Self-Government under this Constitutional
Framework shall not affect or diminish the authority of the
SRSG to ensure full implementation of UNSCR 1244 (1999),
including overseeing the Provisional Institutions of Self-
23
See United Nations Security Council, 'Report of the Secretary-General on the United Nations
Interim Administration Mission in Kosovo', 24 November 2008, UN Doc. S/2008/692, p. 8, para. 26,
p. 10,para. 46, p. 11,paras. 49 and 50. 17
Government, its officials and its agenc1es, and taking
appropriate measures whenever their actions are inconsistent
with UNSCR 1244 (1999) or this Constitutional
Framework." 24
35. It has been argued that the unilateral declaration of independence has created
an "irreversible fact" and consequently that the request for an advisory
opinion would be deprived on any concrete effect. 25 This is merely wishful
thinking of those voices in favour of independence for Kosovo, and their
attempt to impose this purported independence on the rest of the
international community. Leaving aside the actual inaccuracy of this claim,
and the fact that the majority of the international community does not share
this perception, it is a position that raises serious concern as to the manner in
which these voices attempt to sideline international law. The fact remains
that the international administration (UNMIK/EULEX) and the security
presence (KFOR) continue to be deployed in Kosovo in accordance with
Resolution 1244 (1999), and are vested with the paramount administrative
and security power on this territory. Even a de facto exercise of sovereign
authority by the provisional institutions of self-government (the self
proclaimed "Government of the Republic of Kosovo") is far from being
demonstrated.
36. Obviously, the Court could not uphold the position of the "irreversibility" of
the situation emerging from the unilateral declaration of independence
without depriving international law of any relevance. As will be detailed
later,6 in contemporary international law, the creation of States is not a pure
matter of fact, but also a matter of law. And this is all the more the case
when the United Nations itself is administering the territory concerned and
has not decided, as was the case in other territories under its administration,
that the ultimate goal ofthis administration is the independence of Kosovo.
24
Special Representative of the Secretary-General, Regulation No. 2001/9 on a Constitutional
Framework for Provisional Self-Govemment in Kosovo, 15 May 2001, Chapter 12 (emphasis added).
Available at: http://www.unmikonline.org/pub/misc/FrameworkPockENG Dec2002.pdf.
25United Nations General Assembly, Sixty-third session, plenary meeting, 8 October 2008, UN
Doc. A/63/PV.22, in particular comments by Sir John Sawers (United Kingdom), p. 2; and comments
26 Ms. DiCarlo (United States of America), p. 5.
Infra, para. 129. 18
(3) The directly interested State has given its consent
37. The Court has consistently held that "the absence of an interested State' s
consent to the exercise of the Court' s advisory jurisdiction does not concern
27
the competence of the Court but the propriety of its exercise". In the
present case, there is no need to examine whether such consent is required as
a matter of propriety, since the only directly interested State, Serbia, has
given its consent. Indeed, it was Serbia that proposed that the General
Assembly request an advisory opinion of the Court. 28
*
* *
38. For the abovementioned reasons, Argentina considers that the Court has
jurisdiction to render an advisory opinion. Further, there are not compelling
reasons for the Court not to give its answer. On the contrary, the request by
the General Assembly raises fondamental issues that require the guidance of
the Court in its advisory opinion.
27Western Sahara, advisory opinion, I.C.J. Reports 1975, p. 20, paragraph 21; Legat Consequences of
the construction of a Wall in Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004,
288, para. 47.
United Nations General Assembly, Sixty-third session, Agenda item 71, Draft resolution submitted
by Serbia 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', 23
September 2008, UN Doc. A/63/L.2. 19
Section II:
Principles and Rules Relevant to the Question Raised by General
Assembly Resolution 63/3
39. The question submitted by the General Assembly concerns the accordance
with international law of the unilateral declaration of independence by the
Provisional Institutions of Self-Government of Kosovo. In order to respond
to it, "the Court must identify the existing principles and rules, interpret
them and apply them [... ], thus offering a reply to the question posed based
29
on law" •
40. The organs that unilaterally declared independence are a direct creation of
the United Nations. The first question to be ascertained is whether these
organs had the capacity to take such a decision in conformity with the
relevant UN rules. Secondly, this declaration must be examined in the
framework of SC Resolution 1244 (1999), which established the
international legal regime for Kosovo on the basis of Chapter VII of the UN
Charter and envisaged a political process leading to the determination of the
future status of the territory. Thirdly, the unilateral declaration must be read
against the background of the fondamental principles of international law
that can be at issue. In this regard, it will be advanced that the principle of
respect for the territorial integrity of States is of paramount importance, as
recognised by SC Resolution 1244 (1999). The principle of respect of
fondamental human rights and the rights of minorities is equally relevant,
but does not lead to the existence of a right to declare the independence of
the territory. It must also be stressed that another fondamental principle of
contemporary international law, the right of peoples to self-determination, is
29Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 234,
para. 13. 20
not applicable in the present situation, in other words the inhabitants of
Kosovo do not constitute a "people" entitled to self-determination. Finally,
the obligation to settle disputes through peaceful means is also relevant in
this case. Fourthly, in order to complete the legal analysis, other arguments
that could serve as justification for the unilateral declaration of
independence will also be examined. At any rate, before dealing with the
application of the relevant rules to the object of the request for an advisory
opinion, the determination of the critical date appears as the starting point.
As the Court may wish to address the arguments advanced by the authors of
the unilateral declaration of independence to consider any justifications
submitted thereto, this written statement will equally consider them.
A. The critical date: 17 February 2008
41. Although the present proceedings do not concern a territorial dispute, the
notion of critical date is applicable to the present advisory opinion, as it has
30
been applied by the Court in the context of other matters •
42. The accordance of an act with law,, must be determined at the moment that
the act was accomplished. Subsequent acts cannot modify this original
qualification. The question put to the Court exclusively concerns the legality
of the unilateral declaration of independence made by the Provisional
Institutions of Self-government. It is for the United Nations and its Member
30 Nottebohm Case (Liechtenstein v. Guatemala), Preliminary Objection, Judgment, I.C.J. Reports
1953, p. 111, pp. 122-123; Case concerning the right of passage over Indian territory (Portugal v.
India), Preliminary Objections, I.C.J. Reports 1957, p. 125, pp. 142-144; Case concerning Border and
Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, I.C.J. Reports
1988, p.69, p. 95, para. 66; Questions of lnterpretation and Application of the 1971 Montreal
Convention arising from the Aerial Incident at lockerbie (Libyan Arab Jamahiriya v. United
Kingdom), Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 9, pp. 25-26, paras. 43-44;
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, p. 115, pp. 130-131, paras. 42-43; land and Maritime Boundary
between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections, Judgment, I.C.J.
Reports 1998, p. 275, p. 318, para. 99; Case Concerning legality of Use of Force (Serbia and
Montenegro v. Belgium) (Serbia and Montenegro v. Netherlands) (Serbia and Montenegro v. Canada)
(Yugoslavia v. Spain) (Serbia and Montenegro v. Portugal) (Serbia and Montenegro v. United
Kingdom), Request for the Indication of Provisional Measures, Order of 2 June 1999, I.C.J. Reports
1999, p. 826, Separate opinion of Judge Higgins, p. 867, para. 4; Request for Interpretation of the
Judgment of 11 June 1998 in the Land and Maritime Boundary Between Cameroon and Nigeria
(Cameroon v. Nigeria), Preliminary Objections (Nigeria v. Cameroon), Judgment, i.C.J. Reports 1999,
p. 31, Dissenting Opinion ofVice-President Weeramantry, pp. 46-47. 21
States to determine their future action m the light of the Court's
ascertainment.
(1) The unilateral declaration of independence must be analysed at
the time it was issued
43. The rule according to which an act must be examined in the light of the law
in force at the time that the act occurred is well established in international
law 31•The question raised by the General Assembly's request only concerns
the accordance with international law of a specific act that occurred on a
precise date, i.e. 17 February 2008. Consequently, the Court's analysis must
examine whether the unilateral declaration, at the time that it was adopted,
was or was not in conformity with international law.
44. Acts that have occurred after the critical date are not significant in order to
determine the accordance of international law of the unilateral declaration of
independence. The Court stated, in the context of a territorial dispute but
nevertheless applicable to the present question, that:
"it cannot take into consideration acts having taken place after the date
on which the dispute between the Parties crystallised unless such acts
are a normal continuation of prior acts and are not undertaken for the
purpose of improving the legal position of the Party which relies on
32
them" .
45. As a result, what must be taken into consideration in order to make a legal
ascertainment of the situation under scrutiny is the unilateral declaration of
independence adopted by the Provisional Institutions of Self-Government of
31As Judge Max Huber noted in the Island of Palmas Case (or Miangas) (United States of America v.
The Netherlands), Award, II UNRIAA 829, p. 845: "[... ] a juridical fact must be appreciated in the
light of the law contemporary with it, and not of the law in force at the time when a dispute in regard to
it arises or falls to be settled." Rosalyn Higgins has noted that "Few arbitral dicta have been more
widely cited, or have corne to assume a more important place in international law, than [this] of
Judge Huber in the Islands of Palmas case": Rosalyn Higgins, 'Sorne Observations on the Inter
Temporal Rule in International Law', in Jerzy Makarczyk (ed), Theory of International Law at the
Threshold of the21" Century - Essays in Honour of Krysztof Skubiszewski (The Hague: Kluwer Law
International, 1997), reprinted in Rosalyn Higgins, Themes and Theories. Selected Essays, Speeches,
32d Writings in International Law,ol. 2, (Oxford: Oxford University Press, 2009), p. 867,
Sovereignty over Pulau ligitan and Pulau Sipadan (Indonesia/Malaysia), Judgment, I.C.J. Reports
2002, p. 682, para. 135. See also Territorial Dispute between Nicaragua and Honduras in the
Caribbean Sea (Nicaragua v. Honduras), Judgment of 8 October 2007, para. 117; Sovereignty over
Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore), Judgment of
23 May 2008, para. 32. 22
Kosovo on 17February 2008, the reaction thereto by the State concemed
(Serbia) the same day, and relevant principles and rules of international law
applicable at that tiine.
46. To paraphrase what the Court affirmed in a previous advisory opinion, "this
does not mean that any information regarding [the] legal status [of the
unilateral declaration of independence] at other tunes is wholly without
relevance for the purposes of this Opinion. It does, however, mean that such
information has present relevance only in so far as it may throw light on the
questions as to what [was] the legal status [of the unilateral declaration of
33
independence] at that period" •
(2) Events that occurred subsequent to the unilateral declaration
of independence have not modified the situation
47. For the sake of completeness, it is noted that no subsequent events or
decisions, or changes in the law -which in at any rate did not occur-, have
modified the situation regarding the legal status of the territory in relation to
which the unilateral declaration of independencepurported to apply.
48. To date, 56 of the 192Member States of the United Nations have recognised
the entity claiming to be a State in the declaration of independence. As is
well established in general international law, recognition does not have a
constitutive effect 34• It is useful to recall here what the Canadian Supreme
Court stated in Re Secession of Quebec: "international recognition is not
alone constitutive of statehood and, critically, does not relate back to the
date of secession to serve retroactivelyas a source of a 'legal' right to secede
in the first place" 35 • A fortiori, recognition cannot change the legal
qualification of the unilateral act at issue when a large majority of States
does not recognise the entity purportedly created by the unilateral
declaration of 17 February 2008. This is also true with regard to
international organisations: not one of them, either at the universal or the
33
34WesternSahara,Advisory Opinion, J.C.J.Reports 1975,p. 12,p. 38, para. 78. th
Cf. Article 3 of the Convention on Rights and Duties of States, adopted by the 7 International
American Conference at Montevideo on 26 December 1933 (League of Nations, Treaty Series, 1936,
vol CLXV, p. 20.
35ReferencereSecessionofQuebec case, [1998]2 S.C.R. 217, (1998) 115 ILR 536, p. 589, para. 142. 23
49. More importantly, the international civil and security presences have
continued to be deployed in Kosovo. After drawing the unilateral declaration
of independence to the attention of the Security Council, the UN Secretary
General "reaffirmed that, pending guidance from the Security Council, the
United Nations would continue to operate on the understanding that
resolution 1244 (1999) remains in force and constitutes the legal framework
for the mandate of UNMIK" 36•As already mentioned, the Security Council
did not take any new decision related to the implementation of Resolution
1244 (1999) and consequently the regime set up by this resolution remains in
force. Consequently, the Secretary-General has continued to submit his
periodical reports on the United Nations Interim Administration Mission of
37
Kosovo (UNMIK) to the Security Council •
50. Further, the security presence remains present in Kosovo on the exclusive
basis of SC Resolution 1244 (1999). In a statement by NATO on 18 February
2008, it was stated that "Following Kosovo's declaration of independence
yesterday, NATO reaffirms that KFOR shall remain in Kosovo on the basis
of UNSCR 1244, as agreed by Foreign Ministers in December 2007, unless
38
the UN Security Council decides otherwise" •
51. Strikingly, even after that unilateral declaration, organs of the Provisional
Institutions of Self-Government, even if they contend that they are organs of
a State, have continued to participate in events at the international level only
as part of the delegation of the UNMIK. When they tried to participate on
their own, they were not accepted and their attempt was qualified by the
Secretary-General as "irregular" 39.
52. The European Union mission in Kosovo (EULEX), which in the eyes of
those having proclaimed or encouraged the independence of Kosovo would
36UN Doc. S/2008/211 (28 March 2008), para. 4.
37Reports of the Secretary-General on the United Nations Interim Administration Mission in Kosovo
of 17 March 2009 (UN Doc. S/2009/149), 24 November 2008 (UN Doc. S/2008/692), 15 July 2008
(UN Doc. S/2008/458), 12 June 2008 (UN Doc. S/2008/354), and 28 March 2008 (UN Doc.
S/2008/211).
38Avai!able at: http://www.nato. intidocu/pr/2008/p08-025e.htm l.
39Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo of
17 March 2009 (UN Doc. S/2009/149), para. 28. 24
act on the basis of the purported "new reality" created by the unilateral
declaration, nevertheless operates "under the overall authority of the United
Nations, under a United Nations umbrella headed by [Secretary-General's]
Special Representative, and in accordance with resolution 1244 (1999)" 40•
This arrangement was agreed upon by the State that has sovereignty over the
territory, and was backed by the Security Council 41.
53. The considerations above not only demonstrate that subsequent facts have
not brought about any change in the legal situation existing on 17 February
2008, but also that from a factual point of view the situation remains
substantially as it was before that date.
B. The unilateral declaration of independence
54. The key paragraph of the unilateral declaration of independence of 17
February 2008 reads as follows:
"We, the democratically-elected members of our people, hereby
declare Kosovo to be an independent and sovereign state. This
declaration reflects the will of our people and it is in full accordance
with the recommendations of the UN Special Envoy Martti Ahtisaari
42
and his Comprehensive Proposal for the Kosovo Status Settlement".
55. Three propositions are advanced in the above passage: 1) the democratic
elected character of those having adopted the decision, 2) the will of the
"people" and 3) the accordance of the declaration with the Ahtisaari Plan. As
preliminary considerations, a number of comments can be made in respect of
these propositions.
56. Firstly, the fact that an organ 1s democratically elected does not
automatically imply that a decision taken by such an organ is in accordance
with international law. An organ must have the competence to adopt the act
in question. This is a universally accepted principle applicable to all kind of
40Report of the Secretary-General on the United Nations Interim Administration in Kosovo, UN Doc.
S/2008/692 (24 November 2008), para. 23; see, also, para. 50.
41See Statement by the President of the Security Council, UN Doc. S/PRST/2008/44 (26 November
4208).
Text reproduced in (2008) 47 !LM 467. 25
institutions.43 The question whether the Provisional Institutions of self
Government had the competence to proclaim the independence of Kosovo is
44
addressed below .
57. Secondly, to invoke the will of the "people" suggests a reference to the
45
principle of self-determination. But as will also be addressed below , only
"peoples" in the sense of international law are entitled to the right of self
determination. Put it in other terms, not just any human group is vested with
this right.
58. Thirdly, the Ahtisaari Comprehensive Proposal for the Kosovo Status
Settlement is just a recommendation made by the Special Envoy of the UN
Secretary-General. In his first public appearance in Pristina after having
been appointed, the Special Envoy himself stated:
"In the final analysis it is not me, I have also made it perfectly clear, it
is not me, neither us, who will decide the timing, the Secretary General
has an important role, and finally it is up to the Security Council to
decide how the future status will look like" 46•
59. Consequently, the Ahtisaari Proposal is devoid of any binding character. It
cannot therefore constitute a legal ground for the unilateral declaration of
independence.
60. The unilateral declaration also contends "that Kosovo is a special case
arising from Yugoslavia's non-consensual breakup and is nota precedent for
47
any other situation". Three remarks can be made. First, at no time during
the International Conference on Yugoslavia, set out at the beginning of the
process of the collapse of the SFRY, was even the mere possibility of an
independent Kosovo envisaged. Second, the Arbitration Commission of the
Conference on Yugoslavia (also known as Badinter Commission) found that
the process of dissolution of the SFRY had corne to an end with the adoption
of the constitution of the Federal Republic of Yugoslavia, and that this State
was composed of Serbia - including its two autonomous regions: Kosovo
43 See, for example, Legality of the Use by a State of Nuclear Weapons in Armed Conjlict, Advisory
44inion, I.C.J. Reports 1996,. 66, p. 74, para. 18.
45See irifra,paras. 61-64.
See irifra,paras. 88-91.
46United Nations Office of the Special Envoy of the Secretary-General for the Future Status of Kosovo
(UNOSEK), Press Briefings, 23 November 2005, available at: www.unosek.org.
47Ibid. 26
and Vojvodina - and Montenegro 48 . Third, the mere invocation of the
purported independence of Kosovo as being a "special case" and "not a
precedent", no matter whether this is the case or not, cannot perse provide a
legal justification. It has not been advanced which particular rules of
international law would provide for a special outcome if Kosovo would be a
"special case". Asto the nature of the case as a "precedent", certainly if the
declaration is in conformity with international law, it would constitute a
"precedent". If, on the contrary, it is not in accordance with international
law, it cannot constitute either a "precedent" or a "special case" according to
the principle ex iniuria ius non oritur.
C. The powers of the Provisional Institutions of Self-Government of
Kosovo do not include the declaration of independence of the territory
61. In operative paragraph 10 of Resolution 1244 (1999), the Security Council
decided that the international civil presence would perform the civilian
administrative fonctions and would "establish[ ... ] and oversee[... ] the
development of provisional democratic self-governing institutions".
62. The Special Representative of the Secretary-General was vested with the
highest authority of the international administration. The Provisional
Institutions of Self-Government were created by UNMIK Regulation N°
2001/9 of 15 May 2001, issued by the Special Representative 49•They were
conceived as a local governing institution under the supervision of the United
Nations. Consequently, the external affairs related to the administration of
the territory remained in the hands of the Special Representative 50.Nothing
in the long and detailed list of powers on responsibilities granted to the PISG,
neither explicitly nor implicitly, allow to these institutions to make decisions
on the sovereignty of Kosovo.
63. On the contrary, the Constitutional Framework clearly establishes that "[t]he
Provisional Institutions of Self-Government and their officials shall: (a)
Exercise their authorities consistent with the provisions of UNSCR 1244
48Opinion No. 8 of the Arbitration Commission on former Yugoslavia of 4 July 1992, 31 !LM 1521,
4923 (1992).
5 Available at: http://www.unmikonline.org/pub/misc/FrameworkPocketENG Dec2002.pdf.
°Chapter 8 of the Constitutional Framework. 27
(1999) and the terms set forth in this Constitutional Framework" and that
"the exercise of the responsibilities of the Provisional Institutions of Self
Government in Kosovo shall not in any way affect or diminish the ultimate
51
authority of the SRSG for the implementation ofUNSCR 1244(1999)" •
64. Clearly, the two sources of the powers and responsibilities of the PISG,
UNSCR 1244 (1999) and UNMIK Regulation 2001/9, do not authorise these
institutions to declare the independence of Kosovo.
D. The framework established by SC Resolution 1244 (1999)
65. UNSCR 1244 (1999) is the specific instrument governing the international
legal regime of Kosovo and as such constitutes a fondamental legal
instrument with respect to which the accordance or not of the unilateral
declaration of independence with international law must be determined.
66. The main characteristics of the legal regime established by that Resolution
are:
• Respect for the sovereignty and territorial integrity of the Federal
2
Republic of Yugoslavia (now Serbia)5 ;
• International administration of the territory, through a civil and a security
presences 53;
• Substantial autonomy for Kosovo 54;
• A political process leading to determine the future status of the
· 55
terntory ;
• Safe and unimpeded return of all refugees and displaced persons to their
homes in Kosovo and to ensure conditions for a peaceful and normal life
56
for all inhabitants of the province ..
• No time limits for this regime, which will last until the Security Council
will not decide otherwise 57.
51Chapter 2 and Preamble of the Constitutional Framework.
52
53See preambular para. 10,principle 6 of Annex 1, and para. 8 of Annex 2 to Resolution 1244 (1999).
Ibid., operative paras. 5-11, 14-16, and 19.
54Ibid., preambular para. 11, operative paras. 10 and 1l(a), and para. 5 of Annex 2.
55Ibid., operative para. 1l(e).
56
Ibid., preambularparas. 4 and 7, operative paras. 9(c), 10, 1l(k), 13,principle 5 of Annex !, paras. 4,
5 and 7 of Annex 2.
57Ibid., operative para. 19. 28
67. This is the legal framework against which the unilateral declaration of 17
February 2008 must be examined. The Security Council did not decide to put
an end, either totally or in part, to the regime established in accordance with
its resolution of 10 June 1999. As demonstrated above, the existing factual
situation on the ground continues to correspond to this established regime.
68. Most of the points constituting the legal regime set out by Resolution 1244
(1999) are also fondamental principles and rules of general international law
and consequently the basis of their application rests not only on Resolution
1244 (1999), but also on general international law.
E. The principle of respect for the territorial integrity of States
69. Respect for the territorial integrity of States is a well established principle of
international law, without which the very existence of international law, as a
corpus of rules governing primarily the relationship among sovereign
entities, could not be envisaged. In its first judgment, the Court stressed that
"[b]etween independent States, respect for territorial sovereignty is an
essential foundation of international relations". 58 Sorne years later the Court
reaffirmed "the duty of every State to respect the territorial sovereignty of
59
others" .
70. The aim of the principle of territorial integrity is to protect a quintessential
element of a State - its territory - whereby any modification of a State's
territorial sovereignty must take place in accordance with international law,
mainly through the consent of the interested State. As a corollary of the
sovereign equality of States, the principle of the respect of territorial integrity
is a fondamental principle of international law. The 1970 Declaration on
Principles of International Law Concerning Friendly Relations lists as one of
the elements of the equal sovereignty of States the principle that "[t]he
territorial integrity and political independence of the State are inviolable" 60 .
58Corfu Channel, Merits, Judgment, I.C.J. Reports 1949, p. 35.
59 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America), Merits, Judgment of 26 June 1986, I.C.J. Reports 1986, p. 111, para. 213, and p. 128, paras.
251-252.
60
General Assembly Resolution 2625 (XXV) of24 October 1970, (d) 29
71. The United Nations Millennium Declaration, as well as the 2005 World
Summit Outcome, equally support "all efforts to uphold the sovereign
equality of all States, [and] respect for their territorial integrity and political
independence" 61 •
72. Respect for the territorial integrity of States can be founded in an impressive
number of international instruments, sometimes coupled with the
"inviolability ofboundaries", and at other times coupled reaffirmations of the
sovereignty, political independence and security of States 62• The respect of
the territorial status quo was also mentioned as an equivalent of territorial
mtegnty· 63.
73. At the regional level, like in other parts of the world, respect for the
territorial integrity has been a matter of particular concern in Latin America.
64
At all levels, in the Inter-American system as well as in sub-regional
levels 65, and in a wide range of different issues and no matter the State
concerned, the need to respect the territorial integrity of States has been
underscored. This is not just a regional concern, or the expression of a
particular rule that is not applicable to the rest of the world. It is a legitimate
common aspiration to see this fondamental principle universally respected, as
one of the main foundations of the entire international legal system and as a
concrete manifestation of the sovereign equality of States.
61General Assembly Resolutions 55/2 of 8 September 2000 and 60/1 of24 October 2005.
62
Notably: Article 10 of the Covenant of the League of Nations; Article 2, para. 4, of the Charter of the
United Nations and the Helsinki Final Act adopted on 1 August 1975 by the Conference on Security
and Cooperation in Europe, among others.
63See for instance the opinion N° 3 of the Arbitration Commission of the International Conference for the former
Yugoslavia (32I.L.M. 1993, p. 1500).
64
It can be mentioned among other instruments: Articles 1, 13,28 and 29 of the Charter of the
Organisation of American States, AG/RES. 2250(XXXVI-O/06), "Obligation of Member States to
Respect the Rules and Principles of International Law Contained in the OAS Charter in Order to
Preserve and Strengthen Peace in the Hemisphere"; A/RES/41/128, 4 December 1986, Declaration on
the Right to Development; AS CP/RES. 935 (1648/08), Support for the Process of Dialogue, Peace,
and for Democratic Institutions in Bolivia; OAS Declaration on Security in the Americas, 2003, doc.
OEA/SER.K/XXXVIII, CES/dec.1/03 rev. 1; Resolution CP/RES. 859 (1397/04) "Support to the Peace
Process in Colombia"; Declaration of Managua, OEA/SER.K/XLI. l, EPICOR/doc.05/04 rev. 6, 9 July
2004; Resolution CP/RES. 930 (1632/08), Resolution of the Twenty-Fifth Meeting of Consultation of
Ministers of Foreign Affairs, RC.25/RES. 1/08, 17 March 2008; Legal Opinion of the Inter-American
Juridical Committee on the Resolution CP/RES.586 (909/92) of the Permanent Council of the
Organization of the American States about the decision issued by the Supreme Court of the United
States of America in the Case US vs. Alvarez Machain, Rio de Janeiro, 15 August 1992.
65 Group of Rio: "Declaration of the Heads of State and Govemment of the Rio Group on the recent
events between Ecuador and Colombia", adopted in Santo Domingo, Dominican Republic, 7 March
2008 (OEA/Ser.G CP/INF.5653/08); UNASUR: Constituent Treaty of the Union of South American
Nations, 23 May 2008, Preamble (available at:
http://www.integracionsur.com/sudamerica/TratadoUnasurBrasil08.pdf). 30
74. It emerges from State practice that three main elements constitute the core of
the notion of territorial integrity:first, the notion of plenitude. This amounts
to the capacity to display all State fonctions over the whole territory of the
State. Restrictions upon that display can only be the result of the consent of
the State concerned itself or a binding resolution adopted by the Security
Council under Chapter VII of the Charter. The international administration of
Kosovo is an example of both means. Second, the notion of inviolability.
According to this notion there exists an international obligation not to display
State jurisdiction over the territory of another State without its consent. The
Permanent Court underscored the consequence of this for the other States as
follows: "the first and foremost restriction imposed by international law upon
a State is that - failing the existence of a permissive rule to the contrary - it
may not exercise its power in any form in the territory of another State" 66.
Third, the guarantee against any dismemberment of the territory. That
explains, for instance, that the support of secessionist movements 1s
considered a violation of the territorial integrity of the State concerned 67.
75. In contemporary international law, respect for the principle of territorial
integrity is an obligation that applies not only to States and international
organisations, but also to other international actors, particularly those
involved in internal conflicts threatening international peace and security.
Evidence of this is the particular case under the consideration of the Court, in
which the Security Council referred to the respect of the sovereignty and
territorial integrity of the Federal Republic of Yugoslavia (now Serbia).
Resolution 1203 (1998) addressed directly to the Kosovo Albanian part.
After reaffirming the territorial integrity of the Federal Republic of
Yugoslavia, it demanded that "the Kosovo Albanian leadership and all other
elements of the Kosovo Albanian community comply fully and swiftly with
resolutions 1160 (1998) and 1199 (1998)".
76. Resolution 1244 (1999) reaffirmed "the commitment of all Member States to
the sovereignty and territorial integrity of the Federal Republic of Yugoslavia
and the other States of the region, as set out in the Helsinki Final Act and
66
67"Lotus", Judgment of7 September 1927, P.C.1.J.,Series A, No. JO,p. 18.
See, among others, Resolutions 145 (1960) of22 July 1960, 169 (1961) of24 November 1961, 404
(1977) of 8 February 1977 and 496 (1981) of 15 December 1981. 31
annex 2". For its part, Annex 2 enumerates the principles to be followed for
the resolution of the Kosovo crisis, among which it is found: "A political
process towards the establishment of an interim political framework
agreement providing for substantial self-government for Kosovo, taking full
account of the Rambouillet accords and the principles of sovereignty and
territorial integrity of the Federal Republic of Yugoslavia and the other
countries of the region, and the demilitarization of UCK" 68.
77. The Security Council has also adopted the same stance in other cases. Thus,
in its Resolution 787 (1992), the Security Council
"Strongly reaffirms its call on all parties and others concerned to
respect strictly the territorial integrity of Bosnia and Herzegovina, and
affirms that any entities unilaterally declared or arrangements imposed
69
in contravention thereof will not be accepted".
78. Equally, the declaration of the President on behalf of the Security Council of
2 December 1994 points out that
"The Security Council has received with deep concern a report from
the Secretariat concerning a statement of 26 November 1994 attributed
to the Supreme Soviet of Abkhazia, Republic of Georgia. It believes
that any unilateral act purporting to establish a sovereign Abkhaz entity
would violate the commitments assumed by the Abkhaz side ta seek a
comprehensive political settlement of the Georgian-Abkhaz conjlict.
The Security Council reajjirms its commitment ta the sovereignty and
70
territorial integrity of the Republic of Georgia" •
79. Security Council resolution 981 (1995), while referring to the situation of the
Krajina in Croatia, affirmed "its commitment to the independence,
sovereignty and territorial integrity of the Republic of Croatia" and called
upon "the Government of the Republic of Croatia and the local Serb
authorities to refrain from the threat or use of force and to reaffirm their
commitment to a peaceful resolution of their differences". 71
68Principle 8.
69
70Emphasis added.
S/PRST/1994/78 (emphasis added). See also Resolution 971 (1995), which urged "the parties to
refrain from any unilateral actions which could complicate or hinder the political process aimed at an
early and comprehensive settlement of the conflict" andalled upon "the parties to intensify efforts (...) to
achieve an early and comprehensive political settlement of the conflict, including on the political status of
Abkhazia,fully respecting the sovereignty and territorial integrity of the Republic of Georgia" (emphasis added).
71See also Security Council Resolutions 990 (! 995), 994 (1995) and 1009 (I 995). 32
80. More recently, the Security Council reaffirmed the territorial integrity of
Somalia, the Democratic Republic of the Congo, Sudan and Georgia in the
72
context of internal and secessionist conflicts .
81. Double standards in international law are unacceptable, even if they are
concealed under the veil of a purported "special" case which would not
constitute a "precedent". They can find no legal justification. Rather, double
standards undermine the necessary respect for, the perception, and the
effectiveness of international law. During the crisis in the Balkans, Argentina
adopted a strict and coherent policy of respect for the territorial integrity of
States in all the situations in which the principle was at stake, i.e. in relation
to Croatia, Bosnia and Herzegovina, and now Serbia. The same consistent
approach has also been taken by Argentina with respect to other conflicts in
other parts of the world. 73 It is respectfully submitted that the advisory
opinion should stress the need to apply and respect the territorial integrity of
all States, irrespective of the particular State concerned in a given case.
82. Moreover, such a reaffirmation from the Court is especially required in the
present case where the Security Council, while establishing the international
administration on part of the territory of one member State, also expressly
guaranteed respect of the territorial integrity of this same State. This
guarantee was in accordance with all previous Security Council resolutions
adopted prior to Resolution 1244 (1999), 74 and following which the Security
Council has not modified its policy.
72
See Security Council Resolutions 1772 (2007) of 20 August 2007, 1784 (2007) of 31 October 2007,
1756 (2007) of 15 May 2007 and 1808 (2008) of 15April 2008.
73For example, with regard to the conflict in Georgia of August 2008, "[t]he Argentine Government
declares its satisfaction for the cessation of hostilities in Georgia, reached as a result of steps taken by
the President of the European Union, and calls upon the concerned Parties to find a negotiated and
mutually acceptable solution to the currently existing conflict that respects the principles universally
accepted by International Law, such as the territorial integrity of States and full respect of the human
rights of the persons affected" (Press Release No. 275/08, 14 August 2008), available at:
http://www.mrecic.gob.ar.
74 Prior to the adoption of Resolution 1244 (1999), the Resolutions I160 (1998) of 31 March 1998,
1199 (! 998) of 23 September 1998, 1203 (1998) of 24 October 1998, and 1239 (1999) of 14 May I999
were adopted. 33
F. The obligation to respect individual human rights and the
rights of minorities
83. The population of Kosovo has suffered and continues to suffer from serious
violations of fondamental human rights. Argentina has condemned the grave
violations of human rights, whoever their authors and victims may be, and
has insisted on the requirement of an effective restoration of the enjoyment
of these rights, particularly the right of all refugees and displaced persons to
return to their homes safely, a just solution regarding the situation of the
disappeared people, and the respect of the rights of all the ethnie groups that
make up Kosovo's population. Before the Security Council it was affirmed
that
"Argentina believes that there cannot be a prosperous and peaceful
future for Kosovo without full respect for the diversity of the people
who live there. A sustainable resolution of the question of Kosovo
must be achieved with full application of the principle of territorial
integrity. In this context, we attach the greatest importance to respect
for human rights, including the rights of refugees and displaced
persons, as well as for international humanitarian law and minority
rights."75
84. Little progress has been made with regard to the return of refugees or
displaced persons. As noted in the Report of the Secretary-General on the
United Nations Interim Administration Mission in Kosovo of 24 November
2008, "The number of minority returns has declined sharply in comparison
76
with previous years and remains disappointing" • The most recent
Secretary-General's Report also observed that "The returns statistics for
2008 show a dramatic decline in the number of voluntary minority returns to
Kosovo compared to earlier years" 77. The reconstruction of an effective
multiethnic society still rests an aim to be achieved 78• To say the least, a
75 Intervention of Mr. Mayoral (Argentina), United Nations Security Council, Sixty-first year, 5373
meeting, 14 February 2006, UN Doc. S/PV.5373, p. 13.
76
77,UN Doc. S/2008/692, p.4, para. 11,
Report of I7 March 2009, UN Doc. S/2009/149, p. 6, para. 21.
78Numerous inter-ethnie security incidents continue to take place: Report of the Secretary-General on
the United Nations Administration Mission in Kosovo, I7 March 2009, UN Doc. S/2009/149, p. 3,
paras. 9-II; Report of the Secretary-General on the United Nations Administration Mission in Kosovo, 34
unilateral declaration of independence is certainly not the best way to make
progress with respect to both these two concerns.
85. The fact that Kosovo Albanians were victims of serious violations of human
rights and of the humanitarian tragedy that occurred in 1999 does not imply
the emergence of a right to obtain independence. This right, which is one of
the possible outcomes of the exercise of the right to self-determination by
those peoples entitled thereto, is not granted on the basis of the major or
minor violence inflicted upon particular groups of individuals. The so-called
theory of "remedial secession" is nothing more than an argument made in
doctrine, and which has not received any legal consecration. According to
the Canadian Supreme Court, "it remains unclear whether this [... ]
79
proposition actually reflects an established international law standard".
Conventional or customary rules dealing with minority rights, both at the
individual and the collective level, do not recognize minorities as holders of
the right to self-determination and make no distinction whether they were
victim of major human rights violations or not. 80
86. In the concrete case of Kosovo, during the worst period of the conflict in
which serious breaches of fondamental human rights and the rules of
international humanitarian law were applicable, all Security Council
resolutions adopted in 1998-1999 concerning the situation in Kosovo
stressed the need to respect the territorial integrity of the FRY, which is
81
tantamount to denying any kind of "remedial secession" .
G. The principle of self-determination is not applicable
87. Argentina has always promoted and defended the right of peoples to self
determination. Today, this right is a well established fondamental principle
of international law and possesses an erga omnes character, as the Court has
24 November 2008, UN Doc. S/2008/692, p. 2, para. 6; Report of the Secretary-General on the United
Nations Administration Mission in Kosovo, 28 March 2008, UN Doc. S/2008/211, pp. 3-4, paras. 11-
79.
Reference re Secession of Quebec, [1998] 2 S.C.R. 217, (1998) 115 ILR 536, paras. 134-135.
80See Article 27 of the ICCPR; Declaration on the Rights of Persons Belonging to National or Ethnie,
Religious and Linguistic Minorities, adopted by General Assembly resolution 47/135; Framework
Convention for the Protection of National Minorities (opened for signature I February 1995, entered
into force I February 1998), CETS No. 157.
81
See Security Council resolutions 1199 (1998), 1203 (1998) and 1244 (1999) 35
had occasion to affirm 82• However, the right to self-determination is framed
by international law and this includes the determination of both the holders
of the right as well as its scope and consequences.
88. With regard to the holder of this right, not every human group is entitled to
self-determination. As the Court stated in the context of decolonisation:
"The validity of the principle of self-determination, defined as
the need to pay regard to the freely expressed will of peoples,
is not affected by the fact that in certain cases the General
Assembly has dispensed with the requirement of consulting
the inhabitants of a given territory. Those instances were based
either on the consideration that a certain population did not
constitute a 'people' entitled to self-determination or on the
conviction that a consultation was totally unnecessary, in view
of special circumstances" 83.
89. A basic premise for the application of the principle of self-determination is
the qualification of the holder of that right as a "people". This is a legal
qualification in the context of international law and not a mere sociological
or ethnie qualification.
90. The UN organs have played a key role in applying self-determination and
have adopted an impressive number of resolutions with regard to both
general and particular situations. This has notably been the case of the
General Assembly, the Trusteeship Council and the Decolonisation
Committee. In all the cases in which the relevant organs have recognised the
existence of a "people" in the legal sense and consequently their right to self
determination, they have expressly indicated so. Regional organisations have
equally played a role in the recognition of human groups as "peoples"
84
entitled to self-determination.
82"ln the Court's view, Portugal's assertion that the right of peoples to self-determination as it evolved
from the Charter and from United Nations practice, has an erga omnes character, is irreproachable [...],
it is one of the essential principles of contemporary international law". East Timor (Portugal v.
Australia), Judgment, I.C.J. Reports 1995, p. 102, para. 29; see also Legat Consequences of the
construction of a Wall in Occupied Palestinian Territory, Advisory Opinion,.C.J. Reports 2004, p.
I72, para. 88, and p. I99, para. I56.
83Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 33, para. 59.
84This has been the case with regard to the peoples of the former Portuguese colonies, South-Africa,
Namibia and Palestine. 36
91. Even in the case of decolonisation, which is the situation m which the
principle led to the creation of a major number of newly independent
85
States , self-determination has not been applied in all circumstances. The
UN developed a methodology for identifying the Non-Self-Governing
territories and also concerning the specific ways to put an end to the colonial
situation 86. This includes the decision about the applicability or not of the
principle of self-determination. There have been cases in which the General
Assembly and its Decolonisation Committee have not considered applicable
the right of self-determination to the inhabitants of some Non-Self
87
Governing Territories • In the case of the right to self-determination with
regard to territories under foreign occupation, such recognition has occurred
with regard to the Palestinian people. As the Court stated in its 2004 advisory
op1mon, "[a]s regards the principle of the right of peoples to
self-determination, the Court observes that the existence of a 'Palestinian
88
people' is no longer in issue" .
92. Nothing of this sort has occurred with respect to Kosovo. By way of
comparison, the case of Timor Leste is illustrative, since the Security
Council dealt with it contemporaneously to Kosovo in 1979. Whereas the
right of the East Timorese people and its possible choice of independence
were recognized, this was not the case for the inhabitants of Kosovo 89•
93. A distinction between peoples entitled to self-determination and minorities or
indigenous populations is of particular importance. The Inter-American
Commission on Human Rights in the Miskitos Case, while acknowledging
the principle of self-determination of peoples, nevertheless stated that "[t]his
does not mean, however, that it recognizes the right to self-determination of
85Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West
Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports
8671, p. 31, para. 52.
See eg. General Assembly resolutions 9 (!), 66 (!), 1541 (XVI), and 1654 (XVI).
87Cf. the cases of !fui (GA Resolution 2428 (XXIII) of 18 December 1968), Gibraltar (GA Resolution
2353 (XXII) of 19 December 1967) and the Malvinas Islands (GA Resolutions 2065 (XX) of 16
December 1965 and 3160 (XXVIII) of 14 December 1973 among others. See also the amendment draft
to the text that became Resolution 40/21 of 27 November 1985, rejected by the General Assembly
(Doc. A/40/L.20 of22 November 1985).
88 Legal Consequences of the construction of a Wall in Occupied Palestinian Territory, Advisory
Opinion, I.C.J. Reports 2004, pp. 182-183, para. 118.
89Resolution 1246 (1999) of 11 June 1999. 37
90
any ethnie groupas such." To hold otherwise would lead to a complete blur
between the distinction clearly made in international law between peoples
and minorities.
94. At any rate, recognition of the right to self-determination does not
automatically imply the right to independence. The distinction between
internal and external self-determination is relevant here. For instance, the
United Nations Declaration on the Rights of Indigenous Peoples, adopted on
7 September 2007, recognised the right of indigenous peoples to self
determination91. However, Article 4 provides that "Indigenous peoples, in
exercising their right to self-determination, have the right to autonomy or
self-government in matters relating to their internal and local affairs, as well
as ways and means for financing their autonomous fonctions". Furthermore,
this Declaration establishes that:
"[n]othing in this Declaration may be interpreted as implying
for any State, people, group or person any right to engage in
any activity or to perform any act contrary to the Charter of the
United Nations or construed as authorizing or encouraging any
action which would dismember or impair, totally or in part, the
territorial integrity or political unity of sovereign and
92
independent States" •
95. In the case of Kosovo, neither within the UN nor within a regional context, is
there a recognition of the applicability of the right of self-determination to a
so-called "Kosovar people". Further, the International Conference on
Yugoslavia did not accept the request by the representatives of the Kosovo
Albanians to be considered as entitled to independence and they were not
93
even authorised to participate in its plenary sessions. Notably, the
Arbitration Commission of the Conference on Yugoslavia did not accept that
the Serbian populations of Croatia and Bosnia and Herzegovina were entitled
90The Miskito Case, Case 7964 (Nicaragua), Inter-American Commission on Human Rights, Report on
the Situation of a Segment of the Nicaraguan Population of Miskito Origin, OEA/Ser.L./V.II.62, doc.
10 rev. 3, 29 November 1983, Part Two(B) § 9.
91General Assembly Resolution 61/295, Annex, Article 3.
92Ibid., Article 46.
93
See the exchange of letters between Dr. Rugova, leader of the Kosovo Albanians, and Lord
Carrington, Chair of the Peace Conference on Yugoslavia of 22 December 1991 and 17 August 1992,
reprinted in Marc Weller, Crisis in Kosovo 1989-1999 (Center of International Studies University of
Cambridge, 1999), pp. 81 and 86. 38
to external self-determination 94, in a situation resembling that of the Kosovo
Albanians.
96. Indeed, relevant instruments dealing with the principle of self-determination
have clearly established its relationship with the principle of territorial
integrity. General Assembly Resolution 1514 (XV) containing the
Declaration on the Granting of Independence to Colonial Countries and
Peoples, after stating the right of peoples to self-determination in paragraph
2, incorporated another paragraph by which it declares that "[a]ny attempt
aimed at the partial or total disruption of the national unity and the territorial
integrity of a country is incompatible with the purposes and principles of the
95
Charter of the United Nations" . The seventh paragraph of the principle of
equal rights and self-determination of peoples of the Declaration contained in
Resolution 2625 (XXV), known as the "safeguard clause", provides:
"Nothing in the foregoing paragraphs shall be construed as authorising or
encouraging any action which would dismember or impair, totally or in
part, the territorial integrity or political unity of sovereign and independent
States conducting themselves in compliance with the principle of equal
rights and self-determination of peoples as described above and thus
possessed of a government representing the whole people belonging to the
96
territory without distinction as to race, creed or colour".
97. This paragraph has been interpreted a contrario as accepting secession if the
97
State does not possess a government representing the whole people. It has
never been interpreted in such a way by any competent body. The travaux
preparatoires 98 as well as the subsequent practice does not allow such
94Opinion No 2 of the Arbitration Commission on former Yugoslavia.
95General Assembly Resolution 1514 (XV) of 14 December 1960, para. 6
96General Assembly Resolution 2625 (XXV).
97
For an account ofthis doctrinal position, see Ch. Tomuschat, 'Secession and Self-Determination' in
Marcelo G. Kohen (ed.) Secession. International Law Perspectives (Cambridge: Cambridge University
Press, 2006), 48; J. Dugard and D. Raie, 'The Role of Recognition in the Law and Practice of
Secession' in Marcelo G. Kohen (ed.), in ibid., 28; A. Cassese,-Determination of Peoples: A Legal
Reappraisal (Cambridge: C.U.P., 1995), p. 118.
98 See Report of the Special Committee on Principles of International Law concerning Friendly
Relations and Co-operation among States, Official Records of the General Assembly, Twenty-fourth
Session, Supplement No. 19, UN Doc. A/7619, p. 67, para. 187; Statement by Mr. Arangio-Ruiz on
behalf of Italy, UNGA, 1970 Special Committee on Principles of International Law Concerning
Friendly Relations and Co-operation among States: Summary Records of the One Hundred and Tenth
to One Hundred and Fourteenth Meeting held at Palais des Nations, Geneva, from 31 March to 1 May
1970, UN Doc. A/AC.125/SR.110-114, p. 22, and p. 110, para. 221. 39
99
interpretation. At any rate, the policy of the Albanian population itself of
not participating in the Yugoslav (later Serbian) State organs since the
100
beginning of the 1990s precludes the invocation of this doctrinal
interpretation.
98. The Rambouillet Agreement proposed in February 1999 contained a clause
related to the future status which read as follows: "Three years after the entry
into force of this Agreement, an international meeting shall be convened to
determine a mechanism for a final settlement for Kosovo, on the basis of the
will of the people, opinions of relevant authorities, each Party's efforts
regarding the implementation of this Agreement, and the Helsinki Final Act,
and to undertake a comprehensive assessment of the implementation of this
Agreement and to consider proposals by any Party for additional
measures". 101
99. There is a reference to the "will of the people", but this by no means amounts
to a recognition of a "people" in the legal sense. No explicit reference to the
right to self-determination is made. An implicit reference cannot be
constructed either: "the will of the people" merely appears as one of the
bases to be taken into consideration. Conversely, if the principle of self
determination would be applicable, the "will" of the people would be
paramount and not as just one element among others to be taken into account
for the determination of a future status. Moreover, the reference to the
Helsinki Final Act, which strongly stressed respect of the territorial integrity
and the inviolability of boundaries, is another element which supports the
consideration that the proposal made at Rambouillet did not recognise the
99
See for example, Helsinki Final Act, Declaration on Principles Guiding Relations between
Participating States, Principle IV, see, also, Principles I and VIII; for other international instruments
confirming the principle of territorial integrity of States see Chapter 6, Sections B & C; Committee on
the Elimination of Ail Forms of Racial Discrimination, General Recommendation XXI, Right to self
determination, adopted on 23 August 1996. Available at:
http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/dc598941 c9e68a 1a802565 Ie004d31d0?Opendocument;
and Human Rights Committee, General Comment 12, Article 1 (Twenty-first session, 13 March 1984),
Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty
Bodies, U.N. Doc. HRI/GEN/1/Rev.1 at 12 (1994). Available at:
http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/f3 c99406d528f3 7fc12563ed004960b4?Opendocument.
100
This Jack of participation followed an earlier declaration of independence by the Kosovo Assembly:
Resolution on Independence, September 7, 1991 in Marc Weller,Crisis in Kosovo 1989-1999 (Center
of International Studies University of Cambridge, 1999), p.72.
101Annexed to the Letter dated 4 June 1999 from the Permanent Representative of France to the United
Nations addressed to the Secretary-General, 7 June 1999, UN Doc. S/1999/648, p. 85, para. 3, 40
applicability of the right of peoples to self-determination to the inhabitants of
Kosovo.
100. Consequently, the principle of self-determination cannot be considered as a
legal ground for establishing the accordance of the unilateral declaration of
independence of 17 February 2008 with international law.
H. The obligation to reach a settlement through negotiation
101. The Security Council, when it established an international administration for
Kosovo, also determined the procedure according to which the future status
of the territory would be determined and it consequently envisaged the end of
that international presence. Hence, UNSCR 1244 (1999) stated that one of
the tasks of the international civil presence would be that of "[f]acilitating a
political process designed to determine Kosovo's future status, taking into
account the Rambouillet accords", 102 and later, as "a final stage, overseeing
the transfer of authority from Kosovo' s provisional institutions to institutions
established under a political settlement". 103
102. Clearly, as actually occurred later, "political process" and "political
settlement" referred to negotiations between the parties concerned, that is,
the central government of Serbia and the representatives of the Kosovo
Albanians and later the local government of the province of Kosovo under
international administration. Annex 2 of UNSCR 1244 (1999) provides that
"[n]egotiations between the parties for a settlement should not delay or
disrupt the establishment of democratic self-governing institutions". A
"political settlement" also means an agreement as a result of these
negotiations. For its part, "future status" implies that there is an existing
"present status"; pending a "political settlement", the present status remains.
This is even more evident in the present case, for two reasons: jirst, the
negotiations involve the government of a State and a government of one of
the State' s internal units; andsecond, the negotiations do not have as goal the
settlement of a dispute of the legal status of an existing situation, but the
modification of an existing situation.
102
103Paragraph 11, (e).
Paragraph 11, (f). 41
103. Although the negotiations are not between two subjects of international law,
the negotiations nevertheless have an international character since they form
part of an international regime established by a binding Security Council
resolution adopted under Chapter VII of the Charter. This is not the only case
where such a situation has arisen. Other domestic conflicts after having being
qualified as threats to the international peace and security have become
subject to a Security Council requirement for negotiations to be conducted
104
between the parties to these conflicts.
104. The negotiations concerning the province of Kosovo were marked by the role
played by the Special Envoy of the Secretary-General, Mr. Martti Ahtisaari,
who acted as a mediator. His Comprehensive Proposal, endorsed by the
105
Secretary-General, has not and cannot have a binding effect. For this
reason, it is not necessary to analyse here whether this proposal meets the
requirements established by UNSCR 1244 (1999) or even whether the
process was carried out in an impartial manner, because it is merely a
proposal for the consideration of the parties and as such, it cannot be
imposed on them as though it were compulsory.
105. The Court has already described in length the main features of negotiations
as a peaceful means to solve international disputes:
"Defining the content of the obligation to negotiate, the Permanent
Court, in its Advisory Opinion in the case of Railway Traffic between
Lithuania and Poland, said that the obligation was 'not only to enter
into negotiations but also to pursue them as far as possible with a view
to concluding agreements', even if an obligation to negotiate did not
imply an obligation to reach agreement (P.C.IJ, Series AIB, No. 42,
1931, at p. 116). In the present case, it needs to be observed that
whatever the details of the negotiations carried on in 1965 and 1966,
they failed of their purpose because the Kingdoms of Denmark and the
Netherlands, convinced that the equidistance principle alone was
applicable, in consequence of a rule binding upon the Federal
Republic, saw no reason to depart from that rule; and equally, given
104
This occurred in the cases of Somalia, the Democratic Republic of the Congo, Sudan and Georgia
105tioned above, para. 80.
Letter dated 26 March 2007 from the Secretary-General addressed to the President of the Security
Council, 26 March 2007, UN Doc. S/2007/168. 42
the geographical considerations stated in the last sentence of paragraph
7 above, the Federal Republic could not accept the situation resulting
from the application of that rule. So far therefore the negotiations have
not satisfied the conditions indicated in paragraph 85 (a), but fresh
106
negotiations are to take place on the basis of the present Judgment" •
106. With the necessary adjustments to the particular case, this analysis applies in
the case of Kosovo. Negotiations must be conducted in good faith. If they
have failed to reach an outcome then fresh negotiations must be conducted
with the aim of reaching an agreement on the basis of what is provided in
Resolution 1244 (1999) and that respects international law.
I. The corollary obligation not to adopt unilateral measures that
attempt to impose a/ait accompli
107. By definition, negotiations imply that one side cannot unilaterally impose its
position on the other. If negotiations or mediation fails, the parties should
continue to seek a settlement either through further negotiations or by other
peaceful means of settling disputes. As the Manila Declaration on the
Peaceful Settlement of International Disputes states:
"In the event of failure of the parties to a dispute to reach an early
solution by any of the above means of settlement, they shall continue
to seek a peaceful solution and shall consult forthwith on mutually
agreed means to settle the dispute peacefully" 107•
108. In the present case, the exclusion of an imposed unilateral solution has been
explicitly mentioned at the beginning of the negotiations. The Contact Group
adopted guiding principles governing these negotiations, stating that "[a]ny
solution that is unilateral or results from the use of force would be
108
unacceptable" •
106North Sea Continental ShelfCases (Federal Republic ofGermany v. Denmark; Federal Republic of
Germany v. Netherlands), I.C.J. Reports 1969, p. 47-48, para.87. See also: land and Maritime
Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Judgment, I.C.J. Reports 2002, p.
424, para. 244.
107GA Resolution 37/10 of 15 November 1982. See also the Declaration of Principles of International
Law annexed to Resolution 2625 (XXV).
108Annex to Letter dated 10 November 2005 from the President of the Security Council addressed to
the Secretary-General, 10November 2005, UN Doc. S/2005/709, p. 3, para.6 (emphasis added). 43
109. Previously, at the time of the creation of the Provisional Institutions of Self
Government, the UNMIK-FRY Common Document signed on 5 November
2001 clearly reaffirmed "that the position on Kosovo' s future status remains
as stated in UNSCR 1244, and that this cannot be changed by any action
109
taken by the Provisional Institutions of Self-government" • The Security
Council welcomed the signing of this document and emphasised "the
responsibility of the provisional institutions of self-government and all
concerned to respect Jully the final status provisions of resolution 1244
(1999). It underlines its continued commitment to the full implementation of
resolution 1244 (1999), which remains the basis for building Kosovo's
future."110
11O. The Guiding principles of the Contact Group for a settlement of the status of
Kosovo also affirmed that "[t]he Security Council will remain actively seized
of the matter. The final decision on the status of Kosovo should be endorsed
111
by the Security Council" .
111. If negotiations are to be fruitful, each party must abstain from adopting
unilateral measures that aggravate the dispute or the conflicting situation and
prevent the dispute or situation from being settled. This is an important
corollary of the obligation to settle disputes through peaceful means, one of
the fondamental principles of international law 112, applicable in the particular
case under the examination by the Court.
112. This analysis is equally relevant for those States that supported the solution
proposed by Mr. Ahtisaari and, that subsequently have encouraged the
unilateral declaration of independence, and have supported it in a campaign
in favour of recognition. The failure of these States to obtain the agreement
of the concerned party for the desired aim should not lead to an attempt to
impose this aimas a mere fait accompli. In the present context, such a policy
can be qualified as intervention and, as the Court perceptively stated fifty
years ago, this is "the manifestation of a policy of force, such as has, in the
past, given rise to most serious abuses and such as cannot, whatever be the
109
Emphasis added. UNMIK-FRY, Common Document (5 November 2001), para. 5 (available at:
http://www.mfa.gov.yu/Policy/Priorities/KIM/unmik _e.html).
110Emphasis added. Presidential Statement of9 November 2001, UN Doc. S/PRST/2001/34.
111UN Doc. S/2005/709, 10November 2005 (Annex).
112
See the Friendly Relations Declaration adopted by GA Resolution 2625 (XXV) of24 October 1975. 44
present defects m international organization, find a place m international
law" 113.
113. It was suggested during the General Assembly discussions of the request for
this advisory opinion, that it was Serbia that unilaterally rendered the
successful negotiations impossible, because of the adoption of a new
Constitution that "unilaterally reasserted control over Kosovo" and
114
consequently tied the hands of the Serbian negotiators . This is not
accurate. The new Constitution reaffirmed Serbian sovereignty over Kosovo
115
and explicitly referred to its enjoyment of substantial autonomy , which is
in conformity with Resolution 1244 (1999). Moreover, the Constitution
leaves open the possibility of amendment 116. This argument is therefore
devoid of any relevance.
114. On the contrary, it is the unilateral declaration of independence itself that
attempts at modifying the existing status and putting an end to the
negotiations between the parties.
113Corfu Channel. Merits, Judgment, I.C.J Reports 1949, p. 35.
114Sir John Sawers (United Kingdom), United Nations General Assembly, Sixty-third sessin, 22 nd
115nary meeting, 8 October 2008, UN Doc. A/63/PV.22, p. 3.
Preamble and Article 182. Available at:
http://www.parlament.sr.gov .yu/content/eng/akta/ustav /ustav_ceo.asp
116Article 203. Available at: ibid. 45
Section III:
The Answer to the Question Raised by the General Assembly
115. Having determined the rules and principles of international law relevant to
the question posed by the General Assembly, this section will ascertain
whether the unilateral declaration of independence of 17 February 2008 is in
accordance with those rules and principles.
A. The Provisional Institutions of Self-Government have no
competence to proclaim the independence of Kosovo
116. It has been determined that the Provisional Institutions of Self-Government
117
have no competence to proclaim the independence of Kosovo.
Consequently, being organs created by the Special Envoy of the Secretary
General in the framework of the responsibilities vested to the latter by UNSC
Resolution 1244 (1999), their unilateral declaration of independence is an
ultra vires act in violation of that Resolution and the Constitutional
Framework set out by UNMIK Regulation 2001/9.
B. The unilateral declaration of independence infringes SC
Resolution 1244 (1999)
117. As discussed above, the specific international legal provision governing the
situation in Kosovo is UNSCR Resolution 1244 (1999). 118The Provisional
Institutions of Self-Government, which were created by virtue of this
resolution, are naturally required to respect its provisions.
118. The unilateral declaration of independence of 17 February 2008 infringes
UNSC Resolution 1244 (1999) in a number of ways:
117
Supra, paras. 61-64.
11Supra, para. 65. 46
• It is an act of de-fiance against the continued applicability of the
Resolution itself, and as such attempts to undermine the competences
of the Security Council under Chapter VII of the Charter of the
United Nations;
• It contravenes the authority of the international administration
established by the Resolution;
• It attempts to put an end to such presence established on the basis of
the Resolution, something which can only be decided by the Security
Council itself;
• It disregards the political process that must lead to the determination
of the future status of the territory, i.e. negotiations between the
parties concemed;
• It attempts to impose a given political settlement, even though this
can only be the outcome of negotiations;
• It does not respect the sovereignty and territorial integrity of Serbia,
explicitly preserved in the Resolution.
119. This open de-fianceto a binding SC resolution in force is attested by the last
report on Kosovo prepared by the Secretary-General: "The Kosovo
authorities, who have been under significant pressure from opposition
parties, have repeatedly stated during the past months that resolution 1244
(1999) is no longer relevant and that the institutions of Kosovo have no legal
obligation to abide by it" 11.
120. If member States are obliged to comply with Security Council resolutions,
this is also the case for organs created on the very basis of resolutions. The
serious undermining of the collective security system set up by the Charter
by the Provisional Institutions of Self-Govemment of Kosovo cannot be
tolerated. The very credibility of this system is at stake.
119Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo,
17 March 2009, UN Doc. S/2009/149, para. 4. 47
C. The unilateral declaration of independence violates the territorial
integrity of Serbia
121. As has been stated above, respect for the territorial integrity of States is not
only an obligation for States but it is also a requirement opposable to parties
120
to internal armed conflicts threatening international peace and security. It
has already been noted that respect for the sovereignty and territorial
integrity of Serbia is expressly provided in Resolution 1244 (1999).
122. Because the very purpose of the unilateral declaration of independence of 17
February 2008 is the creation of a new sovereign State from the territory
under the sovereignty of an existing State, the declaration infringes the
obligation to respect the territorial integrity of Serbia.
D. The unilateral declaration of independence constitutes a breach of the
obligation to settle disputes through peaceful means
123. Furthermore, the unilateral declaration of independence of 17 February 2008
violates the obligation of the Provisional Institutions of Self-government of
Kosovo to negotiate the future status of the territory with the sovereign State.
This obligation stems not only from UNSC Resolution 1244 (1999), but from
general international law as well.
121
124. As stated above ,non-State actors, most particularly in the case of internal
conflicts which are of international concern, are also the addressees of
injunctions of the Security Council acting under Chapter VII of the UN
Charter. When the Security Council imposes on all sides of the dispute the
obligation to solve the crisis through negotiations or other peaceful means,
this requirement implies that the general rules related to the peaceful
settlement of international disputes are applicable. In concrete terms, this
means that failure of a round of negotiations does not liberate the parties
from the obligation to pursue the settlement of their dispute through available
peaceful means, including further negotiations.
120
121See supra, paras. 69-82.
Supra, para. 75. 48
125. As such, the unilateral declaration, by attempting to unilaterally put an end to
the negotiation process, constitutes a breach of the obligation to settle the
disputes through peaceful means.
E. There are no legal grounds for the unilateral declaration of independence
126. Having established that the unilateral declaration of independence of 17
February 2008 is an ultra vires act of the Provisional Institutions of Self
government of Kosovo that infringes Resolution 1244, the territorial integrity
of Serbia and the obligation to settle disputes through peaceful means, it will
be analysed here whether there are grounds to legally justify that declaration.
127. The unilateral declaration of independence of 17 February 2008 cannot be
grounded either on the existence of a right to secession in domestic law or on
the consent of the parent State given afterwards. With regard to the former
situation, some constitutions provide for such a right. Indeed, this was the
case of the Constitution of the SFRY of 1974, but only limited to the
constituent Republics (Bosnia and Herzegovina, Croatia, Macedonia,
Montenegro, Serbia and Slovenia) and not to the provinces (Kosovo and
Vojvodina) 122• Later Constitutions, such as those of the Federal Republic of
Yugoslavia, Serbia and Montenegro, and Serbia, did not grant that right to
123
the autonomous regions either . As it is well known, Serbia has not
consented the secession of Kosovo. On the contrary, it has declared the
124
unilateral declaration to be null and void •
128. The situation of Kosovo is also in clear contrast with other situations, such as
those of Bangladesh, Eritrea and the Baltic States, in which the parent States
accepted the separation of part of their territories and inhabitants. In the case
of Eritrea moreover, the territory of this former Italian colony had been
122The preamble to the Basic Principle of the Constitution of the Socialist Federal Republic of
Yugoslavia, 1974, provides "The nations of Yugoslavia, proceeding from the right of every nation to
123f-determination, including the right to secession".
See Articles 2, 3 and 6 of the Constitution of the Federal Republic of Yugoslavia of 1992; Preamble
and Article 5 of the Constitutional Charter of the Union ofSerbia and Montenegro of2003; and Article
8 of the Constitution of the Republic of Serbia of 2006, currently in force and available on the website
of the National Assembly of the Republic ofSerbia at
<http://www.parlament.sr.gov .yu/content/eng/akta/ustav/ustav_ceo.asp>.
124Letter from Mr. Boris Tadic, President of the Republic of Serbia, to the Secretary-General of 17
February 2008, U.N. Doc. A/62/703-S/2008/111. 49
incorporated to Ethiopia by a binding UN General Assembly resolution on
condition of the enjoyment of autonomy of the territory in the framework of
125
a federation . In the case of the Baltic States, their illegal annexation in
1940 is relevant to their subsequent separation from the parent State. These
situations are clearly different from that of Kosovo.
129. It could be argued that the creation of States is a matter of fact and not of
law. Certainly, a State cannot exist if the material elements traditionally
126
mentioned are absent • These days, however, the creation of States must be
the result of a process in which respect for international law is assured. This
explains why entities claiming to be States, and that show effective and
exclusive control over the territory and its inhabitants, but which were
created in violation of international law, have not been considered to be
States. Examples include "Katanga", "Southern Rhodesia", the "Turkish
Republic ofNorthern Cyprus" and "Somaliland", among others. The creation
of States being also a matter of law today means that international law does
not remain neutral vis-à-vis secession. For this reason, the unilateral
declaration of independence cannot produce its purported effect. A fortiori,
127
as has been previously mentioned , there is no such effective and exclusive
control by the Provisional Institutions of Self-government in the case of
Kosovo.
130. To sum up, there are no legal grounds justifying the unilateral declaration of
independence.
131. Before concluding, Argentina wishes to insist on the need for a resumption
of the negotiations between the parties concerned, with the aim of reaching a
lasting settlement on the basis of international law and that permits all the
inhabitants of the territory - including the displaced persons who are not in a
position to exercise their right to return - the full enjoyment of their human
rights in a multiethnic society. Imaginative solutions in the framework of
international law are always possible and certainly they were not exhausted
125
"Eritrea shall constitute an autonomous unit federated with Ethiopia under the sovereignty of the
126iopian Crown." (GA Resolution 390 (V), Article 1) th
Cf. Article 1 of the Convention on Rights and Duties of States, adopted by the 7 International
American Conference at Montevideo on 26 December 1933 (League of Nations, Treaty Series, 1936,
vol CLXV, p. 20. See also: Opinion No. 1 of the Arbitration Commission of the Conference on
Yugoslavia, 31 !LM 1494 (1992).
127
Supra, para. 35. 50
between 2005 and 2007, during the negotiations lead by Mr. Ahtisaari. It is
also the responsibility of those States directly involved in the Kosovo process
to insist upon the parties that the respect of international law is an essential
part of the conduct of any actor in international relations.
Conclusions
132. On the basis of the arguments set out above, Argentina respectfully submits
that:
(a) The Court hasjurisdiction to answer the question raised by the General
Assembly;
(b) There are not compelling reasons preventing the Court from exercising its
advisory jurisdiction;
(c) The unilateral declaration of independence by the Provisional Institutions of
Self-Government of Kosovo is not in accordance with international law, since:
(i) It is an act which did not fall within the competences of its authors, as
stemming from Resolution 1244 (1999) and the Constitutional
Framework adopted by UNMIKRegulation 2001/9;
(ii) It infringes the competences and responsibilities of the Security
Council under Chapter VII of the Charter of the United Nations;
(iii) It infringes Resolution 1244 (1999) in a way described in paragraph
118 of this written statement;
(iv) It constitutes a violation of the territorial integrity of Serbia:
(v) It constitutes a breach to the obligation to settle disputes through
peaceful means, in particular the obligation to reach a settlement for
the future status of Kosovo through negotiations.
Written Statement of Argentina